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Forest Service
National Institute of Food and Agriculture
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Air Force Department
Engineers Corps
Pipeline and Hazardous Materials Safety Administration
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Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
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Employment and Training Administration
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Trade Representative, Office of United States
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Lycoming Engines reciprocating engines. This AD was prompted by a report of a “machined-from-billet” HA–6 carburetor having a loose mixture control sleeve that rotated in the carburetor body causing restriction of fuel and power loss. This AD requires removing certain “machined-from-billet” Volare LLC (formerly Precision Airmotive Corporation, formerly Facet Aerospace Products Company, formerly Marvel-Schebler (BorgWarner)) HA–6 carburetors, inspecting for a loose mixture control sleeve or for a sleeve that may become loose, repairing the carburetor, or replacing the carburetor with one eligible for installation. We are issuing this AD to prevent engine in-flight shutdown, power loss, and reduced control of the airplane.
This AD is effective March 27, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of March 27, 2012.
For service information identified in this AD, contact Marvel-Schebler Aircraft Carburetors LLC, 125 Piedmont Avenue, Gibsonville NC 27249; phone: 336–446–0002; fax: 336–446–0007; email:
You may examine the AD docket on the Internet at
Kevin Brane, Aerospace Engineer, Propulsion, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate; 1701 Columbia Avenue, College Park, Georgia 30337; phone: 404–474–5582; fax: 404–474–5606; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal and the FAA's response.
One commenter, a private citizen, requested that we incorporate all affected engine models with HA–6 model carburetors installed in the AD. The commenter provided a list, which he compiled from reviewing all applicable published Type Certificate Data Sheets (TCDS).
We partially agree. We agree that some additional models are affected because the list provided by the commenter is mostly consistent with the applicable TCDS. We do not agree with the commenter on some of the models he thinks are affected, because we could not confirm they are affected, based on the TCDS. However, we determined that we need to change the applicability from a table of specific engine models, to all Lycoming Engines reciprocating engines with carburetor part numbers listed in Table 1 of the AD. We changed the AD applicability to all Lycoming Engines reciprocating engines with carburetor part numbers listed in Table 1 of the AD.
Since we issued the proposed AD, we found that we referenced the wrong office in the AMOC paragraph. We changed that sentence to state that the Manager, Atlanta Aircraft Certification Office, FAA, may approve AMOCs for this AD.
Marvel-Schebler Aircraft Carburetors LLC has revised their Marvel-Schebler Emergency Service Bulletin (SB) No. SB–18, dated October 14, 2010, to Revision A, dated March 15, 2011. We reviewed Revision A, and determined that it also is acceptable. We changed the incorporated by reference paragraph k of the AD to include the original issue and Revision A.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We estimate that this AD affects 10,700 engines installed on aircraft of U.S. registry. We also estimate that it will take about 0.5 work-hours per aircraft to perform the inspection, and that about 409 carburetors will need repair. Approximately 2 work-hours per carburetor are required to repair the carburetor. The average labor rate is $85 per work-hour. Required parts will cost about $600 per carburetor. Based on these figures, we estimate the cost of the AD on U.S. operators to be $769,680. Our estimate is exclusive of possible warranty coverage.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective March 27, 2012.
None.
This AD applies to all Lycoming Engines reciprocating engines with carburetor part numbers listed in Table 1 of this AD.
This AD was prompted by a report of a “machined-from-billet” HA–6 carburetor having a loose mixture control sleeve that rotated in the carburetor body causing restriction of fuel and power loss. We are issuing this AD to prevent engine in-flight shutdown, power loss, and reduced control of the airplane.
Comply with this AD within 50 flight hours after the effective date of this AD, unless already done.
Inspect the carburetor to determine the type of body the carburetor has. Use Marvel-Schebler Emergency Service Bulletin (SB) No. SB–18, dated October 14, 2010, or Revision A, dated March 15, 2011, Figure (3) to determine which type of body is used.
(g) If the carburetor has a die-cast body, no further action is required.
(h) If the carburetor has an affected “machined-from-billet” body, remove the carburetor; and replace the carburetor with:
(1) An HA–6 carburetor not listed in Table 1 of this AD; or
(2) An HA–6 carburetor that is listed in Table 1 but is exempted as described in paragraphs 1.A. and 1.B of Marvel-Schebler Emergency SB No. SB–18, dated October 14, 2010 or Revision A, dated March 15, 2011; or that has already been repaired using that Emergency SB.
The Manager, Atlanta Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Kevin Brane, Aerospace Engineer, Propulsion, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate; 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474–5582; fax: (404) 474–5606; email:
(1) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference (IBR) under 5 U.S.C. 552(a) and 1 CFR part 51 of the following service information:
(i) Marvel-Schebler Emergency Service Bulletin No. SB–18, dated October 14, 2010.
(ii) Marvel-Schebler Emergency Service Bulletin No. SB–18, Revision A, dated March 15, 2011.
(2) For service information identified in this AD, contact Marvel-Schebler Aircraft Carburetors LLC, 125 Piedmont Avenue, Gibsonville, NC 27249; phone: 336–446–0002; fax: 336–446–0007; email:
(3) You may review copies of the service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call 202–741–6030, or go to
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class D and Class E airspace at Bozeman, Gallatin Field Airport, Bozeman, MT, to accommodate aircraft using Instrument Landing System (ILS) Localizer (LOC) standard instrument approach procedures at Bozeman, Gallatin Field Airport. This action also establishes Class E En Route Domestic airspace to facilitate vectoring of Instrument Flight Rules (IFR) operations at the airport. This action, initiated by the biennial review of the Bozeman airspace area, enhances the safety and management of aircraft operations at the airport.
Effective date, 0901 UTC, May 31, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.
On November 16, 2011, the FAA published in the
Class D and Class E airspace designations are published in paragraph 5000, 6005 and 6006, respectively, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace, and Class E airspace extending upward from 700 feet above the surface at Bozeman, Gallatin Field Airport, Bozeman, MT. Additional controlled airspace is necessary to accommodate aircraft using the ILS LOC standard instrument approach procedures at the airport. Also, this action establishes Class E En Route Domestic airspace extending upward from 1,200 feet above the surface to allow vectoring IFR aircraft from En Route airspace to the airport.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates additional controlled airspace at Bozeman, Gallatin Field Airport, Bozeman, MT.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from the surface to and including 7,000 feet MSL within a 5.4-mile radius of Bozeman, Gallatin Field Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 13.5-mile radius of Bozeman, Gallatin Field Airport, and within 8 miles northeast and 13 miles southwest of the 316° bearing of the airport extending from the 13.5-mile radius to 24.4 miles northwest of the airport.
That airspace extending upward from 1,200 feet above the surface within a 50-mile radius of the Bozeman, Gallatin Field Airport; excluding existing lateral limits of controlled airspace 12,000 feet MSL and above.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Effective date 0901 UTC February 21, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Colby Abbott, Airspace, Regulations, and ATC Procedures Group, Office of Mission Support Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
On April 28, 2011, the FAA published a final rule in the
Accordingly, pursuant to the authority delegated to me, the legal descriptions for V–388 for Airspace Docket No. FAA–2011–0010, Airspace Docket No. 11–AAL–1, as published in the
“From Kenai, AK; INT Kenai 067°and Anchorage, AK, 208° radials; to Anchorage.” instead of “From Anchorage, AK, to INT Anchorage 208°and Kenai, AK, 067° Kenai, AK.”
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at City of Colorado Springs Municipal Airport, Colorado Springs, CO. Decommissioning of the Black Forest Tactical Air Navigation System (TACAN) has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also adjusts the geographic coordinates of the airport.
Effective date, 0901 UTC, May 31, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4537.
On November 16, 2011, the FAA published in the
Class E airspace designations are published in paragraph 6003, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace designated as an extension to Class C airspace area for the City of Colorado Springs Municipal Airport, Colorado Springs, CO. Airspace reconfiguration is necessary due to the decommissioning of the Black Forest TACAN. Also, the geographic coordinates of the airport will be updated to coincide with the FAA's aeronautical database. This action is necessary for the safety and management of IFR operations.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from the surface within 2.4 miles northwest and 1.2 miles southeast of the City of Colorado Springs Municipal Airport 025° bearing extending from the 5-mile radius of the airport to 8.9 miles northeast, and within 1.4 miles each side of the airport 360° bearing extending from the 5-mile radius of the airport to 7.7 miles north of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies area navigation (RNAV) route T–288 by extending the route westward from the Rapid City, SD, VORTAC to the Gillette, WY, VOR/DME. This extension enhances the efficiency and safety of the National Airspace System (NAS) by supplementing the existing VOR Federal airway structure in that area.
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
On December 6, 2011, the FAA published in the
In the NPRM, the state designation (WY) for the KARAS intersection was inadvertently omitted from the route description. With the exception of that editorial change, this amendment is the same as that proposed in the NPRM.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to modify RNAV route T–288 by adding a new segment between the Rapid City, SD, VORTAC and the Gillette, WY, VOR/DME. The extension supplements the existing VOR Federal airway structure to provide alternative routing between Gillette and Rapid City in the event of navigation aid outages.
RNAV routes are published in paragraph 6011 of FAA Order 7400.9V signed August 9, 2011 and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The jet route listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands RNAV route coverage to enhance the safe and efficient flow of traffic in the western United States.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p.389.
Federal Energy Regulatory Commission, DOE.
Final rule; correcting amendment.
This document contains corrections to the final regulations (Docket No. RM09–23–000) which were published in the
S.L. Higginbottom (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. Telephone: 202–502–8561, Email:
The final regulations that are the subject of these regulations amended 18 CFR 292.602(c) and affect the Commission's grant of exemption of qualifying small power production facilities and cogeneration facilities from certain Federal and State laws and regulations.
As published, the final regulations contained errors which involved the removal of subparagraphs from 18 CFR 292.602(c)(1). These subparagraphs contain critical information concerning which state laws apply to qualifying small power production facilities and qualifying cogeneration facilities.
Electric power, Electric power plants, Electric utilities.
Accordingly, 18 CFR part 292 is corrected by making the following correcting amendment:
16 U.S.C. 791a–825r, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
(c) * * *
(1) * * *
(i) The rates of electric utilities; and
(ii) The financial and organizational regulation of electric utilities.
Food and Drug Administration, HHS.
Notification; extension of enforcement discretion.
The Food and Drug Administration (FDA) is extending the period of time that it intends to exercise enforcement discretion concerning the use of the health claim for phytosterols and risk of coronary heart disease (CHD), in a manner that is consistent with FDA's February 14, 2003, letter of enforcement discretion to Cargill Health and Food Technologies, until publication of a final rule.
Submit either electronic or written comments by April 23, 2012.
Submit electronic comments to
Blakeley Fitzpatrick, Center for Food Safety and Applied Nutrition (HFS–830), 5100 Paint Branch Pkwy., College Park, MD 20740, 240–402–1450.
For the reasons described herein, FDA intends to continue to exercise enforcement discretion with respect to the use of a health claim regarding reduced risk of coronary heart disease (CHD) for phytosterol-containing conventional food and dietary supplements, in a manner that is consistent with FDA's February 14, 2003, letter of enforcement discretion to Cargill Health and Food Technologies, until publication of a final rule.
In the
FDA received a letter, dated January 6, 2003, from Cargill Health and Food Technologies requesting that FDA issue a letter stating its intention not to enforce certain requirements in the IFR. The letter cited new scientific evidence and comments submitted to FDA in the plant sterol/stanol esters health claim rulemaking in support of extending the authorized health claim to all forms and sources of phytosterols and product forms that might effectively reduce blood cholesterol levels. In response to the letter submitted by Cargill and other comments received to the IFR, we issued a letter of enforcement discretion on February 14, 2003 (the 2003 letter) (Ref. 1). In the letter, we explained that we would consider exercising enforcement discretion, pending publication of the final rule, with respect to certain requirements of the health claim. Specifically, we stated we would consider such discretion with regard to the use of the claim in the labeling of a phytosterol-containing food, including foods other than those specified in § 101.83(c)(2)(iii)(A) (21 CFR 101.83(c)(2)(iii)(A)), if: (1) The food contains at least 400 milligrams (mg) per RACC of phytosterols; (2) mixtures of phytosterol substances (i.e., mixtures of sterols and stanols) contain at least 80-percent beta-sitosterol, campesterol, stigmasterol, sitostanol, and campestanol (combined weight); (3) the food meets the requirements of § 101.83(c)(2)(iii)(B) through (c)(2)(iii)(D); (4) products containing phytosterols, including mixtures of sterols and stanols in free (non-esterified) forms, use a collective term in lieu of the terms required by § 101.83(c)(2)(i)(D) in the health claim to describe the substance (e.g., “plant sterols” or “phytosterol”); (5) the claim specifies that the daily dietary intake of phytosterols that may reduce the risk of CHD is 800 mg or more per day, expressed as the weight of free Phytosterol; (6) vegetable oils for home use that exceed the total fat disqualifying level can bear the health claim along with a disclosure statement that complies with § 101.13(h); and (7) the use of the claim otherwise complies with § 101.83. Thus, the 2003 letter described intended enforcement discretion with respect to: (1) Different forms and mixtures of phytosterols in a wider variety of products and (2) the use of the claim on foods containing lower levels of phytosterols than set forth in the IFR.
In the
We stated in the 2010 proposed rule for phytosterols and the risk of CHD health claim that, pending publication of a final rule, FDA intends to consider the exercise of its enforcement discretion on a case-by-case basis when a health claim regarding phytosterols and CHD is made in a manner that is consistent with the proposed rule (75 FR 76526 at 76546).
The 2010 proposed rule also stated that, beginning 75 days after the date of publication of the proposed rule (February 21, 2011), FDA did not intend to exercise its enforcement discretion based on the 2003 letter (75 FR 76526 at 76546). We stated that starting on February 21, 2011, all products bearing the health claim would have to be in compliance with § 101.83, or if health claims were made in a manner consistent with the proposed rule, we would consider exercising enforcement discretion pending publication of a final rule.
In the 2010 proposed rule, we proposed to make several changes to the requirements for the nature of the food eligible to bear the claim that differ from the requirements in current § 101.83 and from the basis for enforcement discretion in the 2003 letter. Among other changes, FDA proposed to increase the amount of phytosterols that must be present in the food product from 0.4 to 0.5 g of phytosterols per RACC and to only allow the use of the claim in dietary supplements containing the esterified form of phytosterols. In addition, we proposed that a conventional food would be eligible to bear the claim if it is the subject of a GRAS notification to which FDA had no further questions.
After publication of the proposed rule, we received requests from industry to extend the 75-day period from the date of publication of the proposed rule for the exercise of FDA enforcement discretion based on the 2003 letter. We subsequently issued a notice in the
In the February 18, 2011 notice, FDA stated that it intended to exercise enforcement discretion until February 21, 2012, with respect to the use of a claim regarding reduced risk of CHD in the labeling of a phytosterol-containing food, including foods other than those specified in § 101.83(c)(2)(iii)(A), based on the factors set forth in the 2003 letter for the use of such claim in the labeling of food. FDA also stated that the February 18, 2011 notice did not change how we intend to consider exercising our enforcement discretion when claims are made consistent with the proposed requirements in the proposed rule, and that our decision to extend the period of time during which we would consider the exercise of our enforcement discretion only related to FDA's enforcement discretion based on the 2003 letter.
Since publication of the February 18, 2011, notice, we have received two
Based on the new data and information currently under our review that may be important, to our consideration in deciding what requirements to include in the final rule, and the need to focus FDA's resources on other public health priorities, we find it appropriate to continue to extend our consideration of the exercise of enforcement discretion for the labeling of foods, including dietary supplements, bearing a health claim regarding phytosterols and risk of CHD consistent with the 2003 letter, until publication of the final rule.
Therefore, FDA is extending the period during which it intends to exercise enforcement discretion, consistent with the factors set forth in the 2003 letter, until publication of a final rule for the phytosterols and risk of CHD health claim. This document does not change how FDA intends to consider exercising its enforcement discretion when claims are made consistent with the proposed requirements in the proposed rule. Food, including dietary supplements, bearing the health claim would be required to comply with any revised requirements established in the final rule when the final rule becomes effective.
The following reference has been placed on display in the Division of Dockets Management (see
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to the final regulations (TD 9571), which were published in the
This correction is effective on February 21, 2012, and is applicable on January 17, 2012.
Jeffrey L. Parry, (202) 622–3850 (not a toll-free call).
The temporary regulations (TD 9571) that are the subject of these corrections are under section 864 of the Internal Revenue Code.
As published, the temporary regulations contain errors that may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:
26 U.S.C. 7805 * * *
(l)
(i)
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations (TD 9567), which were published in the
Joseph S. Henderson, (202) 622–3880 (not a toll-free number).
The final regulations that are the subject of these corrections are under section 6038 of the Internal Revenue Code.
As published on December 19, 2011 (76 FR 78561), final regulation (TD 9567), contains errors which may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments.
26 U.S.C. 7805 * * *
The revisions read as follows:
(b) * * *
(3) * * * See § 1.6038D–5T(f) for rules to determine the maximum value of an interest in a foreign trust or estate.
(d) * * *
(2) * * *
(i)
(a) * * *
(9) The foreign currency exchange rate and, if the source of such rate is other than as described in § 1.6038D–5T(c)(1), the source of the rate used to determine the specified foreign financial asset's U.S. dollar value, including maximum value; and
(c) * * *
(1)
(a) * * *
(1) * * *
(i) * * *
(C) Form 8621, “Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund”;
(b)
Internal Revenue Service (IRS).
Final rule; correction.
This document contains corrections to final regulations (TD 9567), which were published in the
Joseph S. Henderson, (202) 622–3880 (not a toll-free number).
The final regulations that are the subject of these corrections are under section 6038 of the Internal Revenue Code.
As published on December 19, 2011 (76 FR 78553), final regulation (TD 9567) contains errors which may prove to be misleading and are in need of correction.
Accordingly, the publication of the final regulations (TD 9567), which were the subject of FR Doc. 2011–32263, is corrected as follows:
1. On page 78557, the first column, in the preamble, in paragraph (J), line 7 from the bottom of the paragraph, the language “Investment Company or a Qualified” is corrected to read “Investment Company or Qualified”.
2. On page 78557, the third column, in the preamble, lines one and two in the first paragraph of paragraph (C) the language “Except as described in sections 5(D) and 5(E) of this explanation, for” is corrected to read “Except as described in sections 4(D) and 4(E) of this explanation, for”.
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations that prescribe the source of income received on a qualified fails charge under section 863 of the Internal Revenue Code (Code). The regulations finalize proposed regulations and withdraw temporary regulations published on December 8, 2010, and affect persons that pay or are entitled to receive qualified fails charges, including withholding agents.
Karen Walny, Office of Associate Chief Counsel (International) (202) 622–3870 (not a toll free call).
In response to persistent delivery failures in delivery-versus-payment transactions involving U.S. Treasury securities (Treasuries), the Treasury Market Practices Group (TMPG) and the Securities Industry and Financial Markets Association published a trading practice governing failed deliveries of Treasuries in 2008. In July, 2009, the Treasury Department and the Internal Revenue Service (IRS) issued Notice 2009–61 (2009–2 CB 181), which provided that the IRS will not challenge the position taken by a taxpayer or a withholding agent that a fails charge paid with respect to a Treasury on or before December 31, 2010 is not subject to U.S. gross basis taxation. On December 8, 2010, the Treasury Department and the IRS issued temporary and proposed regulations that establish source rules for a fails charge paid with respect to a Treasury, with a correction to the temporary regulations on December 28, 2010. 75 FR 76262, 75 FR 76321, and 75 FR 81457, respectively.
The temporary and proposed regulations provide that the source of income from a qualified fails charge is generally determined by reference to the residence of the taxpayer that is the recipient of the qualified fails charge income, with two exceptions. Qualified fails charge income earned by a qualified business unit (QBU) of a taxpayer is sourced to the country in which the QBU is engaged in a trade or business, and qualified fails charge income that arises from a transaction the income from which is effectively connected to a United States trade or business is sourced in the United States and treated as effectively connected to the conduct of a United States trade or business.
No comments were received on the proposed regulations, and no hearing was requested or held. This Treasury decision adopts the proposed regulations with the changes discussed in this preamble.
These final regulations adopt, with one substantive change, the proposed regulations on the source of a qualified fails charge. The final regulations also make a number of clarifying changes to the language of the regulations.
The preamble to the temporary regulations noted that no trading practice existed at that time for fails charges on securities other than Treasuries, but that if a fails charge trading practice pertaining to other securities was endorsed by the TMPG or an agency of the United States government, the Treasury Department and the IRS would consider whether the source rule in the regulations should be extended to those fails charges. The TMPG has subsequently endorsed a trading practice for debentures issued by the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the Federal Home Loan Banks and agency pass-through mortgage-backed securities issued or guaranteed by the Government National Mortgage Association (Ginnie Mae), Fannie Mae, and Freddie Mac (Agency Debt and Agency MBS, respectively) beginning in February, 2012.
The Treasury Department and the IRS have determined that the same source rule should apply to fails charges incurred with respect to Agency Debt and Agency MBS as to fails charges on Treasuries. Accordingly, these final regulations expand the scope of a qualified fails charge to fails charges paid with respect to Agency Debt. The sourcing rule in the final regulations also applies to a fails charge on Agency MBS guaranteed by Fannie Mae, Freddie Mac, and Ginnie Mae (for tax purposes, Fannie Mae, Freddie Mac, and Ginnie Mae do not issue Agency MBS). The final regulations do not address the source of any other payment, including a fails charge that is not a qualified fails charge.
The Treasury Department and the IRS are considering whether separate guidance is needed on the source of income attributable to certain payments, other than qualified fails charges, that arise in securities lending transactions or repurchase transactions and request comments regarding this issue.
These regulations are effective on February 21, 2012.
These regulations apply to a qualified fails charge paid or accrued on or after December 8, 2010.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to
The principal author of these regulations is Karen Walny, Office of the Associate Chief Counsel (International). However, other persons from the Office of Associate Chief Counsel (International) and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 863(a) and 7805 * * *
(a)
(b)
(1) The taxpayer's residence, determined under section 988(a)(3)(B)(i), is the United States;
(2) The qualified business unit's residence, determined under section 988(a)(3)(B)(ii), is outside the United States;
(3) The qualified business unit is engaged in the conduct of a trade or business in the country where it is a resident; and
(4) The transaction to which the qualified fails charge relates is attributable to the qualified business unit. A transaction will be treated as attributable to a qualified business unit if it satisfies the principles of § 1.864–4(c)(5)(iii) (substituting “qualified business unit” for “U.S. office”).
(c)
(d)
(1) Compensates a party to a transaction that provides for delivery of a designated security (as defined in paragraph (e) of this section) in exchange for the payment of cash (delivery-versus-payment settlement) for another party's failure to deliver the specified designated security on the settlement date specified in the relevant agreement; and
(2) Is made pursuant to—
(i) A trading practice or similar guidance approved or adopted by either an agency of the United States government or the Treasury Market Practices Group, or
(ii) Any trading practice, program, policy or procedure approved by the Commissioner in guidance published in the Internal Revenue Bulletin.
(e)
(i) Debt instrument (as defined in § 1.1275–1(d)) issued by the United States Treasury Department, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or any Federal Home Loan Bank; or
(ii) Pass-through mortgage-backed security guaranteed by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association.
(g)
In rule document 2011–29385 appearing on pages 70640–70644 the issue of Tuesday, November 15, 2011 make the following correction:
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Kinnickinnic River in Milwaukee, Wisconsin. This zone is intended to restrict vessels from a portion of the Kinnickinnic River due to the petroleum cleanup efforts. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with the removal of petroleum product from this area of the Kinnickinnic River.
This rule is effective in the CFR on February 21, 2012. This rule is effective with actual notice for purposes of enforcement at 7 a.m. on January 30, 2012. This rule will remain in effect through 7 a.m. on March 1, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0067 and are available online by going to
If you have questions on this temporary rule, contact or email BM1 Adam Kraft, U.S. Coast Guard Sector Lake Michigan, at 414–747–7148 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when an agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under U.S.C. 553 (b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the dangers presented by the containment and cleanup of petroleum product are immediate and do not allow time for a notice and comment period. Thus, waiting for a notice and comment period to run would be impracticable and contrary to the public interest in that it would prevent the Coast Guard from protecting the public and vessels on navigable waters from the aforementioned hazards.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On January 23, 2012 it was discovered that a large amount of jet fuel is entering the Kinnickinnic River from an underground fuel leak in the vicinity of the airport in Milwaukee, WI. The Captain of the Port, Sector Lake Michigan, has determined that the containment and cleanup poses a serious risk of injury to persons and property within this area of the river.
Because of the aforesaid hazards, the Captain of the Port, Sector Lake Michigan, has determined that a safety zone is necessary to protect the public. The safety zone will encompass all U.S. navigable waters of Kinnickinnic River between the West Becher Street Bridge located at 43°00′37″ N 087°54′51″ W and the First street bridge located at 43°00′30″ N 087°54′41″ W (NAD 83). This rule will be enforced from 7 a.m. on January 30, 2012 until 7 a.m. on March 1, 2012.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, Sector Lake Michigan, or his or her designated representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone will be in effect along a portion of the river, given the time of year that has minimal traffic. Moreover, the most prominent marine commercial company in the area has been notified of the situation and it has chosen to use an alternate mooring.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor on a portion of Kinnickinnic River between 7 a.m. on January 30, 2012 and 7 a.m. on March 1, 2012.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic will be minimal due to the time of year and the location of the safety zone.
In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, or his or her designated representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction.
A final environmental analysis checklist and categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative.
(3) The “designated representative” of the Captain of the Port, Sector Lake Michigan, is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port, Sector Lake Michigan, to act on his or her behalf. The designated representative of the Captain of the Port, Sector Lake Michigan, will be on land
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Lake Michigan, or his or her designated representative to obtain permission to do so. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF Channel 16.
Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in support of the Mavericks Surf Competition. This temporary safety zone will establish a temporary safety zone in vicinity of Pillar Point in the navigable waters of Half Moon Bay, California. The regulation will temporarily restrict vessel traffic in vicinity of Pillar Point and prohibit vessels not participating in the surfing event from entering the dedicated surfing area and the hazardous waters surrounding Pillar Point. This regulation is necessary to provide for the safety of life on the navigable waters immediately prior to, during, and immediately after the surfing competition.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2011–1146 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade DeCarol Davis (415) 399–7443, or email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the surf conditions during the 2012 Mavericks Invitational surf competition, the safety zone is necessary to provide for the safety of event participants, spectators, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The 2012 Mavericks Invitational is a one day “Big Wave” surfing competition consisting of the top 24 big wave surfers and only occurs when 15–20 foot waves are sustained for over 24 hours and are combined with mild easterly winds of no more than 5–10 knots. The rock and reef ridges that make up the sea floor of the Pillar Point area combined with optimal weather conditions create the large waves that Mavericks is known for. Due to the hazardous waters surrounding Pillar Point at the time of the surfing competition, the Coast Guard is establishing a safety zone in vicinity of Pillar Point that restricts navigation in the area of the surf competition and in neighboring hazardous areas.
The Coast Guard is establishing a safety zone associated with the 2012 Mavericks Invitational surf competition. The 2012 Mavericks Invitational will take place on a day that presents favorable surf conditions between 7 a.m. Monday January 23, 2012 and 3 p.m. Saturday March 31, 2012. The 2012 Mavericks Invitational can only occur when 15–20 foot waves are sustained for over 24 hours and are combined with mild easterly winds of no more than 5–10 knots. Unpredictable weather patterns and the event's narrow operating window limit the Coast Guard's ability to notify the public of the event. The Coast Guard will issue notice of the event as soon as practicable, and no later than 24 hours prior via the Broadcast Notice to Mariners.
The 2012 Mavericks Invitational will occur on the navigable waters of Half Moon Bay in vicinity of Pillar Point. The Coast Guard will enforce a temporary safety zone bounded by a line connecting the following coordinates in the order they appear: 37°29′23″ N, 122°30′04″ W; 37°29′15″ N, 122°30′10″ W; 37°29′17″ N, 122°30′30″ W; 37°29′36″ N, 122°30′16″ W; 37°29′23″ N, 122°30′04″ W; 37°29′36″ N, 122°29′21″ W; 37°29′13″ N, 122°29′25″ W; 37°29′15″ N, 122°29′58″ W; 37°29′23″ N, 122°30′04″ W (NAD 83).
The effect of this temporary safety zone will be to restrict navigation in the vicinity of Pillar Point while the 2012 Mavericks Invitational is taking place. During the enforcement period, unauthorized persons or vessels are prohibited from transiting through, anchoring, blocking, or loitering in the safety zone without permission of the COTP or PATCOM. Vessels desiring to enter or operate in the safety zone shall do so with COTP or PATCOM permission via VHF–23A or through the 24-hour Command Center telephone at (415) 399–3547.
This safety zone is needed to keep spectators and vessels a safe distance away from the event participants and the hazardous waters surrounding Pillar
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders.
Although this rule regulates navigation in the waters encompassed by the regulated area, the effect of this rule will not be significant. The entities most likely to be affected are fishing vessels and pleasure craft engaged in recreational activities. In addition, the rule will only regulate navigation for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the regulated area will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of fishing vessels and pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in commercial and recreational activities have ample space outside of the affected areas of Half Moon Bay, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this regulated area via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction, which applies to regulations establishing, disestablishing, or changing Regulated Navigation Areas, safety zones or security zones.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or PATCOM to obtain permission. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or PATCOM. Persons or vessels may request permission to enter the safety zone on VHF–23A or through the 24-hour Command Center telephone at (415)–399–3547.
(4) The COTP, or PATCOM as the designated representative of the COTP, may control the movement of all vessels operating on the navigable waters of Half Moon Bay when the COTP has determined that such orders are justified in the interest of safety by reason of weather, visibility, sea conditions, temporary port congestion, and other temporary hazardous circumstances. When hailed or signaled by PATCOM, the hailed vessel must come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in additional operating restrictions, citation for failure to comply, or both.
National Park Service, Interior.
Final rule.
The National Park Service is amending special regulations for Cape Cod National Seashore that authorize hunting to allow for a spring season hunt for Eastern Wild Turkey. The Final Rule implements the Record of Decision for the Cape Cod National Seashore Hunting Program Environmental Impact Statement of August 2007.
This rule is effective March 22, 2012.
Craig Thatcher, Acting Chief Ranger, 99 Marconi Site Road Wellfleet, MA 02667; 508–957–0735.
In 1961 Congress established Cape Cod National Seashore (Seashore). In establishing the Seashore, Congress directed that the unique flora and fauna, the physiographic conditions, and the historic sites and structures of the area be permanently preserved; authorized the Secretary of the Interior (Secretary) to provide for the public enjoyment and understanding of the unique natural, historic, and scientific features of the Seashore be facilitated by establishing trails, observation points, exhibits and services for the public, and provided that adaptable portions of the Seashore may be managed for camping, swimming, boating, sailing, hunting, fishing, and other activities of similar nature. Public Law 87–126, Sec. 7 (Aug. 7, 1961).
The Seashore comprises 43,608 acres of shoreline; salt marshes; clear, deep, freshwater kettle ponds; and uplands; as well as a great diversity of species supported by these habitats. Lighthouses, a life-saving station, dune shacks, modern and Cape Cod-style houses, cultural landscapes, and wild
The 1961 legislation establishing the Seashore authorized the Secretary, acting through the National Park Service (NPS), to permit hunting.
The Secretary may permit hunting and fishing, including shellfishing, on lands and waters under his jurisdiction within the seashore in such areas and under such regulations as he may prescribe during open seasons prescribed by applicable local, State and Federal law. The Secretary shall consult with officials of the Commonwealth of Massachusetts and any political subdivision thereof who have jurisdiction of hunting and fishing, including shellfishing, prior to the issuance of any such regulations, and the Secretary is authorized to enter into cooperative arrangements with such officials regarding such hunting and fishing, including shellfishing, as he may deem desirable. * * *
The final rule increases hunting opportunities by expanding the hunting season to include a spring turkey hunt. Hunting within the Seashore that is authorized by NPS regulations is conducted in accordance with Commonwealth of Massachusetts, Department of Fisheries and Wildlife (MDFW) regulations. Currently authorized hunting in the Seashore is limited to deer, upland game, and migratory waterfowl. Although the Eastern Wild Turkey is managed as a native upland game bird by the MDFW, the current special regulation for hunting within the Seashore prohibits all hunting from March 1 through August 31. This rule change is necessary because the Massachusetts spring turkey season generally takes place from late April to mid or late May when hunting is prohibited by the Seashore's current special regulation. Fall turkey hunting could also be initiated if MDFW established such a season in the Cape Cod zone, but no rule change would be needed for a fall turkey hunt since the State does not conduct hunting before September 1.
For many years, the Seashore cooperated with the MDFW to release ring-necked pheasants within the Seashore to provide a pheasant hunt. In 2002, the Seashore was sued for failure to follow the National Environmental Policy Act (NEPA) with respect to the hunting program. In September 2003, the U.S. District Court ordered the Seashore to prepare a NEPA environmental assessment of the hunting program. The court also enjoined the pheasant hunt until the Seashore completed the NEPA assessment.
As a result of the court order, the Seashore initiated and completed a Final Environmental Impact Statement (FEIS), and Record of Decision (ROD), on the Seashore's hunting program. The chosen alternative as documented by the ROD, was Alternative B—Develop a Modified Hunting Program.
Through Alternative B, the Seashore seeks to increase hunting opportunities for native upland game bird species by establishing a turkey season generally consistent with MDFW regulations and making ancillary improvements to upland game bird habitat. The alternative phases out pheasant stocking and hunting through adaptive management actions aimed at improving the availability of native upland game bird species. Hunting areas will be consolidated and clearly delineated and educational outreach concerning hunting will be expanded to hunting and non-hunting users. The NPS and MDFW will cooperatively monitor and manage game and other species. The FEIS and ROD may be reviewed at:
The NPS published a proposed rule on March 22, 2011, and accepted public comments through April 21, 2011. Comments were accepted through the mail, hand delivery, and through the Federal eRulemaking Portal:
Seven comments were received from individuals. Of these, two came from the same person. Two of the remaining individual comments were very similar in context and point, but did not contain the name(s) of the person(s) that sent them.
Three comments were received from organizations: the Cranberry County Longbeards Chapter of the National Wild Turkey Federation; the Barnstable County League of Sportsman's Clubs, Inc.; and the Bass River Rod and Gun Club, Inc. One comment was from the agency that manages hunting in Massachusetts, the MDFW.
Two individual comments expressed general support for establishing a spring turkey season at the Seashore that was consistent with the MDFW program, but also recognized that the Seashore season and the State season were separately managed. Two individual comments supported the spring turkey season based on reducing motor vehicle and turkey conflicts on Route 6, a well travelled State highway that runs through the Seashore.
The comments received from the three organizations supported establishing a spring turkey season at the Seashore. These comments also suggested there should be:
• Consistency between the Seashore and MDFW regulations,
• A youth turkey hunt similar to the State youth hunt,
• Flexibility in the rule for the Seashore to adjust to any changes MDFW makes with the spring turkey season, and
• No extra geographic restraints in the Seashore spring turkey season that might create a high hunter density.
The MDFW made similar suggestions and also expressed concern about the possible need for a hunter to have a permit issued by the Seashore in addition to their State hunting license and turkey stamp.
The Seashore's hunting FEIS evaluated a turkey hunting season that was consistent with the MDFW regulations. The Seashore's hunting program has generally followed the MDFW program, with additional provisions or restrictions as necessary to meet park objectives and NPS policies. The Seashore regards MDFW as a key expert agency with State and region-wide perspective that is important for determining hunting seasons, bag limits, and other elements of a sound hunting program. Accordingly, management of hunting at the Seashore will be accomplished through close coordination between the Seashore and MDFW. The Seashore has adopted many of the MDFW regulations without additional restrictions, although the ultimate responsibility for developing and managing an appropriate hunting program for the Seashore rests with the NPS.
The existing special regulation utilizes 36 CFR 1.5, Closures and public use limits, to designate appropriate locations where hunting is allowed and to impose reasonable limits or restrictions necessary to address park specific issues such as resource
For similar reasons, NPS has deleted the reference to management activities and objectives “such as those described in the Cape Cod National Seashore Hunting Program/Final Environmental Impact Statement” from § 7.67(f)(5)(ii) in this final rule. Although the FEIS will continue to be an important guiding document, the Seashore will gain knowledge and experience each season that will inform the ongoing management process, and accordingly some flexibility is necessary.
For example, when the FEIS (July 2007) and ROD (September 2007), were completed, the MDFW had a two-week spring turkey hunting season, starting at the end of April and ending in early May. The FEIS and ROD statements of being “consistent with” the State season and expanding the Seashore's hunting season to accommodate the State's spring turkey hunt was written in the context of the two-week season. Since that date, the State has expanded its spring turkey season from two to four weeks, ending in late May. Due to possible user conflicts that may arise in late May, the Seashore Superintendent, using discretionary authority of the rule, will set the closing date of the season. The Seashore will strive to be consistent with the MDFW's turkey season dates to avoid confusion. However, the Superintendent will have the discretion to adjust the Seashore's opening and closings dates based on factors such as safety, use patterns, and the public interest.
To authorize and manage hunting activities compatible with their land management concerns, other federal and Commonwealth facilities within Massachusetts, such as the Massachusetts Military Reservation, have different rules and different dates than the dates/times established by the MDFW. The Superintendent's discretion in this case would be similar to such established practice. The public will be notified of the spring turkey hunt opening and closing dates and other special conditions for the Seashore hunting program, all of which will also be published in the Superintendent's Compendium.
Affording the Seashore Superintendent this discretion provides the flexibility suggested by the three organizations and the MDFW to allow for accommodation of future changes in the State's program (provided the changes fall within the scope of discretion authorized by this regulation) without further rulemaking. For example, MDFW currently has a special youth turkey hunt, which is allowed on a specific day, as part of its spring turkey season. The Seashore may consider, and this rulemaking accommodates, the possibility of incorporating a youth turkey hunt into the Seashore's program in the future. Consideration of the youth turkey hunt component may be entertained after the Seashore has implemented and evaluated the regular spring turkey hunt.
The ROD directed that: “[t]urkey hunting within [the Seashore] will be a controlled hunt requiring a permit, limiting the number of hunters, and likely managed through a lottery system.” Accordingly, to control issues such as hunter density for safety, this rule provides that the Seashore will manage the turkey hunt through permits. A person seeking the turkey hunting permit must present a driver's license, vehicle registration and Massachusetts State Hunting license with turkey stamp to ensure compliance with MDFW turkey hunt legal requirements and to verify the identity of the applicant. Seashore hunters should understand that some areas where hunting has previously been allowed might be closed to hunting during the spring turkey season for safety reasons.
After review and analysis of the public comments, NPS has:
• Deleted the word “temporarily” in paragraph (f)(5)(ii), for the reasons discussed in the previous section;
• Deleted the reference to activities and objectives “such as those described in the Cape Cod National Seashore Hunting Program/Final Environmental Impact Statement” in paragraph (f)(5)(ii), for the reasons discussed in the previous section; and
• Added the terms “limitations, restrictions * * * or other hunting related designations” to the public notification requirements for closures in paragraph (f)(6) to clarify that the requirement applies to all such actions.
This document is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This is an agency specific rule.
(3) This rule does not alter the budgetary effects of entitlements, grants, user-fees, or loan programs or the rights or obligations of their recipients.
(4) This rule does not raise novel legal or policy issues. The rule meets the requirements of the NPS general regulations at 36 CFR 2.2(b)(2).
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule will not impose restrictions on business in the local communities in the form of fees, record keeping or other requirements that would increase costs.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531
Under the criteria in Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required.
Under the criteria in Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically this rule:
(a) Meets the requirements of section 3(a) requiring all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in Executive Order 13175 we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes.
This rule does not contain any new collection of information that requires approval by OMB under the PRA of 1995 (44 U.S.C. 3501
This rule implements a portion of a major Federal action significantly affecting the quality of the human environment. The Seashore formally initiated the NEPA process on June 21, 2004 by publishing in the
A series of public and agency scoping meetings followed to solicit input on hunting in the park from American Indian tribes, Federal and State agencies and local towns, the public, and interested groups. Using the information gathered during the scoping process, the Seashore prepared a Draft Environmental Impact Statement (Draft EIS) for public review and comment. The comment period opened on April 21, 2006, with the Environmental Protection Agency's (EPA) publication of a Notice of Availability (NOA) in the
Two public meetings were held during the 60-day review period to receive oral comment. The availability of the Draft EIS and the dates and times of the public meetings were also publicized through a second NOA published by the NPS in the
Completion of the FEIS was noticed in the
This rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
The primary authors of this regulation were Craig Thatcher, Acting Chief Ranger, Cape Cod National Seashore; Robin Lepore, Office of the Regional Solicitor, Department of the Interior; Russel J. Wilson, Chief Regulations and Special Park Uses, National Park Service; and, A.J. North, Regulations Coordinator, National Park Service.
National Parks, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the National Park Service amends 36 CFR part 7 as follows:
16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under 36 U.S.C. 501–511, DC Code 10–137 (2001) and DC Code 50–2201 (2001).
(f)
(2) Except as otherwise provided in this section, hunting is permitted in accordance with § 2.2 of this chapter.
(3) Only deer, upland game (including Eastern Wild Turkey), and migratory waterfowl may be hunted.
(4) Hunting is prohibited from March 1st through August 31st each year, except for the taking of Eastern Wild Turkey as designated by the Superintendent.
(5) The Superintendent may:
(i) Require permits and establish conditions for hunting; and
(ii) Limit, restrict, or terminate hunting access or activities after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives.
(6) The public will be notified of such limitations, restrictions, closures, or other hunting related designations through one or more methods listed in § 1.7(a) of this chapter.
(7) Violating a closure, designation, use or activity restriction or a term or
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2953.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Coast Guard, DHS.
Interim rule.
The Coast Guard is amending the interim rule addressing lifesaving equipment to harmonize Coast Guard regulations for inflatable liferafts and inflatable buoyant apparatuses with recently adopted international standards affecting capacity requirements for such lifesaving equipment.
This interim rule is effective March 22, 2012. The Director of the Federal Register has approved the incorporation by reference of certain publications listed in this rule effective March 22, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG–2010–0048 and are available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this rule, email or call Ms. Jacqueline Yurkovich, Commercial Regulations and Standards Directorate, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG–5214), Coast Guard; email
On August 31, 2010, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Lifesaving Equipment: Production Testing and Harmonization With International Standards” in the
The Coast Guard is charged with ensuring that lifesaving equipment used on vessels subject to inspection by the United States meets specific design, construction, and performance standards, including those found in the International Convention for the Safety of Life at Sea, 1974, as amended, (SOLAS), Chapter III “Life-saving appliances and arrangements.”
The Coast Guard's specific standards for inflatable liferafts are found in 46 CFR part 160, subparts 160.151 (Inflatable Liferafts (SOLAS)) and 160.051 (Inflatable Liferafts for Domestic Service). The Coast Guard's specific standards for inflatable buoyant apparatuses are found in 46 CFR part 160, subpart 160.010 (Buoyant Apparatus for Merchant Vessels). Current subpart 160.151 satisfies SOLAS requirements, and current subparts 160.051 and 160.010 require compliance with the standards in subpart 160.151, with some specifically listed exceptions.
Subpart 160.151 implements SOLAS requirements by incorporating by reference the IMO standards referenced by Chapter III of SOLAS. The primary IMO standards referenced by Chapter III of SOLAS are the “Revised recommendation on testing of life-saving appliances” (Recommendation on Testing), IMO Resolution MSC.81(70), and the “International Life-saving Appliance Code” (LSA Code), IMO Resolution MSC.48(66). The IMO updates these standards by adopting MSC resolutions promulgating amendments to these standards.
In the 2011 interim rule, the Coast Guard revised subpart 160.151 to, among other things, update the version of the Recommendation on Testing incorporated by reference, and incorporate by reference for the first time the LSA Code. Subpart 160.151–5(d)(3) and (4) of Title 46 of the CFR incorporate by reference the LSA Code (as amended up through resolutions MSC.207(81), MSC.218(82), and MSC.272(85)), and the Recommendation on Testing (as amended up through resolutions MSC.226(82) and MSC.274(85)). Subparts 160.051 and 160.010 retain, with some specifically listed exceptions, the requirement for compliance with the standards in subpart 160.151, which will now also include the updated versions of the Recommendation on Testing and the LSA Code.
IMO recently adopted two new MSC resolutions further amending the LSA Code and the Recommendation on Testing: “Adoption of Amendments to the International Life-Saving Appliance (LSA) Code” (MSC.293(87)) and “Adoption of Amendments to the Revised Recommendation on Testing of Life-Saving Appliances” (MSC.295(87)).
Resolution MSC.293(87) amends the LSA Code and entered into force on January 1, 2012. This resolution increases the assumed average mass of liferaft occupants from 75 kg to 82.5 kg for inflatable liferaft design and approval testing purposes.
Resolution MSC.295(87) amends the Recommendation on Testing and also entered into force on January 1, 2012. This resolution specifies revisions necessary to account for this assumed average mass increase with respect to certain existing tests. The tests required by the Recommendation on Testing, Part 1 (Prototype Tests), significantly affected by Resolution MSC.295(87), are: The jump test, loading and seating test, davit-launched liferaft boarding test, damage test, righting test, and davit-launched inflatable liferaft strength tests.
Based on these amendments, the Coast Guard is revising the regulations modified by the 2011 interim rule to include the increased average mass of liferaft occupants and to require liferaft performance under subpart 160.151 to comply with the revisions to tests necessitated by the occupant weight increase. This revision to subpart 160.151 will also, by extension, affect liferaft performance under subpart 160.051 and inflatable buoyant apparatus performance under subpart 160.010.
In this new interim rule, the Coast Guard is revising § 160.151–5(d) to incorporate by reference Resolution MSC.293(87) and Resolution MSC.295(87), and revising all references to the LSA Code and Recommendation on Testing to include the newly incorporated by reference Resolutions. References to the LSA Code will become “LSA Code, as amended by Resolution MSC.293(87),” and references to the Recommendation on Testing will become “Revised recommendation on testing, as amended by Resolution MSC.295(87).” These revisions will affect the tests in §§ 160.151–27, 160.151–29, 160.151–31, and 160.151–57, which refer to the Recommendation on Testing. A complete discussion of these changes is available in the SNPRM, published October 11, 2011. 76 FR 62714.
The Coast Guard received one comment in response to the SNPRM. The comment addresses the Coast Guard's expanded use of qualified independent laboratories, instead of Coast Guard inspectors, during the approval process and for production inspections of certain types of lifesaving equipment. This comment is beyond the scope of the SNPRM and this interim rule, which addresses the increase in occupant mass for SOLAS life rafts based on two new IMO Resolutions only. The Coast Guard sought public comment in the 2010 NPRM on the Coast Guard's proposal regarding expanded use of independent laboratories, and finalized that proposal in the 2011 interim rule. As stated in the 2011 interim rule, the Coast Guard still finds the use of independent laboratories in the Coast Guard's approval process to be “the most effective manner” of executing and carrying out its obligations under 46 U.S.C. section 3306. See the discussion regarding the use of independent labs to perform these inspections in III.B “Independent Laboratories” in the Preamble of the interim rule published on October 11, 2011. The Coast Guard did not make any changes to the regulations in response to this comment.
In this interim rule, the Coast Guard is making non-substantive changes to the citations for the IMO resolutions incorporated by reference. The changes update the citations for IMO resolutions to make them easier to identify and to obtain copies. These citation updates have not changed the IMO resolutions or the versions of the IMO resolutions from the SNPRM to the interim rule.
The Director of the Federal Register has approved the material in 46 CFR 160.151–5 for incorporation by reference under 5 U.S.C. 552 and 1 CFR part 51. You may inspect this material at U.S. Coast Guard Headquarters where indicated under
The Coast Guard developed this interim rule after considering numerous statutes and executive orders related to rulemaking. Below the Coast Guard summarizes these analyses based on 14 of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This interim rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the interim rule has not been reviewed by the Office of Management and Budget.
The Coast Guard received no comments that altered our assessment of impacts in the SNPRM. We have found no additional data or information that changed our findings in the NPRM. We have adopted the assessment in the SNPRM for this rule as final.
The SNPRM is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. A summary of the analysis follows: This interim rule addresses the change in the international standard for occupant weight used in testing equipment to establish the rated capacity of inflatable liferafts and inflatable buoyant apparatuses. This interim rule revises the occupant weight or “assumed average occupant mass” from the current 75 kg to the new weight standard of 82.5 kg.
The Coast Guard issues a Certificate of Approval for inflatable liferafts and inflatable buoyant apparatuses under the applicable subpart in 46 CFR part 160 after successful testing of those appliances by their manufacturers. A Certificate of Approval specifies the number of occupants (or rated capacity) for which the inflatable liferaft or inflatable buoyant apparatus is designed and has been successfully tested, and the Certificate must be renewed every 5 years. New testing is not required to renew a current Certificate, but new approval requests require testing before a Certificate can be issued.
While this interim rule requires manufacturers to conduct prototype and production tests for inflatable liferafts and inflatable buoyant apparatuses manufactured on or after March 22, 2012 using the new occupant weight standard, it would limit re-testing of currently approved equipment, thus limiting the cost impact on manufacturers. And, as discussed in section IV.
As shown in Table 1 above, manufacturers of SOLAS inflatable liferafts approved under subpart 160.151 (SOLAS liferafts) and manufactured on or after March 22, 2012 are allowed the option of either re-testing using the new occupant weight standard or requesting certification for a lower rated occupancy (adjusted for the new occupant weight standard) based on the certification testing submitted for their current approval.
The principal cost impact for manufacturers of SOLAS liferafts will be for currently approved inflatable liferafts whose rated capacity is six using the current 75 kg occupant weight standard. Since SOLAS requires that inflatable liferafts have a minimum capacity of six, any SOLAS liferaft currently approved for six occupants will have to be re-tested under the new occupant weight standard in order to retain approval.
Currently, there are 10 manufacturers that produce 109 models of SOLAS liferafts. Of these, there are 11 liferaft models (from eight manufacturers) whose rated capacity is six (Table 2). These 11 models will be required to re-test to maintain their SOLAS certification. Three of these eight manufacturers are U.S. firms and they each produce one model of inflatable liferaft with a rated occupancy of six occupants. Of those three models, one model is designed primarily for use in aircraft under a Federal Aviation Administration approval number. The three models produced by U.S. firms and the eight models manufactured by foreign firms will have to be re-tested in order to verify a minimum occupancy rating under the new occupant weight standard to be used on SOLAS vessels. From estimates obtained from industry, we estimate the costs of re-testing for compliance with the new occupant weight standard at $1,800 for each model.
We estimate the total cost to industry to re-test all current SOLAS liferaft models as $19,800 ($14,400 for foreign manufacturers and $5,400 for U.S.-owned manufacturers). See Table 2 below.
As shown earlier in Table 1, manufacturers of domestic service inflatable liferafts under subpart 160.051 (domestic service liferafts) and inflatable buoyant apparatuses under subpart 160.010 manufactured on or after March 22, 2012 under current Certificates of Approval, have the option of using either the old 75 kg or the new 82.5 kg occupant weight standard. If a manufacturer of domestic service liferafts or a manufacturer of inflatable buoyant apparatuses with current Certificates of Approval chooses to use the new occupant weight standard, it also has the option of either re-testing using the new occupant weight standard or requesting re-certification for a lower number of occupants (adjusted for the new occupant weight standard). Manufacturers of domestic inflatable liferafts under subpart 160.051 or inflatable buoyant apparatuses under 160.010 are required to use the new occupant weight standard only when testing domestic inflatable liferafts or
In terms of the cost of the regulation:
1. While prototype testing for all SOLAS liferafts on or after March 22, 2012, will have to employ the new occupant weight standard, there is no additional cost in performing the required tests due to the change in the testing weight because the nature of the test remains the same.
2. Production testing of all SOLAS liferafts manufactured on or after March 22, 2012 will require testing using the new occupant weight standard. As with prototype testing, there is no additional cost in performing the required tests due to the change in the testing weight because the nature of the test remains the same.
3. For production testing of SOLAS liferafts, the manufacturer may either request a certification with a lower maximum occupancy based on the new occupant weight standard or re-test the equipment for certification of its current rated capacity using the new occupant weight standard.
4. The 11 models (three models made by U.S. manufacturers) of SOLAS inflatable liferafts whose current rated capacity is six occupants, would have to verify that they meet the minimum SOLAS requirements for a capacity of six occupants at the new occupant weight standard if they wish to continue their current SOLAS approval status.
5. For both prototype and production testing of domestic service inflatable liferafts and inflatable buoyant apparatuses approved by the Coast Guard prior to March 22, 2012 the manufacturer may test under either the 75 kg or the 82.5 kg occupant weight standard with no change to testing based on the new occupant weight standard.
6. For prototype and production testing of domestic service inflatable liferafts and inflatable buoyant apparatuses approved on or after March 22, 2012 the manufacturer must test under the 82.5 kg occupant weight standard.
For inflatable liferafts approved under subpart 160.051 prior to March 22, 2012 and inflatable buoyant apparatuses approved under subpart 160.010 prior to March 22, 2012, the cost of testing equipment at the higher occupant weight standard is voluntary, as domestic liferafts and inflatable buoyant apparatuses may be certified using either occupant weight standard. Likewise, equipment manufactured under a current Certificate of Approval is required to be re-tested only if the manufacturer elects to retain their current rated capacity for their equipment under the higher occupant weight standard. However, manufacturers have the option to reduce the current rated capacities of their equipment to comply with the new occupant weight standard, provided that the resulting capacity does not conflict with the minimum required capacity applicable to that equipment.
Prototype and production testing of all SOLAS liferafts approved under subpart 160.151 is required using the higher 82.5 kg occupant weight standard. The Coast Guard has no evidence to suggest that testing at the higher occupant weight standard will involve additional testing costs for manufacturers because the nature of the test remains the same.
The principal benefit of the interim rule is the protection of life at sea by establishing capacity standards for inflatable liferafts and inflatable buoyant apparatuses reflecting a global increase in mariner weights. Additionally, the rule ensures compliance with internationally applicable standards for SOLAS adopted by IMO where noncompliance would exclude the use of inflatable liferafts manufactured under subpart 160.151 aboard SOLAS vessels.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), the Coast Guard has considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
An SNPRM discussing the impact of this rule on small entities is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. In the SNPRM, the Coast Guard certified under 5 U.S.C. 605(b) that the rule would not have a significant economic impact on a substantial number of small entities. We received no comments on this certification and have made no changes that would alter our assessment of the impacts in the SNPRM.
We have identified three U.S.-owned entities involved in the manufacture of SOLAS liferafts manufactured under subpart 160.151. All are business entities, and all are small entities. For manufacturers seeking certification of equipment currently approved under subpart 160.151 whose rated capacity is six, re-testing at the higher occupant weight standard will be required to retain their SOLAS approval status since SOLAS inflatable liferafts must have a minimum rated capacity of at least six. For the three models of liferafts currently approved under subpart 160.151, the cost estimates for certification testing, obtained from industry sources, are approximately $1,800 per liferaft, for a total industry cost of $5,400 (3 liferaft models × $1,800 testing cost per model). As each of the three U.S. owned small businesses directly impacted by this rule will likely need to retest one model, the costs to these three small businesses is $1,800 per business. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this interim rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Ms. Jacqueline Yurkovich, Commercial Regulations and Standards Directorate, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG–5214), Coast Guard; email
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.
The U.S. Supreme Court has long recognized the field preemptive impact of the Federal regulatory regime for inspected vessels.
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, as these categories are within a field foreclosed from regulation by the States (see
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Coast Guard has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule uses the following voluntary consensus standards:
• Resolution MSC.293(87), Adoption of Amendments to the International Life-Saving Appliance (LSA) Code;
• Resolution MSC.295(87), Adoption of Amendments to the Revised Recommendation on Testing of Life-Saving Appliances (Resolution MSC.81(70)).
The sections that reference these standards and the locations where these standards are available are listed in 46 CFR 160.151–5.
Section 608 of the Coast Guard Authorization Act of 2010 (Pub. L. 111–281) adds new section 2118 to 46 U.S.C. Subtitle II (Vessels and Seamen), Chapter 21 (General). New section 2118(a) sets forth requirements for standards established for approved equipment required on vessels subject to 46 U.S.C. Subtitle II (Vessels and Seamen), Part B (Inspection and Regulation of Vessels). Those standards must be “(1) based on performance using the best available technology that is economically achievable; and (2) operationally practical.”
We have analyzed this rule under Department of Homeland Security Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded that this action is
Marine safety, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 160 as follows:
46 U.S.C. 2103, 3306, 3703 and 4302; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 49 CFR 1.46.
(d) * * *
(5) Annex 7 to MSC 87/26, Report of the Maritime Safety Committee on its Eighty-Seventh Session, “Resolution MSC.293(87), Adoption of Amendments to the International Life-Saving Appliance (LSA) Code,” (adopted May 21, 2010), IBR approved for §§ 160.151–7, 160.151–15, 160.151–17, 160.151–21, 160.151–29, and 160.151–33 (“Resolution MSC.293(87)”).
(6) Annex 9 to MSC 87/26, Report of the Maritime Safety Committee on its Eighty-Seventh Session, “Resolution MSC.295(87), Adoption of Amendments to the Revised Recommendation on Testing of Life-Saving Appliances (Resolution MSC.81(70)),” (adopted May 21, 2010), IBR approved for §§ 160.151–21, 160.151–27, 160.151–29, 160.151–31, and 160.151–57 (“Resolution MSC.295(87)”).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Clarification.
In this document, PHMSA is responding to comments received from its initial Notice No. 11–6 clarifying PHMSA's policy regarding the fireworks approvals program. Furthermore, in this document PHMSA is restating its policy clarification that it will accept only those classification approval applications for Division 1.1 fireworks that have been examined and assigned a recommended shipping description, division, and compatibility group by a DOT-approved explosives test laboratory, or those that have been issued an approval for the explosive by the competent authority of a foreign government acknowledged by PHMSA's Associate Administrator. This policy clarification is intended to enhance safety by ensuring that fireworks transported in commerce meet the established criteria for their assigned classification, thereby minimizing the potential shipment of incorrectly classified or forbidden fireworks.
The policy clarification discussed in this document is effective February 21, 2012.
Mr. Ryan Paquet, Director, Approvals and Permits Division, Office of Hazardous Materials Safety, (202) 366–4512, PHMSA, 1200 New Jersey Avenue SE., Washington, DC 20590.
The Hazardous Materials Regulations (HMR; 49 CFR parts 171–180) require that Division 1.1 fireworks must be examined by a DOT-approved explosives test laboratory and assigned a recommended shipping description, division, and compatibility group in accordance with § 173.56(b). The tests provided for the classification of Division 1.1 fireworks specified in §§ 173.57 and 173.58 describe the procedures used to determine the acceptance criteria and assignment of class and division for all new explosives. Further, the HMR also permit Division 1.1 firework devices that have been approved by the competent authority of a foreign government that PHMSA's Associate Administrator has acknowledged in writing as acceptable in accordance with § 173.56(g).
On September 27, 2011, PHMSA published the initial Notice No. 11–6 (76 FR 59769) clarifying its policy, consistent with the HMR, that all Division 1.1 fireworks must undergo examination by a DOT-approved explosives examination laboratory or be issued an approval for the explosive by the competent authority of a foreign government acknowledged by PHMSA's Associate Administrator. In today's document, PHMSA is responding to comments received as a result of this notice and is restating its policy clarification on the fireworks approval program.
The HMR require that Division 1.1 fireworks must be examined by a DOT-approved explosives test laboratory and assigned a recommended shipping description, division, and compatibility group in accordance with § 173.56(b). The HMR also permit Division 1.1 firework devices that have been approved by the competent authority of a foreign government that PHMSA's Associate Administrator has acknowledged in writing as acceptable in accordance with § 173.56(g).
According to § 173.56(j), manufacturers of Division 1.3 and 1.4 fireworks, or their designated U.S. agents, may apply for an explosives (EX) classification approval without prior examination by a DOT-approved explosives test laboratory if the firework device is manufactured in accordance with APA Standard 87–1 (IBR, see § 171.7), and the device passes the thermal stability test. Additionally, the applicant must certify that the firework device conforms to the APA Standard 87–1 and that the descriptions and technical information contained in the application are complete and accurate. PHMSA has in the past, on a case-by-case basis, in accordance with § 173.56(i), approved some Division 1.1G fireworks without requiring testing by a DOT-approved explosives examination laboratory. PHMSA evaluates each EX approval application independently and has also required Division 1.1G fireworks to undergo examination testing by a DOT-approved explosive examination lab prior to issuing the EX approval.
While APA Standard 87–1 contains two instances where Division 1.1 fireworks may be approved under the standard, it does not call for the level of testing required in the HMR, nor does it provide testing and criteria to determine when a firework ceases to be a Division 1.1 and becomes forbidden for transport.
In this document, PHMSA is clarifying its policy that all Division 1.1 fireworks must undergo examination by a DOT-approved explosives examination laboratory or be approved by a competent authority. Division 1.1 fireworks will not require UN Test Method 6, as testing will be limited to UN Test Method 4a(i) and 4b(ii), as is specified in § 173.57(b). The examination laboratory may request additional information to make its classification recommendation. Additionally, PHMSA allows the laboratory to make a classification recommendation for Division 1.1 fireworks based on analogy.
PHMSA believes that by issuing Division 1.1 fireworks approvals only after a DOT-approved explosive laboratory has examined and recommended a classification, or an approval has been issued by a competent authority of a foreign government acknowledged by PHMSA's Associate Administrator, it is ensuring that fireworks transported in commerce meet the established criteria for their assigned classification, thereby minimizing the potential shipment of incorrectly classified or forbidden fireworks.
PHMSA received three comments in response to the initial Notice No. 11–6. The comments covered various topics including, but not limited to, transportation safety, general comments, and economic impacts. One commenter supported the clarification to the fireworks policy in initial Notice 11–6, while two commenters had reservations about it. A summary of the comments received is discussed below. The comments, as submitted to the docket for the initial Notice No. 11–6 (Docket No. PHMSA–2011–0157), may be accessed via
(1) Veolia ES Technical Solutions, L.L.C.; PHMSA–2011–0157–0002.
(2) American Pyrotechnics Association (APA); PHMSA–2011–0157–0003.
(3) Kellner's Fireworks Inc.; PHMSA–201–0157–0004.
One commenter requests PHMSA consider waste management of used or defective fireworks when proposing any amendments to regulations related to the transport of fireworks. In this document, PHMSA does not propose any regulatory amendments; rather, we are clarifying existing policy. While PHMSA agrees environmental impacts should be considered when proposing amendments to regulations, no regulatory changes were proposed in the initial Notice; therefore, waste management of fireworks is beyond the scope of this document.
Another commenter acknowledges the current prohibition in the HMR to classify Division 1.1 fireworks under § 173.56(j), but requests that PHMSA remove the terminology “Division 1.3 and Division 1.4” in § 173.56(j) to allow PHMSA to grant approvals for all fireworks manufactured in accordance with APA Standard 87–1, regardless of their classification. This document is a clarification of current requirements and does not propose any regulatory amendments, rather, PHMSA is clarifying existing policy; therefore this request will be handled as a petition for rulemaking and responded to accordingly.
With regard to transportation safety, PHMSA received one comment in support of its effort to clarify the classification of Division 1.1 fireworks. Specifically, this commenter noted that
Another commenter opposes PHMSA's clarification and indicates that Division 1.1 fireworks approved under APA Standard 87–1 have not resulted in any incidents that would cause it to reconsider its practice. Although to date there have been no known incidents involving the transportation of Division 1.1 fireworks, there are known occurrences of fireworks being transported that contain chemical compositions rendering them forbidden from transportation. The APA Standard 87–1 does not provide the testing and criteria to determine when a device ceases to be a Division 1.1 firework device and becomes forbidden from transportation. Testing Division 1.1 fireworks devices as prescribed in the HMR, enables a determination when a firework device ceases to be a Division 1.1 device and becomes forbidden. Furthermore, this clarification will provide oversight to ensure that Division 1.1 fireworks meet the established criteria for their assigned classification, thereby minimizing the potential shipment of incorrectly classified or forbidden fireworks.
One commenter opposes the policy clarification because they indicate that fireworks currently classified as Division 1.1G devices have not changed in many years, even though the regulations governing their transportation have changed. The commenter states that a fireworks device that was previously considered to be 1.3G under APA Standard 87–1 is now considered a 1.1G, but the device is still manufactured the same way as it was when the device was classed as a 1.3G.
In December 1991, PHMSA (Research and Special Programs Administration) revised the HMR to align its classification system for fireworks with the U.N. Recommendations on the Transport of Dangerous Goods. Under the previous system, fireworks were classified as Class A, B, or C—Class A fireworks were considered to be the most hazardous and Class C fireworks were considered to be least hazardous. For the most part, Class A fireworks were reclassed as Division 1.1, Class B fireworks were reclassed as Division 1.3, and Class C fireworks were reclassed as Division 1.4. This resulted in some fireworks with shell diameters as great as 16 inches being classed as Division 1.3 fireworks. In the 2001–2002 edition of the APA Standard 87–1, fireworks with diameters greater than 10 inches were all classified as Division 1.1 fireworks. Prior to that edition of the APA Standard 87–1, aerial shell firework devices not classed as a 1.4G were classed as a 1.3G regardless of size or quantity of flash composition. This change was made in the interest of safety.
While PHMSA has approved Division 1.1G fireworks manufactured in accordance with the APA Standard 87–1, it evaluates each EX approval independently and has also required Division 1.1G fireworks to be examined.
Further, the commenter states that the testing for these items can cost upwards of $8,000 and that the cost will put fireworks companies intending to sell Division 1.1G fireworks devices at a major loss before the product is available for sale. To the contrary, third-party labs have indicated that the cost of performing these tests is considerably less—depending on a number of variables, PHMSA estimates that required tests would cost less than $5,400.
Also, as indicated in the initial document, if a fireworks device is classed and approved as a Division 1.1 firework, the UN Test Method 6 is not required; rather, testing will be limited to UN Test Method 4a(i) and 4b(ii), as is specified in § 173.57(b). Further, PHMSA allows the laboratory to make a classification recommendation for Division 1.1 fireworks based on analogy.
This document is intended to clarify current regulations: that only Division 1.3 and 1.4 fireworks devices may be approved in accordance with the APA Standard 87–1.
Based on the comments received and PHMSA's responses to those comments, henceforth, PHMSA will not accept Division 1.1 fireworks approval applications submitted under the APA Standard 87–1. Division 1.1 fireworks must be examined and assigned a recommended shipping description, division, and compatibility group by a DOT-approved explosives test laboratory, or issued an approval for the explosive by the competent authority of a foreign government acknowledged by PHMSA's Associate Administrator. On a case-by-case basis under 173.56(i), PHMSA will evaluate them for approval without testing.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Honeywell International Inc. models TFE731–4, –4R, –5, –5R, –5AR, and –5BR series turbofan engines. This proposed AD was prompted by a report of a rim/web separation of a first stage low-pressure turbine (LPT1) rotor assembly. This proposed AD would require replacing affected LPT1 rotor assemblies with LPT1 rotor assemblies eligible for installation. We are proposing this AD to prevent uncontained disk separation, leading to fuel tank penetration, fire, personal injury, and damage to the airplane.
We must receive comments on this proposed AD by April 23, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Honeywell Engines and Systems Technical Publications and Distribution, M/S 2101–201, P.O. Box 52170, Phoenix, AZ 85072–2170, phone: 602–365–2493 (General Aviation), 602–365–5535 (Commercial Aviation), fax: 602–365–5577 (General Aviation and Commercial Aviation). You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
You may examine the AD docket on the Internet at
Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: 562–627–5246; fax: 562–627–5210: email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report of a rim/web separation on an LPT1 rotor disk, part number (P/N) 3075446–2, in a TFE731–5BR engine. The crack propagated in sustained peak strain low-cycle-fatigue, and accumulated 762 cycles-in-service (CIS) before failure. The current published life limit for this part is 10,000 CIS. The most probable cause for this separation was due to LPT1 blade walking. This condition, if not corrected, could result in an uncontained disk separation, fuel tank penetration, fire, personal injury, and damage to the airplane.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require replacing affected LPT1 rotor assemblies with improved design LPT1 rotor assemblies that are eligible for installation.
We estimate that this proposed AD would affect 1,550 engines installed on airplanes of U.S. registry. We also estimate that it would take about 1 work-hour per engine to perform the proposed actions at next access and 165 work-hours per unscheduled engine disassembly, and that the average labor rate is $85 per work-hour. Replacement parts would cost about $175,000 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $35,195,488 per year.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701:
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by April 23, 2012.
None.
(1) This AD applies to Honeywell International Inc. model TFE731–5 series engines, with a first stage low-pressure turbine (LPT1) rotor assembly, part number (P/N) 3075184–2, 3075184–3, or 3075184–4, installed.
(2) This AD also applies to Honeywell International Inc. models TFE731–5AR and –5BR series engines, with a first stage LPT1 rotor assembly, P/N 3075447–1, 3075447–2, 3075447–4, 3075713–1, 3075713–2, 3075713–3, or 3074748–5, installed.
(3) This AD also applies to Honeywell International Inc. models TFE731–4, –4R, –5AR, –5BR, and –5R series turbofan engines, with an LPT1 rotor assembly, P/N 3074748–4, 3074748–5, 3075447–1, 3075447–2, 3075447–4, 3075713–1, 3075713–2, or 3075713–3, installed.
This AD was prompted by a report of a rim/web separation of an LPT1 rotor assembly. We are issuing this AD to prevent uncontained disk separation, leading to fuel tank penetration, fire, personal injury, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Remove the LPT1 rotor assembly at the next access to the LPT1 rotor assembly or at the next major periodic inspection, not to exceed 2,600 hours-in-service since last major periodic inspection, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) Remove the LPT1 rotor assembly at the next core zone inspection, not to exceed 5,100 hours-in-service since last core zone inspection, or at the next time the LPT1 rotor disc is removed for cause, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) For the purpose of this AD, “next access” is when the low-pressure tie rod is unstretched.
(2) For the purpose of this AD, an LPT1 rotor assembly “eligible for installation” is an LPT1 rotor assembly not having a P/N listed in this AD.
After the effective date of this AD, if the rotor assembly must be replaced as specified in paragraph (f)(1) or (g)(1) of this AD, do not install any LPT1 rotor assembly listed by P/N in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, into any engine.
The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures in 14 CFR 39.19 to request an AMOC.
(1) For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: 562–627–5246; fax: 562–627–5210: email:
(2) Honeywell International Inc. Service Bulletin (SB) No. TFE731–72–3768, SB No. TFE731–72–3769, and SB No. TFE731–72–3770, pertain to the subject of this AD. Contact Honeywell Engines and Systems Technical Publications and Distribution, M/S 2101–201, P.O. Box 52170, Phoenix, AZ 85072–2170, phone: 602–365–2493 (General Aviation), 602–365–5535 (Commercial Aviation), fax: 602–365–5577 (General Aviation and Commercial Aviation), for a copy of this service information.
(3) You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM); rescission.
We propose to rescind an airworthiness directive (AD) for RRD BR700–715A1–30, BR700–715B1–30, and BR700–715C1–30 turbofan engines. The existing AD resulted from the need to reduce the published life limits of high-pressure (HP) turbine stage 1 discs, part numbers (P/Ns) BRH20130 and BRH20131, and HP turbine stage 2 discs, P/Ns BRH19423 and BRH19427.
Since we issued the existing AD, RRD has revised the approved published life limits of these parts to the same or higher limits as originally certified.
We must receive comments on this proposed AD by April 23, 2012.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Mark Riley, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7758; fax: 781–238–7199; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD rescission. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On March 17, 2009, we issued AD 2009–07–01 (74 FR 12086, March 23, 2009). That AD requires reducing the published life limits of BR700–715 turbofan engine HP turbine stage 1 discs, P/Ns BRH20130 and BRH20131, and HP turbine stage 2 discs, P/Ns BRH19423 and BRH19427.
Since we issued AD 2009–07–01 (74 FR 12086, March 23, 2009), RRD has revised the approved published life limits of these HP turbine stage 1 discs to the same or higher limits as originally certified. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive Cancellation Notice 2007–0152–CN, dated December 22, 2011. EASA stated in that Cancellation Notice that they have approved published life limits for the affected parts that are increased to the same or higher value as originally certified. We have evaluated the information provided by RRD and EASA and have determined that an unsafe condition no longer exists in these HP turbine stage 1 and stage 2 discs.
We are proposing this AD rescission of AD 2009–07–01 (74 FR 12086, March 23, 2009) because we evaluated all information and determined that allowing the increase in the published part life limits is acceptable. This proposed AD would rescind AD 2009–07–01.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses a practice, method, or procedure necessary for safety in air commerce.
We determined that this proposed AD rescission would not have federalism implications under Executive Order 13132. This proposed AD rescission would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed rescission of a regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD rescission and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by rescinding airworthiness directive (AD) 2009–07–01, Amendment 39–15860 (74 FR 12086, March 23, 2009):
We must receive comments by April 23, 2012.
This AD rescinds AD 2009–07–01 (74 FR 12086, March 23, 2009).
This AD applies to Rolls-Royce Deutschland Ltd & Co KG BR700–715A1–30, BR700–715B1–30, and BR700–715C1–30 turbofan engines.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The existing AD currently requires revising the airworthiness limitations section (ALS) of the instructions for continued airworthiness for certain airplanes, and the FAA-approved maintenance program for certain other airplanes, to incorporate new limitations for fuel tank systems. Since we issued that AD, Fokker Services B.V. has revised a Fokker 70/100 maintenance review board (MRB) document with revised limitations, tasks, thresholds, and intervals. This proposed AD would revise the maintenance program to incorporate the limitations, tasks, thresholds, and intervals specified in that Fokker MRB document. We are proposing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
We must receive comments on this proposed AD by April 6, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252–627–350; fax +31 (0)252–627–211; email
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–1137; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On July 9, 2004, we issued AD 2004–15–08, Amendment 39–13742 (69 FR 44586, July 27, 2004). This AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2004–15–08, Amendment 39–13742 (69 FR 44586, July 27, 2004): The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011–0157, dated August 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Fokker Services have published issue 8 of report SE–623 dated 17 March 2011, which is part of the Airworthiness Limitations Section of the Instructions for Continued Airworthiness, referred to in Section 06, Appendix 1, of the Fokker 70/100 Maintenance Review Board (MRB) document. The complete Airworthiness Limitations Section currently consists of:
The instructions contained in those reports have been identified as mandatory actions for continued airworthiness.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2011–0046, which is superseded, and requires the implementation of the inspections and limitations as specified in the Airworthiness Limitation Section of the Instructions for Continued Airworthiness, referred to in Section 06, Appendix 1 of the Fokker 70/100 MRB document, reports SE–473, SE–623 and SE–672 at the above-mentioned issues.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank
Among other actions, SFAR 88 (66 FR 23086, May 7, 2001) requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88 (66 FR 23086, May 7, 2001). (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Fokker Services B.V. has issued the following documents:
• Fokker Services B.V. Report SE–473, “Fokker 70/100 Certification Maintenance Requirements,” Issue 8, dated September 1, 2009.
• Fokker Services B.V. Report SE–623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Limits,” Issue 8, dated December 20, 2010.
• Fokker Services B.V. Report SE–672, “Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL),” Issue 2, dated December 1, 2006.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 4 products of U.S. registry.
The actions that are required by AD 2004–15–08, Amendment 39–13742 (69 FR 44586, July 27, 2004) and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. The actions that are required by AD 2008–06–20, Amendment 39–15432 (73 FR 14661, March 19, 2008) and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $170 per product.
We estimate that it would take about 1 work-hour per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,020, or $255 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator,
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39–13742 (69 FR 44586, July 27, 2004) and adding the following new AD:
We must receive comments by April 6, 2012.
This AD supersedes AD 2004–15–08, Amendment 39–13742 (69 FR 44586, July 27, 2004). This AD also affects AD 2008–06–20, Amendment 39–15432 (73 FR 14661, March 19, 2008).
This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes; certificated in any category; all serial numbers.
This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections) and/or Critical Design Configuration Control Limitations (CDCCLs). Compliance with these actions and/or CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (m) of this AD. The request should include a description of changes to the required actions that will ensure the continued operational safety of the airplane.
Air Transport Association (ATA) of America Code 28: Fuel.
This AD was prompted by a revised Fokker 70/100 maintenance review board (MRB) document with revised limitations, tasks, thresholds, and intervals. We are issuing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 6 months after August 31, 2004 (the effective date of AD 2004–15–08, Amendment 39–13742 (69 FR 44586, July 27, 2004)), revise the Airworthiness Limitations section (ALS) of the Instructions for Continued Airworthiness by incorporating Fokker Services B.V. Report SE–623, “Fokker 70/100 Airworthiness Limitations Items and Safe Life Items,” Issue 2, dated September 1, 2001; and Fokker Services B.V. Report SE–473, “Fokker 70/100 Certification Maintenance Requirements,” Issue 5, dated July 16, 2001; into Section 6 of the Fokker 70/100 MRB document. (These reports are already incorporated into Fokker 70/100 MRB document, Revision 10, dated October 1, 2001.) Once the actions required by this paragraph have been accomplished, the original issue of Fokker Services B.V. Report SE–623, “Fokker 70/100 Airworthiness Limitations Items and Safe Life Items,” dated June 1, 2000, may be removed from the ALS of the Instructions for Continued Airworthiness. Doing the actions in paragraph (j) of this AD terminates the requirements of paragraph (g) of this AD.
After the actions specified in paragraph (g) of this AD have been accomplished, no alternative inspections or inspection intervals may be approved for the structural elements specified in the documents listed in paragraph (g) of this AD, except as required by paragraph (j) of this AD.
Notwithstanding any other maintenance or operational requirements, components that have been identified as airworthy or installed on the affected airplanes before the revision of the ALS for certain airplanes, and the FAA-approved maintenance program for certain other airplanes, as required by paragraph (i) of this AD, do not need to be reworked in accordance with the CDCCLs. However, once the ALS for certain airplanes, and the FAA-approved maintenance program for certain other airplanes has been revised, future maintenance actions on these components must be done in accordance with the CDCCLs.
Within 3 months after the effective date of this AD, revise the maintenance program to incorporate the airworthiness limitations specified in the Fokker maintenance review board (MRB) documents listed in paragraphs (i)(3), (i)(4), and (i)(5) of this AD. For all tasks and retirement lifes identified in the Fokker MRB documents listed in paragraphs (i)(3), (i)(4), and (i)(5) of this AD, the initial compliance times start from the later of the times specified in paragraphs (i)(1) and (i)(2) of this AD, and the repetitive inspections must be accomplished thereafter at the interval specified in the Fokker MRB documents listed in paragraphs (i)(3), (i)(4), and (i)(5) of this AD.
(1) Within 3 months after the effective date of this AD.
(2) At the time specified in the documents listed in paragraphs (i)(3), (i)(4), and (i)(5) of this AD.
(3) Fokker Services B.V. Report SE–473, “Fokker 70/100 Certification Maintenance Requirements,” Issue 8, dated September 1, 2009.
(4) Fokker Services B.V. Report SE–623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Limits,” Issue 8, dated December 20, 2010.
(5) Fokker Services B.V. Report SE–672, “Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL),” Issue 2, dated December 1, 2006.
After accomplishing the revision required by paragraph (i) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs may be used unless the actions, intervals, or CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (m)(1) of this AD.
Accomplishing the actions in paragraph (i) of this AD terminates the requirements of paragraph (g) of this AD.
Accomplishing the actions in paragraph (i) of this AD, terminates the requirements of paragraphs (f)(1), (f)(2), (f)(3), (f)(4), and (f)(5) of AD 2008–06–20, Amendment 39–15432 (73 FR 14661, March 19, 2008).
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI EASA Airworthiness Directive 2011–0157, dated August 25, 2011, and the service information specified in paragraphs (n)(1), (n)(2), and (n)(3) of this AD, for related information.
(1) Fokker Services B.V. Report SE–473, “Fokker 70/100 Certification Maintenance Requirements,” Issue 8, dated September 1, 2009.
(2) Fokker Services B.V. Report SE–623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Limits,” Issue 8, dated December 20, 2010.
(3) Fokker Services B.V. Report SE–672, “Fokker 70/100 Fuel Airworthiness Limitation Items (ALI) and Critical Design Configuration Control Limitations (CDCCL),” Issue 2, dated December 1, 2006.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Turbomeca S.A. Arriel 2C1, 2C2, and 2S2 turboshaft engines. This proposed AD was prompted by a report of a helicopter experiencing a digital engine control unit (DECU) malfunction during flight. We are proposing this AD to prevent loss of automatic control on one or both engines installed on the same helicopter, which could result in an uncommanded in-flight engine shutdown, forced autorotation landing, or accident.
We must receive comments on this proposed AD by April 23, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Turbomeca, 40220 Tarnos, France; phone: 33 05 59 74 40 00; fax: 33 05 59 74 45 15. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
You may examine the AD docket on the Internet at
Rose Len, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7772; fax: 781–238–7199; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011–0249, dated December 22, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
An incident has been reported of a helicopter which experienced a Digital Engine Control Unit (DECU) malfunction in flight from one of its Arriel 2C1 engines. The indicating system of the helicopter displayed a “FADEC FAIL” message, with a concurrent loss of automatic control of the engine. The mission was aborted and the helicopter returned to its base without any further incident.
The subsequent technical investigations carried out by Turbomeca revealed that a Digital Engine Control Unit (DECU) assembly non-conformity was at the origin of this event. Further investigations performed with the supplier of the DECU led to the conclusion that only a limited number of DECU are potentially affected by the non-conformity.
You may obtain further information by examining the MCAI in the AD docket.
Turbomeca S.A. has issued Alert Mandatory Service Bulletin No. A292 73 2845, Version A, dated December 19, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with EASA, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists
Based on the service information, we estimate that this proposed AD would affect about two engines installed on helicopters of U.S. registry. We also estimate that it would take about one work-hour per engine to comply with this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $12,551 per engine. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $25,272. Our cost estimate is exclusive of possible warranty coverage.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by April 23, 2012.
None.
This AD applies to Turbomeca S.A. Arriel 2C1, 2C2, and 2S2 turboshaft engines with any of the digital engine control units (DECUs) listed in Table 1 of this AD installed.
This AD was prompted by a report of a helicopter experiencing a DECU malfunction during flight. We are issuing this AD to prevent loss of automatic control on one or both engines installed on the same helicopter, which could result in an uncommanded in-flight engine shutdown, forced autorotation landing, or accident.
Unless already done, do the following actions.
(1) For any helicopter fitted with two DECUs listed in Table 1 of this AD:
(i) Within 50 engine hours after the effective date of this AD, replace one of the two DECUs with a DECU that is not listed in Table 1 of this AD.
(ii) Within 1,000 engine hours or 12 months after the effective date of this AD, whichever occurs first, replace the other DECU with a DECU that is not listed in Table 1 of this AD.
(2) For any helicopter fitted with one DECU listed in Table 1 of this AD, within 1,000 engine hours or 12 months after the effective date of this AD, whichever occurs first, replace the DECU with a DECU that is not listed in Table 1 of this AD.
From the effective date of this AD, do not install a DECU listed in Table 1 of this AD onto any engine, and do not install any engine having a DECU listed in Table 1 of this AD, onto a helicopter.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Rose Len, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7772; fax: 781–238–7199; email:
(2) Refer to European Aviation Safety Agency AD 2011–0249, dated December 22, 2011, and Turbomeca Alert Mandatory Service Bulletin No. A292 73 2845, Version A, dated December 19, 2011, for related information.
(3) For service information identified in this AD, contact Turbomeca, 40220 Tarnos, France; phone: 33 05 59 74 40 00; fax: 33 05 59 74 45 15. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify three VHF Omnidirectional Range (VOR) Federal airways V–10, V–12, and V–508 in the vicinity of Olathe, KS. The FAA is proposing this action to adjust the airway route structure due to the planned decommissioning of the Johnson County VOR/DME navigation aid located on Johnson County Executive Airport, Olathe, KS.
Comments must be received on or before April 6, 2012.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001; telephone: (202) 366–9826. You must identify FAA Docket No. FAA–2012–0055 and Airspace Docket No. 11–ACE–12 at the beginning of your comments. You may also submit comments through the Internet at
Colby Abbott, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2012–0055 and Airspace Docket No. 11–ACE–12) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2012–0055 and Airspace Docket No. 11–ACE–12.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The Kansas City Air Route Traffic Control Center requested the decommissioning of the Johnson County (OJC) VOR/DME navigation aid located on the Johnson County Executive Airport, Olathe, KS, due to poor performance of the navigation aid. The OJC VOR/DME performs poorly due to suburban encroachment into the facility's critical areas. Approach procedures using the facility as the primary navigational aid have been cancelled while other procedures serving the airport are being amended to discontinue use of the facility. Additionally, building infrastructure housing the VOR/DME equipment is deteriorating rapidly. The building is prone to water leakage jeopardizing the equipment and creating hazardous working conditions for maintenance personnel. As a result, the OJC VOR/DME is no longer cost effective to maintain and operate and is planned to be decommissioned without replacement.
The FAA conducted an aeronautical study of the proposal to decommission the Johnson County VOR/DME in 2009 and issued a determination of non-objection with the special provision that all instrument procedures that utilize the OJC VOR/DME be modified with minimal impact to the aviation community. This proposed action would modify the affected airways to provide continued navigation capability in the Olathe, KS, area.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to modify V–10, V–12, and V–508 in the vicinity of Olathe, KS. These changes are required due to the planned decommissioning of the OJC VOR/DME in July 2012.
The proposed changes to V–10 and V–12 are administrative in nature and intended to keep the route segments in the vicinity of Olathe, KS, between Emporia, KS, and Napoleon, MO, unchanged. To retain the airway structure of these airways, the FAA would establish the WETZL fix at the same location depicting the OJC VOR/DME navigation aid. The modification to V–10 and V–12 would replace the OJC VOR/DME in the current airway descriptions with the WETZL fix (described as the intersection of the navigation aid radials that define WETZL). Specifically, the proposed modification to the V–10 and V–12 descriptions would replace the “Johnson County, KS” reference with “INT Emporia 063°(T)/055°(M) and Napoleon, MO, 242°(T)/235°(M) radials”. The magnetic radial information would be removed in the final rule.
As currently established, V–508 ends at the OJC VOR/DME. The proposed change to V–508 would eliminate the
VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The VOR Federal Airways listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it proposes to modify VOR Federal Airways in the vicinity of Olathe, KS.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011, is amended as follows:
From Pueblo, CO; 18 miles, 48 miles, 60 MSL, Lamar, CO; Garden City, KS; Dodge City, KS; Hutchinson, KS; Emporia, KS; INT Emporia 063°(T)/055°(M) and Napoleon, MO, 242°(T)/235°(M) radials; Napoleon; Kirksville, MO; Burlington, IA; Bradford, IL; to INT Bradford 058° and Joliet, IL, 287° radials. From INT Chicago Heights, IL, 358° and Gipper, MI, 271° radials; Gipper; Litchfield, MI; INT Litchfield 101° and Carleton, MI, 262° radials; Carleton; INT Jefferson, OH, 279° and Youngstown, OH, 320° radials; Youngstown; INT Youngstown 116° and Revloc, PA, 300° radials; Revloc; INT Revloc 107° and Lancaster, PA, 280° radials; to Lancaster. The airspace within Canada is excluded.
From Gaviota, CA; San Marcus, CA; Palmdale, CA; 38 miles, 6 miles wide, Hector, CA; 12 miles, 38 miles, 85 MSL, 14 miles, 75 MSL, Needles, CA; 45 miles, 34 miles, 95 MSL, Drake, AZ; Winslow, AZ; 30 miles, 85 MSL, Zuni, NM; Albuquerque, NM; Otto, NM; Anton Chico, NM; Tucumcari, NM; Amarillo, TX; Mitbee, OK; Anthony, KS; Wichita, KS; Emporia, KS; INT Emporia 063°(T)/055°(M) and Napoleon, MO, 242°(T)/235°(M) radials; Napoleon; INT Napoleon 095° and Columbia, MO, 292° radials; Columbia; Foristell, MO; Troy, IL; Bible Grove, IL; Shelbyville, IN; Richmond, IN; Dayton, OH; Appleton, OH; Newcomerstown, OH; Allegheny, PA; Johnstown, PA; Harrisburg, PA; INT Harrisburg 092° and Pottstown, PA, 278° radials; to Pottstown.
From Hill City, KS; Hays, KS; Salina, KS, INT Salina 082° and Manhattan, KS, 207° radials; Manhattan; INT Manhattan 078° and Topeka, KS, 293° radials; Topeka; to INT Topeka 112°(T)/107°(M) and Kansas City, MO, 228°(T)/223°(M) radials.
Internal Revenue Service (IRS).
Proposed rule; correction.
This document contains corrections to a notice of proposed rulemaking (REG–130302–10), which was published in the
Joseph S. Henderson (202) 622–3880 (not a toll-free number).
The notice of proposed rulemaking that is the subject of these corrections are under section 6038 of the Internal Revenue Code.
As published on December 19, 2011, (76 FR 78594), the notice of proposed rulemaking (REG–130302–10), contains errors which may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(d) * * *
(3) * * * A trust described in section 7701(a)(30)(E) to the extent such trust or any portion thereof is treated as owned by one or more specified persons under sections 671 through 678 and the regulations issued under those sections.
Department of Justice.
Notice of proposed rulemaking.
Elsewhere in the
Comments must be received by March 22, 2012.
Address all comments to the Department of Justice, ATTN: Privacy Analyst, Office of Privacy and Civil Liberties, National Place Building, 1331 Pennsylvania Avenue NW., Suite 1000, Washington, DC 20530, or facsimile (202) 307–0693. To ensure proper handling, please reference the CPCLO Order number in your correspondence. You may review an electronic version of the proposed rule at
Please note that the Department is requesting that electronic comments be submitted before midnight Eastern standard time on the day the comment period closes because
If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment but do not want it to be posted online or made available in the public docket, you must include the term “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personally identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment but do not want it to be posted online or made available in the public docket, you must include the term “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personally identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Department's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
Holley B. O'Brien, Director, Debt Collection Management Staff, Justice Management Division, Department of Justice, at (202) 514–5343.
In the Notice section of today's
In this rulemaking, the DOJ proposes to exempt certain records in this Privacy Act system of records from certain provisions of the Privacy Act because the system contains material compiled for law enforcement purposes.
This proposed rule relates to individuals, as opposed to small business entities. Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601–612, the proposed rule will not have a significant economic impact on a substantial number of small entities.
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires that the DOJ consider the impact of paperwork and other information collection burdens imposed on the public. There are no current or new information collection requirements associated with this proposed rule. The records that are contributed to the Debt Collection Enforcement system would be created in any event by law enforcement entities and their sharing of this information electronically will not increase the paperwork burden on the public.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, 109 Stat. 48, requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written
Administrative practices and procedures, Courts, Freedom of Information Act, Government in the Sunshine Act, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940–2008, it is proposed to amend 28 CFR part 16 as follows:
1. The authority citation for part 16 continues to read as follows:
5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
2. Section 16.134 is added to read as follows:
(a) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H) and (I), (5) and (8); (f) and (g) of the Privacy Act. In addition, the system is exempt pursuant to 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d)(1), (2), (3), and (4); (e)(1); (4)(G), (H), and (I); and (f). These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) or (k)(2). Where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system, or the overall law enforcement process, the applicable exemption may be waived by the DOJ in its sole discretion.
(b) Exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because certain records in this system are exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures from records concerning him/her would specifically reveal any investigative interest in the individual. Revealing this information may thus compromise ongoing law enforcement efforts. Revealing this information may also permit the record subject to take measures to impede the investigation, such as destroying evidence, intimidating potential witnesses or fleeing the area to avoid the investigation.
(2) From subsection (c)(4) notification requirements because certain records in this system are exempt from the access and amendment provisions of subsection (d) as well as the access to accounting of disclosures provision of subsection (c)(3).
(3) From subsections (d)(1), (2), (3), and (4) because access to the records contained in this system might compromise ongoing investigations, reveal confidential informants, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation. Amendment of the records would interfere with ongoing debt collection investigations or other law enforcement proceedings and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated.
(4) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for law enforcement purposes.
(5) From subsection (e)(2) to avoid impeding law enforcement efforts associated with debt collection by putting the subject of an investigation on notice of that fact, thereby permitting the subject to engage in conduct intended to frustrate or impede that investigation.
(6) From subsection (e)(3) to avoid impeding law enforcement efforts in conjunction with debt collection by putting the subject of an investigation on notice of that fact, thereby permitting the subject to engage in conduct intended to frustrate or impede that investigation.
(7) From subsection (e)(4)(G), (H) and (I) because portions of this system are exempt from the access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act.
(8) From subsection (e)(5) because many of the records in this system are records contributed by other agencies and the restrictions imposed by (e)(5) would limit the utility of the system.
(9) From subsection (e)(8), because to require individual notice of disclosure of information due to compulsory legal process would pose an impossible administrative burden on the DOJ and may alert the subjects of law enforcement investigations, who might be otherwise unaware, to the fact of those investigations.
(10) From subsections (f) and (g) to the extent that the system is exempt from other specific subsections of the Privacy Act.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone in the vicinity of the South shores of Lake Pontchartrain adjacent to the East bank of the Lakefront Airport runways in New Orleans, Louisiana. This temporary safety zone is necessary to protect persons and vessels from the potential safety hazards associated with high-speed aerobatic displays by the participants of the 1812 Blue Angels Air Show, during the War of 1812 Commemoration.
Comments and related material must be received by the Coast Guard on or before March 22, 2012.
You may submit comments identified by docket number USCG–2010–0012 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Lieutenant Commander (LCDR) Marcie Kohn, Sector New Orleans, Coast Guard; telephone 504–365–2281, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG–2012–0032), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before February 28, 2012 using one of the four methods specified under
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LCDR Marcie Kohn at the telephone number or email address indicated under the
In conjunction with the War of 1812 Commemoration celebrations taking place in the city of New Orleans, the Coast Guard has received an application request for a marine permit in support of the Blue Angels Air Show, to take place over the waters of Lake Pontchartrain. The Blue Angels Air Show is scheduled to take scheduled to occur daily between the hours of 10 a.m. and 5 p.m, beginning April 19, 2012 through April 22, 2012. The request calls for a safety zone to be created over the Lake to accommodate the air show participants with an aerobatic display box. The Coast Guard has determined that the safety zone is necessary to protect persons and vessels from the potential safety hazards associated with the high speed aerobatic displays of the air show participants.
The Coast Guard proposes a temporary safety zone extending approximately 3,000′ from the South shores of Lake Pontchartrain, adjacent to the East bank of the Lakefront Airport runways. This temporary safety zone is necessary to protect persons and vessels from the potential safety hazards associated with high speed aerobatic displays from the participants of the Blue Angels Air Show. There will be a 12,000′ × 3,000′ aerobatic display area, which requires the surface of the water to be sterile of non-participants. The Blue Angels Air Show is scheduled to take scheduled to occur daily between the hours of 10 a.m. and 5 p.m., beginning April 19, 2012 through April 22, 2012. The coordinates for the aerobatic display area are as follows:
SE corner: N 30°02′07.71″ & W 90°01′53.56″
SW corner: N 30°02′07.71″ & W 90°04′10.05″
NW corner: N 30°02′38.37″ & W 90°04′10.05″
NE corner: N 30°02′38.37″ & W 90°01′53.56″
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of
The impacts on routine navigation are expected to be minimal because the proposed enforcement periods are short in duration. Additionally, closure of the Inner Harbor Navigation Canal entrance to Lake Pontchartrain, in support of the Seabrook Surge Barrier construction project by the Army Corps of Engineers, restricts the majority of commercial traffic. As a result, the proposed safety zone will have minimal impact, if any, on the area which is used primarily by recreational boaters.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for only 7 hours daily during the Air Show display. The small entities that may be affected include small entities engaged in the business of recreational boating in the area or other marine traffic in the area. Vessel traffic could pass safely around the safety zone. If you are a small business entity and are significantly affected by this regulation please contact Lieutenant Commander (LCDR) Marcie Kohn, Sector New Orleans, at 504–365–2281 or email
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Marcie Kohn. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T08–0032 to read as follows:
(a)
(b)
(c)
(2) Vessels requiring entry into or passage through the Safety Zone must request permission from the Captain of the Port New Orleans, or a designated representative. They may be contacted on VHF 16, or by telephone at (504) 365–2543.
(3) All persons and vessels shall comply with the instructions of the Captain of the Port New Orleans and designated personnel. Designated personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
Environmental Protection Agency (EPA).
Notice of public meeting.
EPA is holding an initial meeting of the Arsenic Small Systems Working Group to provide input and recommendations on barriers to the use of point-of-use and point-of-entry treatment units, package plant, and modular units, as well as alternative affordability criteria that give extra weight to small, rural, and lower income communities. This meeting will be held via Webcast and the public may attend this meeting.
The Work Group meeting will be held on March 2, 2012 (1 p.m. to 4 p.m., Eastern Time (ET)). Persons wishing to participate must register in advance as described in the
The meeting will be held via the Internet using a Webcast and teleconference. Registrants will receive an Internet access link and dial in number upon registration for the Webcast. To participate in the Webcast, you must register in advance at the following Web address:
For questions about this specific meeting, contact Russ Perkinson, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency; telephone (202) 564–4901 or by email to
Congressional language contained in the Conference Report (H.R. 2055) accompanying the Consolidated Appropriations Act of 2012 directs the Environmental Protection Agency to convene an Arsenic Small Systems Working Group composed of representatives from States, small publicly owned water systems, local public health officials, drinking water consumers and treatment manufacturers to provide input and recommendations on barriers to the use of point-of-use and point-of-entry treatment units, package plant, and modular units, as well as alternative affordability criteria that give extra weight to small, rural, and lower income communities. Based upon input from the work group, the EPA will submit to Congress a report on actions to make alternative compliance methods more accessible to water systems and a report on alternative affordability criteria.
To participate in the Webcast, you must register in advance at the following Web address:
To request special accommodations for individuals with disabilities, please contact Russ Perkinson at (202) 564–4910 or by email to
Children's Bureau, Administration on Children, Youth and Families (ACYF), ACF, HHS.
Notice of tribal consultation.
The title IV–B regulations regarding the title IV–B plan and fiscal requirements are outdated due to statutory changes over the last 15 years. The Children's Bureau (CB) is deciding whether to revise the regulations accordingly. Per the ACF Tribal Consultation Policy (76 FR 55678, published September 8, 2011), we request comments from Indian Tribes that operate a title IV–B, subpart 1 and/or title IV–B, subpart 2 program and any other interested party. We provide further information on these statutory changes below, under
Please submit written comments to the office listed in the
Interested persons may submit written comments by any of the following methods:
•
•
•
Jan Rothstein, Division of Policy, Children's Bureau, Administration on Children, Youth and Families, 1250 Maryland Avenue SW., 8th Floor, Washington, DC 20024; phone: (202) 401–5073; email at:
Federal regulations at 45 CFR 1357, originally published in 1996, implement title IV–B of the Social Security Act (the Act). Legislation enacted over the last 15 years added new plan and fiscal requirements to title IV–B for States and Tribes to implement. While we have addressed these title IV–B requirements in Program Instructions and Information Memorandums, we are considering regulatory amendments to bring the regulations in line with the Act. Additionally, these regulations refer to numerous obsolete dates and timelines. Below, we provide a list of the major changes in the law since 1996 that relate to the title IV–B program requirements.
Several regulatory provisions have been superseded by statute including:
•
•
•
The Child and Family Services Plan requirements have been revised by statutory changes including:
• A requirement that title IV–B agencies coordinate and collaborate with the State Medicaid agency and, in consultation with pediatricians and others, develop a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement in accordance with the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub. L. 110–351).
• A description of the standards for the content and frequency of caseworker visits for children in foster care as described in sections 422(b)(17) of the Act pursuant to Public Law 112–34; and
• A description of activities to reduce the length of time children under five years of age are without a permanent family and to address the developmental needs of such children who receive benefits or services under titles IV–B/IV–E in accordance with Public Law 112–34.
Amendments to the Act over the years removed several title IV–B requirements including:
•
•
Region II meeting/conference call March 15, 2012, 10 a.m.–11:30 a.m. EST.
Region VI meeting/conference call March 6, 2012, 10 a.m.–12 p.m. CT.
Region VII meeting/conference call February 24, 2012, 1–3 p.m. CT.
Region X meeting/conference call on March 19, 2012, 11 a.m.–1 p.m. PT.
42 U.S.C. 620
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to amend the regulations that implement the Endangered Species Act (Act) by establishing public notice and comment procedures for applications to conduct certain otherwise prohibited activities under the Act that are authorized under the Captive Bred Wildlife (CBW) regulations. This action would add procedural requirements to the processing of applications for registration under the CBW regulations. Notices of receipt of each application would be published in the
We will accept comments received or postmarked on or before March 22, 2012.
You may submit comments by one of the following methods:
We will not accept emails or faxes. We will post all comments on
Timothy J. Van Norman, Chief, Branch of Permits, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 212, Arlington, VA 22203; telephone 703–358–2104; fax 703–358–2281. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339.
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531
In 1979, the Service published the Captive-Bred Wildlife (CBW) regulations at 50 CFR 17.21(g) (44 FR 54002, September 17, 1979) to reduce Federal permitting requirements and facilitate captive breeding of endangered and threatened species under certain prescribed conditions. Specifically, under these regulations, the Service promulgated a general permit to authorize persons to take; export or reimport; deliver, receive, carry, transport, or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce endangered or threatened wildlife bred in captivity in the United States. Qualifying persons and facilities seeking such authorization under the regulations are required to register with the Service. By establishing a more flexible management scheme to regulate routine activities related to captive propagation, these regulations have benefited wild populations by, for example, increasing sources of genetic stock that can be used to bolster or reestablish wild populations, decreasing the need to take stock from the wild, and providing for research opportunities.
The authorization granted under the CBW regulations is limited by several conditions. These conditions include:
(1) The wildlife is of a species having a natural geographic distribution not including any part of the United States or the wildlife is of a species that the Director has determined to be eligible in accordance with 50 CFR 17.21(g)(5);
(2) The purpose of authorized activities is to enhance the propagation or survival of the affected species;
(3) Activities do not involve interstate or foreign commerce, in the course of commercial activity, with respect to nonliving wildlife;
(4) That each specimen of wildlife to be reimported is uniquely identified by
(5) Any person subject to the jurisdiction of the United States who engages in any of the authorized activities does so in accordance with 50 CFR 17.21(g) and with all other applicable regulations.
The regulations also specify application requirements for registration that are designed to provide the Service with information needed to determine whether the applicant has the means of enhancing the propagation or survival of the affected species. For example, the application must include a description of the applicant's experience in maintaining and propagating the types of wildlife sought to be covered under the registration and documentation depicting the facilities in which the subject wildlife will be maintained.
Under this proposed rule, the Service would amend the CBW regulations to provide the public with notice of receipt of applications for CBW registration and an opportunity to comment on an applicant's eligibility to register under the regulations. If we determine that the registration should be granted, we will notify the public by publishing our findings in the
By incorporating these procedural amendments to the CBW regulations, the Service intends to increase transparency and openness in the CBW registration process, consistent with Executive Order 13576, “Delivering an Efficient, Effective, and Accountable Government,” and the Presidential Memorandum of January 21, 2009, which encourage government agencies to establish a system of transparency, public participation, and collaboration by disclosing information to the public. In addition, with these amendments, we believe that increased public participation in the CBW registration process will lead to better decisions by assisting the Service in assessing whether the applicants are capable of enhancing the propagation or survival of the species. By incorporating these procedures to increase transparency and openness in the registration process, interested persons' perceptions of the fairness of the registration process will improve, as well as their acceptance of our ultimate determination as to whether the registration should be granted.
One of the factors that led to the Service establishing the CBW program was the desire to avoid permitting delays that might hinder the propagation of endangered and threatened species for conservation purposes. The Service receives an annual average of 26 applications to establish new CBW registrations and 80 applications to renew already approved CBW registrations. Because the ESA prohibitions remain in place during the initial application process, new applicants are unable to carry out activities under a CBW registration until it is issued. While the publication of the receipt of an application under the CBW program would increase the processing time for the application by approximately 35 or 40 days, we do not believe that this increase in processing time would adversely affect the potential CBW registrant's conservation work. In addition, in the event of an emergency situation where the health or life of a protected species is threatened and no reasonable alternative is available to the applicant, the Service shall waive this 30-day public comment period.
Regulations are already in place (50 CFR 13.22(c)) that allow for the continuation of authorized activities if a CBW registrant submits a renewal application at least 30 days before the expiration of the current CBW authorization and the registration is in good standing (i.e., annual reports have been submitted and the registration is not suspended). Provided that the current CBW holders submit their renewal request at least 30 days before the expiration date, the comment period would have no impact on their ability to carry out previously approved activities. The current registration would continue to be valid until the renewal process, including the 30-day comment period, ends and we make a final determination.
The Service will also extend the registration period associated with approved CBW registrations up to 5 years, provided that the registrant remains in good standing. This increase in the registration period from 3 years to 5 years will both reduce the application renewal burden on CBW registrants and reduce the workload on the Service to process renewal requests. Furthermore, the annual reporting requirement will remain in place, and because the Service uses these reports to monitor CBW registrants, the Service does not believe that extending the registration period would adversely affect the oversight of the CBW program.
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. We expect that the majority of the entities involved in activities authorized under the CBW program would be considered small as defined by the SBA.
This rule would require the Service to publish notices in the
We, therefore, certify that this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
a. Would not have an annual effect on the economy of $100 million or more. This rule would codify a public notice-and-comment process for the receipt of CBW applications and require the publication of certain findings for registrations granted under the CBW regulations. The Service would publish no more than two notices in the
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, tribal, or local government agencies; or geographic regions. This rule would not result in an increase in the number of applications for registration to conduct otherwise-prohibited activities with endangered and threatened species.
c. Would not have any adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
a. This rule would not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.
b. This rule would not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
For the reasons given in the preamble, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.21 by revising paragraph (g)(3) to read as follows:
(g) * * *
(3) Upon receipt of a complete application for registration, or the renewal or amendment of an existing registration, under this section, the Service will publish notice of the application in the
(i) At the completion of this comment period, the Director will decide whether to approve the registration. In making this decision, the Director will consider, in addition to the general criteria in § 13.21(b) of this subchapter, whether the expertise, facilities, or other resources available to the applicant appear adequate to enhance the propagation or survival of the affected wildlife. Public education activities may not be the sole basis to justify issuance of a registration or to otherwise establish eligibility for the exception granted in paragraph (g)(1) of this section.
(ii) If the Director approves the registration, the Service will publish notice of the decision in the
(iii) Each person so registered must maintain accurate written records of activities conducted under the registration, and allow reasonable access to Service agents for inspection purposes as set forth in §§ 13.46 and 13.47 of this chapter. Each person so registered must also submit to the Director an individual written annual report of activities, including all births, deaths, and transfers of any type.
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to North Carolina State University of Raleigh, North Carolina, an exclusive license to the soybean variety named “N7003CN”.
Comments must be received on or before March 22, 2012.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4–1174, Beltsville, Maryland 20705–5131.
June Blalock of the Office of Technology Transfer at the Beltsville address given above; telephone: 301–504–5989.
The Federal Government's rights in this plant variety are assigned to the United States of America, as represented by the Secretary of Agriculture. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Food Safety and Inspection Service, USDA.
New schedule for implementation of routine testing and verification activities.
The Food Safety and Inspection Service (FSIS) is announcing a new date for when it will implement routine verification sampling and testing for raw beef manufacturing trimmings for six non-O157 Shiga toxin-producing
Beginning June 4, 2012, FSIS will implement routine verification activities, including testing, for the six additional STEC discussed in this document (O26, O45, O103, O111, O121, and O145), of raw beef manufacturing trimmings (domestic or imported) derived from cattle slaughtered on or after June 4, 2012. To facilitate compliance with the policy, and to allow industry time to implement any necessary changes in their food safety systems, FSIS will generally not regard raw, non-intact beef products or the components of these products found to have these pathogens as adulterated until June 4, 2012.
Daniel Engeljohn, Ph.D., Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, (202) 205–0495.
On September 20, 2011, FSIS published a
FSIS announced that it intended to implement a verification sampling and testing program for the six non-O157 STEC, as it already does for
In addition, FSIS asked for comments on: Agency plans for a baseline survey of relevant
In response to comments, FSIS extended the public comment period from November 21, 2011, to December 21, 2011, and held a public meeting by teleconference on December 1, 2011 to solicit comments (76 FR 72331; Nov. 23, 2011). FSIS intends to publish a
Many of the comments requested a delay of the implementation date for testing for the relevant STECs for various reasons, including the need for test kits to detect these organisms to become more widely available.
While FSIS is confident that reliable test kits will be available for commercial use before March 5, allowing additional time for beef establishments to begin sampling and testing with these new
With the implementation of verification testing for beef manufacturing trimmings on June 4, FSIS will also consider raw, non-intact beef products or raw, intact products intended for use in non-intact beef products that are contaminated with STEC O26, O45, O103, O111, O121, and O145, to be adulterated within the meaning of 21 U.S.C. 601(m)(1) and (m)(3). FSIS will generally not regard raw, non-intact beef products found to have these pathogens as adulterated until it implements this verification testing program. However, if product is associated with an STEC outbreak before that time, the product will be deemed adulterated and subject to recall, consistent with current FSIS practice.
Finally, the Agency notes that in February 2012, it contacted foreign governments already approved for the export of raw beef to the United States and informed them that FSIS would make a limited amount of reagents used in the FSIS laboratory method for non-O157 STECs available to a foreign government if that government wanted to conduct a comparative analysis of its method and methods used with test kits assessed by FSIS. Although these comparative analyses are not a necessary precondition for FSIS to begin verification testing of raw beef manufacturing trimmings on June 4, 2012, FSIS believes that the results of such comparative analyses could be useful.
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202–720–2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce it on-line through the FSIS Web page located at:
FSIS also will make copies of this
Forest Service, USDA.
Notice of meetings.
The Black Hills National Forest Advisory Board (NFAB) has announced its meeting dates for 2012. These meetings are open to the public, and public comment is accepted at any time in writing, at the pleasure of the Chair, and during the last 15 minutes of each meeting, limited to three (3) minutes per person for oral comments.
Meeting dates are the third Wednesday of each month unless otherwise indicated:
Meetings will begin at 1 p.m. and end no later than 5 p.m. at the Forest Service Center, 8221 South Highway 16, Rapid City, SD 57702.
Committee Management Officer, Black Hills National Forest, 1019 N. 5th Street, Custer, SD 57730, (605) 673–9200.
National Institute of Food and Agriculture, USDA.
Notice of public meeting and request for stakeholder input.
Section 7403 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110–246) (FCEA) amended section 3(d) of the Smith-Lever Act (7 U.S.C. 343(d)) to provide the opportunity for 1862 and 1890 Land-Grant Institutions, including Tuskegee University and West Virginia State University to compete for section 3(d) funds. Section 7417 of FCEA also provided the University of the District of Columbia the opportunity to compete for section 3(d) funds. The Children, Youth, and Families at Risk (CYFAR) Sustainable Community Projects is among the Extension programs funded under this authority. The National Institute of Food and Agriculture (NIFA) plans to consider stakeholder input received from written comments in developing future competitive RFAs for this program.
Webinars will be held on Thursday, February 22, 2012 from 2 p.m. to 3:30 p.m. Eastern time and Friday, March 9, 2012 from 2 p.m. to 3:30 p.m. Eastern time. All comments not otherwise presented or submitted for the record at the meeting must be submitted by close of business Friday, March 30, 2012 to assure consideration in the next RFA.
All submissions received must include the agency name and the identifier NIFA–2012–0005. All comments received will be posted to
Bonita Williams (202)720–3566, (FAX) 202.720.9366,
Reservations for oral comments will be confirmed on a first-come, first-serve basis during the listening session. All comments and the official transcript of the meeting, when they become available, may be reviewed on the NIFA Web page for six months.
The mission of the CYFAR Program is to marshal resources of Land-Grant and Cooperative Extension Systems, so that, in collaboration with other organizations, they can develop and deliver educational programs that equip youth who are at risk for not meeting basic human needs with the skills they need to lead positive, productive, and contributing lives. Through an annual congressional appropriation for the CYFAR Program, NIFA allocates funding to land-grant university Extension services for community-based programs for at-risk children and their families. NIFA is seeking stakeholder input regarding CYFAR's structure of the professional development and technical support program for fiscal year 2013. The focus of the webinar will be to address the following questions:
1. What should change about CYFAR, if anything?
2. What specific audiences should CYFAR target within at-risk populations?
3. Are there audiences for which CYFAR could have greater impact?
4. CYFERnet.org, are you using this, if so, please explain how?
5. CYFERnetSEARCH.org, are you using this, if so, please explain how?
6. How should the role of the CYFAR liaison be changed, if at all?
7. Have the capacity building workshops been effective, please explain?
8. Should we have a CYFAR liaison who is responsible specifically for capacity building, please explain?
9. CYFAR Conference, how effective has the CYFAR Conference been for your professional development in working with at-risk populations?
10. What percentage of the CYFAR funds should go to building the capacity of the system to serve at-risk audiences vs. building the capacity of the grantees?
Stakeholders' comments provided on the questions above will provide guidance to NIFA in restructuring the program and assisting NIFA leadership in more fully addressing stakeholder needs.
NIFA plans to consider stakeholder input received from this public meeting as well as other written comments in developing the FY 2013 program guidelines. NIFA anticipates
releasing the FY 2013 Request for Applications (RFA) by winter 2012.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
NOAA has established a program to reduce excess fishing capacity by paying fishermen to (1) surrender their fishing permits or (2) surrender their permits, and either scrap their vessels or restrict vessel titles to prevent fishing. These fishing capacity reduction programs, or buybacks, can be funded by a Federal loan to the industry or by direct Federal or other funding. These buybacks are conducted pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, and the Magnuson-Stevens Reauthorization Act (Pub. L. 109–479). The regulations implementing the buybacks are at 50 CFR part 600.
Depending upon the type of buyback involved, the program can entail the submission of buyback requests by industry, the submission of bids, referenda of fishery participants, and reporting of the collection of fees to repay a Federal loan. For buybacks involving State-managed fisheries, the State may need to develop the buyback plan and comply with other information requirements. The information collected by NMFS is required to request a buyback, submit supporting data for requested buybacks, to submit bids, and to conduct referenda of fishery participants.
The recordkeeping and reporting requirements at 50 CFR 600.1013 through 600.1017 form the basis for this collection of information on fee payment and collection. NMFS requests information from participating buyback participants. This information, upon receipt, tracks the repayment of the Federal loans that are issued as part of the buybacks, and ensures accurate management and monitoring of the loans during the repayment term.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Import Administration, International Trade Administration, Department of Commerce.
On December 14, 2011, the Department of Commerce (“Department”) published the final results of the first administrative review of the antidumping duty order on citric acid and certain citrate salts (“citric acid”) from the People's Republic of China (“PRC”).
Krisha Hill or Maisha Cryor, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC, 20230; telephone: (202) 482–4037 or (202) 482–5831, respectively.
On December 19, 2011, Yixing Union timely submitted an allegation of a ministerial error with respect to the
A ministerial error as defined in section 751(h) of the Act includes “errors in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.”
After analyzing Yixing Union's comments, we have determined, in accordance with 19 CFR 351.224(e), that a ministerial error existed in a certain calculation in the
Therefore, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
We will disclose the calculation performed for these amended final results within five days of the date of publication of this notice to interested
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with these amended final results of review. For assessment purposes, we calculated importer (or customer)-specific assessment rates for merchandise subject to this review consistent with 19 CFR 351.212(b)(1). Where appropriate, we calculated an
The following cash deposit requirements will be effective retroactively on any entries made on or after December 14, 2011, the date of publication of the
These amended final results are published in accordance with sections 751(h) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Toni Page, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1398.
On July 1, 2011, the Department of Commerce (Department) published a notice of opportunity to request an administrative review of the countervailing duty (CVD) order on polyethylene terephthalate film, sheet and strip from India covering the period January 1, 2010, through December 31, 2010.
On August 26, 2011, the Department published a notice of initiation of administrative review with respect to Ester, Garware, Jindal, Polyplex, SRF, Vacmet, and Polypacks.
On September 12, 2011, SRF filed a certification of no shipments and requested that the Department rescind the CVD administrative review of the company.
On November 25, 2011, Petitioners timely withdrew their request for CVD administrative reviews of Ester, Garware, Polyplex, and Jindal. The Department published a rescission, in part, of the CVD administrative review with respect to Ester, Garware, Polyplex, and Jindal on January 11, 2012.
The products covered by the order are all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet and strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of polyethylene terephthalate film, sheet and strip are classifiable in the Harmonized Tariff
SRF submitted a letter to the Department on September 12, 2011, certifying that it had no shipments of subject merchandise that entered the United States during calendar year 2010, which is the period of review (POR). Petitioners did not comment on SRF's claim of no shipments or entries.
Previously, on September 1, 2011, the Department released the results of a U.S. Customs and Border Protection (CBP) data query to interested parties with an administrative protective order for this segment of the administrative review, which showed SRF had no suspended entries of subject merchandise during the POR. After the receipt of SRF's no shipment certification, we sent a “no shipments inquiry” message to CBP, which posted the message on October 12, 2011.
Based on our analysis of all of the information on the record, we preliminarily determine that SRF had no shipments or entries of subject merchandise during the POR. Therefore, in accordance with 19 CFR 351.213(d)(3), and consistent with our practice,
The Department is setting aside a period for interested parties to raise issues regarding the Department's preliminary intent to rescind the administrative review for SRF. Interested parties should submit such comments within 20 calendar days of the publication of this notice. Comments must be filed electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS) (
We are issuing this notice in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) hereby publishes a list of scope rulings completed between April 1, 2011, and June 30, 2011. In conjunction with this list, the Department is also publishing a list of requests for scope rulings and anticircumvention determinations pending as of June 30, 2011. We intend to publish future lists after the close of the next calendar quarter.
Julia Hancock, AD/CVD Operations, China/NME Group, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202–482–1394.
The Department's regulations provide that the Secretary will publish in the
None.
Interested parties are invited to comment on the completeness of this list of pending scope and anticircumvention inquiries. Any comments should be submitted to the Deputy Assistant Secretary for AD/CVD
Administration, 14th Street and Constitution Avenue NW., APO/Dockets Unit, Room 1870, Washington, DC 20230. This notice is published in accordance with 19 CFR 351.225(o).
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 23, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Cristi Reid, (301) 713–1622 x206 or
This request is for extension of a currently approved information collection.
The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 through 4327) and the Council on Environmental Quality (CEQ) implementing regulations (40 CFR parts 1500 through 1508) require that an environmental analysis be completed for all major Federal actions significantly affecting the environment. NEPA applies only to the actions of Federal agencies. While those Federal actions may include a Federal agency's decision to fund non-Federal projects under grants and cooperative agreements, NEPA requires agencies to assess the environmental impacts of actions proposed to be taken by these recipients only when the Federal agency has sufficient discretion or control over the recipient's activities to deem those actions as Federal actions. To determine whether the activities of the recipient of a Federal financial assistance award (i.e., grant or cooperative agreement) involve sufficient Federal discretion or control, and to undertake the appropriate environmental analysis when NEPA is required, NOAA must assess information which can only be provided by the Federal financial assistance applicant. Thus, NOAA has developed an environmental information questionnaire to provide grantees and Federal grant managers with a simple tool to ensure that project and environmental information is obtained. The questionnaire applies only to those programs where actions are considered major Federal actions or to those where NOAA must determine if the action is a major Federal action. The questionnaire includes a list of questions that encompasses a broad range of subject areas. The applicants are not required to answer every question in the questionnaire. Each program draws from the comprehensive list of questions to create a relevant subset of questions for applicants to answer. The information provided in answers to the questionnaire is used by NOAA staff to determine compliance requirements for NEPA and conduct subsequent NEPA analysis as needed. The information provided in the questionnaire may also be used for other regulatory review requirements associated with the proposed project, such as issuance of permits.
Methods of submittal include paper forms via the mail, Internet, and facsimile transmission.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 23, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Gary Rule, (503) 230–5424 or
This request is for an extension of a currently approved information collection.
The Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.) imposed prohibitions against the taking of endangered species. Section 10 of the ESA allows permits authorizing the taking of endangered species for research/enhancement purposes. The corresponding regulations established procedures for persons to apply for such permits. In addition, the regulations set forth specific reporting requirements for such permit holders. The regulations contain two sets of information collections:
(1) Applications for research/enhancement permits, and (2) reporting requirements for permits issued.
The required information is used to evaluate the impacts of the proposed activity on endangered species, to make the determinations required by the ESA prior to issuing a permit, and to establish appropriate permit conditions. To issue permits under ESA Section 10(a)(1)(A), the National Marine Fisheries Service (NMFS) must determine that (1) such exceptions were applied for in good faith, (2) if granted and exercised, will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy set forth in Section 2 of the ESA.
The currently approved application and reporting requirements apply to Pacific marine and anadromous fish species; requirements regarding other species are being addressed in a separate information collection.
Submissions may be in paper or electronic format.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will convene its Special Coral Scientific and Statistical Committee.
The meeting will convene at 8:30 a.m. on Thursday, March 8, 2012 and conclude no later than 4:30 p.m.
The meeting will be held at the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607.
John Froeschke, Fishery Biologist and Mark Mueller, GIS Analyst, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630.
The Gulf of Mexico Fishery Management Council (Council) will convene the Special Coral Scientific and Statistical Committee to discuss and provide expert guidance to Council staff on two projects being conducted as part of a NOAA Coral Reef Conservation Program grant that address the relationship between trends in coral reef communities and their associated fisheries. The first project involves development of a publicly-accessible spatial database of Gulf of Mexico corals (shallow, mesophotic and deep sea) and related fisheries information that will be used to enhance spatial planning and management actions. The Committee will be asked to provide expert advice and recommendations about datasets and data sources as well as data gaps and needs. The second project involves convening a workshop of respected coral experts and managers to examine the interrelationships between corals and fisheries relative to long-term trends in coral condition. The Committee will be asked to provide expert advice and recommendations about participants and various potential conference topics including threats to coral health, management, coral habitats, habitat suitability models, and emerging research.
Copies of the agenda and other related materials can be obtained by calling (813) 348–1630 or can be downloaded from the Council's ftp site,
Although other non-emergency issues not on the agenda may come before the Special Coral Scientific and Statistical Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Special Coral Scientific and Statistical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Golden King Crab Price Formula Committee is meeting in Seattle, WA.
The meeting will be held on March 8, 2012, from 9 a.m. to 4 p.m.
The meeting will be held at Fishermen's Terminal, Norby Conference Room, 3919 18th Avenue West, Seattle, WA 98199; telephone: (206) 787–3395.
Mark Fina, Council staff; telephone: (907) 271–2809.
The Committee is meeting concerning the arbitration system that is part of the Bering Sea and Aleutian Islands crab rationalization program. The Committee will give specific attention to the development of the price formula for golden king crab under the arbitration system. Additional information is posted on the Council Web site:
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271–2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council will convene three Web based meetings of the ABC Control Rule Working Group.
The first Webinar meeting will convene on Thursday, March 8, 2012. The second Webinar meeting will convene on Thursday, March 15, 2012. The third Webinar meeting will convene on Thursday, March 22, 2012. Each Webinar will begin at 12 noon eastern time and is expected end by 4 p.m.
The Webinars will be accessible via Internet. Please go to the Gulf of Mexico Fishery Management Council's Web site at
Steven Atran, Population Dynamics Statistician; Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630.
The ABC Control Rule Working Group will meet to discuss potential revisions to the acceptable biological catch (ABC) control rule that was recently implemented as part of the Council's Generic Annual Catch Limits/Accountability Measures Amendment. While all areas of the control rule will be subject to review, particular attention will be given to whether the P-star approach used to determine ABC in Tier 1 of the control rule realistically captures scientific uncertainty, and possible revisions to the Tier 2 method for data poor stocks. Recommendations from the Working Group will be presented to the Scientific and Statistical Committee when it meets in late March.
Copies of the agenda and other related materials can be obtained by calling (813) 348–1630. Materials will also be available to download from the ABC Control Rule Working Group folder of the Council's FTP site, which is accessible from the Quick Links section of the Council Web site (
Although other non-emergency issues not on the agenda may come before the ABC Control Rule Working Group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during these meetings. Actions of the Working Group will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These Webinars are accessible to people with disabilities. For assistance with any of our Webinars contact Kathy Pereira at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; correction.
This action makes a correction to a notice published on December 21, 2011. The notice referenced a control date of March 7, 2011; however the correct date is April 7, 2011. This notice inserts the correct April 7, 2011, control date, as intended.
Travis Ford, Fishery Management Specialist, 978–281–9233.
NMFS published a Notice of Intent (NOI) to prepare an Environmental Impact Statement and announced public scoping meetings for the New England Fishery Management Council's (Council) Amendment 18 to the Northeast Multispecies Fishery Management Plan (Amendment 18) on December 21, 2011 (76 FR 79153). The subject document contained an error that needs to be corrected.
In the background information for the December 21, 2011 notice there is a reference to a March 7, 2011 control date for the NE multispecies fishery. Because the date reflects the wrong month, therefore, NMFS, through this notice, corrects the control date to April 7, 2011. Other published materials referencing the control date reflect the correct date of April 7, 2011.
The NOI published on December 21, 2011, in FR Doc. 2011–32694, on page 79154, in column 2, in the first full paragraph, line 2, correct the month “March” to read as “April.”
16 U.S.C. 1801
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 11–54 with attached transmittal, policy justification, and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
The Government of Poland has requested a possible sale of 93 AIM–9X–2 SIDEWINDER Block II Tactical Missiles, 4 CATM–9X–2 Captive Air Training Missiles, 65 AIM–120C–7 Advanced Medium Range Air-to-Air Missiles, 42 GBU–49 Enhanced PAVEWAY II 500 lb Bombs, 200 GBU–54 (2000 lb) Laser Joint Direct Attack Munitions (JDAM) Bombs, 642 BLU–111 (500 lb) General Purpose Bombs, 127 MK–82 (500 lb) General Purpose Bombs, 80 BLU–117 (2000 lb) General Purpose Bombs, 4 MK–84 (2000 lb) Inert General Purpose Bombs, 9 F–100–PW–229 Engine Core Modules, 28 Night Vision Devices plus 6 spare intensifier tubes, 12 Autonomous Air Combat Maneuvering Instrumentation P5 pods, a Joint Mission Planning System, and five years of follow-on support and sustainment services for Poland's F–16 fleet, spare and repair parts, support and test equipment, publications and technical documentation, system overhauls and upgrades, personnel training and training equipment, U.S. Government and contractor technical support, and other related elements of program support. The estimated cost is $447 million.
Poland is an important ally in Northern Europe, contributing to NATO activities and ongoing U.S. interests in the pursuit of peace and stability. Poland's efforts in peacekeeping operations in Iraq and Afghanistan continue to serve U.S. national security interests. It is vital to the U.S. national interest to assist Poland to develop and maintain a strong and ready self-defense capability.
The proposed sale will improve Poland's capability to meet current and future operational needs. The upgrade will allow Poland to continue to bolster its regional leadership while increasing NATO interoperability. Poland already has these missiles and munitions in its inventory and will have no difficulty absorbing the additional systems into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be Raytheon Corporation in Tucson, Arizona, Raytheon Corporation in Waltham, Massachusetts, The Boeing Company in St. Charles, Missouri, McAlester Army Ammunition Plant in McAlester, Oklahoma, and United Technologies Corporation in Hartford, Connecticut. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Poland. However, periodic travel to Poland will be required on a temporary basis in conjunction with program, technical, and management oversight and support requirements.
There will be no adverse impact on the U.S. defense readiness as a result of this proposed sale.
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1. The AIM–9X–2 SIDEWINDER Block II Missile represents a substantial increase in missile acquisition and kinematics performance over the AIM–9M and replaces the AIM–9X–1 Block I missile configuration. The missile includes a high off bore-sight seeker, enhanced countermeasure rejection capability, low drag/high angle of attack airframe and the ability to integrate the Helmet Mounted Cueing System. The software algorithms are the most sensitive portion of the AIM–9X–2 missile. The software continues to be modified via a pre-planned product improvement (P
2. The AIM–9X–2 will result in the transfer of sensitive technology and information. The equipment, hardware, and documentation are classified Confidential. The software and operational performance are classified Secret. The seeker/guidance control section and the target detector are Confidential and contain sensitive state-of-the-art technology. Manuals and technical documentation that are necessary or support operational use and organizational management are classified up to Secret. Performance and operating logic of the counter-countermeasures circuits are classified Secret. The hardware, software, and data identified are classified to protect vulnerabilities, design and performance parameters and similar critical information.
3. The GBU–54 is a 2000lb Joint Direct Attack Munition (JDAM) variant that includes a DSU–40 Laser Sensor. The GBU–54 uses global position system aided inertial navigation and/or laser detection to guide to threat targets. The Laser sensor enhances the standard JDAM's reactive target capability by allowing rapid prosecution of fixed targets with large initial target location errors (TLE). The DSU–40 Laser sensor also provides the capability to engage some mobile targets. The DSU–40 Laser sensor is attached to an MK–84 or BLU–117 bomb body in the forward fuze well. The addition of the DSU–40 Laser sensor, combined with additional cabling and mounting hardware, turns a standard GBU–31 JDAM into a GBU–54 Laser JDAM. Information that might reveal target designation tactics and associated aircraft maneuvers, the probability of destroying specific/peculiar targets, vulnerabilities regarding countermeasures, and the electromagnetic environment is classified Secret.
4. The JDAM is actually a guidance kit that converts existing unguided free-fall bombs into precision-guided “smart” munitions. By adding a new tail section containing Inertial Navigation System (INS) guidance/Global Positioning System (GPS) guidance to unguided bombs, the cost effective JDAM provides highly accurate weapon delivery in any “flyable” weather. The INS, using updates from the GPS, helps guide the bomb to the target via the use of movable tail fins.
5. The AIM–120C Advanced Medium Range Air-to-Air Missile (AMRAAM) is a guided missile featuring digital technology and micro-miniature solid-state electronics. The AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high- and low-flying and maneuvering targets. The AMRAAM All Up Round (AUR) is classified Confidential. The major components and subsystems range from Unclassified to Confidential,
6. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Department of the Air Force, DoD.
Notice to alter a system of records.
The Department of the Air Force proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective on March 22, 2012 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Mr. Charles J. Shedrick, Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information officer, ATTN: SAF/CIO A6, 1800 Air Force Pentagon, Washington, DC 20330–1800, or by phone at 202–404–6575.
The Department of the Air Force's notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, were submitted on February 14, 2012 to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996, (February 20, 1996, 61 FR 6427).
Joint Medical Evacuation System (TRAC
Delete entry and replace with “All Active Duty, Air National Guard, Army National Guard and Reserve components of Air Force, Army, Navy, Marine Corps, Coast Guard, Public Health Services or National Oceanic and Atmospheric Administration who have been called to Federal Service, retired personnel of all seven uniformed services, and their family members. All Veterans who are transported to or from a Department of Veterans Affairs (DVA) medical facility or of transporting the remains of deceased Veterans who died after transport to a DVA Medical facility. All Active Duty and Reserve components of Air Force, Army, Navy and Coast Guard and other uniformed service members of the North Atlantic Treaty Organization (NATO) and Secretary of Defense identified coalition National forces, DoD civilian employees, contractors supporting global U.S. operations, Department of Defense detainees and Prisoners of War. Individuals who are employed or contracted by the Federal Emergency Management Agency (FEMA), Department of Homeland Security (DHS), Department of Health and Human Services (DHHS) or other United States (US) government agencies providing health care service, and patient movement in support of identified patients during Presidential disaster or emergency declaration. Employees and their dependents of any mission essential agency of the U.S. Government including non-appropriated fund and Exchange Service employees, Air Reserve technicians performing duties as civil servants, family members (dependents) who reside overseas and their civil service personnel sponsor stationed overseas requiring transfer to another medical treatment facility at the request of U.S. Government medical treatment facilities.”
Delete entry and replace with “TRAC
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force; 10 U.S.C. Chapter 55, Medical and Dental Care; 10 U.S.C. 2641, Transportation of Certain Veterans on DoD Aeromedical Evacuation Aircraft; DoD Directive 5154.6, Armed Services Medical Regulating; DoD Instruction 6000.11, Patient Movement; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “Paper records in file folders and electronic storage media.”
Delete entry and replace with “By individual's name and SSN.”
Delete entry and replace with “System Administrator, United States Transportation Command, Office of the Command Surgeon, 203 West Losey Street, Suite 1700, Scott AFB, IL 62225–5357.”
Delete entry and replace with “Transferring and receiving treatment facilities, medical regulating offices, evacuation offices, agencies and commands relevant to the patient transfer, and from the Military Health Information System.”
Notice is hereby given that the Delaware River Basin Commission will hold an informal conference followed by a public hearing on Wednesday, March 7, 2012. The hearing will be part of the Commission's regularly scheduled business meeting. The conference session and business meeting both are open to the public and will be held at the West Trenton Volunteer Fire Company, located at 40 West Upper Ferry Road, West Trenton, New Jersey.
The morning conference session will begin at 10:30 a.m. and will consist of presentations on: (a) the
In addition to the hearings on draft dockets, a public hearing also will be held during the 1:30 p.m. business meeting on a resolution authorizing the Executive Director to extend the Commission's agreements with Axys Analytical Services, Ltd. for the analysis of ambient water, wastewater and sediment samples (agreement of July 2010) and fish tissue samples (agreement of September 2006) in connection with the control of certain toxic substances in the Delaware Estuary.
Individuals in need of an accommodation as provided for in the Americans with Disabilities Act who wish to attend the informational meeting, conference session or hearings should contact the Commission Secretary directly at 609–883–9500 ext. 203 or through the Telecommunications Relay Services (TRS) at 711, to discuss how we can accommodate your needs.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 23, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 23, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 23, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
U.S. Election Assistance Commission (EAC).
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, EAC announces an information collection and seeks public comment on the provisions thereof. The EAC, pursuant to 5 CFR 1320.5(a)(iii), intends to submit this proposed information collection (Election Administration in Urban and Rural Areas) to the Director of the Office of Management and Budget for approval. The Election Administration in Urban and Rural Areas survey asks election officials questions concerning voter outreach and election personnel. EAC will conduct the survey as a way to obtain data and information for a mandatory report to Congress as stipulated under HAVA 241 (B)(15), which requires EAC to study “[m]atters particularly relevant to voting and administering election in rural and urban areas.” Further, Section 202(3) of HAVA authorizes EAC to conduct studies and to carry out other duties and activities to promote the effective administration of Federal elections.
Written comments must be submitted on or before 4 p.m. EDT on April 23, 2012.
Comments on the proposed information collection should be submitted electronically to
Ms. Karen Lynn-Dyson or Ms. Shelly Anderson at (202) 566–3100.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of limited waivers.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of Section 1605(b)(2), (iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality), with respect to Recovery Act projects funded by EERE for ((1) 400 amp Dual Element Time-Delay Fuses for electric vehicle supply equipment (EVSE) charging station; (2) Video imaging card rack mounted boards for vehicle presence and data detection; (3) 20-ton split system heat pump that meets a minimum static pressure requirement of 3.0 inches of water column (only where the 3.0 water column is a requirement of the system); and (4) network manager for conversion of proprietary protocol—Staefa brand system—to a non-proprietary open source protocol.
Effective Date: 01/24/2012.
Christine Platt-Patrick, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287–1553, Department of Energy, 1000 Independence Avenue SW., Mailstop EE–2K, Washington, DC 20585.
Under the authority of American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111–5, section 1605(b)(2), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provision) if the iron, steel, or relevant manufactured good is not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality (“nonavailability”). The authority of the Secretary of Energy to make all inapplicability determinations was re-delegated to the Assistant Secretary for Energy Efficiency and Renewable Energy (EERE), for EERE projects under the Recovery Act, in Redelegation Order No. 00–002.01E, dated April 25, 2011. Pursuant to this delegation the Acting Assistant Secretary, EERE, has concluded that: (1) 400amp Dual Element Time-Delay Fuses for electric vehicle supply equipment (EVSE) charging station; (2) Video imaging card rack mounted boards for vehicle presence and data detection; (3) 20-ton split system heat pump that meets a minimum static pressure requirement of 3.0 inches of water column (only where the 3.0 water column is a requirement of the system); and (4) network manager for conversion of proprietary protocol—Staefa brand system—to a non-proprietary open source protocol, are not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The above items, when used on eligible EERE Recovery Act-funded projects, qualify for the “nonavailability” waiver determination.
EERE has developed a robust process to ascertain in a systematic and expedient manner whether or not there is domestic manufacturing capacity for the items submitted for a waiver of the Recovery Act Buy American provision. This process involves a close collaboration with the United States Department of Commerce National Institute of Standards and Technology (NIST) Manufacturing Extension Partnership (MEP), in order to scour the domestic manufacturing landscape in search of producers before making any nonavailability determinations.
The MEP has 59 regional centers with substantial knowledge of, and connections to, the domestic manufacturing sector. MEP uses their regional centers to `scout' for current or potential manufacturers of the product(s) submitted in a waiver request. In the course of this interagency collaboration, MEP has been able to find exact or partial matches for
Upon receipt of completed waiver requests for the four products in the current waiver, EERE reviewed the information provided and submitted the relevant technical information to the MEP. The MEP then used their network of nationwide centers to scout for domestic manufacturers. The MEP reported that their scouting process did not locate any domestic manufacturers for these exact or equivalent items.
In addition to the MEP collaboration outlined above, the EERE Buy American Coordinator worked with other manufacturing stakeholders to scout for domestic manufacturing capacity or an equivalent product for each item contained in this waiver.
EERE also conducted significant amounts of independent research to supplement MEP's scouting efforts, including utilizing the solar experts employed by the Department of Energy's National Renewable Energy Laboratory. EERE's research efforts confirmed the MEP findings that the goods included in this waiver are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The nonavailability determination is also informed by the inquiries and petitions to EERE from recipients of EERE Recovery Act funds, and from suppliers, distributors, retailers and trade associations—all stating that their individual efforts to locate domestic manufacturers for these items have been unsuccessful.
Specific technical information for the manufactured goods included in this non-availability determination is detailed below:
(1) 400amp Dual Element Time-Delay Fuses for electric vehicle supply equipment (EVSE) charging station
These are used in the installation of EV charging stations. Two national trade organizations representing American manufacturers of this equipment verified that these are not manufactured in the US. Further, MEP did not identify a potential manufacturer.
(2) Video imaging card rack mounted boards for vehicle presence and data detection
These card racks are installed into existing traffic systems and are not manufactured domestically. Neither transportation manufacturing trade associations nor MEP identified any US manufacturer of this product.
(3) 20-ton split system heat pump that meets a minimum static pressure requirement of 3.0 inches of water column (only where the 3.0 water column is a requirement of the system)
This waiver is limited to systems that require compatibility with this extremely high water column. No US manufacturers (four manufacturers of this type of equipment were identified by EERE and MEP and contacted) were able to meet this need.
(4) Network manager for conversion of proprietary protocol- Staefa brand system to a non-proprietary open source protocol
For use where a Staefa system was installed previously, and where utilizing a domestic control module would mean that the existing energy management controls would have to be removed and a new energy management controls system would have to replace the existing Staefa system. This product allows the grantee to convert from the proprietary protocol to an open-source protocol- providing a wider variety of controls in the future.
In these cases, the grantee is unable to use a domestic control module because the existing system runs off of a proprietary communication protocol (rather than LON or BACnet), and the entire system would have to be replaced to install additional controllers. Trade organizations, DOE and MEP all agreed that this was the only controller capable of properly interfacing with this protocol.
In light of the foregoing, and under the authority of section 1605(b)(2) of Public Law 111–5 and Redelegation Order 00–002–01E, with respect to Recovery Act projects funded by EERE, I hereby issue a “determination of inapplicability” (a waiver under the Recovery Act Buy American provision) for: ((1) 400amp Dual Element Time-Delay Fuses for electric vehicle supply equipment (EVSE) charging station; (2) Video imaging card rack mounted boards for vehicle presence and data detection; (3) 20-ton split system heat pump that meets a minimum static pressure requirement of 3.0 inches of water column (only where the 3.0 water column is a requirement of the system); and (4) network manager for conversion of proprietary protocol- Staefa brand system- to a non-proprietary open source protocol.
Having established a proper justification based on domestic nonavailability, EERE hereby provides notice that on January 24, 2012, four (4) nationwide categorical waivers of section 1605 of the Recovery Act were issued as detailed
This waiver determination is pursuant to the delegation of authority by the Secretary of Energy to the Assistant Secretary for Energy Efficiency and Renewable Energy with respect to expenditures within the purview of his responsibility. Consequently, this waiver applies to all EERE projects carried out under the Recovery Act.
Pub. L. 111–5, section 1605.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of petition for waiver, notice of grant of interim waiver, and request for comments.
This notice announces receipt of and publishes the LG Electronics U.S.A., Inc. (LG) petition for waiver and application for interim waiver (hereafter, “petition”) from specified portions of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of clothes washers. Today's notice also grants an interim waiver of the clothes washer test procedure. Through this notice, DOE also solicits comments with respect to the LG petition.
DOE will accept comments, data, and information with respect to the LG petition March 22, 2012.
You may submit comments, identified by case number CW–023, by any of the following methods:
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Mr. Bryan Berringer, U.S. Department of Energy, Building Technologies Program, Mail Stop EE–2J, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–0371. Email:
Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC–71, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585–0103. Telephone: (202) 586–7796. Email:
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94–163 (42 U.S.C. 6291–6309, as codified), established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, which includes the clothes washers that are the focus of this notice.
The regulations set forth in 10 CFR 430.27 contain provisions that enable a person to seek a waiver from the test procedure requirements for covered products. The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) will grant a waiver if it is determined that the basic model for which the petition for waiver was submitted contains one or more design characteristics that prevents testing of the basic model according to the prescribed test procedures, or if the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(l)), 431.401(f)(4). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii), 430.401(b)(1)(iii). The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l), 431.401(f)(4). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m) or 430.401(g), as appropriate.
The waiver process also allows the Assistant Secretary to grant an interim waiver from test procedure requirements to manufacturers that have petitioned DOE for a waiver of such prescribed test procedures. 10 CFR 430.27(g), 430.401(e)(3). An interim waiver remains in effect for 180 days or until DOE issues its determination on the petition for waiver, whichever is sooner. DOE may extend an interim waiver for an additional 180 days. 10 CFR 430.27(h), 430.401(e)(4).
On December 23, 2010, DOE issued enforcement guidance on the application of waivers for large-capacity clothes washers and announced steps to improve the waiver process and refrain from certain enforcement actions. This guidance can be found on DOE's Web site at
On November 28, 2011, LG submitted a petition for waiver from the DOE test procedure applicable to automatic and semi-automatic clothes washers set forth in 10 CFR part 430, subpart B, appendix J1. LG requested the waiver for specified basic models with capacities greater than 3.8 cubic feet because the mass of the test load used in the procedure, which is based on the basket volume of the test unit, is currently not defined for basket sizes greater than 3.8 cubic feet. Table 5.1 of Appendix J1 defines the test load sizes used in the test procedure as linear functions of the basket volume. LG requests that DOE grant a waiver for testing and rating based on a revised Table 5.1. The table is identical to the Table 5.1 found in DOE's clothes washer test procedure Notice of Proposed Rulemaking (NOPR). 75 FR 57556 (September 21, 1010). DOE notes that the Table 5.1 proposed in the September 2010 NOPR was amended to correct rounding errors in the supplemental proposed rule issued on July 26, 2011
An interim waiver may be granted if it is determined that the applicant will experience economic hardship if the application for interim waiver is denied, if it appears likely that the petition for waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the petition for waiver. (10 CFR 430.27(g), 430.401(e)(3)).
DOE has determined that LG's application for interim waiver does not provide sufficient market, equipment price, shipments, and other manufacturer impact information to permit DOE to evaluate the economic hardship LG might experience absent a favorable determination on its application for interim waiver. DOE has determined, however, that it is likely LG's petition will be granted, and that it is desirable for public policy reasons to grant LG relief pending a determination on the petition. Previously, DOE granted test procedure waivers to other manufacturers for products with capacities larger than currently specified in the test procedure.
The current DOE test procedure specifies test load sizes only for machines with capacities up to 3.8 cubic feet. For the reasons set forth in DOE's September 2010 NOPR, DOE believes that extending the linear relationship between test load size and container capacity to larger capacities is valid. In addition, testing a basic model with a capacity larger than 3.8 cubic feet using the current procedure could evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. Based on these considerations, and the waivers granted to LG and other manufacturers for similar models, it appears likely that the petition for waiver will be granted. DOE also believes that the energy efficiency of similar products should be tested and rated in the same manner. As a result, DOE grants an interim waiver to LG for the basic models of clothes washers with container volumes greater than 3.8 cubic feet specified in its petition for waiver, pursuant to 10 CFR 430.27(g) . DOE also provides for the use of an alternative test procedure extending the linear relationship between test load size and container capacity, described below. Therefore,
The application for interim waiver filed by LG is hereby granted for the specified LG clothes washer basic models, subject to the specifications and conditions below.
LG shall be required to test and rate the specified clothes washer products according to the alternate test procedure as set forth in section III, “Alternate Test Procedure.”
The interim waiver applies to the following basic residential model groups:
DOE makes decisions on waivers and interim waivers for only those models specifically set out in the petition, not future models that may be manufactured by the petitioner. LG may submit a subsequent petition for waiver and request for grant of interim waiver, as appropriate, for additional models of clothes washers for which it seeks a waiver from the DOE test procedure. In addition, DOE notes that grant of an interim waiver or waiver does not release a petitioner from the certification requirements set forth at 10 CFR part 429.
EPCA requires that manufacturers use DOE test procedures to make representations about the energy consumption and energy consumption costs of products covered by the statute. (42 U.S.C. 6293(c)) Consistent representations are important for manufacturers to use in making representations about the energy efficiency of their products and to demonstrate compliance with applicable DOE energy conservation standards. Pursuant to its regulations applicable to waivers and interim waivers from applicable test procedures at 10 CFR 430.27, DOE will consider setting an alternate test procedure for LG in a subsequent Decision and Order.
The alternate procedure approved today is intended to allow LG to make valid representations regarding its clothes washers with basket capacities larger than provided for in the current test procedure. This alternate test procedure is based on the expanded Table 5.1 of Appendix J1 that appears in DOE's clothes washer test procedure NOPR (75 FR 57556, Sept. 21, 1010), altered slightly to correct rounding errors as specified in DOE's supplemental proposal issued on July 26, 2011.
During the period of the interim waiver granted in this notice, LG shall test its clothes washer basic models according to the provisions of 10 CFR part 430 subpart B, appendix J1, except that the expanded Table 5.1 below shall be substituted for Table 5.1 of appendix J1.
Through today's notice, DOE announces receipt of LG's petition for waiver from certain parts of the test procedure that apply to clothes washers and grants an interim waiver to LG. DOE is publishing LG's petition for waiver in its entirety pursuant to 10 CFR 430.27(b)(1)(iv), 430.401(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure to measure the energy consumption of clothes washers with capacities larger than the 3.8 cubic feet specified in the current DOE test procedure.
DOE solicits comments from interested parties on all aspects of the petition. Pursuant to 10 CFR 430.27(b)(1)(iv), 430.401(c)(1), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is John I. Taylor, Vice President, Government Relations and Communications, LG Electronics USA, Inc., 1776 K Street NW., Washington, DC 20006.
All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).
LG Electronics, Inc. (LG) respectfully submits this Petition for Waiver and Application for Interim Waiver, pursuant to 10 C.F.R. § 430.27, as related to DOE's test procedure for clothes washers. DOE has already granted LG waivers relating to testing of certain models. 76 Fed. Reg. 70999 (Nov. 16, 2011); id. 64330 (Oct. 18, 2011); id. 21879 (April 19, 2011); id. 11228 (March 1, 2011); id. 11233 (March 1, 2011); 75 Fed. Reg. 71680 (Nov. 24, 2010). The current Petition and Application would expand the number of models subject to the grant of a waiver.
LG is a manufacturer of clothes washers and other products sold worldwide, including in the United States. LG's U.S. operations are LG Electronics USA, Inc., with headquarters at 1000 Sylvan Avenue, Englewood Cliffs, NJ 07632 (tel. 201–
The test procedure under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. § 6291 et seq., provides for clothes washers to be tested with specified allowable test load sizes. See 10 C.F.R. Pt. 430, Subpt. B, App. Jl, Table 5.1. The largest average load under Table 5.1 is 9.20 lbs. LG believes that it is appropriate for DOE to grant a waiver that would allow for testing and rating of specified models (see Appendix 1 hereto) with larger test loads where the model has a container volume that is greater than the largest volume shown on Table 5.1.
DOE has already granted waivers and/or interim waivers to a number of manufacturers, including LG, Whirlpool, General Electric, Samsung, and Electrolux for testing with larger test loads for specified models with container volumes in excess of 3.8 cubic feet. See, e.g., 76 Fed. Reg. 70999 (Nov. 16, 2011) (LG); id. 70996 (Nov. 16, 2011) (Samsung); id. 64330 (Oct. 18, 2011) (LG); id. 48149 (Aug. 8, 2011) (Samsung); id. 21879 (April 19, 2011 (LG); id. 21881 (April 19, 2011) (Samsung); id. 13169 (March 10, 2011) (Samsung); id. 11440 (March 2, 2011) (Electrolux); id. 11228 (March 1, 2011) (LG); id. 11233 (March 1, 2011) (LG); 75 Fed. Reg. 81258 (Dec. 27, 2010) (Electrolux); id. 76968 (Dec. 10, 2010) (GE); id. 71680 (Nov. 24, 2010) (LG); id. 57915 (Sept. 23, 2010) (GE); id. 57937 (Sept. 23, 2010) (Samsung); id. 69653 (Nov. 15, 2010) (Whirlpool); id. 76962 (Dec. 10, 2010) (Electrolux); id. 76968 (Dec. 10, 2010) (GE); id. 81258 (Dec. 27, 2010) (Electrolux); 71 Fed. Reg. 48913 (Aug. 22, 2006) (Whirlpool). The Association of Home Appliance Manufacturers (AHAM) has submitted comments to DOE suggesting that the DOE test procedure be amended to provide for testing with loads in excess of those shown in Table 5.1 when testing is done on clothes washers with volumes in excess of 3.8 cubic feet. See AHAM Comments on the Framework Document for Residential Clothes Washers; EERE–2008–BT–STD–0019; RIN 1904–AB90, at Appendix B—AHAM Proposed Changes to J1 Table 5.1 (Oct. 2, 2009). In addition, DOE has issued a Notice of Proposed Rulemaking proposing to amend the DOE test procedure to adopt the AHAM proposed Table 5.1. 75 Fed. Reg. 57556 (Sept. 21, 2010). And it has issued Supplemental Notices of Proposed Rulemakings to the same effect. 76 Fed. Reg. 69870 (Nov. 9, 2011); id. 49238 (Aug. 9, 2011). Further, DOE has issued a guidance document indicating the appropriateness of waivers for testing with larger test loads for clothes washers with volumes in excess of 3.8 cubic feet. DOE, IGC Enforcement Guidance on the Application of Waivers and on the Waiver Process (Dec. 23, 2010), at
LG requests that DOE grant a waiver for testing and rating based on the revised Table 5.1 in Appendix 2 hereto. This is the Table 5.1 as already set forth in the waivers granted to LG for certain models. See 76 Fed. Reg. 70999 (Nov. 16, 2011); id. 64330 (Oct. 18, 2011); id. 21879 (April 19, 2011); id. 11228 (March 1, 2011); id. 11233 (March 1, 2011); 75 Fed. Reg. 71680 (Nov. 24, 2010). The revised Table 5.1 should be applied to LG's testing and rating of other models as specified in Appendix 1 hereto.
The waiver should continue until DOE adopts an applicable amended test procedure.
LG also requests an interim waiver for its testing and rating of the foregoing models. The petition for waiver is likely to be granted, as evidenced not only by its merits, but also because DOE has granted waivers and/or interim waivers to LG, Whirlpool, GE, Samsung, and Electrolux and has proposed a corresponding amendment to its test procedure. Hence, grant of an interim waiver for LG is appropriate.
We would be pleased to discuss this request with DOE and provide further information as needed.
LG requests expedited treatment of the Petition and Application. In that regard, DOE has stated in its December 23, 2010 Enforcement Guidance (supra) that it “commits to act promptly on waiver requests.” LG repeated this in its March 7, 2011 notice concerning its certification, compliance and enforcement rule. 76 Fed. Reg.12422, 12442 (“The Department renews its commitment to act swiftly on waiver requests”).
We hereby certify that all manufacturers of domestically marketed units of the same product type have been notified by letter of this petition and application, copies of which letters are set forth in Appendix 3 hereto.
The waiver and interim waiver requested herein should apply to testing and rating of the following model series of LG-manufactured clothes washers. Please note that the actual model numbers will vary to account for such factors as year of manufacture, product color, or other features. Nonetheless, they will always have volumes in excess of 3.8 cubic feet.
(In the chart below, “#” represents a number; “*” represents a letter.)
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing
Take notice that the Commission received the following electric rate filings:
Comments Due: 5 p.m. ET 2/29/12.
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission has received two preliminary permit applications deemed filed on May 3, 2011, at 8:30 a.m.,
On February 22, 2012, at 9:00 a.m. (Eastern Time), the Secretary of the Commission, or her designee, will conduct a random drawing to determine the filing priority of the applicants identified in this notice. The Commission will select among competing permit applications as provided in section 4.37 of its regulations.
The drawing is open to the public and will be held in room 2C, the Commission Meeting Room, located at 888 First St. NE., Washington, DC 20426. A subsequent notice will be issued by the Secretary announcing the results of the drawing.
The Commission has received two preliminary permit applications deemed filed on May 3, 2011, at 8:30 a.m.,
On February 22, 2012, at 9 a.m. (Eastern Time), the Secretary of the Commission, or her designee, will conduct a random drawing to determine the filing priority of the applicants identified in this notice. The Commission will select among competing permit applications as provided in section 4.37 of its regulations.
The drawing is open to the public and will be held in room 2C, the Commission Meeting Room, located at 888 First St. NE., Washington, DC 20426. A subsequent notice will be issued by the Secretary announcing the results of the drawing.
The Commission has received two preliminary permit applications deemed filed on April 1, 2011, at 8:30 a.m.,
On February 22, 2012, at 9 a.m. (Eastern Time), the Secretary of the Commission, or her designee, will conduct a random drawing to determine the filing priority of the applicants identified in this notice. The Commission will select among competing permit applications as provided in section 4.37 of its regulations.
The drawing is open to the public and will be held in room 2C, the Commission Meeting Room, located at 888 First St. NE., Washington, DC 20426. A subsequent notice will be issued by the Secretary announcing the results of the drawing.
Take notice that on February 6, 2012, Williston Basin Interstate Pipeline Company (Williston Basin), 1250 West Century Avenue, Bismarck, North Dakota 58503, filed in Docket No. CP12–57–000, an application pursuant to section 157.21 of the Commission's Regulations under the Natural Gas Act (NGA) as amended, to replace natural gas compression facilities at its Elk Basin compressor station in Park County, Wyoming, under Williston Basin's blanket certificate issued in Docket No. CP82–487–000
Williston Basin proposes to replace two natural gas-fired 225-horsepower (HP) compressor units installed in 1941, two natural gas-fired 330–HP compressor units installed in 1950, and one natural gas-fired 1,100–HP compressor unit installed in 1970 with one electric-driven 2,500–HP compressor unit. Williston Basin states that the new 2,500–HP electric compressor unit will also increase the certificated horsepower at the Elk Basin compressor station from 4,610 HP to 4,900 Hp. Williston Basin estimates that the proposed electric replacement compressor unit would cost $8,706,486 to install.
Any questions concerning this application may be directed to Keith A. Tiggelaar, Director of Regulatory Affairs, Williston Basin Interstate Pipeline Company, 1250 West Century Avenue, Bismarck, North Dakota 58503, telephone (701) 530–1560 or Email:
This filing is available for review at the Commission or may be viewed on the Commission's web site at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA.
Environmental Protection Agency (EPA).
Notice of decision granting an authorization and waiver of preemption for California's mobile cargo handling equipment regulation at ports and intermodal rail yards.
Pursuant to section 209(e) of the Clean Air Act (Act), 42 U.S.C. 7543(e), EPA is granting California its request for authorization to enforce it emission standards and other requirements for its mobile cargo handling equipment regulation. To the extent that the mobile cargo handling equipment regulation pertains to the control of emissions from new motor vehicles or new motor vehicle engines
Under 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by April 23, 2012. Under 307(b)(2) of the Act, judicial review of this final action may not be obtained in subsequent enforcement proceedings.
EPA has established a docket for this action under Docket ID EPA–HQ–OAR–2010–0862. All documents relied upon in making this decision, including those submitted to EPA by CARB, and public comments, are contained in the public docket. Publicly available docket materials are available either electronically through
EPA's Office of Transportation and Air Quality (“OTAQ”) maintains a Web page that contains general information on its review of California waiver requests. Included on that page are links to prior waiver
David Dickinson, Attorney-Advisor, Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J) NW., Washington, DC 20460. Telephone: (202) 343–9256. Fax: (202) 343–2800. Email:
In a letter dated January 29, 2007, the California Air Resources Board (CARB) submitted to EPA its waiver and authorization request pursuant to section 209 of the Clean Air Act (CAA or Act), regarding its regulations for Mobile Cargo Handling Equipment at Ports and Intermodal Rail yards (Mobile Cargo Handling Equipment or CHE).
EPA published a
CARB has requested that EPA grant a waiver of preemption or grant a new authorization for certain portions of its CHE regulations. For other portions of its CHE regulation, CARB has requested that EPA find the requirements fall within the scope of a previously granted waiver or authorization, or in the alternative grant a new waiver of preemption or authorization. Finally, for one portion of its CHE regulation, CARB has requested that EPA find the requirements are not preempted by section 209 of the Clear Air Act, that if EPA finds they are preempted, the requirements fall within the scope of a previously granted waiver or, in the alternative, EPA grant a new waiver of preemption.
CARB's CHE regulations set performance standards for engines equipped in newly purchased, leased, or rented (collectively known as “newly acquired”), as well as in-use, mobile cargo handling equipment used at ports or intermodal rail yards in California. The standards vary depending on the type of vehicle, whether the engine is used in off-road equipment or a vehicle registered as an on-road motor vehicle, and whether they are newly acquired or already in-use.
Yard trucks and other mobile cargo handling equipment registered to operate on California highways acquired after January 1, 2007 must be equipped with engines that are certified to the on-road engine emission standards for the model year in which they are acquired.
Any yard truck not registered for on-road operation (off-road yard trucks) acquired after January 1, 2007 must be equipped either with an engine certified to the on-road emission standards for the model year in which it is acquired or the final Tier-4 off-road emission
Engines in newly acquired CHE other than yard trucks that are not registered for on-road operation (non-yard trucks) must—if technically feasible and available for purchase, lease, or rental—meet one of two certification standards: (1) The on-road engine certification standards or (2) the off-road Tier 4 certification standards for the model year and rated power of the engine. Alternatively, if neither of the options is feasible or available, a newly acquired non-yard truck must be equipped with an engine that is certified to the most stringent off-road engine emission standards for the type of vehicle and application for the model year in which it is acquired. In addition, under this alternative, within one year of acquiring the vehicle, the owner or operator must install the highest level verified diesel emission control strategy (VDECS) that is approved by CARB and available for that engine. If no VDECS is verified by CARB and available by the end of the one-year period, the owner or operator must install the highest level VDECS within six months after one becomes available.
For in-use yard trucks, whether on-road or off-road, the regulations require they meet one of three compliance options: such vehicles must (1) be certified to the 2007 or later model year on-road engine standards; (2) be certified to Tier 4 off-road standards; or (3) apply VDECS that reduce emissions to levels that comply with diesel PM and NOx emissions of a certified final Tier 4 off-road diesel engine for the same power rating.
The date by which each in-use yard truck in an owner or operator's fleet must be brought into compliance depends on the number of trucks in the fleet, the model year of the trucks, whether the trucks are equipped with on-road or off-road engines, and whether the engines were equipped with VDECS by December 31, 2006.
For in-use non-yard trucks, the regulations identify and establish separate requirements for three categories or vehicles: Basic cargo handling equipment, bulk cargo handling equipment and rubber-tired gantry (RTG) cranes. Basic cargo handling equipment consists of top handlers, side handlers, reach stackers, forklifts, straddle carriers and any other type of equipment (other than RTG cranes) that handles cargo containers. Bulk cargo handling equipment consists of dozers, loaders, excavators, mobile cranes, sweepers, railcar movers, aerial lifts and any other type of equipment (except forklifts) that handles non-containerized or bulk cargo.
For all three categories of in-use non-yard trucks, vehicles can be brought into compliance using any of three options. Option 1 is the same for all three categories: Use of an engine or power system—including diesel, alternative fueled, or heavy-duty pilot ignition engine—certified to the 2007 or later model year on-road or Tier 4 off-road engine standards for the rated power and model year of the engine.
Option 2 two is identical for basic cargo handling equipment and bulk cargo handling equipment, but varies slightly for RTG cranes. Basic cargo handling equipment and bulk cargo handling equipment must comply by installing a pre-2007 model year certified on-road engine or a certified Tier 2 or Tier 3 off-road engine and applying the highest level VDECS that is certified for the specific engine family and model year. However, if no Level 2 or higher VDECS is available, the engine must be upgraded to either a certified Tier 4 off-road engine or a Level 3 VDECS must be installed by December 31, 2015.
Under option 2, RTG cranes use a certified Tier 2 or Tier 3 off-road engine and the highest VDECS available but, in contrast to basic and bulk cargo handling equipment, need not upgrade, regardless of whether or not the highest VDECS available was Level 2 or below.
Option 3 is similar for both basic and bulk cargo handling equipment. Basic cargo handling equipment may comply using a pre-Tier 1 or a Tier 1 off-road engine equipped with the highest level VDECS available. However, if the highest level VDECS available is not Level 3 or higher, the engine must be upgraded to either a certified Tier 4 off-road engine or a Level 3 VDECS by December 31, 2015. For bulk cargo handling equipment, the requirements of this option are the same except an upgrade is required if no Level 2 or higher VDECS is initially available. Lastly, under the option 3, RTG cranes may comply using a pre Tier 1 or certified Tier 1 off-road engine equipped with the highest level VDECS available. However, if no VDECS is available or the highest level VDECS is a Level 1 or 2, then the RTG crane engine must be replaced with a Tier 4 certified off-road engine or a Level 3 VDECS must be installed by the later of December 31, 2015 or December 31st of the model year of the initially compliant engine plus 12 years.
The date by which each in-use non-yard truck in an owner or operator's fleet must be brought into compliance depends on the size and model-year composition of the in-use non-yard trucks in the fleet
By letter dated July 26, 2004, CARB requested that EPA grant California a waiver of federal preemption for its 2007 California Heavy Duty Diesel Engines Standards, which primarily align California's standards and test procedures with the federal standards and test procedures for 2007 and subsequent model year heavy-duty motor vehicles and motor vehicle engines.
On July 18, 2008, CARB notified EPA of additional regulations and amendments to its new nonroad compression ignition engine regulations. EPA determined that a portion of those regulations fell within the scope of the previously granted authorization and granted a new authorization for the remainder of the regulations.
Section 209(a) of the Clean Air Act preempts states and local governments from setting emission standards for new motor vehicles and engines. It provides:
No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No state shall require certification, inspection or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
If California amends regulations that were previously granted a waiver of preemption, EPA can confirm that the amended regulations are within the scope of the previously granted waiver if three conditions are met. These conditions for confirming a within-the-scope request are discussed below.
Section 209(e)(1) of the Act permanently preempts any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain new nonroad engines or vehicles. Section 209(e)(2) of the Act requires the Administrator to grant California authorization to enforce its own standards for new nonroad engines or vehicles which are not listed under section 209(e)(1), subject to certain restrictions. On July 20, 1994, EPA promulgated a rule that sets forth, among other things, the criteria, as found in section 209(e)(2), which EPA must consider before granting any California authorization request for new nonroad engine or vehicle emission standards. On October 8, 2008, the regulations promulgated in that rule were moved to 40 CFR part 1074, and modified slightly. The applicable regulations, 40 CFR § 1074.105, provide:
(a) The Administrator will grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as otherwise applicable federal standards.
(b) The authorization will not be granted if the Administrator finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling and extraordinary conditions.
(3) The California standards and accompanying enforcement procedures are not consistent with section 209 of the Act.
(c) In considering any request from California to authorize the state to adopt or enforce standards or other requirements relating to the control of emissions from new nonroad spark-ignition engines smaller than 50 horsepower, the Administrator will give appropriate consideration to safety factors (including the potential increased risk of burn or fire) associated with compliance with the California standard.
In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from state regulation under section 209(e)(1). To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Pursuant to section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if she finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. Previous decisions granting waivers and authorizations have noted that state standards are inconsistent with section 202(a) if: (1) There is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time, or (2) the federal and state testing procedures impose inconsistent certification requirements.
EPA can confirm that amended regulations are within the scope of a previously granted waiver of preemption or authorization if three conditions are met. First, the amended regulations must not undermine California's determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable federal standards. Second, the amended regulations must not undermine our previous determination with respect to consistency with section 202(a) of the Act. Third, the amended regulations must not raise any new issues affecting EPA's prior waiver determinations.
In
The court upheld the Administrator's position that, to deny a waiver, there must be `clear and compelling evidence' to show that proposed procedures undermine the protectiveness of California's standards.
With respect to the consistency finding, the court did not articulate a standard of proof applicable to all proceedings, but found that the opponents of the waiver were unable to meet their burden of proof even if the standard were a mere preponderance of the evidence. Although
Opponents of the waiver bear the burden of showing that the criteria for a denial of California's waiver request have been met. As found in
EPA sought comment on a range of issues, including whether certain or all of CARBs CHE regulation should be evaluated under the within the scope criteria or under the criteria for a full authorization and waiver of preemption. EPA did not receive any comments contending that any portions of the CHE regulations should be subjected to full waiver or authorization analysis.
CARB maintains that its requirements for newly acquired
CARB also maintains that its requirements for newly acquired off-road yard trucks should be analyzed under the within the scope criteria since the compliance options involve either the use of a 2007 and later MY on-highway heavy-duty diesel engine (and thus the same within the scope rationale noted above) or the use of an engine meeting the final Tier 4 off-road engine standards which EPA previously authorized.
