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Rural Housing Service, USDA.
Final rule.
The Rural Housing Service (RHS or Agency) published a proposed rule on August 23, 2013, to amend its regulations for the section 502 direct single family housing loan program to create a certified loan application packaging process. Through this action, revisions are being made to the rule based on an evaluation of the public comments received as well as the results of the pilot program RHS began in 2010 to test changes to the loan application packaging process. This final rule will impose reasonable experience, training, structure, and performance requirements on eligible service providers; and it will regulate the packaging fee permitted under the process.
By establishing a vast network of competent, experienced, and committed Agency-certified packagers, this action is intended to benefit low- and very low-income people who wish to achieve homeownership in rural areas by increasing their awareness of the Agency's housing program, increasing specialized support available to them to complete the application for assistance, and improving the quality of loan application packages submitted on their behalf.
The effective date for the final rule is July 28, 2015.
Brooke Baumann, Branch Chief, Single Family Housing Direct Loan Division, USDA Rural Development, Stop 0783, 1400 Independence Avenue SW., Washington, DC 20250–0783, Telephone: 202–690–4250. Email:
Title V, Section 1480(k) of the Housing Act authorizes the Secretary of Agriculture to promulgate rules and regulations as deemed necessary to carry out the purpose of that title.
The Office of Management and Budget (OMB) has designated this rule as not significant under Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under this program, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This rule is not retroactive. It will not affect packaged loan applications received prior to the effective date of the rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 must be exhausted.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Agency 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, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency 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.
This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of the Agency that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Public Law 91–190, neither an Environmental Assessment nor an Environmental Impact Statement is required.
The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601
This program/activity is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. (See the Notice related to 7
This executive order imposes requirements on Rural Development in the development of regulatory policies that have tribal implications or preempt tribal laws. Rural Development has determined that the final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. However, in an effort to raise Tribal and Tribal Housing Authority awareness and interest in the proposed rule published on August 23, 2013, RHS co-hosted a webinar and teleconference with the National American Indian Housing Council on November, 6, 2013, during the extension of the public comment period. Thirty-nine Indian Housing and Tribal staff from around the country registered for the webinar and teleconference to learn about the proposed certified loan application packaging process. Participants were encouraged to provide feedback during the webinar and teleconference as well.
This program is listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
After gauging the benefits and limitations of the reporting under the packaging pilot program and in light of public comments received, the monthly reporting requirement outlined in § 3550.75 (b)(2)(iv) was removed. This rule does not impose any new or modified information collection requirements.
RHS is committed to complying with the E-Government Act, 44 U.S.C. 3601
The section 502 direct single family housing loan program provides subsidized mortgage loans for modest homes in rural areas to primarily first-time homebuyers who are low- and very low-income. While loan approval and underwriting are functions of the Agency staff, the Agency's nonprofit and public partners often play a role in educating potential homebuyers in homeownership and in originating section 502 loans.
Loan application packaging, which is an optional service, is not new to the program; it has been permitted under the program for decades. Loan application packagers, who are separate and independent from the Agency, play an important role in increasing awareness of the section 502 program among potential homeowners and provide a valuable service to potential homeowners.
To address weaknesses in the existing loan application process and to integrate the lessons learned from the packaging pilot program, which began in Fiscal Year 2010 and introduced the use of intermediaries in the packaging process, RHS published a proposed rule on August 23, 2013, (78 FR 52460–52464) to amend its regulations for the section 502 direct single family housing loan program to create a certified loan application packaging process.
The original 60-day comment period for the proposed rule, which ended on October 22, 2013, was extended to November 22, 2013, due to the lapse in Federal funding that caused a partial closing of Federal government operations from October 1 through October 16, 2013. Notice of the extension was published on November 1, 2013 (78 FR 65582). A total of 34 comments were received. Commenters included affordable housing nonprofit organizations, the National Council of State Housing Agencies, the National Rural Housing Coalition, and the general public.
For qualified employers and their certified packaging staff that received approval to “opt out,” the State Director will determine if they must subsequently submit through an intermediary instead of directly to the Agency if performance issues should occur. Guidelines for State Directors will be included in the program's handbook to ensure uniformity.
The criteria to be an intermediary will be revised to clarify that intermediaries will be required to provide supplemental training, technical assistance, and support to those qualified employers and their Agency-certified packaging staff that are required to funnel their packages through them since one of the primary goals of an intermediary is to cultivate high performance. As further detailed in the program's handbook, supplemental training and technical assistance will address, among other things, any areas
The criteria will also be revised to require an intermediary to be, to the Agency's satisfaction, a Section 501 (c)(3) nonprofit organization or public agency in good standing in the State(s) of its operation with the capacity to promptly serve (as detailed in the program's handbook) multiple qualified employers and their Agency-certified loan application packagers throughout an entire State or preferably throughout entire States; be financially viable as evidenced by an audit paid for by the applicant seeking to be an intermediary; and demonstrate that their quality assurance staff has experience with packaging, originating, or underwriting affordable housing loans. After the initial application process, intermediaries may be required to periodically demonstrate that they still meet specified criteria.
An intermediary will continue to be prohibited from having a financial interest in the property for which the application package is submitted since this helps ensure an unbiased and objective quality assurance review. A qualified employer and/or Agency-certified packager, however, will be permitted to have a financial interest in the property since many offer acquisition and rehabilitation programs or other programs that promote affordable housing and improve a community's housing stock. However, a qualified employer and/or Agency-certified packager must notify the Agency and applicant of any financial interest in the property. In addition, the Agency may prohibit a qualified employer and/or Agency-certified packager from receiving part or all of the packaging fee if the financial interest is improper or the qualified employer and/or Agency-certified packager has a history of improperly using its position when a financial interest exists.
To complement the above, the proficiency requirement outlined in § 3550.75(b)(1)(iv) was removed, although an individual must still meet the requirements in 3550.75(b)(1)(i) through (iv); and the experience requirement outlined in § 3550.75(b)(2)(iii) was removed, although a qualified employer must still meet the requirements in 3550.75(b)(2)(i) through now (v).
Following the publication of this rule, a
Comments were made that mortgage lenders and brokers traditionally earn a minimum of 250 basis points in originating private sector mortgages. Although these services share some similarities, packaging a section 502 loan and originating a private mortgage are not the same. For example, originating a private mortgage generally includes processing an application, underwriting and funding a loan, and other administrative services. Packagers in the section 502 program do not underwrite, approve, or fund loans on behalf of the Agency.
Compensation will only be allowed for closed loans. This condition is currently in effect for the protection it affords parties who wish to seek a section 502 loan but who are clearly ineligible.
Other than using program funds to include the packaging fee in the borrower's loan when permissible and travel funds for a designated Agency staff member to attend classroom sessions offered by non-Agency trainers, the Agency will not use funds to operate the certified loan application packaging process.
The Agency does not have the authority under the SAFE Act to enforce or monitor SAFE Act compliance. However, the Agency believes that certified loan application packagers meeting the requirements of this rule are not “mortgage loan originators” subject to the SAFE Act or Regulation H because certified loan application packagers do not “offer or negotiate terms” of loan and therefore do not meet the criteria of “mortgage loan originators”.
Even if the activities of a certified loan application packager were to be considered those of a mortgage loan originator, a State may exempt an individual from the State requirements if that individual is an employee of a bona fide nonprofit organization who acts as a loan originator only as part of work duties to the nonprofit organization and with respect to residential mortgage loans with terms favorable to the borrower.
Commenters were misinterpreting the reference to mean that the Agency would require SAFE Act compliance even when the State does not.
In regards to continuing education, § 3550.75(e) states that the Agency will stipulate any training and performance requirements for retaining a designation. Additional guidance on this issue will be provided in the program's handbook.
The Agency will recognize the attendance of past training sessions provided the attendee fully attended a three-day classroom course jointly presented by the Agency and one of three sponsoring nonprofit organizations (NeighborWorks, the Housing Assistance Council, or the Rural Community Assistance Corporation), and passed the online exam. If the training was taken more than three years ago (from the effective date of this final rule), recognition will also be subject to the attendee having submitted at least one viable packaged loan application between passing the course and the effective date of this final rule.
Clarification will be provided in the program's handbook that Agency staff should promptly contact the packager with specific information (
While the current waiver notes that the authorization will terminate upon loan closing or Agency denial of the loan application, appropriate changes may be made to extend this authorization beyond closing if/when the program's loan servicing system can be configured to issue servicing (
The Agency must manage the ordering of the appraisal to ensure that orders are only made when funds are available to process the loan request and to ensure the equitable ordering of services among appraisers who have blanket purchase agreements with the Agency. The Agency can only accept an appraisal obtained from a third-party when that third-party is a lender participating in the transaction and has a risk of loss at stake.
In the interim, internal guidance was approved on April 29, 2013, and on July 15, 2013, addressing alternative measures that may be used to fulfill the program's inspection requirements.
In the interim, projects are underway in the program to create an automated underwriting system for internal use and to modify an existing system to allow packagers to upload applications into program's loan origination system.
The agency is also removing the language concerning packaging fees for section 504 transactions from § 3550.52(d)(6), since this eligible cost is already covered under § 3550.102(d)(5).
Administrative practice and procedure, Conflict of interests, Environmental impact statements, Equal credit opportunity, Fair housing, Accounting, Housing, Loan programs—Housing and community development, Low and moderate income housing, Manufactured homes, Reporting and recordkeeping requirements, Rural areas, Subsidies.
For the reasons stated in the preamble, chapter XXXV, Title 7 of the Code of Federal Regulations, is amended as follows:
5 U.S.C. 301; 42 U.S.C. 1480.
(d) * * *
(6) Packaging fees resulting from the certified loan application packaging process outlined in § 3550.75. The fee may not exceed two percent of the national average area loan limit as determined by the Agency and may be limited further at the Agency's discretion. Nominal packaging fees not resulting from the certified loan application process are an eligible cost provided the fee is no more than $350; the loan application packager is a nonprofit, tax exempt partner that received an exception to all or part of the requirements outlined in § 3550.75 from the applicable Rural Development State Director; and the packager gathers and submits the information needed for the Agency to determine if the applicant is preliminarily eligible along with a fully completed and signed uniform residential loan application.