In addition to the requirements associated with newly acquired mobile cargo handling equipment, the CHE regulations also set forth in-use performance standards applicable to non-new yard and non-yard trucks. To the extent the in-use standards apply to yard and non-yard trucks registered on-road, CARB maintains such requirements are not preempted by section 209(a) of the Act and therefore do not require a waiver from EPA. To the extent the in-use standards apply to non-new off-road yard and non-yard trucks (those not registered for on-road operation) CARB requests a full authorization from EPA.
Despite CARB's contentions, EPA has determined that California's CHE regulations to the extent they apply to nonroad engines require a full authorization and to the extent they apply to new motor vehicles or new motor vehicle engines require a full waiver of preemption. While CARB acknowledges their CHE requirements are standards relating to the control of emissions they nevertheless suggest that such standards have either been previously waived or authorized by EPA. However, the analysis does not end there. The United States Supreme Court's interpretation of “standard relating to the control of emissions from new motor vehicles or new motor vehicle engines” in
Therefore, with respect to newly acquired yard and non-yard trucks EPA will evaluate such requirements under the full waiver criteria. Similarly, for newly acquired off-road yard and non-yard trucks EPA will evaluate such requirements under the full authorization criteria.
In addition to the extent the CHE in-use standards apply to yard and non-yard trucks registered on-road EPA agrees with CARB's assessment that such requirements are not preempted by section 209(a) of the Act (which only applies to “new” motor vehicles and “new” motor vehicle engines) and therefore do not require a waiver from EPA. Lastly, to the extent the in-use standards apply to non-new off-road yard and non-yard trucks (those not registered for on-road operation) EPA will evaluate such requirements under the full authorization criteria as requested by CARB.
Section 209(b)(1)(A) of the Act requires EPA to deny a waiver if the Administrator finds that California was
Similarly, section 209(e)(2)(i) of the Act instructs that EPA cannot grant an authorization if the Administrator finds that CARB was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards.
EPA previously found that CARBs regulations establishing emission standards for 2007 and subsequent model year heavy duty on-road diesel engines are as protective of the public health and welfare as comparable federal standards.
EPA previously found that CARB's regulations for new nonroad Tier 4 engines are at least as protective of the public health and welfare as comparable federal standards.
No commenter expressed an opinion or presented any evidence suggesting that CARB was arbitrary and capricious in making its above-noted protectiveness findings. Therefore, based on the record, EPA cannot find that California was arbitrary and capricious in its findings that California's CHE requirements are, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.
Under section 209(b)(1)(B) of the Act, EPA cannot grant a waiver if California “does not need such State standards to meet compelling and extraordinary conditions.” To evaluate this criterion, EPA considers whether California needs a separate motor vehicle emissions program to meet compelling and extraordinary conditions.
Similarly, section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an authorization if the Administrator finds that California does not need such standards to meet compelling and extraordinary conditions. This criterion restricts EPA's inquiry to whether California needs its own mobile source pollution program to meet compelling and extraordinary conditions, and not whether any given standards are necessary to meet such conditions.
Over the past forty years, CARB has repeatedly demonstrated the need for its motor vehicle emissions program to address compelling and extraordinary conditions in California.
Under section 209(b)(1)(C) of the Act, EPA must deny a California waiver request if the Agency finds that California standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act. The scope of EPA's review under this criterion is narrow. EPA has stated on many occasions that the determination is limited to whether those opposed to the waiver have met their burden of establishing that California's standards are technologically infeasible, or that California's test procedures impose requirements inconsistent with federal test procedures. Previous waivers of federal preemption have stated that California's standards are not consistent with section 202(a) if there is inadequate lead time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that time. California's accompanying enforcement procedures would be inconsistent with section 202(a) if the federal and California test procedures conflict,
Similarly, Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant an authorization if California's standards and enforcement procedures are not consistent with section 209. As described above, EPA has historically evaluated this criterion for consistency with sections 209(a), 209(e)(1), and 209(b)(1)(C).
As noted above, EPA considers CARB's nonroad authorization requests under certain criteria including whether CARB's requirements are consistent with section 209(a) of the Act (to be consistent with section 209(a) of the Clean Air Act, California's requirements must not apply to new motor vehicles or engines). However, in this instance California's CHE requirements affect both new motor vehicles and engines along with affecting nonroad vehicles and engines. To the extent the CHE requirements do affect motor vehicles and engines (CHE motor vehicle requirements) CARB explicitly requests a waiver of preemption under section 209(b) rather than an authorization under section 209(e)(2). EPA is evaluating the CHE motor vehicle requirements under section 209(b). The
No commenter presented otherwise; therefore, EPA cannot deny California's authorization request on the basis that California's CHE requirements are not consistent with section 209(a).
To be consistent with section 209(e)(1) of the Clean Air Act, California's CHE nonroad requirements must not affect new farming or construction vehicles or engines that are below 175 horsepower, or new locomotives or their engines. CARB presents that CHE equipment is not used in farm and construction equipment or vehicles or engines used in locomotives.
As noted above, EPA's evaluation of CARB nonroad authorization requests (e.g. the CHE nonroad requirements) includes consideration of whether their requirements are consistent with section 209(b)(1)(C) of the Act. In addition, EPA's evaluation of CARB waiver requests (e.g., the CHE motor vehicle requirements) includes consideration of whether their requirements are consistent with section 209(b)(1)(C). Under section 209(b)(1)(C) of the Act, EPA must deny a California request if the Agency finds that California standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act. The scope of EPA's review under this criterion is narrow. EPA has stated on many occasions that the determination is limited to whether those opposed to the waiver have met their burden of establishing that California's standards are technologically infeasible, or that California's test procedures impose requirements inconsistent with federal test procedures. Previous waivers of federal preemption have stated that California's standards are not consistent with section 202(a) if there is inadequate lead time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that time. California's accompanying enforcement procedures would be inconsistent with section 202(a) if the federal and California test procedures conflict, i.e., if manufacturers would be unable to meet both the California and federal test requirements with the same test vehicle.
CARB states that the CHE regulations are consistent with section 202(a). CARB states that the technological feasibility of the emission requirements related to yard trucks registered for operation on-road is not disputed since such vehicles need only meet the 2007 on-road engines standards previously waived by EPA. CARB's CHE regulations do not change the underlying test procedures for on-road engines. CARB notes that newly acquired non-yard trucks registered for operation on-road are similar to yard trucks noted above in terms of applicable emission standards and test procedures.
With respect to off-road yard and non-yard trucks CARB notes that the applicable emission standards (either the 2007 on-road standards previously waived by EPA or the Tier 4 nonroad standards previously authorized by EPA) are technologically feasible. CARB also notes that to the extent operators use option 3 (the use of a lower tier engine if option 1 and 2 are not available, and the subsequent installation of VDECS) it is feasible given the number of VDECS verified to date.
EPA received comment from SSAT noting problems with “post 07 yard truck issues” and challenges associated with non-yard trucks and VDECs. With respect to the yard truck issue it appears that SSAT is concerned that it is only able to use a certain manufacturer's engine and such engine has exhaust gas leak issues that includes disabling the EGR system. SSAT contends that it is dealing with a 25% failure rate. CARB notes in response that the exact nature of the failure rate at the terminals is unclear and its conclusions seem to be based on opinion rather than any data in the record. CARB surmises the problem may be associated with maintenance or operational practices. SSAT provided no further explanation as to why the engine it identified is the only usable engine. Based on the limited information submitted by SSAT, and as CARB notes the fact that 38 other terminals have voluntarily acquired new yard trucks equipped with new on-road CI engines with none reporting EGR problems and none submitting comment to EPA, we find that opponents of the waiver have not met their burden of proof to demonstrate that the new yard truck emission standards are infeasible or otherwise inconsistent with section 202(a).
With regard to non-yard trucks EPA received comment from SSAT and Ports America regarding the use of VDECS for compliance.
CARB provides several responses to concerns of improper operating and plugging VDECS. CARB notes that nine Level 3 emission control devices have been verified for non-yard truck applications and that at least 77 VDECS have been installed on a wide-variety of vehicle applications. CARB understands that while excess soot may plug some VDECS there is strong evidence to suggest that fleet owners are not properly performing manual regeneration or that improper sizing of VDECS with engines may be occurring. This coupled with a lack of concrete information and data from the commenters causes CARB to suggest that a showing of infeasibility had not been shown.
CARB also notes that to the extent the use of VDECS is not available its compliance extension provisions provide ample opportunity for fleet operators to comply with the CHE regulations. CARB responds to the commenters' suggestion that the compliance extension provisions are
Based on the lack of concrete evidence from the commenters that it has incurred unreasonable delays or other difficulties making its compliance with the CHE regulations infeasible, EPA cannot deny CARB's request based on the infeasibility of CARB's compliance provisions.
Finally, with regard to the costs associated with VDECS the commenters note “The cost of [VDECS] typically cost 40k each dropped 50% on `some' systems when the economy took a down turn. We are looking at spending millions of dollars to one or two vendors who charge whatever they feel they can get away with.” CARB replies by noting that nowhere do the commenters assert that the costs make the CHE regulation infeasible. CARB notes that the nature or port terminals and intermodal railroads make them multimillion-dollar businesses with highly polluting equipment. Without hard evidence from the commenters as to why the costs render the regulations infeasible, CARB suggests that costs are a policy question for CARB to consider when adopting the regulation and that EPA should follow its historical practice of deference.
EPA notes that it is required to closely examine costs when making a determination of whether there is evidence in the record to support a finding that CARB's regulations are technologically infeasible. In this instance there is insufficient evidence in the record to demonstrate why the costs of VDECS are inappropriately high when compared to the costs of the underlying vehicles or why the costs are otherwise inappropriately prohibitive. Therefore, based on the record, EPA cannot make a finding that CARB's CHE regulations are inconsistent with section 202(a) based on considerations of costs.
As noted above, EPA's consideration of the consistency with section 202(a) includes a review of whether California's test procedures impose requirements inconsistent with federal test procedures. Because CARB's test procedures are incorporated in previously waived and authorized regulations (e.g., the Tier 4 nonroad standards and the 2007 heavy-duty diesel engine regulations) and such regulations harmonize their test procedures with applicable federal test procedures CARB maintains there is no test procedure inconsistency. We have received no comments presented otherwise; therefore, based on the record before me I cannot deny CARB's request based on a lack of test procedure consistency.
EPA's analysis finds that the criteria for granting a full authorization and a full waiver of preemption have been met for CARB's CHE regulations.
The Administrator has delegated the authority to grant California a section 209(b) waiver to enforce its own emission standards for new motor vehicles and engines and to grant California a section 209(e) authorization to enforce its own emission standards for nonroad engines and equipment to the Assistant Administrator for the Office of Air and Radiation. Having given consideration to all the material submitted for this record, and other relevant information, I find that I cannot make the determinations required for a denial of a waiver request pursuant to section 209(b) of the Act nor can I make the determination required for a denial of an authorization pursuant to section 209(e) of the Act. Therefore I grant both a waiver of preemption and authorization to the State of California with respect to its CHE regulations as set for the above.
My decision will affect not only persons in California but also manufacturers outside the State who must comply with California's requirements in order to produce engines for sale in California. For this reason, I determine and find that this is a final action of national applicability for purposes of section 307(b)(1) of the Act.
Pursuant to section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by April 23, 2012. Judicial review of this final action may not be obtained in subsequent enforcement proceedings, pursuant to section 307(b)(2) of the Act.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities.
Further, the Congressional Review Act, 5 U.S.C. 801
Equal Employment Opportunity Commission.
Notice of Information Collection—Extension Without Change: Demographic Information on Applicants for Federal Employment.
In accordance with the Paperwork Reduction Act, the Equal Employment Opportunity Commission (EEOC or Commission) announces that it intends to submit to the Office of Management and Budget (OMB) a request for a one-year extension of the Demographic Information on Applicants, OMB No. 3046–0046.
Written comments on this notice must be submitted on or before April 23, 2012.
Comments should be sent to the Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC 20507. As a convenience to commenters, the Executive Secretariat will accept comments totaling six or fewer pages by facsimile (“FAX”) machine. This limitation is necessary to assure access to the equipment. The telephone number of the fax receiver is (202) 663–4114. (This is not a toll-free number). Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663–4070 (voice) or (202) 663–4074 (TTY). (These are not toll-free
Veta Hurst, Federal Sector Programs, Office of Federal Operations, 131 M Street NE., Washington, DC 20507, (202) 663–4498 (voice); (202) 663–4593 (TTY). Copies of this notice are available in the following alternate formats: large print, Braille, electronic computer disk, and audio-tape. Requests for this notice in an alternate format should be made to the Publications Center at 1–800–699–3362 (voice), 1–800–800–3302 (TTY), or (301) 206–9789 (FAX—this is not a toll free number). A copy of the form may be accessed on the EEOC's Web site at
Pursuant to the Paperwork Reduction Act of 1995 and OMB regulation
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the Commission's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
While several federal agencies (or components of such agencies) have obtained OMB approval for the use of forms collecting data on the race, national origin, sex, and disability status of applicants, it is not an efficient use of government resources for each federal agency to separately seek OMB approval. Accordingly, in order to avoid unnecessary duplication of effort and a proliferation of forms, the EEOC seeks approval of a form that may be used by all (?) federal agencies.
Response by applicants is optional. The information obtained will be used by federal agencies only for evaluating whether an agency's recruitment activities are effectively reaching all segments of the relevant labor pool and whether the agency's selection procedures allow all applicants to compete on a level playing field regardless of race, national origin, sex, or disability status. The voluntary responses are treated in a highly confidential manner and play no part in the job selection process. The information is not provided to any panel rating the applications, to selecting officials, to anyone who can affect the application, or to the public. Rather, the information is used in summary form to determine trends over many selections within a given occupational or organization area. No information from the form is entered into an official personnel file.
Because of the predominant use of online application systems, which require only pointing and clicking on the selected responses, and because the form requests only eight questions regarding basic information, the EEOC estimates that an applicant can complete the form in approximately 3 minutes or less.
For the Commission.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Federal Deposit Insurance Corporation
Federal Election Commission.
Notice of adjustments to expenditure limitations and lobbyist bundling disclosure threshold.
As mandated by provisions of the Federal Election Campaign Act of 1971, as amended (“FECA” or “the Act”), the Federal Election Commission (“FEC” or “the Commission”) is adjusting certain expenditure limitations and the lobbyist bundling disclosure threshold set forth in the Act, to index the amounts for inflation. Additional details appear in the supplemental information that follows.
Ms. Elizabeth S. Kurland, Information Division, 999 E Street NW., Washington, DC 20463; (202) 694–1100 or (800) 424–9530.
Under the Federal Election Campaign Act of 1971, 2 U.S.C. 431
Under 2 U.S.C. 441a(c), the Commission must adjust the expenditure limitations established by 2 U.S.C. 441a(d) (the limits on expenditures by national party committees, state party committees, or their subordinate committees in connection with the general election campaign of candidates for Federal office) annually to account for inflation. This expenditure limitation is increased by the percent difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 1974).
Both the national and state party committees have an expenditure limitation for each general election held to fill a seat in the House of Representatives in states with more than one congressional district. This limitation also applies to those states and territories that elect individuals to the office of Delegate or Resident Commissioner.
Both the national and state party committees have an expenditure limitation for a general election held to fill a seat in the Senate or in the House of Representatives in states with only one congressional district. The formula used to calculate this expenditure limitation considers not only the price index but also the voting age population (“VAP”) of the state. The VAP of each state is published annually in the
The national party committees have an expenditure limitation for their general election nominee for President. The formula used to calculate the Presidential expenditure limitation considers not only the price index but also the total VAP of the United States. The Department of Commerce also publishes the total VAP of the United States annually in the
For the convenience of the readers, the Commission is also republishing the contribution limitations for individuals, non-multicandidate committees and for certain political party committees giving to U.S. Senate candidates for the 2011–2012 election cycle:
The Act requires certain political committees to disclose contributions bundled by lobbyists/registrants and lobbyist/registrant political action committees once the contributions exceed a specified threshold amount. The Commission must adjust this threshold amount annually to account for inflation. The disclosure threshold is increased by multiplying the $15,000 statutory disclosure threshold by 1.11578, the difference between the price index, as certified to the Commission by the Secretary of Labor, for the 12 months preceding the beginning of the calendar year and the price index for the base period (calendar year 2006). The resulting amount is rounded to the nearest multiple of $100.
On behalf of the Commission.
Federal Election Commission.
Notice of filing dates for special election.
Arizona has scheduled elections on April 17, 2012, and June 12, 2012, to fill the U.S. House seat in the 8th Congressional District vacated by Representative Gabrielle Giffords.
Committees required to file reports in connection with the Special Primary Election on April 17, 2012, shall file a 12-day Pre-Primary Report. Committees required to file reports in connection with both the Special Primary and Special General Election on June 12, 2012, shall file a 12-day Pre-Primary Report, a 12-day Pre-General Report, and a 30-day Post-General Report.
Ms. Elizabeth S. Kurland, Information Division, 999 E Street NW., Washington, DC 20463; Telephone: (202) 694–1100; Toll Free (800) 424–9530.
All principal campaign committees of candidates who participate in the Arizona Special Primary and Special General Elections shall file a 12-day Pre-Primary Report on April 5, 2012; a 12-day Pre-General Report on May 31, 2012; and a 30-day Post-General Report on July 12, 2012. (See chart below for the closing date for each report).
All principal campaign committees of candidates participating
Political committees filing on a quarterly basis in 2012 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Arizona Special Primary or Special General Election by the close of books for the applicable report(s). (See chart below for the closing date for each report).
Committees filing monthly that make contributions or expenditures in connection with the Arizona Special Primary or General Elections will continue to file according to the monthly reporting schedule.
Additional disclosure information in connection with the Arizona Special Election may be found on the FEC Web site at
Principal campaign committees, party committees and Leadership PACs that are otherwise required to file reports in connection with the special elections must simultaneously file FEC Form 3L if they receive two or more bundled contributions from lobbyists/registrants or lobbyist/registrant PACs that aggregate in excess of the lobbyist bundling disclosure threshold during the special election reporting periods (see charts below for closing date of each period). 11 CFR 104.22(a)(5)(v).
The lobbyist bundling disclosure threshold for calendar year 2011 was $16,200. This threshold amount may change in 2012 based upon the annual cost of living adjustment (COLA). Once the adjusted threshold amount becomes available, the Commission will publish it in the
On behalf of the Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 16, 2012.
A. Federal Reserve Bank of Atlanta (Clifford Stanford, Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309:
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Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, email your request, including your address, phone number, OMB number, and OS document identifier, to
ONC expects to interview 100 individuals for the pretest survey as part of the initial implementation year and interview 2,000 individuals for the main survey administered annually for 5 years. The estimated annualized respondent burden is 842 hours.
For more information regarding an Estimated Annual Respondent Burden specifically for cognitive testing please refer to OMB Control No: 0990–0376, Communications Testing for Comprehensive Communication Campaign for HITECH Act (expiration date 07/31/2014; ICR Reference No: 201106–0990–005).
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 and send comments to Kimberly Lane CDC Reports Clearance Officer, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Evaluating the Effectiveness of Occupational Safety and Health Program Elements in the Wholesale Retail Trade Sector—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety and health at work for all people through research and prevention. Under Public Law 91–596, sections 20 and 22 (Section 20–22, Occupational Safety and Health Act of 1970), NIOSH has the responsibility to conduct research to advance the health and safety of workers. In this capacity, NIOSH proposes to conduct a study to assess the effectiveness of occupational safety and health (OSH) program elements in the wholesale/retail trade (WRT) sector.
Liberty Mutual has estimated direct workers compensation costs to industry in the United States in 2009 to be $50 billion. The WRT industry sector employs over 21 million workers or 19% of the workforce in private industry. In 2007, the majority of non-fatal injuries and illnesses involving days away from work in the WRT sector involved musculoskeletal disorders (MSDs, 29%) or slip/trip/falls (STFs, 22%). For this reason, major strategic NIOSH goals in the WRT sector are to reduce MSDs, STFs and other injuries/illnesses in part by assessing the effectiveness of occupational safety and health (OSH) programs designed to prevent these outcomes. There is some evidence that OSH prevention programs built on key elements (management leadership, employee participation, hazard identification and control, medical management, training, and program evaluation) reduce losses. However, little evidence exists on the relative effectiveness of program elements compared to each other. There is a need for research to develop reliable OSH program metrics and determine which elements have the greatest impact on injuries, illnesses and work disability. A renewed partnership between NIOSH and the Ohio Bureau of Workers Compensation (OBWC) provides a timely opportunity to conduct such research in a relevant and efficient manner.
A collaborative study involving NIOSH and the OBWC will examine the association between survey-assessed OSH program elements (organizational policies, procedures, practices) and workers compensation (WC) injury/illness outcomes in a stratified sample of OBWC-insured wholesale/retail trade (WRT) firms. Crucial OSH program elements with particularly high impact on WC losses will be identified in this study and disseminated to the WRT sector. This study will provide important information that is not currently available elsewhere on the effectiveness of OSH programs for the WRT sector. This project fits the mission of CDC–NIOSH to conduct scientific intervention effectiveness research to support the evidenced based prevention of occupational injuries and illnesses.
For this study, the target population includes United States WRT firms (North American Industry Classification System codes 42, 44, 45). The sampling frame includes OBWC-insured WRT firms in Ohio. The study sample includes OBWC-insured WRT firms who volunteer to participate in the OBWC–NIOSH research project.
The proposed research involves a firm-level survey of a series of organizational metrics considered to be potential predictors of injury and illness WC claim rates and duration in a stratified sample of OBWC-insured WRT firms in Ohio. There are expected to be up to 4,404 participants per year; surveys will be administered twice to the same firms in successive years (
An individual responsible for the OSH program at each firm will be asked to complete a survey that includes a background section related to respondent and company demographics and a main section where individuals will be asked to evaluate organizational metrics related to their firm's OSH program. The firm-level survey data will be linked to five years of retrospective injury and illness WC claims data and two years of prospective injury and illness WC claims data from OBWC to determine which organizational metrics are related to firm-level injury and illness WC claim rates. A nested study will ask multiple respondents at a subset of 60 firms to participate by completing surveys. A five-minute interview will be conducted with a 10% sample of non-responders (up to 792 individuals).
In order to maximize efficiency and reduce burden, a Web-based survey is proposed for the majority (95%) of survey data collection. Collected information will be used to determine whether a significant relationship exists between self-reported firm OSH elements and firm WC outcomes while controlling for covariates. Once the study is completed, benchmarking reports about OSH elements that have the highest impact on WC losses in the WRT sector will be made available through the NIOSH–OBWC Internet sites and peer-reviewed publications.
In summary, this study will determine the effectiveness of OSH program elements in the WRT sector and enable evidence-based prevention practices to be shared with the greatest audience possible. NIOSH expects to complete data collection in 2014. There is no cost to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
The Type of Information Collection Request, Use, Frequency, Affected Public and Total Respondents are described in the 60-day notice that published on December 16, 2011 (76 FR 78265) and are not repeated here. However, the Total Annual Responses, and Total Annual Hours have been revised to 331,178 and 1,805,301, respectively. In addition, the model notices associated with this information collection request are now available for public viewing and comments. The model notices were still under development when the 60-day notice published. In the interest of ensuring that the public is aware of the revised supporting materials and has additional time to review and comment on those materials, we are publishing this notice and are reopening the public comment period for 15 days.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by March 2, 2012:
1.
2.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This quarterly notice lists CMS manual instructions, substantive and interpretive regulations, and other
It is possible that an interested party may need specific information and not be able to determine from the listed information whether the issuance or regulation would fulfill that need. Consequently, we are providing contact persons to answer general questions concerning each of the addenda published in this notice.
Among other things, the Centers for Medicare & Medicaid Services (CMS) is responsible for administering the Medicare and Medicaid programs and coordination and oversight of private health insurance. Administration and oversight of these programs involves the following: (1) Furnishing information to Medicare and Medicaid beneficiaries, health care providers, and the public; and (2) maintaining effective communications with CMS regional offices, State governments, State Medicaid agencies, State survey agencies, various providers of health care, all Medicare contractors that process claims and pay bills, National Association of Insurance Commissioners (NAIC), health insurers, and other stakeholders. To implement the various statutes on which the programs are based, we issue regulations under the authority granted to the Secretary of the Department of Health and Human Services under sections 1102, 1871, 1902, and related provisions of the Social Security Act (the Act) and Public Health Service Act. We also issue various manuals, memoranda, and statements necessary to administer and oversee the programs efficiently.
Section 1871(c) of the Act requires that we publish a list of all Medicare manual instructions, interpretive rules, statements of policy, and guidelines of general applicability not issued as regulations at least every 3 months in the
While we are publishing the quarterly notice required by section 1871(c) of the Act, we will no longer republish duplicative information that is available to the public elsewhere. We believe this approach is in alignment with CMS' commitment to the general principles of the President's Executive Order 13563 released January 2011 entitled “Improving Regulation and Regulatory Review,” which promotes modifying and streamlining an agency's regulatory program to be more effective in achieving regulatory objectives. Section 6 of Executive Order 13563 requires agencies to identify regulations that may be “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand or repeal them in accordance with what has been learned.” This approach is also in alignment with the President's Open Government and Transparency Initiative that establishes a system of transparency, public participation, and collaboration.
Therefore, this quarterly notice provides only the specific updates that have occurred in the 3-month period along with a hyperlink to the full listing that is available on the CMS Web site or the appropriate data registries that are used as our resources. This information is the most current up-to-date information, and will be available earlier than we publish our quarterly notice. We believe the Web site list provides more timely access for beneficiaries, providers, and suppliers. We also believe the Web site offers a more convenient tool for the public to find the full list of qualified providers for these specific services and offers more flexibility and “real time” accessibility. In addition, many of the Web sites have listservs; that is, the public can subscribe and receive immediate notification of any updates to the Web site. These listservs avoid the need to check the Web site, as notification of updates is automatic and sent to the subscriber as they occur. If assessing a Web site proves to be difficult, the contact person listed can provide information.
This notice is organized into 15 addenda so that a reader may access the subjects published during the quarter covered by the notice to determine whether any are of particular interest. We expect this notice to be used in concert with previously published notices. Those unfamiliar with a description of our Medicare manuals should view the manuals at
Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance, Program No. 93.774, Medicare—Supplementary Medical Insurance Program, and Program No. 93.714, Medical Assistance Program.
On February 17, 2009, the President signed the American Recovery and Reinvestment Act of 2009 (Recovery Act), which establishes the Emergency Contingency Fund for State TANF Programs (Emergency Fund) as section 403(c) of the Social Security Act (the Act). This legislation provides up to $5 billion to help States, Territories, and Tribes in fiscal year (FY) 2009 and FY 2010 that have an increase in assistance caseloads and basic assistance expenditures, or in expenditures related to short-term benefits or subsidized employment. The Recovery Act made additional changes to TANF extending supplemental grants through FY 2010, expanding flexibility in the use of TANF funds carried over from one fiscal year to the next, and adding a hold-harmless provision to the caseload reduction credit for States and Territories serving more TANF families.
The Emergency Fund is intended to build upon and renew the principles of work and responsibility that underlie successful welfare reform initiatives. The Emergency Fund provides resources to States, Territories, and Tribes to support work and families during this difficult economic period.
On July 20, 2009 we issued a Program Instruction accompanied by the Emergency Fund Request Form (OFA–100), and instructions for jurisdictions to complete the OFA–100 to apply for emergency funds.
Failure to collect this data would compromise ACF's ability to monitor caseload and expenditure data that must increase in order for jurisdictions to receive awards under the Emergency Fund.
Documentation maintenance on financial reporting for the Emergency Fund is governed by 45 CFR 92.20 and 45 CFR 92.42.
ACF is planning to extend the information collection with the adjustment to the Estimated Annual Burden shown in the table below. Based on our projections for a lower Estimated Annual Burden, we have revised the Number of Responses per Respondent to 1 from its previous number of 5. Because the Number of Responses per Respondent has been revised, the Estimated Total Burden Hours is now 2,232, down from its previous number of 11,160.
State, Territory, and Tribal agencies administering the Temporary Assistance for Needy Families (TANF) Program that are applying for the Emergency Fund.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 milligrams (mg), were not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for ropinerole hydrochloride extended-release tablets, 3 mg, if all other legal and regulatory requirements are met.
Jay Sitlani, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6370, Silver Spring, MD 20993–0002, 301–796–3601.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is known generally as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the Agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (§ 314.162 (21 CFR 314.162)).
A person may petition the Agency to determine, or the Agency may determine on its own initiative, whether a listed drug was withdrawn from sale for reasons of safety or effectiveness. This determination may be made at any time after the drug has been withdrawn from sale, but must be made prior to approving an ANDA that refers to the listed drug (§ 314.161 (21 CFR 314.161)). FDA may not approve an ANDA that does not refer to a listed drug.
REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, are the subject of NDA 22–008, held by GlaxoSmithKline, and initially approved on June 13, 2008. REQUIP XL is indicated for the treatment of treatment of signs and symptoms of idiopathic Parkinson's disease.
REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, are currently listed in the “Discontinued Drug Product List” section of the Orange Book. GlaxoSmithKline has never marketed REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg. In previous instances (see, e.g., 72 FR 9763, 61 FR 25497), the Agency has determined that, for purposes of §§ 314.161 and 314.162, never marketing an approved drug product is equivalent to withdrawing the drug from sale.
Lachman Consultant Services, Inc. submitted a citizen petition dated April 1, 2009 (Docket No. FDA–2009–P–0170), under 21 CFR 10.30, requesting that the Agency determine whether REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, were withdrawn from sale for reasons of safety or effectiveness.
After considering the citizen petition and reviewing Agency records and based on the information we have at this time, FDA has determined under § 314.161 that REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, were not withdrawn for reasons of safety or effectiveness. The petitioner has identified no data or other information suggesting that REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, were withdrawn for reasons of safety or effectiveness. We have carefully reviewed our files for records concerning the withdrawal of REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, from sale. We have also independently evaluated relevant literature and data for possible postmarketing adverse events. We have found no information that would indicate that this product was withdrawn from sale for reasons of safety or effectiveness.
Accordingly, the Agency will continue to list REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to REQUIP XL (ropinerole hydrochloride) extended-release tablets, 3 mg, may be approved by the Agency as long as they meet all other legal and regulatory requirements for the approval of ANDAs. If FDA determines that labeling for this drug product should be revised to meet current standards, the Agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Providing Submissions in Electronic Format—Standardized Study Data.” This draft guidance establishes FDA's recommendation that sponsors and applicants submit nonclinical and clinical study data in a standardized electronic format. The draft guidance recognizes that standardized study data promotes the efficient review of this information. The purpose of this draft guidance is to promote the use of data standards for study data, and increase the number of standardized study data submissions to the Center for Drug Evaluation and Research, the Center for Biologics Evaluation and Research, and the Center for Devices and Radiological Health.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 23, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002 or the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852–1448. The guidance may also be obtained by mail by calling CBER at 1–800–835–4709 or 301–827–1800. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Kieu Pham, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 21, Rm. 4677, Silver Spring, MD 20993–0002, 301–796–1616, or
FDA is announcing the availability of a draft guidance for industry entitled “Providing Submissions in Electronic Format—Standardized Study Data.” FDA routinely receives submissions of the results of scientific studies, including clinical trials and animal studies. For many years, FDA has requested that clinical study data be submitted electronically because paper case report tabulations (CRTs) are universally recognized as being highly inefficient to support analysis and review. The data in paper CRTs are not machine-readable and therefore cannot be easily analyzed using modern analytic software. Although submission of clinical study data in electronic format has become relatively routine, these data are often submitted using nonstandard formats.
FDA has long recognized the advantage of standardizing study data, as have many sponsors and applicants. Data submitted in a standard electronic format are easier to understand, analyze, and review.
This draft guidance establishes FDA's recommendation that sponsors and applicants submit clinical and nonclinical study data in a standard electronic format. As sponsors and applicants move toward standardized electronic study data submissions, there is a need to understand FDA's expectations for such data submissions. This draft guidance provides FDA's current thinking on the submission of study data in a standard electronic format.
The draft guidance refers submitters to FDA's Study Data Standards Resource Web page at
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on submitting standardized study data in electronic format. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the
Interested persons may submit to the Division of Dockets Management (see
This draft guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 314 and 21 CFR part 312 have been approved under OMB control numbers 0910–0001 and 0910–0014, respectively. The collections of information in 21 CFR part 807, subpart E have been approved under 0910–0120; the collections of information in 21 CFR part 812 have been approved under 0910–0078; and the collections of information in 21 CFR part 814 have been approved under 0910–0231.
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a revised draft guidance for industry entitled “Drug Interaction Studies—Study Design, Data Analysis, Implications for Dosing, and Labeling Recommendations.” The revised draft guidance is intended to provide recommendations for sponsors of new drug applications (NDAs) and biologics license applications (BLAs) for therapeutic biologics regarding in vitro and in vivo studies of drug metabolism, drug transport, and drug-drug, or drug-therapeutic protein interactions.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this revised draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by May 21, 2012.
Submit written requests for single copies of the revised draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
FDA is announcing the availability of a revised draft guidance for industry entitled “Drug Interaction Studies—Study Design, Data Analysis, Implications for Dosing, and Labeling Recommendations.” Drug interactions can result when one drug alters the pharmacokinetics of another drug or its metabolites. Drug interactions also can reflect the additive nature of the pharmacodynamic effect of either drug when taken with the other drug. The main focus of this draft guidance is pharmacokinetic drug interactions. The revised draft guidance reflects the Agency's view that the pharmacokinetic interactions between an investigational new drug and other drugs should be defined during drug development, as part of an adequate assessment of safety and effectiveness. It is important to understand the nature and magnitude of drug-drug interactions for several reasons. Concomitant medications, dietary supplements, and some foods, such as grapefruit juice, may alter metabolism and/or drug transport abruptly in individuals who previously had been receiving and tolerating a particular dose of a drug. Such an abrupt alteration in metabolism or transport can change the known safety and efficacy of a drug.
The revised draft guidance provides recommendations for sponsors of NDAs and BLAs regarding in vitro and in vivo studies of drug metabolism, drug transport, and drug-drug, or drug-therapeutic protein interactions. Namely, the guidance describes in vitro study methodologies, criteria for in vivo studies, in vivo study design, and data analysis in the context of identifying potential drug interactions. The guidance also addresses the implications of drug interactions for dosing and labeling.
In the
This revised draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when
This revised draft guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR 201.57 have been approved under OMB control number 0910–0572.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry: Early Clinical Trials With Live Biotherapeutic Products: Chemistry, Manufacturing, and Control Information ” dated February 2012. The guidance provides certain Investigational New Drug Application (IND) sponsors with recommendations in connection with the submission of INDs for early clinical trials with live biotherapeutic products (LBPs). The guidance announced in this notice finalizes the draft guidance of the same title dated September 2010.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1–800–835–4709 or 301–827–1800. See the
Submit electronic comments on the guidance to
Benjamin A. Chacko, Center for Biologics Evaluation and Research (HFM–17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852–1448, 301–827–6210.
FDA is announcing the availability of a document entitled “Guidance for Industry: Early Clinical Trials With Live Biotherapeutic Products: Chemistry, Manufacturing, and Control Information” dated February 2012. The guidance provides certain IND sponsors with recommendations in connection with IND submissions for early clinical trials for LBPs in the United States. The guidance focuses on the chemistry, manufacturing, and control information that should be provided in an IND for early clinical trials evaluating LBPs. The guidance is applicable to INDs of LBPs, whether clinical trials are conducted commercially, in an academic setting, or otherwise.
In the
The guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
The guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 312 have been approved under 0910–0014.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “E7 Studies in Support of Special Populations: Geriatrics; Questions and Answers.” The guidance was prepared under the auspices of the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH). The questions and answers (Q&A) guidance addresses special considerations for the design and conduct of clinical trials of drugs likely to have significant use in the elderly. The Q&As are intended to provide guidance on the use of geriatric data to adequately characterize and represent the safety and efficacy of a drug for a marketing application, including data collected postmarketing.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of the guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002, or the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1–800–835–4709 or 301–827–1800. See the
Submit electronic comments on the guidance to
Regarding the guidance:
Regarding the ICH:
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for drug development among regulatory Agencies.
ICH was organized to provide an opportunity for tripartite harmonization initiatives to be developed with input from both regulatory and industry representatives. FDA also seeks input from consumer representatives and others. ICH is concerned with harmonization of technical requirements for the registration of pharmaceutical products among three regions: The European Union, Japan, and the United States. The six ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labour, and Welfare; the Japanese Pharmaceutical Manufacturers Association; the Centers for Drug Evaluation and Research and Biologics Evaluation and Research, FDA; and the Pharmaceutical Research and Manufacturers of America. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations (IFPMA).
The ICH Steering Committee includes representatives from each of the ICH sponsors and the IFPMA, as well as observers from the World Health Organization, Health Canada, and the European Free Trade Area.
In the
After consideration of the comments received and revisions to the guidance, a final draft of the guidance was submitted to the ICH Steering Committee and endorsed by the three participating regulatory Agencies in July 2010.
The Q&A guidance addresses special considerations for the design and conduct of clinical trials of drugs that are likely to have significant use in the elderly. The Q&As are intended to provide guidance on the use of geriatric data to adequately characterize and represent the safety and efficacy of a drug for a marketing application, including data collected postmarketing.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at
In compliance with the requirement for opportunity for public comment on proposed data collection projects (Section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104–13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
Comments are invited on: (a) The proposed collection of information for the proper performance of the functions of the Agency; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The purpose of the Rural Health Information Technology Network Development (RHITND) Program, authorized under the Public Health Service Act, Section 330A(f) (42 U.S.C. 254c) as amended by Section 201, Public Law 107–251 of the Health Care Safety Net Amendments of 2002, is to improve health care and support the adoption of Health Information Technology (HIT) in rural America by providing targeted HIT support to rural health networks. HIT plays a significant role in the advancement of the Department of Health and Human Services' (HHS) priority policies to improve health care delivery. Some of these priorities include: improving health care quality, safety, and efficiency, reducing disparities, engaging both patients and families in managing their health, enhancing care coordination, improving population and public health, and ensuring adequate privacy and security of health information.
The intent of RHITND is to support the adoption and use of electronic health records (EHR) in coordination with the ongoing HHS activities related to the Health Information Technology for Economic and Clinical Health (HITECH) Act (Pub. L. 111–5). This legislation provides HHS with the authority to establish programs to improve health care quality, safety, and efficiency through the promotion of health information technology, including EHR.
For this program, performance measures were drafted to provide data useful to the program and to enable HRSA to provide aggregate program data required by Congress under the Government Performance and Results Act (GPRA) of 1993 (Pub. L. 103–62). These measures cover the principal topic areas of interest to the Office of Rural Health Policy (ORHP), including: (a) Access to care; (b) the underinsured and uninsured; (c) workforce recruitment and retention; (d) sustainability; (e) health information technology; (f) network development; and (g) health-related clinical measures. Several measures will be used for this program. These measures will speak to ORHP's progress toward meeting the goals set.
The annual estimate of burden is as follows:
Email comments to
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding Information Collection Requests (ICRs), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of a revision to the following collection of information: 1625–0010, Defect/Noncompliance Report and Campaign Update Report. Our ICRs describe the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
Comments must reach the Coast Guard and OIRA on or before March 22, 2012.
You may submit comments identified by Coast Guard docket number [USCG–2011–1074 to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT) and/or to OIRA. To avoid
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The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12–140 on the West Building Ground Floor, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICRs are available through the docket on the Internet at
Ms. Kenlinishia Tyler, Office of Information Management, telephone 202–475–3652 or fax 202–475–3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202–366–9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collections. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collections; (2) the accuracy of the estimated burden of the Collections; (3) ways to enhance the quality, utility, and clarity of information subject to the Collections; and (4) ways to minimize the burden of the Collections on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICRs referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG 2011–1074, and must be received by March 22, 2012. We will post all comments received, without change, to
If you submit a comment, please include the docket number [USCG–2011–1074], indicate the specific section of the document to which each comment applies, providing a reason for each comment. If you submit a comment online via
You may submit comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
To view comments, as well as documents mentioned in this Notice as being available in the docket, go to
OIRA posts its decisions on ICRs online at
Anyone can search the electronic form of comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (76 FR 77243, December 12, 2011) required by 44 U.S.C. 3506(c)(2). That Notice elicited no comments.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit Information Collection Requests (ICRs) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collections of information: 1625–0014, Request for Designation and Exemption of Oceanographic Research Vessels and 1625–0088, Voyage Planning for Tank Barge Transits in the Northeast United States. Our ICRs describe the information we seek to collect from the public. Before submitting these ICRs to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before April 23, 2012.
You may submit comments identified by Coast Guard docket number [USCG–2012–0077] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
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The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12–140 on the West Building Ground Floor, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICRs are available through the docket on the Internet at
Ms. Kenlinishia Tyler, Office of Information Management, telephone 202–475–3652, or fax 202–475–3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202–366–9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collections. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collections; (2) the accuracy of the estimated burden of the Collections; (3) ways to enhance the quality, utility, and clarity of information subject to the Collections; and (4) ways to minimize the burden of the Collections on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise these ICRs or decide not to seek approval for the Collections. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG–2012–0077], and must be received by April 23, 2012. We will post all comments received, without change, to
If you submit a comment, please include the docket number [USCG–2012–0077], indicate the specific section of the document to which each comment applies, providing a reason for each comment. You may submit your comments and material online (
You may submit your comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
Anyone can search the electronic form of comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
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Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the Emergency Management Institute Course Evaluation Form, which is used to evaluate the quality of course deliveries, facilities, and instructors at the Emergency Management Institute (EMI).
Comments must be submitted on or before March 22, 2012.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 1800 South Bell Street, Arlington, VA 20598–3005, facsimile number (202) 646–3347, or email address
Federal Emergency Management Agency, DHS.
Committee Management; Request for Applicants for Appointment to the National Advisory Council.
The Federal Emergency Management Agency (FEMA) is requesting individuals who are interested in serving on the National Advisory Council (NAC) to apply for appointment. As provided for in the
The membership application period is from Friday, February 10, 2012 to Friday, March 9, 2012, 5 p.m. EST.
Applications for membership should be submitted by:
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Alexandra Woodruff, The Office of the National Advisory Council, Federal Emergency Management Agency (Room 832), 500 C Street SW., Washington, DC 20472–3100; telephone (202) 646–3746; fax (540) 504–2331; and email
The National Advisory Council (NAC) is an advisory committee established in accordance with the provisions of the
Qualified individuals interested in serving on the NAC are invited to apply for appointment by submitting a Resume or Curriculum Vitae (CV) to the Office of the National Advisory Council as listed in the
Appointees may be designated as Special Government Employees (SGE) as defined in section 202(a) of title 18, United States Code, or as a Representative appointment. Candidates selected for appointment as SGEs are required to complete a Confidential Financial Disclosure Form (Office of Government Ethics (OGE) Form 450). OGE Form 450 or the information contained therein may not be released to the public except under an order issued by a Federal court or as otherwise provided under the
The NAC will meet in plenary session approximately once per quarter. With respect to the quarterly meetings, it is anticipated that the Council will hold at least one teleconference meeting with public call-in lines. Members may be reimbursed for travel and per diem, and all travel for Council business must be approved in advance by the Designated Federal Officer. The Department of Homeland Security (DHS) does not discriminate in employment on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. DHS strives to achieve a widely diverse candidate pool for all of its recruitment actions. Registered lobbyists, current FEMA employees, Disaster Assistance Employees, FEMA Contractors, and potential FEMA Contractors will not be considered for membership.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Declaration of Owner and Declaration of Consignee When Entry is made by an Agent (CBP Forms 3347 and 3347A). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before March 22, 2012.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
When entry is made in a consignee's name by an agent who has knowledge of the facts and who is authorized under a proper power of attorney by that consignee, a declaration from the consignee on CBP Form 3347A,
CBP Forms 3347 and 3347A are authorized by 19 U.S.C. 1485(d) and are accessible at
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing collection of information: 1651–0098.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: NAFTA Regulations and Certificate of Origin. This is a proposed revision and extension of an information collection that was previously approved. CBP is proposing that this information collection be revised with a change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before March 22, 2012.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13; 44 U.S.C. 3505(c)(2)). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or recordkeepers from the collection of information (a total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
CBP Form 434,
The CBP Form 446,
CBP is also seeking approval of Form 447,
Office of Sustainable Housing and Communities, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Fiscal Year 2011 (FY 2011) Notice of Funding Availability (NOFA) for the Community Challenge Planning Grant Program (Challenge Grants). This announcement contains the consolidated names and addresses of this year's award recipients.
Dwayne S. Marsh, Office of Sustainable Housing and Communities, U.S. Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410–4500, telephone (202) 402–6316. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Service at (800) 877–8339.
The Community Challenge Planning Grant Program fosters reform and reduces barriers to achieving affordable, economically vital, and sustainable communities. Such efforts may include amending or replacing local master plans, zoning codes, and building codes, either on a jurisdiction-wide basis or in a specific neighborhood, district, corridor, or sector to promote mixed-use development, affordable housing, the reuse of older buildings and structures for new purposes, and similar activities with the goal of promoting sustainability at the local or neighborhood level. This Program also
The FY 2011 awards announced in this Notice were selected for funding in a competition posted on Grants.gov and HUD's Web site on July 27, 2011. Applications were scored and selected for funding based on the selection criteria in that NOFA. The amount appropriated in FY 2011 to fund the Challenge Grant Program was $30 million of which $1 million had been reserved for capacity support grants distributed separately. This notice announces the allocation of $28 million for Community Challenge Planning Grants, of which not less than $3 million is awarded to jurisdictions with populations of less than 50,000.
In accordance with Section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat.1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the 27 awards made under the competition in Appendix A to this document.
Office of Sustainable Housing and Communities, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Fiscal Year 2011 (FY 2011) Notice of Funding Availability (NOFA) for the Sustainable Communities Regional Planning Grant Program (Regional Grants). This announcement contains the consolidated names and addresses of this year's award recipients.
Dwayne S. Marsh, Office of Sustainable Housing and Communities, U.S. Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410–4500, telephone (202) 402–6316. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Service at (800) 877–8339.
The Sustainable Communities Regional Planning Grant Program (Program) supports metropolitan and multijurisdictional planning efforts that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments in a manner that empowers jurisdictions to consider the interdependent challenges of: (1) Economic competitiveness and revitalization; (2) social equity, inclusion, and access to opportunity; (3) energy use and climate change; and (4) public health and environmental impact. The Program places a priority on investing in partnerships, including nontraditional partnerships (e.g., arts and culture, recreation, public health, food systems, regional planning agencies and public education entities) that translate the Livability Principles (Section I.C.1) into strategies that direct long-term development and reinvestment, demonstrate a commitment to addressing issues of regional significance, use data to set and monitor progress toward performance goals, and engage stakeholders and
Funding from this Program will support the development and implementation of Regional Plans for Sustainable Development (RPSD) that:
a. Identify affordable housing, transportation, water infrastructure, economic development, land use planning, environmental conservation, energy system, open space, and other infrastructure priorities for the region;
b. Clearly define a single, integrated plan for regional development that addresses potential population growth or decline over a minimum 20-year time frame, sets appropriate 3- to 5-year benchmark performance targets, and delineates strategies to meet established performance goals;
c. Establish performance goals and measures that are, at a minimum, consistent with the Sustainability Partnership`s Livability Principles;
d. Use geo-coded data sets and other metrics in developing, implementing, monitoring, and assessing the performance goals of various reinvestment scenarios;
e. Provide detailed plans, maps, policies, and implementation strategies to be adopted by all participating jurisdictions over time to meet planning goals;
f. Prioritize projects that facilitate the implementation of the regional plan and identify responsible implementing entities (public, nonprofit, or private) and funding sources;
g. Show how the proposed plan will establish consistency with HUD, Department of Transportation (DOT), and Environmental Protection Agency (EPA) programs and policies, such as Consolidated Plans, Analysis of Impediments to Fair Housing Choice, Long Range Transportation Plans, Indian Housing Plans, and Asset Management Plans, including strategies to modify existing plans, where appropriate; and
h. Engage residents and other stakeholders substantively and meaningfully in the development of the shared vision and its implementation early and throughout the process, including communities traditionally marginalized from such processes, while accommodating limited English speakers, persons with disabilities, and the elderly.
The FY 2011 awards announced in this Notice were selected for funding in a competition posted on
In accordance with Section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the 29 awards made under the competition in Appendix A to this document.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the Fish and Wildlife Service (Service), have received an application from Mr. Banks Sewell of Belle Mina Farm Ltd. (applicant) for an enhancement of survival permit (permit) under the Endangered Species Act of 1973, as amended (Act). The permit application includes a proposed candidate conservation agreement with assurances (CCAA), between the applicant, the Land Trust of Huntsville and North Alabama, and the Service for the spring pygmy sunfish. The CCAA would be implemented at the Beaverdam—Moss Creek/Spring Complex within Limestone County, Alabama. We have made a preliminary determination that the proposed CCAA and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this preliminary determination is contained in a draft environmental action statement (EAS). We are accepting comments on the permit application, the proposed CCAA, and the draft EAS.
We must receive comments no later than March 22, 2012.
Persons wishing to review the application, the draft CCAA, and the draft EAS may obtain copies by request from Daniel Drennen, Mississippi Field Office, by phone at 601–321–1127, or via mail or email (see below). The application and related documents will also be available for public inspection, by appointment only, during normal business hours (8 a.m. to 4:30 p.m.) at the Jackson, Mississippi, Field Office (address listed below) or on our Web site at
Comments concerning the application, the draft CCAA, and the draft EAS should be submitted in writing, by one of the following methods:
Please refer to Permit number TE–40219A–0 when submitting comments.
Daniel Drennen, Fish and Wildlife Biologist, Mississippi Field Office, 601–321–1127. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We furnish this notice to provide the public, other State and Federal agencies, and interested Tribes an opportunity to review and comment on the permit application, including the draft CCAA and draft EAS. We specifically request information, views, and opinions from the public on the proposed Federal action of issuing a permit. Further, we solicit information regarding the adequacy of the permit application, including the proposed CCAA, as measured against our permit issuance criteria found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d).
Under a Candidate Conservation Agreement with Assurances, participating landowners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species that are proposed for listing under the Act, candidates for listing, or that may become candidates or proposed for listing. Candidate Conservation Agreements with Assurances (CCAAs), and the associated permits we issue under section 10(a)(l)(A) of the Act (16 U.S.C. 1531. et seq.), encourage private and other non-Federal property owners to implement conservation efforts for species by assuring property owners that they will not be subjected to increased land use restrictions if that species becomes listed under the Act in the future provided certain conditions are met. Application requirements and issuance criteria for permits through CCAAs are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d). See also our policy on CCAAs (64 FR 32 726; June 17, 1999).
The conservation of the spring pygmy sunfish (
The preferred habitat for the spring pygmy sunfish is clear and colorless to slightly stained spring water, spring runs, and associated spring-fed wetlands (Warren 2004). The species is highly localized within these spring pools and is found in association with patches of dense, filamentous submergent vegetation. Spring pygmy sunfish abundance is correlated with specific water quantity and quality parameters (i.e., water flow velocity, turbidity, and water temperatures) and certain associated species such as amphipods, isopods, spring salamanders, crayfish, and snails (Sandel, pers. comm., 2007).
On April 1, 2011, the Service published a 90-day finding on a petition to list the spring pygmy sunfish as endangered under the Act (76 FR 18138). The Service found that the petition presented substantial scientific or commercial information indicating that listing this species may be warranted, and announced the initiation of a formal status review. For further information on previous Federal actions regarding the species, please refer to the 90-day finding. As a result of our “substantial” 90-day finding, we are currently collecting and analyzing data to assess the species' status. At the end of the yearlong period, the Service will publish a finding, known commonly as a “12-month finding,” on whether or not listing is warranted. In accordance with court-approved settlement entered into last year with Wild Earth Guardians and the Center for Biological Diversity, if we determine that listing is warranted, our 12-month finding will include a proposed rule to list the spring pygmy sunfish under the Act.
The area to be covered under the proposed CCAA is approximately 3,200 acres within the Beaverdam Springs complex, owned by the applicant and located in Limestone County, Alabama. The proposed CCAA represents a significant milestone in the cooperative conservation efforts for this species and
The applicant agrees to implement conservation measures to address known threats to the spring pygmy sunfish. These measures will help protect the species in the near term and also minimize any incidental take of the species that might occur as a result of conducting other covered activities, if the species becomes listed under the Act in the future. Conservation measures to be implemented by the applicant include: (1) Maintaining up to a 150-foot vegetated buffer zone around Moss Spring Pond; (2) prohibiting cattle access to Moss Spring Pond and the buffer zone described above; (3) creating a protected area of approximately 150 acres, with a 100–150 foot vegetated buffer zone, within the Beaverdam Spring/Creek area, including a portion of “Lowe Ditch”; and (4) refraining from any deforestation, land clearing, industrial development, residential development, aquaculture, temporary or permanent ground water removal installations, stocked farm ponds, pesticide and herbicide use, and impervious surface installation without prior consultation with the Service and the Service's written agreement.
The Land Trust of Huntsville and North Alabama agrees: (1) To be responsible for all reporting requirements, including any changes to the monitoring when necessary for adaptive management; (2) to ensure that annual habitat analyses and site samplings are performed as specified by the CCAA; and (3) to provide funding for part or all of said monitoring activities.
The Service agrees to authorize the applicant to engage in incidental take of the spring pygmy sunfish consistent with this CCAA and to provide technical assistance, including management advice.
The term of the proposed CCAA and associated enhancement of survival permit is twenty (20) years. However, under a special provision of this CCAA, if at any time a 15-percent decline in the status of the species is determined, there will be a reevaluation of the conservation measures set forth in the CCAA. If such a reevaluation reflects a need to change the conservation measures, the revised measures will be implemented by the applicant, or the CCAA will be terminated and the permit surrendered.
When determining whether to issue the permit, we will consider a number of factors and information sources, including the project's administrative record, any public comments we receive, and the application requirements and issuance criteria for CCAAs contained in 50 CFR 17.22(d) and 17.32(d). We will also evaluate whether the issuance of the permit complies with section 7 of the Act by conducting an intra-Service consultation. Our decision to issue the permit will be based on the results of this consultation, as well as on the above findings, our regulations, and public comments.
The proposed CCAA also provides regulatory assurances to the applicant that, in the event of changed and/or unforeseen circumstances, we would not require additional conservation measures, or commitment of additional land, water, or resource use restrictions, beyond the level obligated in this agreement, without the consent of the applicant provided certain conditions are met.
We will evaluate this permit application, associated documents, and comments submitted thereon to determine whether the permit application meets the requirements of section 10(a)(1) of the Act, our regulations, and NEPA regulations at 40 CFR 1506.6. If we determine that the requirements are met, we will enter into the CCAA and issue a permit under section 10(a)(l)(A) of the Act to the applicant for take of the spring pygmy sunfish in accordance with the terms of the agreement. We will not make a final decision in this matter until after the end of the 30-day comment period, and we will fully consider all comments received during the comment period.
We provide this notice under both section 10(c) of the Act (16 U.S.C. 1531. et seq.) and its implementing regulations (50 CFR 17.22 and 17.32), and the National Environmental Policy Act (42 U.S.C 4371 et seq.) and its implementing regulations (40 CFR 1506.6).
All comments we receive become part of our administrative record in this matter. Requests for copies of comments will be handled in accordance with the Freedom of Information Act, Privacy Act, NEPA, and Service and Department of the Interior policies and procedures. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including personal identifying information—may be made available to the public at any time. While you may ask us to withhold your personal identifying information from public disclosure, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2–3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease CACA 50123 from West Coast Land Service. The petition was filed on time and was accompanied by all required rentals and royalties accruing from November 1, 2010, the date of termination.
Rita Altamira, Land Law Examiner, Branch of Adjudication, Division of Energy and Minerals, BLM California State Office, 2800 Cottage Way, W–1623, Sacramento, California 95825, (916) 978–4378.
No valid lease has been issued affecting the lands. The lessee has agreed to new lease terms for rentals and royalties at rates of $10 per acre or fraction thereof and 16
National Park Service, Department of the Interior.
Notice of Availability of the Final Environmental Impact Statement for the Extension of F–Line Streetcar Service to Fort Mason Center, San Francisco, California.
Pursuant to National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service announces availability of the Final Environmental Impact Statement (Final EIS) for the extension of the historic streetcar F-line from Fisherman's Wharf to the Fort Mason Center, in San Francisco, California.
The National Park Service (NPS) will execute a Record of Decision (ROD) not sooner than 30 days after publication in the
The Final EIS is available for public inspection as follows: at the Office of the Superintendent, Golden Gate National Recreation Area (Bldg. 201 Fort Mason, San Francisco, California), and at local public libraries as noted on the Project Web site
The proposed action would extend the historic streetcar F-line from Fisherman's Wharf to the San Francisco Maritime National Historical Park (SF Maritime NHP) and to the Fort Mason Center in the Golden Gate National Recreation Area (GGNRA). The intended effect of the proposed action is to provide park visitors and transit-dependent residents with high-quality rail transit that improves transportation access and mobility between existing streetcar service at Fisherman's Wharf and SF Maritime NHP and the Fort Mason Center in GGNRA, with connection to the regional transit rail services. The Final EIS evaluates potential environmental consequences of implementing the alternatives. Impact topics include the cultural, natural, and socioeconomic environments.
The proposed action is the culmination of a cooperative effort by the National Park Service, the San Francisco Municipal Transportation Agency (SFMTA), and the Federal Transit Administration. Studies from these agencies identified a need for improved regional and local transit connectivity between the identified urban national parks and existing transit infrastructure. Transit improvements between these parks would help accommodate existing and future visitor demand and enhance operational effectiveness. Based on the agency studies, conceptual approaches to address alternative transportation needs were identified and evaluated against the purpose and need of the project, park management objectives, and operability constraints.
Through an intensive public review process, two action alternatives were identified in addition to the No Action Alternative (Alternative 1)—the Preferred Action Alternative has two options for the track turnaround configuration (Alternatives 2A and 2B). Common elements of the Preferred Action Alternatives include the extension of approximately 0.85 mile of new rail track; associated features such as signals, crossings, wires and poles; approximately 8–9 new platforms; new designated stops; retrofitting of the historic State Belt Railroad tunnelFort Mason Tunnel: tunnel (Fort Mason Tunnel). The primary difference between Alternatives 2A and 2B involves the location in which the streetcar would turn around at the terminus of the proposed track extension. Under Alternative 2A, the streetcar would turn around via a loop in the Fort Mason Center parking lot (North Loop). Under Alternative 2B, the streetcar would turn around via a loop in the Great Meadow (South Loop).
The Draft EIS was made available for public review for 60 days (March 18–May 23, 2011); the full text and graphics were also posted on the NPS Planning, Environment and Public Comment Web site. A public open house on the proposed action was held on April 20, 2011, and attended by a total of 81 people, during which the Project team collected oral and written comments. In addition, throughout the review period, NPS received a total of 98 comment letters on the proposed action. The majority of those that commented on the Draft EIS supported the proposed action. The public's primary concerns about the preferred alternative included mitigating the loss of parking, displacement of street artist sales spaces, increased traffic congestion, noise and congestion near the Marina neighborhood, conflicts with other planned projects, and mitigating impacts to National Historic Landmark resources. Many also suggested various design ideas and other measures to help reduce these impacts.
In coordination with other affected agencies, and after considering all oral and written comments, the NPS prepared the Final EIS. The analysis revealed Alternative 1 (No Action) to be the Environmentally Preferred Alternative. Alternative 2 was found to be the superior alternative with Alternative 2A (North Loop) the preferred option for the Turnaround, and thus NPS's Final Preferred Action Alternative.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before January 21, 2012. Pursuant to section 60.13 of 36 CFR part 60, written comments are being
In the interest of preservation a three day comment period is requested for the following resource:
National Park Service, Interior.
Notice of availability.
Notice is hereby given that pursuant to the provisions of Section 2 of the Act of Sept 28, 1976, 16 U.S.C. 1901, and in accordance with the provisions of 36 CFR 9.17, Randy Elliott has filed a proposed plan of operations to conduct mining operations on lands embracing Mineral Survey No. 923, patented mineral property within Wrangell-St. Elias National Park and Preserve.
National Park Service, Alaska Regional Office—Natural Resources
Rick Obernesser, Superintendent, and Danny Rosenkrans, Senior Management Analyst, (907) 822–5234, Wrangell-St. Elias National Park and Preserve, PO Box 439, Copper Center, Alaska 99573.
30-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under Prospecting for Minerals Other than Oil, Gas, and Sulphur on the Outer Continental Shelf, and, in particular, that we are revising form BOEM–0134 to clarify requirements for environmental compliance.
Submit written comments by March 22, 2012.
Submit comments by either fax (202) 395–5806 or email (
Arlene Bajusz, Office of Policy, Regulations, and Analysis at
Section 1340 states that “* * * any person authorized by the Secretary may conduct geological and geophysical [G&G] explorations in the outer Continental Shelf, which do not interfere with or endanger actual operations under any lease maintained or granted pursuant to this Act, and which are not unduly harmful to aquatic life in such area.” Section 1352 further requires that certain costs be reimbursed to the parties submitting required G&G information and data. Regulations implementing these responsibilities are in 30 CFR Part 580 and are the responsibility of the Bureau of Ocean Energy Management (BOEM).
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104–133, 110 Stat. 1321, April 26, 1996), and the OMB Circular A–25, authorize Federal agencies to recover the full cost of services that confer special benefits. Prospecting permits are subject to cost recovery under Department of the Interior's implementing policy, and BOEM regulations specify service fees for these requests.
We use the information collected under these regulations to: (1) Ensure there is no environmental degradation, personal harm or unsafe operations and conditions; (2) ensure activities do not damage historical or archaeological sites or interfere with other uses; (3) analyze and evaluate preliminary or planned drilling activities; (4) monitor progress and activities in the OCS; (5) acquire G&G data and information collected under a Federal permit offshore; (6) determine eligibility for reimbursement from the Government for certain costs; and (7) determine the qualifications of applicants. BOEM also uses the information collected to understand the G&G characteristics of hard mineral-bearing physiographic regions of the OCS.
We will protect information considered proprietary according to 30 CFR 580.70, “What data and information will be protected from public disclosure?” 30 CFR 550.197, “Data and information to be made available to the public or for limited inspection,” 30 CFR part 552, “OCS Oil and Gas Information Program,” and the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2). No items of a sensitive nature are collected. Responses are mandatory.
In addition, § 580.80 provides the OMB control number for the information collection requirements imposed by the 30 CFR 580 regulation, informs the public that they may comment at any time on the collections of information, and provides the address to which they should send comments.
We again request comments on this information collection on: (1) Whether or not the collection of information is necessary, including whether or not the information is useful; (2) the accuracy of our estimate of the burden for this collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden on the respondents.
Bureau of Reclamation, Interior.
Notice.
The Bureau of Reclamation (Reclamation) is announcing the availability of its updated National Environmental Policy Act (NEPA) Handbook. This handbook is intended for use as guidance by Reclamation's NEPA practitioners. It provides a quick reference for existing laws, regulations, policies, and other guidance. It is a guidance document, and as such, does not create or alter any policy or otherwise implement any law and should not be cited as a source of authority. Reclamation is announcing the availability of its NEPA Handbook to assure transparency of its efforts to the public.
The updated Reclamation NEPA Handbook is available online at
Cathy Cunningham, Water and Environmental Resources Division, Bureau of Reclamation, P.O. Box 25007, Denver, Colorado 80225; telephone 303–445–2875.
Institution of Investigation Pursuant to 19 U.S.C. 1337
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on January 13, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Mondis Technology, Ltd., of London, England. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain video displays and products using and containing same by reason of infringement of certain claims of U.S. Patent No. 6,247,090 (“the `090 patent”) and U.S. Patent No. 7,089,342 (“the `342 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain video displays and products using and containing same
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Department of Justice.
Notice of a new system of records and removal of three systems of records notices.
Pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, and the Office of Management and Budget (OMB) Circular A–130, notice is hereby given that the Department of Justice (DOJ or Department) proposes to establish a new Department-wide system of records notice, entitled Debt Collection Enforcement System, JUSTICE/DOJ–016. The purpose of publishing this Department-wide system notice is to reflect the Department's consolidation of its multiple debt collection systems, which were previously maintained in various individual DOJ components, into a single, centralized system. The new system will be used by all DOJ components that currently have debt collection and enforcement responsibilities. The Department's consolidation of its debt collection systems enables the Department to improve data integrity, facilitate communication among DOJ components, support Department-wide debt collection initiatives, provide for better accountability and timely reporting, and centralize administrative functions and payment processing.
Because this system notice reflects the consolidation of existing DOJ debt collection and enforcement systems, this notice replaces, and the Department hereby removes the following system notices previously published by individual DOJ components:
1. Executive Office for United States Attorneys, “Debt Collection Enforcement System,” JUSTICE/USA–015 (71 FR 42118, Jul. 25, 2006);
2. Justice Management Division (JMD), “Debt Collection Management System,”
JUSTICE/JMD–006 (58 FR 60058, Nov. 12, 1993); and
3. JMD, “Debt Collection Offset Payment System,” JUSTICE/JMD–009 (62 FR 33438, Jun. 19, 1997).
Also, this notice now covers debt collection records that previously have been part of or included in the following systems of records notices:
1. Antitrust Division, “Antitrust Information Management Information System (AMIS)—Monthly Report,” JUSTICE/ATR–006 (63 FR 8659, Feb. 20, 1998) and “Antitrust Division Case Cards,” JUSTICE/ATR–007 (60 FR 52692, Oct. 10, 1995);
2. Civil Division, “Central Civil Division Case File System,” JUSTICE/CIV–001 (63 FR 8659, Feb. 20, 1998);
3. Civil Rights Division, “Central Civil Rights Division Index File and Associated Records,” JUSTICE/CRT–001 (68 FR 47611, Aug. 11, 2003);
4. Criminal Division, “Central Criminal Division Index File and Associated Records,” JUSTICE/CRM–001 (72 FR 44182, Aug. 7, 2007);
5. Environment and Natural Resources Division, “Environment and Natural Resources Division Case and Related Files,” JUSTICE/ENRD–003 (65 FR 8990, Feb. 23, 2000); and
6. Tax Division, “Criminal Tax Files, Special Project Files, Docket Cards and Associated Records,” JUSTICE/TAX–001 (71 FR 11447, Mar. 7, 2006) and “Tax Division Civil Tax Case Files, Docket Cards, and Associated Records,” JUSTICE/TAX–002 (71 FR 11449, Mar. 7, 2006).
In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is given a 30-day period in which to comment. Therefore, please submit any comments by March 22, 2012.
The public, Office of Management and Budget (OMB), and Congress are invited to submit any comments to the Department of Justice, ATTN: Privacy Analyst, Office of Privacy and Civil Liberties, Department of Justice, National Place Building, 1331 Pennsylvania Avenue NW., Suite 1000, Washington, DC 20530, or by facsimile at (202) 307–0693.
Holley B. O'Brien, Director, Debt Collection Management Staff (DCM), Justice Management Division, Department of Justice, 145 N Street, NE., Room 5E.101, Washington, DC 20530, at (202) 514–5343.
In accordance with 5 U.S.C. 552a(r) the Department has provided a report to OMB and Congress on the new system of records.
Debt Collection Enforcement System
Unclassified.
The Justice Data Center, Rockville, MD 20854; and the DOJ components and offices throughout the country that have debt collection and enforcement records and/or responsibilities, including the Antitrust Division, the Civil Division, the Civil Rights Division, the Criminal Division, the Justice Management Division (JMD) Debt Collection Management Staff (DCM), the Executive Office for United States Attorneys (EOUSA), the Environment and Natural Resources Division (ENRD), and the Tax Division. Records may also reside in offices of private counsel retained by DOJ pursuant to contract (contract private counsel) to assist with debt collection.
Individuals indebted to the United States who have either: (1) Allowed their debts to become delinquent and whose delinquent debts have been referred to a DOJ litigating division, a United States Attorney Office (USAO), or to contract private counsel retained by DOJ, for settlement or enforced collection through litigation; and/or (2) incurred debts assessed by a federal court, e.g., fines or penalties in connection with civil or criminal proceedings.
In addition, the categories of individuals covered by the system include persons who are authorized to access and use the system. These individuals are Department of Justice employees and contractors.
This system of records contains records relating to the negotiation, compromise, settlement, and litigation of debts owed the United States, as well as for any amounts that the United States is authorized by law to collect for the benefit of any person or entity. Records consist of debt collection case files, as well as automated and/or hard-copy supporting data, as summarized below.
Case files include: evidence of indebtedness, judgment, or discharge; court filings such as legal briefs, pleadings, judgments, orders, and settlement agreements; litigation reports and related attorney work product; and agency status reports, memoranda, correspondence, and other documentation developed during the negotiation, compromise, settlement and/or litigation of debt collection activities.
Automated and/or hard-copy supporting data include information extracted from the case file and information generated or developed in support of federal debt collection activities. Such information may include: personal data (e.g., name, social security number, date of birth, taxpayer identification number, locator information, etc.); claim details (e.g., value and type of claim, such as benefit overpayment, loan default, bankruptcy, etc.); demand information, settlement negotiations, and compromise offered; account information (e.g., debtors' payments, including principal, penalties, interest, and balances, etc.); information regarding debtors' employment, assets, ability to pay, property liens, etc.; data regarding debtors' loans or benefits from client agencies or other entities; information on the status and disposition of cases at various times; data related to the Treasury Offset Program (TOP), which includes offsets by the Internal Revenue Service against income tax refunds, offsets of the salaries and benefits of federal employees or members of the Armed Forces, and other administrative offsets; and any other information related to the negotiation, compromise, settlement, or litigation of debts owed the United States and others, or to the administrative management of debt collection efforts.
The system also contains records regarding authorized system users, including audit log information and records relating to verification or authorization of an individual's access to the system. This information includes user name, date and time of use, search terms and filters, results that the user accessed, and a user's permissions and authorizations for particular data at that time.
This system is established and maintained pursuant to the Debt Collection Act of 1982, Public Law 97–365, 96 Stat. 1749 (1982), as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C. 3701–3720E (original version at Pub. L. 104–134, 110 Stat. 132 (1996)), the Federal Debt Collection Procedures Act of 1990, 28 U.S.C. 3001–3307 (original version at Pub. L. 101–647, 104 Stat. 4933 (1990)), 28 U.S.C. 516, 28 U.S.C. 547, and 44 U.S.C. 3101. More specifically, 28 U.S.C. 516, 519, and 547 authorize the Attorney General to conduct litigation to collect delinquent debts due the United States. In addition, 31 U.S.C. 3718(b) authorizes the Attorney General to contract with private counsel to assist DOJ in collecting debts due the United States. The Attorney General is further authorized by 28 U.S.C. 3101 et seq. and 3201 et seq. to obtain both pre-judgment and post-judgment remedies against delinquent debtors. Moreover, under 28 U.S.C. 3201(a) and (e), a judgment against such a debtor creates a lien on all real property of the debtor, and renders that debtor ineligible for any grant or loan insured, financed, guaranteed, or made by the United States Government.
This system of records is maintained by the Department to cover records used by Department components or offices and/or contract private counsel to perform legal, financial, and administrative services associated with the collection of debts due the United States, including related negotiation, settlement, litigation, and enforcement efforts in accordance with the Debt Collection Act and related authority.
(a) Information from this system may be disclosed to any federal, state, local, territorial, foreign, or tribal agency, or to an individual or organization, if there is reason to believe that such agency, individual, or organization possesses information relating to the verification or collection of debts owed the United States Government, and if the disclosure seeks to elicit information from such entities: (a) Regarding the status of such debts, including settlement, litigation, or other collection efforts; (b) regarding the identification or location of such debtors; (c) regarding the debtor's ability to pay; or (d) relating to the civil action, trial, or hearing, and the disclosure is reasonably necessary to elicit such information or to obtain the cooperation of an agency, individual, or organization.
(b) Information may be disclosed to federal agencies pursuant to the Debt Collection Improvement Act and related authority for any purpose related to debt collection, including locating debtors for debt collection efforts and/or effecting remedies against monies payable to such debtors by the Federal Government. In accordance with computer matching or data sharing programs, information may be disclosed to federal agencies, including the Department of Treasury, Treasury Offset Program, to effect tax refund, salary, and/or administrative offset against federal payments to collect a delinquent debt owed the United States; to the Department of Treasury, Internal Revenue Service, Taxpayer Address
(c) Information from this system may be disclosed to client agencies who have referred outstanding debts to the DOJ for debt collection efforts including settlement or litigation, to notify such agencies of case developments, the status of accounts receivable or payable, case-related decisions or determinations, or to make such other inquiries and reports related to debt collection efforts.
(d) Information from this system may be disclosed to any federal agency that employs and/or pays pension, annuity, and/or other benefits to an individual who has been identified as a delinquent debtor for purposes of offsetting the individual's salary and/or pension, annuity, or other benefit payment received from that agency, when DOJ is responsible for the enforced collection of a judgment or claim against that person.
(e) Information from this system may be disclosed to any individual or organization requiring such information for the purpose of performing audit, oversight, and training operations of DOJ and to meet related reporting requirements.
(f) In accordance with regulations issued by the Secretary of the Treasury to implement the Debt Collection Improvement Act of 1996, information from this system may be disclosed to publish or otherwise publicly disseminate the identity of debtors and/or the existence of non-tax debts, in order to direct actions under the law toward delinquent debtors that have assets or income sufficient to pay their delinquent non-tax debts. However, such action may only be taken after reasonable steps have been taken to ensure the accuracy of the identity of a debtor, such debtor has had an opportunity to verify, contest, and pay (in whole or in part) a non-tax debt, and a review has been conducted by the Secretary of the Treasury or designee.
(g) Where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, territorial, tribal or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
(h) Information from this system may be disclosed in an appropriate proceeding before a court, grand jury, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(i) Information from this system may be disclosed to an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(j) Information from this system may be disclosed to appropriate officials and employees of a federal agency or entity that requires information relevant to a decision concerning the hiring, appointment, or retention of an employee; the assignment, detail, or deployment of an employee; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract, or the issuance of a grant or benefit.
(k) Information from this system may be disclosed to federal, state, local, territorial, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
(l) Information may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(m) Information may be disclosed to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(n) Information from this system may be disclosed to the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(o) Information from this system may be disclosed to the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(p) Information from this system may be disclosed to a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(q) Information from this system relating to health care fraud may be disclosed to private health plans, or associations of private health plans, and health insurers, or associations of health insurers, for the following purposes: to promote the coordination of efforts to prevent, detect, investigate, and prosecute health care fraud; to assist efforts by victims of health care fraud to obtain restitution; to enable private health plans to participate in local, regional, and national health care fraud task force activities; and to assist tribunals having jurisdiction over claims against private health plans.
(r) Information from this system may be disclosed to complainants and/or victims, to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(s) Information from this system may be disclosed to appropriate agencies, entities, and persons when (1) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or
(t) Information from this system may be disclosed to such recipients and under such circumstances and procedures as are mandated by federal statute or treaty.
Information from this system of records may be disclosed to a credit or consumer reporting agency, as such terms are used in the Fair Credit Reporting Act (15 U.S.C. 1681a–1681u) and the Debt Collection Act (31 U.S.C. 3701–3720E) when such information is necessary or relevant to federal debt collection efforts, including, but not limited to, obtaining a credit report on a debtor, payor, or other party-in-interest; reporting on debts due the Government; and/or pursuing the collection of such debts through settlement, negotiation, or litigation.
While in the custody of DOJ, certain records in this system are maintained in automated computer information systems and stored in electronic format for use or reproduction in documents or report form at various times. Other records in this system are maintained in paper format and stored in file cabinets, safes, and similar storage containers by the component and/or office enforcing the collection of the debt.
Data in this system of records may be retrieved by debtor names, other personal identifiers, or case numbers, through computerized queries and other keyword searches.
The Debt Collection Enforcement System security protocols meet multiple NIST Security Standards from authentication to certification and accreditation. Records in the Debt Collection Enforcement System are maintained in a secure, password protected electronic system environment that utilizes security hardware and software including: multiple firewalls, active intruder detection, and role-based access controls. Additional safeguards may vary by component.
Debt Collection Records maintained by DOJ Components are maintained in accordance with approved records retention schedules. The records (Master File) of the Department-wide debt collection system are maintained for seven years after close of the case. (N1–060–08–02)
For Debt Collection Management Staff/JMD information contact: FOIA/PA Contact, DOJ/Justice Management Division, 950 Pennsylvania Avenue NW., Room 1111, Washington, DC 20530–0001.
For Antitrust Division information contact: FOIA/PA Unit, DOJ/Antitrust Division, Liberty Square Building, Suite 1000, 450 Fifth Street NW., Washington, DC 20530–0001.
For Civil Division information contact: FOIA/PA Office, DOJ/Civil Division, Room 7304, 20 Massachusetts Avenue NW., Washington, DC 20530–0001.
For Civil Rights Division information contact: FOIA/PA Branch, DOJ/Civil Rights Division, 950 Pennsylvania Avenue NW., BICN, Washington, DC 20530–0001.
For Criminal Division information contact: FOIA/PA Unit, DOJ/Criminal Division, Keeney Building, Suite 1127, Washington, DC 20530–0001.
For Environment and Natural Resources Division information contact: FOIA/PA Office, Law and Policy Section, DOJ/ENRD, P.O. Box 4390, Ben Franklin Station, Washington, DC 20044–4390.
For Executive Office for United States Attorneys (United States Attorneys Offices) information contact: FOIA/PA Staff, DOJ/EOUSA, 600 E Street NW., Room 7300, Washington, DC 20530–0001. Contact information for the individual United States Attorneys Offices in the 94 Federal judicial districts nationwide can be located at
For Tax Division information contact: Assistant Attorney General, Tax Division, U.S. Department of Justice, 950 Pennsylvania Avenue NW., Washington, DC 20530.
Same as Record Access Procedures.
To the extent that information in this system of records is not subject to exemption, it is subject to access and amendment. A determination as to the applicability of an exemption to a specific record shall be made at the time a request for access is received. Requests for access must be in writing and should be addressed to the appropriate System Manager listed above. The envelope and letter should be clearly marked “Privacy Act Request” and comply with 28 CFR 16.41 (Requests for Access to Records). Access requests must contain the requester's full name, current address, date and place of birth, and should include a clear description of the records sought and any other information that would help to locate the record (e.g., name of the case and federal agency to whom the debtor is indebted). Access requests must be signed and dated and either notarized or submitted under penalty of perjury pursuant to 28 U.S.C. 1746.
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reasons for contesting it, and the proposed amendment to the information. Address such inquiries to the appropriate System Manager listed above. The envelope and letter should clearly be marked “Privacy Act Request” and comply with 28 CFR 16.46 (Request for Amendment or Correction of Records).
Sources of information contained in this system primarily consist of the individuals covered by the system; DOJ and/or agencies to whom the individual is indebted, seeks benefits, or has furnished information; attorneys or other representatives of debtors and/or payors; and Federal, state, local, tribal, territorial, foreign, or private organizations or individuals who may have information regarding the debt, the debtor's ability to pay, or any other information relevant or necessary to assist in debt collection efforts.
The Privacy Act authorizes an agency to promulgate rules to exempt a system of records (or parts of a system of records) from certain Privacy Act requirements. The Attorney General has exempted this system from subsections (c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (4) (G), (H), and (I), (5), and (8); (f); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) for any criminal law enforcement information within the system; in addition, the system is exempt pursuant to 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d)(1), (2), (3), and (4); (e)(1), (4)(G), (H), and (I); and (f). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553(b), (c), and (e) and have been published in today's
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), (19 U.S.C. 2273), the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on December 14, 2011, applicable to workers of Clow Water Systems Company, including on-site leased workers from Carol Harris Staffing, Coshocton, Ohio. The workers are engaged in activities related to the production of iron pipe and utility fittings. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. New information shows that McWane, Inc. is the parent firm of Clow Water Systems Company. Some workers separated from employment at the Coshocton, Ohio location of Clow Water Systems Company had their wages reported through a separate unemployment insurance (UI) tax account under the name McWane, Inc.
Accordingly, the Department is amending this certification to include workers of the subject firm whose unemployment insurance (UI) wages are reported through McWane, Inc. The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by increased imports of iron pipe and utility fittings.
The amended notice applicable to TA–W–80,463 is hereby issued as follows:
All workers of Clow Water Systems Company, including on-site leased workers from Carol Harris Staffing, including workers whose unemployment insurance (UI) wages are reported through McWane, Inc., Coshocton, Ohio, who became totally or partially separated from employment on or after September 23, 2010, through December 14, 2013, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on June 1, 2010, applicable to workers of Johnson Controls, including on-site leased workers from Kelly Services, Sycamore, Illinois. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers produce seating for automobiles.
The company reports that in the state of Illinois, Johnson Controls and Hoover Universal, Inc. are one and the same companies. Some workers separated from employment at the subject firm had their wages reported under a separate unemployment insurance (UI) tax account under the name Hoover Universal, Inc.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected as a secondary component supplier of automotive seating for an active TAA certified firm.
The amended notice applicable to TA–W–73,074 is hereby issued as follows:
”All workers of Johnston Controls, d/b/a Hoover Universal, Inc., including on-site leased workers from Kelly services, Sycamore, Illinois, who became totally or partially separated from who became totally or partially separated from employment on or after December 9, 2008, through June 1, 2012, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.”
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), (19 U.S.C. 2273), the Department of Labor issued a Revised Determination on Reconsideration on December 15, 2011, applicable to workers of Affinity Express, Inc., a wholly-owned subsidiary of LiveIT Investment, LTD, a member of Ayala Group of Companies, including on-site leased workers from Creative Group, Columbus, Ohio. The workers' firm supplies print and advertising services. The revised notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. New information shows that Staff Management, Inc. provides payroll services for the Columbus, Ohio location of Affinity Express, Inc., a wholly-owned subsidiary of LiveIT Investment, LTD, a member of the Ayala Group of Companies. Some workers separated from employment at the Columbus, Ohio location of the subject firm had their wages reported through a separate unemployment insurance (UI) tax account under the name Staff Management, Inc. Accordingly, the Department is amending this revised determination to include workers of the subject firm whose unemployment insurance (UI) wages are reported through Staff Management, Inc.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by the shift in services from a foreign country the supply of services that is like or directly competitive to the printing and advertising services supplied by the workers of the subject firm.
The amended notice applicable to TA–W–80,286 is hereby issued as follows:
All workers of Affinity Express, Inc., a wholly-owned subsidiary of LiveIT Investment, LTD, a member of the Ayala Group of Companies, including on-site leased workers from Creative Group, including workers whose unemployment insurance (UI) wages are reported through Staff Management, Inc., Columbus, Ohio, who became totally or partially separated from employment on or after July 12, 2010, through December 15, 2013, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA–W) number issued during the period of January 30, 2012 through February 3, 2012.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 2, 2012.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 2, 2012.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N–5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) (Act) the Department of Labor (Department) herein presents summaries of negative determinations on reconsideration regarding eligibility to apply for Trade Adjustment Assistance for workers by case (TA–W–) number regarding negative determinations issued during the period of February 13, 2011 through October 21, 2011. Notices of negative determinations were published in the
After careful review of the additional facts obtained, the following negative determinations on reconsideration have been issued.
I hereby certify that the aforementioned negative determinations on reconsideration were issued on January 30, 2012 through February 2, 2012. These determinations are available on the Department's Web site at
Millennium Challenge Corporation.
Notice.
In accordance with Section 610(b)(2) of the Millennium Challenge Act of 2003 (Pub. L. 108–199, Division D), the Millennium Challenge Corporation (MCC) is publishing a summary and the complete text of the Millennium Challenge Compact between the United States of America, acting through the Millennium Challenge Corporation, and the Republic of Cape Verde. Representatives of the United States Government and the Republic of Cape Verde executed the Compact documents on February 10, 2012.
The five-year, $66.2 million compact with the Government of Cape Verde (the “GoCV”) is aimed at reducing poverty through economic growth (the “Compact”). To this end, the Compact's two projects are intended to increase household incomes in project areas by reforming the water and sanitation and land management sectors, both critical constraints to economic growth.
To advance the goal of reducing poverty through economic growth, the Compact will fund two projects.
The $41.1 million
Cape Verde is an extremely water-scarce country, and relies heavily on desalinization of water, which is an expensive and energy-intensive process. The WASH sector is characterized by relatively poor levels of service, including intermittent water supply. In addition, domestic water consumption in Cape Verde is, at approximately 35 liters per day, half that of a low-income peer group of countries, and barely above subsistence levels; not surprising given that Cape Verde has the highest water tariff in Africa and among the highest in the world. The poor, and particularly female-headed households, are especially vulnerable as only 9% of poor households have access to the networked public water supply network. Additionally, Cape Verde is not on track to meet its Millennium Development Goal for sanitation. Low levels of water supply, combined with a population in which over 50% is without any access to improved sanitation services, results in significant public health problems, including diarrhea, malaria and dengue.
The GoCV has worked closely with MCC to develop an ambitious performance-based project. Through extensive consultation with civil society, private sector and government stakeholders, as well as MCC technical assistance, the Cape Verdean team
The $41.1 million project is expected to improve delivery of water and sanitation services to Cape Verdean households and firms. The approach to improving sector performance relies on a three-pronged strategy: (i) Reforming national policy and regulatory institutions; (ii) transforming inefficient utilities into autonomous corporate entities operating on a commercial basis; and (iii) improving the quality and reach of infrastructure in the sector.
The WASH Project comprises the following three activities:
•
•
•
No conclusive source of information about land property exists in Cape Verde. Research suggests that up to 92 percent of land rights claims in Cape Verde do not have the legal protection that would be accorded by proper rights registration. Two different land registries, judicial and municipal, each contain partial information about only a fraction of the country's land parcels. Additional records systems hold information about state-owned land. The information tends to be outdated and is often conflicting. No source contains map-based information indicating actual location of a parcel of land over which a right is claimed. Confusion over ownership and boundaries has resulted in unauthorized land sales and the delay or cancellation of public as well as private investment projects. Confusion also limits the ability of small firms and households to create value and increase incomes through investment in their property. When coupled with lengthy procedures across a range of institutions, inconclusive information also generates time-consuming and costly land rights registration processes for all land users, further hampering domestic and foreign investment and economic growth. Cape Verde ranks #104 out of 183 economies in the property registration indicator in the 2011 IFC Doing Business report.
The $17.3 million project is expected to improve Cape Verde's investment climate by: (i) Refining the legal, institutional, and procedural environment to increase the reliability of land information, achieve greater efficiency in land administration transactions, and to strengthen protection of land rights; (ii) developing and implementing a new land information management system; and (iii) clarifying parcel rights and boundaries on targeted islands with high investment potential.
The project supports the GoCV creating a single reliable and easily accessible source of land rights and land boundaries information, which is expected to strengthen Cape Verde's investment climate for large and small investors and to reduce land registration costs for all users. The project comprises two activities:
•
•
The Compact includes program administration costs estimated at $6.48 million over a five year timeframe, including the costs of administration, management, auditing, and fiscal and procurement services. In addition, the cost of monitoring and evaluation of the Compact is budgeted at $1.39 million.
The
The second part of the economic analysis considers the cost effectiveness of operating the Infrastructure Grant Facility to finance infrastructure investments among corporatized utilities. The expected ERR for the Infrastructure Grant Facility is 11 percent, with a wide variance because of the uncertainty regarding the number and types of projects to be financed, and the entities meeting the criteria. Any project financed under the facility must meet a minimum ERR of 12 percent. The analysis estimates that, on average, a population of 48,000, or just over 10 percent of the current national population, would benefit from the operation of the Infrastructure Grant Facility.
The ERR for the
Because tourism is a key economic driver, the projected tourism impact was selected as the most quantifiable ERR model with demonstrable and observable impact within a short to medium timeframe. Other potential benefits at the national level due to the legal and institutional change and new information systems, or other benefits to the 118,000 people living in the target islands beyond tourism impact, are not included in the ERR model, but will be tracked as part of the monitoring strategy and impact evaluation.
This Millennium Challenge Compact (this “
Recalling that the Parties successfully concluded an initial Millennium Challenge Compact that advanced the progress of Cape Verde in achieving lasting economic growth and poverty reduction, demonstrated the strong partnership between the Parties, and was implemented in accordance with MCC's core policies and standards;
Recognizing that the Parties are committed to the shared goals of promoting economic growth and the elimination of extreme poverty in Cape Verde and that MCC assistance under this subsequent Compact supports Cape Verde's demonstrated commitment to
Recalling that the Government consulted with the private sector and civil society of Cape Verde to determine the priorities for the use of MCC assistance and developed and submitted to MCC a proposal consistent with those priorities; and
Recognizing that MCC wishes to help Cape Verde implement a program to achieve the goal and objectives described herein (as such program description and objectives may be amended from time to time in accordance with the terms hereof, the “
The Parties hereby agree as follows:
The goal of this Compact is to reduce poverty through economic growth in Cape Verde (the “
The objectives of the Program are to reduce the costs upon the economy of inefficiently provided public services and to remove institutional conditions that impede private sector investment (the “
The objectives of the Projects (each a “
(a) The objective of the Water, Sanitation and Hygiene Project is to establish a financially sound, transparent, and accountable institutional basis for the delivery of water and sanitation services to Cape Verdean households and firms by: (i) Reforming national policy and regulatory institutions; (ii) transforming inefficient utilities into autonomous corporate entities operating on a commercial basis; and (iii) improving the quality and reach of infrastructure in the sector; and
(b) The objective of the Land Management for Investment Project is to reduce the time required for establishing secure property rights and to establish more conclusive land information in areas of near-term, high development potential in Cape Verde by: (i) Refining the legal, institutional and procedural environment to increase reliability of land information, achieve greater efficiency in land administration transactions, and strengthen protection of land rights; (ii) developing and implementing a new land information management system; and (iii) clarifying parcel rights and boundaries on targeted islands with high investment potential.
Upon entry into force of this Compact in accordance with Section 7.3, MCC shall grant to the Government, under the terms of this Compact, an amount not to exceed Sixty Two Million Two Hundred Thirty Thousand United States Dollars (US$62,230,000) (“
(a) Upon signing of this Compact, MCC shall grant to the Government, under the terms of this Compact and in addition to the Program Funding described in Section 2.1, an amount not to exceed Four Million United States Dollars (US$4,000,000) (“
(i) Financial management and procurement activities (including costs related to agents procured by MCC to provide standby fiscal and procurement agent services, if required);
(ii) Administrative activities (including start-up costs such as staff salaries) and administrative support expenses such as rent, computers and other information technology or capital equipment;
(iii) Monitoring and evaluation activities;
(iv) Feasibility studies; and
(v) Other activities to facilitate Compact implementation as approved by MCC.
The allocation of Compact Implementation Funding is generally described in Annex II.
(b) Each Disbursement of Compact Implementation Funding is subject to satisfaction of the conditions precedent to such disbursement as set forth in Annex IV.
(c) If MCC determines that the full amount of Compact Implementation Funding available under Section 2.2(a) exceeds the amount that reasonably can be utilized for the purposes set forth in Section 2.2(a), MCC, by written notice to the Government, may withdraw the excess amount, thereby reducing the amount of the Compact Implementation Funding available under Section 2.2(a) (such excess, the “
(d) MCC, at its option by written notice to the Government, may elect to grant to the Government an amount equal to all or a portion of such Excess CIF Amount as an increase in the Program Funding, and such additional Program Funding shall be subject to the terms and conditions of this Compact applicable to Program Funding.
Program Funding and Compact Implementation Funding are collectively referred to in this Compact as “
In accordance with this Compact and the Program Implementation Agreement, MCC shall disburse MCC Funding for expenditures incurred in furtherance of the Program (each instance, a “
The Government shall pay or transfer to MCC, in accordance with the Program Implementation Agreement, any interest or other earnings that accrue on MCC Funding prior to such funding being used for a Program purpose.
(a) Consistent with Section 609(b)(2) of the Act, the Government shall make a contribution towards meeting the
(b) The Government shall use its best efforts to ensure that all MCC Funding it receives or is projected to receive in each of its fiscal years is fully accounted for in its annual budget for the duration of the Program.
(c) The Government shall not reduce the normal and expected resources that it would otherwise receive or budget from sources other than MCC for the activities contemplated under this Compact and the Program.
(d) Unless the Government discloses otherwise to MCC in writing, MCC Funding shall be in addition to the resources that the Government would otherwise receive or budget for the activities contemplated under this Compact and the Program.
The Government shall ensure that MCC Funding is not used for any purpose that would violate United States law or policy, as specified in this Compact or as further notified to the Government in writing or by posting from time to time on the MCC Web site at
(a) For assistance to, or training of, the military, police, militia, national guard or other quasi-military organization or unit;
(b) For any activity that is likely to cause a substantial loss of United States jobs or a substantial displacement of United States production;
(c) To undertake, fund or otherwise support any activity that is likely to cause a significant environmental, health, or safety hazard, as further described in MCC's environmental and social assessment guidelines and any guidance documents issued in connection with the guidelines posted from time to time on the MCC Web site or otherwise made available to the Government (collectively, the “
(d) To pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions, to pay for the performance of involuntary sterilizations as a method of family planning or to coerce or provide any financial incentive to any person to undergo sterilizations or to pay for any biomedical research which relates, in whole or in part, to methods of, or the performance of, abortions or involuntary sterilization as a means of family planning.
(a) Unless the Parties specifically agree otherwise in writing, the Government shall ensure that all MCC Funding is free from the payment or imposition of any existing or future taxes, duties, levies, contributions or other similar charges (but not fees or charges for services that are generally applicable in Cape Verde, reasonable in amount and imposed on a non-discriminatory basis) (“
(b) The mechanisms that the Government shall use to implement the tax exemption required by Section 2.8(a) are set forth in the Program Implementation Agreement. Such mechanisms may include exemptions from the payment of Taxes that have been granted in accordance with applicable law, refund or reimbursement of Taxes by the Government to MCC, MCA-Cape Verde II or to the taxpayer, or payment by the Government to MCA-Cape Verde II or MCC, for the benefit of the Program, of an agreed amount representing any collectible Taxes on the items described in Section 2.8(a).
(c) If a Tax has been paid contrary to the requirements of Section 2.8(a) or the Program Implementation Agreement, the Government shall refund promptly to MCC (or to another party as designated by MCC) the amount of such Tax in United States dollars or the currency of Cape Verde within sixty (60) days (or such other period as may be agreed in writing by the Parties) after the Government is notified in writing (whether by MCC or MCA-Cape Verde II) that such Tax has been paid.
(d) No MCC Funding, proceeds thereof or Program Assets may be applied by the Government in satisfaction of its obligations under Section 2.8(c).
Section 606(b) of the Act restricts the amount of assistance that MCC may provide to “lower middle income countries,” a term that is defined in the Act and includes Cape Verde. To the extent that MCC determines, in MCC's reasonable discretion, that the amount of Program Funding granted to the Government in this Compact may result in a violation of Section 606(b) of the Act, MCC, at any time and from time to time upon written notice to the Government, may reduce the amount of Program Funding, or withhold any Disbursement of Program Funding, to avoid or remedy such a violation.
The Parties shall enter into an agreement providing further detail on the implementation arrangements, fiscal accountability and disbursement and use of MCC Funding, among other matters (the “
(a) The Government has principal responsibility for overseeing and managing the implementation of the Program.
(b) The Government will create and designate Millennium Challenge
(c) The Government shall ensure that any Program Assets or services funded in whole or in part (directly or indirectly) by MCC Funding are used solely in furtherance of this Compact and the Program unless MCC agrees otherwise in writing.
(d) The Government shall take all necessary or appropriate steps to achieve the Program Objectives and the Project Objectives during the Compact Term (including, without limiting Section 2.6(a), funding all costs that exceed MCC Funding and are required to carry out the terms hereof and achieve such objectives, unless MCC agrees otherwise in writing).
(e) The Government shall fully comply with the Program Guidelines, as applicable, in its implementation of the Program.
(f) The Government will grant to MCC a perpetual, irrevocable, royalty-free, worldwide, fully paid, assignable right and license to practice or have practiced on its behalf (including the right to produce, reproduce, publish, repurpose, use, store, modify, or make available) any portion or portions of Intellectual Property as MCC sees fit in any medium, now known or hereafter developed, for any purpose whatsoever.
In addition to undertaking the specific policy, legal and regulatory reform commitments identified in Annex I, the Government shall seek to maintain and to improve its level of performance under the policy criteria identified in Section 607 of the Act, and the selection criteria and methodology used by MCC.
The Government assures MCC that, as of the date this Compact is signed by the Government, the information provided to MCC by or on behalf of the Government in the course of reaching agreement with MCC on this Compact is true, correct and complete in all material respects.
From time to time, MCC may provide guidance to the Government in writing on any matters relating to this Compact, MCC Funding or implementation of the Program (each, an “
(a) The Government shall ensure that the procurement of all goods, works and services by the Government or any Provider to implement the Program shall be consistent with the “MCC Program Procurement Guidelines” posted from time to time on the MCC Web site (the “
(i) Open, fair, and competitive procedures must be used in a transparent manner to solicit, award and administer contracts and to procure goods, works and services;
(ii) Solicitations for goods, works, and services must be based upon a clear and accurate description of the goods, works and services to be acquired;
(iii) Contracts must be awarded only to qualified contractors that have the capability and willingness to perform the contracts in accordance with their terms on a cost effective and timely basis; and
(iv) No more than a commercially reasonable price, as determined, for example, by a comparison of price quotations and market prices, shall be paid to procure goods, works and services.
(b) The Government shall ensure that any grant issued to any non-governmental entity in furtherance of the Program (the “
(a) Government Books and Records. The Government shall maintain, and shall use its best efforts to ensure that all Covered Providers maintain, accounting books, records, documents and other evidence relating to the Program adequate to show, to MCC's satisfaction, the use of all MCC Funding and the implementation and results of the Program (“
(b) Accounting. The Government shall maintain and shall use its best efforts to ensure that all Covered Providers maintain Compact Records in accordance with generally accepted accounting principles prevailing in the United States, or at the Government's option and with MCC's prior written approval, other accounting principles, such as those (i) prescribed by the International Accounting Standards Board, or (ii) then prevailing in Cape Verde. Compact Records must be maintained for at least five (5) years after the end of the Compact Term or for such longer period, if any, required to resolve any litigation, claims or audit findings or any applicable legal requirements.
(c) Providers and Covered Providers. Unless the Parties agree otherwise in writing, a “
(d) Access. Upon MCC's request, the Government, at all reasonable times, shall permit, or cause to be permitted, authorized representatives of MCC, an authorized Inspector General of MCC (“
(a) Government Audits. The Government shall, on an annual basis (or on a more frequent basis if requested by MCC in writing), conduct, or cause to be conducted, financial audits of all disbursements of MCC Funding covering the period from signing of this Compact until the following December 31 and covering each twelve-month period thereafter ending December 31, through the end of the Compact Term. In addition, upon MCC's request, the Government shall ensure that such audits are conducted by an independent auditor approved by MCC and named on the list of local auditors approved by the Inspector General or a United States-based certified public accounting firm selected in accordance with the “Guidelines for Financial Audits Contracted by MCA” (the “
(b) Audits of Other Entities. The Government shall ensure that MCC financed agreements between the Government or any Provider, on the one hand, and (i) a United States nonprofit organization, on the other hand, state that the United States nonprofit organization is subject to the applicable audit requirements contained in OMB Circular A–133, “Audits of States, Local Governments, and Non-Profit Organizations,” issued by the United States Office of Management and Budget; (ii) a United States for-profit Covered Provider, on the other hand, state that the United States for-profit organization is subject to audit by the applicable United States Government agency, unless the Government and MCC agree otherwise in writing; and (iii) a non-US Covered Provider, on the other hand, state that the non-US Covered Provider is subject to audit in accordance with the Audit Guidelines.
(c) Corrective Actions. The Government shall use its best efforts to ensure that each Covered Provider (i) takes, where necessary, appropriate and timely corrective actions in response to audits, (ii) considers whether the results of the Covered Provider's audit necessitates adjustment of the Government's records, and (iii) permits independent auditors to have access to its records and financial statements as necessary.
(d) Audit by MCC. MCC shall have the right to arrange for audits of the Government's use of MCC Funding.
(e) Cost of Audits, Reviews or Evaluations. MCC Funding may be used to fund the costs of any audits, reviews or evaluations required under this Compact.
Any document or communication required or submitted by either Party to the other under this Compact must be in writing and, except as otherwise agreed with MCC, in English. For this purpose, the address of each Party is set forth below.
Millennium Challenge Corporation, Attention: Vice President, Compact Operations, (with a copy to the Vice President and General Counsel), 875 Fifteenth Street NW., Washington, DC 20005, United States of America, Telephone: (202) 521–3600, Facsimile: (202) 521–3700, Email:
Ministry of Finance and Planning, Attention: Minister of Finance and Planning, (with a copy to the National Director of Planning), Avenida Amilcar Cabral, P.O. Box #30, Praia, Cape Verde, Telephone: +238 260 7500/1, Facsimile: +238 261 3897.
Upon establishment of MCA-Cape Verde II, MCA-Cape Verde II will notify the Parties of its contact details.
For all purposes of this Compact, the Government shall be represented by the individual holding the position of, or acting as, Minister of Finance and Planning of the Republic of Cape Verde, and MCC shall be represented by any of the individuals holding the positions of, or acting as, the Vice President or Deputy Vice President for Compact Operations (each of the foregoing, a “
Signatures to this Compact and to any amendment to this Compact shall be original signatures appearing on the same page or in an exchange of letters or diplomatic notes. With respect to all documents arising out of this Compact (other than the Program Implementation Agreement) and amendments thereto, signatures may, as appropriate, be delivered by facsimile or electronic mail and in counterparts and shall be binding on the Party delivering such signature to the same extent as an original signature would be.
(a) Either Party may terminate this Compact without cause in its entirety by giving the other Party thirty (30) days' prior written notice. MCC may also terminate this Compact or MCC Funding without cause in part by giving the Government thirty (30) days' prior written notice.
(b) MCC may, immediately, upon written notice to the Government, suspend or terminate this Compact or MCC Funding, in whole or in part, and any obligation related thereto, if MCC determines that any circumstance identified by MCC, as a basis for suspension or termination (whether in writing to the Government or by posting on the MCC Web site) has occurred, which circumstances include but are not limited to the following:
(i) The Government fails to comply with its obligations under this Compact or any other agreement or arrangement entered into by the Government in
(ii) An event or series of events has occurred that makes it probable that the Program Objectives or any of the Project Objectives shall not be achieved during the Compact Term or that the Government shall not be able to perform its obligations under this Compact;
(iii) A use of MCC Funding or continued implementation of this Compact or the Program violates applicable law or United States Government policy, whether now or hereafter in effect;
(iv) The Government or any other person or entity receiving MCC Funding or using Program Assets is engaged in activities that are contrary to the national security interests of the United States;
(v) An act has been committed or an omission or an event has occurred that would render Cape Verde ineligible to receive United States economic assistance under Part I of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2151
(vi) The Government has engaged in a pattern of actions inconsistent with the criteria used to determine the eligibility of Cape Verde for assistance under the Act; and
(vii) The Government or another person or entity receiving MCC Funding or using Program Assets is found to have been convicted of a narcotics offense or to have been engaged in drug trafficking.
(a) Upon the suspension or termination, in whole or in part, of this Compact or any MCC Funding, or upon the expiration of this Compact, the provisions of Section 4.2 of the Program Implementation Agreement shall govern the post-suspension, post-termination or post-expiration treatment of MCC Funding, any related Disbursements and Program Assets. Any portion of this Compact, MCC Funding, the Program Implementation Agreement or any other Supplemental Agreement that is not suspended or terminated shall remain in full force and effect.
(b) MCC may reinstate any suspended or terminated MCC Funding under this Compact if MCC determines that the Government or other relevant person or entity has committed to correct each condition for which MCC Funding was suspended or terminated.
(a) If any MCC Funding, any interest or earnings thereon, or any Program Asset is used for any purpose in violation of the terms of this Compact, then MCC may require the Government to repay to MCC in United States Dollars the value of the misused MCC Funding, interest, earnings, or asset, plus interest within thirty (30) days after the Government's receipt of MCC's request for repayment. The Government shall not use MCC Funding, proceeds thereof or Program Assets to make such payment.
(b) Notwithstanding any other provision in this Compact or any other existing agreement to the contrary, MCC's right under Section 5.3(a) for a refund shall continue during the Compact Term and for a period of (i) five (5) years thereafter or (ii) one (1) year after MCC receives actual knowledge of such violation, whichever is later.
The Government's responsibilities under this Section and Sections 2.7, 3.7, 3.8, 5.2, 5.3, and 6.4 shall survive the expiration, suspension or termination of this Compact.
Each annex to this Compact constitutes an integral part hereof, and references to “Annex” mean an annex to this Compact unless otherwise expressly stated.
(a) The Parties may amend this Compact only by a written agreement signed by the Principal Representatives (or such other government official designated by the relevant Principal Representative).
(b) Notwithstanding Section 6.2(a), the Parties may agree in writing, signed by the Principal Representatives (or such other government official designated by the relevant Principal Representative) or any Additional Representative, to modify any Annex to (i) suspend, terminate or modify any Project or Activity, or to create a new project, (ii) change the allocations of funds as set forth in Annex II as of the date hereof (including to allocate funds to a new project), (iii) modify the implementation framework described in Annex I or (iv) add, delete or waive any condition precedent described in Annex IV;
In the event of any conflict or inconsistency between:
(a) Any Annex and any of Articles 1 through 7, such Articles 1 through 7, as applicable, shall prevail; or
(b) this Compact and any other agreement between the Parties regarding the Program, this Compact shall prevail.
This Compact is an international agreement and as such shall be governed by the principles of international law.
Any reference to activities, obligations or rights undertaken or existing under or in furtherance of this Compact or similar language shall include activities, obligations and rights undertaken by, or existing under or in furtherance of any agreement, document or instrument related to this Compact and the Program.
Any reference in this Compact, the PIA or any other agreement entered into in connection with this Compact, to a document or information available on, or notified by posting on the MCC Web site shall be deemed a reference to such document or information as updated or substituted on the MCC Web site from time to time.
Each reference in this Compact, the PIA or any other agreement entered into in connection with this Compact, to a law, regulation, policy, guideline or similar document shall be construed as a reference to such law, regulation, policy, guideline or similar document as it may, from time to time, be amended, revised, replaced, or extended and shall include any law, regulation, policy, guideline or similar document issued under or otherwise applicable or related to such law, regulation, policy, guideline or similar document.
MCC is a United States government corporation acting on behalf of the United States Government in the implementation of this Compact. MCC and the United States Government assume no liability for any claims or loss arising out of activities or omissions under this Compact. The Government waives any and all claims against MCC or the United States Government or any current or former officer or employee of MCC or the United States Government for all loss, damage, injury, or death arising out of activities or omissions under this Compact, and agrees that it shall not bring any claim or legal proceeding of any kind against any of the above entities or persons for any such loss, damage, injury, or death. The Government agrees that MCC and the United States Government or any current or former officer or employee of MCC or the United States Government shall be immune from the jurisdiction of all courts and tribunals of Cape Verde for any claim or loss arising out of activities or omissions under this Compact.
The Government shall proceed in a timely manner to complete all of its domestic requirements for each of the Compact and PIA to enter into force as an international agreement.
Before this Compact enters into force:
(a) The Program Implementation Agreement must have been signed by the parties thereto;
(b) The Government must have delivered to MCC:
(i) A letter signed and dated by the Principal Representative of the Government, or such other duly authorized representative of the Government acceptable to MCC, confirming that the Government has completed its domestic requirements for this Compact to enter into force and that the other conditions precedent to entry into force in this Section 7.2 have been met;
(ii) A signed legal opinion from the Attorney General of Cape Verde (or such other legal representative of the Government acceptable to MCC), in form and substance satisfactory to MCC;
(iii) Complete, certified copies of all decrees, legislation, regulations or other governmental documents relating to the Government's domestic requirements for this Compact to enter into force and the satisfaction of Section 7.1, which MCC may post on its Web site or otherwise make publicly available; and
(c) MCC shall not have determined that after signature of this Compact, the Government has engaged in a pattern of actions inconsistent with the eligibility criteria for MCC Funding.
This Compact shall enter into force on the date of the letter from MCC to the Government in an exchange of letters confirming that MCC has completed its domestic requirements for entry into force of this Compact and that the conditions precedent to entry into force in Section 7.2 have been met.
This Compact shall remain in force for five (5) years after its entry into force, unless terminated earlier under Section 5.1 (the “
Upon signature of this Compact, and until this Compact has entered into force in accordance with Section 7.3, the Parties shall provisionally apply the terms of this Compact;
In Witness Whereof, the undersigned, duly authorized by their respective governments, have signed this Compact.
Done at Praia, Cape Verde, this 10th day of February, in the English language only.
For the United States of America, acting through the Millennium Challenge Corporation, Name: Daniel W. Yohannes, Title: Chief Executive Officer.
For the Republic of Cape Verde, Name: Cristina Duarte, Title: Minister of Finance and Planning.
This Annex I describes the Program that MCC Funding will support in Cape Verde during the Compact Term.
Strategically located at the crossroads of mid-Atlantic air and sea lanes, Cape Verde continues to exhibit one of Africa's most stable and democratic governments. In 2001, Cape Verde embarked on a transformation agenda aimed at building a self-sustaining high growth economy through policy reforms, private sector led growth, infrastructure development, and institutional changes. The Government recognizes that in order to alleviate poverty it must continue to improve performance and accelerate important reforms.
The Government and MCC entered into a Millennium Challenge Compact in 2005 with the objective of increasing agricultural production, improving infrastructure, and developing the private sector. The Parties successfully completed the first compact, representing a new form of partnership with donors for the country. Based on Cape Verde's continued performance on MCC's eligibility criteria and the successful implementation of the first compact, the MCC Board selected Cape Verde as eligible for a second compact in December 2009.
In January 2010, the Government assembled a task force under the Ministry of Finance and Planning to develop a second compact. The task force conducted a constraints analysis and through extensive consultation with national and local government stakeholders, civil society, and private sector identified both the water and sanitation and land sectors as critical constraints to achieving the country's economic transformation agenda.
The Compact Goal is to reduce poverty through economic growth in Cape Verde. MCC's assistance will be provided in a manner that strengthens good governance, economic freedom, and investments in the people of Cape Verde. The Program Objectives are to reduce the costs upon the economy of inefficiently provided public services and remove institutional conditions that impede private sector investment. The Program consists of the Water, Sanitation and Hygiene Project and the Land Management for Investment Project, as further described in this Annex I.
Set forth below is a description of each of the Projects that the Government will implement, or cause to be implemented, using MCC Funding to advance the applicable Project Objectives. Specific activities that will be undertaken within each Project (each, an “
Cape Verde is an extremely water-scarce country and relies heavily on desalinization of water, which is an expensive and energy-intensive process. The water, sanitation and hygiene
The WASH sector is marked by dispersed responsibilities across a large number of stakeholders, skewed incentives, a lack of institutional accountability, fragmented and overlapping authority, and conflicting legislation which impedes good planning and efficient operations in the sector. The Government has recently undertaken a number of important preliminary steps to improve the legal and regulatory framework. However, further significant reform and restructuring of the sector are required to ensure that the benefits of planned infrastructure improvements can be achieved.
The objective of the Water, Sanitation and Hygiene Project (the “
The Government is committed to undertaking institutional and regulatory reform activities at the national level to improve planning systems and regulatory processes including tariff setting (the “
MCC will support the design and operationalization of the proposed institutional changes with MCC Funding for the following three sub-activities:
(A) Improve allocation of resources, planning, and coordination. This sub-activity aims to improve the allocation of resources mobilized for the sector, improve the coordination of sector activities and improve sector planning with a clear definition of sector priorities. During the project development process and to facilitate implementation of this Compact, MCC agreed to support the development of a Strategic National Master Plan (“
Under the Compact, MCC Funding will support:
(1) A review of all relevant legislation, regulations and organizational documents pertaining to the establishment and operations of CNAS, ANAS and the strengthening of ARE and DGA, which will assist the Government in drafting new legislation and regulations for the WASH sector;
(2) Technical assistance, capacity building and training to enable ANAS, CNAS, ARE, and DGA to execute their new roles and responsibilities;
(3) Technical assistance and resources for the integration of gender and social analysis and objectives into national policies, planning, human resources, and budgets, including establishment of a social and gender unit in ANAS, as well as the development of consultative processes, public information strategies, and opportunities for private sector participation; and
(4) Information, education, and communication (“
(B) Support transparent and fair tariff setting. This sub-activity will support the move to transparent and fair tariff setting, to better reflect the cost of service, and to improve the financial well-being and sustainability of utilities. Tariff support will also include assistance for the formation of appropriate pro-poor tariff policies. Specifically, MCC Funding will assess the current financial state of utilities nationally, and on Santiago particularly, with the goal of identifying the true cost of the existing systemic sector inefficiencies, impacts of these costs and inefficiencies on cost of service rates, and tariff and regulatory strategies for transitioning to a financially self-sustaining system.
(C) Improve water quality standards and environmental oversight. MCC Funding will support technical assistance to DGA for the development of existing functions on environmental protection, with an emphasis on potable water and wastewater quality, and to develop new water quality and wastewater discharge standards, including appropriate wastewater treatment technologies and associated standards for wastewater reuse.
The Utility Reform Activity will promote the transition of existing service providers to increased financial and administrative autonomy and operation based on commercial principles (the “
(A) Encourage corporatization of utilities. MCC Funding will support the design and establishment of Aguas de Santiago, including a legal review and the preparation of organizational documents, staffing requirements, position descriptions, internal policies and operating procedures, and a plan for
(B) Strengthen management and planning of Aguas de Santiago. MCC Funding will support:
(1) A long-term strategic investment and business plan, capital improvement, and business plans for the water and sanitation sector on Santiago pursuant to the guidance emerging from the Master Plan and SESA. While these plans will be long-term and strategic in nature, they will assess the condition of existing water and sanitation systems and identify any immediate infrastructure and operational needs. The plans will also improve the management of water resources by ensuring an integrated approach to infrastructure planning;
(2) Technical assistance for water sector utility operations and management, including technical, financial, commercial, legal, environmental, investment planning, procurement, contract management, and social and gender practices;
(3) The acquisition and implementation of, and training on, management information systems and identified hardware and software, such as GIS, asset management, billing and customer management systems, and office equipment;
(4) IEC campaigns that include outreach by utilities and/or NGOs. The objective of the IEC campaigns is to improve communication between the utility and its customers, with a focus on developing an understanding of the cost of services and culture of payment by users, promoting efficient water use and conservation, and other aspects necessary to increase impact and sustainability of the reforms; and
(5) Technical and vocational education and training (“
(C) Reduce commercial losses in Santiago. Non-revenue water (“
MCC Funding for the Utility Reform Activity is subject to the following conditions:
(1) Prior to disbursement of Program Funding for the Utility Reform Activity, the SAAS shall have committed to the transition to an independently operated and managed Aguas de Santiago in a memorandum of understanding among MAHOT and the municipalities or such other document acceptable to the Government and MCC; and
(2) Continued support for the sub-activities described in paragraphs (ii)(B) and (ii)(C) above is conditioned on the Government ensuring that Aguas de Santiago has sufficient equity contributions, or other non-reimbursable funding from its shareholders to support its operations and working capital needs, in accordance with the economic and financial viability study undertaken in sub-activity (i)(B) above and satisfactory to MCC.
In order to promote continued national level reform, incentivize and reward utility reform, and improve investment planning, the Parties will support the establishment of an Infrastructure Grant Facility (the “
MCC will make funds available to the IGF in three tranches as national policy and utility reform conditions have been met. The IGF will provide grants on a competitive basis to utilities that qualify based on continuous improvement on commercialization of operations. Grant applications from qualified utilities will be evaluated based on a set of transparent financial, economic, technical, operational, environmental, and gender and social criteria.
The IGF will provide grants for three categories of projects: Category I—studies and technical assistance; Category II—existing network improvements and off-network improvements; and Category III—network expansion. The categories reflect the level of complexity to implement these projects, and utility applicants will be required to demonstrate incremental progress towards corporatization to be eligible for funding under Categories II and III. Category II and III projects will include financial support for IEC and TVET activities connected to specific infrastructure projects as identified during the design phase. The IGF will have a pool of funds to assist poor and female-headed households to overcome barriers to WASH services.
The eligibility requirements, project selection criteria, and operations and management procedures of the IGF, will be set forth in an operations manual to be approved by the Government and MCC. The Parties expect that the IGF will initially be managed by MCA-Cape Verde II with the support of advisory services as the Parties deem necessary and eventually transferred to ANAS when it is deemed to have sufficient capacity to administer and manage the facility. A technical evaluation panel will carry out detailed evaluations, provide technical assessments, and score proposed projects. An executive committee of the MCA-Cape Verde II Steering Committee will oversee the IGF and approve projects that pass established selection criteria and technical evaluation. The amount of MCC funds allocated for feasibility studies under Category I of the IGF will not exceed 20 percent, unless otherwise agreed by MCC. Each grant will also be subject to MCC no objection.
MCC Funding will also support the development of an environmental and social management framework for the IGF, acceptable to the Government and MCC, to define the guiding environmental and social principles and to create procedures that will be included in the operations manual for assessing proposals against these objectives.
As set forth more specifically in the Program Implementation Agreement, MCC Funding for the IGF will be made available incrementally subject to the achievement of reform milestones.
(A) Prior to making the first tranche of funding available under the IGF: (1) the operations manual for the IGF shall have been approved by MCA-Cape Verde II and MCC; and (2) ANAS shall
(B) Prior to making the second tranche of funding available under the IGF, Aguas de Santiago shall have been created as an independent, corporatized entity that is subject to the regulatory jurisdiction of ARE and ARE will have in place a tariff mechanism that is based on cost-of-service by rate class and which addresses pro-poor tariffs; and
(C) Prior to making the third tranche of funding available under the IGF, the Government shall make an appropriate matching contribution to the IGF as per the agreed Government contribution schedule in the Program Implementation Agreement.
The Parties expect that together the National Institutional and Regulatory Reform and Utility Reform Activities will initially benefit the approximately 278,000 people living on the Island of Santiago, as a result of reductions in the average cost of water supply and commercial losses by utilities and the incremental growth effect of shifting government resources from less productive to more productive spending. As utility reform extends throughout the other islands during and after the Compact, the entire population of Cape Verde should eventually benefit from these Activities.
The benefits of the IGF will depend on the returns of proposals presented for financing. To be selected, each proposal must demonstrate an expected economic rate of return of at least 12 percent. Based on estimates of potential projects, the Parties expect that the IGF will benefit on average a population of 48,000 (approximately 11,000 households), or just over 10 percent of the population of Cape Verde.
The Parties agree to integrate gender and social factors in the WASH Project into each of the core Activities. Gender and social analyses and objectives are currently largely absent from WASH sector policies and planning, despite considerable inequalities in access to water and sanitation. MCC Funding will support technical assistance and resources for the integration of gender and social analysis and objectives into policies, planning, human resources, and budgets, at both the national and utility levels.
Given the central role that women and girls play in water and sanitation at the household level, ensuring that infrastructure investments are selected and designed with due attention to social and gender considerations and appropriate IEC are critical to meeting the ultimate impact objectives of the IGF. Social and gender considerations will thus be embedded in the project selection criteria for the IGF, and the IGF will support IEC activities. Training and employment opportunities for women in the WASH sector will also be promoted through support for TVET activities at national, utility, and IGF levels.
The National Institutional and Regulatory Reform and the Utility Reform Activities have been classified as Category C projects in accordance with MCC Environmental Guidelines. These Activities are unlikely to have adverse environmental and social impacts. MCC reserves the right, however, to require specific environmental and social impact studies and mitigation measures. As an initial step, MCC has provided pre-Compact funding for a SESA in conjunction with the Master Plan for the Island of Santiago. MCC Funding will also support capacity building at DGA to strengthen Cape Verde's water quality standards and improve environmental oversight.
The IGF has been classified as a Category D project since specific projects and activities will be funded through a facility. Based on the potential pipeline of projects, certain activities may potentially result in adverse environmental and social impacts, if appropriate mitigation measures are not taken. Operational procedures and an environmental and social management framework will be established to ensure that environmental and social risks and impacts are appropriately considered and managed in accordance with the laws and regulations in Cape Verde and MCC Environmental Guidelines.
The National Institutional and Regulatory Reform and Utility Reform Activities of the WASH Project are specifically targeted at improving the sustainability of the sector by addressing key constraints in the policy and regulatory environment and at the operational level. One of the challenges to maintaining and sustaining the reform process is strong civic engagement. To that end, the Activities include resources for broad-based public consultation and engagement but also focus efforts on ensuring that women and disadvantaged groups are being engaged at the earliest stages of planning all the way through construction.
The WASH Project has and will continue to benefit from coordination among the Parties and other donors. Whereas in the past the sector has been marked by a lack of integration at the Government and donor levels, and whereas the Government has made recent strides in setting the stage for sector reform and donors have responded by improving their internal coordination and their coordination with the Government, the Parties acknowledge that in the context of limited resources improved government management and coordination with its partners is necessary to the successful implementation of the WASH Project. The Parties agree that transparency and coordination are essential elements of meeting the ambitious reform agenda established by the Government.
In Cape Verde, no conclusive source of information about land property exists. Two different land registries each contain partial information about only a limited share of the country's land parcels. Additional records systems hold information about state-owned land. No source contains complete map-based information indicating actual location of a parcel of land over which a right is claimed. Confusion over ownership and boundaries has resulted in unauthorized land sales and the delay or cancellation of public as well as private investment projects and limits the ability of small firms and households to create value and increase incomes through investment in their property. The land rights registration process is time-consuming and costly for all land users, hampering domestic and foreign investment and economic growth. The Government seeks to create a single reliable and more easily accessible source of land rights and land boundaries information in order to strengthen Cape Verde's investment climate and to reduce land rights registration and transaction time and cost.
The objective of the Land Management for Investment Project (the “
The Legal and Institutional Foundations Activity (the “
(A) Develop legal, institutional, and procedural foundations. Under this sub-activity, MCC Funding will support:
(1) Legal and regulatory analysis, recommendations, and drafting of regulatory texts and procedural manuals for improved operations and coordination by land administration institutions over the long term;
(2) Design of legal, regulatory and procedural tools and manuals enabling implementation and achievement of the objectives of the Rights and Boundaries Activity (described below); and
(3) Stakeholder workshops and public outreach.
(B) Develop and install land information and transaction systems. Under this sub-activity MCC Funding will support:
(1) Technical assistance to computerize and link existing information about land rights and land parcels held in the paper-based Ministry of Justice registry system and in different municipal departments;
(2) Design of a computerized land information system that will be used by the Ministry of Justice's Registry and Notary and by municipal governments to efficiently manage and access information within their area of legal competence;
(3) System programming work consistent with the new institutional and procedural arrangements and data access protocols; and
(4) Installation of the system, acquisition of relevant hardware and software for system operations, training for users, and public outreach.
Building on the Foundations Activity, the Rights and Boundaries Activity (the “
Subject to the satisfaction of the conditions set forth below, MCC Funding will support: Communications; outreach and training, including on topics of environmental and social risk management and planning and geographic information production and management; office-based linking of rights and boundary information where data exists; field-based clarification of boundaries through map consultation and surveying; field-based clarification of rights through consultation of existing records and information gathering and consultation with current occupants; rights adjudication recommendations made based on regulations and procedures agreed as a result of the Foundations Activity; public noticing of rights and boundary claims and requirements/opportunities for submission of or objection to claims; dispute resolution assistance; utilization of a resettlement policy framework tool as needed per International Finance Corporation, Performance Standard 5; registration of rights that can be adjudicated; and inputting of final boundary and rights information into the land information and transaction management system created under the Foundations Activity.
The Rights and Boundaries Activity will cover areas of land claimed or held as private property, as property of the national government, and as property of municipal governments. The Activity will commence as a pilot on the island of Sal and be scaled to up to three other target islands subject to satisfaction of the conditions below. Should the Parties agree that additional funds remain in the Rights and Boundaries Activity after completion of Sal and commitment of sufficient funding (including adequate contingencies) for the three additional islands, the Parties may allocate any remaining funds to implement the Activity on other islands, based on criteria to be agreed by MCC and MCA-Cape Verde II.
MCC Funding for fieldwork and fieldwork-related training under this Activity is subject to the following conditions:
(A) Any new or amended laws or regulatory texts (regulations, ordinances and directives) determined to be necessary under the Foundations Activity, shall have been adopted by the Parliament or the relevant Government ministry and be in full force and effect;
(B) An operations manual for the Rights and Boundaries Activity fieldwork satisfactory to MCC, including environmental and social safeguards and provisions, shall have been completed and adopted by the Ministry of Justice and the Ministry of Environment, Housing and Territorial Management through such instrument as the Parties agree is required to give full force and effect to such manual; and
(C) Prior to disbursement of MCC Funding to implement the Activity on additional islands, the Government shall have completed the activity on Sal island, to a degree satisfactory to MCC, and any modifications to the implementation approach for remaining islands agreed shall have been agreed among MCC, the Government and MCA-Cape Verde II.
Based on estimates of incremental employment opportunities, the Parties expect that at least 3,000 households (approximately 13,000 people) will benefit from increased tourism development as a consequence of project interventions. This number excludes the current population on the islands who are expected to benefit from reduced time and cost of land registration and more conclusive rights and boundaries information. The benefits would be expected to result from cost savings, from increased investment in property, and from increased property values. Additional benefits and beneficiaries will be monitored during the Compact Term.
The Land Project has been classified as a Category B project in accordance with MCC's Environmental Guidelines. This is based on a number of risks and potential impacts, which the Parties expect to mitigate through environmental and social (including gender-based) approaches integrated into the Land Project. The Parties will integrate several safeguards into the Rights and Boundaries Activity in an effort to minimize the risk of claimants losing rights given the imprecisions, gaps, and potential for overlaps in existing land rights information. The outreach activities will support increased public awareness, particularly among vulnerable populations, of the types of land rights and the procedures and resources available for formalizing those rights. The procedures developed under the Foundations Activity and the resettlement policy framework will assist stakeholders with dispute resolution, with clarifying links between planning and zoning requirements and rights and responsibilities of rights holders, and with adequate analysis, planning and decision-making in contexts of informal occupation or of secondary rights, particularly for vulnerable groups.
Environmental and social risks related to increased economic development induced by the Land Project will be mitigated by public consultation and outreach, and by the development of tools for improved land administration and for integration of land information. This will help relevant institutions better manage land use and land rights over the long term. The Parties will evaluate ways in which existing environmental and social data, information on legal requirements associated with public lands, protected areas, critical habitats, and encumbrances can be built into land information systems to aid municipal and tourism planning, including integration of social safeguards.
Institutional and financial sustainability is fundamental to achieving the results of the Land Project. MCC has provided pre-Compact support for detailed analyses of financial sustainability drivers, projected revenue flows, and workforce requirements for the land information management and transaction systems. The Parties will review the findings and recommendations of these studies and agree to modify approaches and methodologies as appropriate, to assure that system design is commensurate with the Government's capacity to use and maintain the system over the long term.
The Land Project will assure that legal, regulatory, and methodological approaches to collecting and maintaining boundary and rights information over time are consistent with principles of cost-effectiveness and equitable access to land administration services.
The Land Project builds from recent investments in the Government's land sector initiatives by Spain, the Canary Islands, and the World Bank. A portion of the investment from other donors has supported specific land sector studies, including one completed by the Institute for Liberty and Democracy. Additionally, because the Rights and Boundaries Activities is a pilot that can be scaled up and implemented throughout the country, the Government is committed to continued donor coordination to identify additional funding to support rights and boundary clarification on other islands.
The implementation framework and the plan for ensuring adequate governance, oversight, management, monitoring and evaluation, and fiscal accountability for the use of MCC Funding are summarized below. MCC and the Government will enter into a Program Implementation Agreement, and may enter into such other Supplemental Agreements and Implementation Letters in furtherance of this Compact as the Parties deem necessary, all of which, together with this Compact, set out the rights, responsibilities, duties and other terms relating to the implementation of the Program.
MCC will take all appropriate actions to carry out its responsibilities in connection with this Compact and the Program Implementation Agreement, including the exercise of its approval rights in connection with the implementation of the Program.
In accordance with Section 3.2(b) of this Compact and the Program Implementation Agreement, MCA-Cape Verde II will act on the Government's behalf to implement the Program and to exercise and perform the Government's rights and responsibilities with respect to the oversight, management, monitoring and evaluation, and implementation of the Program, including, without limitation, managing the implementation of Projects and their Activities, allocating resources, and managing procurements. The Government will ensure that MCA-Cape Verde II takes all appropriate actions to implement the Program, including the exercise and performance of the rights and responsibilities designated to it by the Government pursuant to this Compact and the Program Implementation Agreement. Without limiting the foregoing, the Government will also ensure that MCA-Cape Verde II has full decision-making autonomy, including,
The Government will create MCA‐Cape Verde II as a legally established program management unit under the Ministry of Finance. MCA-Cape Verde II will be formed through a cabinet resolution, which resolution will be included in the Program Implementation Agreement. MCA-Cape Verde II will be created in accordance with MCC's Guidelines for Accountable Entities and Implementation Structures, published on the MCC Web site (the “
(i) Composition. The Steering Committee will have ultimate responsibility for the oversight, direction, and decisions of MCA‐Cape Verde II, as well as the overall implementation of the Program. The Parties expect that the Steering Committee will initially be comprised of nine voting members consisting of representatives of national and municipal government, civil society and private sector and two non‐voting observers. Membership to the Steering Committee is anticipated to include the following voting members: Minister of Finance and Planning; Minister of Environment, Housing and Land Planning; Minister of Justice; Minister of Rural Development; Chief Advisor to the Prime Minister; President of the National Municipalities Association; President of the Chamber of Commerce Association; President of the Tourism Chamber; and President of the
(ii) Roles and Responsibilities. The Steering Committee will be responsible for the oversight, direction, and decisions of MCA-Cape Verde II, as well as the overall implementation of the Program. The Steering Committee will hold regular meetings in accordance with the Governance Guidelines, at a minimum once per quarter. The specific roles of the voting members and non-voting observers will be set forth in the MCA-Cape Verde II Regulations. On at least an annual basis or as otherwise required by the Government, the Steering Committee will report to the Government on the status and progress of the Compact regarding implementation, financial matters, procurements, and other matters identified by the Government.
(i) Composition. The Management Unit will be led by a competitively selected Managing Director and is expected to be initially comprised of the following full-time officers: Managing Director; Administration and Finance Director; Economist/Monitoring and Evaluation Manager; Water and Sanitation Project Manager; Land Project Manager; Gender & Social Manager; Environment Manager; Policy Reform and Institutional Development Manager; and Procurement Manager. These key officers will be supported by appropriate additional staff to enable the Management Unit to execute its roles and responsibilities. Such additional staff is expected to include: Procurement Specialist; Administrative and Financial Specialist; and Communication Specialist, among others.
(ii) Roles and Responsibilities. With oversight from the Steering Committee, the Management Unit will have the principal responsibility for the day-to-day management of the Program, including those roles and responsibilities specifically set forth in the Program Implementation Agreement. The Management Unit will serve as the principal link between MCC and the Government, and will be accountable for the successful execution of the Program, each Project, and each Activity.
(c) Stakeholders Committees
(i) Composition. Program beneficiaries will be represented by two project‐level Stakeholder Committees composed of representatives from relevant ministries, municipalities, private sector and non‐governmental organizations as agreed by the Government and MCC. The two Stakeholders Committees will provide input to the Steering Committee and the Management Unit on matters that relate to the Program, promoting transparency and ongoing consultation.
(ii) Roles and Responsibilities. Consistent with the Governance Guidelines, the Stakeholders Committees will be responsible for continuing the consultative process throughout implementation of the Program. While the Stakeholders Committees will not have any decision-making authority, they will be responsible for,
All of the Projects will be implemented in compliance with the MCC Environmental Guidelines, the MCC Gender Policy, the MCC Gender Integration Guidelines, and the International Finance Corporation's Performance Standards. Any involuntary resettlement will be carried out in accordance with the IFC Performance Standard 5 on Land Acquisition and Involuntary Resettlement in a manner acceptable to MCC. In the case of retrenchments and redundancies resulting from the implementation of the Projects, the Government will ensure that the Projects comply with national labor laws and best practices for managing retrenchment according to the IFC Good Practice Note: Managing Retrenchment. The Government also will ensure that the Projects comply with all national environmental laws and regulations, licenses and permits, except to the extent such compliance would be inconsistent with this Compact.
Specifically, the Government will: cooperate with or complete, as the case may be, any ongoing environmental and social impact assessments, or if necessary undertake and complete any additional environmental and social assessments, environment and social management frameworks, environmental and social management plans, environmental and social audits, resettlement policy frameworks, and resettlement action plans required under the laws of Cape Verde, the MCC Environmental Guidelines, the MCC Gender Integration Guidelines, this Compact, the Program Implementation Agreement, or any other Supplemental Agreement, or as otherwise required by MCC, each in form and substance satisfactory to MCC; ensure that Project-specific environmental and social management plans are developed and all relevant measures contained in such plans are integrated into project design, the applicable procurement documents and associated finalized contracts, in each case in form and substance satisfactory to MCC; and implement to MCC's satisfaction appropriate environmental and social mitigation measures identified in such assessments or plans or developed to address environmental and social issues identified during implementation. Unless MCC agrees otherwise in writing, the Government will fund all necessary costs of environmental and social mitigation measures (including, without limitation, costs of resettlement) not specifically provided for, or that exceed the MCC Funding specifically allocated for such costs, in the Detailed Financial Plan for any Project.
To maximize the positive social impacts of the Projects, address cross-cutting social and gender issues such as human trafficking, child and forced labor, and HIV/AIDS, and to ensure compliance with the MCC Gender Policy and MCC Gender Integration Guidelines, MCA-Cape Verde II, on behalf of the Government, will develop a comprehensive social and gender integration plan which, at a minimum, incorporates the findings of a comprehensive gender analysis, identifies approaches for regular, meaningful and inclusive consultations with women and other vulnerable/underrepresented groups, consolidates the findings and recommendations of Project-specific social and gender analyses and sets forth strategies for incorporating findings of the social and gender analyses into final Project designs, as appropriate (“
Subject to the terms and conditions of this Compact, the Program Implementation Agreement, and any other related agreement entered into in connection with this Compact, the
The Ministry of Finance and Planning will be responsible for assisting MCA-Cape Verde II with fiscal management and ensuring appropriate fiscal accountability of MCC Funding (in such capacity, the “
The Parties expect that a dedicated unit within MCA-Cape Verde II will conduct and certify specified procurement activities in furtherance of this Compact with appropriate staffing and technical assistance support acceptable to MCC (in such capacity, the “
This Annex II summarizes the Multi-Year Financial Plan for the Program.
A multi-year financial plan summary (“
During the Compact Term, the Government will make contributions of at least US$9,934,500 (equal to 15 percent of the amount of MCC Funding committed under this Compact), to carry out the Government's responsibilities under Section 2.6(a) of this Compact. These contributions may include in-kind and financial contributions toward meeting the Program and Project Objectives. In connection with this obligation, the Government has developed a budget of the contributions it anticipates making over the five year term of the Compact. Such contributions will be in addition to the Government's spending allocated toward the Program and Project Objectives in its budget for the year immediately preceding the establishment of this Compact. The Government's contribution will be subject to any legal requirements in Cape Verde for the budgeting and appropriation of such contribution, including approval of the Government's annual budget by its legislature. The Parties shall set forth in the Program Implementation Agreement or other appropriate Supplemental Agreements certain requirements regarding this Government contribution, which requirements may be conditions precedent to the Disbursement of MCC Funding.
This Annex III generally describes the components of the Monitoring and Evaluation Plan (“
MCC and the Government will formulate and agree to, and the Government will implement or cause to be implemented, an M&E Plan that specifies: (a) How progress toward the Compact Goal, Program Objectives and Project Objectives will be monitored (“
The M&E Plan will follow a rationale that describes how proposed Activities are expected to contribute to the achievement of the Project Objectives, Program Objectives and Compact Goal.
The Compact Goal is to reduce poverty through economic growth in Cape Verde. The Program Objectives are to reduce the costs upon the economy of inefficiently provided public services and to remove institutional conditions that impede private sector investment. The Project Objective of the Water, Sanitation and Hygiene Project is to establish a financially sound, transparent and accountable institutional basis for the delivery of water and sanitation services to Cape Verdean households and firms. The outcomes of the Project Activities are: (a) Institutions and procedures required for the regulation of corporatized utilities providing water and sanitation services and operating according to commercial principles; (b) the establishment and operation of commercially oriented water utilities; (c) improved cost-effectiveness of services; and (d) improved extent, quality and reliability of services provided. The Project Objective of the Land Management for Investment Project is to reduce the time required for establishing secure property rights and to establish more conclusive land information in areas of near-term high development potential in Cape Verde. The outcomes of the Project Activities are: (a) A reduction in the average time required to establish a clear property right and to complete other land-related transactions; (b) an increase in the reliability of land rights and boundaries information; and (c) an increase in the level of development activity on targeted islands, resulting in higher levels of employment, in response to reductions in lead time to investment. The combined results of the Program are expected to contribute to Cape Verde's own poverty-reduction and economic growth goals as defined in the Cape Verde development strategy.
To monitor progress toward the achievement of the impact and outcomes of the Compact, the Monitoring Component of the M&E Plan will identify: (i) The Indicators (as defined below), (ii) the definitions of the Indicators, (iii) the sources and methods for data collection, (iv) the frequency for data collection, (v) the party or parties responsible for collecting and analyzing relevant data, and (vi) the timeline for reporting on each Indicator to MCC.
Further, the Monitoring Component will track changes in the selected Indicators for measuring progress towards the achievement of the Program Objectives and Project Objectives during the Compact Term. MCC also intends to continue monitoring and evaluating the long-term impacts of the Compact after Compact expiration. The M&E Plan will establish baselines which measure the situation prior to a development intervention, against which progress can be assessed or comparisons made (each a, “
(a) Compact Indicators. The M&E Plan will measure the results of the Program using quantitative, objective and reliable data (“
(b) Program Goal Indicator. The M&E Plan will contain an indicator related to the Compact Goal that seeks to measure the long-term sustainable performance of the Water, Sanitation and Hygiene Project and Land Management for Investment Project institutions.
(c) Other Indicators. Indicators are used to measure progress toward the expected results throughout the implementation period. Different types of indicators are needed at different points in time and to trace the Program logic. The M&E Plan will contain the indicators listed in Annex III as well as other indicators, including “common indicators,” necessary for MCC management oversight and communicating progress towards the achievement of compact results. Common Indicators are used by MCC to measure progress across Compacts within certain sectors and enable MCC to aggregate results across countries for reporting externally to key stakeholders.
The M&E Plan indicators should be kept to the minimum necessary for Program oversight, Project management and for measuring and communicating progress toward expected results for planned activities. MCA-Cape Verde II may monitor additional indicators at the Activity level for their own management and communication purposes but these need not be included in the M&E Plan nor reported to MCC, unless requested by an MCC sector lead. MCA-Cape Verde II will compile and update baselines, pending MCC written approval, for key indicators as new data becomes available.
The following are Indicators and Targets for the monitoring of the Water, Sanitation and Hygiene Project. Common indicators will be revised from their Annex III abbreviated form to conform to the MCC Common Indicator Guidance in the M&E Plan. Disaggregation by urban/rural, gender of head of household and other relevant categories will be identified in the M&E Plan.
The following table describes the key Indicators and Targets for the monitoring the Land Management for Investment Project and its relevant components, as further described in paragraph 2(e) of Part B of Annex I.
(d) Data Collection and Reporting. The M&E Plan will establish guidelines for data collection and reporting, and identify the responsible parties. For the Water, Sanitation and Hygiene Project, studies that include baseline data financed by the Compact may include: municipal non-revenue water studies, a willingness to pay and barriers to service studies, financial and tariff-setting studies, and multiple municipal utility economic viability studies conducted in all nine municipalities on the island of Santiago, in collaboration with municipal water utility authorities. The M&E Plan budget will fund additional household surveys and qualitative studies as necessary. For the Land Management for Investment Project, data may be collected through baseline studies financed by the Compact, tourism receipts, labor statistics, qualitative studies, and information about parcel boundaries and rights refined during the project and held in the databases of the Ministry of Justice and municipal governments. Data collection will support monitoring of plausible additional benefits that may result from project outcomes. Compliance with data collection and reporting timelines will be conditions for Disbursements for the relevant Activities as set forth in the Program Implementation Agreement. The M&E Plan will specify the data collection methodologies, procedures, and analysis required for reporting on results at all levels. The M&E Plan will describe any interim MCC approvals for data collection, analysis, and reporting plans.
(e) Data Quality Reviews. As determined in the M&E Plan or as otherwise requested by MCC, the quality of the data gathered through the M&E Plan will be periodically reviewed to ensure that data reported are valid, reliable, timely, precise and of good integrity. The objective of any data quality review will be to verify the quality and the consistency of performance data across different implementation units and reporting institutions. Such data quality reviews also will serve to identify where those levels of quality are not possible, given the realities of data collection. Impact evaluation consultants will provide additional quality assurance oversight.
(f) Management Information System. The M&E Plan will describe the information system that will be used to collect data, store, process and deliver information to relevant stakeholders in such a way that the Program information collected and verified pursuant to the M&E Plan is at all times accessible and useful to those who wish to use it. The system development will take into consideration the requirement and data needs of the components of the Program, and will be aligned with existing MCC systems, other service providers, and ministries.
(g) Role of MCA-Cape Verde. The monitoring and evaluation of this Compact spans two discrete Projects and multiple Activities and sub-Activities, and will involve a variety of governmental, nongovernmental, and private sector institutions. In accordance with the designation contemplated by Section 3.2(b) of this Compact, MCA-Cape Verde II is responsible for implementation of the M&E Plan. MCA-Cape Verde II will oversee all Compact-related monitoring and evaluation activities conducted for each of the Activities, ensuring that data from all implementing entities are consistent, accurately reported and aggregated into regular performance reports as described in the M&E Plan.
The Evaluation Component of the M&E Plan may contain up to three types of evaluations: impact evaluations; project performance evaluations; and special studies. Impact and performance evaluations share a common objective of assessing the likely program effects on key program outcomes; special studies can be conducted to answer any other questions that inform either program implementation, or the design or interpretation of the program evaluations. All of these evaluations will generally employ both qualitative and quantitative survey methods to improve our understanding of study-relevant questions. MCC also expects to continue monitoring and evaluating the long-term impacts of strategically selected components of MCC Compacts even after Compact expiration. If warranted, components of this Compact may be selected for these special post-Compact evaluations. As needed, MCA and MCC will evaluate the relevance of other areas of research regarding costs and benefits, and determine, given budgetary constraints, how best to allocate time and other resources to pursue them.
The Evaluation Component of the M&E Plan will describe the purpose of the evaluation, methodology, timeline, required MCC approvals, and the process for collection and analysis of data for each evaluation. The results of all evaluations will be made publicly available in accordance with MCC's Policy for Monitoring and Evaluation of Compacts and Threshold Programs.
(a) Impact/Performance Evaluation. The M&E Plan will include a description of the methods to be used to evaluate the impacts of project activities and investments on economic outcomes. Where needed, these will include plans for integrating the evaluation method into Project design. Consultations with stakeholders will help clarify the strategies outlined below, and will help to jointly determine which approaches have the strongest potential for informative and rigorous impact evaluations. The M&E Plan will further outline in detail these methodologies. Final impact evaluation strategies are to be included in the M&E Plan. All evaluation strategies will incorporate procedures for integrating gender and social concerns into its analysis. The following is a summary of the potential impact evaluation methodologies.
(i) Water, Sanitation and Hygiene Project. The evaluation will focus on three main themes: independent reviews and, as warranted, independent specification and estimation of relevant project ERRs; examining the broad institutional benefits of the changes in national policies and utility organization and management; and assessing household-level impacts of program investments and activities. At the household level, the evaluations will focus on the following program impacts on household and individual outcomes: household expenditures on water purchases and coping mechanisms; imputed value of individual time devoted to water gathering and coping; and other household and individual costs attributable to the changing water and sanitation environment.
Institutional level impacts such as reduced operating costs or losses, and increased commercial efficiency may be evaluated using a before-after comparison of utility performance. The consistency of this indicator should be assessed using any historical and current high-frequency indicators, including water supplies, revenue collections, operating costs, etc. Estimates of household and individual costs and benefits should determine patterns across social, economic and demographic groups, including gender analysis.
(ii) Land Management for Investment Project. The evaluation will focus on independent review and, if warranted, re-specification and estimation of project ERRs to account for significant changes in value-added to the economy that might not be adequately approximated in the
(b) Special Studies. The M&E Plan will include a description of the methods to be used for special studies, as necessary, funded through this Compact or by MCC. Plans for conducting the special studies will be determined jointly between the Government or MCA-Cape Verde II and MCC before the approval of the M&E Plan. The M&E Plan will identify and make provision for any other special studies,
(c) Request for
In addition to the monitoring and evaluation components, the M&E Plan will include the following components for the Program, Project and Activities, including, where appropriate, roles and responsibilities of the relevant parties and providers:
(a) Costs. A detailed cost estimate for all components of the M&E Plan; and
(b) Assumptions and Risks. Any assumption or risk external to the Program that underlies the accomplishment of the Program Objective, Project Objective and Activity outcomes and outputs.
The approval and implementation of the M&E Plan, as amended from time to time, will be in accordance with the Program Implementation Agreement, any other relevant Supplemental Agreement and the MCC Policy for Monitoring and Evaluation of Compacts and Threshold Programs.
This Annex IV sets forth the conditions precedent applicable to Disbursements of Compact Implementation Funding (each a “
Each of the following must have occurred or been satisfied prior to the Initial CIF Disbursement:
(a) The Government (or MCA-Cape Verde II) has delivered to MCC:
(i) An interim fiscal accountability plan acceptable to MCC; and
(ii) A CIF procurement plan acceptable to MCC.
Each of the following must have occurred or been satisfied prior to each CIF Disbursement:
(a) The Government (or MCA-Cape Verde II) has delivered to MCC the following documents, in form and substance satisfactory to MCC:
(i) A completed Disbursement Request, together with the applicable Periodic Reports, for the applicable Disbursement Period, all in accordance with the Reporting Guidelines;
(ii) A certificate of the Government (or MCA-Cape Verde II), dated as of the date of the CIF Disbursement Request, in such form as provided by MCC; and
(iii) If this Compact has entered into force in accordance with Article 7, (A) a Fiscal Agent Disbursement Certificate and (B) a Procurement Agent Disbursement Certificate;
(b) If any proceeds of the CIF Disbursement are to be deposited in a bank account, MCC has received satisfactory evidence that (i) the Bank Agreement has been executed and (ii) the Permitted Accounts have been established;
(c) Appointment of an entity or individual to provide fiscal agent services, as approved by MCC, until such time as the Government provides to MCC a true and complete copy of a Fiscal Agent Agreement, duly executed and in full force and effect, and the fiscal agent engaged thereby is mobilized;
(d) Appointment of an entity or individual to provide procurement agent services, as approved by MCC, until such time as the Government provides to MCC a true and complete copy of the Procurement Agent Agreement, duly executed and in full force and effect, and the procurement agent engaged thereby is mobilized; and
(e) MCC is satisfied, in its sole discretion, that:
(i) The activities being funded with such CIF Disbursement are necessary, advisable or otherwise consistent with the goal of facilitating the implementation of the Compact and will not violate any applicable law or regulation;
(ii) No material default or breach of any covenant, obligation or responsibility by the Government, MCA-Cape Verde II or any Government entity has occurred and is continuing under this Compact or any Supplemental Agreement;
(iii) There has been no violation of, and the use of requested funds for the purposes requested will not violate, the limitations on use or treatment of MCC Funding set forth in Section 2.7 of this Compact or in any applicable law or regulation;
(iv) Any Taxes paid with MCC Funding through the date ninety (90) days prior to the start of the applicable Disbursement Period have been reimbursed by the Government in full in accordance with Section 2.8(c) of this Compact; and
(v) The Government has satisfied all of its payment obligations, including any insurance, indemnification, tax payments or other obligations, and contributed all resources required from it, under this Compact and any Supplemental Agreement.
MCC is satisfied, in its sole discretion, that:
(a) MCC has received copies of any reports due from any technical consultants (including environmental auditors engaged by MCA-Cape Verde II) for any Activity since the previous Disbursement Request, and all such
(b) The Implementation Plan Documents and Fiscal Accountability Plan are current and updated and are in form and substance satisfactory to MCC, and there has been progress satisfactory to MCC on the components of the Implementation Plan for the Projects or any relevant Activities related to such CIF Disbursement;
(c) There has been progress satisfactory to MCC on the M&E Plan and Social and Gender Integration Plan for the Program or Project or relevant Activity and substantial compliance with the requirements of the M&E Plan and Social and Gender Integration Plan (including the targets set forth therein and any applicable reporting requirements set forth therein for the relevant Disbursement Period);
(d) There has been no material weakness or significant deficiency identified in any financial audit report delivered in accordance with this Compact and the Audit Plan, for the prior audit period which is not being sufficiently addressed in a corrective action plan satisfactory to MCC;
(e) MCC does not have grounds for concluding that any matter certified to it in the related MCA Disbursement Certificate, the Fiscal Agent Disbursement Certificate or the Procurement Agent Disbursement Certificate is not as certified;
(f) If any of the officers or key staff of MCA-Cape Verde II have been removed or resigned and the position remains vacant, MCA-Cape Verde II actively engaged in recruiting a replacement; and
(g) MCC has not determined, in its sole discretion, that an act, omission, condition, or event has occurred that would be the basis for MCC to suspend or terminate, in whole or in part, the Compact or MCC Funding in accordance with Section 5.1 of this Compact.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council (NAC).
Thursday, March 8, 2012, 8 a.m.–5 p.m., local time and Friday, March 9, 2012, 8 a.m.–12 p.m., local time.
NASA Headquarters, 300 E Street SW., Room 9H40, (PRC), Washington, DC 20456.
Ms. Marla King, NAC Administrative Officer, National Aeronautics and Space Administration Headquarters, Washington, DC 20546, 202/358–1148.
The agenda for the meeting will include the following:
The meeting will be open to the public up to the seating capacity of the room. This meeting is also available telephonically and by WebEx. You must use a touch tone phone to participate in this meeting. Any interested person may dial the toll free access number, 1–866–753–1451 or toll access number 1–203–875–1553 and then the numeric participant passcode: 6957984 followed by the # sign. To join via WebEx, the link is
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants. Visitors will need to show a valid picture identification such as a driver's license to enter the NASA Headquarters building (West Lobby—Visitor Control Center), and must state that they are attending the NASA Advisory Council meeting in room 9H40 before receiving an access badge. Foreign nationals attending this meeting will be required to provide a copy of their passport, visa, or green card in addition to providing the following information no less than 10 working days prior to the meeting: full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); passport information (number, country, telephone); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information three working days in advance by contacting Ms. Marla King, via email at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Audit, Finance and Analysis Committee of the NASA Advisory Council.
Wednesday, March 7, 2012, 9 a.m.—10:45 a.m., local time.
NASA Headquarters. 300 E Street SW., Conference Room 8D48, Washington, DC 20546.
Ms. Charlene Williams, Office of the Chief Financial Officer, National Aeronautics and Space Administration Headquarters, Washington, DC 20546. Phone: 202–358–2183.
The agenda for the meeting includes a briefing on:
• Administrative Savings.
The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Visitors will need to show a valid picture identification such as a driver's license to enter the NASA Headquarters building (West Lobby—Visitor Control Center), and must state that they are attending the Audit, Finance, and Analysis Committee meeting in room 8R40 before receiving an access badge. Foreign nationals attending this meeting will be required to provide a copy of their passport, visa, or green card in addition to providing the following
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from January 26, 2012 to February 8, 2012. The last biweekly notice was published on February 7, 2012 (77 FR 6144).
You may access information and comment submissions related to this document, which the NRC possesses and is publicly-available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC–2012–0038 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly-available, by the following methods:
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Please include Docket ID NRC–2012–0038 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR) 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC regulations are accessible electronically from the NRC Library on the NRC Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
The NRC staff issued a notice of availability of a model safety evaluation and model no significant hazards consideration (NSHC) determination for referencing in license amendment applications in the
The proposed change to the RCP flywheel examination frequency does not change the response of the plant to any accidents. The RCP will remain highly reliable and the proposed change will not result in a significant increase in the risk of plant operation. Given the extremely low failure probabilities for the RCP motor flywheel during normal and accident conditions, the extremely low probability of a loss-of-coolant accident (LOCA) with loss of offsite power (LOOP), and assuming a conditional core damage probability (CCDP) of 1.0 (complete failure of safety systems), the core damage frequency (CDF) and change in risk would still not exceed the NRC's acceptance guidelines contained in Regulatory Guide (RG) 1.174 (<1.0E–6 per year). Moreover, considering the uncertainties involved in this evaluation, the risk associated with the postulated failure of an RCP motor flywheel is significantly low. Even if all four RCP motor flywheels are considered in the bounding plant configuration case, the risk is still acceptably low.
The proposed change does not adversely affect accident initiators or precursors, nor alter the design assumptions, conditions, or configuration of the facility, or the manner in which the plant is operated and maintained; alter or prevent the ability of structures, systems, and components (SSCs) from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits; or affect the source term, containment
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change in flywheel inspection frequency does not involve any change in the design or operation of the RCP. Nor does the change to examination frequency affect any existing accident scenarios, or create any new or different accident scenarios. Further, the change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or alter the methods governing normal plant operation. In addition, the change does not impose any new or different requirements or eliminate any existing requirements, and does not alter any assumptions made in the safety analysis. The proposed change is consistent with the safety analysis assumptions and current plant operating practice.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined. The safety analysis acceptance criteria are not impacted by this change. The proposed change will not result in plant operation in a configuration outside of the design basis. The calculated impact on risk is insignificant and meets the acceptance criteria contained in RG 1.174. There are no significant mechanisms for inservice degradation of the RCP flywheel.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
These changes affect the North Anna and Surry Power Station Emergency Action Levels, but do not alter any of the requirements of the Operating License or the Technical Specifications. The proposed changes do not modify any plant equipment and do not impact any failure modes that could lead to an accident. Additionally, the proposed changes have no effect on the consequences of any analyzed accident since the changes do not affect any equipment related to accident mitigation. Based on this discussion, the proposed amendment does not increase the probability or consequence of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
These changes affect the North Anna and Surry Power Station Emergency Action Levels, but do not alter any of the requirements of the Operating License or the Technical Specifications. They do not modify any plant equipment and there is no impact on the capability of the existing equipment to perform their intended functions. No system setpoints are being modified. No new failure modes are introduced by the proposed changes. The proposed amendment, does not introduce any accident initiators or malfunctions that would cause a new or different kind of accident.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
These changes affect the North Anna and Surry Power Station Emergency Action Levels, but do not alter any of the requirements of the Operating License or the Technical Specifications. The proposed changes do not affect any of the assumptions used in the accident analysis, nor do they affect any operability requirements for equipment important to plant safety.
Therefore, the proposed changes will not result in a significant reduction in the margin of safety in operation of the facility as discussed in this license amendment request.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The supplemental letter contained clarifying information and did not change the initial no significant hazards consideration determination, and did not expand the scope of the original
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated January 27, 2012.
The supplemental letters dated October 6 and 18, 2011, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated January 31, 2012.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated January 30, 2012.
The supplemental letter provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the U.S. Nuclear Regulatory Commission (NRC) staff's original proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated January 30, 2012.
The letters dated August 29, and December 16, 2011, and January 26, 2012, provided clarifying information that did not change the initial proposed no significant hazards consideration determination or expand the application.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 8, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated January 24, 2012.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Reliability and PRA will hold a meeting on March 7, 2012, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will be briefed on the progress made for the tabletop exercises as part of the response to the SRM on SECY 10–0121, Modifying the Risk-Informed Regulatory Guidance For New Reactors. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), John Lai (Telephone 301–415–5107 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (240–888–9835) to be escorted to the meeting room.
Nuclear Regulatory Commission, [NRC–2012–0002].
Week of February 20, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301–415–2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Office of Personnel Management.
Establishment of advisory committee.
The CFC–50 Advisory Commission will hold its third and final meeting on March 2, 2012, at the time and location shown below. The Commission shall advise the Director of the U.S. Office of Personnel Management (OPM) on strengthening the integrity, the operation and effectiveness of the Combined Federal Campaign (CFC) to ensure its continued growth and success. The Commission is an advisory committee composed of Federal employees, private campaign administrators, charitable organizations and “watchdog” groups. The Commission is co-chaired by Thomas Davis and Beverly Byron.
The meeting is open to the public. Please contact the Office of Personnel Management at the address shown below if you wish to present material to the Commission at the meeting. The manner and time prescribed for presentations may be limited, depending upon the number of parties that express interest in presenting information.
March 2, 2012 at 1:00 p.m. CST.
Keith Willingham, Director, Combined Federal Campaign, U.S. Office of Personnel Management, 1900 E St. NW., Suite 6484, Washington, DC 20415. Phone (202) 606–2564 FAX (202) 606–5056 or email at
U.S. Office of Personnel Management.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of C$ cMoney, Inc. (“cMoney”) because of questions regarding the accuracy of assertions by cMoney, and by others, in press releases to investors and other public statements concerning, among other things, the identity of persons controlling the operations, management and securities of the company, the purported engagement of an independent auditor and the status of the company's audit.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Nikron Technologies, Inc. (“Nikron”) because of possible manipulative conduct occurring in the market for the company's stock. Nikron is quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker symbol “NKRN.”
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade shares of the BNP Paribas S&P Dynamic Roll Global Commodities Fund under NYSE Arca Equities Rule 8.200. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Arca Equities Rule 8.200, Commentary .02 permits the trading of Trust Issued Receipts (“TIRs”) either by listing or pursuant to unlisted trading privileges (“UTP”).
BNP Paribas Exchange Traded Trust (“Trust”) is organized in series as a Delaware statutory trust. As of the date hereof, the Trust consists of two series, one of which is the Fund.
The Exchange notes that the Commission has previously approved the listing and trading of other issues of TIRs on the American Stock Exchange LLC (“Amex”),
Wilmington Trust Company (“Trustee”), a Delaware trust company, is the sole trustee of the Trust.
BNP Paribas Quantitative Strategies, LLC (“Managing Owner”), a Delaware limited liability company, serves as Managing Owner of the Trust and the Fund. The Managing Owner is a wholly-owned subsidiary of Paribas North America, Inc., which is a wholly-owned, indirect subsidiary of BNP Paribas, which is affiliated with a broker-dealer.
Standard and Poor's is the Index Sponsor.
The Bank of New York Mellon is the administrator (“Administrator”) of the Fund, as well as the custodian (“Custodian”) and transfer agent (“Transfer Agent”).
According to the Registration Statement, the investment objective of the Fund is to track changes, whether positive or negative, in the level of the S&P GSCI® Dynamic Roll Excess Return Index (“Index”) over time. The Fund does not intend to outperform the Index. The Managing Owner will seek to cause changes in the net asset value (“NAV”) per Share of the Fund to track changes in the level of the Index during periods in which the Index is rising, flat or declining.
The Fund seeks to achieve its investment objective by investing in exchange-traded futures (“Designated Contracts”) on the commodities (as set forth in Table 1 below) comprising the Index (“Index Commodities”), with a view to tracking the Index over time.
Specifically, once position limits in a Designated Contract are reached or a Futures Exchange imposes limitations on the Fund's ability to maintain or increase its positions in a Designated Contract after reaching accountability levels or a price limit is in effect on a Designated Contract during the last 30 minutes of its regular trading session, the Fund's intention is to invest first in Cleared Swaps to the extent permitted under the position limits applicable to Cleared Swaps and appropriate in light of the liquidity in the Cleared Swaps market, and then, using its commercially reasonable judgment, in Substitute Contracts or in Alternative Financial Instruments (collectively, “Other Commodity Interests” and together with Designated Contracts and Cleared Swaps, “Index Commodity Interests”). By utilizing certain or all of these investments, the Managing Owner will endeavor to cause the Fund's performance to track the performance of the Index. The circumstances under which such investments in Other Commodity Interests may be utilized (
According to the Registration Statement, the Fund seeks to achieve its investment objective by investing in Index Commodity Interests such that daily changes in the Fund's NAV per Share will be expected to track the changes in the level of the Index. The Fund's positions in Index Commodity Interests will be changed or “rolled” on a regular basis in order to track the changing nature of the Index. For example, at each monthly roll determination date, roll algorithms measure the current shape of the forward curves of the eligible futures contract prices for each Index Commodity to search for the optimal contract months along the curve to roll into, subject to using only the most liquid of all available contracts of a given commodity. Since the futures contract being rolled out of will no longer be included in the Index, the Fund's investments will have to be changed accordingly.
Consistent with achieving the Fund's investment objective of tracking the Index, the Managing Owner may, after reaching position limits in the Designated Contracts or when a Futures Exchange has imposed limitations on the Fund's ability to maintain or increase its positions in a Designated Contract after reaching accountability levels or a price limit is in effect on a Designated Contract during the last 30 minutes of its regular trading session, cause the Fund to first enter into or hold Cleared Swaps and then, if applicable, enter into or hold Other Commodity Interests. For example, certain Cleared Swaps have standardized terms similar to, and are priced by reference to, a corresponding Designated Contract. Additionally, Alternative Financial Instruments that do not have standardized terms and are not exchange-traded (“over-the-counter” Alternative Financial Instruments), can generally be structured as the parties desire. Therefore, the Fund might first enter into multiple Cleared Swaps and then, if applicable, enter into over-the-counter Alternative Financial Instruments intended to replicate the performance of each of the Designated Contracts, or a single over-the-counter Alternative Financial Instrument designed to replicate the performance of the Index as a whole. According to the Registration Statement, assuming that there is no default by a counterparty to an over-the-counter Alternative Financial Instrument, the performance of the over-the-counter Alternative Financial Instrument will correlate with the performance of the Index or the applicable Designated Contract. After reaching position limits in the Designated Contracts or when a Futures Exchange has imposed limitations on the Fund's ability to maintain or increase its positions in a Designated Contract after reaching accountability levels or a price limit is in effect on a Designated Contract during the last 30 minutes of its regular trading session, and after entering into or holding Cleared Swaps, the Fund might also enter into or hold over-the-counter Alternative Financial Instruments to facilitate effective trading, consistent with the discussion of the Fund's “roll” strategy in the preceding paragraph. In addition, after reaching position limits in the Designated Contracts or when a Futures Exchange has imposed limitations on the Fund's ability to maintain or increase its positions in a Designated Contract after reaching accountability levels or a price limit is in effect on a Designated Contract during the last 30 minutes of its regular trading session, and after entering into or holding Cleared Swaps, the Fund might enter into or hold over-the-counter Alternative Financial Instruments that would be expected to alleviate overall deviation between the Fund's performance and that of the Index that may result from certain market and trading inefficiencies or other reasons.
The Fund will invest in Index Commodity Interests to the fullest extent possible without being leveraged or unable to satisfy its expected current or potential margin or collateral obligations with respect to its investments in Index Commodity Interests.
According to the Registration Statement, the Managing Owner will employ an investment strategy intended to track changes in the level of the Index
According to the Registration Statement, the Index is currently composed of Designated Contracts on 24 Index Commodities, each of which is subject to speculative position limits and other position limitations, as applicable, which are imposed by either the CFTC or the rules of the Futures Exchanges on which the Designated Contracts are traded. These position limits prohibit any person from holding a position of more than a specific number of such Designated Contracts (or Substitute Contracts, if applicable). The purposes of these limits are to diminish, eliminate or prevent sudden or unreasonable fluctuations or unwarranted changes in the prices of futures contracts. For example, speculative position limits in the physical delivery markets are set at a stricter level during the month when the futures contract matures and becomes deliverable, known as the “spot month,” versus the limits set for all other months. Position limits are fixed ceilings that the Fund would not be able to exceed without specific Futures Exchange authorization. Under current law, all Designated Contracts traded on a particular Futures Exchange that are held under the control of the Managing Owner, including those held by any future series of the Trust, are aggregated in determining the application of applicable position limits.
In addition to position limits, the Futures Exchanges may establish daily price fluctuation limits on futures contracts. The daily price fluctuation limit establishes the maximum amount that the price of futures contracts may vary either up or down from the previous day's settlement price. Once the daily price fluctuation limit has been reached in a particular futures contract, no trades may be made at a price beyond that limit. Futures Exchanges may also establish accountability levels applicable to futures contracts. A Futures Exchange may order a person who holds or controls aggregate positions in excess of specified position accountability levels not to further increase the positions, to comply with any prospective limit which exceeds the size of the position owned or controlled, or to reduce any open position which exceeds position accountability levels if the Futures Exchange determines that such action is necessary to maintain an orderly market. Position limits, accountability levels, and daily price fluctuation limits set by the Futures Exchanges have the potential to cause tracking error, which could cause changes in the NAV per Share to substantially vary from changes in the level of the Index and prevent an investor from being able to effectively use the Fund as a way to indirectly invest in the global commodity markets.
The Fund will be subject to these speculative position limits and other limitations, as applicable, and, consequently, the Fund's ability to issue new Baskets (as defined below) or to reinvest income in additional Designated Contracts may be limited to the extent these activities would cause the Fund to exceed its applicable limits unless the Fund trades Cleared Swaps, Substitute Contracts or other Alternative Financial Instruments (if any) in addition to and as a proxy for Designated Contracts. These limits and the use of Cleared Swaps, Substitute Contracts or other Alternative Financial Instruments (if any) in addition to or as a proxy for Designated Contracts may affect the correlation between changes in the NAV per Share and changes in the level of the Index, and the correlation between the market price of the Shares, as traded on NYSE Arca, and the NAV per Share.
The Fund does not intend to limit the size of the offering and will attempt to expose substantially all of its proceeds to the Index Commodities utilizing Index Commodity Interests. If the Fund encounters position limits, accountability levels, or price fluctuation limits for Designated Contracts and/or Cleared Swaps, it may then, if permitted under applicable regulatory requirements, purchase Alternative Financial Instruments and/or Substitute Contracts listed on other domestic or foreign exchanges. However, the commodity futures contracts available on such foreign exchanges may have different underlying sizes, deliveries, and prices. In addition, the commodity futures contracts available on these exchanges may be subject to their own position limits and accountability levels. In any case, notwithstanding the potential availability of these instruments in certain circumstances, position limits could force the Fund to limit the number of Baskets (as defined below) that it sells.
The Index aims to reflect the return of an investment in a world production-weighted portfolio comprised of the principal physical commodities that are the subject of active, liquid futures markets. The Index employs a flexible and systematic futures contract rolling methodology, which seeks to maximize yield from rolling long futures contracts in certain markets (backwardated markets) and minimize roll loss from rolling long futures positions in certain markets (contangoed markets), as further described in the Registration Statement.