(c) * * *
(5) Applications from applicants who do not qualify for priority consideration in paragraphs (c)(1), (2), (3), or (4) of this section will be selected for processing after all applications with priority status have been processed. The Administrator may temporarily reclassify applications received through the certified loan application packaging process as fourth priority when determined appropriate.
Persons interested in applying for a section 502 loan may, but are not required to, submit an application through the certified loan application packaging process.
(a)
(b)
(1)
(i) Have at least one year of affordable housing loan origination and/or affordable housing counseling experience;
(ii) Be employed (either as an employee or as an independent contractor) by a qualified employer as outlined in paragraph (b)(2) of this section;
(iii) Complete an Agency-approved loan application packaging course and successfully pass the corresponding test as specified in paragraph (c) of this section; and
(iv) Submit applications to the Agency via an intermediary if determined necessary by a State Director.
(2)
(i) Be a nonprofit organization or public agency in good standing in the State(s) of its operation.
(ii) Be tax exempt under the Internal Revenue Code and be engaged in affordable housing per their regulations, articles of incorporation, or bylaws.
(iii) Notify the Agency and the applicant if they or their Agency-certified packager(s) are the developer, builder, seller of, or have any other such financial interest in the property for which the application package is submitted. The Agency may disallow a particular qualified employer and/or Agency-certified packager from receiving part or all of a packaging fee if the Agency determines that the financial interest is improper or the qualified employer or Agency-certified packager has a history of improperly using its position when there has been a financial interest in the property.
(iv) Prepare an affirmative fair housing marketing plan for Agency approval as outlined in RD Instruction 1901–E (or in any superseding guidance provided in the impending RD Instruction 1940–D).
(v) Submit applications to the Agency via an intermediary if determined necessary by a State Director.
(3)
(i) Be a section 501(c)(3) nonprofit organization or public agency in good standing in the State(s) of its operation with the capacity to serve multiple qualified employers and their Agency-certified loan application packagers throughout an entire State or preferably throughout entire States and with the capacity to perform quality assurance reviews on a large volume of packaged loan applications within an acceptable period of time as determined by the Agency;
(ii) Be engaged in affordable housing in accordance with their regulations, articles of incorporation, or bylaws;
(iii) Be financially viable and demonstrate positive operating performance as evidenced by an independent audit paid for by the applicant seeking to be an intermediary;
(iv) Have at least five years of verifiable experience with the Agency's direct single family housing loan programs;
(v) Demonstrate that their quality assurance staff has experience with packaging, originating, or underwriting affordable housing loans.
(vi) Develop and implement quality control procedures designed to prevent submission of incomplete or ineligible application packages to the Agency;
(vii) Ensure that their quality assurance staff complete an Agency-approved loan application packaging course and successfully pass the corresponding test;
(viii) Not be the developer, builder, seller of, or have any other such financial interest in the property for which the application package is submitted; and
(ix) Provide supplemental training, technical assistance, and support to certified loan application packagers and qualified employers to promote quality standards and accountability; and to address areas for improvement and any changes in program guidance.
(c)
(1)
(i) An in-depth review of the section 502 direct single family housing loan program and the regulations and laws that govern the program (including civil rights lending laws such as the Equal Credit Opportunity Act, Fair Housing Act, and Section 504 of the Rehabilitation Act of 1973);
(ii) A detailed discussion on the program's application process and borrower/property eligibility requirements;
(iii) An examination of the Agency's loan underwriting process which includes the use of payment subsidies; and
(iv) The roles and responsibilities of a loan application packager and the Agency staff.
(2)
(3)
(d)
(e)
(f)
(1) The rate of submitted packaged loan applications that receive RHS approval is below the acceptable limit as determined by the Agency;
(2) The rate of submitted packaged loan applications from very low-income applicants is below the acceptable level as determined by the Agency;
(3) Violation of applicable regulations, statutes and other guidance; or
(4) No viable packaged loan applications are submitted to the Agency in any consecutive 12-month period.
U.S. Immigration and Customs Enforcement, DHS.
Final rule.
The Department of Homeland Security is amending its regulations under the Student and Exchange Visitor Program (SEVP) to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students. This rule grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also provides greater incentive for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students with F–1 or M–1 nonimmigrant status to enroll in study at an SEVP-certified school so long as any study remains less than a full course of study. F–2 and M–2 spouses and children remain prohibited, however, from engaging in a full course of study unless they apply for, and DHS approves, a change of nonimmigrant status to a nonimmigrant status authorizing such study.
This rule is effective May 29, 2015.
Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket ICEB–2011–0005 and are available online by going to
If you have questions on this final rule, call or email Katherine Westerlund, Policy Chief (Acting), Student and Exchange Visitor Program, telephone 703–603–3400, email:
On November 21, 2013, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) entitled Adjustments to Limitations on Designated School Official Assignment and Study by F–2 and M–2 Nonimmigrants in the
DHS's Student and Exchange Visitor Program (SEVP) manages and oversees significant elements of the process by which educational institutions interact with F, J and M nonimmigrants to provide information about their immigration status to the U.S. Government. U.S. Immigration and Customs Enforcement (ICE) uses the Student and Exchange Visitor Information System (SEVIS) to track and monitor schools, participants and sponsors in exchange visitor programs, and F, J and M nonimmigrants, as well as their accompanying spouses and children, while they are in the United States and participating in the educational system.
ICE derives its authority to manage these programs from several sources, including:
• Section 101(a)(15)(F)(i), (M)(i) and (J) of the Immigration and Nationality Act of 1952, as amended (INA), 8 U.S.C. 1101(a)(15)(F)(i), (M)(i), and (J), under which a foreign national may be admitted to the United States in nonimmigrant status as a student to attend an academic school or language training program (F nonimmigrant), as a student to attend a vocational or other recognized nonacademic institution (M nonimmigrant), or as an exchange visitor (J nonimmigrant) in an exchange program designated by the Department of State (DOS), respectively. An F or M student may enroll in a particular school only if the Secretary of Homeland Security has certified the school for the attendance of F and/or M students.
• Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104–208, Div. C, 110 Stat. 3009–546 (codified at 8 U.S.C. 1372), which authorized the creation of a program to collect current and ongoing information provided by schools and exchange visitor programs regarding F, J or M nonimmigrants during the course of their stays in the United States, using electronic reporting technology where practicable, and which further authorized the Secretary of Homeland Security to certify schools to participate in F or M student enrollment.
• Section 416(c) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107–56, 115 Stat. 272 (USA PATRIOT Act), as amended, which provides for the collection of alien date of entry and port of entry information for aliens whose information is collected under 8 U.S.C. 1372.
• Homeland Security Presidential Directive No. 2 (HSPD–2), which, following the USA PATRIOT Act,
• Section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107–173, 116 Stat. 543 (codified at 8 U.S.C. 1762), which directed the Secretary to review the compliance with recordkeeping and reporting requirements under 8 U.S.C. 1372 and INA section 101(a)(15)(F), (J) and (M), 8 U.S.C. 1101(a)(15)(F), (J) and (M), of all schools
Accordingly, and as directed by the Secretary, ICE carries out the Department's ongoing obligation to collect data from, certify, review, and recertify schools enrolling these students. The specific data collection requirements associated with these obligations are specified in part in legislation,
SEVP carries out its programmatic responsibilities through SEVIS, a Web-based data entry, collection and reporting system. SEVIS provides authorized users, such as DHS, DOS, other government agencies, SEVP-certified schools, and DOS-designated exchange visitor programs, access to reliable information to monitor F, J and M nonimmigrants for the duration of their authorized period of stay in the United States. As discussed in the NPRM, schools must regularly update information on their approved F, J and M nonimmigrants to enable government agencies to fulfill their oversight and investigation responsibilities, such as enabling accurate port of entry screening, assisting in the adjudication of immigration benefit applications, ensuring and verifying eligibility for the appropriate nonimmigrant status, monitoring nonimmigrant status maintenance, and, as needed, facilitating timely removal.
On September 16, 2011, DHS announced a “Study in the States” initiative to encourage the best and the brightest international students to study in the United States. As described in the NPRM, the initiative took various steps to enhance and improve the Nation's nonimmigrant student programs.
Designated school officials (DSOs) are essential to making nonimmigrant study in the United States attractive to international students and a successful experience overall. DHS charges DSOs with the responsibility of acting as liaisons between nonimmigrant students, the schools that employ the DSOs and the U.S. Government. Significantly, DSOs are responsible for making information and documents, including academic transcripts, relating to F–1 and M–1 nonimmigrant students, available to DHS for the Department to fulfill its statutory responsibilities. 8 CFR 214.3(g).
When the Immigration and Naturalization Service (INS) in 2002 established a limit of ten DSOs in order to control access to SEVIS, the INS noted that once SEVIS was fully operational, it might reconsider the numerical limits on the number of DSOs.
DHS believes that concerns raised within the U.S. educational community that the current DSO limit of ten per campus is too constraining are of strong merit. While the average SEVP-certified school has fewer than three DSOs, SEVP recognizes that F and M students often cluster at schools within States that attract a large percentage of nonimmigrant student attendance. As such, schools in the three States with the greatest F and M student enrollment represent 35 percent of the overall F and M nonimmigrant enrollment in the United States.
This rule does not alter SEVP's authority to approve or reject a DSO or principal designated school official (PDSO) nomination.
This rulemaking also amends the benefits allowable for the accompanying spouse and children (hereafter referred to as F–2 or M–2 nonimmigrants) of an F–1 or M–1 student. On May 16, 2002, the former INS proposed to prohibit full-time study by F–2 and M–2 spouses and to restrict such study by F–2 and M–2 children to prevent an alien who should be properly classified as an F–1 or M–1 nonimmigrant from coming to the United States as an F–2 or M–2 nonimmigrant and, without adhering to other legal requirements, attending school full-time. 67 FR 34862, 34871. The INS proposed to permit avocational and recreational study for F–2 and M–2 spouses and children and, recognizing that education is one of the chief tasks of childhood, to permit F–2 and M–2 children to be enrolled full-time in elementary through secondary school (kindergarten through twelfth grade).
The INS finalized these rules on December 11, 2002. 67 FR 76256 (codified at 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii)). In the final rule, the INS noted that commenters suggested the INS remove the language “avocational or recreational” from the types of study that may be permitted by F–2 and M–2 dependents, as DSOs may have difficulty determining what study is avocational or recreational and what is not. In response to the comments, the INS clarified that if a student engages in study to pursue a hobby or if the study is that of an occasional, casual, or recreational nature, such study may be considered as avocational or recreational. 67 FR 76266.
DHS maintains the long-standing view that an F–2 or M–2 nonimmigrant who wishes to engage in a full course of study in the United States, other than elementary or secondary school study (kindergarten through twelfth grade), should apply for and obtain approval to change his or her nonimmigrant classification to F–1, J–1, or M–1.
Accordingly, DHS is relaxing its prohibition on F–2 and M–2 nonimmigrant study by permitting F–2 and M–2 nonimmigrant spouses and children to engage in study in the United States at SEVP-certified schools that does not amount to a full course of study. Under this rule, F–2 and M–2 nonimmigrants are permitted to enroll in less than a “full course of study,” as defined at 8 CFR 214.2(f)(6)(i)(A) through (D) and 8 CFR 214.2(m)(9)(i)–(iv), at an SEVP-certified school and in study described in 8 CFR 214.2(f)(6)(i)(A) through (D) and 8 CFR 214.2(m)(9)(i)–(iv).
In addition, the change limits F–2 and M–2 study, other than avocational or recreational study, to SEVP-certified schools, in order to make it more likely that the educational program pursued by the F–2 or M–2 nonimmigrant is a bona fide program and that studies at the school are unlikely to raise national security concerns. The F–2 or M–2 nonimmigrants can still participate full-time in avocational or recreational study (
This rule does not change the recordkeeping and reporting responsibilities of DSOs with regard to F–2 or M–2 nonimmigrants to DHS. DSOs at the school the F–1 or M–1
DHS received a total of 37 comments on the proposed rule. After reviewing all the comments, DHS is adopting the rule as proposed, with minor technical corrections. Of the 37 comments received, 27 commenters supported the proposal to remove the limit on the number of DSO nominations per campus. These commenters noted that removing this limitation would permit schools to plan their staffing requirements more efficiently across campuses. In addition, the commenters suggested that permitting an increased number of DSOs would permit schools to better serve their students and would enhance their ability to meet SEVIS reporting and oversight requirements. Two commenters, however, recommended against the proposed change because of national security concerns. Because the commenters did not elaborate on the potential concerns they believed might result, and DHS does not consider removing the limitation on the number of DSOs per campus to negatively affect national security, DHS is adopting this provision as proposed.
The majority of comments DHS received in response to the proposed rule supported the proposal to permit F–2 and M–2 nonimmigrants to study at SEVP-approved schools on a less than full-time basis. Many of these commenters argued that the change would enhance the quality of life of F–2 and M–2 nonimmigrants and would assist the United States in attracting the “best and brightest” students to U.S. institutions. Of these commenters, four asserted that the rule change would have a positive effect on the U.S. economy, particularly with more students paying tuition and buying books and supplies. Two of the commenters also noted that the proposed change would have the benefit of enabling F–2 and M–2 nonimmigrants to learn English at SEVP-approved schools, thereby facilitating their adjustment to life in the United States. One commenter specifically noted appreciation that DHS clarified that an F–2 nonimmigrant could complete a degree, so long as all study at SEVP-approved schools was completed on a less than full-time basis. DHS further notes that this same clarification also applies to an M–2 nonimmigrant, again, so long as all study at SEVP-approved schools occurs on a less than full-time basis.
Four commenters suggested that the regulation change would be improved if it permitted F–2 and M–2 nonimmigrants to study full-time, in addition to permitting them to engage in less than a full course of study. The commenters noted that dependents of other nonimmigrant categories are permitted to study full-time, for example, the J–2 spouses of J–1 exchange visitors. DHS appreciates these comments and has considered them carefully. However, DHS is of the opinion that permitting F–2 and M–2 nonimmigrants to engage in a full course of study would blur fundamental distinctions between the F–1 and F–2, and M–1 and M–2 classifications, respectively. Moreover, it would be illogical to provide greater flexibility for study by F–2 or M–2 dependants than is afforded to F–1 or M–1 principals, respectively. The INA requires F–1 and M–1 principals to pursue a full course of study. INA sections 101(a)(15)(F)(i) and (M)(i); 8 U.S.C. 1101(a)(15)(F)(i) and (M)(i). Congress intended F–1 and M–1 principals to have greater educational opportunities, not fewer, than their F–2 and M–2 dependents. In establishing the F–1 and M–1 classifications for principal nonimmigrant students separate from the F–2 and M–2 classifications for spouses and children, respectively, Congress clearly did not intend the classifications to be synonymous. Accordingly, it would not be appropriate to permit F–2 and M–2 dependents to engage in either full-time or less than full-time study, at the discretion of the individual F–2 or M–2 dependent, when such discretion is not afforded to the F–1 or M–1 principal. DHS thus has maintained the prohibition on full-time study by F–2 and M–2 nonimmigrants.
With respect to the commenters' observation about J–2 dependent spouses, the purpose of the J nonimmigrant classification is fundamentally different from that of the F and M classifications. Admission in J nonimmigrant status permits engagement in multiple activities other than full-time study (
One commenter advocating for full-time F–2 and M–2 study stated that the limit to less than full-time study is unnecessary, as dependent students do not pose any additional security risk because SEVIS tracks them. DHS disagrees with this commenter. The recordkeeping requirements for F–1 and M–1 nonimmigrants in SEVIS are more comprehensive than they are for F–2
Three commenters suggested that F–2 and M–2 nonimmigrants be permitted to commence their full-time study as soon as they apply for a change of status to F–1 or M–1. One of these commenters also requested that DHS revise the regulations governing change of status to specify that a nonimmigrant who is granted a change of status to F–1 or M–1 must begin the full course of study no later than the next available session or term after the change of status has been approved. The commenter suggested that individuals granted a change of status to F–1 or M–1 often are concerned that they might lose their new status if they do not enroll in classes immediately, but that this may be impossible if the approval is received midway during the school term or session.
DHS continues to maintain that a foreign national who wishes to engage in a full course of study must apply for and receive a change of status to F–1 or M–1 prior to commencing a full course of study.
In addition to the comments discussed above, DHS received a number of individual comments on discrete issues. These include one comment requesting that DHS consider extending the option to apply for employment authorization for F–2 and M–2 nonimmigrants with U.S. Citizenship and Immigration Services (USCIS). DHS appreciates the commenter's interest but has determined not to extend employment authorization to F–2 and M–2 nonimmigrants as part of this rulemaking. The rule's changes to F–2 and M–2 opportunities are intended to increase access of F–2 or M–2 nonimmigrants to education while in the United States and not to increase employment opportunities.
DHS received two comments about the number of training hours and the wage rate for DSOs used in the economic analysis of the rulemaking. The commenters asserted that the number of training hours required for DSOs is closer to a minimum of 90 hours of training in the first year, not seven hours as DHS estimated. The commenters further suggested that DSOs be categorized as professional staff, not administrative, for the purpose of calculating their wage rate.
SEVP does not currently require any specific training for DSOs; however, SEVP does require that DSOs sign a certification that they are familiar with the appropriate regulations and intend to comply with them. In addition, SEVP provides an Internet-based voluntary SEVIS training, which DSOs are strongly encouraged to complete. SEVP recognizes that many schools go above and beyond this, and commends these schools. However, other DSOs will not complete any training. Moreover, schools that increase the number of employed DSOs beyond ten as a result of this rule likely already have large offices of international student advisors that may require little to no additional training to perform DSO duties. Because the duties and initial training of DSOs varies widely among schools, with some being above the minimum suggested training by SEVP and others below, DHS believes the seven-hour training estimate is appropriate for the flexibility this rulemaking intends to provide schools.
DHS agrees with the commenters that a different wage rate is appropriate for DSOs and has amended the wage rate estimation in this final rule. DHS is supportive of DSOs and the importance of their role in serving as a link between nonimmigrant students, schools and SEVP. DHS agrees that DSOs are professionals and perform important duties. The occupation code chosen to estimate the DSO wage rate for the analysis is not meant to undermine the importance of the role of the DSO. Rather, it serves as a proxy for the basic job duties required by SEVP of DSOs. DSOs provide advice to students regarding maintenance of their nonimmigrant status and maintaining enrollment, provide information on participation in programs of study in SEVIS, authorize optional practical training, and report to SEVP if a student has violated the conditions of his or her status. Individuals approved as DSOs may also perform other job duties as an element of their employment with schools, which are outside of those required by SEVP, to enhance nonimmigrants' stays in the United States. As noted by one commenter, these duties may include responsibilities ranging from “airport pick-ups, to facilitating intercultural communications workshops.” Because schools rely on DSOs to counsel nonimmigrant students of their responsibilities and maintain their nonimmigrant status, and DHS relies on DSOs to ensure the integrity of the program, DHS has amended the category used to estimate the DSO wage rate. In this final rule, DHS revises the wage rate from BLS category 43–9199 Office and Administrative Support Workers, All Other, to BLS category 21–1012 Educational, Guidance, School, and Vocational Counselors. See the Executive Orders 12866 and 13563: Regulatory Planning and Review section below for this revision.
Another commenter addressed the procedures used by SEVP to adjudicate changes to DSOs. The commenter expressed concern at the pace of adjudicating requests to add or remove DSOs, and also requested that SEVP publish the criteria it uses in adjudicating changes to DSOs, as well as establish an appeals process for denials of such requests. DHS appreciates these comments, but notes that they are outside the scope of the proposed rulemaking, which focused on the more discrete issue of the regulatory limitation on the number of DSOs permitted at each campus. SEVP, however, is working to make its adjudications process more efficient in the future.