The Index was developed by the Index Sponsor and is an index on a world production-weighted basket of principal physical commodities. The Index reflects the level of commodity prices at a given time and is designed to be a measure of the return over time of the markets for these commodities. The Index is an excess return commodity index comprised of Designated Contracts that are replaced periodically.
The Index utilizes the S&P GSCI® Dynamic Roll Index Methodology, a monthly futures contract rolling methodology that determines the new futures contract months for the underlying commodities, as described in the Registration Statement.
The S&P GSCI® Dynamic Roll Index Methodology is designed to maximize yield from rolling long futures contracts in backwardated markets and minimize roll loss from rolling long futures positions in contangoed markets. A “backwardated” market means a market in which the prices of certain commodity futures contracts are higher for contracts with shorter-term expirations than for contracts with longer-term expirations. A
The Index is comprised of Designated Contracts, which are futures contracts on the Index Commodities. The Index Commodities are diversified across five different categories: Energy, agriculture, industrial metals, precious metals and livestock. The Index reflects the return associated with the change in prices of the underlying Designated Contracts on the Index Commodities together with the “roll yield” (as discussed below) associated with these Designated Contracts (the price changes of the Designated Contracts and roll yield, taken together, constitute the “excess return” reflected by the Index). There is no limit on the number of Designated Contracts that may be included in the Index. Any contract satisfying the eligibility criteria will become a Designated Contract and will be included in the Index. All of the Designated Contracts are exchange-traded futures contracts.
According to the Registration Statement, a fundamental characteristic of the Index is that as a result of being comprised of futures contracts on the applicable Index Commodity, the Fund must be managed to ensure it does not take physical delivery of each respective Index Commodity. This is achieved through a process referred to as “rolling” under which a given futures contract during a month in which it approaches its settlement date is rolled forward to a new contract date (
Roll yield is generated during the roll process from the difference in price between the near-term and longer-dated futures contracts. The futures curve is a hypothetical curve created by plotting futures contract prices for a particular Index Commodity. When longer-dated contracts are priced lower than the nearer contract and spot prices, the market is in “backwardation” represented by a downward sloping futures curve, and positive roll yield is generated when higher-priced near-term futures contracts are “sold” to “buy” lower priced longer-dated contracts. When the opposite is true and longer-dated contracts are priced higher, the market, which is in “contango,” is represented by an upward sloping futures curve, and negative roll yields result from the “sale” of lower priced near-term futures contracts to “buy” higher priced longer-dated contracts. While many of the Index Commodities may have historically exhibited consistent periods of backwardation, backwardation will most likely not exist at all times. Moreover, certain of the Index Commodities may have historically traded in contango markets.
The Designated Contracts currently included in the Index, the Futures Exchanges on which they are traded, their market symbols and their reference percentage dollar weights are as follows:
The quantity of each of the Designated Contracts included in the Index (“Contract Production Weight” or “CPW”) is determined on the basis of a five-year average, referred to as the “world production average,” of the production quantity of the underlying commodity as published by a number of official sources as provided in the S&P GSCI® Dynamic Roll Index Methodology. However, if an Index Commodity is primarily a regional commodity, based on its production, use, pricing, transportation or other factors, the Index Sponsor, in consultation with the Index Committee (described below), may calculate the weight of that Index Commodity based on regional, rather than world, production data. At present, natural gas is the only Index Commodity the weights of which are calculated on the basis of regional production data, with the relevant region defined as North America.
The five-year average is updated annually for each Index Commodity
In addition, the Index Sponsor performs this calculation on a monthly basis and, if the TVM of any Designated Contract is below the TVMT, the composition of the Index is reevaluated, based on the criteria and weighting procedure described above. This procedure is undertaken to allow the Index to shift from Designated Contracts that have lost substantial liquidity into more liquid contracts during the course of a given year. As a result, it is possible that the composition or weighting of the Index will change on one or more of these monthly evaluation dates. The likely circumstances under which the Index Sponsor would be expected to change the composition of the Index during a given year, however, are (1) a substantial shift of liquidity away from a Designated Contract included in the Index as described above, or (2) an emergency, such as a natural disaster or act of war or terrorism, that causes trading in a particular contract to cease permanently or for an extended period of time. In either event, the Index Sponsor will publish the nature of the changes, through Web sites, news media or other outlets, with as much prior notice to market participants as is reasonably practicable. Moreover, regardless of whether any changes have occurred during the year, the Index Sponsor reevaluates the composition of the Index at the conclusion of each year, based on the above criteria. Other commodities that satisfy that criteria, if any, will be added to the Index. Commodities included in the Index that no longer satisfy that criteria, if any, will be deleted.
The Index Sponsor also determines whether modifications in the selection criteria or the methodology for determining the composition and weights of and for calculating the Index are necessary or appropriate in order to assure that the Index represents a measure of commodity market return. The Index Sponsor has the discretion to make any such modifications.
The value, or the total dollar weight, of the Index on each business day is equal to the sum of the dollar weights of each of the Index Commodities. The dollar weight of each Index Commodity on any given day is equal to the product of (i) the weight of such Index Commodity, (ii) the daily contract reference price for the appropriate Designated Contracts, and (iii) the applicable “roll weights” during a Roll Period.
The daily contract reference price used in calculating the dollar weight of each Index Commodity on any given day is the most recent daily contract reference price for the applicable Designated Contract made available by the relevant trading facility, except that the daily contract reference price for the most recent prior day will be used if the Futures Exchange is closed or otherwise fails to publish a daily contract reference price on that day. If the trading facility fails to make a daily contract reference price available or if the Index Sponsor determines, in its reasonable judgment, that the published daily contract reference price reflects manifest error, the relevant calculation will be delayed until the price is made available or corrected. If the daily contract reference price is not made available or corrected by 4 p.m., Eastern Time (“E.T.”), the Index Sponsor may determine, in its reasonable judgment, the appropriate daily contract reference price for the applicable Designated Contract in order to calculate the Index.
The Index Sponsor has established an Index Committee to oversee the daily management and operations of the Index, and is responsible for all analytical methods and calculation of the Index. The Index Committee is comprised of full-time professional members of the Index Sponsor's staff. At each meeting, the Index Committee reviews any issues that may affect Index constituents, statistics comparing the composition of the Index to the market, commodities that are being considered as candidates for addition to the Index, and any significant market events. In addition, the Index Committee may revise Index policy covering rules for selecting commodities, or other matters.
The Index Sponsor considers information about changes to the Index and related matters to be potentially market moving and material. Therefore, all Index Committee discussions are confidential.
In addition, the Index Sponsor has established a “Commodity Index Advisory Panel” to assist it with the operation of the Index. The Commodity Index Advisory Panel meets on an annual basis and at other times at the request of the Index Committee. The principal purpose of the Commodity Index Advisory Panel is to advise the Index Committee with respect to, among other things, the calculation of the Index, the effectiveness of the Index as a measure of commodity futures market return, and the need for changes in the composition or the methodology of the Index. The Commodity Index Advisory Panel acts solely in an advisory and consultative capacity. The Index Committee makes all decisions with respect to the composition, calculation
Additional information regarding the composition of the Index and Index Methodology is included in the Registration Statement.
According to the Registration Statement, the NAV with respect to the Fund means the total assets of the Fund including, but not limited to, all cash and cash equivalents or other debt securities less total liabilities of the Fund, each determined on the basis of generally accepted accounting principles. In particular, NAV includes any unrealized profit or loss on open Designated Contracts, Cleared Swaps, Substitute Contracts and Alternative Financial Instruments (if any) and any other credit or debit accruing to the Fund but unpaid or not received by the Fund. All open commodity futures contracts traded on a U.S. or non-U.S. exchange will be calculated at their then current market value, which will be based upon the settlement price for that particular commodity futures contract traded on the applicable U.S. or non-U.S. exchange on the date with respect to which NAV is being determined; provided, that if a commodity futures contract traded on a U.S. or non-U.S. exchange could not be liquidated on such day, due to the operation of daily limits (if applicable) or other rules of the exchange upon which that position is traded or otherwise, the settlement price on the most recent day on which the position could have been liquidated will be the basis for determining the market value of such position for such day.
The Managing Owner may in its discretion (and under extraordinary circumstances, including, but not limited to, periods during which a settlement price of a futures contract is not available due to exchange limit orders or force majeure type events such as systems failure, natural or man-made disaster, act of God, armed conflict, act of terrorism, riot or labor disruption or any similar intervening circumstance) value any asset of the Fund pursuant to such other principles as the Managing Owner deems fair and equitable so long as such principles are consistent with normal industry standards.
In calculating the NAV of the Fund, the settlement value of an Alternative Financial Instrument (if any) will be determined by either applying the then-current disseminated value for the Designated Contracts or the terms as provided under the applicable Alternative Financial Instrument. However, in the event that the Designated Contracts are not trading due to the operation of daily limits or otherwise, the Managing Owner may in its sole discretion choose to value the Fund's Alternative Financial Instrument (if any) on a fair value basis in order to calculate the Fund's NAV.
NAV per Share will be the NAV of the Fund divided by the number of its outstanding Shares.
The Fund will create and redeem Shares from time-to-time in one or more “Baskets” of 40,000 Shares each. Baskets may be created or redeemed only by Authorized Participants. Baskets will be created and redeemed continuously as of noon, E.T., on the business day immediately following the date on which a valid order to create or redeem a Basket is accepted by the Fund. Baskets will be created and redeemed at the NAV of 40,000 Shares as of the close of the NYSE Arca Core Trading Session (9:30 a.m. to 4 p.m., E.T.) or the last to close of the Futures Exchanges on which the Designated Contracts or Substitute Contracts are traded, whichever is later, on the date that a valid order to create or redeem a Basket is accepted by the Fund. For purposes of processing both purchase and redemption orders, a “business day” means any day other than a day when each of NYSE Arca and banks in both New York City and London are required or permitted to be closed. Except when aggregated in Baskets, the Shares are not redeemable securities.
Purchase and redemption orders must be placed by 10 a.m., E.T. The day on which the Managing Owner receives a valid purchase or redemption order will be the purchase or redemption order date. Purchase and redemption orders will be irrevocable.
The total cash payment required to create each Basket will be the NAV of 40,000 Shares as of the closing time of NYSE Arca Core Trading Session or the last to close of the Futures Exchanges on which the Fund's Designated Contracts or Substitute Contracts are traded, whichever is later, on the purchase order date. The redemption proceeds from the Fund will consist of the cash redemption amount. The cash redemption amount will be equal to the NAV of the number of Basket(s) requested in the Authorized Participant's redemption order as of the closing time of NYSE Arca Core Trading Session or the last to close of the Futures Exchanges on which the Fund's Designated Contracts or Substitute Contracts are traded, whichever is later, on the redemption order date.
The Fund may suspend the creation of Baskets if the Fund has reached speculative position or other limits with respect to the Fund's holdings of Designated Contracts on one or more Index Commodities and the Fund is unable to gain an exposure to the Index Commodities based upon Alternative Financial Instruments to the Designated Contracts on the Index Commodities.
The Fund will meet the initial and continued listing requirements applicable to TIRs in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto. With respect to application of Rule 10A–3 under the Act,
A more detailed description of the Shares, the Fund, the Index and the Index Commodities, as well as investment risks, creation and redemption procedures and fees is set forth in the Registration Statement.
The Managing Owner's Web site,
The Fund will provide Web site disclosure of portfolio holdings daily and will include, as applicable, the names, quantity, price and market value of Designated Contracts, Cleared Swaps, Substitute Contracts and Alternative Financial Instruments, if any, and the characteristics of such instruments and cash equivalents, and amount of cash held in the portfolio of the Fund. This Web site disclosure of the portfolio composition of the Fund will occur at the same time as the disclosure by the Managing Owner of the portfolio composition to Authorized Participants so that all market participants are provided portfolio composition information at the same time. Therefore, the same portfolio information will be provided on the public Web site as well as in electronic files provided to Authorized Participants. Accordingly, each investor will have access to the current portfolio composition of the Fund through the Fund's Web site. The prices of the Designated Contracts, Cleared Swaps, Substitute Contracts and exchange-traded cash settled options are available from the applicable exchanges and market data vendors. The Managing Owner will publish the NAV of the Fund and the NAV per Share daily.
The S&P GSCI® Dynamic Roll Index Methodology is provided by the Index Sponsor on its Web site. The Index Sponsor calculates and publishes the value of the Index continuously (“Intraday Index Value”) on each business day, with such values updated every 15 seconds. The Index Sponsor provides the Intraday Index Value and the closing levels of the Index for each business day to market data vendors.
The intra-day indicative value (“IIV”) per Share of the Fund will be based on the prior day's final NAV per Share, adjusted every 15 seconds during the Core Trading Session to reflect the continuous price changes of the Fund's Designated Contracts and other holdings. The IIV per Share will be be [sic] widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session
The final NAV of the Fund and the final NAV per Share will be calculated as of the closing time of NYSE Arca Core Trading Session or the last to close of the Futures Exchanges on which the Designated Contracts or Substitute Contracts (which are listed on futures exchanges other than Futures Exchanges) are traded, whichever is later, and posted in the same manner. Although a time gap may exist between the close of the NYSE Arca Core Trading Session and the close of the Futures Exchanges on which the Designated Contracts or Substitute Contracts (which are listed on futures exchanges other than Futures Exchanges) are traded, there is no effect on the NAV calculations as a result.
The NAV for the Fund will be disseminated to all market participants at the same time. The Exchange will also make available on its Web site daily trading volume of the Shares, closing prices of such Shares, and the corresponding NAV. The closing prices and settlement prices of futures on the Index Commodities are also readily available from the Web sites of the applicable Futures Exchanges, automated quotation systems, published or other public sources, or on-line information services such as Bloomberg or Reuters. The relevant futures exchanges on which the underlying futures contracts are listed also provide delayed futures information on current and past trading sessions and market news free of charge on their respective Web sites. The specific contract specifications for the futures contracts are also available on such Web sites, as well as other financial informational sources. Quotation and last-sale information regarding the Shares will be disseminated through the facilities of the CTA.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m., E.T. The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
The trading of the Shares will be subject to NYSE Arca Equities Rule 8.200(e), which sets forth certain restrictions on Equity Trading Permit (“ETP”) Holders acting as registered Market Makers in TIRs to facilitate surveillance. See “Surveillance” below for more information.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the underlying futures contracts; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares will be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule
The Exchange represents that the Exchange may halt trading during the day in which an interruption to the dissemination of the IIV, the Index or the value of the underlying futures contracts occurs. If the interruption to the dissemination of the IIV, the Index or the value of the underlying futures contracts persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. In addition, if the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products, including TIRs, to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillances focus on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. The Exchange is able to obtain information regarding trading in the Shares, the physical commodities included in, or options, futures or options on futures on, Shares through ETP Holders, in connection with such ETP Holders' proprietary or customer trades through ETP Holders which they effect on any relevant market. The Exchange can obtain market surveillance information, including
In addition, with respect to Fund assets traded on exchanges, not more than 10% of the weight of such assets in the aggregate shall consist of components whose principal trading market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
The Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (1) The risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV will not be calculated or publicly disseminated; (2) the procedures for purchases and redemptions of Shares in Baskets (and that Shares are not individually redeemable); (3) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (4) how information regarding the IIV is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Information Bulletin will advise ETP Holders, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Fund. The Exchange notes that investors purchasing Shares directly from the Fund will receive a prospectus. ETP Holders purchasing Shares from the Fund for resale to investors will deliver a prospectus to such investors. The Information Bulletin will also discuss any exemptive, no-action and interpretive relief granted by the Commission from any rules under the Act.
In addition, the Information Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Information Bulletin will also reference that the CFTC has regulatory jurisdiction over the Index Commodities traded on U.S. markets.
The Information Bulletin will also disclose the trading hours of the Shares of the Fund and that the NAV for the Shares is calculated after 4 p.m., E.T. each trading day. The Bulletin will disclose that information about the Shares of the Fund is publicly available on the Fund's Web site.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.200 and Commentary .02 thereto. The Fund seeks to achieve its investment objective by investing in Designated Contracts on the Index Commodities, with a view to tracking the Index over time. In certain circumstances, and to a limited extent, the Fund may also invest in Cleared-Swaps or in Substitute Contracts, or in Alternative Financial Instruments referencing the particular Index Commodity in furtherance of its investment objective if, in the commercially reasonable judgment of the Managing Owner, such instruments tend to exhibit trading prices or returns that generally correlate with the Index Commodities. Once position limits in a Designated Contract are reached or a Futures Exchange imposes limitations on the Fund's ability to maintain or increase its positions in a Designated Contract after reaching accountability levels or a price limit is in effect on a Designated Contract during the last 30 minutes of its regular trading session, the Fund's intention is to invest first in Cleared Swaps to the extent permitted under the position limits applicable to Cleared Swaps and appropriate in light of the liquidity in the Cleared Swaps market, and then, using its commercially reasonable judgment, in Substitute Contracts or in Alternative Financial Instruments. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. With respect to Fund assets traded on exchanges, not more than 10% of the weight of such assets in the aggregate shall consist of components whose principal trading market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. The Managing Owner is affiliated with a broker-dealer and has implemented procedures designed to prevent the use and dissemination of material, non-public information regarding the Index. The Index Committee and the Commodity Index Advisory Panel are subject to procedures designed to prevent the use and dissemination of material, non-public information regarding the Index. The NAV for the Fund will be disseminated to all market participants at the same time. The Fund will provide Web site disclosure of portfolio holdings daily, as described above. The Index value will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session and on the Managing Owner's Web site (on a delayed basis). The Exchange will also make available on its Web site daily trading volume of each of the Shares, closing prices of such Shares, and the corresponding NAV. The prices of the Designated Contracts, Cleared Swaps, Substitute Contracts and exchange-traded cash settled options are available from the applicable exchanges and market data vendors. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the underlying futures contracts, or (2) whether other unusual conditions or
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. The NAV for the Fund will be disseminated to all market participants at the same time. The IIV per Share will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session and on the Managing Owner's Web site. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, IIV, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CHX proposes to amend its Fee Schedule, effective February 16, 2012, to amend its Fee Schedule [sic] to implement a Clearing Submission Fee Credit for Institutional Brokers.
The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Through this filing, the Exchange proposes to amend its Schedule of Fees and Assessments (the “Fee Schedule”), effective February 16, 2012, to create a Clearing Submission Fee Credit to be paid to Institutional Brokers and make other technical changes. In October 2011, the Exchange added Article 21, Rule 6 authorizing the submission by the Exchange of non-CHX trades entered through an Institutional Broker to a Qualified Clearing Agency for clearance and settlement.
The Exchange proposes to pay on a monthly basis a credit equal to 8% of the Clearing Submission Fees collected by the Exchange pursuant to Section E.7. of the Fee Schedule to the Institutional Broker which acted as the broker for the ultimate Clearing Participant to the clearing submission (known as the “Clearing Broker”).
Only Institutional Brokers which are members of the Financial Industry Regulatory Authority, Inc. (“FINRA”) will be eligible for the Clearing Submission Fee Credit. Since the trading activities involved in the relevant clearing submissions by definition occurred in a market center other than the Exchange (normally the OTC marketplace), the provisions of Exchange Act Section 15(b)(8) are implicated.
The Exchange recognizes that the Commission has raised concerns about so-called payment for order flow programs in variety of scenarios. For example, the 2007 Report Concerning Examinations of Options Order Routing and Execution stated, “The Commission previously has expressed concern that payment for order flow and internalization in the markets contribute to an environment in which quote competition is not always rewarded, thereby discouraging the display of aggressively priced quotes and impeding investor's ability to obtain better prices. [footnote omitted]”
Even taking the view that the Clearing Submission Fee Credit implicates market quality issues, the Exchange notes that a variety of other payment for order flow practices are prevalent in the securities industry. As the Commission has recognized, payment for order flow is not in itself unlawful.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange further believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that payment of a Clearing Submission Fee Credit to the Clearing Broker based on activity handled by it will incent Institutional Brokers to utilize the Exchange's systems and services in forwarding non-CHX trades to NSCC, rather than using alternative mechanisms such as correspondent clearing or Nasdaq's ACT system.
No written comments were either solicited or received.
The proposed rule change is to take effect pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ” Exchange Act”)
The ISE is proposing to amend fees for certain complex orders executed on the Exchange. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text
The purpose of this proposed rule change is to amend fees charged by the Exchange for complex orders in all symbols that are not in the Penny Pilot Program (“Non-Penny Pilot Symbols”). The fee change proposed herein is similar to fees the Exchange recently adopted for complex orders in two of the most actively-traded index option products, the NASDAQ 100 Index option (“NDX”) and the Russell 2000 Index option (“RUT”).
For trading in Non-Penny Pilot Symbols, for both regular and complex orders, the Exchange currently charges $0.20 per contract for firm proprietary orders and Customer (Professional Orders),
The Exchange currently assesses a per contract transaction fee to market participants that add or remove liquidity in the Complex Order Book (“maker/taker fees”) in symbols that are in the Penny Pilot Program. Included therein is a subset of 101 symbols that are assessed a slightly higher taker fee (the “Select Symbols”).
The Exchange now proposes to extend its maker/taker pricing structure to complex orders in all Non-Penny Pilot Symbols. Specifically, for Customer (Professional Orders), firm proprietary and ISE market maker orders, ISE proposes to adopt a “make” fee of $0.10 per contract and a “take” fee of $0.60 per contract. For Non-ISE Market Maker orders, ISE proposes to adopt a “make” fee of $0.10 per contract and a “take” fee of $0.65 per contract. As Priority Customers are not charged for trading in Non-Penny Pilot Symbols, no fee will apply to Priority Customer complex orders.
For crossing complex orders in Non-Penny Pilot Symbols, i.e., orders executed in the Exchange's Facilitation Mechanism, Solicited Order Mechanism, Block Order Mechanism and Price Improvement Mechanism, and for Qualified Contingent Cross orders, the Exchange currently charges a fee of $0.20 per contract. The Exchange proposes to continue charging a fee of $0.20 per contract for crossing complex orders in the Non-Penny Pilot Symbols. The Exchange currently does not charge Priority Customers for crossing complex orders executed in the Non-Penny Pilot Symbols. The Exchange proposes to continue not charging Priority Customers for crossing complex orders executed in the Non-Penny Pilot Symbols. For responses to special complex orders,
A number of Non-Penny Pilot Symbols are index options that are traded on the Exchange pursuant to license agreements for which the Exchange charges license surcharges. The Exchange charges the following license surcharges for all orders other than Priority Customer orders: $0.02 per contract for options on NXTQ; $0.05 per contract for options on FUM, HSX, POW, TNY and WMX; $0.10 per contract for options on BKX, MFX, MID, MSH, SML and UKX; $0.15 per contract for options on RMN, RUI, RUT and MVR; and $0.22 per contract for options on NDX and MNX. The license surcharge fees, which are charged by the Exchange to defray the licensing costs, are charged in addition to the transaction fees noted above. Because of competitive pressures in the industry, Priority Customer orders are not charged these surcharge fees, while Professional Orders are subject to the fee. For clarity, the Exchange is proposing to restate these surcharges in the notes applicable to complex orders in Non-Penny Pilot Symbols.
For Priority Customer complex orders in symbols that are in the Penny Pilot program, the Exchange currently provides a per contract rebate when these orders trade with non-Priority Customer orders in the Complex Order Book. The Exchange proposes to extend this rebate incentive for the Non-Penny Pilot Symbols. As such, the Exchange proposes to adopt a rebate of $0.50 per contract for Priority Customer complex orders in the Non-Penny Pilot Symbols when these orders trade with non-Priority Customer orders in the Complex Order Book.
Additionally, the Exchange currently provides ISE market makers with a two cent discount when trading against orders that are preferenced to them. The Exchange proposes to extend this discount for preferenced complex orders in the Non-Penny Pilot Symbols. Accordingly, ISE market makers who remove liquidity in the Non-Penny Pilot Symbols from the Complex Order Book will be charged $0.58 per contract when trading with orders that are preferenced to them.
With the proposed migration of the Non-Penny Pilot Symbols to the Exchange's complex order maker/taker pricing structure, the Exchange
The Exchange also notes that:
• Fees for orders in Non-Penny Pilot Symbols executed in the Exchange's Facilitation, Solicited Order, Price Improvement and Block Order Mechanisms are applied to contracts that are part of the originating or contra order.
• Complex orders in Non-Penny Pilot Symbols executed in the Facilitation and Solicited Order Mechanisms are charged fees only for the leg of the trade consisting of the most contracts.
• As noted above, the PFOF fees will not be collected for complex orders in the Non-Penny Pilot Symbols.
• As noted above, the cancellation fee, which only applies to Priority Customer orders, will continue to apply to the Non-Penny Pilot Symbols.
• The Exchange currently has a fee cap, with certain exclusions, applicable to transactions executed in a member's proprietary account. The cap also applies to crossing transactions for the account of entities affiliated with a member. The Exchange also has a service fee applicable to all QCC and non-QCC transactions that are eligible for the fee cap.
• The Exchange currently has tiered rebates to encourage members to submit greater number of QCC orders and Solicitation orders to the Exchange. Once a member reaches a certain volume threshold in QCC orders and/or Solicitation orders during a month, the Exchange provides a rebate to that member for all of its QCC and Solicitation traded contracts for that month.
• The license surcharge noted above will continue to apply to all orders except for Priority Customer orders in the Non-Penny Pilot Symbols.
With this proposed rule change, all non-customer orders will be assessed similar fees, thus eliminating the gap that currently exists between market makers and non-market makers when trading complex orders today. The proposed fees are consistent with the fees and rates of payment for order flow commonly applied to symbols that are not part of the Penny Pilot program. At the proposed levels, ISE market makers will in fact see their fees lowered compared to current levels, which include a transaction fee and a $0.65 per contract PFOF fee, while at the same time equitably distributing the costs of attracting complex orders. The Exchange's maker/taker fees and rebates for complex orders in Penny Pilot Symbols has proven to be an effective method of attracting order flow to the Exchange. The Exchange believes that extending its maker/taker fees and rebates for complex orders to the Non-Penny Pilot Symbols will assist the Exchange in increasing its market share in these symbols. The Exchange believes this proposed rule change will also serve to enhance the Exchange's competitive position and enable it to attract additional complex order volume in these symbols.
The Exchange also proposes to make a non-substantive, clarifying change in footnote 3 on page 18 of the Schedule of Fees, footnote 11 on page 19 of the Schedule of Fees and footnote 2 on page 21 of the Schedule of Fees by replacing the word `non-customer' with `non-Priority Customer' to accurately reflect that the rebate referenced in these three footnotes are payable when Priority Customer complex orders trade with non-Priority Customer orders in the Complex Order Book.
The Exchange proposes to make these fee changes operative on February 1, 2012.
The Exchange believes that its proposal to amend its Schedule of Fees is consistent with Section 6(b) of the Act
The Exchange believes it is reasonable and equitable to charge all market participants (except Priority Customers) trading in complex orders in Non-Penny Pilot Symbols a standardized `make' fee of $0.10 per contract. The Exchange currently charges a standardized `make' fee of $0.32 per contract for complex orders in certain symbols when these orders trade against Priority Customer orders.
The Exchange further believes it is reasonable and equitable for the Exchange to charge a fee of $0.20 per contract for complex orders in the Non-Penny Pilot Symbols executed in the Exchange's various auctions and for Qualified Contingent Cross orders because these fees are identical to the fees the Exchange currently charges for similar orders in the symbols that are subject to the Exchange's maker/taker fees.
Additionally, the Exchange believes its proposed fees remain competitive with fees charged by other exchanges
The Exchange believes that it is reasonable and equitable to provide a rebate for Priority Customer complex orders when these orders trade with non-Priority Customer orders in the Complex Order Book because paying a rebate would continue to attract additional order flow to the Exchange and create liquidity in the symbols that are subject to the rebate, which the Exchange believes ultimately will benefit all market participants who trade on ISE. The Exchange already provides this rebate and is now proposing to extend the rebate for the Non-Penny Pilot Symbols, which the Exchange believes will attract greater order flow of complex orders in these symbols.
The Exchange also believes that it is reasonable and equitable to provide a two cent discount to ISE market makers on preferenced orders because this will provide an incentive for market makers to quote in the Complex Order Book.
The complex order pricing employed by the Exchange has proven to be an effective pricing mechanism and attractive to members and their customers. The Exchange believes that adopting maker/taker fees and rebates for complex orders in the Non-Penny Pilot Symbols will attract additional complex order business in these symbols. The Exchange further believes that the proposed fees are not unfairly discriminatory because the fee structure is consistent with fee structures that exist today at other options exchanges. Additionally, the Exchange believes that the proposed fees are fair, equitable and not unfairly discriminatory because they are consistent with price differentiation that exists today at other option exchanges. The Exchange believes it remains an attractive venue for market participants to trade complex orders as its fees remain competitive with those charged by other exchanges for similar trading strategies. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. With this proposed fee change, the Exchange believes it remains an attractive venue for market participants to trade complex orders.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to amend its electronic complex order rules to adopt procedures for processing stock-option orders. The text of the rule proposal is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt procedures for processing stock-option orders under Rule 6.13. In particular, the Exchange is proposing to amend Rule 6.13 to (i) adopt a definition of a stock-option order (as well as include a definition of a complex order); (ii) include procedures for routing the stock leg of a stock-option order; (iii) provide that there will be no “legging” of stock-options, except in one limited context; (iv) describe the electronic allocation algorithm applicable for stock-option orders in the complex order book (“COB”) and the complex order RFR auction (“COA”);
The first purpose of this proposed rule change is to include a definition of stock-option order within Rule 6.13. The definition would provide that a stock-option order is as [sic] an order to buy or sell a stated number of units of an underlying stock or a security convertible into the underlying stock (“convertible security”) coupled with the purchase or sale of options contract(s) on the opposite side of the market representing either (i) the same number of units of the underlying stock or convertible security, or (ii) the number of units of the underlying stock necessary to create a delta neutral position, but in no case in a ratio greater than eight (8) options contracts per unit of trading of the underlying stock or convertible security established for that series by The Options Clearing Corporation (referred to in the text as the “Clearing Corporation”) (or such lower ratio as may be determined by the Exchange on a class-by-class basis). In addition, only those stock-option orders with no more than the applicable number of legs, as determined by the Exchange on a class-by-class basis, will be eligible for processing.
The Exchange is also proposing to adopt a definition of a complex order. For purposes of the rule, a complex order will be defined as any order involving the execution of two or more different options series in the same underlying security, for the same account, occurring at or near the same time in a ratio that is equal to or greater than one-to-three (.333) and less than or equal to three-to-one (3.00) (or such lower ratio as may be determined by the Exchange on a class-by-class basis) and for the purpose of executing a particular investment strategy. Only those complex orders with no more than the applicable number of legs,
These definitions would conform with definitions used in other exchanges' rules
The second purpose of this proposed rule change is to adopt procedures for routing the stock leg of a stock-option order. The Exchange proposes to provide that the Exchange will electronically transmit orders related to a stock leg for execution by a broker-dealer designated by the Exchange (a “designated broker-dealer”) on behalf of the parties to the trade. The Exchange will transmit the underlying stock leg order to a designated broker-dealer for execution once the Exchange trading system determines that a stock-option order trade is possible and at what net prices. The stock leg component will be transmitted to the designated broker-dealer as two paired orders with a designated limit price, subject to one limited exception pertaining to the stock leg of an unmatched market stock-option order (which is described in more detail below). The designated broker-dealer will act as agent for the stock leg of the stock-option orders. The designated broker-dealer may determine to match the orders on an exchange or “over-the-counter.”
To participate in this automated process for stock-option orders, an Exchange Permit Holder (“PH”) must enter into a customer agreement with one or more designated broker-dealers that are not affiliated with the Exchange.
The Exchange believes that the electronic communication of the orders by the Exchange to the designated broker-dealer is an efficient means for processing stock-option orders. The designated broker-dealer will be responsible for the proper execution, trade reporting and submission to clearing of the stock trade that is part of a stock option order. In this regard, once the orders are communicated to the broker-dealer for execution, the broker-dealer has complete responsibility for determining whether the orders may be executed in accordance with all the rules applicable to execution of equity orders, including compliance with the applicable short sale, trade-through and trade reporting rules. If the broker-dealer cannot execute the equity orders at the designated price, the stock-option combination order will not be executed on the Exchange.
With respect to trade throughs in particular, the Exchange believes that the stock component of a stock-option order is eligible for the QCT Exemption from Rule 611(a) of Regulation NMS. A Qualified Contingent Trade (“QCT”) is a transaction consisting of two or more component orders, executed as agent or principal, that satisfy the six elements in the Commission's order exempting QCTs from the requirements of Rule 611(a), which requires trading centers to establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trade-throughs.
(1) At least one component order is in an NMS stock: the stock component must be an NMS stock, which is validated by the Exchange's system;
(2) All components are effected with a product or price contingency that either has been agreed to by the respective counterparties or arranged for by a broker-dealer as principal or agent: a complex order, by definition, is executed at a single net credit/debit price and this price contingency applies to all the components of the order, such that the stock price computed and sent to the designated broker-dealer allows the stock order to be executed at the proper net debit/credit price based on the execution price of each of the option legs, which is determined by the Exchange's system;
(3) The execution of one component is contingent upon the execution of all other components at or near the same time: once a stock-option [sic] is accepted and validated by the Exchange's system, the entire package is processed as a single transaction and each of the option leg(s) and stock components are simultaneously processed;
(4) The specific relationship between the component orders (
(5) The component orders bear a derivative relationship to one another, represent different classes of shares of the same issuer, or involve the securities of participants in mergers or with intentions to merge that have been announced or since cancelled: under this proposal, the stock component must be the underlying security respecting the option leg(s), which is validated by the Exchange's system; and
(6) The transaction is fully hedged (without regard to any prior existing position) as a result of the other components of the contingent trade: under this proposal, the ratio between the options and stock must be a conforming ratio (
Furthermore, as noted above, proposed Rule 6.13.06(a) provides that PHs may only submit complex orders with a stock component if such orders comply with the QCT Exemption. PHs submitting such complex orders with a stock component represent that such orders comply with the QCT Exemption. Thus, the Exchange believes that complex orders consisting of a stock component will comply with the exemption and that the Exchange's system will validate such compliance as noted above to assist its designed routing broker(s) in carrying out its responsibilities as agent for these orders.
The Exchange believes the proposed process offers effective and efficient automatic execution for both the options and stock components of a stock-option order and it should promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system by enhancing the electronic processing of the stock-option orders. However, this process is not exclusive. The Exchange notes that PHs can also utilize other exchanges' systems (several of which offer stock-option processing) or avoid using stock-option orders.
The third purpose of this proposed rule change is to provide that “legging” against the individual orders and quotes in the Exchange's electronic book (the “Book”) will not occur for stock-option orders, except that that [sic] legging may occur in a limited instance described below for eligible market orders that have been subject to a COA.
The limited exception where legging would be permitted would provide that, if at the conclusion of a COA a stock-option order that is an eligible market order
This alternate legging functionality is intended to assist in the automatic execution and processing of stock-option orders that are market orders. The Exchange believes the order eligibility parameters provide the Exchange with the flexibility to assist with the maintenance of orderly markets by helping to mitigate the potential risks associated with legging stock option orders,
The fourth purpose of this proposed rule change is to describe the electronic allocation algorithm applicable for stock-option orders in COB and COA. With respect to COB, the Exchange is proposing to provide that stock-option orders that are marketable against each other will automatically execute. In the event there are multiple stock-option orders at the same price, they will be allocated pursuant to the rules of trading priority otherwise applicable to incoming electronic orders in the individual series legs (or such other allocation algorithm as the Exchange may designate pursuant to Rule 6.13.05).
As a condition for a stock-option order to execute against another stock-option order in COB, the execution must be at a net price where the individual options series leg(s) of the stock-option order has priority over the individual orders and quotes residing in the Exchange's Book (the “Book Priority Condition”). To satisfy the Book Priority Condition, the individual option series leg(s) of a stock-option order (i) must not trade through the Exchange's best bid (offer) in the individual component series, and (ii) must not trade at the Exchange's best bid (offer) in the individual component series if one or more public customer orders are resting at the best bid (offer) in each of the component series and the stock-option order could otherwise be executed in full (or in a permissible ratio).
With respect to COA, the Exchange is proposing to provide that, in the event there are multiple stock-option orders at the same price, they will trade in the following sequence: (i) Public customer stock-option orders resting in COB before, or that are received during, the COA Response Time Interval
As with COB, as a condition for a stock-option order to execute against another stock-option order through COA, would be that the execution must satisfy the Book Priority Condition described above.
The system also has some features that would apply to the extent that a stock-option order is or becomes marketable. First, to the extent that a marketable stock-option order cannot automatically execute in full (or in a permissible ratio) when it is routed to COB or after being subject to COA because there are individual orders and quotes residing in the Book that have priority (but the order resting in COB would not trade against them because there will be no “legging”), any part of the order that may be executed would be executed automatically and the part that cannot automatically execute would be cancelled. Second, to the extent that a stock-option order resting in COB becomes marketable against the derived net market (and cannot automatically execute because there is no “legging”), the full order would be subject to COA (and the processing described above). For purposes of this feature, the “derived net market” for a given stock-option strategy would be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg. The Exchange notes this feature would only be applicable to resting stock-option orders that become marketable against the derived net market. This feature would not be applicable to resting stock-option [sic] that would become marketable with other stock-option orders. Having the system automatically initiate a COA once such a stock-option order resting in COB becomes marketable against the derived net market provides an opportunity for other market participants to match or
The following examples illustrate the operation of the proposed system functionality:
Assume an incoming market stock-option order for 75 units is submitted to COA, where the strategy involves the sale of 75 call contracts and purchase of 7,500 stock shares. At the conclusion of COA, assume the best net price response is $9.13 for 50 units and the best derived net market price is 9.15 for 100 units. The incoming market order to purchase 75 units of the stock-option strategy will receive a partial execution of 50 units at a net price of $9.13. Because the remaining 25 units are marketable against individual orders and quotes in the Book, the 25 units will be cancelled.
Assume a stock-option order for 75 units is resting in COB, where the strategy involves the sale of 75 call contracts and purchase of 7,500 stock shares at a net debit price of $9.13. By virtue of the fact that it is resting [sic] the COB, the stock-option order is not marketable—meaning there are no orders or quotes within the derived net market price or other stock-option orders within COB against which the resting stock-option order may trade. Assume there are no other stock-option orders representing [sic] in the COB for the strategy and also assume the best derived net market price for the strategy is a net price of $9.15 per unit for 100 units. If the price of the component option series leg or the stock is thereafter updated such that the derived net market price becomes $9.13 per unit for 100 units, then the full size of the resting stock-option order will become marketable but cannot automatically execute. As a result, the full size (75 units) of the resting stock-option order would be subject to COA. At the conclusion of COA, any part of the stock-option order that may be executed against other stock-option orders or auction responses will be automatically executed. Any part of the order that is marketable and cannot automatically execute (because the stock-option order cannot “leg” against the derived net market) will be cancelled. To the extent any part of the stock-option order is not marketable, it will continue resting in COB.
Finally, the fifth purpose of this proposed rule change is to adopt a new price check parameter applicable to the electronic processing of stock-option orders. In addition, the Exchange is proposing to extend the application of an existing price check parameter to include stock-option orders.
In particular, under the proposed new price check parameter, the Exchange is proposing to provide that, on a class-by-class basis, the Exchange may determine (and announce via Regulatory Circular) to not automatically execute a stock-option order that is marketable if, following COA, the execution would not be within the acceptable derived net market for the strategy that existed at the start of COA. As indicated above, a “derived net market” for a strategy will be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg. The “acceptable derived net market” for a strategy will be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg plus/minus an acceptable tick distance. The “acceptable tick distance” will be determined by the Exchange on a class-by-class and premium basis.
It should also be noted that the Exchange has not proposed to prescribe a minimum acceptable tick distance for this parameter (
The following example illustrates the operation of the proposed system functionality:
Assume that at the start of COA the Exchange's best bid and offer for the option leg of a stock-option strategy is $1.00–$1.20 (100 × 100) and the NBBO for the stock leg of the strategy is $10.05–$10.15 (10,000 × 10,000). Thus, the derived net market for the strategy is $8.85–$9.15 (calculated as $1.20–$10.05 and −$1.00 + $10.15, respectively). In addition, assume that the acceptable tick distance for the stock leg is two ticks ($0.02). Under this parameter, an order to sell stock could not execute at a price below $10.03 and an order to buy stock could not execute at a price above $10.17. Thus, the acceptable derived net market for the strategy would be calculated as $8.83–$9.17 (calculated as $1.20–$10.03 and −$1.00 + $10.17, respectively). Under this scenario, following COA, a marketable stock-option order to sell the option series and buy the stock that would trade with another stock-option order at net debit price of $9.17 (within the acceptable derived net market for the strategy) will be executed. However, a marketable stock-option to sell the option series and buy the stock that would trade with another stock-option order at a net debit price of $9.18 ($0.01 outside the acceptable derived net market for the strategy) will be cancelled.
In addition to the foregoing, additional parameters would apply. In classes where these price check parameters are available, they will also be available for COA stock-option responses under Rule 6.13(c), stock-option orders and responses under Rules 6.51,
Assume the acceptable derived net market is $1.00–$1.20. Also assume two paired stock-option orders are submitted to an AIM auction. If the original Agency Order to sell the option leg and buy the stock is a market order, but the contra-side order to buy the option leg and sell the stock has a net credit price of $1.25, the AIM auction will not initiate because the contra-side order does not satisfy the price check parameter. Such a contra-side order would not be accepted because it is outside the acceptable net market price range. The paired original Agency Order would either not be accepted along with the contra-side order or, at the order entry firm's discretion, would continue processing as an unpaired complex order. By comparison, if the contra-side order has a net credit price of $0.95, the price will be capped at $1.01.
The Exchange is also proposing to make two existing price protection features that it has available for other complex orders available for stock-option orders. In particular, the Exchange is proposing to modify its existing “market width” parameters under Rule 6.13.04(a) to extend the application of the individual series leg width parameters to stock-option orders. Under this price check parameter, eligible market complex orders will not be automatically executed if the width between the Exchange's best bid and best offer in any individual series leg is not within an acceptable price range.
The Exchange believes that the application of these price protection features will assist with the maintenance of fair and orderly markets by helping to mitigate the potential risks associated with stock-option orders drilling through multiple price points (thereby resulting in executions at prices that are extreme and potentially erroneous) and with stock-option orders entered at net limit prices that are inconsistent with the particular “buy-buy” or “sell-sell” strategy (thereby resulting in execution at prices that are extreme and potentially erroneous). Rather than automatically executing or booking orders at extreme and potentially erroneous prices, the Exchange would cancel orders that are not within the price check parameters so that the orders can be further evaluated.
Finally, the Exchange is proposing to extend the application of its “re-COA” feature to stock-option orders. Under this feature, to the extent any non-marketable order resting at the top of the COB is priced within the acceptable tick distance of the derived net market, the full order would be subject to COA (and the processing describe above) (referred to herein as a “re-COA”).
The following example illustrates the operation of this proposed system functionality:
Assume that the acceptable tick distance to re-COA is 2 ticks ($0.02). Also assume the frequency for the re-COA feature is limited to once every 15 seconds (the interval timer) for 1 interval. Under this setting, only 1 re-COA auction could be triggered—the original re-COA auction.
If the number of attempts was set to a value greater than 1 (assume 2 for the below discussion), then when the 15-second interval timer expires, the order would be eligible to initiate the re-COA feature again if the current market moves after the expiration of the timer and the order meets the tick distance parameter (the order would not automatically initiate the re-COA feature after the expiration of the interval timer; instead there must be an update to the current market after the expiration of the interval timer and the order must meet the tick distance parameter for the system to re-COA again). For example, if after the end of the 15-second interval timer the derived net market moves to $8.87–$9.13 (or, for example, if the derived market moves back to $8.85–$9.15 and then, after the end of the 15-second interval timer moves back again to $8.86–$9.14), then the resting complex order would again initiate the re-COA feature. If there are no responses, the order would be placed back in COB. The cycle is complete. Now that the resting order has been subject to COA 2 times since it was booked in COB, the 60-minute sleep timer will begin and the resting order will not be eligible for the re-COA feature again until the sleep timer expires and there is a quote update after that timer expires that is within the tick distance parameter. All timers would be reset anytime there is a price change at the top of the COB. For example, if five minutes into the sleep interval a second stock-option order is entered to rest in COB at a price of $8.87 ($0.01 better than the original resting order priced at $8.88), the original resting order would no longer be at the top of the COB and subject to the re-COA feature. The timers would reset and the second complex order (which now represents the top of the COB) would be subject to the re-COA process. If, for example, the second order subsequently trades (constituting a price change at the top of the COB), the original order would be at the top of the COB again and could become subject to the re-COA feature again.
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to amend its complex order processing rules to revise the procedures for electronically processing stock-option orders. The text of the rule proposal is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to revise is [sic] procedures for electronically processing stock-option orders under Rule 6.53C in order to (i) revise the procedures for routing the stock leg of a stock-option order; (ii) modify the procedure for executing for [sic] stock-option orders to no longer permit “legging,” except in one limited context; (iii) modify the default electronic allocation algorithm applicable for stock-option orders in the complex order book (“COB”) and the complex order RFR auction (“COA”);
The first purpose of this proposed rule change is to revise the procedures for routing the stock leg of a stock-option order. Interpretation and Policy .06 to Rule 6.53C,
To participate in this automated process for stock-option orders, an Exchange Trading Permit Holder (“TPH”) must enter into a customer agreement with one or more designated broker-dealers that are not affiliated with the Exchange.
The Exchange believes that the electronic communication of the orders by the Exchange to the designated broker-dealer is a more efficient means for processing stock-option orders than the system of routing orders to CBSX. The designated broker-dealer will be responsible for the proper execution, trade reporting and submission to clearing of the stock trade that is part of a stock option order. In this regard, once the orders are communicated to the broker-dealer for execution, the broker-dealer has complete responsibility for determining whether the orders may be executed in accordance with all the rules applicable to execution of equity orders, including compliance with the applicable short sale, trade-through and trade reporting rules. As with the current procedure, if the broker-dealer cannot execute the equity orders at the designated price, the stock-option combination order will not be executed on the Exchange.
With respect to trade throughs in particular, the Exchange believes that the stock component of a stock-option order is eligible for the QCT Exemption from Rule 611(a) of Regulation NMS. A Qualified Contingent Trade (“QCT”) is a transaction consisting of two or more component orders, executed as agent or principal, that satisfy the six elements in the Commission's order exempting QCTs from the requirements of Rule 611(a), which requires trading centers to establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trade-throughs.
(1) At least one component order is in an NMS stock: The stock component must be an NMS stock, which is validated by the Hybrid System;
(2) All components are effected with a product or price contingency that either has been agreed to by the respective counterparties or arranged for by a broker-dealer as principal or agent: A complex order, by definition, is executed at a single net credit/debit price and this price contingency applies to all the components of the order, such that the stock price computed and sent to the designated broker-dealer allows the stock order to be executed at the proper net debit/credit price based on the execution price of each of the option legs, which is determined by the Hybrid System;
(3) The execution of one component is contingent upon the execution of all other components at or near the same time: Once a stock-option is accepted and validated by the Hybrid System, the entire package is processed as a single transaction and each of the option leg(s) and stock components are simultaneously processed;
(4) The specific relationship between the component orders (
(5) The component orders bear a derivative relationship to one another, represent different classes of shares of the same issuer, or involve the securities of participants in mergers or with intentions to merge that have been announced or since cancelled: Under this proposal, the stock component must be the underlying security respecting the option leg(s), which is validated by the Hybrid System; and
(6) The transaction is fully hedged (without regard to any prior existing position) as a result of the other components of the contingent trade: Under this proposal and as discussed in more detail below, the ratio between the options and stock must be a conforming ratio (
Furthermore, as noted above, proposed Rule 6.53C.06(a) provides that TPHs may only submit complex orders with a stock component if such orders comply with the QCT Exemption. TPHs submitting such complex orders with a stock component represent that such orders comply with the QCT Exemption. Thus, the Exchange believes that complex orders consisting of a stock component will comply with the exemption and that the Hybrid System will validate such compliance as noted above to assist its designated routing broker(s) in carrying out its responsibilities as agent for these orders.
The Exchange believes the new process offers effective and efficient automatic execution for both the options and stock components of a stock-option order and it should promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system by enhancing the electronic processing of the stock-option orders. However, this process is not exclusive. The Exchange notes that TPHs will be able to continue using open outcry procedures for executing stock-option orders if they choose to do so.
In conjunction with this change, the second purpose of this proposed rule change is to revise the stock-option procedure to provide that “legging” against the individual orders and quotes in the CBOE and CBSX electronic books (“EBooks”) will no longer occur for stock-option orders,
A limited exception will continue to apply for certain market stock-option orders, with certain modifications. Currently, under Rule 6.53C.06(d), if at the conclusion of a COA a stock-option order that is an eligible market order
This legging functionality is intended to assist in the automatic execution and processing of stock-option orders that are market orders. The Exchange believes the order eligibility parameters provide the Exchange with the flexibility to assist with the maintenance of orderly markets by helping to mitigate the potential risks associated with legging stock option orders,
The third purpose of this proposed rule change is to modify the default electronic allocation algorithm applicable for stock-option orders in COB and COA. With respect to COB, Interpretation and Policy .06(b), (c) and (f), taken together, currently provide that stock-option orders submitted to COB will trade in the following sequence: (i) Public customer orders resting in the EBook in each of the individual options leg(s) of a stock-option order have first priority; (ii) stock-option orders resting in COB have second priority, with public customer priority and then time priority; and (iii) individual orders and quotes resting in the EBook in each of the individual options leg(s) have third priority provided the order can be executed in full or in a permissible ratio. Because the Exchange is proposing to no longer permit “legging” of orders in COB against the individual orders and quotes in the component legs, the Exchange is proposing to the [sic] amend the algorithm with respect to COB to provide that stock-option orders that are marketable against each other will automatically execute. In the event there are multiple stock-option orders at the same price, they will be allocated pursuant to the rules of trading priority otherwise applicable to incoming electronic orders in the individual series legs (or such other allocation algorithm as the Exchange may designate pursuant to Rule 6.53C.09).
As a condition for a stock-option order to execute against another stock-option order in COB, the execution must be at a net price where the individual options series leg(s) of the stock-option order has priority over the individual orders and quotes residing in the CBOE EBook (the “EBook Priority Condition”). To satisfy the EBook Priority Condition, the individual option series leg(s) of a stock-option order (i) must not trade inferior to CBOE's best bid (offer) in the individual component series, and (ii) must not trade at CBOE's best bid (offer) in the individual component series if one or more public customer orders are resting at the best bid (offer) in each of the component series and the stock-option order could otherwise be executed in full (or in a permissible ratio).
Again, because there will be no legging, the Exchange is also proposing to amend the algorithm with respect to COA. Interpretation and Policy .06(b), (d) and (f), taken together, currently provide that stock-option orders submitted to COA will trade in the following sequence: (i) Public customer orders resting in the EBook in each of the individual options leg(s) of a stock-option order have first priority; (ii) public customer stock-option orders resting in COB before, or that are received during, the COA Response
As with COB, as a condition for a stock-option order to execute against another stock-option order through COA, the execution must satisfy the EBook Priority Condition described above.
The system also has some features that would apply to the extent that a stock-option order is or becomes marketable. First, to the extent that a marketable stock-option order cannot automatically execute in full (or in a permissible ratio) when it is routed to COB or after being subject to COA because there are individual orders and quotes residing in the EBook that have priority (but the order resting in COB would not trade against them because there will be no “legging”), any part of the order that may be executed would be executed automatically and the part that cannot automatically execute would be routed on a class-by-class basis to PAR or, at the order entry firm's discretion, to the order entry firm's booth. If an order is not eligible to route to PAR, then the remaining balance would be cancelled. Second, to the extent that a stock-option order resting in COB becomes marketable against the derived net market (and cannot automatically execute because there is no “legging”), the full order would be subject to COA (and the processing described above). For purposes of this feature, the “derived net market” for a given stock-option strategy would be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg. The Exchange notes this feature would only be applicable to resting stock-option orders that become marketable against the derived net market. This feature would not be applicable to resting stock-option [sic] that would become marketable with other stock-option orders. Having the system automatically initiate a COA once such a stock-option order resting in COB becomes marketable against the derived net market provides an opportunity for other market participants to match or improve the net price and allows for an opportunity for an automatic execution before a marketable stock-option order is routed for manual handling to PAR or a booth.
The following examples illustrate the operation of the proposed system functionality:
Assume an incoming market stock-option order for 75 units is submitted to COA, where the strategy involves the sale of 75 call contracts and purchase of 7,500 stock shares. At the conclusion of COA, assume the best net price response is $9.13 for 50 units and the best derived net market price is 9.15 for 100 units. The incoming market order to purchase 75 units of the stock-option strategy would receive a partial execution of 50 units at a net price of $9.13. Because the remaining 25 units are marketable against individual orders and quotes in the EBook, the 25 units would be routed to PAR or, at the order entry firm's discretion, to the order entry firm's booth, for manual handling. If the order would otherwise route to PAR but is not eligible to route to PAR, then the remaining 25 units will be cancelled.
Assume a stock-option order for 75 units is resting in COB, where the strategy involves the sale of 75 call contracts and purchase of 7,500 stock shares at a net debit price of $9.13. By virtue of the fact that it is resting [sic] the COB, the stock-option order is not marketable—meaning there are no orders or quotes within the derived net market price or other stock-option orders within COB against which the resting stock-option order may trade. Assume there are no other stock-option orders representing [sic] in the COB for the strategy and also assume the best derived net market price for the strategy is a net price of $9.15 per unit for 100 units. If the price of the component option series leg or the stock is thereafter updated such that the derived net market price becomes $9.13 per unit for 100 units, then the full size of the resting stock-option order will become marketable but cannot automatically execute. As a result, the full size (75 units) of the resting stock-option order would be subject to COA. At the conclusion of COA, any part of the stock-option order that may be executed against other stock-option orders or auction responses will be automatically executed. Any part of the order that is marketable and cannot automatically execute
The fourth purpose of this proposed rule change is to adopt a new price check parameter applicable to the electronic processing of stock-option orders and to make some modification to an existing price check parameter to address stock-option orders. In particular, the Exchange is proposing to provide that, on a class-by-class basis, the Exchange may determine (and announce to TPHs via Regulatory Circular) to not automatically execute a stock-option order that is marketable if, following COA, the execution would not be within the acceptable derived net market for the strategy that existed at the start of COA. As indicated above, a “derived net market” for a strategy will be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg. An “acceptable derived net market” for a strategy will be calculated using the Exchange's best bid or offer in the individual option series leg(s) and the NBBO in the stock leg plus/minus an acceptable tick distance. The “acceptable tick distance” will be determined by the Exchange on a class-by-class and premium basis.
It should also be noted that the Exchange has not proposed to prescribe a minimum acceptable tick distance for this parameter (
The following example illustrates the operation of the proposed system functionality:
Assume that at the start of COA the CBOE best bid and offer for the option leg of a stock-option strategy is $1.00–$1.20 (100 × 100) and the NBBO for the stock leg of the strategy is $10.05–$10.15 (10,000 × 10,000). Thus, the derived net market for the strategy is $8.85–$9.15 (calculated as $1.20–$10.05 and −$1.00 + $10.15, respectively). In addition, assume that the acceptable tick distance for the stock leg is two ticks ($0.02). Under this parameter, an order to sell stock could not execute at a price below $10.03 and an order to buy stock could not execute at a price above $10.17. Thus, the acceptable derived net market for the strategy would be calculated as $8.83–$9.17 (calculated as $1.20–$10.03 and −$1.00 + $10.17, respectively). Under this scenario, following COA, a marketable stock-option order to sell the option series and buy the stock that would trade with another stock-option order at [sic] net debit price of $9.17 (within the acceptable derived net market for the strategy) will be executed. However, a marketable stock-option [sic] to sell the option series and buy the stock that would trade with another stock-option order at a net debit price of $9.18 ($0.01 outside the acceptable derived net market for the strategy) will be routed to PAR or, at the order entry firm's discretion, to the order entry firm's booth. If an order is not eligible to route to PAR, then the remaining balance will be cancelled.
In addition to the foregoing, additional parameters would apply. In classes where these price check parameters are available, they will also be available for COA stock-option responses under Rule 6.53C(d), stock-option orders and responses under Rules 6.74,
Assume the acceptable derived net market is $1.00–$1.20. Also assume two paired stock-option orders are submitted to an AIM auction. If the original Agency Order to sell the option leg and buy the stock is a market order, but the contra-side order to buy the option leg and sell the stock has a net credit price of $1.25, the AIM auction will not initiate because the contra-side order does not satisfy the price check parameter. Such a contra-side order would not be accepted because it is outside the acceptable net market price range. The paired original Agency Order would either not be accepted along with the contra-side order or, at the order entry firm's discretion, would continue processing as an unpaired complex order. By comparison, if the contra-side order has a net credit price of $0.95, the price will be capped at $1.01.
The Exchange is also proposing to modify its existing “market width” parameters under Rule 6.53C.08(a) to extend the application of the individual series leg width parameters to stock-option orders. Under this price check parameter, eligible market complex orders will not be automatically executed if the width between the Exchange's best bid and best offer in any individual series leg is not within an
The Exchange believes that the application of these price protection features will assist with the maintenance of fair and orderly markets by helping to mitigate the potential risks associated with stock-option orders drilling through multiple price points (thereby resulting in executions at prices that are extreme and potentially erroneous). Rather than automatically executing or booking orders at extreme and potentially erroneous prices, the Exchange would route orders that are not within the price check parameters to PAR or the order entry firm's booth so that the orders can be further evaluated.
In addition, the Exchange is proposing to extend the application of its “re-COA” feature to stock option orders. Under this feature, to the extent any non-marketable order resting at the top of the COB is priced within the acceptable tick distances of the derived net market, the full order would be subject to COA (referred to herein as a “re-COA”).
The following example illustrates the operation of this proposed system functionality:
Assume that the acceptable tick distance to re-COA is 2 ticks ($0.02). Also assume the frequency for the re-COA feature is limited to once every 15 seconds (the interval timer) for 1 interval. Under this setting, only 1 re-COA auctions [sic] could be triggered—the original re-COA auction.
If the number of attempts was set to a value greater than 1 (assume 2 for the below discussion), when the 15-second interval timer expires, the order would be eligible to initiate the re-COA feature again if the current market moves after the expiration of the timer and the order meets the tick distance parameter (the order would not automatically initiate the re-COA feature after the expiration of the interval timer; instead there must be an update to the current market after the expiration of the interval timer and the order must meet the tick distance parameter for the system to re-COA again). For example, if after the end of the 15-second interval timer the derived net market moves to $8.87–$9.13 (or, for example, if the derived market moves back to $8.85–$9.15 and then, after the end of the 15-second interval timer moves back again to $8.86–$9.14), then the resting complex order would again initiate the re-COA feature. If there are no responses, the order would be placed back in COB. The cycle is complete. Now that the resting order has been subject to COA 2 times since it was booked in COB, the 60-minute sleep timer will begin and the resting order will not be eligible for the re-COA feature again until the sleep timer expires and there is a quote update after that timer expires that is within the tick distance parameter. All timers would be reset anytime there is a price change at the top of the COB. For example, if five minutes into the sleep interval a second stock-option order is entered to rest in COB at a price of $8.87 ($0.01 better than the original resting order priced at $8.88), the original resting order would no longer be at the top of the COB and subject to the re-COA feature. The timers would reset and the second complex order (which now represents the top of the COB) would be subject to the re-COA process. If, for example, the second order subsequently trades (constituting a price change at the top of the COB), the original order would be at the top of the COB again and could become subject to the re-COA feature again.
The fifth purpose of this proposed rule change is to make certain other changes to generally reorganize and simplify the rule text pertaining to stock-option orders. As noted above, the current priority rules for stock-option orders for COB are contained in four locations—paragraphs (b), (c) and (f) of Interpretation and Policy .06 to Rule 6.53C. Similarly, the current priority rules for stock-option orders processed through COA are contained in three locations—paragraphs (b), (d) and (f) of
Finally, the sixth purpose of this proposed rule change is to simplify some of the definitions contained within Rule 6.53C. By way of background, for many years, the options exchanges have recognized that strategies involving more than one option series or more than one instrument associated with an underlying security are different from regular buy and sell orders for a single series, and an order to achieve such strategies should be defined separately. As the sophistication of the industry as [sic] grown, so have the strategies, and the options exchanges have regularly added new strategies to the list of defined complex order types. The investing industry, however, creates new, legitimate investment strategies that do not necessarily fit into one of the narrow definitions for complex order types that the exchanges presently use. These order types are often developed for a particular strategy, specific to a particular issue. To attempt to define every individual strategy, and file additional rules to memorialize them, would be a time consuming and extremely onerous process, and would serve only to confuse the investing public. As a result, bona fide transactions to limit risk are not afforded the facility of execution afforded more common complex orders.
Rule 6.53C currently defines at least ten specific complex strategies (including stock-option order strategies). These are the most comprehensive list of complex strategies defined in a rule set, yet they do not cover all of the possibilities of complex orders. To provide for greater flexibility in the design and use of complex strategies, the Exchange proposes to eliminate specific complex order types described in Rule 6.53C, and to adopt generic definitions. Specifically, under the proposed new definitions, first, a complex order will be defined as any order involving the execution of two or more different options series in the same underlying security, for the same account, occurring at or near the same time in a ratio that is equal to or greater than one-to-three (.333) and less than or equal to three-to-one (3.00) (or such lower ratio as may be determined by the Exchange on a class-by-class basis) and for the purpose of executing a particular investment strategy. In addition, only those complex orders with no more than the applicable number of legs, as determined by the Exchange on a class-by-class basis, will be eligible for electronic processing.
The Exchange believes adopting these generic definitions will give investors more flexibility in creating strategies with greater accuracy. Further, these definitions would conform with definitions used in other exchanges' rules
The proposed rule change is consistent with Section 6(b) of the Act
CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Department of State.
Notice; FACA Committee meeting announcement.
As required by the Federal Advisory Committee Act, Public Law 92–463, the Department of State gives notice of a meeting of the Advisory Committee on International Postal and Delivery Services. This Committee has been formed in fulfillment of the provisions of the 2006 Postal Accountability and Enhancement Act (Pub. L. 109–435) and in accordance with the Federal Advisory Committee Act.
For further information, please contact Mr. Matthew Hillsberg of the Office of Global Systems (IO/GS), Bureau of International Organization Affairs, U.S. Department of State, at (202) 736–7039 or by email at
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995.
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Submit comments to the Office of Management and Budget (OMB) for up to 30 days from February 21, 2012.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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You may obtain copies of the proposed information collection and supporting documents from Michelle Hale, ECA/P/V, SA–5, C2 Floor, Department of State, Washington, DC 20522–0505, who may be reached on 202–632–6312 or at
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary to properly perform our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond.
To meet OMB and Congressional reporting requirements, this request for a new information collection clearance will allow ECA/P/V, as part of the Gender Assessment Evaluation, to conduct surveys of exchange participants in the Fortune, ILEP, IRG, and American Fellows Program between the years of 2003 and 2010. Collecting this data will help ECA/P/V assess and measure the similar and different impacts the programs had on men and women participants.
Evaluation data will be collected via Survey Gizmo, an on-line surveying tool. It is anticipated that a very limited number of participants may receive a hard copy of the surveys.
Susquehanna River Basin Commission.
Notice; correction.
The Susquehanna River Basin Commission published a document in the
Richard A. Cairo, General Counsel, telephone: (717) 238–0423, ext. 306; fax: (717) 238–2436; email:
In the
34. Project Sponsor and Facility: Water Treatment Solutions, LLC (South Mountain Lake), Woodward Township, Lycoming County, Pa. Application for surface water withdrawal of up to 0.499 mgd (peak day).
Pub. L. 91–575, 84 Stat. 1509 et seq., 18 CFR parts 806–808.
Office of the United States Trade Representative.
Notice.
This notice announces which petitions submitted in connection with the 2011 GSP Annual Product Review have been accepted for further review. In addition, twelve cotton products will be reviewed for possible designation as eligible for GSP benefits for least-developed country beneficiaries of the GSP program. This notice also sets forth the schedule for submitting comments and for public hearings associated with the review of these petitions and products.
Tameka Cooper, GSP Program, Office of the United States Trade Representative, 600 17th Street NW., Room 422, Washington, DC 20508. The telephone number is (202) 395–6971, the fax number is (202) 395–9674, and the email address is
The GSP regulations (15 CFR Part 2007) provide the schedule of dates for conducting an annual review unless otherwise specified in a notice published in the
March 6, 2012—Due date for submission of comments, pre-hearing briefs and requests to appear at the GSP Subcommittee Public Hearing on the 2011 GSP Annual Product Review.
March 20, 2012—GSP Subcommittee Public Hearing on all proposed or petitioned product additions and CNL waiver petitions accepted for the 2011 GSP Annual Product Review. The hearing will be held in Rooms 1 and 2, 1724 F St. NW., Washington, DC 20508, beginning at 9:30 a.m.
Late March 2012—A U.S. International Trade Commission (USITC) public hearing will be held on the probable economic effect of granting the proposed or petitioned product additions and CNL waiver petitions. (USITC will announce the date, time, and place of this hearing in a separate notice published in the
April 10, 2012—Due date for submission of post-hearing comments or briefs in connection with the GSP Subcommittee Public Hearing.
Late May 2012—The USITC is scheduled to publish a public version of its report providing advice on the probable economic effect of the prospective addition of products and granting of CNL waiver petitions considered as part of 2011 GSP Annual Product Review. Comments on the USITC report on these products will be due 10 calendar days after the date of USITC's publication of the public version of the report.
July 1, 2012: Effective date for any modifications that the President proclaims to the list of articles eligible for duty-free treatment under the GSP resulting from the 2011 Annual Product Review and for determinations related to CNL waivers.
The GSP program provides for the duty-free importation of designated articles when imported from designated beneficiary developing countries. The GSP program is authorized by Title V of the Trade Act of 1974 (19 U.S.C. 2461, et seq.), as amended (the “1974 Act”), and is implemented in accordance with Executive Order 11888 of November 24, 1975, as modified by subsequent Executive Orders and Presidential Proclamations.
In a notice published in the
The GSP Subcommittee of the TPSC has reviewed the product and CNL waiver petitions submitted in response to these announcements, and has decided to accept for review one petition to add a product to the list of those eligible for duty-free treatment under GSP and nine petitions to waive CNLs. Twelve cotton products will also be reviewed for possible designation as eligible for GSP benefits for least-developed country beneficiaries of the GSP program. The cotton products are being considered for GSP eligibility at the initiative of USTR consistent with USTR's December 2011 announcement of trade initiatives intended to enable least-developed countries to benefit more fully from global trade.
A list of all the petitions and products accepted for review is posted on the USTR Web site at
The GSP Subcommittee of the TPSC invites comments in support of or in opposition to any product or petition that has been accepted for the 2011 GSP Annual Product Review. The GSP Subcommittee of the TPSC will also convene a public hearing on these products and petitions. See below for information on how to submit a request to testify at this hearing.
Submissions in response to this notice (including requests to testify, written comments, and pre-hearing and post-hearing briefs), with the exception of business confidential submissions, must be submitted electronically by 5 p.m., Tuesday, March 6, 2012, or for post hearing briefs only by 5 p.m., Tuesday, April 10, 2012 using
All submissions for the GSP Annual Review must conform to the GSP regulations set forth at 15 CFR part 2007, except as modified below. These regulations are available on the USTR Web site at
To make a submission using
Each submitter will receive a submission tracking number upon completion of the submissions procedure at
A person seeking to request that information contained in a submission from that person be treated as business confidential information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such. The submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page, and the submission should indicate, via brackets, the specific information that is confidential. Additionally, “Business Confidential” must be included in the “Type Comment” field. Any submission containing business confidential information must be accompanied by a separate non-confidential version of the confidential submission, indicating where confidential information has been redacted. The non-confidential version will be placed in the docket and open to public inspection.
The GSP Subcommittee of the TPSC will hold a hearing on Tuesday, March 20, 2012, on products and petitions accepted for the 2011 GSP Annual Review beginning at 9:30 a.m. at the Office of the U.S. Trade Representative, Rooms 1 and 2, 1724 F St. NW., Washington, DC 20508. The hearing will be open to the public, and a transcript of the hearing will be made available on
All interested parties wishing to make an oral presentation at the hearing must submit, following the above “Requirements for Submissions”, the name, address, telephone number, and email address (if available), of the witness(es) representing their organization to William D. Jackson, Deputy Assistant U.S. Trade Representative for GSP by 5 p.m., Tuesday, March 6, 2012. Requests to present oral testimony in connection with the public hearing must be accompanied by a written brief or summary statement, in English, and also must be received by 5 p.m., Tuesday, March 6, 2012. Oral testimony before the GSP Subcommittee will be limited to five-minute presentations that summarize or supplement information contained in briefs or statements submitted for the record. Post-hearing briefs or statements will be accepted if they conform with the regulations cited above and are submitted, in English, by 5 p.m., Tuesday, April 10, 2012, following the “Requirements for Submissions” above. Parties not wishing to appear at the public hearing may submit pre-hearing briefs or statements, in English, by 5 p.m., Tuesday, March 6, 2012, and post-hearing written briefs or statements, in English, by 5 p.m., Tuesday, April 10, 2012, also in accordance with the “Requirements for Submissions” above. Public versions of all documents relating to the 2011 Annual Review will be made available for public viewing in docket USTR–2011–0015 at
SUB–AGENCY: Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of an individual whose property and interests in property have been blocked pursuant to Executive Order 13566 of February 25, 2011, “Blocking Property and Prohibiting Certain Transactions Related to Libya.”
The designation by the Acting Director of OFAC of the individual identified in this notice, pursuant to Executive Order 13566 of February 25, 2011 is effective February 14, 2012.
Assistant Director, Sanctions Compliance and Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, Tel.: 202/622–2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On February 25, 2011, the President issued Executive Order 13566, “Blocking Property and Prohibiting Certain Transactions Related to Libya,” (the “Order”) pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (the NEA), and section 301 of title 3, United States Code.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation the Secretary of State, to satisfy certain criteria set forth in the Order.
On February 14, 2012, the Acting Director of OFAC designated an individual whose property and interests in property are blocked pursuant to Section 1 of the Order. The listing for this individual is below.
'ABD–AL–SALAM, Humayd (a.k.a. A.A. ABDUSSALAM, Ahmid; a.k.a. 'ABD–AL–SALAM, Hmeid; a.k.a. ABDUL HADI ABDUL SALAM, Ahmid Abdussalam; a.k.a. ABDUSSALAM, Abdulhadi; a.k.a. ABDUSSALAM, Ahmid; a.k.a. “ABDULHADI”; a.k.a. “HUMAYD”); DOB 30 Dec 1965; Passport 55555 (Libya) (individual) [LIBYA2]
Employment and Training Administration, and Wage and Hour Division, Labor.
Final rule.
The Department of Labor (the Department) is amending its regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. This Final Rule revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H–2B status. We have also created new regulations to provide for increased worker protections for both United States (U.S.) and foreign workers.
This Final Rule is effective April 23, 2012.
For further information on 20 CFR part 655, Subpart A, contact William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room C–4312, Washington, DC 20210; Telephone (202) 693–3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–800–877–8339.
For further information on 29 CFR part 503 contact Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, 200 Constitution Avenue NW., Room S–3510, Washington, DC 20210; Telephone (202) 693–0071 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–800–877–8339.
Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA or the Act) defines an H–2B worker as a nonimmigrant admitted to the U.S. on a temporary basis to perform temporary non-agricultural labor or services for which “unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA requires DHS to consult with appropriate agencies before approving an H–2B visa petition. 8 U.S.C. 1184(c)(1). The regulations of the U.S. Citizenship and Immigration Services (USCIS), the agency within DHS which adjudicates requests for H–2B status, require that an intending employer first apply for a temporary labor certification from the Secretary of Labor (the Secretary). That certification informs USCIS that U.S. workers capable of performing the services or labor are not available, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 CFR 214.2(h)(6). On Guam, H–2B employment requires certification from the Governor of Guam, not the Secretary. 8 CFR 214.2(h)(6)(iii).
Our regulations, at 20 CFR part 655, Subpart A, “Labor Certification Process for Temporary Employment in Occupations other than Agriculture or Registered Nursing in the United States (H–2B Workers),” govern the H–2B labor certification process, as well as the enforcement process to ensure U.S. and H–2B workers are employed in compliance with H–2B labor certification requirements. Applications for labor certification are processed by the Office of Foreign Labor Certification (OFLC) in the Employment and Training Administration (ETA), the agency to which the Secretary has delegated her responsibilities as described in the USCIS H–2B regulations. Enforcement of the attestations made by employers in the course of submission of H–2B applications for labor certification is conducted by the Wage and Hour Division (WHD) within the Department, to which DHS on January 16, 2009 delegated enforcement authority granted to it by the INA. 8 U.S.C. 1184(c)(14)(B).
Under the 2008 H–2B regulations published at 73 FR 29942, May 22, 2008 (the 2008 Final Rule), an employer seeking to fill job opportunities through the H–2B program must demonstrate that it has a temporary need for the services or labor, as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). Generally, that period of time will be limited to 1 year or less, except in the case of a one-time occurrence, which could last up to 3 years, consistent with the standard under DHS regulations at 8 CFR 214.2(h)(6) as well as current Department regulations at § 655.6(b).
The 2008 Final Rule also employed an attestation-based filing model, in which the employer conducted its recruitment with no direct Federal or State oversight. Lastly, the 2008 Final Rule provided WHD's enforcement authority under which WHD could impose civil money penalties and other remedies.
On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in
The Department determined for a variety of reasons that a new rulemaking effort is necessary for the H–2B program. These policy-related reasons, which were discussed at length in the NPRM, include expansion of opportunities for U.S. workers, evidence of violations of program requirements, some rising to a criminal level, need for better worker protections, and a lack of understanding of program obligations. We accordingly proposed to revert to the compliance-based certification model that had been used from the inception of the program until the 2008 Final Rule. We also proposed to add new recruitment and other requirements to broaden the dissemination of job offer information, such as introducing the electronic job registry and requiring the job offer to remain open to U.S. workers for a longer period and closer to the date of need. We stated that these changes were necessary to ensure that there was
Summing the present value of the costs associated with this rulemaking in Years 1–10 results in total discounted costs over 10 years of $10.3 million to $12.8 million (with 7 percent and 3 percent discounting, respectively).
We received 869 comments on the proposed rule. We have determined that 457 were completely unique including 8 representative form letters, 4 were duplicates, 407 were considered a form letter or based on a form letter, and 1 comment was withdrawn at the request of the commenter. Those comments that were received by means not listed in the proposed rule or that we received after the comment period closed were not considered in this Final Rule.
Commenters represented a broad range of constituencies for the H–2B program, including small business employers, U.S. and H–2B workers, worker advocacy groups, State Workforce Agencies (SWAs), agents, law firms, employer and industry advocacy groups, union organizations, members of the U.S. Congress, and various interested members of the public. We received comments both in support of and in opposition to the proposed regulation, which are discussed in greater detail below.
One commenter contended that we dismiss comments simply because they are similar in nature. This statement is incorrect. We read and analyzed all comments that we received within the comment period. For purposes of posting comments for the public to view, we posted all comments we deemed unique with at least one copy of a form letter so that there is an opportunity to see the concerns being addressed. All form letters are considered in the final count of comments received and we address them as required by the Administrative Procedure Act (APA) in this Final Rule. Another commenter argued that we did not allow enough time to comment on the proposed rulemaking. We disagree and believe that 60 days was enough time for the public to comment on the rulemaking. We note that the APA does not provide a specific time period during which agencies must accept public comments in response to proposed rules, see 5 U.S.C. 553, but the 60-day comment period that we provided during this rulemaking is consistent with the directive of Executive Order 13563, see Improving Regulation and Regulatory Review, 76 FR 3821–22 (Jan. 21, 2011). Moreover, in light of the Court's ruling in the
There were several issues which we deemed to be beyond the scope of the proposed rule. Some of these issues included general disapproval of any foreigners being allowed to work in the U.S., elimination of temporary foreign worker programs, activities and rules related to the H–2A program, and general foreign relations and immigration reform issues (including increasing or decreasing the number of available visas). Also beyond the scope of this rulemaking were the collective bargaining rights of H–2B workers, the wage methodology promulgated by the Wage Methodology for the Temporary Non-agricultural Employment H–2B Program, 76 FR 3452, Jan. 19, 2011 and the portability of visas.
Lastly, we received a large number of comments from the ski industry requesting an exemption from the regulations. Many of the commenters believed that because ski instructors require skills or experience, under the new rules they would be ineligible for the H–2B program. Generally, job positions certified under the H–2B program are low skilled, requiring little to no experience. We do recognize, however, that there are some occupations and categories under the H–2B program that may require experience and/or training. Employer applicants demonstrating a true need for a level of experience, training or certification in their application have never been prohibited in the H–2B program, given the breadth of the definition of H–2B under the INA. See 8 U.S.C. 1101(a)(15)(H)(ii)(b). We have determined that an exemption for the ski industry is not appropriate as the commenters presented no valid argument as to why exemption is necessary. There is nothing about the workers they seek to hire that prevents them from participating in the H–2B program. Ski resorts are fixed-site locations that run on a seasonal basis with standard operating procedures. We do not see a reason, nor was one presented, that prevents a ski resort from meeting all the recruitment requirements.
One of the overarching changes we made in the proposed rule was the elimination of the attestation-based model adopted in the 2008 Final Rule. We received comments supporting the elimination of the attestation-based model as well as opposing that change. Generally, commenters who supported our decision to revert to a compliance-based model focused on the Department's desire to reduce the susceptibility of the H–2B program to fraud and abuse. Several commenters expressed concern about the rise of criminal and civil prosecutions which they felt demonstrate abuse in the H–2 program. Most of the commenters cited our audit experience, as discussed in the NPRM, and agreed that this data alone should foreclose any debate on the necessity of ending the attestation-based model. One commenter specifically pointed out that changes in the 2008 Final Rule made it easier for unscrupulous employers and their agents to use H–2B visas for the illicit purpose of suppressing wages. This same commenter suggested that a return to a compliance-based model brings us back to the proper focus of administering the H–2B program in a manner that fairly balances the protection of workers with the desires of employers. Another commenter pointed out that the OFLC's experience of 2 years under the attestation-based model
Generally, commenters who advocated the retention of an attestation-based model encouraged us to use our current resources and enforcement authority to crack down on bad actors, rather than overhaul the program. A few commenters stated that we did not give the 2008 Final Rule and the attestation-based model sufficient time to be successful. Contrary to the comments supportive of a change, these commenters argued that our audit of a random sample of cases is misleading given that the NPRM does not disclose the number of cases audited and the details about the audit process and that all violations appear to be counted with equal weight. Another commenter believed that reverting to the compliance-based model would create extensive processing delays.
We disagree with the commenters who asserted that increased enforcement authority is the answer to resolving concerns about the attestation-based model. Our enforcement authority is a separate regulatory component, regardless of the certification model we use. Our experience, as presented in the NPRM, indicates that despite the fact that the 2008 Final Rule contained elevated penalties for non-compliance with the program provisions, the results of the audited cases demonstrate that an attestation-based process does not provide an adequate level of protection for either U.S. or foreign workers.
Commenters who assert we did not give the 2008 Final Rule and its attestation-based model a chance to be successful undervalue the experience we have had over the last 2 years with the program. In making our decision to depart from the attestation-based model, we took into account not only the audits we conducted as described in the NPRM, but also the various comments and concerns raised by employers, advocates, and workers about compliance with the program. The attestation-based model of the 2008 Final Rule is highly vulnerable to fraud. Under that model, only after an employer has been certified and the foreign workers have come to the U.S. and begun working for the employer, is there a probability that the employer's non-compliance will be discovered or that the foreign worker(s) will report a violation. Only if an employer is audited or investigated will we learn of any non-compliance, even minor violations of program obligations, since the attestation-based model relies on the employer's attestations.
Consistent with our concerns about the attestation-based model, the Department's Office of Inspector General (OIG) issued an audit report on October 17, 2011 in which OIG identified the attestation-based model as a weakness in the H–2B program
As to commenter concerns about the audit sample discussed in the NPRM, we reiterate that we conducted two rounds of audits of a random sample of cases, both of which resulted in an indication that many of the employers were not in compliance with the attestations they agreed to. These audits we reviewed were a random sample. Employers were not selected based on specific industries or occupations, nor were they selected based on compliance with specific provisions. The indication of employer non-compliance from those audits is not acceptable by our standards. Additionally, contrary to the commenter's claim that all violations were given equal weight, regardless of the type of violations or their consequences, our concern is that these audits evidenced a pattern of non-compliance with program obligations toward workers, regardless of the degree of such non-compliance. Moreover, the results of these audits showed the existence of deficiencies in the applications that would have warranted further action, the least of which would have included issuing a Notice of Deficiency, and affording the employer the opportunity to correct the deficiencies, before adjudicating the application. Again, under the attestation-based program model, we are not aware of the non-compliance before certification.
Furthermore, despite the fact that H–2B cases continue to be processed under the 2008 Final Rule, which some commenters said implemented an ideal balance between the attestation-based model and stronger enforcement authority, we still see evidence in the H–2B program of a rising number of criminal violations. In addition to the specific cases cited in the NPRM, there has been more recent evidence of employers and agents filing fraudulent applications involving thousands of requested employees for non-existent job opportunities. For example, according to the OIG's “Semiannual Report to Congress” (October 2010 until March 2011),
Lastly, while some commenters were concerned about the processing delays that may result from reverting to a compliance-based certification model, our focus in administering the H–2B program is to provide employers with a viable workforce while protecting U.S. and foreign workers. We will, however, continue to endeavor to process applications as efficiently and quickly as possible and in accordance with the timeframes set forth in the application processing provisions of this Final Rule.
In the NPRM, we solicited comments on maintaining the 2008 Final Rule or some modification of the attestation-based program design. While we have chosen to adopt the certification-based model described in the NPRM, we discuss below the responses to the specific questions presented in the NPRM:
We received several comments directly addressing this question, one of which asserted that the attestation-based model was straightforward and that non-compliance is attributable to a
While we have established an email box (
One commenter suggested that we implement a three-strike policy to eliminate willful violators from the H–2B program. Another commenter, including several employer advocacy groups, encouraged us to establish additional ongoing education programs throughout the U.S. and suggested that employers document their attendance, which we should consider in mitigation of employer error in the application process. The commenter also recommended that we provide a hotline to answer questions about basic programmatic issues and publish at appropriate intervals a top 10 errors and issues list and a public notice on the OFLC's Web site indicating where the CO identifies a trend.
We believe that debarment and other program integrity measures are sufficient to eliminate willful violators from the H–2B program, and therefore, do not consider a three strike policy to be necessary. As to the request for a hotline, as stated above, we have established an email box to which employers can submit questions about the status of their applications; we believe this will be more accurate than a telephone line for receiving information and questions that can then be translated into public guidance as appropriate. We rely on such emailed questions and information to identify recurring issues for which we may need to publish an FAQ and/or guidance. We also draft FAQs and other guidance documentation at the recommendation of the COs, based on recurring trends and/or issues identified by them. In an effort to better provide information to the employer community, we will consider publishing guidance responsive to specific issues, such as a way to avoid common filing mistakes, once those have been determined under the re-engineered model. Lastly, we also plan to implement rollout activities and briefings to help familiarize program users and others with the regulatory requirements and changes in the H–2B program. Where we determine that more guidance is needed, we will provide additional educational outreach to the filing community and other interested parties.
Several commenters stated that they would be supportive of more post-certification audits as long as we retain the attestation-based certification model. In asking this question, we were trying to gauge whether a pre-certification audit process would be a viable way to alleviate the obvious compliance problems that occur under the attestation-based certification model. One commenter believed that by adding a pre-certification audit process, we would only be contributing to the existing burden on the H–2B worker to report non-compliance without actually removing those employer applicants that continue to do poorly. Another commenter stated that a pre-certification audit process would imply that a review of the documentation will ensure compliance with program requirements. This same commenter believed that a pre-certification review cannot ensure that proper wages will be paid or that U.S. referrals will be properly considered for a job. The commenter also affirmed that the current enforcement scheme provides significant incentive for program users to comply based on audits after an attestation has been made. Lastly, one commenter claimed that asking a hypothetical question about possible changes in the program structure, such as pre-certification audits, without actually proposing language or procedures does not qualify as appropriate notice and would require us to issue a new NPRM.
As discussed above, we sought comments about possible alternatives related to retaining the attestation-based certification model. Based on the comments on the retention of the attestation-based certification model and pre-certification audits, we have decided not to retain the attestation-based model. Therefore, we no longer consider the pre-certification audit process alternative, which was tied to the concept of the attestation-based model, to be an option.
We received several comments on sanctions. We discuss issues involving sanctions in the preamble discussions of 29 CFR part 503 and §§ 655.72 and 655.73.
We did not receive specific alternatives in answer to this question. Any other incidental alternatives received that relate to specific sections of the Final Rule have been discussed under the appropriate related provisions.
For the reasons discussed above, we are reverting to a compliance-based model under the H–2B program as proposed.
We address below those areas in which we received comments. For specific provisions on which we did not receive comments, we have retained the provisions as proposed, except where clarifying edits have been made.
The proposed provision informs program users of the statutory basis and regulatory authority for the H–2B labor certification process. This provision also describes our role in receiving, reviewing, adjudicating, and preserving the integrity of an
This section describes the authority and division of activities related to the H–2B program among the Department's agencies. The NPRM discussed the authority of OFLC, the office within ETA that exercises the Secretary's responsibility for determining the availability of U.S. workers and whether the employment of H–2B nonimmigrant workers will adversely affect the wages and working conditions of similarly employed workers. It also discussed the authority of WHD, the agency responsible for investigation and enforcement of the terms and conditions of H–2B labor certifications, as delegated by DHS. We are retaining this provision as proposed.
We received several comments from employer advocacy organizations on our authority to administer the H–2B labor certification program. These commenters alleged that Congress has not vested authority in the Department and that the statutory provision mandating consultation with other agencies does not necessarily give us the right to effectuate the requirements proposed under these regulations. We address this general assertion below; however, our authority for specific provisions of this Final Rule is addressed in the discussions of the sections containing those provisions.
Under the INA, Congress did not specifically address the issue of the Department's authority to engage in legislative rulemaking in the H–2B program but the legislative history of the Immigration Reform and Control Act (IRCA) specifically acknowledges the Department's practice
Even if the legislative history does not resolve the issue of DOL's rulemaking authority, when the statute does not delegate rulemaking authority explicitly, such statutory ambiguities are implicit delegations to the agency administering the statute to interpret the statute through its rulemaking authority.
Importantly, the
As in the 2008 Final Rule, under the proposed rule, the granting of H–2B labor certifications and the enforcement of the H–2B visa program on Guam continue to reside with the Governor of Guam, under DHS regulations. However, the NPRM proposed that we would determine all H–2B prevailing wages, including those for Guam. Recently, DHS, which consults with the Governor of Guam about the admission of H–2B construction workers on Guam, has determined that prevailing wages for construction workers on Guam will be determined by the Secretary. 8 CFR 214.2(h)(6)(v)(E)(v). DHS and the Department agree that it is more appropriate for OFLC to issue H–2B prevailing wages for all workers, including construction workers on Guam, because OFLC already provides prevailing wage determinations (PWDs) for all other U.S. jurisdictions. We therefore proposed that the process for obtaining a prevailing wage in § 655.10 also would apply to H–2B job opportunities on Guam. Employment opportunities on Guam accordingly would be subject to the same process and methodology for calculating prevailing wages as any other jurisdiction within OFLC's purview. We received no comments on this section and therefore are retaining the provision as proposed.
The proposed rule maintained our authority to establish, continue, revise, or revoke special procedures that establish variations for processing certain H–2B
We also proposed that special procedures already in place on the effective date of the regulations will remain in force until we otherwise modify or withdraw them. A couple of commenters objected to the continuance of current special procedures because they had not participated in the process. We see no need to upset the settled expectations of the employers who have relied upon the special procedures for many years at least to the extent they do not conflict with these regulations. To the extent that the current special procedures are in conflict with these regulations, the regulations will take precedence. An example of a possible conflict would be the current special procedure provision which allows pre-certification to Canadian musicians who enter the U.S. to perform within a 50-mile area adjacent to the Canadian border for a period of 30 days or less. TEGL 31–05 Procedures for Temporary Labor Certification in the Entertainment Industry under the H–2B Visa program, May 31, 2006, available at
A few commenters requested that we revise the proposed language under this section from “the Administrator, OFLC may consult with affected employers and worker representatives” to “the Administrator, OFLC must consult with affected employers and worker representatives.” In addition, some commenters, including labor organizations and employees in the reforestation industry, recommended that we should present special procedures through a notice and comment period similar to an NPRM. Finally, a couple of commenters felt that the special procedures process violates the APA.
We decline to make the changes proposed by the commenters. We have complied with the procedural requirements of the APA by proposing this provision and soliciting public comments. See 5 U.S.C. 553. The purpose of the special procedures is to allow a particular group of employers with a need for H–2B workers to participate in the program by waiving certain regulatory provisions when the provisions cannot be reconciled with the operational norms of the industry and when the employers comply with industry-specific alternative procedures. Although we are not required to provide procedures for requesting a waiver, see
a. Area of substantial unemployment. We proposed to add a definition of area of substantial unemployment to the H–2B program. The proposed definition reflected the established definition of area of substantial unemployment in use within ETA as it relates to Workforce Investment Act (WIA) fund allocations. We have retained the proposed definition of area of substantial unemployment without change.
Some commenters suggested alternative methods of defining an area of substantial unemployment. Several commenters contended that a different threshold percentage than 6.5 percent (
The definition proposed in the NPRM and retained in the Final Rule is the existing definition of area of substantial unemployment within ETA. ETA uses this definition to identify areas with concentrated unemployment and focus WIA funding for services to facilitate employment in those areas. We proposed using this existing definition, and have chosen to retain it in the Final Rule, both as a way to improve labor market test quality and for the sake of operational simplicity. This existing definition provides the appropriate standard for identifying areas of concentrated unemployment where additional recruitment could result in U.S. worker employment. Also, the process of collecting data and designating an area of substantial unemployment using the existing definition is already established, as discussed in ETA's Training and Employment Guidance Letter No. 5–11, Aug. 12, 2011,
Adopting a legal presumption of the availability of domestic workers in areas with 5 percent or higher unemployment would significantly impact employers' access to the H–2B program and could not be viewed as a logical outgrowth of the proposal. Furthermore, while we appreciate the commenter's concern, we disagree with the approach suggested. We thoroughly review all applications submitted for all areas of intended employment. We consider enhanced recruitment requirements, as proposed in the NPRM, to be the most appropriate way to handle job opportunities in areas of substantial unemployment. Accordingly, we will retain the provision as proposed in the Final Rule.
b. Corresponding employment. The NPRM proposed to include a definition of corresponding employment and to require that employers provide to workers engaged in corresponding employment at least the same protections and benefits as those provided to H–2B workers (except for border crossing and visa fees which would not be applicable). The NPRM defined corresponding employment as the employment of workers who are not H–2B workers by an employer that has an accepted H–2B application in any work included in the job order (
For the reasons discussed below, the Final Rule modifies the corresponding employment definition by deleting the word “any” from before the word “work” in two places and inserting the words “doing substantially the same” instead. The preamble also clarifies and provides examples of what is and is not covered. The Final Rule also excludes from the definition of corresponding employment two categories of incumbent employees: (1) Those employees who have been continuously employed by the H–2B employer in the relevant occupation for at least the prior 52 weeks, who have worked or been paid for at least 35 hours in at least 48 of the prior 52 workweeks, and have averaged at least 35 hours of work or pay over the prior 52 workweeks, and whose terms and conditions of employment are not substantially reduced during the period of the job order. In determining whether the standard is met, the employer may take credit for any hours that were reduced because the employee voluntarily chose not to work due to personal reasons such as illness or vacation; and (2) those employees who are covered by a collective bargaining agreement or individual employment contract that guarantees an offer of at least 35 hours of work each week and continued employment with the H–2B employer through at least the period of the job order, except that the employee may be dismissed for cause.
Significantly, the Final Rule retains in the definition the requirement that “to qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof.” Any work performed by U.S. workers outside the specific period of the job order does not qualify as corresponding employment. Accordingly, the Final Rule does not require employers to offer their U.S. workers (part-time or full-time workers) corresponding employment protections outside of the period of the job order. If, for example, a U.S. worker works year-round and is in corresponding employment with the H–2B workers during the period of the job order, the employer must provide corresponding employment protections during the time period of the job order but may choose
There were many comments related to the proposed protections for workers in corresponding employment. Employee advocates, unions, and a member of Congress strongly endorsed the proposed provision, stating that it was essential to ensuring that the employment of H–2B workers does not adversely affect the wages, benefits, and working conditions of similarly employed domestic workers. They emphasized that it is important for corresponding workers to receive not just the prevailing wage, but all the other assurances and benefits offered to H–2B workers, such as transportation, the three-fourths guarantee, and full-time employment, in order to place U.S. workers on at least the same footing as foreign workers. These commenters noted that the principle that there should be no preference for foreign workers is fundamental to the INA, and that a corresponding employment requirement prohibits employer practices that would hurt the employment prospects of U.S. workers. They also emphasized that the proposed rule's assurance of equal protection was a significant improvement for domestic workers who have, in the past, been bypassed in favor of foreign workers. Thus, they stated that this protection is necessary to provide a meaningful test of whether there are U.S. workers available for employment. The employee advocates also stated that the proposed definition's broadening of the requirement to protect incumbent employees, rather than just those newly hired in response to the H–2B recruitment, is important because many employers employ some U.S. workers on a year-round basis, and they should not be employed alongside H–2B workers who receive greater pay, benefits, and protections. Similarly, an employee advocate specifically commended the proposed rule's coverage of situations where employers place H–2B workers in occupations and/or job sites outside the scope of the labor certification, which the commenter stated happens regularly. Thus, it asserted that protecting U.S. workers (including incumbent workers)
Employers, on the other hand, generally opposed the extension of protections to workers in corresponding employment. Some stated that they could not afford to provide the same terms and conditions of employment to corresponding workers, including paying the prevailing wage and guaranteeing three-fourths of the hours. For example, a golf course association stated that it would be financially impossible to provide the same wages and benefits to summer high school and college laborers as it provided to H–2B workers performing the same manual labor. Others stated that paying the prevailing wage to corresponding workers would not be problematic, but that they wanted to be able to continue to reward long-tenured employees (foreign or U.S.) or more skilled staff with higher pay than new workers, such as by providing a pay increase based upon years of service.
It appeared there was confusion about the impact of the corresponding employment requirement. Employers expressed concern because they have overlap in the job duties of various positions, with supervisors performing some of the same tasks as the workers they supervise. They believed that, if there is some slight nexus between what an H–2B workers does and what a higher-paid year-round worker does, the employer would have to pay all workers the higher wage. They stated that this requirement would compel changes to management techniques and eliminate or greatly reduce employers' flexibility to have employees perform whatever task is necessary to complete their work, thereby harming productivity. Employer representatives stated that the definition is so broadly worded (“any” work included in the job order or “any” work performed by the H–2B workers) that it would cover the entire workforce of many businesses. One firm gave the example of a large resort with roughly 2000 employees where senior management (including the resident manager, the director of food and beverage, and even the finance manager) clean rooms on a busy day; supervisors carry guests' luggage; managers in the restaurant clear tables; and managers on the golf course pick up trash or cut the grass. The firm wondered what the H–2B workers should be paid in this case and whether every employee is a corresponding employee who would be entitled to the three-fourths guarantee. Other employers assumed that their laborers would have to be compensated at the same rate as a supervisor if the supervisor occasionally performed some of their same tasks, such as mowing, because of a weather event, large golf tournament, or shortage of staff due to illness. An employer association stated that employers, such as restaurants, needed the flexibility to have a waitress serve as a cashier or hostess, or to have a dishwasher assist with food preparation or cooking, in order to get the work done and keep employees working throughout the day.
Therefore, some employer representatives suggested that the rule should limit the definition to work in the occupation listed in the job order. They stated this would avoid a situation where all U.S. workers who dig holes and plant bushes would be viewed as corresponding employees if the H–2B job order was for a supervisory landscaper with knowledge of irrigation systems and plant species but the supervisor occasionally helped to dig or plant. These commenters also suggested that the Department limit the rule's scope to those U.S. workers who are newly hired by the employer on or after the beginning of the job order period, rather than extending it to workers employed prior to the employment of H–2B workers. Some employer commenters suggested that the Department delete the word “any” from before the word “work.” Other commenters questioned whether the Department has the legal authority to impose the requirement.
After carefully considering all of these comments, the Department has decided to modify the definition of corresponding employment to delete the word “any” from before “work” in two places and insert the words “substantially the same,” and to exclude two categories of incumbent employees: (1) Those who have worked in the relevant job continuously for the H–2B employer for at least the prior 52 weeks, have averaged at least 35 hours of work or pay over those 52 weeks and have received at least 35 hours of work or pay in at least 48 of the 52 weeks, as demonstrated by the employer's payroll records and whose terms and conditions of employment are not substantially reduced during the job order period (an employer may take credit for those hours that were reduced due to an employee's voluntary leave); and (2) those who are covered by a collective bargaining agreement or individual employment contract that guarantees at least 35 hours of work each week and continued employment with the H–2B employer at least through the end of the job order period. Incumbent employees who fall within one of these categories may have valuable terms of employment, including job security and benefits, that neither H–2B workers nor other temporary workers have. This may account for wage differentials between these incumbents and those who are entitled to the H–2B prevailing wage, as well as other differences in terms and conditions of employment.
The Final Rule continues to include other workers within the definition of corresponding employment as proposed in order to fulfill the DHS regulatory requirement that an
The current regulation, however, does not protect U.S. workers who engage in similar work performed by H–2B workers during the validity period of the job order, because it does not protect any incumbent employees. Therefore, for example, a U.S. employee hired three months previously performing the
There are only two categories of incumbent U.S. employees who would be excluded from the definition of corresponding employment. The first category covers those incumbents who have been continuously employed by the H–2B employer for at least the 52 weeks prior to the date of need, who have averaged at least 35 hours of work or pay over those 52 weeks, and who have worked or been paid for at least 35 hours in at least 48 of the 52 weeks, and whose terms and conditions of employment are not substantially reduced during the period of the job order. The employer may take credit for any hours that were reduced because the employee voluntarily chose for personal reasons not to work hours that the employer offered, such as due to illness or vacation. Thus, for example, assume an employee took six weeks of unpaid leave due to illness, and the employer offered the employee 40 hours of work each of those weeks. In that situation, the employer could take credit for all those hours in determining the employee's average number of hours worked in the prior year and could take credit for each of those six weeks in determining whether it provided at least 35 hours of work or pay in 48 of the prior 52 weeks. Similarly, if the employer provided a paid day off for Thanksgiving and an employee worked the other 32 hours in that workweek, the employer would be able to take credit for all 40 hours when computing the average number of hours worked and count that week toward the required 48 weeks. In contrast, assume another situation where the employer offered the employee only 15 hours of work during each of three weeks, and the employee did not work any of those hours. The employer could only take credit for the hours actually offered when computing the average number of hours worked or paid during the prior 52 weeks, and it would not be able to count those three weeks when determining whether it provided at least 35 hours of work or pay for the required 48 weeks.
The second category of incumbent workers excluded from the definition of corresponding employment includes those covered by a collective bargaining agreement or individual employment contract that guarantees both an offer of at least 35 hours of work each week and continued employment with the H–2B employer at least through the period of the job order (except that the employee may be dismissed for cause). As noted above, incumbent employees in the first category are year-round employees who began working for the employer before the employer took the first step in the H–2B process by filing an
The Final Rule's inclusion of other workers within the definition of corresponding employment is important because the current regulation does not protect U.S. workers in the situation where an H–2B employer places H–2B workers in occupations and/or at job sites outside the scope of the labor certification, in violation of the regulations. For example, if an employer submits an application for workers to serve as landscape laborers, but then assigns the H–2B workers to serve as bricklayers constructing decorative landscaping walls, the employer has bypassed many of the H–2B program's protections for U.S. workers. The employer has deprived them of their right to protections such as domestic recruitment requirements, the right to be employed if available and qualified, and the prevailing wage requirement. The Final Rule guards against this abuse of the system and protects the integrity of the H–2B process by ensuring that the corresponding U.S. workers employed as bricklayers receive the prevailing wage for that work.
The current regulation also does not protect U.S. workers if the employer places H–2B workers at job sites outside the scope of the labor certification. For example, an employer may submit an application for workers to serve as landscape laborers in a rural county in southern Illinois, but instead assign its H–2B workers to work as landscape laborers in the Chicago area. Because the employer did not fulfill its recruitment obligations in Chicago, U.S. workers were not aware of the job opportunity, they could not apply and take advantage of their priority hiring right, and the prevailing wage assigned was not the correct rate for Chicago. Such a violation of the employer's attestations results both in the absence of a meaningful test of the labor market for available U.S. workers and U.S. workers being adversely affected by the presence of the underpaid H–2B workers. The Final Rule's definition of corresponding employment ensures that the employer's incumbent landscape laborers who work where the H–2B workers actually are assigned to work will receive the appropriate prevailing wage rate; paying the proper wage to such workers is necessary to protect against possible adverse effects on U.S. workers due to wage depression from the introduction of foreign workers. Therefore, adoption of the definition of corresponding employment in the Final Rule is necessary to allow the Department to fulfill its mandate from DHS to provide labor certifications only in appropriate circumstances.
On the other hand, it is important to clarify that the corresponding employment requirement does not apply in the way that a number of employer commenters feared it would apply. Employers expressed concern that, if a supervisor or manager picked up a piece of trash on a golf course, planted a tree, or cleared a dining room table (the duties of its H–2B workers), all its employees who performed such work would be entitled to the higher wage rate paid to the supervisor. This concern is misplaced because this is not what the definition of corresponding employment requires. Under the Final Rule, a U.S. employee who performs work that is either within the H–2B job order or work actually performed by H–2B workers is entitled to be paid at least the H–2B required wage for that work. However, as the employer commenters recognized, the supervisor already is earning more than the H–2B workers. The corresponding employment requirement does not impose obligations in the opposite direction. Thus it does not, for example, require an employer to bump up the wages it pays to its landscape laborers to the supervisor's wage rate simply because the supervisor performed some of their landscaping laborer duties. Of course, if the H–2B certification was for a landscaping supervisor, and one of its laborers actually worked as a supervisor (perhaps because the supervisor was away on vacation for a week or was out sick for a day or two), then that laborer would be entitled to the H–2B prevailing supervisory rate for those hours actually worked as a supervisor. The laborer would not be entitled to the supervisory wage rate on an ongoing basis after the worker has returned to performing laborer duties.
Employers also expressed concern about how the corresponding employment provision would affect their flexibility in assigning workers different tasks. It is the employer's obligation to state accurately on the
Nevertheless, in order to address employer concerns that the proposed definition of corresponding employment (“any work included in the job order” or “any work performed by the H–2B workers”) was so broadly worded that it would encompass the entire workforce of a company, the Final Rule deletes the word “any” in both places and uses the term “substantially the same” instead. The Department did not intend for the word “any” to indicate that occasional or insignificant instances of overlapping job duties would transform a U.S. worker employed in one job into someone in corresponding employment with an H–2B worker employed in another job. The following explanation is intended to provide clarity regarding when work is substantially the same that it should be considered corresponding employment. We note that the Wage and Hour Division has considerable enforcement experience under a number of statutes in determining the extent to which employees who are assigned to one type of work actually perform other types of work and that employers are generally familiar with these analyses.
Where the U.S. worker is performing “either substantially the same work included in the job order or substantially the same work performed by the H–2B workers * * * during the period of the job order, including an approved extension thereof,” the U.S. worker is in corresponding employment and entitled to the H–2B prevailing wage if it is higher than the worker currently receives. This includes situations where the U.S. worker performs the same job as the H–2B worker as well as those situations where the U.S. worker regularly performs a significant number of the duties of the H–2B worker for extended periods of time, because that worker's job is substantially the same as the H–2B worker's job. The U.S. worker in both situations is in corresponding employment and thus entitled to the higher H–2B prevailing wage.
Because the definition of corresponding employment also applies to “work performed by H–2B workers,” it is important to note that corresponding employment can also arise where H–2B worker is assigned to perform a job that significantly deviates from the job order; effectively making the H–2B worker perform a different job than was stated in the labor certification. If this violation causes the H–2B worker to regularly perform a job for extended periods of time that U.S. workers perform, then the U.S. workers performing the same job are in corresponding employment. If the prevailing wage for that job is higher than the wages the U.S. workers earn, then the U.S. workers are entitled to the higher wage.
An issue of corresponding employment will arise if the employer assigns the H–2B worker to work at a different worksite(s) or place(s) of employment than the worksite(s) or place(s) of employment listed in the certified application. U.S. workers at the new, non-certified location may be performing the same or substantially the same job as the H–2B worker. Deviating from the labor certification in this manner and moving an H–2B worker to the non-certified place of employment will cause the U.S. workers who perform the same work to be deemed to be in corresponding employment. They will be entitled to the H–2B prevailing wage if it is higher than what they currently earn.
Finally, employers expressed their interest in continuing to reward their experienced employees with higher wage rates than those paid to new workers. The H–2B program does not prohibit such higher wage rates for an employer's experienced employees. Of course, an employer must offer at least the same terms and conditions of employment to its U.S. workers in corresponding employment as it offers, plans to offer, or will provide to its H–2B workers. So if an employer rewards an H–2B worker with extra pay and/or benefits based on the H–2B employee's previous work experience, the employer must offer and provide at least the same extra pay and/or benefits to U.S. workers in corresponding employment with same or similar level of previous work experience. Employers can and should indicate the additional pay amounts based upon years of experience on any
c. Full-time. The Department proposed to change the definition of full-time from 30 or more hours of work per workweek to 35 or more hours of work per week. This proposal was precipitated by the District Court's decision in
Several trade associations and private businesses supported retaining the 2008 Final Rule's standard of 30 hours per workweek, citing the difficulties of scheduling work around unpredictable and uncontrollable events, particularly the weather. A number of those commenters suggested that full-time employment should be determined not in each individual workweek, but by averaging workweeks over the length of the certified employment period. Two trade associations and a private business claimed that increasing full-time to 35 hours per workweek would decrease employer flexibility and/or increase costs. Comments from several trade associations and a professional association stated that a 35-hour workweek would be burdensome in combination with other aspects of the proposed rule, particularly the three-quarter guarantee. Finally, one private business commented that the definition of full-time should be determined by industry standards.
A private business, a private citizen, a research institute, two unions, and a number of worker advocacy groups commented that a definition of full-time as 40 hours per workweek is preferable to 35, arguing that the higher standard is more representative of typical full-time jobs. Several of these commenters referred to the CPS findings cited by the Department. Two H–2B worker advocacy groups asserted their experience indicated that long hours are standard in many industries employing H–2B workers and, therefore, a 40-hour definition would be more representative of H–2B job opportunities. Another union and a research institute, in their support of a 40-hour standard, noted that the H–1B visa program also defines full-time as 40 hours per workweek. Finally, a private business, a union, a research organization, and two advocacy organizations argued that establishing a 40-hour standard is more protective of U.S. workers than a 35-hour standard, as more U.S. workers are likely to consider jobs that offer 40 hours of work. One union suggested changing the definition to 37.5 hours per workweek, arguing that this was a common measure.
In accord with the District Court's decision in
The Department recognizes that there is no universally-accepted definition of full-time employment and, without such a standard, must determine a reasonable floor of hours per week below which a job is not considered full-time and therefore ineligible for inclusion in the H–2B program. After careful consideration, the Department has decided to retain the proposed definition of at least 35 hours per week, which more accurately reflects full-time employment expectations than the current 30-hour definition, will not compromise worker protections, and is consistent with other existing Department standards and practices in the industries that currently use the H–2B program to obtain workers.
Though a 40-hour threshold, as some commenters pointed out, would be more consistent with the BLS-reported average of workweek of nearly 43 hours, an average level, by definition, accounts for both higher and lower values. The average includes, for example, hours worked by exempt managerial and professional employees who are not entitled to overtime and who tend to work longer hours. The Department observes that it is entirely likely that the average calculation includes employment relationships in which both the employer and the workers consider full-time to be 35 hours of work per week. This assertion is borne out by some
The Department's decision to define full-time as 35 or more hours does not conflict with worker advocacy groups' claims that many H–2B jobs require 40 or more hours per week. The 35-hour floor simply allows employers access to the H–2B program for a relatively small number of full-time jobs that would not have been eligible under a 40-hour standard. H–2B employers are and will remain required to accurately represent the actual number of hours per week associated with the job, recruit U.S. workers on the basis of those hours, and pay for all hours of work. Therefore, the employer is obligated to disclose and offer those hours of employment—whether 35, 40 or 45, or more—that accurately reflect the job being certified. Failure to do so could result in a finding of violation of these regulations.
d. Job contractor. We proposed to amend the definition of job contractor to resolve concerns raised by the U.S. District Court for the Eastern District of Pennsylvania in
The proposed definition of job contractor included the phrase “will not exercise substantial, direct day-to-day supervision or control.” This addition further clarified that an entity exercising
While some commenters contended that the
While we appreciate the bar association's suggestion, given the infinite variety of business arrangements employers can make with other employers for the provision of labor or services, it is impossible to provide a definitive list of types of employers that would or would not be deemed job contractors. However, the following examples may be instructive for illustrating the differences between an employer that is a job contractor and an employer that is not. Employer A is a temporary clerical staffing company. It sends several of its employees to Acme Corporation to answer phones and make copies for a week. While Employer A has hired these employees and will be issuing paychecks to these employees for the time worked at Acme Corporation, Employer A will not exercise substantial, direct day-to-day supervision and control over its employees during their performance of services at Acme Corporation. Rather, Acme Corporation will direct and supervise the Employer A's employees during that week. Under this particular set of facts, Employer A would be considered a job contractor. By contrast, Employer B is a landscaping company. It sends several of its employees to Acme Corporation once a week to do mowing, weeding, and trimming around the Acme campus. Among the employees that Employer B sends to Acme Corporation are several landscape laborers and one supervisor. The supervisor instructs and supervises the laborers as to the tasks to be performed on the Acme campus. Under this particular set of facts, Employer B would not be considered a job contractor. Note that the provision of services under a contract alone does not render an employer a job contractor; rather, each employment situation must be evaluated individually to determine the nature of the employer-employee relationship and accordingly, whether the petitioning employer is in fact a job contractor.
We believe that our discussion of reforestation employers in the NPRM also may help to further clarify the definition of job contractor. As described in the NPRM, a typical reforestation employer, such as those who have historically used the H–2B program, performs contract work using crews of workers subject to the employer's on-site, day-to-day supervision and control. Such an employer, whose relationship with its employees involves substantial, direct, on-site, day-to-day supervision and control would not be considered a job contractor under this Final Rule. However, if a reforestation employer were to send its workers to another company to work on that company's crew and did not provide substantial, direct, on-site, day-to-day supervision and control of the workers, that employer would be considered a job contractor under this Final Rule.
Some commenters asserted that a job contractor's degree of supervision does not change the fact that its need for workers is permanent. These commenters appear to misunderstand our objective in proposing to prohibit job contractors from participating in the H–2B program. The NPRM created an irrebuttable presumption that a job contractor's need for workers is inherently permanent. The implementation of that determination necessitates that we create a definition of job contractor. Only after a job contractor is identified through the definition can we conclude that the entity's need is permanent.
One commenter asserted that the language “where the job contractor will not exercise substantial, direct day-to-day supervision or control in the performance of the services or labor to be performed other than hiring, paying and firing the workers” created a loophole for job contractors to artificially increase their level of supervision in order to avoid being labeled job contractors. Another commenter was concerned that an employer performing contracts on a year-round basis with on-site supervised crews would avoid being designated a job contractor based on its level of supervision. Both suggested removing the supervision or control language from the definition. While we are concerned about job contractors artificially changing their business model to circumvent a job contractor designation, we believe that the permanency of such an employer's need will be evident and addressed during the registration and application processes. Moreover, we believe that retaining the supervision and control language in the definition is essential to continuing to provide access to employers with legitimate temporary needs who perform contracts for services (
A specialty bar association contended that the phrase “substantial, direct day-to-day supervision or control” is ambiguous and will lead to confusion and uncertainty. The commenter asserted that the word “or” could lead to proof of either supervision or control enabling an employer to avoid designation as a job contractor and suggested that the word substantial adds to interpretive difficulty. Contrary to the commenter's reading, we intended supervision or control to prevent an employer which did not exercise both supervision and control from avoiding designation as a job contractor. In order to resolve this ambiguity, we have changed “or” to “and” in the Final Rule. We believe the use of the word substantial is important because some job contractors do exercise minimal levels of supervision and control, for example, by sending a foreman to check that a crew is working. We have retained the rest of the definition without change because, as discussed above, we believe the language is essential to distinguishing between employers who perform contracts for services and employers who fill staffing contracts. The Final Rule now states that job contractors do not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying and firing the workers.
e. Other definitions. As discussed under § 655.6, we have decided to permit job contractors to participate in H–2B program where they can demonstrate their own temporary need, not that of their clients. The particular procedures and requirements that govern their participation are set forth in § 655.19 and provide in greater detail the responsibilities of the job contractors and their clients. Accordingly, we are adding a definition
We also proposed to define several terms not previously defined in the 2008 Final Rule, including job offer and job order. We proposed definitions for job offer and job order to ensure that employers understand the difference between the offer that is made to workers, which must contain all the material terms and conditions of the job, and the order that is the published document used by SWAs in the dissemination of the job opportunity. In response to comments about the definitions of job offer and job order, we have retained the definition of job offer without change but have revised the definition of job order to indicate that it must include some, but not all, of the material terms and conditions of employment as reflected in modified § 655.18 which identifies the minimum content required for job orders.
Some commenters expressed concern that both the definition of job offer and the definition of job order require the employer to include all material terms and conditions for the job opportunity. The commenters contended that since employment contracts typically incorporate employee handbooks and other documents by reference, it would be difficult, if not impossible, to draft a document that contains all material terms and conditions. In addition, the commenters argued that including such extensive content would infringe on an employer's legitimate business interest in maintaining the confidentiality of employment terms and subject employers to exorbitant fees when the document was used in mandatory advertising. We agree that including all material terms and conditions for the job opportunity in the job order and advertising would be difficult, if not impossible, as well as a dramatic departure from how employers hire for these positions. Accordingly, we have amended the definition of job order so that it now reads “[t]he document containing the material terms and conditions of employment * * *” rather than “[t]he document containing all the material terms and conditions of employment * * *” and “including obligations and assurances under 29 CFR part 503 * * *” and we have amended § 655.18 to reflect the minimum content requirements for job orders. We also removed the phrase “on their inter- and intra-State job clearance systems” as unnecessary. The definition of job offer remains unchanged and requires an employer's job offer to contain all material terms and conditions of employment.
We also proposed revising the definition of strike so that the term is defined more consistently with our 2010 H–2A regulations. We are retaining the proposed definition without change. Some worker advocacy organizations supported the revised definition, appreciating that the definition recognizes a broad range of protected concerted activity and clearly notifies employers and workers of their obligations when workers engage in these protected activities. Other commenters, representing employer concerns, opposed the revised definition, finding it too broad. These commenters contended that the proposed definition includes minor disagreements not rising to the level of what the commenters or prior regulatory language would consider a strike and that the definition covered an employer's local workforce, rather than just the H–2B position. Some commenters requested a return to the language of the 2008 Final Rule, arguing that the proposed definition rejects our longstanding position limiting the admission of H–2B workers where the specific job opportunity is vacant because the incumbent is on strike or being locked out in the course of a labor dispute. These commenters were concerned that two workers could claim to have a dispute and, thereby, prevent the employer from using the program.
Given our desire to align the definition of strike in this Final Rule with the definition in the 2010 H–2A regulations, we have decided to retain the definition as proposed. As we explained in the preamble to the 2010 H–2A Final Rule at 75 FR 6884, Feb. 12, 2010, we believe narrowing the provision as recommended by commenters would unjustifiably limit the freedom of workers to engage in concerted activity during a labor dispute.
We proposed to interpret temporary need in accordance with the DHS definition of that term and of our experience in the H–2B program. The DHS regulations define temporary need as a need for a limited period of time, where the employer must “establish that the need for the employee will end in the near, definable future.” 8 CFR. 214.2(h)(6)(ii)(B). The Final Rule, as discussed in further detail below, is consistent with this approach.
Also, consistent with the definition of temporary need, we proposed to exclude job contractors from participation in the H–2B program, in that they have an ongoing business of supplying workers to other entities, even if the receiving entity's need for the services is temporary. The proposal was based on our view that a job contractor's ongoing need is by its very nature permanent rather than temporary and therefore the job contractor does not qualify to participate in the program. As discussed below, we have revised the proposed provisions in the Final Rule.
a. Job Contractors. We received a number of comments on our proposal to eliminate job contractors from the H–2B program. We received some comments related to the definition of job contractor and how we will identify a job contractor. Those comments related to the definition of job contractor rather than the nature of a job contractor's need. Specifically, commenters from the reforestation industry expressed concerns over being classified as job contractors. These comments are addressed in the discussion of § 655.5.
A number of commenters expressed support for the elimination of job contractors, agreeing that job contractors' need is permanent and that the job openings are actually with a job contractor's employer-client, rather than with the job contractor. A worker advocacy organization asserted that the proposed approach, ensuring that the program is reserved for temporary job openings and excluding job contractors whose need is inherently permanent, was consistent with Congressional intent with respect to the program. One commenter expressed support for the changes in the proposed rule which reflected the court's ruling in
Other commenters generally supported the elimination of job contractors from the program as a way of protecting workers from trafficking and forced labor. One commenter also asserted that the elimination of job contractors will prevent circumstances where the H–2B workers are left without sufficient work or pay while in the job contractor's employ and where H–2B workers, who may be willing to work for less pay or in worse conditions, compete with similarly situated U.S. workers.
Another commenter offered support for the prohibition on job contractors due to the difficulty in holding them accountable for program violations, either because they disappear at the threat of litigation or because they have so little money that they are judgment-proof when they violate employment and labor laws. This commenter
On the other hand, one commenter asserted that the bar on job contractors should not be complete because to the extent that any one job contractor does not have a year-round need and routinely does not employ workers in a particular occupation for a specific segment of the year, its needs are seasonal. This commenter argued that the standard for rejection from the H–2B program should be definitively permanent, not potentially permanent, with respect to whether or not a job contractor's need is permanent. Job contractors should be afforded the same opportunity as all other employers to prove they have a temporary need for services or labor. Relying on
As discussed in the NPRM, a person or entity that is a job contractor, as defined under § 655.5, has no individual need for workers. Rather, its need is based on the underlying need of its employer-clients, some which may be concurrent and/or consecutive. However, we recognize the validity of the concern raised by the commenter that we should exclude from the program only those who have a definitively permanent need for workers, and that job contractors who only operate several months out of the year and thus have a genuine temporary need should not be excluded. Therefore, we are revising § 655.6 to permit only those contractors that demonstrate their own temporary need, not that of their employer-clients, to continue to participate in the H–2B program. Job contractors will only be permitted to file applications based on seasonal need or a one-time occurrence. In other words, in order to participate in the H–2B program, a job contractor would have to demonstrate, just as all employers seeking H–2B workers based on seasonal need have always been required: (1) If based on a seasonal need that the services or labor that it provides are traditionally tied to a season of the year, by an event or pattern and is of a recurring nature; or (2) if based on a one-time occurrence, that the employer has not employed workers to perform the services or labor in the past and will not need workers to perform the services in the future or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
For a job contractor with a seasonal need, the job contractor must specify the period(s) or time during each year in which it does not provide any services or labor. The employment is not seasonal if the period during which the services or labor is not provided is unpredictable or subject to change or is considered a vacation period for the contractor's permanent employees. For instance, a job contractor that regularly supplies workers for ski resorts from October to March but does not supply any workers outside of those months would have its own temporary need that is seasonal.
Limiting job contractor applications to seasonal need and a one-time occurrence is appropriate, as it is extremely difficult, if not impossible, to identify appropriate peakload or intermittent needs for job contractors with inherently variable client bases. The seminal, precedent decision in
The limited circumstances under which job contractors may continue to participate in the H–2B program would still be subject to the limitations provided in the
The Department understands that in some cases the use of a job contractor may be advantageous to employers. However, the advantages provided to employers by using job contractors do not overcome the fact that many job opportunities with job contractors are inherently permanent and therefore such job contractors are not permitted to participate in the program. We recognize that by taking this position the result may be that some employers who have been clients of such job contractors, and who have not previously participated in the program, may now seek to do so. In the proposed rule, the Department encouraged employers to submit information about their changed circumstances as a result of the proposal to bar job contractors from the program, including the potential costs and savings that may result. The Department did not receive any comments from employers describing or quantifying the cost of the elimination of job contractors from the program to aid in the Department's estimation of the economic impact of this proposal.
One commenter was concerned that job contractors would get around this prohibition by representing employers as agents. Agents, by their role in the program, have no temporary need apart from the underlying need of the employer on whose behalf they are filing the
b. Change in the Duration of Temporary Need. In addition to proposing to bar job contractors from the H–2B program based on their underlying permanent need for the employees, we proposed to define temporary need, except in the event of a one-time occurrence, as 9 months in duration, a decrease from the 10-month limitation under the 2008 Final Rule. As also discussed in the NPRM, this definition is more restrictive than, yet still consistent with, the DHS definition of temporary need, in which the “period of time will be 1 year or less, but in the case of a one-time event could last up to 3 years.” 8 CFR 214.2(h)(6)(ii)(B). We
We received a number of comments on this proposal. Most commenters supported the clarification of the temporary need standard. Two such commenters recommended a further reduction in the duration of temporary need to no more than 6 months. In support of their proposal, these commenters suggested that half a year is a reasonable amount of time for an employer to have an unskilled temporary foreign worker, because there are currently millions of unemployed unskilled U.S. workers seeking employment across the country. These commenters hoped that shortening the certification periods for H–2B workers will compel employers to increase recruitment of U.S. workers (because they will have to recruit more often), which better achieves the statutory mandate not to use H–2B labor unless “unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b).
Other commenters opposed the proposal to change the maximum duration of temporary need from 10 months to 9 months. One commenter, who conducted a private survey of H–2B employers, indicated that 32 percent of its respondents indicated that curtailing the temporary work period to 9 from 10 months will have a severe effect on their bottom line. The remainder of respondents indicated moderate to no effect. This commenter indicated that some industries reported greater effects than others; those primarily concerned over the shorter season included: Landscaping, seafood processing, ski resorts, summer resorts, and forestry. As reported by this commenter, for some of these industries, a shorter season would mean less time for training and quality control, decreased revenues and loss of permanent full-time employees. Another commenter concurred that the adoption of a 9-month limit would have a devastating impact on many types of businesses, ranging from hospitality and food service to landscaping and numerous others. This commenter raised concerns about a significant drop in participation in the program by nearly a third of the businesses currently using the H–2B program and predicted substantial effects on the economy, including upstream ripple effects. In contrast to commenters who called for a yet shorter duration, most of these commenters agreed that they would not be able to use the H–2B program if we define a temporary need as less than 9 months.
Another commenter asserted that the standard for temporary need should be the employer's actual need (up to 1 year, or up to 3 years for one-time events) and not an arbitrary time period defined by the Department under the guise of ensuring the integrity of the program. Supporting the retention of a 10-month standard, this commenter challenged our reasoning for reducing the duration of seasonal, peakload, or intermittent need, including referring to the discussion under the 2008 Final Rule which indicated that a period of need in excess of 1 year may be justified in certain circumstances. Finally, an association of employers and temporary workers argued that temporary need should not be generally quantified because it is industry-specific and suggested that each employer should be able to argue that its need is temporary and consistent with the definition of seasonal or peakload.
DHS categorizes and defines temporary need into four classifications: seasonal need; peakload need; intermittent need; and one-time occurrence. A one-time occurrence may be for a period of up to 3 years. The other categories are limited to 1 year or less in duration. See, generally, 8 CFR 214.2(h)(6)(ii)(B).
We believe that the proposed time period is an appropriate interpretation of the one year
While we recognize the impact that a movement from 10 months, which had been previously acceptable, to 9 months will have an adverse impact on some employers, the impact is not relevant to our legal obligation to protect the wages and working conditions of U.S. workers. The Department previously relied on the standard articulated in
Similarly, we have determined that limiting the duration of temporary need on a peakload basis would ensure that the employer is not mischaracterizing a permanent need as one that is temporary. For example, since temporary need on a peakload basis is not tied to a season, under the current 10-month standard, an employer may be able to characterize a permanent need for the services or labor by filing consecutive applications for workers on a peakload basis. To the extent that each application does not exceed the 10 months, the 2-month inactive period may correspond to a temporary reduction in workforce due to annual vacations or administrative periods. Increasing the duration of time during which an employer must discontinue operations from 2 months to 3 will ensure that the use of the program is reserved for employers with a genuine temporary need. Similarly, a 9-month limitation is appropriate for ensuring that the employer's intermittent need is, in fact, temporary. In addition, under the Final Rule, each employer with an intermittent need will be required to file a separate
With respect to one commenter's assertion that we have acknowledged in the 2008 Final Rule that temporary need may last longer than 1 year in some circumstances, the definition of a one-time occurrence as lasting up to 3 years is consistent with DHS regulations and is intended to address those limited circumstances where the employer has a one-time need for workers that will exceed the 9-month limitation.
With respect to the commenter's concern regarding the potential economic impact of the shorter standard on the operations of businesses and the drop in program participation, the Department has accounted in both the NPRM and this Final Rule for the potential drop in program use. Employers participating in the H–2B program must demonstrate that they have a temporary need for the labor or services to be performed which they are unable to meet with U.S. workers. In interpreting the DHS standard for defining temporary need, the Department has struck a balance between ensuring that each position certified will comport with the regulatory requirements and accommodating an employer's legitimate need to fill its job opportunities in cases where United States workers are not available.
c. Peakload need. In addition to re-defining the duration of temporary need, we expressed concern in the NPRM that certain employers who lack the ability to demonstrate temporary need on a seasonal basis may mischaracterize a permanent need as a short-term temporary need which would fit under the peakload need standard. We used as an example the landscaping industry in which the off season is primarily a product of the absence of H–2B workers rather than a reduction in the underlying need for the services or labor. In that context, we sought comments and ideas from the public on the factors or criteria that we should consider in determining whether the employer has a genuine peakload need based on short-term demand. In addition, we requested input on whether we should limit these occurrences to those resulting from climactic, environmental or other natural conditions, or on limiting short-term demand to 6 months.
We received several comments on this proposal. The majority of commenters opposed the restriction of the peakload need standard. One commenter indicated that approximately a quarter of all H–2B applications are filed for landscaping employment, and that the employer's underlying need may well depend on the location of the company and the climate in that location. This commenter suggested that these employers should not be precluded from program participation by virtue of where they are located, and requested that we retain our peakload need definition as proposed.
In response to commenters' suggestions, we have concluded that no commenters offered a practical rationale indicating that a 6 month limitation would be more effective at curbing the issue of misclassifying the nature of the employer's need, rather than a 9 month limitation but we received a large number of comments noting that such a change would have an unintended consequence of effectively barring at least one sustaining industry—landscaping—from the program. With respect to another commenter's suggestion that we estimate short-term demand in relation to the number of temporary workers on a peakload basis as a percentage of the employer's total workforce, we note that such a suggestion is not operationally feasible.
One commenter responded to the request for comments on establishing criteria for distinguishing genuine peakload need from a permanent need. The commenter proposed the application of a specific criterion, namely: a limitation of peakload need to 6 months, defining short-term demand in relation to the percentage of temporary workers on a peakload basis as a percentage of the employer's total workforce. This commenter proposed concrete numbers of workers and percentages based on the numbers of workers employed by the employer, indicating that such an approach ought to preclude employers that conduct year-round activities constituting permanent need from using the H–2B program.
Having considered all comments on this proposal, we have determined to retain the provision as proposed. We thank the commenters for their valuable suggestions; however, we have determined that this regulation, as proposed, better meets our program mandate than any of the suggested alternatives.. Therefore, we are retaining this provision as proposed.
d. One-Time Occurrence. In addition to barring job contractors, and reducing the duration of the seasonal/peakload need to 9 months, we proposed an interpretation of a one-time occurrence to be consistent with DHS regulations under which such an occurrence could last up to 3 years. We received a number of comments on this proposal.
The majority of commenters opposed the apparent expansion of this requirement. One commenter indicated that while the reduction in the duration of seasonal/peakload need to 9 months was a notable improvement, the 3-year one-time occurrence provided employers with a loophole. This commenter referred to the H–2B definition under section 101 of the INA to indicate an inconsistency. Other commenters suggested that we institute an across the board 9-month limitation to the duration of temporary need. Many of the commenters opposing this proposal referred to average durations U.S. workers stay in their jobs, noting that the duration was typically less than 3 years and thus that our proposal was inconsistent with labor market information.
Other commenters addressing the needs of the construction industry indicated that the standard for proving a temporary need based on a one-time occurrence would be difficult to meet under the definition, in that the employer must establish that [1] it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or [2] it has an employment situation that is
We proposed to define temporary need consistent with DHS regulations, so that both agencies make consistent decisions on applications/petitions. The majority of commenters asserted that our reliance on DHS regulations, in this instance, is misplaced. These commenters focused on the examples relied upon by DHS in the preamble to its 2008 regulations at 73 FR 78104, Dec. 19, 2008 to explain the operation of the 3-year, one-time occurrence. Although we adopt the DHS regulatory standard, we acknowledge, as DHS did, that it did not intend for the 3-year accommodation of special projects to provide a specific exemption for the construction industry in which many of an employer's projects or contracts may prove a permanent rather than a temporary need. Therefore, we will closely scrutinize all assertions of temporary need on the basis of a one-time occurrence to ensure that the use of this category is limited to those special and rare circumstances where the employer has a non-recurring need which exceeds the 9 month limitation. For example, an employer who has a construction contract which exceeds 9 months may not use the program under a one-time occurrence if it has previously filed an
For all of the reasons articulated above, we are retaining the standard for a one-time occurrence as proposed.
In the NPRM, we proposed to designate the persons authorized to file an
In the NPRM, we noted that we have long accepted applications from agents acting on behalf of employers in the H–2B program, but that in administering the H–2B program, we have become concerned about the role of agents in the program and whether their presence and participation have contributed to program compliance problems. We proposed that if we were to continue to accept applications from agents, that the agents be required, at a minimum, to provide copies of current agreements defining the scope of their relationships with employers and that where an agent is required under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to have a Certificate of Registration, the agent must also provide a current copy of the certificate which identifies the specific farm labor contracting activities that the agent is authorized to perform. The Final Rule adopts this provision as proposed. We also invited the public to provide ideas and suggestions on the appropriate role of agents in the H–2B program. We specifically sought comments on whether we should continue to permit the representation of employers by agents in the H–2B program, and if so, whether any additional requirements should be applied to agents to strengthen program integrity.
Based on the comments we received, we have concluded that agents should be permitted to continue to represent employers in the H–2B process before the Department and file
A few commenters suggested that agents be barred from filing applications on behalf of H–2B employers. At least two commenters, both trade organizations, suggested that agents create a problematic level of separation between employers and their obligations under the H–2B program.
An overwhelming number of commenters, however, stated that while disreputable agents may exist, bona fide agents are critical to the employers' ability to maneuver through the H–2B application process and requirements. Many of these commenters reiterated our own statistics for FY 2010, showing that that only 14 percent of employers filed applications without an agent and that 38 percent of these cases were denied. These commenters argued that we should continue to allow agents to file applications on behalf of H–2B employers. These same commenters, however, expressed an interest in program integrity and therefore agreed with the proposal to require agents to provide copies of their agreements with employers, to verify the existence of a relationship. Some commenters suggested that the agent(s) should be permitted to redact confidential proprietary business information before providing such agreements. Again, we are requiring agents to supply copies of the agreements defining the scope of their relationship with employers to ensure that there is a bona fide agency relationship and maintain program integrity. The requirement, however, in no way obligates either the agent or the employer to disclose any trade secrets or other proprietary business information. The Final Rule only requires the agent to provide sufficient documentation to clearly demonstrate the scope of the agency relationship. In addition, under this Final Rule, we do not presently plan to post these agreements for public viewing. If, however, we do so in the future, we will continue to follow all applicable legal and internal procedures for complying with Freedom of Information Act (FOIA) requests to
One commenter, a trade organization, suggested that the proposed requirement that agents provide a copy of their MSPA Certificate of Registration, if required under MSPA, may be confusing since H–2B is viewed as non-agricultural, in contrast with the H–2A program, which is for agricultural labor and services. This commenter recommended that we provide a list of those businesses to which this additional requirement applies.
Several commenters also suggested that, in addition to receiving agent-employer agreements we should: limit the tasks in which agents can engage to those not involving the unauthorized practice of law or for which no payment is received, in accordance with DHS' regulations; make such agreements publicly available; maintain a public list of the identity of agents who represent employers in the labor certification process; require mandatory registration for agents; hold employers strictly liable for the actions and representations of their agents; and lastly, enhance enforcement mechanisms to combat fraud.
After evaluating all the comments, we have decided to continue to permit agents to participate in the Department's H–2B labor certification program. Their importance to employers, as reflected in numerous comments, outweighs any value gained by their exclusion. We remain interested in furthering program integrity; while we are not prepared to accept any of the specific requirements on agents suggested by commenters at this time, we have clarified in § 655.73(b) that an agent signing ETA Form 9142 may be debarred for its own violation as well as for participating in a violation committed by the employer. Some of the commenters' ideas, such as requiring agents to be registered with the Department to participate in the program would require additional government resources which are currently limited, while other ideas are not deemed necessary at this time, such as making the agreements publicly available. We believe that the Department will be able to preserve program integrity by collecting such agreements to ascertain the validity of and scope of the agency relationship and, where the agent is also engaged in international recruitment, to ensure they include the contractual prohibition against charging fees language required at § 655.20(p) prohibiting the payment of fees by the worker. Such action, in combination with the enforcement mechanisms and compliance-based model adopted by this Final Rule, will resolve many of the expressed concerns without requiring the expenditure of additional resources. However, as stated under § 655.63, we reserve the right to post any documents received in connection with the
Lastly, in response to commenters that urged us to hold employers strictly liable for the actions of the agents, we remind both agents and employers that each is responsible for the accuracy and veracity of the information and documentation submitted, as indicated in the ETA Form 9142 and Appendix B.1, both of which must be signed by the employer and its agent. As discussed under § 655.73(b), agents who are signatories to ETA Form 9142 may now be held liable for their own independent violations of the H–2B program. As to the commenter's suggestion that we provide additional examples of H–2B occupations subject to MSPA guidelines, we believe that employers or individuals working in affected industries are already aware of their obligations under MSPA, including the requirement to register.
We proposed to require an employer and its attorney and/or agent to provide a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H–2B workers. We also proposed to disclose to the public the names of the agents and recruiters used by employers and their attorneys and/or agents participating in the H–2B program. We received several comments, all of which agreed with the proposal to provide information about the recruiter's identity. We have expanded this section in the Final Rule to better reflect the obligation therein. For example, we revised the Final Rule to specify that the requirement to provide a copy of the written contract applies to agreements between the employer or the employer's attorney or agent and that the written contract must contain the contractual prohibition on charging fees, as set forth in § 655.20(p). Where the contract is not in English and the required contractual prohibition is not readily discernible, we reserve the right to request further information to ensure that the contractual prohibition is included in the agreement.
Several commenters requested that we strengthen the section by requiring the employer to also provide the identity and location of the foreign labor recruiter's sub-recruiters or sub-agents and to expand the provision to include verbal agreements, as such informal arrangements with foreign recruiters are not uncommon. We agree that in addition to bolstering program integrity by aiding in the enforcement of certain regulatory provisions, collecting the identity and location of persons hired by or working for the recruiter or its agent to recruit or solicit prospective H–2B workers—effectively acting as sub-recruiters, sub-agents, or sub-contractors—will bring a greater level of transparency to the foreign recruitment process that will assist the Department, other agencies, workers, and community and worker advocates in understanding the roles of each participant and the recruitment chain altogether. This requirement advances the Department's mission of ensuring that employers comply with overall H–2B program requirements, and do not engage in practices that adversely affect the wages and working conditions of U.S. workers. See 8 U.S.C. 1184(c)(14).
We have therefore added paragraph (b) of this section in the Final Rule, requiring that employers and their attorneys or agents provide the identity (name) of the persons and entities hired by or working for the recruiter or recruiting agent and any of the agents or employees of those persons and entities, as well as the geographic location in which they are operating. We interpret the term “working for” to encompass any persons or entities engaged in recruiting prospective foreign workers for the H–2B job opportunities offered by the employer, whether they are hired directly by the primary recruiter or are working indirectly for that recruiter as a downstream recruiter in the recruitment chain. We expect employers, and their attorneys or agents, as applicable, to provide these names and geographic locations to the best of their knowledge at the time the application is filed. We expect that, as a normal business practice, when completing the written agreement with the primary recruiting agent or recruiter, the employer/attorney/agent will ask who the recruiter plans to use to recruit workers in foreign countries, and whether those persons or entities plan to hire other persons or entities to conduct such recruitment, throughout the recruitment chain.
As mentioned above, the public disclosure of the names of the foreign labor recruiters used by employers, as well as the identities and locations of persons or entities hired by or working for the primary recruiter in the recruitment of H–2B workers, and the agents or employees of these entities, will provide greater transparency to the H–2B worker recruitment process. By
To reiterate the overall requirements of § 655.9 in the Final Rule, § 655.9(a) requires employers or their agents or attorneys, as applicable, to provide us with a copy of all agreements with any foreign labor recruiter, and those written agreements must contain the required contractual prohibition on the collection of fees, as set forth in § 655.20(p). The requirement in § 655.9(b) to disclose to the Department the identities and locations of persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit H–2B workers for the job opportunities offered by the employer encompasses all agreements, whether written or verbal, involving the whole recruitment chain that brings an H–2B worker to the employer's certified H–2B job opportunity in the U.S.
Several commenters erroneously assumed the agreements between the employer and the foreign recruiter would be made public. The NPRM provided for obtaining the agreements and sharing with the public the identity of the recruiters, not the full agreements.
As stated above, we intend to collect the submitted agreements for the purpose of maintaining a public list of recruiters involved with H–2B workers. At the time of collection, we will review the agreements to obtain the names of the foreign recruiters and to verify that these agreements include the contractual prohibition against charging fees language required at § 655.20(p) prohibiting the payment of fees by the worker. We may also further review the agreements in the course of an investigation or other integrity measure. We therefore remind the public that a certification of an employer's application that includes such a submitted agreement in no way indicates a general approval of the agreement or the terms therein.
Several commenters agreed that the disclosure of the identity of the foreign recruiters is helpful and badly needed, but suggested that it is not enough. One commenter, an individual, suggested that if an employer is paying a recruiter to locate foreign workers, that employer should also pay for a U.S. recruiter to locate U.S. workers. We did not impose such a requirement. This Final Rule, as discussed below in further detail, contains several recruitment steps the employer must conduct, aimed at providing U.S. workers ample opportunity to learn about and apply for these jobs.
Other commenters suggested that we should institute a mandatory registration or licensing system, that we should require recruiters to make themselves subject to U.S. jurisdiction, or that employers should be held strictly liable for recruitment violations. While we appreciate these suggestions, we will not implement them because we neither have the resources nor the authority to do so. However, we will continue to implement enforcement and integrity measures to decrease potential fraud in the H–2B program.
We proposed a modified process for obtaining a prevailing wage designed to simplify how an employer requests a PWD. The proposed rule required employers to request PWDs from the National Prevailing Wage Center (NPWC) before posting their job orders with the SWA and stated that the PWD must be valid on the day the job orders are posted. We encourage employers to continue to request a PWD in the H–2B program at least 60 days before the date the determination is needed. After reviewing comments on the proposed prevailing wage process, we are adopting the provisions as proposed, with one amendment.
Several labor and worker advocacy groups supported the proposed process for obtaining a PWD. One, while agreeing that we should require employers to test the U.S. labor market using a currently valid PWD, suggested that we should also require employers to pay any increased prevailing wage that is in effect for any time during the certified period of employment. The commenter cited the Court's ruling in
Since this concept of paying any increased prevailing wage that is in effect for any time during the certified period of employment was not contained in the NPRM and the public did not have notice and an opportunity to comment, we cannot adopt the commenter's suggestion in this Final Rule.
Some labor and worker advocacy groups suggested that removing the last sentence of proposed paragraph (d), which exempts employers operating under special procedures, would clarify the proposed regulatory language on prevailing wages for multiple worksites. We agree and have removed the sentence in the Final Rule. We issue special procedures through TEGLs which detail the variances permitted for occupations covered by the special procedures.
Some commenters noted that existing special procedures will require updating, given this rule and the Prevailing Wage Final Rule. We agree that we will need to update existing special procedure guidance to reflect organizational and regulatory changes; however, those updates will be issued through new Training and Employment Guidance Letters (TEGLs) rather than within this rule, where appropriate. Until such time as new TEGLs are issued, we will continue to honor the special procedures that were in place before the effective date of the new regulations.
A number of commenters expressed concern about the application of the new prevailing wage methodology to workers in corresponding employment. We address these comments in the larger discussion of corresponding employment at § 655.5.
As discussed in the NPRM, this rulemaking does not address or seek to amend the prevailing wage methodology established under the H–2B Wage Final Rule. Comments related to the new prevailing wage methodology fall outside the scope of this rulemaking.
We proposed to bifurcate the current application process into a registration phase, which addresses the employer's temporary need, and an application phase, which addresses the labor market test. We proposed to require employers to submit an
a. Method of registration. Many commenters voiced support for the proposal to bifurcate the application process and shift the temporary need and bona fide job opportunity review to the registration process described in the NPRM. Some commenters supported bifurcation believing that the registration process will provide more time for OFLC to thoroughly review an employer's intended use of the program and temporary need. Others supported the registration process, asserting that the 3-year registration validity and removal of employers without legitimate temporary need will result in a more efficient process, better program oversight, better protection for workers, and greater visa availability for employers with legitimate temporary needs. Still other commenters believed that the registration would help prevent visa fraud. These comments were consistent with our reasoning, as articulated in the NPRM.
Other commenters opposed the registration process. Some industry organizations and employers feared that the addition of a registration step will make the application process more cumbersome and time-consuming and some urged us to use increased enforcement activities rather than program restructuring to accomplish our stated goals. We view the proposed separation of the temporary need evaluation process from the labor market test process as an opportunity to fully evaluate an employer's intended use of the H–2B program without sacrificing overall program efficiency. We have found that evaluating temporary need is a fact-intensive process which, in many cases, can take a considerable amount of time to resolve. Separating the two processes will give OFLC the time to make a considered decision about temporary need without negatively impacting an employer's ability to have the workers it needs in place when needed. In addition, we anticipate that many employers, with 3 years of registration validity, will enjoy a one-step process involving only the labor market test in their second and third years after registration, which will allow the Department to process these applications more efficiently. We disagree that enforcement alone can ensure program integrity; we believe the move from an attestation-based model to a compliance-based model, the bifurcation of application processing into registration and labor market test phases, and enforcement activities all contribute to program integrity. We appreciate and understand stakeholder concerns about transition to a new registration process and will make every effort to ensure that the transition does not adversely impact processing by announcing the procedures by which we will implement the registration process. We have accordingly added a regulatory provision to allow for the transition of the registration process through a future announcement in the
One commenter expressed concern that DHS and the Department of State (DOS) each also review temporary need and that the three agencies differ in approach, resulting in inconsistent findings related to temporary need. We understand that, throughout the H–2B process, an employer must interact with multiple government agencies, each with different responsibilities related to the H–2B program. However, while each may perform different functions, the definition of temporary need is consistent across all relevant agencies, and we seek to minimize differences by participating in inter-agency communication designed to align the agencies' H–2B processing efforts.
One specialty bar association asserted that the new registration process is a departure from previous practice and that we are exceeding our authority by adjudicating temporary need in the registration process, effectively removing USCIS from the process and assuming an adjudicatory role that Congress did not intend. We disagree. We have a longstanding practice of evaluating temporary need as an integral part of the adjudication of the
b. Timing of registration. We proposed to require employers to file an
Several commenters supported bifurcation of the application process as a means of enabling employers to conduct recruitment in the U.S. labor market closer to the date of need. We agree and anticipate, as these commenters do, that recruitment closer to the date of need should provide a more accurate reflection of actual labor market conditions.
Other commenters feared that the addition of a registration step will make the application process more time-consuming. Commenters expressed concern that, without timelines or deadlines on registration processing, an employer cannot be sure it will have time to complete Department, DHS, and DOS processing and receive the requested workers before its date of need. One commenter alleged that we sought to hide registration processing time outside the application processing time counted against our 60-day processing guideline.
Our timeline for processing applications in the new two-step process is sensitive to these concerns. The proposed registration window (
For consistency with other provisions under the Final Rule and clarification of the process therein, this provision has been slightly revised to add reference to the exception to the filing time requirement of the
c. Registration process. The proposed rule authorized the CO to issue one or more RFIs before issuing a Notice of Decision on the
One employer suggested we remove the word “normally” from paragraph (g) of this section to establish a definitive timeframe for RFI issuance. We agree and have removed “normally” from paragraph (g) of this section in the Final Rule.
Another employer suggested that we should not permit the CO to issue an unlimited number of RFIs. In order to provide the CO with flexibility to work with employers seeking to resolve deficiencies and secure registration approval, we will retain the provision as proposed.
One commenter suggested limiting 3-year registration validity to employers with recurring predictable seasonal and peakload needs, while requiring one-time or intermittent need employers to re-register every year. We find that this concern is sufficiently accommodated in the regulation as written, which provides the CO with discretion over the validity period of registrations approved. The CO may approve a registration for a period up to 3 consecutive years, taking into consideration the standard of need and any other factors in the registration.
d. Registration content. Under the proposed rule, supporting documentation was to accompany the
One commenter suggested that we include a basic recruitment effort requirement at the time of registration to show need for the program. We do not believe requiring recruitment prior to registration filing is consistent with our purpose in separating the application process into a registration step and a labor market test. Recruitment efforts close to an employer's period of need are most likely to result in an accurate labor market test, while recruitment far in advance of the employer's period of need is unlikely to yield valid recruitment results. The Final Rule retains recruitment requirements during the application process, which is closer to the employer's date of need.
One commenter encouraged us to include a bona fide employer check, in order to eliminate fraud by fictitious employers. The commenter suggested requiring Federal Employer Identification Number (FEIN) documentation and a certificate of good standing from the company's State of formation (in the case of a corporation or a limited liability company) or comparable document for a sole proprietorship (
Some labor and advocacy groups suggested making registration information available to the public, for both transparency and information purposes, as well as to permit public input on registrations before adjudication. Comments related to transparency and community interest in publicly available information have been addressed in the larger discussion of public disclosure. While we anticipate continuing to receive information and concerns from the public informally, which OFLC takes under consideration during its review, we cannot permit the public to formally participate in the adjudication process. It would present serious operational burdens, and as a result it would become difficult to complete the registration process in a timely fashion. Finally, we anticipate that the various provisions of this Final Rule will result in improved employer compliance, resolving some of the underlying concerns.
e. Registration documentation retention. We proposed requiring all employers that file an
We received few comments on this provision. One worker advocacy organization expressed support for the registration documentation retention requirement, believing the requirement will improve protections for U.S. workers, while another commenter suggested that a 5-year retention requirement would be better than 3 years in preserving evidence for criminal prosecution. We believe the 3-year retention requirement is sufficient to address our interests in upholding program integrity and, as with any document retention requirement, if an employer is involved in a proceeding in which documents are relevant, the time for retaining the documents is tolled.
One State bar association expressed concern about our discussion in the NPRM about requiring retention of documentation related to an
f. Registration of job contractors. As discussed in the preamble to § 655.6, we are continuing to permit job contractors to participate in the H–2B program where they can demonstrate their own temporary need and not that of their employer-clients, and that this temporary need is seasonal or a one-time occurrence. Accordingly, we have made several edits to reflect the requirement that job contractors provide documentation that establishes their temporary seasonal need or one-time occurrence during the registration process and to make this requirement a factor in the National Processing Center's (NPC's) review of the
g. Document retention. We proposed that the documents for registration would be retained for a period of 3 years from the date of applicability of the
We proposed to permit an employer to file an
a. Limitation on variances in temporary need. Some commenters contend that, given that business is not static, the limitations on
Commenters suggested other thresholds for variances in the period of need or in the number of workers requested that could trigger re-registration requirements. One commenter supported the requirement that employers be required to re-register when there are significant variances in temporary need as an important fraud reduction mechanism, but suggested we alter the formula from a percentage system to a whole number ratio system (
We believe that material changes in the job classification or job duties, material changes in the nature of the employer's temporary need, or changes in the number of workers needed greater than the specified levels, from one year to the next, merit a fresh review through re-registration. We note that the tolerance level for the number of workers requested proposed for the registration process (
Another commenter suggested focusing the number of workers limitation on the number of H–2B workers actually employed rather than the number requested. We find this suggestion unworkable both for OFLC and employers. Our focus is on an employer's need for workers and openings to be filled during recruitment, not actual visa usage. While we plan to begin collecting data on the number of workers an employer ultimately employs under H–2B visas for other purposes, such as gaining a better understanding of program usage, we will base our evaluation of
We agree, however, that a wider variation in the employer's stated period of need would accommodate reasonable fluctuations in temporary need, without sacrificing program integrity, and would better effectuate our goal of streamlining the process by enabling more employers to use an
b. Prohibition on transfer. We proposed to prohibit the transfer of an approved
c. Validity of registration. We proposed to issue
We proposed changing the process for the review of PWDs for purposes of clarity and consistency. Specifically, we
A labor and worker advocacy organization suggested that U.S. and foreign workers should not be excluded from the PWD appeal process. We cannot permit public participation in the prevailing wage appeal process. The prevailing wage process is an employer-based application process, which often occurs before specific workers are identified. Operationally, doing so would present serious questions as to who could or could not become parties to the process and would make timely resolution of issues difficult. We will continue however, to accept information from the public regarding wage issues, including information concerning appeals.
Under the proposed rule, we returned to a post-filing recruitment model in order to develop more robust recruitment and to ensure better and more complete compliance by H–2B employers with program requirements. As explained in the proposed rule, our experience in administering the H–2B program since the implementation of the 2008 Final Rule suggests that the lack of oversight by the Department and the SWAs during the pre-filing recruitment process has resulted in failures to comply with program requirements. We believe the recruitment model described in the proposed rule and now adopted in this Final Rule will enhance coordination between OFLC and the SWAs, better serve the public by providing U.S. workers more access to available job opportunities, and assist employers in obtaining the qualified personnel that they require in a timelier manner.
The proposed rule required the employer to file the
For purposes of simultaneous filing, we use the term “job order” when in fact the job order has yet to be created and posted by the SWA. We recognize that this may be confusing to the employer, as what will actually be submitted simultaneously to both agencies is a document which outlines the details of the employer's job opportunity, not the official job order. We expect the employer to provide the Chicago NPC with an exact copy of the draft the employer provides to the SWA for the creation of the SWA job order.
We also proposed to continue to require employers to file separate applications when there are different dates of need for the same job opportunity within an area of intended employment. Lastly, we proposed to continue to require filing of an
A few commenters disagreed with the proposal to allow for the simultaneous filing of the job order with the Department and the SWA, contending that the process would be unwieldy and result in duplicative efforts. In contrast, other commenters supported a return to a post-filing recruitment model. As discussed in the NPRM, by involving the SWA in the job order review, the proposed process directly employs the SWAs' significant knowledge of the local labor market and job requirements. We agree with the commenters who asserted that the resulting job order will provide accurate, program compliant notification of the job opportunity to U.S. workers. In addition, requiring the employer to simultaneously file the job order with the Chicago NPC and the SWA will enhance coordination between the agencies, resulting in increased U.S. worker access to job opportunities as well as helping employers locate qualified and available U.S. workers.
Some commenters supported the proposed timeframe for submitting the
One worker advocacy group expressed support for requiring separate applications for work occurring at separate worksites, with separate employers, or for different positions that have different job duties or terms and conditions of employment. We also received comments opposing the proposal to continue to require employers to file separate applications when there are different dates of need for the same job opportunity within an area of intended employment. Commenters argued that their business ramps up during the period of need, resulting in a need for some, but not all, of the workers requested on the date of need provided in the
We received comments suggesting that we post the
We did not receive comments on our proposal to continue to use ETA Form 9142 to collect the necessary information, with slightly modified appendices reflecting changes from the 2008 Final Rule (such as a change of tense to note pre-recruitment filing). As discussed in the NPRM, while we have begun efforts to establish an online format for the submission of an
We proposed to require the employer to submit its job order directly to the SWA at the same time as it files the
Many commenters supported the return to more direct SWA participation in the U.S. labor market test, including the SWA's simultaneous review of job order content with the Chicago NPC. These commenters agreed that the SWA's local knowledge would be helpful in ensuring that an accurate job order is posted presenting the job opportunity to available workers. In contrast, some commenters opposed the simultaneous job order review process as burdensome for SWAs at current funding levels and duplicative of the Chicago NPC's review. By requiring such concurrent filing and review, the CO can use the knowledge of the SWA, in addition to its own review, in a single Notice of Deficiency before the employer conducts its recruitment. While we are sensitive to SWA budget concerns, SWAs can continue to rely on foreign labor certification grant funding to support those functions. We believe that this continued cooperative relationship between the CO and the SWA will ensure greater program integrity and efficiency.
Despite supporting re-introduction of SWA job order review, some commenters contended that 4 calendar days was insufficient time for the SWA to conduct an adequate compliance review and notify the Chicago NPC of its findings. After reviewing these comments, we have decided to modify the SWA's timeframe for job order review in the Final Rule, from 4 calendar days to 6 business days.
One commenter suggested requiring the employer to submit the job order to all SWAs having jurisdiction over the anticipated worksite(s). We will not accept this suggestion, finding the result potentially burdensome and confusing to SWAs and employers, as well as the Chicago NPC. Limiting the job order submission and review to one SWA and the Chicago NPC and, after acceptance, circulating the job order to other appropriate SWAs, best accomplishes the cooperative relationship and thorough review we seek to implement without increasing confusion or sacrificing efficiency.
A labor organization suggested that we clarify the meaning of intrastate and interstate clearance to ensure that the SWA circulates the job order to all appropriate States. Intrastate clearance refers to placement of the job order within the SWA labor exchange services system of the State to which the employer submitted the job order and to which the NPC sent the Notice of Acceptance, while interstate clearance refers to circulation of the job order to SWAs in other States, including those with jurisdiction over listed worksites and those the CO designates, for placement in their labor exchange services systems. We note that, under § 655.33(b)(4), the CO directs the SWA in the Notice of Acceptance to the States to which the SWA must circulate the job order, ensuring that the employer is also aware of the job order's exposure in the SWAs' labor exchange services systems. However, to further this distinction in the Final Rule, this section has been slightly revised to clarify that the SWA must place the job order in intrastate clearance and must also provide it to other States as directed by the CO.
The same labor organization suggested we require the SWA to post the job at State motor vehicle offices and Web sites. Another commenter suggested we require the job order to be open until the end of the certification period, not only the recruitment period. Still another commenter suggested the SWA be required to keep the job order posted for 30 days. We note that job order posting in the SWA labor exchange system is but one of the SWA and employer recruitment activities contained in the Final Rule, which together are designed to ensure maximum job opportunity exposure for U.S. workers during the recruitment period. Also, in most cases, the job order will be posted for more than 30 days, since the Final Rule requires the employer to file its application no more than 90 calendar days and no less than 75 calendar days before its date of need and the SWA to post the job order upon
One commenter suggested we require employers to simultaneously file the
We proposed to permit an employer to file an
In the NPRM, apart from permitting an employer to file fewer than 75 days before the start date of need and requiring the employer to show good and substantial cause, we proposed to process an
For purposes of simultaneous filing we use the term job order in the NPRM, when in fact the job order has yet to be created and posted by the SWA. We recognize that this may be confusing to the employer, as what will actually be submitted simultaneously with the
We also received several comments from employers, employer advocacy groups, and trade organizations, requesting that we include man-made disasters in this provision. While we indicated in the NPRM that the examples listed as good and substantial cause are not exclusive, suggesting that the expansion of the list is in line with the intent of the provision, for clarification we have revised this provision in the Final Rule to specifically include man-made disasters as being circumstances beyond the control of the employer that can result in the need to file an
Several commenters expressed concern about the potential for employers to use natural disasters to abuse the program and workers. These commenters urged us to be vigilant when processing emergency applications. We are sensitive to these concerns. We intend to subject emergency applications to a higher level of scrutiny than non-emergency applications. As proposed and as adopted in the Final Rule, an
A labor organization asserted that in times of disaster, U.S. workers may be interested in assuming these temporary positions after an initial period of securing basic provisions and safety because they have been displaced from their normal jobs. This commenter suggested expanding the recruitment period for emergency situation filings to require the employer to replace H–2B workers with U.S. workers up to 50 percent of the period of need requested. We have decided not to incorporate this suggestion. We believe each emergency situation is unique and must be evaluated on its specific characteristics, both as to whether a qualifying situation exists and whether there is sufficient time to thoroughly test the U.S. labor market. The regulation gives the CO the discretion not to accept the emergency filing if the CO believes there is insufficient time to thoroughly test the U.S. labor market and make a final determination. Moreover, under § 655.46, the CO has the discretion to instruct an employer to conduct additional recruitment. We believe the Final Rule accommodates both the urgency of these situations and the importance of conducting an appropriate test of the U.S. labor market.
A worker advocacy group supported the inclusion of an emergency situation provision, but urged us to permit only late applications, not early applications. As discussed above, it is our intention that the emergency situation provision permit an employer to file fewer than 75 days before the start date of need. This provision in no way expands the earliest date an employer is eligible to submit an
A private citizen suggested limiting an employer to one emergency application per year. We have decided not to accept this suggestion. Given that some employers file multiple applications, each for a different occupation and/or area of intended employment, we believe such an approach is too strict and contrary to the purpose of the provision.
Two labor organizations suggested limiting the subjectivity of the provision. One specifically recommended adding the word reasonably to unforeseen changes in market conditions, while the other recommended limiting emergencies to objectively verifiable events such as those confirmed in Federal, State or local government statements formally certifying a natural or manmade disaster, necessitating extraordinary measures by Federal, State or local government. The CO will adjudicate foreseeability based on the precise circumstances of each situation presented. The burden of proof is on the employer to demonstrate the unforeseeability leading to a request for a filing on an emergency basis. Therefore, we believe the language as proposed strikes an appropriate balance between providing flexibility to employers experiencing emergencies that create a need to submit applications closer to their need than normal processing permits, and limiting the scope of such emergencies so that emergency processing is truly an exception rather than the norm.
The job order is essential for U.S. workers to make informed employment decisions. The Department proposed to require employers to inform applicants in the job order not only of the standard information provided in advertisements, but also several key assurances and obligations to which the employer is committing by filing an
Several commenters found the organization of this section to be confusing when read in concert with the advertising requirements at § 655.41. The proposed rule at § 655.18 reads: “An employer must ensure that the job order contains the information about the job opportunity as required for the advertisements required in § 655.41 and the following assurances * * *” many of which overlapped with those requirements found in § 655.41. 76 FR 15182, Mar. 18, 2011. In order to dispel confusion and reconcile the sections, the Department has reorganized § 655.18 and imported some requirements from § 655.41 that were implied, but not explicitly required, in the NPRM. Those specific changes are discussed below and in the preamble to § 655.41, and as a result of those changes, this section no longer cross-references § 655.41.
In addition, the Department has reorganized this section in order to ensure that employers include all pertinent information in each job order, regardless of the State in which the job order is being placed. As there is not a single H–2B job order form that is applicable to all States and job opportunities, this change is necessary for the uniform administration of the program requirements. This approach will ensure that workers have a full understanding of the terms and conditions of employment, improve employer compliance, and support program enforcement.
Furthermore, the Department clarifies that the assurances pertaining to the prohibition against preferential treatment and bona fide job requirements in paragraph (a) of this section need not be included in the job order verbatim; rather they are applicable to each job order insofar as they apply to each listed term and condition of employment.
One commenter suggested that the lengthy job orders have the effect of discouraging U.S. workers from pursuing a job opportunity and suggested that the Department adopt an abbreviated form which might be provided to each job applicant by the SWA which summarizes the job order. The Department is not able to accept this suggestion as it is our primary concern in this context that U.S. applicants be provided with all of the terms and conditions of employment and fully apprised of the job opportunity.
a. Prohibition against preferential treatment (proposed rule § 655.18(a); Final Rule § 655.18(a)(1)). The proposed rule required the employer to provide to U.S. workers at least the same level of benefits, wages, and working conditions that are being or will be offered or paid to H–2B workers, similar to the requirements under § 655.22(a) of the 2008 Final Rule, with the additional requirement that this guarantee must be set forth in the job order to ensure that all workers are aware of their rights to similar benefits, wages, and working conditions. These protections were also reflected in the proposed rule as an employer assurance and obligation under § 655.20(q).
Some commenters may have misunderstood the protections guaranteed to U.S. workers under the proposed section because the last sentence of the proposed section stated that an employer is not relieved from providing H–2B workers the minimum benefits, wages, and working conditions that must be offered to U.S. workers under this section. One commenter expressed support for the proposed changes and elaborated on the importance of preventing disparate treatment of H–2B and U.S. workers that could lead to the creation of substandard jobs and lead to the abuse of vulnerable H–2B workers. To clarify, the purpose of § 655.18(a)(1) is to protect U.S. workers by ensuring that the employers do not understate wages and/or benefits in an attempt to discourage U.S. applicants or to provide preferential treatment to temporary foreign workers. Employers are required to offer and provide H–2B workers at least the minimum wages and benefits outlined in these regulations. So long as the employer offers U.S. workers at least the same level of benefits as will be provided to the H–2B workers, the employer will be in compliance with this provision. Section 655.18(a)(1) does not preclude an employer from offering a higher wage rate or more generous benefits or working conditions to U.S. workers, as long as the employer offers to U.S. workers all the wages, benefits, and working conditions offered to and required for H–2B workers pursuant to the certified
In addition to commenters who generally supported the expanded protections of H–2B workers, several commenters—a legal network a human rights organization, a labor organization and an alliance of human rights organizations—specifically requested that the Department add an additional provision into the job order which would require the employer to offer to H–2B workers the same fringe benefits as those the employer is offering to U.S. workers in corresponding employment. As discussed above, the Department's
The Department received no more comments on this section; the Department is therefore adopting the proposed language in the Final Rule without change.
b. Bona fide job requirements (proposed rule § 655.18(b); Final Rule § 655.18(a)(2)). The Department proposed to require that the job qualifications and requirements listed in the job order be bona fide and consistent with the normal and accepted job qualifications and requirements of employers that do not use H–2B workers for the same or comparable occupations in the same area of intended employment. Several commenters expressed concern about how the Department and the SWAs will determine what qualifications and requirements are bona fide and normal to the job opportunity. The determination of whether job requirements and qualifications are consistent with the normal and accepted job requirements and qualifications of non-H–2B employers is fact-specific. The SWAs have decades of experience reviewing job orders according to these standards. However, the Department recognizes that some confusion exists concerning the distinction between job requirements and qualifications and the application of each. Therefore, this provision of the Final Rule includes a definition of job requirements and qualifications. As stated in § 655.18(b), a qualification means a characteristic that is necessary for the individual to perform the job in question. A requirement means a term or condition of employment which a worker is required to accept in order to obtain the job opportunity. Additionally, the Department added language requiring that any on-the-job training that will be provided to the worker must be disclosed in the job order. This change was made to align with the advertising requirements in § 655.41.
c. Benefits, wages, and working conditions (proposed rule § 655.18(c)–(g); Final Rule § 655.18(b)(1)–(8), (11)). The Department proposed to require that the employer list the following benefits, wages, and working conditions in the job order: The rate of pay, frequency of pay, deductions that will be made, and that the job opportunity is full-time. These requirements are generally consistent with those required in § 655.17 and § 655.22 of the 2008 Final Rule. These disclosures are critical to any applicant's decision to accept the job opportunity.
Many advocacy groups commented on the importance of including information related to benefits, wages, and working conditions in the job order. These commenters noted that when this information is specifically listed on the job order, workers are better able to make an informed decision regarding the job opportunity prior to accepting a position. As no specific comments were received on proposed §§ 655.18(d), (e), or (g), the Department is adopting those provisions without change in the Final Rule. A full discussion of comments received on § 655.18(f) is below.
In response to the aforementioned confusion caused by discrepancies between proposed § 655.18 (Contents of the job order) and § 655.41 (Advertising requirements), the following sections were reorganized: Proposed § 655.18(d) (Rate of pay) is § 655.18(b)(5) in the Final Rule, proposed § 655.18(e) (Frequency of pay) is § 655.18(b)(9) in the Final Rule, proposed § 655.18(f) (Deductions that will be made) is § 655.18(b)(11) in the Final Rule, proposed § 655.18(g) (Statement that the job opportunity is full-time) is § 655.18(b)(2) in the Final Rule, proposed § 655.18(h) (Three-fourths guarantee) is § 655.18(b)(17) in the Final Rule, proposed § 655.18(i) (Transportation and visa fees) is § 655.18(b)(12) through (15) in the Final Rule, proposed § 655.18(j) (Employer-provided items) is § 655.18(b)(16) in the Final Rule, and proposed § 655.18(k) (Board, lodging, or facilities) is § 655.18(b)(10) and (11).
d. Deductions (proposed rule § 655.18(f); Final Rule § 655.18(b)(10)). In § 655.18(f), the Department proposed to require that the job order specify that the employer will make all deductions from the worker's paycheck required by law and specifically list all deductions not required by law that the employer will make from the worker's paycheck. Numerous commenters—including advocacy organizations, legal networks, and labor organizations—offered unqualified support for this provision. One foreign worker advocacy group noted that workers have expressed concern that the various deductions are unlawful and affect their ability to support family members in their countries of origin.
In addition, a coalition representing agents and employers requested that the Department amend this section in three ways. First, the commenter suggested that the Department define deductions for the purpose of this section as an actual subtraction from earned wages. This commenter contended that such an amendment would prevent an employer from finding itself in violation of this obligation because an employee expended sums without its knowledge, which some treat as deductions. Second, the commenter requested that the Department amend this section to deal with the circumstance where deductions may, but not necessarily will, be made. The commenter asserted that an employer should be able to avoid discouraging a potential applicant by suggesting that a deduction will be made when it might never be, for example, a deduction for damages to employer-owned items, where State law permits such a deduction. Finally, this commenter requested that the Department clarify that required by law includes judicial process, such as child support orders.
The Department reminds the commenter that under the Fair Labor Standards Act (FLSA) there is no legal difference between deducting a cost from a worker's wages and shifting a cost to an employee to bear directly. As the court stated in
An employer may not deduct from employee wages the cost of facilities which primarily benefit the employer if such deduction drive wages below the minimum wage. See 29 C.F.R. § 531.36(b). This rule cannot be avoided by simply requiring employees to make such purchases on their own, either in advance of or during employment. See id.
Consistent with the FLSA and the Department's obligation to prevent adverse effects on U.S. workers by protecting the integrity of the H–2B offered wage, the Department views the offered wage as the effective minimum wage for H–2B and corresponding U.S. workers.
In response to the second instance mentioned by the commenter, the Department reminds the commenter that deductions for damage to employer-provided items are prohibited under the Final Rule, regardless of State laws permitting such deductions. This prohibition is explained in detail in the preamble to § 655.20(k). However, as a general rule, if an employer reserves the right to make a deduction, the potential that such a deduction could be made must be disclosed in the job order to ensure that employees are fully informed of the terms and conditions of employment. Finally, the Department includes garnishments in deductions required by law; this is made explicit in the Final Rule at § 655.20(c).
No other comments were received on this provision. However, for clarification, the Department has moved this section to § 655.18(b)(10) in the Final Rule and added language, previously contained in proposed § 655.18(k), specifying that the job order must include, “if applicable, any deduction for the reasonable cost of board, lodging, or other facilities.” The Department has made another clarifying edit, modifying the provision to require the disclosure of any deductions the employer intends to make rather than those an employer will make. This change is consistent with the intent of the proposed rule. No other changes were made to this provision.
e. Three-fourths guarantee (proposed rule § 655.18(h); Final Rule § 655.18(b)(17)). The NPRM proposed to require that H–2B employers list in the job order the new obligation that the employer would guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays of each 4-week period and, if the guarantee was not met, to pay the worker what the worker would have earned if the employer had offered the guaranteed number of days, as required by proposed § 655.20(f). For the reasons discussed in the preamble under § 655.20(f), the Final Rule modifies this provision to lengthen the increment to a 12-week period instead of a 4-week period if the period of employment covered by the job order is 120 days or more, and lengthens the increment to a 6-week period if the employment covered by the job order is less than 120 days. As there were no comments specific to inclusion of this requirement in the job order, the Department adopts this provision without further change in the Final Rule.
f. Transportation and visa fees (proposed rule § 655.18(i); Final Rule § 655.18(b)(12)–(15)). The NPRM proposed to require the job order to disclose that the employer will provide, pay for, or fully reimburse the worker for inbound and outbound transportation and daily subsistence costs for U.S. workers who are not reasonably able to return to their residence within the same workday and H–2B workers when traveling to and from the employer's place of employment. Additionally, the NPRM proposed to require employers to disclose if they will provide daily transportation to the worksite and that the employer will reimburse H–2B workers for visa and related fees. For the reasons discussed in the preamble under § 655.20(j), the Final Rule adopts these obligations with the modification that employers must arrange and pay for the inbound transportation and subsistence directly, advance the reasonable cost, or reimburse the worker's reasonable costs if the worker completes 50 percent of the period of employment covered by the job order, and must provide, pay for, or reimburse outbound transportation and subsistence if the worker completes the job order period or is dismissed early. However, under § 655.18(y), if separation is due to the voluntary abandonment of employment by the H–2B worker or the worker in corresponding employment and the employer provides proper notice to DHS and DOL, the employer will not be responsible for providing or paying for the subsequent transportation and subsistence expenses of that worker and that worker is not entitled to the three-fourths guarantee described in § 655.20(f). As there were no comments specific to the disclosure requirements under this section, the Department adopts this provision without further change in the Final Rule.
g. Employer-provided items (proposed § 655.18(j); Final Rule § 655.18 (b)(16)). The proposed rule required the job order to disclose that the employer will provide workers with all tools, supplies, and equipment needed to perform the job at no cost to the employee. This provision, which is consistent with the FLSA regulations at 29 CFR part 531 and current § 655.22(g) requiring all deductions to be reasonable, gives the workers additional protection against improper deductions from wages for items that primarily benefit the employer, and assures workers that they will not be required to pay for items necessary to perform the job.
Several commenters expressed unqualified support for this provision. However, some commenters noted that this provision could be impractical in industries in which employees customarily prefer to use specialized, custom-made equipment, such as the skis used by some ski instructors. One commenter, a ski industry representative, suggested that the Department amend § 655.18(j) to require that employers offer standard equipment instead of provide * * * all tools, supplies, and equipment required to perform the duties assigned to clarify that employers are not responsible for providing employees with custom-fitted equipment. The Department wishes to clarify that this provision is intended to protect workers against improper deductions by ensuring that they are fully capable of performing their jobs without any personal investment in tools or equipment. Thus, employers must provide standard equipment that allows employees to perform their job fully, but they are not required to provide, for example, equipment such as custom-made skis that may be preferred, but not needed by, ski instructors. It does not prohibit employees from electing to use their own equipment, nor does it penalize employers whose employees voluntarily do so, so long as a bona fide offer of adequate, appropriate equipment has been made.
Another commenter, a worker advocate, suggested further protections, requesting that the provision be revised to include language explicitly prohibiting employers from charging workers for broken, stolen, or lost equipment. Section 3(m) of the FLSA prohibits deductions that are primarily for the benefit of the employer that bring a worker's wage below the applicable minimum wage, including deductions for tools, supplies, or equipment that are incidental to carrying out the employer's business. Consistent with the FLSA, current § 655.22(g) (which requires all deductions to be reasonable), and the Department's obligation to prevent adverse effects on U.S. workers, the Department believes this Final Rule similarly should protect the integrity of the H–2B offered wage by treating it as the effective minimum wage. This gives U.S. and H–2B workers additional protection against improper deductions from the offered wage for items that primarily benefit the employer. Therefore, because
h. Board, lodging, or facilities (proposed rule § 655.18(k)); Final Rule § 655.18(b)(9). In § 655.18(k) the Department proposed to require that, if an employer provides the worker with the option of board, lodging, or other facilities or intends to assist workers to secure such lodging, this must be listed in the job order. In addition, if the employer intends to make any wage deductions related to such provision of board, lodging or other facilities, such deductions must be disclosed in the job order. Several commenters offered unqualified support for this provision. However, a coalition representing agents and employers was concerned that the phrase or intends to assist workers to secure such lodging was overly vague and asked the Department to clarify what would qualify as assistance. This commenter also noted that the proposed section did not require that the intention to assist be listed in the job order. The Department does not include as assistance an employer's simple provision of information, such as providing workers coming from remote locations with a list of facilities providing short-term leases, or a list of extended-stay motels. However, in some cases, employers may reserve a block of rooms for employees, negotiate a discounted rate on the workers' behalf, or arrange to have housing provided at cost for its employees and such activities would qualify as assistance. Any such assistance may make it more feasible for a U.S. worker from outside the area of intended employment to accept the job, and therefore it should be included in the job order. In addition, while the requirement to disclose the provision of such assistance was implicit in § 655.18(k) of the NPRM, in response to this commenter's suggestion the Final Rule has been clarified to explicitly require the employer to disclose such offer of assistance. The Final Rule regulatory text now requires the disclosure of: the provision of board, lodging, or other facilities or of assistance in securing such lodging. Finally, this commenter requested that the Department add a definition of other facilities to the definition section or to this section. The Department declines to make such an addition and refers the commenter to 29 CFR 531.32, which defines the term at length and has been construed and enforced by the Department for several decades. The Department has concluded that it is beneficial for workers, employers, agents, and the Wage and Hour Division to ground its enforcement of H–2B program obligations in its decades of experience enforcing the FLSA, and the decades of court decisions interpreting the regulatory language we are adopting in these regulations. Therefore, the Department notes throughout this preamble where it is relying on FLSA principles to explain the meaning of the requirements of the H–2B program that use similar language. Nevertheless, the Department has clarified the meaning of the term facilities by adding the parenthetical (including fringe benefits) to the Final Rule. This clarification makes this section more parallel with the requirement in § 655.18(a)(1), which requires the job order to offer U.S. workers no less than the same benefits, wages, and working conditions as offered to H–2B workers. Because the term fringe benefits is commonly used and understood, the Department believes this will provide employers with greater clarification about their obligation to disclose on the job order the benefits they will offer or provide to workers.
An advocacy organization requested that the Department impose additional requirements on employers who intend to provide rental housing. This commenter suggested that in such cases, the job order should specifically disclose the following: whether the worker will be sharing the accommodations with other workers or tenants, and if so, how many; the rent and security deposit, if any; a description of the type of accommodations; information about utilities; and any other pertinent information related to room and board. This commenter also requested that the regulations specifically require that all rental housing comply with State and local housing codes. The Department acknowledges this commenter's concern, but declines to implement the suggestion. There is no guarantee that an employer would have secured housing for potential employees at the point of filing the job order, which cannot be done less than 75 days before the date of need. Requiring such disclosures would either result in speculation that would undermine their purpose, or would force employers to secure housing more than 2 months before workers arrived, potentially resulting in unnecessary and burdensome costs. Furthermore, two of the suggested disclosures—the cost of rent or security deposit and the cost of utilities—are already covered under the Final Rule at § 655.18(b)(10) if the employer will make deductions for them.
Responding to the Department's discussion of the application of this section to employers operating under special procedures, a trade association argues that no DOL regulation has ever suggested that mobile housing is unworthy of deductions. The Department's long-standing position is that facilities that are primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages. See 29 CFR 531.3(d)(1). The Department maintains that housing provided by employers with a need for a mobile workforce, such as those in the carnival or forestry industries where workers are in an area for a short period of time, need to be available to work immediately, and may not be able to procure temporary housing easily, is primarily for the employer's benefit and convenience.
One commenter from the reforestation industry wrote that the court cases the Department cites in the proposal have nothing whatsoever to do with the H–2B program or workers on an itinerary being paid wages substantially in excess of the federal minimum wage. As discussed in the preamble to § 655.15(f), the Department has made an exception for the carnival and reforestation industries, which use H–2B workers in itinerant employment over large interstate areas. Without this exception, these industries would be unable to readily comply with the program's established processes. Having made this exception for these industries, the Department asserts that the requirement that the employer provide housing and transportation free of charge to the employees is both reasonable and reflective of the true cost of doing business for this type of work. It should also be noted that without the ability and flexibility to move quickly and use mobile workforces, these industries could not function.
An employer from the reforestation industry suggested that the Final Rule require that housing for itinerant employees be selected by the workers, and that workers be reimbursed at a standard daily housing rate for the area of intended employment. The
The Department has amended this section to require the disclosure of any fringe benefits that will be provided. This change is consistent with proposed § 655.18(a), which required that the job order offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H–2B workers. No other comments were received on this section.
i. Other changes. In addition to commenting on the contents of the job order as proposed, several commenters suggested additional content requirements.
An alliance of human rights organizations suggested that the job order contain multiple explicit provisions. Many of the disclosures suggested by the commenter were included in the proposed rule, such as a list of costs charged to the worker (§ 655.18(f)) and educational or experience requirements (§ 655.41(b)(3)). The commenter also suggested that the job order contain information on the visa, a statement prohibiting a foreign labor contractor from assessing fees, a notice that the worker be provided 48 hours to review and consider any changes in terms, a statement that changes to the terms may not be made without specific consent of the worker, and a statement describing worker protections under the Trafficking Victims Protection Act of 2000. The Department maintains that the information which employers are required to include in the job order under § 655.18 of the Final Rule is necessary and sufficient to provide the worker with adequate information to determine whether to accept the job opportunity, and notes that the Department of State provides all H–2B workers with a detailed worker rights card at the visa application stage.
With respect to a proposal that workers be provided notice of the changes to the job order, the Department notes that both the NPRM and the Final Rule require an employer who wishes to change any of the terms and conditions of employment listed in the job order, to submit such a proposed change to the CO for approval. The employer may not implement changes to the approved terms and conditions listed in the job order without the approval by CO. Additionally, such changes must be disclosed to all U.S. workers hired under the original job order, as required by § 655.35.
Finally, a coalition of worker advocacy organizations and several other worker advocacy organizations suggested that the Department add a provision to the regulations stating that, in the absence of a written contract, the terms and conditions listed in the job order shall be the work contract. The Department does not believe it is necessary to add such a provision, as the courts will determine private parties' contractual rights under state contract law. These commenters were concerned, however, that the Department's reference to
In addition to making the organizational changes discussed above, the Final Rule will require employers to list in the job order the following information that is essential for providing U.S. workers sufficient information about the job opportunity (this information was previously required to be included in the job order by a cross reference to § 655.41): the employer's name and contact information (§ 655.18(b)(1)); a full description of the job opportunity (§ 655.18(b)(3)); the specific geographic area of intended employment (§ 655.18(b)(4)); if applicable, a statement that overtime will be available to the worker and the overtime wage offer(s) (§ 655.18(b)(6)); if applicable, a statement that on-the-job training will be provided to the worker (§ 655.18(b)(7)); a statement that the employer will use a single workweek as its standard for computing wages due (§ 655.18(b)(8)); and instructions for inquiring about the job opportunity or submitting applications, indications of availability, and/or resumes to the appropriate SWA (§ 655.18 (b)(18)). This last addition was included to ensure that applicants who learn of the job opening through the electronic job registry are provided with the opportunity to contact the SWA for more information or referral.
This Final Rule amends § 655.6 to provide for the limited circumstances under which job contractors may continue to participate in the H–2B program. However, their participation is still be subject to the limitations provided in the
As a result of this order, we determined that we could no longer accept H–2B labor certification applications from job contractors if the job contractor's employer-clients did not also submit labor certification applications. However, both the 2008 Final Rule and this Final Rule only permit one H–2B labor certification application to be filed for worksite(s) within one area of intended employment for each job opportunity with an employer. Accordingly, both a job contractor and employer-client each would not be able to file their own application for a single job opportunity.
However, we recognized that it may be possible for a job contractor and its employer-client to file a single application as a joint employer. Joint employment is defined as where two or more employers each have sufficient definitional indicia of employment to be considered the employer of an employee, those employers may be considered to jointly employ that employee. An employer in a joint employment relationship with an employee may be considered a `joint employer' of that employee. See § 655.4. That approach would be consistent with both the
In deciding whether to file as joint employers, the job contractor and its employer-client should understand that employers are considered to jointly employ an employee when they each, individually, have sufficient definitional indicia of employment with respect to that employee. As described in the definition of employee in 20 CFR 655.4, some factors relevant to the determination of employment status include, but are not limited to, the following: The right to control the manner and means by which work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; discretion over when and how long to work; and whether the work is part of the regular business of the employer or employers. Whenever a job contractor and its employer client file applications, each employer is responsible for compliance with H–2B program assurances and obligations. In the event a violation is determined to have occurred, either or both employers can be found to be responsible for remedying the violation and attendant penalties.
Proposed § 655.20 replaced existing § 655.22 and contained the employer obligations that WHD will enforce. The Department proposed to modify, expand, and clarify current requirements to ensure that the employment of H–2B workers will not adversely affect the wages and working conditions of U.S. workers similarly employed. Requiring compliance with the following conditions of employment is the most effective way to meet this goal. As discussed in the preamble to § 655.5, workers engaged in corresponding employment are entitled to the same protections and benefits, set forth below, that are provided to H–2B workers.
a. Rate of pay (§ 655.20(a)). In proposed § 655.20(a) the Department expanded the current § 655.22(e). In addition to the existing requirements that employers pay the offered wage during the entire certification period and that the offered wage equal or exceed the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and any local minimum wage, the Department added the requirement that such wages be paid free and clear. The proposed section also added requirements related to productivity standards and payments made on a piece-rate basis, and eliminated the current § 655.22(g)(1) option of paying such wages on a monthly basis. The Department received numerous comments on this section that were deemed out of scope, as they concerned the calculation of the prevailing wage.
The Department's proposed regulation required that the wages offered in the job order must be at least equal to the prevailing wage rate for the occupation in the area of employment, as set forth in § 655.10(b), or the appropriate Federal, State, or local minimum wage, whichever is highest. If, during the course of the period certified in the
A State Attorney General's office supported the obligation to pay the State or local minimum wage where one is higher than the prevailing wage or the Federal minimum wage, stating that this provision is particularly important in industries in which employees are often exempt from Federal wage and hour law. We concur with this assessment.
Upon consideration, we have amended the provision with respect to productivity standards (§ 655.20(a)(3)) to reflect that it is incumbent upon the employer to demonstrate that such productivity standards are normal and usual for non-H–2B employers for the occupation and area of intended employment. Unlike in the H–2A program, the Department does not conduct prevailing practice surveys through the SWAs, which would provide such information to enable a CO to make this decision. If an employer wishes to provide productivity standards as a condition of job retention, the burden of proof rests with that employer to show that such productivity standards are normal and usual for employers not employing H–2B workers. We have adopted the rest of the proposed rule with minor clarifying edits for consistency.
b. Wages free and clear (§ 655.20(b)). In § 655.20(b), the Department proposed to require that wages be paid either in cash or negotiable instrument payable at par, and that payment be made finally and unconditionally and free and clear in accordance with WHD regulations at
Only one commenter, a trade organization wrote in opposition to the provision. However, this commenter misunderstood the proposal, writing that the requirement to pay prevailing wages free and clear will expose employers to the costs of local convenience travel (trips to Wal-Mart, Western Union, laundry,
c. Deductions (§ 655.20(c)). In proposed § 655.20(c) the Department sought to ensure payment of the offered wage by limiting deductions which reduce wages to below the required rate. The proposed section limited authorized deductions to those required by law, made under a court order, that are for the reasonable cost or fair value of board, lodging, or facilities furnished that primarily benefit the employee, or that are amounts paid to third parties authorized by the employee or a collective bargaining agreement. The proposed section specifically provided that deductions not disclosed in the job order are prohibited. The Department also specified deductions that would never be permissible, including: Those for costs that are primarily for the benefit of the employer; those not specified on the job order; kick backs paid to the employer or an employer representative; and amounts paid to third parties which are unauthorized, unlawful, or from which the employer or its foreign labor contractor, recruiter, agent, or affiliated person benefits to the extent such deductions reduce the actual wage to below the required wage. The proposed section referred to the FLSA and 29 CFR part 531 for further guidance.
Numerous advocacy groups, labor organizations, and individuals commented in favor of the provision. One foreign worker advocacy organization applauded the Department's proposal, writing the provision's level of specificity is valuable and necessary to prevent employers from taking advantage of vulnerable workers with little understanding of what employers may lawfully deduct from their wages. A labor organization wrote that it regularly finds that immigrant workers are exploited by employers who confuse them as to their rate of pay, overtime, taxes, and other deductions, and therefore enthusiastically supported the provision. Two individuals misunderstood the provision as allowing deductions that are primarily for the benefit of the employer and requested that the Department explicitly prohibit such deductions. The Department clarifies that a deduction for any cost that is primarily for the benefit of the employer is never reasonable and therefore never permitted under the Final Rule. Some examples of costs that Department has long held to be primarily for the benefit of the employer are: Tools of the trade and other materials and services incidental to carrying on the employer's business; the cost of any construction by and for the employer; the cost of uniforms (whether purchased or rented) and of their laundering, where the nature of the business requires the employee to wear a uniform; and transportation charges where such transportation is an incident of and necessary to the employment. This list is not an all-inclusive list of employer business expenses.
A comment from a State Department of Labor expressed concern that the permissibility of a deduction was still subjective and requested that ETA provide SWAs with training and detailed written instructions with criteria to use when evaluating deductions listed on a job order. The Department believes that the guidance provided in this section is sufficient, but will provide additional training and guidance to SWAs as needed.
In addition, concerns were raised by a coalition representing agents and employers and an industry group that the prohibition of deductions constituted an overstepping of the Department's bounds by importing the de facto deduction concept from the FLSA. One of these commenters also cited the decision by the Fifth Circuit Court of Appeals in
d. Job opportunity is full-time (§ 655.20(d)). In proposed § 655.20(d), the Department required that all job opportunities be full-time temporary positions, consistent with existing language in § 655.22(h), and established full-time employment as at least 35 hours per week, an increase from the current level of 30 hours. Additionally, consistent with the FLSA, the NPRM added the requirement that the workweek be a fixed and regularly recurring period of 168 hours or seven consecutive 24-hour periods which may start on any day or hour of the day. The Department received no comments regarding the added language
e. Job qualifications and requirements (§ 655.20(e)). Proposed § 655.20(e) clarified existing § 655.22(h) by stating that each job qualification and requirement listed in the job order must be consistent with normal and accepted qualifications required by non-H–2B employers for similar occupations in the area of intended employment. Under the proposed compliance model, OFLC in collaboration with the SWA would determine what is normal and accepted during the pre-certification process. In addition, we proposed to provide the CO with the authority to require the employer to substantiate any job qualifications specified in the job order. The Department is retaining this provision with amendments, as discussed below.
The Department received one comment on this additional language, in which a coalition representing agents and employers requested that the Department limit the CO's discretion to demand substantiation to those cases in which he or she has objective and reliable documentation showing that a requirement or qualification is unusual or rare. This commenter asserted that this limitation would not place a further burden on the CO and would limit the burden placed on employers. The Department concludes that such a requirement would in fact place a significant burden on the CO, who would have to do substantial research to produce such documentation, while an employer would presumably have documentation of the appropriateness of its own requirement or qualification readily available. The Department therefore declines to make this change.
In addition, the Department received comments raising concerns regarding the Department's standard for what is normal and accepted with respect to the employer's qualifications and requirements. Some commenters expressed confusion between the use of the terms qualification and requirement. These and other comments related to this and related provisions are discussed in the preamble to paragraph (r) of this section as well as § 655.18(a)(2). However, in response to these comments, the Department has amended this section to clarify, consistent with a parallel requirement in 655.18(a)(2), that the employer's job qualifications and requirements imposed on U.S. workers must be no less favorable than the qualifications and requirements that the employer is imposing or will impose on H–2B workers. In addition, and in response to the confusion articulated by some commenters, we have clarified that a qualification means a characteristic that is necessary to the individual's ability to perform the job in question. In contrast, a requirement means a term or condition of employment which a worker is required to accept in order to obtain the job opportunity.
This provision, as amended, enables us to continue our current standard of review of the job qualifications and special requirements by looking at what non-H–2B employers determine is normal and accepted to be required to perform the duties of the job opportunity. The purpose of this review is to avoid the consideration (and the subsequent imposition) of requirements on the performance of the job duties that would serve to limit the U.S. worker access to the opportunity. OFLC has significant experience in conducting this review and in making determinations based on a wide range of sources assessing what is normal for a particular job, and employers will continue to be held to an objective standard beyond their mere assertion that a requirement is necessary. We will continue to look at a wide range of available objective sources of such information, including but not limited to O*NET and other job classification materials and the experience of local treatment of requirements at the SWA level. Ultimately, however, it is incumbent upon the employer to provide sufficient justification for any requirement outside the standards for the particular job opportunity.
Therefore, we are retaining this provision with the amendments discussed above.
f. Three-fourths guarantee (§ 655.20(f)). In § 655.20(f), the NPRM proposed to require employers to guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays of each 4-week period and, if the guarantee was not met, to pay the worker what the worker would have earned if the employer had offered the guaranteed number of days. The NPRM stated these 4-week periods would begin the first workday after the worker's arrival at the place of employment or the advertised contractual first date of need, whichever is later, and would end on the expiration date specified in the job order or in any extensions. The NPRM provided that a workday would be based on the workday hours stated in the employer's job order, and the 4-week period would be based on the employer's workweek, with increases for the initial period and decreases for the last period on a pro rata basis, depending on which day of the workweek the worker starts or ceases work.
The NPRM proposed that if a worker failed or refused to work hours offered by the employer, the employer could count any hours offered consistent with the job order that a worker freely and without coercion chose not to work, up to the maximum number of daily hours on the job order, in the calculation of guaranteed hours. The NPRM also allowed the employer to offer the worker more than the specified daily work hours, but stated the employer may not require the employee to work such hours or count them as offered if the employee chose not to work the extra hours. However, the NPRM allowed the employer to include all hours actually worked when determining whether the guarantee had been met. Finally, the NPRM proposed, as detailed in 29 CFR 503.16(g), that the CO can terminate the employer's obligations under the guarantee in the event of fire, weather, or other Act of God that makes the fulfillment of the job order impossible.
The NPRM specifically invited the public to suggest alternative guarantee systems that may better serve the goals of the guarantee. In particular, the Department sought comments on whether a 4-week increment is the best period of time for measuring the three-fourths guarantee or whether a shorter or longer time period would be more appropriate.
Based upon all the comments received, the Department has decided to retain the three-fourths guarantee, but to lengthen the increment over which the guarantee is measured to 12 weeks, rather than just 4 weeks, if the period of employment covered by the job order is 120 days or more, and increase the increment of the guarantee to 6 weeks, if the period of employment covered by the job order is less than 120 days.
The Department received numerous comments, from both employers and employees, addressing whether to include a guarantee and whether a 4-week increment is the appropriate period of time. Many employers expressed concern about the guarantee. They were particularly concerned about the impact of the weather on their ability to meet the guarantee. For example, crab processing companies emphasized that unseasonably cool weather, weather events such as
One commenter presented a survey of 501 employers in which 34 percent of employers responded that the guarantee would severely affect their bottom line, 26 percent were moderately concerned, and 40 percent stated that it would not affect them. The survey showed that, for a plurality of employers, workers consistently work more than 40 hours per week; even those employers that expressed concern stated that the guarantee would not present a problem during the busiest months of the season, but would be a burden during the first and last months of the season when they are ramping up or winding down. Many survey respondents were prepared to guarantee a minimum workload over the season, but not month to month.
Numerous other employer commenters similarly stated that if a guarantee remains in the Final Rule, it should be spread over the entire certification period, as it is in the H–2A regulations. They noted that this would provide flexibility and enhance their ability to meet the guarantee without cost, because often the loss of demand for work in one period is shifted to another point in the season, but such a guarantee would still deter egregious cases of employers misstating their need for H–2B employees. Employers also suggested, in addition to a clear Act of God exception, that there should be an exception for man-made disasters such as an oil spill or controlled flooding. Some also suggested that the rule should allow the Department to give employers a short period of interim relief from the guarantee, when weather or some other catastrophic event makes work temporarily unavailable, rather than simply authorizing the termination of the job order.
A number of employer commenters suggested that the guarantee should be based upon pay for three-fourths of the hours, rather than three-fourths of the hours, so that employers could take credit for any overtime paid at time-and-a-half. They noted that, because agriculture is exempt from overtime, H–2A employers do not have to pay an overtime premium when employees work extra hours in some weeks. Other commenters stated that the three-fourths guarantee is beyond the Department's statutory authority, noting the differences between the H–2A and H–2B statutory frameworks. Finally, some employers expressed concern about how they could afford to pay the guarantee when the employee does not or cannot work, seeming to suggest that employers are required to pay the guarantee even if an employee voluntarily chooses not to work, or that they were unaware of the alternative of seeking termination of the job order.
Employees, in contrast, uniformly supported the requirement for a guarantee, and many suggested strengthening the proposed guarantee. For example, employee advocates stressed that the three-fourths guarantee is important to prevent foreign workers from being lured into the program with promises of far more hours of work than they will actually receive. When workers do not receive the promised hours, they are forced to resort to work that does not comply with the program in order to survive, and this then impacts the job opportunities available to U.S. workers. Further, where there are excess H–2B workers, employers are able to exploit them out of their desperation for work, resulting in an ability to undercut the wages of U.S. workers. Commenters emphasized that the proposed guarantee would protect workers who traveled in reliance on promises of work, who now may have to wait weeks or months for the work to begin, because it would serve as a barrier preventing employers from artificially increasing their stated need for H–2B workers. One commenter with experience working with H–2B workers in New Orleans described a situation in which the workers were provided little or no work after traveling from India, and when they complained they were threatened and many were fired. Employee commenters noted that when they get very limited hours because the jobs either do not start on the promised date or finish early, or have fewer hours per week, they would have been better off staying in their home country because they have to spend everything they earn to live on and have nothing left to send home.
Employee advocates stated that applying the guarantee on a 4-week basis (as opposed to over the length of the job order) prevents employers from claiming artificially long seasons, in the hopes that workers will quit prematurely at the end of the season and lose their rights to the guarantee and transportation home, even if the reason was that the employer had very little work available. The shorter increment also protects U.S. workers because it prevents employers from using an unrealistic early start date as a method of encouraging them to abandon the job to seek alternative employment with more hours. The commenters noted that employers could simply apply for fewer H–2B workers and offer all workers more hours to minimize the impact of the requirement.
Although employee advocates uniformly supported the concept of a guarantee, some advocates stressed that the three-fourths guarantee overcompensates for the effects of weather. Employees were particularly concerned about the guarantee being only three-fourths if the definition of full-time remained at 35 hours, which they viewed as double-counting for the effects of weather and which would result in workers only being guaranteed 26 hours per week (105 hours per month). Thus, while some employee commenters believed the three-fourths guarantee to be a reasonable and narrowly-tailored means to prevent abuses, other employee advocates suggested adopting a more protective guarantee—100 percent, or 90 percent, or providing the guarantee on a weekly basis. They emphasized that employees are required to pay 100 percent of their expenses, such as rent and medical fees. They also noted that many H–2B industries are not affected by the weather to the same degree as agricultural work; therefore, some advocates suggested the guarantee should be higher than the three-fourths rule in the H–2A program. At a minimum, they emphasized the
Finally, employee advocates expressed concern about a broad Act of God or impossibility exception to the rule and suggested that the Department play a direct role in assisting in the transfer of temporary foreign workers affected by such a job order termination to other employers, and suggested adopting an additional recordkeeping requirement, similar to the H–2A three-fourths guarantee recordkeeping provision at § 655.122(j)(3)), requiring employers to record the reason a worker declined offered hours of work in order to prevent employers from overstating the number of hours offered.
After carefully considering all the comments received, the Department has decided to retain the three-fourths guarantee, but to lengthen the increment over which the guarantee is measured to 12 weeks, rather than just 4 weeks, if the period of employment covered by the job order is 120 days or more, and increase the increment over which the guarantee is measured to 6 weeks rather than 4 weeks, if the period of employment is less than 120 days. The Department believes that this approach will retain the benefits of having the guarantee, while offering employers the flexibility to spread the required hours over a sufficiently long period of time such that the vagaries of the weather or other events out of their control that affect their need for labor do not prevent employers from fulfilling their guarantee. Moreover, as discussed in detail later with regard to § 655.20(g), the CO may relieve an employer from the three-fourths guarantee requirement for time periods after an unforeseeable event outside the employer's control occurs, such as fire, weather, or other Act of God.
When employers file applications for H–2B labor certifications, they represent that they have a need for full-time workers during the entire certification period. Therefore, it is important to the integrity of the program, which is a capped visa program, to have a methodology for ensuring that employers have fairly and accurately estimated their temporary need. As explained in the NPRM, the guarantee deters employers from misusing the program by overstating their need for full-time, temporary workers, such as by carelessly calculating the starting and ending dates of their temporary need, the hours of work needed per week, or the total number of workers required to do the work available. To the extent that employers more accurately describe the amount of work available and the periods during which work is available, it gives both U.S. and foreign workers a better chance to realistically evaluate the desirability of the offered job. U.S. workers will not be induced to abandon employment, to seek full-time work elsewhere at the beginning of the season or near the end of the season because the employer overstated the number of employees it actually needed to ramp up or to wind down operations. Nor will U.S. workers be induced to leave employment at the beginning of the season or near the end of the season due to limited hours of work because the employer misstated the months during which it reasonably could expect to perform the particular type of work involved in that geographic area. Not only will the guarantee result in U.S. and H–2B workers actually working most of the hours promised in the job order, but it also will make the capped H–2B visas more available to other employers whose businesses need to use H–2B workers. Therefore, the Department disagrees with those commenters who suggested the Department lacks the authority to impose a guarantee. The guarantee is a necessary element to ensure the integrity of the labor certification process, to ensure that the availability of U.S. workers for full-time employment is appropriately tested, to ensure that there is no adverse effect on U.S. workers from the presence of H–2B workers who are desperate for work because the work that was promised does not exist, and to ensure that H–2B visas are available to employers who truly have a need for temporary labor for the dates and for the numbers of employees stated.
The Department's recent experience in enforcing the H–2B regulations demonstrates that its concerns about employers overstating their need for workers are not unfounded, as do the numerous comments from employees and their advocates who described countless private cases and testimony demonstrating the existence of this problem. The Department's investigations have revealed employers that stated on their H–2B applications that they would provide 40 hours of work per week when, in fact, their workers averaged far fewer hours of work, especially at the beginning and/or end of the season. Indeed, in some weeks the workers have not worked at all. In addition, there has been testimony before Congress involving similar cases in which employers have overstated the period of need and/or the number of hours for which the workers are needed. For example, as the Department described in the NPRM, H–2B workers testified at a hearing before the Domestic Policy Subcommittee, House Committee on Oversight and Government Reform, on April 23, 2009, that there were several weeks in which they were offered no work; others testified that their actual weekly hours—and hence their weekly earnings—were less than half of the amount they had been promised in the job order. Daniel Angel Castellanos Contreras, a Peruvian engineer, was promised 60 hours per week at $10–$15 per hour. According to Mr. Contreras, “[t]he guarantee of 60 hours per week became an average of only 20 to 30 hours per week—sometimes less. With so little work at such low pay [$6.02 to $7.79 per hour] it was impossible to even cover our expenses in New Orleans, let alone pay off the debt we incurred to come to work and save money to send home.”
Furthermore, a 2010 report by the American University Washington College of Law International Human Rights Law Clinic and the Centro de los Derechos del Migrante, Inc. documented the prevalence of work shortages for women working on H–2B visas in the Maryland crab industry. The researchers found that several women interviewed spent days and weeks without work when crabs were scarce. During this time most continued to make rent
The Department has not adopted the suggestion of employers to spread the three-fourths guarantee over the entire period covered by the job order. Using the entire period of the job order would not adequately protect the integrity of the program because it would not measure whether an employer has appropriately estimated its need for temporary workers. It would not prevent an employer from overstating the beginning date of need and/or the ending date of need and then making up for the lack of work in those two periods by offering employees 100 percent of the advertised hours in the middle of the certification period. Indeed the employer could offer employees more than 100 percent of the advertised hours in the peak season and, although they would not be required to work the excess hours, most employees could reasonably be expected to do so in an effort to maximize their earnings.
However, in order to meet the legitimate needs of employers for adequate flexibility to respond to changes in climatic conditions (such as too much or too little snow or rain, temperatures too high or too low) as well as the impact of other events beyond the employer's control (such as a major customer who cancels a large contract), the Department has modified the increment of time for measuring the guarantee by tripling it from 4 weeks to 12 weeks (if the period of employment covered by the job order is at least 120 days) and increasing the period by 2 weeks to 6 weeks (if the employment is less than 120 days). The Department believes this provides sufficient flexibility to employers, while continuing to deter employers from requesting workers for 9 months, for example, when they really only have a need for their services for 7 months. If an employer needs fewer workers during the shoulder months than the peak months, it should not attest to an inaccurate statement of need by requesting the full number of workers for all the months. Rather, the proper approach it should follow is to submit two applications with separate dates of need, so that it engages in the required recruitment of U.S. workers at the appropriate time when it actually needs the workers.
Finally, the Department has not adopted the suggestion of some employers for a guarantee tied to pay rather than hours. The employers' attestation relates to their need for a particular number of full-time workers during a set period; thus, the attestation relates to the amount of full-time work, not the amount of pay received. The Department reminds employers that they may count toward the guarantee hours that are offered but that the employee fails to work, up to the maximum number of hours specified in the job order for a workday; thus, they do not have to pay an employee who voluntarily chooses not to work. Similarly, they may count all hours the employee actually works, even if they are in excess of the daily hours specified in the job order. Employers' comments addressing the Act of God exception are addressed in § 655.20(g).
The Department has not adopted the suggestion of many employee advocates to impose a more protective guarantee. The Department does not believe it would be appropriate to impose a 100 percent, 90 percent, or weekly guarantee. The three-fourths guarantee is a reasonable deterrent to potential carelessness and a necessary protection for workers, while still providing employers with flexibility relating to the required hours, given that many common H–2B occupations involve work that can be significantly affected by weather conditions. Moreover, it is not just outdoor jobs such as landscaping that are affected by weather. For example, indoor jobs such as housekeeping and waiting on tables can be affected when a hurricane, flood, unseasonably cool temperatures, or the lack of snow deters customers from traveling to a resort location. The impact on business of such weather effects may last for several weeks, although (as employers recognized) they are likely to be able to make up for them in other weeks of the season. Moreover, the Department understands that it is difficult to predict with precision months in advance exactly how many hours of work will be available, especially as the period of time involved is shortened. Finally, the comment suggesting adding a recordkeeping requirement related to the reason an employee declines offered work is addressed in § 655.20(i).
g. Impossibility of fulfillment (§ 655.20(g)). In proposed § 655.20(g), the Department added language to allow employers to terminate a job order in certain narrowly-prescribed circumstances when approved by the CO. In such an event, the employer would be required to meet the three-fourths guarantee discussed in paragraph (f) of this section based on the starting date listed in the job offer or first workday after the arrival of the worker, whichever is later, and ending on the job order termination date. The employer would also be required to attempt to transfer the H–2B worker (to the extent permitted by DHS) or worker in corresponding employment to another comparable job. Actions employers could take include reviewing the electronic job registry to locate other H–2B-certified employers in the area and contacting any known H–2B employers, the SWA, or ETA for assistance in placing workers. Absent such placement, the employer would have to comply with the proposed transportation requirements in paragraph (j) of this section.
The Department received numerous comments on this section, from the Small Business Administration (SBA) Office of Advocacy, employers, employer advocacy groups, and trade organizations, requesting that the provision be expanded to cover manmade disasters. Many of these commenters cited the recent Deepwater Horizon oil spill, which forced many businesses to close unexpectedly. The Department views this suggested expansion as wholly in line with the intent of the provision, which acknowledged that circumstances beyond the control of the employer or the worker can result in the need to terminate a worker's employment before the expiration date of a job order. Therefore, the Department has amended this provision in the Final Rule. The first sentence of the paragraph now reads, “If, before the expiration date specified in the job order, the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, other Acts of God, or a similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside the employer's control, that makes the fulfillment of the job order impossible, the employer may terminate the job order with the approval of the CO.” No other changes were made to this section.
h. Frequency of pay (§ 655.20(h)). Proposed § 655.20(h) required that the employer indicate the frequency of pay in the job order and that workers be paid at least every two weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent. Further, it required that wages be paid when due.
Numerous worker advocacy organizations submitted comments supporting this provision. One comment
One employer expressed general opposition to this requirement but gave no reason explaining the opposition. Other employer comments expressed a range of concerns.
One individual commented that the specific language in § 655.20(h), or according to the prevailing practice in the area of intended employment, is ambiguous. The commenter expressed concern that the regulation provides no process for determining what prevailing practice is and that area of intended employment has no rigid tangible boundaries. This commenter did not provide any alternative suggestions. The Department does not consider the regulation text ambiguous. The concept of an area of intended employment is defined in the regulations at § 655.5 and has been used in the program since its inception. While we do not conduct prevailing practice surveys in the H–2B program at this time, we assume employers are aware of prevailing practices for frequency of pay in their area.
One employer suggested that the Department permit employers to use a monthly pay period provided that they give employees the option to draw a percentage of wages earned in the middle of the month, as this would effectively give twice-monthly pay periods to any employee who exercised the option. The Department rejects this suggestion. The requirement that workers be paid at least every 2 weeks was designed to protect financially vulnerable workers. Allowing an employer to pay less frequently than every two weeks would impose an undue burden on workers who traditionally are paid low wages and may lack the means to make their income stretch through a month until they get paid, and it would force these workers to pursue the needless step of requesting their earnings every month in the middle of the pay period.
One commenter suggested that the Department require employers to pay wages in cash or require that wages be deposited directly into the employee's bank account. The Department notes that the requirement that payments be made either in cash or negotiable instrument payable at par at § 655.20(b) of the Final Rule will ensure that wages are paid free and clear and in an accessible medium.
No other comments were received on this section. As such, the Department adopts the provision as proposed.
i. Earnings statements (§ 655.20(i)). Proposed § 655.20(i) added requirements for the employer to maintain accurate records of worker earnings and provide the worker an appropriate earnings statement on or before each payday. The proposed paragraph also listed the information that the employer must include in such a statement.
The Department received numerous comments in support of § 655.20(i) from community-based organizations and worker advocacy organizations. One comment from a worker advocacy organization stated that earning statements will help workers promptly identify any improper deductions or wage violations. This commenter noted that, armed with such wage information, employees are better able to hold employers accountable to wage requirements.
Some commenters expressed opposition to this provision, arguing that requiring employers to provide earnings statements will create an administrative burden and additional costs resulting from more paperwork and additional recordkeeping. The Department believes that any additional administrative burden resulting from this provision will be outweighed by the importance of providing workers with this crucial information, especially because an earnings statement provides workers with an opportunity to quickly identify and resolve any anomalies with the employer and hold employers accountable for proper payment.
One employer association expressed concern that before in the phrase on or before each payday is vague. The comment proposed no alternative language. The Department finds the language to clearly indicate that so long as the earnings statement is provided no later than the time payment is received there is no violation of this provision.
One comment submitted by a worker advocacy group suggested the Department also require that where a worker declines any offered hours of work, employers record the reason why the hours were declined. Similar to § 655.122(j)(3) in the H–2A program, requiring an employer to record the reasons why a worker declined work will support the Department's enforcement activities related to the three-fourths guarantee proposed in § 655.20(f). The Department accepts this suggestion and adds the following language to § 655.20(i)(1) and 29 CFR 503.16(i)(1): “* * * if the number of hours worked by the worker is less than the number of hours offered, the reason(s) the worker did not work;”.
Additionally, the Department has amended §§ 655.16(i)(2)(iv), 655.20(i)(l) and 655.20(i)(2)(v) and 29 CFR 503.16(i)(l) to require employers to maintain records of any additions made to a worker's wages and to include such information in the earnings statements furnished to the worker. Such additions could include performance bonuses, cash advances, or reimbursement for costs incurred by the worker. This requirement is consistent with the recordkeeping requirements under the FLSA in 29 CFR part 516. No other changes were made to this section in the Final Rule.
j. Transportation and visa fees (§ 655.20(j)). The Department proposed changes relating to transportation and visa costs in § 655.20(j). In § 655.20(j)(1)(i), the NPRM proposed to require an employer to provide, pay for, or reimburse the worker in the first workweek the cost of transportation and subsistence from the place from which the worker has come to the place of employment. If the employer advanced or provided transportation and subsistence costs to H–2B workers, or it was the prevailing practice of non-H–2B employers to do so, the NPRM proposed to require the employer to advance such costs or provide the services to workers in corresponding employment traveling to the worksite. The amount of the transportation payment was required to be at least the most economical and reasonable common carrier charge for the trip. Section 655.20(j)(1)(ii) of the NPRM proposed to require the employer, at the end of the employment, to provide or pay for the U.S. or foreign worker's return transportation and daily subsistence from the place of employment to the place from which the worker departed to work for the employer, if the worker has no immediate subsequent approved H–2B employment. If the worker has been contracted to work for a subsequent and certified employer, the last H–2B employer to employ the worker would be required to provide or pay the U.S. or foreign worker's return transportation. Therefore, prior employers would not be obligated to pay for such return transportation costs. The NPRM also proposed that all employer-provided transportation—
Employers and their representatives generally opposed at least some aspects of the proposal. For example, some employers asserted that paying such fees would be too costly and that transportation costs should be the responsibility of the employee or paid at the discretion of the employer. In particular, some ski resorts emphasized the costs they face because many of their ski instructors travel a significant distance by air to remote resorts. Many employers were particularly concerned with the requirement to pay transportation and subsistence costs for U.S. workers recruited from outside the local commuting distance, based upon their experience that U.S. workers have high rates of turnover and rarely stay for the entire season. A number of employers recounted their experience with the short periods worked by U.S. applicants. For example, one commenter gave examples from various employers who stated that,
Employers expressed particular opposition to reimbursing what a number of them labeled as disingenuous U.S. applicants who could exploit the employer by applying for a job they had no intention of performing simply to get the transportation and subsistence to a new area. Having received a free trip, such employees would quit the job and be able to look for full-time, year-round work with another employer, because U.S. workers are not bound to work only for the H–2B employer. Such applicants would result in large costs to the employer with no return on their investment, and the employer could do nothing to mitigate its risk. Many such employers and their representatives suggested that it would be more appropriate to tie the reimbursement to either full completion of, or partial completion of, the term of employment. A number of them suggested adoption of the H–2A program provision requiring that workers must complete at least 50 percent of the work contract to be reimbursed for inbound transportation and subsistence expenses; they stated that this would help to minimize the risk that an employee could manipulate the system for free travel and would ensure that the employer benefited from the employment before disbursing the cost.
One commenter stated that the Department lacks the authority to require reimbursement of travel expenses, especially with regard to U.S. workers in corresponding employment, because the Internal Revenue Service does not allow employees to deduct such travel to the job as a business expense. Another commenter asserted that visa fees should be the responsibility of the employee because State Department regulations assign the cost to the foreigner. Finally, an employer suggested requiring employers to reimburse only the amount necessary to protect the FLSA minimum wage, but not the H–2B prevailing wage.
Employee advocates strongly supported the proposal and commended the Department for it. Numerous advocates described why it is essential for the employer to provide, pay for or reimburse transportation, subsistence and visa-related expenses in the first workweek, in order to ensure that workers are not forced to go into debt and borrow money at exorbitant rates. They emphasized that, without timely reimbursement, employees are more likely to tolerate abusive work environments in order to be able to repay their loans, rather than risk retaliatory termination. One commenter's survey of temporary foreign workers indicated that debts from such pre-employment costs are the main reason temporary foreign workers do not come forward to report violations of the law. Another commenter emphasized that employers are the primary beneficiaries of such expenditures, because they directly profit from the mobility of a low-wage workforce. Commenters stated that, if the costs of transportation and visa-related expenses are not reimbursed, it effectively lowers the employees' wage rates below the required wage, which causes adverse effects because it puts downward pressure on the wages of similarly situated U.S. workers. And they noted that it is important that U.S. workers are provided the same benefit, both because the concept that there should be no preferential treatment for foreign workers is fundamental to the INA, and because it will make it possible for available U.S. workers to take jobs where the transportation costs otherwise would be an insurmountable hurdle. They stated that requiring transportation and subsistence reimbursement also encourages employers to consider more carefully the number of workers actually needed, making it less likely that employers will request more workers than they need and making it more likely that they will make more efforts to recruit U.S. workers.
Thus, these commenters believed that the proposed rule requirements, and even stronger measures, were necessary in order to make progress toward eliminating the history of abuses in the H–2B program. Some employee advocates suggested expanding the proposed regulation to clarify that inbound transportation includes travel between the home community and the consular city as well as between the consular city and the place of employment in the U.S., or to require reimbursement for additional expenses, such as hotels while traveling to the worksite or while waiting in the consular city for visa processing. They suggested requiring employers to bear these expenses up front, rather than reimbursing them, so that workers do not have to borrow money to pay the fees. They also suggested clarifying that the employer must pay for outbound transportation if the employer terminates the employee without cause or the employee is constructively discharged, such as where the employee leaves due to lack of work. A union suggested incorporating an H–2A provision requiring employers to provide free daily transportation to the worksite, noting that H–2B workers often have no means to commute and are forced into dangerous transportation arrangements, such as being packed into the open beds of pick-up trucks or squeezed into vans in excessive numbers. The union also recommended a requirement that such transportation comply with applicable laws. As an alternative, the union suggested that employers be required to state in the job order whether they will voluntarily
After carefully considering the voluminous comments on this issue, the Department has made two changes in the Final Rule. Section 655.120(j)(1)(i) of the Final Rule continues to require employers to provide inbound transportation and subsistence to H–2B employees and to U.S. employees who have traveled to take the position from such a distance that they are not reasonably able to return to their residence each day. However, the Final Rule provides that employers must arrange and pay for the transportation and subsistence directly, advance at a minimum, the most economical and reasonable common carrier cost, or reimburse the worker's reasonable costs if the worker completes 50 percent of the period of employment covered by the job order if the employer has not previously reimbursed such costs. The Final Rule reminds employers that the FLSA imposes independent wage payment obligations, where it applies. Section 655.20(j)(1)(ii) of the Final Rule continues to require employers to provide return transportation and subsistence from the place of employment; however, the obligation attaches only if the worker completes the period of employment covered by the job order or if the worker is dismissed from employment for any reason before the end of the period. An employer is not required to provide return transportation if separation is due to a worker's voluntary abandonment. The Final Rule, like the NPRM, requires employers to reimburse all visa, visa processing, border crossing and other related fees in the first workweek.
The Department continues to believe that under the FLSA the transportation, subsistence, and visa and related expenses for H–2B workers are for the primary benefit of employers, as the Department explained in Wage and Hour's Field Assistance Bulletin No. 2009–2 (Aug 21, 2009). The employer benefits because it obtains foreign workers where the employer has demonstrated that there are not sufficient qualified U.S. workers available to perform the work; the employer has demonstrated that unavailability by engaging in prescribed recruiting activities that do not yield sufficient U.S. workers. The H–2B workers, on the other hand, only receive the right to work for a particular employer, in a particular location, and for a temporary period of time; if they leave that specific job, they generally must leave the country. Transporting these H–2B workers from remote locations to the workplace thus primarily benefits the employer who has sought authority to fill its workforce needs by bringing in workers from foreign countries. Similarly, because an H–2B worker's visa (including all the related expenses, which vary by country, including the visa processing interview fee and border crossing fee) is an incident of and necessary to employment under the program, the employer is the primary beneficiary of such expenses. The visa does not allow the employee to find work in the U.S. generally, but rather restricts the worker to the employer with an approved labor certification and to the particular approved work described in the employer's application.
Therefore, the Final Rule adds a reminder to employers that the FLSA applies independently of the H–2B requirements. As discussed above, employers covered by the FLSA must pay such expenses to nonexempt employees in the first workweek, to the level necessary to meet the FLSA minimum wage (outside the Fifth Circuit). See,
The Final Rule separately requires employers to reimburse these inbound transportation and subsistence expenses, up to the offered wage rate, if the employee completes 50 percent of the period of employment covered by the job order. The Department believes this approach is appropriate and adequately protects the interests of both U.S. and H–2B workers. It takes account of the concerns expressed by numerous employers that they would have to pay the inbound transportation and subsistence costs of U.S. workers recruited pursuant to H–2B job orders who do not remain on the job for more than a very brief period of time.
Additionally, the Final Rule requires reimbursement of outbound transportation and subsistence if the worker completes the job order period or if the employer dismisses the worker before the end of the period of employment in the job order, even if the employee has completed less than 50 percent of the period of employment covered by the job order. This requirement uses language contained in the DHS regulation at 8 CFR. 214.2(h)(6)(vi)(E), which states that employers will be liable for return transportation costs if the employer discharges the worker for any reason. See 8 U.S.C. 1184(c)(5)(A). For example, if there is a constructive discharge, such as the employer's failure to offer any work or sexual harassment that created an untenable working situation, the requirement to pay outbound transportation would apply. However, if separation from employment is due to voluntary abandonment by an H–2B worker or a corresponding worker, and the employer provides appropriate notification specified under § 655.20(y), the employer will not be responsible for providing or paying for return transportation and subsistence expenses of that worker.
This requirement to pay inbound transportation at the 50 percent point and outbound transportation at the completion of the work period is consistent with the rule under the H–2A visa program. Moreover, the Final Rule
The Department made two clarifying edits to this section in the Final Rule. Paragraph (1)(ii) of this section has been amended to clarify that the employer is required to provide or pay for the return transportation and daily subsistence of a worker who has completed the period of employment listed on the certified
The Department does not believe that any other change to § 655.20(j) is necessary. The regulatory text already clarifies that transportation must be reimbursed from the place from which the worker has come to work for the employer to the place of employment; therefore, the employer must pay for transportation from the employee's home community to the consular city and then on to the worksite. Similarly, the regulatory text already requires the employer to pay for subsistence during that period, so if an overnight stay at a hotel in the consular city is required while the employee is interviewing for and obtaining a visa, that subsistence must be reimbursed. See
k. Employer-provided items (§ 655.20(k)). The Department proposed to add a new requirement under § 655.20(k), consistent with the requirement under the FLSA regulations at 29 CFR part 531, that the employer provide to the worker without charge all tools, supplies, and equipment necessary to perform the assigned duties. The employer may not shift to the employee the burden to pay for damage to, loss of, or normal wear and tear of, such items. This proposed provision gives workers additional protections against improper deductions for the employer's business expenses from required wages.
The Department received numerous comments on this provision, the majority of which were supportive. Discussing the importance of the requirement, one employee advocacy organization cited a worker testimonial in which a former H–2B crab picker said the boss doesn't give tools to use on the job. Instead, he sells the workers knives to pick the crabmeat. He sold a worker a knife for $30, but they don't have an option to not use it. They deduct this amount from the paychecks.
Another organization referred to a study of H–2B crab pickers working on Maryland's Eastern Shore which found that 54 percent of workers interviewed had had deductions for tools taken from their weekly paychecks. Numerous employers and employer organizations signed on to a report, jointly published by two large industry groups, that characterized the requirement as seeming unlikely to cause major problems for employers enrolled in the program.
However, some commenters had objections to the proposed requirement. One trade organization expressed unqualified opposition to the proposal. Several employers and industry representatives expressed concern that the provision was incompatible with those industries in which employees customarily supply their own tools. Several of these commenters noted that in certain industries employees have personal preferences for their equipment and as a matter of course bring it with them to the job site. One employer requested that the Department simply state that any tools or equipment provided to domestic workers should be provided to similarly-employed H–2B workers, and argued that the requirement would unfairly favor H–2B workers by offering them a benefit that was not legally extended to U.S. workers. This commenter overlooked the fact that, like all of the provisions in § 655.20, this requirement applies to both H–2B workers and U.S. workers in corresponding employment, and would therefore not disadvantage domestic workers. As discussed above with respect to the disclosure requirement in § 655.18(g), section 3(m) of the FLSA prohibits employers from making deductions for items that are primarily for the benefit of the employer if such deductions reduce the employee's wage below the Federal minimum wage. Therefore an employer that does not provide tools but requires its employees to bring their own would already be required under the FLSA to reimburse its employees for the difference between the weekly wage minus the cost of equipment and the weekly minimum wage. The proposed provision simply extends this protection to cover the required H–2B offered wage, in order to protect the integrity of the required H–2B wage rate and thereby avoid adverse effects on the wages of U.S. workers. However, as discussed above with regard to proposed § 655.18(j), this requirement does not prohibit employees from voluntarily choosing to
No other substantive comments were received on this provision; the Final Rule therefore retains the requirement as proposed.
l. Disclosure of the job order (§ 655.20(l)). Proposed § 655.20(l) required that the employer provide a copy of the job order to H–2B workers no later than the time of application for a visa and to workers in corresponding employment no later than the first day of work. The job order would contain information about the terms and conditions of employment and employer obligations as provided in proposed § 655.18 and would have to be in a language understandable to the workers. The Department received numerous comments in support of this provision, and none in opposition to it.
One advocacy organization used the experience of an H–2B worker, Yolanda, to illustrate the importance of proposed § 655.20(l):
When Yolanda went to the Eastern Shore for what would be her final year, she found that her wages were much different than what the recruiter promised. Yolanda was promised $7 per hour, but earned $5 instead. She was promised overtime, but never received it.
This commenter concluded:
Had Yolanda, or someone in a similar position, known about the actual terms and conditions of employment, she could make an informed decision as to whether employment in the U.S. was worthwhile.
Yet many employee advocates urged the Department to go further in the Final Rule. Several advocacy groups suggested that the Department require written disclosure of the job order at the time of recruitment, as required under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), rather than when the worker applies for a visa or, in the case of U.S. workers in corresponding employment, on the first day of work. These commenters asserted that earlier disclosure would allow potential H–2B workers to more fully consider their options before committing to a U.S. employer. The Department notes that H–2B employers that are subject to MSPA are bound by the requirements of that Act, including disclosure of the appropriate job order at the time of recruitment. The H–2B and MSPA programs are not analogous, however. MSPA workers are often recruited domestically shortly before the start date of the job order, making the provision of the job order at the time of recruitment both logical and practical. In the H–2B program, as in the H–2A program, recruitment is often less directly related to the work start date, making immediate disclosure of the job order less necessary. It thus is more practical to require disclosure of the job order at the time the worker applies for a visa, to be sure that workers fully understand the terms and condition of their job offer before they make a commitment to come to the United States. To clarify, the time at which the worker applies for the visa means before the worker has made any payment, whether to a recruiter or directly to the consulate, to initiate the visa application process. The Department maintains that worker notification is a vital component of worker protection and program compliance, and believes that the proposed requirement provides workers with sufficient notice of the terms and conditions of the job so that they can make an informed decision.
Some of the same commenters requested that the Department amend § 655.20(l) to require that the job order be provided to workers in their primary language, removing the qualifying phrase as necessary or reasonable. The Department agrees that providing the terms and conditions of employment to each worker in a language that she understands is a key element of much-needed worker protection. However, as the Department intends to broadly interpret the necessary or reasonable qualification and apply the exemption only in those situations where having the job order translated into a particular language would place an undue burden on an employer without significantly disadvantaging an H–2B or corresponding worker, it declines to remove the qualifying language.
An industry group argued that this section was designed to transform the job order into an employment contract. The purpose of the disclosure is to provide workers with the terms and conditions of employment and of employer obligations to strengthen worker protection and promote program compliance. Furthermore, as discussed in the preamble to § 655.18, the Department views the terms and conditions of the job order as binding, and requires employers to attest that they will abide by the terms and conditions of the H–2B program. However, the Department leaves it to the courts to determine private parties' contractual rights under state contract law.
No other substantive comments were received on this provision; the Final Rule therefore retains § 655.20(l) as proposed.
m. Notice of worker rights (§ 655.20(m)). Proposed § 655.20(m) required that the employer post a notice in English of worker rights and protections in a conspicuous location and post the notice in other appropriate languages if such translations are provided by the Department. While the Department received numerous comments in support of this provision, several commenters suggested amendments that they felt would strengthen worker protections. Several advocacy groups requested that the Department specify that the notice of worker rights must instruct workers how to file a complaint with WHD. The poster, which will be printed and provided by the Department, will state that workers who believe their rights under the program have been violated may file confidential complaints and will display the number for WHD's toll-free help line.
Another advocacy organization suggested that the provision be amended to require the employer to post the poster in the language of any worker who is not fluent in English. The Department acknowledges that the purpose of this section would be undermined if workers cannot read the notice. However, the Department cannot guarantee that it will have available translations of the notice in any given language, and cannot require employers to display a translation that may not exist. Translations will be made in response to demand; employers and organizations that work with H–2B workers are encouraged to inform the Department about the language needs of the H–2B worker population.
n. No unfair treatment (§ 655.20(n)). Proposed § 655.20(n) added new language on nondiscrimination and nonretaliation protections that are fundamental to statutes that the Department enforces. Worker rights cannot be secured unless there is protection from all forms of intimidation or discrimination resulting from any person's attempt to report or correct perceived violations of the H–2B provisions. As provided in proposed 29 CFR 503.20, make-whole relief would be available to victims of discrimination and retaliation under this paragraph.
The Department received numerous comments in support of § 655.20(n); among them were comments from worker advocacy organizations, labor organizations, and a State Attorney General's office. One comment, submitted by a coalition of human rights organizations, stated support for § 655.20(n) and noted that the provision will contribute to the nation's battle against human rights abuses, abroad and
Multiple comments suggested adding language to § 655.20(n)(4), which proposed providing protection from retaliation based on contact or consultation with an employee of a legal assistance organization or an attorney, to include contact with labor unions, worker centers, and worker advocacy organizations. These commenters maintain that labor unions, worker centers, and community organizations are often the first point of contact for H–2B workers who have experienced violations and who may be isolated or lack familiarity with the local community and how to obtain redress or legal assistance. In support of the above argument, one commenter cited to the NPRM where the Department stated that because H–2B workers are not eligible for services from federally-funded legal aid programs, most H–2B workers have no access to lawyers or information about their legal rights. 76 FR 15143, Mar. 18, 2011. In addition, a temporary foreign worker advocacy organization noted that employers frequently retaliated against H–2B workers upon learning that the H–2B workers had spoken with that organization regarding their rights under the H–2B program. The Department agrees with these commenters that proposed § 655.20(n) fails to cover the majority of first contacts between temporary foreign workers and those who are regularly communicating directly with foreign workers helping them to correct and/or report perceived violations of the H–2B provisions. The commenters' suggested additions to § 655.20(n) are fully consistent with the intent of this anti-retaliation provision. The Department recognizes that workers should be just as protected from retaliation if they contact or consult with worker centers, community organizations, or labor unions as they are if they contact or consult with attorneys or legal assistance organizations. Changes to § 655.20(n)(4) will be reflected in the Final Rule as follows: “Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), 29 CFR part 503, or this Subpart or any other Department regulation promulgated thereunder;”.
One comment submitted by a coalition of human rights organizations suggested that the right to federally-funded legal services be explicitly provided for H–2B workers. However, providing the right to federally-funded legal services is beyond the Department's jurisdiction. In addition, some comments referred to § 655.20(n) as protecting against retaliation from engaging in acts of worker organizing. To clarify, the provision protects against discrimination and retaliation for asserting rights specific to the H–2B program. Workers' rights to join together, with or without a union, to improve their wages and working conditions are protected under the National Labor Relations Act and other similar State laws.
A labor union suggested that the Department provide an avenue for H–2B workers to file oral complaints with the Department by telephone or electronically regarding H–2B violations and all other federal labor rights granted temporary workers. The Department already accepts complaints through these means. Section 655.20(m) requires all H–2B employers to display a notice of worker rights, which sets out the rights and protections for H–2B workers and workers in corresponding employment and informs workers how to file a complaint with WHD.
A similar comment suggested the Department create a mechanism for H–2B workers who have returned to their home country or family members who are currently in the home country and hearing about ongoing worker abuse to file a complaint with DOL from their country of origin. To clarify, any person may contact the WHD by phone at 1–866–4–USWAGE or online at
One comment, submitted by a State Attorney General's office, suggested the Department clarify that § 655.20(n) provides protection to U.S. workers and H–2B workers alike. This commenter and a temporary foreign worker advocacy group stressed the importance of providing workers, especially H–2B workers who are particularly vulnerable to retaliation, protection against employer retaliatory acts, as well as the importance of encouraging workers to come forward when there is a potential workplace violation. The Department recognizes that H–2B workers can be particularly vulnerable to retaliation and acknowledges the importance of assuring that H–2B workers are protected against any unfair treatment and retaliation. The Department therefore clarifies that § 655.20(n) will apply equally to H–2B workers and workers in corresponding employment.
The State Attorney General's office also sought clarification of the phrase “related to 8 U.S.C. 1184(c)” found in § 655.20(n)(1). The commenter suggested the Department state that related complaints need not specify any specific provision of law, and would also include complaints of violations of related state and local laws. The Department rejects this suggestion, as the anti-retaliation provision applies only to the H–2B program. However, the Department notes that § 655.20(z) requires employers to abide by all other Federal, State, and local employment-related laws, including any anti-retaliation provisions therein.
Another comment submitted by a worker advocacy group encouraged the Department to clarify that legal assistance sought in relation to the terms and conditions of employment includes legal assistance relating to employer-provided housing. If a worker sought legal assistance after an employer charged for housing that was listed as free of charge in the job order, this would be a protected act; however, a routine landlord-tenant dispute may not fall under the protections of this section.
o. Comply with the prohibitions against employees paying fees (§ 655.20(o)). Proposed § 655.20(o) prohibited employers and their attorneys, agents, or employees from seeking or receiving payment of any kind from workers for any activity related to obtaining H–2B labor certification or employment. The Department received numerous comments in support of this section from advocacy groups, labor organizations, and an independent policy institute. However, a number of these commenters took issue with the provision allowing employers and their agents to receive reimbursement for passport fees. These commenters argued that passport fees are not always for the primary benefit of the employee, particularly where H–2B workers receive passports that expire within 1 year of their issue date, and urged the Department to qualify the exception to take such circumstances into account. The Department is unaware of passports with such extremely short validity
The Department also received comments from a legal network and an independent policy institute expressing concern that the proposed section did not protect workers from coercion by recruiters tenuously affiliated with an employer or an employer's designated agent. These commenters requested that the Department go beyond the requirement at § 655.20(p), which obligates employers to execute a written contract with any third-party agents or recruiters prohibiting them from seeking or receiving payment from prospective employees, and amend § 655.20(o) to make H–2B employers strictly liable for any recruitment or placement fees charged by third parties. The Department recognizes these commenters' concerns but must reject this request for the reasons stated in the preamble under 29 CFR 503.20, Sanctions and remedies, Liability for prohibited fees collected by foreign labor recruiters and sub-contractors.
No other comments were received on this section, which is adopted as proposed in the Final Rule.
p. Contracts with third parties to comply with prohibitions (§ 655.20(p)). In § 655.20(p), the Department proposed to amend existing § 655.22(g)(2) to require that an employer that engages any agent or recruiter must prohibit in a written contract the agent or recruiter from seeking or receiving payments from prospective employees.
The Department received numerous comments in support of this proposal. However, some commenters requested that the Department go further: One commenter requested that the contract include the full contact information for the agent or recruiter. The Department declines to require such information in the contract, but notes that the new requirements at § 655.9 of this Final Rule require disclosure of the employer's agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H–2B workers, as well as the identity and geographic location of any persons or entities hired by or working for the recruiter and the agents or employees of those persons and entities. The difference between § 655.9, which requires the employer to provide copies of such agreements to the Department when an employer files its
One comment submitted by an advocacy group informed the Department that many recruiters engage local intermediaries in the recruitment process and these recruiting subcontractors in turn charge fees. The commenter suggested that in addition to stating that the recruiter will not charge a fee, the contract must insist that the recruiter will ensure that no subcontractor will charge fees and that no workers will pay fees. The Department recognizes the complexities of recruiters using subcontractor recruiters and has accounted for this in § 655.20(p) by including the following language: “The employer must contractually prohibit in writing any agent or recruiter (or any agent or employee of such agent or recruiter) whom the employer engages, either directly or indirectly * * *”.
The specific language covers subcontractors. In addition, the required contractual prohibition applies to the agents and employees of the recruiting agent, and encompasses both direct and indirect fees. As these requirements should sufficiently address the commenter's concerns, the Department declines to adopt this suggestion.
A Member of Congress urged the Department to require that employers publicly disclose all recruiters and sub-recruiters. In another comment submitted by a community-based organization, an H–2B worker described his experience with recruiters and lack of information regarding the recruiter, citing having to pay very large fees to the recruiters in his community, just for the opportunity to apply for a work visa and later work in the United States. He explained that they generally do not even know who the recruiter is working for.
Another comment provided the following example of common recruitment violations: In January 2011, a group of 25 Mexican nationals in the state of Guanajuato had been promised visas and six months of work by a recruiter. The recruiter charged each of the workers 2000 pesos to process the visa application. Unaware of the legitimacy of the job offer, who the recruiter was, or whom he was representing, the 25 Mexicans sent the money and their passports to the address the “recruiter” provided. After several weeks of no response, the workers inquired at the address given, but were told by the person living there that the recruiter had died. The workers lost both their money and their passports.
The Department agrees that such public disclosure is necessary and has addressed the issue under § 655.9. The Department will maintain a publicly available list of agents and recruiters who are party to such recruitment contracts, as well as a list of the identity and location of any persons or entities hired by or working for the recruiters to recruit H–2B workers for the H–2B job opportunities offered by the employer.
q. Prohibition against preferential treatment of H–2B workers (§ 655.20(q)). In § 655.20(q) the Department proposed to prohibit employers from providing better terms and conditions of employment to H–2B workers than to U.S. workers. This provision is identical to that found at § 655.18(a)(1) of this Final Rule; a discussion of comments received in response to the proposal can be found in the preamble to that section. The Final Rule adopts the proposal as written.
r. Non-discriminatory hiring practices § 655.20(r). In § 655.20(r) the Department proposed to retain the non-discriminatory hiring provision contained in § 655.22(c) of the 2008 Final Rule and to clarify that the employer's obligation to hire U.S. workers continues throughout the period described in proposed § 655.20(t). Under this provision, rejections of U.S. workers continue to be permitted only for lawful, job-related reasons. An advocacy organization representing low wage workers commented in support of the proposed provision, stating that the provision helps the Department fulfill its obligation to ensure that U.S. workers are not adversely affected by the H–2B program. This commenter also advised the Department to be aware of job order terms that may appear to be non-discriminatory but have a discriminatory impact on U.S. workers, such as requiring drug testing or
s. Recruitment requirements (§ 655.20(s)). The NPRM proposed that the employer conduct required recruitment as described in proposed §§ 655.40–.46. No substantive comments were received concerning employers' obligation to comply with recruitment requirements, and the section is adopted in the Final Rule as proposed.
t. Continuing obligation to hire U.S. workers § 655.20(t). In proposed § 655.20(t), the Department extended the period during which the employer must hire qualified U.S. workers referred by the SWA or who respond to recruitment to 3 days before the date of need or the date the last H–2B worker departs for the workplace for the certified job opportunity, whichever is later. In order to determine the appropriate cutoff date for SWA referrals, the Department proposed that the employer notify the SWA in writing if the last H–2B worker has not departed by 3 days before the date of need and of the new departure date as soon as available. The Department characterized as inadequate the existing requirements under which an employer is under no obligation to hire U.S. workers after submitting the recruitment report, which could occur as early as 120 days before the first date of need. U.S. applicants—particularly unemployed workers—applying for the kinds of temporary positions typically offered by H–2B employers are often unable to make informed decisions about jobs several months in advance; it is far more likely that they are in need of a job beginning far sooner. In fact, many of these applicants may not even be searching for work as early as several months in advance and are therefore unlikely to see SWA job orders in the 10 days they are posted or the newspaper advertisements on the 2 days they are published in accordance with the existing minimum recruitment requirements. This segment of the labor force cannot afford to make plans around the possibility of a temporary job several months in the future. The current recruitment and hiring structure simply cannot be reconciled with the Department's obligation to protect U.S. workers and ensure that qualified U.S. applicants are unavailable for a job opportunity before H–2B workers are hired.
The Department received many comments on this proposed requirement—predominantly from the SBA Office of Advocacy, employers, their advocates, and employer associations—asserting that accepting U.S. applicants until 3 days before the date of need would be unworkable for employers. Some of these commenters described this as the most troubling provision in the NPRM. Some of these commenters suggested that the Department instead modify existing § 655.15(e) to require the SWA to keep the job order posted for 30 days, while others recommended changing the closing date from 3 days to 30 days or 60 days before the date of need.
The Department also received numerous comments in support of the proposed provision from advocacy groups, policy institutes, and labor organizations. However, some of these commenters felt that the provision did not go far enough to protect the interests of U.S. workers. Some commenters, including a labor organization, a legal network, and a legal policy institute, requested that the Department extend the obligation to hire qualified U.S. workers into the certification period, either until 50 percent of the period has elapsed, as in the H–2A program, or until only 2 weeks remain.
After extensive consideration of all comments and mindful of its responsibilities to ensure that qualified, available U.S. workers are not precluded from job opportunities, the Department has decided to change the day through which employers must accept SWA referrals of qualified U.S. applicants until 21 days before the date of need, irrespective of the date of departure of the last H–2B worker. The Department believes this reduction in the priority hiring period to 21 days before from 3 days before the date of need will allay a number of employer concerns, and it takes into consideration the USCIS requirement that H–2B workers not enter the United States until 10 days before the date of need. Whereas employers expressed concern that the proposed 3-day priority hiring cutoff opened up the possibility that a U.S. applicant could displace an H–2B workers who has been recruited, traveled to the consular's office, obtained a visa, or even begun inbound transportation to the worksite, the 21-day provision gives employers more certainty regarding the timing of and need for their efforts to recruit H–2B workers. At the same time, the Department believes that the 21-day requirement, which increases the priority hiring period by as much as 3 months compared to the current rule, is sufficient to protect the interests of U.S. workers. Further, the Department notes that the extended recruitment period is not the only provision of this Final Rule enhancing U.S. applicants' access to vacancies: The number and breadth of recruitment vehicles in place (
A number of employers, trade associations, and professional associations expressed concern that a continuing obligation to accept U.S. applicants could burden employers with additional expenses. They argued that if an employer is compelled to hire a U.S. worker close to the date of need, the employer might have to absorb the cost of recruitment, travel, and housing that it had already arranged for foreign workers. Employers are encouraged to delay recruitment of foreign workers until it becomes evident that it will be necessary to hire such workers. With regard to travel expenses, the Department asserts that the additional time granted to employers in the Final Rule will be sufficient to allow for the arrangement of inbound transportation without employers having to bear any risk of last-minute cancellations, pay premiums for refundable fares, or pay visa expenses that are ultimately not needed. Housing arrangements should not present an issue, as § 655.20(q) requires an employer to offer U.S. workers the same benefits that it is
Many of the same commenters also worried that foreign workers no longer needed would have wasted their time in committing to the job opportunity and traveling to the United States, and that some might sue for breach of contract. As discussed above, the new 21-day provision will prevent H–2B workers from being dismissed after beginning travel from their home to the consular office or even to the United States as the obligation to hire U.S. workers now ends 11 days before USCIS permits H–2B workers to be admitted to the country. Additionally, in order to create appropriate expectations for potential H–2B workers, when an employer recruits foreign workers, it should put them on notice that the job opportunity will be available to U.S. workers until 21 days before the date of need; therefore, the job offer is conditional upon there being no qualified and available U.S. workers to fill the positions.
A number of employers, trade associations, and professional associations commented about what they called disingenuous applicants,
Some employers, trade associations, and professional associations expressed concern that the proposed structure would inhibit their ability to plan for their seasons and commit to contracts. The Department notes that regardless of the obligation to hire cutoff, the H–2B employer has a high degree of certainty that it will have access to workers, whether from within or outside the United States. Further, the Final Rule's 21-day obligation to hire cutoff should provide employers with ample time to identify foreign workers if they are, in fact, needed and to initiate their travel without substantial uncertainty. The purpose of this provision is to ensure that available U.S. workers have a viable opportunity to apply for H–2B job opportunities and to facilitate the employment of these workers. The Department believes that the proposed provisions do not pose a disadvantage to employers in terms of having certainty that positions will be filled.
One employer noted that State laws requiring employers in some industries to submit requests for background checks or drug testing for their employees 30 to 45 days before the date of need would preclude the hiring of U.S. workers 21 days before the date of need. A background check or drug test required for employment in a State, if listed in the job order, would be considered a bona fide job requirement, as long as it was clearly disclosed in the job order and recruitment materials. An applicant who submitted an application for employment after a State-established deadline and was therefore unable to undergo such an evaluation would be considered not qualified for employment in that State. However, consistent with §§ 655.18(a)(2) and 655.20(e), such a requirement must be disclosed in the job order, and the employer would bear the responsibility of demonstrating that it is bona fide and consistent with the normal and accepted requirements imposed by non-H–2B employers in the same occupation and area of intended employment. Furthermore, employers cannot treat U.S. workers less favorably than foreign workers with regard to start date; employers may not conduct such screening for H–2B workers at a later date if the employer does not provide the same late screening for U.S. workers who submit an application after a State-established deadline.
Due to the modification of this provision in the Final Rule allowing for a fixed, 21-day cut-off date for the priority hiring rights of U.S. workers, and with the knowledge (as reported in the comments discussed under § 655.20(f) (three-fourths guarantee)) that many employers' workforce needs vary throughout the season and they require fewer workers in slow months at the beginning and end of the season, the Department wishes to remind employers about the requirements of the three-fourths guarantee. Specifically, the guarantee begins on the first workday after the arrival of the worker at the place of employment or the advertised first date of need, whichever is later. An employer cannot delay the three-fourths guarantee by telling workers not to come to work on or after the advertised first date of need because the employer does not have a need for them at that time. Particularly for U.S. workers who are not traveling to the place of employment, this means that when they present themselves at the place of employment on the advertised first date of need, the three-fourths guarantee is triggered, whether or not the employer has sufficient full-time work for all of them to perform.
u. No strike or lockout (§ 655.20(u)). The Department proposed in § 655.20(u) to modify the no strike or lockout language in the current rule to require employers to assure the Department that there is no strike or lockout at the worksite for which the employer is requesting H–2B certification, rather than solely in the positions being filled by H–2B workers, which is the requirement under the current regulations. If there is a strike or lockout at the worksite when the employer requests H–2B workers, the CO may deny the H–2B certification.
The Department received several comments from advocacy groups and labor organizations in support of the proposed change. These groups suggested that the change would provide a needed protection for U.S. workers whose employers seek to circumvent the current regulatory provisions by transferring workers to fill positions vacated by striking workers. One labor organization that generally supported the proposed regulation indicated that it believed the Department did not go far enough because employers could still transfer U.S. workers from one worksite to a second to fill positions vacated by striking workers, then use H–2B workers to fill the vacancies at the first worksite. This commenter suggested that if the Department would not extend the strike/layoff prohibition to all employer worksites it should at least consider expanding the prohibition to worksites operated by the employer within a particular region or geographic proximity, for example within a 500-
Several trade associations commented that the prohibition on strikes/lockouts was too broad. One of these commenters was concerned that the Department did not specify that the provision was not intended to encompass annual layoffs that occur due to the end of the peak season. The Department did not intend for § 655.20(u) to include employer layoffs; section § 655.20(v) addresses employer layoffs. Other commenters were concerned that a work stoppage as a result of labor disputes could refer to commonly-occurring minor disagreements and would effectively mean no employer in the country could use the program. The Department maintains that the definition of strike is sufficiently clear, and contends that this provision will not inhibit the use of the program by a large number of employers.
Another commenter indicated that the ability of a CO to deny an application due to a strike or a lockout might complicate the application process and increase delays, unsuccessful applications, and last-minute refusals of H–2B workers. The Department does not anticipate that this will be a problem as long as employers do not seek approval of an
v. No recent or future layoffs (§ 655.20(v)). Proposed § 655.20(v) modified the dates of impermissible layoffs of U.S. workers, extending the period during which an H–2B employer must not lay off any similarly employed U.S. workers from 120 days after the date of need to the end of the certification period. The Department also proposed adding the requirement that H–2B workers must be laid off before any U.S. worker in corresponding employment.
The Department received several comments that expressed support for this revision. The Department received two comments that suggested the period be extended to 180 days prior to the date of need, instead of the current provision of 120 days prior to the date of need. One commenter, a labor organization, suggested the 180-day period in order to be consistent with one of its other proposed regulatory changes, discussed in the preamble to § 655.20(w). The Department did not adopt the relevant portion of that suggested change, and therefore declines to change this provision. One commenter asserted that this change would correspond with a U.S. worker's eligibility for unemployment benefits. Unemployment insurance eligibility varies by State and can change due to economic conditions, while the 120-day period in the layoff provision is tied to the seasonal nature of the program. The Department maintains the 120-day period in this Final Rule.
Several employers commented that the regulations should specify that this provision is not intended to address annual layoffs that occur due to the end of the peak season. The Department notes that the provision specifically permits layoffs due to lawful, job-related reasons provided that the employer performs all required recruitment and contacts all former U.S. employees as indicated in § 655.20(w). Similarly, one commenter indicated that this provision would not allow an employer who laid off workers due to a natural or manmade disaster to request H–2B workers when cleanup work begins and the employer is unable to find U.S. workers. The Department concludes that these commenters' concerns are unfounded, as the provision specifically permits layoffs due to lawful, job-related reasons such as the end of the peak season or a natural or manmade disaster, as long as, if applicable, the employer lays off H–2B workers first.
w. Contact with former U.S. employees (§ 655.20(w)). The Department proposed to require employers to contact former U.S. employees who worked for the employer in the occupation and at the place of employment listed on the
All comments addressing this issue supported the change. One advocacy organization that supported the change also expressed concern about employers determining which workers they have terminated for cause because there is no requirement that employers keep records of the reasons why a person was dismissed. Though the regulations do not specify a requirement to keep records of reasons for termination, many employers keep such records as a matter of general business practice. Moreover, such a record would be useful if there were an investigation to show that the termination was in fact for cause and not a layoff.
A labor organization proposed that the Department require employers to contact those employees who quit after having their hours reduced by 25 percent or more during the 180-day period preceding the submission of the
x. Area of intended employment and job opportunity (§ 655.20(x)). Proposed § 655.20(x) modified existing § 655.22(l) by additionally prohibiting the employer from placing a worker in a job opportunity not specified on the
y. Abandonment/termination of employment (§ 655.20(y)). Proposed § 655.20(y), which is largely consistent with the existing notification requirement in § 655.22(f), described the requirement that employers notify OFLC and DHS within 2 days of the separation of an H–2B worker or worker in corresponding employment if the separation occurs before the end date certified on the
A professional association asserted that an employer that fails to provide notice as required should be relieved of its three-quarter guarantee obligation if its notification was innocently or mistakenly late. Similarly, a coalition representing agents and employers and a trade association expressed concern that the Department's 2-day window implies that an employer who waits until the third day to provide notification would be in violation. It is not the Department's intention in this preamble to determine whether hypothetical situations would ultimately be charged as violations of this rule. Instead, the Department reminds the public that WHD will determine violations of this and other employer requirements after appropriate investigative actions, using the clear criteria defining what constitutes a violation found in 29 CFR 503.19.
A coalition representing agents and employers commented that the Department should define precisely which day of a separation triggers the start of the 2-day window; articulate what happens if the second day falls on a Federal holiday; articulate what happens in the event that the notification is sent within 2 days but transmission failures delay the Department's receipt; provide specific notification procedures including email addresses employers should use; and reduce its fines to conform with those of DHS. The Department asserts that its language in the proposed section provides employers clear guidance regarding their notification obligations. This assertion is backed up by the Department's enforcement experience of the almost identical provision at existing § 655.22(f); neither WHD nor employers have expressed confusion regarding the notification requirements or articulated concerns similar to the commenter's since the introduction of the requirement in the 2008 Final Rule. Furthermore, the Department notes that an identical provision in its H–2A regulations has not resulted in confusion for H–2A employers, many of whom also participate in the H–2B program. The Department advises employers to send notification, either in hard copy or via email, using the contact information they used to submit their
The same commenter also claimed that the proposed language is unclear and that the Department should clarify that an employer is relieved of its obligations under the three-quarter guarantee not only in the event of a voluntary abandonment but also of a lawful termination. The Department cites its final sentence in § 655.20(y) and 29 CFR 503.16(y) as unambiguous in relieving an employer from the guarantee for both a voluntary abandonment and a termination for cause.
Two worker advocacy groups claimed that unscrupulous employers could misuse the DHS notification as a threat to coerce workers, whose immigration status is tied inextricably to the job, to endure abusive work conditions. The Department emphasizes that the notification requirements in § 655.20(y) are not intended to be used as threats against vulnerable foreign workers to keep them in abusive work situations. Further, the Department cautions that coercing workers into performing labor by threatening potential deportation or immigration enforcement may violate anti-trafficking laws such as the William Wilberforce Trafficking Victims Protection Act of 2008 (TVPRA), 18 U.S.C. 1584, 1589, among other laws. While the worker advocates argue that the Final Rule should eliminate the DHS portion of the notification and replace it with a requirement to notify WHD, the Department reminds the public that DHS regulations already compel employers to notify DHS of early separations by assisting the agency in keeping track of foreign nationals in the United States. Both OFLC's (which may share information with WHD) and DHS's awareness of early separations are critical to program integrity, allowing the agencies to appropriately monitor and audit employer actions. If not for proper notification, employers with histories of frequent and unjustified early dismissals of workers could continue to have an
Several comments related to the Department's language describing abscondment. A private citizen and a coalition representing agents and employers claimed there is an inconsistency between the proposed rule, which considers abscondment to occur after 5 days, and some employer personnel rules that purportedly set the threshold at 3 days. A worker advocacy group argued that workers who fail to report for work due to legitimate injury or illness should not be considered to have abandoned employment. The Department maintains that the proposed language does not intrude upon or supersede employer attendance policies. The proposed requirement that an
z. Compliance with applicable laws (§ 655.20(z)). In proposed § 655.20(z), which requires H–2B employers to comply with all other applicable Federal, State, and local employment laws, the Department retained much of the language from the existing provision at § 655.22(d) and added an explicit reference to the TVPRA. The Department received comments from several worker advocacy organizations expressing general support for referencing the Act, which prohibits employers from holding or confiscating workers' immigration documents such as passports or visas under certain circumstances. One worker advocacy organization suggested the Department broaden the proposed section in two ways: By including employers' attorneys and agents in the prohibition and by expanding the documents employers are barred from holding to incorporate deeds to a worker's auto, land and home. The Department does not have the authority to include documents not specified in the TVPRA at 18 U.S.C. 1592(a), such as the deeds to an H–2B worker's auto, land, or home. However, the Department agrees that the prohibition must include attorneys and agents in order to achieve the intended worker protection. The Department has added appropriate language to § 655.20(z) of this Final Rule to reflect the change.
aa. Disclosure of foreign worker recruitment (§ 655.20(aa)). The NPRM proposed to require the employer and its attorney and/or agents to provide a copy of any agreements with an agent or recruiter whom it engages or plans to engage in the international recruitment of H–2B workers under this
In the NPRM, we proposed that, upon receipt of an
The proposed rule also required the use of next day delivery methods, including electronic mail, for any notice or request sent by the CO requiring a response from the employer and the employer's response to such a notice or request. This proposed section also contained a long-standing program requirement that the employer's response to the CO's notice or request must be sent by the due date or the next business day if the due date falls on a Saturday, Sunday, or a Federal holiday. The Final Rule adopts the language of the NPRM without change.
One labor organization urged us to strictly scrutinize applications requesting 10 or more workers to perform construction or construction-type work to guard against unscrupulous employers' applications. While we appreciate the commenter's concern, we do not believe that it is necessary to strictly scrutinize only certain types of applications but rather will continue to thoroughly review all applications.
Some commenters expressed concern that the H–2B program would be more efficient and predictable if we were subject to more deadlines governing our decision-making. We have set timeframes throughout these regulations for our decision-making (
We proposed to require the CO to issue a formal Notice of Deficiency where the CO determines that the
As proposed, once the CO issues a Notice of Deficiency to the employer, the CO will provide the SWA and the employer's attorney or agent, if applicable, a copy of the notice. The Notice of Deficiency would include the specific reason(s) why the
Some commenters suggested limiting the CO to one Notice of Deficiency, covering all deficiencies, while another suggested limiting an employer to a certain number of Notices of Deficiency received before restricting it from using the program in the future. We understand that these commenters are interested in processing efficiency, as are we. However, we have decided to retain the CO's ability to issue multiple Notices of Deficiency, if necessary, to provide the CO with the needed flexibility to work with employers seeking to resolve deficiencies that are preventing acceptance of their
In the NPRM, we proposed to permit the CO to deny any
Under the proposed rule, if the CO deems a modified application acceptable, the CO issues a Notice of Acceptance and requires the SWA to modify the job order in accordance with the accepted modification(s), as necessary. In addition to requiring modification before the acceptance of an
One commenter suggested that, if we decide to retain the CO's ability to require post-acceptance modifications, we should provide employers with an opportunity for immediate de novo hearings. As discussed further in the larger discussion of administrative review process contained in the Final Rule, we decline to add de novo hearings in this post-acceptance certification model. Since the application will be denied under § 655.53, an employer will have the right of appeal. We decline, however, to provide for a de novo hearing.
Some commenters opposed the CO having the ability to require modifications post-acceptance, arguing the CO's ability to issue unlimited modifications at any point in the process is inefficient for both the CO and the employer and is contrary to the employer's interest in finality. We have determined it is contrary to the integrity of the H–2B program to limit the CO's ability to require modification(s) of a job order, even after acceptance. In some cases, information may come to the CO's attention after acceptance indicating that the job order does not contain all the applicable minimum benefits, wages, and working conditions that are required for certification. This provision enables the CO to ensure that the job order meets all regulatory requirements.
We proposed to require the CO to issue a formal notice accepting the employer's
As proposed, the Notice of Acceptance directs the SWA: (1) To place the job order in intra- and interstate clearance, including (i) circulating the job order to the SWAs in all other States listed on the employer's
As proposed, the Notice of Acceptance also directs the employer to recruit U.S. workers in accordance with employer-conducted recruitment provisions in §§ 655.40–655.47, as well as to conduct any additional recruitment the CO directs, consistent with § 655.46, within 14 calendar days from the date of the notice. The Notice of Acceptance would inform the employer that such employer-conducted recruitment is required in addition to SWA circulation of the job order in intrastate and interstate clearance under § 655.16. In addition, the Notice of Acceptance would require the employer to submit a written report of its recruitment efforts as specified in § 655.48.
Under the proposed rule, the Notice of Acceptance would have also advised the employer of its obligation to notify the SWA with which it placed its job order if the last H–2B worker has not departed for the place of employment by the third day preceding the employer's date of need. This would have indicated to the SWA when to stop referring potential U.S. workers to the employer.
We are adopting the proposed provisions on the Notice of Acceptance content, with one modification. For consistency with an amendment made to the employer's obligation to continue hiring qualified U.S. workers in § 655.20 until 21 days before the date of need, we have deleted proposed paragraph (b)(3) of this section, which would have notified the employer that it must inform the SWA(s) handling the job
Comments about the content of the Notice of Acceptance focused on the recruitment instructions contained in the Notice. One commenter suggested that we permit SWAs to circulate job orders nationwide and put the job order on the Internet to broaden the reach of U.S. labor market recruitment. In contrast, another commenter suggested that the requirement for a SWA to place the job order in interstate clearance is both unnecessary and burdensome, given the introduction of the electronic job registry, the absence of supply States for non-agricultural work, and the difficulty of coordinating processing among multiple SWAs. We believe both the electronic job registry and the interstate clearance process serve important, but distinct, purposes in testing the U.S. labor market. The electronic job registry, available to anyone with Internet access, accomplishes the objective of disseminating job opportunity information to the widest U.S. audience possible. Adding nationwide circulation to the SWAs' responsibilities would duplicate the function of the electronic job registry, unnecessarily burdening the SWAs. The interstate clearance process, however, targets local labor markets that are most likely to have available U.S. workers, so that those SWAs can make the job opportunity information available to the interested, available, and qualified U.S. workers in that particular local labor market. While there are not traditional supply States for non-agricultural work, the CO may identify States in which circulating the job order is likely to target additional local markets with potentially available U.S. workers (
Some commenters discussed the community-based organization contact requirement. While the Notice of Acceptance notifies the employer when the CO has determined that such contact is appropriate to the occupation and areas of intended employment, the community-based organization contact requirement is an employer recruitment activity, when appropriate, appearing in § 655.45. Accordingly, we have addressed these comments in the discussion of § 655.45.
We received many comments on the proposals in this section that the SWA circulate the job order to the applicable labor organizations and in § 655.44 that the employer contact the local union. While some opposed the proposal that employers not party to a collective bargaining agreement would be required to contact a labor organization, others supported the return to this historic practice. Many commenters expressed concern about an employer's ability to discern when and what type of labor organization contact was required, finding the phrase, where the occupation or industry is traditionally or customarily unionized, vague. These commenters feared that using this language meant employers and the CO would disagree about when labor organization contact was required. Some suggested changing or removing this language.
After reviewing the comments, we have decided to remove this requirement from the employer's recruitment steps in § 655.44, and to retain the requirement that the SWA circulate the job order to the applicable labor organizations under this section. We believe this modification will eliminate duplicative efforts and resolve concerns about an employer's ability to determine when and what type of labor organization contact is required. The CO, in consultation with the SWA, will make a determination about whether labor organization contact is required and include specific directions to the SWA in the Notice of Acceptance, as specified in paragraph (b)(6) of this section. Under the Final Rule, an employer will neither have to determine when such contact is required nor have to contact the local union; rather, the Notice of Acceptance will notify the employer whether the CO has directed the SWA to initiate such contact.
While the standard used for labor organization contact is based on historical knowledge and practice,
In addition to commenting on the return to this long-standing program requirement, some commenters responded to our request for suggestions on how to best determine the circumstances which would trigger the requirement for contacting labor organizations. Some commenters suggested we specifically identify certain industries and/or occupations as customarily unionized and require contact with organizations which represent workers in those occupations/industries. Other commenters suggested that we and/or the SWAs work together with labor organizations to develop a list of organizations and/or an email listserv to be publicized for purposes of ensuring appropriate and consistent application of the contact requirement. We appreciate the suggestions for the circumstances or criteria for contacting labor organizations. Specifically, we have taken under advisement the suggestion that we develop a list of organizations for the uniform application of the contact requirement. Some commenters noted the fluidity of unionized occupations over time. We are also mindful that unionization within industries, occupations, and areas of intended employment is not uniform. Because of this lack of uniformity, we do not think it is appropriate to base the contact requirement on a specified industry or occupation. Rather than create a general rule in the regulation, we think that a list of labor organizations to be contacted must focus on specific occupations in specific areas of intended employment and must be responsive to trends in the marketplace. Therefore, we believe retaining the labor organization contact requirement as proposed in paragraph (b)(5) of this section will most appropriately include labor organizations in the U.S. labor market test. We will notify the public when such a list is devised. We will work closely with the SWAs to ensure a complete and appropriate test of the labor market, including contacting the applicable labor organizations, is made before approving an
Some commenters offered suggestions about the particular entities that should be contacted with respect to this requirement. These suggestions included requiring contact with a specific federation of labor
Finally, some commenters proposed that we require employers to prove contact with labor organizations. As this Final Rule requires the SWA, not the employer, to initiate contact with labor organizations as a component of testing the U.S. labor market, the proof suggested by these commenters is not necessary.
One labor and worker advocacy organization expressed general support for the application process described in the proposed rule and agreed with the provisions ensuring that only the final job order is used and an employer may not commence recruitment until the CO accepts the modified job order. Like the commenter, we believe the final, approved version of the job order, containing the applicable minimum benefits, wages, and working conditions, is essential to an appropriate test of the U.S. labor market.
Some commenters expressed support for the regulations requiring employers to submit a recruitment report, asserting that the requirement makes it more difficult for unscrupulous employers to bypass U.S. workers in favor of more vulnerable foreign workers. We agree that the requirement adds accountability and supports program integrity. Further discussion of the recruitment report provision can be found in the discussion of § 655.48.
In the NPRM, we proposed posting employers' H–2B job orders, including modifications and/or amendments approved by the CO, on an electronic job registry to disseminate the job opportunities to the widest audience possible. The electronic job registry was initially created to accommodate the posting of H–2A job orders, but we proposed to expand the electronic job registry to include H–2B job orders. As proposed, the CO would post the job orders on the electronic job registry after accepting an
Many commenters supported the introduction of the electronic job registry, viewing it as a means to increase the program's transparency and improve U.S. worker awareness of and access to nonagricultural jobs. Some also contended that the electronic job registry will facilitate earlier and more frequent detection of program abuse.
Commenters supporting the introduction of the electronic job registry suggested expanding electronic job registry postings to the
One commenter suggested that the job opportunity appear in the electronic job registry until the end of the certification period, rather than just the recruitment period. As articulated in the NPRM, the purpose of posting job orders on the electronic job registry is to serve as an effective, useable tool for alerting U.S. workers to jobs for which employers are recruiting H–2B workers. These jobs are accessible to the public through the Department's resources, including its One-Stop Career Centers, and through a link to the electronic job registry on the OFLC's Web site
One commenter suggested we give H–2B workers access to the electronic job registry so that they can find other H–2B employment, if they are displaced (
One commenter asserted that an
We also received a suggestion that we create a simple mechanism, such as an email listserve, for notifying interested parties, such as labor organizations who may have unemployed members seeking employment in new areas, of job opportunities. While the Final Rule adopts the electronic job registry provisions as proposed, we will also work with the SWAs to devise procedures to further publicize the electronic job registry.
We proposed to permit an employer to request to amend its
At the same time, we proposed certain limitations to ensure that these job opportunities are not misrepresented or materially changed as a result of such amendments. Specifically, as proposed, the employer may request an amendment of the
In addition, we proposed to permit minor changes to the period of employment at any time before the CO's final determination. However, the NPRM stated such amendments to the period of employment may not exceed 14 days and may not cause the total period to exceed 9 months, except in the event of a demonstrated one-time occurrence. This limitation to 14 days was designed to ensure that the employer had a legitimate need before commencing the registration process and accurately estimated its dates of need.
As proposed, the employer must request any amendment(s) to the
We received a few comments on this proposed provision. One commenter noted that the following sentence appeared in the proposed rule at paragraph (c) of this section, but not at paragraphs (a) or (b) of this section: “In considering whether to approve the request, the CO will determine whether the proposed amendment(s) are sufficiently justified and must take into account the effect of the changes on the underlying labor market test for the job opportunity.” The commenter expressed concern that employers requesting one type of amendment would be required to justify their request to the satisfaction of the CO, while employers requesting the other types of amendments would not be required to justify their requests. We had no intention of applying different standards and have modified the language of paragraphs (a) and (b) of this section to include the sentence that appears in paragraph (c) of this section.
Some commenters were suspicious of post-acceptance modification requests, fearing that employers will use this provision as an opportunity to move from their approved
We have not amended the provision to reflect the corresponding change made to the registration provision that allows an employer to adjust its date of need by up to 30 days without having to re-register. Registration covers the entire period of need for up to 3 years. This provision, by contrast, allows an employer to request a deviance of up to 14 days from the previous year, allowing for up to 2 such deviations from the initial dates provided in the registration, as long as the deviations do not result in a total period of need exceeding 9 months.
We proposed to maintain and expand some of the requirements relating to the recruitment of U.S. workers under the 2008 Final Rule. These efforts included a requirement that the employer contact its former U.S. workers; a requirement to contact labor organizations as well as community-based organizations, if appropriate to the occupation and area of intended employment; and a requirement to conduct additional recruitment at the discretion of the CO.
We received a number of comments from individuals, labor organizations, worker advocacy organizations, and coalitions expressing support for the additional recruitment efforts as imperative to ensuring the appropriate test of the labor market and providing U.S. workers with appropriate access to these job opportunities. In addition, we received comments from employers and industry organizations expressing opposition to or concerns about the specific recruitment efforts required in the NPRM. As discussed in more detail below, except for the requirement under § 655.44 that the employer contact labor organizations where the occupation or industry is customarily unionized, the Final Rule retains these recruitment requirements as proposed or with amendments where noted.
Unlike under the 2008 Final Rule, in the NPRM we proposed that the employer conduct recruitment of U.S. workers after its
Several commenters suggested that we take this requirement further by requiring employers to conduct recruitment efforts comparable to ones
We proposed that the employer conduct recruitment of U.S. workers within 14 calendar days from the date of the Notice of Acceptance, unless the CO provides different instructions to the employer in the Notice of Acceptance, and that the employer must accept all qualified U.S. applicants referred by the SWA until the third day before the employer's date of need or the date the last H–2B worker departs for employment, whichever is later. We are amending this requirement, as described below.
We received a number of comments and alternatives for the duration of the recruitment period. For example, several labor organizations and worker advocates proposed that we extend the recruitment period until 3 days before the date of need, while one other labor organization proposed to instead extend the duration for the posting of the job order. Employers and industry commenters generally opposed a longer recruitment period, but expressed willingness to accept a recruitment period of either 30 days or ending 30 days before the date of need.
Most of these comments demonstrate a misunderstanding of the proposal and the difference between the 14-day employer-conducted recruitment period and the SWA referral period. As indicated above, we proposed to require that employers complete specific recruitment steps outlined in §§ 655.42 through 655.46 within 14 days from the date of the Notice of Acceptance. Separate from the employer-conducted recruitment, the NPRM proposed to require the SWA, upon acceptance of the job order and
In addition, we proposed to require employers to report to the SWA the actual date of departure of H–2B workers, if different from the date that is 3 days before the date of need. However, for the reasons discussion at § 655.20(t), in the Final Rule employers will only be required to hire qualified and available U.S. workers until 21 days before the date of need. Employers are therefore relieved of the obligation to report this information to the SWAs.
In the context of the proposal requiring employers to report to the SWA the date of last departure of the last H–2B worker, we specifically solicited comments on whether it should also require employers to inform the Department of the actual number of H–2B workers hired under the approved
We received several comments supporting this proposal. One worker advocacy organization espoused the importance of such a collection based on its value to program integrity. Another commenter supporting this proposal suggested that we implement a reporting requirement that would be triggered at three specific points beginning during the referral period and ending during the period of certified employment (the first report would be at 30 days before the date of need, the second 30 days into the period of employment and the third 30 days before the end of the period of employment). This commenter expressed a concern that we certify more H–2B positions than the employer ultimately fills. Another commenter suggested that we should collect the information about both the number of H–2B and the number of U.S. workers actually hired. Another commenter, a worker advocacy organization, suggested that we should collect the age and gender of H–2B workers who are hired.
Our role in the H–2B program is to certify that the employer has a need to fill a specific number of temporary positions for which the employer is unable to find qualified and available U.S. workers. We do not, however, have control over how many of those positions are ultimately filled with H–2B workers nor the identity of those workers; the names of alien beneficiaries are not captured on ETA Form 9142 since in most cases the identity of the workers is not known at that time. We agree, however, that requiring employers to report the number of H–2B and U.S. workers actually hired, and whether the H–2B workers are hired from within the U.S. or from abroad, is in the interest of overall H–2B program integrity and will assist the Department and other Federal agencies with ascertaining the actual use of the program. This is especially so given the limited number of visas available, because an employer who significantly overstates its need for temporary workers may preclude another employer with a bona fide temporary need from getting visas for workers it equally needs. With respect to comments that we should collect both the number of H–2B and the number of U.S. workers actually hired, our regulations under § 655.48 already require the employer to report the disposition of each U.S. worker who was referred or self-referred to the employer for employment. With respect to the other commenters' suggestion that we collect the age and gender of H–2B workers who are hired by the employer, the Paperwork Reduction Act requires the Department to collect only such
The NPRM provided that employers are not required to conduct employment interviews but that where the employer wishes to conduct interviews with U.S. workers, it must do so by telephone or at a location where workers can participate at little or no cost to the workers. The Final Rule retains this requirement.
We received several comments supporting this proposal. One commenter also suggested that we prohibit employers from interviewing U.S. workers unless it also conducts interviews of H–2B workers. Another commenter proposed that we require employers to promise to be available for interviews during normal business hours throughout the referral period. As indicated in the NPRM and retained in the Final Rule, we have explicitly prohibited employers from offering preferential treatment to H–2B workers, including any requirement to interview for the job opportunity. In addition, both the NPRM and the Final Rule seek to ensure that employers conduct a fair labor market test by requiring employers that require interviews to conduct them by phone or provide a procedure for the interviews to be conducted in the location where the worker is being recruited so that the worker incurs little or no cost. With respect to the commenters' suggestion that the employer be required to be available to conduct interviews during normal business hours, we are declining to adopt this suggestion as it may unnecessarily infringe on the employer's business operations. However, an employer who requires a U.S. worker to undergo an interview must provide such worker with a reasonable opportunity to meet such a requirement. The purpose of these requirements is to ensure that that the employer does not use the interview process to the disadvantage of U.S. workers. For all the reasons articulated above, we are retaining this provision as proposed.
We proposed to retain the 2008 Final Rule requirement that all employer advertisements contain terms and conditions of employment no less favorable than those offered to the H–2B workers and reflect, at a minimum, the terms and conditions contained in the job order. The NPRM also required that all advertisements direct applicants to apply for the job opportunity through the SWA. We have made revisions to this provision to clarify which terms and conditions of employment contained in job orders must be included in advertisements, and to clarify that the employer must comply with but need not actually include the job order assurances in advertisements.
We received a number of comments on this proposal. The majority of commenters expressed strong support for extending job order requirements to all recruitment, including the requirement to identify when the employer is offering board, lodging or facilities. Other commenters expressed concern that including all of the job order requirements in advertisements may prove to be costly and burdensome, particularly where it would result in lengthy and expensive newspaper advertisements. Another commenter, referring to the H–2A program, although supporting full disclosure, suggested that the job order requirements often serve to discourage rather than encourage applicants from pursuing the job opportunity due to the sheer length and complexity of information required to be included. This commenter suggested that we should require that a summary form be provided to the applicants.
In considering the issues raised by commenters, we have amended this section to ensure that all advertisements include, at a minimum, the terms and conditions of employment necessary to apprise U.S. workers of the job opportunity and have clarified that those terms and conditions must conform to the job order assurances, required by the amended § 655.18(a), but need not contain those assurances.
Based on the commenter's suggestions and in order to ensure that all recruitment complies with the requirements applicable to job orders, we have amended the language of this section to clarify that advertisements need not include the text of assurances applicable to job orders, but that they must include the minimum terms and conditions of employment. These minimum terms and conditions of employment include a requirement that the employer make the appropriate disclosure when it is offering or providing board, lodging or facilities, as well as identify any deductions, if applicable, that will be applied to the employee's pay for the provision of such accommodations. These minimum content requirements will address industry concerns about the cost inherent in placing potentially lengthy advertisements, while also ensuring that entities disclose all necessary information to all potential applicants. In addition, as a continuing practice in the program, employers will be able to use abbreviations in the advertisements so long as the abbreviation clearly and accurately captures the underlying content requirement.
In order to assist employers to comply with these requirements, we provide below specific language which is minimally sufficient to apprise U.S. applicants of required items in the advertisement, and which is intended to assist the employer in complying with such requirements. In response to industry concerns over the potential length and cost of advertising, the employer may also abbreviate some of this language so long as the underlying guarantee can be clearly understood by a prospective applicant. The employer may include the following statements in its advertisements: 1. Transportation: Transportation (including meals and, to the extent necessary, lodging) to the place of employment will be provided, or its cost to workers reimbursed, if the worker completes half the employment period. Return transportation will be provided if the worker completes the employment period or is dismissed early by the employer. 2. Three-fourths guarantee: For certified periods of employment lasting fewer than 120 days: The employer guarantees to offer work for hours equal to at least three-fourths of the workdays in each 6-week period of the total employment period. For certified periods of employment lasting 120 days or more: The employer guarantees to offer work for hours equal to at least three-fourths of the workdays in each 12-week period of the total employment period. 3. Tools, equipment and supplies: The employer will provide workers at no charge all tools, supplies, and equipment required to perform the job.
Another commenter expressed concern that some employers have a legitimate need to keep the terms and conditions of employment confidential. Although we recognize that some employers may wish for more discretion in recruitment, our statutory mandate requires that the employer be permitted to hire H–2B workers only in circumstances where there are no qualified and available U.S. workers, and where the employment of those H–2B workers does not have an adverse effect on the wages and working conditions of U.S. workers. Therefore, in the context of the H–2B program, an
As indicated above, we retained the requirement that all recruitment conducted under this section and §§ 655.42–655.46 comply with the prohibition on preferential treatment and also that each job opportunity be bona fide as required by § 655.18. Some commenters objected to the bona fide job opportunity requirement because it permits the CO to require the employer to substantiate any job qualification or requirement contained in the job order. In particular, one commenter was concerned that this requirement may preclude the employers from conducting background checks.
Our longstanding policy on job qualifications and requirements has been that they must be customary;
This interpretation is consistent with program history, primarily under the General Administration Letter 1–95,
Some comments addressed the proposal that employer-conducted recruitment must direct all applicants to the SWA. Most commenters supported this proposal, indicating that this requirement will enhance the likelihood that workers will be fully apprised of the job opportunities. A SWA expressed concern over the availability of funding to perform the additional referral functions. We have retained this requirement because we believe that allowing SWAs to apprise job applicants of the terms and conditions of employment is an essential aspect of ensuring an appropriate labor market test. However, notwithstanding the many benefits of being referred to the job opportunity by the SWA, U.S. workers may contact the employer directly and the Final Rule requires that employers include their contact information to enable such direct contact. With respect to the SWAs' concerns regarding the availability of sufficient funding, we anticipate that the enhanced role of the SWA and the additional duties inherent in that role will be offset through the elimination of the requirement to conduct employment verification activities.
We proposed to continue to require the employer to place two advertisements in a newspaper of general circulation for the area of intended employment that is appropriate to the occupation and the workers likely to apply for the job opportunity and to permit the employer to place the advertisement(s) in a language other than English where the CO determines it appropriate. However, we proposed to eliminate an employer's option to replace one of the newspaper advertisements with an advertisement in a professional, trade, or ethnic newspaper. Instead, we proposed to allow the CO the discretion to require an employer to place such an advertisement in addition to the required newspaper advertisements where such an advertisement is appropriate for the particular occupation and area of employment. We are retaining this provision as proposed with minor clarifying edits.
Several commenters agreed that we should continue to require newspaper advertisements. Others disagreed. One commenter indicated that newspaper advertisements are outdated as a recruitment source and are increasingly unavailable due to an overall reduction in newspapers with print editions. This commenter expressed regret that we did not use this rulemaking as an opportunity to replace this requirement with recruitment efforts that are more reflective of the current labor market realities and the decline in newspaper subscriptions and readership. A worker advocacy group suggested that eliminating newspaper advertising will have a minimal impact on domestic worker recruitment because very few U.S. workers search for jobs through newspapers. This commenter recommended that the regulations instead incorporate innovations which are now widely used by employers of domestic workers to recruit new employees, such as web-based advertising on job search sites and participation in job fairs. Another commenter offered as an alternative to newspaper advertising the use of road signs as more apt to appeal to workers typically employed in the H–2B program. Industry commenters also noted the expense of placing newspaper advertisements.
While several other commenters offered suggestions for disseminating information about the job opportunity, they did not indicate whether these alternatives should be considered in addition to newspaper advertisements or instead of them. Consequently, these suggestions are further discussed under § 655.46. It is worth noting, however, in response to commenters who suggested web-based advertisements, this Final Rule requires the CO to post H–2B job orders on the electronic job registry maintained by the Department in order to widely disseminate the job opportunities.
After due consideration, we continue to believe that newspapers of general circulation remain an important source for recruiting U.S. workers because they are among the means most likely to reach the broadest audiences, particularly those interested in positions typically found in the H–2B program. Newspaper advertisements are also recognized as information sources likely to generate informal, word of mouth referrals. Although we do not dispute that available statistics on subscriptions and readership favor a view that these
We received no comments on the proposal to prohibit substitution of ads between newspapers and trade and ethnic publications. Therefore, after considering alternatives to newspaper advertisements proposed by commenters, we have determined that no single alternative method of advertising uniformly applies to the variety of H–2B job opportunities or is likely to reach as broad a potential audience. For that reason, the Final Rule retains the proposed section in its entirety with a clarifying edit that requires the employer that placed any advertisement in a language other than English to retain the translations of such advertisements, as required by § 655.56.
The NPRM proposed to require the employer to contact by mail or other effective means its former U.S. workers who were employed by the employer in the same occupation and the place of employment during the previous year before the date of need listed in the
We received a number of comments from labor organizations and worker advocates supporting the expanded requirement contained in the proposal. Most of the comments focused on the importance of offering access to these job opportunities to the greatest number of U.S. workers, particularly during times of high unemployment. One commenter endorsed the expanded requirement but indicated that the INA includes a preference for U.S. workers which is unlimited. According to this commenter, U.S. workers quit their jobs for a variety of reasons and should not be disqualified in this fashion.
We agree with this commenter and for that reason the NPRM proposed to limit the exception to the contact requirement only to workers who were dismissed for cause or who abandoned the worksite. For purposes of this provision, abandonment has the same meaning as it does in § 655.20(y),
The same commenter raised further concerns about an employer being released from contact requirements where an employee was terminated for cause, noting experience in the program where employers use termination for cause or threat of termination as a means for retaliating against workers who were dissatisfied with illegal treatment. Under the NPRM, as well as this Final Rule, each employer must affirmatively attest that it has not engaged in unfair treatment as defined in § 655.20(n),
Another commenter suggested that we expand the window for contacting former U.S. workers who have been laid off within 120 days before the date of need to layoffs within 180 days before the date of need. Because the provision as proposed and retained in the Final Rule requires the employer to contact all its former U.S. workers who were employed by the employer in the occupation at the place of employment in the last year, expanding the requirement to contact those laid off within 180 days will not have any effect, as those workers are already included in the provision. Therefore, we are not accepting this proposal.
A few commenters addressed the issue of protecting workers whose hours have been reduced by the employer. One commenter suggested that we redefine layoff to include a separation following a 25 percent reduction in hours in a 180-day period preceding the employer's date of need in order to expand the exposure of U.S. workers to the job opportunity. As discussed in the preamble to § 655.20(w), there is no definitive way to determine whether a worker quit because of a reduction in hours. The suggested requirement would place an unnecessary burden both on employers seeking to comply with the provision and Departmental employees seeking to verify compliance, and we therefore do not accept this recommendation.
Finally, other commenters proposed that we require the employer to contact laid off employees in accordance with the terms governing recall for the duration of the recall period provided in the collective bargaining agreement that covers the employees in the occupation and area of intended employment. We have addressed this commenter's concerns by proposing a requirement that the employer contact former employees employed by the employer during the prior year. In addition, the employer is separately obligated to comply with the terms and conditions of the bargaining agreement, to the extent that the recall provisions cover workers employed by the employer beyond the prior year, pursuant to both the agreement and the requirement at § 655.20(z).
Therefore, the Final Rule retains this provision as proposed.
We proposed to require employers to formally contact local labor organizations to inquire about the availability of U.S. workers to fill the job opportunities for which the employer seeks to hire H–2B workers where union representation is customary in the occupation or industry. We have decided to remove this requirement.
We received a number of comments on the proposal to expand the contact requirement with labor organizations beyond those employers who are party to a collective bargaining agreement (CBA). Most labor organizations and worker advocates expressed support for the proposed requirement and offered suggestions to enhance it,
We agree that the provision should be deleted. We realize that this requirement is duplicative of the activity undertaken by the SWAs in § 655.33, where the Notice of Acceptance will direct the SWAs to circulate a copy of the job order to both the State Federation of Labor in the States(s) in which work will be performed and to the local unions representing employees in the same or substantially equivalent job classification in the area of intended employment, where the occupation or industry is traditionally or customarily unionized. For this reason, we have decided to remove this requirement, but retain in this Final Rule a mechanism by which labor organizations are still contacted, increasing the exposure of such job opportunities to U.S. workers while reducing the burden on the employer. For a more detailed discussion about contacting labor organizations and the Department's request for suggestions on how to best determine the circumstances which would trigger the requirement for contacting labor organizations, please see § 655.33 above.
The NPRM proposed to require employers that are party to a CBA to provide written notice to the bargaining representative(s) of the employer's employees in the job classification in the area of intended employment. Where there is no bargaining representative of the employer's employees, we proposed to require the employer to post a notice to its employees of the job opportunities for at least 10 consecutive business days in at least two conspicuous locations at the place of intended employment or in some other manner that provides reasonable notification to all employees in the job classification and area in which work will be performed by the H–2B workers. We requested comments on the likelihood this requirement will result in finding qualified and available applicants.
The majority of comments supported this proposal. Most of the commenters indicated that keeping the bargaining representative apprised of these job opportunities will likely result in the job opportunities being available to U.S. workers. Most commenters specifically supported the new alternative requirement that the employer post notice of the job opportunity. A few commenters offered suggestions for enhancing the requirement, one of them proposing that the notice of the job opportunity be posted at each facility owned and operated by the employer. A few commenters suggested that we extend the duration of the posting. These suggestions ranged from requiring a posting through the duration of the referral period to a recommendation to increase the posting duration from 10 days to 14 days, or 30 days in some instances.
After thorough consideration of these comments, we are unable to accept the proposal which would require the posting of the notice at each facility owned and operated by the employer, as this requirement is overbroad both with respect to the burden on the employer and with respect to the administrative feasibility of oversight and enforcement. We have, however, adopted the other commenters' suggestion to extend the duration of the posting from 10 to 15 consecutive business days. This increase in duration will provide greater opportunity for the employer's workers to learn of the job opportunity and enhance the likelihood that unemployed U.S. workers will learn of the job opportunity.
We also received comments opposing this proposal. Most of these comments generally objected to the requirement to contact the bargaining representative and indicated that the contacts will not result in meaningful candidates for the job opportunities, some indicating that most referred U.S. workers cannot be relied upon to complete the duration of the certified period of employment. Other commenters specifically objected to the posting requirement. One employer association whose members are subject to special procedures indicated infeasibility of complying with the requirement due to the itinerant nature of their work.
The requirement to contact the bargaining representative(s) is intended to ensure that each employer's existing U.S. workers receive timely notice of the job opportunities, thereby increasing the likelihood that those workers will apply for the available positions for the subsequent temporary period of need and that other U.S. workers, possibly including former workers, will be more likely to learn of the job opportunities as well. The posting of the notice at the employer's worksite, in lieu of formal contact with a representative when one does not exist, is intended to ensure that all of the employer's U.S. workers are afforded the same access to the job opportunities for which the employer intends to hire H–2B workers. In addition, the posting of the notice may result in the sharing of information between the employer's unionized and nonunionized workers and therefore result in more referrals and a greater pool of qualified U.S. workers. With respect to one commenter's concern regarding the ability of an itinerant employer to comply with the posting requirement, we included in the NPRM and have retained in the Final Rule a degree of flexibility for complying with this requirement; specifically, the regulation includes the language “or in some other manner that provides reasonable notification to all employees in the job classification and area in which the work will be performed by the H–2B workers.” This permits the employer to devise an alternative method for disseminating this information to the employer's employees, such as posting the notice in the same manner and location as for other notices, such as safety and health occupational notices, that the employer is required by law to post. The Final Rule includes such flexibility and provides that electronic posting, such as displaying the notice prominently on any internal or external Web site that is maintained by the employer and customarily used for notices to employees about terms and conditions of employment, is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section. However, under this Final Rule, employers who are subject to special procedures under the program will continue to conduct recruitment activities in accordance with those procedures unless or until such a time when these procedures are modified or withdrawn by the Administrator, OFLC in accordance with the regulatory requirements under § 655.4, except to the extent that such procedures are in direct conflict with these regulations.
For all of the reasons discussed above, we are retaining the requirement that the employer contact the bargaining representative or post a notice of the job opportunity and are extending the duration for such posting from 10 to 15 business days.
In addition to requiring the employer to contact the bargaining representative or post a notice of the job opportunity, the NPRM included a proposal to, where appropriate, require the employer to contact community-based organizations to disseminate the notice of the job opportunity. Community-based organizations are an effective means of reaching out to domestic workers interested in specific
We received several comments on this proposal. The majority of commenters expressed strong support for the requirement that the employer contact community-based organizations, indicating that these organizations in many cases possess specialized knowledge of local labor market conditions and practices, and are in the position to assist with recruitment efforts, thus ensuring a complete test of the labor market as well as assist the CO with identifying potential problems with the offered terms and conditions of employment.
Commenters opposing this proposed requirement suggested that it will not result in meaningful applicants for the job opportunity. We note that, not unlike additional recruitment, contact with community-based organizations is intended to broaden the pool of potential applicants and assist the many unemployed U.S. workers with finding meaningful job opportunities. These organizations are especially valuable because they are likely to serve those workers in greatest need of assistance in finding work, particularly with respect to H–2B occupations that require little or no specialized knowledge. Although we will not require each employer to make this type of contact, we have determined that keeping this provision in the Final Rule will assist with fulfilling the intent of the H–2B program and enhancing the integrity of the labor market test. Therefore the Final Rule retains the requirement that the employer, where ordered by the CO, contact community-based organizations.
Where the CO determines that the employer-conducted recruitment, described in §§ 655.42 through 655.45, is not sufficient to attract qualified U.S. workers, the proposed rule authorized the CO to require the employer to engage in additional recruitment activities. In addition to proposing that the CO require additional recruitment, we solicited suggestions from the public on the recruitment means most suitable for the CO to require. We also proposed that the CO would specify the documentation or evidence that the employer must maintain as proof it met the additional recruitment step(s). We are retaining this provision as proposed with minor clarifying edits.
We received many comments on this proposal. The majority of commenters expressed strong support for the proposal and indicated that the additional recruitment requirement is particularly welcome in times of high unemployment because it will ensure that U.S. workers have the broadest exposure to these job opportunities. In contrast, several other commenters objected to the proposal on the ground that it provides the CO with potentially unfettered discretion to impose additional requirements on employers; some requested clarification of when the additional recruitment will take place.
We also invited comments on the proposed additional recruitment methods, including examples of the types of recruitment typically conducted in specific industries, occupations, or job classifications. Several commenters provided suggestions for potential recruitment sources such as the use of the employer's Web site, job search Web sites (such as Craig's List or Monster.com), staffing agencies, and other outreach efforts. Some commenters also suggested recruitment efforts they use or have used in the past to recruit U.S. workers. However, none of the commenters provided information about the types of recruitment that are typically conducted in specific industries. We thank the commenters for their input. Where appropriate, the CO will draw upon these suggestions when making a determination about what types of additional recruitment are appropriate. We have made a clarifying edit in this section, adding the word additional to indicate that CO-ordered efforts to contact community-based organizations and/or One-Stop Career Centers are in addition to the requirements in §§ 655.16 and 655.45.
A few comments reflected confusion over the requirement, and encouraged us to expand it beyond areas of substantial unemployment. Others commenters requested that we revisit the requirement and proposed alternatives for redefining an area of substantial unemployment.
Our intention in requiring additional recruitment including, where appropriate, in areas of substantial unemployment, is predicated on the belief that more recruitment will result in more opportunities for U.S. workers. In addition, we recognize that the increased rate of innovation in the arena of technology, including its implications for communication of information about job opportunities, is changing the way many U.S. workers search for and find jobs. In part due to these changes, the inclusion of this requirement is intended to allow the CO flexibility to keep apace with the ever-changing labor market trends.
In response to comments about not limiting additional recruitment only to job opportunities located in areas of substantial unemployment, we agree that the recruitment sources the CO uses should go beyond just the areas of substantial unemployment, which is why we only listed areas of substantial unemployment as one example of an additional source and why we solicited information about other available sources. The requirement as proposed and retained is intended to provide the CO with discretion to order additional positive recruitment whenever the CO deems it to be appropriate. This discretion is also not an absolute requirement but permits us to ensure the appropriateness and integrity of the labor market test and determine the appropriate level of recruitment based on the specific situation. The COs, with advice from the SWAs which are familiar with local employment patterns and real-time market conditions, are well-positioned to judge where additional recruitment may or may not be required as well as the sources that should be used by the employer to conduct such additional recruitment.
For example, it may be reasonable to require additional recruitment for a job that requires little training or experience in an area of substantial unemployment, since a larger group of available workers would be qualified for the job. While the employer will be required to conduct all the recruitment efforts required under this section and §§ 655.42–655.46 in certain circumstances, in other
We also note that OIG's October 17, 2011 report recommended the Department reassess the existing recruitment provisions that require employers with itinerant positions subject to special procedures to actively recruit only in the State of initial employment. While recruitment requirements prior to this Final Rule did not necessarily limit recruitment of workers to just one State, neither did those provisions require recruitment outside the area of intended employment, in most cases. This Final Rule expands required recruitment activity, when appropriate for labor market test quality, to additional areas and sources likely to result in U.S. worker applicants.
Although we recognize that some commenters may be concerned over the discretion the CO has to order additional positive recruitment, as discussed above, such discretion is necessary to permit the CO the flexibility to ensure an adequate test of the labor market. However, any additional positive recruitment will be conducted in addition to, and occur within the same time period as the circulation of the job order and the other mandatory employer-conducted recruitment described above, and will not result in any delay in certification. While we may not endorse a specific commercially-available publication or Web site, the sources used by the CO will include, but will not be limited to: additional print advertising; advertising on the employer's Web site or another Web site; contact with additional community-based organizations that have contact with potential worker populations; additional contact with labor unions; contact with faith-based organizations; and radio advertisements. When assessing the appropriateness of a particular recruitment method, the CO will take into consideration all options at her/his disposal, including relying on the SWA experience and expertise with local labor markets, and where appropriate, will opt for the least burdensome and costly method(s).
We proposed to require SWAs to refer for employment individuals who have been informed of the details of the job opportunity and indicate that they are qualified and will be available for employment. We also eliminated the requirement that the SWAs conduct employment (I–9) eligibility verification. We are retaining the provision as proposed in part and revising the proposed provision in other part.
We received three comments on this proposal to eliminate the requirement that the SWAs conduct employment (I–9) eligibility verification. One commenter indicated a preference that the SWAs continue to conduct employment eligibility verification, while another supported its elimination. None of these commenters provided a rationale for its opinion.
In light of limited resources, we have determined that the requirement that SWAs conduct employment eligibility verification of job applicants is duplicative of the employer's responsibility under the INA. In addition, the INA provides that SWAs may, but are not required to, conduct such verification for those job applicants they refer to employers. DHS regulations permit employers to rely on the employment eligibility verification voluntarily performed by a State employment agency in certain limited circumstances.
We also received several comments regarding the proposal to require SWAs to refer for employment individuals who have been informed of the details of the job opportunity and who indicate that they are qualified and will be available for employment. Some commenters, primarily worker advocates and labor organizations, commended the Department for ensuring that U.S. workers are provided with the opportunity to be fully apprised of the job opportunity prior to being referred to the employer. These commenters indicated that this will lead to greater opportunities for U.S. workers as well as curb program abuse.
Other commenters focused more on the proposed role of the SWAs in referring U.S. applicants to the employer. One commenter understood the provision as proposed to require SWAs to inform prospective U.S. workers of the details of the job opportunity and to screen them for qualifications and availability. Other commenters, namely employer associations and employers, expressed concern regarding this provision, particularly in the context of the referral period proposed in the NPRM, indicating that it will result in an increase of disingenuous applicants or unqualified workers replacing available and qualified H–2B workers that the employer already secured under an arduous process. Two State agencies expressed some uncertainty over the scope of their duties in the context of this proposal and their hope that we will provide them with resources to conduct additional employee screenings and referrals resulting from the new recruitment requirements.
As stated in the NPRM, it is our intention that the elimination of the employment eligibility requirement will allow the SWAs to focus their staff and resources on ensuring that U.S. workers who come to them are apprised of job opportunities for which the employer seeks to hire H–2B workers, which is one of the basic functions of the SWAs under their foreign labor certification grants, and to ensure such workers are qualified and available for the job opportunities. This does not mean that every referral must be assisted by SWA staff to be apprised of the job opportunity. To the contrary, many H–2B referrals are not staff-assisted but are instead self-referrals and we have no intention of interfering with the current processes established by most SWAs to handle these job orders. However, to the extent that staff are directly involved in a referral, we expect that the referrals made would be only of qualified workers. We do not expect this to be an additional burden on SWA staff.
Moreover, we do not presume that the judgment of the SWAs as to an applicant's qualifications is irrebuttable or a complete substitute for the employer's business judgment with respect to any candidate's suitability for employment. However, to the extent that the employer does not hire a SWA referral who was screened and assessed as qualified, the employer will have a heightened burden to demonstrate to us that the applicant was rejected only for lawful, job-related reasons.
With respect to the comments expressing concerns over the ability of the employer to rely on U.S. workers completing the duration of the certified period of employment, the SWAs will be required to, as part of the screening process, ascertain that the unemployed U.S. applicants who request referral to the job opportunity are sufficiently informed about the job opportunity, including the start and end dates of employment and that they commit to accepting the job offer if extended by the employer. However, as discussed under § 655.57, in recognition that some employers may nonetheless require relief in the form of replacing U.S. workers who fail to show up or complete the certified period of employment, we have developed a
Consistent with the requirements of the 2008 Final Rule, we proposed to continue to require the employer to submit to the Chicago NPC a signed recruitment report. Unlike the 2008 Final Rule, however, we also proposed to require the employer to send the recruitment report on a date specified by the CO in the Notice of Acceptance instead of at the time of filing its
We received a number of comments offering strong support for the requirement that employers document that they have conducted the required recruitment efforts. One commenter suggested that we expand the recruitment report and require the employer to list all U.S. and foreign-born applicants for the job opportunity. The provision, as proposed and retained, requires the employer to provide the name and contact information of each U.S. worker who applied or was referred for the job opportunity. This reporting allows us to ensure the employer has met its obligation and to meet our responsibility to determine whether there were insufficient U.S. workers who are qualified and available to perform the job for which the employer seeks certification. In addition, when WHD conducts an investigation, WHD may contact U.S. workers listed in the report to verify the reasons given by the employer as to why they were not hired, where applicable. While we do not foreclose the possibility of expanding the content of the recruitment report in the future, requiring that employers identify all applicants, including foreign workers, would impose a heavy burden on employers and is not necessary for carrying out our responsibilities under the H–2B program.
Some commenters objected to the record-keeping requirements, generally and as included in the proposed rule. Because these objections are not specific to the recruitment report, we address them in the discussion of document retention requirements. Other commenters suggested that the recruitment report be made available to the public so they may provide input to the CO on the contents before a Final Determination is made on the
We proposed to retain the same requirements under this provision as proposed in the 2008 Final Rule. We are retaining this provision as proposed with minor clarifying edits.
We received no comments on the substance of this provision. However, we received a number of comments critical of our failure to provide processing timeliness or a deadline for issuing a final determination. One commenter referred to our past performance before the attestation-based model in the 2008 Final Rule and argued that the processing of applications under the pre-2008 Final Rule system involved delays and that we have fallen short of our processing targets even under the 2008 Final Rule. This commenter, along with others, proposed that we commit to a deadline such as a return to the 60 days discussed in the preamble of the 2008 Final Rule or 30 days.
Unlike the other programs we administer, the INA does not provide a statutory deadline for processing H–2B applications. In order to maximize integrity in the H–2B program it is imperative that we take the time necessary to carefully review each application and to make certain that each application we review represents a legitimate need for temporary workers. We will be implementing a completely reengineered program with a new registration process, new recruitment requirements, and new obligations that must be reviewed. OFLC has no baseline for these processes and therefore cannot predict at this time the likely processing time parameters. While we anticipate that registration, with its emphasis on the determination of temporary need, will decrease application adjudication times, we cannot know to what extent that additional process will streamline processing times. However, as is our practice, we will make every effort to timely process each application and to keep employers and other program users apprised of current processing times.
In addition, we received a few comments requesting that third parties be allowed to participate in the adjudication of a particular
Responsibility for the adjudication of each
For the reasons discussed above, we are retaining this provision as proposed with a minor clarifying edit to paragraph (b) of the regulation that replaces “grant, partially grant or deny” with “certify or deny.” This clarification was based on our determination that the word certify encompasses both determinations to certify or partially certify an
In the majority of cases, the certification determination will rest on
We received only one comment specific to the proposed regulatory provision. This commenter encouraged us to add a clause to the certification criteria indicating that lawful job-related reasons for rejecting U.S. workers do not include requirements which are applied to U.S. workers but not to H–2B workers.
As discussed elsewhere in this Final Rule, these regulations expressly prohibit an employer from offering preferential treatment to H–2B workers. That obligation extends to all aspects of the H–2B program, including recruitment and consideration of U.S. workers. Although an employer may not reject U.S. workers based on requirements that would not otherwise disqualify an H–2B worker, we do not believe that a change in this particular provision is needed to clarify this requirement.
Additionally, we proposed to clarify that we will not grant certifications to employers that have failed to comply with one or more sanctions or remedies imposed by final agency actions under the H–2B program. We did not receive any comments on this proposal. Accordingly, we are retaining this section as proposed except that we have clarified that the employer must comply with criteria necessary to grant the certification, rather than all program criteria. This clarification was necessary, as the criteria for certification cannot reasonably encompass the employer's future compliance, as contemplated by some of the program requirements. Such compliance is addressed through post-certification audits, integrity measures and enforcement activities.
We proposed that the CO use next day delivery methods, and preferably, electronic mail, to send the Final Determination letter to the employer. We are doing so in an effort to expedite the transmittal of information and introduce efficiency and cost savings into the application determination process. The proposed rule also provided that the CO will send the approved certification to the employer, with a copy to the employer's attorney or agent, if applicable. This is a departure from the 2008 Final Rule. This change in procedure has resulted from years of OFLC program experience evidencing complications in the relationship between employers and their agents or attorneys. Because the employer must attest to the assurances and obligations contained in the
We received only one comment of general approval about the proposal to use next day delivery and no comments addressing the proposal to send the approved certification to the employer.
For the reasons above, we are retaining the provisions as proposed with one minor edit clarifying that when and if the
The NPRM proposed to retain the general provisions on denying certifications from the 2008 Final Rule, except that we proposed that the CO will send the Final Determination letter by means guaranteeing next day delivery to the employer, with a copy to the employer's attorney or agent. Under the proposal, the Final Determination letter will continue to state the reason(s) that the certification was denied, cite the relevant regulatory provisions and/or special procedures that govern, and provide the applicant with information sufficient to appeal the determination. We received no comments on this proposal and retain the provision as proposed with a minor clarifying edit that electronic mail is encompassed in means normally assuring next day delivery.
The NPRM proposed to retain the 2008 Final Rule provision explicitly providing that the CO may issue a partial certification, reducing either the period of need or the number of H–2B workers requested, or both. The proposed rule clarified that the CO may reduce the number of workers certified by subtracting the number of qualified and available U.S. workers who have not been rejected for lawful job-related reasons from the total number of workers requested. The Final Rule retains this provision as proposed.
We received few comments on this proposal. The majority of commenters supported the requirement that the employer not be permitted to hire H–2B workers unless it has demonstrated that no qualified U.S. workers are available. In addition, most commenters supported the proposal that an employer must consider for employment and hire all qualified and available U.S. workers who are referred to the employer within the referral period.
Many industry commenters expressed concern over the need to have a stable workforce throughout their certified period of need. One commenter requested that we provide a re-certification process to allow employers to hire H–2B workers when U.S. workers become unavailable. These commenters expressed significant concerns over the viability of their businesses if, after expending significant resources to hire H–2B workers, those workers are displaced or not hired due to the requirement that the employer hire each U.S. worker who is qualified and available for employment and the U.S. workers hired do not report for work or fail to complete the work contract period. We agree with these commenters and have added a new § 655.57 to address this issue.
We proposed to retain the provision in the 2008 Final Rule that an approved temporary labor certification is only valid for the period, the number of H–2B positions, the area of intended employment, the job classification and specific services or labor to be performed as provided on the
Most commenters supported the proposal to limit the validity of the labor certification as proposed. We received one comment suggesting that the transfer to a successor in interest be limited to legally documented mergers
Similar to the prohibition on transfers of an
Therefore, we are retaining this provision as proposed except that we have clarified that each temporary labor certification is valid for the period approved on the
We proposed to add a section that delineates all of the document retention requirements, including the period of time during which documents must be retained. These retention requirements were included solely under their individual sections under the 2008 Final Rule. The document retention requirements apply to all employers who file an
In addition, we proposed to require employers to make these documents and records available to the Administrator, OFLC within 72 hours following a request. In response to comments, we have made certain clarifying edits to this provision, but are retaining most of the substantive aspects as proposed.
The majority of commenters supported this proposal because it requires employers to document, rather than merely attest to, compliance. One commenter expressed strong support for this requirement and suggested that we expand it to include records on the amounts spent by the employer for transportation, subsistence, visa fees, and other costs which the employer is prohibited from shifting to its workers. Another commenter requested the record keeping requirement be expanded to include records about recruiting fees, including amounts and recipients.
Some commenters objected to the requirement, as generally unnecessary or burdensome in terms of cost and effort required by the employer, while other commenters offered suggestions for enhancing or curbing the requirements related to specific records such as payroll/earning records. Where the substance of those comments is specific to a particular provision in the proposed rule, we will address it there.
We agree with commenters supporting this proposal. The records that the employer is required to retain are invaluable to ensuring program integrity. We use them both in making current determinations, where needed, and in evaluating any future
We disagree with the commenters who opposed the document retention requirement. Document retention has been an integral part of the H–2B program, and the proposed regulation is substantively similar to the existing requirement under the 2008 Final Rule. Moreover, it is essential to the performance of program integrity activities.
One commenter objected to the requirement that the employer make such records available within a 72-hour period, indicating that the requirement is burdensome, or impossible to comply with based on the nature of the employer's business. This commenter further requested clarification of when the timeframe starts and asked us to indicate whether electronic records may be maintained. Other commenters offered suggestions for the timeframe for document retention, one suggesting that all records should be retained for a year after any
We revised paragraph (d) of this section to clarify that the requirement to produce records within a 72-hour period is to produce such records to the Administrator, WHD for enforcement purposes, rather than Administrator, OFLC. When the Administrator, OFLC makes a request to make records available, an employer must comply with the timeframes in the provision governing the request,
Finally, we received several comments addressing the 3-year requirement for document retention. One commenter expressed support for the 3-year retention requirement noting that the familiar requirement will make compliance easy for employers. Another commenter opposed the 3-year retention
In response to these comments, we wish to clarify that employers must maintain all records required in this section for the period of 3 years after the
To reflect changes made to § 655.20, we have added a new subparagraph (c)(6) to this section to require employers to retain records of reimbursement of transportation and subsistence costs incurred by the worker. Additionally, in response to comments and changes made to § 655.9, we have made edits to subparagraph (c)(9) of this section to indicate that the retention of written contracts with agents or recruiters must also include the list of the identities and locations of persons hired by or working for the recruiter and their agents or employees.
Finally, the provision in the Final Rule also reminds the employer that if and when the
As discussed earlier in this preamble, several commenters expressed significant concerns over the viability of their businesses if, after expending significant resources to hire H–2B workers, those workers are displaced or not hired due to the requirement that the employer hire each U.S. worker who is qualified and available for employment and the U.S. workers hired do not report for work or fail to complete the work contract period. Specifically, one commenter requested that we provide a re-certification process to allow employers to hire H–2B workers when U.S. workers become unavailable. We agree with these commenters and have added this provision to provide an option to employers to address their workforce needs in the continuing absence of U.S. workers.
Under the Final Rule, as under the NPRM, an employer is required to hire all qualified and available U.S. workers who are referred to it by the SWA during the referral period specified in § 655.40(c). Where the employer's request for H–2B workers is reduced by the number of qualified and available U.S. workers or denied because the employer has hired U.S. workers for all of the positions it seeks to fill and the U.S. worker(s) subsequently become unavailable, the employer has the option to voluntarily contact the SWA for additional referrals of U.S. workers. While this is not a requirement, the SWA may be able to provide the employer with replacement workers without an additional request to the CO. However, we recognize that there are circumstances where an employer's U.S. workers fail to report to work or quit before the end of the certified period of employment, and it is at times not viable for an employer to seek additional workers from the SWA. We have determined that it is prudent to provide an avenue for relief for those employers. In the event that some or all of the employer's U.S. workers become unavailable, we are adopting a regulation similar to that in the H–2A program which provides the CO with the authority to issue a redetermination based on the unavailability of U.S. workers, upon a timely and proper request by the employer. Under this added section, the employer must make a written request directly to the CO for a new determination by electronic mail or other appropriate means, such as a private courier. The request must be accompanied by a signed statement confirming the employer's assertion and providing reasons for the nonavailability (
In the proposed rule, we identified instances when an employer will have a reasonable need for an extension of the time period that was not foreseen at the time the employer originally filed
We proposed that the employer make its request to the CO in writing and submit documentation showing that the extension is needed and that the employer could not have reasonably foreseen the need. Extensions would be available only to employers whose original certified period of employment is less than the maximum period allowable in this subpart and under DHS H–2B regulations. Extensions differ from amendments to the period of need because extensions are requested after certification, while amendments are requested before certification. Extensions will only be granted if the employer demonstrates that the need for the extension arose from unforeseeable circumstances, such as weather conditions or other factors beyond the control of the employer (including unforeseen changes in market conditions). We have decided to keep this provision as proposed, with a few edits to remove redundancy related to the maximum period allowable through extension and employer obligations and otherwise clarify the provision.
A comment received from a labor organization suggested that the words reasonably unforeseeable, when referring to changes in market conditions, should replace unforeseeable. We have determined that adding the term reasonably would not confer any additional clarity as it is the CO who determines whether the employer has provided a sufficient reason for the extension based on the facts of the specific case and evidence presented.
The Administrative Review provision in the NPRM was substantially the same as the 2008 Final Rule, with a proposed adjustment in the timeframe from 5 to 7 business days each for the submission of the appeal file by the CO, the submission of a brief by the CO's counsel, and the issuance of a decision by BALCA. We are adopting the provision of the NPRM without change in this Final Rule.
Two commenters recommended that we provide de novo review in the administrative review process. As proposed in the NPRM, a request for administrative review may contain only legal arguments and such evidence as was actually submitted to the CO before the date the determination was issued. By contrast, de novo review would permit the parties to add additional information for the BALCA to consider beyond what was actually submitted to the CO. After considering this issue, we decline to change the administrative process to provide de novo review. Given that an employer is provided with multiple opportunities to submit information and respond to the CO at each step of the labor certification adjudication process, record review provides employers with a fair and efficient process to appeal the CO's determinations. De novo review, if anything, provides employers with less of an incentive to submit the required information or documentation when requested. Additionally, establishing de novo proceedings would further lengthen the adjudication process and require additional resources that may produce a backlog in H–2B appeals. Furthermore, the regulations have limited BALCA review to the record considered by the CO for the past 18 months without any problems, and we believe continuing with this process is unlikely to cause problems in the future, for the reasons mentioned previously.
One of these commenters also recommended that the rule require us to include all information relating to a particular matter in the administrative file. The commenter stated that placing all material relating to a particular matter in the administrative file as a matter of course would enhance public perception of the fairness of the process and would likely produce better outcomes on the merits. The CO already includes in the administrative file any documents that it receives from the employer and third parties that pertain to the adjudication of the certification. Therefore, we do not believe that it is necessary to add to the regulatory language a requirement that the CO include in the administrative file all information that any party states is related to particular matter in the administrative file.
This commenter also requested modification of the rule to establish that appellate proceedings are adversary proceedings for the purposes of the Equal Access of Justice Act (EAJA). However, Federal courts have recognized the EAJA is a waiver of the sovereign's traditional immunity from claims for attorneys' fees and therefore must be construed strictly in favor of the U.S.
We received a comment about the provision which increased the time for the CO to assemble and submit the appeal file in § 655.61(b) from 5 business days to 7 business days. The commenter recommended that the rule require the submission within 3 business days. However, 3 business days is not, in many cases, enough time to assemble, review and submit an appeal file, particularly when coupled with the CO's continuing responsibility to adjudicate other pending applications within a short timeframe and to prepare appeal files for other cases on appeal. Furthermore, 7 business days is an administratively efficient timeframe, consistent with similar deadlines for the Chicago NPC in our other labor certification programs. Therefore, we decline to change the deadline to assemble and submit the appeal file to 3 days and instead maintain the 7 business day deadline proposed.
One commenter recommended that we establish procedures which would allow for intervention by workers and/or organizations of workers to participate in ALJ hearings. For the reasons provided in the general discussion of integrity measures later in this preamble, we decline to accept this suggestion.
Under the proposed rule, an employer may withdraw an
This proposed section codifies our practice of maintaining, apart from the electronic job registry, an electronic database accessible to the public containing information on all employers that apply for H–2B labor certifications. The database will continue to include information such as the number of workers the employer requests on an application, the date an application is filed, and the final disposition of an application. The continued accessibility of such information will increase the transparency of the H–2B program and process and provide information to those currently seeking such information from the Department through FOIA requests.
The comments that were received in regard to public disclosure were requests that we include additional information or documentation. These comments are addressed below.
We received several suggestions as to the types of documents that should be posted on the OFLC Web site or electronic job registry. One labor organization requested that all information received from an employer seeking registration in the H–2B program be placed on an online database, in order to facilitate private enforcement of the regulations. An advocacy group also stated that program integrity would be better served by expanding the database to include all of the materials that the NPC receives from employers. While we are committed to transparency, we have determined that there are several reasons why it may not be appropriate or feasible to disclose every document to the public. Again, many of the documents now required to be submitted under the Final Rule may contain privileged information, which for legitimate reasons cannot be disclosed to a third party. In addition, the amount of time it would take OFLC staff to appropriately redact and upload all documentation is beyond OFLC's capabilities at this time. That being said, we reserve the right to post, as appropriate, any documents pertaining to an
Another advocacy group specified different types of information and documentation that should be included within the public disclosure such as: the type of work, the prevailing wage, the beginning and the ending dates of employment, and if housing is provided, then location of the housing. An additional concern was the timeliness of disclosure, so as to allow workers and advocates to participate in the administrative review processes. Much of the information listed by the commenter is contained within the
Several commenters also recommended that we create a searchable database with all enforcement actions. OFLC already maintains a publically available list of debarred entities on its Web site, and WHD also maintains a list of enforcement actions in closed cases, which include the violations, on its Web. As stated above, we continue to be open to transparency and potentially developing a process to make additional information, such as final determinations, publically available. However, we do not believe that it would be appropriate to disclose information on pending enforcement actions, as doing so may undermine the integrity of the audit, investigation, or adjudication process. Therefore, we decline to adopt the commenter's proposal.
Another commenter recommended that ETA and WHD file an annual public report about their enforcement actions. The commenter is concerned that without such public reporting the public will have little idea whether the changes to the rule are making a difference. We decline to adopt this requirement in this Final Rule, as such information is already available to the public. As stated above, OFLC already maintains a publically available list of debarred entities on its Web site, and WHD also maintains a list of enforcement actions in closed cases, which include the violations, on its Web site.
Several commenters recommended that additional information and documentation should be included on the electronic job registry, in order to provide potential workers with a better sense of the job opportunity and employer. Some wanted us to include ETA Forms and other job-offer-related documents, while others wanted us to go as far as including contracts between
Many commenters requested that the
Proposed §§ 655.70 through 655.73 have been grouped together under the heading Integrity Measures, describing those actions we propose to take to ensure that an
Several commenters suggested that we establish procedures to allow for workers and organizations of workers to intervene and participate in the audit, revocation, and debarment processes. We find that such procedures would be administratively infeasible and inefficient and would cause numerous delays in the adjudication process. For example, under this proposal, we would have to identify which workers and/or organizations of workers should receive notice and should be allowed to intervene. Processing delays would be exacerbated by the fact that once identified, we would have to provide additional time and resources to notify the parties and provide them with the opportunity to prepare and present their information, regardless of whether they have any specific interest or information about the particular proceedings at hand. Workers and worker advocates continue to have the opportunity to contact the OFLC or WHD with any findings or concerns that they have about a particular employer or certification, even without a formal notice and intervention process in place. For these reasons, we are not adding procedures to allow workers and organizations of workers to participate in the audit, revocation, and debarment processes.
This proposed section outlined the process under which OFLC would conduct audits of adjudicated applications. The proposed provisions were similar to the 2008 Final Rule. The Final Rule retains this provision as proposed with one clarifying edit.
Our regulatory mandate to ensure that qualified workers in the U.S. are not available and that the foreign workers' employment will not adversely affect wages and working conditions of similarly employed U.S. workers serves as the basis for our authority to audit adjudicated applications, even if the employer's application is ultimately withdrawn after adjudication or denied. Adjudicated applications include those that have been certified, denied, or withdrawn after certification. There is real value in auditing denied applications because they could be used to establish a record of employer non-compliance with program requirements and because the information they contain assists us in determining whether we need to further investigate or debar an employer or its agent or attorney.
Under the proposed rule, OFLC had the discretion to choose which
The NPRM also provided that an employer's failure to comply with the audit process may result in the revocation of its certification or in debarment, under proposed §§ 655.72 and 655.73, or require assisted recruitment in future filings of an
We received many comments on this provision. The comments were equally divided between those that opposed post-adjudication audits and those that believed that audits are an effective tool to enhance integrity and successfully root out bad actors.
Most comments supported OFLC's ability to audit, though one individual had concerns about the discretion that OFLC has under the NPRM to choose which employer that is audited. OFLC audits both employers about which it has information suggesting that the employer may have violated one or more provisions of the application and employers selected either randomly or by industry or other area of concern for quality assurance purposes. We do not believe that it is appropriate to limit our discretion as to which applications may be audited, as such a limitation could reduce the effectiveness of the integrity measures in the H–2B program.
Several commenters brought up the issue of allowing others to intervene in the OFLC audit process. As stated above in the general discussion of the integrity measures, we have decided that such procedures would be administratively infeasible and inefficient and would cause numerous delays in the adjudication process.
A comment submitted by several employer advocacy groups recommended that the post-adjudication audit procedure be eliminated as unnecessary and duplicative. They argued that post-adjudication audits are appropriate in the attestation-based certification model; however, there is no justification for them under the compliance model. These groups also stated that the incorporation of ETA's audit procedure coupled with WHD enforcement cannot be justified at a time when Federal funding resources are extremely limited. We disagree with
One commenter wanted to be sure that all findings made by OFLC and all documents provided during an audit would be provided to DHS or other enforcement agencies. We work very closely with our sister agencies in all aspects of the H–2B program and will continue to do so. But we have come to recognize that providing documentation before the determination of an audit may result in unnecessary confusion and cause unwarranted delays, costs, or penalties to an employer. In addition, this commenter requested that we share information submitted in response to an audit or action for revocation or debarment with the SWA, so that the SWA can provide any relevant information to promote informed DOL decisions. As previously discussed, we have decided that incorporating such procedures could cause numerous delays in the adjudication process. A worker advocacy group suggested that any person should be able to request that the CO audit a particular employer. We reiterate that workers and worker advocates always have had the opportunity to contact us with any information or concerns that they have about a particular employer or certification, and they will continue to have that opportunity, even without a formal notice and intervention process in place. We cannot, however, commit to auditing every employer about which we receive a complaint or information. We will evaluate all information and complaints we receive to determine whether an audit is appropriate.
This same commenter requested that the provisions of 29 CFR 503.6 and 503.7 be incorporated into the audit section under this subpart. However, though this subpart and 29 CFR part 503 in many instances parallel each other, there are many provisions in one part that, based on the different roles of OFLC and WHD, may not be deemed appropriate for the other. For example, one of the provisions in 29 CFR 503.6 (Waiver of rights prohibited) provides that a person may not seek to have an H–2B worker, a worker in corresponding employment, or any other person's rights waived. This provision is not necessarily applicable to the audits requirements under the post-adjudication audit section, where OFLC is auditing the employer's application. It is highly unlikely that the documentation provided or requested in an audit would provide evidence of any waiver of a worker's rights. Under 29 CFR 503.7 (Investigation authority of the Secretary) WHD has assumed the authority delegated to the Secretary under 8 U.S.C. 1184(c)(14)(B). WHD is the primary agency within the Department for investigating employer compliance with the requirements of the H–2A and H–2B programs. WHD has the necessary expertise and knowledge to enforce and investigate the various regulatory provisions. Requiring OFLC to have duplicative investigative authority under the audit provision would not be the best use of the Department's resources. For the reasons stated above, we are retaining the substance of this provision as proposed, except for several clarifying edits. We clarified that the Audit Letter will advise the employer of its obligation to fully comply with the audit process and included a consistency change in the last sentence of paragraph (c) by replacing the word additional with the word supplemental.
The proposed rule permitted OFLC to determine that a violation that does not warrant debarment has occurred and, as a result, to require an employer to participate in assisted recruitment. This provision also applied to those employers that due to either program inexperience or confusion, have made mistakes in their
Under this provision the CO will notify the employer (and its attorney or agent, if applicable) in writing of the requirement to participate in assisted recruitment for any future filed
The assisted recruitment may consist of, but is not limited to, requiring the employer to conduct additional recruitment, reviewing the employer's advertisements before posting and directing the employer where such advertisements are to be placed and for how long, requesting and reviewing copies of all advertisements after they have been posted, and requiring the employer to submit proof of contact with past U.S. workers, and proof of SWA referrals of U.S. workers. If an employer fails to comply with the requirements of this section, the employer's application will be denied and the employer may be debarred from future program participation under § 655.73.
We also invited comments and suggestions of industry-specific recruitment and advertising sources to be used by the CO in administering assisted recruitment in the H–2B program under this section. We are retaining the proposed provision with one change. While we received no suggestions about industry-specific recruitment sources, the comments did indicate general support for allowing the CO to order assisted recruitment as a means of helping an employer rectify recruitment problems before more severe administrative actions are pursued. One individual stated that the COs should refrain from inserting themselves into the employer-attorney/agent relationship and should only notify the employer of the need to participate in assisted recruitment. We disagree with this commenter. An employer has the right under the regulations to seek the advice and assistance of an attorney or agent. We know of no reason why we should limit the areas in which the employer can seek that advice and assistance.
Having considered comments on this proposal, we are retaining this provision in its entirety with one edit in paragraph (d), where we clarify that the employer's failure to comply must be material in nature.
Under this section, OFLC can revoke an approved temporary labor certification under certain conditions, including where there is fraud or willful misrepresentation of a material fact in the application process or a substantial failure to comply with the terms and conditions of the certification. The 2008 Final Rule did not include a similar revocation provision. We are adopting the provisions of the NPRM without change in this Final Rule.
Many commenters expressed general approval of the new revocation provision as an important enforcement technique. Commenters also submitted comments on specific provisions of this section.
Several of these commenters discussed the bases for revocation in paragraph (a) of this section. The basis generating the most comments is paragraph (a)(2), which lists a substantial failure to comply with the terms and conditions of the certification as a basis for revocation and defines a substantial failure as a willful failure to comply. Several worker advocacy
We elect to maintain the willful standard. The reason for maintaining this standard is discussed in more depth at 29 CFR 503.19 (Violations) of the WHD preamble.
A labor organization suggested that all of an employer's existing labor certifications be revoked if one is revoked, because the employer has been found to be untrustworthy. While we recognize that an employer would be undermining the integrity of the labor certification program if it meets any of the bases for revocation set forth in this section, we are retaining the language as proposed in the NPRM, because we do not believe that violations relating to a particular certification should not necessarily be imputed to an employer's other certifications. We recognize the serious impact that a revocation would have on employers and H–2B workers alike and do not believe that it should be applied to certifications for which there has been no finding of employer culpability.
However, we acknowledge that in some situations, the Administrator, OFLC, may revoke all of an employer's existing labor certifications where the underlying violation applies to all of the employer's certifications. For instance, if the Administrator, OFLC finds that the employer meets either the basis for revocation in paragraph (a)(3) of this section (failure to cooperate with a Department investigation or with a Department official performing an investigation, inspection, audit, or law enforcement function) or in paragraph (a)(4) of this section (failure to comply with sanctions or remedies imposed by WHD or with decisions or orders of the Secretary with respect to the H–2B program), this finding could provide a basis for revoking any and all of the employer's existing labor certifications. Additionally, where we find violations of paragraphs (a)(1) or (a)(2) of this section affect all of the employer's certifications, such as where an employer misrepresents its legal status, we also may revoke all of that employer's certifications. Lastly, where an employer's certification has been revoked, we certainly would take a more careful look at the employer's other certifications to determine if similar violations exist that would warrant their revocation.
Representing the opposite perspective, one coalition of employers expressed concern about the effect of revocation on businesses and concern that revocation may be too frequent under the bases proposed in the NPRM. The coalition wants us to clarify that revocation is an extreme penalty for egregious violations. This commenter also suggested that we consider the totality of the circumstances, not just the potential bases listed in paragraph (a) of this section, when considering whether or not to revoke a temporary labor certification.
We cannot say how often revocation will occur under the Final Rule, because a similar provision did not exist in the 2008 Final Rule or before. We recognize the seriousness of revocation as a remedy; accordingly, the bases for revocation in paragraph (a) reflect violations that significantly undermine the integrity of the H–2B program. We intend to use the authority to revoke only when an employer's actions warrant such a severe consequence. We do not intend to revoke certifications if an employer commits minor mistakes.
Several worker advocacy organizations also submitted comments on paragraph (b) of this section, which details the procedures for revocation. Three organizations suggested that the rules should provide for notice to employees of revocation proceedings and for intervention by employees in revocation proceedings. One organization suggested giving notice of revocation to entities listed as potential recruitment sources, such as former employees. We have decided not to add procedures for employee or third party notification and intervention to the revocation section for the reasons set forth in the Integrity Measures preamble at §§ 655.70–655.73.
The NPRM proposed to revise the existing debarment provision to strengthen the enforcement of H–2B labor certification requirements and to clarify the bases for a debarment. It also proposed that WHD have debarment authority independent of OFLC. The Final Rule adopts these provisions with minor changes.
A number of commenters had concerns about the willfulness standard that would apply not only to debarment, but also to the assessment of violations and other remedies. However, many of the comments were based on a misunderstanding of what a willful violation entailed. The violations discussion at 29 CFR 503.19 of the WHD preamble discusses the willfulness standard. As explained in that section, we will judge all violations by the willfulness standard and will not debar for minor, unintentional violations.
a. Debarment of an employer. A labor union encouraged us to extend debarment to the individual principals of a company or legal entity to foreclose the ability of these individuals to reconstitute under another business entity. Although we do not have the authority to routinely seek debarment of entities that are not listed on the ETA Form 9142, in appropriate circumstances, we may pierce the corporate veil in order to more effectively remedy the violations found.
b. Debarment of an agent or attorney. As discussed under § 655.8, the NPRM raised explicit concerns about the role of agents in the program, and whether their presence and participation have contributed to problems with program compliance, such as the passing on of prohibited costs to employees. These concerns were so significant that we solicited comments on whether to continue to permit the representation of employers by agents in the H–2B program. As discussed in the preamble discussion of § 655.8, we have decided to continue to allow agents to represent employers. However, as the NPRM also explained, if we were to continue to accept applications from agents, additional requirements might need to be applied to strengthen program integrity and we solicited comments on this issue as well.
Several employers and employer organizations responded by acknowledging that bad actors exist in the H–2B program, and urging us to use our enforcement authority to pursue fraud involving agents rather than prohibiting the legitimate work of agents in preparing and filing H–2B applications on behalf of employers. In addition, several worker advocacy organizations' comments expressed concern about violations committed by agents and attorneys, and encouraged us to take stronger actions to prevent such abuses, primarily by holding employers strictly liable for the actions of their agents. We are unable to do that for the reasons discussed in the preamble discussion at 29 CFR 503.20.
As a number of both employer and worker advocacy organizations noted, the Department's statistics show that in FY 2010, 86 percent of employers filed H–2B applications using an agent. These agents are intimately familiar with the H–2B program requirements. As commenters affirmed, agents have a high level of program knowledge and help guide employers through the process. The agents and attorneys who file applications on behalf of employers certify under penalty of perjury on the ETA Form 9142
In addition, § 655.20(p) and 29 CFR 503.16(p) require an employer to contractually prohibit an agent or recruiter from seeking or receiving payments from prospective employees. This creates a loophole, under which an employer may contractually prohibit the attorney or agent (and agents and employees) from collecting prohibited fees, yet the attorney or agent independently charges the workers for prohibited fees. In this situation, the employer will not be debarred for the independent violation of the agent or attorney because the employer has not committed any violation. A coalition of worker advocacy organizations pointed out that the proposed regulations “continue the Department's efforts to eliminate the pernicious practice of foreign workers paying substantial fees to recruiters to obtain H–2B jobs. While the proposed changes are praiseworthy, they are not sufficient to curb these abuses and may actually help relieve employers of responsibility for such charges.”
In light of the concerns expressed in the NPRM and the comments received, we have decided to strengthen program integrity in the Final Rule by applying debarment to independent violations by attorneys and agents, recognizing that agents and attorneys should be held accountable for their own independent willful violations of the H–2B program, separate from an employer's violation. Language to this effect has been added to the OFLC and WHD debarment provisions at § 655.73(b) and 29 CFR 503.24(b), as well as the WHD sanctions and remedies section, as discussed further in the preamble at 29 CFR 503.20. These enhanced compliance measures apply only to the agents and attorneys who are signatories on the ETA Form 9142, as these agents and attorneys have become directly involved with the H–2B program and have made attestations to the Department.
A coalition of agents and employers suggested that we provide guidance on how we would apply the reckless disregard standard to agents and attorneys and the extent to which agents and attorneys must intrude into the details of the employer's business to avoid showing reckless disregard for the truthfulness of the agent's or attorney's representations or for whether their conduct satisfies the required conditions. We do not intend to make attorneys or agents strictly liable for debarrable offenses committed by their employer clients, nor do we intend to debar attorneys who obtain privileged information during the course of representation about their client's violations or whose clients disregard their legal advice and commit willful violations. We will be sensitive to the facts and circumstances in each particular instance, and when considering whether an attorney or agent has participated in an employer's violation; we will seek to debar only those attorneys or agents who work in collusion with their employer-clients to either willfully misrepresent material facts or willfully and substantially fail to comply with the regulations. Similarly, where employers have colluded with their agents or attorneys to commit willful violations, we will consider debarment of the employer as well.
We did not propose in the NPRM to debar recruiters who are not agent or attorney signatories to the ETA Form 9142. However, several commenters specifically recommended that we maintain a public list of debarred recruiters. Since recruiters are not subject to debarment unless they are signatories to the ETA Form 9142, we will not maintain a list of debarred recruiters. However, both OFLC and WHD already publicly post a list of employers, agents, or attorneys that have been debarred under all of the labor certification programs and to the extent that a recruiter might also be debarred, the recruiter would also appear on the list.
Another commenter requested that we report debarred attorneys to State bar associations. We note that there is nothing in the regulations that restricts us from making such a report. Where circumstances warrant, we may decide to report debarred attorneys to State bar associations using the information provided in the ETA Form 9142 which provides a field for the attorney's State bar association number and State of the highest court where the attorney is in good standing. However, we note that these fields are limited to only one State bar association. Therefore, while we may be able to notify the State bar association listed on the ETA Form 9142, there may be other State bar associations unknown to us, of which the attorney is a member that we are unable to notify. However, as stated in 20 CFR 655.73(h) and 29 CFR 503.24(e), copies of all final debarment decisions will be forwarded to DHS and DOS promptly.
c. Period of debarment. The NPRM proposed that the Administrator, OFLC may not debar an employer, attorney, or agent for less than 1 year nor more than 5 years from the date of the final debarment decision. The Final Rule adopts this provision as proposed. One commenter stated that increasing the maximum debarment period to 5 years based on what could be a single innocent act could result in a disproportionate and overly harsh penalty. In addition, a trade association questioned why a debarment period of up to 5 years was included in the NPRM, recommending that we adopt the-up- to-3-year debarment maximum rule from the current H–2A regulations or at least articulate why a more extreme penalty is justified under the H–2B program. On the other hand, several commenters suggested that the Department remove the 5-year cap and impose debarment for up to 10 years, or in some cases permanent debarment, on repeat violators.
The 1- to 5-year range for the period of debarment is consistent with the H–2B enforcement provisions in the INA, and we believe that it is appropriate to apply the same standard in our regulations. 8 U.S.C. 1184(c)(14)(A)(ii). We do not intend to debar employers, attorneys, or agents who make minor, unintentional mistakes in complying with the program, but rather those who commit a willful misrepresentation of a material fact, or a substantial failure to meet the terms and conditions, in the
d. Violations. The NPRM proposed that a single act, as opposed to a pattern or practice of such actions, would be sufficient to merit debarment. A labor union noted that the proposed regulation text, stating at § 655.73(f)(12) and 29 CFR 503.24(a)(10) that a single heinous act showing such flagrant disregard for the law that future compliance with program requirements cannot be reasonably expected implies that a single violation in one of the eleven categories listed before the single act language is insufficient for debarment. The commenter noted that this implication was at odds with our stated intent to make any of the listed acts sufficient for debarment. The commenter suggested that the regulation establish that failure to comply with any representation, requirement, or offer in the registration, application, or job order would warrant per se debarment. By contrast, a professional organization took issue with debarment for a single act, rather than a pattern or practice of repeat violations, where there was no evidence of fraud or misrepresentation.
We agree that the single heinous act language is potentially confusing. We did not intend to suggest that a single violation falling into one of the other 13 listed categories of violations may not be sufficient for debarment. Thus, we have added language in the Final Rule text at § 655.73 and 29 CFR 503.24 making one or more acts of commission or omission debarrable for all of the listed violations, and have revised § 655.73(f)(12) and 29 CFR 503.24(a)(10) to encompass any other act as opposed to a single heinous act. As discussed in the preamble discussion of 29 CFR 503.19, which explains the standard that applies to all H–2B debarment actions, any act or omission would have to be willful to warrant debarment.
A State attorney general recommended that we add failure to cooperate in State and local investigations to the grounds for debarment. It is beyond our jurisdiction and the scope of our responsibilities under the H–2B program to evaluate whether an entity cooperated with a State or local investigation and to penalize the entity for failing to so.
A coalition of worker advocacy organizations and several additional worker advocacy organizations encouraged us to add to the non-exhaustive list of debarrable offenses the failure to disclose a recruiter's identity under the requirement proposed in § 655.9, the use of a debarred recruiter, and the failure of an employer to report recruiter violations to OFLC and WHD. The NPRM did not propose violations for employer use of a debarred recruiter, nor did it propose a reporting requirement for recruiter violations known to the employer but not to us. Further, as the list of debarrable offenses is explicitly non-exhaustive, we decline to add non-compliance with § 655.9 to the list. However, we are adding obligations under § 655.9 to the list of employer assurances and obligations in § 655.20 and 29 CFR 503.16 to clarify that we view employer (and its agent or attorney, as applicable) disclosure of foreign worker recruitment by an agent or recruiter as a critical obligation. We will pursue enforcement where employers (and their agents or attorneys, as applicable) commit willful violations of this provision.
A labor union expressed concern about employer misclassification of immigrant workers as independent contractors, and suggested that we add to the list of debarrable offenses the misclassification of H–2B workers or corresponding U.S. employees as independent contractors. Although the misclassification of workers as independent contractors is a matter WHD might pursue as it relates to its enforcement authority under statutes such as the Fair Labor Standards Act, this type of misclassification has not been characterized as a violation of the H–2B regulations, where an employer is explicitly seeking permission to hire foreign workers as employees. Therefore, it would not be appropriate to add to the list of debarrable offenses.
e. Debarment procedure. A worker advocacy organization commented that the debarment timeline should allow debarment to take place before employers are able to recruit and hire workers for the next season, to ensure that employers who violate worker protection laws are removed before the next recruitment cycle. However, the debarment timeline varies greatly depending on the timing of when violations are discovered through OFLC audits, WHD targeted investigations, or WHD investigations initiated by complaints. In other words, there is no one time within a season when a debarment proceeding might be initiated. Additionally, various factors affect the timing of an investigation that may lead to debarment, including the complexity of the case and the number of violations involved. Parties subject to debarment also have the right to appeal the debarment decision. Thus, we cannot ensure any particular timing for the debarment process.
f. Concurrent debarment jurisdiction. Several commenters objected to WHD's concurrent debarment authority. These comments are fully discussed in the concurrent actions section at 29 CFR 503.21 of the WHD preamble.
g. Interagency communication. A commenter recommended amending the proposed rule to require us to share information about problem entities with other departments and agencies that administer U.S. visa programs to prevent the offender from refocusing its efforts on possible alternative visa programs outside of our jurisdiction. Also, the commenter recommended that in more serious cases we should permanently debar the entity and refer the entity to the Department of Justice for prosecution. Similarly, another commenter recommended that the regulations require the provision of regular notices to other agencies about investigations and enforcement actions that we have taken against employers for possible or adjudicated violations of Department-administered visa programs and that we should ask other departments and agencies,
h. Additional penalties for debarred employers. Two commenters requested that the regulations add discontinuation of job services to the list of sanctions of debarred employers. Because discontinuation of services under the employment service system, along with other sanctions for non-compliant H–2B employers, is already governed at § 658.500 subpart F of this part, we do not believe that it is necessary to make any change to the regulations in this subpart to reflect that provision. Additional remedies offered by commenters that would apply to all
Effective January 18, 2009, pursuant to INA section 214(c)(14)(B), DHS transferred to the Secretary enforcement authority for the provisions in section 214(c)(14)(A)(i) of the INA which govern petitions to admit H–2B workers. The 2008 Final Rule contains the regulatory provisions governing ETA's processing of the employer's
The Department carefully reviewed the 2008 Final Rule and proposed substantive changes to both the certification and enforcement processes to enhance protection of U.S. and H–2B workers.