Several commenters identified areas where the rulemaking could benefit from additional clarification or the correction of possible errors. One
Additionally, one commenter pointed out that the language in the preamble of the proposed rulemaking at 78 FR 69781, explaining the definition of full course of study, implied incorrectly that F nonimmigrants only may enroll at colleges or universities, and not at community colleges or junior colleges. DHS appreciates this comment and agrees that a community college or junior college may appropriately enroll an F nonimmigrant.
Finally, DHS is making four technical corrections to the proposed regulatory text. One commenter noted that the proposed regulatory text at 8 CFR 214.2(f)(15)(ii)(C) referenced paragraph (f)(15)(ii)(A)(2), whereas it should include both paragraphs (A)(1) and (A)(2). DHS agrees with the commenter that this was an error and accordingly has revised the final rule to refer to (f)(15)(ii)(A), so as to apply to both paragraphs. In the course of preparing this final rule, DHS also recognized additional areas of the proposed regulatory text where further revision was necessary for purposes of accuracy and clarity. The proposed text located at 8 CFR 214.2(m)(17)(ii)(A)(1) had omitted a reference to the courses described in 8 CFR 214.2(f)(6)(i)(A)–(D) as a type of course at an SEVP-certified school that an M–2 spouse or M–2 child may enroll in as less than a full course of study. With this rule, courses of study approved under both F and M study are available to both F–2 and M–2 nonimmigrants. Lastly, DHS added a reference to 8 CFR 214.2(m)(14) in the new provision authorizing limited F–2 study at SEVP-certified schools to clarify that F–2 spouses and children are not eligible to engage in any type of employment or practical training during their studies; correspondingly, DHS added a reference to 8 CFR 214.2(f)(9)–(10) in the new provision authorizing limited M–2 study at SEVP-certified schools for the same reason.
DHS developed this rule after considering numerous statutes and executive orders related to rulemaking. The below sections summarize our analyses based on a number of these statutes or executive orders.
Executive Orders 13563 and 12866 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. The Office of Management and Budget (OMB) has not designated this final rule as a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this final rule.
The rule eliminates the limit on the number of DSOs a school may have and establishes eligibility for F–2 and M–2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. If a particular school does not wish to add additional DSOs, this rule imposes no additional costs on that school. Based on feedback from the SEVP-certified schools, however, DHS believes up to 88 schools may choose to take advantage of this flexibility and designate additional DSOs. These SEVP-certified schools would incur costs related to current DHS DSO documentation requirements and any training DSOs may undertake. DHS estimates the total 10-year discounted cost of allowing additional DSOs to be approximately $223,000 at a seven percent discount rate and approximately $264,000 at a three percent discount rate. Regarding the provision of the rule that establishes eligibility for less than a full course of study by F–2 and M–2 nonimmigrants, DHS is once again providing additional flexibilities. As this rule does not require the F–2 or M–2 nonimmigrant to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements, DHS does not believe there are any costs associated with establishing eligibility for F–2 and M–2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools.
The only anticipated costs for SEVP-certified schools to increase the number of DSOs above the current limit of ten per school or campus derive from the existing requirement for reporting additional DSOs to DHS, and any training that new DSOs would undertake. DHS anticipates the number of schools that will avail themselves of this added flexibility will be relatively small. As of April 2012, there are 9,888 SEVP-certified schools (18,733 campuses), with approximately 30,500 total DSOs, and an average of 3.08 DSOs per school. However, there are only 88 SEVP-certified schools that currently employ the maximum number of DSOs.
DHS is unable to estimate with precision the number of additional DSOs schools may choose to add. While some of the 88 SEVP-certified schools that currently employ the maximum number of DSOs may not add any additional DSOs, others may add several additional DSOs. DHS's best estimate is that these 88 SEVP-certified schools will on average designate three additional DSOs, for a total of 264 additional DSOs.
DHS estimates that current documentation requirements, as well as training a DSO might undertake to begin his or her position, equate to approximately seven hours total in the first year. DHS does not track wages paid to DSOs; however, in response to a comment received on the NPRM, DHS is revising the wage rate used to estimate DSO wages. For this final rule, we are using the U.S. Department of Labor, Bureau of Labor Statistics occupation Educational, Guidance, School, and Vocational Counselors
After the initial year, DHS expects the SEVP-certified schools that designate additional DSOs to incur costs for replacements, as these 264 new DSOs experience normal turnover. Based on information from the Bureau of Labor Statistics, we estimate an average annual turnover rate of approximately 37 percent.
This rule addresses concerns within the U.S. education community that the current DSO limit of ten is too constraining. For example, allowing schools to request additional staff able to handle DSO responsibilities will increase flexibility in school offices and enable them to better manage their programs. This flexibility is particularly important in schools where F and M nonimmigrants are heavily concentrated or where instructional sites are in dispersed geographic locations. It will also assist schools in coping with seasonal surges in data entry requirements (
As of June 2012, SEVIS records indicate that there are 83,354 F–2 nonimmigrants in the United States, consisting of approximately 54 percent spouses and 46 percent children. Though both spouses and children may participate in study that is less than a full course of study at SEVP-certified schools under this rule, DHS assumes that spouses are more likely to avail themselves of this opportunity because most children are likely to be enrolled full-time in elementary or secondary education (kindergarten through twelfth grade). Though there may be exceptions to this assumption, for example, a child in high school taking a college course, the majority of F–2 nonimmigrants benefitting from this provision are likely to be spouses. DHS only uses this assumption to assist in estimating the number of F–2 nonimmigrants likely to benefit from this rule, which could be as high as 45,011 (83,354 × 54 percent), if 100 percent of F–2 spouses participate, but is likely to be lower as DHS does not expect that all F–2 spouses would take advantage of the opportunity. DHS does not believe there are any direct costs associated with establishing eligibility for F–2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools. The rule would not require the F–2 nonimmigrant to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements. In the NPRM, DHS requested comment on these assumptions and estimates. No comments were received in response to this request.
As of June 2012, SEVIS records indicate that there are 578 M–2 nonimmigrants in the United States. Pursuant to this rulemaking, these M–2 spouses and children will be eligible to take advantage of the option to participate in study that is less than a full course of study at SEVP-certified schools. Approximately 39 percent of M–2 nonimmigrants are spouses and 61 percent are children. Again, DHS assumes that spouses would comprise the majority of M–2 nonimmigrants to benefit from this provision. This number could be as high as 225 M–2 nonimmigrants (578 × 39 percent), but is likely to be lower as DHS does not expect that all M–2 spouses would take advantage of the opportunity. Under the same procedures governing F–2 nonimmigrants, the M–2 nonimmigrants would not be required to submit any new documentation or fees to SEVIS or the SEVP-certified school to comply with any DHS requirements. In the NPRM, DHS requested comment on these assumptions and estimates. No comments were received in response to this request.
The rule provides greater incentive for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students in F–1 or M–1 status to enroll in study at a SEVP-certified school if not a full course of study. DHS recognizes that the United States is engaged in a global competition to attract the best and brightest international students to study in our schools. The ability of F–2 or M–2 nonimmigrants to have access to education while in the United States is in many instances central to maintaining a satisfactory quality of life for these visiting families.
The rule eliminates the limit on the number of DSOs a school may have and establishes eligibility for F–2 and M–2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. If a particular school does not wish to add additional DSOs, this rule imposes no additional costs on that school. DHS believes up to 88 schools may choose to take advantage of this flexibility and designate additional DSOs. These SEVP-certified schools would incur costs related to current DHS DSO training and documentation requirements; DHS estimates the total 10-year discounted cost to be approximately $223,000 at a seven percent discount rate and approximately $264,000 at a three percent discount rate. DHS does not believe there are any costs associated with establishing eligibility for F–2 and M–2 nonimmigrants to engage in less than full courses of study at SEVP-certified schools as this rule does not require the
The table below summarizes the total costs and benefits of the rule to allow additional DSOs at schools and permit accompanying spouses and children of nonimmigrant students of F–1 or M–1 status to enroll in study at a SEVP-certified school if not a full course of study. In the NPRM, DHS welcomed public comments that specifically addressed the nature and extent of any potential economic impacts of the proposed amendments that we may not have identified. DHS specifically requested comments in the NPRM on whether there were any additional burdens imposed on F–2 and M–2 nonimmigrants related to additional record storage costs. No comments were received in response to this request.
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. This rule eliminates the limit on the number of DSOs a school may nominate and permits F–2 and M–2 nonimmigrants to engage in less than a full course of study at SEVP-certified schools. Although some of the schools impacted by these changes may be considered as small entities as that term is defined in 5 U.S.C. 601(6), the effect of this rule is to benefit those schools by expanding their ability to nominate DSOs and to enroll F–2 and M–2 nonimmigrants for less than a full course of study.
In the subsection above, DHS has discussed the costs and benefits of this rule. The purpose of this rule is to provide additional regulatory flexibilities, not impose costly mandates on small entities. DHS again notes that the decision by schools to avail themselves of additional DSOs or F–2 or M–2 nonimmigrants who wish to pursue less than a full course of study is an entirely voluntary one and schools will do so only if the benefits to them outweigh the potential costs. In particular, removing the limit on the number of DSOs a school may designate allows schools the flexibility to better cope with seasonal surges in data entry requirements due to start of school year reporting. Accordingly, DHS certifies this rule will not have a significant economic impact on a substantial number of small entities. DHS received no comments challenging this certification.
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 rule. 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 the person listed in the
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 DHS, call 1–888–REG–FAIR (1–888–734–3247). DHS will not retaliate against small entities that question or complain about this rule or any policy or action of DHS.
All Departments are required to submit to OMB for review and approval, any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, Public Law 104–13, 109 Stat. 163 (1995), 44 U.S.C. 3501–3520. This information collection is covered under the existing Paperwork Reduction Act control number OMB No. 1653–0038 for the Student and Exchange Visitor Information System (SEVIS). This rule calls for no new collection of information under the Paperwork Reduction Act.
A rule has implications for federalism under Executive Order 13132,
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 Unfunded Mandates Reform 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 takings 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
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not a 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 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. This final rule 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 of 1995 (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 impracticable. Voluntary consensus standards are technical standards (
The U.S. Department of Homeland Security Management Directive (MD) 023–01 establishes procedures that DHS and its Components use to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321–4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500–1508. CEQ regulations allow federal agencies to establish categories of actions which do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD 023–01 lists the Categorical Exclusions that DHS has found to have no such effect. MD 023–01 app. A tbl.1.
For an action to be categorically excluded, MD 023–01 requires the action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential for a significant environmental effect. MD 023–01 app. A § 3.B(1)–(3).
Where it may be unclear whether the action meets these conditions, MD 023–01 requires the administrative record to reflect consideration of these conditions. MD 023–01 app. A § 3.B.
Here, the rule amends 8 CFR 214.2 and 214.3 relating to the U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program. This rule removes the regulatory cap of ten designated school officials per campus participating in the SEVP and permits certain dependents to enroll in less than a full course of study at SEVP-certified schools.
ICE has analyzed this rule under MD 023–01. ICE has made a preliminary determination that 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 clearly fits within the Categorical Exclusion found in MD 023–01, Appendix A, Table 1, number A3(d): “Promulgation of rules . . . that interpret or amend an existing regulation without changing its environmental effect.” This rule is not part of a larger action. This rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this rule is categorically excluded from further NEPA review.
Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
For the reasons discussed in the preamble, DHS amends Chapter I of Title 8 of the Code of Federal Regulations as follows:
8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477–1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
(f) * * *
(15) * * *
(i) * * *
(ii)
(
(B)
(C) An F–2 spouse and child violates his or her nonimmigrant status by enrolling in any study except as provided in paragraph (f)(15)(ii)(A) or (B) of this section.
(m) * * *
(17) * * *
(i) * * *
(ii)
(
(B)
(C) An M–2 spouse or child violates his or her nonimmigrant status by enrolling in any study except as provided in paragraph (m)(17)(ii)(A) or (B) of this section.
(l) * * *
(1) * * *
(iii) School officials may nominate as many DSOs in addition to PDSOs as they determine necessary to adequately provide recommendations to F and/or M students enrolled at the school regarding maintenance of nonimmigrant status and to support timely and complete recordkeeping and reporting to DHS, as required by this section. School officials must not permit a DSO or PDSO nominee access to SEVIS until DHS approves the nomination.
National Nuclear Security Administration, Department of Energy.
Final rule.
Section 161 k. of the Atomic Energy Act, as amended, empowers the Secretary of Energy (“the Secretary”) to authorize designated U.S. Department of Energy (DOE) employees and contractors to make an arrest without a warrant for certain crimes. Specifically, the Secretary may authorize the arrest of any individual who has committed a federal crime in the presence of a DOE protective force officer regarding the property of the United States in the custody of DOE or DOE contractors. The Secretary may also authorize the arrest of any individual who is reasonably believed to have committed or to be committing a felony regarding the property of the United States in the custody of DOE or DOE contractors. Pursuant to this authority, DOE adds misdemeanor and felony violations of Assaulting a Federal Officer to the enumerated criminal violations for which DOE protective force officers that are federal employees may execute an arrest without a warrant, as set forth in DOE regulations.
The rule is effective on April 29, 2015.
Mr. Bruce Diamond, U.S. Department of Energy, National Nuclear Security Administration, Mail Stop NNSA, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585–0103. Telephone: (202) 586–3700.
Email:
Section 161 k. of the Atomic Energy Act of 1954 (AEA), as amended by Pub. L. 105–394 (codified at 42 U.S.C. 2201(k)), empowers the Secretary of Energy (“the Secretary”) to authorize designated members, officer, employees, contractors, and subcontractors of the Department of Energy (DOE) to carry firearms while discharging their official duties. Section 161 k. further provides that the Secretary may authorize these designated officials to make an arrest without a warrant for any federal crime regarding the property of the United States in the custody of DOE or a DOE contractor and for any federal felony regarding the property of the United States in the custody of DOE or a DOE contractor that a designated official reasonably believes is being or has been committed. Lastly, section 161 k. authorizes the Secretary to issue guidelines, with the approval of the Attorney General, to implement this authority.
The Secretary has previously exercised this authority to sanction arrests without warrants for certain federal crimes through the regulation at
With this rule, DOE is establishing a new subsection within 10 CFR 1047.4(a)(1) to add 18 U.S.C. 111 (“Assaulting, resisting, or impeding certain officers or employees”) to the list of enumerated federal crimes for which DOE protective force officers that are federal employees
DOE believes that this change is necessary to ensure that DOE protective force officers that are federal employees may effectively protect United States property in the custody of DOE and DOE contractors. Authorizing DOE protective force officers that are federal employees to arrest individuals who impede the official duties of DOE protective force personnel allows them to immediately neutralize any individual who poses an existing and ongoing threat to both the integrity of the property of the United States and the ability of DOE to retain custody of such property.
The 18 U.S.C. 111 statute is similar in nature to many of the crimes for which the Secretary has previously delegated arrest authority by reference in 10 CFR 1047.4(a), including civil disorder, 18 U.S.C. 231, conspiracy, 18 U.S.C. 371, damage to or destruction of government property, 18 U.S.C. 2112, destruction of motor vehicles, 18 U.S.C. 33, unlawful use of explosives, 18 U.S.C. 844(f), and sabotage, 18 U.S.C. 2151, 2153–2156.
Pursuant to authority at 5 U.S.C. 553(b)(B), DOE finds good cause to waive the requirement to provide prior notice and an opportunity for public comment for this rulemaking as such procedures would be impracticable and contrary to the public interest. DOE believes that this change is necessary to ensure that Federal Agents may effectively protect ongoing shipments of nuclear weapons, nuclear components and special nuclear materials in the custody of DOE. Authorizing DOE protective force officers to detain or arrest individuals who impede the official duties of DOE protective force personnel allows them to act quickly to disrupt situations that pose an existing and ongoing threat to both the integrity of the property of the United States and the ability of DOE to retain custody of such property. The extraordinary sensitivity of the cargo in the custody of DOE warrants immediate action to reduce the risks to DOE Federal Agents' ability to carry out their protective function.
For the same reason, DOE finds good cause pursuant to authority at 5 U.S.C. 553(d)(3), to waive the requirement that this rule be delayed in effective date 30 days after the date of publication. As such, this rule will be effective April 29, 2015.
This rulemaking is not a “significant regulatory action” under section 3(f)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563 because it will not have an economic impact of $100 million, it does not create a serious inconsistency with other agency actions, will not materially impact any budget, and does not raise novel legal or policy issues. Accordingly, today's action was not subject to review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
Because this rule is not subject to the requirement that the agency provide prior notice and an opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act are inapplicable to this rulemaking. DOE notes that this final rule would empower DOE protective force officers that are federal employees to arrest individuals who violate 18 U.S.C. 111 when such a violation involves the property of the United States in the custody of DOE or a DOE contractor. This rule is a matter of law enforcement procedure and does not impose any requirement on any small entities.
This rulemaking imposes no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is
Pursuant to the National Environmental Policy Act of 1969, DOE has determined that this rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemakings “amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amending.” The arrest authority of DOE protective force officers has no significant impact on the environment. Therefore, DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this rule.
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal 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 a process of accountability to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. This publication is intended to put both States and the general public on notice of this final rule.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 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; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). 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 section 3(a) and section 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. Pub. L. 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result 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 “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 (Mar. 18, 1997). DOE's policy statement is 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. This rule would 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 would 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 Federal 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 today's 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 OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates 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, an agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that this regulatory action is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the final rule.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to 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 Office of the Secretary of Energy has approved the issuance of this final rule.
Government contracts, Law enforcement, Nuclear energy.
For the reasons set forth in the preamble, DOE is amending part 1047 of chapter X of title 10 of the Code of Federal Regulations, to read as set forth below:
Sec. 2201, Pub. L. 83–703, 68 Stat. 919 (42 U.S.C. 2011
The addition and revisions read as follows:
(a) * * *
(1) * * *
(iii)
(b)
(c)
Federal Deposit Insurance Corporation.
Final rule; correcting amendment.
The Federal Deposit Insurance Corporation (“FDIC”) published a final rule in the
The correction is effective April 29, 2015.
Patience Singleton, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898–6859; Jennifer Maree, Counsel, Legal Division, (202) 898–6543; Richard M. Schwartz, Counsel, Legal Division, (202) 898–7424.
The Federal Deposit Insurance Corporation (“FDIC”) is correcting a typographical error in the final rule that published in the
Banks and banking, Disclosure and reporting of CRA-related agreements, Savings associations.
For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation corrects 12 CFR chapter III by revising part 346 as set forth below:
12 U.S.C. 1831y.
(a)
(1) Make the covered agreement available to the public and the appropriate Federal banking agency; and
(2) File an annual report with the appropriate Federal banking agency concerning the covered agreement.
(b)
(1) State nonmember insured banks;
(2) Subsidiaries of state nonmember insured banks;
(3) Nongovernmental entities or persons that enter into covered agreements with any company listed in paragraphs (b)(1), (2), (4) and (5) of this section.
(4) State savings associations; and
(5) Subsidiaries of State savings associations.
(c)
(d)
(2) Examples in a paragraph illustrate only the issue described in the paragraph and do not illustrate any other issues that may arise in this part.
(a)
(1) The agreement is in writing.
(2) The parties to the agreement include—
(i) One or more insured depository institutions or affiliates of an insured depository institution; and
(ii) One or more nongovernmental entities or persons (referred to hereafter as NGEPs).
(3) The agreement provides for the insured depository institution or any affiliate to—
(i) Provide to one or more individuals or entities (whether or not parties to the agreement) cash payments, grants, or other consideration (except loans) that have an aggregate value of more than $10,000 in any calendar year; or
(ii) Make to one or more individuals or entities (whether or not parties to the agreement) loans that have an aggregate principal amount of more than $50,000 in any calendar year.
(4) The agreement is made pursuant to, or in connection with, the fulfillment of the Community Reinvestment Act of 1977 (12 U.S.C. 2901
(5) The agreement is with a NGEP that has had a CRA communication as described in § 346.3 prior to entering into the agreement.