The proposed rule added a new part, 29 CFR part 503, to further define and clarify the protections for workers. This proposal and the proposed changes in 20 CFR part 655, Subpart A added workers in corresponding employment to the protected worker group, imposed additional recruitment obligations and employer obligations for laid off U.S. workers, and increased wage protections for H–2B workers and workers in corresponding employment. Additionally, the Department proposed to enhance the WHD's enforcement role in administrative proceedings following a WHD investigation, such as by allowing WHD to pursue debarment rather than simply recommending to ETA that it debar an employer as occurs under current § 655.65(h).
To ensure consistency and clear delineation of responsibilities between Departmental agencies implementing and enforcing H–2B provisions, this new Part 503 was written in close collaboration with ETA and is being published concurrently with ETA's Final Rule in 20 CFR part 655, Subpart A to amend the employer certification process. Some editorial changes have been made to the text of the proposed regulations, for clarity and to improve readability. Those changes are not intended to alter the meaning or intent of the regulations and are not further discussed in this preamble. A discussion of the comments received on the proposal and substantive changes made by the Department are discussed at length below.
Proposed §§ 503.0 through 503.8 provided general background information about the H–2B program and its operation. Proposed § 503.1 and § 503.2 are similar to the existing regulations at 20 CFR 655.1 and 655.2. Proposed § 503.3 described how the Department will coordinate both internally and with other agencies. One commenter expressed concerns that the provision at § 503.3 did not provide specific information on where to file a complaint. The Department considers the guidance provided in § 503.7 to be sufficient notice to potential complainants.
Sections 503.0, 503.1, 503.2, and 503.3 are adopted in the Final Rule as proposed.
Under this section of the NPRM, the proposed definitions were identical to those contained in proposed 20 CFR part 655, Subpart A, except that this section contained only those definitions applicable to this part. The preamble to 20 CFR part 655, Subpart A contains the relevant discussion of comments received on and changes made to those definitions. For the reasons discussed there, the Final Rule makes identical conforming changes in this section.
Under this proposed section, the provision regarding temporary need was identical to the requirements set forth in proposed 20 CFR 655.6; the preamble to that section includes a full discussion of the comments received in response to the proposed provisions. The Final Rule adopts the provision as proposed.
The Department proposed in § 503.6 to add new language that would prohibit any employer from seeking to have workers waive or modify any rights granted them under these regulations. The proposed paragraph would have, with limited exceptions, voided any agreement purporting to waive or modify such rights. The proposed language was consistent with similar prohibitions against waiver of rights under other laws, such as the Family and Medical Leave Act, see 29 CFR 825.220(d), and the H–2A program, see 29 CFR 501.5. The Department received several comments concerning this proposed addition, all of which supported the change. One advocacy group cited the vulnerability of the H–2B workers as a reason for needing this provision. One union mentioned concerns that without the provision unscrupulous employers might attempt to use waivers to gut the program. The Department has retained the section as proposed in the Final Rule.
In § 503.7 of the NPRM, the Department proposed to retain the current authority established under 20 CFR 655.50, affirming WHD's authority to investigate employer compliance with these regulations and WHD's obligation to protect the confidentiality of complainants. This proposed section also discussed the reporting of violations. No comments were received on this section; the proposed language has been maintained in the Final Rule.
Under this proposed section, making false representations to the government would make an entity subject to penalties, including a fine of up to $250,000 and/or up to 5 years in prison. A few commenters expressly supported this provision, stating that the inclusion of this provision makes it clear to employer that there are serious consequences for criminal acts. The proposed language has been maintained in the Final Rule.
In order to ensure that U.S. workers are not adversely affected by the employment of H–2B workers, the NPRM proposed expanding the type of workers entitled to protection by WHD enforcement to workers in corresponding employment, as defined under 20 CFR 655.5. Comments regarding corresponding employment are discussed fully in that section. The NPRM proposed to continue WHD enforcement for H–2B workers and U.S. workers improperly rejected, laid off, or displaced. Labor unions supported WHD's proposed enforcement, with one commenting that giving U.S. workers this means of redress is critical to effectuating the Secretary of Labor's mandate to ensure that the certification and employment of H–2B aliens does not harm similarly-situated U.S. workers, and asserting that it also prevents U.S. workers being employed alongside H–2B aliens who might otherwise receive greater pay, benefits, and protection from abuse through the H–2B program than their domestic counterparts enjoy. Similarly, a State Attorney General's office strongly supported the Department's strengthened efforts to protect
A trade association expressed its concern that the proposed investigation and enforcement regulations in this Part would only be complaint-driven,
An individual stakeholder questioned the avenue for filing a complaint alleging non-compliance with the H–2B program. Complaints may be filed by calling WHD at 866–4US–WAGE or by contacting a local WHD office. Contact information for local offices is available online at
Several agents and employer organizations contended that the Department's proposed enforcement authority over H–2B program compliance exceeded its statutory authority, as delegated by DHS. Based on the enforcement authority outlined in the preamble under 20 CFR 655.2 and the addition of 29 CFR part 503, and the detailed discussion of the Department's enforcement authority in the 2008 Final Rule in response to similar comments, 73 FR78020, 78043–44 (debarment) 78046–47 (civil monetary penalties and remedies), Dec. 19, 2008, the Department has concluded that it is authorized to conduct the enforcement activities described in this Final Rule.
The provisions proposed in this section were identical to those proposed in 20 CFR 655.20, with the exception of the additional obligation in proposed paragraph (aa) (Cooperation with investigators) requiring employers to cooperate in any administrative or enforcement proceeding. No comments were received on that paragraph and the provision is adopted in the Final Rule as paragraph (bb). Proposed paragraph § 503.16(aa) is redesignated as § 503.16(bb) in the final rule. Proposed paragraph (aa), paragraph (bb) in the Final Rule matches the language of a new provision at 20 CFR 655.20(aa), which is consistent with 20 CFR 655.9 of the proposed rule and this Final Rule, requiring an employer to provide with its
In § 503.17 the Department proposed to consolidate the document retention requirements previously found throughout 20 CFR 655, subpart A. These requirements are similar to those in 20 CFR 655.56, with minor differences related to OFLC's and WHD's separate interests. A coalition representing agents and employers commented in support of this proposal, noting that most employers are already familiar with their obligation to keep documents for three years to comply with the FLSA. However one employer stated that the documentation provision was complex and demanding for the employer. As stated in the preamble to the proposed rule, this section does not require employers to create any new documents but simply to preserve those documents that are already required for applying for participation in the H–2B program, and therefore should not place any further burden on employers. A commenter representing the outdoor entertainment industry indicated that it would be difficult to comply with the 72-hour availability requirement and urged the Department to allow retention and provision of required documents in electronic format. This request was repeated by an employer advocacy group. The Department recognizes these commenters' concern and reminds them that under the FLSA employers who maintain records at a central recordkeeping office, other than in the place(s) of employment, are required to make records available within 72 hours following notice from WHD. See 29 CFR 516.7. This provision, which has been in place for decades, has not created undue burden for employers; as many H–2B employers are likely covered by the FLSA, this provision results in no additional burden. A full discussion of the use of electronic records can be found in the preamble to 20 CFR 655.56.
A commenter stated that a retention period of 3 years was insufficient and expressed concern that in the case of a 3-year certification, the employer could destroy records before completion of the job. Another comment included a recommendation that records be retained for 5 years in case of an investigation for criminal fraud. The Department has decided that a 3-year record retention requirement is adequate for its civil enforcement purposes.
Finally, a number of comments included recommendations that employers be required to retain records of the visa, subsistence, transportation, and recruitment costs, including the amount, by whom and to whom they were paid and the time of payment. The Department considers the general requirement that employers retain documents and records to prove compliance with the regulations to be sufficient for its enforcement purposes. Further discussion of recordkeeping provisions is included in the preamble of 20 CFR 655, subpart A. The proposed provision is adopted without change.
In § 503.18 the Department proposed to include clarifying edits to this section (which corresponds to existing 20 CFR 655.34 (a) and (b)), providing the time frame and scope for which an
The NPRM proposed retention of the willfulness standard for the assessment of violations, monetary remedies, and civil money penalties, as well as determinations concerning revocation and debarment. As discussed below, comments from employers, agents, industry organizations, labor unions, and worker advocacy organizations reflected a significant amount of confusion about the standards by which violations are determined under the H–2B program, as well as whether the standards apply equally to revocation, debarment, monetary or other remedies, and civil money penalties. After briefly summarizing the comments received, the Department will attempt to clarify for the benefit of all affected parties the basis for the continued use of a willfulness standard for determining whether a violation has occurred, regardless of whether the violation results in revocation imposed by OFLC pursuant to 20 CFR 655.72, debarment imposed by OFLC pursuant to 20 CFR 655.73 or WHD pursuant to § 503.24,
Several worker advocacy organizations stated the willful standard is too high. Many of these organizations suggested an intentional standard, instead. Several stated an intentional standard would be consistent with the Job Service Complaint System and with the Migrant and Seasonal Agricultural Worker Protection Act. One organization noted that the courts have provided considerable interpretation of the intentional standard under MSPA, so use of the intentional standard would enhance the standard's clarity. Another worker advocacy organization proposed a new eight-part definition for substantial failure.
Conversely, several employers, employer coalitions, and trade associations commented that the substantial failure standard was too low, believing this standard would lead the Department to debar for unintentional, negligent failures or technical violations, as opposed to knowing failures. In addition, several agents and employer organizations wanted the Department to clarify that it views the punishments of revocation and debarment as extreme penalties for egregious violations rather than routine remedies, indistinguishable from back pay and civil money penalties.
In light of the numerous comments suggesting what commenters believed to be the adoption of essentially a higher or lower standard than the standard currently in place, the Department wishes to clarify that violations under these regulations, both in the 2008 Final Rule and in the 2011 NPRM, have been defined to be consistent with the INA's provisions regarding violations for H–2B workers. Specifically, INA section 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A), sets forth two potential violations under the H–2B program: (1) “a substantial failure to meet any of the conditions of the petition” and (2) “a willful misrepresentation of a material fact in such petition.” The INA further defines a substantial failure to be a “willful failure to comply * * * that constitutes a significant deviation from the terms and conditions of a petition.” 8 U.S.C. 1184(c)(14)(D). The
Thus, in this Final Rule, the basis for determining violations has not changed since the 2008 Final Rule, and continues to be either a misrepresentation of material fact or a substantial failure to comply with terms and conditions, both of which continue to be willful. See 20 CFR 655.72(a)(1) & (2) (revocation), 20 CFR 655.73(a)(1)-(3) (OFLC debarment), § 503.19(a)(1) & (2) (WHD violations, which lead to remedies, civil monetary penalties, and/or debarment). To determine whether a violation is willful, the Department will consider whether the employer, attorney, or agent knows its statement is false or that its conduct is in violation, or shows reckless disregard for the truthfulness of its representation or for whether its conduct satisfies the required conditions. See 20 CFR 655.73(d), § 503.19(b). This is consistent with the longstanding definition of willfulness. See
A labor union that approved of the willfulness standard and recognized that it encompasses reckless disregard suggested that the Department impute willfulness where there are multiple, non-willful violations because such repeated violations evidence reckless disregard. Rather than imputing willfulness, when the Department encounters violations that do not rise to the level of willfulness, it puts the party on notice regarding future compliance and will consider subsequent violations committed with the knowledge that such acts or omissions violate H–2B program requirements to be willful.
The NPRM also proposed an additional change in the description of violations in § 503.19. Unlike the definition of violations in the 2008 Final Rule, which only mentioned employer violations specifically, the proposed definition of violations does not specify a violator, thus encompassing violations committed by an employer, attorney and/or agent. After receiving no comments, the Department is adopting this provision of the NPRM without change in the Final Rule.
The NPRM proposed that the Department continue to pursue essentially the same remedies upon a WHD determination that a violation has occurred, including but not limited to payment of back wages, recovery of prohibited fees paid or impermissible deductions, enforcement of the provisions of the job order, assessment of CMPs, make-whole relief for victims of discrimination, and reinstatement and make-whole relief for U.S. workers who were improperly denied employment. The NPRM also proposed to give WHD independent debarment authority, concurrent with ETA's debarment authority. Comments regarding WHD's debarment authority are discussed under § 503.21.
As the preamble to the 2008 Final Rule emphasized, 73 FR 78037, the Department is adamant that recruitment of foreign workers is an expense to be borne by the employer and not by the foreign worker. Examples of exploitation of foreign workers, who in some instances have been required to give recruiters thousands of dollars to secure a job, have been widely reported in the comments received by the Department and elsewhere. The Department is concerned about the exploitation of workers who have heavily indebted themselves to secure a place in the H–2B program, and believes that such exploitation may adversely affect the wages and working conditions of U.S. workers by creating conditions akin to indentured servitude, driving down wages and working conditions for all workers, foreign and domestic.
The Department believes that requiring employers to incur the costs of recruitment is reasonable, even when taking place in a foreign country. However, the Department recognizes that an employer's ability to control the actions of agents and sub-contractors across international borders is constrained, just as the Department's ability to enforce regulations across international borders is constrained. As discussed in the preamble to 20 CFR 655.20 (p), the Department is requiring that the employer, as a condition of applying for temporary labor certification for H–2B workers, contractually forbid any foreign labor contractor or recruiter (or any agent or employee of such agent or recruiter) whom the employer engages in international recruitment of H–2B workers to seek or receive payments from prospective employees. The Department will attempt to ensure the bona fides of such contracts and will work together with DHS, whose regulations also generally preclude the approval of an
These commenters' concerns are unfounded. The Department intended make-whole relief to be limited to its traditional meaning, which is that the party subjected to the violation is restored to the position, both economically and in terms of employment status, that he or she would have occupied had the violation never taken place. Make-whole relief includes equitable and monetary relief such as reinstatement, hiring, front pay, reimbursement of monies illegally demanded or withheld, or the provision of specific relief such as the cash value of transportation or subsistence payments which the employer was required to, but failed to provide, in addition to the recovery of back wages, where appropriate. Nothing in the regulations allows recovery for injuries or losses in addition to actual damages and equitable relief. Therefore, the Department has decided to retain make-whole relief as one of the types of remedies available when a violation has been found, without further specification.
A federation of national and international labor unions suggested that the Department include a new subsection under this provision clarifying that “[i]n any proceeding concerning unpaid wages or make whole relief, any monetary remedy will be determined based on the actual number of hours worked by similarly situated employees or the three-fourths guarantee described in 20 CFR 655.20(f), whichever is greater.” The Department agrees that this statement accurately summarizes how such monetary remedies are calculated under this section. However, just as the Department believed it unnecessary to further define make-whole relief with respect to compensatory damages, it has determined that it is not necessary to add the suggested language to this section because these concepts and comparators are already encompassed under make-whole relief and are reflected in § 503.23(b) and (c), which explain that the civil money penalty for such violations is the difference between what should have been paid or earned and the amount that was actually paid.
Finally, a State Attorney General commented specifically regarding the importance of providing remedies for unlawful retaliation, particularly so that H–2B workers who are vulnerable to retaliation will have adequate protection when making meritorious complaints about workplace violations. This Attorney General's Office noted that, because reinstatement is a critical component of make-whole relief and may not be possible if the employer is debarred or chooses not to use the H–2B program in the future, the Department might wish to adopt a provision similar to a recent amendment to the New York labor law that provides up to $10,000 in liquidated damages for each instance of unlawful retaliation. While the Department appreciates the utility of this suggestion, liquidated damages are not consistent with make-whole relief for actual damages. However, as this Attorney General's Office further suggested, the Department wishes to clarify that make-whole relief for unlawful retaliation and discrimination may include front pay (such as for the duration of the work remaining in the job order) where reinstatement is not possible.
The NPRM proposed that OFLC and WHD would have concurrent jurisdiction to impose a debarment remedy under 20 CFR 655.73 and under § 503.24, while recognizing the differing roles and responsibilities of each agency under the program, as set forth in § 503.1. The cross-reference in § 503.3(c) proposed the safeguard that a specific violation for which debarment is sought will be cited in a single debarment proceeding, and that OFLC and WHD would coordinate their activities to achieve this result. This will ensure streamlined adjudications and that an employer will not face two debarment proceedings for a specific violation. The Department is adopting the provisions as proposed without change.
Numerous labor unions, worker advocacy organizations, and a congressman welcomed WHD's independent debarment authority. On the other hand, a coalition representing agents and employers, employer associations, and a legal association opposed the Department's proposal to grant debarment authority to WHD. They primarily contended that allowing both agencies to exercise debarment authority would likely result in inefficient and duplicative actions. However, as noted earlier, the NPRM proposed a safeguard that requires coordination rather than duplicative debarment proceedings.
The coalition representing agents and employers felt that OFLC should continue to have exclusive debarment authority because OFLC has greater familiarity with the nature and extent of employer violations in the application and recruitment process, and would therefore be better equipped to determine whether a violation warranted this type of punishment. This comment ignores the fact that employers and the Department have important roles and obligations during both the H–2B application and recruitment process and during the validity of the job order, when employers must comply with critical assurances and program obligations. While OFLC has more expertise in the application and recruitment process, and will retain specific authority to debar for failure to comply with the Notice of Deficiency and assisted recruitment processes, WHD has extensive expertise in conducting workplace investigations under numerous statutes, and has been enforcing H–2B program violations since the 2008 Final Rule became effective on January 18, 2009.
Providing WHD with the ability to order debarment, along with or in lieu of other remedies, will streamline and simplify the administrative process, and eliminate unnecessary bureaucracy by removing extra steps. Under the 2008 Final Rule, WHD conducts investigations of H–2B employers, and may assess back wages, civil money penalties, and other remedies, which the employer has the right to challenge administratively. However, under the 2008 Final Rule, WHD cannot order debarment, no matter how egregious the violations, and instead must take the extra step of recommending that OFLC issue a Notice of Debarment based on the exact same facts, which then have to be litigated again. Contrary to the commenters' assertions, allowing WHD
The commenters opposing WHD's debarment authority also argued that WHD's debarment process was not as fair as OFLC's because WHD's process does not include a 30-day rebuttal period. These commenters were concerned that WHD might make a determination about a violation and initiate debarment proceedings before employers had an opportunity to provide critical information relating to the alleged violation. This concern is misplaced, however, and may reflect a lack of familiarity with how WHD conducts investigations and reaches a determination about whether violations have occurred and which remedies are appropriate. During the course of an investigation, WHD contacts and interviews both the employer and workers. WHD investigators discuss potential violations with the employer and, when requested, with his or her legal representative, providing the employer ample notice and an opportunity to provide any information relevant to WHD's final determination. Rather than a formal, 30-day rebuttal period, employers have numerous opportunities during the course of a WHD investigation and during a final conference to provide critical information regarding violations that may lead to debarment.
Finally, an employer association opposed the Department's proposal to grant WHD debarment authority because it believed it would make it easier for the Department to remove employers from the program without impartial review by an independent review panel or judge. However, the NPRM specifically included procedural protections for parties subject to WHD debarment proceedings, including notice of debarment, the right to a hearing before an Administrative Law Judge (ALJ), the right to seek judicial review of an ALJ's decision by the Administrative Review Board (ARB). See Subpart C, Administrative Proceedings.
The NPRM proposed to continue to have the Solicitor of Labor represent the Administrator, WHD and the Secretary in all administrative hearings under 8 U.S.C. 1184(c)(14) and these regulations. After receiving no comments, the Department is adopting this provision of the NPRM without change in the Final Rule.
The NPRM proposed a civil money penalty (CMP) assessment scheme similar to the CMP assessment contained in the 2008 Final Rule, with additional and clarifying language specifying that WHD may find a separate violation for each failure to pay an individual worker properly or to honor the terms or conditions of the worker's employment, as long as the violation meets the willfulness standard and/or substantial failure standard in § 503.19. Similar to the CMPs in the 2008 Final Rule, the proposed CMP assessments set CMPs at the amount of back wages owed for violations related to wages and impermissible deductions or prohibited fees, and at the amount that would have been earned but for an illegal layoff or failure to hire, up to $10,000 per violation. The NPRM also proposed to retain the catch-all CMP provision for any other violation that meets the standards in § 503.19, and set forth the factors WHD will consider in determining the level of penalties to assess for all violations but wage violations.
A coalition representing agents and employers was concerned that the NPRM blurred the lines between back pay remedies and civil money penalties. Specifically, these commenters questioned whether the CMPs that are set at the amount of unpaid wages (§ 503.23(b) and (c)) were treated as back wages or as a penalty payable to the U.S. Treasury rather than to the employee or applicant. As indicated in the NPRM, unpaid wages, including the recovery of wages owed for work performed, prohibited fees paid or impermissible deductions from pay, or recovery of wages due for improperly placing workers in areas of employment or in occupations other than those identified on the
These commenters also noted that the CMP assessment provision is confusing because § 503.23(b) and (c) suggest a formulaic means to determine a CMP (
An individual U.S. worker felt that the Department should not limit CMPs to a $10,000 maximum, and should instead impose treble damages payable to the worker and a fine covering the costs of the Department's investigation and enforcement. The maximum CMP amount is set at $10,000 in order to be consistent with the statutory limit under 8 U.S.C. 1184(c)(14)(A), the statutory enforcement authority delegated to WHD by DHS. As stated earlier, the Department does not believe this enforcement authority permits liquidated damages.
The NPRM's proposal to provide WHD with independent debarment authority is discussed under § 503.21. For the reasons stated under Debarment of Agents and Attorneys in 20 CFR 655.73, the Final Rule allows WHD to seek debarment of agents and attorneys for their own independent violations, and § 503.24(b) has been amended to that effect. Comments received regarding debarment that apply equally to OFLC and WHD are also discussed in the OFLC preamble discussion of debarment (20 CFR 655.73). With respect to the comments received from several worker advocacy organizations suggesting that the Department establish procedures to allow for workers and organizations of workers to intervene in and participate in WHD's debarment process, the Department has concluded that the Final Rule will not adopt additional procedures mandating that it
The NPRM defined and expanded the penalties for failure to cooperate with a WHD investigation, noting the federal criminal laws prohibiting interference with federal officers in the course of official duties and permitting WHD to recommend revocation to OFLC and/or initiate debarment proceedings. Several worker advocacy organizations commended the Department for making it clear to employers that they may face serious consequences for certain violations of the regulations. The Department is adopting this provision of the NPRM without change in the Final Rule.
The NPRM proposed revised language instructing employers how to submit payment to WHD. After receiving no comments, the Department is adopting this provision of the NPRM without change in the Final Rule.
The NPRM proposed few changes to the administrative proceedings from the 2008 Final Rule. These minor changes were intended to bring clarity to the administrative proceedings that govern H–2B hearings, and to achieve general consistency with the procedural requirements applicable to H–2A proceedings. The Department received no comments on the particular provisions proposed in subpart C of the NPRM. However, upon further internal review, the Department concluded that additional minor changes were necessary to make clear that the procedures contained in this subpart apply to any party or entity subject to the Administrator, WHD's determination to assess a civil money penalty, to debar, or to impose other appropriate administrative remedies, including for the recovery of monetary relief—not just the employer. Therefore, in the Final Rule, in §§ 503.41, 503.42, 503.43, and 503.50, the term employer is replaced with the term party or recipient(s) of the notice. The Department intends the terms party or recipient(s) of the notice to include the employer, agent, or attorney, as appropriate. These changes correct internal inconsistencies in the provisions proposed in this subpart of the NPRM, and will make these provisions consistent with the language used in 20 CFR 655.73(g) (OFLC debarment procedure).
The Department received numerous comments from worker advocacy organizations suggesting that workers should be provided notice of administrative actions and a right to intervene, as workers possess valuable information relevant to these proceedings such as the appropriateness of job qualifications and the assessment of unlawful recruitment fees. Similarly, an individual stakeholder, commented that employers are afforded procedures for seeking review of the Department's determinations, yet such procedures are not provided for workers.
The importance of worker communication with WHD by filing complaints, participating in investigations, and serving as witnesses in administrative or judicial proceedings cannot be understated; it is essential in carrying out WHD's enforcement obligations. However, the Department has concluded that the Final Rule will not adopt additional procedures mandating that it provide workers notice of administrative actions and a right to intervene in every case, for the reasons stated in OFLC's preamble under Integrity Measures (20 CFR 655.70–655.73), which also apply to WHD's administrative actions. Further, as noted under § 503.24, workers already participate in WHD investigations, which involve interviews with workers regarding program compliance. It is WHD's practice to provide notice to the individual complainants and their designated representatives and/or any third-party complainants when WHD completes an investigation by providing them a copy of the WHD Determination Letter. To further protect their interests, workers can seek, and have sought, intervention upon appeal to an Administrative Law Judge. See 20 CFR 18.10(c) and (d). Thus, the Department is adopting the provisions of this Subpart of the NPRM without further change in the Final Rule.
Under Executive Order (E.O.) 12866 and E.O. 13563, the Department must determine whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and to review by the OMB. Section 3(f) of the E.O. defines an economically significant regulatory action as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely and materially affects a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.
The Department has determined that this rule is an economically significant regulatory action under section 3(f)(1) of E.O. 12866. This regulation would have an annual effect on the economy of $100 million or more; however, it would not adversely affect the economy or any sector thereof, productivity, competition, jobs, the environment, or public health or safety in a material way. The Department also has determined that this rule is a significant regulatory action under sec. 3(f)(4) of E.O. 12866. Accordingly, OMB has reviewed this rule.
The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H–2B program. The Department believes that the practical ramifications of the 2008 Final Rule (
For these reasons the Department is promulgating the changes contained in the Final Rule.
The Department has considered a number of alternatives: (1) To promulgate the policy changes contained in this rule; (2) to take no action, that is, to leave the 2008 Final Rule intact; and (3) to consider a number of other options discussed in more detail below. We believe that this rule retains the best features of the 2008 Final Rule and adopts additional provisions to best achieve the Department's policy objectives, consistent with its mandate under the H–2B program.
The Department considered alternatives to a number of program provisions. First, the Department considered another alternative to the definition of full-time work: a 40-hour threshold instead of the 35-hour level proposed and actually implemented in this Final Rule. As discussed in detail in the preamble to proposed 20 CFR 655.5, the Department established a 35-hour minimum as the definition of full-time employment because it more accurately reflects full-time employment expectations when coupled with the obligation for the employer to accurately disclose the hours of work that will be offered each week, and is consistent with other existing Department standards and practices in the industries that currently use the H–2B program to obtain workers.
Second, this rule included a three-fourths guarantee requirement, with the Final Rule requiring that the guarantee be measured based on 12-week periods (if the period of the job order is 120 or more days) and 6 weeks (if the period of the job order is less than 120 days). The Department considered using 4-week periods, as proposed, and also considered retaining the language of the H–2A requirement, under which employers must guarantee to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays of the total length of the contract. The Department rejected this alternative because, while this would provide workers with significant protection, it would not be sufficient to discourage the submission of imprecise dates of need and/or imprecise numbers of employees needed and would therefore fail to protect U.S. and H–2B workers from periods of unforeseen underemployment.
The Department believes that the rule, which calculates the hours of employment offered in 12-week and 6-week periods, better ensures that workers' commitment to a particular employer will result in real jobs that meet their reasonable expectations. We do not believe this Final Rule will create any additional financial burden on employers who have accurately represented their period of need and number of employees needed, and will provide an additional incentive for applicants to correctly state all of their needs on the
Third, the Department considered omitting the registration of H–2B employers and instead retaining the current practice for the adjudication of the employer's temporary need and the labor market analysis to occur simultaneously. While this might be more advantageous for employers new to the program, it delays the vast majority of employers that are recurring users with relatively stable dates of need and that would benefit from separate adjudication of need and adequacy of recruitment. Moreover, employers and potential workers benefit from a recruitment process close in time to the actual date of need which a registration process, by pre-determining temporary need, expressly permits. Therefore, the Department rejected the alternative of simultaneous adjudication because it undercuts the Secretary's fulfillment of her obligations under the program.
Fourth, the Final Rule provides that employers may arrange and pay for workers' transportation and subsistence from the place from which the worker has come to the place of employment directly, advance at a minimum, the most economical and reasonable common carrier cost, or reimburse the worker's reasonable costs if the worker completes 50 percent of the period of employment covered by the job order if the employer has not previously reimbursed such costs. The Final Rule continues to require employers to provide return transportation and subsistence from the place of employment; however, the obligation attaches only if the worker completes the period of employment covered by the job order or if the worker is dismissed from employment for any reason before the end of the period. In addition, the Final Rule continues to provide that if a worker has contracted with a subsequent employer that has agreed to provide or pay for the worker's transportation to the subsequent employer's worksite, the subsequent employer must provide or pay for such expenses; otherwise, if this agreement is not made, the employer must provide or pay for that transportation and subsistence. The Final Rule reminds employers that the FLSA imposes independent wage payment obligations, where it applies. The Department considered requiring employers to reimburse the worker in the first workweek any cost of transportation and subsistence, as proposed, but rejected this alternative in response to commenter concerns.
Finally, the proposed rule required the employers to extend offers of employment to qualified U.S. workers referred by the SWAs until 3 days before the date of need or the date of departure of the last H–2B worker, whichever is later. In consideration of commenter concerns, and to taking into consideration USCIS regulations governing the arrival of H–2B workers, the Department has modified this requirement. In the Final Rule, employers are required to accept SWA referrals of qualified U.S. applicants until 21 days before the date of need, irrespective of the date of departure of the last H–2B worker.
The Department derives its estimates by comparing the baseline, that is, the program benefits and costs under the 2008 Final Rule, against the benefits and costs associated with the implementation of the provisions in this Final Rule. The benefits and costs of the provisions of this Final Rule are estimated as incremental impacts relative to the baseline. Thus, benefits and costs attributable to the 2008 Final Rule are not considered as benefits and costs of this Final Rule. We explain how the actions of workers, employers, and government agencies resulting from the Final Rule are linked to the expected benefits and costs.
The Department sought to quantify and monetize the benefits and costs of this Final Rule where feasible. Where we were unable to quantify benefits and costs—for example, due to data limitations—we describe them qualitatively. The analysis covers 10 years (2012 through 2021) to ensure it captures major benefits and costs that accrue over time.
In addition, the Department provides an assessment of transfer payments associated with certain provisions of the
The inputs used to calculate the costs of this rule are described below.
The Department estimates that from FY 2000–2007, there were an average of 185,879
The number of visas available in any given year in the H–2B program is 66,000, assuming no statutory changes in the number of visas available. Some costs, such as travel, subsistence, visa and border crossing, and reproducing the job order apply to these 66,000 workers. Employment in the H–2B program represents a very small fraction of the total employment in the U.S. economy, both overall and in the industries represented in this program. The H–2B program's annual cap of 66,000 visas issued per year (33,000 allocated semi-annually) represents approximately 0.05 percent of total nonfarm employment in the U.S. economy (129.8 million).
According to H–2B program data for FY 2007–2009, the average annual numbers of H–2B positions certified in the top five industries were as follows:
These numbers overestimate the number of actual H–2B workers, as the number of positions certified exceeds the number of H–2B workers in the country at a given time.
The Department estimates the number of H–2B workers in these industries based on the number of positions certified by dividing 115,500 H–2B workers (66,000 plus 33,000 staying one additional year plus 16,500 staying a third year) by the 236,706 positions certified per year on average during FY 2007–2009. This produces a scalar of 48.8 percent. Applying this scalar to the number of positions certified suggests that the number of H–2B workers in the top five industries is:
These employment numbers represent the following percentages of the total employment in each of these industries:
As these data illustrate, the H–2B program represents a small fraction of the total employment even in each of the top five industries in which H–2B workers are found.
The Department estimates that from FY 2000–2007, an average of 6,425 unique employers applied for H–2B workers, and of these, an average of 5,298 were granted certifications. Several of the Final Rule's provisions (the requirement for employers to translate the job order from English to a language understood by the foreign workers, and payment of visa and visa-related fees) will predominantly or only apply to employers that ultimately employ H–2B workers. As there is no available source of data on the number of H–2B employer applicants who ultimately employ H–2B workers, the Department uses the ratio of estimated H–2B workers in the country at a given time (115,500) to the number of positions certified in an average year (154,281) to derive a scale factor of 74.9 percent. Multiplying the average number of unique certified H–2B employer applicants from FY2000–2007 (5,298) by the scale factor (74.9) suggests that there are 3,966 unique certified H–2B employer applicants who ultimately employ H–2B workers.
Several provisions of the Final Rule extend to workers in corresponding employment, defined as those non-H–2B workers who perform work for an H–2B employer, where such work is substantially the same as the work included in the job order, or is substantially the same as other work performed by H–2B workers. Corresponding workers are U.S. workers employed by the same employer performing the substantially the same tasks at the same location as the H–2B workers, and they are entitled to at least the same terms and conditions of employment as the H–2B workers. Corresponding workers might be temporary or permanent; that is, they could be employed under the same job order as the H–2B workers for the same period of employment, or they could have been employed prior to the H–2B workers, and might remain after the H–2B workers leave. However, the Final Rule excludes two categories of workers from the definition of corresponding employment. Corresponding workers are entitled to the same wages and benefits that the employer provides to H–2B workers, including the three-fourths guarantee, during the period covered by the job order. The
There are no reliable data sources on the number of corresponding workers at work sites for which H–2B workers are requested or the hourly wages of those workers. The Department does not collect data regarding what we have defined as corresponding employees, and therefore cannot identify the numbers of workers to whom the obligations would apply.
Second, the Department asked its WHD field staff to provide information they might have on the number of corresponding workers employed by H–2B employers based on the data gathered during investigations. The number of U.S. workers similarly employed varies widely among the companies investigated, ranging from 0 to 310. No data on the number of H–2B workers was collected, though, so it is impossible to compare the pattern of employment of U.S. and H–2B workers. Because such data gathering was not the principal goal of the investigation, the data provided are the result of chance and what the investigator happened to record, rather than a systematic collection of worker counts relevant to the estimation of corresponding employment. Furthermore, the results of only 36 investigations were available. Finally, they did not represent a random sample of H–2B employers, but just that subset of employers that the Department had some reason to investigate.
Third, the Department reviewed a random sample of 225 certified and partially certified applications from FY2010 submitted by employers in response to Request for Information (RFIs) during the application process. While the 2011 version of ETA Form 9142 includes an optional item on the number of non-family full-time equivalent employees, that number includes all employees and not only the employees in corresponding employment. (See also the instructions to the Form 9142, which inform the employer to “[e]nter the number of full-time equivalent (FTE) workers the employer employs.”) Moreover, even if this number accounted for the number of corresponding employees, none of the applications in the random sample used the 2011 version of the form. Of the 225 applications reviewed, two applications gave the current number of employees as part of the other information submitted. Additionally, DOL examined data in 34 payroll tables that were provided to supplement the application. The payroll tables reported data by month for at least 1 year from 2007 to 2010 and included information such as the total number of workers, hours worked, and earnings for all workers performing work covered by the job order. These workers were broken down into categories for permanent workers (those already employed and performing the certified job) and for temporary workers (both H–2B workers and corresponding workers who responded to the job order). The Department divided the total payroll by the total hours worked across the two categories of workers to estimate an average hourly wage per permanent and temporary worker. The Department compared the total number of workers in months where permanent workers were paid more than and less than temporary employees for those months in which both were employed.
The Department found 7,548 temporary and 10,310 permanent worker-months (defined as one worker, whether full- or part-time, employed one month) in the 34 payroll tables examined. Of these, permanent employees were paid more than temporary employees in 9,007 worker-months, and were paid less than temporary employees in 1,303 worker months. This suggests the rule would have no impact on wages for 87 percent of permanent workers (9,007/10,310). Conversely, 13 percent of permanent workers (1,303/10,310), were paid less than temporary employees and would receive an increase in wages as a result of the rule. Calculating the ratio of 1,303 permanent worker-months to 7,548 temporary worker-months when permanent workers are paid less than temporary workers suggests that for every temporary worker-month, there are 0.17 worker-months where the permanent worker wage is less than the temporary worker wage. Extrapolating this ratio based on the Department's estimate that there are a total of 115,500 H–2B employees at any given time, this suggests that 19,939 permanent workers (115,500 × 0.17) would be eligible for pay raises due to the rule.
The Department also calculated the percentage difference in the corresponding and temporary worker wages in months where temporary workers were paid more. On average, corresponding workers earning less than temporary employees would need their wages to be increased 4.5 percent to match temporary worker wages.
For several reasons, however, the Department did not believe it was appropriate to use the data in the payroll tables to extrapolate to the entire universe of H–2B employers. First, because of the selective way in which these payroll records were collected by the Department, the distribution of occupations represented in the payroll tables is not representative of the distribution of occupations in H–2B applications. The 34 payroll tables examined by the Department included the following occupations:
The four payroll tables for landscaping and groundskeeping workers made up only 12 percent of the payroll tables, while applications for these workers comprised 35 percent of FY 2010 applications. Conversely, the 12 payroll tables from nonfarm animal caretakers made up 35 percent of the payroll tables in our sample, while applications for such workers made up only 6 percent of the FY 2010 applications.
Second, the total number of payroll tables or payroll records provided to the Department was very small. We found only 34 payroll tables in 225 randomly selected applications. Furthermore, payroll records in H–2B applications are provided in specific response to an RFI or in the course of a post-adjudication audit. In both instances the primary purpose of these records is to demonstrate compliance with program requirements, usually either to demonstrate proactively that the need for workers is a temporary need, or to demonstrate retroactively compliance with the wage obligation. Because payroll tables were submitted in response to an RFI rather than as a matter of routine in the application process, it is not clear that the data in the limited number of payroll tables for a given occupation are representative of all workers within that occupation in the H–2B program. Something triggered the RFI, presumably some indication that the need for temporary workers was not apparent, and therefore these applications are not representative of the 85 percent of applications that did not require a payroll table.
Third, the payroll wage information in these tables is provided at the group level, and the Department is unable to estimate how many individual corresponding workers are paid less than temporary workers in any given month. The payroll tables only allow a gross estimate of whether corresponding or temporary workers were paid more, on average, in a given month. Because wages would only increase for those U.S. workers currently making less than the prevailing wage, this information is necessary to determine the effect the rule would have on workers in corresponding employment. Finally, the Department has no data regarding the number of employees who would fall under the two exclusions in the definition of corresponding employment.
The Department, therefore, cannot confidently rely upon the payroll tables alone and has no other statistically valid data to quantify the total number of corresponding workers or the number that would be eligible for a wage increase to match the H–2B workers. Nevertheless, the Department believes that the payroll tables show that the impact of the corresponding employment provision would be relatively limited, both as to the number of corresponding workers who would be paid more and as to the amount their wages would increase.
Based upon all the information available to us, including the payroll tables, the anecdotal evidence in the comments, and the Department's enforcement experience, the Department has attempted to quantify the impact of the corresponding employment provision. We note that the 2008 Final Rule already protects U.S. workers hired in response to the required recruitment, including those U.S. workers who were laid off within 120 days of the date of need and offered reemployment. Therefore, this rule will have no impact on their wages. This Final Rule simply extends the same protection to other employees performing substantially the same work included in the job order or substantially the same work that is actually performed by the H–2B workers. Based in particular upon the numerous employer commenters who asserted that they were unable to find U.S. workers to perform the types of jobs typically encompassed within their job orders, the Department believes that a reasonable estimate is that H–2B workers make up 75% to 90% of the workers in the particular job and location covered by a job order; we assume, therefore, that 10% to 25% of the workers will be U.S. workers newly covered by the rule's wage requirement. This assumption does not discount at all for the fact, as noted above, that some of these U.S. workers already are covered by the prevailing wage requirement or could be covered by one of the two exclusions from the definition of corresponding employment. Carrying forward with our estimate that there are a total of 115,500 H–2B workers employed at any given time, we thus estimate that there will be between 12,833 (if 90% are H–2B workers) and 38,500 (if 75% are H–2B workers) U.S. workers newly covered by the corresponding employment provision.
The Department updated the wage and benefit costs under the proposed rule by incorporating the most recent OES wage data available from BLS, and its most recent estimate of the ratio of fringe benefit costs to wages, 30.4 percent.
To represent the hourly compensation rate for an administrative assistant/executive secretary, the Department used the median hourly wage ($22.06) for SOC 43–6011 (Executive Secretaries and Executive Administrative Assistants).
For registry development and maintenance activities, the proposed rule used fully loaded rates based on an Independent Government Cost Estimate
The 2011 wages used in the analysis are summarized in Table 3.
This Final Rule applies to H–2B employers in the Territory of Guam only in that it requires them to obtain prevailing wage determinations in accordance with the process defined at 20 CFR 655.10. To the extent that this process incorporates the new methodology defined in the January 2011 prevailing wage rule, it is possible that some H–2B employers in Guam will experience an increase in their H–2B prevailing wages. The Department expects that the H–2B employers in Guam working on Federally-funded construction projects subject to the Davis-Bacon and Related Acts (DBRA) are already paying the Davis-Bacon Act prevailing wage for the classification of work performed and that such employers may not experience an increase in the wage levels they are required to pay. Employers performing work ancillary or unrelated to DBRA projects, and therefore paying a wage potentially lower than the Davis-Bacon Act prevailing wage, may receive increased prevailing wage determinations under this Final Rule. However, because the H–2B program in Guam is administered and enforced by the Governor of Guam, or the Governor's designated representative, the Department is unable to quantify the effect of this provision on H–2B employers in Guam due to a lack of data.
The Department's analysis below considers the expected impacts of the Final Rule provisions against the baseline (
Under the Proposed Rule, the Department specified that employers guarantee to offer hours of employment equal to at least three-fourths of the certified work days during the job order period, and that they use successive 4-week periods to measure the three-fourths guarantee. The use of 4-week periods was proposed (as opposed to measuring the three-fourths guarantee over the course of the entire period of need as in the H–2A program) in order to ensure that work is offered during the entire certified period of employment. The Department received comments from employers expressing concern that they are unable to predict the exact timing and flow of tasks by H–2B workers, particularly at the beginning and end of the period of certification, and that they need more scheduling flexibility due to unexpected events such as extreme weather or catastrophic man-made events. Acknowledging these commenters' concerns, the Department lengthened the calculation period from 4 weeks to 12 weeks for job orders lasting at least 120 days and 6 weeks for job orders lasting less than 120 days. In order to ensure that the capped H–2B visas are appropriately made available to employers based upon their actual need for workers, and to ensure that U.S. workers can realistically evaluate the job opportunity, the Department maintains that employers should accurately state their beginning and end dates of need and the number of H–2B workers needed. To the extent that employers submit
There are two cohorts of corresponding workers: (1) The U.S. workers hired in the recruitment process and (2) other U.S. workers who work for the employer and who perform
As discussed above, the Department was unable to identify a reliable source of data providing the number of corresponding workers at work sites for which H–2B workers are requested or the hourly wages of those workers. Nevertheless, the Department has attempted to quantify the impacts associated with this provision. All increases in wages paid to corresponding workers under this provision represent a transfer from participating employers to U.S. workers.
In the absence of reliable data, the Department believes it is reasonable to assume that H–2B workers make up 75 to 90 percent of the workers in a particular job and location covered by the job-order, with the remaining 10 to 25 percent of workers being corresponding workers newly covered by the rule's wage requirement. When these rates are applied to our estimate of the total number of H–2B workers (115,500) employed at any given time, we estimate that the number of corresponding workers newly covered by the corresponding employment provision will be between 12,833 and 38,500. This is an overestimate of the rule's impact, since some of the employees included in the 10–25 percent proportion of corresponding workers are those hired in response to required recruitment and are therefore already covered by the existing regulation, and some employees will fall within one of the two exclusions under the definition.
The prevailing wage calculation represents a typical worker's wage for a given type of work. Since the prevailing wage calculation is based on the current wages received by all workers in the occupation and area of intended employment, it is reasonable to assume that 50 percent of the corresponding workforce earns a wage that is equal to or greater than the calculated prevailing wage. Conversely, it would be reasonable to assume that 50 percent of the workers in corresponding employment earn less than the prevailing wage and would have their wages increased as a result of the Final Rule. Applying this rate to our estimate of the number of workers covered by the corresponding employment provision would mean that the number of newly-covered workers is between 6,417 and 19,250.
We also believe it is reasonable to assume that the typical hourly wage increase for the newly-covered U.S. workers will be less than the average increase for H–2B workers resulting from the Wage Rule. This reflects our expectation that a majority of the newly-covered corresponding workers are currently earning close to the new H–2B prevailing wage (which represents the mathematical mean wage for the occupation in the area of intended employment). These corresponding workers, who would already be part of an employer's staff in occupations for which a certification is being sought, have likely experienced some wage growth during their tenure with the employer; therefore, their wage increase should be significantly less than the hourly wage increase for the H–2B workers in that occupations.
We also expect that few corresponding workers are likely to receive a wage increase that is close to or greater than the weighted average hourly increase for H–2B workers. This small number of incumbent employees would likely be limited to those hired shortly before an employer applied for an H–2B Temporary Employment Certification. Because they would not have had sufficient tenure to experience any wage growth, their hourly wage increase may be equivalent to the average wage increases provided to H–2B workers under the Wage Rule.
Therefore, we believe that U.S. workers' wage increases will be largely distributed between the previous H–2B prevailing wage and the new prevailing wage. Using the weighted average hourly wage increase for H–2B workers to approximate an upper bound for the increase in corresponding workers' wages, we assume that the wage increases for newly-covered workers will be distributed between three hourly-wage intervals: 30 percent of the newly-covered corresponding workers will receive an average hourly wage increase of $1.00; 15 percent will receive a wage increase of $3.00 per hour; and, 5 percent will receive an average hourly increase of $5.00, which encompasses the weighted average hourly wage increase for H–2B workers from the Wage Rule.
Finally, we estimate that these workers in corresponding employment will have their wages increased for 1,365 hours of work. This assumes that every H–2B employer is certified for the maximum period of employment of nine months (39 weeks), and that every corresponding worker averages 35 hours of work per week for each of the 39 weeks. This is an upper-bound estimate since it is based upon every employer voluntarily providing in excess of the number of hours of work required by the three-fourths guarantee for the maximum number of weeks that can be certified.
Therefore, based on all the assumptions noted above, we estimate the total annual transfer incurred due to the increase in wages for newly-covered workers in corresponding employment ranges from $17.5 million to $52.6 million. See Table 4.
Also, based on our review of available information on the characteristics of industries employing H–2B workers, there will be natural limit on the number of corresponding workers whose wages might be affected by the revised rule. The Department found that the two industries that most commonly employ H–2B workers are landscaping services and janitorial services.
Establishments in these industries tend to be small: Approximately 7 percent of janitorial service and 3 percent of landscaping establishments have more than 50 year-round employees; and, 86 percent of janitorial services and 91 percent of landscaping establishments have fewer than 20 year-round employees. Therefore, we believe that a majority of H–2B employers are small-sized firms whose workforces are comprised predominately of H–2B workers.
This assertion is consistent with employer comments on the proposed rule that firms hire H–2B workers primarily because they find it difficult to fill those positions with U.S. workers. This is also consistent with the fact that 20 percent in janitorial services and 30 percent in landscaping do not even operate year-round. Taken in total, the small size of a typical H–2B employer would place limits on the number of potential corresponding workers.
Finally, to the extent that firms in landscaping and janitorial services incur increased payroll costs, those increased costs are unlikely to have a significant aggregate impact. U.S. Bureau of Economic Analysis (BEA) input-output analysis of the economy demonstrates that the demand for “Services to Buildings and Dwellings” (the sector in
BEA calculates Direct Requirements tables that indicate the dollar amount of input from each industry necessary to produce one dollar of a specified industry's output. These results show that building services account for a relatively negligible proportion of production costs: Of 428 sectors, building services account of less than $0.01 for each dollar of output in 414 sectors, and less than $0.005 for each dollar of output in 343 sectors. The largest users of these services tend to be retail trade, government and educational facilities, hotels, entertainment and similar sectors. In other words, these services do not impact industrial productivity or the production of commodities that will result in large impacts that ripple throughout the economy. To further place this in perspective, Services to Buildings and Dwellings, upon which this characterization is based includes more than just the janitorial and landscaping service industries. The estimated 53,173 H–2B workers hired by these industries account for only 3.1 percent of employment in the Services to Buildings and Dwellings sector, even including impacts through corresponding employee provisions (described above as limited), and are only a small fraction of the already small direct requirements figures for this sector.
Therefore, based on the characteristics of industries that use H–2B workers, only a relatively small fraction of employees and firms in those industries likely will be affected by corresponding worker provisions.
However, because the Department does not have data on the number of corresponding workers or their wages relative to prevailing wages, it cannot project firm-level impacts to those firms that do have permanent corresponding workers. Standard labor economic models suggest that an increase in the cost of employing U.S. workers in corresponding employment would reduce the demand for their labor. Because employers cannot replace U.S. workers laid off 120 days before the date of need or through the period of certification with H–2B workers, the Department concludes that there would be no short-term reduction in the employment of corresponding workers among participating employers. In the long-run, however, these firms might be reluctant to hire additional permanent staff. The extent to which such unemployment effects might result from the prevailing wage provision will be a function of: The number of permanent staff requiring wage increases; the underlying demand for the product or service provided by the firm during off-peak periods; and the firm's ability to substitute for labor to meet that off-peak demand for its products or services. First, the fewer the number of permanent staff receiving wage increases, then the smaller the increase in the cost of producing the good or service. Second, the demand for labor services is a “derived demand.” That is, if the product or service provided has few substitutes, purchasers would prefer to pay a higher price rather than do without the product. Third, some goods and services are more difficult to produce than others by substituting equipment or other inputs for labor services. In summary, if increased wages result in a small overall cost increase, demand for the product is inelastic, and there are few suitable substitutes for labor in production, then unemployment effects are likely to be relatively small.
The Final Rule requires H–2B employers to provide workers—both H–2B workers and those in corresponding employment who are unable to return to their permanent residences—with transportation and daily subsistence to the place of employment from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, if the worker completes 50 percent of the period of the job order. The employer must also pay for or provide the worker with return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer if the worker completes the period of the job order or is dismissed early. The impacts of requiring H–2B employers to pay for employees' transportation and subsistence represent transfers from H–2B employers to workers because they represent distributional effects, not a change in society's resources.
To estimate the transfer related to transportation, the Department first
The Department received a comment from a worker advocacy organization requesting clarification that inbound and outbound transportation costs include the expenses incurred between their home community and the consular city, and between the consular city and the place of employment in the United States. In response, the Department confirms that this is the intent of the rule. Therefore, in this section the Department accounts for a cost not clearly accounted for in the proposed rule: The cost of travel from the worker's home to the consular city to obtain a visa. As in the proposed rule, the Department also accounts for travel from the consular city to the place of employment (assumed to be St. Louis, MO for the purpose of cost estimation). Where these costs were given in foreign currency, the Department converted them to U.S. dollars using exchange rates effective July 11, 2011.
Transportation costs were calculated by adding two components: the estimated cost of a bus or ferry trip from a regional city
The revised travel cost estimates are presented in Table 6. The Department estimated the roundtrip transportation costs by doubling the weighted average one-way cost (for a roundtrip travel cost of $929), then multiplying by the annual number of H–2B workers entering the U.S. (66,000). The Department estimates average annual transfer payments associated with transportation expenditures to be approximately $61.3 million. This estimate is an increase of approximately $23.5 million over the Proposed Rule estimate of $37.8 million. The addition of travel costs from the worker's hometown to the consular city accounts for approximately $2.9 million (12 percent) of this increase and the overall increase in average airfares accounts for $20.6 million (88 percent). It is not possible for the Department to determine how much of the cost of transportation the employer is already paying, however, in order to secure the workers or because of the employer's obligations under the FLSA. (Under the FLSA, the majority of H–2B employers are required to pay for the proportion of inbound and outbound transportation costs that would otherwise bring a worker's earnings below the minimum wage in the first and last workweeks of employment.) To the extent that this does already occur, this transportation transfer is an upper-bound estimate. The Department also believes we have over-estimated this transfer for the additional reason that inbound transportation is only due for workers who complete 50 percent of the job order and outbound transportation is due only for those who complete the full job order or are dismissed early.
The proposed rule did not address inbound and outbound transportation to and from the place of employment for corresponding workers who are unable to return daily to their permanent residences. The Department estimates an approximate unit cost for each traveling corresponding worker by taking the average of the cost of a bus ticket to St. Louis from Fort Wayne, IN ($91), Pittsburgh, PA ($138), Omaha, NE ($93), Nashville, TN ($86), and Palmdale, CA ($233).
Some employers have expressed concern that the rule's provision that employers reimburse workers for transportation costs will lead to workers quitting soon after the start date and thus in effect receiving a free trip to the city of their employment. The Department has addressed this concern with a provision that workers are not reimbursed for inbound travel until they work for half of the job order work period, and they do not receive outbound travel unless they complete the work period or are dismissed early. Therefore, this estimate also is an upper-bound estimate for these reasons as well. Because the Department has no basis for estimating the number of workers in corresponding employment who will travel to the job from such a distance that they are unable to return daily to their permanent residence, or to estimate what percentage of them will remain on the job through at least half or all of the job order period, we are unable to further estimate the total transfer involved.
We estimated the transfer related to subsistence payments by multiplying the annual cap set for the number of H–2B workers generally entering the U.S. (66,000) by the subsistence per diem ($10.64), and the roundtrip travel time for the top ten H–2B countries (4 days). In the Proposed Rule the Department estimated a weighted average roundtrip travel time of 1.055 days, but in response to a comment from a workers' advocacy organization the Department has increased this estimate to account for workers' travel to the consular city to obtain a visa. The roundtrip travel time now includes 3 days to account for travel from the worker's home town to the consular city and from the consular city to the place of employment, and 1 day to account for the workers' transportation back to their home country. Multiplying by 66,000 new entrants per year and the subsistence per diem of $10.64 results in average annual transfers associated with the subsistence per diem of approximately $2.8 million (see Table 8). Again, this is an upper-bound estimate because the inbound subsistence reimbursement only is due for workers who complete 50 percent of the period of the job order and outbound subsistence is due only for those who complete the full job order period or are dismissed early.
This provision applies not only to H–2B workers, but also to workers in corresponding employment on H–2B worksites who are recruited from a distance at which the workers cannot reasonably return to their residence within the same workday. Assuming that each worker can reach the place of employment within 1 day and thus would be reimbursed for a total of 2 roundtrip travel days at a rate of $10.64 per day, each corresponding worker would receive $21.28 in subsistence payments. The Department was unable to identify adequate data to estimate the number of corresponding workers who are unable to return to their residence daily or, as a consequence, the percent of corresponding workers requiring payment of subsistence costs; thus the total cost of this transfer could not be estimated.
The Department received a comment from a workers' advocacy organization requesting clarification that inbound and outbound transportation costs include the expenses incurred between their home community and the consular city and between the consular city and the place of employment in the U.S. The Department clarifies that the proposed rule considered any expenses incurred between a worker's hometown and the consular city to be within the scope of inbound transportation and subsistence costs, and therefore includes an additional cost not accounted for in the proposed rule: lodging costs while H–2B workers travel from their hometown to the consular city to wait to obtain a visa and from there to the place of employment. The Department estimates that H–2B workers will spend an average of two nights in an inexpensive hostel-style accommodation and that the costs of those stays in consular cities of the ten most common countries of origin are as follows: Monterrey, $11; Kingston, $13; Guatemala City, $14; Manila, $7; Bucharest, $11; Pretoria, $19; London, $22; Ottawa, $30; Tel Aviv, $22; and Canberra, $26.
Under the 2008 Final Rule, visa-related fees—including fees required by the Department of State for scheduling and/or conducting an interview at the consular post—may be paid by the temporary worker. This Final Rule, however, requires employers to pay visa fees and associated consular expenses. Requiring employers to bear the full cost of their decision to hire foreign workers is a necessary step toward preventing the exploitation of foreign workers with its concomitant adverse effect on U.S. workers. As explained in the Preamble, government-mandated fees such as these are integral to the employer's choice to use the H–2B program to bring temporary foreign workers into the United States.
The reimbursement by employers of visa application fees and fees for scheduling and/or conducting an
The Final Rule ensures that U.S. workers are provided with better access to H–2B job opportunities by requiring employers to continue to hire any qualified and available U.S. worker referred to them from the SWA until 21 days before the date of need, representing an increase in the recruitment period compared to the baseline. The rule also introduces expanded recruitment provisions, including requiring employers to notify their current workforce of the job opportunity and contact their former U.S. employees from the previous year. The enhanced recruitment period and activities improve the information exchange between employers, SWAs, the public and workers about job availability, increasing the likelihood that U.S. workers will be hired for those jobs.
The benefits to U.S. workers also apply to sections “i” through “k” below, which discuss additional provisions aimed at further improving the recruitment of U.S. workers.
The extension of the referral period in this Final Rule will likely result in more U.S. workers applying for these jobs, requiring more SWA staff time to process additional referrals. The Department does not have estimates of the additional number of U.S. applicants, and thus is unable to estimate the costs to SWAs associated with this provision.
The Department believes that hiring a U.S. worker will cost employers less than hiring an H–2B worker, as transportation and subsistence expenses will likely be reduced, if not avoided entirely. The cost of visa fees will be entirely avoided if U.S. workers are hired. Because the Department has not identified appropriate data to estimate any increase in the number of U.S. workers that might be hired as a result of the Final Rule's enhanced recruitment, it is unable to estimate total cost savings. Likewise, the enhanced recruitment period along with more extensive recruitment activities and a number of program changes that should make these job opportunities more desirable should generate an increased number of local referrals for whom no transportation or subsistence costs will be incurred. Since the number of such workers cannot be estimated with precision, these cost saving are not factored into this analysis however we are confident the actual overall costs to employers for transportation and subsistence will be lower than the estimates provided here.
Under the Final Rule, an employer may be directed by the CO to conduct additional recruitment if the CO has determined that there may be qualified
In response to the NPRM, the Department received a comment from an employer expressing concern that the NPRM understated the cost of placing a newspaper advertisement that would capture all the requirements of proposed 20 CFR 655.41. The Department reexamined its original estimate ($25.09), agrees that it was too low, and has updated the original calculation. While the cost estimate has increased, it does not reflect any additional advertising requirements beyond those proposed. The higher estimate is rather a more accurate reflection of the cost of an advertisement of sufficient length to include the required information and assurances contained in 20 CFR 655.41. The Department also updated the mix of newspapers used in the analysis to better represent different sized communities in areas in which a significant number of H–2B positions were certified in FY 2009.
To estimate the cost of a newspaper advertisement, we calculated the cost of placing a classified advertisement in the following newspapers: Virginia-Pilot ($725),
The Department estimates that no more than 10 percent of employer applicants (
To account for labor costs in posting additional ads, the Department multiplied the estimated number of unique employer applicants required to conduct additional recruiting (3,213) by the estimated time required to post the advertisement (0.08 hours, or 5 minutes) and the loaded hourly compensation rate of an administrative assistant/executive secretary ($28.77). The result, $0.01 million, was added to the average annual cost of CO-directed recruiting activities for a total of approximately $1.1 million (see Table 11).
It is possible that employers will incur costs from interviewing applicants who are referred to H–2B employers by the additional recruiting activities. However, the Department is unable to quantify the impact.
The analysis performed for the Proposed Rule included a cost for employers to contact the local union to locate qualified U.S. workers when seeking to fill positions in occupations and industries that are traditionally unionized. Under this Final Rule, union notification is the responsibility of the SWA, and no costs to employers are included.
Under the Final Rule, the Department will post and maintain employers' H–2B job orders, including modifications approved by the CO, in a national and publicly accessible electronic job registry. The electronic job registry will serve as a public repository of H–2B job orders for the duration of the referral period. The job orders will be posted in the registry by the CO upon the acceptance of each submitted
The electronic job registry will improve the visibility of H–2B jobs to U.S. workers. In conjunction with the longer referral period under the Final Rule, the electronic job registry will expand the availability of information about these jobs to U.S. workers, and therefore improve their employment opportunities. In addition, the establishment of an electronic job registry will provide greater transparency of the Department's administration of the H–2B program to the public, members of Congress, and other stakeholders. Transferring these job orders into electronic records for the electronic job registry will result in a more complete, real-time record of job opportunities for which H–2B workers are sought. Employers seeking temporary workers, in turn, will likely experience an increase in job applications from U.S. workers, and thus may not incur the additional expenses of hiring H–2B workers. The Department, however, is not able to estimate the increase in job applications resulting from the electronic job registry, and thus is unable to quantify this benefit.
The establishment of an electronic job registry in this Final Rule represents increased maintenance costs to the Department. The Department has reduced its cost estimates from the proposed rule as it can rely on design and development resources already used in implementing the H–2A job registry. The Department estimates that first year costs will be 25 percent of the first year costs under the H–2A program (25 percent of $561,365, or $140,341) and that subsequent year costs will be 10 percent of the costs under the H–2A program (10 percent of $464,341, or $46,434). Using the loaded hourly rate for all relevant labor categories ($1,238) suggests that 113 labor hours will be required in the first year, and 38 labor hours will be required in subsequent years (see Table 12).
The Final Rule requires an employer to provide a copy of the job order to H–2B workers outside of the United States no later than the time at which the worker applies for the visa, and to a worker in corresponding employment no later than the day that work starts. For H–2B workers changing employment from one certified H–2B employer to another, the copy must be provided no later than the time the subsequent H–2B employer makes an offer of employment. The job order must be translated to a language understood by the worker.
We estimate two cost components for the disclosure of job orders: The cost of reproducing the document containing the terms and conditions of employment, and the cost of translation.
The cost of reproducing job orders does not apply to employers of reforestation workers because the Migrant and Seasonal Agricultural Worker Protection Act already requires these employers to make this disclosure in a language common to the worker. According to H–2B program data for FY 2000–2007, 88.3 percent of H–2B workers work in an industry other than reforestation, suggesting that the job order will need to be reproduced for 102,012 (88.3 percent of 115,500) H–2B workers. We estimate the cost of reproducing the terms and conditions document by multiplying the number of affected H–2B workers (102,012) by the number of pages to be photocopied (three) and by the cost per photocopy ($0.12). The Department estimates average annual costs of reproducing the document containing the terms and conditions of employment to be approximately $0.04 million (see Table 13).
For the cost of translation, we assume the provision will impact only employers who are hiring H–2B workers. Therefore, the Department uses its estimate of the number of certified employer applicants who ultimately hire H–2B workers in this calculation. This suggests that translation costs potentially apply to 3,966 H–2B employers. The Department estimates that 83.9 percent of H–2B workers from the top ten countries of origin do not speak English,
Summing the costs of reproducing and translating the job order results in total costs related to disclosure of the job order of $0.3 million (see Table 13).
The 2008 Final Rule used an attestation-based model: employers conducted the required recruitment before submitting an
The return to a certification model in which employers demonstrate compliance with program obligations before certification will improve worker protections and reduce various costs for several different stakeholders. Greater compliance will provide improved administration of the program, conserving government resources at both the State and Federal level. In addition, employers will be subject to fewer requests for additional information and denials of Applications, decreasing the time and expense of responding to these Department actions. Finally, it will result in the intangible benefit of increased H–2B visa availability to those employers who have conducted bona fide recruitment around an actual date of need. The Department, however, is not able to estimate the economic impacts of these several effects and is therefore unable to quantify the related benefits.
The elimination of the attestation-based model will impose minimal costs on employers because they will not be required to produce new documents, but only to supplement their recruitment report with additional information (including the additional recruitment conducted, means of posting the job opportunity, contact with former U.S. workers, and contact with labor organizations where the occupation is customarily unionized).
We estimated two costs for the elimination of the attestation-based model: The material cost of reproducing and mailing the documents, and the associated labor cost. The Department estimated material cost equal to $2,023, calculated by multiplying the scaled number of H–2B employers (3,966) by the estimated additional number of pages that must be submitted (three) and the additional postage required to ship those pages ($0.17). Estimated labor cost of $9,087 was calculated by multiplying the scaled number of H–2B employers (3,966) by the time needed to reproduce and mail the documents (0.08 hours, or 5 minutes) and the hourly labor compensation of an administrative assistant/executive secretary ($28.77). Summing these two components results in incremental costs of $11,531 per year associated with the elimination of the attestation-based model (see Table 14).
Under the Final Rule, H–2B employers must retain documentation in addition to that required by the 2008 Final Rule. The Department assumes that each H–2B employer will purchase a filing cabinet at a cost of $49.99
The Proposed Rule would have required employers to notify the local SWA of the time at which the last H–2B worker departs for the place of employment, if the last worker has not departed for the work site at least 3 days before the date of need. Under the Final Rule, the obligation to hire U.S. workers will end 21 days before the date of need and the employer is not required to provide any notice to the local SWA, thus eliminating the costs associated with this proposed provision.
Under this Final Rule, SWAs will see both additions to and reductions from its current, baseline workload. Additional responsibilities that the SWAs will take on include contacting labor organizations to inform them about a job opportunity when the occupation or industry is customarily unionized, and accepting and processing a likely higher number of U.S. applicants during the newly extended recruitment period. The Department, however, does not have reliable data to measure these increased activities and is therefore unable to provide an estimate of any increased workload.
In contrast, SWAs will no longer be responsible for conducting employment eligibility verification activities. These activities include completion of Form I–9 and vetting of application documents by SWA personnel.
Under the 2008 Final Rule, SWAs are required to complete Form I–9 for applicants who are referred through the SWA to non-agricultural job orders, and inspect and verify the employment eligibility documents furnished by the applicants. Under this Final Rule SWAs will no longer be required to complete this process, resulting in cost savings. Due to a lack of data on the number of SWA referrals, we are not able to quantify this benefit.
During the first year that the Final Rule will be in effect, H–2B employer applicants will need to learn about the new processes and requirements. We estimate the cost to read and understand the rule by multiplying the average number of unique H–2B employer applicants in FY 2000–2007 (6,425) by the time required to read the new rule and associated educational and outreach materials (3 hours), and the loaded hourly wage of a human resources manager ($62.17). In the first year of the rule, this amounts to approximately $1.2 million in labor costs (see Table 16).
The Final Rule requires employers applying for H–2B certification to post a notice of the job opportunity in two conspicuous locations at the place of anticipated employment (when there is no union representative) for at least 15 consecutive days. This provision entails additional reproduction costs. To obtain the total cost incurred due to the job posting requirement, we multiplied the
In addition, the Final Rule requires employers to post and maintain in a conspicuous location at the place of employment a poster provided by the Secretary which sets out the rights and protections for workers. The poster must be in English and, to the extent necessary and as provided by the Secretary, foreign language(s) common to a significant portion of the workers if they are not fluent in English. To estimate the cost of producing workers' rights posters, we multiply the estimated number of H–2B employers (6,425) by the cost of downloading and printing the poster ($0.12). In total, the cost of producing workers' rights posters is $771 per year (see Table 18). If an employer needs to download and print additional versions of the poster in languages other than English, this would result in increased costs.
Table 19 presents a summary of the costs associated with this Final Rule. Because of data limitations on the number of corresponding workers and U.S. workers expected to fill positions currently held by H–2B workers, the Department was not able to monetize any costs of the rule that would arise as a result of deadweight losses associated with higher employment costs under the Final Rule. However, because the size of the H–2B program is limited, the Department expects that any deadweight loss would be small.
The monetized costs displayed are the yearly summations of the calculations described above. The total undiscounted costs of the rule in Years 1–10 are expected to total approximately $15.2 million.
Summing the present value of the costs in Years 1–10 results in total discounted costs over 10 years of $10.3 million to $12.8 million (with 7 percent and 3 percent discounting, respectively) (see Table 20).
Because the Department was not able to monetize any benefits for this Final Rule due to the lack of adequate data, the monetized costs exceed the monetized benefits both at a 7 percent and a 3 percent discount rate.
The Department was unable to identify data to provide monetary estimates of several important benefits to society, including increased employment opportunities for U.S. workers and enhancement of worker protections for U.S. and H–2B workers. These important benefits result from the following provisions of this Final Rule: transportation to and from the place of employment, payment of visa and consular fees, the enhanced U.S. worker referral period, additional recruiting directed by the CO, the electronic job registry, the job posting requirement, and enhanced integrity and enforcement provisions. Because the enhanced referral period extends the time during which jobs are available to U.S. workers, it increases the likelihood that U.S. workers are hired for those jobs. In addition, the electronic job registry will improve the visibility of H–2B jobs to U.S. workers and enhance their employment opportunities. In addition, the establishment of a electronic job registry will provide greater transparency with respect to the Department's administration of the H–2B program to the public, members of Congress, and other stakeholders. These benefits, however, are difficult to quantify due to data limitations.
Several unquantifiable benefits result in the form of cost savings. As more U.S. workers are hired as a result of this Final Rule, employers will avoid visa and consular fees for positions that might have otherwise been filled with H–2B workers; it is also likely that transportation costs will be lower. Under the 2008 Final Rule, SWAs are required to complete Form I–9 for non-agricultural job orders, and inspect and verify the employment eligibility documents furnished by the applicants. Under this Final Rule, SWAs will no longer be required to complete this process, resulting in cost savings to SWAs. We were not able to quantify these cost savings due to a lack of data regarding the number of I–9 verifications SWAs have been performing for H–2B referrals.
After considering both the quantitative and qualitative impacts of this Final Rule, the Department has concluded that the societal benefits of the rule justify the societal costs.
The Regulatory Flexibility Act of 1980, as amended (RFA), requires agencies to prepare regulatory flexibility analyses and make them available for public comment when proposing regulations that will have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603. If the rule is not expected to have a significant economic impact on a substantial number of small entities, the RFA allows an agency to certify such, in lieu of preparing an analysis. See 5 U.S.C. 605. For the reasons explained in this section, the Department believes this rule is not likely to have a significant impact on a substantial number of small entities and, therefore, a Final Regulatory Flexibility Analysis (FRFA) is not required by the RFA. However, in the interest of transparency we have prepared the following FRFA to assess the impact of this regulation on small entities, as defined by the applicable Small Business Administration (SBA) size standards. The Chief Counsel for Advocacy of the Small Business Administration was notified of a draft of this rule upon submission of the rule to OMB under E.O. 12866, as amended, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993; 67 FR 9385, Feb. 28, 2002; 72 FR 2763, Jan. 23, 2007).
The Department seeks to help employers meet their legitimate short-term temporary labor needs where and when there are no available U.S. workers and to increase worker protections and strengthen program integrity under the H–2B labor certification program. The legal basis for the rule is the Department's authority, as delegated from DHS under 8 U.S.C. 1184(c) and its regulations at 8 CFR 214.2(h)(6), to grant temporary labor certifications under the H–2B program.
The Department has determined for a variety of reasons that a new rulemaking effort is necessary for the H–2B program. The Department believes that the practical ramifications of the 2008 Final Rule (
The protections in this rule are essential to meet the regulatory mandate to prevent adverse effect on wages and working conditions for U.S. workers, including measures to ensure greater access to jobs for U.S. workers through enhanced recruitment in order to satisfy the statutory requirement that certifications be granted only if no U.S. workers are available.
Additionally, the rule seeks to help employers meet legitimate short-term temporary labor needs where and when there are no available U.S. workers. As the program has evolved, stakeholders in diverse industries throughout the country repeatedly have expressed concerns that some employers were inappropriately using H–2B workers for job opportunities that were permanent, thereby denying U.S. workers the opportunity for long-term employment. These employers' actions are to the detriment of other employers with a legitimate temporary need that are ultimately denied access to the program due to the annual cap on available visas. By preventing employers with a long-term permanent need from participating in the H–2B program, the Department would provide employers with genuine unmet temporary needs with a greater opportunity to participate in the program.
For these reasons the Department is promulgating the changes contained in the Final Rule.
The Department received and carefully considered written comments
Advocacy stated that the economic impact calculated in the IRFA was underestimated because it failed to account for higher wages that employers may have to pay resulting from a separate rule published by the Department on January 13, 2011 changing the way H–2B prevailing wages are determined. Further, Advocacy believed that the IRFA also underestimated the proportion of small businesses that would be impacted. An employer association commented that in order to accurately assess the proposed rule's impact to small businesses, the Department could have conducted a survey to identify the number of small businesses affected and the number in each of the industry sectors that commonly uses the H–2B program.
In response to Advocacy's assertions, the Department notes that it accounted for the full cost impact of the January 2011 prevailing wage Final Rule in that rule's FRFA. Regarding this rule's IRFA calculation of the proportion of small businesses affected, the Department evaluated the economic impact across 1.1 million employers, which represents all small businesses (according to the SBA's definition of a small entity) within the five most common industries using the H–2B program. In calculating the impact of this rule, the Department used this universe of small businesses to be consistent with SBA guidance (see A Guide for Government Agencies: How to Comply with the RFA, Small Business Administration, at 20: “the substantiality of the number of businesses affected should be determined on an industry-specific basis and/or the number of small businesses overall.”) and because any of those small employers could request certification for H–2B workers. In the
An employer association also commented that proposed provisions would remove most temporary labor supply services from H–2B program eligibility, and that the IRFA failed to account for the lost revenue to these U.S. businesses. While the NPRM proposed to eliminate all job contractors from participating in the H–2B program, the Final Rule allows job contractors to continue to participate in the program only if they are able to demonstrate through documentation their own one-time occurrence or seasonal need, and not that of their employer-clients. The Department recognizes that while providing necessary protections to U.S. workers, this rulemaking may also result in some small businesses receiving fewer, or no, temporary labor certifications. However, in typical years, demand for H–2B visas exceeds the program's annual statutory cap of 66,000, meaning that other small businesses will benefit from the opportunity to have their H–2B petitions approved. The Department was unable to accurately project the monetary losses and benefits of scarce visas transitioning from some employers, and even industries, to others.
Though this rulemaking will not impose a significant economic burden on a substantial number of small businesses, the Department did make a number of changes to the proposed rule that should alleviate many of the concerns Advocacy expressed and that were expressed in the comments received from other small business employers. For instance, Advocacy, other employers, and their representatives articulated the difficulty of fulfilling the three-fourths guarantee in 4-week increments given unpredictability of the weather, acts of God, and acts of man. As explained further in the preamble to 20 CFR 655.20(f) and (g), the Department responded by extending the length of the three-fourths guarantee calculation period to 12 weeks (for job orders that last 120 days or longer, which is the vast majority of job orders) and to 6 weeks (for job orders lasting less than 120 days). We also added catastrophic man-made events such as oil spills or controlled flooding to the proposed list of triggers that employers could use to request cancellation of job orders, send workers home, and relief from obligations such as the three-fourths guarantee. Though Advocacy describes as a burden the small business employer's requirement to inform the CO in a timely manner after a catastrophic event, the Department maintains that it is a relatively low threshold to meet in order to seek termination of the job order.
Small business owners who participated in Advocacy's roundtable discussion were most concerned about the proposed requirement that employers continue to accept SWA referrals of U.S. applicants until 3 days before the date of need or the time of the last H–2B worker's departure, whichever is later. The provision also required employers to inform the SWA if the last H–2B worker had not departed by 3 days before the start of the job order, and to notify the SWA of the new departure date when available so the SWA would know when to stop referring qualified U.S. workers. The concerns of the roundtable participants were consistent with comments submitted by many other businesses in response to these proposed changes. Some small businesses called the provision unworkable and claimed it would disrupt their hiring and training plans. As explained more in depth in the preamble to 20 CFR 655.20(t), the Department believes the current recruitment period—a 10-day window that occurs up to 4 months before the date of need—is far too short and takes place too far in advance of the job order's start date for U.S. applicants to realistically be able to apply. As such, the existing 10-day recruitment period compromises the Department's regulatory mandate to grant H–2B certifications only after ensuring that no qualified U.S. workers are available. However, based upon the comments from small businesses and Advocacy about the potential burdens of this provision, this Final Rule has been changed. The referral period has been reduced so that it ends 21 days before the date of need. Additionally, employers are no longer obligated to continue accepting U.S. applicants after
Advocacy expressed its belief that the IRFA underestimated its members' exposure to inbound travel expenses, asserting that the price premium on tickets purchased close to the date of need and the cost of transporting U.S. workers represent significant burdens to employers and were not accounted for in the original cost estimates. Because this Final Rule changed the last day an employer must hire U.S. applicants to 21 days before the date of need, the Department does not calculate the extra cost of refundable fares. The FRFA responds to Advocacy's request to account for the transportation of corresponding workers and estimates a per ticket cost to and from the workplace. Moreover, as discussed in the preamble to 20 CFR 655.20(j), this Final Rule also responds to small business concerns about U.S. worker travel by providing that employers may require workers to complete 50 percent of the period of employment before reimbursing the reasonable costs of inbound travel and subsistence if the employer has not already paid for or reimbursed such costs. Further, employers will be required to pay the costs of outbound transportation only for workers who complete the job order period of employment or are dismissed early. And to the extent that employers do hire qualified U.S. applicants responding to national job registry postings and requiring inbound travel, this FRFA estimates that the costs of their travel expenses would be a fraction of those for foreign workers. In addition, hiring these U.S. workers would not require employers to pay the visa or consular expenses related to bringing in workers from foreign countries.
Advocacy cited comments from small businesses that use the H–2B program expressing concern that the new, potentially higher wage rates under the recently changed prevailing wage determination process will interact with the proposed rule's corresponding employment provision, forcing employers to raise payroll across their entire workforce. For example, small landscape companies worried that temporarily assigning to a landscaping supervisor the duties of a landscape laborer who has called in sick would require all laborers to be paid the supervisor's higher wage rate. As discussed in more depth in the preamble to 20 CFR 655.5, this landscape example and other similar examples in the employer comments represent a misunderstanding of what the definition of corresponding employment requires: Corresponding workers who perform substantially the same work specified in the job order or substantially the same work that H–2B workers actually perform are entitled to at least the same wage rate as the H–2B workers. Employers are not required to apply corresponding employment in the other direction and, in this example, pay laborers the same wage paid to the supervisors. Advocacy also articulated small businesses' recommendation that the Department reconsider the corresponding worker provision because it may impose too great a cost on small H–2B employers. After carefully considering Advocacy's comments and other comments submitted separately from small businesses, the definition of corresponding employment was retained with modifications (also fully discussed in the preamble to 20 CFR 655.5) because it is a critical component in the Department's mandate to protect similarly employed U.S. workers from adverse impacts of the H–2B program; however, the Department did modify the definition to clarify that occasional, insignificant instances of overlapping job duties would not transform a U.S. worker employed in one job into someone in corresponding employment with an H–2B worker employed in another job.
Advocacy also challenged the IRFA's lack of data which prevented the Department from calculating the effects of corresponding employment. Similarly, an employer association commented that the Department could have conducted its own corresponding employment survey to solve any gaps in data. Both organizations stated that the Department could have used an assumed value of 50 percent to estimate the ratio of corresponding workers to H–2B workers, purportedly similar to an estimate used elsewhere in the IRFA. The Department appreciates the proffered solutions and notes that the proposed rule requested that the public suggest data sources we could use to estimate corresponding employment. No such sources were ultimately provided. However, pursuing a statistically valid survey would not only have been prohibitively time-consuming given the Department's time constraints, but also would have required a lengthy clearance process under the Paperwork Reduction Act. The 50 percent estimate found in the IRFA was used in a different context and would have been an inappropriate and misguided way to estimate the ratio of corresponding workers to H–2B workers. In reality, the prevalence of corresponding workers spans a very wide range among businesses: Most comments from employers indicated that employers use H–2B workers to fill most if not all of their needs; other businesses commented that they hire very few H–2B workers as a way to supplement a wider staff only during a seasonal peak. The Department attempted to use its own data from a random sample of 225 applications to estimate the number of corresponding employees, but as explained in the Executive Order 12866 section, there were too few files that contained employee data to be statistically reliable, and those few files that did contain a breakdown of the numbers of H–2B and U.S. workers were not from a representative pool of the industries that participate in the H–2B program. Further, the 34 of the 225 files that contained payroll data were not a random subset, because the data was provided in response to an RFI or an audit rather than as a routine part of the application process. Nevertheless, the Department attempted to quantify the impact associated with this provision by estimating that 50 percent of incumbent corresponding workers in a given industry earn less than the prevailing wage and would have their wages increased as a result of the Final Rule. Department believes the cost of providing H–2B prevailing wages to corresponding workers will likely not be the undue burden that small businesses fear, because the prevailing wage calculation is representative of a typical worker's wage for a given type of work in a particular area. Since this calculation uses the current wages received by corresponding U.S. workers, many, if not most, of the non-H–2B workers will already be making at least the required prevailing wage rate, and therefore, small business employers will not be obligated to increase the wages of such workers. The Department's estimate assumed that workers in corresponding employment would receive a range of wage increases. The Department's estimate further assumed that all U.S. workers in corresponding employment would work 35 hours per week for 39 weeks (the maximum allowable certification period) in order to determine an upper-bound estimate. Therefore, the Department believes it has been responsive to commenter concerns with the cost of the corresponding employment provision.
Finally, small business participants who attended the SBA roundtable discussion expressed concerns regarding the proposed bifurcation of the certification process into registration and application processes. As Advocacy summarized in its written comments to the proposed rule, small businesses
A small entity is one that is independently owned and operated and that is not dominant in its field of operation. The definition of small business varies from industry to industry to properly reflect industry size differences. An agency must either use the SBA definition for a small entity or establish an alternative definition for the industry. The Department has conducted a small entity impact analysis on small businesses in the five industries with the largest number of H–2B workers and for which data were available, as mentioned in the Executive Order 12866 analysis: Landscaping Services; Janitorial Services (includes housekeeping services); Food Services and Drinking Places; Amusement, Gambling, and Recreation; and Construction. These top five industries accounted for almost 75 percent of the total number of H–2B job opportunities certified during FY 2007–2009.
We have adopted the Small Business Administration (SBA) small business size standard for each of the five industries, which is a firm with annual revenues equal to or less than the following:
In order to convert the SBA's revenue-based definitions to employment size-class based definitions that can be used in conjunction with U.S. Census's Statistics of U.S. Businesses data,
Employers seeking to participate in the H–2B program come from virtually all segments of the economy; those participating businesses make up a small portion of the industries they represent as well as of the national economy overall. A Guide for Government Agencies: How to Comply with the RFA, Small Business Administration, at 20 (“the substantiality of the number of businesses affected should be determined on an industry-specific basis and/or the number of small businesses overall”). Accordingly, the Department believes that the rule will not impact a substantial number of small entities in a particular industry or segment of the economy.
Employment in the H–2B program represents a very small fraction of the total employment in the U.S. economy, both overall and in the industries represented in the H–2B program. The H–2B program is capped at 66,000 visas issued per year, and the Department estimates that at any given time there are 115,500 H–2B workers in the country (66,000 plus 33,000 who return in the second year and 16,500 who return in the third year). This represents approximately 0.09 percent of total nonfarm employment in the U.S. economy (129.8 million).
The Department receives an average of 8,717 applications from 6,425 unique employer applicants annually. An average of 6,980 of those applications results in petitions for H–2B workers that are approved by DHS, of which 5,298 are from unique employer applicants. Even if all 6,980 applications were filed by unique small entities, all of which were in the top five
Regarding the Territory of Guam, this Final Rule applies to H–2B employers there only in that it requires them to obtain prevailing wage determinations in accordance with the process defined at 20 CFR 655.10. To the extent that this process incorporates the new methodology defined in the January 2011 prevailing wage rule, it is possible that some H–2B employers in Guam will experience an increase in their H–2B prevailing wages. The Department expects that the H–2B employers in Guam working on Federally funded construction projects subject to the Davis-Bacon and Related Acts (DBRA) are already paying the Davis-Bacon Act prevailing wage for the classification of work performed and that such employers may not experience an increase in the wage levels they are required to pay. Employers performing work ancillary or unrelated to DBRA projects, and therefore paying a wage potentially lower than the Davis-Bacon Act prevailing wage, may receive increased prevailing wage determinations under this Final Rule. However, because the H–2B program in Guam is administered and enforced by the Governor of Guam, or the Governor's designated representative, the Department is unable to quantify the effect of this provision on H–2B employers in Guam due to a lack of data.
The Department estimated the incremental costs for small businesses from the baseline. For this rule, the baseline is the 2008 Final Rule.
To examine the impact of this rule on small entities, the Department evaluates the impact of the incremental costs on a hypothetical small entity of average size, in terms of the total number of both U.S. and foreign workers, in each industry if it were to fill 50 percent of its workforce with H–2B workers. There are no available data to estimate the breakdown of the workforce into U.S. and foreign workers. Based on the U.S. Census' Statistics of U.S. Businesses data, the total number of workers (including both U.S. and foreign workers) for this hypothetical small business is as follows
These data do not distinguish between U.S. workers and foreign workers. For the purposes of producing a cost estimate, the Department assumes that 50 percent of these employees are H–2B workers, suggesting the total number of H–2B workers for the hypothetical small business is as follows: Landscaping Services, 2.7 H–2B employees; Janitorial Services, 5.5 H–2B employees; Construction, 3.1 H–2B employees; Food Services and Drinking Places, 5.7 H–2B employees; and Amusement, Gambling, and Recreation, 7.0 H–2B employees.
Also using U.S. Census
These key small business data are summarized in Table 21.
Several provisions of the rule extend to workers in corresponding employment, defined in the rule as those non-H–2B workers who perform substantially the same work included in the job order or substantially the same
The following sections present the impacts that this rule is estimated to have on a small business that chooses to hire H–2B workers, including impacts on the application of H–2B wages to workers in corresponding employment, transportation and subsistence costs, visa-related and consular fees, disclosure of job orders, additional recruiting that may be directed by the CO, reading and reviewing the new processes and requirements, and other impacts. Note that the costs estimated below are not costs to all small businesses or to the average small business in an industry, but rather are the expected value of the cost to any given H–2B employer that is a small business. Most small businesses in the relevant industry do not hire H–2B workers and, therefore, incur no cost burden from the rule. The costs estimated apply only to the relatively small number of firms that are expected to hire H–2B workers. In the estimates below, the hypothetical firm that chooses to hire H–2B workers is assumed to be of the average total employment and revenue size for small businesses in its industry.
Under the proposed rule, the Department specified that employers guarantee to offer hours of employment equal to at least three-fourths of the work days during the job order period, and that they use successive 4-week periods to measure the three-fourths guarantee. The use of 4-week periods was proposed (instead of measuring the three-fourths guarantee over the course of the entire time period of need as in the H–2A program) in order to ensure that work is offered during the entire certified period of employment. The Department received comments from Advocacy, an employer association, and small businesses expressing concern that they are unable to predict the exact timing and flows of tasks by H–2B workers, particularly at the beginning and end of the period of employment, and that they need more scheduling flexibility due to unexpected events such as extreme weather or catastrophic man-made events. Acknowledging these commenters' concerns, the Department lengthened the calculation period from 4 weeks to 12 weeks for job orders lasting at least 120 days and to 6 weeks for job orders lasting less than 120 days. In order to ensure that the capped H–2B visas are appropriately made available to employers based upon their actual need for workers, and to ensure that U.S. workers can realistically evaluate the job opportunity, the Department maintains that employers should accurately state their beginning and end dates of need and the number of H–2B workers needed. To the extent that employers, including small businesses, submit
The rule requires that workers in corresponding employment be paid at least the same wages paid to foreign workers under the H–2B program. However, while the Department has not identified a reliable source of data to estimate the number of workers in corresponding employment at work sites on which H–2B workers are requested or the hourly wages of those workers, the Department has attempted to quantify the impacts associated with this provision. The Department believes that H–2B workers will make up 75 to 90 percent of the workers in a particular job and location covered by the job order, with the remaining 10 to 25 percent of the workers being corresponding employees newly covered by the wage requirements. This 10 to 25 percent figure is an overestimate of the Final Rule's impact since some of the employees included in this proportion of corresponding workers are those hired in response to the required recruitment and are therefore already covered by the existing regulation, and some workers will be excluded by the two new exceptions. Since the required H–2B wage is an average wage that generally prevails among existing workers in the occupation in the area of employment, we also estimate that half of the corresponding workers will already be earning a wage at least equal to the H–2B wage, and thus will not require wage increases. Finally, we estimate that the 50 percent of remaining corresponding workers who are eligible for wage increases will be normally distributed at wage levels between the mean wage level and the previous H–2B prevailing wage.
Table 22 shows the average estimated costs of increased wages for corresponding workers at a typical small business in each of the five most common H–2B industries. For each H–2B worker, the corresponding employment requirement will result in an estimated increase in corresponding worker wages of between $152 (assuming H–2B workers comprise 90 percent of a firm's employees in the job order occupation) and $455 (assuming H–2B workers comprise 75 percent of those employees) per firm.
The rule requires H–2B employers to provide H–2B workers with transportation to and from the place of employment. In general, transportation costs are calculated by first estimating the cost of a bus trip from a regional city to the consular city to obtain a visa. Then we estimate the cost of the trip from the consular city to St. Louis. In the case of the 77 percent of H–2B workers who come to the U.S. from Mexico and Canada, we assume this is a bus trip. For employees from other countries, we assume this trip is by air.
We estimate the weighted average roundtrip travel cost per employee to be approximately $929 per H–2B worker, as detailed in the Executive Order 12866 analysis section titled “Transportation to and from the Place of Employment for H–2B Workers.” This increase from the estimate included in the IRFA is due to two factors. First, a bus or ferry fare was added to account for an H–2B worker's trip from their home to a consular city to obtain a visa. Second, since publication of the NPRM, air fares have increased substantially, attributable to a combination of market condition such as increased fuel costs, anticipated increases in demand for workers from improving economic conditions, and reduced passenger capacity. (Because this Final Rule changed the last day an employer must hire U.S. applicants to 21 days before the date of need, the Department does not account for the extra cost of refundable fares.) We then multiplied the weighted average roundtrip travel cost per employee by the number of H–2B workers per average small entity and the probability that the worker is a new entrant to the country (57 percent).
We do not know the extent to which employers are currently paying for this cost in order to secure these workers or to comply with their obligations under the FLSA. To the extent that some employers are already paying for inbound and outbound transportation, these calculations represent upper-
The rule requires H–2B employers to provide workers in corresponding employment unable to return each day to their permanent residence with transportation to the place of employment if they complete at least half the period of the job order and from the place of employment if they complete the full period of the job order. However, there is no basis for estimating what percentage of the workers in corresponding employment will be new employees coming from outside the commuting area who will continue to work for at least half or all of the job order period. Therefore, while the Department is unable to estimate the number of corresponding workers at a given small firm who would receive reimbursement, the Department estimates an approximate unit cost for each traveling corresponding worker by taking the average of the cost of a bus ticket to St. Louis from Fort Wayne, IN ($91); Pittsburgh, PA ($138); Omaha, NE ($93); Nashville, TN ($86); and Palmdale, CA ($233). Averaging the cost of travel from these five cities results in an average one way cost of $128.20, and a round trip cost of $256.40 (see Table 24) representing a transfer from employers to H–2B workers. The inbound transportation costs would be incurred only for those workers who fulfill the required portion of the certified period of employment; the outbound transportation costs would only be incurred for those who work until the end of the certified period of employment or who are dismissed early by the employer.
As discussed in the E.O. 12866 analysis, we estimated the per-worker cost of subsistence by multiplying the subsistence per diem ($10.64) by the number of roundtrip travel days (4 days) by the probability that the worker is a new entrant to the country (57 percent). The length of time for an H–2B worker to complete round-trip travel reflects an increase from the proposed rule and was made in response to a comment from a worker advocacy organization. The estimate was increased to account for 2 days to obtain the visa (travel time from the home town and time spent in the consular city), 1 day to travel from the consular city to the place of employment, and 1 day of outbound transportation back to the worker's home country. We estimate the average annual cost of subsistence to be $24.32 ($10.64 × 4 × 0.57) per H–2B worker. The total annual average subsistence costs incurred by the average small employer in the top five industries are presented in Table 23.
This provision applies not only to H–2B workers, but also to workers in corresponding employment on H–2B worksites who are recruited from a distance at which the workers cannot reasonably return to their residence within the same workday. While we were unable to identify adequate data to estimate the number of corresponding workers who would travel to the job from outside the reasonable commuting area and be eligible to receive compensation for subsistence, the Department assumes that it would take 1 travel day to travel from one city in the U.S. to another, and 1 day to return. Thus each corresponding worker would receive $21.28 in subsistence payments (see Table 25). Both of these estimates are upper-bound estimates, as the inbound subsistence would be incurred only for workers who fulfill the required portion of the certification period, and outbound subsistence would only be incurred for those who work until the end of the job order or who are dismissed by the employer.
In response to a comment from a worker advocacy organization, the Department includes a cost in the FRFA not accounted for in the proposed rule: lodging costs while H–2B workers travel from their hometown to the consular city to obtain a visa and from there to the place of employment. This change does not reflect any additional obligation since the publication of the NPRM, but clarifies the Final Rule's intent that lodging expenses incurred between a worker's hometown and consular city are part of inbound transportation and subsistence costs. The Department estimates that H–2B workers will spend an average of two nights in an inexpensive hostel-style accommodation. The Department estimates the nightly cost of this stay in common consular cities of the top ten countries of origin as follows: Monterrey, $11; Kingston, $13; Guatemala City, $14; Manila, $7; Bucharest, $11; Pretoria, $19; London, $22; Ottawa, $30; Tel Aviv, $22; and Canberra, $26.
Under the 2008 Final Rule, visa fees are permitted to be paid by the temporary worker. This Final Rule, however, requires visa fees and related fees to be paid by the employer. Requiring employers to bear the full cost of hiring foreign workers is a necessary step toward preventing the exploitation of foreign workers with its concomitant adverse effect on domestic workers.
The Department estimated the cost of visa fees by adding the weighted average visa cost per H–2B worker ($148),
Under the Final Rule, the CO may direct an employer to conduct additional recruitment if the CO has determined that there may be qualified U.S. workers available, particularly where the job opportunity is located in an area of substantial unemployment. There is no such provision in the 2008 Final Rule.
In response to an employer comment expressing concern that the NPRM understated the cost of running a newspaper advertisement that would capture all the requirements contained in 20 CFR 655.41, the Department updated the original calculation in the NPRM. The higher estimated cost does not reflect any additional advertising requirement beyond those in 20 CFR 655.41, but is rather is a more accurate reflection of the cost of an advertisement that includes the required information.
We estimate the cost of this requirement by multiplying the average cost of a newspaper advertisement ($315) by 0.5 based on our estimate that 50 percent of H–2B employer applicants can be expected to be directed by the CO to conduct additional recruitment for a total cost of $157 ($315 × 0.50) per employer.
It is possible that there will be additional costs incurred by small employers due to interviewing additional applicants who are referred to H–2B employers by job advertisements. The Department does not have valid data on referrals resulting from job advertisements and therefore is unable to quantify this impact.
The analysis performed for the proposed rule included a cost for employers to contact the local union to locate qualified U.S. workers where the occupation is customarily unionized. Under this Final Rule, union notification is the responsibility of the SWA and employers incur no costs.
The rule requires an employer to provide a copy of the job order to an H–2B worker no later than the time at which the worker outside of the U.S. applies for the H–2B visa or to a worker in corresponding employment no later than on the day that work starts. The job order must be translated to a language understood by the worker. For an H–2B worker changing employment from an H–2B employer to a subsequent H–2B employer, the copy must be provided no later than the time the subsequent H–2B employer makes an offer of employment.
We estimate two cost components of the disclosure of job orders: The cost of reproducing the document containing the terms and conditions of employment, and the cost of translation. We obtained the cost of reproducing the terms and conditions by multiplying the number of pages to be photocopied (three) by the cost per photocopy ($0.12) and the percent of certified H–2B workers that are not involved in reforestation (88.3 percent).
For the cost of translation, the Department assumes that an employer hires all of its H–2B workers from a country or set of countries that speak the same foreign language; thus, only one translation is necessary per employer needing translation. Using DHS data, we determined that approximately 83.92 percent of H–2B workers from the top ten countries of origin do not speak English.
Summing reproduction and translation costs results in the average annual job order disclosure costs per small employer (listed in Table 29).
The 2008 Final Rule implemented an attestation-based model: employers conduct the required recruitment in advance of application filing and, based on the results of that effort, apply for certification from the Department for the remaining openings. The Department has determined that there are insufficient worker protections in the current attestation-based model. In eliminating the attestation-based model, the rule shifts the recruitment process to after the filing of the
The elimination of the attestation-based model will impose minimal costs on employers because they will only need to include additional information in the recruitment report they are already required to submit, including information on additional recruitment conducted, means of posting, and contact with former U.S. workers. We estimated two costs for the elimination of the attestation-based model: the material cost to reproduce and mail the additional pages of the documents, and the labor cost to reproduce and mail the additional pages. To estimate the cost of reproducing and mailing the documents, we multiplied the additional number of pages that must be submitted (three) by the additional postage required to ship those pages ($0.17). We estimate this cost to be approximately $0.51 per employer. To estimate the labor cost of reproducing and mailing the documents, we multiplied the time needed to reproduce and mail the documents (0.08 hours, or 5 minutes) by the scaled hourly labor compensation of an administrative assistant/executive secretary ($28.77). We estimate this cost to be approximately $2.40 per employer. Summing material and labor costs results in total costs per small firm of $2.91 (see Table 30).
Under the rule, H–2B employers must retain documentation beyond that required by the 2008 Final Rule. The Department assumes that each H–2B employer will purchase a filing cabinet ($49.99) in which to store the additional documents starting in the first year of the rule.
The Proposed Rule would have required employers to provide notice to the local SWA of the time at which the last H–2B worker departs for the place of employment, if the last worker has not departed at least 3 days before the date of need. Under the Final Rule, the obligation to hire U.S. workers will end 21 days before the date of need and the employer is not required to provide any notice to the local SWA, thus eliminating the costs associated with this provision of the Proposed Rule.
During the first year that this rule would be in effect, employers would need to learn about the new processes and requirements. We estimated this cost for a hypothetical small entity that is interested in applying for H–2B workers by multiplying the time required to read the new rule and any educational and outreach materials that explain the H–2B application process under the rule by the average compensation of a human resources manager. In the first year that the Final Rule is effective, the Department estimates that the average small business participating in the program will spend approximately three hours of staff time to read and review the new processes and requirements, which amounts to approximately $186.52 ($62.17 × 3) in labor costs in the first year.
The rule requires employer applicants to post the availability of the job opportunity in at least two conspicuous locations at the place of intended employment for at least 15 consecutive days. This provision entails additional reproduction costs. For the job posting requirement, the total cost to photocopy the additional job postings (two) is $0.24 per employer applicant. Those employer applicants who need to print the posting in languages other than English may face a small additional cost.
The Final Rule requires employers to post and maintain in a conspicuous location at the place of employment, a poster provided by the Secretary that sets out the rights and protections for workers. The poster must be in English and, to the extent necessary and as
The Department's calculations indicate that for a hypothetical small entity in the top five industries that applies for one worker (representing the smallest of the small entities that hire H–2B workers), the total annualized first-year costs and annual costs are between $1,058 (using the low estimate of corresponding worker wages and annualizing at 3 percent over 10 years) and $1,367 (using the high estimate and annualizing at 7 percent over 10 years). Using the low estimate of corresponding worker wages and annualizing at 3 percent and using the high estimate of corresponding worker wages and annualizing at 7 percent, respectively, the total annualized first-year and annual costs for employers in the top five industries that hire the average number of employees for their respective industries are as follows:
A rule is considered to have a significant economic impact when the total annual cost associated with the rule is equal to or exceeds 1 percent of annual revenue. To evaluate this impact, the Department calculates the total cost burden as a percent of revenue for each of the top five industries. The estimated revenues for small entities in the top five industries are as follows:
Landscaping Services, $517,105;
Janitorial Services, $425,693;
Food Services and Drinking Places, $516,055;
Amusement, Gambling, and Recreation, $846,948;
Construction, $1,292,201.
The Department then divides the total cost burden for small entities by the total estimated revenue for small entities in each of the top five industries. The total costs as a percent of revenues for the top five industries are summarized in Table 31:
Landscaping Services, 0.46 to 0.62 percent;
Janitorial Services, 1.10 to 1.549 percent;
Food Services and Drinking Places, 0.95 to 1.28 percent;
Amusement, Gambling, and Recreation, 0.69 to 0.94 percent;
Construction, 0.21 to 0.29 percent.
This rule is expected to have a significant economic impact (at least 1 percent of annual revenue) on the average participating small entity in two of the five most common industries: Janitorial Services, and Food Services and Drinking Places. Although applying to hire H–2B workers is voluntary, and any employer (small or otherwise) may choose not to apply, an employer, whether it continues to participate in the H–2B program or fills its workforce with U.S. workers, could face costs equal to or slightly greater than 1 percent of annual revenue. However, in the Department's view, increased employment opportunities for U.S. workers and higher wages for both U.S. and H–2B workers provide a broad societal benefit that outweighs these costs.
The Department considers that a rule has an impact on a “substantial number of small entities” when the total number of small entities impacted by the rule is equal to or exceeds 10 percent of the relevant universe of small entities in a given industry.
We have concluded that this Final Rule will not have a significant economic impact on a substantial number of small entities. This Final Rule sets minimum standards to ensure that foreign workers may be employed only if qualified domestic workers are not available and that the hiring of H–2B workers will not adversely affect the wages and working conditions of similarly employed domestic workers. While we recognize the concerns expressed by small businesses and have made every effort to minimize the burden on the relatively small number of businesses that use the program, creating different and likely lower standards for one class of employers (
Under the existing H–2B program, an employer must first apply for a temporary labor certification from the Secretary of Labor. That certification informs USCIS that U.S. workers qualified to perform the services or labor are not available, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. Our obligation to ensure that U.S. workers capable of performing the services or labor are not available, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers was reaffirmed in a recent court decision,
While our responsibilities in the H–2B labor certification program first and foremost are to ensure that U.S. workers are given priority for temporary non-agricultural job opportunities and to protect U.S. workers' wages and working conditions, we solicited and considered public comments on a number of alternatives that would balance the needs of small businesses while providing adequate protection to U.S. and H–2B workers. A discussion on each alternative considered and our final determination is below.
First, we proposed to change the definition of full-time from 30 or more hours of work per workweek to 35 or more hours of work per week in response to the District Court's decision in
As discussed in this preamble, several trade associations and private businesses supported retaining the 2008 Final Rule's standard of 30 hours per workweek, citing the difficulties of scheduling work around unpredictable and uncontrollable events, particularly the weather. Other employers suggested that full-time employment should be determined not in each individual workweek, but by averaging workweeks over the length of the certified employment period. In addition, several businesses stated that a 35-hour workweek would be burdensome in combination with other aspects of the proposed rule, particularly the three-quarter guarantee. We concluded, after a thorough review of the comments, to retain the definition of full-time as 35 or more hours of work per week. This standard more accurately reflects full-time employment expectations than the current 30-hour definition, would not compromise worker protections, and is consistent with other existing Department standards and practices in the industries that currently use the H–2B program to obtain workers.
The NPRM also proposed to eliminate job contractors from participating in the H–2B program based on our view that a job contractor's ongoing need is by its very nature permanent rather than temporary and therefore the job contractor does not qualify to participate in the program. We received a comment that questioned our underlying assumption that all job contractors have a permanent need and asserted that the bar on job contractors should not be complete because to the
We also introduced in the NPRM a three-fourths guarantee provision that would require that H–2B employers guarantee to offer the worker employment for a total number of hours equal to at least three-fourths of the workdays in each 4-week period of the certified period of employment. We believed that this guarantee would motivate employers to carefully consider the extent of their workforce needs before applying for certification and discourage employers from applying for unnecessary workers or from promising work which may not exist. While we stated in the NPRM that an hours' guarantee is necessary to protect the integrity of the H–2B program and to protect the interests of both workers and employers in the program, we invited the public to suggest alternative guarantee systems that may better serve the goals of the guarantee. In particular, the Department sought comments on whether a 4-week increment is the best period of time for measuring the three-fourths guarantee or whether a shorter or longer time period would be more appropriate.
Many small businesses expressed concerns about the guarantee. They were particularly concerned about the impact of the weather on their ability to meet the guarantee and their ability to meet the guarantee in the event of unforeseen events like oil spills or health department or conservation closures that, for example, can make the harvesting and processing of crabs impossible. Numerous other employers similarly stated that if a guarantee remains in the Final Rule, it should be spread over the entire certification period, as it is in the H–2A regulations. They noted that this would provide flexibility and enhance their ability to meet the guarantee without cost, because often the loss of demand for work in one period is shifted to another point in the season, but such a guarantee would still deter egregious cases of employers misstating their need for H–2B employees. A number of commenters also suggested that the guarantee should be based upon pay for three-fourths of the hours, rather than three-fourths of the hours, so that employers could take credit for any overtime paid at time-and-a-half. After careful consideration of all comments received, we decided to retain the three-fourths guarantee of the hours, but lengthen the increment over which the guarantee is measured from 4 weeks to 12 weeks, if the period of employment covered by the job order is 120 days or more and to 6 weeks, if the period of employment covered by the job order is less than 120 days.
The NPRM continued to reflect our commitment to ensuring that U.S. workers have priority for H–2B job opportunities by proposing that employers hire qualified U.S. workers referred by the SWA or who respond to recruitment until 3 days before the date of need or the last H–2B worker departs for the workplace for the certified job opportunity, whichever is later. We believed that this proposal would increase the opportunity for U.S. workers to fill the available positions without unnecessarily burdening the employer. The proposal would have required the employer to inform the appropriate SWA(s) in writing of the later departure so that the SWA would know when to stop referring potential U.S. workers to the employer.
We received many comments from employers and their advocates arguing that accepting U.S. applicants until 3 days before the date of need would be unworkable for employers. Some of these commenters suggested that we require the SWA to keep the job order posted for 30 days (instead of the current 10), while others recommended changing the closing date from 3 days to 30 days or 60 days before the date of need. We carefully reviewed all comments and weighed these concerns against our mandate to ensure that U.S. workers rather than foreign workers be employed whenever possible. As a result, we changed the day through which employers must accept SWA referrals of qualified U.S. applicants from 3 days to 21 days before the date of need. The Department believes that increasing the number of days before the date of need that referrals are cut off as well as removing the clause or the date that the last H–2B worker departs for the job opportunity will alleviate a number of employer concerns without compromising our obligation to U.S. workers. In addition, this change takes into consideration the USCIS requirement that H–2B workers not enter the United States until 10 days before the date of need, providing employers the certainty that their H–2B workers will have sufficient time to obtain their visas and eliminating the employer concern that an H–2B worker could be displaced by a U.S. worker after beginning inbound travel.
Employers and small businesses generally opposed our proposed provisions that would require an employer to provide, pay, or reimburse the worker in the first workweek the cost of transportation and subsistence from the place from which the worker has come to the place of employment, and for H–2B workers' visa, visa processing, and other related consular fees including those fees mandated by the government (but not for passport expenses or other charges primarily for the benefit of the workers). Employers and small businesses asserted that paying such fees would be too costly and that transportation costs should be the responsibility of the employee or paid at the discretion of the employer. A number of commenters suggested that the Department adopt the H–2A provision requiring that workers must complete at least 50 percent of the work contract to be reimbursed for inbound transportation and subsistence expenses. After careful consideration of all comments, we have made two changes. While we will continue to require employers to provide inbound transportation and subsistence to H–2B workers and to U.S. workers who are not reasonably able to return to their residence within the same workday, the Final Rule now provides that employers may arrange and pay for the transportation and subsistence directly, advance at a minimum, the most economical and reasonable common carrier cost, or reimburse a worker's reasonable costs, after the worker completes 50 percent of the period of employment covered by the job order if the employer has not previously reimbursed such costs. We also continue in the Final Rule to require employers to provide return transportation and subsistence from the place of employment; however, these
We received several comments from employers noting the need to have a stable workforce throughout their certified period of need. Employers were concerned that after expending significant resources to hire H–2B workers, these workers could be displaced to hire U.S. workers referred by the SWA who may not report for work, or might fail to complete the contract period. One employer requested that we consider new provisions that would allow an employer to hire H–2B workers if the hired U.S. workers become unavailable. We considered these comments and agreed to address the circumstances where an employer's U.S. workers fail to report to work or quit before the end of the certified period of employment by providing the CO the authority to issue a redetermination based on the unavailability of U.S. workers. While we have provided a means by which employers may request a new determination, we strongly encourage employers to make an additional effort to voluntarily contact the SWA for additional referrals for qualified U.S. workers.
Finally, the Small Business Administration's Office of Advocacy and several industry groups requested an exemption from the job order obligations for man-made catastrophic events such as an oil-spill or controlled flooding that is wholly outside of the employer's control. The Department proposed that a CO could only terminate the employer's obligations under the guarantee in the event of fire, weather, or another Act of God. The Department agreed with commenters that this provision should be expanded to allow a CO to terminate an employer's job order based upon these man-made catastrophes.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) directs agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector. The rule has no Federal mandate, which is defined in 2 U.S.C. 658(6) to include either a Federal intergovernmental mandate or a Federal private sector mandate. A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or tribal governments, or imposes a duty upon the private sector that is not voluntary. A decision by a private entity to obtain an H–2B worker is purely voluntary and is, therefore, excluded from any reporting requirement under the Act.
SWAs are mandated to perform certain activities for the Federal Government under the H–2B program, and receive grants to support the performance of these activities. Under the 2008 Final Rule the SWA role was changed to accommodate the attestation-based process. The current regulation requires SWAs to accept and place job orders into intra- and interstate clearance, review referrals, and verify employment eligibility of the applicants who apply to the SWA to be referred to the job opportunity. Under the Final Rule the SWA will continue to play a significant and active role. The Department continues to require that employers submit their job orders to the SWA having jurisdiction over the area of intended employment as is the case in the current regulation, with the added requirement that the SWA review the job order prior to posting it. The Final Rule further requires that the employer provide a copy of the
SWA activities under the H–2B program are currently funded by the Department through grants provided under the Wagner-Peyser Act. 29 U.S.C. 49
We have determined that this rulemaking does not impose a significant impact on a substantial number of small entities under the RFA. We have similarly concluded that this Final Rule is a major rule requiring review by the Congress under the SBREFA because it will likely result in an annual effect on the economy of $100 million.
We have reviewed this Final Rule in accordance with E.O. 13132 on federalism and have determined that it does not have federalism implications. The Final Rule does not have substantial direct effects on States, on the relationship between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, we have determined that this Final Rule will not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
We reviewed this Final Rule under the terms of E.O. 13175 and determined it not to have tribal implications. The Final Rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. As a result, no tribal summary impact statement has been prepared.
Section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency
The Final Rule is not subject to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, because it does not involve implementation of a policy with takings implications.
The Final Rule has been drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The Department has developed the Final Rule to minimize litigation and provide a clear legal standard for affected conduct, and has reviewed the Final Rule carefully to eliminate drafting errors and ambiguities.
We drafted this Final Rule in plain language.
As part of its continuing effort to reduce paperwork and respondent burden, the U.S. Department of Labor (the Department) conducts a preclearance consultation process to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)).
This helps to ensure that the public understands the Department's collection instructions; respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents. Persons are not required to respond to a collection of information unless it displays a currently valid OMB control number as required in 5 CFR 1320.11(l).
The information collected is mandated in this Final Rule at Title 20 CFR 655.8, 655.9, 655.11, 655.12, 655.13, 655.15, 655.16, 655.17, 655.20, 655.32, 655.33, 655.35, 655.40, 655.42, 655.43, 655.45, 655.46, 655.47, 655.48, 655.56, 655.57, 655.60, 655, 61, 655.62, 655.70, 655.71, 655.72, 655.73, and Title 29 CFR 503.16, 503.17, 503.43, and 503.51. In accordance with the PRA (44 U.S.C. 3501) information collection requirements, which must be implemented as a result of this regulation, a clearance package containing proposed changes to the already approved collection was submitted to OMB on March 18, 2011, as part of the proposed rule to reform the H–2B program for hiring temporary non-agricultural aliens. The public was given 60 days to comment on this information collection.
The Department did not receive any comments specifically related to this section. The Department did receive several comments suggesting that it collect information about how many U.S. workers and H–2B workers an employer hires as a result of its participation in this program and how many of the H–2B workers were hired from abroad as opposed to from within the United States. The Department agrees that this would be valuable information and has decided to amend ETA Form 9142 to collect from the employer the number of H–2B and U.S. workers it actually hired from within the U.S. or from abroad based on its last H–2B labor certification application, if applicable.
The forms used to comply with this Final Rule include those that were required under the 2008 Final Rule, except that ETA Form 9142, Appendix B was modified to reflect the assurances and obligations of the H–2B employer as required under the compliance-based system proposed in the NPRM and retained in this Final Rule. Also, a new form was created for registering as an H–2B employer—the ETA Form 9155,
The Department has made changes to this Final Rule after receiving comments to the NPRM. In addition to the change discussed above, the Department has also made changes to the forms for consistency with other changes to the Final Rule and for clarity. However, these changes do not impact the overall annual burden hours for the H–2B program information collection. The total costs associated with the form, as defined by the PRA, are zero dollars per employer for ETA Forms 9141, 9142, and 9155.
This Final Rule utilizes the information collection, which OMB first approved on November 21, 2008 under OMB control number 1205–0466. The Department has simultaneously submitted with this Final Rule an information collection containing the revised ETA Forms 9141 and ETA 9142, and the new ETA Form 9155. The ETA Form 9141 has a public reporting burden estimated to average 1 hour per response or application filed. The ETA Form 9142 with Appendix B.1 has a public reporting burden estimated to average 1 hour per response or application filed. Additionally, the ETA Form 9155 has a public reporting burden estimated to average 1 hour per response or application filed.
For an additional explanation of how the Department calculated the burden hours and related costs, the PRA packages for these information collections may be obtained from the RegInfo.gov Web site at
Administrative practice and procedure, Employment, Employment and training, Enforcement, Foreign workers, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant workers, Nonimmigrant workers, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.
Administrative practice and procedure, Employment, Foreign Workers, Housing, Housing standards, Immigration, Labor, Nonimmigrant workers, Penalties, Transportation, Wages.
Accordingly, the Department of Labor amends 20 CFR part 655 and adds 29 CFR part 503 as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and (t), 1184(c), (g), and
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR 214.2(h).
Subparts A and C issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 323(c), Pub. L. 103–206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105–277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109–423, 120 Stat. 2900; and 8 CFR 214.2(h).
The Immigration and Nationality Act (INA) at 8 U.S.C. 1184(c)(1) requires the Secretary of the Department of Homeland Security (DHS) to consult with appropriate agencies before authorizing the entry of H–2B workers. DHS regulations at 8 CFR 214.2(h)(6)(iv) provide that an employer's petition to employ nonimmigrant workers on H–2B visas for temporary non-agricultural employment in the United States (U.S.), except for Guam, must be accompanied by an approved temporary labor certification from the Secretary of Labor (Secretary).
(a)
(1) There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers, and that
(2) The employment of the H–2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed.
(b)
(a)
(b)
(c)
Subpart A of this part does not apply to temporary employment in the Territory of Guam, except that an employer seeking certification for a job opportunity on Guam must obtain a prevailing wage from the Department in accordance with § 655.10 of this subpart. The U.S. Department of Labor (Department or DOL) does not certify to the United States Citizenship and Immigration Services (USCIS) of DHS the temporary employment of nonimmigrant foreign workers under H–2B visas, or enforce compliance with the provisions of the H–2B visa program, in the Territory of Guam. Under DHS regulations, administration of the H–2B temporary labor certification program is undertaken by the Governor of Guam, or the Governor's designated representative.
To provide for a limited degree of flexibility in carrying out the Secretary's responsibilities, the Administrator, OFLC has the authority to establish, continue, revise, or revoke special procedures in the form of variances for processing certain H–2B applications. Employers must request and demonstrate in writing to the Administrator, OFLC that special procedures are necessary. Before making determinations under this section, the Administrator, OFLC may consult with affected employers and worker representatives. Special procedures in place on the effective date of this regulation, including special procedures currently in effect for handling applications for tree planters and related reforestation workers, professional athletes, boilermakers coming to the U.S. on an emergency basis, and professional entertainers, will remain in force until modified or withdrawn by the Administrator, OFLC.
For purposes of this subpart:
(i) Is authorized to act on behalf of an employer for temporary nonagricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this part.
(i) Incumbent employees continuously employed by the H–2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H–2B workers during the 52 weeks prior to the period of employment certified on the
(ii) Incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H–2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause.
(2) To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof.
(1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to an H–2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an
(1) A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
(2) Any minor league team that is affiliated with such an association.
(1) Where an employer has violated 29 CFR part 503, or this subpart, and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue.
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3)) with respect to the employment in which the worker is engaging.
(a) An employer seeking certification under this subpart must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS. 8 CFR 214.2(h)(6)(ii)(B). Except where the employer's need is based on a one-time occurrence, the CO will deny a request for an
(c) A job contractor will only be permitted to seek certification if it can demonstrate through documentation its own temporary need, not that of its employer-client(s). A job contractor will only be permitted to file applications based on a seasonal need or a one-time occurrence.
(a)
(b)
An agent filing an
(a) A copy of the agent agreement or other document demonstrating the agent's authority to represent the employer; and
(b) A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration, if the agent is required under MSPA, at 29 U.S.C. 1801
(a) The employer, and its attorney or agent, as applicable, must provide a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H–2B workers under this
(b) The employer, and its attorney or agent, as applicable, must also provide the identity and location of all persons and entities hired by or working for the recruiter or agent referenced in paragraph (a) of this section, and any of the agents or employees of those persons and entities, to recruit prospective foreign workers for the H–2B job opportunities offered by the employer.
(c) The Department will maintain a publicly available list of agents and recruiters who are party to the agreements referenced in paragraph (a) of this section, as well as the persons and entities referenced in paragraph (b) of this section and the locations in which they are operating.
(a)
(c)
(2) The PWD must be valid on the date the job order is posted.
(d)
(e)
(h)
(i)
(j)
(k)
All employers that desire to hire H–2B workers must establish their need for services or labor is temporary by filing an
(a)
(1) The number of positions that will be sought in the first year of registration;
(2) The time period of need for the workers requested;
(3) That the nature of the employer's need for the services or labor to be performed is non-agricultural and temporary, and is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as defined at 8 CFR 214.2(h)(6)(ii)(B) and § 655.6 (or in the case of job contractors, a seasonal need or one-time occurrence); and
(4) For job contractors, the job contractor's own seasonal need or one-time occurrence, such as through the provision of payroll records.
(b)
(c)
(d)
(2) The employer's need will be assessed in accordance with the definitions provided by the Secretary of DHS and as further defined in § 655.6.
(e)
(1) The job classification and duties qualify as non-agricultural;
(2) The employer's need for the services or labor to be performed is temporary in nature, and for job contractors, demonstration of the job contractor's own seasonal need or one-time occurrence;
(3) The number of worker positions and period of need are justified; and
(4) The request represents a bona fide job opportunity.
(f)
(g)
(1) State the reason(s) why the
(2) Specify a date, no later than 7 business days from the date the RFI is issued, by which the supplemental information or documentation must be sent by the employer;
(3) State that, upon receipt of a response to the RFI, the CO will review the
(4) State that failure to comply with an RFI, including not responding in a timely manner or not providing all required documentation within the specified timeframe, will result in a denial of the
(h)
(1) Approved
(2) Denied
(i) State the reason(s) why the
(ii) Offer the employer an opportunity to request administrative review under § 655.61 within 10 business days from the date the Notice of Decision is issued and state that if the employer does not request administrative review within that period the denial is final.
(i)
(j) Transition period. In order to allow OFLC to make the necessary changes to its program operations to accommodate the new registration process, OFLC will announce in the
(a) Upon approval of the
(1) The number of workers to be employed has increased by more than 20 percent (or 50 percent for employers requesting fewer than 10 workers) from the initial year;
(2) The dates of need for the job opportunity have changed by more than a total of 30 calendar days from the initial year for the entire period of need;
(3) The nature of the job classification and/or duties has materially changed; or
(4) The temporary nature of the employer's need for services or labor to be performed has materially changed.
(b) If any of the changes in paragraphs (a)(1) through (4) of this section apply, the employer must file a new
(a)
(b)
(1) Affirm the PWD issued by the NPWC; or
(2) Modify the PWD.
(c)
(1) The request for BALCA review must be in writing and addressed to the NPWC Director who made the final determinations. Upon receipt of a request for BALCA review, the NPWC will prepare an appeal file and submit it to BALCA.
(2) The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may refer to only the evidence that was within the record upon which the decision on the PWD was based.
(3) BALCA will handle appeals in accordance with § 655.61.
All registered employers that desire to hire H–2B workers must file an
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(2) In addition to complying with State-specific requirements governing job orders, the job order submitted to the SWA must satisfy the requirements set forth in § 655.18.
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(a)
(1) Prohibition against preferential treatment. The employer's job order must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H–2B workers. Job offers may not impose on U.S. workers any restrictions or obligations that will not be imposed on the employer's H–2B workers. This does not relieve the employer from providing to H–2B workers at least the minimum benefits, wages, and working conditions which must be offered to U.S. workers consistent with this section.
(2) Bona fide job requirements. Each job qualification and requirement must be listed in the job order and must be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H–2B employers in the same occupation and area of intended employment.
(b)
(1) State the employer's name and contact information;
(2) Indicate that the job opportunity is a temporary, full-time position, including the total number of job openings the employer intends to fill;
(3) Describe the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity;
(4) Indicate the geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;
(5) Specify the wage that the employer is offering, intends to offer, or will provide to H–2B workers, or, in the event that there are multiple wage offers (such as where an itinerary is authorized through special procedures for an employer), the range of wage offers, and ensure that the wage offer equals or exceeds the highest of the prevailing wage or the Federal, State, or local minimum wage;
(6) If applicable, specify that overtime will be available to the worker and the wage offer(s) for working any overtime hours;
(7) If applicable, state that on-the-job training will be provided to the worker;
(8) State that the employer will use a single workweek as its standard for computing wages due;
(9) Specify the frequency with which the worker will be paid, which must be at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent;
(10) If the employer provides the worker with the option of board, lodging, or other facilities, including fringe benefits, or intends to assist workers to secure such lodging, disclose the provision and cost of the board, lodging, or other facilities, including fringe benefits or assistance to be provided;
(11) State that the employer will make all deductions from the worker's paycheck required by law. Specify any deductions the employer intends to make from the worker's paycheck which are not required by law, including, if applicable, any deductions for the reasonable cost of board, lodging, or other facilities;
(12) Detail how the worker will be provided with or reimbursed for transportation and subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment, if the worker completes 50 percent of the period of employment covered by the job order, consistent with § 655.20(j)(1)(i);
(13) State that the employer will provide or pay for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer, if the worker completes the certified period of employment or is dismissed from employment for any reason by the employer before the end of the period, consistent with § 655.20(j)(1)(ii);
(14) If applicable, state that the employer will provide daily transportation to and from the worksite;
(15) State that the employer will reimburse the H–2B worker in the first workweek for all visa, visa processing, border crossing, and other related fees, including those mandated by the government, incurred by the H–2B worker (but need not include passport expenses or other charges primarily for the benefit of the worker);
(16) State that the employer will provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned, in accordance with § 655.20(k);
(17) State the applicability of the three-fourths guarantee, offering the worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period, if the period of employment covered by the job order is 120 or more days, or each 6-week period, if the period of employment covered by the job order is less than 120 days, in accordance with § 655.20(f); and
(18) Instruct applicants to inquire about the job opportunity or send applications, indications of availability, and/or resumes directly to the nearest office of the SWA in the State in which the advertisement appeared and include the SWA contact information.
(a) Provided that a job contractor and any employer-client are joint employers, a job contractor may submit an
(b) A job contractor must have separate contracts with each different employer-client. Each contract or agreement may support only one
(c) Either the job contractor or its employer-client may submit an ETA Form 9141, Application for Prevailing Wage Determination, describing the job opportunity to the NPWC. However, each of the joint employers is separately responsible for ensuring that the wage offer listed on the
(d)(1) A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed
(2) By signing the
(e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in § 655.16 and §§ 655.42–46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the
(2) The job order and all recruitment conducted by joint employers must satisfy the content requirements identified in § 655.18 and § 655.41. Additionally, in order to fully apprise applicants of the job opportunity and
(3)(i) Provided that all of the employer-clients' job opportunities are in the same occupation and area of intended employment and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully apprise potential workers of the job opportunity available with each employer-client and otherwise satisfy the advertising content requirements required for all H–2B-related advertisements, as identified in § 655.41. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client name and location (
(ii) In addition, the advertisement must contain the following statement: “Applicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.” If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement.
(f) If an application for joint employers is approved, the NPC will issue one certification and send it to the job contractor. In order to ensure notice to both employers, a courtesy copy of the certification cover letter will be sent to the employer-client.
(g) When submitting a certified
An employer employing H–2B workers and/or workers in corresponding employment under an
(a)
(2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage.
(3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the job order and the employer must demonstrate that they are normal and usual for non-H–2B employers for the same occupation in the area of intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate that the piece rate is no less than the normal rate paid by non-H–2B employers to workers performing the same activity in the area of intended employment. The average hourly piece rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the piece rate does not result in average hourly piece rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked.
(b)
(c)
(d)
(e)
(f)
(2) For purposes of this paragraph a workday means the number of hours in a workday as stated in the job order. The employer must offer a total number of hours of work to ensure the provision of sufficient work to reach the three-fourths guarantee in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) during the work period specified in the job order, or during any modified job order period to which the worker and employer have mutually agreed and that has been approved by the CO.
(3) In the event the worker begins working later than the specified beginning date the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the job order and all extensions thereof are in effect.
(4) The 12-week periods (6-week periods if the period of employment covered by the job order is less than 120 days) to which the guarantee applies are based upon the workweek used by the employer for pay purposes. The first 12-week period (or 6-week period, as appropriate) also includes any partial workweek, if the first workday after the worker's arrival at the place of employment is not the beginning of the employer's workweek, with the guaranteed number of hours increased on a pro rata basis (thus, the first period may include up to 12 weeks and 6 days (or 6 weeks and 6 days, as appropriate)). The final 12-week period (or 6-week period, as appropriate) includes any time remaining after the last full 12-week period (or 6-week period) ends, and thus may be as short as 1 day, with the guaranteed number of hours decreased on a pro rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period (a period greater than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 315 hours (12 weeks × 35 hours/week = 420 hours × 75 percent = 315) in the first 12-week period, at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks × 35 hours/week = 280 hours × 75 percent = 210) in the final partial period. If the job order is for a 16-week period (less than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 157.5 hours (6 weeks × 35 hours/week = 210 hours × 75 percent = 157.5) in the first 6-week period, at least 157.5 hours in the second 6-week period, and at least 105 hours (4 weeks × 35 hours/week = 140 hours × 75 percent = 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must use the worker's average hourly piece rate earnings or the offered wage, whichever is higher, to calculate the amount due under the guarantee.
(7) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday. The employer, however, may count all hours actually worked in calculating whether the guarantee has been met. If during any 12-week period (6-week period if the period of employment covered by the job order is less than 120 days) during the period of the job order the employer affords the U.S. or H–2B worker less employment than that required under paragraph (f)(1) of this section, the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer has not met the work guarantee if the employer has merely offered work on three-fourths of the workdays in an 12-week period (or 6-week period, as appropriate) if each workday did not consist of a full number of hours of work time as specified in the job order.
(8) Any hours the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to work in accordance with paragraph (f)(1) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday), may be counted by the employer in calculating whether each 12-week period (or 6-week period, as appropriate) of guaranteed employment has been met. An employer seeking to calculate whether the guaranteed number of hours has been met must maintain the payroll records in accordance with this part.
(g)
(h)
(i)
(2) The employer must furnish to the worker on or before each payday in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked by the worker;
(v) An itemization of all deductions made from or additions made to the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j)
(ii) Transportation from the place of employment. If the worker completes the period of employment covered by the job order (not counting any extensions), or if the worker is dismissed from employment for any reason by the employer before the end of the period, and the worker has no immediate subsequent H–2B employment, the employer must provide or pay at the time of departure for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer. If the worker has contracted with a subsequent employer that has not agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the employer must provide or pay for that transportation and subsistence. If the worker has contracted with a subsequent employer that has agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the subsequent employer must provide or pay for such expenses.
(iii) Employer-provided transportation. All employer-provided transportation must comply with all applicable Federal, State, and local laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure requirements, and vehicle insurance as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H–2B worker, but not for passport expenses or other charges primarily for the benefit of the worker.
(k)
(l)
(m)
(n)
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), 29 CFR part 503, or
(2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other Department regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other Department regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by 8 U.S.C. 1184(c), 29 CFR part 503, or this subpart or any other Department regulation promulgated thereunder.
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(a)
(b)
(c)
(a)
(b)
(1) State the reason(s) why the
(2) Offer the employer an opportunity to submit a modified
(3) Offer the employer an opportunity to request administrative review of the Notice of Deficiency before an ALJ under provisions set forth in § 655.61. The notice will inform the employer that it must submit a written request for review to the Chief ALJ of DOL within 10 business days from the date the Notice of Deficiency is issued by facsimile or other means normally assuring next day delivery, and that the employer must simultaneously serve a copy on the CO. The notice will also state that the employer may submit any legal arguments that the employer believes will rebut the basis of the CO's action; and
(4) State that if the employer does not comply with the requirements of this section by either submitting a modified application within 10 business days or requesting administrative review before an ALJ under § 655.61, the CO will deny the
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(1) Direct the employer to engage in recruitment of U.S. workers as provided in §§ 655.40–655.46, including any additional recruitment ordered by the CO under § 655.46;
(2) State that such employer-conducted recruitment is in addition to the job order being circulated by the SWA(s) and that the employer must conduct recruitment within 14 calendar days from the date the Notice of Acceptance is issued, consistent with § 655.40;
(3) Direct the SWA to place the job order into intra- and interstate clearance as set forth in § 655.16 and to commence such clearance by:
(i) Sending a copy of the job order to other States listed as anticipated worksites in the
(ii) Sending a copy of the job order to the SWAs for all States designated by the CO for interstate clearance;
(4) Instruct the SWA to keep the approved job order on its active file until the end of the recruitment period as defined in § 655.40(c), and to transmit the same instruction to other SWAs to which it circulates the job order in the course of interstate clearance;
(5) Where the occupation or industry is traditionally or customarily unionized, direct the SWA to circulate a copy of the job order to the following labor organizations:
(i) The central office of the State Federation of Labor in the State(s) in which work will be performed; and
(ii) The office(s) of local union(s) representing employees in the same or substantially equivalent job classification in the area(s) in which work will be performed;
(6) Advise the employer, as appropriate, that it must contact the appropriate designated community-based organization(s) with notice of the job opportunity; and
(7) Require the employer to submit a report of its recruitment efforts as specified in § 655.48.
(a)
(b)
(c)
(a)
(b)
(c)
(d) Amendments after certification are not permitted. The employer must promptly provide copies of any approved amendments to all U.S. workers hired under the original job order.
(a)
(b)
(c)
(d)
(e)
(f)
(a) All recruitment conducted under §§ 655.42–655.46 must contain terms and conditions of employment that are not less favorable than those offered to the H–2B workers and, at a minimum, must comply with the assurances applicable to job orders as set forth in § 655.18(a).
(b) All advertising must contain the following information:
(1) The employer's name and contact information;
(2) The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;
(3) A description of the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity;
(4) A statement that the job opportunity is a temporary, full-time position including the total number of job openings the employer intends to fill;
(5) If applicable, a statement that overtime will be available to the worker and the wage offer(s) for working any overtime hours;
(6) If applicable, a statement indicating that on-the-job training will be provided to the worker;
(7) The wage that the employer is offering, intends to offer or will provide to the H–2B workers, or in the event that there are multiple wage offers (such as where an itinerary is authorized through special procedures for an employer), the range of applicable wage offers, each of which must equal or exceed the highest of the prevailing wage or the Federal, State, or local minimum wage;
(8) If applicable, any board, lodging, or other facilities the employer will offer to workers or intends to assist workers in securing;
(9) All deductions not required by law that the employer will make from the worker's paycheck, including, if applicable, reasonable deduction for board, lodging, and other facilities offered to the workers;
(10) A statement that transportation and subsistence from the place where the worker has come to work for the employer to the place of employment and return transportation and subsistence will be provided, as required by § 655.20(j)(1);
(11) If applicable, a statement that work tools, supplies, and equipment will be provided to the worker without charge;
(12) If applicable, a statement that daily transportation to and from the worksite will be provided by the employer;
(13) A statement summarizing the three-fourths guarantee as required by § 655.20(f); and
(14) A statement directing applicants to apply for the job opportunity at the nearest office of the SWA in the State in which the advertisement appeared, the SWA contact information, and, if applicable, the job order number.
(a) The employer must place an advertisement (which may be in a language other than English, where the CO determines appropriate) on 2 separate days, which may be consecutive, one of which must be a Sunday (except as provided in paragraph (b) of this section), in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and the workers likely to apply for the job opportunity.
(b) If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.
(c) The newspaper advertisements must satisfy the requirements in § 655.41.
(d) The employer must maintain copies of newspaper pages (with date of publication and full copy of the advertisement), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of publication furnished by the newspaper containing the text of the printed advertisements and the dates of publication, consistent with the document retention requirements in
The employer must contact (by mail or other effective means) its former U.S. workers, including those who have been laid off within 120 calendar days before the date of need (except those who were dismissed for cause or who abandoned the worksite), employed by the employer in the occupation at the place of employment during the previous year, disclose the terms of the job order, and solicit their return to the job. The employer must maintain documentation sufficient to prove such contact in accordance with § 655.56.
(a) If there is a bargaining representative for any of the employer's employees in the occupation and area of intended employment, the employer must provide written notice of the job opportunity, by providing a copy of the
(b) If there is no bargaining representative, the employer must post the availability of the job opportunity in at least 2 conspicuous locations at the place(s) of anticipated employment or in some other manner that provides reasonable notification to all employees in the job classification and area in which the work will be performed by the H–2B workers. Electronic posting, such as displaying the notice prominently on any internal or external Web site that is maintained by the employer and customarily used for notices to employees about terms and conditions of employment, is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section. The notice must meet the requirements under § 655.41 and be posted for at least 15 consecutive business days. The employer must maintain a copy of the posted notice and identify where and when it was posted in accordance with § 655.56.
(c) If appropriate to the occupation and area of intended employment, as indicated by the CO in the Notice of Acceptance, the employer must provide written notice of the job opportunity to a community-based organization, and maintain documentation that it was sent to any designated community-based organization. An employer governed by this paragraph must include information in its recruitment report that confirms that the community-based organization was contacted and notified of the position openings and whether the organization referred qualified U.S. worker(s), including the number of referrals, or was non-responsive to the employer's requests.
(a)
(b)
(c)
SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and who are qualified and will be available for employment.
(a)
(1) The name of each recruitment activity or source (
(2) The name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker's application. The employer must clearly indicate whether the job opportunity was offered to the U.S. worker and whether the U.S. worker accepted or declined;
(3) Confirmation that former U.S. employees were contacted, if applicable, and by what means;
(4) Confirmation that the bargaining representative was contacted, if applicable, and by what means, or that the employer posted the availability of the job opportunity to all employees in the job classification and area in which the work will be performed by the H–2B workers;
(5) Confirmation that the community-based organization designated by the CO was contacted, if applicable;
(6) If applicable, confirmation that additional recruitment was conducted as directed by the CO; and
(7) If applicable, for each U.S. worker who applied for the position but was not hired, the lawful job-related reason(s) for not hiring the U.S. worker.
(b)
(a)
(b)
(a) The criteria for certification include whether the employer has a valid
(b) In making a determination whether there are insufficient U.S. workers to fill the employer's job opportunity, the CO will count as available any U.S. worker referred by the SWA or any U.S. worker who applied (or on whose behalf an application is made) directly to the employer, but who was rejected by the employer for other than a lawful job-related reason.
(c) A certification will not be granted to an employer that has failed to comply with one or more sanctions or remedies imposed by final agency actions under the H–2B program.
If a temporary labor certification is granted, the CO will send the approved
If a temporary labor certification is denied, the CO will send the Final Determination letter to the employer by means normally assuring next day delivery, including electronic mail, and a copy, if applicable, to the employer's attorney or agent. The Final Determination letter will:
(a) State the reason(s) certification is denied, citing the relevant regulatory standards and/or special procedures;
(b) Offer the employer an opportunity to request administrative review of the denial under § 655.61; and
(c) State that if the employer does not request administrative review in accordance with § 655.61, the denial is final and the Department will not accept any appeal on that
The CO may issue a partial certification, reducing either the period of need or the number of H–2B workers or both for certification, based upon information the CO receives during the course of processing the
(a) State the reason(s) why either the period of need and/or the number of H–2B workers requested has been reduced, citing the relevant regulatory standards and/or special procedures;
(b) If applicable, address the availability of U.S. workers in the occupation;
(c) Offer the employer an opportunity to request administrative review of the partial certification under § 655.61; and
(d) State that if the employer does not request administrative review in accordance with § 655.61, the partial certification is final and the Department will not accept any appeal on that
(a)
(b)
(a)
(b)
(c)
(1) Documents and records not previously submitted during the registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in § 655.16;
(ii) Advertising as specified in §§ 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in § 655.43;
(iv) Contact with bargaining representative(s), or a copy of the posting of the job opportunity, if applicable, as specified in § 655.45(a) or (b); and
(v) Additional employer-conducted recruitment efforts as specified in § 655.46;
(3) Substantiation of the information submitted in the recruitment report prepared in accordance with § 655.48, such as evidence of nonapplicability of contact with former workers as specified in § 655.43;
(4) The final recruitment report and any supporting resumes and contact information as specified in § 655.48;
(5) Records of each worker's earnings, hours offered and worked, location(s) of work performed, and other information as specified in § 655.20(i);
(6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 655.20(j).
(7) Evidence of contact with U.S. workers who applied for the job opportunity in the
(8) Evidence of contact with any former U.S. worker in the occupation at the place of employment in the
(9) The written contracts with agents or recruiters as specified in §§ 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in § 655.9;
(10) Written notice provided to and informing OFLC that an H–2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the
(11) The
(12) The
(13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in § 655.5.
(d)
(a)
(b)
(c)
An employer may apply for extensions of the period of employment in the following circumstances. A request for extension must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseeable changes in market conditions), and must be supported in writing, with
(a)
(1) Must be sent to the BALCA, with a copy simultaneously sent to the CO who denied the application, within 10 business days from the date of determination;
(2) Must clearly identify the particular determination for which review is sought;
(3) Must set forth the particular grounds for the request;
(4) Must include a copy of the CO's determination; and
(5) May contain only legal argument and such evidence as was actually submitted to the CO before the date the CO's determination was issued.
(b)
(c)
(d)
(e)
(1) Affirm the CO's determination; or
(2) Reverse or modify the CO's determination; or
(3) Remand to the CO for further action.
(f)
Employers may withdraw an
The Department will maintain an electronic file accessible to the public with information on all employers applying for temporary nonagricultural labor certifications. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition.
The CO may conduct audits of adjudicated temporary labor certification applications.
(a)
(b)
(1) Specify the documentation that must be submitted by the employer;
(2) Specify a date, no more than 30 calendar days from the date the audit letter is issued, by which the required documentation must be sent to the CO; and
(3) Advise that failure to fully comply with the audit process may result:
(i) In the requirement that the employer undergo the assisted recruitment procedures in § 655.71 in future filings of H–2B temporary labor certification applications for a period of up to 2 years, or
(ii) In a revocation of the certification and/or debarment from the H–2B program and any other foreign labor certification program administered by the Department.
(c)
(d)
(a)
(b)
(c)
(1) Requiring the employer to submit a draft advertisement to the CO for review and approval at the time of filing the
(2) Designating the sources where the employer must recruit for U.S. workers, including newspapers and other publications, and directing the employer to place the advertisement(s) in such sources;
(3) Extending the length of the placement of the advertisement and/or job order;
(4) Requiring the employer to notify the CO and the SWA in writing when the advertisement(s) are placed;
(5) Requiring an employer to perform any additional assisted recruitment directed by the CO;
(6) Requiring the employer to provide proof of the publication of all advertisements as directed by the CO, in addition to providing a copy of the job order;
(7) Requiring the employer to provide proof of all SWA referrals made in response to the job order;
(8) Requiring the employer to submit any proof of contact with all referrals and past U.S. workers; and/or
(9) Requiring the employer to provide any additional documentation verifying it conducted the assisted recruitment as directed by the CO.
(d)
(a)
(1) The issuance of the temporary labor certification was not justified due to fraud or willful misrepresentation of a material fact in the application process, as defined in § 655.73(d);
(2) The employer substantially failed to comply with any of the terms or conditions of the approved temporary labor certification. A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions of the approved certification and is further defined in § 655.73(d) and (e);
(3) The employer failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit (under § 655.73), or law enforcement function under 29 CFR part 503 or this subpart; or
(4) The employer failed to comply with one or more sanctions or remedies imposed by WHD, or with one or more decisions or orders of the Secretary with the respect to the H–2B program.
(b)
(2) Rebuttal. If the employer timely submits rebuttal evidence, the Administrator, OFLC will inform the employer of the final determination on the revocation within 10 business days of receiving the rebuttal evidence. If the Administrator, OFLC determines that the certification should be revoked, the Administrator, OFLC will inform the employer of its right to appeal according to the procedures of § 655.61. If the employer does not appeal the final determination, it will become the final agency action.
(3) Appeal. An employer may appeal a Notice of Revocation, or a final determination of the Administrator, OFLC after the review of rebuttal evidence, according to the appeal procedures of § 655.61. The ALJ's decision is the final agency action.
(4) Stay. The timely filing of rebuttal evidence or an administrative appeal will stay the revocation pending the outcome of those proceedings.
(5) Decision. If the temporary labor certification is revoked, the Administrator, OFLC will send a copy of the final agency action to DHS and the Department of State.
(c)
(1) Reimbursement of actual inbound transportation and other expenses;
(2) The workers' outbound transportation expenses;
(3) Payment to the workers of the amount due under the three-fourths guarantee; and
(4) Any other wages, benefits, and working conditions due or owing to the workers under this subpart.
(a)
(1) Willful misrepresentation of a material fact in its
(2) Substantial failure to meet any of the terms and conditions of its
(3) Willful misrepresentation of a material fact to the DOS during the visa application process.
(b)
(c)
(d)
(e)
(1) Previous history of violation(s) under the H–2B program;
(2) The number of H–2B workers, workers in corresponding employment, or improperly rejected U.S. applicants who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(f)
(1) Failure to pay or provide the required wages, benefits or working conditions to the employer's H–2B workers and/or workers in corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in corresponding employment;
(5) Failure to comply with one or more sanctions or remedies imposed by the Administrator, WHD for violation(s) of obligations under the job order or other H–2B obligations, or with one or more decisions or orders of the Secretary or a court under this subpart or 29 CFR part 503;
(6) Failure to comply with the Notice of Deficiency process under this subpart;
(7) Failure to comply with the assisted recruitment process under this subpart;
(8) Impeding an investigation of an employer under 29 CFR part 503 or an audit under this subpart;
(9) Employing an H–2B worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension thereof;
(10) A violation of the requirements of § 655.20(o) or (p);
(11) A violation of any of the provisions listed in § 655.20(r);
(12) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected;
(13) Fraud involving the
(14) A material misrepresentation of fact during the registration or application process.
(g)
(2) Rebuttal. The party who received the Notice of Debarment may choose to submit evidence to rebut the grounds stated in the notice within 30 calendar days of the date the notice is issued. If rebuttal evidence is timely filed, the Administrator, OFLC will issue a final determination on the debarment within 30 calendar days of receiving the rebuttal evidence. If the Administrator, OFLC determines that the party should be debarred, the Administrator, OFLC will inform the party of its right to request a debarment hearing according to the procedures in this section. The party must request a hearing within 30 calendar days after the date of the Administrator, OFLC's final determination, or the Administrator OFLC's determination will be the final agency order and the debarment will take effect at the end of the 30-day period.
(3) Hearing. The recipient of a Notice of Debarment seeking to challenge the debarment must request a debarment hearing within 30 calendar days of the date of a Notice of Debarment or the date of a final determination of the Administrator, OFLC after review of rebuttal evidence submitted under paragraph (g)(2) of this section. To obtain a debarment hearing, the recipient must, within 30 days of the date of the Notice or the final determination, file a written request with the Chief ALJ, United States Department of Labor, 800 K Street, NW., Suite 400–N, Washington, DC 20001–8002, and simultaneously serve a copy on the Administrator, OFLC. The debarment will take effect 30 calendar days from the date the Notice of Debarment or final determination is issued, unless a request for review is timely filed. Within 10 business days of receipt of the request for a hearing, the Administrator, OFLC will send a certified copy of the ETA case file to the Chief ALJ by means normally assuring next day delivery. The Chief ALJ will immediately assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18 apply to such hearings, except that the request for a hearing will not be considered to be a complaint to which an answer is required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or modify the Administrator, OFLC's determination. The ALJ will prepare the decision within 60 calendar days after completion of the hearing and closing of the record. The ALJ's decision will be provided to the parties to the debarment hearing by means normally assuring next day delivery. The ALJ's decision is the final agency action, unless either party, within 30 calendar days of the ALJ's decision, seeks review of the decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision of an ALJ must, within 30 calendar days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition must be served on all parties and on the ALJ. The ARB will decide whether to accept the petition within 30 calendar days of receipt. If the ARB declines to accept the petition, or if the ARB does not issue a notice accepting a petition within 30 calendar days after the receipt of a timely filing of the
(ii) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges will promptly forward a copy of the complete hearing record to the ARB.
(iii) Where the ARB has determined to review the decision and order, the ARB will notify each party of the issue(s) raised, the form in which submissions must be made (
(6) ARB Decision. The ARB's final decision must be issued within 90 calendar days from the notice granting the petition and served upon all parties and the ALJ.
(h)
(i)
8 U.S.C. 1101(a)(15(H)(ii(b) and 1184(c) and 8 CFR 214.2(h).
The regulations in this part cover the enforcement of all statutory and regulatory obligations, including requirements under 8 U.S.C. 1184(c) and 20 CFR part 655, Subpart A, applicable to the employment of H–2B workers admitted under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and workers in corresponding employment, including obligations to offer employment to eligible United States (U.S.) workers and to not lay off or displace U.S. workers in a manner prohibited by the regulations in this part or 20 CFR part 655, Subpart A.
(a)
(1) There are not sufficient U.S. workers who are qualified and will be available at the time and place needed to perform the labor or services involved in the petition; and
(2) The employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.
(b)
(c)
(d)
This part does not apply to temporary employment in the Territory of Guam. The Department does not certify to the United States Citizenship and Immigration Services (USCIS) of DHS the temporary employment of nonimmigrant foreign workers under H–2B visas, or enforce compliance with the provisions of the H–2B visa program in the Territory of Guam. Under DHS regulations, 8 CFR 214.2(h)(6)(v), administration of the H–2B temporary labor certification program is undertaken by the Governor of Guam, or the Governor's designated representative.
(a) Complaints received by ETA or any State Workforce Agency (SWA) regarding noncompliance with H–2B statutory or regulatory labor standards will be immediately forwarded to the appropriate WHD office for suitable action under the regulations in this part.
(b) Information received in the course of processing registrations and applications, program integrity measures, or enforcement actions may be shared between OFLC and WHD or, where applicable to employer enforcement under the H–2B program, may be forwarded to other agencies as appropriate, including the Department of State (DOS) and DHS.
(c) A specific violation for which debarment is sought will be cited in a single debarment proceeding. OFLC and the WHD will coordinate their activities to achieve this result. Copies of final debarment decisions will be forwarded to DHS promptly.
For purposes of this part:
(i) Is authorized to act on behalf of an employer for temporary nonagricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this part.
(i) Incumbent employees continuously employed by the H–2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H–2B workers during the 52 weeks prior to the period of employment certified on the
(ii) Incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H–2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause.
(2) To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof.
(1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to an H–2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue.
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, is granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by the INA or by DHS) to be employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3)) with respect to the employment in which the worker is engaging.
(a) An employer seeking certification under 20 CFR part 655, Subpart A must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary. 8 CFR 214.2(h)(6)(ii)(A).
(b) The employer's need is considered temporary if justified to the CO as one of the following: a one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS. 8 CFR 214.2(h)(6)(ii)(B).
A person may not seek to have an H–2B worker, a worker in corresponding employment, or any other person, including but not limited to a U.S. worker improperly rejected for employment or improperly laid off or displaced, waive or modify any rights conferred under 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations in this part. Any agreement by an employee purporting to waive or modify any rights given to said person under these provisions will be void as contrary to public policy except as follows:
(a) Waivers or modifications of rights or obligations hereunder in favor of the Secretary will be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
(a)
(b)
(c)
(d)
Information, statements, and data submitted in compliance with 8 U.S.C. 1184(c) or the regulations in this part are subject to 18 U.S.C. 1001, which provides, with regard to statements or entries generally, that whoever, in any matter within the jurisdiction of any department or agency of the U.S., knowingly and willfully falsifies, conceals, or covers up a material fact by any trick, scheme, or device, or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, will be fined not more than $250,000 or imprisoned not more than 5 years, or both.
The investigation, inspection, and law enforcement functions that carry out the provisions of 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations in this part pertain to the employment of any H–2B worker, any worker in corresponding employment, or any U.S. worker improperly rejected for employment or improperly laid off or displaced.
An employer employing H–2B workers and/or workers in corresponding employment under an
(a)
(2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage.
(3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the job order and the employer must demonstrate that they are normal and usual for non-H–2B employers for the same occupation in the area of intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate that the piece rate is no less than the normal rate paid by non-H–2B employers to workers performing the same activity in the area of intended employment. The average hourly piece rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the piece rate does not result in average hourly piece rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked.
(b)
(c)
(d)
(e)
(f)
(2) For purposes of this paragraph (f) a workday means the number of hours in a workday as stated in the job order. The employer must offer a total number of hours of work to ensure the provision of sufficient work to reach the three-fourths guarantee in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) during the work period specified in the job order, or during any modified job order period to which the worker and employer have mutually agreed and that has been approved by the CO.
(3) In the event the worker begins working later than the specified beginning date the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the job order and all extensions thereof are in effect.
(4) The 12-week periods to which the guarantee applies (6-week periods if the period of employment covered by the job order is less than 120 days) to which the guarantee applies are based upon the workweek used by the employer for pay purposes. The first 12-week period (or 6-week period, as appropriate) also includes any partial workweek, if the first workday after the worker's arrival at the place of employment is not the beginning of the employer's workweek, with the guaranteed number of hours increased on a pro rata basis (thus, the first period may include up to 12 weeks and 6 days (or 6 weeks and 6 days, as appropriate)). The final 12-week period (or 6-week period, as appropriate) includes any time remaining after the last full 12-week period (or 6-week period) ends, and thus may be as short as 1 day, with the guaranteed number of hours decreased on a pro rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period (a period greater than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 315 hours (12 weeks × 35 hours/week = 420 hours × 75 percent = 315) in the first 12-week period, at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks × 35 hours/week = 280 hours × 75 percent = 210) in the final partial period. If the job order is for a 16-week period (less than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 157.5 hours (6 weeks × 35 hours/week = 210 hours × 75 percent = 157.5) in the first 6-week period, at least 157.5 hours in the second 6-week period, and at least 105 hours (4 weeks × 35 hours/week = 140 hours × 75 percent = 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must use the worker's average hourly piece rate earnings or the offered wage, whichever is higher, to calculate the amount due under the guarantee.
(7) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday. The employer, however, may count all hours actually worked in calculating whether the guarantee has been met. If during any 12-week period (6-week period if the period of employment covered by the job order is less than 120 days) during the period of the job order the employer affords the U.S. or H–2B worker less employment than that required under paragraph (f)(1) of this section, the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer has not met the work guarantee if the employer has merely offered work on three-fourths of the workdays in an 12-week period (or 6-week period, as appropriate) if each workday did not consist of a full number of hours of work time as specified in the job order.
(8) Any hours the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to work in accordance with paragraph (f)(1) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday), may be counted by the employer in calculating whether each 12-week period (or 6-week period, as appropriate) of guaranteed employment has been met. An employer seeking to calculate whether the guaranteed number of hours has been met must maintain the payroll records in accordance with this part.
(g)
(h)
(i)
(2) The employer must furnish to the worker on or before each payday in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked by the worker;
(v) An itemization of all deductions made from or additions made to the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j)
(ii) Transportation from the place of employment. If the worker completes the period of employment covered by the job order (not counting any extensions), or if the worker is dismissed from employment for any reason by the employer before the end of the period, and the worker has no immediate subsequent H–2B employment, the employer must provide or pay at the time of departure for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer. If the worker has contracted with a subsequent employer that has not agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the employer must provide or pay for that transportation and subsistence. If the worker has contracted with a subsequent employer that has agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the subsequent employer must provide or pay for such expenses.
(iii) Employer-provided transportation. All employer-provided transportation must comply with all applicable Federal, State, and local laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure requirements, and vehicle insurance as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H–2B worker, but not for passport expenses or other charges primarily for the benefit of the worker.
(k)
(l)
(m)
(n)
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other Department regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other Department regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other Department regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other Department regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or this part or any other Department regulation promulgated thereunder.
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(a)
(b)
(c)
(1) Documents and records not previously submitted during the registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in 20 CFR 655.16;
(ii) Advertising as specified in 20 CFR 655.41 and 655.42;
(iii) Contact with former U.S. workers as specified in 20 CFR 655.43;
(iv) Contact with bargaining representative(s), copy of the posting of the job opportunity, and contact with community-based organizations, if applicable, as specified in 20 CFR 655.45(a), (b) and (c); and
(v) Additional employer-conducted recruitment efforts as specified in 20 CFR 655.46;
(3) Substantiation of the information submitted in the recruitment report prepared in accordance with 20 CFR 655.48, such as evidence of nonapplicability of contact with former workers as specified in 20 CFR 655.43;
(4) The final recruitment report and any supporting resumes and contact information as specified in 20 CFR 655.48;
(5) Records of each worker's earnings, hours offered and worked, and other information as specified in § 503.16(i);
(6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 503.16(j).
(7) Evidence of contact with U.S. workers who applied for the job opportunity in the
(8) Evidence of contact with any former U.S. worker in the occupation and the area of intended employment in the
(9) The written contracts with agents or recruiters, as specified in 20 CFR 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in 20 CFR 655.9;
(10) Written notice provided to and informing OFLC that an H–2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the
(11) The
(12) The approved
(13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in § 503.4.
(d)
(a)
(b)
(a)
(1) Willful misrepresentation of a material fact on the
(2) Substantial failure to meet any of the terms and conditions of the
(3) Willful misrepresentation of a material fact to the Department of State during the visa application process.
(b)
(c)
(1) Previous history of violation(s) under the H–2B program;
(2) The number of H–2B workers, workers in corresponding employment, or U.S. workers who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(d)
Whenever the Administrator, WHD determines that there has been a violation(s), as described in § 503.19, such action will be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following:
(a) Institute administrative proceedings, including for: The recovery of unpaid wages (including recovery of prohibited recruitment fees paid or impermissible deductions from pay, and recovery of wages due for improperly placing workers in areas of employment or in occupations other than those identified on the
(b) The remedies referenced in paragraph (a) of this section will be sought either directly from the employer, or from its successor in interest, or from the employer's agent or attorney, as appropriate.
OFLC has primary responsibility to make all determinations regarding the issuance, denial, or revocation of a labor certification as described in § 503.1(b) and in 20 CFR part 655, Subpart A. The WHD has primary responsibility to make all determinations regarding the enforcement functions as described in § 503.1(c). The taking of any one of the actions referred to above will not be a bar to the concurrent taking of any other action authorized by 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations in this part. OFLC and the WHD have concurrent jurisdiction to impose a debarment remedy under 20 CFR 655.73 or under § 503.24.
The Solicitor of Labor, through authorized representatives, will represent the Administrator, WHD and the Secretary in all administrative hearings under 8 U.S.C. 1184(c)(14) and the regulations in this part.
(a) A civil money penalty may be assessed by the Administrator, WHD for each violation that meets the standards described in § 503.19. Each such violation involving the failure to pay an individual worker properly or to honor the terms or conditions of a worker's employment required by the
(b) Upon determining that an employer has violated any provisions of § 503.16 related to wages, impermissible deductions or prohibited fees and expenses, the Administrator, WHD may assess civil money penalties that are equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker(s), not to exceed $10,000 per violation.
(c) Upon determining that an employer has terminated by layoff or otherwise or has refused to employ any worker in violation of § 503.16(r), (t), or (v), within the periods described in those sections, the Administrator, WHD may assess civil money penalties that are equal to the wages that would have been earned but for the layoff or failure to hire, not to exceed $10,000 per violation. No civil money penalty will be assessed, however, if the employee refused the job opportunity, or was terminated for lawful, job-related reasons.
(d) The Administrator, WHD may assess civil money penalties in an amount not to exceed $10,000 per violation for any other violation that meets the standards described in § 503.19.
(e) In determining the amount of the civil money penalty to be assessed under paragraph (d) of this section, the Administrator, WHD will consider the type of violation committed and other relevant factors. In determining the level of penalties to be assessed, the highest penalties will be reserved for willful failures to meet any of the conditions of the
(1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations in this part;
(2) The number of H–2B workers, workers in corresponding employment, or improperly rejected U.S. applicants who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, and the regulations in this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public health, interest or safety; and
(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.
(a)
(1) Failure to pay or provide the required wages, benefits, or working conditions to the employer's H–2B workers and/or workers in corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in corresponding employment;
(5) Failure to comply with one or more sanctions or remedies imposed by the Administrator, WHD for violation(s) of obligations under the job order or other H–2B obligations, or with one or more decisions or orders of the Secretary or a court under 20 CFR part 655, Subpart A or this part;
(6) Impeding an investigation of an employer under this part;
(7) Employing an H–2B worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension thereof;
(8) A violation of the requirements of § 503.16(o) or (p);
(9) A violation of any of the provisions listed in § 503.16(r);
(10) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected;
(11) Fraud involving the
(12) A material misrepresentation of fact during the registration or application process.
(b)
(c)
(d)
(e)
(f)
(a) No person will interfere or refuse to cooperate with any employee of the Secretary who is exercising or attempting to exercise the Department's investigative or enforcement authority under 8 U.S.C. 1184(c). Federal statutes prohibiting persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 114.
(b) Where an employer (or employer's agent or attorney) interferes or does not cooperate with an investigation concerning the employment of an H–2B worker or a worker in corresponding employment, or a U.S. worker who has been improperly rejected for employment or improperly laid off or displaced, WHD may make such information available to OFLC and may recommend that OFLC revoke the existing certification that is the basis for the employment of the H–2B workers giving rise to the investigation. In addition, WHD may take such action as appropriate where the failure to cooperate meets the standards in § 503.19, including initiating proceedings for the debarment of the employer from future certification for up to 5 years, and/or assessing civil money penalties against any person who has failed to cooperate with a WHD investigation. The taking of any one action will not bar the taking of any additional action.
Where a civil money penalty is assessed in a final order by the Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty must be received by the Administrator, WHD within 30 calendar days of the date of the final order. The person assessed the penalty will remit the amount ordered to the Administrator, WHD by certified check or by money order, made payable to the Wage and Hour Division, United States Department of Labor. The remittance will be delivered or mailed to the WHD Regional Office for the area in which the violations occurred.
The procedures and rules contained in this subpart prescribe the administrative appeal process that will be applied with respect to a determination to assess civil money penalties, to debar, to enforce provisions of the job order or obligations under 8 U.S.C. 1184(c), 20 CFR part 655, Subpart A, or the regulations in this part, or to the collection of monetary relief due as a result of any violation.
(a) Whenever the Administrator, WHD decides to assess a civil money penalty, to debar, or to impose other appropriate administrative remedies, including for the recovery of monetary relief, the party against which such action is taken
(b) The Administrator, WHD's determination will be served on the party by personal service or by certified mail at the party's last known address. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail.
The notice of determination required by § 503.41 will:
(a) Set forth the determination of the Administrator, WHD, including:
(1) The amount of any monetary relief due; or
(2) Other appropriate administrative remedies; or
(3) The amount of any civil money penalty assessment; or
(4) Whether debarment is sought and the term; and
(5) The reason or reasons for such determination.
(b) Set forth the right to request a hearing on such determination;
(c) Inform the recipient(s) of the notice that in the absence of a timely request for a hearing, received by the Chief ALJ within 30 calendar days of the date of the determination, the determination of the Administrator, WHD will become final and not appealable;
(d) Set forth the time and method for requesting a hearing, and the related procedures for doing so, as set forth in § 503.43, and give the addresses of the Chief ALJ (with whom the request must be filed) and the representative(s) of the Solicitor of Labor (upon whom copies of the request must be served); and
(e) Where appropriate, inform the recipient(s) of the notice that the Administrator, WHD will notify OFLC and DHS of the occurrence of a violation by the employer.
(a) Any party desiring review of a determination issued under § 503.41, including judicial review, must make a request for such an administrative hearing in writing to the Chief ALJ at the address stated in the notice of determination. In such a proceeding, the Administrator will be the plaintiff, and the party will be the respondent. If such a request for an administrative hearing is timely filed, the Administrator, WHD's determination will be inoperative unless and until the case is dismissed or the ALJ issues an order affirming the decision.
(b) No particular form is prescribed for any request for hearing permitted by this section. However, any such request will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of determination giving rise to such request;
(4) State the specific reason or reasons why the party believes such determination is in error;
(5) Be signed by the party making the request or by the agent or attorney of such party; and
(6) Include the address at which such party or agent or attorney desires to receive further communications relating thereto.
(c) The request for such hearing must be received by the Chief ALJ, at the address stated in the Administrator, WHD's notice of determination, no later than 30 calendar days after the date of the determination. A party which fails to meet this 30-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the ALJ.
(d) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service within the time set forth in paragraph (c) of this section. For the requesting party's protection, if the request is by mail, it should be by certified mail. If the request is by facsimile transmission, the original of the request, signed by the party or its attorney or agent, must be filed within 25 days.
(e) The determination will take effect on the start date identified in the written notice of determination, unless an administrative appeal is properly filed. The timely filing of an administrative appeal stays the determination pending the outcome of the appeal proceedings.
(f) Copies of the request for a hearing will be sent by the party or attorney or agent to the WHD official who issued the notice of determination on behalf of the Administrator, WHD, and to the representative(s) of the Solicitor of Labor identified in the notice of determination.
(a) Except as specifically provided in the regulations in this part and to the extent they do not conflict with the provisions of this part, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges established by the Secretary at 29 CFR part 18 will apply to administrative proceedings described in this part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, Subpart B) will not apply, but principles designed to ensure production of relevant and probative evidence will guide the admission of evidence. The ALJ may exclude evidence which is immaterial, irrelevant, or unduly repetitive.
(a) Under this part, a party may serve any pleading or document by regular mail. Service on a party is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the ALJ may direct the parties to serve pleadings or documents by a method other than regular mail.
(b) Two copies of all pleadings and other documents in any ALJ proceeding must be served on the attorneys for the Administrator, WHD. One copy must be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue NW., Room N–2716, Washington, DC 20210, and one copy must be served on the attorney representing the Administrator in the proceeding.
(c) Time will be computed beginning with the day following service and includes the last day of the period unless it is a Saturday, Sunday, or Federally-observed holiday, in which case the time period includes the next business day.
Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14) and the regulations in this part will be commenced upon receipt of a timely request for hearing filed in accordance with § 503.43.
(a) Each administrative proceeding instituted under 8 U.S.C. 1184(c)(14) and the regulations in this part will be captioned in the name of the person requesting such hearing, and will be styled as follows:
(b) For the purposes of such administrative proceedings the Administrator, WHD will be identified as plaintiff and the person requesting such hearing will be named as respondent.
(a) Upon receipt of a timely request for a hearing filed under and in accordance with § 503.43, the Chief ALJ will promptly appoint an ALJ to hear the case.
(b) The ALJ will notify all parties of the date, time and place of the hearing. Parties will be given at least 30 calendar days notice of such hearing.
(c) The ALJ may prescribe a schedule by which the parties are permitted to file a prehearing brief or other written statement of fact or law. Any such brief or statement must be served upon each other party. Post-hearing briefs will not be permitted except at the request of the ALJ. When permitted, any such brief must be limited to the issue or issues specified by the ALJ, will be due within the time prescribed by the ALJ, and must be served on each other party.
(a)
(b)
(1) That the order will have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based will consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.
(c)
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d)
(a) The ALJ will prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the Administrator, WHD.
(b) The decision of the ALJ will include a statement of the findings and conclusions, with reasons and basis therefore, upon each material issue presented on the record. The decision will also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator, WHD. The reason or reasons for such order will be stated in the decision.
(c) In the event that the Administrator, WHD assesses back wages for wage violation(s) of § 503.16 based upon a PWD obtained by the Administrator from OFLC during the investigation and the ALJ determines that the Administrator's request was not warranted, the ALJ will remand the matter to the Administrator for further proceedings on the Administrator's determination. If there is no such determination and remand by the ALJ, the ALJ will accept as final and accurate the wage determination obtained from OFLC or, in the event the party filed a timely appeal under 20 CFR 655.13 the final wage determination resulting from that process. Under no circumstances will the ALJ determine the validity of the wage determination or require submission into evidence or disclosure of source data or the names of establishments contacted in developing the survey which is the basis for the PWD.
(d) The decision will be served on all parties.
(e) The decision concerning civil money penalties, debarment, monetary relief, and/or other administrative remedies, when served by the ALJ will constitute the final agency order unless the ARB, as provided for in § 503.51, determines to review the decision.
(a) A respondent, the WHD, or any other party wishing review, including judicial review, of the decision of an ALJ will, within 30 days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition will be served on all parties and on the ALJ.
(b) No particular form is prescribed for any petition for the ARB's review permitted by this part. However, any such petition will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the ALJ decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized representative of such party;
(6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and
(7) Include as an attachment the ALJ's decision and order, and any other record documents which would assist the ARB in determining whether review is warranted.