(b)
A NGEP meets with an insured depository institution and states that the institution needs to make more community development investments in the NGEP's community. The NGEP and insured depository institution do not reach an agreement concerning the community development investments the institution should make in the community, and the parties do not reach any mutual arrangement or understanding. Two weeks later, the institution unilaterally issues a press release announcing that it has established a general goal of making $100 million of community development grants in low- and moderate-income neighborhoods served by the insured depository institution over the next 5 years. The NGEP is not identified in the press release. The press release is not a written arrangement or understanding.
A NGEP meets with an insured depository institution and states that the institution needs to offer new loan programs in the NGEP's community. The NGEP and the insured depository institution reach a mutual arrangement or understanding that the institution will provide additional loans in the NGEP's community. The institution tells the NGEP that it will issue a press release announcing the program. Later, the insured depository institution issues a press release announcing the loan program. The press release incorporates the key terms of the understanding reached between the NGEP and the insured depository institution. The written press release reflects the mutual arrangement or understanding of the NGEP and the insured depository institution and is, therefore, a written arrangement or understanding.
An NGEP sends a letter to an insured depository institution requesting that the institution provide a $15,000 grant to the NGEP. The insured depository institution responds in writing and agrees to provide the grant in connection with its annual grant program. The exchange of letters constitutes a written arrangement or understanding.
(c)
(1) Any individual loan that is secured by real estate; or
(2) Any specific contract or commitment for a loan or extension of credit to an individual, business, farm, or other entity, or group of such individuals or entities if—
(i) The funds are loaned at rates that are not substantially below market rates; and
(ii) The loan application or other loan documentation does not indicate that the borrower intends or is authorized to use the borrowed funds to make a loan or extension of credit to one or more third parties.
(d)
An insured depository institution provides an organization with a $1 million loan that is documented in writing and is secured by real estate owned or to-be-acquired by the organization. The agreement is an individual mortgage loan and is exempt from coverage under paragraph (c)(1) of this section, regardless of the interest rate on the loan or whether the organization intends or is authorized to re-loan the funds to a third party.
An insured depository institution commits to provide a $500,000 line of credit to a small business that is documented by a written agreement. The loan is made at rates that are within the range of rates offered by the institution to similarly situated small businesses in the market and the loan documentation does not indicate that the small business intends or is authorized to re-lend the borrowed funds. The agreement is exempt from coverage under paragraph (c)(2) of this section.
An insured depository institution offers small business loans that are guaranteed by the Small Business Administration (SBA). A small business obtains a $75,000 loan, documented in writing, from the institution under the institution's SBA loan program. The loan documentation does not indicate that the borrower intends or is authorized to re-lend the funds. Although the rate charged on the loan is well below that charged by the institution on commercial loans, the rate is within the range of rates that the institution would charge a similarly situated small business for a similar loan under the SBA loan program. Accordingly, the loan is not made at substantially below market rates and is exempt from coverage under paragraph (c)(2) of this section.
A bank holding company enters into a written agreement with a community development organization that provides that insured depository institutions owned by the bank holding company will make $250 million in small business loans in the community over the next 5 years. The written agreement is not a specific contract or commitment for a loan or an extension of credit and, thus, is not exempt from coverage under paragraph (c)(2) of this section: Each small business loan made by the insured depository institution pursuant to this general commitment would, however, be exempt from coverage if the loan is made at rates that are not substantially below market rates and the loan documentation does not indicate that the borrower intended or was authorized to re-lend the funds.
(e)
(f)
(a)
(1) Any written or oral comment or testimony provided to a Federal banking agency concerning the adequacy of the performance under the CRA of the insured depository institution, any affiliated insured depository institution, or any CRA affiliate.
(2) Any written comment submitted to the insured depository institution that discusses the adequacy of the performance under the CRA of the institution and must be included in the institution's CRA public file.
(3) Any discussion or other contact with the insured depository institution or any affiliate about—
(i) Providing (or refraining from providing) written or oral comments or testimony to any Federal banking agency concerning the adequacy of the performance under the CRA of the insured depository institution, any affiliated insured depository institution, or any CRA affiliate;
(ii) Providing (or refraining from providing) written comments to the insured depository institution that concern the adequacy of the institution's performance under the CRA and must be included in the institution's CRA public file; or
(iii) The adequacy of the performance under the CRA of the insured depository institution, any affiliated insured depository institution, or any CRA affiliate.
(b)
(2)
(i) More than 3 years before the parties entered into the agreement, in the case of any written communication;
(ii) More than 3 years before the parties entered into the agreement, in the case of any oral communication in which the NGEP discusses providing (or refraining from providing) comments or testimony to a Federal banking agency or written comments that must be included in the institution's CRA public file in connection with a request to, or agreement by, the institution or affiliate to take (or refrain from taking) any action that is in fulfillment of the CRA; or
(iii) More than 1 year before the parties entered into the agreement, in the case of any other oral communication not described in paragraph (b)(2)(ii) of this section.
(3)
(ii)
(A) An employee who approves, directs, authorizes, or negotiates the agreement with the NGEP; or
(B) An employee designated with responsibility for compliance with the CRA or executive officer if the employee or executive officer knows that the institution or affiliate is negotiating, intends to negotiate, or has been informed by the NGEP that it expects to request that the institution or affiliate negotiate an agreement with the NGEP.
(iii)
(A) Any testimony provided to a Federal banking agency at a public meeting or hearing;
(B) Any comment submitted to a Federal banking agency that is conveyed in writing by the agency to the insured depository institution or affiliate; and
(C) Any written comment submitted to the insured depository institution that must be and is included in the institution's CRA public file.
(4)
(i) A director, employee, or member of the NGEP who approves, directs, authorizes, or negotiates the agreement with the insured depository institution or affiliate;
(ii) A person who functions as an executive officer of the NGEP and who knows that the NGEP is negotiating or intends to negotiate an agreement with the insured depository institution or affiliate; or
(iii) Where the NGEP is an individual, the NGEP.
(c)
A NGEP files a written comment with a Federal banking agency that states than an insured depository institution successfully addresses the credit needs of its community. The written comment is in response to a general request from the agency for comments on an application of the insured depository institution to open a new branch and a copy of the comment is provided to the institution.
A NGEP meets with an executive officer of an insured depository institution and states that the institution must improve its CRA performance.
A NGEP meets with an executive officer of an insured depository institution and states that the institution needs to make more mortgage loans in low- and moderate-income neighborhoods in its community.
A bank holding company files an application with a Federal banking agency to acquire an insured depository institution. Two weeks later, the NGEP meets with an executive officer of the bank holding company to discuss the adequacy of the performance under the CRA of the target insured depository institution. The insured depository institution was an affiliate of the bank holding company at the time the NGEP met with the target institution. (See § 346.11(a).) Accordingly, the NGEP had a CRA communication with an affiliate of the bank holding company.
(2)
A NGEP provides to a Federal banking agency comments or testimony concerning an insured depository institution or affiliate in response to a direct request by the agency for comments or testimony from that NGEP. Direct requests for comments or testimony do not include a general invitation by a Federal banking agency for comments or testimony from the public in connection with a CRA performance evaluation of, or application for a deposit facility (as defined in section 803 of the CRA (12 U.S.C. 2902(3)) by, an insured depository institution or an application by a company to acquire an insured depository institution.
A NGEP makes a statement concerning an insured depository institution or affiliate at a widely attended conference or seminar regarding a general topic. A public or private meeting, public hearing, or other meeting regarding one or more specific institutions, affiliates or transactions involving an application for a deposit facility is not considered a widely attended conference or seminar.
A NGEP, such as a civil rights group, community group providing housing and other services in low- and moderate-income neighborhoods, veterans organization, community theater group, or youth organization, sends a fundraising letter to insured depository institutions and to other businesses in its community. The letter encourages all businesses in the community to meet their obligation to assist in making the local community a better place to live and work by supporting the fundraising efforts of the NGEP.
A NGEP discusses with an insured depository institution or affiliate whether particular loans, services, investments, community development activities, or other activities are generally eligible for consideration by a Federal banking agency under the CRA. The NGEP and insured depository institution or affiliate do not discuss the adequacy of the CRA performance of the insured depository institution or affiliate.
A NGEP engaged in the sale or purchase of loans in the secondary market sends a general offering circular to financial institutions offering to sell or purchase a portfolio of loans. An insured depository institution that receives the offering circular discusses with the NGEP the types of loans included in the loan pool, whether such loans are generally eligible for consideration under the CRA, and which loans are made to borrowers in the institution's local community. The NGEP and insured depository institution do not discuss the adequacy of the institution's CRA performance.
(d)
(i) The NGEP has not had a CRA communication; and
(ii) No representative of the NGEP identified in paragraph (b)(4) of this section has knowledge at the time of the agreement that another NGEP that is a party to the agreement has had a CRA communication.
(2) An insured depository institution or affiliate that is a party to a covered agreement that involves multiple insured depository institutions or affiliates is not required to comply with the disclosure and annual reporting requirements in §§ 346.6 and 346.7 if—
(i) No NGEP that is a party to the agreement has had a CRA communication concerning the insured depository institution or any affiliate; and
(ii) No representative of the insured depository institution or any affiliate identified in paragraph (b)(3) of this section has knowledge at the time of the agreement that an NGEP that is a party to the agreement has had a CRA communication concerning any other insured depository institution or affiliate that is a party to the agreement.
(a)
(1)
(2)
(i) Home-purchase, home-improvement, small business, small farm, community development, and consumer lending, as described in 12 CFR 345.22, including loan purchases, loan commitments, and letters of credit;
(ii) Making investments, deposits, or grants, or acquiring membership shares, that have as their primary purpose community development, as described in 12 CFR 345.23;
(iii) Delivering retail banking services as described in 12 CFR 345.24(d);
(iv) Providing community development services, as described in 12 CFR 345.24(e);
(v) In the case of a wholesale or limited-purpose insured depository institution, community development lending, including originating and purchasing loans and making loan commitments and letters of credit, making qualified investments, or providing community development services, as described in 12 CFR 345.25(c);
(vi) In the case of a small insured depository institution, any lending or other activity described in 12 CFR 345.26(a); or
(vii) In the case of an insured depository institution that is evaluated on the basis of a strategic plan, any element of the strategic plan, as described in 12 CFR 345.27(f).