(c) If the ARB does not issue a notice accepting a petition for review of the decision within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the ALJ will be deemed the final agency action.
(d) Whenever the ARB, either on the ARB's own motion or by acceptance of a party's petition, determines to review the decision of an ALJ, a notice of the same will be served upon the ALJ and upon all parties to the proceeding.
Upon receipt of the ARB's notice under § 503.51, the OALJ will promptly forward a copy of the complete hearing record to the ARB.
Where the ARB has determined to review such decision and order, the ARB will notify the parties of:
(a) The issue or issues raised;
(b) The form in which submissions will be made (
(c) The time within which such presentation will be submitted.
All documents submitted to the ARB will be filed with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue NW., Room S–5220, Washington, DC 20210. An original and two copies of all documents must be filed. Documents are not deemed filed with the ARB until actually received by the ARB. All documents, including documents filed by mail, must be received by the ARB either on or before the due date. Copies of all documents filed with the ARB must be served upon all other parties involved in the proceeding.
The ARB's final decision will be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ.
The official record of every completed administrative hearing provided by the regulations in this part will be maintained and filed under the custody and control of the Chief ALJ, or, where the case has been the subject of administrative review, the ARB.
Army Corps of Engineers, DoD.
Final notice.
The U.S. Army Corps of Engineers (Corps) is reissuing 48 of the 49 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing two new NWPs, three new general conditions, and three new definitions. The effective date for the new and reissued NWPs will be March 19, 2012. These NWPs will expire on March 18, 2017. The NWPs will protect the aquatic environment and the public interest while effectively authorizing activities that have minimal individual and cumulative adverse effects on the aquatic environment.
The NWPs and general conditions will become effective on March 19, 2012.
U.S. Army Corps of Engineers, Attn: CECW–CO–R, 441 G Street NW., Washington, DC 20314–1000.
Mr. David Olson at 202–761–4922 or by email at
The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize certain activities that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The purpose of this regulatory action is to reissue 48 existing NWPs and issue two new NWPs. In addition, three new general conditions and three new definitions will be issued. The NWPs may be issued for a period of no more than five years. Therefore, the Corps must reissue the NWPs every five years to continue to authorize these activities. These 50 NWPs will go into effect on March 19, 2012.
The NWPs authorize activities that have minimal individual and cumulative adverse effects on the aquatic environment. The NWPs authorize a variety of activities, such as aids to navigation, utility lines, bank stabilization activities, road crossings, stream and wetland restoration activities, residential developments, mining activities, commercial shellfish aquaculture activities, and agricultural activities. Some NWP activities may proceed without notifying the Corps, as long as those activities satisfy the terms and conditions of the NWPs. Other NWP activities cannot proceed until the project proponent has submitted a pre-construction notification to the Corps, and for most NWPs the Corps has 45 days to notify the project proponent whether the activity is authorized by NWP.
In the February 16, 2011, issue of the
After evaluating the comments received in response to the February 16, 2011, proposal, we have made a number of changes to the NWPs, general conditions, and definitions to further clarify the permits, general conditions, and definitions, facilitate their administration, and strengthen environmental protection. Examples of improved environmental protection include: imposing limits on surface coal mining activities authorized by NWP 21; modifying NWP 27 to authorize additional aquatic resource restoration and enhancement activities such as the rehabilitation and enhancement of tidal streams, wetlands, and open waters; and providing flexibility in designing crossings of streams and other waterbodies so that movements of aquatic species can be maintained after taking into account the characteristics of the stream or waterbody and the surrounding landscape (see general condition 2, aquatic life movements). These changes are discussed in the preamble.
The Corps is reissuing 48 existing NWPs, issuing two new NWPs, reissuing 28 existing general conditions, and issuing three new general conditions. The Corps is also reissuing all of the NWP definitions, and adding three new definitions. The Corps is also splitting one existing definition into two definitions as they relate to single and complete projects. The effective date for these NWPs, general conditions, and definitions is March 19, 2012. These NWPs, general conditions, and definitions expire on March 18, 2017.
In accordance with 33 CFR part 330.6(b), activities authorized by the current NWPs issued on March 12, 2007, that have commenced or are under contract to commence by March 18, 2012, will have until March 18, 2013, to complete the activity under the terms and conditions of the current NWPs. Nationwide permit 21 activities that were authorized by the 2007 NWP 21 may be reauthorized without applying the new limits imposed on NWP 21, provided the permittee submits a written request for reauthorization to the district engineer by February 1, 2013, and the district engineer determines that the on-going surface coal mining activity will result in minimal adverse effects on the aquatic environment and notifies the permittee in writing that the activity is authorized under the 2012 NWP 21.
The NWPs issued today will become effective on March 19, 2012. This
After the 60-day period, the latest version of any written position taken by a state, Indian tribe, or EPA on its WQC for any of the NWPs will be accepted as the state's, Indian tribe's, or EPA's final position on those NWPs. If the state, Indian tribe, or EPA takes no action by April 23, 2012, WQC will be considered waived for those NWPs.
After the 90-day period, the latest version of any written position taken by a state on its CZMA consistency determination for any of the NWPs will be accepted as the state's final position on those NWPs. If the state takes no action by May 21, 2012, CZMA concurrence will be presumed for those NWPs.
While the states, Indian Tribes, and EPA complete their WQC processes and the states complete their CZMA consistency determination processes, the use of an NWP to authorize a discharge into waters of the United States is contingent upon obtaining individual water quality certification or a case-specific WQC waiver. Likewise, the use of an NWP to authorize an activity within a state's coastal zone, or outside a state's coastal zone that will affect land or water uses or natural
In response to the February 16, 2011,
Many commenters expressed support for the proposed permits. Some commenters stated that the changes are a step forward in improving consistency in the NWP program. Many commenters endorsed the fundamentals of the NWP program, stating that the permits could have a beneficial impact to conducting infrastructure and mining projects important to the country. Some stated that permitting delays and an increase in individual permits would result without the NWP program, creating a backlog for the Corps and resource agencies, while placing a burden on regulated industries. Another commenter urged the Corps to increase flexibility to allow for project modifications when needed due to unanticipated challenges encountered during construction. Some commenters stated that further streamlining is needed for increased efficiency and reducing administrative burden while maintaining a high level of environmental protection. One commenter said the Corps should maximize rather than limit use of the NWP program in light of the current economic situation, Federal budget cuts, and presidential efforts to streamline regulations. Another commenter was pleased to see the Corps hold the line against further restrictions on the NWP program. Many commenters emphasized that a timely, efficient, and consistent permitting system is critical to the nation's economy.
The NWP Program provides flexibility to readily authorize project modifications if the NWP activity cannot be constructed in accordance with the approved plans, as long as any modifications would still meet the terms and conditions of applicable NWP(s) and qualify for NWP authorization. In cases where the district engineer has issued an NWP verification letter, the permittee should contact the district as soon as he or she finds that the activity cannot be constructed in accordance with the approved plans. The district engineer will then determine if authorization by NWP is still appropriate. If it is not, then the permittee will be instructed on the most appropriate mechanism for permitting the modified activity.
We believe the final permits issued today maintain a proper balance between efficiently authorizing activities with minimal individual and cumulative adverse environmental effects and protecting the aquatic environment. The NWPs provide a streamlined authorization process that is consistent with the principles of Executive Order 13563, Improving Regulation and Regulatory Review.
In contrast, many other commenters expressed general opposition to the proposal, and said that the proposed rule weakens protection for waters and should be withdrawn. Some commenters said that the proposal threatens to undermine the important and statutorily mandated function of the NWPs and the Clean Water Act, and is contrary to Congressional intent. One commenter expressed opposition to the issuance of the NWPs, stating that they will result in an increase in the number of activities that can be permitted and a reduction in the opportunity for public review and comment. Many of these commenters objected to the goals of “streamlining” or “improving regulatory efficiency,” and they said that the focus of the NWPs should be on compliance with the Clean Water Act. Another commenter was concerned that the proposed NWPs do not support the “no overall net loss” goal for wetlands, and that the Corps analysis predicts that the NWPs will result in a decrease of waters of the United States, including wetlands.
As discussed below, those NWPs that authorize discharges of dredged or fill material into waters of the United States comply with the Clean Water Act and the environmental criteria provided in its implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230. The NWPs authorize minor activities that result in minimal adverse effects on the aquatic environment that would likely generate little, if any, public comment if they were evaluated through the standard permit process with a full public notice. Through the adoption of Section 404(e) of the Clean Water Act in 1977, Congress approved the use of general permits as an important tool to keep the Corps Regulatory Program manageable from a resources and manpower perspective, while protecting the aquatic environment. The Corps first adopted the concept of general permits in its final rule published on July 25, 1975 (see 40 FR 31321). The NWP program also continues to support the national goal of “no overall net loss” for wetlands, and wetlands compensatory mitigation will be required when appropriate and practicable to offset losses of wetland area and functions. The “no overall net loss” goal applies only to wetlands, and for other waters of the United States the goal is to avoid and minimize losses of those waters and to provide compensatory mitigation to offset those losses if it is appropriate and practicable to do so. Stream mitigation is becoming more commonplace as the science and practical applications become further developed.
Some commenters stated that the NWPs should require consideration of less damaging alternatives or demonstrate that NWP activities result in minimal adverse environmental effects. One commenter said that there is not sufficient emphasis on avoidance of impacts to waters of the United States. Another commenter objected to using NWPs to expand existing projects, stating that it discourages avoidance and minimization.
Those NWPs that authorize discharges of dredged or fill material into waters of the United States comply with the provisions of the 404(b)(1) Guidelines that address the issuance of general permits (see 40 CFR 230.7). A decision document is prepared for each NWP to provide information to show that the NWP will authorize only those activities that result in minimal adverse effects on the aquatic environment and other public interest review factors. Supplemental decision documents are prepared at a regional level to support the decision on whether to add regional conditions to an NWP or suspend or revoke the use of that NWP in a specific waterbody, category of waters, or geographic area to ensure that only activities that result in minimal adverse effects on the aquatic environment and other public interest review factors are authorized by the NWP. In response to a pre-construction notification or a request to verify that an activity is authorized by NWP, a district engineer
Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site. The use of NWPs to authorize the expansion of existing projects does not discourage avoidance and minimization because this general condition applies equally to all NWP authorizations, including those that authorize expansion of existing projects. The consideration of practicable alternatives in accordance with 40 CFR 230.10(a) does not apply directly to discharges of dredged or fill material into waters of the United States authorized by general permits (see 40 CFR 230.7(b)(1)).
Several commenters said that the proposed NWPs are contrary to the Clean Water Act and violate Section 404(e) of that Act. Many commenters asserted that the NWPs result in more than minimal adverse effects on the aquatic environment, individually and cumulatively. These commenters stated that the NWPs do not protect vitally important functions of wetlands and streams, and that the proposal does not satisfy the Corps legal obligation to limit general permits to activities that cause minimal adverse impacts, individually and cumulatively. They also said the Corps lacks the data to show that the effects of the authorized activities are in fact minimal. Some commenters expressed concern regarding the potential overuse of these permits without the inclusion of acreage, linear feet, watershed or regional limitations. Another commenter said that the NWPs fail to describe similarly covered activities in precise terms.
The Corps disagrees with these comments. The NWPs comply with the Clean Water Act and the environmental criteria provided in its implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230. Section 404(e) of the Clean Water Act states that the Chief of Engineers may issue, after publishing a notice and providing an opportunity a public hearing, general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States, if it is determined that the activities in each category are similar in nature and result in minimal individual and cumulative adverse environmental effects. The issuance of the NWPs is consistent with these requirements and therefore complies with the intent of the Clean Water Act. As discussed above, national decision documents and supplemental decision documents are prepared to demonstrate that an NWP will authorize only those activities that have minimal individual and cumulative adverse effects on the aquatic environment and other public interest review factors. The decision documents use available data and other information to support their conclusions.
Where appropriate and necessary, certain NWPs have acreage, linear foot, or cubic yard limits, or combinations of those limits, to ensure that authorized activities result in minimal individual and cumulative adverse effects on the aquatic environment. Specifically, NWPs have acreage limitations, NWPs have linear foot limitations, and NWPs have cubic yard limitations. Many other NWPs have qualitative limitations in the form of specific activities or situations that are not authorized, or for which a PCN is required to allow the Corps to ensure on a case-by-case basis that the adverse effects on the aquatic environment of the project are truly minimal. A few NWPs have no explicit limits, but this is limited to those that authorize activities that provide benefits to the aquatic environment (e.g., NWP 27, which authorizes aquatic habitat restoration, establishment, and enhancement activities, and NWP 41, which authorizes activities for reshaping drainage ditches to improve water quality), or those for which the nature of the authorized activity inherently ensures that effects will be minimal (e.g., NWP 10, which authorizes non-commercial, single boat, mooring buoys). Division engineers may impose regional conditions on the NWPs to add acreage, linear foot, or cubic yard limits, or reduce those limits when the NWPs have specified limits in their terms and conditions, to ensure those NWPs authorize only those activities that result in minimal adverse effects on the aquatic environment.
The NWPs comply with the requirement in Section 404(e) of the Clean Water Act to authorize categories of activities that are similar in nature. Each NWP authorizes a specific category of activities, which may be broadly defined for some NWPs to keep the NWP program manageable. The Act does not require that activities authorized by an NWP be identical, only that they be similar in nature. The permits meet this requirement and are consistent with the Corps' longstanding practice regarding the appropriate level of detail with which to specify what constitutes activities that are similar in nature.
Several commenters said that the NWPs do not comply with the 404(b)(1) Guidelines. One commenter said that the Corps has no factual basis to conclude that significant degradation of waters of the United States has not occurred, which is required to be in compliance with the Guidelines. This commenter recommended withdrawing the NWPs or replacing them with state program general permits. One commenter stated that the NWPs do not comply with the 404(b)(1) Guidelines because they authorize discharges into special aquatic sites.
When we issue the NWPs, we fully comply with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of general permits under Section 404 of the Clean Water Act. For each NWP that authorizes discharges of dredged or fill material into waters of the United States, the decision document contains a 404(b)(1) Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines requires a “written evaluation of the potential individual and cumulative impacts of the categories of activities to be regulated under the general permit.” Since the required evaluation must be completed before the NWP is issued, the analysis is predictive in nature. The estimates of potential individual and cumulative impacts, as well as the projected compensatory mitigation that will be required, are based on the best available data from the Corps district offices, including the past use of NWPs. In our decision documents, we also used readily available national data on the status of wetlands and other aquatic habitats in the United States, and the foreseeable impacts of the NWPs on those waters.
The process for issuing state programmatic general permits is similar to the process for issuing NWPs, including the use of information to support decisions. The 404(b)(1) Guidelines analysis for state programmatic general permits is also predictive. Given those similarities, compliance with the 404(b)(1) Guidelines is not different for state programmatic general permits versus NWPs.
Despite the fact that many NWPs authorize discharges of dredged or fill material into special aquatic sites, they are still in compliance with the 404(b)(1) Guidelines. Section 230.7 of the 404(b)(1) Guidelines does not
Three commenters stated that the NWPs do not satisfy the requirements of the National Environmental Policy Act (NEPA), as they do not adequately consider indirect and cumulative effects on global warming. One commenter said that degradation in air quality from burning coal from mining projects must be addressed in an environmental impact statement, and that the Corps has to address the implications of climate change on aquatic ecosystems. Another commenter stated that the scientific consensus on the impacts of climate change has to be considered in the renewal of the NWPs. One commenter said the NWPs should take into account ongoing federal efforts to address the effects of climate change through federal programs. These federal programs address mitigation of climate change (e.g., through reduction of greenhouse gas emissions) and adaptation to climate change (e.g., by adjustments made to reduce vulnerability resulting from changing climate).
Although the Council on Environmental Quality has made available draft guidance on the consideration of the effects of climate change and greenhouse gas emissions, and sought public comment on that draft guidance, they have not issued any final guidance specifically on how to consider, in NEPA documents, the indirect and cumulative effects Federal agency actions have on climate change. In the Council on Environmental Quality's October 2011 Progress Report of the Interagency Climate Change Adaptation Task Force entitled “Federal Actions for a Climate Resilient Nation” adaptation is defined as “adjustment in natural or human systems to a new or changing environment that exploits beneficial opportunities or moderates negative effects.”
A major cause of climate change is emissions of greenhouse gases. Activities authorized by NWPs have little direct, indirect, or cumulative effects on climate change and the emission of greenhouse gases. There may be brief emissions of greenhouse gases during the construction of activities authorized by NWP, specifically discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States. Any greenhouse gas emissions that occur other than as a result of the discharge of dredged or fill materials are outside of the Corps NEPA scope of analysis because the Corps does not have the legal authority to control those emissions. The degradation of air quality caused by burning coal is not the result of a discharge of dredged or fill material and therefore is outside the Corps legal authority. The issuance of a Corps permit is designed to ensure that any discharges of dredged or fill material into waters of the United States associated with such mining comply with the Clean Water Act. A Corps permit does not authorize coal mining per se, and therefore the effects of coal mining that do not result from a discharge of dredge or fill material to waters of the United States generally are beyond the Corps NEPA scope of analysis.
The effects of climate change on aquatic ecosystems are a much broader issue than the effects on the aquatic environment caused by activities authorized by NWPs. The effects of climate change on hydrology and extreme events are difficult to project. The effects will vary by location and the sensitivity of resources to changes in hydrology and extreme events. The timeframe used to project hydrologic changes will also affect the evaluation. For activities with minimal adverse effects on the aquatic environment that are eligible for authorization by the NWPs, the Corps believes that any necessary adaptation to climate change is appropriately addressed through land use planning and zoning, which is the primary responsibility of state, tribal, and local governments. Activities authorized by NWPs may be part of state, tribal, or local adaptation efforts to mitigate the effects of climate change.
On October 1, 2011, the Corps issued updated guidance on sea level change considerations for Civil Works Program (Engineer Circular 1165–2–211). The current Engineer Circular applies to Corps Civil Works activities, but not to the Regulatory Program. As stated on page 25 of its “Climate Change Adaptation Plan and Report 2011” (available at:
One commenter acknowledged the Corps 2007 efforts to pursue programmatic consultation for the NWP program with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to ensure compliance with the Endangered Species Act (ESA), stating that failure to complete consultation violates the ESA, as well as Section 404(e) of the Clean Water Act. Two commenters stated that the Corps has a requirement to complete these consultations prior to the issuance of the NWPs.
We have reinitiated programmatic Section 7 Endangered Species Act consultation for the NWPs. If this consultation is not completed prior to the effective date of these NWPs, district engineers will consult, as necessary on a case-by-case basis with the U.S. Fish and Wildlife Service and National Marine Fisheries Service in accordance with general condition 18, endangered species. Division engineers may also impose regional conditions on any of the NWPs to facilitate compliance with the requirements of the Endangered Species Act.
One commenter stated that the proposed NWPs must comply with Section 304(d) of the National Marine Sanctuaries Act (NMSA). Section 304(d)(1))(A) of the NMSA states that “Federal agency actions internal or external to a national marine sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause the loss of, or injure any sanctuary resource are subject to consultation with the Secretary.” The regulations for implementing section 304(d) are found at 15 CFR 922.187, and those regulations state that the Federal agency consultation should be conducted with the Director of the marine sanctuary. The consultation may be conducted with Endangered Species Act section 7 consultation.
District engineers that have NOAA-designated marine sanctuaries within their geographic area of responsibility should consult with the Director of the marine sanctuary to determine which NWP activities require activity-specific consultation under Section 304(d) of the NMSA. Regional conditions should be adopted where necessary to ensure compliance with the requirements of section 304(d).
We received several suggestions for the establishment of new NWPs for various activities. Two commenters suggested developing an NWP to authorize activities associated with linear gas facility infrastructure based on the Federal Energy Regulatory Commission's (FERC) blanket certification program that would allow the industry to undertake routine activities without the need to obtain a case-specific authorization from FERC for each project. One commenter recommended issuing an NWP to authorize activities associated with controlling nuisance and exotic plant species and another NWP to authorize activities for innovative mitigation proposals. One commenter said that an NWP should be developed to authorize the beneficial reuse of dredged material, for up to 10,000 cubic yards of material. Another commenter recommended adding an NWP to authorize discharges of dredged or fill material to raise dam elevations to increase pool elevations of public water supply reservoirs to increase potable water supplies and wetlands.
We believe that existing NWPs such as NWPs 12, 3, and 39 are sufficient to provide general permit authorization for gas utility lines and associated infrastructure. Discharges of dredged or fill material into waters of the United States or work in navigable waters of the United States associated with the removal of nuisance or exotic plant species may be authorized by NWP 27, aquatic habitat restoration, establishment, and enhancement activities. Innovative mitigation proposals may also be authorized by NWP 27, as long as those activities result in net increases in aquatic resource functions and services and satisfy the other terms and conditions of that NWP. We believe that the beneficial reuse of dredged material, especially at such large quantities, is more appropriately evaluated through the individual permit process, to more thoroughly consider effects on existing aquatic resource functions already being provided in the waters where the reused dredged material might be placed.
We proposed to modify the language concerning the use of waivers in NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be granted only after the district engineer makes a written determination concluding that the discharge will result in minimal adverse effects and sets forth the basis for that determination. We also proposed to apply the modified waiver language to NWPs 21, 44, and 50, as well as to the two proposed new NWPs. Some commenters supported the proposed modifications.
Many commenters said the proposed changes would allow district engineers too much discretion, and there should be no waivers of NWP limits. One commenter stated there was not a need for waivers because many of the NWPs already require pre-construction notification and the changes make the NWPs more difficult to obtain. The commenter said the waivers create an additional paperwork burden and provide no environmental benefits. Many commenters objected to the proposed waivers, stating that they imply that ephemeral and intermittent streams are considered lower in their function and value to the aquatic environment and are provided less protection than perennial streams. These commenters discussed the importance of ephemeral and intermittent streams to overall watershed integrity and to water quality and stated there is no scientific evidence to support the position that the use of waivers will result in only minimal impacts. One commenter said that before a waiver is issued, there should be analysis of cumulative effects to the watershed. Several commenters stated that the use of waivers in states with arid and semi-arid ecosystems does not properly take into account the importance of headwater streams in these ecosystems and could result in more than minimal individual and cumulative effects.
The basic requirement for general permits, including NWPs, is that they may only authorize activities that result in minimal individual and cumulative adverse effects on the aquatic environment. Section 404(e) of the Clean Water Act and the regulations relevant to the issuance of the NWPs (e.g., 33 CFR part 330 and 40 CFR 230.7) do not mandate a single approach to satisfying that basic requirement. The terms and conditions of the NWPs, including acreage, linear foot, and cubic yard limits and allowing the use of certain NWPs in specific types of waters, are intended to limit NWPs activities so that they do not result in more than minimal adverse effects on the aquatic environment. Division engineers have the authority to impose regional conditions on NWPs to restrict or prohibit their use in certain waters or other geographic areas. Another important tool is pre-construction notification, which provides for district engineers to review proposed NWP activities to ensure that they will result in minimal adverse effects. In response to a pre-construction notification, a district engineer may add activity-specific conditions to the NWP authorization to further minimize adverse effects to the aquatic environment. For those NWPs that allow district engineers review pre-construction notifications and issue written waivers of certain limits, such as the 300 linear foot limit for the loss of intermittent and ephemeral stream bed, the NWP activity must still satisfy the statutory and regulatory requirements for general permits. The waiver process does not make the NWP process more difficult. Instead, it provides an important tool for districts to efficiently authorize activities with minimal adverse effects on the aquatic environment after making a written determination that the activity satisfies the NWP requirements.
We recognize the importance of intermittent and ephemeral streams and the waiver process for certain NWPs requires district engineers to make activity-specific evaluations of the intermittent or ephemeral streams proposed to be filled or excavated before deciding whether to waive the 300 linear foot limit. To issue a waiver, the district engineer must make, and document, a minimal adverse effects determination, which as discussed above, is consistent with the statutory and regulatory requirements for general permits. As part of the analysis, the district engineer must consider the individual and cumulative adverse effects on the aquatic environment on a watershed basis, or for another appropriate geographic area, such as an ecoregion. For those activities in arid and semi-arid regions, district engineers will use local criteria as well as their knowledge of arid and semi-arid ecosystems to make decisions on pre-construction notifications for proposed activities that might be eligible for waivers. The basis for any waiver, including appropriate consideration of individual and cumulative effects, will be documented in the district engineer's written determination.
Several commenters noted concern with the 45-day pre-construction notification review period to provide a
We believe that the 45-day pre-construction notification review period is sufficient for district engineers to make their written determinations on whether to issue waivers of the applicable limits for certain NWPs. The text of the NWPs that allow waivers of certain limits clearly states that the waivers must be made by the district engineer in writing. In addition, paragraph (a)(2) of general condition 31, pre-construction notification, says that if a proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin that activity until the district engineer issues the waiver. The 45-day pre-construction notification review period still applies to pre-construction notifications that involve requests to waive specific limits of an NWP, but the project proponent may not proceed with the NWP activity if a written waiver is needed and the district engineer did not provide a written waiver by the time the 45-day review period ends. The Corps will make every effort to act on waiver requests within the 45-day review period. If a prospective permittee is concerned that a written waiver will not be issued within the 45-day pre-construction notification review period, then he or she has the option of modifying the proposed activity so that it does not exceed any specified limit of the applicable NWP and does not require a written waiver.
Many commenters said that specific criteria should be applied to the waiver process to ensure proposed activities result in minimal individual or cumulative adverse effects on the aquatic environment. One commenter stated that the waivers provide little incentive to minimize impacts. Another commenter said that water quality certification cannot be issued for NWPs that have limits that can be waived by district engineers because the state cannot certify that those activities meet state water quality standards. One commenter said that when waivers are issued by district engineers, the district engineer must include a fact-specific basis to support his or her finding.
The criteria that are to be applied to requested waivers of specified limits for certain NWPs are the same general criteria that are to be used to make any minimal adverse effects determination for the NWPs. Criteria that are to be used to make minimal adverse effects determinations are provided in paragraph (1) of Section D, District Engineer's Decision. The waivers still provide incentives to minimize impacts because the NWP authorization threshold (i.e., activities must result in minimal individual and cumulative adverse effects on the aquatic environment) is lower than the authorization threshold for individual permits (e.g., the proposed activity is not contrary to the public interest and, if it involves discharges of dredged or fill material into waters of the United States, it complies with the 404(b)(1) Guidelines). In other words, a waiver cannot be granted if the activity does not meet the minimal effects threshold, and applicant cannot proceed without the Corps' written determination. Applicants who submit waiver requests run the risk that the waiver will be denied, and valuable time will be lost in obtaining Department of the Army authorization. Thus, it is in the applicant's interest to modify the proposed activity if possible to avoid exceeding a threshold that requires a waiver, and especially to avoid submitting waiver requests for projects that will in fact have more than minimal adverse effects. States can issue water quality certifications for NWPs based on the specified acreage, linear foot, or cubic yard limits, and require individual water quality certifications for losses of waters of the United States that exceed the specified limits and must be waived in writing by district engineers. The written waiver determinations prepared by the district engineer have to be activity-specific, and explain the factual basis of the waiver.
Several commenters said that the additional information required for a request for a waiver and the requirement to use of a functional assessment method that is available and practicable would impose a significant documentation obligation on Corps staff.
The NWPs do not impose additional information requirements for requests for waivers of specific limits of NWPs. In addition, there is no requirement to use functional assessments to make decisions on waiver requests. The sentence in paragraph (1) of Section D, District Engineer's Decision, on the use of functional assessments to make minimal effects determinations, states that those methods “may” be used if they are available and practicable to use. However, the Corps does agree that there must be a factual basis for the waiver (which may entail the use of a functional assessment methodology, among other possible approaches) and documenting this does impose an additional obligation on the Corps. Applicants should provide the district engineer as much factual information as possible to support the waiver request and facilitate the district engineer's determination.
Several commenters supported the proposed changes requiring agency coordination and a written decision. Several commenters said that all appropriate state and Federal resource agencies should be provided an opportunity to comment on requests for waivers. One commenter stated there is no need for additional agency coordination unless specific resource issues are identified, such as compliance with the Endangered Species Act or the National Historic Preservation Act.
We have modified the proposed provision requiring agency coordination for pre-construction notifications involving losses of greater than 1,000 linear feet of intermittent and ephemeral stream bed, to require agency coordination for all pre-construction notifications requesting a waiver of the 300 linear foot limit for filling or excavating intermittent or ephemeral streams (see paragraph (d)(2) of general condition 31, pre-construction notification). Under this agency coordination process, district engineers will solicit comments from the agencies to assist in making the written minimal adverse effects determination necessary for a waiver of the 300 linear foot limit to take effect. Compliance with the Endangered Species Act and the National Historic Preservation Act is addressed by general conditions 18 and 20, respectively.
One commenter said that the loss of stream bed should be defined and the 300 linear foot limit should be reduced to 150 linear feet of loss of stream bed for those NWPs. Another commenter suggested reducing the linear foot limit for loss of stream bed to 50 linear feet. One commenter stated that the 300 linear foot limit should not apply to ephemeral streams. One commenter said that waivers should be allowed for losses of perennial streams if the adverse effects are determined to be minimal and the perennial stream is limited in its aquatic function.
The loss of stream bed is defined in “loss of waters of the United States” as the linear feet of stream bed that is filled or excavated. We believe the 300 linear foot limit is appropriate to ensure that losses of stream beds result in minimal
Many commenters cited the U.S. Supreme Court decisions issued in 2001 and 2006, for
The NWPs do not assert jurisdiction over waters and wetlands. Rather, the NWPs are a form of Department of the Army authorization to comply with the permit requirements of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. Nationwide permits issued under the authority of Section 404 of the Clean Water Act authorize discharges of dredged or fill material into waters of the United States. Nationwide permits issued under the authority of Section 10 of the Rivers and Harbors Act of 1899 authorize structures or work in navigable waters of the United States. Determining the geographic jurisdiction under the Clean Water Act (i.e., identifying waters and wetlands that are waters of the United States) is a separate process than the NWP authorization process. Likewise, identifying navigable waters of the United States for the purposes of geographic jurisdiction under Section 10 of the Rivers and Harbors Act of 1899 is a different process than the NWP authorization process. These NWPs do not expand either geographic jurisdiction or activities-based jurisdiction under the Clean Water Act. Activity-based jurisdiction under the Clean Water Act is determined by applying the appropriate regulations from 33 CFR part 323. These NWPs continue to provide a streamlined process for obtaining authorization for activities that require Department of the Army permits under either Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. Determining whether isolated mining pits are subject to Clean Water Act jurisdiction is a case-specific inquiry to be made by applying the appropriate regulations and guidance. A project proponent or landowner may contact the Corps district office that has the responsibility for that region of the country and request a jurisdictional determination for an isolated mining pit or any other area that might be considered a water or wetland. The Corps district will respond to that request and inform the project proponent or landowner of the status of that water with respect to Clean Water Act jurisdiction.
One commenter stated that these proposed regulations will cause coal mines to cease operations and believe the proposal is subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
Although we have made substantial changes to NWP 21, some surface coal mining activities will still be authorized by this NWP. The changes to NWP 21 will not cause coal mines to cease operations, because there are other forms of Department of the Army authorization available if the coal mining activity involves discharges of dredged or fill material into waters of the United States. Project proponents may apply for individual permits to obtain Department of the Army authorization for such activities. Any activity that could have previously been authorized under earlier versions of NWP 21 would still be eligible for authorization under an individual permit. Thus, while there may be additional paperwork burden for mine operators, the Corps does not believe that the changes in these permits will have a significant impact on the supply, distribution, or use of energy (e.g., coal).
Several commenters stated that the proposed NWPs are not consistent with EO 13563 for “Improving Regulation and Regulatory Review” because the modifications to the NWPs would impose numerous onerous conditions and limitations on applicants.
The NWPs continue to provide a streamlined process for authorizing activities that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The average processing times for standard permit applications in Fiscal Year 2010 was 221 days, while the average processing time for NWP pre-construction notifications and voluntary requests for NWP verifications was 32 days. The terms and conditions of the NWPs are necessary to ensure that the NWPs comply with applicable statutes and regulations, including the requirement that only activities with minimal adverse effects, both
One commenter said that the Corps should provide an opportunity for state and Tribal water quality certification agencies to participate early in the NWP reissuance process, to reduce potential conflicts during the water quality certification process. Another commenter asked for clarification regarding enforcement of the NWPs, in cases where a provisional NWP verification is issued, but the permittee proceeds with work without receiving the individual water quality certification. This commenter asked whether the Corps or the state would initiate an enforcement action. One commenter objected to use of provisional NWP verifications in cases where water quality certification has not yet been issued for a particular NWP activity.
The current NWP reissuance process provides sufficient opportunity to reduce potential conflicts during the water quality certification process. States and Tribes begin their water quality certification processes when the proposal to reissue the existing NWPs and issue new NWPs is published in the
After the comments received in response to the proposal are reviewed, the final NWPs are developed. Once the final NWPs are published in the
If water quality certification was denied for an NWP, then the permittee must obtain an individual water quality certification or a waiver, even if the Corps issued a provisional NWP verification. The provisional NWP verification merely informs the prospective permittee that the Corps has determined that the proposed activity qualifies for NWP authorization, as long as the permittee receives an individual water quality certification or waiver. The prospective permittee should provide a copy of the individual water quality certification to the Corps district. The Corps has full authority to pursue an enforcement action for not obtaining an individual water quality certification or waiver, which is a violation of the terms of the permit. Case-specific decisions on appropriate enforcement actions are at the Corps discretion. The provision for NWP verification is an important tool to be responsive to users of the NWPs, and to inform them of their need to work with the water quality certification agency to comply with the requirements of Section 401 of the Clean Water Act. The provisional verification serves to inform the applicant that all other requirements for NWP verification have been satisfied and allows the applicant to focus on obtaining the required state certifications.
NWP 1.
NWP 2.
The potential for a state to deny water quality certification for an NWP is not a sufficient basis for not reissuing an NWP. The water quality certification process is independent of the decision on whether to issue or reissue an NWP. This NWP is reissued without change.
NWP 3.
Several commenters supported the change to paragraph (a) to allow excavation in a stream channel immediately adjacent to a structure or fill as part of the maintenance activity, without requiring pre-construction notification. Some commenters specifically supported the ability to do minor excavation within stream channels to install a larger culvert or bridge that would improve fish passage without a pre-construction notification. Two commenters asked which types of stream channel modifications could be authorized under paragraph (a). Another commenter said that the proposed modification does not adequately clarify that a pre-construction notification is not required for stream channel modification as discussed in the proposed rule. This commenter recommended that paragraph (a) state that stream channel modification immediately adjacent to the structure or fill being maintained is authorized without pre-construction notification. One commenter suggested that paragraph (a) include the removal of material from within existing structures. One commenter indicated that the scope of activities considered as stream channel modifications should be clarified, because certain stream channel modifications such as sediment or debris removal and reestablishment of the original bridge-stream alignment are needed to maintain a safe crossing with sufficient hydraulic capacity. Another commenter indicated that while stream channel modification is restricted to the minimum necessary, there should be a 300 linear foot impact limit. One commenter did not support the proposed modification, stating that pre-construction notification should be required for stream channel excavation near a structure because excavation has the potential to uncover unknown archeological resources.
We have changed the text of paragraphs (a) and (b) to clarify which stream modifications fall under paragraph (a) and which fall under paragraph (b). The removal of material from waters within, or immediately adjacent to, the structure or fill are authorized under paragraph (a) and do not require pre-construction notification. The removal of material from waters that are not immediately adjacent to the structure or fill, but within the limits in paragraph (b), may be authorized under paragraph (b). This NWP authorizes only activities that repair or return an activity to previously existing conditions. We do not believe it is necessary to place additional limits on this NWP because the current limits are sufficient to ensure minimal effects. Paragraph (a) only authorizes minor stream channel modifications necessary to repair, replace, or rehabilitate the structure or fill, which may include minor deviations to account for changes in materials, construction techniques, requirements of other regulatory agencies, or current construction codes or safety standards. Such minor deviations could be done to improve conditions to facilitate aquatic species movements. General conditions 20 and 21 address the protection of historic properties and actions to be taken if previously unknown remains or artifacts are discovered during the maintenance activity.
Several commenters recommended adding the word “or stabilization” after “repair, rehabilitation, replacement” in paragraph (a) to clarify that stabilization activities are included in paragraph (a). Two commenters requested that practicability be considered with the “minimum necessary.” One commenter requested that the NWP include the requirements of other regulatory agencies as a reason for allowing minor deviations in a structure's configuration or filled area.
We do not believe it would be appropriate to include stabilization activities under paragraph (a) since some stabilization activities may result in more than a minor deviation in the structure's configuration or filled area. District engineers already consider what is practicable when reviewing proposed NWP 3 activities, and we do not believe it is necessary to provide additional clarification. We agree that the requirements of other regulatory agencies is an appropriate basis for making minor changes in a structure or filled area during maintenance, especially if those regulatory requirements help protect aquatic resources.
Several commenters stated that the placement of new or additional riprap to protect small structures be included in paragraph (a). A commenter requested clarification that the placement of pipe liners and concrete repairs to flow lines of pipes are examples of maintenance activities authorized by this NWP. One commenter expressed concern that authorizing the expansion of existing projects into waters of the United States discourages avoidance and minimization of adverse impacts and violates the 404(b)(1) Guidelines. Another commenter indicated that work that is immediately adjacent to the project is not maintenance and that the work should be limited to the extent of the original project.
The placement of riprap to protect a structure or fill is more appropriately authorized by paragraph (b) of this NWP, after the district engineer reviews the pre-construction notification. If the installation of pipe liners or concrete repairs to flow lines are necessary and result only in a minor deviation to the structure's configuration or filled area, it may be authorized under paragraph (a). Paragraph (a) only authorizes minor deviations to the structure or filled area that are necessary to conduct the repair, rehabilitation, or replacement activity, and complies with the general condition requiring on-site avoidance and minimization.
One commenter said that the permit should require that the Corps be notified, within 12 months of the date of the damage, for activities involving the repair, rehabilitation, or replacement of structures or fills destroyed or damaged by storms, floods, fire or other discrete events.
The repair, rehabilitation, or replacement of structures or fills destroyed or damaged by these types of events does not require pre-construction notification. This is because restoring a structure or fill to its pre-event configuration will not result in more than minimal adverse effects relative to the pre-event status quo. If a project proponent wants a waiver of the two-year limit, the district engineer can issue a waiver if warranted, without reviewing a pre-construction notification.
Some commenters expressed opposition over the proposed change from “and” to “and/or” under paragraph (b). They recommended retaining the current language because they indicated that making the change to “and/or” would cause confusion as to which provision of this NWP would be used to authorize riprap placement. The commenters also said that this change would result in the regulation of excavation activities that do not result in more than incidental fallback. Another commenter was concerned that the change to “and/or” suggested that the addition of riprap triggered pre-construction notification.
The use of the term “and/or” means that paragraph (b) authorizes the removal of accumulated sediments or debris, the placement of new or additional riprap to protect the structure, or both activities. This NWP authorizes the removal of accumulated sediment and debris if that activity involves a regulated discharge of dredged or fill material. This NWP also authorizes the removal of accumulated sediments and debris in the vicinity of existing structures from section 10 waters. If a project proponent seeks authorization to place new or additional riprap near the structure, then pre-construction notification is required in accordance with paragraph (b) of this NWP.
One commenter said that the use of riprap should be discouraged and only authorized if other options are not possible. Another commenter suggested placing a limit on the amount of riprap that can be placed under paragraph (b). One commenter stated that the placement of new or additional riprap is not maintenance and should not be authorized by NWP 3. One commenter recommended requiring mitigation techniques, such as weep holes, when steel sheet piling is used for the maintenance activity.
Riprap may be necessary to protect the integrity of these structures. We have modified the next to last sentence of paragraph (b) to clarify that new or additional riprap may be placed to protect the structure or ensure the safety of the structure. In response to a pre-construction notification (which is required for all placement of new or additional riprap under paragraph (b) of this NWP), best management practices or other mitigation measures may be required by the district engineer to minimize adverse effect to the aquatic environment.
One commenter said that this NWP should not authorize maintenance dredging and that NWP 19 should be used instead. This commenter also recommended adding a cubic yard limit for the amount of dredging that is authorized. Another commenter recommended that the removal of sediment should be limited to 100 feet instead of 200 feet. One commenter suggested increasing the linear foot limit to 500 feet. One commenter also suggested that the applicant be required to provide information to ensure that sediments proposed to be removed are not contaminated.
Paragraph (b) may be used to authorize the removal of accumulated sediment and debris from section 10 waters, and the 200 linear foot limit is appropriate to ensure minimal adverse effects. District and division engineers can condition this NWP to reduce the limit to less than 200 linear feet. Maintenance dredging for the purposes of navigation may be authorized by NWP 19 and may not be authorized by this NWP. The only excavation authorized by this NWP is excavation necessary for the maintenance, repair, rehabilitation, or replacement of the structure, and then only within the limits established in the permit. It is not necessary to require contaminant testing for the sediments to be removed as a general condition of the permit, because for many cases there is reason to believe that no contaminants are present in the material. If there is reason to believe that contaminants are present, the district engineer may require contaminant testing and/or best management practices to control the release of contaminants on a case-specific basis.
One commenter objected to the proposed removal of the words “[w]here maintenance dredging is proposed” from the “Notification” paragraph. Another commenter said that pre-construction notification should only be
Pre-construction notification is required for all activities covered under paragraph (b). When a permittee submits the pre-construction notification for activities covered under paragraph (b), they also must submit information regarding the original design capacities and configurations of the outfalls, intakes, small impoundments, and canals. The deleted phrase is meant to clarify the “Notification” provision.
A commenter asked if the term “upland” means “above the ordinary high water mark.” That commenter also requested clarification as to what constitutes “temporary” in terms of how long temporary fills can be kept in place. Another commenter asked for a definition of “minor deviations” and two commenters recommended that “immediately adjacent” be defined.
There may be wetlands landward of the ordinary high water mark of a river or other water of the United States, so it would not be appropriate to define “uplands” as suggested in the previous paragraph. Since some waters and wetlands are not subject to Clean Water Act jurisdiction, we have changed the text of paragraph (b) to require all dredged or excavated materials to be deposited and retained in an area that has no waters of the United States, unless otherwise specifically approved by the district engineer under separate authorization. Waters of the United States will be identified in accordance with applicable laws, regulations, and guidance, as discussed above, and is not affected by the issuance of these NWPs. What constitutes a temporary fill is at the discretion of the district engineer. Determining what is a minor deviation and immediately adjacent is also at the discretion of the district engineer. The Corps believes this is appropriate because it is difficult to identify bright line definitions for these terms that are applicable in all circumstances. If an applicant is unsure whether a specific activity qualifies, he or she should consult the appropriate Corps district office.
Several commenters said that pre-construction notification should not be required for activities authorized by paragraph (b), to reduce delays. Other commenters requested removal of the pre-construction notification requirements for sediment and debris removal, because the work is often conducted immediately after storm events when a timely response is critical to public safety. Another commenter also requested that no pre-construction notification be required for activities under paragraph (b), if the waters are ephemeral or intermittent streams. Other commenters said that pre-construction notification should be required for all activities authorized by this NWP.
We believe that the pre-construction notification requirements for this NWP are appropriate. Pre-construction notification is required for those activities that may have the potential to cause more than minimal adverse effects on the aquatic environment. Activities authorized by paragraph (b) usually involve larger impacts than those authorized by paragraph (a) and therefore warrant pre-construction notification to ensure that those activities will result in minimal adverse effects on the aquatic environment.
One commenter suggested that this NWP should require the use of best management practices to avoid sediment loading of waters. One commenter suggested that paragraph (c) should be conditioned to protect downstream water quality and prohibit sediment discharges. Two commenters said that general condition 2 should not apply to NWP 3 activities.
General condition 12 requires the use of sediment and erosion controls to minimize sediment inputs during construction. General condition 2 does apply to this NWP, to ensure that aquatic life movements can continue after the maintenance activity is conducted.
One commenter said that Tribes should be notified to avoid impacts to tribal treaty natural resources and cultural resources. Two commenters said that this NWP should be conditioned to allow fish migration to continue. One of these commenters also stated that these activities should not restrict water flows or constrict channels. One commenter said that this NWP should be conditioned to address slope stability to prevent overburden material from going into the water. Another commenter recommended that all stream crossings span the bankfull width and, in cases where the structures have a bottom, the structure bottom shall match stream slope.
District engineers have conducted government-to-government consultation with Tribes to determine which NWP activities should be subject to project-specific consultation to protect Tribal treaty natural resources and cultural resources. General Condition 18 specifies that no activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. General condition 2 requires that NWP activities be constructed to maintain aquatic life movements, and general condition 9 requires that water flows be maintained to the maximum extent practicable. The appropriate size for stream crossings will be determined on a case-by-case basis, to comply with the applicable general conditions.
A commenter recommended an addition to the “Note”, which references the section 404(f) exemption for maintenance. This commenter suggested that the note include clarification as to who can use the exemption for maintenance of irrigation and drainage ditches.
The section 404(f) exemption for maintenance of irrigation ditches and drainage ditches can be used by anyone that qualifies for the exemption. If a particular activity does not qualify for the exemption because of the recapture provision in section 404(f)(2) or for any other reason, NWP 3 may be used to authorize the maintenance activity, if it meets the terms and conditions of the NWP.
This NWP is reissued with the modifications discussed above.
NWP 4.
NWP 5.
One commenter suggested that each of the listed devices be defined and have footprint and height limitations. Another commenter said that meteorological stations should not be authorized by this NWP. One commenter supported adding meteorological stations, current gages,
We do not believe it is necessary to provide definitions for each of these devices and add limits. These devices are usually small in size and since most of them are structures they do not typically result in a loss of waters of the United States. This NWP already has a 25 cubic yard limit for weirs and flumes. Division engineers can regionally condition this NWP to establish additional limits, including maximum time frames for studies. In response to an NWP verification request, district engineers may also place limits on these devices and their use.
One commenter suggests the Corps clarify the requirements for the removal of a scientific measurement device, and suggested that the NWP not require excavation to remove the entire structure. This commenter also said that cutting off the structure near the substrate of the waterbody and leaving the buried foundation may result in less environmental damage during removal. Another commenter said that where meteorological towers are used for long-term data collection and preliminary testing for wind turbines, those meteorological towers would be removed during the wind energy facility decommissioning process. One commenter stated that the device should be removed “upon completion of the use of the device to measure and record scientific data.”
We have modified the provision in the NWP to require the removal of the device when it will no longer be used to measure and record scientific data. Meteorological towers used in wind energy generation facility preliminary testing and operations could be left in place until the facility is decommissioned. We have also changed the text to state that structures or fills must be removed to the maximum extent practicable, which would allow the foundation to remain if removing the foundation would cause more adverse effects to the waters or wetlands than leaving the foundation in place. We also added the word “foundation” to the examples of structures or fills that may be associated with a scientific measurement device.
This NWP is reissued with the modifications discussed above.
NWP 6.
Several commenters supported changing the limit from 25 cubic yards to
We are changing the limit of this NWP from 25 cubic yards to
This NWP is reissued with the modification discussed above.
NWP 7.
In waters that have been designated as Essential Fish Habitat in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, consultation with the National Marine Fisheries Service will be conducted for proposed activities that may adversely affect Essential Fish Habitat. That consultation will often result in conservation recommendations that will protect habitat for fish foraging and spawning. General condition 22, designated critical resource waters, will also reduce adverse effects to fish foraging and spawning areas caused by NWP activities in those critical resource waters. Division engineers may regionally condition this NWP to restrict or prohibit its use in specific waters, including those that provide important habitat. In response to a pre-construction notification, district engineers may also exercise discretionary authority if the proposed activity would result in more than minimal adverse effects on the aquatic environment, including vegetated shallows and fish spawning and feeding areas. These structures may be designed so that they do not trap debris. General condition 14, proper maintenance, requires authorized structures and fills to be properly maintained, which may include periodic removal of debris from outfall structures and associated intake structures, to ensure that these structures continue to function properly, do not trap debris, and do not cause more than minimal adverse effects to nearshore aquatic environments. Compliance with general condition 1, navigation, will prevent adverse impacts to navigation. Permittees are responsible for obtaining any other Federal, state or local permits that may be required.
The NWP is reissued without change.
NWP 8.
One commenter expressed support for the proposed modification. One commenter recommended that no oil and gas structures or activities be authorized through the nationwide permit process.
After the proposal to reissue this NWP was published, the Bureau of Ocean Energy Management (BOEM) became the agency responsible for issuing leases for oil and gas structures on the outer continental shelf. We have modified the text of NWP 8 to reflect this change. This NWP only authorizes structures
This NWP is reissued as proposed.
NWP 9.
NWP 10.
Division engineers can regionally condition this NWP to prohibit its use in areas where mooring buoys may impact access to Tribal treating fishing areas. General condition 18 states that NWP activities cannot impair reserved tribal rights. Division engineers can impose regional conditions to restrict or prohibit its use in shellfish harvesting areas. We do not agree that pre-construction notification for the activities authorized by this NWP is necessary, to require prospective permittees to submit detailed information on the location of the proposed mooring buoy, a detailed site plan, and a statement that it complies with U.S. Coast Guard requirements. All applicable Coast Guard regulations must be complied with independent of the conditions in this NWP. We believe that it is not necessary to limit this NWP, at the national level, to install a particular number of mooring buoys per acre. Division engineers may also regionally condition this NWP to impose such restrictions.
This NWP is reissued without change.
NWP 11.
The Corps believes that the current requirements for the removal of temporary structures are sufficient. Where necessary, shorter time periods for removal can be imposed through regional conditioning or through special conditions provided in activity-specific NWP verifications.
The NWP is reissued without change.
NWP 12.
Several commenters supported the proposed change to this NWP. Another commenter stated the proposed clarification would severely restrict the use of NWP 12, because it changes the definition of single and complete project. One commenter requested further clarification of the intent and applicability of the term “single and complete” and suggested we replace it with “single and complete linear projects” wherever the former phrase is found in NWP 12 since the NWP applies to linear projects and their associated facilities and activities. Two commenters requested confirmation that the calculation of impacts for purposes of satisfying the NWP 12 threshold is done separately for each crossing. Another commenter objected to the definition of “single and complete project” at 33 CFR 330.2(i) and the NWP definitions section and stated mitigation should be required for utility lines that result in the loss of greater than
This modification of the NWP does not change the definition of single and complete project and does not affect its implementation, except to clarify that only losses of waters of the United States associated with a single and complete project would be considered when determining whether the acreage limit or pre-construction notification threshold is exceeded. However, it is correct that the Corps long-standing practice (which we are not changing) has been to generally calculate impacts for purposes of satisfying the
One commenter stated the Corps should clarify that the only relevant activity for purposes of NWP 12 is a discharge of dredged or fill material into waters of the United States. One commenter said that no discharges should be authorized in waters below the ordinary high water mark or in areas that provide fish habitat functions. This commenter also said that utility lines should be buried at least six feet below the authorized federal channel depth. One commenter stated that mechanized land clearing of forested wetlands for installation of utility lines should not be authorized by NWP 12.
The activities authorized by this NWP are not limited to discharges of dredged or fill material. This NWP also authorizes structures or work in navigable waters of the United States that require authorization under Section 10 of the Rivers and Harbors Act of 1899. We do not agree that discharges should be prohibited in open waters, below the ordinary high water mark. Such activities often result in minimal adverse effects on the aquatic environment and qualify for general permit authorization. Division engineers can restrict or prohibit use of this NWP in certain waters, through the approval of regional conditions. The appropriate depth a utility line should be buried below a federal channel should be determined on a case-by-case basis. Mechanized landclearing of a forested wetland in a utility line right-of-way may only result in a conversion of wetland type, and not result in permanent loss of waters of the United States. District engineers may require compensatory mitigation to offset permanent losses of wetland functions when such mechanized landclearing occurs in forested wetlands.
One commenter stated that authorizing the loss of
The
One commenter said that some utility lines and associated renewable energy projects may have unintended negative impacts on the Department of Defense mission. For example, high voltage transmission lines could potentially interfere with long-range radar surveillance, homeland defense, testing, and training missions. This commenter requested that pre-construction notifications for NWP 12 activities involving the construction of overhead utility lines in waters of the United States be coordinated with the Department of Defense, by sending a copy of the pre-construction notification to the Department of Defense Siting Clearinghouse. Department of Defense Siting Clearinghouse staff will review the pre-construction notification and contact the project proponent if they identify potential negative impacts to Department of Defense operations, testing, and training missions.
We have added Note 4 to this NWP, which states that a copy of the pre-construction notification will be provided to the Department of Defense Siting Clearinghouse if the proposed activity involves an overhead utility line constructed in waters of the United States. This coordination process will not interfere or delay the district engineer's decision on the pre-construction notification, which must be made within the timeframes specified in the NWP general conditions. The coordination process will consist of districts sending the Department of Defense Siting Clearinghouse copies of pre-construction notifications and NWP verifications, and Clearinghouse staff will work with project proponents to address effects to military operations.
One commenter stated that the definition of a utility line in the NWP is too expansive and should not include liquescent or slurry substances. This commenter asked if utility lines could also be used to transport waste products. One commenter stated that terms and conditions of the NWP should require projects to use existing trenches or cables whenever possible, and require that sidecast material be put back in place within 24 hours. One commenter requested that temporary fill be defined and that compensatory mitigation should be required for temporary fills left in place for two years. One commenter said that enforcing the time periods for temporary side casting is too difficult. One commenter requested more detail regarding the circumstances under which a district engineer would extend the period of temporary side casting up to a total of 180 days. One commenter stated the side casting in areas with known or probable sediment contamination should be prohibited. One commenter stated the placement of excavated materials into any waterway should be prohibited.
Water or sewer lines are generally recognized to be utility lines, and are used to transport liquid or slurry substances. They may also be used to transport waste products, such as sewage or industrial byproducts. We do not agree that existing trenches or cable should be a requirement of this NWP, since many new utility lines constructed in waters of the United States result in minimal adverse effects on the aquatic environment. However, project sponsors should consider the use of existing trenches and cables where practicable as one way of avoiding or minimizing adverse impacts to the aquatic environment, which is required by general condition 23, mitigation. It is not practicable to require side cast material to be put back into the original trench or pit within 24 hours, and we have retained the current language concerning temporary side casting. It is the district engineer's discretion on whether to extend the period of temporary side casting. That discretion would be based on the site-specific environmental conditions, the activity, practicability considerations, and other factors. District engineers can restrict or prohibit side casting in areas where sediment contamination may be a concern. Excavated materials are generally not placed in flowing waters, and should be retained in areas outside of flowing waters with proper sediment and erosion controls.
One commenter objected to authorizing the expansion of utility line substations, stating that those activities should require individual permits and a finding of compliance with the Clean Water Act Section 404(b)(1) Guidelines and public interest review.
The expansion of utility line substations does not generally warrant a full public interest review and activity-specific Section 404(b)(1) Guidelines analysis since it is an expansion of an existing facility. In response to a pre-construction notification, the district engineer will review the proposed expansion of a substation and exercise discretionary authority if it would result in more than minimal individual and cumulative adverse effects on the aquatic environment.
Two commenters stated the construction of temporary access roads will require a submerged lands authorization and would require a submerged land lease for long-term use.
The use of NWP 12 does not obviate the need for the project proponent to obtain any other federal, state, or local permits that may be required, including permits from states that hold title to submerged lands.
One commenter said that this NWP should have fewer pre-construction notification thresholds to expedite pipeline safety repairs and infrastructure projects. One commenter supported retaining the
We believe all of the current pre-construction notification thresholds are necessary because of the variety of utility line activities authorized by NWP 12 (i.e., utility line construction, maintenance, repair, and removal, the construction, maintenance, or expansion of utility line substations, the construction or maintenance of foundations for overhead transmission lines, and the construction of access roads) and to allow district engineers
One commenter recommended that this NWP require the use of specific equipment such as low ground pressure equipment and wide tires to minimize adverse effects to wetlands. Another commenter said that this NWP should be conditioned to require the use of best management practices to reduce sediment loads into waters. One commenter stated that this NWP does not require sufficient avoidance and minimization of waters of the United States. One commenter suggested requiring the installation of barriers next to utility line trenches to prevent amphibians and reptiles from falling into the trench and to reduce sediment transport into waters of the United States during precipitation events. One commenter said that pipes installed over rivers and streams should have shut-off valves to minimize the potential for discharges to occur if the pipe is breached.
The use of equipment that minimizes adverse effects to waters of the United States is addressed by general condition 11, equipment, which requires permittees to take measures to minimize soil disturbance, such as placing heavy equipment on mats when working in wetlands, mudflats, or other waters. Division or district engineers may condition this NWP, either through the regional conditioning process or through activity-specific conditions added to an NWP 12 authorization, to require the use of best management practices. General condition 23, mitigation, requires permittees to design and construct their activities to avoid and minimize adverse effects to waters of the United States. A requirement to install barriers next to utility line trenches, or the use of shut-off valves in pipes constructed over waters, is more appropriately addressed through the regional conditioning process or through activity-specific conditions added to an NWP 12 authorization during the review of a pre-construction notification or NWP verification request.
One commenter stated that this NWP could streamline the authorization of offshore wind energy generation facilities, but two of the terms and conditions may be problematic. The first is the prohibition against side casting when sediments would be dispersed by currents or other forces. The second is the
The transmission cable that runs from an offshore wind energy generation facility to a land-based facility or distribution system may be constructed so that the trench for the cable is backfilled immediately after the cable is laid into the trench. That immediate backfilling would minimize dispersion by currents or other forces in those waters. The placing of a power transmission cable on the sea bed is considered a structure under our regulations for implementing Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(b)), and not a loss of waters of the United States subject to the
One commenter recommended requiring coordination with Tribes to avoid impacts to Tribal treaty natural resources and cultural resources. Another commenter said that coordination with State Historic Preservation Officers should be required to protect historic properties.
Division engineers can regionally condition this NWP to require coordination with Tribes, to ensure that this NWP does not adversely affect Tribal treaty natural resources and cultural resources. General condition 20, historic properties, addresses compliance with the National Historic Preservation Act, which requires consultation for activities that have the potential to cause effects to historic properties, including tribal resources that meet the definition of “historic property.” General condition 17, tribal rights, requires that no NWP activity or its operation may impair reserved treaty rights, such as reserved water rights and treaty fishing and hunting rights.
One commenter requested clarification that individual permits are not automatically required for NWP 12 activities when a Corps district participates as a cooperating agency for an environmental impact statement.
Even though an environmental impact statement may be prepared for a particular utility line, the National Environmental Policy Act process does not prohibit the Corps from using NWP 12 to authorize the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, as long as the activity complies with all applicable terms and conditions and results in minimal individual and cumulative adverse effects on the aquatic environment. NEPA requires consideration of all environmental impacts, not only those to aquatic resources, so there may well be situations where aquatic impacts are minimal even though environmental impacts more generally are not. These other environmental impacts would be addressed by the lead agency preparing the environmental impact statement. The district engineer will exercise discretionary authority to require an individual permit for any utility line activity that he or she determines does not meet the terms and conditions of NWP 12.
One commenter suggested modifying Note 1 to limit submission of NWP 12 pre-construction notifications and verifications to the National Oceanic and Atmospheric Administration's National Ocean Service (NOS), since NOS only produces charts for waters in the coastal United States, Great Lakes, and United States territories.
We have modified Note 1 to require district engineers to send copies of NWP 12 pre-construction notifications and verifications to NOS in those regions of the country.
This NWP is reissued with the modifications discussed above.
NWP 13.
Many commenters recommended that this NWP not be reissued, and stated that all bank stabilization should be evaluated under individual permit procedures. One commenter asserted that bank stabilization activities should be authorized with NWP 3 in man-made ditches and canals and NWP 13 in natural waterways. Two commenters said this NWP should not authorize new bank stabilization activities. Some commenters recommended modifying this NWP so that it would not authorize new vertical bulkheads and seawalls.
The terms and conditions for this NWP are appropriate for limiting bank stabilization activities so that they have minimal individual and cumulative effects on the aquatic environment, while allowing landowners and other entities to protect their property and safety. NWP 3 only authorizes minor amounts of rip rap associated with maintenance activities. It is more appropriate to authorize bank stabilization activities in man-made waterways through NWP 13. In many coastal waters and rivers it is necessary to utilize hard bank protection structures, because wave energy and currents are too strong for bioengineering or other techniques to successfully prevent or reduce erosion. We do not agree that there should be separate NWPs developed to authorize bank stabilization activities in riverine and lacustrine waters. Bank stabilization that may affect endangered or threatened species require pre-construction notification and compliance with general condition 18, endangered species. We also do not agree that this NWP should be limited to habitat improvement projects, because it is often necessary to install bank stabilization structures and fills to protect property and safety.
Two commenters said that NWP 13 should not be reissued because it authorizes activities that may prevent retreat that would be necessary to adapt to sea level rise caused by climate change. These commenters also said that sea level rise needs to be considered in the decision on whether to reissue this NWP. These commenters also stated that the structures and fills authorized by NWP 13 exacerbate erosion in areas where sea level rise will occur.
Coastal and riparian areas are dynamic landscapes. They are constantly changing as a result of erosional and depositional processes. Landowners seek Department of the Army authorization for bank stabilization activities to protect their property and provide safety. The purpose of NWP 13 activities is to protect land on which residences, commercial buildings, infrastructure, and other features are located. The Corps regulations recognize that a riparian landowner has a right to protect his or her property from erosion (see 33 CFR 320.4(g)(3)). When a district engineer evaluates a permit application for bank stabilization activities, including pre-construction notifications for NWP 13 activities, he or she considers the current environmental conditions at the site of the proposed activity, as well as the reasonably foreseeable direct, indirect, and cumulative effects that might be caused by the proposed activity. At the present time, there is a considerable amount of uncertainty surrounding climate change, and any associated sea level rise that may occur as a result of climate change. To the extent there is reliable information about projected sea level rise during the reasonably foreseeable future in the vicinity of a proposed activity, the district engineer will take that information into account when determining whether a proposed NWP 13 activity will have minimal individual and cumulative adverse effects on the aquatic environment. We do not agree that the structures and fills authorized by NWP 13 will accelerate erosion in areas affected by changing sea level rise caused by climate change. The bank stabilization structures and fills authorized by this NWP must be properly designed, so that they have minimal individual and cumulative adverse effects on coastal and riparian erosion and deposition processes. As sea level rise occurs, bank stabilization activities may no longer be effective, and it may be necessary for landowners to relocate.
Two commenters suggested limiting all projects to a maximum length of 500 linear feet, except for allowing bioengineering projects to exceed that length on a case-specific basis if the district engineer waives that limit. One commenter recommended not allowing vertical bulkheads longer than 500 feet. One commenter recommended limiting replacement of vertical bulkheads and seawalls to a maximum length of 200 feet. Another commenter recommended a 300 linear foot maximum project length for shoreline protection on coastal areas or lakes. One commenter suggested a 300 linear foot maximum length for bioengineering projects and a 150 foot maximum length for all other bank stabilization projects. Two commenters requested clarification regarding project length in paragraph (b) as it relates to activities that stabilize both banks (left and right) of a stream. Many commenters supported the district engineer waiver for the 500 linear foot limit for any projects.
The limits in this NWP are sufficient to ensure that the NWP authorizes only those activities that have minimal adverse effects on the aquatic environment, although division engineers may regionally condition the NWP to reduce those limits to account for local environmental conditions and the ecological functions and services provided by waters of the United States in those areas. For streams, the linear foot limit in paragraph (b) applies to a single and complete project for the bank stabilization activity measured along the length of the stream segment, which may involve discharging dredged or fill material along either one or both stream banks. We have retained the ability for district engineers to waive the 500 linear foot limit.
One commenter requested a definition for bank stabilization. Many commenters asked for a definition of bioengineering. One commenter said that bioengineering techniques should include living plant material and soil as the primary structural components to reinforce soil and to stabilize slopes. One commenter recommended requiring native vegetation in bioengineering projects where vegetation is the primary or secondary component of a project.
We do not believe that a definition of bioengineering is necessary because there is a wide variety of bioengineering techniques and project proponents and district engineers generally understand what it means in a local context. It is not possible at the national level to envision every possible variation of technique and materials that would reasonably fit within the meaning of this term, but generally bioengineering involves the use of a combination of vegetation and hard materials instead of only hard materials such as rip-rap for bank stabilization. Also, as explained below, the final NWP does not make a distinction between bioengineering and other bank stabilization techniques. We agree that bioengineering, for the purposes of bank stabilization, includes providing protection from erosion and
Several commenters recommended the NWP encourage the use of natural materials over riprap. One commenter said that only native plant species should be used for bioengineered bank stabilization. Another commenter recommended using natural stream design methods for erosion prevention. Several commenters objected to the placement of plant material in waters of the United States, and also objected to the planting of willows and similar species in and along waterways because these types of woody plants clog waterways and cause maintenance problems at bridge and culvert crossings.
Division engineers can regionally condition this NWP to encourage bioengineering or the use of natural materials for bank stabilization in waters subject to lower energy waves and currents. The use of plant materials as a component of a bank stabilization activity can have beneficial environmental effects, such as providing shading and habitat for near-shore organisms, or for riparian ecosystems. Proper maintenance should be done to remove plants that colonize waterways, especially at culverts or bridges. We have added a provision to this NWP stating that if bioengineering or vegetative bank stabilization is used, invasive plant species should not be used, because Executive Order 13112, Invasive Species, states that agencies should not “authorize, fund, or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species in the United States or elsewhere.” The Executive Order states there are economic, ecological, and human health impacts that are caused by invasive species, and we believe that invasive species should not be used for bioengineering bank stabilization activities authorized by this NWP because of the adverse environmental effects those species can cause.
Many commenters supported the proposed modification of paragraph (c) to only allow bioengineering projects to exceed one cubic yard per running foot, and to not allow waivers from the district engineer for other types of projects. Many other commenters objected to limiting that flexibility to bioengineering techniques, stating that bank protection structures are necessary in high energy coastal and riverine environments, and said that the waiver in the 2007 NWP 13 should be reinstated. Some commenters suggested removing paragraph (c) entirely. Several of these commenters thought the proposal would encourage bioengineering methods for achieving the necessary bank stabilization. Many commenters stated that the waiver to the cubic yard limit should be removed from paragraph (c) to ensure that the NWP authorizes only those activities with minimal adverse effects on the aquatic environment. Many commenters asserted that bioengineering methods for bank stabilization are unproven and not as effective at preventing erosion as hard structures. A few commenters suggested that the preference for bioengineering would be a hardship on local governments. Another commenter suggested that bioengineering techniques are rarely successful in arid areas and in ephemeral waterways. Another commenter added that the hydraulic forces in large rivers and tidal areas require the use of large stone, the size of which exceeds the one cubic yard per running foot average size, and are not conducive to bioengineering. Several commenters said that bioengineering is not always appropriate for protecting infrastructure such as roads and bridges, and requested that the one cubic yard per foot waiver be left in place to protect these structures. One commenter suggested modifying the NWP to require alternatives analyses for each proposed project using an established hierarchy, beginning with bioengineering as the most preferable bank stabilization method and ending with the hard bank stabilization structures. One commenter observed that bank stabilization using bioengineering or any other method will still result in adverse effects, and suggested all bank stabilization activities should be located landward of the ordinary high water mark.
In response to the many commenters that objected to removing the provision allowing district engineers to waive, after reviewing a pre-construction notification, the one cubic yard per running foot limit, we have reinstated that provision in this NWP. We have also reinstated the third pre-construction notification threshold that was in the 2007 version of NWP, which requires pre-construction notification for discharges exceeding one cubic yard per running foot along the bank below the plan of the ordinary high water mark or the high tide line. We acknowledge that bioengineering may not be appropriate in all waters, because it may not result in effective bank stabilization. We have thus determined that it is not appropriate to establish a hierarchy of preferred bank stabilization options because such decisions are best left to district engineers that review project-specific pre-construction notifications, and can take into account the characteristics of the waterbody and the surrounding area, and determine which bank stabilization method would be most effective and environmentally preferable. We agree, however, that bioengineering techniques may be environmentally preferable in many situations and that project proponents should consider such techniques where practicable in order to comply with the general requirement to avoid and minimize adverse effects to the aquatic environment. It is not practicable to require all bank stabilization activities to be located landward of the ordinary high water mark.
One commenter asked if the volume of fill buried deeply below bioengineering or turf reinforcement mats could be exempted from the volume of fill that counts towards the one cubic yard per running foot limit in paragraph (b). Another commenter said that buried stone does not meet the regulatory definition of fill material, and said the volume of stone buried below the ordinary high water mark should not count towards the one cubic yard per running foot limit. One commenter suggested replacing the words “below the plane of” with “within the” when describing the ordinary high water mark in paragraph (c).
The definition of “fill” found in 33 CFR part 323.2 clearly states that rock is fill material, and burying rock in a waterway constitutes a discharge of fill material. The volume of the buried stone, along with all other fill material, must be determined and that volume placed below the plane of the ordinary high water mark or high tide line is considered when reviewing the proposed project. We have retained the language in NWP because the phrase “below the plane of ” more accurately describes the Corps jurisdiction in waters of the United States. To the extent that the location and type of fill placed below the plane of the ordinary high water mark affects the potential for adverse effects to the aquatic environment, the district engineer would consider such factors in deciding whether to grant a waiver request.
Several commenters said that paragraph (d) should prohibit fills in special aquatic sites, including wetlands. One commenter opposes removing the waiver provision in
We believe that the pre-construction notification process affords the district engineer an appropriate opportunity to review proposed activities in special aquatic sites. Many streams and shorelines include, or are bordered by, special aquatic sites, and precluding use of this permit in these areas severely limits its usefulness for projects that have no more than minimal adverse effects on the aquatic environment. Additionally, it may be beneficial in some watersheds to stabilize eroding banks, even though small amounts of special aquatic sites may be impacted by a bank stabilization activity. Paragraph (d) requires a written determination concluding that the activity will result in minimal adverse effects. If a written waiver is not issued by the district engineer, then this NWP does not authorize such activities and the project proponent will have to obtain another form of DA authorization.
Several commenters expressed support for inclusion of temporary fills required to accomplish work authorized under this NWP. One commenter said that temporary fills should remain in place if their removal would do more damage than allowing them to remain in place. One commenter requested a list of mandatory best management practices developed for temporary fills authorized by this NWP.
If the district engineer determines that temporary fills should remain in place those fills may be authorized by another NWP, a regional general permit, or individual permit. We do not agree that specifically requiring best management practices is appropriate, although division engineers may regionally condition this NWP to add appropriate best management practices. District engineers may also add conditions to the NWP to require specific best management practices for a particular activity.
Several commenters stated that pre-construction notification should be required for all activities authorized by this NWP. One commenter requested that no pre-construction notification be required for any bank stabilization exceeding one cubic yard per running foot in ephemeral and intermittent waters. One commenter suggested removing all pre-construction notification requirements from work done under this NWP in man-made waterways. One agency recommended lowering a pre-construction notification threshold to 100 feet for hard bank stabilization projects such as riprap, and 300 feet for bioengineering projects. One commenter claimed it would be burdensome and costly to submit a pre-construction notification for every bank stabilization project.
We do not agree that it is necessary to require pre-construction notification for all activities authorized by this NWP. A large number of small bank stabilization activities are conducted each year that result in minimal adverse effects on the aquatic environment. We believe that the existing pre-construction notification thresholds are sufficient for satisfying the minimal adverse effects requirement for general permits, and division engineers can regionally condition this NWP to impose lower pre-construction notification thresholds, including requiring pre-construction notification for all activities.
Two commenters said that bank stabilization activities must avoid impacting tribal rights, tribal natural resources, and tribal cultural resources. Many commenters said that while bank stabilization projects may reduce erosion at a site, they may transfer or accelerate erosion in other areas of a waterbody.
General condition 17, tribal rights, prohibits the impairment of all reserved tribal rights. We acknowledge that bank stabilization activities may cause indirect effects in other areas of the waterbody and those indirect effects should be evaluated during the review of a pre-construction notification, if it is required. Activities that do not require a pre-construction notification have minimal adverse effects on the aquatic environment.
Some commenters asked that compensatory mitigation be required for all activities authorized by this NWP. A few commenters remarked that compensatory mitigation should be required for adverse effects on high quality riparian areas. Another commenter said that mitigation should be required when sheet piling is used to stabilize banks.
We do not believe compensatory mitigation should be required for all bank stabilization activities. District engineers will determine when compensatory mitigation is necessary to ensure that an activity results in minimal individual and cumulative adverse effects on the aquatic environment.
This NWP is reissued with the modifications discussed above.
NWP 14.
This NWP should not be limited to authorizing the maintenance of existing linear transportation projects. The terms and conditions of this NWP, including its acreage limits and pre-construction notification thresholds, provide an effective means for authorizing linear transportation projects with minimal individual and cumulative adverse effects on the aquatic environment. Parking lots may be an integral part of a single and complete linear transportation project and may be authorized under this NWP. Small linear transportation projects constructed or maintained in tidal waters may be authorized by this NWP, if they comply with appropriate thresholds and result in minimal adverse effects on the aquatic environment. Division engineers can regionally condition this NWP to restrict or prohibit the use of this NWP to authorize structures or fills in tidal waters where necessary.
Most commenters suggested adding a linear foot limit to this NWP to ensure that it only authorizes activities with minimal adverse effects on the aquatic environment, stating that the current NWP authorizes large amounts of small streams to be permanently lost or significantly altered. One commenter recommended a 100 linear foot limit for the loss of perennial, intermittent, and ephemeral streams. One commenter said that the
We believe the
One commenter asserted that using this NWP prevents the public from commenting on large transportation projects. Another commenter said that this NWP should not authorize expansion of existing projects, because it discourages avoidance and minimization and is contrary to the 404(b)(1) Guidelines. One commenter stated that use of this NWP for the expansion, modification, or improvement of previously authorized projects could result in cumulative impacts that exceed the acreage limits and said the impacts of previously authorized projects should count towards the acreage limit.
Linear transportation projects that involve small losses of waters of the United States and result in minimal adverse effects on the aquatic environment would not generally generate substantive public comments in response to a public notice and should not require public notices. It is appropriate to authorize expansions, modifications, or improvements to existing projects, as long as those activities comply with the terms and conditions of the NWP, including the applicable acreage limit. An expansion, modification, or improvement of an existing project has few practicable alternatives available because it is a change to a previously constructed project. Alternatives that would involve relocating an existing project are likely to result in more adverse effects to the aquatic environment. An expansion, modification, or improvement of a previously authorized single and complete linear transportation project should include the previously authorized losses of waters of the United States when determining whether the acreage limit would be exceeded by the expanded, modified, or improved project, if the expansion, modification, or improvement is not a separate single and complete project. Factors that may affect this determination include the length of time between the original project and the expansion, modification or improvement; the degree of independent utility of the original project and the expansion, modification or improvement; and the degree to which the expansion, modification or improvement may have been already envisioned, or planning might already have begun, at the time the original project was authorized. Under no circumstance will district engineers allow “piecemealing” of projects (for this or any other NWP) in order to meet thresholds.
One commenter requested that the term “minimum necessary” used in the first paragraph of this NWP be defined. One commenter asked if temporary fill may be put in place for up to two years without requiring any mitigation, and another commenter requested a definition for “temporary.” One commenter suggested that culverts or other appropriate measures should be required to maintain existing drainage patterns, all stream crossings should span the bankfull width of a stream, and in cases where bottomless culverts or bridge structures are not used, the bottom of the structure should match stream slope. Another commenter suggested that the NWP should require the use of best management practices to avoid sediment loading of waters and that best management practices should be used in upland areas and within waters to protect downstream water quality.
The decision as to whether a stream channel modification is the “minimum necessary” and whether a fill is “temporary” is to be determined on a case-by-case basis, after considering the specifics of the proposed activity and the types of aquatic resources proposed to be impacted by the linear transportation project. General condition 2, aquatic life movements, and general condition 9, management of water flows, require that linear transportation projects be designed to sustain corridors for aquatic life movements and maintain, to the maximum extent practicable, the pre-construction course, condition, capacity, and location of streams and other open waters. General condition 12, soil erosion and sediment controls, requires permittees to take appropriate measures to reduce or prevent movements of sediment into waters during construction. Water quality management measures may also be required by district engineers on a case-by-case basis after evaluating a pre-construction notification.
One commenter said that pre-construction notification should be required for stream impacts that exceed 100 linear feet. Another commenter stated that any stream channel modifications should require pre-construction notification. One commenter suggested requiring low ground pressure equipment, wide tires, rubberized racks, lightweight equipment, and the use of varied paths to avoid repeatedly crossing wetlands at the same location, to protect wetlands. One commenter suggested sending pre-construction notifications to tribes to avoid impacts to tribal treaty natural and cultural resources. One commenter recommended that the Corps consult with the Federal Highway Administration to streamline projects and align with their efforts.
The present pre-construction notification thresholds provide sufficient protection for streams, and division engineers can regionally condition this NWP to require pre-construction notification for proposed losses of stream beds that would exceed a specified amount. Streams with riffle and pool complexes are considered to be special aquatic sites under the 404(b)(1) Guidelines and would require pre-construction notification. General condition 11, equipment, establishes requirements for equipment working in wetlands or mudflats and we believe this general condition provides sufficient protection for those types of construction impacts. Division engineers can regionally condition this NWP to require pre-construction notification for activities that may affect tribal treaty resources, and consult with those tribes before making a decision on whether the activity is authorized by this NWP. This NWP, as well as other NWPs such as NWP 23, provides a means for streamlining the authorization of linear transportation projects and working cooperatively with the Federal Highway Administration and state departments of transportation.
The NWP is reissued without change.
NWP 15.
One commenter agreed with adding section 10 authority to this NWP, which they believed would help clarify a sometimes confusing permitting scenario. Another commenter objected to adding section 10 authority, stating that the section 9 permits issued by the
We agree that the U.S. Coast Guard's section 9 permit satisfies the permit requirements of the Rivers and Harbors Act and have removed the reference to section 10 from the NWP. Discharges of dredged or fill material associated with the construction of bridges across navigable waters of the United States require separate authorization under Section 404 of the Clean Water Act, since navigable waters of the United States are also considered waters of the United States under the Clean Water Act, and discharges of dredged or fill material into waters of the United States require section 404 permits, unless they are eligible for an exemption from permit requirements. Historically navigable waters of the United States may still be subject to jurisdiction under Rivers and Harbors Act of 1899, depending on the case-specific circumstances. We do not believe it is necessary to define what causeways and approach fills are, since they would be identified in the specific plans approved by the U.S. Coast Guard as part of their section 9 permit.
This NWP is reissued with the modification discussed above.
NWP 16.
The water quality certification issued for a specific dredging project should address any water quality concerns for natural heritage resources. We do not agree that pre-construction notification should be required for this NWP because any required sediment testing would identify contaminants. The sediment testing and potential impacts to water quality are more appropriately considered through the water quality certification process. We have modified this NWP to clarify that disposal of dredged material in an area that has no waters of the United States does not require a section 404 permit, because disposal of dredged material may occur in non-jurisdictional wetlands and waters, not just uplands.
The NWP is reissued with the modification discussed above.
NWP 17.
This NWP authorizes small hydropower projects that have minimal adverse effects on the aquatic environment. All activities authorized by this NWP require pre-construction notification, so that district engineers can review each proposed hydropower project and make a case-specific determination whether the minimal effects requirement has been met. Discretionary authority will be exercised, and another form of Department of the Army authorization would be required, if the district engineer determines that a particular hydropower project would result in more than minimal individual and cumulative adverse effects to the aquatic environment or any other public interest review factor. District engineers may also require compensatory mitigation to offset losses of aquatic resource functions.
This NWP is issued without change.
NWP 18.
We believe that the small discharges of dredged or fill material authorized by this NWP comply with the similar in nature requirement for general permits. District engineers will review pre-construction notifications and may assert discretionary authority to add activity-specific conditions to the NWP authorization to ensure that the activity results in minimal adverse environmental effects. Division engineers may regionally condition this NWP to restrict or prohibit its use in specific waters or categories of waters, including fish foraging areas, vegetated shallows, or vernal pools.
One commenter stated that the limit for this NWP should only be expressed in terms of area filled (i.e., up to
The 25 cubic yard limit for regulated excavation activities and the
This NWP is reissued without change.
NWP 19.
This NWP may be used only once for each single and complete project (see general condition 15, single and complete project). Therefore, each single and complete dredging project is subject to the 25 cubic yard limit. District engineers will also review pre-construction notifications and other requests for NWP verifications, and will exercise discretionary authority if they determine that the use of this NWP in a particular region is resulting in more than minimal cumulative adverse effects on the aquatic environment. We believe that the 25 cubic yard limit is sufficient to satisfy the minimal adverse environmental effects requirement for general permits, and that an areal limit, such as the 1,000 square feet recommended above, is not necessary. Division engineers may impose regional conditions on this NWP to restrict or prohibit its use in waters known to have contaminated sediments or in waters where there is sufficient reason to believe that there are contaminated sediments, that would cause more than minimal adverse effects to water quality if they were disturbed by these minor dredging activities. A separate Department of the Army authorization must be obtained if the project proponent plans to deposit the dredged material into waters of the United States, including jurisdictional wetlands. Absent such authorization, the dredged material must be deposited in an upland area or an approved dredged material disposal facility.
This NWP is reauthorized without change.
NWP 20.
Five commenters expressed support for the proposed changes to this NWP. One commenter objected to the proposed modifications, stating that the NWP could authorize large dredge and fill operations that would result in net adverse effects on the aquatic environment that would be more than minimal. One commenter stated that the NWP should be limited to interim response activities and that a separate permit should be required for final restoration response. Another commenter said that there should be a requirement to remove temporary structures and fill. This commenter also recommended that the NWP include criteria for temporary structures or fills, such as a requirement to restore wetlands to the maximum extent practicable, to ensure there are no lasting impacts from these activities. A commenter said that this NWP should require coordination with the appropriate state wetland or water resources program.
This NWP authorizes activities in waters of the United States to remediate spills of oil and hazardous substances, which normally results in environmental benefits. We do not agree that the NWP should be limited to interim responses. It should also authorize the final response activity that results in the removal of the oil or hazardous substances, as well as the authorization to remove any temporary structures or fills, to the extent that a Department of the Army permit is required to remove such temporary structures or fills. General condition 13, removal of temporary fills, requires temporary fills to be removed in their entirety, and the affected areas revegetated, if necessary. We do not agree that this NWP should require coordination with state wetland or water resource agencies, since those agencies are likely to have an independent authority to regulate such response activities, as well as their own procedures for reviewing and approving those activities. As a practical matter, such remediation efforts almost always involve coordination among multiple agencies.
This NWP is reissued as proposed.
NWP 21.
A large majority of commenters supported Option 1 and opposed the reissuance of NWP 21, including any modification of that NWP. Over 26,000 of those comments were form letters. Several commenters recommended adopting Option 2. Two commenters supported Option 3. Many commenters stated that NWP 21 should be reissued without change from the NWP issued in 2007.
While some commenters expressed support for Option 1, they also said that if NWP 21 is to be reissued, Option 2 should be selected and modified to remove the provision allowing district engineers to waive the 300 linear foot limit for the loss of intermittent or ephemeral stream bed. Another commenter stated that if NWP 21 is reissued, it should not authorize any losses of intermittent or perennial streams.
We believe that district engineers should have the ability to waive the 300 linear foot limit for the loss of ephemeral or intermittent stream bed if they make a case-specific determination that the proposed activity will result in minimal individual and cumulative adverse effects on the aquatic environment. For proposed activities under paragraph (b) of NWP 21 that would result in the loss of greater than 300 linear feet of intermittent or ephemeral stream bed, district engineers will coordinate the pre-construction notifications with the resource agencies, to solicit their comments (see paragraph (d) of general condition 31). Those comments will be used by the district engineer in making his or her minimal adverse effects determination. The loss of intermittent or perennial streams caused by NWP 21 activities may still result in minimal individual and cumulative adverse effects on the aquatic environment, and in such cases authorization by NWP is appropriate. Note that the 300 linear foot limit may not be waived for perennial streams. Activities authorized under paragraph (a) of NWP 21 do not require agency coordination because paragraph (a) does not authorize any expansion of surface coal mining activities in waters of the United States and the district engineer previously determined, and must again
Many commenters stated their preference for Option 2 because it would not allow valley fills for surface coal mining activities, which they believe substantially alter watersheds and associated headwater streams, and generally are alleged to cause more than minimal adverse effects on the aquatic environment. One commenter suggested adding a provision that would prohibit the use of NWP 21 for activities associated with mountain-top removal mining.
We have selected Option 2 for the reissuance of NWP 21, and have made some additional modifications to reduce hardships on permittees who previously obtained authorization under the NWP 21 issued on March 12, 2007, and invested substantial resources in reliance on that NWP authorization. These modifications are discussed in greater detail below. In addition, we have added a definition of “valley fill” to the NWP to clarify the activities to which the valley fill prohibition applies. For the purposes of this NWP, a “hollow fill” is considered a valley fill. This NWP authorizes discharges of dredged or fill material into waters of the United States when those discharges are associated with surface coal mining activities. The Corps review is focused on the individual and cumulative adverse effects to the aquatic environment, and determining appropriate mitigation that may be needed to ensure that the adverse effects on the aquatic environment are minimal, individually and cumulatively. It does not extend to the mining operation as a whole. The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201
Two commenters supported Option 3, and they said the production of energy from all sources, including surface-mined coal, is vitally important to the short-term economic recovery of the United States and the long-term energy independence and economic prosperity of our country. Another commenter said there is no need to limit NWP 21 to
We have adopted Option 2 because it provides greater assurance that NWP 21 will authorize only those discharges of dredged or fill material into waters of the United States that have minimal individual and cumulative adverse effects on the aquatic environment. Surface coal mining activities that involve discharges of dredged or fill material that require section 404 permits but do not qualify for NWP 21 may be authorized by other forms of Department of the Army authorization, such as individual permits or regional general permits. We have added the
Previous versions of NWP 21 did not have any acreage or linear foot limits, and relied solely on the pre-construction notification review process and permit conditions to reduce adverse effects on the aquatic environment to satisfy the minimal adverse environmental effects requirement for general permits. We believe that approach is no longer appropriate because of the inconsistency with other NWPs, the possibility that larger losses of waters of the United States might be authorized, and the difficulty of documenting minimal adverse effect determinations for losses of aquatic resource area and functions that exceed those allowed in other NWPs. We note that part of the basis for the earlier approach was the environmental review that occurs in connection with obtaining a SMCRA permit, and that the SMCRA regulations related to stream protection have changed since the previous NWP 21 was issued.
Many commenters said the Corps should fulfill its June 2009 determination to prohibit the use of NWP 21 to authorize surface coal mining activities in six states in Appalachia because these activities result in more than minimal adverse effects to the aquatic environment, individually and cumulatively. Some commenters said the proposed reissuance of NWP 21 is contrary to the Corps June 18, 2010, decision to suspend NWP in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia, which stated that continued use of this NWP may result in more than minimal adverse effects to aquatic resources. Many commenters stated that surface coal mining activities in Appalachia have resulted in the loss of a couple of thousand miles of streams, substantially degraded water quality, and are harmful to the health and drinking water of Appalachian citizens. They also said the Corps should follow science and stop issuing permits, including individual permits, for surface coal mining activities in these six Appalachian states because those activities cause significant degradation of waters of the United States, and this region cannot afford to lose more of its vital natural resources.
In accordance with the June 11, 2009, memorandum of agreement implementing the interagency action plan on Appalachian Surface Coal Mining, which was signed by the Department of the Army, the Department of Interior, and the U.S. Environmental Protection Agency, the Corps issued a proposal in the
As a result of our review of the comments received in response to the February 16, 2011, proposal we have determined that it would be appropriate to adopt Option 2 and substantially modify NWP 21 by imposing acreage and linear foot limits, as well as prohibiting its use to authorize discharges of dredged or fill material into waters of the United States to construct valley fills associated with surface coal mining activities, to ensure that the NWP authorizes only those activities that result in minimal individual and cumulative adverse effects on the aquatic environment. The
The proposed reissuance of NWP 21, as well as the selection of Option 2 to reissue the NWP with
Only those surface coal mining activities involving discharges into waters of the United States that received written authorization under the 2007 NWP 21 may be eligible for authorization under paragraph (a) of this NWP. Activities that were subject to the June 18, 2010, suspension of NWP 21 in the Appalachian region of the six states may be eligible for NWP 21 authorization under paragraph (b) if they do not result in the loss of greater than
One commenter objected to the proposed reissuance of NWP 21, stating that it authorizes impacts for activities that are not similar in nature, such as mining operations, impoundments, processing plants, and road crossings. The commenter said that the Corps decision documents do not recognize that impoundments can cause massive spills or contaminate well water.
We do not agree that this NWP authorizes activities that are not similar in nature. This NWP authorizes surface coal mining activities, a broad category that includes a variety of features that may be constructed by discharging dredged or fill material into waters of the United States, the activities regulated by the Corps under Section 404 of the Clean Water Act. Discharges of dredged or fill material into waters of the United States may be used to construct sediment ponds, road crossings, etc. that are necessary to conduct surface coal mining activities, or they may occur while coal is being mined (e.g., mine-throughs). Impoundments constructed in waters of the United States should be properly maintained (see general condition 14, proper maintenance). District engineers may also require non-Federal permittees to demonstrate that those impoundment structures comply with applicable dam safety criteria (see general condition 24, safety of impoundment structures).
One commenter said that if NWP 21 was reissued and could be used to authorize valley fills, the Corps would violate the requirement in the 404(b)(1) Guidelines that no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of waters of the United States. This commenter also stated that the proposed 300 linear foot limit for the loss of stream bed would not prevent significant degradation of streams, and objected to the proposed waiver of that limit for intermittent and ephemeral streams, if the district engineer determined that such a loss would result in minimal adverse effects on the aquatic environment.
The NWP 21 reissued today does not authorize discharges of dredged or fill material into waters of the United States to construct valley fills, unless under paragraph (a) the activity was previously verified under the 2007 NWP 21 and the district engineer has determined that those activities still qualify for NWP 21 authorization under the 2012 NWP general conditions, applicable regional conditions, and any activity-specific conditions such as compensatory mitigation requirements. For those previously authorized surface coal mining activities, the district engineer determined that the adverse effects on the aquatic environment are minimal, individually and cumulatively. To re-verify the NWP authorization under the 2012 NWP 21, the district engineer must determine that the activity continues to result in minimal individual and cumulative adverse effects on the aquatic environment. Surface coal mining activities that involve discharges of dredged or fill material into waters of the United States for the construction of valley fills that were not previously verified under the 2007 NWP 21 are subject to paragraph (b) of the 2012 NWP 21 and cannot be authorized by NWP 21. Discharges of dredged or fill material into waters of the United States authorized by NWP 21 require water quality certification. If water quality certification is not obtained or waived, that activity is not authorized by NWP 21. The water quality certifications issued by states are to be considered by district engineers to be conclusive regarding water quality issues, unless the Regional Administrator of the U.S. Environmental Protection Agency advises the district engineer of other water quality concerns that need to be taken into consideration. The construction of impoundments authorized by NWP 21 is generally a minor cause of changes to water quality. Most of the changes to water quality are due to the overall surface coal mining activity and the change in land use (including uplands) that occurs as a result of those mining activities. The discharges of dredged or fill material into waters of the United States authorized by NWP 21 constitute a small proportion of the overall fill placed in a watershed to dispose of the rock, soil, and other materials that are produced by the surface coal mining activity. As water percolates through the larger overall fill that has been placed in uplands and streams, the water chemistry changes. The effluent discharged from impoundments constructed to trap sediments and other materials to reduce their transport to downstream waters is regulated under Section 402 of the Clean Water Act, and requires a National Pollutant Discharge Elimination System (NPDES) permit. The NPDES permit is issued by states that have approved programs or the U.S. EPA.
One commenter said the Corps has ignored cumulative impacts from discharges of dredged or fill material previously authorized by NWP 21 in proposing Option 2 as a preferred alternative. The commenter also stated that the draft decision documents fail to provide any evidence that would support a minimal effects determination and that the Corps only considers cumulative effects during the five year period the NWP is in effect and this ignores the fact that valley fills bury streams permanently, whether authorized by past nationwide or individual permits, or in the future. The commenter also said that Option 2 ignores the cumulative amount of stream loss or acreage in a watershed from multiple permits.
We have taken into account cumulative impacts from discharges of dredged or fill material previously authorized by NWP 21, and cumulative effects of discharges of dredged or fill material previously authorized by individual permits, when developing the proposal to reissue NWP 21, including Option 2. For NWP 21 activities that were not previously authorized by the 2007 NWP 21, paragraph (b) of NWP 21 imposes a
The decision document for this NWP includes evaluations of cumulative effects under both approaches, and concludes that the reissuance of this NWP, including the imposition of the
Under the National Environmental Policy Act approach to assessing cumulative effects, the decision document discusses, in general terms, the various activities (Federal, non-Federal, and private actions) that may adversely affect the quantity and quality of aquatic resources in a watershed or other geographic region used for cumulative effects analysis, regardless of whether those activities occurred in the past or are expected to occur in the present or reasonably foreseeable future. Under the 404(b)(1) Guidelines approach for assessing cumulative effects of the issuance of a general permit such as NWP 21, the decision document evaluates the number of discharges of dredged or fill material into waters of the United States expected to occur during the five-year period the NWP would be in effect, as well as the estimated loss of waters of the United States and compensatory mitigation. District and division engineers are to supplement these
The Corps considers and addresses cumulative environmental effects of NWP 21 (and other NWPs) in two distinct ways. First, when Corps Headquarters evaluates and proposes to issue or re-issue a NWP (such as NWP 21), we evaluate cumulative effects at the national level, using available national information on aquatic resource status and trends and the general effects human activities have on aquatic resources. The cumulative effects analyses presented in the Headquarters decision documents reflect these national-scale evaluations and conclusions supporting the promulgation of the NWP from Corps Headquarters.
Second, division and district engineers monitor the use of the NWPs on a regional level, and will modify, suspend, or revoke applicable NWPs when necessary if the use of those NWPs is likely to result in more than minimal individual and cumulative adverse effects on the aquatic environment within a particular watershed, ecoregion, state, county, or other appropriate geographic area. To address regional and site-specific environmental considerations, we rely on the Corps district offices that receive pre-construction notifications required by the terms and conditions of the NWP to evaluate the relevant regional and site-specific environmental considerations. The Corps district may add conditions to the NWP authorization, including compensatory mitigation requirements, to ensure that the individual and cumulative adverse effects on the aquatic environment caused by the NWP activity are minimal, and therefore qualify for NWP authorization. If conditions cannot be added to the NWP authorization to ensure that minimal individual and cumulative adverse effects on the aquatic environment occur, the district engineer will exercise discretionary authority and notify the applicant that an individual permit is required.
One commenter said there is insufficient support for the Corps position that the required compensatory mitigation will attenuate cumulative impacts on the Nation's aquatic resources by providing aquatic resource functions and services, so the net effects will be minimal. Another commenter stated that the Corps relies heavily on mitigation, such as stream creation, restoration, and enhancement, but there is no evidence that stream creation works. The commenter also indicated that the 404(b)(1) Guidelines provide that no permit may rely on mitigation techniques unless they have been demonstrated to be effective in circumstances similar to those under consideration, and that the 2008 compensatory mitigation rule requires that the district engineer assess the likelihood for ecological success. The commenter said the Corps cannot issue an NWP without assessing mitigation effectiveness and success in the specific context in which the mitigation technique would be used. The commenter concluded that the Corps mitigation analysis fails to contain any discussion of stream functions that would be lost from potential NWP activities and whether compensatory mitigation can replace those functions.
Compensatory mitigation can be an effective means of offsetting losses of aquatic resource functions caused by activities authorized by Department of the Army permits, including NWP 21 activities, if it is thoughtfully planned, implemented, and monitored. Compensatory mitigation projects must be carefully sited, planned, and designed to be ecologically successful in providing stream or wetland functions. Site selection is a critical step in developing and implementing an ecologically successful compensatory mitigation project. With the promulgation of 33 CFR part 332 on April 10, 2008 (73 FR 19594), the Corps Regulatory Program adopted requirements and standards to improve compensatory mitigation practices for offsetting losses of aquatic resource functions. Under the 2008 rule, a watershed approach should be used for establishing compensatory mitigation requirements that will successfully provide aquatic resource functions to offset losses of those functions caused by permitted activities.
The 2008 rule identifies streams as “difficult-to-replace” resources and states that if further avoidance and minimization of stream impacts is not practicable, the required compensatory mitigation should be provided through stream rehabilitation, enhancement, or preservation since those techniques have a greater certainty of success (see 33 CFR 332.3(e)(3)). The preamble to the 2008 rule includes a detailed discussion of the scientific status of stream restoration and concludes that there has been success with stream rehabilitation, enhancement, and preservation activities (see 73 FR 19596–19598). In accordance with the 2008 rule, the Corps is not relying on stream creation as a mechanism to provide compensatory mitigation for NWP 21 activities. In cases where compensatory mitigation is required for NWP 21 activities, those compensatory mitigation requirements will be specified as activity-specific conditions of NWP 21 authorizations. The required components of a compensatory mitigation plan are specified at 33 CFR 332.4(c)(2)–(14), and the district engineer will evaluate each compensatory mitigation proposal to assess its potential for ecological success, and consider the relevant factors provided in 33 CFR 332.3. The compensatory mitigation plan must be approved by the district engineer and monitoring will be required to assess whether the compensatory mitigation project is meeting its objectives and is successfully meeting its ecological performance standards. The district engineer will review monitoring reports, and if the compensatory mitigation project is not meeting its ecological performance standards, he or she will require the responsible party to identify and implement adaptive management measures to make changes to provide a successful mitigation project. If adaptive management is not likely to result in an ecologically successful compensatory mitigation project that will be sufficient for offsetting lost aquatic resource functions that result from the permitted activity, alternative compensatory mitigation may be required. Financial assurances may also be required to help ensure the success of the required compensatory mitigation.
The 404(b)(1) Guidelines, which address habitat development and restoration as a means of minimizing adverse effects to plant and animal populations (40 CFR 230.75(d)), recommend the use of techniques that have been demonstrated to be effective. That provision is consistent with the section on difficult-to-replace resources (33 CFR 332.3(e)(3)/40 CFR 230.93(e)(3)), which states that rehabilitation, enhancement, and preservation should be used to provide the required compensatory mitigation to offset permitted impacts to such resources because there is greater certainty that such stream rehabilitation, enhancement, and preservation will be ecologically successful and offset those permitted impacts. The decision document for this NWP contains a general discussion of the functions provided by streams, as well as general
One commenter said that the Corps has failed to analyze whether surface coal mining activities authorized by NWP 21 will cause significant degradation to “special aquatic sites,” such as riffle and pool complexes. This commenter asserted that valley fills and mining through streams frequently buries riffle and pool complexes, and these special aquatic sites are protected by stringent restrictions on discharges of fill material into such sites. The commenter also stated that practicable alternatives that do not involve burying riffles and pools are presumed to be available unless clearly demonstrated otherwise and such alternatives are presumed to have less adverse impacts on the aquatic ecosystem. This commenter said the Corps should deny a permit if it lacks sufficient information to determine whether the proposed discharge complies with the Guidelines.
The activities authorized by this NWP comply with the 404(b)(1) Guidelines, even though it authorizes discharges of dredged or fill material into waters of the United States that may be classified as special aquatic sites such as riffle and pool complexes. Each activity authorized by an NWP does not require a project-specific 404(b)(1) Guidelines analysis—that analysis is done before the NWP or any other type of general permit is issued (see 40 CFR 230.7). The 404(b)(1) Guidelines do not prohibit the use of general permits to authorize discharges of dredged or fill material into special aquatic sites. A determination of significant degradation does not focus simply on the loss of a special aquatic site caused by the discharge of dredged or fill material. It requires a broader analysis. The process for determining whether significant degradation occurs consists of applying the provisions of the 404(b)(1) Guidelines holistically, and assessing the effects of the proposed discharge of pollutants on human health and welfare; aquatic life and wildlife; aquatic ecosystem diversity, productivity, and stability; and recreational, aesthetic, and economic values. For activities authorized by general permits, the evaluation of alternatives in accordance with 40 CFR 230.10(a) does not directly apply (see 40 CFR 230.7(b)(1)). Paragraph (a) of general condition 23, mitigation, requires project proponents to design and construct NWP activities to avoid and minimize adverse effects to the aquatic environment to the maximum extent practicable on the project site.
Several commenters stated that surface coal mines are already heavily regulated under SMCRA, which includes a variety of requirements to protect waters of the United States, so additional requirements are not needed to ensure that adverse effects to the aquatic environment are minimal. Two of these commenters stated NWP 21 should be reissued without change because of SMCRA requirements. One commenter said the authority to authorize stream and wetland impacts caused by mining activities should rest solely with the SMCRA regulatory authority.
There is often more than one Federal law that regulates surface coal mining activities, especially in cases where those activities involve discharges of dredged or fill material into waters of the United States. While most aspects of surface coal mining are regulated under SMCRA, surface coal mining and reclamation activities involving discharges of dredged or fill material into waters of the United States also require permits issued under Section 404 of the Clean Water Act. The statutory and regulatory standards established under SMCRA are different than those established under Section 404 of the Clean Water Act, including section 404(e) which authorizes the Corps to issue general permits. One of the objectives of SMCRA is to ensure that surface coal mining activities are conducted in an environmentally responsible manner and that the land disturbed by mining is adequately reclaimed. One of the objectives of the Clean Water Act is to “restore and maintain the physical, chemical, and biological integrity of the Nation's waters.” Under the regulations implementing SMCRA, surface coal mining and reclamation activities must be conducted in a manner that will “minimize the disturbance of the hydrologic balance within the permit and adjacent areas” and that will “prevent material damage to the hydrologic balance outside the permit area.” As part of the SMCRA permitting process, potential changes to the quality and quantity of surface and groundwater are evaluated to ensure that material damage to the hydrologic balance outside the permit area will not occur. Other factors considered under SMCRA include: pre- and post-mining land uses, backfilling and grading activities, disposal of excess spoil, and the protection or replacement of water supplies.
Under Section 404 of the Clean Water Act, the 404(b)(1) Guidelines provide the substantive criteria for evaluating the environmental effects of proposed discharges of dredged or fill material into waters of the United States. The 404(b)(1) Guidelines are not focused on considering effects to water quality and quantity. The 404(b)(1) Guidelines also require examination of the effects that discharges of dredged or fill material will have on physical, chemical, and biological attributes of waters of the United States. The 404(b)(1) Guidelines at 40 CFR part 230 require the Corps to evaluate the effects of discharges of dredged or fill material, including general permits that authorize such discharges, on the applicable criteria listed in subparts C through F. Examples of criteria in those subparts are: Substrate; suspended particulates/turbidity; water; current patterns and water circulation; normal water fluctuations; threatened and endangered species; fish, crustaceans, mollusks, and other aquatic organisms in the food web; other wildlife; wetlands; riffle and pool complexes; municipal and private water supplies; recreational and commercial fisheries; water-related recreation; and aesthetics. The threshold for issuance of general permits such as NWP 21 is a determination that the authorized activities would result in no more than minimal individual or cumulative adverse environmental effects.
There is no corresponding threshold under SMCRA and its implementing regulations, which do not require that permit applications be evaluated in terms of the 404(b)(1) Guidelines. Instead, section 507(b)(11) of SMCRA requires that the permit applicant prepare a determination of the probable hydrologic consequences of the proposed operation with respect to the hydrologic regime and the quantity and quality of water in surface and ground water systems. Section 510(b)(3) of SMCRA requires that the regulatory authority use this determination and other available information to prepare an assessment of the probable
Section 404 of the Clean Water Act applies to all discharges of dredged or fill material into waters of the United States, unless those activities qualify for an exemption under Section 404(f) of the Clean Water Act. Section 404(f) does not specifically exempt surface coal mining activities. For those activities that do not qualify for an exemption from the permit requirements of the CWA, the Corps must evaluate applications for Department of the Army permits, including general permits, and either apply the 404(b)(1) Guidelines (if an individual permit is required) or determine whether the proposed activity qualifies for NWP authorization. This NWP provides an efficient means of authorizing discharges of dredged or fill material into waters of the United States that result in minimal individual and cumulative adverse effects on the aquatic environment. Corps districts work with SMCRA regulatory authorities to reduce duplication, but each agency must still ensure that proposed activities comply with their respective statutes and implementing regulations.
Two commenters stated the primary effect of adopting any of the three options proposed for NWP 21 in the February 16, 2011,
We acknowledge that reissuing NWP 21 with a
Continuing to authorize surface coal mining activities that were verified under the 2007 NWP 21 will reduce burdens on the regulated public while protecting the aquatic environment in accordance with the requirements of Section 404(e) of the Clean Water Act. These project proponents who received verifications under the 2007 NWP 21 expended substantial resources to obtain their authorizations. If they cannot comply with the new limits imposed on NWP 21 it would impose a significant hardship to require those operators to cease surface coal mining activities in waters of the United States while they apply for individual permits and wait for a decision. We estimate that there are approximately 70 surface coal mining activities across the country that were authorized by the 2007 NWP 21 that may qualify for authorization under paragraph (a) of NWP 21 when it goes into effect on March 19, 2012. To obtain authorization under paragraph (a) of the 2012 NWP 21, these project proponents do not need to submit a pre-construction notification since they already did so under the 2007 NWP 21 and that notification will be on file at the district office. Instead, those project proponents only need submit a letter to the district engineer requesting verification under the 2012 NWP 21. That letter should be sent to the district engineer by February 1, 2013, although that deadline may be extended in writing by the district engineer. This date allows the district engineer approximately 45 days for review of the letter before the expiration of the one-year period that is allowed for completion of activities authorized under the 2007 NWP 21. Any changes to the previously authorized surface coal mining activity must also be described in that letter, so that the district engineer can determine whether the activity still results in minimal individual and cumulative adverse effects on the aquatic environment and is eligible for authorization under paragraph (a) of NWP 21. The district engineer will review such requests and notify the permittee whether the activity is authorized by the 2012 NWP 21. There will be no agency coordination of these previously authorized NWP 21 activities. Any currently applicable regional conditions and any activity-specific conditions, such as compensatory mitigation requirements, would apply to the NWP authorization. The district engineer may also revise such conditions and requirements if the existing ones are determined not to be adequate to ensure minimal adverse effects. If the permittee does not receive a written verification from the district engineer prior to the expiration of the one-year period provided in 33 CFR 330.6(b), the permittee must cease all activities until such verification is received because that one-year period cannot be extended. The surface coal mine activity must be authorized under the 2012 NWP 21 or another form of Department of the Army authorization to discharge dredged or fill material into waters of the United States after the one-year period ends on March 18, 2013. The district engineer may also extend the February 1, 2013, deadline by notifying the permittee in writing, if he or she needs less than 45 days to make a decision on the 2012 NWP 21 authorization. The Corps encourages operators who received a 2007 NWP 21 verification and plan to operate past March 18, 2013, to submit their letter as soon as possible to allow for uninterrupted NWP 21 permit coverage. Expansions of previously verified NWP 21 activities that result in greater losses of waters of the United States are not authorized under paragraph (a) will require a different form of Department of the Army authorization if they do not qualify for authorization under paragraph (b) of NWP 21. If the surface coal mining activity involving discharges of dredged or fill material into waters of the United States authorized under paragraph (a) cannot be completed by the time the 2012 NWP 21 expires, then the project proponent
The limits added to paragraph (b) of NWP 21 will ensure that this NWP authorizes only those activities that have minimal adverse effects on the aquatic environment, individually and cumulatively. These limits will also result in more new projects needing to obtain individual permits. The Corps has the resources necessary to process those individual permit applications in a timely manner. It is important for coal mine operators to consider the advantages of obtaining individual permits for surface coal mining activities. In accordance with Section 404(e) of the Clean Water Act, general permits, including NWPs, can be issued for a period of no more than five years. Individual permits can be issued for longer periods of time—the expiration date for an individual permit is at the discretion of the district engineer, who will take into account the characteristics of the proposed activity and the amount of time expected to be needed to complete the regulated activities. Therefore, it would often be advantageous for a surface coal mine operator to obtain an individual permit that would authorize discharges of dredged or fill material into waters of the United States for the expected operational timeframe for that particular coal mine. Under NWP 21, no authorization could be issued for a time period of more than five years. If the NWP 21 activity is not completed by the expiration date of the NWP authorization then the project proponent would have to notify the district engineer and obtain another NWP verification.
Nationwide permit NWP 21 pre-construction notifications require substantial resources to evaluate proposed activities and determine whether they result in minimal individual and cumulative adverse effects on the aquatic environment, and whether compensatory mitigation is needed to comply with the minimal adverse environmental effects requirement for general permits. Under the 2007 NWP 21, the project proponent could not proceed until he or she obtained an NWP 21 verification. The substantial amount of review required for both NWP 21 pre-construction notifications and individual permit applications both involve considerable amounts of resources from the Corps, so we do not expect a significant increase in workload or processing times to occur through the implementation of Option 2 and the modifications we made to that option for the final NWP.
In response to the NWP 21 proposal, one commenter said the Corps was attempting to decide on behalf of the United States government how much coal mining should take place, or what scale of mining operations is appropriate. The commenter suggested that the Corps only concern should be the scale of the regulated activity and not the scale of the mining operation. The commenter stated that the Corps evaluation of surface coal mining activities should be focused on impacts to aquatic resources. One commenter said the proposed changes to NWP 21 would have a significant effect on energy supply, since the ability to obtain permits in a timely manner is essential to the production of coal, which provides over 30 percent of America's electric power.
The three options provided in the February 16, 2011,
One commenter said that NWP 21 should not apply to ephemeral waters because they are not jurisdictional waters of the United States. Several commenters stated that NWP 21 encourages operators to design their projects within the scope of the NWP rather than seek an individual permit, thereby reducing impacts. These commenters said that there may be a net gain of wetland acreages because of reclamation practices at surface coal mines.
Ephemeral streams are waters of the United States if they meet the definition of “waters of the United States” at 33 CFR part 328 and applicable guidance on Clean Water Act jurisdiction, such as the guidance issued in 2008 entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
One commenter disagreed with the Corps assertion that valley fills substantially alter watersheds and result in adverse impacts on the aquatic environment. This commenter also said that Options 2 and 3 do not allow the Corps the flexibility to increase the amount of stream bed loss above the 300 linear foot limit. The commenter also objected to the proposed interagency coordination for activities resulting in a loss of greater than 1,000 linear feet of intermittent and ephemeral stream beds, and said the Corps has not suggested any reasons for this restrictive provision.
Surface coal mining activities involving the construction of valley fills result in substantial changes to the watersheds of the headwater streams that are primarily impacted by these activities. Those watersheds are changed by the large amounts of land clearing and earthmoving that occur during the mining activity. The construction of the valley fill itself causes changes to the geomorphology of the watershed, which affects water quality and watershed hydrologic
One commenter said all Corps divisions and districts should add regional modification alternatives to address differences in aquatic resources functions. This commenter also stated that the proposal provides that the cumulative impact analysis for an NWP 21 is not limited to assessing impacts of the use of the NWP 21 on a national basis and is not limited to activities authorized by NWPs or other Department of Army permits. The commenter acknowledged that the Corps considers activities not regulated by the Corps, including private actions and those resulting in changes in the use of uplands next to or near wetlands, streams, or other aquatic resources during the cumulative effects analysis.
It is at the division engineer's discretion whether to add regional conditions to an NWP to ensure that the NWP authorizes only those activities that have minimal individual and cumulative adverse effects on the aquatic environment. In addition, district engineers may modify NWP authorizations by adding activity-specific conditions to minimize adverse environmental effects. The decision documents comply with the two relevant approaches for conducting cumulative effects analyses: (1) The approach provided in the Council on Environmental Quality's definition of “cumulative impact” provided in their National Environmental Policy Act regulations at 40 CFR 1508.7, and (2) the approach indicated in the 404(b)(1) Guidelines at 40 CFR 230.7(b).
One commenter said the proposed changes to NWP 21 will actually increase impacts because mining operators will need to increase the size of their mining sites to make the individual permit process cost effective. The commenter said operators will no longer be able to afford to mine the smaller reserve areas, so larger mine areas would need to be permitted.
The changes to NWP 21 are appropriate to help ensure that this NWP complies with the statutory requirements for general permits, in that it may only authorize activities that have minimal individual and cumulative adverse environmental effects. Surface coal mining activities involving discharges of dredged or fill material into waters of the United States that do not qualify for NWP authorization will be evaluated as individual permits if applicable regional general permits are not available. Activities authorized by individual permits must comply with the 404(b)(1) Guidelines and undergo an alternatives analysis. A public interest review will also be conducted during the individual permit review process. Mining companies will have to make their own decisions on whether it is economically viable to mine smaller reserve areas, and apply for Department of the Army authorization if proposed activities involve discharges of dredged or fill material into waters of the United States.
One commenter said that if Option 2 is adopted, it should include a definition of valley fill. A commenter stated that the utility of NWP 21 would be substantially reduced because losses of waters of the United States caused by the construction of attendant features such as ponds and roads would be counted towards the
We have added a definition of the term “valley fill” to the text of this NWP. While fewer surface coal mining activities involving discharges of dredged or fill material into waters of the United States would be authorized by NWP 21 when compared to previous issued versions of this NWP, the new terms and conditions of this NWP, including the
One commenter asked how many surface coal mining activities may be authorized each year with NWP 21 if Option 2 is selected. One commenter said the proposed changes to NWP 21 would be costly to small businesses and disagreed with the Corps statement that the revised NWPs will not impose substantially higher costs on small entities than those of existing permits. Another commenter indicated that the proposed changes to NWP 21 would result in more environmental impact statements being required because of the amount of wetlands in their area.
In section 6.2.2 of the decision document for this NWP, we provide estimates of the number of times we predict NWP 21 will be used each year. Under paragraph (b), we estimate that NWP 21 will be used approximately 11 times per year, although more activities may qualify for NWP 21 authorization if project proponents do additional avoidance and minimization to reduce losses of waters of the United States to satisfy the acreage and linear foot limits. As discussed above, we estimate that, across the country, approximately 70 NWP 21 activities verified under the 2007 NWP 21 might be re-verified under paragraph (a) of the 2012 NWP 21. The estimate provided in the decision document was based on an analysis of past use of NWP 21, and it is a rough estimate because NWP 21 did not have an acreage or linear foot limit and we cannot predict how many activities can be modified to comply with the new limits. Therefore, it is difficult to accurately predict how often project proponents will qualify for authorization under the NWP 21 issued today. Since fewer surface coal mining activities are likely to qualify for NWP 21 authorization, and more will require individual permits, we acknowledge
Many commenters said that that it would be more appropriate to establish different NWP terms and conditions for different areas of the United States, because of vast differences in geological, topographical, climatologically and ecological regimes in areas where coal resources are located across the country. One of these commenters recommended focusing on the use of regional conditions to address regional differences in coal mining techniques and issues, instead of modifying NWP 21.
An NWP is developed to authorize specific categories of activities across the country that have minimal individual and cumulative adverse effects on the aquatic environment and is issued by Corps Headquarters. There must be a national decision document for each NWP, and to issue that NWP, there must be a finding that the NWP will authorize only those activities that have minimal individual and cumulative adverse effects on the aquatic environment. Division and districts prepare supplemental decision documents to explain whether regional conditions are needed to satisfy the minimal adverse effects requirement. Regional conditions are added to an NWP at a division engineer's discretion and Corps Headquarters cannot mandate the adoption of regional conditions.
The national decision documents acknowledge that regional conditions approved by division engineers and activity-specific conditions added to NWP authorizations are procedures to be relied upon to satisfy the minimal adverse environmental effects requirement. In those areas of the country where surface coal mining activities result in minimal individual and cumulative adverse effects on the aquatic environment but exceed the limits of NWP 21, division and district engineers may issue regional general permits that have different terms and conditions than NWP 21, including larger acreage or linear foot limits. Those regional general permits are a more appropriate mechanism for considering local geologic, topographic, climatologic, and ecological characteristics.
Some commenters stated that Executive Order 13563, “Improving Regulation and Regulatory Review” asks federal agencies to tailor regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities. These commenters said that adding additional redundant review by Federal agencies violates this Executive Order and threatens energy supplies. One of these commenters said the proposal to reissue NWP 21 with modifications is contrary to the objectives of Executive Order 13563 because it fails to use the best, most innovative and least burdensome tools for achieving regulatory ends and that the proposed limits in NWP 21 are redundant, inconsistent, or overlapping with other regulations.
As explicitly recognized in Executive Order 13563 itself, an Executive Order does not supersede Federal laws, such as the requirements in the Clean Water Act, the Rivers and Harbors Act of 1899, the Endangered Species Act, and the National Historic Preservation Act. Section 404(e) of the Clean Water Act states that general permits (including NWPs) authorize categories of activities that are similar in nature and result only in minimal individual and cumulative adverse environmental effects. The Corps complied with Section 2 of Executive Order 13563 by seeking public comment on the proposal to reissue NWP 21 with modifications, for a 60-day comment period. The Corps has determined that the changes to NWP 21 are necessary to comply with the requirements of Section 404(e) of the Clean Water Act. We have modified Option 2 by authorizing activities verified under the 2007 NWP 21 (see paragraph (a) of NWP 21), to provide an equitable transition to the new limits in NWP 21 and reduce burdens on the regulated public. The authority for the district engineer to waive the linear foot limit for losses of intermittent and ephemeral streams if the impacts are not more than minimal is also intended to minimize regulatory burden. As discussed earlier in this section, the terms and conditions of NWP 21 are not duplicative with the requirements of other Federal agencies. While surface coal mining activities are more broadly regulated under the Surface Mining Control and Reclamation Act by the Office of Surface Mining Reclamation and Enforcement or approved states, the Corps regulates discharges of dredged or fill material into waters of the United States, and focuses its evaluation on the effects those discharges have on the aquatic environment or its other public interest review factors (see 33 CFR 330.1(d) and (e)(2)). Those activities that do not qualify for NWP authorization may be authorized by other forms of Department of the Army authorization, such as individual permits or regional general permits. The standards the Corps uses to ensure compliance with the Clean Water Act differ from the standards used by the Office of Surface Mining Reclamation and Enforcement or approved states to ensure compliance with the Surface Mining Control and Reclamation Act, and those standards are not redundant.
A commenter disagreed with the Corps statement that the proposed NWPs are not a significant energy action as defined by Executive Order 13211 because of the proposed changes to NWP 21. The commenter said the Corps must prepare a Statement of Energy Effects as required by the Executive Order, including a description of the adverse impacts expected to the production of coal, the nation's primary electrical generation fuel supply. One commenter said that the time frames for evaluating NWP 21 pre-construction notifications should be similar to those
The changes to NWP 21 are appropriate and help to ensure that the NWP authorizes only those discharges of dredged or fill materials into waters of the United States that have minimal adverse effects on the aquatic environment, individually and cumulatively. Surface coal mining activities that involve discharges of dredged or fill material into waters of the United States that do not qualify for NWP authorization may be authorized by individual permits or, if available, applicable regional general permits, which would still support the production of coal to supply the nation's energy needs. Given the adverse environmental effects associated with surface coal mining activities involving discharges of dredged or fill material into waters of the United States, which are discussed in the decision document for this NWP, we believe it is necessary to retain the existing requirement that the project proponent may not proceed with the NWP 21 activity until after he or she has obtained a written NWP 21 verification. Project proponents are already accustomed to complying with this requirement and plan accordingly.
One commenter suggested establishing a grandfathering period for surface coal mining activities authorized by the NWP 21 issued in 2007, to allow permittees to complete their currently approved mitigation plans without an added burden of updating permits. Another commenter asked how project proponents are expected to transition from the current 2007 NWP 21 to one of the selected options for reissuing NWP 21, if NWP 21 is reissued under either Option 2 or 3.
As discussed above, we have revised NWP 21 to continue the NWP authorization for surface coal mining activities that were verified under the 2007 NWP 21, to provide project proponents until March 18, 2017, to complete those activities under NWP 21. The acreage limits, linear foot limits, and prohibition against discharges of dredged or fill material into waters of the United States to construct valley fills apply to those surface coal mining activities that were not previously authorized by the 2007 NWP 21. We believe this approach for transitioning to the new NWP 21 limits provides both protection to the aquatic environment and is equitable to those members of the regulated public who made substantial investments in reliance on a previously verified NWP 21 authorization.
One commenter said that a pre-construction notification should be required for all NWP 21 activities, so plans and permit conditions could be reviewed to ensure that contaminated water being generated during these activities is not later reaching open water and impacting state-owned lands. One commenter expressed concern that historic resources impacts are not considered under SMCRA in cases where the program has been delegated to states.
To be authorized by this NWP, the project proponent must submit a pre-construction notification, so that the district engineer can evaluate the proposed activity and ensure that it qualifies for NWP authorization. Activities authorized by this NWP must comply with general condition 20, historic properties. If the proposed activity has the potential to cause effects to historic properties, consultation under Section 106 of the National Historic Preservation Act will be conducted before the district engineer determines whether the activity is authorized by NWP.
This NWP is reissued with the modifications discussed above.
NWP 22.
NWP 23.
This NWP applies only to those activities “undertaken, assisted, authorized, regulated, funded or financed, in whole or in part, by another Federal agency or department.” In certain instances, another agency, such as a state department of transportation, may legally assume the responsibility for categorical exclusion determinations for a Federal entity. To ensure compliance with the requirements for general permits, it is necessary for the Office of the Chief of Engineers to review and approve agency categorical exclusions for use with this NWP. In cases where the Federal agency is responsible for compliance with the National Historic Preservation Act, the Endangered Species Act, or other Federal laws, the Corps can accept their compliance, as long as it adequately covers the activity authorized by the NWP. The same principle applies for Tribal treaty natural or cultural resources: If the agency issuing the categorical exclusion that qualifies for NWP 23 authorization has sufficiently addressed the Tribal treaty resources, then the Corps district can accept that as a basis for compliance with general condition 17, tribal rights.
One commenter stated that this NWP authorizes activities that are not similar in nature, and its use does not result in minimal adverse effects on the aquatic environment. One commenter said that the approved categorical exclusions need to be reassessed to ensure that they still meet the minimal adverse environmental effects requirement for general permit activities. One commenter said that pre-construction notification should be required for all NWP 23 activities to ensure adequate interagency coordination. Another commenter said that reporting to the Corps should be required for any activity that affects wetlands, encroaches on a regulatory floodway, affects the water level of a 100-year flood event, or affects waters designated as critical resource waters.
This NWP, along with the Regulatory Guidance Letter listing the approved categorical exclusions, authorizes activities that are similar in nature. The Corps believes that their eligibility for NEPA compliance using a categorical exclusion is an appropriate basis of “similarity” for their authorization under this NWP. Based on the NEPA requirements for use of categorical exclusions, the Corps has determined that these activities will result in minimal individual and cumulative adverse effects on the aquatic environment, and division engineers have the authority to regionally condition this NWP to restrict or prohibit its use if they determine that these activities are resulting in more than minimal adverse environmental effects. We do not agree that the approved categorical exclusions need to be re-evaluated because of the length of time that has passed since they were originally approved. Agencies have an on-going responsibility to review their categorical exclusions and ensure that
The proposed NWP is reissued with no changes.
NWP 24.
NWP 25.
Specific requirements for the curing of concrete are more appropriately addressed as regional conditions or activity-specific conditions added to an NWP 25 authorization. Project proponents are responsible for obtaining any other federal, state, or local permits that may be required for a particular activity.
The NWP is reissued without change.
NWP 27.
Many commenters supported the addition of removal of small dams to the list of examples of activities authorized by this NWP. One commenter said that if this NWP is modified to authorize the removal of small dams, the NWP should also authorize discharges of dredged or fill material to re-establish appropriate stream channel configurations, with a
After further consideration, we have determined that since the NWP 27 issued in 2007 authorized the installation, removal, and maintenance of small water control structures (which clearly includes small dams), it is not necessary to modify this NWP by adding the removal of small dams to the list of examples of activities authorized by NWP 27, so we have not made this proposed change. We agree that the NWP should also authorize the restoration of the stream channel that were affected by the construction of a small water control structure, if that water control structure is to be removed. We do not agree that such activities should be limited to
Several commenters suggested that NWP 27 activities be subject to strict technical guidelines and enforceable success criteria commensurate with the scope of the activity being undertaken. A number of commenters expressed concern that some of the activities authorized by NWP 27 may result in a loss of waters rather than a net gain. One commenter said that aquatic resource restoration, establishment, and enhancement activities should have management plans that include goals and objectives, baseline conditions, effective monitoring requirements, and adaptive management plans. This commenter stated that without this level of documentation, the effectiveness of any restoration, establishment, or enhancement activity cannot be effectively evaluated for success. One commenter recommended adding a requirement for performance bonds to ensure that these activities are monitored and are achieving their goals and objectives.
For those NWP 27 activities that require pre-construction notification, the prospective permittee is required to submit a complete pre-construction notification, with the information listed in paragraph (b) of general condition 31. Activities conducted in accordance with agreements with other Federal or state agencies should be adequately documented to determine whether there will be net increases in aquatic resource functions and services. When Corps districts review the reports required for activities conducted under agency agreements, they will assess whether those activities will satisfy the terms and conditions of this NWP. If a particular activity does not, then the district will notify the project proponent within 30 days of when the report was submitted to the district engineer. This NWP requires authorized activities to result in net increases in aquatic resource functions and services, which will generally add acreage to the nation's aquatic habitat base. Although there may be some NWP 27 activities that result in a decrease in aquatic resource area to increase the functional capacity of those aquatic habitats, such changes are acceptable because it is the ecosystem functions, and the benefits people derive from those functions, that are important to society. To provide better information to assess whether there will be a net increase in aquatic resource functions and services, we have added a provision to the reporting requirement that requires the prospective permittee to provide information on the baseline ecological conditions at the project site, such as a delineation of wetlands, streams, and/or other aquatic habitats. Unless the activities authorized by this NWP are to be used as compensatory mitigation for Department of the Army permits (e.g., mitigation banks or in-lieu fee projects), the project proponent is not required to submit mitigation plans that comply with 33 CFR 332.4. The aquatic resource
One commenter requested that this NWP authorize the rehabilitation or enhancement of tidal streams, stating that such activities would result in net increases in the functions and services provided by existing tidal aquatic resources and would not be contrary to the provision that prohibits the relocation of tidal waters or the conversion of tidal waters to other aquatic uses. One commenter pointed out that NWP 27 covers a wide range of habitat restoration and enhancement activities and there should be greater flexibility to allow resource managers to plan for sea level rise. This commenter recommended adding the beneficial use of dredged material as a thin layer application to provide sediment to sediment starved marshes, which may provide substrate to maintain those marshes as local sea levels rise. One commenter suggested modifying this NWP by clarifying that it authorizes activities that involve removing or modifying existing drainage ditches and structures, to establish or re-establish wetland or stream hydrology. Another commenter suggested adding the re-establishment of submerged aquatic vegetation or emergent tidal wetlands in areas where those plant communities previously existed. One commenter supported the inclusion of mechanized land clearing to remove non-native invasive species in this NWP.
We agree that the rehabilitation or enhancement of tidal streams should be authorized by this NWP and have modified the first paragraph to include this category of activities. The enhancement of tidal wetlands may be accomplished by minor additions of sediment to facilitate changes in tidal marsh elevation that may successfully track sea level rise. We agree with providing more clarity concerning the types of ditch manipulations that can be used for restoring wetland hydrology and have removed the phrase “and drainage ditches” after “the backfilling of artificial channels” and replaced it with “such as drainage tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology” after “the removal of existing drainage structures.” We also agree that the re-establishment of submerged aquatic vegetation or emergent tidal wetlands should be authorized by this NWP, as long as those shallow water habitat and wetland types previously existed in the project area. Such re-establishment activities would not constitute a conversion of tidal waters to other aquatic uses; instead it would be a form of rehabilitation of those habitat types. We have retained the provision authorizing mechanized land clearing to remove non-native, invasive plant species.
One commenter requested that the terms “type” and “natural wetland” be defined in the paragraph that describes the activities that are not authorized by this NWP. Another commenter supported the provision that prohibits the conversion of natural wetlands to another aquatic use and recommended that this prohibition also be applied to the conversion of one type of aquatic habitat to another. One commenter said that the NWP should clearly state that wetlands with documented hydrologic alterations are not “natural” wetlands and that hydrologic restoration of these wetlands is not to be considered a conversion of a natural wetland to another “type” but instead it should be considered as wetland rehabilitation. One commenter stated that a provision should be added to this NWP to clarify that compensatory mitigation is not required for activities authorized by this NWP since they must result in net increases in aquatic resource functions and services.
As indicated by the parenthetical in the first sentence of the referenced paragraph, the term “type” as used for the purposes of this NWP refers to the general category of aquatic resource, such as wetland or stream. We do not believe it would be appropriate to define the term “natural wetland” except to contrast it with constructed wetlands, such as those that are often used to treat wastewater. District engineer have the discretion to determine what constitutes a “natural wetland” for the purposes of this NWP. We have added a sentence to this paragraph to clarify that changes in wetland plant communities that are caused by restoring wetland hydrology are to be considered wetland rehabilitation activities that are authorized by this NWP. Such wetland rehabilitation activities are not to be considered conversions to another aquatic habitat type. We concur that compensatory mitigation should not be required for NWP 27 activities and have added a sentence to the text of the NWP to clearly state this stipulation.
One commenter said that the NWP should prohibit the relocation of naturally occurring non-tidal aquatic resources. One commenter suggested changing the conversion provision to state that no wetlands may be converted to open water impoundments rather than limiting the prohibition to tidal wetlands. Another commenter stated that while they understand the need for language to clarify that conversion from “streams to wetlands” is not desirable, there are some areas that have been drained or ditched to create water flow away from agricultural land, where there was previously a wetland. This commenter asked whether reestablishing wetlands on the site could be authorized by this NWP. The commenter said that the NWP is too restrictive and has the potential to prohibit activities that may result in aquatic resources that are more appropriately integrated into the landscape.
The relocation of non-tidal waters and wetlands on a project site, including relocation activities that convert open water impoundments to non-tidal wetlands and vice versa, can result in net increases in aquatic resource functions and services when viewed in a watershed context. Therefore, we do not agree that it is appropriate to exclude such activity from coverage under this NWP if it meets all other conditions, including a net increase in resource functions and services. Ditches that were constructed in wetlands to drain those wetlands are not considered streams for the purposes of this provision of the NWP. As discussed earlier, this NWP authorizes the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology.
One commenter asked if the removal of bulkheads, derelict structures, and pilings, can be authorized by this NWP while another suggested that the NWP allow for the temporary use of spat (e.g., larval oysters) collecting devices for the purpose of shellfish restoration.
The removal of structures in navigable waters of the United States is authorized by this NWP if it is a part of an aquatic habitat restoration or enhancement activity. The temporary use of spat devices for oyster habitat restoration is more appropriately authorized by NWP 4.
One commenter said that the provisions concerning shellfish seeding are not clear and asked if the intent of the NWP is to authorize shellfish seeding activities to enhance threatened shellfish populations. This commenter also said that shellfish enhancement activities should be limited to native species. One commenter recommended authorizing shellfish restoration activities without requiring pre-
This NWP authorizes shellfish seeding activities, which may help increase shellfish populations in specific waters. Division engineers may regionally condition this NWP to limit shellfish seeding activities to native species. Further, in response to a pre-construction notification or report, a district engineer may exercise discretionary authority and condition a specific NWP authorization to limit it to the seeding of native shellfish species. We do not agree that there should be no pre-construction notification requirement if there is oversight by another government entity with the responsibility for managing shellfish resources. Since these activities occur in navigable waters, the Corps needs to review them on a case-by-case basis to ensure that they result in minimal individual and cumulative adverse effects on the aquatic environment and navigation and provide net increases in aquatic resource functions and services. Shellfish restoration activities should be authorized by this NWP because shellfish provide important ecosystem services in aquatic ecosystems, including the improvement of water quality. In most cases, the changes to benthic habitat are minor when compared to the ecosystem services provided by the shellfish. We also do not agree that there should be a one-acre limit for the placement of shell to construct oyster habitat because larger oyster habitat construction activities can still result in a net increase in aquatic resource functions and services.
One commenter said that stream restoration projects should be limited to 500 linear feet. One commenter stated that the construction of small nesting islands and the alteration of rare or imperiled wetlands should be not be authorized by this NWP. This commenter also suggested acreage limits for categories of activities authorized by this NWP, such as limiting excavation of wetlands to provide shallow water habitat for wildlife to
Since this NWP authorizes only those aquatic habitat restoration, establishment, and enhancement activities that result in net increases in aquatic resource functions and services, we do not agree that the recommended limits should be added to this NWP. Division engineers can regionally condition this NWP to restrict or prohibit its use over specific geographic areas or categories of waters. In response to a pre-construction notification, district engineers can add conditions to the NWP authorization to ensure that the NWP authorizes only those activities that result in minimal adverse effects on the aquatic environment.
Two commenters supported the addition of the United States Forest Service as a federal agency that can develop agreements for the restoration, enhancement, or establishment of streams and wetlands. One commenter recommended removing the reversion provision of NWP 27. Another commenter said that the reversion provision should be eliminated or significantly modified because it is inconsistent with other NWPs. Two commenters stated that the reversion of wetlands should not be authorized if the wetlands were being used for compensatory mitigation. One commenter asked how many acres of wetlands could be reverted under this NWP. One commenter asked whether a “USDA Technical Service Provider” includes county soil and water conservation districts.
The reversion provision is necessary for those aquatic resource restoration, enhancement, or establishment activities that are done in accordance with binding agreements, voluntary actions, or permits, where those agreements, actions, or permits allow the project proponent to revert the affected lands to its prior condition. If the reversion provision is removed, it would create a disincentive to do certain aquatic restoration, enhancement, or establishment activities that could provide some aquatic resource functions and services for a substantial period of time and benefit the watershed. Nationwide permit 27 differs from the other NWPs because of the types of activities it authorizes. As stated in the Note at the end of NWP 27, reversion of an area used as a compensatory mitigation project is not authorized by this NWP. We do not track the acreage of wetland or stream restoration and enhancement activities, or of wetland establishment activities, that were authorized by NWP 27 and might be eligible for reversion. There is no limit on the amount of wetlands that can be reverted under a single authorization, provided all conditions of the NWP are met. County soil and water conservation districts can register with the U.S. Department of Agriculture to be a technical service provider.
One commenter said that pre-construction notifications should include photographs, a description of pre-project site conditions, and a discussion of general aquatic resource functions and services anticipated to be provided by the activity. Another commenter stated that pre-construction notification should be required for all activities.
Paragraph (b) of general condition 31, pre-construction notification, requires prospective permittees to submit documentation that describes the proposed activity, including the anticipated loss of waters of the United States and, if appropriate, sketches that help clarify the project. The pre-construction notification also must include a delineation of wetlands, other special aquatic sites, and other aquatic habitats. We do not agree that pre-construction notification should be required for all activities. The reporting requirements for those activities that do not require pre-construction notification provide sufficient opportunity for district engineers to notify a project proponent if the proposed work does not comply with the terms and conditions of the NWP. We have modified the “Reporting” provision of this NWP to require the permittee to submit information on the baseline ecological conditions at the project site, such as a delineation of wetlands, streams, and/or other aquatic habitats. We have also changed the “Notification” provision of this NWP by replacing the phrase “the activity” with “any activity” to clarify that any activity that does not require reporting requires a pre-construction notification. The last sentence of this NWP has been changed to clarify that appropriate documentation concerning the agreement, voluntary action, or Surface Mining Control and Reclamation Act
One commenter said the NWP should require the use of best management practices to avoid sediment loading of waters especially when mechanized land clearing or work is conducted in waters of the United States. The commenter stated that best management practices, such as floating barriers, should also be used in upland areas to protect downstream water quality. One commenter stated that Tribes should be notified to ensure that NWP 27 activities avoid impacts to tribal treaty natural resources and cultural resources.
General condition 12, soil erosion and sediment controls, requires permittees to implement appropriate soil and erosion and sediment controls during the work. In response to a pre-construction notification, district engineers can add conditions to the NWP authorization to require more specific sediment and erosion controls. Division engineers can impose regional condition on this NWP to require notification of the appropriate Tribe or Tribes if a proposed activity might affect tribal treaty natural resources and cultural resources. General condition 17, Tribal rights, requires that no NWP activity or its operation impair reserved treaty rights, including treaty fishing and hunting rights. Cultural resources are protected through the requirements of general condition 20, historic properties, and general condition 21, discovery of previously unknown remains and artifacts.
This NWP is reissued with the modifications discussed above.
NWP 28.
This NWP clearly states that it does not authorize expansions of existing marinas. Since the NWP does not authorize expansions of existing marinas, it is not necessary to add a condition to provide a minimum maneuvering distance. Concerns about modifications to marinas constructed on state-owned submerged lands are more appropriately addressed through a state authorization process.
This NWP is reissued without change.
NWP 29.
One commenter said that this NWP should not be reissued. One commenter suggested revoking this NWP because of the large scale of these projects and associated impacts to waters and said that individual permits should be required for these activities. Two commenters stated that the use of this NWP permit to authorize
We do not agree that this NWP should not be reissued or limited to single family homes. The construction of residential developments, including multiple unit residential developments, may have minimal individual and cumulative adverse effects on the aquatic environment, and is appropriate for NWP authorization if it meets the conditions of this NWP. Provided the limits are met, the effects to waters of the United States are similar whether single family homes or groups of single family homes are constructed as a result of using this NWP to authorize discharges of dredged or fill material into waters of the United States. The
Several commenters objected to providing district engineers with the authority to waive the 300 linear foot limit for the loss of intermittent and ephemeral stream bed on a case-by-case basis after reviewing a pre-construction notification and determining that the proposed activity results in minimal adverse environmental effects. One commenter said that the waiver provision would result in more than minimal cumulative adverse effects on a watershed basis. Another commenter stated that use of the waiver would authorize the losses of large amounts of headwater streams. A few commenters suggested the waiver provision should be removed from this NWP. Three commenters recommended increasing the linear foot limit for the loss of stream bed to 500 feet. Two commenters supported the clarification that a finding of minimal adverse environmental effects would be required to issue a waiver.
Responses to comments regarding the 300 linear foot limit for losses of stream bed and the waiver provision for the loss of greater than 300 linear feet of intermittent and ephemeral stream beds are discussed in a previous section of this preamble. We are retaining the 300 linear foot limit for stream bed impacts, as well as the ability for district engineers to provide written waivers of the 300 linear foot limit for losses of intermittent and ephemeral stream beds.
One commenter recommended that compensatory mitigation be required for all unavoidable impacts to wetlands authorized under this NWP. Several commenters said that the NWP should require permittees to minimize on-and off-site impacts and avoid flooding, because the general conditions do not adequately address flooding or water quality impacts. Several commenters said that this NWP should not authorize residential subdivisions unless the
We do not agree that it is necessary to require compensatory mitigation for all activities authorized by this NWP to satisfy the minimal adverse environmental effects requirement for a general permit. For many small losses of waters of the United States authorized by this NWP, it is not practicable to require compensatory mitigation to offset those losses, especially in areas where there are no mitigation bank or in-lieu fee program credits available. The requirements for permittee-responsible mitigation in 33 CFR 332.1 through 332.7 impose substantial documentation and planning requirements that affect the practicability of providing ecologically successful permittee-responsible mitigation, especially for small losses of waters of the United States. Compensatory mitigation for NWP activities is only necessary in cases where the district engineer makes a project-specific determination that compensatory mitigation is needed to ensure that the activity results in minimal individual and cumulative adverse effects on the aquatic environment (see 33 CFR 330.1(e)(3)). General condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States on the project site, to the maximum extent practicable. Concerns about adverse effects on floodplains and floodways are more appropriately addressed by the state and local agencies that have the primary responsibility for floodplain management. General condition 10, fills within 100-year floodplains, requires permittees to comply with applicable Federal Emergency Management Agency-approved state or local floodplain management requirements. Most floodplains are uplands, not waters of the United States, and the Clean Water Act Section 404 permit program cannot be used to manage floodplain impacts, except for discharges of dredged or fill material or other pollutants into wetlands and other jurisdictional waters that are located in floodplains. Residential developments, whether they are single units or multiple-unit subdivisions, must comply with all terms and conditions of this NWP, including the requirement that they result in minimal adverse environmental effects.
One commenter said that this NWP should not authorize activities that result in adverse impacts to state or federally listed threatened or endangered species or their habitats, or where there are rare or imperiled habitat types. One stated that this NWP should not authorize discharges of dredged or fill material below the ordinary high water mark of any water of the United States or areas of fish habitat. One commenter said that attendant features should be limited to a garage, a driveway no more than 16 feet wide, parking or vehicle turn areas, lawns that are no more than 15 feet from the building pad, septic fields, utilities, deck foundations, and access paths. One commenter suggested modifying this NWP to require culverts and other measures to maintain pre-construction drainage patterns on the site. One commenter said this NWP should require on-site sewage treatment systems.
Compliance with the federal Endangered Species Act is addressed by general condition 18. Compliance with state or local threatened or endangered species laws or ordinances, or state or local requirements to avoid rare or imperiled habitats, is the responsibility of the permittee. Since all activities authorized by this NWP require pre-construction notification, district engineers will review proposed activities that involve discharging dredged or fill material into open waters, including fish habitat, to ensure that those activities result in minimal adverse effects on the aquatic environment. The text of the NWP provides examples of the types of attendant features that may be authorized. Further restrictions on those attendant features may be provided through regional conditions imposed by Division engineers or activity-specific conditions added to an NWP 29 authorization by a District engineer. General condition 9, management of water flows, requires permittees to maintain, to the maximum extent practicable, the pre-construction course, condition, capacity, and location of open waters, such as streams, except under certain situations identified in the text of the general condition. Sewage treatment system requirements for residential developments are the primary responsibility of state or local governments.
One commenter requested clarification on whether this NWP can be used to authorize phased development projects. Several commenters suggested limiting this NWP to a single use.
General condition 15, single and complete project, states that the same NWP can only be used once for the same single and complete project. If a particular phase of a phased development project is a single and complete project with independent utility, a separate NWP 29 authorization can be used to authorize that single and complete non-linear project.
Two commenters said that the NWP should require vegetated buffers. One commenter stated that district engineers have too much discretion regarding buffers and the general condition restricts buffers so that they are not as effective as they could be.
Compensatory mitigation for activities authorized by NWP 29 may be provided through the establishment and maintenance of riparian areas next to open waters. Paragraph (f) of general condition 23 addresses the use of riparian areas as compensatory mitigation, with recommended widths. The recommended widths are based in part on the minimum width necessary for riparian areas to help protect or improve water quality, and in part on the principle that the amount of compensatory mitigation must be roughly proportional to the permitted impacts (see 33 CFR 320.4(r)(2)). Since the NWP has an acreage limit of
This NWP is reissued as proposed.
NWP 30.
NWP 31.
Several commenters supported the proposed modification and said that vegetation removal is a critical component of the maintenance of a flood control project to ensure continued effectiveness and integrity of levees and other flood control facilities. Two commenters objected to the proposed modification. One commenter opposed the removal of vegetation from flood control facilities, stating the vegetation has ecological importance. One commenter said that vegetation removal is not regulated by the Corps. One commenter stated that if the plant species proposed to be removed have cultural and medicinal Native American traditional uses, consultation with the Tribe or another type of permit should be required for the activity.
We have retained the proposed language in this NWP, to authorize the removal of vegetation from a levee,
Several commenters said that vegetation may strengthen the integrity of levees and stated that individual permits should be required for vegetation removal. One commenter stated that vegetation on levees should be allowed or retained as part of levee management and that the vegetation should be removed only if specific levee maintenance or safety concerns are identified. One commenter stated that not allowing flood control districts to remove vegetation from levees would put them into non-compliance with their permits and with other state and local approvals. One commenter said that the removal of vegetation from a levee should only be authorized after Endangered Species Act consultation has been completed.
The decision on whether vegetation needs to be removed from a levee to maintain its functional and structural integrity is more appropriately made by those entities that are responsible for ensuring the integrity and functional effectiveness of that levee. That decision is not the responsibility of the Corps Regulatory Program or its staff. The NWP is only a means to provide Department of the Army authorization for such activities, if a section 404 and/or section 10 permit is required. If the vegetation removal may affect a listed species under the Endangered Species Act, and a Department of the Army permit is required, the Corps will conduct section 7 consultation in accordance with general condition 18, endangered species, unless another Federal agency has already fulfilled the section 7 requirements, or the project proponent has complied with the Endangered Species Act and received an Endangered Species Act Section 10 permit.
Several commenters said that there should be an acreage limit for vegetation removal. Another commenter recommended imposing a linear foot limit on vegetation removal. One commenter recommended revoking this NWP in California.
Since this NWP authorizes maintenance activities, we do not believe there should be an acreage or linear foot limit on vegetation removal. Division engineers may also add regional conditions to this NWP to impose acreage or linear foot limits on vegetation removal.
One commenter stated that many NWP authorizations are related to the maintenance baseline and the NWP should provide more details about the maintenance baseline approval process. This commenter suggested that the NWP specify: the deadline for completion, the responsible party, the regulating entity that approves the maintenance baseline, etc. One commenter requested clarification on the timeframe for approval of the maintenance baseline.
The current terms and conditions of the NWP provide sufficient details on what is needed to establish the maintenance baseline. Approval of the maintenance baseline is to be made within the 45-day review period, which begins once a complete pre-construction notification is received by the appropriate Corps district office. The pre-construction notification must include a description of the maintenance baseline.
Many commenters expressed concern about the mitigation provision of this NWP, especially the one-time limit for mitigation per facility regardless of the number of times maintenance occurs. These commenters said that limiting compensatory mitigation may result in more than minimal adverse environmental effects, including adverse impacts to floodplains and increased flood risk. These commenters recommended requiring mitigation for each maintenance activity. One commenter stated that vegetation removal should not be authorized because effective compensatory mitigation cannot be provided. One commenter said that certain riparian functions, such as shading, and losses of aesthetic values, cannot be provided through off-site mitigation.
We do not agree that compensatory mitigation should be required for each maintenance activity. On-going maintenance of flood control facilities is necessary to ensure that those projects fulfill their intended purposes. Any compensatory mitigation that was required when the maintenance baseline was established is sufficient to offset losses of aquatic resource functions. If maintenance is done in a timely manner, there is likely to be little in terms of increases in aquatic resource functions between maintenance activities. The purpose of maintaining these flood control facilities is to reduce flood risk. Riparian functions that increased between maintenance activities do not need to be replaced by imposing compensatory mitigation requirements on this NWP.
Several commenters said that the use of this NWP results in more than minimal individual and cumulative impacts, and may also inhibit comprehensive basin-wide flood risk management planning and restoration approaches.
We do not agree that these maintenance activities cause more than minimal adverse effects on the aquatic environment, on an individual or cumulative basis. This NWP is intended as a tool to support appropriate flood management activities, including comprehensive flood risk management planning and restoration processes, where maintenance of existing flood control structures is required.
One commenter recommended modifying the pre-construction notification provision to require a topographic map identifying the disposal site. One commenter said that the 1996 Water Resources Development Act allows for regional variations in vegetation management on levees.
The NWP already requires the prospective permittee to submit information concerning the location of the dredged material disposal site. There are a variety of maps that could be used to provide that information, and we do not believe it should be restricted to topographic maps. We have modified this NWP to state that all dredged material must be placed in an area that has no waters of the United States or in a separately authorized disposal site, since the disposal of dredged material into non-jurisdictional waters and wetlands, as well as uplands, does not require DA authorization. As stated above, the decision on whether to remove vegetation is the responsibility of the entity charged with managing and maintaining the flood control facility.
This NWP is reissued with the modifications discussed above.
NWP 32.
This NWP only provides Federal authorization under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act, and it is not appropriate to modify this NWP to require state involvement in these actions. States are often involved as co-regulators in enforcement activities, under various authorities, and this NWP in no way undercuts those authorities. General condition 17, tribal rights, states that no activity or its operation may impair reserved tribal rights.
This NWP is reissued as proposed.
NWP 33.
The term “temporary” should be determined by district engineers on a case-by-case basis, after considering factors such as the type of project, the waters affected by the activity, the construction techniques and equipment used, etc. In response to a pre-construction notification, district engineers can add conditions to the NWP authorization to impose specific time frames for revegetating affected areas. Activity-specific conditions may also be added to the NWP authorization to specify the plant species to be used at the site.
One commenter asked why the NWP would state that a separate section 10 permit is required if a structure is left in place in navigable waters of the United States after completion of construction, especially if the waterbody is not a section 10 water. This commenter wondered how a “structure” constructed in a non-Section 10 water could be left in place and still qualify as a temporary structure.
In some cases, it may be more environmentally beneficial to leave part of a structure in place in navigable waters of the United States, when complete removal of the structure is expected to result in substantial adverse environmental effects. For example, a structure may be cut near the ocean bottom, but part of the structure and its foundation left in place, because removing the entire structure and its foundation would result in substantial disturbance of the ocean bottom. Leaving those portions of the original structure and foundation in place requires a permit under Section 10 of the Rivers and Harbors Act of 1899 because it constitutes an obstruction that may alter the course, condition, or capacity of navigable waters of the United States. A structure left in place in a waterbody subject only to section 404 jurisdiction does not require section 10 authorization. Such a structure would not require a section 404 permit unless it meets the definition of fill material (see 33 CFR 323.3(c)).
One commenter asked why NWP 33 activities require pre-construction notification for temporary structures, work, and discharges while these types of activities may be authorized under NWPs 3, 12, 13, and 14 without a pre-construction notification.
While temporary structures, work, and fills are authorized by NWPs 3, 12, 13, and 14, those NWPs have terms and conditions to help ensure that those activities result in minimal adverse effects on the aquatic environment. Since NWP 33 can be used to authorize temporary structures, work, and discharges done in association with a wide variety of other categories of activities, that uncertainty makes it necessary to require pre-construction notification for all activities authorized by NWP 33. Such a requirement allows the Corps to review the temporary and permanent impacts that are likely to occur as a result of the overall activity.
One commenter stated that the NWP should never authorize temporary fills that impact more than 1,000 square feet or discharge more than 25 cubic yards into waters of the U.S., and temporary structures or construction mats shall not impact more than
We do not agree that there should be acreage, linear foot, or cubic yard limits on this NWP since it authorizes temporary structures, work, or discharges, and all activities require pre-construction notification. In response to a pre-construction notification, district engineers can add activity-specific conditions to the NWP authorization to impose limits or require specific best management practices or specific construction techniques to minimize adverse effects to the aquatic environment where necessary.
We have modified this NWP to state that temporary fill must be entirely removed to an area that has no waters of the United States, since the placement of fill material into non-jurisdictional waters and wetlands, as well as uplands, does not require DA authorization.
The NWP is reissued with the modification discussed above.
NWP 34.
This NWP does not authorize discharges of dredged or fill material that would result in a net loss of waters of the United States. While there would be some loss of wetland function as wetlands are converted for cranberry production, the NWP requires wetland acreage to be maintained. There would be no loss of wetland acreage over time due to future activities since the NWP does not authorize discharges of dredged or fill material that would result in permanent losses of wetland acres. This NWP applies to single and complete cranberry production activities, which would be identified by district engineers during the review of pre-construction notifications.
This NWP is reissued without change.
NWP 35.
Since this NWP authorizes only maintenance dredging activities in existing marina basins, we do not believe it is necessary to add an acreage limit or other type of quantitative limit. Division engineers can regionally condition this NWP to require notification to the district engineer. This NWP is limited to maintenance dredging in marina basins, access channels to marinas, and boat slips, which are likely to have some degree of contaminated sediment in the substrate because of past and present boat use, especially in larger marinas. Removal of such contaminated sediments, and complying with the requirement in the NWP to deposit the dredged material in an upland site, will help ensure the activity results in minimal adverse effects on the aquatic environment. Defining the term “upland” to mean lands located above an ordinary high water mark would be incorrect. There may be wetlands landward of the ordinary high water mark. We have modified this NWP to state that dredged material must be placed in an area that has no waters of the United States, since the disposal of dredged material into non-jurisdictional waters and wetlands, as well as uplands, does not require DA authorization. The district engineer may issue a separate Department of the Army authorization to a project proponent who wants to use the dredged material to restore, enhance, or establish wetlands.
One commenter stated that precautions should be taken to ensure that dredging equipment does not entrain or kill any Federally-listed species and recommend that preemptive trawling around the dredge head be conducted to capture or relocate state or federally listed species.
General condition 18 addresses compliance with the Endangered Species Act, and section 7 consultation is required for any activity that may affect listed species or is located in designated critical habitat.
This NWP is reissued with the modification discussed above.
NWP 36.
The terms and conditions of this NWP (specifically the limits on fill volume and ramp width) will ensure that the NWP authorizes only those activities that result in minimal adverse effects on the aquatic environment. Division engineers may regionally condition this NWP to restrict or prohibit its use in specific waters or geographic areas if they have concerns that more than minimal individual and cumulative adverse environmental effects may occur. In response to a pre-construction notification, district engineer may add activity-specific conditions to the NWP authorization to satisfy the minimal adverse environmental effects requirement. We do not agree that this NWP should be limited to private land owners. Commercial boat ramps that comply with the terms and conditions of this NWP will also result in minimal adverse environmental effects. The potential for adverse effects is based on the footprint of the ramp, which is limited by the conditions of this NWP, not its ownership. State agencies responsible for managing submerged lands may develop their own procedures for regulating and authorizing the construction of boat ramps on submerged lands. The Corps has neither the authority nor the resources to enforce any state requirements with respect to such lands.
Two commenters recommended reducing the pre-construction notification thresholds for this NWP. One commenter suggested limiting discharges of dredged or fill material to 25 cubic yards, with a maximum boat ramp width of 12 feet. Another commenter said that the quantitative limits for this NWP should not be waived. One commenter stated that the current 50 cubic yard limit is too small and should be increased to authorize larger boat ramps.
The pre-construction notification thresholds are sufficient for ensuring that this NWP authorizes activities with minimal individual and cumulative adverse effects on the aquatic environment. We have retained the provision authorizing district engineers to issue written waivers to the 50 cubic yard and/or 20 foot width limits, if a proposed activity is determined to result in minimal adverse environmental effects. The waiver provision may be used to authorize larger boat ramps, as long as they are determined by the district engineer to result in minimal adverse environmental effects.
One commenter asked for clarification on what is meant by placement in the upland. One commenter said that these activities may affect historic properties and the activity should not be authorized unless the state concurs that there are no documented resources within the permit area.
We have modified paragraph (d) to clarify that all excavated material must be removed to an area that has no waters of the United States, because some wetlands and waters are not subject to Clean Water Act jurisdiction and section 404 permits are not required to discharge dredged or fill material into those non-jurisdictional wetlands and waters. A separate Department of the Army authorization is required if the project proponent wants to deposit the excavated material into waters of the United States. Activities authorized by this NWP must comply with general condition 20, historic properties, as well as general condition 21, discovery of previously unknown remains and artifacts. District engineers will conduct National Historic Preservation Act Section 106 consultation if they determine the proposed activity has the potential to cause effects to any historic property.
This NWP is reissued as proposed.
NWP 37.
We do not believe it would be appropriate to reduce the pre-construction notification review period
The NWP is reissued without change.
NWP 38.
The cleanup of hazardous and toxic wastes, if conducted properly, will improve the aquatic environment by removing harmful chemicals and other substances that are likely to degrade the quality of wetlands, streams, and other aquatic resources, as well as the functions they provide. This NWP requires pre-construction notification, which will provide the district engineer the opportunity to review the proposed activity, including available site-specific information, to determine if that activity qualifies for NWP authorization. This NWP authorizes cleanup activities conducted, ordered, or sponsored by other government agencies, which have also reviewed those activities. In some cases these activities need to be commenced quickly and it could cause additional harm to the aquatic environment if they had to wait for an individual permit to be issued. The district engineer may also add activity-specific conditions to the NWP authorization to require compensatory mitigation, including restoration or rehabilitation of affected aquatic resources (see 33 CFR 330.1(e)(3) and general condition 23, mitigation) to satisfy the minimal adverse environmental effects requirement for general permits.
This NWP is reissued without change.
NWP 39.
Two commenters expressed support for the proposed modification. One commenter said that intermittent streams should be removed from the waiver provision so that the 300 linear foot limit could be waived only for losses of ephemeral streams. One commenter recommended removing the waiver provision.
We have retained the provision allowing the 300 linear foot limit to be waived for losses of intermittent stream bed, since such activities may, in some cases, result in minimal adverse effects on the aquatic environment. General comments concerning the 300 linear foot limit to the loss of stream bed are discussed in a separate section of the preamble.
One commenter urged the elimination of the pre-construction notification because that requirement results in delays and increases in cost. One commenter recommended conducting a natural heritage database search if a waiver determination is made that the activity will result in minimal adverse effects.
The pre-construction notification requirement is necessary so that all of these activities are reviewed by district engineers to ensure that those activities result in minimal adverse effects on the aquatic environment. District engineers may add conditions to the NWP authorization to require compensatory mitigation or other measures to comply with the minimal adverse environmental effects requirement established for general permits. District engineers may consider information from state natural heritage databases where appropriate when evaluating a pre-construction notification involving a proposed waiver of the 300 linear foot limit.
Two commenters suggested increasing the acreage limit from
We believe that both the
One commenter said that commercial and institutional developments are typically phased developments, are larger in scale than other projects, and should not be authorized by NWP. One commenter said that this NWP should not be reissued because these activities result in more than minimal cumulative adverse effects to wetlands and streams. One commenter suggested requiring compensatory mitigation for all activities authorized by this NWP. Two commenters said that this NWP should include a requirement to establish buffers next to waters of the United States, clarification that the limits apply to the project site and not to multiple applicants, and a provision requiring flood protections. One commenter stated industrial facilities that may be authorized by this NWP cause indirect impacts to water quality that could be significant and suggested not reissuing this NWP.
Phased developments may be authorized by general permits, as long as they comply with all applicable terms and conditions of those general permits. In particular, an NWP may only be used once for each single and complete project. The limits in this NWP, which are consistent with those in many other NWPs, will generally ensure minimal adverse effects. In specific watersheds or other geographic areas where a
One commenter objected to authorizing the expansion of commercial and institutional developments into waters of the United States, stating that it discourages avoidance and minimization and is contrary to the 404(b)(1) Guidelines. One commenter requested clarification whether this NWP applies to new project construction or existing construction projects so the acreage limits are applied cumulatively for both the original construction and any subsequent expansion of the development. One commenter asked whether certain categories of activities that were not authorized by the 2007 version of NWP 39, specifically new golf courses, new ski areas, or oil or gas wells, could be expanded through the authorization provided by this NWP. Three commenters suggested eliminating the exclusion for the construction of oil and gas wells and attendant features.
The expansion of commercial and institutional developments into waters of the United States may qualify for NWP authorization, as long as it complies with all applicable terms and conditions of the NWP and results in minimal individual and cumulative adverse effects on the aquatic environment. This NWP complies with the 404(b)(1) Guidelines, especially 40 CFR 230.7, which addresses the issuance of general permits. The acreage limit applies to a single and complete project. The expansion of an existing commercial or institutional development may only be authorized under a separate NWP authorization if it is a separate single and complete project with independent utility. For example, one or more phased components of a commercial or institutional development may have independent utility and may be authorized as separate single and complete projects. The expansion of existing golf courses or ski areas may be authorized by this NWP. We agree that the construction of pads for oil and gas wells is a type of commercial development that would be appropriate for inclusion in this NWP. District engineers may add conditions to NWP 39 authorizations to require the removal of these pads and restoration of the site once oil or gas extraction operations have ceased and the wells will no longer be used.
One commenter said that this NWP could be used to authorize activities associated with wind energy generating structures, solar towers, or overhead utility lines, which have the potential to interfere with Department of Defense's long range surveillance, homeland defense, testing, and training missions. This commenter requested that copies of NWP 39 pre-construction notifications and NWP verification letters for these activities be provided to the Department of Defense Siting Clearinghouse, so that the Department of Defense could have an opportunity to coordinate with the project proponent to ensure that long range surveillance, homeland defense, testing, and training missions are not adversely affected by these activities.
We have added a Note at the end of this NWP to require district engineers to send pre-construction notifications and NWP verification letters to the Department of Defense Siting Clearinghouse if NWP 39 is proposed to be used, and is used, to authorize the construction of wind energy generating structures, solar towers, or overhead transmission lines. The Department of Defense Siting Clearinghouse is responsible for coordinating with the project proponent and resolving any potential effects on Department of Defense long range surveillance, homeland defense, testing, and training missions.
This permit is reissued with the modification discussed above.
NWP 40.
Two commenters support the changes and said the modification would ensure NWP 40 authorizes activities with minimal adverse effects on the aquatic environment. One commenter opposed expanding the 300 linear foot limit to all stream losses, stating that the NWP should not authorize the loss of natural streams. Another commenter recommended removing intermittent streams from the waiver provision to limit it to ephemeral streams. One commenter said that waivers for the loss of greater than 300 linear feet of intermittent and ephemeral streams should not be issued until a natural heritage database search was completed. Two commenters stated that the acreage limit and the ability to waive the 300 linear foot limit do not adequately address cumulative impacts and requested the waiver provision be removed.
Comments concerning the 300 linear foot limits for the loss of stream bed and the waiver process are discussed in a previous section of the preamble. We are adopting the proposed language for the waiver provision. We are retaining the provision allowing the 300 linear foot limit to be waived for losses of ephemeral and intermittent stream bed, since such activities may result in minimal adverse effects on the aquatic environment. District engineers may consider information from state natural heritage databases when evaluating a pre-construction notification involving a proposed waiver of the 300 linear foot limit. We believe that both the
One commenter stated the
The
This NWP is reissued as proposed.
NWP 41.
We do not agree that the suggested additional terms and conditions are necessary to ensure that this NWP authorizes ditch reshaping activities that have minimal adverse effects on the aquatic environment. The drainage ditch slope is more appropriately determined on a case-by-case basis. District engineers have the discretion to consult state natural heritage databases while reviewing pre-construction notifications. The authorized activities are intended to improve water quality, so there is no need to impose a one mile limit or require compensatory mitigation. Reshaping a drainage ditch to improve water quality may involve discharging dredged or fill material into jurisdictional waters within the ditch. This NWP was originally issued to encourage activities that would help improve water quality within a watershed, not to provide for public safety. Discharging dredged or fill material into waters of the United States to reshape existing drainage ditches primarily for the purposes of public safety may be authorized by other NWPs, regional general permits, or individual permits.
This NWP is reissued as proposed.
NWP 42.
Two commenters said that the
The
One commenter suggested adding a condition to this NWP to limit fill pathways on public lands to six feet wide, with a maximum length of 200 feet, and require open pile or floating boardwalks/docks by prohibiting the discharges below the ordinary high water mark of inland lakes, streams, or the Great Lakes, or areas that otherwise provide fish habitat functions of any kind.
We do not believe the recommended restrictions are necessary to ensure that the NWP authorizes only those activities that result in minimal adverse effects on the aquatic environment. Division engineers may add regional conditions to this NWP to limit certain activities or require specific construction techniques. Division engineers may also restrict or prohibit the use of this NWP in certain waters to protect important resources, such as fish habitat.
One commenter supports requiring pre-construction notification for all activities authorized by this NWP. One commenter said that the activities authorized by this NWP are not similar in nature. One commenter suggested adding a condition requiring recreational facilities to be integrated into the natural landscape and not substantially change pre-construction grades or deviate from natural landscape contours. One commenter requested clarification as to when an easement will not be required.
We have retained the requirement that all project proponents who want to use this NWP must submit a pre-construction notification. This NWP authorizes a specific category of activities (i.e., recreational facilities) and complies with the “similar in nature” requirement of Section 404(e) of the Clean Water Act. We do not agree that it is necessary to require
This permit is reissued as proposed.
NWP 43.
One commenter expressed support for the proposed modifications. One commenter suggested that the acreage limit should be increased from
We do not agree that the acreage limit for this NWP should be increased from
We have substantially modified the first paragraph of this NWP to clarify how construction and maintenance activities may be authorized by this NWP, including the application of the waste treatment system exclusion at 33 CFR 328.3(a)(8). Section 328.3(a)(8) states that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet the requirements of” the Clean Water Act are not waters of the United States. The first half of this paragraph provides examples of the types of stormwater management facilities that may be authorized by this NWP, if the construction of those facilities involves discharges of dredged or fill material into waters of the United States. The second half of this paragraph states that to the extent that a section 404 permit is required, this NWP also authorizes discharges of dredged or fill material into waters of the United States for the maintenance of stormwater management facilities. Therefore, this NWP authorizes maintenance activities involving discharges of dredged or fill material if the stormwater management facility is not eligible for the waste treatment system exclusion. A section 404 permit is not required for a discharge of dredged or fill material into a waste treatment system that qualifies for the waste treatment system exclusion at 33 CFR 328.3(a)(8).
Several commenters supported the addition of low impact development stormwater management features to the examples of activities authorized by this NWP. One commenter said that while the construction of low impact development stormwater management features may need a Department of the Army permit in some circumstances, the maintenance of low impact development stormwater management features does not require a section 404 permit. This commenter also stated that requiring Department of the Army permits for maintenance activities in watersheds that have total maximum daily load requirements would result in needless paperwork without any environmental benefits. One commenter requested an explanation of the value of low impact development stormwater management facilities and examples of those facilities that may be authorized by this NWP. One commenter expressed concern that areas not subject to Clean Water Act jurisdiction, such as swales and upland areas holding waters only for short periods of time, may be considered to be waters of the United States if they are used for low impact development stormwater management features. Several commenters requested a definition for “low impact development stormwater features” in the definitions section. One commenter asked whether hybrid or combined bank protection and stormwater management techniques are authorized by this NWP or authorized by other NWPs.
We have modified the text of this NWP to clarify that the construction of low impact development integrated management features is authorized by this NWP, if the construction involves discharges of dredged or fill material into waters of the United States. We have also provided examples of the types of low impact development integrated management features that may be authorized by this NWP, such as bioretention facilities (e.g., rain gardens), vegetated filter strips, grassed swales, and infiltration trenches. After these low impact development integrated management features are constructed, they may not be waters of the United States and subsequent maintenance may not require further Department of the Army authorization. The jurisdictional status of these features will be determined by district engineers on a case-by-case basis, after applying the appropriate regulations and guidance. The Corps of Engineers wetland delineation manual and the applicable regional supplement will be used to determine whether a particular feature is a wetland under the definition at 33 CFR 328.3(b). Many low impact development integrated management features may not have wetland hydrology because they are designed to improve water infiltration. By modifying this NWP to make it clear that it can be used to authorize discharges of dredged or fill material to construct low impact development integrated management features, we are providing general permit authorization for activities that will help state and local entities comply with the total daily maximum loads established for a watershed or watershed. We do not believe it is necessary to define the term “low impact development stormwater management features” in the Definitions section of the NWPs because the text of the NWP provides examples of those features. This NWP may authorize some minor bank stabilization associated with the construction of a stormwater
One commenter asked whether this NWP authorizes discharges of dredged or fill material for the construction of new stormwater facilities in intermittent or ephemeral streams that are waters of the United States. One commenter recommended prohibiting the construction of new stormwater management facilities in intermittent streams to avoid impacts to numerous rare and threatened and endangered species. Another commenter said this NWP should only authorize activities in ephemeral streams.
We do not believe it is necessary to limit the construction of new stormwater management facilities to ephemeral streams. District engineers will review pre-construction notifications and determine whether the proposed activities will have minimal adverse effects on intermittent and ephemeral streams. Activities authorized by this NWP must also comply with general condition 18, Endangered Species. State-listed rare species may be further protected through the establishment of regional conditions by division engineers, after a public notice and comment process.
Several commenters objected to allowing the district engineer to waive the 300 foot limit for the loss of intermittent or ephemeral stream bed. Another commenter suggested increasing the linear limit for the loss of stream beds to 500 feet before requiring a waiver, to authorize more activities. Several commenters stated the waiver provision should be removed and losses of waters of the United States should be limited to
We are retaining the provision allowing district engineers to waive the 300 linear foot limit for the loss of intermittent and ephemeral streams, upon making a written determination that the discharge will result in minimal adverse effects. The 300 linear foot limit should not be increased to 500 linear feet, to ensure that any loss of perennial stream bed results in no more than minimal individual and cumulative adverse effects on the aquatic environment. District engineers may use available information, including state or local natural heritage resources databases, to help make the minimal adverse effects determination.
Some commenters suggested combining the maintenance component of this NWP with NWP 3 since both include maintenance activities. Another commenter suggested limiting this NWP to authorizing only the maintenance of stormwater management facilities constructed and used for the primary purpose of providing stormwater detention, retention and treatment.
As discussed above, we have modified this NWP to clarify that Clean Water Act Section 404 permits would not be required for maintenance activities (or other discharges of dredged or fill materials) involving stormwater management facilities that qualify for the waste treatment system exclusion at 33 CFR 328.3(a)(8) because these are excluded from the definition of waters of the United States. We do not believe it is necessary to combine maintenance authorized by NWP 43 with the maintenance activities authorized by NWP 3, since NWP 3 authorizes a variety of maintenance activities. Some stormwater management facilities may have purposes or uses other than stormwater detention, retention or treatment, so maintenance should still be authorized by this NWP, if a section 404 permit is required and the activity results in minimal adverse effects on the aquatic environment.
One commenter suggested that if a development project is required to install stormwater management facilities, the entire development should be treated as the “area of potential effects” for the purposes of compliance with Section 106 of the National Historic Preservation Act. One commenter recommended requiring any contaminated materials to be properly handled and disposed of.
The permit area for section 106 compliance will be determined by applying the criteria in Appendix C of 33 CFR part 325, the Corps Regulatory Program's procedures for the protection of historic properties, as well as the interim guidance issued on April 25, 2005, and January 31, 2007. In general, as is made clear in these regulations and guidance, the Corps does not agree that the area of potential effects for an NWP that is needed for a discharge involving one aspect of a development project necessarily encompasses the entire project, though this may be true in individual cases depending on the facts and circumstances. Compliance with general condition 20, Historic Properties, is required for activities authorized by this NWP. In response to a pre-construction notification, the district engineer may add activity-specific conditions to the NWP authorization to protect waters of the United States from adverse effects due to contaminated materials.
This NWP is reissued with the modifications discussed above.
NWP 44.
One commenter requested the NWP be revoked due to the large scale of these activities and their impacts on water quality. One commenter said this NWP should only authorize mining activities that have been permitted by state agencies. This commenter also stated that this NWP should not authorize peat mining or in-stream gravel mining. One commenter recommended expanding the categories of applicable waters to include tidal waters, since the term “adjacent” has not been adequately defined.
The terms and conditions of this NWP, including the addition of the 300 linear foot limit for the loss of stream bed, help ensure that the NWP authorizes only those activities that have minimal individual and cumulative adverse effects on the aquatic environment. Division engineers can regionally condition this NWP to restrict or prohibit its use in specific waters or categories of waters, or in particular geographic regions. After reviewing a pre-construction notification, the district engineer may add activity-specific conditions to the NWP authorization to require water quality management measures so that the activity causes only minimal degradation of water quality (see general condition 25, water quality), or he or she may exercise discretionary authority and require an individual permit if it is not possible to reduce the adverse effects so that they are no more than minimal. Division engineers may also regionally condition this NWP to prohibit or restrict peat mining or in-stream gravel mining. We do not agree that the NWP should be expanded to authorize discharges of dredged or fill material into tidal waters, since such activities may result in more than minimal adverse effects on the aquatic environment. The term “adjacent” is defined in the Corps regulations at 33 CFR 328.3(c) and is used to identify wetlands that are waters of the United States by virtue of being adjacent to jurisdictional waters.
Many commenters opposed adding the 300 linear foot limit for the loss of stream bed and stated that the 300 linear foot limit should not apply to smaller tributaries. One commenter recommended increasing the linear foot limit to 500 feet. One commenter said the proposed linear foot limit would have the effect of preventing mining of more than one million tons of mineable reserves. One commenter stated that waivers to the 300 linear foot limit should not be issued without evaluating documented natural heritage resources located in the project area.
As stated above, the 300 linear foot limit is being added to help ensure that the NWP authorizes only those activities that result in minimal adverse effects on the aquatic environment and other applicable public interest review factors. Increasing the linear foot limit for the loss of stream bed to 500 feet increases the likelihood that these mining activities would result in more than minimal adverse effects and therefore not comply with the requirements of Section 404(e) of the Clean Water Act. Mining activities that do not qualify for NWP authorization may be authorized by individual permits or other general permits, such as regional general permits issued by district engineers. District engineers will evaluate appropriate information before waiving the 300 linear foot for losses of intermittent or ephemeral stream bed, which may include state natural heritage resource databases. In areas where district engineers have designated state natural heritage sites as critical resources, compliance with general condition 22, designated critical resource waters will protect those natural heritage sites.
This NWP is reissued as proposed.
NWP 45.
One commenter requested that a
We do not believe that it is necessary to impose a
One commenter said that fills should be limited to the post-event ordinary high water mark. Another commenter made a similar recommendation, but suggested that an exception should be provided in cases where there is a need to respond to immediate threats to a primary structure or to infrastructure.
We do not agree that fills should be limited to the post-event ordinary high water mark. The purpose of this NWP is to authorize discharges of dredged or fill material into waters of the United States for the repair of uplands that have been damaged by discrete events and have minimal adverse effects on the aquatic environment. In some cases, it may not be practicable to limit fills to where the new ordinary high water mark is located, in cases where the discrete event changes the location of the ordinary high water mark.
One commenter said that Tribes should be notified to avoid impacts to Tribal treaty natural resources and cultural resources. Two commenters supported the proposed changes to the Note. One commenter stated that all bank stabilization authorized by this NWP must also satisfy the terms and conditions of NWP 13.
Division engineers can regionally condition this NWP to identify areas where there are Tribal treaty natural and cultural resources, so that consultation can be conducted with those Tribes to ensure that impacts to those resources are appropriately considered during review of pre-construction notifications. General condition 17, Tribal rights, prohibits the impairment of reserved tribal rights such as reserved water rights and treaty fishing and hunting rights. We have retained the proposed changes to the Note at the end of this NWP. This NWP provides separate authorization for discharges of dredged or fill material that are necessary to repair uplands that have been damaged by discrete events, including the placement of fills necessary to stabilize the bank. Unlike NWP 13, this NWP limits bank stabilization so that it does not exceed the land contours that existed before the damage occurred. Nationwide permit 13 may be used in conjunction with this NWP to authorize bank stabilization for restored uplands in cases where it is not practicable to limit bank stabilization to the pre-event ordinary high water mark or contours.
The NWP is reissued as proposed.
NWP 46.
This NWP authorizes discharges of dredged or fill material into a specific category of ditches (i.e., those non-tidal ditches that meet all four criteria in the first paragraph of the NWP), if those ditches have been determined to be waters of the United States. Section 404(f) of the Clean Water Act only exempts discharges of dredged or fill material for the construction or maintenance of irrigation ditches, or the maintenance of drainage ditches, while this NWP authorizes a different set of activities which would require a Section 404 permit. For example, this NWP authorizes discharges of dredged or fill material that may completely fill the specific category of upland ditch described in the NWP, if that ditch is determined to be a water of the United States after either the Corps or EPA makes a jurisdictional determination.
We recognize that many ditches constructed in uplands are not waters of the United States, but there are some ditches constructed in uplands that may be determined to be waters of the United States after evaluating the specific characteristics of those ditches. The preamble to the Corps November 13, 1986, final rule states the non-tidal drainage and irrigation ditches
Some commenters said there are impacts to upland ditches that could impair water quality downstream and that compensatory mitigation should be required to minimize adverse effects caused by activities authorized by this NWP. One commenter recommended that district engineers evaluate impacts to natural heritage resources during their review of pre-construction notifications.
For those activities authorized by this NWP, the district engineer will review the pre-construction notification and determine whether the activity results in only minimal adverse effects, including whether compensatory mitigation is necessary to ensure that the authorized activity results in minimal adverse effects on the aquatic environment, including water quality. During the review of a pre-construction notification, the district engineer may consult natural heritage resource databases to more effectively evaluate the potential adverse effects on the aquatic environment.
This NWP is reissued as proposed.
NWP 47.
Two commenters asked why this NWP was not proposed to be reissued. Three commenters agreed with allowing the NWP to expire and supported the Corps position that designated time sensitive inspections and repairs can be authorized under NWP 3, Maintenance and NWP 12, Utility Line Activities. One commenter said that there should be an NWP to authorize emergency repair activities to fix natural gas pipeline leaks, pressure malfunctions, natural disaster damage, terrorist threats, or other events that pose a danger to public safety. One commenter suggested issuing a new NWP to authorize activities licensed by the Federal Energy Regulatory Commission's blanket certificate program.
Existing NWPs, such as NWPs 3 and 12, may be used to authorize discharges of dredged or fill material or structures or work in navigable waters of the United States associated with pipeline inspections and repairs. Some of these activities do not require pre-construction notification to qualify for NWP authorization. There are other approaches available, such as emergency permitting procedures, to allow emergency repair activities that do not qualify for general permit authorization to proceed if there is “an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship” (see 33 CFR 325.2(e)(4)). We do not believe it is necessary to develop a new NWP to authorize activities that are granted blanket certificates by the Federal Energy Regulatory Commission. Many of these activities may be authorized by existing NWPs, such as NWPs 3 and 12.
This NWP is not reissued.
NWP 48.
Many commenters said the NWP should be reissued, and recommended many changes. Several commenters stated that this NWP should not be reissued. Most commenters expressed support for removing the reporting requirements for all activities that did not require pre-construction notification, stating that the paperwork was unnecessary given the current regulation of the industry by other entities, such as state and local governments. One commenter said that the reporting requirements should be maintained to ensure protection of resources. Other commenters suggested that pre-construction notification should be required for all activities. Several commenters said that the NWP should only authorize maintenance activities. One commenter stated that shellfish aquaculture methods are sufficiently different for the species cultivated that issuing a single NWP to authorize these activities is inappropriate. Another commenter said that all commercial shellfish aquaculture activities should be authorized under one NWP. Two commenters stated that the NWP should only authorize harvesting that occurs by hand. One commenter stated that these activities may impact tribal fishery access and fishing rights, and coordination with the affected tribes should be required.
We have reissued this NWP and made several changes. Properly sited, operated, and maintained commercial shellfish aquaculture activities support populations of shellfish that provide important ecological functions and services for coastal waters, and should be authorized by a single NWP. We have removed the reporting requirements for this NWP and substantially reduced the number of pre-construction notification thresholds. Division engineers may regionally condition this NWP to establish additional pre-construction notification thresholds if necessary to ensure that this NWP authorizes only those activities that have minimal adverse effects on the aquatic environment. We do not agree that pre-construction notification should be required for all activities authorized by this NWP, because these activities are regulated by a number of other government agencies, especially at the federal and state government levels. In addition, the discharges of dredged or fill material into waters of the United States authorized by this NWP will result in minimal adverse environmental effects to the environmental criteria established under the Clean Water Act. The shellfish populations supported by the activities authorized by this NWP help support the objective of the Clean Water Act because they improve water quality through the conversion of nutrients into biomass (i.e., shellfish growth) and the
We do not agree that the NWP should be limited to hand harvesting activities. We have retained the pre-construction notification requirement for activities involving dredge harvesting, tilling, or harrowing in areas inhabited by submerged aquatic vegetation. General condition 17, tribal rights, states that NWP activities may not impair reserved tribal rights, including treaty fishing and hunting rights. In addition, division engineers may regionally condition this NWP to identify areas where Tribes must be notified of these activities and government-to-government consultation conducted to avoid or minimize impacts to tribal fishery access and fishing rights.
One commenter said that the restoration of indigenous species would be prevented if cultivation was limited to only those species that were previously commercially cultivated. Another commenter recommended requiring pre-construction notification if there were a proposed change in species cultivated that was not part of a state-approved list. Some commenters suggested that pre-construction notification should not be required for changes in harvesting methods. Another commenter said that pre-construction notification should be required if the culture method changed from bottom culture to floating or suspended culture to allow district engineers to evaluate potential navigation issues. One commenter indicated that the NWP should authorize demonstration projects less than one acre in size and another said that non-commercial shellfish aquaculture activities should be authorized, since states, local governments, and non-governmental organizations engage in recreational and commercial aquaculture. One commenter recommended adding a provision that would require the permittee to implement measures to prevent the spread of aquatic nuisance species, such as prohibiting the transfer of materials used for commercial shellfish aquaculture activities from one project site to another unless appropriate measures have been taken to ensure that those materials are free of aquatic nuisance species. This commenter said a note should be added to the NWP, to prohibit the transfer of equipment used in commercial shellfish aquaculture activities from one waterbody to another waterbody, unless that equipment has been allowed to dry out for a minimum of 90 days or treated in accordance with a regional aquatic nuisance control plan, to prevent the introduction of aquatic nuisance species into the other waterbody.
We have modified this NWP to provide more flexibility in the species cultivated, specifically, to allow the cultivation of nonindigenous species as long as those species have been previously cultivated in the waterbody. We recognize that there has been commercial production of nonindigenous species over many years in certain waterbodies, and activities requiring Department of the Army authorization associated with those commercial operations should be authorized by this NWP. We have retained the prohibitions against cultivating aquatic nuisance species defined by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990. We have also added Note 2 to the NWP, to reduce the risk of introducing aquatic nuisance species by requiring treatment of materials taken from one waterbody to another in accordance with the applicable regional aquatic nuisance species management plan. Division engineers may add regional conditions to the NWP to make permittees aware of the regional aquatic nuisance species management plan that may be applicable to NWP 48 activities.
We agree that pre-construction notification should not be required for changes in harvesting methods because harvesting methods have temporary impacts and result in minimal adverse effects. A possible exception is dredge harvesting in areas inhabited by submerged aquatic vegetation, which still requires pre-construction notification. We also agree that pre-construction notification should be required if the grower proposes to change from bottom culture to floating or suspended culture in a project area, or if it is an activity in a new project area that requires the installation and use of floating or suspended gear, so that effects to navigation can be evaluated. This NWP authorizes commercial shellfish aquaculture activities undertaken by states, local governments, and non-governmental organizations. Shellfish seeding activities to improve shellfish populations may be authorized by NWP 27. Small recreational shellfish aquaculture activities may be authorized by other applicable NWPs, such as NWP 4. Other recreational shellfish aquaculture activities may be authorized by regional general permits or individual permits. Restoration aquaculture activities may be authorized by NWP 27.
One commenter stated that the structures and fill activities authorized by the NWP were too broad and should be refined. This commenter recommended prohibiting the long-term use of trays if sediment is compacted and diversity is diminished. One commenter said that structures and fill should be limited to shell spat only, while another commenter stated that shell planting should be allowed on any size parcel without pre-construction notification.
The structures and fills authorized by this NWP are limited to those necessary to conduct commercial shellfish aquaculture activities. We have retained the provision that states that the NWP does not authorize attendant features such as docks, piers, boat ramps, stockpiles or staging areas, or the deposition of shell material back into waters of the United States as waste. We have removed the pre-construction notification threshold for commercial shellfish aquaculture activities that are more than 100 acres in size, because we do not believe it is necessary to require pre-construction notification for existing operations with a valid lease, permit, or other appropriate instrument that has been approved by the appropriate state or local government agency, unless the activity triggers any of the pre-construction notification thresholds.
One commenter requested changes to the definition of shell seeding, citing concerns over the use of potentially environmentally damaging materials. Another commenter supported the use of terms such as “suitable substrate” and “appropriate materials” due to the decreasing availability of shell cultch and new research and development regarding materials. One commenter said that use of the term “submerged aquatic vegetation” allowed for the destruction of eelgrass, because eelgrass is often not inundated with tidal waters. One commenter asked whether traditional oyster culture practices were of special concern.
The definition of the term “shellfish seeding” in the Definitions section of
Many commenters requested clarification as to when pre-construction notification is required and what constitutes a project area for the purposes of this NWP. Several commenters recommended that pre-construction notifications should only be required once and not for each subsequent reissuance of this NWP if the commercial shellfish aquaculture operation has not changed. One commenter asked if the lease holder is required to provide pre-construction notifications annually if the lease covers an area greater than 100 acres. One commenter inquired whether pre-construction notification is required when the operator is only working on 30 acres of a 200-acre project site. One commenter said that multiple pre-construction notifications should not be required from a lease holder that has multiple 100-acre leases; instead, one pre-construction notification should cover all those leases.
We have reduced the number of pre-construction notification thresholds in this NWP. The pre-construction notification thresholds in this NWP focus on those activities that should be reviewed by district engineers to: (1) Ensure that floating or suspended aquaculture facilities do not cause more than minimal adverse effects on navigation or, (2) ensure that both cultivating species that have not been previously cultivated in the waterbody and dredge harvesting, tilling, or harrowing in areas of submerged aquatic vegetation do not cause more than minimal adverse effects on the aquatic environment.
To support our objective to be more consistent with state and local agencies that regulate commercial shellfish aquaculture activities, we have redefined project area so that it is based on leases or permits issued by an appropriate state or local government agency that is responsible for allocating subtidal or intertidal lands for commercial shellfish production. The project area may also be based on rights to conduct shellfish aquaculture that are established by treaty, such as treaties executed between the United States Government and Indian Tribes. Project area may also be identified through an easement, lease, deed, or contract which establishes an enforceable property interest to conduct aquaculture activities on subtidal or intertidal lands.
We have removed the pre-construction notification requirement for relocating existing operations into portions of the project area not previously used for aquaculture activities, since the permit or lease issued by the state or local government agency has already authorized that area for use in commercial shellfish aquaculture. There is no need to address expansions in this NWP if the proposed expansions are within the project area authorized by the state or local government lease or other appropriate instrument. For example, pre-construction notification is not required if an operator who is only working on 30 acres of a 200-acre project area decides to conduct operations beyond those 30 acres within the 200 acre project area.
We have removed the pre-construction notification threshold for project areas greater than 100 acres. Since we have limited the pre-construction notification thresholds to focus on activities that may adversely affect submerged aquatic vegetation and changes in operations that may adversely affect navigation or involve species not previously cultivated in the waterbody, most on-going activities will not require pre-construction notification, thereby substantially decreasing the paperwork burden on current commercial shellfish aquaculture operators. The lease holder is not required to provide a pre-construction notification annually no matter what the size of the project area as long as the lease holder has a valid lease, permit, or other appropriate instrument that has been approved by the appropriate state or local government agency for the project area, and none of the pre-construction notification thresholds are triggered. For example, pre-construction notification is not required if the lease holder is only working within an existing authorized 200-acre project area no matter how much or little of that area is cultivated. However, if the lease holder proposes to cultivate a species of oyster in the 200-acre project area not currently present in the waterbody, pre-construction notification would be required. The activities also do not require pre-construction notification unless the activities involve dredge harvesting, tilling, or harrowing in areas of submerged aquatic vegetation. If the lease holder's operations within the 200-acre project area change from one on-bottom technique to another on-bottom technique, pre-construction notification is not required. However, if the operations are proposed to change from an on-bottom culture method to a floating or suspended culture method, pre-construction notification is required. Lastly, if an operator obtains a lease for a new project area and wishes to conduct any commercial shellfish aquaculture activities in the new project area, pre-construction notification is required.
One commenter said that requiring pre-construction notification for aquaculture relocation and expansion is unnecessary if the area is already leased but transferred to another owner. Another commenter recommended that any NWP authorizations should still be valid when the lease is transferred to another operator and use has not changed. One commenter stated that pre-construction notification should not be required for expansions into newly leased areas since the site conditions are usually the same.
Pre-construction notification is not required for expansions of commercial shellfish activities as long as the expansion occurs within the project area specified by an permit, lease, or other instrument issued by the appropriate state or local agency, and as long as none of the pre-construction notification thresholds are triggered. This would apply to an activity in a new location within the project area, or to an activity that would utilize a larger acreage of the project area, as long as none of those activities require pre-construction notification. If an activity is proposed by an operator in a new project area, however, pre-construction notification is required. An NWP verification can be transferred to a new project proponent, if he or she has obtained an interest in the subtidal or intertidal lands, provided appropriate procedures are followed for the transfer of the NWP verification (see general condition 29, transfer of nationwide permit verifications).
One commenter asked whether or not an NWP verification can be issued prior to a state issuing a lease. Another commenter said that NWP 48 should be delegated to the states who issue leases to reduce duplicative paperwork. One commenter stated that pre-construction notification should not be required when a state already evaluates impacts to submerged aquatic vegetation prior to
The district engineer may issue an NWP verification before the state makes its decision on a lease application. It is necessary to respond to a complete pre-construction notification within 45 days to retain the authority to add activity-specific conditions, which would ensure that the NWP activity results in minimal adverse effects on the aquatic environment. Since there is not consistent regulation of commercial shellfish aquaculture activities among all of the states, we do not agree that certain Federal interests, such as navigation and impacts to special aquatic sites, should be delegated to the states. In evaluating a pre-construction notification triggered by potential impacts to submerged aquatic vegetation, the district engineer would consider any evaluation of such impacts that had been previously conducted by the state if this is submitted with the PCN.
Many commenters expressed concerns regarding impacts to species protected under the Endangered Species Act, designated critical habitat, and essential fish habitat. One commenter asked if compliance with the Endangered Species Act was required for both existing and new activities. Another recommended that a detailed eelgrass, macroalgae, and forage fish survey should be required for each pre-construction notification. One commenter stated that NWP authorization should not be granted in areas adjacent to forage fish or critical habitat.
Activities authorized by this NWP must comply with general condition 18, endangered species. Any new or existing activity that involves discharges of dredged or fill material or structures or work in navigable waters of the United States that might affect listed species or designated critical habitat require pre-construction notification to the district engineer, so that Section 7 consultation can be conducted. We do not agree that pre-construction notifications should include surveys for eelgrass, microalgae, or forage fishes. The district engineer may request additional information from the project sponsor if needed to conduct Section 7 consultation. An activity may be authorized in critical habitat if a section 7 biological opinion is issued and impacts to critical habitat are authorized.
One commenter recommended that the Corps work closely with the National Oceanic and Atmospheric Administration to streamline the review and approval of aquaculture projects. Some commenters said that the commercial shellfish aquaculture industry is not sufficiently regulated at the local, state, or federal level. One commenter said that enforceable conditions need to be added to NWP 48 authorizations to protect the aquatic environment. One commenter recommended implementing a regional ecosystem-based management approach.
We have worked closely with the National Oceanic and Atmospheric Administration and other Federal agencies to develop this NWP, and we disagree that there is not already sufficient government oversight of these activities at the various levels of government. In response to a pre-construction notification, the district engineer may add activity-specific conditions to the NWP authorization to ensure that the authorized activity results in minimal adverse effects on the aquatic environment, individually and cumulatively. A regional ecosystem-based management approach is more appropriately undertaken by Corps districts and interested Federal, State, and local government agencies, not at the national level.
Many commenters expressed concern regarding the environmental impacts associated with expansions of commercial shellfish aquaculture activities and for new activities. One commenter said that expansion proposals should not be reviewed as restoration activities since non-native species are a serious threat. Several commenters stated that the environmental benefits do not offset the environmental impacts, introduction of invasive species, impacts to native species such as flatfish and other sandy bottom species, reduction of species diversity, elimination of native animal and plant species, harassment and destruction of migrating birds, and the introduction of plastics. Other commenters expressed concern regarding impacts from geoduck cultivation and harvesting on the environment as well as on wild geoduck populations, and the cultivation and harvesting of other non-native species. Two commenters stated that geoduck cultivation and harvesting has only minimal impacts.
When properly sited, operated, and maintained, commercial shellfish aquaculture activities generally result in minimal adverse effects on the aquatic environment and in many cases provide environmental benefits by improving water quality and wildlife habitat, and providing nutrient cycling functions. These activities are subjected to an extensive amount of regulation at the Federal and state government levels, and often the local government level. The introduction of invasive species can occur through many mechanisms, and the types of species approved for commercial aquaculture activities are regulated. This NWP does not authorize discharges of dredged or fill material or structures or work in navigable waters of the United States associated with the cultivation of nonindigenous species that have not been previously cultivated in the waterbody or the cultivation of aquatic nuisance species as defined in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990. Furthermore, division engineers may add regional conditions to the NWP to require permittees to use specific practices that will prevent the spread of aquatic nuisance species. Such measures may vary, depending on the species of concern and which techniques would be the most effective means to prevent the spread of such species. Adverse effects that may result from geoduck cultivation are more appropriately addressed by Corps districts, since this activity is limited in geographic scope. Division engineers may regionally condition this NWP to restrict or prohibit its use to authorize discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States associated with geoduck production.
Several commenters stated that the expansion of commercial shellfish aquaculture activities will result in more than minimal cumulative adverse effects and should not be authorized by NWP. One commenter said that all activities authorized by this NWP should require reporting to assess cumulative effects. Another commenter suggested that cumulative effects on water quality should be evaluated for water bodies with multiple aquaculture facilities.
As stated above, commercial shellfish aquaculture activities provide habitat, water quality, and nutrient cycling functions and when properly sited, operated, and maintained are unlikely to result in more than minimal cumulative adverse effects on the aquatic environment. Division engineers may restrict or prohibit use of this NWP in geographic regions or specific waterbodies where more than minimal cumulative adverse effects may occur.
One commenter stated that shellfish aquaculture activities have economic impacts that were not sufficiently addressed in the draft decision documents. For example, county and
The draft decision documents briefly discuss economics as one of the public interest review factors that are considered before the Corps issues a permit, including a general permit. Shellfish aquaculture activities, in general, help improve water quality because many of the commercially cultivated species are filter feeders that remove nutrients and suspended materials from the water column. By removing nutrients, eutrophication and similar water quality problems are lessened. Water quality benefits provided by commercially grown shellfish help reduce costs of remediating local water quality problems. Commercial shellfish aquaculture activities have minimal adverse effects to aesthetics, and are likely to result in little change in local baseline levels of noise, odor, or views when compared to other waterfront uses in coastal residential areas, such as private and commercial boats, as well as the piers, wharves, marinas, and anchorage or mooring areas where those vessels are kept. Coastal areas are used by a wide variety of people. Effects on recreational uses of the waterbody should also be considered during the review of specific commercial shellfish aquaculture activities. Division engineers may regionally condition this NWP to restrict or prohibit its use to authorize new project areas and/or new activities in existing project areas in national parks or in the vicinity of historic monuments. The protection of waters near river deltas or other categories of waters is more appropriately accomplished through regional conditions imposed by division engineers.
One commenter stated that because commercial shellfish aquaculture may be limited by farm runoff, increasing production could require farmland to cease in operation. Another commenter stated that shellfish farming is a good gauge of water quality in an area since poor water quality necessitates closure of shellfish farms. In contrast, another commenter said the potential for aquaculture operations to harvest continuously as farm size increased would result in permanently suspended particulates and increased turbidity which would damage ecosystems.
Changes in farming operations that may be related to commercial shellfish aquaculture activities in nearby waters is outside of the Corps regulatory authority. Such issues are more appropriately addressed by state or local governments, who have the primary responsibility for land use decisions. We recognize that commercial shellfish aquaculture can help improve water quality. Harvesting operations may increase turbidity, but we believe such impacts are temporary and minor.
We received many comments in response to our proposal to consider issuing a new NWP or modifying NWP 48 to authorize new commercial shellfish aquaculture activities. Many commenters supported modifying NWP 48 to authorize new activities, and suggested terms and conditions. One commenter recommended limiting new activities to ten acres or less. One commenter stated that there should be no limits on new activities because shellfish aquaculture has only minimal, short-term adverse environmental impacts, and the shellfish themselves provide valuable ecological services. Two commenters stated that all new shellfish aquaculture activities except floating culture should be authorized under the NWP, because floating facilities have potential to impact navigation. One commenter said limitations on new activities should be imposed on NWP 48 and reconsidered when the proposal to reissue the NWPs is developed in 2016. Other commenters said that new activities should not be authorized by NWP because of their environmental impacts. Another commenter stated that new activities should not be authorized by NWP unless bottom culture methods are used (except for grow-out bags), harvesting is done by hand, and only native species are cultivated. One commenter stated that baseline habitat assessments should be provided and no operations should occur within 180 feet of marine vegetation, eelgrass, or sand dollar beds.
We are modifying NWP 48 to authorize commercial shellfish aquaculture activities in new project areas, provided the project proponent obtains a valid authorization (e.g., a lease or permit from the appropriate state or local government agency responsible for granting such leases or permits) and the activity will not directly affect more than
This NWP is reissued with the modifications discussed above.
NWP 49.
Several commenters supported the reissuance of NWP 49 and said no restrictions should be imposed because remining permits are one of the most significant tools to alleviate the environmental effects of past mining activities. Many commenters said this NWP should not be reissued. Some of these commenters stated that these activities result in more than minimal cumulative adverse effects. Many commenters objected to the lack of
We believe authorizing remining of an unreclaimed site and requiring actions to restore unreclaimed areas is one of the most effective ways to reverse degraded water quality in a watershed. Therefore, we have not imposed any new limits or restrictions on this NWP. All activities authorized by this NWP must result in net increases in aquatic resource functions, which will help manage cumulative effects on a watershed basis. Cumulative effects assessments have revealed the reduction in acid mine drainage and/or sedimentation in downstream segments of stream channels has resulted in functional improvements in many watersheds. The states of Ohio, Pennsylvania, Virginia, and West Virginia frequently use remining activities to reduce acid mine drainage and sedimentation and have data to demonstrate these improvements.
We do not believe this permit should have linear foot or acreage limits, since this NWP authorizes discharges of dredged or fill material into waters of the United States to reclaim previously mined sites that were unreclaimed, abandoned, forfeited, and typically exhibit poor water quality and present safety hazards. These unreclaimed mines may have unreclaimed highwalls, unvegetated mine spoil, disconnected stream segments, and/or pit impoundments. We, as well as other state and federal agencies, recognize that remining and reclaiming these areas is one of the most successful means for improving water quality, because these activities reduce sedimentation and acid mine drainage. Due to advances in mining technology and equipment, it is now economically viable to remove coal from these unreclaimed and abandoned mine sites. These sites can be combined with adjacent unmined areas to develop a project that is economically viable. In many cases the net result of combining remining of a previously mined site with new surface coal mining activities in adjacent areas is to facilitate reclamation of the older mine site and reduce acid mine drainage and sediment from the older mine site to downstream stream segments. Furthermore, this NWP provides an incentive to remine degraded areas, similar to the 1987 Rahall Amendments to the Clean Water Act, which enables mine operators to apply for the U.S. Environmental Protection Agency's modified effluent limits developed specifically for remining projects.
Project proponents who want to use this NWP must submit pre-construction notifications. The pre-construction notification describes how the overall mining plan will result in a net increase in aquatic resource functions. If there is an appropriate functional assessment protocol available for the types of aquatic resources in that geographic area, project proponents are encouraged to use that functional assessment protocol to demonstrate how the activity will result in a net increase in aquatic resource functions. The description of the proposed project required by paragraph (b)(3) of general condition 31 should describe the restoration that will take place on the project site. District engineers may add activity-specific conditions to this NWP to require more detailed restoration plans prior to discharging dredged or fill material into waters of the United States, as well as monitoring plans that will be used to assess whether the remining and associated reclamation activities are resulting in net increases in aquatic resource functions. Supplemental compensatory mitigation may be required in some instances, such as the implementation of mitigation projects near the project site, to remove or reduce causes of aquatic resource impairment and ensure that the overall activity not only results in minimal individual and cumulative adverse effects on the aquatic environment but in a net increase in aquatic resource functions, as required by this NWP.
Several commenters indicated the general public should have the right to comment on the proposal before the district engineer issues the NWP verification. One commenter said all activities associated with remining should require individual permits and another commenter objected to combining unmined lands required for restoration with previously mined lands because that would categorize unmined land as unreclaimed land, and result in additional adverse environmental effects. One commenter stated that slurry impoundments should not be authorized by this NWP.
We believe these activities are appropriate for general permit authorization and should not require a public notice and comment process. District engineers may assert discretionary authority and require an individual permit for proposed activities if they believe those activities will result in more than minimal adverse effects on the aquatic environment. It is appropriate to authorize discharges of dredged or fill material into waters of the United States for some new mining activities, to provide an incentive to restore unreclaimed mine lands, and provide net increases in aquatic resource functions. Impacts to the newly mined area would not be categorized as remining. Adverse effects to waters of the United States associated with the new mining would be subject to the general condition 23, mitigation, and the district engineer may add conditions to the NWP authorization to require mitigation located near the project site or out-of-kind mitigation to compensate for losses of aquatic resource functions. Typical surface coal mining projects, including remining, do not include slurry impoundments, as these impoundments are typically associated with the wastewater resulting from coal processing plants. This NWP does not authorize the construction of coal processing plants.
Many commenters said the Corps is making the review process associated with NWP 49 more onerous, which will decrease the utility of the NWP, and should focus on the environmental benefits that can be realized from this nationwide permit.
The proposed changes to this NWP, which we are adopting, do not make it more difficult to use NWP 49. The requirement to provide information with the pre-construction notification to explain how the overall activity will result in net increases in aquatic resource functions is necessary to ensure compliance with the terms and conditions of the NWP. Clarification of how to apply the 40 percent provision to determine how much new area could be mined will provide consistency in implementation. For example, a site may be proposed to be remined under this NWP. If 30 acres of the site has been previously mined and is proposed to be remined, and 30 acres of the site is unmined and is necessary to make it economically feasible to reclaim the remined area, then 40% of the combined acreage of the remined and reclaimed areas, or 40% of 60 acres which equals 24 acres, can be newly mined. In another example, if you have a 1,000-acre site, and 600 acres are affected by previously unreclaimed mining activities and 200 acres are needed to reclaim the 600 acres, then 40% of 800 acres (the summation of the previously unreclaimed mining activities site and the site needed to reclaim the previously mined site), or 320 acres may be newly mined. As there are only 200 acres remaining at the 1,000-acre site, those 200 acres may be
One commenter said they did not understand the rationale for establishing the threshold for newly mined areas at 40 percent, if removing the small amount of remaining coal reserves will be far more attractive to coal mine operators if the percentage was increased to allow mining on larger areas of unmined lands. One commenter said the 40 percent limitation becomes an obstacle when the remaining coal seam is deep within the hillside and large amounts of overburden require removal. This commenter suggested increasing the limit for newly mined areas to 50 or 60 percent to encourage more restoration of unreclaimed areas. The commenter recommended adding a provision allowing district engineers to waive the 40 percent threshold in certain situations, such as when the operator receives an approved pollution abatement plan with best management practices, the remining activity is located in a completed Acid Mine Drainage Abatement Treatment watershed area, and watersheds with established total daily maximum loads. Several commenters objected to the provision stating that the Corps would consider the SMCRA agency's decision regarding the amount of currently undisturbed adjacent lands needed to facilitate the remining and reclamation of the previously mined area, stating that it creates duplicative and potentially conflicting layers of regulation to an already highly regulated industry.
The 40 percent limit was established when NWP 49 was first issued in 2007, and was based on the recognition that some new coal mining may have to be conducted to provide incentives to remine and reclaim previously mined lands. The 40 percent limit is intended to facilitate compliance with the minimal adverse effects requirement for the NWPs. We do not agree that it would be appropriate to add a provision allowing district engineers to waive the 40 percent limit. Remining and reclamation activities involving discharges of dredged or fill material into waters of the United States that require larger proportions of newly mined areas may be authorized by individual permits. The expertise provided by the agencies responsible for implementing SMCRA is necessary to help the Corps make its determination of compliance with the terms and conditions of this NWP.
One commenter stated this NWP should look holistically at overall water and site improvements, improvement in the safety of the area by the elimination of pits and highwalls, and reclamation of sites without the use of public funds.
We have focused this NWP on authorizing those activities that provide net increases in aquatic resource functions. The consideration of overall site improvements, increased safety, and the lack of use of public funds is more appropriately addressed by other agencies or programs.
This NWP is reissued as proposed.
NWP 50.
Several commenters objected to the reissuance of this NWP, stating that it authorizes activities with more than minimal individual and cumulative adverse effects on the aquatic environment. Several commenters stated that activities authorized by this NWP will result in the loss of stream functions and adversely impact water quality downstream of the mine site. Several commenters said this NWP does not comply with the Section 404(b)(1) Guidelines and that the cumulative impacts analysis is too general and fails to consider past actions.
We have imposed a
Several commenters stated that NWP 50 should not have any acreage and/or linear foot limitations as these limits would essentially render the permit unusable for underground mining operations.
We do not agree that the
One commenter stated that districts have incorrectly classified perennial streams and that impacts to special aquatic sites (e.g., riffle and pool complexes) have not been properly considered. Another commenter said that Clean Water Act jurisdiction does not extend to ephemeral and intermittent streams. Several commenters indicated stream mitigation measures are not effective and the Corps has failed to provide a rational explanation as to how mitigation will attenuate cumulative effects.
Classifying a stream as perennial, intermittent, or ephemeral is done by district engineers by evaluating available information on stream flow,
Several commenters indicated the activities regulated by this NWP are also heavily regulated by SMCRA, the Federal Mine Safety and Health Act (MSHA), and the state mining and water resource programs; therefore, no limits should be imposed on the permit. One commenter said the limits and the waiver process is highly subjective and results in uncertainty in the Regulatory Program. One commenter stated that limitations imposed on this NWP could potentially require applicants to seek individual permits for all underground mining actions, which may result in a requirement to prepare an environmental impact statement. This commenter said that there should be a transition period without acreage or linear foot limits so that underground coal mining activities could continue to be authorized by this NWP until an individual permit can be obtained. One commenter said that reissuing NWP 50 with the
This NWP provides authorization required under Section 404 of the Clean Water Act, for discharges of dredged or fill material into waters of the United States. The acreage and linear foot limits of this NWP are necessary to ensure that authorized activities result in minimal adverse effects on the aquatic environment. Compliance with other laws may be required for surface coal mining activities, but those decisions are made by the agencies responsible for administering those laws. District engineers will consider the criteria in paragraph (1) of section D, “District Engineer's Decision” and other appropriate criteria, when making a minimal effects determination for a proposed NWP activity. Activities that result in the loss of greater than
One state agency indicated implementation of the limits would result in increased workload for their staff and requested that funding be provided to their office to mitigate this increase. One commenter stated that sites which contain reclaimed and abandoned mines associated with deep mining operations with portals and/or bat habitat should be assessed for bat use.
Any workload increase due to the addition of the
This NWP is reissued as proposed.
NWP 51.
Several commenters objected to the issuance of this NWP, stating that the Corps had failed to explain why the direct and indirect impacts resulting from the land-based renewable energy projects authorized by this NWP would be minimal, including the impacts caused by construction and operation of these facilities. These commenters said that individual permits should be required for these facilities. One of these commenters said that biomass facilities will significantly add to greenhouse gas
This NWP authorizes discharges of dredged or fill material into waters of the United States for the construction, expansion, or modification of land-based renewable energy facilities. Unless the operation of these facilities involves discharges of dredged or fill material into waters of the United States, the Corps does not authorize, or have any Federal control or responsibility over, their operation. We believe that the construction, expansion, or modification of these facilities has minimal adverse effects on the aquatic environment, individually and cumulatively. Division engineers can regionally condition this NWP to restrict or prohibit its use in waters of the United States, where the discharges of dredged or fill material are likely to result in more than minimal adverse effects on the aquatic environment. While there may be emissions of greenhouse gases during construction activities involving discharges of dredged or fill material into waters of the United States, those direct emissions will generally not exceed de minimus levels of a criteria pollutant or its precursors and are exempted by 40 CFR 93.153. Emissions of greenhouse gases that occur from the operation of a land-based renewable energy generation facility, as well as emissions that occur when harvesting plant material for biomass energy production and operating the energy generation facility, are outside the Corps scope of analysis under the National Environmental Policy Act, because the Corps does not have the legal authority to control such emissions. The 404(b)(1) Guidelines do not include any requirements to assess effects of proposed discharges of dredged or fill material into waters of the United States on greenhouse gas emissions. Land clearing that may be conducted for the harvesting, planting, and replanting of trees that provide fuel for biomass energy facilities is not authorized by this NWP, and if such activities involve discharges of dredged or fill material into waters of the United States, a separate Department of the Army permit is required.
If the construction, expansion, or modification of a land-based renewable energy facility involves discharges of dredged or fill material into waters of the United States, and that activity may affect an endangered or threatened species, or is located in designated critical habitat, Endangered Species Act Section 7 consultation is required, and the activity cannot proceed until section 7 consultation is completed. We have added general condition 19, migratory birds and bald and golden eagles, to clarify that if an activity regulated by the Corps will result in the “take” of a migratory bird or a Bald or Golden Eagle, and a “take” permit is required from the U.S. Fish and Wildlife Service, it is the responsibility of the permittee to apply for, and obtain, the appropriate “take” permits from the U.S. Fish and Wildlife Service. The draft Land-based Wind Turbine Guidelines developed by the U.S. Fish and Wildlife Service are voluntary guidelines that project proponents may incorporate into their land-based wind energy projects. The Corps does not have the authority to condition this NWP to incorporate the recommendations provided in those guidelines. Water dependency is not a requirement for authorization by general permit, including nationwide permits. The water dependency test in the 404(b)(1) Guidelines guides the alternatives analysis for activities that require individual permits under Section 404 of the Clean Water Act.
The activities authorized by this NWP (i.e., discharges of dredged or fill material into waters of the United States for the construction, expansion, or modification of land-based renewable energy facilities) are similar in nature. The Corps interprets the “similar in nature” requirement in Section 404(e) of the Clean Water Act broadly, to cover general categories of activities. The discharges of dredged or fill material authorized by this NWP will have similar effects on the aquatic environment, by replacing waters of the United States with dry land, or altering their characteristics, when renewable energy facilities are constructed, modified, or expanded.
Two commenters expressed concern that if NWP A is issued, all land-based renewable energy facilities will require pre-construction notification because they could only be authorized by this NWP. Several commenters stated that NWP A should not be issued because all types of land-based renewable energy facilities can be authorized by existing NWPs, such as NWPs 12, 14, 18, 25, and 39, and it is not necessary to issue a new NWP that requires pre-construction notification for all activities. They also said that the issuance of NWP A would contradict the Corps stated goals of reducing administrative burdens on the regulated public, and utilizing its resources to focus on those projects that could be more environmentally damaging. One commenter stated that the pre-construction notification requirement would cause an unnecessary burden on project proponents, especially the requirement to provide a delineation of waters of the United States in the project area.
We are retaining the requirement that all activities authorized by this NWP require pre-construction notification, so that district engineers can evaluate these activities and add activity-specific conditions, if necessary, to ensure that they result in minimal individual and cumulative adverse effects on the aquatic environment. Other NWPs may be used to authorize discharges of dredged or fill material into waters of the United States for activities that may be associated with land-based renewable energy facilities. We do not intend issuance of this NWP to restrict currently available options for use of other NWPs to authorize any such discharges. For example, NWP 12 may be used to authorize discharges of dredged or fill material associated with the construction, maintenance, repair, or removal of utility lines for land-based renewable energy facilities. Likewise, NWP 14 may be used to authorize road crossings in waters of the United States within a land-based renewable energy facility. Project proponents may specify which NWP they wish to use to provide the requisite Department of the Army authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. If the proposed activity qualifies for authorization under that particular NWP, the district engineer will issue a verification letter. This NWP fulfills the objectives of the NWP program, since many land-based renewable energy projects require discharges of dredge or fill material into waters of the United States that would not qualify for NWPs 12 or 14, or other NWPs that do not require pre-construction notification.
One commenter suggested changing the pre-construction notification
We do not agree that the pre-construction notification threshold should be increased to
Two commenters agreed that NWP A is needed but said that many land-based renewable energy projects would not qualify because the losses of waters of the United States frequently exceed the acreage or linear foot limits. One commenter suggested increasing the acreage limit to one acre and the linear foot limit to 500 linear feet of stream bed, and allow the district engineer to waive the 500 linear foot limit if he or she determines that the activity will result in minimal adverse environmental effects. One commenter stated that NWP A should not allow waivers for stream bed losses in excess of 300 linear feet.
We believe that there will be a sufficient number of land-based renewable energy generation facilities authorized by this NWP to warrant its issuance. As with all general permits, this NWP will also provide an incentive for project proponents to reduce losses of waters of the United States to qualify for NWP authorization, instead of having to apply for individual permit authorization, if there are no regional general permits available to authorize these activities. The
Several commenters said that all pre-construction notifications should be coordinated with other Federal and state agencies. One commenter stated that agency coordination should be required whenever a request for a waiver of the 300 linear foot limit is being evaluated by the district engineer. One commenter stated that this NWP should not include the waiver provision because of potential impacts to cultural resources and historic properties.
We do not believe it is necessary to coordinate all activities authorized by this NWP with Federal and state agencies. District engineers will carefully evaluate these pre-construction notifications and determine whether the proposed activities qualify for NWP authorization. Agency coordination is required for pre-construction notifications for proposed activities resulting in the loss of intermittent or ephemeral stream bed in excess of 300 linear feet. Activities authorized by this NWP must also comply with general condition 20, historic properties and district engineers will conduct section 106 consultation if a proposed activity may have the potential to cause effects to any historic properties listed, or eligible for listing, on the National Register of Historic Places.
Several commenters requested clarification on whether land-based renewable energy facilities would be considered as single and complete linear projects or single and complete non-linear projects. Several commenters asked if the linear features of these facilities, such as roads, utilities, and transmission lines, could be categorized as linear projects, while the construction of other components of the project, such as parking lots and buildings, would be considered as non-linear projects. A few commenters said terms and conditions should be added to the NWP to specify that the definition of single and complete linear project would always be used for linear components of the overall facility. One commenter stated that the activities authorized by this NWP should be considered one single and complete project because all renewable energy devices and their attendant features, including both linear and non-linear components, are required for the facility to have independent utility.
We have added Note 1 to this NWP to clarify that the NWP authorizes discharges of dredged or fill material into waters of the United States for the construction, expansion, or modification of a land-based renewable energy generation facility, including attendant features within that facility, and that utility lines that are used to transfer energy from the renewable energy generation facility to a distribution system, regional grid, or other facility are generally considered to
One commenter asked how the permit area would be determined for land-based renewable energy facilities. Specifically, the commenter asked whether the permit area would be the entire area bound by the perimeter of the facility, or just those areas within the facility where there are discharges of fill material into waters of the United States.
Identifying the permit area for the purposes of compliance with general condition 20, historic properties, is accomplished by applying the criteria in Appendix C to 33 CFR part 325, specifically paragraph 1(g), as well as the interim guidance issued on April 25, 2005 (paragraph 6(d)). The permit area will be determined by district engineers after considering the project-specific circumstances.
Several commenters stated that this NWP should not authorize activities in certain geographic areas, such as the Great Lakes. One commenter said that approval may be required for facilities that would impact state-owned waters or submerged lands.
Division engineers have the authority to suspend or revoke this NWP in specific waters or geographic areas. Division engineers may also add regional conditions to restrict or prohibit its use in certain waters or regions. In response to a pre-construction notification, district engineers may add activity-specific conditions to the NWP authorization to ensure that the activity results in minimal adverse effects on the aquatic environment. Project proponents must obtain all applicable Federal, state, or local authorizations, such as state permits to authorize activities on state-owned waters or submerged lands.
One commenter said that this NWP could be used to authorize activities associated with wind energy generating structures, solar towers, or overhead transmission lines, which have the potential to interfere with Department of Defense's long range surveillance, homeland defense, testing, and training missions. This commenter requested that copies of pre-construction notifications and NWP verification letters for these activities be provided to the Department of Defense Siting Clearinghouse, so that the Department of Defense could have an opportunity to coordinate with the project proponent to ensure that long range surveillance, homeland defense, testing, and training missions are not adversely affected by these activities.
We have added Note 2 to this NWP to require district engineers to send pre-construction notifications and NWP verification letters to the Department of Defense Siting Clearinghouse if this NWP is proposed to be used to authorize the construction of wind energy generating structures, solar towers, or overhead transmission lines. The Department of Defense Siting Clearinghouse is responsible for coordinating with the project proponent and resolving any potential effects on Department of Defense long range surveillance, homeland defense, testing, and training missions.
Proposed NWP A is issued as NWP 51, with the changes discussed above.
NWP 52.
Several commenters supported the issuance of this NWP. Some of these commenters provided suggestions to improve the NWP. Two commenters said the acreage limit should be increased from
We are issuing this NWP with the
Several commenters also stated that the limit of 10 generation units should either be eliminated or further defined. Several commenters said the 10 generation unit limit should be removed to allow projects that employ different technologies to be authorized by this NWP. Several commenters said that the total number of generation units should be defined as the total number of units per each single and complete project.
We believe the 10-unit limit is necessary to ensure that these pilot projects are small in scope, to ensure they would not have significant adverse environmental effects. The 10-unit limit, as well as the
Numerous commenters objected to the issuance of this NWP. Most of these commenters said that these activities will result in more than minimal individual and cumulative adverse effects on the aquatic environment. Several commenters said that there is not sufficient understanding of the environmental effects of these activities to warrant issuance of an NWP. Some commenters stated that these activities should be authorized by individual permits, with a full public notice and comment process and National Environmental Policy Act documentation. A few commenters said this NWP should not be used to authorize activities in the Great Lakes.
The terms and conditions of this NWP, including the
Several commenters requested a definition of the term “pilot project.” Some of these commenters said that this term could be interpreted broadly, in part because much of the technology used for water-based renewable energy generation facilities is in the early stages of development. In contrast, another commenter stated that not defining the term “pilot project” would restrict the applicability of this NWP. One commenter suggested that this NWP not be limited to pilot projects. One commenter recommended limiting pilot projects to those that will be used as demonstration projects or test projects to determine the practicability of water-based renewable energy generation at a particular site. One commenter said that this NWP should not be limited to small offshore wind energy pilot projects, and that this NWP should authorize offshore wind energy projects of any duration to encourage the development of renewable energy technologies.
We have added a provision to this NWP that defines the term “pilot project.” The definition is similar to how the Federal Energy Regulatory Commission describes hydrokinetic pilot projects in their April 2008 white paper on licensing hydrokinetic pilot projects. The definition in the NWP focuses on the experimental nature of pilot projects, and their use in collecting data on the performance of the device in generating energy for other uses and the effects of the devices on the environment, including the aquatic environment. Due to the recent development of this technology, we believe it is necessary to limit these water-based renewable energy generation facilities to pilot projects, to provide more information on potential adverse effects to the aquatic environment. In a future reissuance of the NWPs, we may consider expanding the scope of this NWP to authorize other small-scale water-based renewable energy generation facilities. A water-based renewable energy generation facility that is not a pilot project and does not qualify for an applicable regional general permit is more appropriately evaluated through the standard permit process, including a full public interest review.
One commenter stated that even pilot projects may result in more than minimal adverse effects on the aquatic environment because of indirect effects caused by blade strikes on birds and potential obstructions to navigation when these pilot projects are sited in navigable rivers. One commenter said the 10 generation unit limit may not be effective in ensuring that single and complete projects do not cause more than minimal adverse environmental effects on a cumulative basis or comply with monitoring requirements.
District engineers will review pre-construction notifications and determine whether the proposed activity complies with all terms and conditions of the NWP and may add activity-specific conditions, such as authorizing less than 10 units, to minimize adverse effects to navigation, the aquatic environment, and other public interest review factors such as impacts to fish and wildlife values. Indirect effects caused by the operation of these pilot projects, such as wind turbine blade strikes on birds, should be addressed through compliance with the appropriate Federal laws, such as the Endangered Species Act, Migratory Bird Treaty Act, or Bald and Golden Eagle Protection Act. Compliance with the Endangered Species Act is addressed through general condition 18. As stated in general condition 19, project proponents are responsible for obtaining any take permits that may be required under the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. The project proponent should contact the local office of the U.S. Fish and Wildlife Service to determine whether a take permit is required for that project. Impacts to fish or other aquatic organisms caused by hydrokinetic energy units should be considered by district engineers when reviewing pre-construction notifications for activities authorized by this NWP. District engineers may also suspend or revoke NWP authorizations if they determine those activities are causing more than minimal adverse environmental effects to the aquatic environment. Division engineers may impose regional conditions on this NWP to reduce the number of units authorized by this NWP, or restrict or prohibit its use in specific waters or other geographic areas.
Several commenters requested clarification of applicability of the 300 linear foot stream limit to the ocean floor or the Great Lakes because those waters are not characterized as streams. A few commenters suggested that the 300 linear foot limit does not apply to water-based renewable energy generation pilot projects in the ocean or large rivers, since activities in those waters does not result in a loss of stream bed.
We agree that the 300 linear foot limit does not apply to the construction, expansion, modification, or removal of water-based wind or hydrokinetic renewable energy devices in the ocean, Great Lakes, or large navigable rivers, since those activities do not result in loss of stream bed. The 300 linear foot limit also does not apply to the installation or removal of transmission lines on the ocean floor, the bottom of the Great Lakes, or the substrate of large navigable rivers. Transmission lines placed on the bottom of navigable waters are generally considered to be structures, not fill. District engineers will evaluate the techniques used to place transmission lines on the bottom of navigable waters and determine whether there is a discharge of dredged or fill material, and whether that discharge of dredged or fill results in a loss of waters of the United States subject to the 300 linear foot limit. The installation of transmission lines in these navigable waters in trenches that are backfilled constitutes a temporary impact and is not applied to the 300 linear foot limit for the loss of stream bed. The 300 linear foot limit for the loss of stream bed applies primarily to the construction of land-based attendant features, such as distribution facilities, control facilities, roads, parking lots, and stormwater management facilities. We have added a provision to this NWP to clarify that the placement of a transmission line on the bed of a navigable water of the United States from the renewable energy generation unit(s) to a land-based collection facility is considered a structure regulated under Section 10 of the Rivers and Harbors Act of 1899, and not a discharge of fill material under Section 404 of the Clean Water Act. The placement of the transmission line on the bed of the navigable water is not considered a loss of waters of the United States that applies towards the
Several commenters requested the addition of more categories of sensitive habitat where this NWP could not be used to authorize structures or work in navigable waters of the United States or discharges of dredged or fill material into waters of the United States for water-based renewable energy generation pilot projects. Two commenters suggested adding coral reefs to the list of prohibited areas. Another commenter suggested adding National wildlife refuges, state parks, state wildlife management areas, designated significant coastal areas, critical habitats for Federally-listed endangered and threatened species, important bird areas, or any sensitive environmental area. One commenter recommended adding eelgrass beds, seagrass beds, kelp beds, macro-algae beds, vegetated shallows, and shellfish beds to the list of excluded areas.
The proposed NWP B stated that it did not authorize activities in coral reefs. This NWP is also subject to general condition 22, designated critical resource waters, which prohibits using this NWP to authorize discharges of dredged or fill material into critical resource waters and their adjacent wetlands. Critical resource waters include marine sanctuaries and marine monuments managed by the National Oceanic and Atmospheric Administration, and National Estuarine Research Reserves. District engineers may designate additional critical resource waters, after notice and an opportunity for public comment. Division engineers may also impose regional conditions to restrict or prohibit the use of this NWP in specific categories of waters or in certain geographic areas. In response to a pre-construction notification, district engineers may exercise discretionary authority and require an individual permit if the proposed activity will result in more than minimal adverse effects on the aquatic environment.
One commenter said that district engineers should not be authorized to waive the 300 linear foot limit for the loss of intermittent and ephemeral stream bed. One commenter suggested that all pre-construction notifications requesting a waiver of the 300 linear foot limit should be coordinated with the Federal and state resource agencies.
For those losses of more than 300 linear feet of intermittent and ephemeral stream bed that result in minimal adverse effects on the aquatic environment, it is appropriate for district engineers to have the authority to waive the 300 linear foot limit. This approach is consistent with the statutory requirement that activities authorized by general permits, including NWPs, result in minimal individual and cumulative adverse environmental effects. Agency coordination is required for proposed losses of greater than 300 linear feet of intermittent and ephemeral stream bed.
Two commenters recommended adding a provision to this NWP that requires the removal of structures associated with any activity authorized under this NWP, once the pilot project has been completed. One commenter suggested adding more examples of attendant features that may be authorized by this NWP, such as control rooms, trailers, vaults and sheds since these are common features of land-based distribution facilities.
We have added a paragraph to this NWP that requires the permittee to remove the generation units, transmission lines, and other structures or fills associated with the pilot project once the pilot project is completed, unless they are authorized by a separate Department of the Army authorization, such as another NWP, an individual permit, or a regional general permit. Pilot units may be integrated into a permanent water-based renewable energy generation facility after the experimental phase has been completed, and the permanent facility has been authorized by any required Department of the Army permits. We have also added “removal” to the first sentence of this NWP, to clarify that the NWP also authorizes the removal of structures and fills associated with water-based renewable energy generation pilot projects, if, for example, the removal of structures or fills from navigable waters of the United States would require authorization under Section 10 of the Rivers and Harbors Act of 1899. Furthermore, we added a clarification of “completion of the pilot project,” which will be identified as the date of expiration of the FERC (Federal Energy Regulatory Commission) license, or the expiration date of the NWP authorization if no FERC license is issued. If the project proponent wants to continue operating the pilot project after the expiration of the FERC license, he or she should apply for another form of DA permit, such as an individual permit. If the pilot project was only authorized by NWP 52, it may be verified under a reissued NWP 52, if NWP 52 is reissued in 2017. Reauthorization under a reissued NWP 52 may require submission of a new pre-construction notification, to ensure that the pilot project still meets the terms and conditions of the reissued NWP 52. We have added “control facilities” to the list of examples of attendant features.
One commenter recommended adding a note to the NWP to require a mutual agreement between the Corps, the United States Coast Guard, and a prospective permittee to ensure
We do not agree that it is necessary to require the execution of agreements between the Corps, United States Coast Guard, and the prospective permittee to ensure navigation safety. District engineers will review pre-construction notifications and exercise discretionary authority if the proposed activity will have more than minimal adverse effects on navigation. The permittee must comply with applicable United States Coast Guard requirements to mark or light structures in navigable waters. It is the permittee's responsibility to obtain any other Federal, state, or local authorizations that may be required for the water-based renewable energy generation pilot project. The permittee may voluntarily incorporate into his or her project the Department of the Interior's recommended practices for protecting birds from electrocution. If the proposed NWP activity may affect endangered or threatened bird species, Endangered Species Act Section 7 consultation will be conducted, which may also address potential effects to those species caused by electrocution. In accordance with general condition 19, migratory birds and bald and golden eagles, it is the permittee's responsibility to obtain any “take” permits that may be required under the U.S. Fish and Wildlife Service's regulations governing compliance with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.
One commenter said that this NWP could be used to authorize activities associated with wind energy generating structures, solar towers, or overhead transmission lines, which have the potential to interfere with Department of Defense's long range surveillance, homeland defense, testing, and training missions. This commenter requested that copies of pre-construction notifications and NWP verification letters for these activities be provided to the Department of Defense Siting Clearinghouse, so that the Department of Defense could have an opportunity to coordinate with the project proponent to ensure that long range surveillance, homeland defense, testing, and training missions are not adversely affected by these activities.
We have added Note 4 to this NWP to require district engineers to send pre-construction notifications and NWP verification letters to the Department of Defense Siting Clearinghouse if this NWP is proposed to be used to authorize the construction of wind energy generating structures, solar towers, or overhead transmission lines. The Department of Defense Siting Clearinghouse is responsible for coordinating with the project proponent and resolving any potential effects on Department of Defense long range surveillance, homeland defense, testing, and training missions.
Proposed NWP B is issued as NWP 52, with the changes discussed above.
One commenter suggested reordering the general conditions to better aggregate concepts based on importance to permittees and the resources potentially affected. One commenter recommended placing general conditions 14 and 20 together because they both address cultural resources. One commenter said that proposed general condition 30, pre-construction notification, should become general condition 1 because of its importance for potential users of the NWPs, in terms of the pre-construction notification requirements.
With one exception, we have retained the order of the general conditions because we believe they are in a logical order. We have moved proposed general condition 14, discovery of previously unknown remains and artifacts, to become general condition 21 so that it follows general condition 20, historic properties. We have retained the pre-construction notification general condition in its place as the last general condition (as general condition 31), because the text of the NWPs state which activities require pre-construction notification.
Two commenters suggested new general conditions to minimize construction impacts. One suggestion was to require flagging construction limits to protect nearby aquatic areas and the other recommended a general condition to address temporary crossings or structures.
Requirements to flag construction limits are more appropriately addressed through activity-specific conditions added to an NWP authorization, when the district engineer determines such flagging is necessary to ensure the authorized activity results in minimal adverse effects on the aquatic environment. General condition 13, removal of temporary fills, and general condition 9, management of water flows, adequately address the concerns about temporary crossings and structures.
One commenter said the phrase “as appropriate” should be deleted from the Note at the beginning of Section C, Nationwide Permit General Conditions.
We have changed this phrase to “as applicable” to clarify that a permittee is responsible for complying with general conditions that are pertinent to a particular NWP activity.
GC 1.
GC 2.
Two commenters supported the proposed changes to this general condition. One commenter said that all crossings should be designed by using a stream simulation technique. Another commenter stated that requirements for bottomless culverts should only apply to new activities. Many commenters said that culverts that are installed with their bottoms below the grade of the stream bed can be as effective as bottomless culverts in improving conditions for aquatic life movement while still being cost effective and providing the intended function of allowing movement of aquatic organisms.
Many commenters objected to the proposed changes to this general condition, and most of these commenters requested that the reference to the use of bottomless culverts be removed, stating that in many cases that bottomless culverts are not practicable or cannot be used in many locations. A large number of commenters expressed concern that requiring the use of bottomless culverts would significantly increase costs and would not be feasible. Several commenters disagreed that the use of bottomless or buried culverts reduces overall impacts to streams, and some commenters said that use of bottomless culverts can cause adverse effects to streams by increasing erosion and head cuts. One commenter recommended promoting the use of alternative measures or techniques to maintain aquatic life movements. Some commenters said that the proposed changes to this general condition would
After evaluating the large number of comments received in response to the proposed changes to this general condition, we have generally reverted back to the text that was in the 2007 general condition, with a few minor changes. We have modified the last sentence of the 2007 general condition to make it clear that the general condition applies to both temporary and permanent crossings, and that those crossings should be designed and constructed to maintain low flows to sustain the movement of indigenous aquatic species. We have not adopted the provision that would have required bottomless culverts to be used where practicable. In addition, we have not incorporated the sentence that explains some of the circumstances where bottomless culverts may not be practicable. In response to a pre-construction notification, the district engineer may evaluate the proposed crossing to determine whether it complies with this general condition. The district engineer may add conditions to the NWP authorization to require measures to sustain aquatic life movements, including bottomless culverts, if appropriate.
Many commenters said that bottomless culverts require complex designs that require pile supported footings and many local and county governments do not have the resources available to design, construct, and maintain bottomless culverts in a manner that ensures roadway safety. Many commenters stated that bottomless culverts need more long-term maintenance and will increase costs and delays. One commenter noted that construction techniques required to install bottomless culverts may result in unsuitable conditions for aquatic life movement. Several commenters expressed concern that footings may deteriorate and undermine the integrity of the structure and increase the possibility of collapse during high flow conditions. Several commenters said bottomless culverts cannot be installed in areas with highly erodible or weak soils. One commenter asserted that bottomless culverts generally cannot support load conditions created by rail traffic.
Because of the various factors that determine appropriate culvert designs for a particular waterbody, we are not adopting the proposed language concerning bottomless culverts. The general condition requires permanent and temporary crossings to be suitably culverted, bridged, or otherwise designed and constructed to fulfill the objective of the general condition, which is to sustain the movements of aquatic species indigenous to the waterbody, both during and after completion of the activity.
Several commenters stated that requiring bottomless culverts or bottoms of culverts to be below the grade of the stream bed restricts design flexibility that reflects site specific conditions. One commenter said it is not practicable to install the bottoms of culverts below grade in all circumstances. One commenter said that the appropriate structure to allow aquatic life movements to continue should be determined by considering the land cover within the watershed, the variability of stream flow, and the presence or absence of aquatic life. One commenter indicated that it is not possible to bury pre-cast culverts because the bed material would be difficult to place. This commenter also said that below grade structures collect more debris and increase erosion on the downstream side of the culvert. This commenter expressed concern that culvert bottoms installed below grade would cause water to pool and provide habitat for pests such as mosquitoes. One commenter said that below grade culverts direct high velocity flows and create scour holes at the outlet and destabilize the banks. Another commenter stated that sinking a culvert below grade drains land used for row crops and accumulates silt that blocks aquatic life movements.
We have also removed the provision requiring the bottoms of culverts to be installed below the grade of the stream bed unless the stream bed consists of bedrock or boulders. The modified general condition merely states that permanent and temporary crossings of waterbodies must be suitably culverted, bridged, or otherwise designed or constructed, to provide flexibility for using a crossing that is appropriate for the site conditions, while sustaining the movements of aquatic species indigenous to the waterbody.
Many commenters said that the use of bottomless culverts should be limited to perennial streams. A number of commenters stated that many ephemeral and intermittent streams are not capable of supporting aquatic life or do not have sufficient aquatic life movement to justify the expense and technical design requirements for bottomless culverts. Several commenters said this general condition should not apply to ephemeral streams. One commenter stated that bottomless culverts should only be used in waters that support special status aquatic life species. One commenter said the bottomless culvert requirement should be limited to streams and not required for ditches or other waters. Another commenter expressed concern that installing the bottom of the culvert below grade will tend to dewater wetlands.
The general condition has been reworded to provide flexibility to determine appropriate culvert design based on site-specific characteristics. Crossings of perennial, intermittent, and ephemeral streams must be appropriately designed and constructed to sustain the movement of indigenous aquatic species.
Many commenters requested a definition of the term “practicable” as used in the context of the proposed general condition. One commenter said that regional variability should be considered when determining if it is practicable to use a bottomless culvert. Several commenters asked for more examples of when it would be impractical to use a bottomless culvert. One commenter requested clarification as to who would determine if use of a bottomless culvert is practicable. Many commenters said cost should be a primary factor used to determine if it is practicable to use a bottomless culvert. One commenter stated that there would be additional paperwork requirements necessary to evaluate the practicability of using bottomless culverts.
The proposed provision requiring the use of bottomless culverts where practicable has not been adopted into the final general condition. The term “practicable” is defined in the 404(b)(1) Guidelines at 40 CFR 230.3(q) as “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” However, it is no longer used in this general condition.
One commenter said the general condition should include criteria to be used to determine whether there is a substantial disruption to aquatic life movement. Two commenters asked what threshold would be used to identify a substantial disruption. Another commenter stated that the general condition should list the species that would be covered. One commenter said this general condition would not sustain aquatic life movements during future high flows that are expected as a result of global climate change.
Determining compliance with this general condition is at the discretion of the district engineer. It is not possible to define, on a national basis, what constitutes a substantial disruption of the necessary life cycle movements of aquatic species indigenous to the waterbody. It is not appropriate to
One commenter stated that additional requirements for proper culvert sizing should be added to this general condition to ensure fish passage and reduce failure. This commenter said that natural bankfull capacity of the stream channel should be maintained. One commenter also recommended that culverts have a width of 1.2 times the bankfull width of the stream, and be embedded a minimum of two feet to maintain connected habitat and a stable stream bed. Another commenter stated that stream crossings should maintain natural flows, substrate, and stream grade from upstream to downstream of the culvert. This commenter suggested adding a provision that states that bridges or bottomless culverts are to be used when practicable.
The proper sizing of culverts is more appropriately addressed through an evaluation of the site for the proposed NWP activity and the surrounding area. The general condition focuses on maintaining the necessary life cycle movements of aquatic species indigenous to the waterbody, not the geomorphic characteristics of the waterbody. Maintenance of water flows, including the proper width and height of culverts, bridges, and other crossings, is more appropriately addressed by general condition 9, management of water flows. We have modified this general condition to require permanent and temporary crossings to be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of indigenous aquatic species.
Two commenters requested that, if the proposed changes to this general condition are adopted, sufficient time should be provided for state, county, and local governments to update their design requirements to include bottomless culverts. One commenter stated it would take approximately two years to develop standards for bottomless and buried culvert installation. Another commenter expressed concern about the expense and time required to revise the plans and specifications for projects nearly ready for construction.
We do not believe it is necessary to provide a grandfathering provision for the implementation of this general condition. The general condition provides substantial flexibility to design permanent and temporary crossings, and uses a results-driven approach to help ensure that NWP activities have only minimal adverse effects on the movement of indigenous species of aquatic organisms. Existing construction and design standards can be used to satisfy the objective of this general condition.
The general condition is adopted with the modifications discussed above.
GC 3.
We are retaining this general condition because spawning areas are important components of the aquatic environment and should be addressed at the national level to ensure that NWP activities result in minimal adverse effects on the aquatic environment. Division engineers may impose regional conditions on this NWP to establish buffers to protect spawning areas for particular species. Activities authorized by NWPs must also comply with general condition 18, endangered species. The intent of this general condition is to minimize adverse effects to spawning areas caused by NWP activities, and it is not feasible to completely prohibit activities that may affect spawning areas. In areas where there are documented concerns for fish forage habitat or submerged aquatic vegetation, division engineers can add regional conditions to the NWPs to restrict or prohibit activities in those areas.
This general condition is adopted as proposed.
GC 4.
This general condition addresses a national concern for breeding areas for migratory birds, and establishes a consistent, national requirement for regulated activities to avoid these areas to the maximum extent practicable. Nationwide permit activities that may affect migratory birds that are listed as endangered or threatened under the Endangered Species Act, or that may affect designated critical habitat, must comply with general condition 18, endangered species.
This general condition is adopted as proposed.
GC 5.
The identification of concentrated shellfish populations for the purposes of determining compliance with this general condition is more appropriately conducted by district engineers using local criteria and methods. Shellfish beds established through habitat restoration projects may be used for growing shellfish for consumption and other uses, and the decision on whether harvesting in those areas should be allowed is at the discretion of Federal, state, and/or local authorities. We have added shellfish seeding or habitat restoration activities authorized by NWP 27 to the list of NWP activities that may occur in areas of concentrated shellfish populations, since NWP 27 activities may improve habitat quality and further increase shellfish populations.
This general condition is adopted with the modification discussed above.
GC 6.
We do not believe it is necessary to add tires or plastics to the list of examples of unsuitable materials. Prohibiting the use of unsuitable materials is more effective and enforceable than stating that only environmental suitable or stable materials may be used. It is impractical, for the purposes of the NWP program, to establish what would constitute an environmentally suitable material since we are not aware of any Federal standards that could be applied, other than those covered under Section 307 of the Clean Water Act. A similar problem exists for identifying stable materials, because the timeframe that might be used to determine whether a particular material is “stable” would vary by the material. The district engineer will make a case-by-case determination of what constitutes unsuitable material. The current text of the general condition prohibits the use of contaminated sediment as fill material, if it contains toxic pollutants in toxic amounts. The general condition also prohibits the use of materials that contain heavy metals, pesticides, and polycyclic aromatic hydrocarbons in toxic amounts, in accordance with Section 307 of the Clean Water Act.
This general condition is adopted as proposed.
GC 7.
GC 8.
Specific measures for reducing impacts caused by accelerated water flows or restricted water flows have to be determined on a case-by-case basis after considering the environmental characteristics of the site of the NWP activity. It would not be appropriate to establish such measures at a national level. An activity-specific evaluation would also have to be done to determine whether the minimization of these adverse effects has been accomplished to the maximum extent practicable. District engineers will use their discretion to determine compliance with this general condition. The term “practicable” is defined in the 404(b)(1) Guidelines at 40 CFR 230.3(q) as “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” We do not agree that all impoundments should require individual permits; impoundments may be authorized by general permits, including NWPs, as long as they have minimal individual and cumulative adverse effects on the aquatic environment and comply with the applicable terms and conditions, including any general conditions, regional conditions, and activity-specific conditions, of an NWP authorization.
This general condition is adopted as proposed.
GC 9.
It would be inappropriate to attempt to define the term “expected high flows” since it would depend on the environmental setting of the NWP activity. To comply with this general condition, the activity should not be substantially damaged by an expected high flow. Activities in stream channels located in intertidal areas are subject to this general condition and if a proposed NWP activity involves the alteration of intertidal stream channels and requires pre-construction notification, the district engineer will evaluate the proposed activity and determine whether it will result in minimal adverse effects on the aquatic environment. Bank stabilization activities should be designed and constructed to withstand expected high flows. Adverse effects to littoral or fluvial processes, or adverse effects caused by deflections of wave energy, should be considered by district engineers when evaluating pre-construction notifications for proposed bank stabilization activities.
This general condition is adopted without change.
GC 10.
We acknowledge that floodplains provide important ecological functions and services, but it must also be understood that most areas within 100-year floodplains are not subject to Clean Water Act jurisdiction, because a large proportion of the area within 100-year floodplains consists of uplands. The Corps regulatory authority in 100-year
This general condition also recognizes that FEMA, in partnership with state and local governments, is the more appropriate authority for floodplain management. It is not the responsibility of the Corps to ensure that project proponents seek any required authorizations from state or local floodplain managers. Such a requirement would not constitute a condition that could be enforced by the Corps. We are not relying on FEMA-approved state or local floodplain management requirements to protect waters of the United States located in 100-year floodplains. The NWP program utilizes other tools, such as regional conditions, the district engineer's ability to exercise discretionary authority to revoke, suspend, or modify an NWP authorization, and add activity-specific conditions to ensure that activities authorized by the NWP results in minimal individual and cumulative adverse effects on the aquatic environment and other public interest review factors.
Two commenters stated that fills in 100-year floodplains result in more than minimal adverse environmental effects and should not be authorized by NWP. One commenter suggested that the Corps evaluate NWP activities in floodplains and riparian areas in a more holistic manner than it did in previous NWP rulemaking efforts. One commenter said that authorizing discharges of fill material in waters of the United States in floodplains affects the ability to manage floodplains so that there are no adverse impacts. One commenter stated that coordination with the resource agencies should be required to protect habitat and biodiversity in floodplains.
Discharges of dredged or fill material into waters of the United States located in 100-year floodplains often have minimal adverse effects on the aquatic environment, individually and cumulatively. Division engineers can impose regional conditions on one or more NWPs to restrict or prohibit their use in waters of the United States within 100-year floodplains if those NWP activities would result in more that minimal adverse effects on the aquatic environment. In response to a pre-construction notification, district engineers may exercise discretionary authority and require an individual permit if the adverse effects on the aquatic environment would be more than minimal. District engineers may also add activity-specific conditions to an NWP authorization to require measures to minimize adverse effects on the aquatic environment caused by NWP activities. Since the Corps Regulatory Program only regulates discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States, and most areas of 100-year floodplains are not wetlands as defined at 33 CFR 328.3(b) or otherwise waters of the United States under 33 CFR 328.3(a) and associated guidance, the Corps does not have the authority to take a holistic approach to floodplain management. In areas of the country where 100-year floodplains consist mostly of uplands, construction activities in these uplands may have a substantial adverse impact on these 100-year floodplains. We do not agree that agency coordination should be required for fills in 100-year floodplains, because district engineers have the necessary expertise to evaluate pre-construction notifications for potential adverse effects to habitat and biodiversity in these areas.
Two commenters said the general condition should inform permittees of their responsibility to apply for a Conditional Letter of Map Revision from FEMA if they are discharging dredged or fill material into waters of the United States within 100-year floodplains. One commenter recognized that although proposed development projects must comply with all applicable Federal, state, regional and local regulatory requirements, many project proponents do not apply for all required permits. One commenter said that this general condition should be modified to require documentation of compliance with applicable FEMA-approved state or local floodplain management requirements. One commenter stated that FEMA-approved state or local floodplain management requirements do not adequately protect communities and resources from flood risks.
We do not believe it is the Corps responsibility to notify a prospective permittee of his or her responsibility to apply for a Conditional Letter of Map Revision from FEMA if the overall project would modify the existing regulatory floodway, the effective base flood elevations, or a special flood hazard area. The discharge of dredged or fill material authorized by NWP is likely to be only a small proportion of the overall construction project within the 100-year floodplain. Section E, Further Information, states that obtaining an NWP authorization does not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law. Building permits to authorize the construction of the overall project are the responsibility of the state or local government, and should be based on compliance with the applicable FEMA-approved state or local floodplain management requirements. It is not the Corps responsibility to ensure that project proponents have complied with the applicable FEMA-approved state or local floodplain management requirements; the state or local governments responsible for floodplain management should enforce the requirements they established to qualify the community for the National Flood Insurance Program. If the floodplain management requirements developed by state or local governments are not adequately protecting communities from flood risks, then the agency that approved those requirements is the appropriate entity to reexamine those requirements.
One commenter requested that the Corps report the extent to which NWPs are being used in floodplains, particularly in areas that have experienced repeated flood damages. Two commenters stated that this general condition ignores the Corps own public interest review processes and does not comply with Executive Order 11988.
The Corps does not track the number of NWP activities that have occurred in floodplains, since our statutory authorities are focused on activities involving discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States. As stated above, many areas of 100-year floodplains are uplands and not waters of the United States. In addition, there is no consistent national coverage in floodplain maps, since such maps are
Two commenters suggested reinstating the provisions in the 2002 NWPs that prohibited discharges of dredged or fill material into waters of the United States within mapped 100-year floodplains that would result in above-grade fills for residential, commercial and institutional developments, agriculture activities, recreational facilities, stormwater management facilities, and mining activities.
We do not agree that the approach taken in the 2002 NWPs for fills in 100-year floodplains should be reinstated. There are sufficient safeguards in the NWPs, including the terms and conditions, pre-construction notification requirements, and the authority for district engineers to exercise discretionary authority and either require individual permits or add conditions to NWP authorizations, to ensure that NWP activities have minimal adverse effects on the aquatic environment, including public interest review factors such as floodplain values and flood hazards.
Three commenters said that using NWPs to authorize discharges of dredged of fill material into waters of the United States will result in increased flood damages in coastal and riparian areas by reducing the amount of aquatic area available to absorb future floods that will likely be larger and more frequent due to climate change. They suggested increasing the application fee for NWPs to cover the estimated cost of permit processing and to offset future economic impacts of authorizing floodplain development.
The flood storage capacity of a coastal or inland floodplain is dependent primarily on its topographic characteristics, including the amount of land area available for storing flood waters. Uplands also provide important ecological services such as flood storage. Flood damage reduction is more effectively accomplished through land use planning and zoning, which as discussed above, is primarily the responsibility of state, local, and tribal governments. Charging application fees for NWP pre-construction notifications or verification requests is not being considered at this time.
This general condition is adopted as proposed.
GC 11.
The intent of this general condition is to ensure that heavy equipment used in special aquatic sites such as wetlands and mudflats does not cause more than minimal disturbances to their soils. The substrate of stream beds is generally not considered to be soil, and other general conditions such as general condition 12, soil and sediment controls, are more appropriate to control the movement and disturbance of stream bed sediments. District engineers may also add activity-specific conditions to NWP authorizations, such as requirements to use best management practices, to minimize disturbances to stream beds.
This general condition is adopted as proposed.
GC 12.
Specific best management practices and other measures to protect downstream water quality are more appropriately addressed by considering the activity-specific environmental setting and adopting practices and measures that will control soil erosion and sediment loads on the site of the authorized activity. District engineers may add conditions to the NWP authorizations to require permittees to use specific best management practices or other techniques to minimize soil erosion and reduce transport of sediment to waters and wetlands. We do not believe it is necessary to modify this general condition to address sediment movement that may occur during shellfish harvesting activities, because such movements are usually minor and temporary and have minimal adverse effects on the aquatic environment. The restoration of areas where temporary fills have been placed, including revegetating those areas, is more appropriately addressed by general condition 13, removal of temporary fills.
This general condition is adopted without change.
GC 13.
It would be inappropriate to require that temporary fills be removed only during periods of low-flow or no-flow because it is not always practicable to wait until water flows are low or absent. In addition, more adverse effects to the aquatic environment may occur if the permittee is required to wait until low flow or no flow conditions exist. It is usually best to remove temporary fills as soon as possible to minimize sediment loads to downstream waters or to nearby wetlands. However, general condition 12, soil erosion and sediment controls, encourages permittees to work in waters of the United States during periods of low or no flow, when possible.
This general condition is adopted as proposed.
GC 14.
The original intent of this general condition was to ensure that NWP activities are maintained so that they do not endanger public safety. There are other general conditions that more directly address minimization (e.g., general condition 23, mitigation) and water quality (e.g., general condition 12, soil erosion and sediment controls, and general condition 25, water quality). We agree that proper maintenance should also be required to comply with the terms and conditions of an NWP authorization, including any activity-specific conditions added to an NWP authorization by the district engineer. For example, road crossings should be properly maintained to continue complying with general condition 2, aquatic life movements.
This general condition is adopted with the change discussed above.
GC 15.
It has been a long-standing principle in the NWP program that the NWPs authorize single and complete projects. This general condition was added to the NWPs in 2007 to make that clear to users of the NWPs. The general condition is consistent with the NWP regulations at 33 CFR part 330 that were last revised in 1991, especially the definition at 33 CFR 330.2(i). Some of the NWPs issued in the past included terms and conditions stating the NWP authorized single and complete projects. In 2007, we added a general condition to make it clear that all NWPs authorize single and complete projects. As long as any proposed expansions or modifications of a previously authorized NWP activity comply with the terms of the NWPs, they can be authorized by NWP. Expansions or modifications that are not separate single and complete projects from the previously authorized activity have to comply with the terms and conditions of the NWP, including any acreage or linear foot limits that would apply to both the previously authorized activity and the NWP activity included in the expansion or modification. If the expansion or modification is determined by the district engineer to be a separate single and complete project, then that expansion or modification activity may qualify for separate NWP authorization. We do not agree that this general condition results in piecemealing, because the NWP authorization applies to each single and complete project. District engineers will exercise discretionary authority and require other forms of Department of the Army authorization if the use of the NWP to authorize activities in a watershed or other geographic area will result in more than minimal cumulative adverse effects on the aquatic environment.
This general condition is adopted without change.
GC 16.
The general condition is adopted as proposed.
GC 17.
Division engineers may impose regional conditions on the NWPs to restrict or prohibit their use in waters where NWP activities may result in more than minimal adverse effects on the aquatic environment or any other public interest review factor, including fish and wildlife values. We have directed our districts to initiate government-to-government consultation with Tribes to develop and propose regional conditions to protect tribal treaty resources and other resources of importance to Tribes. Under this general condition, no activity may be authorized by NWP if it impairs reserved tribal rights, such as reserved water rights or treaty fishing and hunting rights. The regional conditioning process helps identify those rights on a geographic basis, so that prospective users of the NWPs and Corps districts are aware of those tribal rights. Nationwide permit activities must also comply with Tribal water quality standards, if those activities involve discharges into waters covered by Tribal water quality standards. Activities authorized by NWPs must also comply with general condition 18, endangered species, which will help support the recovery of listed salmon species.
The general condition is adopted as proposed.
GC 18.
Several commenters requested clarification and definitions for the terms “directly” and “indirectly” as used in paragraph (a). In addition, several commenters objected to the addition of “indirectly” into the general condition, because they believe only direct effects should be considered. Several commenters expressed concern that this will result in the Corps evaluating direct and indirect effects that are far from the NWP activity.
To provide clarification on the use of the terms “direct” and “indirect” in the context of general condition 18 and the NWPs in general, we are adding definitions of “direct effects” and “indirect effects.” The definitions were adapted from the definitions provided in the Council of Environmental Quality's National Environmental Policy Act regulations at 40 CFR 1508.8. The definition of “indirect effect” is also generally consistent with the Services' definition within the definition of “effects of the action” at 50 CFR 402.02. The addition of indirect effects to paragraph (a) of the general condition is consistent with the U.S. Fish and Wildlife Service's and National Marine Fisheries Service's Endangered Species
One commenter stated that the district engineer should evaluate the Endangered Species Act (ESA) compliance documentation provided by the Federal agency, and determine whether or not it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary. Two commenters recommended modifying paragraph (b) to clarify that documentation of compliance with the Endangered Species Act provided by a Federal agency will be sufficient and that Corps review and concurrence with that section 7 consultation is not required. One commenter said that paragraph (b) should make it clear that a state agency operating under federal funding can also provide the section 7 compliance documentation obtained by the Federal agency that oversees its activities, and not have to reinitiate consultation. Another commenter stated that when a non-Federal permittee is operating on behalf of a Federal agency, they should follow paragraph (b) of this general condition instead of paragraph (c).
We have added a sentence to paragraph (b) to state that the district engineer will review the other Federal agencies' documentation of compliance with the Endangered Species Act and determine whether that compliance is sufficient for the NWP activity, or whether additional ESA consultation is necessary before the activity can be authorized by NWP. We believe this provision is necessary to address situations where the consultation conducted by the other Federal agency does not adequately cover the direct and indirect effects on listed species or designated critical habitat caused by the NWP activity. For similar reasons, we do not agree that it would be appropriate to modify paragraph (b) to explicitly state that state agencies may rely on ESA compliance documentation obtained by the Federal agency that provides them with funding for an activity. District engineers will generally accept another Federal agency's compliance with section 7, but there may be situations where that agency's section 7 compliance does not adequately address the activities authorized by an NWP and their effects on listed species or designated critical habitat. In those situations, the district engineer may conduct additional section 7 consultation to satisfy the requirements of the Endangered Species Act. If it is not sufficient, then the non-Federal permittee has to follow paragraph (c) of this general condition instead.
One commenter said that this general condition places the responsibility for determining whether a proposed activity may affect listed species in the hands of the permittee. One commenter requested clarification on how the “might be affected” threshold in the first sentence is to be determined by an applicant, because it is unclear and leaves room for broad interpretation. One commenter stated that the word “might” in the second sentence of paragraph (c) should be changed to “may.”
It is the Corps' responsibility to make “may affect” determinations for the purposes of the ESA, and the “might be affected” threshold is intended to be a cautionary threshold to give district engineers the opportunity to evaluate proposed activities and make their effect determinations. Prospective permittees are required to submit pre-construction notifications if the proposed NWP activity has the potential to affect a listed species, is in the vicinity of a listed species, or is located in designated critical habitat. If the Corps determines there will be no effect on listed species or designated critical habitat, then ESA section 7 consultation is not necessary. If the district engineer determines there will be an effect that requires ESA section 7 consultation, then he or she will initiate either formal or informal consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service, as appropriate.
One commenter said paragraph (c) should clearly state that a pre-construction notification is to be submitted if any listed species or designated critical habitat might be affected or is in the vicinity of the project, to ensure that another form of notification is not used. Two commenters stated that 30 days is sufficient for the Corps to notify the applicant of its “may affect” determination and asked why the general condition allows 45 days. Two commenters suggested modifying this general condition to state that if the prospective permittee does not receive a response from the Corps within 45 days, then he or she can assume that the Corps has determined that there is “no effect” on a listed species. In addition, one of these commenters said that for projects that “may affect” a listed species, if the section 7 consultation is not concluded within 135 calendar days of initiation, the activity would be authorized to proceed as if a “no effect” determination has been made.
We have modified the first sentence of paragraph (c) to state that non-Federal permittees must submit a pre-construction notification if the notification requirement is triggered. The 45-day period in paragraph (c) of this general condition is intended to be consistent with the 45-day review period for pre-construction notifications provided in paragraph (a) of general condition 31, pre-construction notification. Under paragraph (a) of general condition 31, a prospective permittee may not begin an NWP activity that requires pre-construction notification until he or she has been notified in writing that the activity may proceed under the NWP, or 45 calendar days have passed since the district engineer received a complete pre-construction notification and no written notice has been provided to the applicant by the district or division engineer. However, if pre-construction notification was required by paragraph (c) of general condition 18, the prospective permittee may not proceed with the NWP activity until notified by the Corps, even if the 45 calendar days have passed, because the Corps regulations at 33 CFR 330.4(f)(2) state that NWP activities cannot commence until the requirements of the ESA have been satisfied and the district engineer has notified the applicant that the activity is authorized by NWP. It may take more than 135 days to complete section 7 consultation, and the NWP activity may not proceed until after consultation has been completed.
Two commenters requested clarification on what work the prospective permittee is prohibited from conducting prior to the Corps making a determination of “no effect” or until section 7 consultation is completed. Two commenters requested clarification of the term “vicinity” in this general condition.
The work covered by the general condition and the Corps regulations at 33 CFR 330.2(f) depends on the scope of analysis for the ESA section 7 consultation. The Corps follows the U.S. Fish and Wildlife Service's and National Marine Fisheries Service's regulations at 50 CFR part 402 and Endangered Species Consultation Handbook to determine the section 7 scope of
One commenter said pre-construction notification should not be required for NWP activities that require section 7 compliance, if they would not otherwise require a pre-construction notification. This commenter stated that the prospective permittee should only be required to submit the appropriate documentation for section 7 consultation. One commenter stated that this general condition should also apply to state-listed threatened and endangered species.
This general condition is consistent with the NWP regulations at 33 CFR 330.4(f)(2), which requires the prospective permittee to notify the district engineer if any Federally-listed endangered or threatened species, or critical habitat, might be affected or is in the vicinity of the project. The prospective permittee must submit the information required for a pre-construction notification, so that the district engineer will have sufficient information to commence evaluation of the proposed activity and its effects on listed species or critical habitat. It would be inappropriate to expand the scope of this general condition to cover state-listed endangered and threatened species, since that is a regional issue that is best addressed through state laws and regulations. If a state is concerned about the potential impacts of one or more NWPs on state-listed species, the state may ask the Corps district to consider adding regional conditions to help protect state-listed endangered or threatened species.
Two commenters recommended removal of the definitions of “take” and “harm” from this general condition and replacing those definitions with a reference to the Endangered Species Act, to reduce the potential for inconsistencies. One commenter said the Corps should instead use the U.S. Fish and Wildlife Service's regulations to determine what constitutes an effect or jeopardizes any threatened or endangered species or their critical habitat.
The definition of “take” is identical to the definition in the Endangered Species Act (see 16 U.S.C. 1532(19)). The definition of “harm” is the same as the definition in the U.S. Fish and Wildlife Service's regulations (50 CFR 17.3) and the National Marine Fisheries Service's regulations (50 CFR 222.102). The definitions of “take” and “harm” were added to this condition to provide clarification for users of the NWPs, and facilitate compliance with the Endangered Species Act.
One commenter stated that paragraph (f) should provide web links to the Services' ESA Section 7 regulations and other documents. Another commenter said the Corps should defer to the U.S. Fish and Wildlife Service on effects determinations.
Paragraph (f) provides links to web sites for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to assist prospective permittees with obtaining information on listed species and other ESA documents. We do not believe it is necessary to provide a link to the Services' section 7 consultation regulations at 50 CFR part 402 since it is the Corps responsibility to conduct section 7 consultation. It is also the Corps responsibility to make “may effect” determinations for the purposes of the ESA and district engineers have the option of soliciting advice from the U.S. Fish and Wildlife and/or the National Marine Fisheries Service prior to making their determinations.
One commenter recommended that surveys be conducted for state- and Federally-listed species prior to the start of construction. Another commenter said the lack of a requirement for surveys makes the pre-construction notification requirement in this general condition ineffective. One commenter said that “objective science” is needed to identify habitats and species that may be affected by activities authorized by NWPs. One commenter stated that the Corps must consider the effects of climate change during the consultation process.
The need for surveys for Federally listed species is to be determined by the district engineer on a case-by-case basis. It is not possible to require surveys for the tens of thousands of activities authorized by NWP each year. Project proponents are encouraged, but not required to contact the U.S. Fish and Wildlife Service or the National Marine Fisheries Service for assistance in determining whether listed species or critical habitat might be affected by the proposed activity. The effects of climate change on endangered and threatened species and their critical habitat is more appropriately addressed through the section 7 consultation process, since those effects are likely to be site-specific.
The general condition is adopted with the modifications discussed above.
GC 19.
The U.S. Fish and Wildlife Service's implementing regulations that establish general permit requirements for migratory birds permits at 50 CFR part 21 state that “[n]o person may take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit issued pursuant to the provisions of this part and part 13 of this chapter, or as permitted by regulations in this part, or part 20 of this subchapter (the hunting regulations), or part 92 of subchapter G of this chapter (the Alaska subsistence harvest regulations).” The term “person” is defined at 50 CFR 10.12 as “any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires.” These regulations do not identify a federal permitting agency as a “person” responsible for obtaining a take permit, where that federal agency is not actually carrying out the activity that may result in the “take” of a migratory bird. Likewise, the U.S. Fish and Wildlife Service's implementing regulations for the Bald and Golden Eagle Protection Act at 50 CFR part 22 do not include any provisions stating that Federal permitting agencies are responsible for assisting project proponents in obtaining permits to authorize the taking, possession, and transportation within the United States of bald eagles and golden eagles and their parts, nests, and eggs.
Executive Order 13186 discusses the responsibilities of Federal agencies to protect migratory bird for the purposes of the Migratory Bird Treaty Act. The Executive Order applies only to those actions that are directly carried out by Federal agencies (see Section 2, paragraph (h)). Actions carried out by non-Federal entities with Federal assistance are not subject to the Executive Order. Department of the Army permits can be considered a form of Federal assistance since they provide authorization to non-Federal entities to comply with Federal laws such as Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
This general condition is adopted.
GC 20.
In response to the February 16, 2011, proposal to reissue the NWPs, including the proposed modification of this general condition, we received comments on the Corps use of Appendix C and the current guidance. Concerns regarding the use of Appendix C and the current guidance are outside the scope of the NWP rule, and are not addressed in this rule.
Several commenters asked whether an NWP authorization or verification would be issued before a State Historic Preservation Officer concurs to an effect determination or formalizes an agreement regarding historic properties. One commenter stated that although the NWP regulations provide that the Corps may issue an NWP before a memorandum of agreement is executed, district engineers have, in some cases, not issued NWP verifications without State Historic Preservation Officer concurrence.
This general condition requires non-Federal permittees to submit pre-construction notifications if the NWP activity may have the potential to cause effects to historic properties. In such cases, the district engineer will initiate section 106 consultation with the appropriate State Historic Preservation Officer or Tribal Historic Preservation Officer. Further consultation may be conducted with the Advisory Council on Historic Preservation, if necessary. The prospective permittee may not begin the NWP activity until the district engineer notifies him or her that the section 106 consultation has been completed (which may include execution of a memorandum of agreement to address adverse effects or the concurrence of the State or Tribal Historic Preservation Officer), or the activity has no potential to cause effects to historic properties.
One commenter said the Corps should more closely follow paragraph (b) of the general condition and not require redundant section 106 review on projects that are being undertaken by another Federal agency. Three commenters suggested that the Corps section 106 responsibilities should be satisfied if another Federal agency formally accepts responsibility for conducting section 106 consultation and is the lead for this responsibility through either a programmatic agreement or on a project-by-project basis. One commenter said that duplicate regulatory efforts are unnecessary, particularly when another Federal agency has a lead role.
District engineers will generally accept another Federal agency's compliance with section 106, but there may be situations where that agency's section 106 compliance does not adequately address the activities authorized by an NWP and their effects on historic properties. In those situations, the district engineer may conduct additional section 106 consultation to satisfy the requirements of the National Historic Preservation Act. We have added a sentence to paragraph (b) to address these situations.
One commenter said the general condition does not clearly specify who is responsible for the identification and evaluation of historic properties and determination of effects. Another commenter stated that the general condition does not adequately ensure section 106 compliance because the Corps may not receive enough information from permittees to fully take into account the effect a project may have on a historic property. This commenter also said that while paragraph (c) states that prospective permittees may seek assistance from the State or Tribal Historic Preservation Officer and from the National Register of Historic Places, there is no requirement that an applicant consult with these parties or that an applicant coordinate an effect determination with a qualified professional with relevant historic properties experience.
The Corps is ultimately responsible for determining compliance with the requirements of Section 106 of the National Historic Preservation Act. Non-Federal permittees are required to submit pre-construction notifications if an NWP activity may have the potential to cause effects to historic properties, and the district engineer will evaluate those pre-construction notifications to determine if section 106 consultation is necessary. The general condition also states that district engineers will make reasonable and good faith efforts to identify historic properties and effects on those properties. The district engineer may request additional information from the applicant where necessary to evaluate potential effects of the activity on historic properties or to initiate section 106 consultation. We cannot require prospective permittees to seek assistance from a State Historic Preservation Officer or a Tribal Historic Preservation Officer, search the National Register of Historic Preservation, or consult with qualified historic property professionals. However, this general condition requires prospective permittees to provide a list of “ * * * any historic properties listed, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties,” if these properties may be affected. The permittee may obtain such information from the State Historic Preservation Officer or Tribal Historic Preservation Officer, the National Register of Historic Places, or other sources of information on historic properties.
One commenter recommended providing language to clearly state when a pre-construction notification is or is not required based on the presence or absence of known historic properties. This commenter suggested that if a prospective permittee independently determines that no historic properties exist within the boundaries of the project area, then pre-construction notification is not necessary. The commenter also said that if the district engineer has to be notified because of potential effects to historic properties, the notification should not be in the form of a pre-construction notification.
We do not agree that the general condition should be modified to explicitly state that prospective permittees do not have to submit pre-construction notifications if they determine there are no known historic properties within the boundaries of the project area. Such a provision would be inappropriate, because there could be visual or noise effects to historic properties outside of the project area that have to be evaluated through the section 106 consultation process. The
One commenter requested clarification of what constitutes the permit area for the purposes of consultation under Section 106 of the National Historic Preservation Act. One commenter asked if a permittee is obligated to have the Corps review an archaeologist's determination that an activity will not impact an historic site. One commenter stated that the general condition is unreasonable and violates federalism.
The criteria for identifying the permit area for the purposes of section 106 are provided in paragraph 1(g) of Appendix C to 33 CFR part 325, in addition to paragraph 6(d) of the April 25, 2005, interim guidance. The permit area will be determined on a case-by-case basis by the district engineer. When a professional cultural resource manager or archaeologist performs an investigation or makes an effect determination, the Corps will generally consider the qualifications of the professional and will review any documentation provided for the purposes of section 106 compliance. This general condition is required because the NWP program must comply with the National Historic Preservation Act, a Federal law. Even though most NWP activities occur on private land, compliance with applicable Federal laws is necessary. This general condition would not interfere with any state or local authorities.
This general condition is adopted with the modifications discussed above.
GC 21.
Several commenters expressed support for adding this general condition to the NWPs. Two commenters said the condition should refer to the district engineer instead of “this office” or “we.” We have made these changes to be consistent with the language found in other general conditions.
One commenter stated that the proposed condition relies on the permittee, who is generally not qualified to make determinations concerning remains and artifacts discovered during construction activities. This commenter said that this general condition should require all work to cease immediately and a qualified Corps archaeologist should initiate required consultation.
We believe the revised language in the condition clearly indicates that the Corps will initiate consultation in such instances where a previously unknown historic or archaeological remain is discovered during construction activities. The Corps does not have the authority to prohibit all construction activities on the site in these cases.
Several commenters expressed concern with the use of the term “artifact” in this general condition, and some of them stated that it can have too broad of a definition. One commenter requested clarification as to what constitutes an “artifact.” Another commenter said that this general condition should have thresholds to protect significant artifact deposits while allowing work to continue when only minor artifacts are discovered. One commenter suggested that we qualify “artifacts” by adding “artifacts that are potentially eligible for the National Register of Historic Places.”
The use of the term artifact is consistent with the definition of “historic property” at 36 CFR 800.16, which states that historic properties include “ * * * artifacts, records, and remains that are related to and located within [historic] properties.” Procedures for the protection of historic properties address all properties that may be eligible for inclusion in the National Register of Historic Places, and do not establish quantitative thresholds for when section 106 consultation must occur. The consultation threshold is an effects-based threshold. We do not believe it is necessary to add text clarifying that artifacts are those “that are potentially eligible for the National Register of Historic Places.” Eligibility determinations will be made after the discovery of artifacts and remains.
Three commenters stated that the proposed general condition is more restrictive than general condition 3 provided in Appendix A to 33 CFR part 325, the permit form for individual permits. These commenters said the NWP general condition should not be more restrictive than the standard permit condition. Two commenters suggested deleting this general condition because provisions for the discovery of unknown historic or archaeological remains are already codified in the NWP regulations and in the Corps Regulatory Program's implementing regulations for Section 106 of the National Historic Preservation Act.
The proposed general condition is similar to general condition 3 in Appendix A of 33 CFR part 325. For this new NWP general condition, we have taken the text of general condition 3 in Appendix A and modified it to include Tribes. We have also modified it by adding a provision requiring, to the maximum extent practicable, avoidance of construction activities that could affect the remains and artifacts. We believe the latter provision is necessary to protect those artifacts and remains as much as possible. The addition of Tribes to the condition reflects current section 106 procedures. This general condition can be more restrictive than the standard permit condition in Appendix A because the NWPs may only be used to authorize activities with minimal adverse effects on the aquatic environment and other applicable public interest review factors. While 33 CFR 330.4(g)(3) contains a similar provision, we believe the general condition is needed to comply with applicable cultural resource laws.
Several commenters expressed concern with requiring the permittee to stop work once previously unknown historic or archaeological remains are found. One commenter said this provision is too unpredictable and may result in significant delays. One commenter suggested adding time frames to this general condition to provide predictability and assure permittees that the Corps will proactively seek to resolve any outstanding historic property issues. One commenter recommended clarifying this general condition to state that if a discovery occurs, work should cease only in the area containing remains or artifacts. One commenter objected to the work stoppage provision, stating that once construction begins, substantial investment has been made and the requirement to stop construction indefinitely upon the discovery of a potentially insignificant archaeological resource represents an unacceptable financial risk. This commenter recommended that if we keep this provision as proposed, we impose time frames on identification and consultation in order to provide some predictability to the process.
We believe it is necessary to include a provision in this general condition to require the permittee, once any
A few commenters said this general condition should not apply to other Federal agencies with section 106 responsibilities if they are the permittees, since their implementing regulations already contain provisions for the discovery of previously unknown historic or archaeological remains during construction.
We agree that in cases where another federal agency is the lead Federal agency for purposes of compliance with Section 106 of the National Historic Preservation Act, that Federal agency should follow its procedures for addressing post-review discoveries. However, the Corps also has section 106 responsibilities if the NWP activity has the potential to cause effects to an historic property. As long as the lead Federal agency is in compliance with section 106 requirements and this compliance satisfies section 106 requirements for the NWP authorization, the Corps can rely on the lead Federal agency's compliance efforts. Upon notification, the district engineer will let the other Federal agency know if any further action by the Corps is necessary.
This general condition is adopted with the modifications discussed above.
GC 22.
Several commenters objected to allowing state-designated outstanding national resource waters to be automatically included as designated critical resource waters because of varying designations and criteria across the states. These commenters also said that a state's process to designate such waters may not include the opportunity for public comment and that the designations carry no legal basis. In addition, commenters indicated there are inconsistent approaches by different agencies within the same state for designating outstanding national resource waters. Some commenters said that other state programs, such as those that are responsible for Clean Water Act Section 401 water quality certifications, are capable of adequately addressing the effects of the activity to these state designated waters. One commenter requested a definition of outstanding national resource waters. Two commenters said such waters should have a particular environmental or ecological significance. Two commenters objected to including outstanding national resource waters automatically because that designation may be based only on recreational characteristics. Three commenters suggested that the general condition should be changed to require the district engineer to designate such waters only after issuing a public notice and soliciting comment, and then obtaining concurrence from the state.
This general condition was first adopted in the NWPs issued on March 9, 2000 (see 65 FR 12872). In the preamble to the 2000 NWPs, we stated that “ * * * outstanding national resource waters must be identified and approved by the district engineer after public notice and opportunity for comment” (65 FR 12873, third column). In that notice, we also said that state or local officials should not be able to designate additional waters as critical resource waters without the district engineer providing an opportunity for public notice and comment. We are modifying this general condition to return to our original approach, since there is much disparity across the country in how outstanding national resource waters are identified and designated. Because of the inconsistency in how outstanding national resource waters are designated, we believe it is necessary to provide the public with the opportunity to review and comment on those waters before they become adopted as designated critical resource waters for the purposes of this general condition. Outstanding national resource waters should have environmental and ecological significance, and their designation should not be based solely on recreational uses or characteristics.
Three commenters expressed concern that providing district engineers the ability to designate, after notice and opportunity to comment, additional waters officially designated by a state as having particular environmental or ecological significance would lead large areas of state-designated waters of all types to be removed from being eligible for the NWPs. One commenter said this general condition should be removed because it violates the principles of federalism in Executive Order 13132. This commenter said a district engineer could use state stream designations to identify critical resource waters and override the rights of states to interpret and enforce their own laws.
We are retaining the provision that allows district engineers to designate additional critical resource waters after notice and opportunity for public comment. That process is not substantially different from using the regional conditioning process to restrict or prohibit the use of NWPs in specific waters or geographic areas, which can be delegated by division engineers to district engineers. This general condition is not contrary to Executive Order 13132. The general condition helps support the objective of the Clean Water Act, which is to restore and maintain the physical, chemical, and biological integrity of the Nation's waters. In addition, this general condition helps ensure that the NWPs authorize only those activities that have minimal individual and cumulative adverse effects on the aquatic environment. This general condition only applies to waters and wetlands that are both waters of the United States and designated critical resource waters.
One commenter objected to removing state natural heritage sites from
While we understand the perspective that state natural heritage sites should be automatically subject to this general condition, we also understand the need for transparency and clarity for the regulated public. Given the variability in waters and wetlands that may be designated as state natural heritage sites, and the different processes that may be used by states to designate their natural heritage sites, we believe it is necessary to provide a public notice and comment process before including state natural heritage sites as designated critical resource waters under this general condition. This approach will help improve compliance with the NWP conditions, because it will make project proponents aware of certain restrictions for the use of specific NWPs. The protection of historic properties is more appropriately addressed through general condition 20, historic properties.
One commenter said the use of an NWP should not be prohibited in critical resource waters when the agency responsible for managing those critical resource waters is conducting the activity. This commenter also suggested that the general condition should not prohibit the use of NWPs, but instead the NWPs listed in paragraph (a) should be moved to the notification provision of paragraph (b) and also require the approval of the agency that manages the designated critical resource water, similar to the approach taking in general condition 16, wild and scenic rivers. One commenter supported protecting critical resource waters but suggested that protection can be provided instead by requiring prior written approval through a state's water quality agency. Another recommended requiring water quality certifications for the NWPs listed in paragraph (b) instead of pre-construction notifications, to ensure that the activities authorized by those NWPs result in minimal adverse effects on designated critical resource waters and adjacent wetlands.
The purpose of the prohibition in paragraph (a) of this general condition is to exclude the use of those NWPs in critical resource waters that have the potential to result in more than minimal adverse effects on the aquatic environment. The status of the entity who would be conducting the proposed discharge of dredged or fill material is not relevant to the minimal adverse effects determination; instead, it is the environmental effects of the discharge that have to be considered. Discharges of dredged or fill material into waters of the United States that are designated critical resource waters, as well as their adjacent wetlands, may be authorized by other forms of Department of the Army permits, such as individual permits or regional general permits. Wild and Scenic Rivers referenced in general condition 16 are those waters that have been designated as such in accordance with the Wild and Scenic Rivers Act of 1968, a federal law. Similar to state-listed threatened and endangered species, the NWP program cannot be used to ensure compliance with other state or local laws. However, an NWP authorization does not obviate the need for the permittee to obtain other federal, state, or local authorizations, including specific authorizations related to state-protected critical resource waters. The water quality certification process would not be an appropriate alternative to the pre-construction notification requirement in paragraph (b) of this general condition because the evaluation of an NWP pre-construction notification involves consideration of more than water quality issues.
One commenter suggested that pre-construction notifications for NWP activities listed in paragraph (b) proposed in waters identified as critical resources through state processes, should only be coordinated with state authorities. This commenter said the pre-construction notification for simple maintenance and improvement projects creates unnecessary work for the project proponent and the Corps. One commenter recommended adding a list of conservation areas to the general condition, with a requirement that permittees must be in compliance with the site specific management plan of the conservation area.
The district engineer will evaluate the pre-construction notification for an NWP listed in paragraph (b) of this general condition, to determine if the proposed activity will result in minimal adverse effects on the aquatic environment, including the critical resource water and its adjacent wetlands. Agency coordination is only required for NWP activities that result in the loss of greater than
The general condition is adopted as proposed.
GC 23.
One commenter stated that paragraph (a) should indicate that when another Federal agency has determined that the activity has been designed to avoid and minimize impacts the district engineer will defer to that agency's determination. Several commenters said this general condition does not adequately stress avoidance of aquatic resources before compensatory mitigation is considered. One
The district engineer determines compliance with the terms and conditions of the NWPs, including whether the permittee has avoided and minimized adverse effects to waters of the United States to the maximum extent practicable on the project site. The general condition imposes substantive requirements to avoid and minimize adverse effects to waters of the United States, and district engineers will review pre-construction notifications and determine whether project proponents have satisfied the avoidance and minimization requirement, as well as other applicable provisions of this general condition. District engineers will also determine if proposed activities result in minimal adverse effects on the aquatic environment and qualify for NWP authorization. General permits only need to comply with section 230.7 of the 404(b)(1) Guidelines, which provides the evaluation process for the issuance of Clean Water Act Section 404 general permits, including NWPs. Individual activities that qualify for NWP authorization do not have to implement the avoidance and minimization measures provided elsewhere in the 404(b)(1) Guidelines, although they must still comply with the avoidance and minimization provisions of this general condition, which are designed to ensure that the NWPs collectively comply with the 404(b)(1) Guidelines. Requiring the permittee to provide documentation of avoidance and minimization measures taken would result in unnecessary paperwork requirements, and the current information requirements for complete pre-construction notifications are sufficient. Section 230.7(b)(1) of the 404(b)(1) Guidelines states that the alternatives analyses required by section 230.10(a) are not directly applicable to general permits.
One commenter stated the general condition should address other aspects of mitigation, such as performance standards, monitoring, and contingency actions. One commenter said the general condition does not comply with 33 CFR part 332 because it does not provide any criteria or performance standards for compensatory mitigation. One commenter indicated that monitoring must be required for all mitigation.
We have made several changes to this general condition to make it consistent with the applicable provisions in 33 CFR part 332. We have also added a sentence to paragraph (c)(1) of this general condition to state that compensatory mitigation projects to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332. The general condition provides basic requirements, since the specific details for compensatory mitigation projects (e.g., objectives, ecological performance standards, monitoring requirements, and site protection) are determined on a case-by-case basis by district engineers. We acknowledge that monitoring is required for all compensatory mitigation projects, in accordance with 33 CFR 332.6.
Two commenters stated that the district engineer should have discretion to determine what, if any, compensatory mitigation is required for projects impacting more than
The 2008 compensatory mitigation rule (33 CFR part 332, as published in the April 10, 2008, edition of the
In the 2008 mitigation rule, we also discussed our concerns about the failure rates of on-site compensatory mitigation, which are often not ecologically successful because of nearby changes in land use (see 73 FR 19601). We believe it would be inappropriate to require users of the NWP to provide small on-site compensatory mitigation projects to offset losses caused by NWP activities if they are likely to fail. If the district engineer determines that on-site mitigation is likely to be ecologically successful, he or she may require that compensatory mitigation. It may not be practicable to provide off-site compensatory mitigation if the activity is not in the service area of an approved mitigation bank or in-lieu fee program with available credits. It is also important to recognize that not all areas of the country have approved mitigation banks or in-lieu fee programs. If the district engineer determines that compensatory mitigation is necessary to ensure than an NWP activity results in minimal individual and cumulative adverse effects on the aquatic environment, and there are no practicable and ecologically successful compensatory mitigation options available, then he or she will exercise discretionary authority and notify the project proponent that another form of Department of the Army authorization is required, such as an individual permit.
To be consistent with 33 CFR 330.1(e)(3), and to take into account how the requirements of 33 CFR part 332 affect the practicability for providing compensatory mitigation for small wetland losses, we have modified paragraph (c) of this general condition
One commenter stated that greater than one-for-one mitigation ratios must be required, stream mitigation ratios should address both areal and linear extent, and waivers of the mitigation ratio should not be allowed. One commenter stated that stream or open water mitigation should have a mandatory mitigation ratio of one-for-one for in-kind replacement and two-for-one riparian habitat improvement for any impacts exceeding 50 feet of any stream or waterbody. One commenter stated that mitigation should be required for all stream impacts that exceed 100 feet. One commenter stated that appropriate in-kind mitigation should be provided for any wetland or stream impacts. One commenter also stated that out-of-kind mitigation contradicts the no-net-loss policy.
The amount of compensatory mitigation necessary to ensure that the NWP activity results in minimal adverse effects on the aquatic environment is determined by the district engineer on a case-by-case basis by applying the provisions at 33 CFR 332.3(f). The district engineer will determine whether compensatory mitigation for losses of stream bed should be required for a particular NWP activity. We do not agree that losses of stream bed should have a threshold for determining when compensatory mitigation should be required for those losses. We have modified paragraph (d) of this general condition by replacing the word “restoration” with “rehabilitation, enhancement, or preservation” to be consistent with 33 CFR 332.3(e)(3), which recognizes streams as “difficult-to-replace” resources.
Out-of-kind mitigation does not contradict the “no overall net loss” goal for wetlands, since out-of-kind wetlands mitigation may be environmentally preferable if another wetland type provided as compensatory mitigation would benefit the watershed more than simply providing in-kind replacement of the wetland being lost as a result of the NWP activity.
One commenter also requested that consideration be given to the cumulative impacts of wetland and stream disturbance. Several commenters said that mitigation cannot be used to bring the adverse effects of the NWPs to a minimal level. Some of these commenters stated that mitigation is not predictable and in many cases is not successful. Two commenters stated that if an NWP activity requires mitigation, then by definition it has more than minimal adverse environmental effects.
Cumulative effects to wetlands and streams are evaluated in the decision documents that are prepared for each NWP by Corps Headquarters, as well as the supplemental decision documents approved by division engineers. Wetland restoration, enhancement, establishment, and preservation activities, and stream rehabilitation, enhancement, and preservation activities (including and riparian area restoration, enhancement, and preservation) can offset losses of aquatic resource functions provided by waters of the United States that are impacted by activities authorized by NWPs. District engineers evaluate compensatory mitigation proposals provided by prospective permittees, to determine whether the compensatory mitigation project will be ecologically successful and be sufficient to offset losses of waters of the United States to ensure that the net adverse effects on the aquatic environment are minimal. The approved mitigation plan must include the applicable components listed in 33 CFR 332.4(c)(2)–(14), including ecological performance standards used to determine if the compensatory mitigation project is achieving its objectives.
The party responsible for providing the compensatory mitigation must implement the approved mitigation plan, and if it is determined that changes are needed to improve ecological success, request approval of those modifications. After the approved compensatory mitigation project is implemented, monitoring is required on a regular basis and monitoring reports must be submitted to the district engineer. The monitoring reports are reviewed by the district engineer and if there are deficiencies in the compensatory mitigation project, the district engineer will work with the responsible party to determine what actions are necessary to fix the compensatory mitigation project so that it will meet its original objectives or comparable objectives that are acceptable to the district engineer. If it is not possible to take adaptive management measures to remediate the compensatory mitigation project, then the district engineer may require alternative compensatory mitigation.
Several commenters said that applicants should be required to submit detailed mitigation plans with their pre-construction notifications and conceptual mitigation proposals are not sufficient. Several commenters also stated that the public should be provided the opportunity to review mitigation plans and provide comments on whether the impacts will be minimal.
We have added a new paragraph (c)(1) to state that the prospective permittee is responsible for proposing an appropriate compensatory mitigation option, if the district engineer determines that compensatory mitigation is needed to ensure that the activity results in minimal adverse effects on the aquatic environment. Another new provision, paragraph (c)(3) of this general condition, states that the mitigation plan may be conceptual or detailed, which is consistent with the Corps regulations at 33 CFR 332.4(c)(1)(ii). We do not believe that public review of compensatory mitigation proposals is necessary. District engineers have the expertise to review compensatory mitigation plans, evaluate their potential for ecological success, and determine whether they will offset losses of aquatic resource functions so that the NWP activity, after considering the required compensatory mitigation, will result in minimal individual and cumulative adverse effects on the aquatic environment.
One commenter asked whether functional assessments used to assess aquatic resources must be approved by the Corps. One commenter said the
Functional assessments do not have to be formally approved by the Corps, although district engineers may determine that a functional assessment method proposed to be used for a particular aquatic resource or activity is not appropriate. This general condition provides basic principles for addressing mitigation requirements for NWP activities, because it is not possible to cover all possible mitigation options and requirements at the national level. Most activities authorized by NWPs result in the permanent loss of waters of the United States, and it is not practical or necessary to require permanent monitoring of compensatory mitigation projects. The Corps regulations require long-term protection of compensatory mitigation project sites (see 33 CFR 332.7(a)(1), and compensatory mitigation projects should be self-sustaining. Some compensatory mitigation projects may require long-term management, if the district engineer determines that long-term management is appropriate and practicable.
One commenter said that paragraph (f) should be revised to include the option of restoring riparian areas next to open waters. In addition, the commenter stated that the restoration or establishment of riparian areas should not be required on both banks of a stream, because in some cases the permittee may not have authority or legal interest in the land to restore or establish riparian areas on both sides of the stream. This commenter noted that there may be conflicting easements, roads, levees, or other structures in the proposed riparian area, or the area may not support riparian vegetation. One commenter stated that the Corps is inconsistent with use of the term buffer and riparian areas and that buffer is more inclusive and should be used in the general condition instead of riparian areas.
We have added the term “restoration” to the first sentence of paragraph (f) to make it clear that the riparian area may either be restored or established next to open waters. The general condition does not require riparian areas to be established on both sides of a stream. The fifth sentence of this paragraph provides a recommended width for riparian areas, based on a presumption that the project proponent can restore or establish riparian areas on both sides of the stream. If it is not possible to establish a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or establishing a riparian area along a single bank or shoreline may be sufficient, and we have added language to paragraph (f) of general condition 23 to clarify that this can be acceptable compensatory mitigation. The proposal did not use the term “buffer” and paragraph (f) focuses on providing mitigation next to open waters through the restoration or establishment, maintenance, and legal protection of riparian areas.
One commenter requested that we include the phrase “for resource losses” at the end of the parenthetical in paragraph (b) to be consistent with 33 CFR part 320.4(r)(1). Two commenters stated that it is difficult to provide long-term maintenance of mitigation sites for weed control and invasive species. One commenter asked that definitions for rectifying and reducing be added to the general condition.
We have added “for resource losses” after the word “compensating” in paragraph (b). Before requiring long-term management for compensatory mitigation sites, district engineers will evaluate whether such a requirement would be practicable, as well as appropriate and necessary. We recognize that it may not be appropriate and practical to require long-term management for small permittee-responsible compensatory mitigation project sites, so we have modified paragraph (g) to make it clear that long-term management is necessary only when the district engineer adds conditions to an NWP authorization to require long-term management for the compensatory mitigation project. We do not believe it is necessary to provide definitions of the terms “rectifying” and “reducing” since the commonly understood definitions of these terms are sufficient.
One commenter requested the removal of paragraph (h), stating that it creates confusion and sometimes results in mitigation being required for non-jurisdictional activities, such as non-mechanized, above-ground landclearing for overhead electric transmission lines. Another commenter said that paragraph (h) implies that the Corps has authority over activities it does not regulate, such as the removal of woody vegetation from a wetland when there is no discharge of dredged or fill material into waters of the United States. One commenter requested clarification of the circumstances under which the Corps would require compensatory mitigation for the conversion of forested and scrub shrub wetlands, and said the phase “may be required” should be changed to “shall be required.” This commenter also said that no waivers should be allowed for mitigation for projects within a utility right of way for forested and scrub shrub wetlands that are permanently converted to emergent wetlands.
Paragraph (h) is being retained, to make it clear that district engineers may require compensatory mitigation for permanent losses of specific aquatic resource functions that are caused by discharges of dredged or fill material into waters of the United States or other regulated activities. Paragraph (h) is part of a general condition that applies only to activities authorized by NWPs. We do not agree that the phrase “may be required” should be replaced with “shall be required” because it is the district engineer's discretion whether to require compensatory mitigation for losses of specific aquatic resource functions.
One commenter recommended adding a new paragraph to this general condition to clarify that any mitigation requirements must be limited to a single and complete linear project. This commenter said that compensatory mitigation should only be required if a specific crossing of a waterbody triggers paragraph (c), (d), or (f) of this general condition, not for other crossings that do not trigger pre-construction notification requirements or mitigation requirements.
We do not believe such an addition to this general condition would be appropriate or necessary. As discussed elsewhere in this notice, district engineers evaluate the entire linear project, even though each separate and distant crossing of waters of the United States may qualify for a separate NWP authorization. District engineers may require compensatory mitigation for all temporary and permanent losses of waters of the United States. District engineers are required to consider cumulative adverse effects in reviewing NWP pre-construction notifications, not just adverse effects from the specific single and complete project to which the notification applies.
One commenter stated that this general condition does not adequately convey the hierarchy of mitigation preference established by 33 CFR part 332. One commenter stated that in-lieu fee arrangements must not be used unless the arrangements comply with the requirements of the in-lieu fee guidance. One commenter stated that
We do not believe it is necessary to include the mitigation options evaluation framework provided in 33 CFR 332.3(b), since that regulation applies to all forms of Department of the Army permits, and the general condition explicitly states that mitigation must comply with part 332. In-lieu fee programs used to provide compensatory mitigation for NWP activities must comply with the applicable provisions in 33 CFR 332.8, unless the district engineer determined that they qualified for the extension of the grandfathering provision provided at 33 CFR 332.8(v)(2). District engineers will determine on a case-by-case basis whether compensatory mitigation should be required for remining activities authorized by NWP.
This general condition is adopted with the modifications discussed above.
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We believe that the current wording of this general condition is sufficient to make it clear that an individual water quality certification or waiver must be obtained if the state, Tribe, or EPA had not previously issued water quality certification for an NWP. We also do not believe it is necessary to provide a specific timeframe in the general condition to reflect the language in 33 CFR 330.4(c)(6), since those timeframes may vary by Corps district because of local agreements with water quality certification agencies. There are a variety of causes of stream impairment for 303(d) listings other than discharges of dredged or fill material (e.g., nutrients, metals, sedimentation, temperature, bacteria, pH, toxics). Reversing those causes of impairment is more appropriately addressed through other Clean Water Act programs.
This general condition is adopted as proposed.
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Two commenters recommended including regional conditions to the list of conditions under paragraph (a). One commenter suggested that a separate compliance certification be required for mitigation projects, because permittees submit the compliance certification when the work is completed, not when the compensatory mitigation project is completed. Two commenters said the general condition should be modified to clarify that the success of the required compensatory mitigation would be addressed separately, after evaluation of monitoring reports demonstrates achievement of the performance standards for the compensatory mitigation project.
We have modified paragraph (a) to require the statement to read that the authorized work has been done in accordance with any general, regional and activity-specific conditions to cover all of the conditions that may be applicable to an NWP authorization. We have also changed the first paragraph of this general condition by adding a sentence to state that the success of any required permittee-responsible mitigation, including the achievement of ecological performance standards, will be addressed separately by the district engineer. Paragraph (b) has also been revised by adding a sentence to address the use of mitigation bank and in-lieu fee program credits to fulfill compensatory mitigation requirements in NWP authorizations. This new sentence states that if mitigation bank credits or in-lieu fee program credits are used, the permittee must submit the documentation required by 33 CFR 332.3(l)(3) to confirm that he or she has secured the appropriate number and resource type of credits from the mitigation bank or in-lieu fee program.
One commenter suggested adding language similar to that provided in NWP 32, to state that it is necessary to comply with all terms and conditions of the NWP, and that the NWP authorization is automatically revoked if the permittee does not comply with all terms and conditions. One commenter suggested that additional funding be allocated to do more on-site compliance inspections. One commenter said there are insufficient monitoring and compliance procedures in the NWPs. One commenter stated that it should be the permittee's responsibility to provide the required proof that the authorized activity was conducted to comply with the terms and conditions of the NWP.
The Note at the beginning of Section C, Nationwide Permit General Conditions, adequately addresses the requirement to comply with all applicable terms and conditions of the NWPs. Funding for compliance inspections is outside of the scope of this rule. Corps districts are required, through our performance measures, to conduct initial compliance inspections for a minimum percentage of the total number of all general permit (including NWP) verifications issued during the preceding fiscal year where authorized work is underway. The purposes of this general condition is for the permittee to submit documentation to the district engineer demonstrating that the authorized activity has been implemented in accordance with the conditions of the NWP authorization. Each permittee who receives an NWP verification letter from the Corps must provide a signed certification documenting completion of the authorized activity and any required compensatory mitigation.
This general condition is adopted with the modification listed above.
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One commenter objected to adding more pre-construction notification requirements, stating that it takes several days to weeks for an applicant to prepare pre-construction notification at the high level of detail required by district offices. Several commenters stated that they did not have the time and resources to prepare a pre-construction notifications for all activities. One commenter said the proposed changes that require pre-construction notifications for additional activities would add to the workload of the Corps for projects that are minor in nature.
We have not substantially increased the number of activities that require pre-construction notification. We have issued two new NWPs, and although both of those NWPs require pre-construction notification for all activities, some of the activities authorized by those NWPs may also be authorized by other NWPs that do not require pre-construction notification. A prospective permittee may request authorization under a specific NWP, if the proposed activity qualifies for authorization under that NWP. District engineers have been instructed, through Regulatory Program Standard Operating Procedures, to use the most efficient permit process wherever possible, to make timely permit decisions while protecting the aquatic environment. The two new NWPs issued today will provide a more efficient means of authorizing renewable energy generation facilities and pilot projects, in cases where those activities did not previously qualify for NWP authorization and required individual permits instead.
One commenter expressed concern with delays associated with the pre-construction notification process. Several commenters said some districts make requests for additional information after the 30-day pre-construction notification completeness determination period ends, and suggested adding a provision to paragraph (a) to state that all requests for additional information must be made within 30 days of receipt of a complete pre-construction notification and that districts are limited to one request for additional information. One commenter said the phrase “as a general rule” should be deleted from paragraph (a). Several commenters said that in many cases, the district engineer fails to describe the specific information that is needed for a pre-construction notification to be deemed complete. Two commenters requested clarification as to whether the activity is authorized by an NWP 30 or 45 days after submitting a complete pre-construction notification.
We have added text to the second sentence of paragraph (a) to state that district engineers must notify prospective permittees within the 30-day completeness review period if the pre-construction notification is incomplete and additional information has to be provided to the district engineer to make the pre-construction notification complete. We have also added a sentence that directs the district engineer to specify, in his or her request for additional information, what information is needed to make the pre-construction notification complete. We have retained the phrase “as a general rule” in the new fourth sentence, which states that district engineers will request additional information only once, because there may be occasions where it is necessary to make an additional request for information. It should be noted that the 30-day period only applies to information necessary to make the PCN complete, which is listed in paragraph (c) of this general condition. Other types of information may also be needed to make a decision on whether the proposed activity qualifies for NWP authorization, such as a conceptual or detailed compensatory mitigation plan, if the applicant only provided a mitigation statement to satisfy the requirement in paragraph (b)(5). A conceptual or detailed mitigation plan is needed to determine whether the proposed compensatory mitigation will be suitable for ensuring compliance with general condition 23, and may be requested after the 30-day completeness review period, but before the 45-day pre-construction notification review period ends. Another example is request for additional information necessary to complete either Endangered Species Act Section 7 consultation under general condition 18 or National Historic Preservation Act Section 106 consultation under general condition 20. Past rulemaking activities for the NWPs have established a 45-day pre-construction notification review period for the NWPs, and today's final rule retains that time period. Exceptions are for compliance with general condition 18, endangered species, and general condition 20, historic properties. Under those two general conditions, activities that may affect endangered or threatened species or critical habitat, or have the potential to cause effects to historic properties, are not authorized until the required consultations are completed. Another exception is NWP 21, for which activities are not authorized until the applicant receives written verification from the Corps.
One commenter said that “he or she” be removed from paragraph (a)(1) as it is the only location in which personal pronouns are used. Another commenter recommended changing paragraph (a)(2) to state that if the permittee does not receive any written notification from the district engineer within 45 days of submitting a complete pre-construction notification, then the permittee can assume that the district engineer has made a “no effect” determination for endangered species or historic properties.
The use of “he or she” is appropriate in paragraph (a)(1) because it refers to the prospective permittee, who may be an individual, corporation, or other entity. The NWP regulations (see 33 CFR 330.4(f)(2) for Endangered Species Act compliance and 33 CFR 330.4(g)(2) for National Historic Preservation Act compliance), as well as general conditions 18 and 20, state that the activity is not authorized by NWP until the requirements of the Endangered Species Act and/or the National Historic Preservation Act have been satisfied. Those two provisions in the Corps NWP regulations do not allow a prospective permittee to conclude that there is a “no effect” finding for the purposes of compliance with the Endangered Species Act or a “no potential to cause effect” finding for the purposes of compliance with Section 106 of the National Historic Preservation Act if the district engineer does not respond to the pre-construction notification within 45-days in which the applicant stated there might be effects to listed species or designated critical habitat or there may be potential to cause effects to historic properties.
One commenter requested clarification whether the seven items
The seven items listed in paragraphs (b)(1) through (7) of this general condition are required for a pre-construction notification. Additional information may be needed by the district engineer to make a decision on the NWP pre-construction notification, such as a compensatory mitigation proposal if the district engineer disagrees with the prospective permittee's statement that compensatory mitigation is not necessary to ensure the activity results in minimal adverse environmental effects, or information needed to conduct Endangered Species Act Section 7 or National Historic Preservation Act Section 106 consultation. Permit conditions added to an NWP authorization by a district engineer do not need to go through a public notice and comment process because they are incorporated into the authorization to ensure compliance with regulatory and statutory requirements that general permits only authorize activities that have minimal adverse effects on the aquatic environment and other applicable public interest review factors. The Corps regulations do not require public notice and comment for any conditions added to Department of the Army permits, including standard permits, letters of permission, and all categories of general permits.
Two commenters stated that applicants should be required to submit detailed mitigation plans with their pre-construction notifications and conceptual mitigation proposals are not sufficient. One commenter said paragraph (e)(2) should be revised to require the prospective permittee to submit a compensatory mitigation proposal if the activity will result in the loss of greater than
Paragraph (b)(5) requires the prospective permittee to submit a statement explaining how the mitigation requirement will be satisfied or why the adverse effects of the proposed activity on the aquatic environment are minimal without mitigation. A detailed or conceptual mitigation plan may be submitted with the pre-construction notification, and a conceptual mitigation plan is usually sufficient for making the minimal adverse effects determination. If the proposed mitigation shown in the conceptual mitigation plan is acceptable, a detailed mitigation plan that complies with the requirements of 33 CFR 332.4(c)(2)–(14) will be required and must be approved by the district engineer before work begins in waters of the United States unless the district engineer determines such prior approval is not practicable or necessary (see paragraph (c)(3) of general condition 23, mitigation).
One commenter said that state agencies operating under Federal funding should be added to paragraphs (b)(6) and (b)(7), for the submittal of documentation demonstrating compliance with Section 7 of the Endangered Species Act or Section 106 of the National Historic Preservation Act. This commenter also stated that pre-construction notifications should be provided electronically as well. One commenter said that a pre-construction notification should include information demonstrating that a project complies with applicable federal and state requirements.
A state agency operating under Federal funding, where the Federal agency has conducted Endangered Species Act Section 7 consultation or National Historic Preservation Act Section 106 consultation for the activity that is being provided Federal funds, may provide that documentation to the district engineer as part of its pre-construction notification, but the district engineer will determine whether that consultation is sufficient for the NWP activity. The NWP regulations at 33 CFR 330.1(e)(1) state that pre-construction notifications must be in writing. We have modified paragraph (d)(4) to state that prospective permittees may also provide electronic files of pre-construction notifications to expedite agency coordination. Compliance with other Federal, state, or local requirements is the responsibility of the permittee, and the Corps does not have the authority to enforce the regulatory requirements of programs administered by other agencies.
Several commenters objected to the requirement for a delineation of special aquatic sites and other waters of the United States under paragraph (b)(4) of this general condition, because requiring a full delineation has become a significant cause of delays and increased costs due to uncertainties regarding the extent of Federal jurisdictional waters under U.S. Supreme Court decisions in 2001 and 2006. One commenter said that in the second sentence of paragraph (b)(4) the term “wetland delineation” should be replaced with “delineation of waters of the United States,” because the requirement is for not only a delineation of wetlands but also of other waters of the United States. One commenter suggested modifying paragraph (b)(4) to clarify that a jurisdictional determination is not required with the submittal of a complete pre-construction notification, just a delineation of waters of the United States, which would be completed by either the prospective permittee or the Corps.
We have modified paragraph (b)(4) to state that a pre-construction notification must include a delineation of wetlands, other special aquatic sites, and other aquatic habitats (e.g., perennial, intermittent, and ephemeral streams, and lakes and ponds) on the project site, instead of a delineation of special aquatic sites and other waters of the United States. Use of the term “waters of the United States” in this paragraph implies that an approved jurisdictional determination would have to be done for a NWP pre-construction notification. An approved jurisdictional determination is an official Corps determination that jurisdictional “waters of the United States” or “navigable waters of the United States,” or both, are either present or absent on a particular site, and precisely identifies the limits of those waters on the project site that are determined to be jurisdictional under the Clean Water Act or Sections 9 and 10 of the Rivers and Harbors Act of 1899 (see Regulatory Guidance Letter 08–02). We understand that many users of the NWPs do not want to obtain an approved jurisdictional determination, and that preliminary jurisdictional determinations may be appropriate for the purposes of NWP authorizations.
Under a preliminary jurisdictional determination, the wetlands, other special aquatic sites, and other aquatic habitats on the project site are presumed to be waters of the United States for the purposes of the NWP authorization, and any compensatory mitigation that may be required. A project proponent has the option of requesting an approved jurisdictional determination if he or she believes that some or all of the wetlands, special aquatic sites, or other aquatic habitats are not waters of the United States, and wants an official jurisdictional determination from the Corps. A request for an approved jurisdictional determination should be submitted to the Corps in advance of submitting a pre-construction notification, because the Corps may not be able to make an approved jurisdictional determination within the 45-day pre-construction notification review period, and this NWP rule does not contain a provision stating that approved jurisdictional determinations
Several commenters suggested modifying the general condition to allow the applicant to satisfy the pre-construction notification requirement by demonstrating that consultation under the National Historic Preservation Act (NHPA) and/or Endangered Species Act (ESA) has been completed and has resulted in a finding that the project would not adversely affect resources protected under those statutes. One of the commenters also stated that paragraph (e)(1) is incorrect, because the condition refers to a limit of 300 feet, but NWP 13 has a limit of 500 feet that can be waived. One commenter stated that submittal of a pre-construction notification should be required for any NWPs within 303(d) impaired waters and that the applicant should prepare a statement identifying how the project avoids contributing to existing water quality impairments and maintains consistency with any existing Total Daily Maximum Loads (TMDLs).
Pre-construction notification is required for NWP activities that might affect endangered or threatened species listed, or proposed for listing, under the Endangered Species Act (see 33 CFR 330.4(f)(2)). Likewise, pre-construction notification is required for NWP activities that may affect historic properties (see 33 CFR 330.4(g)(2)). It is the Corps responsibility to make effect determinations for the purposes of the NWP authorizations. Information provided by the project proponent for Endangered Species Act or National Historic Preservation Act compliance will be fully considered by the district engineer, but it is the district engineer's decision as to whether the requirements of those acts have been complied with for the NWP authorizations. We have determined that modification of paragraph (e)(1) (which has been moved to paragraph 1 of Section D, District Engineer's Decision) is not necessary, as the 500 linear foot limit for the request for a waiver of NWP 13 is “an otherwise applicable limit” as specified in this text. The state agency that makes water quality certifications for the NWPs has the authority to determine whether an NWP should authorize discharges into 303(d) impaired waters, so we do not believe pre-construction notification should be categorically required for all such discharges. As noted previously, many waters are impaired for pollutants not related to discharges of dredge or fill material.
Two commenters said that under paragraph (c) of this general condition, there are problems with using ENG 4345 for pre-construction notifications, because the standard permit form requires information that is not listed in paragraphs (b)(2) through (b)(7), and those paragraphs also cite information that is not required by ENG 4345.
The standard permit form, ENG 4345, may be used for pre-construction notifications, and it is not necessary to fill out those fields in ENG 4345 that are not relevant to paragraphs (b)(2) through (b)(7). The prospective permittee must supplement ENG 4345 if the NWP pre-construction notification must include information that is not specifically required by ENG 4345. A permittee is not required to use ENG 4345 for pre-construction notification as long as all required information is included.
Several commenters said that the threshold for agency coordination should be increased, or that interagency coordination is not necessary. In contrast, several commenters stated that the thresholds for agency coordination should be decreased. One commenter said agency coordination should be required for any activity potentially impacting approved mitigation banks, other mitigation areas, or local, state, or Federal public properties. One commenter suggested requiring agency coordination for NWP 12 activities, because they could result in the loss of greater than
We believe the agency coordination thresholds established in paragraph (d)(2) of this general condition are appropriate, and focus on those activities where it would be helpful to solicit the views of the listed agencies prior to making a decision on an NWP pre-construction notification. Potential impacts to mitigation banks, other compensatory mitigation project sites, or other public properties are more appropriately addressed through the district engineer's review, and do not require additional agency coordination under the NWP program. However, agency coordination may be required under other regulations, such as 33 CFR 332.8, which has an interagency review process for the establishment and operation of mitigation banks and in-lieu fee programs. A proposed activity that may directly affect an approved mitigation bank or in-lieu fee project site may require the district engineer to consult with an interagency review team before making a decision on that activity. The limits for NWP 12 apply to single and complete projects, and for each single and complete project the NWP 12 activity may not result in the loss of greater than
This general condition is adopted with the modifications discussed above.
We have established a new Section D, District Engineer's Decision, by moving paragraph (e) of the proposed general condition 30 (now designated as general condition 31) to a separate section of the NWPs. We believe this is appropriate because the proposed paragraph (e) does not require compliance on the part of the permittee. Therefore, the criteria that district engineers use to determine whether a particular activity is authorized by NWP should not be in the general conditions. The comments received in response to the proposed paragraph (e) of the pre-construction notification general condition have been moved to this new section.
Two commenters objected to the language which states that the district engineer must determine that the proposed NWP activity is not contrary to the public interest. One of these commenters said that Section 404(e) of the Clean Water Act does not require such a public interest review for NWP activities, and this provision should be deleted because it conflicts with other Corps regulations.
The NWP regulations clearly state that the district engineer may exercise discretionary authority if he or she identifies concerns for the aquatic environment under the 404(b)(1) Guidelines or for any factor of the public interest (see 33 CFR 330.1(d)). In addition, the NWP regulations also require the district engineer to review pre-construction notifications and add conditions to the NWP authorization if necessary to ensure that the activity results in minimal individual and cumulative adverse effects on the aquatic environment and the public interest (see 33 CFR 330.1(e)(2)). The Corps issued those regulations under its authority under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
One commenter suggested adding definitions of the terms “direct” and “indirect” to the NWPs. Two commenters requested clarification on when a district engineer can exercise discretionary authority for the purposes of the NWP authorization, particularly for those circumstances where pre-
We have added definitions for the terms “direct effects” and “indirect effects” to the “Definitions” section of the NWPs. District engineers have the authority to modify, suspend, or revoke any NWP authorization (see 33 CFR 330.1(d) and 33 CFR 330.4(e)(2)) when he or she has identified sufficient concerns for the environment or other factors of the public interest. District engineers may also consider environmental benefits that may result when making a decision as to whether an NWP activity results in minimal individual and cumulative adverse effects to the aquatic environment.
One commenter stated that the factors required for a district engineer to make a minimal effects determination on a request for a waiver of the limits of any NWP suggests a level of analysis that is more comparable to the individual permit process, which threatens the availability of the NWPs for prospective permittees.
The evaluation of a request for a waiver of the 300 linear foot limit for the loss of intermittent or ephemeral stream bed, or any other limit that can be waived by the district engineer, is an important tool for maintaining flexibility in the NWP, and authorizing activities that result in minimal individual and cumulative adverse effects on the aquatic environment. The waiver review process is not comparable to the individual permit review process, because it does not require a public notice, National Environmental Policy Act documentation, and a project-specific 404(b)(1) Guidelines analysis.
In response to the proposed considerations for making minimal effects determination, one commenter suggested adding the type of resource that will be affected by the NWP. This commenter also recommended defining the term “minimal effects” as those effects that constitute relatively small changes in the affected environment and insignificant changes in ecological function or hydrology. This commenter said the minimal effects decision may also depend on whether the proposed activity will occur in a special aquatic site, its proximity to nesting or spawning areas, the presence of state- or federally-listed species of concern other than endangered or threatened species, and the amount of permitted or unpermitted aquatic resource loss in the same watershed, stream reach, and/or bay or estuary.
We agree that adding the resource type is appropriate, because the minimal effects threshold may be different for a difficult-to-replace resource such as a stream, bog, fen, or spring. We do not agree that a finding of minimal effects should be based on small changes to the affected environment, ecological function, or hydrology. While the NWPs have acreage or linear foot limits, or inherent limits based on the type of activity authorized, at a small scale those activities result in complete losses of ecological function or hydrology because most discharges of dredged or fill material into waters of the United States replace aquatic areas with dry land. These complete losses of waters of the United States often have minimal individual and cumulative adverse effects on the aquatic environment. It is the environmental setting and other factors listed in the proposed paragraph (e)(1) (which has been changed to paragraph (1) of Section D) that are more appropriate for making the minimal effects determination. It is also the broader watershed or landscape context that is important for determining whether minimal adverse effects on the aquatic environment will result. Proximity to nesting or spawning areas is more appropriately addressed through compliance with general condition 4, migratory bird breeding areas, and general condition 3, spawning areas. Division engineers may impose regional conditions to restrict or prohibit the use of NWPs to authorize activities that may affect state- or federally-listed species of concern if they determine, after the public notice and comment process, it is in the public interest to add such regional conditions to ensure minimal adverse effects. The Corps is required to consider effects within a wetland, stream reach, or coastal waterbody that are caused either by an individual activity, or cumulatively by many such activities authorized by the same NWP, and to determine that such effects are minimal before use of an NWP can be authorized.
We have made additional modifications to the text of this provision of the NWPs. In the first paragraph, we have added a sentence stating that for linear projects, the district engineer will evaluate the individual crossings to determine if they satisfy the terms and conditions of the applicable NWP(s), as well as the cumulative effects of all the crossings authorized by NWPs. This sentence is consistent with the preamble for the NWP final regulation published in the November 22, 1991, issue of the
In paragraphs (2) and (3) of Section D, we have added text to be consistent with the mitigation rule at 33 CFR part 332, with a focus on adding activity-specific conditions to the NWP authorization for compensatory mitigation requirements. We have also added a provision to the end of paragraph (3) stating that the district engineer may determine that prior approval of a mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation. This provision is consistent with 33 CFR 332.3(k)(3).
One commenter said that that phrase should be removed because it is inconsistent with court decisions on the definition of “discharge of dredged material.” We inadvertently included the language in the proposal, and are removing it from the definition.
This definition is adopted with the modification discussed above.
While snow melt may contribute to the flow of ephemeral streams, snow melt also contributes to the flow of intermittent and perennial streams, especially in areas with deep snow packs. The proposed definition appropriately focuses on the duration of flow, and melting snow should not be considered a precipitation event since the development of snow pack occurs over the course of a winter season. Therefore, we are not making the suggested change. Ephemeral streams may, in some circumstances, be channelized or relocated to become roadside ditches, so we do not agree that recommended change should be made.
The definition is adopted as proposed.
We do not agree that the suggested change should be made to this definition, because it would make the definition inconsistent with 33 CFR 328.3(d), which states that storm surges are not to be used to identify the high tide line.
The definition is adopted as proposed.
One commenter requested that the term “independent utility” be eliminated from the nationwide permit program because it discourages assessment of a project's total impacts. Another commenter asked whether the term independent utility applied to both single and complete non-linear projects and single and complete linear projects.
The concept of “independent utility” is important for the implementation of the NWP program because it provides a useful test to help determine whether proposed activities requiring Department of the Army authorization should be evaluated together for one permit authorization, or may be evaluated separately to determine if each activity qualifies for its own permit authorization. Despite the independent utility test, the cumulative effects of NWP activities must still be evaluated by district engineers when they review pre-construction notifications or other NWP verification requests. The modified definition makes it clear that the independent utility test only applies to single and complete non-linear projects; however, separate linear projects may have independent utility.
This definition is adopted as proposed.
The proposed definition stated that the loss of stream bed results from filling or excavating the stream bed, and we do not believe it is necessary to change that definition. The proposed definition also stated that waters of the United States temporarily filled, flooded, excavated, or drained, but restored to pre-construction contours and elevations after construction, are not included in the measurement of loss of waters of the United States. That provision may apply to temporary impacts to waters of the United States caused by utility lines activities, or to any other activity involving temporary filling, flooding, excavation, or drainage. While the presence of an overhead utility line above waters of the United States does not constitute a “loss of waters of the United States,” the construction of a utility line right-of-way for overhead transmission lines may result in losses of waters of the United States if it involves discharges of dredged or fill material into waters of the United States that cause permanent conversions of aquatic areas to dry land or permanent increases to the bottom elevation of a waterbody.
The application of this definition to renewable energy generation facilities in coastal waters and the Great Lakes depends on the type of activity. A structure installed in these waters is generally not considered to result in a loss of waters of the United States, unless it is a pile supported structure that is constructed by placing a series of piles so closely together that they have the effect of fill (see 33 CFR 323.3(c)). If the construction of these facilities and associated structures involves the placement of materials that meet either the definition of “discharge of dredged material” at 33 CFR 323.2(d) or “discharge of fill material” at 33 CFR 323.2(f), such as the placement of riprap at the base of a pile supported structure, then the area of sea bed or lake bed covered by that dredged or fill material would be counted towards the “loss of waters of the United States” for that activity.
The definition is adopted as proposed.
The bankfull elevation is not a useful tool for identifying the ordinary high water marks of streams or rivers in some parts of the country, especially the arid west. In the arid west, the Corps
The definition is adopted as proposed.
Two commenters objected to the proposed change. The addition of the phrase “and functions” makes this definition consistent with the definition at 33 CFR 332.2, which was promulgated in 2008. The objective of re-establishing aquatic resources is to provide aquatic resource functions.
The definition is adopted as proposed.
Many commenters expressed support for the proposal. Most of these commenters also agreed that the independent utility test does not apply to single and complete linear projects. They said the proposed definitions will remove some of the uncertainty and inconsistencies that currently exist with respect to how multiple stream and wetland crossings are evaluated for linear projects as opposed to non-linear projects. One commenter asked for assurance that these new definitions would not materially affect how the Corps evaluates separate crossings of tributaries for the purposes the NWP program.
These two definitions are consistent with the NWP regulations and are not expected to have an effect on the Corps current practices for implementing the NWP program for both linear and non-linear projects.
One commenter opposed differentiating between linear and non-linear projects for the purposes of the definition of single and complete project. One commenter said that references to single and complete linear projects and single and complete non-linear projects should be removed from the NWPs. One commenter stated that these two definitions would complicate the water quality certification process.
The separate definitions established in today's rule will help provide consistent implementation of the NWP program by clarifying how the term “single and complete project” should be applied for different types of activities authorized by NWP. These definitions are important for efficient implementation of the Corps Regulatory Program and determining whether a particular regulated activity and any related regulated activities qualify for NWP authorization. Therefore, we do not agree that these terms should be removed from the NWP program. The definition of “single and complete project” for the NWPs has been in place since 1991 and the separate definitions provided in today's final rule are consistent with the 1991 definition. Therefore, the use of these definitions should not complicate the water quality certification process.
One commenter requested the addition of examples, such as utility lines, to the definition of single and complete linear project. One commenter asked for clarification on whether the term independent utility only applies to non-linear single and complete projects. Several commenters said the definition of single and complete linear project should preclude district engineers from evaluating separate crossings cumulatively.
The new definitions distinguish between linear and non-linear projects and reflect the fact that while each single and complete non-linear project must have independent utility, each single and complete linear project need not have independent utility within the overall linear project. However, separate linear projects may have independent utility. To clarify what a linear project is, we have added a sentence to the definition of single and complete linear project to state that a linear project is a project constructed for the purpose of getting people, goods, or services from a point of origin to a terminal point. A linear project may involve multiple crossings of streams, wetlands, or other types of waters from the point of origin to the terminal point. Roads and pipelines are examples of linear projects. While each separate and distant crossing of a waterbody associated with a linear project would be considered a separate single and complete project for the purposes of the NWPs, district engineers will also evaluate the cumulative effects of those crossings to determine whether they qualify for NWP authorization.
One commenter said that for an overall linear project the sum total of the losses of waters of the United States associated with that linear project cannot exceed the acreage or linear foot limits for an NWP. Several commenters stated that it was inappropriate to use multiple NWPs to authorize multiple crossings associated with one overall linear project, because it would be
For single and complete linear projects, each separate and distant crossing of a waterbody, as well as each crossing of other waterbodies along the corridor for the linear project may be permitted by separate NWP authorizations. The acreage and other applicable limits for an NWP would be applied to each crossing, as long as those crossings are far enough apart to be considered separate and distant. District engineers will evaluate the cumulative effects of those linear projects when determining whether authorization by NWP is appropriate. The approach to cumulative effects analysis for linear projects is little different than the cumulative effects analysis for other types of NWP activities, including those circumstances in which more than one NWP is used to authorize a single and complete non-linear project, because cumulative effects are evaluated on a regional basis. Cumulative effects analysis may be done on a watershed basis, or by using a different type of geographic area, such as an ecoregion.
One commenter asked how offshore wind energy projects would be evaluated in accordance with these definitions, especially how the turbines, substations, cables, and associated infrastructure would be considered as either single and complete linear projects or single and complete non-linear projects.
Deciding which definition to apply to a particular project depends on the configuration of the project relative to the locations of waters of the United States within the project boundaries. For offshore wind energy projects, the turbines would be located on structures in a single waterbody as would the transmission cables that transfer the energy from the turbines to a land-based substation, while land-based attendant features might be constructed in separate waterbodies located within a tract of land. The off-shore turbine structures and land-based attendant features may be considered as a single and complete non-linear project, while as discussed above for NWPs 51 and 52, the utility lines that transfer the energy from the renewable energy generation facilities to a distribution system, regional grid, or other facility may be considered to be separate single and complete linear projects and may be authorized under a separate NWP, such as NWP 12. The district engineer will have to consider the activity-specific circumstances when determining which definition to apply and which NWPs are appropriate to use.
One commenter asked whether district engineers have the authority to change the definitions of single and complete project or independent utility. Two commenters said the term “distant” should be defined in “single and complete linear project.”
The definitions provided in today's final rule cannot be changed by district engineers, but those definitions will be subject to interpretation after these NWPs go into effect and they are implemented. It is not practical to provide specific definition of “distant” since that must be a judgment call by the district engineer because of the substantial variability in landscapes and environmental conditions across the country.
The definition for “single and complete linear project” is adopted with the modification discussed above. The definition for “single and complete non-linear project” is adopted as proposed.
Depending on how a bridge or culvert is constructed, and its effects on the aquatic environment, it may be considered a structure or fill. The bridge supports (i.e., bents) may be considered to be a structure for the purposes of this definition. However, placement of a culvert in a water of the United States can have the effect of raising the bottom elevation and thus should be regulated as fill. Accordingly, we are retaining the definition of structure as is presently proposed.
The definition is adopted with the modifications discussed above.
In addition to the comments submitted on definitions provided in the proposed rule, we received a number of comments suggesting the addition of more definitions to the “Definitions” section of the NWPs.
One commenter requested that we define “discrete event” as it pertains to NWP 3 and NWP 45. One commenter asked for a definition of mechanized land clearing as it relates to the first pre-construction notification threshold in NWP 12, to make it clear whether activities that only involve the cutting or removal of vegetation above the ground are, or are not, regulated activities. One commenter said that the definition of fill should be provided in the NWPs to clarify the types of materials allowed or prohibited by the NWPs.
What constitutes a “discrete event” for the purposes of NWPs 3 and 45 is at the discretion of the district engineer, and in both NWPs we provide examples that give context to the term “discrete event.” In NWP 3, storms, floods, and fire are examples of discrete events. For NWP 45, storms and floods provide examples of discrete events. The definition of “discharge of dredged material” at 33 CFR 323.2(d) is used to determine whether mechanized landclearing involves a discharge of
One commenter suggested adding a definition of “special aquatic sites” in the NWPs. One commenter said the definition of special aquatic sites should include glides, side channels, floodplains, and other types of habitats that create and maintain habitat for salmon and other fish species.
The NWPs have a definition for one of the special aquatic sites listed in the 404(b)(1) Guidelines, specifically riffle and pool complexes and vegetated shallows. Definitions for the other special aquatic sites, that is, sanctuaries and refuges, wetlands, mud flats, and coral reefs, are found at sections 230.40, 230.41, 230.42, and 230.44 of 40 CFR part 230, respectively. Glides, side channels, floodplains, and salmon and fish habitat are not considered special aquatic sites unless they satisfy the criteria at 40 CFR 230.40 through 230.45.
Concurrent with this
In compliance with the principles in the President's Memorandum of June 1, 1998, (63 FR 31855) regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
These NWPs will result in a net decrease in the number of permittees who are required to submit a pre-construction notification, especially because of the changes to NWP 48. The content of the pre-construction notification is not changed from the current NWPs, and the paperwork burden will decrease because of the reduced number of pre-construction notifications submitted. The Corps estimates the decreased paperwork burden to be 4,005 hours per year. This is based on an average burden to complete and submit a pre-construction notification of 11 hours, and an estimated 45 NWP 48 activities that will still require pre-construction notifications, rather than 3,150 NWP 48 activities that were previously estimated to require either reporting or pre-construction notification. Prospective permittees who are required to submit a pre-construction notification for a particular NWP, or who are requesting verification that a particular activity qualifies for NWP authorization, may use the current standard Department of the Army permit application form or submit the required information in a letter. The total burden for filing pre-construction notifications is estimated at 330,000 hours per year (11 hours times 30,000 activities per year requiring pre-construction notification).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. For the Corps Regulatory Program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information collection requirements is maintained by the Corps of Engineers (OMB approval number 0710–0003, which expires on August 31, 2012).
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Orders 12866 and 13563, we determined that this action is a “significant regulatory action” and it was submitted to OMB for review. It is a significant regulatory action because it meets the fourth criterion in the Executive Order.
The most substantive changes to these NWPs are the additional limits imposed on NWP 21, which authorizes discharges of dredged or fill material into waters of the United States associated with surface coal mining activities, the issuance of NWPs 51 and 52, which authorize activities associated with renewable energy generation facilities, and the modifications to NWP 48 which authorize existing and new commercial shellfish aquaculture activities.
The changes to the NWPs that are most likely to result in additional economic costs are the changes to NWP 21, especially the
The issuance of NWPs 51 and 52 will reduce the number of renewable energy generation facilities involving activities regulated under section 404 and/or section 10 requiring individual permits. While some components of land-based renewable energy generation facilities, such as road crossings, utility lines, and building pads involving discharges of dredged or fill material into waters of the United States, have been authorized by NWPs such as NWPs 14, 12, and 39 in the past, the new NWP 51 will provide DA authorization for all components of land-based renewable energy generation facilities that involve discharges of dredged or fill material into waters of the United States. There was no NWP authorization available for water-based renewable energy generation pilot projects, so the new NWP 52 will reduce the number of those activities that require individual permits.
The NWPs support the goals of Executive Order 13563, “Improving Regulation and Regulatory Review” by reducing burdens on the regulated public through a streamlined process for obtaining Department of the Army authorization for activities that will result in minimal individual and cumulative adverse effects on the aquatic environment. The NWPs reissued today, when considered as an overall package of NWPs, will authorize more activities than were previously authorized by NWP, such as water-based renewable energy pilot projects and new commercial shellfish aquaculture activities.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The issuance of NWPs does not have federalism implications. We do not believe that the NWPs will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The NWPs will not impose any additional substantive obligations on State or local governments. Therefore, Executive Order 13132 does not apply to these final NWPs.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed issuance and modification of NWPs on small entities, a small entity is defined as: (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
The statutes under which the Corps issues, reissues, or modifies NWPs are Section 404(e) of the Clean Water Act (33 U.S.C. 1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Under section 404, Department of the Army (DA) permits are required for discharges of dredged or fill material into waters of the United States. Under section 10, DA permits are required for any structures or other work that affect the course, location, or condition of navigable waters of the United States. Small entities proposing to discharge dredged or fill material into waters of the United States and/or conduct work in navigable waters of the United States must obtain DA permits to conduct those activities, unless a particular activity is exempt from those permit requirements. Individual permits and general permits can be issued by the Corps to satisfy the permit requirements of these two statutes. Nationwide permits are a form of general permit issued by the Chief of Engineers.
Nationwide permits automatically expire and become null and void if they are not modified or reissued within five years of their effective date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean Water Act states that general permits, including NWPs, can be issued for no more than five years. If the current NWPs are not reissued small entities and other project proponents would be required to obtain alternative forms of DA permits (i.e., standard permits, letters of permission, or regional general permits) for activities involving discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States. Regional general permits that authorize similar activities as the NWPs may be available in some geographic areas, so small entities conducting regulated activities outside those geographic areas would have to obtain individual permits for activities that require DA permits.
Nationwide permits help relieve regulatory burdens on small entities who need to obtain DA permits. They provide an expedited form of authorization, as long as the project proponent meets all terms and conditions of the NWPs. In FY 2010, the Corps issued 32,029 NWP verifications, with an average processing time of 32 days. Those numbers do not include activities that are authorized by NWP, where the project proponent was not required to submit a pre-construction notification or did not voluntarily seek verification that an activity qualified for NWP authorization. The average processing time for the 2,085 standard permits issued during FY 2010 was 221 days. The NWPs issued and reissued today are expected to result in a slight increase in the numbers of activities potentially qualifying for NWP authorization. The estimated numbers of activities qualifying for NWP authorization are provided in the decision documents that were prepared for each NWP. The NWPs issued and reissued today are not expected to significantly increase cost or paperwork burden for authorized activities (relative to the NWPs issued in 2007), including those conducted by small businesses.
The costs for obtaining coverage under an NWP are low. We estimate the average time to prepare and file a pre-construction notification, for those activities where a pre-construction notification is required, is 11 hours. We do not believe this constitutes a “significant economic impact” on project proponents, including small businesses.
Another requirement of Section 404(e) of the Clean Water Act is that general permits, including NWPs, authorize only those activities that result in minimal adverse environmental effects, individually and cumulatively. The terms and conditions of the NWPs, such as acreage or linear foot limits, are imposed to ensure that the NWPs authorize only those activities that result in minimal adverse effects on the aquatic environment and other public interest review factors. In addition to the paperwork burden of filing a pre-construction notification, many NWPs require that low-cost, commonsense practices be used to minimize adverse effects. These requirements also do not constitute “significant economic impacts.”
After considering the economic impacts of these NWPs on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. Small entities may obtain required DA authorizations through the NWPs, in cases where there are applicable NWPs authorizing those activities and the proposed work will result in minimal adverse effects on the aquatic environment and other public interest review factors. The terms and conditions of these NWPs will not generally impose significant economic costs on small entities, and do not generally impose higher costs on small entities than those of the previous NWPs. If an NWP is not available to authorize a particular activity, then another form of DA authorization, such as an individual permit or regional general permit, must be secured. However, as noted above, we expect a slight increase in the number of activities that can be authorized through these NWPs, because we are issuing two new NWPs and making substantial changes to NWP 48. The changes to NWP 48, commercial shellfish aquaculture activities, will result in fewer project proponents having to submit pre-construction notifications or reports to Corps districts. We have also modified NWP 48 to authorize new commercial shellfish aquaculture activities, which were not previously authorized by NWP. While we are making substantial changes to NWP 21, we are also providing NWP 21 authorization without the new limits for surface coal mining activities previously authorized under the 2007 NWP 21, to have an equitable transition for those surface coal mining activities that cannot complete the authorized work by March 18, 2013. For new NWP 21 activities subject to the new limits and prohibition against valley fills, where the project proponent is considered a small entity, the changes to that NWP will not result in a significant economic impact because the costs for obtaining an NWP 21 authorization is generally higher when compared to other NWPs, and approach the costs for obtaining an individual permit.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, Section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows an agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before an agency establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under Section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that the NWPs issued today do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. The NWPs are generally consistent with current agency practice, do not impose new substantive requirements and therefore do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, the NWPs issued today are not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that the NWPs contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the issuance of NWPs is not subject to the requirements of Section 203 of UMRA.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If
The NWPs issued today are not subject to this Executive Order because they are not economically significant as defined in Executive Order 12866. In addition, these NWPs do not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The NWPs issued today do not have tribal implications. They are generally consistent with current agency practice and will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Therefore, Executive Order 13175 does not apply to this proposal. Corps districts are conducting government-to-government consultation with Indian tribes to develop regional conditions that help protect tribal rights and trust resources, and to facilitate compliance with general condition 17, Tribal Rights.
A decision document, which includes an environmental assessment and Finding of No Significant Impact (FONSI), has been prepared for each NWP. These decision documents are available at:
The Congressional Review Act, 5 U.S.C. 801
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
The NWPs issued today are not expected to negatively impact any community, and therefore are not expected to cause any disproportionately high and adverse impacts to minority or low-income communities.
The NWPs are not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Some of the NWPs authorize activities that support the supply and distribution of energy.
We are issuing new NWPs and reissuing existing NWPs under the authority of Section 404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401
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(b) This NWP also authorizes the removal of accumulated sediments and debris in the vicinity of existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.) and/or the placement of new or additional riprap to protect the structure. The removal of sediment is limited to the minimum necessary to restore the waterway in the vicinity of the structure to the approximate dimensions that existed when the structure was built, but cannot extend farther than 200 feet in any direction from the structure. This 200 foot limit does not apply to maintenance dredging to remove accumulated sediments blocking or restricting outfall and intake structures or to maintenance dredging to remove accumulated sediments from canals associated with outfall and intake structures. All dredged or excavated materials must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization. The placement of new or additional riprap must be the minimum necessary to protect the structure or to ensure the safety of the structure. Any bank stabilization measures not directly associated with the structure will require a separate authorization from the district engineer.
(c) This NWP also authorizes temporary structures, fills, and work necessary to conduct the maintenance activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills
(d) This NWP does not authorize maintenance dredging for the primary purpose of navigation. This NWP does not authorize beach restoration. This NWP does not authorize new stream channelization or stream relocation projects.
This NWP authorizes the repair, rehabilitation, or replacement of any previously authorized structure or fill that does not qualify for the Clean Water Act Section 404(f) exemption for maintenance.
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Material resulting from trench excavation may be temporarily sidecast into waters of the United States for no more than three months, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The district engineer may extend the period of temporary side casting for no more than a total of 180 days, where appropriate. In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the trench. The trench cannot be constructed or backfilled in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a french drain effect). Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody.
This NWP may authorize utility lines in or affecting navigable waters of the United States even if there is no associated discharge of dredged or fill material (See 33 CFR Part 322). Overhead utility lines constructed over section 10 waters and utility lines that are routed in or under section 10 waters without a discharge of dredged or fill material require a section 10 permit.
This NWP also authorizes temporary structures, fills, and work necessary to conduct the utility line activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
Where the proposed utility line is constructed or installed in navigable waters of the United States (i.e., section 10 waters) within the coastal United States, the Great Lakes, and United States territories, copies of the pre-construction notification and NWP verification will be sent by the Corps to the National Oceanic and Atmospheric Administration (NOAA), National Ocean Service (NOS), for charting the utility line to protect navigation.
Access roads used for both construction and maintenance may be authorized, provided they meet the terms and conditions of this NWP. Access roads used solely for construction of the utility line must be removed upon completion of the work, in accordance with the requirements for temporary fills.
Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances over navigable waters of the United States are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to Section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the United States associated with such pipelines will require a section 404 permit (see NWP 15).
For overhead utility lines authorized by this NWP, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
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(a) No material is placed in excess of the minimum needed for erosion protection;
(b) The activity is no more than 500 feet in length along the bank, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;
(c) The activity will not exceed an average of one cubic yard per running foot placed along the bank below the plane of the ordinary high water mark or the high tide line, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;
(d) The activity does not involve discharges of dredged or fill material into special aquatic sites, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;
(e) No material is of a type, or is placed in any location, or in any manner, that will impair surface water flow into or out of any waters of the United States;
(f) No material is placed in a manner that will be eroded by normal or
(g) The activity is not a stream channelization activity.
This NWP also authorizes temporary structures, fills, and work necessary to construct the bank stabilization activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
Invasive plant species shall not be used for bioengineering or vegetative bank stabilization.
14.
This NWP also authorizes temporary structures, fills, and work necessary to construct the linear transportation project. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
This NWP cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars.
Some discharges for the construction of farm roads or forest roads, or temporary roads for moving mining equipment, may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).
15.
16.
17.
18.
(a) The quantity of discharged material and the volume of area excavated do not exceed 25 cubic yards below the plane of the ordinary high water mark or the high tide line;
(b) The discharge will not cause the loss of more than
(c) The discharge is not placed for the purpose of a stream diversion.
19.
20.
21.