(b)
The following rules must be applied in determining whether an agreement is a covered agreement under § 346.2.
(a)
(1) Are entered into with the same NGEP;
(2) Were entered into within the same 12-month period; and
(3) Are each in fulfillment of the CRA.
(b)
(a)
(b)
(2)
(3)
(i) The names and addresses of the parties to the agreement;
(ii) The amount of any payments, fees, loans, or other consideration to be made or provided by any party to the agreement;
(iii) Any description of how the funds or other resources provided under the agreement are to be used;
(iv) The term of the agreement (if the agreement establishes a term); and
(v) Any other information that the relevant supervisory agency determines
(4)
(5)
(6)
(7)
(c)
(i) A complete copy of the agreement; and
(ii) In the event the NGEP proposes the withholding of any information contained in the agreement in accordance with paragraph (b)(2) of this section, a public version of the agreement that excludes such information and an explanation justifying the exclusions. Any public version must include the information described in paragraph (b)(3) of this section.
(2) The obligation of a NGEP to provide a covered agreement to the relevant supervisory agency terminates 12 months after the end of the term of the covered agreement.
(d)
(i)(A) A complete copy of each covered agreement entered into by the insured depository institution or affiliate during the calendar quarter; and
(B) In the event the institution or affiliate proposes the withholding of any information contained in the agreement in accordance with paragraph (b)(2) of this section, a public version of the agreement that excludes such information (other than any information described in paragraph (b)(3) of this section) and an explanation justifying the exclusions; or
(ii) A list of all covered agreements entered into by the insured depository institution or affiliate during the calendar quarter that contains—
(A) The name and address of each insured depository institution or affiliate that is a party to the agreement;
(B) The name and address of each NGEP that is a party to the agreement;
(C) The date the agreement was entered into;
(D) The estimated total value of all payments, fees, loans, and other consideration to be provided by the institution or any affiliate of the institution under the agreement; and
(E) The date the agreement terminates.
(2)
(ii) The obligation of an insured depository institution or affiliate to provide a covered agreement to the relevant supervisory agency under this paragraph (d)(2) terminates 36 months after the end of the term of the agreement.
(3)
(a)
(b)
(c)
(2)
(i) Provides or receives any payments, fees, or loans under the covered agreement that must be reported under paragraphs (e)(1)(iii) and (iv) of this section; or
(ii) Has data to report on loans, investments, and services provided by a party to the covered agreement under the covered agreement under paragraph (e)(1)(vi) of this section.
(d)
(i) The name and mailing address of the NGEP filing the report;
(ii) Information sufficient to identify the covered agreement for which the annual report is being filed, such as by providing the names of the parties to the agreement and the date the agreement was entered into or by providing a copy of the agreement;
(iii) The amount of funds or resources received under the covered agreement during the fiscal year; and
(iv) A detailed, itemized list of how any funds or resources received by the NGEP under the covered agreement were used during the fiscal year, including the total amount used for—
(A) Compensation of officers, directors, and employees;
(B) Administrative expenses;
(C) Travel expenses;
(D) Entertainment expenses;
(E) Payment of consulting and professional fees; and
(F) Other expenses and uses (specify expense or use).
(2)
(A) A brief description of each specific purpose for which the funds or other resources were used; and
(B) The amount of funds or resources used during the fiscal year for each specific purpose.
(ii)
(3)
(4)
(5)
A NGEP receives an unrestricted grant of $15,000 under a covered agreement, includes the funds in its general operating budget, and uses the funds during its fiscal year. The NGEP's annual report for the fiscal year must provide the name and mailing address of the NGEP, information sufficient to identify the covered agreement, and state that the NGEP received $15,000 during the fiscal year. The report must also indicate the total expenditures made by the NGEP during the fiscal year for compensation, administrative expenses, travel expenses, entertainment expenses, consulting and professional fees, and other expenses and uses. The NGEP's annual report may provide this information by submitting an Internal Revenue Service Form 990 that includes the required information. If the Internal Revenue Service Form does not include information for all of the required categories listed in this part, the NGEP must report the total expenditures in the remaining categories either by providing that information directly or by providing another form or report that includes the required information.
An organization receives $15,000 from an insured depository institution under a covered agreement and allocates and uses the $15,000 during the fiscal year to purchase computer equipment to support its functions. The organization's annual report must include the name and address of the organization, information sufficient to identify the agreement, and a statement that the organization received $15,000 during the year. In addition, since the organization allocated and used the funds for a specific purpose that is more narrow and limited than the categories of expenses included in the detailed, itemized list of expenses, the organization would have the option of providing either the total amount it used during the year for each category of expenses included in paragraph (d)(1)(iv) of this section, or a statement that it used the $15,000 to purchase computer equipment and a brief description of the equipment purchased.
A community group receives $50,000 from an insured depository institution under a covered agreement. During its fiscal year, the community group specifically allocates and uses $5,000 of the funds to pay for a particular business trip and uses the remaining $45,000 for general operating expenses. The group's annual report for the fiscal year must include the name and address of the group, information sufficient to identify the agreement, and a statement that the group received $50,000. Because the group did not allocate and use all of the funds for a specific purpose, the group's annual report must provide the total amount of funds it used during the year for each category of expenses included in paragraph (d)(1)(iv) of this section. The group's annual report also could state that it used $5,000 for a particular business trip and include a brief description of the trip.
A community development organization is a party to two separate covered agreements with two unaffiliated insured depository institutions. Under each agreement, the organization receives $15,000 during its fiscal year and uses the funds to support its activities during that year. If the organization elects to file a consolidated annual report, the consolidated report must identify the organization and the two covered agreements, state that the organization received $15,000 during the fiscal year under each agreement, and provide the total amount that the organization used during the year for each category of expenses included in paragraph (d)(1)(iv) of this section.
(e)
(i) The name and principal place of business of the insured depository institution or affiliate filing the report;
(ii) Information sufficient to identify the covered agreement for which the annual report is being filed, such as by providing the names of the parties to the agreement and the date the agreement was entered into or by providing a copy of the agreement;
(iii) The aggregate amount of payments, aggregate amount of fees, and aggregate amount of loans provided by the insured depository institution or affiliate under the covered agreement to any other party to the agreement during the fiscal year;
(iv) The aggregate amount of payments, aggregate amount of fees, and aggregate amount of loans received by the insured depository institution or affiliate under the covered agreement from any other party to the agreement during the fiscal year;
(v) A general description of the terms and conditions of any payments, fees, or loans reported under paragraphs (e)(1)(iii) and (iv) of this section, or, in the event such terms and conditions are set forth—
(A) In the covered agreement, a statement identifying the covered agreement and the date the agreement (or a list identifying the agreement) was filed with the relevant supervisory agency; or
(B) In a previous annual report filed by the insured depository institution or affiliate, a statement identifying the date the report was filed with the relevant supervisory agency; and
(vi) The aggregate amount and number of loans, aggregate amount and number of investments, and aggregate amount of services provided under the covered agreement to any individual or entity not a party to the agreement—
(A) By the insured depository institution or affiliate during its fiscal year; and
(B) By any other party to the agreement, unless such information is not known to the insured depository institution or affiliate filing the report or such information is or will be contained in the annual report filed by another party under this section.
(2)
(ii)
(iii)
(f)
(2)
(A) A copy of the NGEP's annual report required under paragraph (d) of this section for the fiscal year; and
(B) Written instructions that the insured depository institution or affiliate promptly forward the annual report to the relevant supervisory agency or agencies on behalf of the NGEP.
(ii) An insured depository institution or affiliate that receives an annual report from a NGEP pursuant to paragraph (f)(2)(i) of this section must file the report with the relevant supervisory agency or agencies on behalf of the NGEP within 30 days.
The FDIC will make covered agreements and annual reports available to the public in accordance with the Freedom of Information Act (5 U.S.C. 552
(a)
(2) If the NGEP does not comply within the time period established by the FDIC, the agreement shall thereafter be unenforceable by that NGEP by operation of section 48 of the Federal Deposit Insurance Act (12 U.S.C. 1831y).
(3) The FDIC may assist any insured depository institution or affiliate that is a party to a covered agreement that is unenforceable by a NGEP by operation of section 48 of the Federal Deposit Insurance Act (12 U.S.C. 1831y) in identifying a successor to assume the NGEP's responsibilities under the agreement.
(b)
(1) Order the individual to disgorge the diverted funds or resources received under the agreement.
(2) Prohibit the individual from being a party to any covered agreement for a period not to exceed 10 years.
(c)
(d)
(e)
(a)
(2)
(ii) Each insured depository institution or affiliate that was a party to the agreement must, by June 30, 2001, provide each relevant supervisory agency either—
(A) A copy of the agreement under § 346.6(d)(1)(i); or
(B) The information described in § 346.6(d)(1)(ii) for each agreement.
(b)
(1) Each relevant supervisory agency; or
(2) In the case of a NGEP, to an insured depository institution or affiliate that is a party to the agreement in accordance with § 346.7(f)(2).
(a)
(1) Any company that controls, is controlled by, or is under common control with another company; and
(2) For the purpose of determining whether an agreement is a covered agreement under § 346.2, an “affiliate” includes any company that would be under common control or merged with another company on consummation of any transaction pending before a Federal banking agency at the time—
(i) The parties enter into the agreement; and
(ii) The NGEP that is a party to the agreement makes a CRA communication, as described in § 346.3.
(b)
(c)
(d)
(e)
(f)
(g)
(2) Any NGEP, insured depository institution, or affiliate that has a fiscal year may elect to have the calendar year be its fiscal year for purposes of this part.
(h)
(i)
(j)
(2)
(i) The United States government, a state government, a unit of local government (including a county, city, town, township, parish, village, or other general-purpose subdivision of a state) or an Indian tribe or tribal organization established under Federal, state or Indian tribal law (including the Department of Hawaiian Home Lands), or a department, agency, or instrumentality of any such entity;
(ii) A federally-chartered public corporation that receives Federal funds appropriated specifically for that corporation;
(iii) An insured depository institution or affiliate of an insured depository institution; or
(iv) An officer, director, employee, or representative (acting in his or her capacity as an officer, director, employee, or representative) of an entity listed in paragraphs (j)(2)(i) through (iii) of this section.