(a)
(1) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of Interior, Office of Surface Mining Reclamation and Enforcement;
(2) The permittee must submit a letter to the district engineer requesting re-verification of the NWP 21 authorization. The letter must describe any changes from the previous NWP 21 verification. The letter must be submitted to the district engineer by February 1, 2013;
(3) The loss of waters of the United States is not greater than the loss of waters of the United States previously verified by the district engineer under the NWP 21 issued on March 12, 2007 (i.e., there are no proposed expansions of surface coal mining activities in waters of the United States);
(4) The district engineer provides written verification that those activities will result in minimal individual and cumulative adverse effects and are authorized by NWP 21, including currently applicable regional conditions and any activity-specific conditions added to the NWP authorization by the district engineer, such as compensatory mitigation requirements; and
(5) If the permittee does not receive a written verification from the district engineer prior to March 18, 2013, the permittee must cease all activities until such verification is received. The district engineer may extend the February 1, 2013, deadline by so notifying the permittee in writing, but the permittee must still cease all activities if he or she has not received written verification from the Corps by March 18, 2013, until such verification is received.
(b)
(1) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of Interior, Office of Surface Mining Reclamation and Enforcement;
(2) The discharge must not cause the loss of greater than
(3) The discharge is not associated with the construction of valley fills. A “valley fill” is a fill structure that is typically constructed within valleys associated with steep, mountainous terrain, associated with surface coal mining activities.
22.
If a removed vessel is disposed of in waters of the United States, a permit from the U.S. EPA may be required (see 40 CFR 229.3). If a Department of the Army permit is required for vessel disposal in waters of the United States, separate authorization will be required.
Compliance with general condition 18, Endangered Species, and general condition 20, Historic Properties, is required for all NWPs. The concern with historic properties is emphasized in the notification requirements for this NWP because of the likelihood that submerged vessels may be historic properties.
23.
(a) That agency or department has determined, pursuant to the Council on Environmental Quality's implementing regulations for the National Environmental Policy Act (40 CFR part 1500 et seq.), that the activity is categorically excluded from environmental documentation, because it is included within a category of actions which neither individually nor cumulatively have a significant effect on the human environment; and
(b) The Office of the Chief of Engineers (Attn: CECW–CO) has concurred with that agency's or department's determination that the activity is categorically excluded and approved the activity for authorization under NWP 23.
The Office of the Chief of Engineers may require additional conditions, including pre-construction notification, for authorization of an agency's categorical exclusions under this NWP.
The agency or department may submit an application for an activity believed to be categorically excluded to the Office of the Chief of Engineers (Attn: CECW–CO). Prior to approval for authorization under this NWP of any agency's activity, the Office of the Chief of Engineers will solicit public comment. As of the date of issuance of this NWP, agencies with approved categorical exclusions are the: Bureau of Reclamation, Federal Highway Administration, and U.S. Coast Guard. Activities approved for authorization under this NWP as of the date of this notice are found in Corps Regulatory Guidance Letter 05–07, which is available at:
24.
As of the date of the promulgation of this NWP, only New Jersey and Michigan administer their own section 404 permit programs.
Those activities that do not involve an Indian Tribe or State section 404 permit are not included in this NWP, but certain structures will be exempted by Section 154 of Public Law 94–587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).
25.
26. [Reserved]
27.
To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: The removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, restoration, or establishment of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to restore or establish stream meanders; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to establish or re-establish wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant species should be planted at the site.
This NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services.
Except for the relocation of non-tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (e.g., stream to wetland or vice versa) or uplands. Changes in wetland plant communities that occur when wetland hydrology is more fully restored during wetland rehabilitation activities are not considered a conversion to another aquatic habitat type. This NWP does not authorize stream channelization. This NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water impoundments.
Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services.
(1) Activities conducted on non-Federal public lands and private lands, in accordance with the terms and conditions of a binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement between the landowner and the U.S. FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating agencies;
(2) Voluntary stream or wetland restoration or enhancement action, or wetland establishment action, documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or
(3) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued by the OSMRE or the applicable state agency.
However, the permittee must submit a copy of the appropriate documentation to the district engineer to fulfill the reporting requirement. (Sections 10 and 404)
This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in-lieu fee projects. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition, since compensatory mitigation is generally intended to be permanent.
28.
29.
The discharge must not cause the loss of greater than
30.
The repair, maintenance, or replacement of existing water control structures or the repair or maintenance of dikes may be authorized by NWP 3. Some such activities may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).
31.
32.
(i) The terms of a final written Corps non-judicial settlement agreement resolving a violation of Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms of an EPA 309(a) order on consent resolving a violation of Section 404 of the Clean Water Act, provided that:
(a) The unauthorized activity affected no more than 5 acres of non-tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits, to an equal or greater degree, than the environmental detriments caused by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing the activity subject to the terms and conditions of this NWP and the settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree, or settlement agreement resulting from an enforcement action brought by the United States under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree, settlement agreement, or non-judicial settlement agreement resulting from a natural resource damage claim brought by a trustee or trustees for natural resources (as defined by the National Contingency Plan at 40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 of the Oil Pollution Act of 1990, or the Park System Resource Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is required.
Compliance is a condition of the NWP itself. Any authorization under this NWP is automatically revoked if the permittee does not comply with the terms of this NWP or the terms of the court decision, consent decree, or judicial/non-judicial settlement agreement. This NWP does not apply to any activities occurring after the date of the decision, decree, or agreement that are not for the purpose of mitigation, restoration, or environmental benefit. Before reaching any settlement agreement, the Corps will ensure compliance with the provisions of 33
33.
34.
35.
36.
(a) The discharge into waters of the United States does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or in the form of pre-cast concrete planks or slabs, unless the district engineer waives the 50 cubic yard limit by making a written determination concluding that the discharge will result in minimal adverse effects;
(b) The boat ramp does not exceed 20 feet in width, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in minimal adverse effects;
(c) The base material is crushed stone, gravel or other suitable material;
(d) The excavation is limited to the area necessary for site preparation and all excavated material is removed to an area that has no waters of the United States; and,
(e) No material is placed in special aquatic sites, including wetlands.
The use of unsuitable material that is structurally unstable is not authorized. If dredging in navigable waters of the United States is necessary to provide access to the boat ramp, the dredging must be authorized by another NWP, a regional general permit, or an individual permit.
37.
(a) The Natural Resources Conservation Service for a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624);
(b) The U.S. Forest Service under its Burned-Area Emergency Rehabilitation Handbook (FSH 2509.13);
(c) The Department of the Interior for wildland fire management burned area emergency stabilization and rehabilitation (DOI Manual part 620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs, for abandoned mine land reclamation activities under Title IV of the Surface Mining Control and Reclamation Act (30 CFR Subchapter R), where the activity does not involve coal extraction; or
(e) The Farm Service Agency under its Emergency Conservation Program (7 CFR part 701).
In general, the prospective permittee should wait until the district engineer issues an NWP verification or 45 calendar days have passed before proceeding with the watershed protection and rehabilitation activity. However, in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur, the emergency watershed protection and rehabilitation activity may proceed immediately and the district engineer will consider the information in the pre-construction notification and any comments received as a result of agency coordination to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5.
38.
Activities undertaken entirely on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.
39.
The discharge must not cause the loss of greater than
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
40.
This NWP also authorizes the construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, provided the farm pond is used solely for agricultural purposes. This NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material into non-tidal waters of the United States to relocate existing serviceable drainage ditches constructed in non-tidal streams.
The discharge must not cause the loss of greater than
Some discharges for agricultural activities may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4). This NWP authorizes the construction of farm ponds that do not qualify for the Clean Water Act Section 404(f)(1)(C) exemption because of the recapture provision at Section 404(f)(2).
41.
This NWP does not authorize the relocation of drainage ditches constructed in waters of the United States; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects.
42.
The discharge must not cause the loss of greater than
43.
The discharge must not cause the loss of greater than
44.
45.
This NWP does not authorize beach restoration or nourishment.
Minor dredging is limited to the amount necessary to restore the damaged upland area and should not significantly alter the pre-existing bottom contours of the waterbody.
The uplands themselves that are lost as a result of a storm, flood, or other discrete event can be replaced without a section 404 permit, if the uplands are restored to the ordinary high water mark (in non-tidal waters) or high tide line (in tidal waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of dredged or fill material into waters of the United States associated with the restoration of uplands.
46.
47. [Reserved]
48.
(a) The cultivation of a nonindigenous species unless that species has been previously cultivated in the waterbody;
(b) The cultivation of an aquatic nuisance species as defined in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990; or,
(c) Attendant features such as docks, piers, boat ramps, stockpiles, or staging areas, or the deposition of shell material back into waters of the United States as waste.
This NWP also authorizes commercial shellfish aquaculture activities in new project areas, provided the project proponent has obtained a valid
In addition to the information required by paragraph (b) of general condition 31, the pre-construction notification must also include the following information: (1) A map showing the boundaries of the project area, with latitude and longitude coordinates for each corner of the project area; (2) the name(s) of the cultivated species; and (3) whether canopy predator nets are being used. (Sections 10 and 404)
The permittee should notify the applicable U.S. Coast Guard office regarding the project.
To prevent introduction of aquatic nuisance species, no material that has been taken from a different waterbody may be reused in the current project area, unless it has been treated in accordance with the applicable regional aquatic nuisance species management plan.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 defines “aquatic nuisance species” as “a nonindigenous species that threatens the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, aquacultural, or recreational activities dependent on such waters.”
49.
As part of the project, the permittee may conduct new coal mining activities in conjunction with the remining activities when he or she clearly demonstrates to the district engineer that the overall mining plan will result in a net increase in aquatic resource functions. The Corps will consider the SMCRA agency's decision regarding the amount of currently undisturbed adjacent lands needed to facilitate the remining and reclamation of the previously mined area. The total area disturbed by new mining must not exceed 40 percent of the total acreage covered by both the remined area and the additional area necessary to carry out the reclamation of the previously mined area.
50.
The discharge must not cause the loss of greater than
Coal preparation and processing activities outside of the mine site may be authorized by NWP 21.
51.
The discharge must not cause the loss of greater than
Utility lines constructed to transfer the energy from the land-based renewable generation facility to a distribution system, regional grid, or other facility are generally considered to be linear projects and each separate and distant crossing of a waterbody is eligible for treatment as a separate and complete linear project. Those utility lines may be authorized by NWP 12 or another Department of the Army authorization. If the only activities associated with the construction, expansion, or modification of a land-based renewable energy generation facility that require Department of the Army authorization are discharges of dredged or fill material into waters of the United States to construct, maintain, repair, and/or remove utility lines, then NWP 12 shall be used if those activities meet the terms and conditions of NWP 12, including any applicable regional conditions and any case-specific conditions imposed by the district engineer.
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
52.
For the purposes of this NWP, the term “pilot project” means an experimental project where the renewable energy generation units will be monitored to collect information on their performance and environmental effects at the project site.
The discharge must not cause the loss of greater than
For each single and complete project, no more than 10 generation units (e.g., wind turbines or hydrokinetic devices) are authorized.
This NWP does not authorize activities in coral reefs. Structures in an anchorage area established by the U.S. Coast Guard must comply with the requirements in 33 CFR 322.5(l)(2). Structures may not be placed in established danger zones or restricted areas as designated in 33 CFR part 334, Federal navigation channels, shipping safety fairways or traffic separation schemes established by the U.S. Coast Guard (see 33 CFR 322.5(l)(1)), or EPA or Corps designated open water dredged material disposal areas.
Upon completion of the pilot project, the generation units, transmission lines, and other structures or fills associated with the pilot project must be removed to the maximum extent practicable unless they are authorized by a separate Department of the Army authorization, such as another NWP, an individual permit, or a regional general permit. Completion of the pilot project will be identified as the date of expiration of the Federal Energy Regulatory Commission (FERC) license, or the expiration date of the NWP authorization if no FERC license is issued.
Utility lines constructed to transfer the energy from the land-based collection facility to a distribution system, regional grid, or other facility are generally considered to be linear projects and each separate and distant crossing of a waterbody is eligible for treatment as a separate and complete linear project. Those utility lines may be authorized by NWP 12 or another Department of the Army authorization.
An activity that is located on an existing locally or federally maintained U.S. Army Corps of Engineers project requires separate approval from the Chief of Engineers under 33 U.S.C. 408.
If the pilot project, including any transmission lines, is placed in navigable waters of the United States (i.e., section 10 waters) within the coastal United States, the Great Lakes, and United States territories, copies of the pre-construction notification and NWP verification will be sent by the Corps to the National Oceanic and Atmospheric Administration, National Ocean Service, for charting the generation units and associated transmission line(s) to protect navigation.
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case-specific conditions imposed by the division engineer or district engineer. Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.
1.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
(b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address ESA compliance for the NWP activity, or whether additional ESA consultation is necessary.
(c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally listed endangered or threatened species or designated critical habitat, the pre-construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed work or that utilize the designated critical habitat that might be affected by the proposed work. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the Corps' determination within 45 days of receipt of a complete pre-construction notification. In cases where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the project, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification the proposed activities will have “no effect” on listed species or critical habitat, or until Section 7 consultation has been completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.
(d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific regional endangered species conditions to the NWPs.
(e) Authorization of an activity by a NWP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental take” provisions, etc.) from the U.S. FWS or the NMFS, The Endangered Species Act prohibits any person subject to the jurisdiction of the United States to take a listed species, where “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The word “harm” in the definition of “take” means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns,
(f) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the U.S. FWS and NMFS or their world wide web pages at
19.
20.
(b) Federal permittees should follow their own procedures for complying with the requirements of Section 106 of the National Historic Preservation Act. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will review the documentation and determine whether it is sufficient to address section 106 compliance for the NWP activity, or whether additional section 106 consultation is necessary.
(c) Non-federal permittees must submit a pre-construction notification to the district engineer if the authorized activity may have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties may be affected by the proposed work or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of or potential for the presence of historic resources can be sought from the State Historic Preservation Officer or Tribal Historic Preservation Officer, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of Section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted and these efforts, the district engineer shall determine whether the proposed activity has the potential to cause an effect on the historic properties. Where the non-Federal applicant has identified historic properties on which the activity may have the potential to cause effects and so notified the Corps, the non-Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects or that consultation under Section 106 of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA Section 106 consultation is required. Section 106 consultation is not required when the Corps determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). If NHPA section 106 consultation is required and will occur, the district engineer will notify the non-Federal applicant that he or she cannot begin work until Section 106 consultation is completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.
(e) Prospective permittees should be aware that section 110k of the NHPA (16 U.S.C. 470h–2(k)) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.
21.
22.
(a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38, notification is required in accordance with general condition 31, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal.
23.
(a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the adverse effects to the aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed
(1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in minimal adverse effects on the aquatic environment.
(2) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, wetland restoration should be the first compensatory mitigation option considered.
(3) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2)–(14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)).
(4) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided.
(5) Compensatory mitigation requirements (e.g., resource type and amount to be provided as compensatory mitigation, site protection, ecological performance standards, monitoring requirements) may be addressed through conditions added to the NWP authorization, instead of components of a compensatory mitigation plan.
(d) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation, such as stream rehabilitation, enhancement, or preservation, to ensure that the activity results in minimal adverse effects on the aquatic environment.
(e) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of
(f) Compensatory mitigation plans for projects in or near streams or other open waters will normally include a requirement for the restoration or establishment, maintenance, and legal protection (e.g., conservation easements) of riparian areas next to open waters. In some cases, riparian areas may be the only compensatory mitigation required. Riparian areas should consist of native species. The width of the required riparian area will address documented water quality or aquatic habitat loss concerns. Normally, the riparian area will be 25 to 50 feet wide on each side of the stream, but the district engineer may require slightly wider riparian areas to address documented water quality or habitat loss concerns. If it is not possible to establish a riparian area on both sides of a stream, or if the waterbody is a lake or coastal waters, then restoring or establishing a riparian area along a single bank or shoreline may be sufficient. Where both wetlands and open waters exist on the project site, the district engineer will determine the appropriate compensatory mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best for the aquatic environment on a watershed basis. In cases where riparian areas are determined to be the most appropriate form of compensatory mitigation, the district engineer may waive or reduce the requirement to provide wetland compensatory mitigation for wetland losses.
(g) Permittees may propose the use of mitigation banks, in-lieu fee programs, or separate permittee-responsible mitigation. For activities resulting in the loss of marine or estuarine resources, permittee-responsible compensatory mitigation may be environmentally preferable if there are no mitigation banks or in-lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management.
(h) Where certain functions and services of waters of the United States are permanently adversely affected, such as the conversion of a forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse effects of the project to the minimal level.
24.
25.
26.
27.
28.
29.
“When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.”
30.
(a) A statement that the authorized work was done in accordance with the NWP authorization, including any general, regional, or activity-specific conditions;
(b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in-lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and
(c) The signature of the permittee certifying the completion of the work and mitigation.
31.
(1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or
(2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or in the vicinity of the project, or to notify the Corps pursuant to general condition 20 that the activity may have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is “no effect” on listed species or “no potential to cause effects” on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or Section 106 of the National Historic Preservation (see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2).
(b)
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed project;
(3) A description of the proposed project; the project's purpose; direct and indirect adverse environmental effects the project would cause, including the anticipated amount of loss of water of the United States expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity. The description should be sufficiently detailed to allow the district engineer to determine that the adverse effects of the project will be minimal and to determine the need for compensatory mitigation. Sketches should be provided
(4) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many waters of the United States. Furthermore, the 45 day period will not start until the delineation has been submitted to or completed by the Corps, as appropriate;
(5) If the proposed activity will result in the loss of greater than
(6) If any listed species or designated critical habitat might be affected or is in the vicinity of the project, or if the project is located in designated critical habitat, for non-Federal applicants the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed work or utilize the designated critical habitat that may be affected by the proposed work. Federal applicants must provide documentation demonstrating compliance with the Endangered Species Act; and
(7) For an activity that may affect a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, for non-Federal applicants the PCN must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. Federal applicants must provide documentation demonstrating compliance with Section 106 of the National Historic Preservation Act.
(c)
(d)
(2) For all NWP activities that require pre-construction notification and result in the loss of greater than
(3) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act.
(4) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre-construction notifications to expedite agency coordination.
1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. For a linear project, this determination will include an evaluation of the individual crossings to determine whether they individually satisfy the terms and conditions of the NWP(s), as well as the cumulative effects caused by all of the crossings authorized by NWP. If an applicant requests a waiver of the 300 linear foot limit on impacts to intermittent or ephemeral streams or of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51 or 52, the district engineer will only grant the waiver upon a written determination that the NWP activity will result in minimal adverse effects. When making minimal effects determinations the district engineer will consider the direct and indirect effects caused by the NWP activity. The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (e.g., partial or complete loss), the duration of the
2. If the proposed activity requires a PCN and will result in a loss of greater than
3. If the district engineer determines that the adverse effects of the proposed work are more than minimal, then the district engineer will notify the applicant either: (a) That the project does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (b) that the project is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level; or (c) that the project is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse effects occur to the aquatic environment, the activity will be authorized within the 45-day PCN period, with activity-specific conditions that state the mitigation requirements. The authorization will include the necessary conceptual or detailed mitigation or a requirement that the applicant submit a mitigation plan that would reduce the adverse effects on the aquatic environment to the minimal level. When mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan or has determined that prior approval of a final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation.
1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Final rule.
In this final rule, the U.S. Department of Energy (DOE) is amending its test procedure for commercial refrigeration equipment (CRE), incorporating changes that will take effect 30 days after the final rule is published in the
The effective date of this rule is March 22, 2012. The final rule changes will be mandatory for equipment testing starting on the compliance date of any amended energy conservation standards promulgated as a result of the on-going energy conservation standard rulemaking for commercial refrigeration equipment (Docket No. EERE–2010–BT–STD–0003). Representations either in writing or in any broadcast advertisement with respect to energy consumption of commercial refrigeration equipment must also be made using the revised DOE test procedure beginning on that compliance date.
The incorporation by reference of certain publications listed in this final rule is approved by the Director of the Office of the Federal Register as of March 22, 2012.
The docket is available for review at regulations.gov, including
A link to the docket Web page can be found at:
Mr. Charles Llenza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–2192. Email:
Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 287–6111. Email:
This final rule incorporates by reference into Part 431 the following industry standards:
(1) Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 1200 (I–P)–2010, “2010 Standard for Performance Rating of Commercial Refrigerated Display Merchandisers and Storage Cabinets,” and
(2) Association of Home Appliance Manufacturers (AHAM) Standard HRF–1–2008, “Energy and Internal Volume of Refrigerating Appliances (2008),” including Errata to Energy and Internal Volume of Refrigerating Appliances, Correction Sheet issued November 17, 2009.
Copies of AHRI standards may be purchased from the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, 703–524–8800, or at
Copies of AHAM standards may be purchased from the Association of Home Appliance Manufacturers, 1111 19th Street, NW., Suite 402, Washington, DC 20036, 202–872–5955, or at
Title III, Part C of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94–163 (42 U.S.C. 6311–6317, as codified), added by Public Law 95–619, title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, a program covering certain industrial equipment, which includes commercial refrigerators, freezers, and refrigerator-freezers, the subject of this final rule.
Under EPCA, this program consists essentially of four parts: (1) Testing; (2) labeling; (3) Federal energy conservation standards
EPCA requires DOE to conduct an evaluation of each class of covered equipment at least once every 7 years to determine whether to, among other things, amend the test procedure for such equipment. (42 U.S.C. 6314(a)(1)(A)) This rulemaking fulfills DOE's obligation under EPCA to evaluate the test procedure for commercial refrigeration equipment every 7 years.
In addition, EPCA contains specific provisions relating to the test procedure for commercial refrigeration equipment. The test procedure for commercial refrigerators, freezers, and refrigerator-freezers must be: (1) The test procedure determined to be generally accepted industry testing procedures; or (2) rating procedures developed or recognized by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) or by the American National Standards Institute (ANSI). (42 U.S.C. 6314(a)(6)(A)(i)) EPCA also establishes the initial test procedure for self-contained refrigerators, freezers, and refrigerator-freezers with doors. EPCA established the ASHRAE Standard 117 test procedure, “Method of Testing Closed Refrigerators,” (ASHRAE 117–2002) as the initial test procedure for commercial refrigeration equipment, which became effective on January 1, 2005. (42 U.S.C. 6314(a)(6)(A)(ii))
EPCA also establishes that if ASHRAE 117 is amended, the Secretary of Energy (Secretary) must, by rule, amend the DOE test procedure to ensure consistency with the amended ASHRAE 117 standard, unless a case can be made, through certain findings based on clear and convincing evidence, that the amended ASHRAE 117 does not meet the requirements for a test procedure set forth in EPCA. (42 U.S.C. 6314(a)(6)(E) and 6314(2)–(3)) In addition, EPCA states that if a test procedure other than ASHRAE 117 is approved by ANSI, the Secretary must review the relative strengths and weaknesses of such a new test procedure relative to the ASHRAE 117 test procedure and, based on that review, determine whether to adopt the alternate test procedure as the DOE test procedure. (42 U.S.C. 6314(a)(6)(F))
ASHRAE amended ASHRAE 117–2002 and adopted ASHRAE Standard 72–2005, “Method of Testing Commercial Refrigerators and Freezers,” in its place, which was approved by ANSI on July 29, 2005. During the 2006 en masse test procedure rulemaking, which adopted the test procedures specifically established in EPACT 2005, DOE reviewed ASHRAE Standard 72–2005, as well as ARI Standard 1200–2006. 71 FR 71357 (Dec. 8, 2006). DOE determined that ARI Standard 1200–2006 references the test procedure in ASHRAE Standard 72–2005, as well as the rating temperatures prescribed in EPACT 2005 for certain types of commercial refrigerators and freezers. (42 U.S.C. 6314(a)(6)(B)(i)) As a result, on December 8, 2006, DOE published a final rule (December 2006 en masse test procedure final rule) that, among other things, adopted ANSI/Air-Conditioning and Refrigeration Institute (ARI) Standard 1200–2006, “2006 Standard for Performance Rating of Commercial Refrigerated Display Merchandisers and Storage Cabinets,” (hereafter referenced as ARI Standard 1200–2006) as the referenced test procedure for measuring energy consumption for commercial refrigeration equipment. 71 FR 71370 (Dec. 8, 2006); 10 CFR 431.63–64. ARI Standard 1200–2006 prescribes rating temperature specifications of 38 °F (±2 °F) for commercial refrigerators and refrigerator compartments, 0 °F (±2 °F) for commercial freezers and freezer compartments, and −5 °F (±2 °F) for commercial ice-cream freezers. Even though ARI Standard 1200–2006 specified a rating temperature for commercial ice-cream freezers, EPACT 2005 did not specify a rating temperature or standards for commercial ice-cream freezers. During the 2006 test procedure rulemaking, DOE determined that testing at a −15 °F (±2 °F) rating temperature was more representative of the actual energy consumption of commercial freezers specifically designed for ice-cream application. 71 FR 71357 (Dec. 8, 2006). Therefore, in the December 2006 en masse test procedure final rule, DOE adopted a −15 °F (±2 °F) rating temperature for commercial ice-cream freezers, rather than the −5 °F (±2 °F) prescribed in the ARI Standard 1200–2006.
Approximately one year after the publication of the December 2006 en masse test procedure final rule, ARI merged with the Gas Appliance Manufacturers Association (GAMA) to form the Air-Conditioning, Heating, and Refrigeration Institute (AHRI), and updated its test procedure, the most recent version of which is AHRI Standard 1200–2010, “2010 Standard for Performance Rating of Commercial Refrigerated Display Merchandisers and Storage Cabinets,” (hereafter referenced as AHRI Standard 1200–2010), which was approved by ANSI on January 4, 2011. AHRI Standard 1200–2010 includes changes to (1) the equipment class nomenclature used in the test procedure, (2) the method of normalizing equipment energy consumption, (3) the ice-cream freezer test temperature, and (4) other minor clarifications. These changes aligned the AHRI test procedure with the nomenclature, rating temperatures, and normalization method used in DOE's 2009 energy conservation standards rulemaking for commercial refrigeration equipment. 74 FR 1092, 1093–96 (Jan. 9, 2009).
Similarly, AHAM updated Standard HRF–1–2004 to its most recent version, AHAM HRF–1–2008, “Energy and Internal Volume of Refrigerating Appliances.” The changes to this standard were mostly editorial and involved reorganizing some of the sections for greater simplicity and usability. As part of the reorganization, the sections of AHAM HRF–1–2004 that currently are referenced within the DOE test procedure, specifically section 3.21, “Volume”; sections 4.1 through 4.3, “Method for Computing Total Refrigerated Volume and Total Shelf Area of Household Refrigerators and Household Wine Chillers”; and sections 5.1 through 5.3, “Method for Computing Total Refrigerated Volume and Total Shelf Area of Household Freezers”; were reorganized and renumbered in the updated HRF–1–2008. However, the content of those sections was not changed substantially. The newly updated AHRI Standard 1200–2010 references the most recent version of the AHAM standard, AHAM HRF–1–2008. As such, DOE is updating its test procedures to adopt AHRI Standard 1200–2010 as the test procedure for commercial refrigeration equipment and AHAM HRF–1–2008 as the prescribed method for determining refrigerated compartment volume.
DOE is also incorporating new test methods in the DOE test procedure to better address certain energy efficiency features applicable to CRE that cannot be accounted for by the current test procedure. During the advanced notice of proposed rulemaking phase of the 2009 energy conservation standards rulemaking for commercial refrigeration equipment, DOE screened out several energy efficient technology options because their effects were not captured by the current test procedure. 72 FR 41162, 41179–80 (July 26, 2007). In the amended test procedure described in this final rule, DOE is adopting modifications to its test procedure to better address some of these technologies. Specific changes include provisions for measuring the impact of night curtains
On May 18, 2010, DOE held a public meeting (the May 2010 Framework public meeting) to discuss the rulemaking framework for the concurrent CRE energy conservation standards (Docket No. EERE–2010–BT–STD–0003).
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment.
EPCA also prescribes that if any rulemaking amends a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered equipment as determined under the existing test procedure. (42 U.S.C. 6293(e)(1) and 6314(a)(6)) Further, if DOE determines that the amended test procedure would alter the measured efficiency of covered equipment, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2) and 6314(a)(6)) DOE recognizes that the test procedure amendments adopted in this final rule will affect the measured energy use of some commercial refrigeration equipment. However, DOE is currently considering amendments to the existing Federal energy conservation standards for commercial refrigeration equipment in a concurrent rulemaking, (Docket No. EERE–2010–BT–STD–0003). DOE will use the test procedure amendments adopted in this final rule as the basis for standards development in the concurrent energy conservation standards rulemaking.
Today's rule also fulfills DOE's obligation to periodically review its test procedures under 42 U.S.C. 6314(a)(1)(A). DOE anticipates that its next evaluation of this test procedure will occur in a manner consistent with the timeline set out in this provision.
DOE is modifying its test procedure for commercial refrigeration equipment to incorporate current industry-accepted test procedures, address certain energy efficiency features that are not accounted for in the current test procedure (
In the November 2010 NOPR, DOE proposed amendments to the existing test procedure for commercial refrigeration equipment. 76 FR 71596 (Nov. 24, 2010). DOE held a public meeting on January 6, 2011 to present the amendments proposed in the November 2010 NOPR and received comments from interested parties. DOE analyzed the comments received as a result of the January 2011 NOPR public meeting and incorporated recommendations, where appropriate, into this test procedure final rule. The specific test procedure amendments and responses to all comments DOE received as a result of the November 2010 NOPR are presented in section III, “Discussion.”
Section III.A presents all of the revisions to the DOE test procedure found at 10 CFR part 431, subpart C, “Uniform test method for measuring the energy consumption of commercial refrigerators, freezers, and refrigerator-freezers,” incorporated in this final rule, and discusses the comments received on these topics during the January 2011 NOPR public meeting and the associated comment period. These revisions include the following:
1. Updated references to industry test procedures to their most current versions;
2. Inclusion of a method for determining energy savings due to the use of night curtains on open cases;
3. Inclusion of a calculation for determining energy savings due to use of lighting occupancy sensors or controls;
4. Inclusion of a provision for testing at lowest application product temperature; and
5. Provisions allowing testing of equipment at NSF test temperatures.
At the January 2011 NOPR public meeting and in subsequent written form, DOE received many comments from stakeholders that did not pertain to a specific test procedure amendment. In section III.B, DOE provides responses to comments pertaining to the following subject areas:
1. Equipment scope;
2. Effective date;
3. Preemption;
4. Burden of testing;
5. Alternative refrigerants; and
6. Secondary coolant systems.
Today's final rule incorporates the following changes to the test procedure for commercial refrigeration equipment in 10 CFR part 431, subpart C.
In this final rule, DOE is updating the industry test procedures referenced in the DOE test procedure for commercial refrigeration equipment to their most current versions, namely AHRI Standard 1200–2010 and AHAM Standard HRF–
The current DOE test procedure also references AHAM HRF–1–2004 as the protocol for determining refrigerated compartment volume. AHAM has also updated its Standard HRF–1–2004 to newer version AHAM HRF–1–2008, which makes editorial changes including reorganizing some sections for greater simplicity and usability. AHRI 1200–2010 also references AHAM HRF–1–2008. For consistency, in the November 2010 NOPR, DOE proposed to incorporate by reference the more recent AHAM HRF–1–2008 in the test procedure for measuring refrigerated compartment volume. 75 FR 71602 (Nov. 24, 2010).
In commenting on the November 2010 NOPR, AHRI, the American Council for an Energy-Efficient Economy (ACEEE), and the Northwest Energy Efficiency Alliance (NEEA) all supported DOE's proposals. (AHRI, No. 15 at p. 2; ACEEE, No. 12 at p. 2; NEEA, No. 8 at p. 3) DOE did not receive any dissenting comments. DOE believes AHRI 1200–2010 and AHAM Standard HRF–1–2008 are the most up-to-date and commonly used test procedures for commercial refrigeration in the industry. DOE agrees with interested parties that these test procedures are appropriate to characterize the energy consumption of all commercial refrigeration equipment included within the scope of this rulemaking. Thus, in this final rule, DOE is updating the industry test procedures referenced in the DOE test procedure for commercial refrigeration equipment to their most current versions, AHRI Standard 1200–2010 and AHAM Standard HRF–1–2008.
DOE's current test procedure does not account for potential decreased energy consumption resulting from the use of night curtains on commercial refrigeration equipment. Night curtains are devices made of an insulating material, typically insulated aluminum fabric, designed to be pulled down over the open front of the case (similar to the way a window shade operates) when the merchandizing establishment is either closed or the customer traffic is significantly decreased. The insulating shield, or night curtain, decreases infiltration by preventing the mixing of the cool air inside the case with the relatively warm, humid air in the store interior. It also reduces conductive and radiative heat transfer into the case. Night curtains reduce compressor loads and defrost cycles, which can decrease the total energy use of the commercial refrigeration equipment. A 1997 study by the Southern California Edison Refrigeration Technology and Test Center found that, when used for 6 hours per day, night curtains reduce total energy use of the case by approximately 8 percent.
In the November 2010 NOPR, DOE proposed adopting a standardized physical test method to allow manufacturers to account for the possible energy reduction associated with night curtains installed on open cases. DOE chose a physical test because it accurately captures differences in energy consumption as a function of similar technologies and case dimensions. 75 FR 71602–03 (Nov. 24, 2010). It is important to capture the different impacts on energy consumption among different night curtain designs because of the significant performance disparities that can exist. For example, night curtains made of low-emissivity materials, such as aluminum, decrease the radiative losses from the case and therefore are much more effective at reducing heat loss than night curtains made of plastic, linoleum, or other non-reflective materials. In addition, each night curtain may reduce energy consumption differently, depending on its particular insulating characteristics and design. Case dimensions, air curtain performance, and base infiltration load also impact night curtain performance. A physical test also accurately captures differences in the energy conservation performance of night curtains as a function of case dimension or night curtain design.
In the November 2010 NOPR, DOE proposed using a physical test method similar to section 7.2 in ASHRAE Standard 72–2005, “Door-Opening Requirements,” which reads as follows:
Night Curtain Requirements. For open display cases sold with night curtains installed, the night curtain shall be employed according to manufacturer instructions for a total of 6 hours, 3 hours after the start of a defrost period. Upon the completion of the 6-hour period, the night curtain shall be raised until the completion of the 24-hour test period.
DOE further clarified that the test procedure for night curtains would, if adopted, apply only to cases sold with night curtains installed. 75 FR 71602–03 (Nov. 24, 2010). Following publication of the November 2010 NOPR, DOE received comments regarding the representative use of night curtains, the types of cases on which night curtains can be used, and the cost effectiveness of night curtains. These comments and DOE's responses are presented in the following sections.
While interested parties generally agreed with the proposed test procedure for night curtains, some interested parties expressed concerns regarding the way in which night curtains would be treated in the standards analysis, including the concern that the potential treatment might not be representative of actual use. Zero Zone stated that, while it agreed with the proposed test method for night curtains, it did not believe that night curtains should be allowed to be used to reduce measured energy consumption in the DOE test procedure because installing them does not necessarily mean that end users will deploy them. In addition, Zero Zone stated that 24-hour stores cannot use night curtains, and that night curtains may have a short lifetime. (Zero Zone, No. 16 at p. 1) AHRI supported providing a method to account for the reduced energy consumption of night curtains, but questioned the origin of DOE's 6-hour assumption. (AHRI, No. 19 at pp. 72–73) Earthjustice stated that,
In response to interested parties' comments that the intended use of a night curtain does not necessarily represent actual use in the field, DOE acknowledges that actual use of night curtains may be variable in the field. However, night curtains are an available technology for reducing energy consumption in commercial refrigeration equipment, and DOE believes that including night curtains in its test procedure provides manufacturers with a mechanism for estimating the energy consumption impacts of this technology and provides a more accurate representation of how those units may operate when installed. The test procedure adopted in this final rule is consistent across all cases sold with night curtains, regardless of their anticipated use. With regard to Earthjustice's concern with respect to the use of night curtains in 24-hour stores, DOE is not mandating the use of night curtains, but rather is simply accounting for the use of night curtains in the 24-hour test procedure. In addition, DOE notes that night curtains may in fact be used in 24-hour stores during periods of low use, although DOE concedes that this is less common.
In response to AHRI's question regarding why DOE proposed 6 hours as the time period for night curtains to be implemented, DOE believes that 6 hours conservatively represents the amount of time a night curtain would be drawn in a typical, non-24-hour store, when accounting for stocking and the fact that not all night curtains can be deployed at once. In addition, 6 hours is consistent with all field data and studies that DOE has identified.
In response to the comments regarding the expected life of a night curtain, DOE understands that a night curtain may have a shorter life than a display case. However, DOE accounts for repair and replacement costs in the energy conservation standards analyses and believes these issues are better addressed in that rulemaking. DOE believes a 6-hour period of use adequately represents the anticipated use of a night curtain, while DOE is also cognizant of potential reductions in energy savings due to application and field use issues. DOE will discuss treatment of night curtains further in the associated energy conservation standards rulemaking and its impact on the energy use of commercial refrigeration equipment (Docket No. EERE–2010–BT–STD–0003).
Southern Store Fixtures stated that night curtains can only be practicably used on vertical open display cases, and further clarified that on semi-vertical display cases the night curtain can interfere with the air flow in the case. (Southern Store Fixtures, No. 19 at p. 135) True Manufacturing (True) responded that semi-vertical night curtains do exist. (True, No. 19 at p. 137) Southern Store Fixtures also commented that an air curtain, which blows air across the front of an open case to reduce infiltration, can be temporarily used to reduce infiltration and heat loss to the case, and inquired whether an air curtain would meet DOE's proposed definition of a night curtain. (Southern Store Fixtures, No. 19 at p. 136) NEEA supported DOE's proposed definition of night curtain, provided the definition would be applied only to open cases of all sorts. NEEA also stated that, while it is not opposed to the inclusion of air curtains in the definition of “night curtain,” it has seen no data to show that air curtains are used to reduce infiltration and heat loss or that they would save energy. However, NEEA saw no reason to exclude air curtains from the definition of night curtain. (NEEA, No. 8 at pp. 3–4)
Zero Zone requested clarification regarding whether the night curtain provision could be applied to cases with doors that also have night curtains installed (Zero Zone, No. 19 at p. 145), and offered that night curtains could provide benefits for doored cases. (Zero Zone, No. 16 at p. 1) True stated that it had seen night curtains implemented on doored cases and that this does save a minimal amount of energy, but that these minor savings did not justify consideration of night curtains in the DOE test procedure. (True, No. 19 at pp. 146–47) Zero Zone commented that DOE proposed in the test procedure NOPR that automatic controls be required on lighting in order to meet DOE's proposed definition of “lighting occupancy sensor” or “lighting control.” Given this proposal, Zero Zone questioned why automatic night curtains would not then be required to meet DOE's definition of “night
In response to interested parties' comments on the use of night curtains on doored cases, it is DOE's understanding that night curtains can be applied to all types of open cases (vertical, semi-vertical, and horizontal) and that night curtains are most effective and commonly used on open cases, rather than on doored cases. DOE was not able to identify any publicly available data regarding the use of night curtains on doored cases. Lacking a sound technical basis for including night curtains on doored cases, DOE is hesitant to expand the definition of night curtain to explicitly include doored cases at this time. DOE also agrees with True in that use of night curtains on doored cases will not significantly impact the daily energy consumption of the display case as measured by the DOE test procedure. Therefore, DOE is not extending the night curtain test procedure to include night curtain testing on cases with doors in this final rule. DOE will continue to monitor the prevalence and energy saving potential of these technologies in the market and may address them in a future rulemaking.
In response to Southern Store Fixtures' comment regarding air curtains, the definition of a night curtain does not necessarily exclude air curtains because the definition does not specify a material or construction. DOE is defining a night curtain as a technology that is used temporarily to reduce infiltration and heat loss on commercial refrigeration equipment, without additional qualifiers. In response to Zero Zone's comment regarding automatic night curtains, both automatic and manual night curtains are included in this definition, as well as air curtains, provided that they are temporarily deployed to decrease air exchange and heat transfer between the refrigerated case and the surrounding environment. To accommodate all defrost cycles, the test procedure requires the night curtain to be drawn 3 hours after the first defrost cycle. This change is consistent with updates that ASHRAE is considering making to the ASHRAE Standard 72 requirements for door openings. This addresses Southern Store fixtures concern regarding cases which may defrost every 2 hours and would never reach a time period “3 hours after defrost,” since those cases now may select a defrost cycle as the “first” to begin the test and then initiate the night curtain test 3 hours following the first defrost.
In response to DOE's proposal for testing night curtains, Southern Store Fixtures commented that DOE should consider the cost effectiveness of night curtains and noted that the analysis supporting the development of State of California's Title 24, “California's Energy Efficiency Standards for Residential and Nonresidential Buildings,”
DOE acknowledges interested parties' concerns regarding the cost effectiveness of night curtains. DOE will perform a cost-effectiveness analysis as part of the process to consider amended energy conservation standards for commercial refrigeration equipment. Additionally, DOE's energy conservation standards are performance standards, and neither night curtains nor any other specific technology will be mandated. Night curtains will be treated as a design that manufacturers could use to reduce energy consumption in the energy conservation standards analysis. The comments described above pertain mainly to energy conservation standards and will be addressed in more detail in that rulemaking.
The current DOE test procedure does not account for the potential reduction in energy consumption resulting from the use of lighting occupancy sensors and scheduled controls. The potential for decreased energy use due to the use of occupancy-based sensors or schedule-based controls varies in the field due to differing environmental and operating conditions. However, studies, including a demonstration project conducted through the DOE Solid State Lighting (SSL) Technology Demonstration GATEWAY program,
In the November 2010 NOPR, DOE proposed a calculation method to account for the reduced energy consumption due to the use of lighting
At the January 2011 NOPR public meeting, DOE presented its proposal for treatment of lighting occupancy sensors and scheduled controls. DOE received comments on the definitions DOE proposed, the scope of technology covered, the calculation of energy savings, and optional physical testing. As part of the associated CRE energy conservation standards rulemaking, DOE also received comments pertaining to the proposed test procedure provision for lighting occupancy sensors and scheduled lighting controls. The comments DOE received on these issues, as well as DOE's responses, are presented in the following sections.
In the November 2010 NOPR, DOE proposed to define “lighting control” and “lighting occupancy sensor” as follows:
In response, NEEA agreed with DOE's proposed definitions for lighting controls, but stated that the term “electronic” seemed superfluous. (NEEA, No. 8 at p. 4) Coca-Cola Company (Coca-Cola) suggested that the term “automatic” or “automatically” be added to the definitions of lighting occupancy sensor and lighting controls. (Coca-Cola, No. 19 at p. 157) ACEEE agreed with NEEA that the term “electronic” should be removed from the definition of lighting control and occupancy sensor. Additionally, ACEEE added that the definition of lighting control should not be limited to scheduled times, as such a definition excludes the possibility of accounting for controllers that respond to ambient lighting conditions. (ACEEE, No. 12 at p. 4) ACEEE added that, although such technologies have not been developed yet, DOE has allowed for the possibility of other, more advanced technologies in other rulemakings by marking some technologies “reserved.” ACEEE also commented that it was partially DOE's responsibility to investigate these types of potentially attractive technology options that are not yet in the marketplace, and that it was important to ensure that any potential new technologies could be tested using the DOE test procedure. (ACEEE, No. 19 at pp. 181–82) True responded that the test procedure and energy conservation standards do not prevent manufacturers from innovating new technologies, but rather set a minimum standard that manufacturers must meet. True also commented that the desired lighting level in cases can differ based on a number of variables in addition to ambient lighting level (for example, based on marketing purposes). (True, No. 19 at pp. 183 and 186)
Southern Store Fixtures commented that DOE should consider the environmental impact of producing lighting occupancy sensors and controls and questioned their energy savings in the field. (Southern Store Fixtures, No. 19 at p. 153)
DOE agrees with interested parties that the term “electronic” may be superfluous and is removing the term from the definitions for “lighting occupancy sensor” and “scheduled lighting control” adopted in this final rule. In addition, DOE agrees with Coca-Cola that the term “automatic” more accurately describes the function of the devices described. DOE will also define “scheduled lighting control” instead of “lighting control,” as this term is more descriptive of the device being defined.
With respect to lighting controls that respond to external factors other than motion or physical presence, such as ambient light, DOE does not believe any such technologies are widely used and is not aware of any data regarding their efficacy. While these factors do not prevent DOE from including the potential for such technologies in the definition of lighting controls or in a new definition, the calculations in the test method for lighting occupancy sensors and controls were based on the potential reduction in energy consumption associated specifically with lighting occupancy sensors and schedule-based controls. DOE believes that applying these same “time off” or “time dimmed” assumptions to other technologies may not be representative of their actual performance and would not be appropriate. DOE has not been able to identify any data related to the energy savings of lighting sensors that adjust case lighting based on ambient lighting. Because DOE is currently using a calculation method based on the estimated hours a lighting sensor will dim or turn off lights to calculate lighting energy savings, it would be difficult to incorporate provisions for other types of sensors without data regarding their anticipated or realized efficacy. In the absence of such data, it is difficult for DOE to estimate a representative energy savings from ambient light sensors. Therefore, DOE does not intend to include provisions for ambient light sensors or other sensor technologies in the definition of lighting sensors and/or controls.
With respect to Southern Store Fixtures' comment that DOE should assess the environmental impact of manufacturing lighting occupancy sensors and weigh the impact against the achieved savings, DOE believes lighting occupancy sensors have proven effective over their lifetime and can save energy when installed on commercial refrigeration equipment. DOE will assess the environmental impact of lighting occupancy sensors in the energy conservation standards rulemaking (Docket No. EERE–2010–BT–STD–0003). However, DOE notes that life-cycle environmental impacts of equipment manufacture and disposal are typically outside the scope of the environmental impact analysis performed in any standards rulemaking.
In the November 2010 NOPR, DOE's definitions of “lighting control” and “lighting occupancy sensor” both dealt exclusively with automatic technologies. 75 FR 71611 (Nov. 24, 2011). At January 2011 NOPR public meeting, AHRI and Zero Zone commented that it was inconsistent for DOE to allow night curtains that must be deployed manually to achieve energy savings in the DOE test procedure, but not to allow manual light switches to
While DOE acknowledges that manual switches can be used to dim or turn off case lighting to save energy when a store is closed, DOE is not aware of any data that substantiate their use. Because DOE does not have any data on which to base the treatment of manual switches, including a provision for manual light switches in the test procedure would be very speculative. In addition, DOE has observed that most cases spanning the full range of efficiencies currently available on the market already include manual light switches installed. In contrast, night curtains and other automatic lighting controls technologies are sold as energy efficiency features incorporated into only higher efficiency commercial refrigeration equipment. Further, manual switches have been installed on cases for some time as a utility feature, to turn off lights when replacing light bulbs for example, rather than as an energy saving feature.
Lacking data that substantiate the use of manual switches to save additional energy, and given the fact that manual light switches are a baseline technology and are not installed to produce energy savings, DOE is not including manual switches in the definition of a lighting control technology.
In the November 2010 NOPR, DOE proposed that remote lighting control systems would not receive credit for any potential energy savings in the DOE test procedure. 75 FR 71605 (Nov. 24, 2010). California Codes and Standards commented that some scheduled lighting controls are external to the case, and inquired whether cases in which the controls were installed external to the case would receive credit under the proposed test procedure. (California Codes and Standards, No. 13 at p. 5) California Codes and Standards suggested that DOE clearly state that the credit for time switch control would only apply when the switch is on-board the display case. (California Codes and Standards, No. 19 at p. 187) As part of the rulemaking for the CRE energy conservation standards (Docket No. EERE–2010–BT–STD–0003), DOE published the Notice of Public Meeting and availability of the CRE Preliminary Analysis Technical Support Document (76 FR 17573 (March 30, 2011)) and held a public meeting on April 19, 2011 at DOE headquarters in Washington, DC During the commercial refrigeration equipment preliminary analysis public meeting (April 2011 Preliminary Analysis public meeting) and in subsequent written comments, numerous interested parties stated that many cases were installed with remote lighting sensors or controls that were operated at the aisle or store level. (Docket No. EERE–2010–BT–STD–0003, Southern Store Fixtures, No. 31 at pp. 190–91, 194; Zero Zone, No. 31 at p. 196; California Investor Owned Utilities,
There are several ways in which a manufacturer, refrigeration contractor, or store owner can implement lighting controls, including individual case controls, single controls serving an entire case lineup, and storewide energy management systems. Including remote lighting controls in the test procedure could inadvertently set a precedent for deeming remote energy management technologies to be part of the covered equipment and allocating energy savings gained by these external devices to associated pieces of equipment. For example, a remote lighting control system may control systems other than commercial refrigeration equipment, and such systems are typically not sold with a piece of commercial refrigeration equipment. Cases set up to interact with these remote control systems have a dedicated circuit for lights so that the lights can be controlled separately from the rest of the case. However, this lighting circuit configuration does not inherently save energy and must be paired with an energy management control system. These energy management systems are sold separately from the piece of commercial refrigeration equipment, may be produced by a different manufacturer from the one that produces the case, and are not integral to the commercial refrigeration equipment.
DOE acknowledges that remote lighting controls do save energy and may be the more commonly used technology to dim or turn off lights in the field. However, energy consumption for a piece of commercial refrigeration equipment must be determined using the DOE test procedure on a representative unit, as shipped from the point of manufacture. 76 FR 12422, 12453 (March 7, 2011) Because a remote energy management system is not part of the piece of equipment as shipped from the manufacturer, but rather it is a separate piece of equipment that may be supplied by a separate manufacturer, remote energy management controls will not be considered in this test procedure final rule.
In addition to conserving energy directly through decreased lighting electrical load, occupancy sensors also decrease the heat load from lights that are located inside the refrigerated space of refrigeration equipment. Therefore, as part of the calculation method for lighting occupancy sensors and controls, DOE proposed a calculation method to account for these energy impacts in the November 2010 NOPR. 75 FR 71602–05 (Nov. 24, 2010). This calculation, as proposed, quantifies the reduced compressor energy use resulting from lighting occupancy sensors and scheduled controls and relies on a table of fixed compressor EERs, as described below.
Southern Store Fixtures stated that assigning average values for the EER in the calculation of energy reduction due to lighting occupancy sensors would penalize manufacturers that have more efficient compressors. (Southern Store Fixtures, No. 19 at p. 170) NEEA stated that not including the condenser fan energy consumption in the EER value creates an over-credit for any heat load that is not imposed on the case, and agreed with Southern Store Fixtures that this approach gives more credit to less efficient compressors. (NEEA, No. 19 at p. 171) NEEA further stated that, while it has no issue with the direct savings from lighting controls as proposed in the test procedure, it does not support the proposed method for calculating indirect energy savings. First, according to NEEA, DOE should account for condenser fan energy use. Second, NEEA disagreed with the compressor EER values in the November 2010 NOPR because the values are carried out to two decimal places, which NEEA described as unnecessary. Third, NEEA stated that light-emitting diode lighting would lessen the impact on compressor loads. Fourth, NEEA disagreed with the idea that a single factor be used for discounting lighting heat load, instead suggesting that this factor varies by case type. (NEEA, No. 8 at p. 5) California Codes and Standards also suggested that DOE research and incorporate different multiplicative factors for alternate compressor energy consumption for open versus closed cases, because a lower factor may be appropriate for open cases. (California Codes and Standards, No. 13 at pp. 4–5)
With respect to its compressor EER values, DOE believes that the same values can be used for all self-contained equipment because compressor efficiency is primarily a function of compressor design for a given combination of load, product temperature, and ambient conditions, rather than a specific case geometry. In addition, as a precedent, Table 1 in AHRI 1200–2010 provides EER values for remote condensing equipment that are not specifically directed toward either open or closed refrigerated cases. DOE recognizes that the EER values presented in the November 2010 NOPR are not exact quantitative representations of specific compressor designs on the market, and that compressor performance will vary based on compressor manufacturer and model, operating conditions, and the overall design of the specific refrigeration system in which the compressor is used. However, DOE believes that the EER values it proposed are sound representations of default compressor performance available in the marketplace today that, when applied equally to all equipment, will yield a consistent and repeatable result. DOE acknowledges that two decimal points is not appropriate for these default values and has revised them to the nearest whole number for this final rule. (
In response to comments that DOE did not account for condenser fan energy consumption, DOE assumed the compressor fan runs continuously in self-contained equipment in the calculations for reduced compressor energy consumption resulting from the use of lighting occupancy sensors and scheduled controls. This assumption may slightly underestimate the savings in some cases, but DOE believes it adequately represents expected energy savings in the field. DOE agrees that it is important that the default compressor EER values not exaggerate energy savings or disincentivize energy efficiency in compressors. However, because these values are applied to all commercial refrigeration equipment, regardless of actual performance, DOE does not believe the default values will affect or motivate compressor selection or design, as they will produce comparable results across all systems to which they are applied.
Because DOE is allowing the option of a physical test to determine savings from lighting occupancy sensors and controls (see section III.A.3.e), DOE must be cognizant of the fact that the calculated reduction in refrigeration load and associated indirect energy savings are comparable to those that would be measured in the physical test. In revising the EER values, DOE has also attempted to ensure that the default values do not result in greater savings than would be achieved if a case with an efficient compressor were tested. Because the calculation does not account for reduced compressor fan power or heat leakage from the compressor into the case, DOE believes that the EER values will not significantly overestimate indirect lighting energy savings. In addition, because the physical test method is optional, a manufacturer may always choose to use the calculation method, which is consistent across all equipment.
In the November 2010 NOPR, DOE proposed a calculation method to account for the energy savings due to the use of lighting occupancy sensors or controls. DOE proposed a calculation method because it believed it would be representative, consistent, and relatively less burdensome for manufacturers compared to a physical test. In this assessment, DOE accounted for the fact that manufacturers may need to conduct tests with lights on for the duration of the test for other programs, for example for ENERGY STAR®
At the January 2011 public meeting and in subsequent written comments, Coca-Cola, NEEA, and California Codes and Standards suggested that DOE allow optional empirical testing for the energy reduction associated with lighting controls. (Coca-Cola, No. 19 at p. 172; NEEA, No. 19 at p. 175; California Codes and Standards, No. 13 at p. 5) Earthjustice stated that the method proposed in the November 2010 NOPR ignores condenser fan energy use, underestimates compressor EER, and uses a fixed discount factor for the lighting heat load that, in actuality, would vary by unit. Earthjustice further stated that testing with lighting off or dimmed would resolve this issue without adding additional burden. (Earthjustice, No. 11 at p. 2) NEEA agreed with Earthjustice and commented that actual testing of lighting controls would be a superior way to account for their impacts, and
ACEEE commented that alternative lighting methods, for example fiber bundles, could be developed, and that the DOE test procedure should provide a way for lighting vendors to capture the energy savings of new, innovative lighting technologies so that they can promote the technology to case manufacturers. (ACEEE, No. 19 at p. 173)
Hussmann Corporation (Hussmann) cautioned that the DOE test procedure should be cognizant of the repeatability of test results using a physical test method, specifically when units are tested at third-party laboratories. (Hussmann, No. 19 at p. 175) Traulsen commented that physically testing the energy reduction of lighting occupancy sensors and scheduled controls could be done with a $20 to $60 timing device, which translates to approximately $100 when accounting for markups. Traulsen added that $100 could be problematic for some small manufacturers. (Traulsen, No. 19 at p. 177)
DOE agrees with NEEA and Earthjustice that an optional physical testing method would be more representative of actual condensing unit energy reduction for a given case. However, DOE also agrees with Traulsen that physical testing should be an optional method due to the increased burden associated with additional testing. In response to Hussmann's comment, DOE believes the test procedure amendments for lighting occupancy sensors and scheduled controls adopted in this final rule, which allow for use of the calculation method or performance of a physical test, are sufficiently repeatable for the purpose of showing compliance with DOE energy conservation standards. Thus, in this test procedure final rule, DOE is incorporating provisions that allow manufacturers to choose either the calculation method or a physical test to demonstrate and credit energy savings associated with lighting occupancy sensors and scheduled controls. DOE believes that continuing to provide a calculation method for lighting occupancy sensors and controls is a less burdensome and more consistent method to account for the energy savings associated with these technologies. Nonetheless, if a manufacturer wishes to account for the energy reduction associated with lighting occupancy sensors and controls through physical testing, DOE is specifying that a physical test may be performed. The physical test will be prescribed as “optional” to allow the use of a calculation method to reduce burden on manufacturers and provide flexibility in the rating of equipment. In response to ACEEE's comment regarding the treatment of innovative new lighting technologies, DOE believes the optional physical test will allow manufacturers to measure the energy consumption of any new lighting technology that cannot be characterized by the calculation method. In either case, manufacturers will be expected to record which test method, calculation or physical, was used to determine the energy consumption of the equipment and to keep this information as part of the data underlying the certification. For DOE-initiated testing, DOE will run the optional physical test.
DOE has developed equipment classes based on three distinct temperature categories: (1) refrigerators that operate at or above 32 °F and are tested at an integrated average temperature of 38 °F (±2 °F); (2) freezers that operate below 32 °F and above −5 °F and are tested at an integrated average temperature of 0 °F (±2 °F); and (3) ice-cream freezers that operate at or below −5 °F and are tested at an integrated average temperature of −15 °F (±2 °F). 10 CFR 431.66(d)(1)
During the May 2010 Framework public meeting, several parties commented that some equipment covered under this rulemaking is designed to operate at significantly higher temperatures than the designated temperature for the corresponding equipment class. Specifically, California Codes and Standards stated that DOE should review test methods for niche equipment that may require different temperature criteria and schedules. (Docket No. EERE–2010–BT–STD–0003; California Codes and Standards, No. 5 at p. 3) Structural Concepts also stated that some types of equipment, such as candy and wine cases, operate at 55 or 60 °F, yet would have to be tested at 38 °F to meet an energy conservation standard, which is problematic because these units are not designed to operate at that temperature. (Docket No. EERE–2010–BT–STD–0003; Structural Concepts, No. 6 at p. 59)
AHRI Standard 1200–2010 includes provisions for such equipment to be rated at the application product temperature. To accommodate equipment that operates at temperatures much greater than the 38 °F (±2 °F) rating temperature, in the November 2010 NOPR DOE proposed including a provision for testing refrigerators that cannot operate at the prescribed 38 °F (±2 °F) integrated average rating temperature, permitting them to be tested at the lowest application product temperature. In the November 2010 NOPR, “lowest application product temperature” was defined as “the lowest integrated average product temperature achievable and maintainable within ± 2 °F for the duration of the test.” 75 FR 71605 (Nov. 24, 2010). DOE clarified that, for equipment rated at the lowest application product temperature, the integrated average temperature achieved during the test should be recorded, and that equipment tested at the lowest application product temperature would still be required to comply with the applicable standard for its respective equipment class. 75 FR 71605 (Nov. 24, 2010). DOE received several comments related to (1) the definition of lowest application product temperature; (2) expanding the definition of lowest application product temperature to include freezers and ice-cream freezers that cannot operate at the specified rating temperatures; (3) the energy conservation standard for equipment tested at the lowest application product temperature; and (4) how the provision for lowest application product temperature would accommodate remote condensing equipment. The specific comments and DOE's responses are provided in the subsequent sections.
In comments received during the November 2010 NOPR comment period, NEEA stated that lowest application product temperature could be defined as the lowest temperature setting on the thermostat, and that DOE needs to better define what the lowest temperature is and how it is determined. (NEEA, No. 19 at p. 213) True responded that the lowest application product temperature is based on a number of factors and that units should be tested at the lowest set point. (True, No. 19 at p. 214) NEEA also stated that, due to the differences in types, applications, and configurations for application-temperature equipment, DOE must establish test procedures for this equipment that address the way that they are designed and controlled, as well as the ambient conditions in which they are operated, regardless of the shipment volume, in accordance with EPCA. (NEEA, No. 8 at p. 6) ACEEE commented that the lowest application temperature should be standardized, and inquired whether manufacturers would be able to test to any temperature
DOE believes that “the lowest thermostat setting” may not be a prescriptive enough definition in all cases. In some cases, the CRE does not contain an adjustable thermostat, which can be manually changed for testing. DOE agrees with True that the lowest application product temperature is based on a number of factors and cannot be limited to one CRE accessory. DOE intends to provide manufacturers with the flexibility to determine the lowest application product temperature for a given case only when the CRE cannot be tested at the specified rating temperatures. The phrase “lowest application product temperature” is also consistent with the nomenclature used in the Canadian energy efficiency regulations and test procedures for self-contained commercial refrigerators, freezers, and refrigerator freezers, established by Natural Resources Canada.
In response to ACEEE's comments, DOE is not restricting the lowest application product temperature to specific values. To qualify to use the lowest application product temperature for a certain piece of equipment, a manufacturer should be confident that any case tested under that equipment rating could achieve the specified lowest application product temperature within ±2 °F and could not be tested at the rating temperature for the given equipment class. Further, manufacturers should clearly document any variation in rating temperature setting in the test data they maintain underlying the certification of each basic model. In this test procedure final rule, DOE has better defined how the proper test temperature is to be determined and has clarified that, for many pieces of equipment, this will be the lowest temperature setting on the unit's thermostat. DOE agrees with commenters that it is important to designate equipment tested using the lowest application product temperature provision to ensure they are not incorrectly compared with units that are tested at the specified rating temperature. While DOE is not modifying the certification requirements in this final rule to require manufacturers to report the temperature at which the unit was tested (if other than the rating temperature), DOE is requiring that documentation be maintained as part of the test data underlying the certification. Further, the certified ratings calculated from the test data and applicable sampling plans should reflect the energy consumption measured at the lowest application product temperature setting.
At the January 2011 NOPR public meeting, several interested parties commented that there is a second category of equipment, including ice storage cases operating at 20 °F, that are unable to be tested at the prescribed rating temperature for freezers, or 0 °F (±2 °F). The commenters suggested that the provisions for testing at the lowest application product temperature should be expanded to freezers and ice-cream freezers to accommodate equipment that cannot be rated at the prescribed test temperature for its equipment class. (True, No. 19 at p. 191; Hussmann, No. 19 at pp. 192–93; Traulsen, No. 19 at p. 194; Zero Zone, No. 16 at p. 2; AHRI, No. 15 at pp. 2–3) Hussmann added that a case designed for 20 °F that is not required to be designed to be tested at 0 °F (±2 °F) for certification would be more efficient overall. (Hussmann, No. 19 at pp. 192–93)
DOE also has noticed that some equipment may not be able to be tested at the prescribed rating temperature because the operating temperatures are below the specified rating temperature (
DOE understands that some equipment cannot be tested at its prescribed rating temperature and is adopting provisions in this final rule to accommodate testing for those units at the lowest application product temperature. In response to interested parties' comments regarding equipment that operates at, for example, 20 °F, and thus falls into the freezer temperature range, but is not able to be tested at the prescribed rating temperature for freezers, 0 °F (±2 °F), DOE is expanding the “lowest application product temperature” provision to freezers and ice-cream freezers. With regard to differentiation of equipment that was tested at the specified rating temperature, DOE is requiring manufacturers to maintain documentation of the temperature at which the unit was tested (if other than the DOE prescribed rating temperature) as part of the test data underlying the certification, as well as base any certified ratings on the energy consumption of the equipment as determined using the lowest application product temperature test procedure.
DOE also notes that while some equipment theoretically may not be able to be tested at the prescribed rating temperature because it operates at temperatures lower than the specified rating temperature and cannot reach the specified rating temperature, DOE is not aware of this occurring in any equipment that is currently marketed and sold in the United States, and DOE believes there is little possibility of this occurring. To provide clarity in differentiating equipment that cannot be rated at the prescribed rating condition, DOE will continue to refer to this provision as the “lowest application product temperature.” However, to account for all possible temperature ranges of equipment, DOE is defining the “lowest application product temperature” as “the temperature closest to the equipment's specified rating temperature that the unit can achieve (±2 °F).” In this case, ±2 °F refers to the repeatability of the lowest application product temperature.
In the November 2010 NOPR, DOE proposed that equipment tested at the lowest application product temperature still be required to comply with the standard for its respective equipment class. 75 FR 71605–06 (Nov. 24, 2010). DOE made this proposal due to the small fraction of equipment that DOE expects to be rated using the lowest application product temperature provision. DOE analyzed the shipments data provided by ARI during the Framework comment period of the 2009 energy conservation standards rulemaking. (Docket No. EERE–2006–BT–STD–0126, ARI, No. 7 Exhibit B at p. 1). DOE found that, excluding that equipment for which EPACT 2005 amended EPCA to set standards (
At the January 2011 NOPR public meeting and in written comments submitted during the public comment period, many interested parties commented on DOE's proposal that equipment tested at the lowest application product temperature would still be required to comply with the standard for its respective equipment class. California Codes and Standards, ACEEE, NEEA, and NRDC all agreed that it is reasonable to test equipment not capable of achieving a rating temperature at its lowest operating temperature, provided this equipment represents a small market share and is appropriately differentiated to prevent loopholes. (California Codes and Standards, No. 13 at p. 5; ACEEE, No. 12 at p. 5; NEEA, No. 8 at pp. 6–7; NRDC, No. 14 at pp. 1–2) NRDC suggested that equipment that cannot be tested below 38 °F should be labeled and sold with its projected annual energy consumption data indicating the lowest temperature achievable during testing, and should be clearly differentiated from equipment that meets the required testing temperatures. (NRDC, No. 14 at p. 2) ACEEE suggested that DOE define equipment classes in a manner that prevents the substitution of less efficient equipment for more efficient general-duty equipment. (ACEEE, No. 12 at pp. 1–2) ACEEE also expressed concern regarding the presence of ice cabinets on the market, and questioned how DOE could differentiate ice cabinets from freezers if they are rated at application temperature, so that they are not used inappropriately for frozen food storage. (ACEEE, No. 12 at p. 5) NEEA disagreed with DOE's tendency to refer to equipment with application temperatures above 38 °F as “medium temperature” because some of this equipment operates at significantly higher temperatures than the medium temperature rating condition of 38 °F. Therefore, NEEA suggested that this equipment be referred to as “high or elevated temperature” equipment. Additionally, NEEA asserted that ice storage cabinets, or any other equipment operating at an operating temperature between 0 °F and 38 °F, should not be called “medium” or “low” temperature. (NEEA, No. 8 at pp. 6–7)
True asked whether ice chests or freezers that are designed to operate at 20 °F and cannot be tested at 0 °F (±2 °F) would be required to meet the refrigerator or the freezer energy conservation standard. (True, No. 19 at p. 207) California Codes and Standards and NRDC also stated that the standard levels should be correspondingly adjusted to avoid loopholes, as otherwise, less efficient equipment potentially could comply if it were allowed to be tested at a higher operating temperature. (California Codes and Standards, No. 13 at p. 5; NRDC, No. 14 at pp. 1–2) California Codes and Standards suggested that DOE create a method to scale standards based on rating temperature, and stated that this would not require additional equipment classes. (California Codes and Standards, No. 19 at pp. 223 and 227) NRDC stated that, while DOE's past reasoning for not setting specific requirements for application-temperature equipment was based on the small size of the market, a forward-looking standard should include this equipment and set efficiency levels for it. (NRDC, No. 14 at p. 2) Sean Gouw (unaffiliated) commented that DOE had created product classes for niche products with low market share before, for example built-in residential refrigerators. (Gouw, No. 19 at p. 234)
AHRI commented that refrigerated cases that cannot operate at an integrated average temperature of 38 °F are niche products and represent a small part of the market. (AHRI, No. 19 at p. 228) Southern Store Fixtures commented that cases rated for higher temperatures do not necessarily use less energy because they may require additional heaters for humidity control. (Southern Store Fixtures, No. 19 at p. 229)
DOE maintains that units tested at the lowest application product temperature will still be required to meet the applicable energy conservation standard based on their equipment class. While DOE understands that this approach may result in slightly less stringent standards for the small number of units that cannot be tested at the prescribed rating temperatures, as interested parties pointed out, DOE does not believe that establishing separate equipment classes for these niche types of equipment would be justified given their small shipment volume and the wide diversity of niche products.
DOE agrees with interested parties that preventing loopholes that would allow less efficient equipment to be sold is very important. However, DOE believes that allowing testing at the lowest application product temperature for all temperature classes allows for coverage of more equipment and may allow “intermediate” equipment that cannot operate at its prescribed test temperatures to be designed to operate more efficiently. It is not expected that this will create an opportunity for less efficient equipment to be sold because DOE is requiring units tested at the lowest application product temperature to be retested if the thermostat is changed.
California Codes and Standards also suggested scaling the energy consumption data for equipment tested at application temperatures to reflect projected energy consumption at the relevant rating temperature. (California Codes and Standards, No. 19 at pp. 223 and 227) However, DOE agrees with Southern Store Fixtures that testing these units at a higher integrated average temperature does not necessarily mean that the unit will use less energy. The variability in energy use and the impact of variation in integrated average temperature will depend on case type, geometry, and configuration. This makes it very difficult to set a consistent scaling factor or incorporate temperature into the standards equations, as any value chosen would be not be representative of all cases. This issue will be discussed further in the energy conservation standards rulemaking (Docket No. EERE–2010–BT–STD–0003).
With respect to NEEA's suggestion that equipment rated at lowest application product temperature be referred to as “high or elevated temperature” equipment, DOE cannot control how equipment is referred to or categorized in the market beyond the equipment classes DOE specifies. Since DOE is not creating a unique equipment class for this equipment, DOE will continue to categorize the equipment based on its appropriate equipment class.
In the November 2010 NOPR, DOE proposed that the lowest application product temperature provision apply equally to self-contained and remote condensing commercial refrigeration equipment. 75 FR 71605 (Nov. 24, 2010). AHRI inquired how the lowest application product temperature would apply to remote condensing equipment, because the lowest operating temperature for remote condensing equipment is dependent on the condensing unit to which it is attached. (AHRI, No. 19 at p. 203) Zero Zone commented that the approach for testing equipment at the lowest application product temperature was reasonable for
DOE has reviewed Zero Zone's comment and the pertinent sections of ASHRAE Standard 72. DOE concedes that, for remote condensing equipment that does not have a thermostat or another means to regulate temperature, the size of the compressor rack could impact the lowest achievable application product temperature. In this case, the saturated suction temperature at the compressor rack (also referred to as the Adjusted Dew Point Temperature in AHRI 1200–2010) impacts the amount of refrigerant that can flow through the evaporator. Larger compressor racks are able to achieve lower saturated suction temperatures, which will produce a lower operating temperature in the case than a smaller compressor. DOE acknowledges that the method included in Zero Zone's comment would create a standardized repeatable test for this type of equipment. However, DOE believes that the specification of a saturated suction temperature to 5 °F lower than that required to maintain the application temperature is somewhat arbitrary and not necessarily indicative of the lowest operating temperature of the unit. This specification also could inadvertently restrict or burden manufacturers when testing their equipment. DOE did not receive comments from other manufacturers on this topic. DOE also notes that specification of a fixed saturated suction temperature is only required for remote condensing units without thermostats or other means of regulating temperatures that are rated at the lowest application product temperature. DOE is not currently aware of any equipment on the market that would fit this description.
In the case of remote condensing equipment with a thermostat, DOE believes that the lowest application product temperature is sufficiently defined by the range of the thermostat and that the suction temperature is similarly limited by the thermostat. However, for remote cases that do not have a thermostat or other means for controlling temperature at the case level, DOE acknowledges that this relationship between compressor rack size and lowest application product temperature does create some variability in the lowest application product temperature that can be achieved by a given case. Thus, DOE is requiring that the adjusted dew point temperature, as defined in AHRI 1200–2010, be set to 5 °F colder than that temperature required to maintain the manufacturer's lowest specified application temperature for those pieces of remote condensing commercial refrigeration equipment that do not have a means for controlling temperature at the case, such as a thermostat, and cannot be tested at their specified integrated average rating temperatures.
Commercial refrigeration equipment that is marketed to hold perishable food items is classified and certified by NSF/ANSI–7, “Commercial Refrigerators and Freezers” (hereafter referred to as NSF–7), a food safety standard issued by NSF.
At the January 2011 NOPR public meeting and in subsequent written comments, interested parties commented on the similarities and differences between the DOE test procedure and the NSF–7 test. Commenters also noted the additional burden associated with performing both tests. Southern Store Fixtures commented that if a unit designed to operate at higher ambient conditions is operated at a lower ambient temperature, the case will not perform as well because it will have an oversized compressor and could have operational issues with compressor cycling. Southern Store Fixtures further commented that the energy consumption of a case can increase by as much as 30 percent when changing from a rating condition of 75 °F and 55 percent relative humidity to 80 °F and 60 percent relative humidity. (Southern Store Fixtures, No. 19 at pp. 94–95) True and Coca-Cola stated that a 5 °F difference will not significantly affect energy consumption and that, for those few cases that would be significantly affected, they could apply for a waiver. (True, No. 19 at p. 122; Coca-Cola, No. 19 at p. 123) Southern Store Fixtures countered that only in cases with solid doors will the 5 °F temperature difference be insignificant (Southern Store Fixtures, No. 19 at p. 131), and that the effects of a 5 °F increase in temperature can be significant for open cases or cases with single pane glass. (Southern Store Fixtures, No. 19 at p. 97)
Hussmann stated that, although the difference in energy use among self-contained cases may not be significant, Hussmann was concerned with the additional burden of testing a case twice. (Hussmann, No. 19 at p. 123) Hussmann stated that all units must pass the NSF–7 requirements in order to be certified for food safety. The NSF–7 requirement differs from AHRI 1200 in that the maximum average temperature can never exceed 41 °F at any time. Hussmann also stated that the integrated average temperature for the NSF–7 test (approximately 34 °F) is actually lower than that required by the DOE test procedure, and that the energy consumption of a medium temperature self-contained case is higher during testing for NSF compliance than it is during the DOE energy consumption
California Codes and Standards and NEEA both suggested that DOE allow testing at both the 75 °F and 55 percent relative humidity rating condition and NSF Type II conditions, provided the case, as tested, were to meet the applicable energy conservation standard. (California Codes and Standards, No. 19 at p. 124; NEEA, No. 19 at p. 127) ACEEE stated its belief that commercial refrigeration equipment can be divided into two types of equipment: that for which food safety is a true concern, and that which cools and displays product for the purposes of presenting value to the consumer. The former subset of equipment is rated in accordance with NSF food safety standards, while the latter is not. Therefore, ACEEE suggested making a distinction between the two in the DOE test procedure, with the NSF–7 test procedure being used for equipment for which food safety is a true concern, and the AHRI/ASHRAE method being used for the remaining equipment. ACEEE stated that it would endorse such a method as long as the two subsets of equipment were separated clearly, such as via labeling. (ACEEE, No. 12 at pp. 2–3)
True stated that the current Federal test procedure relies on ASHRAE Standard 72, which specifies a rating condition of 75 °F and 55 percent relative humidity, and that this reflects the way cases are currently tested. True added that if the test temperatures were to be changed, comparison with historical data could be difficult. (True, No. 19 at pp. 127–28) True also acknowledged that self-contained cases currently required to meet the EPACT 2005 standard must test at the DOE rating condition of 75 °F and 55 percent relative humidity and, optionally, at NSF Type II conditions, so there is no incremental increase in burden. (True, No. 19 at p. 129)
DOE acknowledges the burden on manufacturers that have to certify equipment with both the DOE test procedure and the NSF–7 test procedure. DOE also agrees with interested parties that testing cases at an ambient temperature of 80 °F, rather than the currently specified 75 °F, will not have a significant impact on energy consumption for cases with doors. DOE recognizes that, as Southern Store Fixtures mentioned, the impact on open cases may be greater than on closed cases, but does not believe that equipment will have operation or performance issues if tested at a the temperatures prescribed by the DOE test procedure. DOE believes the energy consumption of a case should scale with ambient temperature and does not believe these issues will prevent units from being tested using the DOE-prescribed test temperatures or demonstrating compliance with DOE energy conservation standards. DOE researched the equipment available on the market and requested specific data regarding the existence of cases that cannot meet the standard or the characteristics of their operation. DOE has found no evidence or firm data supporting the creation of a separate equipment class and standard for equipment designed to operate at higher ambient conditions. Thus, DOE will not create specific new equipment classes for equipment that is designed to operate at internal or ambient temperatures other than the test conditions prescribed by DOE.
DOE does not believe development of a scaling factor that would be sufficiently representative of equipment energy consumption and consistent across an equipment class is justified within the scope of this rulemaking. The geometry and design of each case will cause the magnitude of the impact of variation in temperature to vary, making development of any scaling factor extremely burdensome. This is true for both external and internal temperature variations.
Continuing to require testing at standard rating conditions, as prescribed in the DOE test procedure, without allowances for variation in internal or external temperatures, will not increase the burden for manufacturers. However, it will also not reduce the total burden of testing, which could be accomplished through coordination of test requirements with other programs, such as NSF.
In response to the suggestion that cases could optionally be tested at NSF–7 conditions (ambient or internal) as long as the unit, as tested, complies with the energy conservation standard, DOE believes that this will effectively reduce the burden on manufacturers while ensuring that all cases meet or exceed the DOE energy conservation standard, provided the NSF–7 rating temperatures and ambient conditions represent a more stringent test. In most cases, using the NSF internal temperature requirements or Type II external ambient conditions represents a more conservative test in that equipment will have to be more efficient to operate at NSF internal temperatures or ambient conditions and still comply with DOE energy conservation standards. For example, as Hussmann notes, manufacturers often perform the NSF–7 test at a lower integrated average temperature than that required by the DOE test procedure to ensure their cases will comply with NSF's food safety requirements. However, DOE notes that this method is optional, and manufacturers are technically allowed to test cases at up to 41 °F integrated average temperature under the NSF–7 test, provided the air is perfectly mixed and the spatial temperature variation within the case is very well controlled. In an effort to reduce burden for manufacturers and allow testing for the purposes of NSF certification and DOE compliance to occur in the same test, DOE is adopting in this final rule provisions that allow manufacturers to optionally use NSF internal or ambient conditions to test equipment in a given equipment class, provided the NSF conditions are more stringent than the prescribed DOE rating temperatures and conditions for that equipment class. To clarify, manufacturers may test at the prescribed 75 °F and 55 percent relative humidity ambient rating condition, or they may optionally test at the NSF Type II conditions of 80 °F and 60 percent relative humidity. In either case, the equipment would be required to show compliance with the relevant energy conservation standard for that equipment class. Additionally, manufacturers are allowed to test equipment at integrated average temperatures that satisfy the DOE-specified rating temperatures or are lower than the DOE-specified rating temperatures.
DOE acknowledges that allowing equipment to be tested at NSF–7 conditions in the DOE test procedure would make comparison of equipment within the same equipment class difficult and confusing, given that there could be cases tested at four different conditions in the same class. However, DOE is requiring that equipment rated at
As True acknowledged, manufacturers that produce equipment covered by EPACT 2005 standards are currently testing to both the DOE and NSF–7 test procedures. Thus, maintaining the proposed equipment classes and test temperatures for equipment that must also be tested using the NSF–7 test for food safety certification does not introduce any incremental burden on manufacturers. Instead, the provision to demonstrate compliance by testing the equipment at NSF–7 test conditions is only meant to provide an opportunity to the manufacturers to reduce the number of tests for equipment that can comply with DOE standards even when tested at the more stringent NSF–7 test conditions. However, this provision will not be advantageous to equipment that may be unable to comply by DOE standards when tested at the more stringent NSF–7 test conditions due to a large difference in energy consumption at the two different test conditions.
In summary, DOE is incorporating language in the test procedure final rule that will allow manufacturers to optionally test at NSF–7 conditions that are more stringent than the DOE test conditions to reduce the repetitive test burden of testing at both DOE and NSF–7 conditions, provided the case still meets DOE's energy conservation standards.
At the January 2011 NOPR public meeting and in the ensuing comment period, DOE received comments from interested parties regarding several issues that pertain to the CRE test procedure and energy conservation standard rulemakings, but not to specific provisions or amendments. DOE received comments on the scope of covered equipment; the testing of part-load technologies not currently referenced explicitly in the test procedure; the effective date of the test procedure rulemaking; preemption of State regulations; the burden of testing; the association of this final rule with DOE's certification, compliance, and enforcement regulations; alternative refrigerants; and secondary coolant systems.
The test procedure for commercial refrigeration equipment prescribes methods for testing all commercial refrigeration equipment, as defined in 10 CFR 431.62. The definition of commercial refrigerator, freezer, and refrigerator-freezer includes all refrigeration equipment that:
(1) Is not a consumer product (as defined in § 430.2 of part 430);
(2) Is not designed and marketed exclusively for medical, scientific, or research purposes;
(3) Operates at a chilled, frozen, combination chilled and frozen, or variable temperature;
(4) Displays or stores merchandise and other perishable materials horizontally, semi-vertically, or vertically;
(5) Has transparent or solid doors, sliding or hinged doors, a combination of hinged, sliding, transparent, or solid doors, or no doors;
(6) Is designed for pull-down temperature applications or holding temperature applications; and
(7) Is connected to a self-contained condensing unit or to a remote condensing unit.
California Codes and Standards commented that DOE should consider regulating remote condensing racks and that significant energy savings were possible in that type of equipment. (California Codes and Standards, No. 19 at p. 12) California Codes and Standards further asked DOE to review the pros and cons of establishing a separate rulemaking on remote condensers and to consider which parts of remote condensing equipment should be covered by energy conservation standards. These standards, the comment stated, would be well suited to establishing a baseline efficiency for the remote condensing unit, independent of the type of equipment it serves. (California Codes and Standards, No. 13 at pp. 1–2) ACEEE stated that DOE should recognize the distinction between dedicated remote condensing units and rack systems that serve multiple pieces of equipment. ACEEE suggested that DOE should develop an appropriate method for rating dedicated remote compressors across various capacities and temperature needs, potentially using standard loads for the testing of remote rack systems. (ACEEE, No. 12 at p. 5)
During the 2009 CRE energy conservation standards rulemaking, DOE made the determination not to cover remote condensers within the scope of the January 2009 final rule, and to limit the standards analyses to refrigerated cases only and not the remote condensers. In the advance notice of proposed rulemaking, DOE stated:
In its Framework Document, DOE pointed out that EPCA defines a “self-contained condensing unit,” in part, as an assembly of refrigerating components “that is an integral part of the refrigerated equipment * * *” (42 U.S.C. 6311(9)(F), added by EPACT 2005, section 136(a)(3)) EPCA also defines a “remote condensing unit,” in part, as an assembly of refrigerating components “that is remotely located from the refrigerated equipment * * *.” (42 U.S.C. 6311(9)(E), added by EPACT 2005, section 136(a)(3)) DOE also stated in the Framework Document that this difference in the definitions may mean that, under EPCA, remote condensing units are not a part of the refrigerated equipment and that energy conservation standards for remote condensing commercial refrigerators, commercial freezers, and commercial refrigerator-freezers would apply only to the refrigerated equipment (i.e., storage cabinets and display cases), but not to the remote condensing units.
Several interested parties commented at that time that coverage of remote condensers would be difficult due to the wide variety of this type of equipment. (Docket No. EERE–2006–STD–0126, Zero Zone, Public Meeting Transcript, No. 3.4 at p. 48;
DOE believes that nothing has changed to affect this stance. DOE continues to believe that the condenser rack to which a piece of remote condensing commercial refrigeration equipment is attached to, is a separate piece of equipment that may serve other equipment types (
Technologies that operate as a function of variable ambient conditions can reduce annual energy consumption of commercial refrigeration equipment by adapting to changes in refrigeration load that result from changes in ambient conditions. These variable load, or part-load, technologies include higher efficiency expansion valves, condenser fan motor controllers, and anti-sweat heater controllers. In the November 2010 NOPR, DOE suggested that, although ASHRAE Standard 72–2005 is a steady-state test, some variation in refrigeration load is experienced in that test due to the door opening and night curtain provisions. This variation in refrigeration load inherent in the test procedure means the effects of variable load, or part-load, features are already captured to some degree in the proposed test procedure for commercial refrigeration equipment. DOE further argued that additional independent or explicit part-load testing would result in increased cost and burden for manufacturers of covered equipment. DOE estimated that part-load testing at additional rating conditions could more than double the cost and burden of testing for all commercial refrigeration equipment. In the November 2010 NOPR, DOE stated that explicit testing at multiple sets of conditions was not justified because of this increased burden, and proposed that the test procedure continue to reference only one standard ambient condition, relying on the transient effects inherent in the proposed test procedure to capture part-load performance. 75 FR 71601 (Nov. 24, 2010).
At the January 2011 NOPR public meeting and in subsequent written comments, NEEA and California Codes and Standards agreed with DOE that the ASHRAE Standard 72 test method does include variation in the refrigeration load, which would realize the benefits of part-load technologies, such as floating head pressure controls, liquid suction heat exchangers, and improved thermal expansion loads in equipment with doors. These interested parties asked DOE to evaluate part-load technologies in the energy conservation standards rulemaking. (NEEA, No. 8 at p. 2; California Codes and Standards, No. 19 at p. 13)
AHRI commented that additional, specific requirements for testing of part-load technologies will add an additional burden on manufacturers, and agreed with DOE that ASHRAE 72 already accounts to some degree for the effects of part-load technologies. As a result, AHRI recommended against new testing requirements for these technologies. (AHRI, No. 15 at p. 2) NEEA agreed that short-term part-load impacts are limited, and that longer-term variations, such as those induced by changes in ambient conditions, would be difficult to capture without imposing a significant additional burden. (NEEA, No. 8 at p. 2)
Conversely, NRDC commented that it believed that DOE had not provided sufficient data to show that testing at varying loads would impose an undue burden on manufacturers. NRDC further stated that manufacturers that use advanced control strategies and variable-load technologies need to have such features properly credited. According to NRDC, to not adequately credit such features would conflict with section 342 of EPCA, which requires DOE to adopt test procedures that reflect representative energy use. (NRDC, No. 14 at pp. 3–4)
ACEEE stated its belief that gains due to technologies such as adaptive controls and modulating components must be captured in a test procedure to fairly express to consumers the better value that may be presented by equipment that performs more efficiently in the field. In ACEEE's opinion, to not capture the effects of these features would result in a loss of competitiveness by domestic manufacturers. (ACEEE, No. 12 at p. 2) ACEEE added that it does not believe that the current test methods account for modulating components and their benefits. (ACEEE, No. 12 at p. 6)
DOE recognizes the desire to better characterize the performance of these devices. However, DOE believes that the refrigerant load changes inherent in the amended test procedure are representative of average use and that the test procedure established in this final rule meets the requirements for a test procedure established by EPCA section 342 (42 U.S.C. 6314(a)(2)). Given that, DOE believes the establishment of new, independent test requirements for part-load conditions is not necessary and would impose undue burden on manufacturers. As stated previously, testing of part-load technologies would more than double the burden on manufacturers to test equipment. DOE maintains that part-load technologies that respond to changes in refrigeration load will be partially captured in the DOE test procedure due to door openings, night-curtain deployment, compressor cycling, and minor fluctuations in the thermodynamic state of the case during the test. In any event, manufacturers may implement any part-load technologies as they see fit. DOE believes the efficiency gains achieved by part-load technologies in the current test procedure are sufficient, and that further independent testing is not justified.
EPCA requires that, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1) and 6314(a)(6)(D)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2) and 6314(a)(6)(D)) Several of the provisions in this test procedure final rule will change the measured energy use of some commercial refrigeration equipment covered under the scope of current standards. As such, DOE is in the process of amending the current energy conservation standards for commercial refrigeration equipment in a concurrent rulemaking (Docket No. EERE–2010–BT–STD–0003).
In the November 2010 NOPR, DOE proposed to require that the use of the amended test procedure be consistent with the compliance date of any revised energy conservation standards. 75 FR 71599 (Nov. 24, 2010). DOE is adding language to the final test procedure amendments clarifying that the amendments shall not be used at the time of publication to determine compliance with the current energy conservation standards. Instead, manufacturers will be required to use the amended test procedure to demonstrate compliance with DOE's energy conservation standards on the compliance date of any final rule establishing amended energy conservation standards for commercial refrigeration equipment. Until this date, manufacturers must continue to use the existing DOE test procedure, as set forth at 10 CFR 431.64, to demonstrate compliance with existing energy conservation standards.
However, EPCA also states that, effective 360 days after any amended
ACEEE, NEEA, and Earthjustice all expressed the view that the test procedure effective date should be equivalent to that of any amended energy conservation standards published in the concurrent energy conservation standards rulemaking (Docket No. EERE–2010–BT–STD–0003). (ACEEE, No. 12 at p. 3; NEEA, No. 31 at p. 2; Earthjustice, No. 11 at p. 2) Earthjustice also stated that DOE must clarify that manufacturers may not use night curtains and/or occupancy sensors to comply with minimum efficiency standards prior to the compliance date of amended standards that account for those features. (Earthjustice, No. 11 at p. 2) Earthjustice further commented that EPCA requires that, if DOE amends test procedures, it must also determine to what extent the proposed test procedure would alter measured energy use as determined under the existing test procedure. If the test procedure is found to alter measured energy use, DOE must amend the energy conservation standard to account for this, taking into consideration the performance of existing minimally compliant equipment under the amended test procedure. (Earthjustice, No. 11 at pp. 2–3)
DOE understands that, if the amended test procedure will affect the measured energy consumption of a covered piece of equipment, DOE must amend energy conservation standards accordingly. DOE is pursuing amended standards based on the test procedure amendments being adopted in this final rule. As such, DOE is requiring that the use of any amended test procedure not be required until the compliance date of any amended standards. As these amended test procedures will only be used with standards that have been set based on those amendments, DOE believes there is no risk of backsliding, but is conscious of and accounting for this issue in the associated energy conservation standards rulemaking (Docket No. EERE–2010–BT–STD–0003).
With respect to representations of the maximum daily energy consumption of covered equipment, it is DOE's understanding that 360 days following publication of the test procedure final rule, representations of energy consumption must be made using the amended test procedure. However, this could create a situation where manufacturers may have to test equipment using two different test procedures beginning 360 days after publication of the test procedure final rule (anticipated October 2012) and until 3 years after the publication of the CRE energy conservation standards final rule (anticipated January 2016). DOE believes this potentially would be confusing and burdensome for manufacturers. To simplify testing activities, DOE is specifying in this final rule that use of the amended test procedure for compliance and representations of energy use will be required on the compliance date of any amended energy conservation standards resulting from the ongoing rulemaking (Docket No. EERE–2010–BT–STD–0003). This stance is similar to that proposed for walk-in coolers and freezers with respect to the testing of insulation values and is the most practical to implement. 76 FR 48745 (Aug. 9, 2011). DOE is including a clarifying statement in the test procedure rule language regarding when the amended test procedure must be used for purposes of compliance and labeling or other representations of energy consumption.
At the January 2011 NOPR public meeting, California Codes and Standards asked DOE to consider which features of commercial refrigeration equipment should be addressed by DOE, as opposed to others that could be left uncovered and regulated by State or local building efficiency standards and codes. Features that could be more appropriately covered by State or local building regulations, according to the comment, could include controls not integral to a single unit (centralized, storewide controls); liquid-suction heat exchangers serving an entire lineup of cases; and application-specific devices, such as night curtains, which could be very valuable in some applications but inapplicable in others (such as 24-hour stores). California Codes and Standards requested that DOE clarify which of these types of features would be “covered” or “uncovered” under the current and forthcoming CRE regulations (California Codes and Standards, No. 13 at pp. 15–16) and requested clarification on the ability of State or local building standards to specify additional prescriptive requirements for equipment based on building occupancy. (California Codes and Standards, No. 19 at p. 75)
Federal minimum efficiency standards for commercial refrigeration equipment supersede State or local efficiency standards (42 U.S.C. 6297, 6316(e)(2)), unless such standards are contained in a State or local building code for new construction that meets the requirements of 42 U.S.C. 6297(f)(3), including the requirement that one pathway for compliance under the State building code is through the use of appliances that meet Federal standards.
DOE understands that amending test procedures or including additional
DOE has analyzed the expected incremental cost of the test procedure amendments adopted in this final rule and its impact on manufacturers. The amendments to the DOE test procedure for commercial refrigeration equipment consist of updating the referenced industry test procedures to the most current versions; testing requirements for units sold with night curtains and lighting occupancy sensors or controls installed; and provisions for testing units at temperatures other than the specified rating temperatures of 38 °F, 0 °F, and −15 °F.
All commercial refrigeration equipment for which standards were set in EPACT 2005 are currently required to be tested using the DOE test procedure to show compliance with the EPACT 2005 standards. (42 U.S.C. 6313(c)(2)–(3); 10 CFR 431.66(b)) Manufacturers of equipment for which standards were set in the January 2009 final rule are similarly required to test units using the DOE test procedure to show compliance with the 2009 standards levels as of January 1, 2012. 74 FR 1093 (Jan. 9, 2009); 10 CFR 431.66(d)). The current DOE test procedure references AHRI Standard 1200–2006 and AHAM HRF–1–2004. This test procedure consists of one 24-hour test at standard rating conditions to determine daily energy consumption.
The updated versions of AHRI Standard 1200–2010 and AHAM HRF–1–2008 do not vary substantially from the previously referenced versions. Aligning the DOE test procedure with the most recent industry test procedures currently in use—AHRI standard 1200–2010 and AHAM HRF–1–2008—simplifies testing requirements and reduces the burden of testing for both small and large manufacturers.
For equipment that is sold with night curtains installed, the current test procedure requires one 24-hour test that does not account for the energy savings associated with night curtain deployment. The amended test procedure adopted in this final rule incorporates provisions to account for the energy savings associated with night curtain deployment. The night curtain test procedure requires the night curtain to be pulled down for 6 hours during the test. DOE believes the incremental burden of pulling down the night curtain at a certain time and retracting it 6 hours later requires less than half a minute each and is not significant relative to the burden of conducting the test. Thus, DOE has determined that the testing costs for CRE models with added night curtains are approximately the same as those for models without night curtains and concludes there are no significant incremental costs associated with testing models with night curtains.
For units sold with lighting occupancy sensors and scheduled controls installed, no additional testing or measurements will be required. Manufacturers will be permitted to use a calculation method to determine the energy savings due to lighting occupancy sensors and scheduled controls. DOE believes that these additional calculations will only require approximately 30 minutes of additional time. These calculations are straightforward and similar to the calculations for alternate component energy consumption, which are part of the existing test procedure. When compared to the burden associated with the physical testing segment of the procedure, the additional calculations required by the lighting occupancy sensor and scheduled control requirements will not significantly increase the total burden of the test. Thus, DOE believes that the additional calculations for lighting occupancy sensors and controls will not significantly increase the burden of test for manufacturers of covered equipment. Also, DOE notes that manufacturers may optionally incorporate the testing of lighting occupancy sensors and controls into the physical test. In this case, manufacturers would be required to turn off and turn on the lights once each during the 24-hour test. DOE believes these additional steps would involve negligible effort in comparison to the burden associated with conducting the complete test and, thus, the incremental increase in burden would be negligible.
For equipment that cannot be tested at the specified integrated average rating temperature for its respective equipment class, manufacturers are currently required to test the unit using AHRI Standard 1200 at the specified test temperature. Under the adopted revisions, these manufacturers will be allowed to test units that cannot meet the specified test temperature for their equipment class at the lowest application product temperature, with the only difference being the integrated average temperature. Because the same test will be performed for cases that cannot be tested at the prescribed rating temperature and must be tested at lowest application product temperature, as compared to cases that are tested at DOE's prescribed rating temperature, DOE believes that this method will not increase the burden of test for those manufacturers and is likely to lead to more representative energy consumption values. DOE notes that the AHRI Standard 1200–2010 test is often already performed by manufacturers for participation in voluntary programs, independent collection of energy consumption information, or other reasons.
In this test procedure final rule, DOE is also allowing manufacturers to test at the internal temperatures and/or ambient conditions required for NSF–7 testing. This could dramatically reduce the burden for manufacturers that produce equipment for food storage, as under the amended test procedure these two 24-hour tests can be combined. The NSF–7 test is similar in length and burden to the DOE test, but is performed at slightly different internal and external temperatures. Certification of equipment tested at NSF–7 test temperatures for the purposes of compliance with DOE energy conservation standards will only be possible for equipment that is able to meet the DOE energy conservation standard at the more stringent NSF–7 test conditions. However, DOE believes this provision can still potentially decrease the burden of test for some manufacturers.
The amendments to the test procedure for commercial refrigeration equipment were chosen to help minimize the impact of additional testing while updating the DOE test procedure to include the most current versions of industry standards, capture new energy efficiency technologies, and provide more accurate test methods for equipment that cannot be tested at the currently prescribed integrated average rating temperature. Because none of these amendments significantly increase the burden of a test, DOE believes that the test procedure finalized here will not be unduly burdensome to conduct.
For further discussion of the economic impact of additional testing on small CRE manufacturers, the entities that will be the most impacted by additional testing requirements, please see section IV.B of this final rule.
In the November 2010 NOPR, DOE proposed that if a unit is tested and demonstrates compliance with the relevant energy conservation standard without night curtains or lighting occupancy sensors installed, that unit can also be sold with night curtains or lighting occupancy sensors installed without additional testing. DOE proposed this same provision for lighting occupancy sensors and controls in order to minimize the testing burden on manufacturers and because DOE believed that the addition of night curtains and lighting occupancy sensors and controls would only decrease energy consumption. If, however, a piece of equipment does not meet DOE's energy conservation standards without night curtains (or lighting controls) installed, DOE proposed to require the unit to be tested with night curtains (or lighting controls) installed. In this instance, assuming the energy conservation standard is met, the equipment would also be required to be sold with night curtains (or lighting controls) installed. 75 FR 71600 (Nov. 24, 2010). However, if a manufacturer wishes to publicize the certified ratings of a unit with night curtains (or lighting controls) installed, that energy consumption value must be determined using the DOE test procedure and applicable sampling plans. (42 U.S.C. 6314(d)) In addition, the energy consumption of this basic model must be certified. 76 FR 12422, 12453 (March 7, 2011).
Coca-Cola commented that a manufacturer could sell a case with a lighting controller installed without testing the case to prove the energy savings as long as it made no claims regarding energy savings. Coca-Cola further commented that performing the additional tests could be burdensome for the manufacturer and should remain optional. (Coca-Cola, No. 19 at p. 243) However, California Codes and Standards commented that the additional burden to calculate, or test, with and without occupancy sensors seemed minimal and that perhaps it should be required. (California Codes and Standards, No. 19 at p. 250) NRDC encouraged DOE to require manufacturers of open cases with night curtains to test them with the curtains deployed for 6 hours as proposed, and to require labeling of equipment accordingly to explain the relevant efficiency features to potential buyers. (NRDC, No. 14 at p. 2) Similarly, NEEA disagreed with DOE's proposal to allow night curtains to be used to establish compliance in units that are noncompliant without night curtains. (NEEA, No. 8 at p. 4)
Coca-Cola agreed with DOE's proposal to allow manufacturers the option of testing with night curtains. (Coca-Cola, No. 19 at p. 243) This provision would require that cases be tested with night curtains if (1) the case without night curtains does not meet the energy conservation standard; or (2) the manufacturer wishes to publicize the energy consumption of the case with night curtains installed. In response to California Codes and Standards and NRDC's comments regarding the requirement of units sold with night curtains to be tested with night curtains, DOE has adopted the provision to allow cases that meet DOE's energy conservation standard without night curtains to be sold with and without night curtains to minimize burden on manufacturers.
Furthermore, implementation of night curtains will only improve energy efficiency of the equipment. This is consistent with the provisions for grouping into basic model families established in the certification, compliance, and enforcement (CCE) final rule. (CCE final rule; 76 FR 12422, 12423 (March 7, 2011)). These provisions allow manufacturers to group individual models with essentially identical, but not exactly the same, energy performance characteristics into a basic model to reduce testing burden. Under DOE's certification requirements, all the individual models within a basic model identified in a certification report as being the same basic model must have the same certified efficiency rating and use the same test data underlying the certified rating. The CCE final rule also establishes that the efficiency rating of a basic model must be based on the least efficient or most energy consuming individual model, or, put another way, all individual models within a basic model must be at least as good as the certified rating. 76 FR 12428–29 (March 7, 2011). Because night curtains would only serve to decrease energy consumption or increase energy efficiency of commercial refrigeration equipment, DOE believes the provisions for optionally testing cases with night curtains if the case without night curtains meets the energy conservation standard for its equipment class ensures that all equipment sold meets DOE's energy conservation standards and minimizes burden on manufacturers. This same argument applies to the testing provisions for cases with lighting occupancy sensor and/or scheduled lighting controls installed. DOE notes that manufacturers are free to test a case both with and without night curtains (or lighting occupancy sensors and/or lighting controls) to establish separate efficiency ratings and must do so if they wish to make representations of both values.
Regarding NEEA's comment criticizing the fact that testing of cases with night curtains could be used to certify otherwise noncompliant equipment, DOE sets performance standards, but cannot control or restrict what design options or technologies a manufacturer chooses to employ to meet a certain standard level. Thus, like any other design option, manufacturers may employ night curtains as a means to increase efficiency of a case to meet DOE's energy conservation standards.
In the initial regulatory flexibility analysis (IRFA), presented in the November 2010 NOPR, DOE quantified the incremental burden on small manufacturers and certified that this rulemaking, as proposed, would not have a significant impact on a substantial number of small entities. 75 FR 71596, 71606–08 (Nov. 24, 2010). In the IRFA, DOE presented several estimates of the cost of testing and the number of small U.S. commercial refrigeration equipment manufacturers. DOE estimated testing costs to be approximately $5,000 per unit to conduct the baseline test, as outlined in AHRI 1200–2010. 75 FR 71607 (Nov. 24, 2010). In response to these estimates, Southern Store Fixtures, Traulsen, and Hussmann all commented that the cost of testing is actually much greater than $5,000. (Southern Store Fixtures, No. 19 at p. 237; Traulsen, No. 19 at p. 238; Hussmann, No. 19 at p. 238) Traulsen stated that an estimate for total cost of testing a unit, including shipping, product costs, etc., would be $15,000. (Traulsen, No. 9 at p. 8) NEEA agreed with other interested parties that stated that DOE's estimate of $5,000 for testing a unit was likely too low. However, NEEA also stated that, based on its own experience, the cost of additional testing of a model is not nearly double the cost of the first test, since the unit is only shipped and set up once. Thus, according to NEEA, additional tests would only slightly add to the burden of testing. (NEEA, No. 8 at p. 7) NEEA stated that it did not believe DOE's proposal to be overly burdensome, as in every instance only one 24-hour test should be required for a given piece of equipment. (NEEA, No. 8 at p. 7)
Traulsen stated that it believes DOE's estimate of 22 small businesses in the
Southern Store Fixtures commented that the proposed test procedure would impact its operation. (Southern Store Fixtures, No. 19 at p. 253) Traulsen stated that equipment sampling provisions and the increasing scope of standards are causing testing costs to increase significantly and, according to Traulsen, the company's marginal costs incurred as a result will be approximately $250,000 per year. (Traulsen, No. 9 at pp. 1–2) Zero Zone commented that applying additional tests is only easy if it is known that these tests must be performed when the unit is originally tested. Re-testing of units is much more burdensome than adding additional tests to a unit being tested, as re-testing requires that the test setup be re-installed and calibrated. Zero Zone also commented that, while the test procedure changes will not have a significant impact on a substantial number of small entities, the addition of DOE regulations to existing regulations will create a barrier to entry into the market for small start-up companies. (Zero Zone, No. 16 at pp. 1–2)
DOE has attempted to minimize the burden on manufacturers by keeping all test procedure amendments confined to the existing single 24-hour test. Thus, the test procedure amendments should not significantly increase the burden of testing a piece of equipment covered under the rule.
DOE appreciates the information related to cost of testing and the number of small businesses covered by this rule. DOE has considered these new numbers in revising the regulatory flexibility analysis. However, DOE notes that the costs cited by manufacturers represent the cost to conduct the AHRI 1200 test, which is required by both the existing test procedure and the new amended test procedure. Thus, the $15,000 test burden is not an incremental cost associated with this test procedure final rule. The incremental cost to test a piece of commercial refrigeration equipment covered under this rulemaking will not increase significantly because the amendments in this final rule do not significantly impact the time, labor, or materials required to conduct a test. Because the testing burden will not increase significantly as a result of this rule, DOE believes the incremental impact on small businesses will be small. DOE's revised final regulatory flexibility analysis can be found in section IV.
Traulsen expressed concern that increased requirements for third-party testing and compliance with DOE and U.S. Environmental Protection Agency (EPA) programs are escalating the burden on manufacturers. (Traulsen, No. 9 at pp. 1–2) Traulsen also commented that the most significant improvement DOE could make in terms of reducing burden for manufacturers would be to align DOE and ENERGY STAR testing and reporting requirements. (Traulsen, No. 5 at p. 254) Traulsen and True commented that ENERGY STAR is currently requiring equipment to be tested “out of the box,” including testing at the product temperature at which the unit is shipped. (Traulsen, No. 19 at p. 195; True, No. 19 at p. 198) Traulsen explained how this requirement has created issues because it ships its cases at an internal temperature set point of 34 °F for marketing reasons, which may create problems when the cases are tested at that temperature. Traulsen asked if DOE was also going to be requiring the testing of cases “out of the box” without adjusting the integrated average temperature set point. (Traulsen, No. 19 at p. 195) NEEA commented it had been involved with ENERGY STAR since its inception and that it is not possible to test units out of the box, and that “out of the box” simply means that the unit is not specially fabricated or adjusted. (NEEA, No. 19 at p. 198) Traulsen stated that DOE must ensure that the test procedure allows for adjustment of the equipment to the test set points, as “out of the box” set points may not be 38 °F. Traulsen further stated that this would differ from EPA testing, where units must be tested as is, out of the box. (Traulsen, No. 9 at p. 7)
DOE attempts, to the extent possible, to minimize duplicative reporting or testing requirements. Further, this final rule does not require “out of the box” testing as interpreted by Traulsen. All equipment tested for the purposes of compliance with DOE energy conservation standards must be tested using the DOE test procedure. DOE is working with EPA to ensure that the test procedures for commercial refrigeration equipment for the regulatory program and the ENERGY STAR program are the same.
Interested parties inquired as to how the provision allowing equipment that complies with the energy conservation standard to be sold with and without night curtains (or lighting controls) without being retested relates to the concurrent CCE rulemaking. 76 FR 12422 (March 7, 2011). AHRI commented that there was a disconnect between what is being proposed in the CCE rulemaking and the provisions for testing night curtains and lighting control devices in the November 2010 NOPR. (AHRI, No. 19 at p. 254) AHRI also commented that because of issues related to compliance and claiming energy savings from night curtains without testing, manufacturers were going to be required to test cases twice. (AHRI, No. 19 at p. 216) NEEA added that utility programs and ENERGY STAR will require certified values for inclusion in their programs. (NEEA, No. 19 at p. 162) Coca-Cola inquired whether a unit that had been tested without night curtains had to be certified with night curtains under the current CCE requirements. (Coca-Cola, No. 19 at p. 161) Heatcraft inquired whether the provision for selling commercial refrigeration equipment with and without night curtains if the unit met DOE's energy conservation standards without night curtains installed could apply to other components, such as a unit that was sold with a permanent split capacitor or evaporative condensed screw condenser fan. (Heatcraft, No. 19 at p. 155)
In response to AHRI's comment that the proposal for testing and certifying units with night curtains may conflict with the CCE rulemaking (76 FR 12422 (March 7, 2011)), DOE notes that testing of equipment with or without night curtains is not required because there are currently no Federal prescriptive standards that include night curtains and no test procedure to quantify their effect on equipment energy consumption. DOE believes that the test procedure established in this final rule for units equipped with night curtains and/or lighting occupancy sensors and scheduled lighting controls does not conflict with the CCE requirements that DOE published in the CCE final rule. 76 FR 12423 (March 7, 2011). Specifically, as mentioned above, implementation of night curtains (or lighting occupancy sensors and/or controls) will only reduce the reported energy consumption of the equipment and is consistent with the basic model provisions, established
Thus, in this final rule DOE is adopting provisions that allow units equipped with night curtains and/or lighting occupancy sensors and controls to be tested. As described in the CCE final rule, DOE allows CRE manufacturers to group individual models into basic models for the purposes of testing and certification. 76 FR 12428–29 (March 7, 2011). A manufacturer may group individual models with and without night curtains into one basic model provided that the certified ratings of all individual models in the group are identical and representative of the least efficient individual model within the basic model (i.e., the most consumptive model without night curtains). Today's final rule also provides that if manufacturers wish to make representations regarding reduced energy consumption associated with any feature, such as night curtains, manufacturers must use multiple basic models to distinguish between those with and without night curtains and the certified ratings of energy consumption must be developed either through testing or calculations as permitted by this final rule.
Regarding Heatcraft's comment, manufacturers have some discretion regarding how to rate units with permanent split capacitor or evaporative condensed screw condenser fans. Manufacturers may group individual models, with different condenser fans or other features, into a single basic model to show compliance with DOE's energy conservation standards, provided all models identified in a certification report as being the same basic model must have the same certified efficiency rating, which is based on the least efficient model. 76 FR 12428–29 (March 7, 2011).
In comments received during the November 2010 NOPR public comment period, Traulsen stated that the proposal presented by DOE does not address tolerances, but that many components have tolerances of 10 to 15 percent, and that test laboratories recognize variations of 5 to 10 percent. Traulsen suggested a 20 percent tolerance on standards testing. (Traulsen, No. 9 at pp. 7–8) DOE's current test tolerances for commercial refrigeration equipment were established in the CCE final rule and are based on a specified sampling plan and statistical variances approximated with a Student's t-distribution. 76 FR 12430 (March 7, 2011). Amendment of these tolerances, sampling plans, or other items related specifically to CCE activities for commercial refrigeration equipment are not addressed in this test procedure final rule.
At the January 2011 NOPR public meeting, DOE received several comments regarding alternative refrigerants. AHRI stated that there is proposed legislation (unspecified) that would require the phase down of hydrofluorocarbons, which would require the use of alternative refrigerants in commercial refrigeration equipment, and suggested that DOE assess the performance of different refrigerants. (AHRI, No. 19 at p. 22) California Codes and Standards commented that DOE should address the burden of testing the same piece of equipment when different refrigerants are used. (California Codes and Standards, No. 19 at pp. 16–17)
True commented that if the refrigerant in a case changes, the evaporator coil, the expansion valve, and several other components would also have to change, which would effectively change the entire system. (True, No. 19 at pp. 19–20) Coca-Cola also commented that different refrigerants are not used in the same case. Coca-Cola further stated that different refrigerants work better at different temperatures, which is one reason the cabinets are treated separately. (Coca-Cola, No. 19 at pp. 20–21)
DOE agrees with Traulsen and Coca-Cola that if a different refrigerant were used in a case, it would require a new case design. Thus, cases with different refrigerants should be treated as different basic models and will require separate tests regardless. The DOE test procedure finalized here is capable of testing units using any primary refrigerant that enters and leaves the case as a single phase. However, each unit employing a different refrigerant would be treated as an individual basic model because of the different design considerations and performance characteristics. DOE acknowledges AHRI's comment suggesting that there may be proposed legislation which would influence the availability of hydroflourocarbon refrigerants; however this legislation is not in place and DOE does not wish to speculate on the specific requirements or impacts of any such legislation.
In the January 2009 final rule, DOE determined secondary coolant systems to be outside the scope of that rulemaking because secondary coolant systems constitute a small market share and there is no industry test procedure that covers all secondary coolant systems in the market. 74 FR 1105 (Jan. 9, 2009). Neither of these factors has changed significantly since the January 2009 final rule and, thus, DOE will continue to exclude secondary coolant systems from this test procedure and the concurrent energy conservation standards rulemaking (Docket No. EERE–2010–BT–STD–0003).
Nevertheless, several interested parties commented regarding secondary coolant systems at both the January 2011 NOPR public meeting and the April 2011 Preliminary Analysis public meeting. At the January 2011 NOPR public meeting, AHRI stated that secondary coolant systems are excluded from AHRI 1200, but that AHRI is in the process of developing a relevant standard that would be issued soon. (AHRI, No. 19 at p. 58) True commented that secondary coolant systems are very difficult to test and are not covered by ASHRAE Standard 72. True added that the ASHRAE Standard 72 committee is reviewing test methods for secondary coolant systems, but currently there is no definitive, repeatable test method. (True, No. 19 at pp. 17–18) True stated that the ASHRAE Standard 72 committee is also working to incorporate test methods for secondary coolant equipment, but so far has found the variability of results in the currently available test methods quite large. True added that a revised standard would probably not be ready for inclusion in the DOE test procedure. (True, No. 19 at pp. 58–59) Traulsen agreed that it does not believe that secondary coolant systems can be effectively tested and rated. (Traulsen, No. 9 at p. 6) California Codes and Standards agreed with DOE's proposed exclusion of secondary coolant systems from the test procedure because it believed that coverage of them by DOE at this time could result in a hastily developed regulation, which would also pre-empt States from regulating such systems themselves. In addition, California Codes and Standards stated that because there is no test method in place and thus no data, more data must be collected prior to developing any standard levels for this equipment. (California Codes and Standards, No. 13 at p. 4) NEEA agreed with DOE's plan to exclude secondary coolant equipment from this round of rulemaking, citing the fact that there is currently no industry test procedure for this equipment. Instead, NEEA encouraged DOE to plan to address this equipment in the next rulemaking, potentially by including a “reserved”
ACEEE expressed concern about the lack of coverage of secondary coolant systems, stating that hydrochlorfluorocarbon phase-downs and other factors are increasing the attention paid to these sorts of systems. Not regulating these systems, in the opinion of ACEEE, will prevent customers from being able to fairly compare them with existing systems. However, ACEEE conceded that it is not clear how to make accommodations in the test procedure to cover such equipment. At a minimum, ACEEE agreed with NEEA that placeholders for the systems should be inserted into the rule. (ACEEE, No. 12 at p. 3) True similarly expressed that secondary loop systems, often with carbon dioxide (CO
California Codes and Standards stated that the State of California is considering incorporating secondary loop CO
At the April 2011 Preliminary Analysis public meeting, interested parties also commented regarding the lack of an industry-accepted test procedure for secondary coolant systems. True stated that existing test methods for secondary coolant systems work only for systems for which there is not a phase change and test methods for transcritical or slurry systems have yet to be developed or verified. (Docket No. EERE–2010–BT–STD–0003, True, No. 31 at p. 162–63) Southern Store Fixtures stated that AHRI has recently developed a test procedure for secondary coolant systems, but that it is only applicable to fully liquid systems and does not accommodate two-phase flow. (Docket No. EERE–2010–BT–STD–0003, Southern Store Fixtures, No. 31 at p. 165) AHRI added that its work with secondary coolant applications is linked to ASHRAE's work, and that it too would have to wait for ASHRAE to produce a method of test (Docket No. EERE–2010–BT–STD–0003, AHRI, No. 31 at pp. 165–66) Traulsen agreed with DOE that secondary coolant technologies have not matured to the point where regulatory oversight would be required or beneficial. (Docket No. EERE–2010–BT–STD–0003, Traulsen, No. 31 at p. 5)
DOE previously excluded secondary coolant systems in the January 2009 final rule, in part, because there were no established test procedures to evaluate their energy consumption. As AHRI mentioned, secondary coolant systems are still excluded from AHRI 1200–2010. In December 2011, AHRI published AHRI Standard 1320 (I–P)–2011, “Performance Rating of Commercial Refrigerated Display Merchandisers and Storage Cabinets for Use with Secondary Refrigerants.” However, as interested parties noted, this new standard specifies a reference working fluid and is applicable only to the portion of secondary coolant systems that use secondary coolants with similar characteristics. Specifically, this standard will not be applicable to transcritical CO
DOE agrees with many of the interested parties that testing secondary coolant systems accurately will be difficult and an accepted and vetted method to do so does not yet exist. Given this uncertainty and the small market share of this equipment, DOE believes it best to continue to exclude secondary coolant systems from the DOE test procedure; however, DOE will continue to consult with ASHRAE and AHRI regarding the development of a future test procedure for secondary coolant systems. In the next DOE test procedure revision, DOE will reassess the status and accuracy of industry test procedures for secondary coolant systems and, if available, could include the test procedures in the DOE test procedure at that time. Since it is not clear when a reliable and vetted test procedure for transcritical secondary coolant systems will be available, DOE does not wish to reserve a section in this test procedure final rule.
The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.
The Regulatory Flexibility Act (5 U.S.C. 601
As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, so that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990 (Feb. 12, 2003). DOE has made its procedures and policies available on the Office of the General Counsel's Web site at
In the November 2010 NOPR, DOE reviewed the proposed rule to amend the test procedure for commercial refrigeration equipment, under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certified that the proposed rule, if adopted, would not result in a significant impact on a substantial number of small entities. DOE received comments on its certification and the economic impacts of the test procedure, and has responded to these comments in section III.B.4. After consideration of these comments, DOE certifies that the test procedure amendments set forth in this final rule will not have a significant impact on a substantial number of small entities. The factual basis for this certification is set forth below.
For the CRE manufacturing industry, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purpose of the statute. DOE used the SBA's size standards to determine whether any small entities would be required to
DOE conducted a focused inquiry into small business manufacturers of equipment covered by this rulemaking. During its market survey, DOE used all available public information to identify potential small manufacturers. DOE's research involved the review of industry trade association membership directories (including AHRI), equipment databases (
DOE then reviewed this data to determine whether the entities met the SBA's definition of a small business manufacturer of commercial refrigeration equipment and screened out companies that do not offer equipment covered by this rulemaking, do not meet the definition of a “small business,” or are foreign owned and operated. Based on this review, DOE has identified 26 companies that would be considered small manufacturers. DOE had originally identified 22 manufacturers of commercial refrigeration equipment. 75 FR 71596, 71606–07 (Nov. 24, 2010). DOE referred to the list supplied by Traulsen to revise its estimate of the number of small entities considered in this rule. (Traulsen, No. 9 at pp. 4–5)
Table IV.1 stratifies the small businesses according to their number of employees. The smallest company has 6 employees and the largest company has 400 employees. The majority of the small businesses affected by this rulemaking (85 percent) have fewer than 200 employees. Annual revenues associated with these small manufacturers were estimated at $569.3 million ($21.9 million average annual sales per small manufacturer). According to DOE's analysis, small entities comprise 43 percent of the entire commercial refrigeration equipment manufacturing industry.
All commercial refrigeration equipment for which standards were set in EPACT 2005 are currently required to be tested using the DOE test procedure to show compliance with the EPACT 2005 standard levels. Manufacturers of equipment for which standards were set in the January 2009 final rule will similarly be required to test units using the DOE test procedure to show compliance with the 2009 standards levels beginning January 1, 2012. The current DOE test procedure references AHRI Standard 1200–2006 and AHAM HRF–1–2004. This test procedure consists of one 24-hour test at standard rating conditions to determine daily energy consumption.
In the November 2010 NOPR, DOE estimated the cost of conducting the DOE test procedure as $5,000 per 24-hour test. 75 FR 71607 (Nov. 24, 2010). DOE received comments from interested parties presenting cost estimates of $15,000 per test. (Southern Store Fixtures, No. 19 at p. 237; Hussmann, No. 19 at p. 238; Traulsen, No. 9 at p. 8; NEEA, No. 8 at p. 7) DOE revised its analysis using a cost of $15,000 per 24-hour test, as suggested by interested parties. DOE notes that $15,000 represents the cost of conducting the current DOE test procedure, not the incremental cost associated with the amendments in this final rule.
In this final rule, DOE is adopting amendments that align the DOE test procedure with the most recent industry test procedures currently in use (AHRI Standard 1200–2010 and AHAM HRF–1–2008); incorporate provisions for testing certain energy efficiency features, including night curtains and lighting occupancy sensor and
For cases with night curtains installed, manufacturers can now take advantage of the reduced energy consumption associated with night curtains in the DOE test procedure. The night curtain provisions in the test procedure require the night curtain to be pulled down for 6 hours during the test. DOE believes the incremental burden of pulling down the night curtain at a certain time and retracting it 6 hours later requires less than half a minute each and is not significant relative to the burden of conducting the test. Although there is a small labor requirement associated with pulling down night curtains, DOE believes this is not an incremental burden because conducting the test already requires personnel to be present to check temperature probes and monitor the status of the test. Thus, DOE has determined that the testing costs for CRE models with added night curtains are approximately the same as those for models without night curtains and therefore concludes there are no significant incremental costs associated with testing models with night curtains.
The amendments in this final rule allowing calculations to quantify the energy savings associated with lighting occupancy sensors and controls will not lead to significant additional testing burden. DOE estimates the minimal costs associated with conducting the necessary calculations as $26.67 per test. DOE bases its estimate on the assumption that it would take an engineer 30 minutes to perform the calculation. The average hourly salary for an engineer completing this task is estimated at $38.74.
For equipment that cannot be tested at the prescribed integrated average product temperature, manufacturers currently are required to test the unit using AHRI Standard 1200 at the integrated average temperature associated with their respective equipment class. Under the revisions adopted in this final rule, these manufacturers will be allowed to test units that cannot meet the prescribed rating temperature at the lowest application product temperature, with the only difference being the integrated average product temperature. Since the same test is performed in both cases, DOE believes that this amendment to the test procedure will not increase the burden of test for those manufacturers. In addition, the provision for testing units that cannot operate at the specified integrated average product temperature will affect only a small percentage of units. DOE believes there would not be an incremental increase in testing burden, for small or large manufacturers, due to this provision.
DOE also notes that, if a unit is tested and shows compliance with the relevant energy conservation standard without night curtains or lighting occupancy sensors and scheduled controls installed, that unit can also be sold with these efficiency features installed without additional testing. DOE believes this provision will reduce burden on manufacturers.
Because there is not a significant incremental burden associated with any of the individual amendments adopted in this final rule, DOE concludes that there is not a significant incremental burden associated with the test procedure amendments in this final rule. In fact, the burden of conducting the amended test procedure is almost identical to the burden of conducting the existing DOE test procedure. Since there is no incremental burden associated with the amended test procedure, DOE has determined that this test procedure final rule does not impose negative economic impacts on manufacturers, including small entities. Thus, DOE continues to certify that this rule will not have a “significant economic impact on a substantial number of small entities,” and the preparation of a regulatory flexibility analysis is not warranted. DOE has transmitted the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of commercial refrigeration equipment must certify to DOE that their equipment complies with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the DOE test procedure for commercial refrigeration equipment, including any amendments adopted for the test procedure. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including commercial refrigeration equipment. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB Control Number 1910–1400. Public reporting burden for the certification is estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this final rule, DOE amends its test procedure for commercial refrigeration equipment. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that is the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a),(b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Today's final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
Today's regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as
Under section 301 of the Department of Energy Organization Act (Pub. L. 95–91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the NOPR must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the FTC concerning the impact of the commercial or industry standards on competition.
The proposed rule incorporates testing methods contained in the following commercial standards: (1) AHAM HRF–1–2008, which supersedes ANSI/AHAM HRF–1–2004, “Energy and Internal Volume of Refrigerating Appliances,” including errata issued November 17, 2009, section 3.30, “Volume,” and sections 4.1 through 4.3, “Method for Computing Refrigerated Volume of Refrigerators, Refrigerator-Freezers, Wine Chillers and Freezers,” in 10 CFR 431.64(b)(3) and 431.66(a)(1); and (2) AHRI Standard 1200–2010, which supersedes ARI Standard 1200–2006, “Performance Rating of Commercial Refrigerated Display Merchandisers and Storage Cabinets,” section 3, “Definitions,” section 4, “Test Requirements,” and section 7, “Symbols and Subscripts,” in 10 CFR 431.64(b)(1), (b)(2), (b)(4)(i), and (b)(4)(ii), and 431.66(a)(3), (d)(2) and (3). As stated in the November 2010 NOPR, DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 323(b) of the Federal Energy Administration Act (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference.
For the reasons stated in the preamble, DOE amends part 431 of Chapter II of Title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291–6317.
(b) * * *
(2) AHAM HRF–1–2008 (“HRF–1–2008”), Association of Home Appliance Manufacturers,
(c) AHRI. Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, (703) 524–8800,
(1) ARI Standard 1200–2006,
(2) AHRI Standard 1200 (I–P)–2010 (“AHRI Standard 1200 (I–P)–2010”),
(b)
(1) For display cases manufactured after January 1, 2016 and sold with night curtains installed, the night curtain shall be employed for 6 hours; 3 hours after the start of the first defrost period. Upon the completion of the 6-hour period, the night curtain shall be raised until the completion of the 24-hour test period.
(2) For commercial refrigerators, freezers, and refrigerator-freezers manufactured after January 1, 2016 and sold with lighting occupancy sensors, scheduled lighting controls, or lighting occupancy sensors and scheduled lighting controls installed on the unit, the effect on daily energy consumption will be determined by either a physical test or a calculation method and using the variables that are defined as:
(i) For both a physical test and a calculation method, determine the estimated time off or dimmed, t
The sum of t
(ii) If using a physical test to determine the daily energy consumption of a commercial refrigerator, freezer, or refrigerator-freezer sold with lighting occupancy sensors, scheduled lighting controls, or lighting occupancy sensors and scheduled lighting controls installed on the unit, turn off the lights for a time period equivalent to t
(iii) If using a calculation method to determine the daily energy consumption of a commercial refrigerator, freezer, or refrigerator-freezer sold with lighting occupancy sensors, scheduled lighting controls, or lighting occupancy sensors and scheduled lighting controls installed on the unit—
(A) Calculate the LEC
(B) Calculate the CEC
Where EER represents the energy efficiency ratio from Table 1 in AHRI Standard 1200 (I–P)-2010 (incorporated by reference, see § 431.63) for remote condensing equipment or the values shown in the following table for self-contained equipment:
(C) For remote condensing commercial refrigerators, freezers, and refrigerator-freezers with lighting occupancy sensors, scheduled lighting controls, or lighting occupancy sensors and scheduled lighting controls installed, the revised compressor energy consumption (CEC
(D) For self-contained commercial refrigerators, freezers, and refrigerator-freezers with lighting occupancy sensors, scheduled lighting controls, or lighting occupancy sensors and scheduled lighting controls installed, the TDEC for the entire case shall be the sum of total daily energy consumption as measured by the AHRI Standard 1200 (I–P)-2010 (incorporated by reference, see § 431.63) test with the lights fully on (TDEC
(3) Conduct the testing required in paragraphs (b) introductory text, (b)(1), and (2) of this section, and determine the daily energy consumption, at the applicable integrated average temperature in the following table. The integrated average temperature is determined using the required test method.
(A) If a piece of commercial refrigeration equipment is not able to be tested at the specified integrated average temperatures of 38 °F (±2 °F), 0 °F (±2 °F), or −15 °F (±2 °F) for refrigerators, freezers, and ice-cream freezers, respectively, the unit may be tested at the lowest application product temperature, as defined in § 431.62. For many pieces of equipment, this will be the lowest thermostat setting. For remote condensing equipment without a thermostat or other means of controlling temperature at the case, the lowest application product temperature shall be that achieved with the adjusted dew point temperature (as defined in AHRI 1200 (I–P)–2010) set to 5 degrees colder than that required to maintain the manufacturer's lowest specified application temperature.
(B) For commercial refrigeration equipment that is also tested in accordance with NSF test procedures
(4) For equipment manufactured prior to January 1, 2016, determine the volume of each covered commercial refrigerator, freezer, or refrigerator-freezer using the methodology set forth in the ANSI/AHAM HRF–1–2004, “Energy, Performance and Capacity of Household Refrigerators, Refrigerator-Freezers and Freezers” (incorporated by reference, see § 431.63), section 3.21, “Volume,” sections 4.1 through 4.3, “Method for Computing Total Refrigerated Volume and Total Shelf Area of Household Refrigerators and Household Wine Chillers,” and sections 5.1 through 5.3, “Method for Computing Total Refrigerated Volume and Total Shelf Area of Household Freezers.” For equipment manufactured on or after January 1, 2016, determine the volume of any covered commercial refrigerator, freezer, refrigerator-freezer, or ice-cream freezer using the method set forth in the HRF–1–2008 (incorporated by reference, see § 431.63), section 3.30, “Volume,” and sections 4.1 through 4.3, “Method for Computing Refrigerated Volume of Refrigerators, Refrigerator-Freezers, Wine Chillers and Freezers.”
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing revisions to the Transport Rule that was published on August 8, 2011 (76 FR 48208). These revisions address discrepancies in unit-specific modeling assumptions that affect the proper calculation of Transport Rule state budgets and assurance levels in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas, and Wisconsin, as well as new unit set-asides in Arkansas and Texas. EPA is also finalizing allowance allocation revisions to specific units covered by certain consent decrees that restrict the use of those allowances. The resulting budgets maintain substantial emission reductions from historic levels and are consistent with the final Transport Rule's methodology for defining significant contribution and interference with maintenance.
EPA is also finalizing the proposal to amend the assurance penalty provisions of the rule to make them effective beginning January 1, 2014. EPA believes that deferring the effective date of the assurance provisions will provide additional program confidence and will not compromise the air quality goals of the program.
In addition, we are finalizing corrections of typographical errors in the rule.
This final rule is effective on April 23, 2012.
EPA has established a docket for this action under Docket ID No. OAR–EPA–HQ–OAR–2009–0491. All documents in the docket are listed on the
For general questions concerning this action, contact Gabrielle Stevens, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, telephone (202) 343–9252, email at
The following are abbreviations of terms used in this final rule:
This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability criteria in §§ 97.404, 97.504, and 97.604 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
In addition to being available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this action will be posted on the transport rule Web site
In a previous proposal published on October 14, 2011 (76 FR 63860), EPA identified potential errors in unit-specific modeling assumptions that affect the proper calculation of Transport Rule state budgets and assurance levels in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas, and Wisconsin, as well as potential errors affecting the proper calculation of new unit set-asides in Arkansas and Texas. EPA is now taking final action to: (1) Revise Michigan's annual NO
The proposed revisions to state budgets also entailed proposed revisions to the affected states' assurance levels, as the variability limit component of the assurance level for each state is calculated as a percentage of the applicable budget. Therefore, for each revision EPA is finalizing to a state budget, EPA is also finalizing corresponding revisions to the calculation of that state's variability limit and assurance level pertinent to that state budget. Assurance levels are only applicable to 2014 and beyond, given the 2014 effective date of the assurance provisions as described below and in section IV.C of this preamble.
The revised budgets maintain substantial emission reductions from historic levels and are consistent with the final Transport Rule's methodology for defining significant contribution and interference with maintenance.
In the proposed revisions rule, EPA solicited further information from the public that may support similar revisions to Transport Rule state budgets or new unit set-asides (76 FR 63868). EPA believed that the scope of such information supporting potential revisions was limited, considering that EPA had already conducted several notice-and-comment processes through initial proposal of the Transport Rule and multiple notices of data availability (NODAs) to prompt the public to provide the relevant input information that informs the calculation of the Transport Rule state budgets. By providing, in this rulemaking, an additional opportunity for comment on aspects of Transport Rule state budgets, EPA also addressed some of the issues and concerns raised in many of the petitions for administrative reconsideration of the final Transport Rule.
Based on relevant comments received that merited revisions, EPA is making additional revisions in a separate direct final rule with parallel proposal rulemaking.
EPA also proposed revisions to allowance allocations at certain units in six states that are affected by existing utility consent decrees. When establishing the state budgets under the final Transport Rule, EPA accounted for the emission reduction requirements of these consent decrees; therefore, the Transport Rule state budgets sustain the environmental protection secured by those existing utility consent decrees. However, when dividing those state budgets into individual unit-level allowance allocations, EPA included allowance allocations to certain units that exceed those units' allowable emissions under the terms of the applicable consent decree. Because EPA already secured the environmental improvements required by the consent decrees by incorporating their emission reductions into the Transport Rule state budgets, there is no environmental need to prevent the allowances from being used for compliance by sources subject to the Transport Rule, aside from those sources whose emissions are restricted by the terms of the consent decrees to which they are subject. Therefore, EPA proposed to revise Transport Rule unit-level allowance allocations to the specific units affected by these consent decrees to reflect their maximum allowable emissions, such that none of the allowances affected by the consent decrees are unnecessarily removed from
EPA is finalizing its proposal to revise the assurance penalty provisions of the Transport Rule to make them effective January 1, 2014. The revision of the effective date of the assurance provisions will promote the development of allowance market liquidity, thereby smoothing the transition from the Clean Air Interstate Rule (CAIR) programs, which were temporarily re-instated as of the Court's action on December 30, 2011 to stay the Transport Rule, at such time as the Court lifts the stay of the Transport Rule and provides clarity on implementation dates for the Transport Rule programs. See section IV.C of this preamble for a further discussion of the assurance provisions effective date.
EPA is also finalizing corrections to typographical errors in certain sections of rule text in parts 52 and 97 of the final Transport Rule. See section IV.D of this preamble for further explanation of these corrections.
On December 30, 2011, the Court of Appeals for the DC Circuit in
EPA is finalizing the following revisions:
(1) Increase Michigan's 2012 and 2014 annual NO
EPA is finalizing revisions to Michigan's 2012 and 2014 annual NO
EPA adjusted Michigan's 2012 and 2014 ozone-season NO
(2) Increase Nebraska's 2012 and 2014 annual NO
EPA is finalizing Nebraska's 2012 and 2014 annual NO
(3) Increase the Texas 2012 and 2014 SO
EPA is finalizing revisions to the modeling assumptions affecting the calculation of the Texas SO
EPA is also finalizing an increase to the Texas SO
In the proposed revisions rule, EPA quantified this revision using these scrubbers' SO
In accordance with the revised unit-level input assumptions regarding existing scrubbers and adjustments to the flue gas treatment calculations at the Texas units described above, EPA is increasing the state's 2012 and 2014 SO
See “Final Revisions Rule State Budgets and New Unit Set-Asides TSD” in the docket for this rulemaking for a quantitative demonstration of these revisions.
(4) Increase Arkansas' ozone-season NO
EPA is finalizing an increase of 3 percent to the portion of Arkansas' ozone-season budget dedicated to the new unit set-aside account. This change yields a total new unit set-aside of 5 percent as the portion of Arkansas' ozone-season budget dedicated to the new unit set-aside account (as opposed to the 2 percent previously established under the final Transport Rule). The revision is consistent with the new unit set-aside methodology described in the final rule. As explained in the proposal, the updated value simply reflects the revised classification of Plum Point Unit 1, which commenced commercial operation on or after January 1, 2010, as a new unit for purposes of unit-level allowance allocations under the final Transport Rule's unit-level allocation methodology (76 FR 48290). Commenters did not identify any errors that would invalidate EPA's approach to addressing Plum Point Unit 1. See the “Final Revisions Rule State Budgets and New Unit Set-Asides TSD” in the docket for this rulemaking for a quantitative demonstration of these revisions.
These revisions to the Arkansas new unit set-aside result in changes to allowance allocations to existing units, but they do not change the state's overall budget. See “Final Revisions Rule Unit-Level Allocations under the FIPs” in the docket to this rulemaking.
(5) Increase Texas' ozone-season NO
EPA is finalizing a revision to the calculation of the new unit set-asides for ozone-season NO
These revisions to the Texas new unit set-asides result in changes to allowance allocations to existing units, but they do not change the state's overall budget. See “Final Revisions Rule Unit-Level Allocations under the FIPs” in the docket to this rulemaking.
(6) Increase New Jersey's 2012 SO
EPA is finalizing New Jersey's ozone-season NO
EPA re-calculated projected emissions from BL England Unit 1 and the six plants with near-term out-of-merit-order generation to account for the input assumption changes finalized in this action. These calculations yield increases to the New Jersey 2012 state budgets for SO
(7) Increase Wisconsin's 2014 SO
EPA is finalizing the proposed increase to Wisconsin's SO
EPA is also finalizing the proposed increase to Wisconsin's annual NO
See “Final Revisions Rule State Budgets and New Unit Set-Asides TSD” in the docket for this rulemaking for a quantitative demonstration of these revisions, as well as for the impacts this
EPA adjusted Wisconsin's 2012 and 2014 ozone-season NO
(8) Increase New York's 2012 and 2014 ozone-season NO
EPA is finalizing increases to the New York state ozone-season NO
EPA re-calculated projected emissions from the units identified in the proposal at Arthur Kill Generating Station, Ravenswood, Astoria Generating Station, and Northport facilities with near-term out-of-merit-order generation to account for the input assumption changes finalized in this action. These calculations yield increases to the New York 2012 and 2014 state budgets for SO
(9) Increase Louisiana's 2012 and 2014 ozone-season NO
EPA is finalizing revisions to Louisiana's 2012 and 2014 state ozone season NO
EPA is increasing Louisiana's 2012 and 2014 state budgets for ozone-season NO
(10) Increase Mississippi's 2012 and 2014 ozone-season NO
EPA is finalizing revisions to Mississippi's 2012 and 2014 state ozone season NO
EPA re-calculated the emissions from the three plants with non-economic generation to account for the input assumption changes. These calculations yield increases to Mississippi's 2012 and 2014 state budgets for ozone-season NO
(11) Increase the Texas 2012 and 2014 annual and ozone-season NO
EPA is finalizing revisions to Texas's 2012 and 2014 state annual and ozone season NO
These revisions yield increases to Texas's 2012 and 2014 state budgets for annual NO
(12) Increase Florida's 2012 ozone-season NO
EPA is finalizing the increase of 819 tons to Florida's 2012 ozone-season NO
Commenters did not provide any evidence that Crystal River Unit 3 would fail to return to service upon the conclusion of the current extended outage, and the unit is in fact expected to return to service in 2014.
See “Final Revisions Rule State Budgets and New Unit Set-Asides TSD” in the docket for this rulemaking for a quantitative demonstration of these revisions.
The state budgets in the August 8, 2011 final Transport Rule (76 FR 48290) accurately incorporated the emission reduction requirements of existing utility consent decrees. However, after the final rule was published, EPA determined that provisions under certain existing utility consent decrees could restrict the use of Transport Rule allowances allocated to units subject to those consent decrees, such that a certain portion of those allocated allowances could be rendered unavailable for compliance use by any source under the Transport Rule programs. EPA determined that the sum of the SO
To address this issue, on October 14, 2011, EPA proposed to add a constraint on Transport Rule unit-level allowance allocations for the facilities and systems in question (76 FR 63860). This action finalizes the proposed constraint, which affects a total of 82 units in six states: Alabama, Indiana, Kansas, Kentucky, Ohio, and Tennessee. The constraint reduces the number of SO
The unit-level allowance adjustments for each affected facility (or system) were made using the methodology described in the October 14, 2011 proposed rule. First, EPA calculated the ratio of the facility-wide (or system-wide) ATL to the total number of allowances allocated to the units at the facility (or in the system). Then, for each unit, an annual tonnage limit equivalent (“unit-level cap”) was determined by multiplying this ratio by the number of allowances originally allocated to the unit.
As previously noted, EPA took the requirements of existing utility consent decrees into account when the state budgets were established. Therefore, this final action, as it regards the consent decrees, does not alter the budget of any of the six affected states. Further, this action with respect to the consent decrees has no impact on the existing unit-level allocations in states where there are no units covered by consent decrees with ATLs. The excess allowances removed from the 82 affected units have been reallocated to other covered sources in each relevant state using the allowance allocation methodology described in the October 14, 2011 proposed rule.
EPA received several comments on the proposed constraint and the unit-level cap apportionment methodology. Some commenters supported the proposal. Other commenters expressed concern that EPA was inappropriately using its rulemaking authority to modify, undo, or compromise provisions in the negotiated consent decree agreements. The Agency does not agree that the allowance allocation revisions being finalized in this rule modify the terms of any consent decree. The unit-level allowance allocation caps applied in this rulemaking do not alter any obligation, timeline, or other requirement of the utility consent decrees. None of the restrictions in the utility consent decrees are premised on trading programs that employ any particular allocation methodology or distribution of unit-level allocations. Moreover, the utility consent decrees do not, and cannot, preclude any particular allocation methodology or distribution from being implemented in future trading programs. Finally, unit-level allowance allocations under existing trading programs, including the Transport Rule programs, do not establish unit-level emission constraints, because sources may obtain additional allowances from the marketplace to cover emissions that are above the unit-level allocations.
Several commenters asked EPA to either clarify the specific consent decrees or exempt Transport Rule allowances from those restrictions and requirements. However, legal interpretations of utility consent decree provisions are outside the scope of this rulemaking. Moreover, it would be inappropriate for EPA to attempt to alter the terms of the consent decrees to exempt the Transport Rule allowances from the trading restrictions and allowance surrender provisions via a rulemaking.
Tennessee Valley Authority (TVA) commented that the TVA consent
In the proposed revisions rule, EPA adjusted unit-level allocations to units affected by the TVA consent decree in years for which the final Transport Rule's allowance allocations to those units collectively exceeded that consent decree's ATL that is effective in that year. For the affected TVA units, the final Transport Rule's allowance allocations exceeded the consent decree ATL in 2013, 2018, and thereafter. TVA submitted comments arguing that the effective ATL under that consent decree is subject to change based on the potential retirement of affected units, which would also reduce aggregate unit-level allowance allocations to TVA under the Transport Rule. TVA's comments noted that the future balance of these two factors, which change over time, is uncertain.
EPA recognizes that the relationship between unit-level allowance allocations under the FIPs and the applicable ATL becomes relatively less certain when considered over longer time horizons. In order to reduce the potential impact utility consent decree ATLs may have on the availability of Transport Rule allowances for compliance, EPA must account for the variability in utility consent decree ATLs in future years. Where information was available, EPA included generating unit retirements in its analysis of utility consent decree ATLs (see “Assessment of Impact of Consent Decree Annual Tonnage Limits on Transport Rule Allocations” in the Docket (EPA–HQ–OAR–2009–0491) for the proposed revisions (76 FR 63860)). However, EPA agrees that the uncertainty becomes more pronounced in more distant years. Therefore, in this rulemaking EPA is not quantifying any additional adjustments to unit-level caps attributable to consent decree ATLs that become effective after 2017. In 2018 and thereafter, EPA will continue to apply the ATLs effective in 2017 for the purpose of unit-level allocations. EPA notes that this timeline will provide states with ample opportunity, if they wish, to submit SIPs and establish alternate allocation methodologies where updated information on consent decree requirements may affect Transport Rule allowance use.
EPA is finalizing its proposal to make the assurance provisions effective starting in 2014. EPA maintains that, for 2012–2013, the Transport Rule (as revised by this final rule) ensures the elimination of each state's significant contribution to nonattainment and interference with maintenance.
EPA's decision in this final revised rule to delay the effectiveness of the assurance provisions is based on new information, i.e., information that recently became available on states' total EGU emissions in the last four quarters (one in 2010 and three in 2011) and concerns raised recently by commenters about the immediate-term viability of Transport Rule allowance markets during the transition from CAIR. The most current available emissions data—i.e., total emissions for the last quarter of 2010 and the first three quarters of 2011—for EGUs in the states subject to the Transport Rule trading programs show that, in the vast majority of states, EGUs are already emitting at an annual level below the level of the applicable 2012 state assurance level. Specifically, in 16 out of the 23 states subject to the Transport Rule SO
In addition, EGU owners and operators will know in 2012 and 2013 that the assurance provisions will be taking effect in 2014 when many state budgets under the Transport Rule trading programs will be reduced. Owners and operators will therefore need to implement compliance strategies to meet both the requirement to hold allowances covering emissions and to avoid assurance provision penalties in the context of, in many cases, reduced state budgets. Consequently, EGU emissions are likely to decline even further during 2012–2013 as owners and operators make immediate investments in further emission reductions to prepare for 2014 and beyond. As one commenter observed, “Moreover, the desire of electric generating units (EGUs) to avoid the increased penalties once they are implemented in 2014 should encourage compliance with the Transport Rule even prior to assurance penalties being imposed. It is likely not in a polluter's interest to fail to implement emission reduction measures now, as it would be forced to decrease emissions with potentially unfeasible rapidity once the assurance penalty provisions are enacted, or else face extra exorbitant penalties” (Docket ID EPA–HQ–OAR–2009–0491–4775).
EPA also conducted additional modeling of projected EGU emissions in 2012 and 2013 under the Transport Rule without applying the assurance provisions to those years.
Based on the current level of EGU emissions and EPA's short-term modeling results, EPA maintains that EGU emissions in 2012 and 2013 in each of the states subject to the Transport Rule—without the assurance provisions being applicable in those years—have virtually no chance of exceeding the applicable state assurance level. Consequently, imposition of the assurance provisions during 2012–2013 is unnecessary and could actually be detrimental to smooth program implementation, as explained below.
EPA believes that a limited postponement of the effectiveness of the assurance provisions is justified in order to achieve a seamless transition from the existing CAIR programs to the new Transport Rule programs. Under both CAIR and the Transport Rule, individual units have the flexibility to supplement their own emission reduction efforts with acquisitions from the market of any additional allowances needed to cover emissions under the applicable programs. Active, transparent markets providing broad access to CAIR NO
Some EGU owners and operators, states, and other organizations have expressed concern about the future availability of Transport Rule allowances in the market. For example, EPA received the following comment and several others like it: “The [Group] strongly supports EPA's proposal to delay implementation of the assurance penalty provisions until January 1, 2014. The Group has significant concerns regarding the viability of the allowance markets anticipated by CSAPR. Delay of the assurance penalty provisions may increase the likelihood that allowance markets will develop in the first CSAPR compliance period. Accordingly, the Group urges EPA to finalize its proposed amendments to the assurance penalty provisions * * * Delaying implementation of the assurance penalty provisions until 2014 would reduce the risks associated with entering the market and encourage sources to engage in allowance trading” (Docket ID EPA–HQ–OAR–2009–0491–4821).
Not only do the allowance markets under the Transport Rule involve the purchase and sale of new types of allowances for use in new trading programs, but also only the Transport Rule trading programs include assurance provisions, which were not included in any previous allowance trading programs. Many of the comments EPA received indicated that the introduction of this new and unfamiliar element in the Transport Rule trading programs has heightened concerns about the ability of owners and operators to use the new allowance markets to comply with the requirement to hold allowances covering emissions. Early trading activity is important for demonstrating market liquidity and assisting in price discovery to facilitate compliance planning by owners and operators of covered sources. If, out of immediate-term unfamiliarity with how the assurance provisions would be applied, owners and operators were to limit their own early trading activity, the assurance provisions would have negative impacts not only on those owners and operators, but also on all participants in the Transport Rule trading programs.
EPA is delaying the effective date of the assurance provisions until 2014 in order to neutralize a key uncertainty facing successful and potentially rapid program implementation following the current stay, such that sources can rely on immediate activation of a Transport Rule allowance market that offers the cost-effective emission reduction flexibilities on which the rule relies to eliminate significant contribution and interference with maintenance.
In summary, EPA concludes that, not only are the assurance provisions not necessary in 2012–2013 to ensure elimination of significant contribution and interference with maintenance, but also that the imposition of the assurance provisions in 2012–2013 would risk inhibiting the development and availability of the allowance market and thus raise the costs of compliance with Transport Rule emission reduction requirements. Delaying imposition of the assurance provisions until 2014 will ease the transition for covered sources from compliance with CAIR requirements to compliance with Transport Rule requirements by addressing concerns about the readiness of new Transport Rule allowance markets, facilitating progress of these markets, and instilling confidence that owners and operators can comply through a variety of cost-effective strategies that are not limited by initial Transport Rule unit-level allowance allocations. EPA maintains that this will result, in the aggregate in each state, in cost-effective emission reductions and total state emissions that are consistent with EPA's quantification of each state's obligation to eliminate significant contribution and interference with maintenance in downwind areas.
EPA's adoption, in the final revision rule, of a brief delay until 2014 in the imposition of the assurance provisions constitutes a change in the Agency's approach from the approach adopted in the final Transport Rule. In the final Transport Rule, EPA decided to make the assurance provisions effective starting in 2012 “because this approach provides even further assurance, consistent with
The trading programs created by the final Transport Rule, as modified by the final revision rule, are distinguishable from the CAIR trading programs that the Court reversed in
Moreover, unlike the circumstances in CAIR, EPA determined in this rulemaking that information on the current level of EGU emissions and ongoing emission control installations, supported by the results of EPA's short-term modeling, demonstrates that without the assurance provisions being applicable in 2012–2013, EGU emissions in 2012 and 2013 in each state will not exceed the applicable state assurance level. For 2014 and thereafter when controls and emissions are likely to be different from current controls and emissions and modeling projections are correspondingly less certain, the Transport Rule imposes assurance provision requirements that penalize sources whose emissions result in the state having total EGU emissions in excess of the state assurance level, and thereby ensures that sources operate in a manner that results in the elimination of each state's significant contribution and interference with maintenance.
In contrast with the Transport Rule, state-level EGU emissions were not, when CAIR was issued, already at (or well on the way to meeting) the required reduction levels. EPA did not impose penalties on sources whose emissions resulted in a state's failing to eliminate its significant contribution and interference with maintenance, and EPA relied entirely on its modeling, as opposed to data demonstrating states' emission reductions occurring in the period immediately prior to the relevant compliance years, to show that significant contribution and interference with maintenance would be eliminated.
In addition, in CAIR, the EPA modeling was for the intermediate term (i.e., projected in 2005 emissions for 2009 and 2010), not for the short term when critical elements (such as the locations of existing EGUs with existing emission controls or with control retrofits to be completed by 2012 and of soon-to-be-completed, new EGUs with controls and the reduction capabilities of all these controls) are known. Thus, the Transport Rule accomplishes on a state-by-state basis what CAIR accomplished on a regional basis, i.e., assurance that significant contribution and interference with maintenance will be eliminated, and the requirement—which was not met by CAIR—that EPA provide such assurance is met by the Transport Rule.
North Carolina's argument that EPA is somehow barred from delaying the effectiveness of the assurance provisions in the Transport Rule FIPs because this delay “will, at least in some locations, lead to” increased emissions in some nonattainment or maintenance areas is inconsistent with the facts regarding emission controls installed on EGUs over the near term. As discussed above, without the assurance provisions in 2012–2013, total EGU emissions in each state will still be below the state assurance level and therefore each state will meet the requirements of CAA section 110(a)(2)(D)(i)(I) by eliminating the significant contribution and interference with maintenance identified in the final Transport Rule. North Carolina failed to show otherwise.
On the contrary, North Carolina asserted that, during 2012–2013, the lack of assurance provisions will result in more emissions in “some locations” than if the assurance provisions were in effect and that these emissions will increase ambient pollutant levels in areas with nonattainment or maintenance problems. However, North Carolina failed to identify any such “locations” and any such nonattainment/maintenance problem areas, or to provide any modeling or other evidence showing that these emission increases and ambient effects would occur.
For the reasons explained above, EPA is revising the Transport Rule such that its assurance provisions are effective beginning in 2014.
EPA is finalizing as proposed to correct typographical errors in certain sections of rule text in parts 52 and 97 in the final Transport Rule. EPA received no comments on correcting typographical errors.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
This action does not impose any new information collection burden. This action makes relatively minor revisions to the emission budgets and allowance allocations or allowance allocations only in certain states in the final Transport Rule and corrects minor technical errors which are ministerial. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the final Transport Rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this action on small entities,
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This action is increasing the budgets and increasing the total number of allowances or maintaining the same budget but revising unit-level allocations in several other states in the Transport Rule. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
In developing the final Transport Rule, EPA consulted with small governments pursuant to a plan established under section 203 of UMRA to address impacts of regulatory requirements in the rule that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action makes relatively minor revisions to the emissions budgets and allowance allocations or allowance allocations only in certain states in the final Transport Rule. Thus, Executive Order 13132 does not apply to this rule. EPA did provide information to state and local officials during development of both the proposed and final Transport Rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action makes relatively minor revisions to the emissions budgets and allowance allocations in several states in the final Transport Rule and helps ease the transition from CAIR. Indian country new unit set-asides will increase slightly or remain unchanged in the states affected by this action. Thus, Executive Order 13175 does not apply to this action. EPA consulted with tribal officials during the process of promulgating the final Transport Rule to permit them to have meaningful and timely input into its development.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Analyses by EPA that show how the emission reductions from the strategies in the final Transport Rule will further improve air quality and children's health can be found in the final Transport Rule RIA.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA believes that there is no meaningful impact to the energy supply beyond that which is reported for the Transport Rule program in the final Transport Rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
As described in section XII.I of the preamble to the final Transport Rule, the Transport Rule program requires all sources to meet the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
In the Final Revisions Rule Significant Contribution Assessment Technical Support Document in the docket to this rulemaking, EPA assessed impacts of the emission changes in this rule on air quality throughout the Transport Rule region. For SO
Based on the significant contribution assessment in the technical support document for this action, EPA has determined that this action will not have disproportionately high and
The Congressional Review Act, 5 U.S.C. 801
Petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by April 23, 2012. Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
In the final Transport Rule, EPA determined that “[a]ny final action related to the Transport Rule is ‘nationally applicable' within the meaning of section 307(b)(1).” 76 FR 48,352. Through this rule, EPA is revising specific aspects of the final Transport Rule. This rule therefore is a final action related to the Transport Rule and as such is covered by the determination of national applicability made in the final Transport Rule. Thus, pursuant to section 307(b) any petitions for review of this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the
Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide.
Administrative practice and procedure, Air pollution control, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide.
For the reasons set forth in the preamble, parts 52 and 97 of chapter I of title 40 of the Code of Federal Regulations are amended as follows:
42 U.S.C. 7401,
42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651,
(c) * * *
(3) * * *
(ii) A TR NO
(a) The State NO
(1)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(2)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(3)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(4)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(5)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(6)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(7)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(8)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(9)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(10)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(11)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(12)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(13)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(14)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(15)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(16)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(17)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(18)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(19)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(20)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(21)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(22)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(23)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(b) The States' variability limits for the State NO
(1) The NO
(2) The NO
(3) The NO
(4) The NO
(5) The NO
(6) The NO
(7) The NO
(8) The NO
(9) The NO
(10) The NO
(11) The NO
(12) The NO
(13) The NO
(14) The NO
(15) The NO
(16) The NO
(17) The NO
(18) The NO
(19) The NO
(20) The NO
(21) The NO
(22) The NO
(23) The NO
(c) Each NO
(c) * * *
(3) * * *
(ii) A TR NO
(a) The State NO
(1)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(2)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(3)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(4)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(5)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(6)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(7)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(8)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(9)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(10)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(11)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(12)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(13)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(14)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(15)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(16)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(17)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(18)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(19)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(20)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(21)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(22)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(23)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(24)
(ii) The NO
(iii) [Reserved]
(iv) The NO
(v) The NO
(vi) [Reserved]
(25)
(ii) The NO
(iii) The NO
(iv) The NO
(v) The NO
(vi) The NO
(b) The States' variability limits for the State NO
(1) The NO
(2) The NO
(3) The NO
(4) The NO
(5) The NO
(6) The NO
(7) The NO
(8) The NO
(9) The NO
(10) The NO
(11) The NO
(12) The NO
(13) The NO
(14) The NO
(15) The NO
(16) The NO
(17) The NO
(18) The NO
(19) The NO
(20) The NO
(21) The NO
(22) The NO
(23) The NO
(24) The NO
(25) The NO
(c) Each NO
(c) * * *
(3) * * *
(ii) A TR SO
(a) The State SO
(1)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(2)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(3)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(4)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(5)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(6)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(7)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(8)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(9)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(10)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(11)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(12)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(13)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(14)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(15)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(16)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(b) The States' variability limits for the State SO
(1) The SO
(2) The SO
(3) The SO
(4) The SO
(5) The SO
(6) The SO
(7) The SO
(8) The SO
(9) The SO
(10) The SO
(11) The SO
(12) The SO
(13) The SO
(14) The SO
(15) The SO
(16) The SO
(c) Each SO
(c) * * *
(3) * * *
(ii) A TR SO
(a) The State SO
(1)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(2)
(ii) The SO
(iii) [Reserved]
(iv) The SO
(v) The SO
(vi) [Reserved]
(3)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(4)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(5)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(6)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(7)
(ii) The SO
(iii) The SO
(iv) The SO
(v) The SO
(vi) The SO
(b) The States' variability limits for the State SO
(1) The SO
(2) The SO
(3) The SO
(4) The SO
(5) The SO
(6) The SO
(7) The SO
(c) Each SO
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action on additional revisions to the final Transport Rule (Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals published August 8, 2011). In the proposed Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone, published October 14, 2011, EPA sought additional comment on unit-level operational information similar to the information supporting the proposed revisions, which specifically addressed post-combustion pollution control equipment and immediate-term operational requirements necessitating non-economic generation based on verifiable data. Based on comments received, EPA is finalizing adjustments that result in revisions to 2012 and 2014 state budgets in Arkansas, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, New York, Nebraska, Ohio, Oklahoma, South Carolina, and Texas, and revisions to new unit set-asides in Arkansas, Louisiana, and Missouri.
This rule is effective on May 21, 2012 without further notice, unless EPA receives significant adverse comments by March 22, 2012. If we receive such comments, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2009–0491, by one of the following methods:
•
•
•
Gabrielle Stevens, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, telephone (202) 343–9252, email at
EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, elsewhere in this issue of the
If EPA receives adverse comment, we will publish a timely withdrawal in the
This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability criteria in §§ 97.404, 97.504, and 97.604 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
EPA has determined that the following additional corrections are needed to the August 8, 2011 final Transport Rule, as a result of comments received on the proposed rule, Revisions to Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone (76 FR 63860, October 14, 2011) (Revisions Rule). In that proposed rule, EPA took comment on several similar corrections and demonstrated a consistent methodology for calculating those corrections. EPA received no comments opposing the proposal to make these corrections to state budgets and new unit set-asides, and EPA received very few comments addressing the manner in which the corrections were quantified, to which EPA responded in the final revisions rule. EPA has calculated the corrections in this rulemaking in a fully consistent manner with the approach developed through public comment on the proposed and finalized revisions rule. See the “Final Revisions Rule State Budgets and New Unit Set-Asides” Technical Support Document (TSD) in the docket for this rulemaking for a quantitative demonstration of these revisions. For quantitative assessments of the relationship between final revisions to the Transport Rule and the original analysis, also see “Final Revisions Rule Significant Contribution Assessment” TSD in the docket for this rulemaking. The “Final Revisions Rule Unit-Level Allocations under the FIPs,” also in the docket for this rulemaking, present unit-level allocations under the FIPs.
(1) Revise the Arkansas ozone season NO
EPA is increasing the Arkansas 2012 and 2014 ozone-season NO
EPA re-calculated the emissions from the McClellan plant with non-economic generation to account for the input assumption changes. These calculations yield increases to the Arkansas 2012 and 2014 state budgets for ozone-season NO
(2) Revise the Georgia SO
In the final Transport Rule, EPA explained its intent to capture “reductions that occur due to state rules, consent decrees, and other planned changes in generation patterns that occur after 2012, but during or prior to 2014” in the 2014 state budgets (76 FR 48261). Commenters on the revisions rule noted that EPA inadvertently included pollution control installation requirements from a Georgia state rule whose deadlines at certain units actually extend beyond 2014. To correct the alignment of the Georgia 2014 state budgets with the requirements for affected units in Georgia to install controls by the state rule's deadlines, EPA is increasing Georgia's 2014 state budgets by 40,334 tons of SO
(3) Revise the Indiana SO
EPA is revising the Indiana 2012 and 2014 annual SO
Commenters on the revisions rule also identified a facility in Indiana, Gibson Unit 5, which currently faces immediate-term limitations regarding the amount of flue gas that can be treated in its existing FGD. In the final Transport Rule analysis, EPA relied on the SO
(4) Revise the Kansas SO
Commenters on the revisions rule provided information showing that one unit at the Quindaro plant in Kansas is in an out-of-merit-order dispatch area with conditions likely to necessitate what would otherwise be non-economic generation. EPA re-calculated the emissions from this plant with non-economic generation to account for the input assumption changes. These calculations yield increases to the Kansas 2012 and 2014 state budgets for annual SO
In the final Transport Rule, EPA explained its intent to capture “reductions that occur due to state rules, consent decrees, and other planned changes in generation patterns that occur after 2012, but during or prior to 2014” in the 2014 state budgets (76 FR 48261). Commenters on the revisions rule noted that EPA inadvertently included an emission rate requirement from a consent decree affecting a Kansas facility whose deadline actually extends beyond 2014. To correct the alignment of the Kansas 2014 state budget with the requirements for affected units in Kansas to meet the emission rate limitation by the consent decree's deadlines, EPA is increasing the Kansas 2014 annual NO
(5) Revise the Louisiana ozone season NO
EPA is increasing the Louisiana 2012 and 2014 ozone-season NO
Comments on the revisions rule also noted that in calculating the Louisiana ozone-season NO
(6) Revise the Mississippi ozone season NO
EPA is increasing the Mississippi 2012 and 2014 ozone-season NO
EPA re-calculated the emissions from the Moselle plant with non-economic generation to account for the input assumption changes. These calculations yield increases to Mississippi's 2012 and 2014 state budgets for ozone-season NO
(7) Revise the Missouri annual and ozone season NO
EPA is increasing the Missouri 2012 and 2014 annual and ozone-season NO
EPA re-calculated the emissions from these six plants with non-economic generation to account for the input assumption changes. These calculations yield increases to Missouri's 2012 and 2014 state budgets for annual NO
Comments on the revisions rule identified Iatan Unit 2 as commencing commercial operation on or after January 1, 2010, qualifying it as a new unit under the final Transport Rule's unit-level allocation methodology (76 FR 48290); however, the final Transport Rule erroneously omitted this unit's projected emissions from the calculation of Missouri's new unit set-asides. EPA is therefore revising the portion of Missouri's SO
(8) Revise the Ohio SO
EPA is increasing Ohio's 2012 and 2014 annual SO
EPA re-calculated the emissions from these two plants with non-economic generation to reflect the input assumption changes. These calculations yield increases to Ohio's 2012 and 2014 state budgets for annual SO
EPA is finalizing additional adjustments to Ohio's 2012 and 2014 annual and ozone-season NO
(9) Revise the Nebraska SO
EPA is finalizing revisions to the Nebraska 2012 and 2014 SO
(10) Revise the New York SO
EPA is increasing New York's 2012 and 2014 annual SO
EPA is also finalizing an adjustment of 5,360 tons to New York's 2012 and 2014 SO
(11) Revise the Oklahoma ozone-season NO
EPA is increasing the Oklahoma 2013
EPA re-calculated the emissions from the Comanche plant with non-economic generation to account for the input assumption changes. These calculations yield increases to the Oklahoma 2013 and 2014 state budgets for ozone-season NO
(12) Revise the South Carolina SO
EPA is finalizing an 8,013 ton increase to South Carolina's 2012 and 2014 annual SO
(13) Revise the Texas annual NO
EPA is increasing the Texas 2012 and 2014 annual and ozone-season NO
EPA re-calculated the emissions from these plants with non-economic generation to account for the input assumption changes. These calculations yield increases to the Texas 2012 and 2014 state budgets for annual NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
This action does not impose any new information collection burden. This action makes relatively minor revisions to the emission budgets and allowance allocations or allowance allocations only in certain states in the final Transport Rule and corrects minor technical errors which are ministerial. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the final Transport Rule under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this action are electric power generators whose ultimate parent entity has a total electric output of 4 million megawatt-hours (MWh) or less in the previous fiscal year. We have determined that the changes considered in this proposed rulemaking pose no additional burden for small entities. The proposed revision to the new unit set-asides in Arkansas, Missouri, and Texas would yield an extremely small change in unit-level allowance allocations to existing units, including small entities, such that it would not affect the analysis conducted on small entity impacts under the finalized Transport Rule. In all other states, the revisions proposed in this rulemaking would yield additional allowance allocations to all units, including small entities, without increasing program stringency, such that it is not possible for the impact to small entities to be any larger than that already considered and reviewed in the finalized Transport Rule.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This action is increasing the budgets and increasing the total number of allowances or maintaining the same budget but revising unit-level allocations in several other states in the Transport Rule. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
In developing the final Transport Rule, EPA consulted with small governments pursuant to a plan established under section 203 of UMRA to address impacts of regulatory requirements in the rule that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action makes relatively minor revisions to the emissions budgets and allowance allocations or allowance allocations only in certain states in the final Transport Rule. Thus, Executive Order 13132 does not apply to this rule. EPA did provide information to state and local officials during development of both the proposed and final Transport Rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action makes relatively minor revisions to the emissions budgets and allowance allocations in several states in the final Transport Rule and helps ease the transition from CAIR. Indian country new unit set-asides will increase slightly or remain unchanged in the states affected by this action. Thus, Executive Order 13175 does not apply to this action. EPA consulted with tribal officials during the process of promulgating the final Transport Rule to permit them to have meaningful and timely input into its development.
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Analyses by EPA that show how the emission reductions from the strategies in the final Transport Rule will further improve air quality and children's health can be found in the final Transport Rule RIA.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA believes that there is no meaningful impact to the energy supply beyond that which is reported for the Transport Rule program in the final Transport Rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
As described in section XII.I of the preamble to the final Transport Rule, the Transport Rule program requires all sources to meet the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
In the Final Revisions Rule Significant Contribution Assessment Technical Support Document in the docket to this rulemaking, EPA assessed impacts of the emission changes in this rule on air quality throughout the Transport Rule region. For SO
Based on the significant contribution assessment in the technical support document for this action, EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. EPA believes that the vast majority of communities and individuals in areas covered by the Transport Rule program inclusive of this action, including numerous low-income, minority, and tribal individuals and communities in both rural areas and inner cities in the eastern and central U.S., will see significant improvements in air quality and resulting improvements in health. EPA's assessment of the effects of the final Transport Rule program on these communities is available in section XII.J of the preamble to the final Transport Rule.
The Congressional Review Act, 5 U.S.C. 801
Petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by April 23, 2012. Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
In the final Transport Rule, EPA determined that “[a]ny final action related to the Transport Rule is `nationally applicable' within the meaning of section 307(b)(1).” 76 FR 48,352. Through this rule, EPA is revising specific aspects of the final Transport Rule. This rule therefore is a final action related to the Transport Rule and as such is covered by the determination of national applicability made in the final Transport Rule. Thus, pursuant to section 307(b) any petitions for review of this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the
Administrative practice and procedure, Air pollution control, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide.
For the reasons set forth in the preamble, part 97 of chapter I of title 40 of the Code of Federal Regulations, as amended elsewhere in this issue, is further amended as follows:
42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651,
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Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing additional revisions to certain portions of the Transport Rule (Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, published August 8, 2011). The final Transport Rule limits the interstate transport of emissions of nitrogen oxides (NO
Written comments must be received by March 22, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2009–0491, by mail to: Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Gabrielle Stevens, U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204J, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, telephone (202) 343–9252, email at
This document proposes to take action on certain portions of the Transport Rule. We finalized a rule to address discrepancies in unit-specific modeling assumptions that affect the proposed calculation of Transport Rule state budgets in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas and Wisconsin, as well as new unit set-asides in Arkansas and Texas (see 76 FR 63860, October 14, 2011). We are issuing a direct final rule, in parallel with this proposal published elsewhere in this issue, based on comments received on the Revisions Rule proposal, to amend the August 8, 2011, final regulation (76 FR 48208) by correcting annual NO
We have explained our reasons for this action in the preamble to the direct final rule. If we receive no significant adverse comment, on the direct final rule, EPA will withdraw the relevant portions of the rule and timely notice of the withdrawal will be published in the
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the