(k)
(l)
(1) Each insured depository institution (or subsidiary thereof) that is a party to the covered agreement;
(2) Each insured depository institution (or subsidiary thereof) or CRA affiliate that makes payments or loans or provides services that are subject to the covered agreement; and
(3) Any company (other than an insured depository institution or subsidiary thereof) that is a party to the covered agreement.
(m)
(n)
By order of the Board of Directors.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) 99–01–05 R1, which applied to certain aircraft equipped with wing lift struts. AD 99–01–05 R1 required repetitively inspecting the wing lift struts for corrosion; repetitively inspecting the wing lift strut forks for cracks; replacing any corroded wing lift strut; replacing any cracked wing lift strut fork; and repetitively replacing the wing lift strut forks at a specified time for certain airplanes. This new AD retains all requirements of AD 99–01–05R1 and adds additional airplane models to the Applicability section. This AD was prompted by a report that additional Piper Aircraft, Inc. model airplanes should be added to the Applicability section. We are issuing this AD to correct the unsafe condition on these products.
This AD is effective June 3, 2015.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of February 8, 1999 (63 FR 72132, December 31, 1998).
For service information identified in this AD, contact Piper Aircraft, Inc., Customer Services, 2926 Piper Drive, Vero Beach, Florida 32960; telephone: (772) 567–4361; Internet:
You may examine the AD docket on the Internet at
For Piper Aircraft, Inc. airplanes, contact: Gregory “Keith” Noles, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474–5551; fax: (404) 474–5606; email:
For FS 2000 Corp, FS 2001 Corp, FS 2002 Corporation, and FS 2003 Corporation airplanes, contact: Jeff Morfitt, Aerospace Engineer, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, Washington 98057; phone: (425) 917–6405; fax: (245) 917–6590; email:
For LAVIA ARGENTINA S.A. (LAVIASA) airplanes, contact: S.M. Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4145; fax: (816) 329–4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 99–01–05 R1, Amendment 39–17688 (78 FR 73997, December 10, 2013; corrected 78 FR 79599, December 31, 2013), (“AD 99–01–05 R1”). AD 99–01–05 R1 applied to certain aircraft equipped with wing lift struts. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 78729, December 31, 2014) and the FAA's response to each comment.
Joe Barr stated that LAVIA ARGENTINA S.A. (LAVIASA) Models PA–25, PA–24–235, and PA–25–260 airplanes should be exempt from the requirement in paragraph (m) of the proposed AD to install a “NO STEP” placard on each wing lift strut.
Joe Barr stated that the LAVIASA PA–25 series airplanes are the only low wing monoplane aircraft of all the affected airplane models listed in the proposed AD. The LAVIASA PA–25 series airplanes have a wing support strut that is located on top of, rather than below, the wing. The upper end of the wing lift strut attaches to the top of the fuselage and the bottom end of the strut attaches to the top of the wing at the midpoint region. There is no safe wing walk surface area on the top of the wing that extends more than a few inches from the wing root to walk or stand at this mid-wing station. No one could possibly step on or stand on the strut at or near this wing location without significant damage to the adjacent fabric covered wing structure itself. Therefore, it is illogical and irrelevant to have a “NO STEP” placard of any kind at the mentioned location on the wing lift struts of the LAVIASA PA–25 series airplanes. This requirement was clearly meant for high wing aircraft only.
We agree with the commenter. The intent of the placard is to prevent damage from stepping on the lower end of the strut. This would not occur on LAVIASA Models PA–25, PA–24–235, and PA–25–260 airplanes due to the configuration discussed above.
We have changed paragraph (m) in this AD to exclude LAVIASA Models PA–25, PA–24–235, and PA–25–260 airplanes from this requirement.
Mike Teets stated that he wants the option of using a different method for reworking a non-sealed wing lift strut to a sealed condition for Piper Aircraft Inc. Model J–3 airplanes.
Mike Teets stated that he has been inspecting the wing life struts on his Piper Aircraft, Inc. Model J–3 airplane for years and has developed a method for “reoperating” an unsealed wing life strut to a sealed condition, which would remove the need for the repetitive inspections and thereby reduce costs associated with the requirements of the proposed AD.
We do not agree with the commenter. The commenter's request pertains to only one model airplane affected by this AD and addresses only a portion of the requirements of the proposed AD. The commenter's proposal would be more appropriately addressed by requesting an alternative method of compliance following the procedures specified in paragraph (n) of this AD.
We have not changed this AD based on this comment.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and any minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 78729, December 31, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 78729, December 31, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Piper Aircraft Corporation Mandatory Service Bulletin No. 528D, dated October 19, 1990, Piper Aircraft Corporation Mandatory Service Bulletin No. 910A, dated October 10, 1989; F. Atlee Dodge Aircraft Services, Inc. Installation Instructions No. 3233–I for Modified Piper Wing Lift Struts Supplemental Type Certificate (STC) SA4635NM, dated February 1, 1991; and Jensen Aircraft Installation Instructions for Modified Lift Strut Fittings, which incorporates pages 1 and 5, Original Issue, dated July 15, 1983; pages 2, 4, and 6, Revision No. 1, dated March 30, 1984; and pages a and 3, Revision No. 2, dated April 20, 1984. The service information describes procedures for wing lift strut assembly inspection and replacement. This information is reasonably available at
We estimate that this AD affects 22,200 airplanes of U.S. registry.
We estimate the following costs to comply with this AD. However, the only difference in the costs presented below and the costs associated with AD 99–01–05 R1 is addition of 200 airplanes to the applicability:
We estimate the following costs to do any necessary replacements that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:
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 have determined that 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.
For the reasons discussed above, I certify that this AD:
(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 June 3, 2015.
This AD supersedes AD 99–01–05 R1, Amendment 39–17688 (78 FR 73997, December 10, 2013; corrected 78 FR 79599, December 31, 2013) “AD 99–01–05 R1”. AD 99–26–19 R1, Amendment 39–17681 (78 FR 76040, December 16, 2013), also relates to the subject of this AD.
This AD applies to the following airplanes identified in Table 1 and Table 2 to paragraph (c) of this AD, that are equipped with wing lift struts, including airplanes commonly known as a “Clipped Wing Cub,” which modify the airplane primarily by removing approximately 40 inches of the inboard portion of each wing; and are certificated in any category.
(1) Based on optional engine installations some airplanes may have been re-identified or registered with another model that is not listed in the type certificate data sheet (TCDS). For instance, Piper Model J3C–65 airplanes are type certificated on Type Certificate Data Sheet (TCDS) A–691 but may also have been re-identified or registered as a Model J3C–115, J3F–50, J3C–75, J3C–75D, J3C–75S, J3L–75, J3C–85, J3C–85S, J3C–90, J3F–90, J3F–90S, J3C–100, or J3–L4J airplane.
(2) The airplane model number on the affected airplane or its registry may or may not contain the dash (-),
There is a serial number overlap between the Piper PA–18 series airplanes and the Piper Model PA–19 (Army L–18C) airplanes listed in AD 99–01–05 R1. Serial numbers 18–1 through 18–7632 listed for the PA–18 series airplanes are also now listed under Model PA–19 (Army L–18C) and Model PA–19S.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
(1) The subject of this AD was originally prompted by reports of corrosion damage found on the wing lift struts. AD 99–01–05 R1 is being superseded to include certain Piper Aircraft, Inc. Models J–3, J3C–65 (Army L4A), J3P, J4B, and J4F airplanes that were inadvertently omitted from the applicability, paragraph (c), of AD 99–01–05 (64 FR 72524, December 28, 1999) “99–01–05” and subsequently AD 99–01–05 R1.
There is a serial number overlap between the Piper PA–18 series airplanes and the Piper Model PA–19 (Army L–18C) airplanes listed in AD 99–01–05 R1. Serial numbers 18–1 through 18–7632 listed for the PA–18 series airplanes are also now listed under Model PA–19 (Army L–18C) and Model PA–19S.
(2) AD 99–01–05 R1 was issued to clarify the FAA's intention that if a sealed wing lift strut assembly is installed as a replacement part, the repetitive inspection requirement is terminated only if the seal is never improperly broken. If the seal is improperly broken, then that wing lift strut becomes subject to continued repetitive inspections. We did not intend to promote drilling holes into or otherwise unsealing a sealed strut. This AD retains all the actions required in AD 99–01–05 R1. There are no new requirements in this AD except for the addition of certain model airplanes to the applicability, paragraph (c) of this AD.
(3) We are issuing this AD to detect and correct corrosion and cracking on the front and rear wing lift struts and forks, which could cause the wing lift strut to fail. This failure could result in the wing separating from the airplane.
Unless already done (compliance with AD 99–01–05 R1 and AD 93–10–06, Amendment 39–8586 (58 FR 29965, May 25, 1993) “AD 93–010–06”), do the following actions within the compliance times specified in paragraphs (g) through (m) of this AD, including all subparagraphs. Properly unsealing and resealing a sealed wing lift strut is still considered a terminating action for the repetitive inspection requirements of this AD as long as all appropriate regulations and issues are considered, such as static strength, fatigue, material effects, immediate and long-term (internal and external) corrosion protection, resealing methods, etc. Current FAA regulations in 14 CFR 43.13(b) specify that maintenance performed will result in the part's condition to be at least equal to its original or properly altered condition. Any maintenance actions that unseal a sealed wing lift strut should be coordinated with the Atlanta Aircraft Certification Office (ACO) through the local airworthiness authority (
(1)
(2)
(1) Inspect each wing lift strut for corrosion and perceptible dents following Piper MSB No. 528D, dated October 19, 1990, or Piper MSB No. 910A, dated October 10, 1989, as applicable.
(i)
(ii)
(2) Inspect each wing lift strut for corrosion following the procedures in the Appendix to this AD. This inspection must be done by a Level 2 or Level 3 inspector certified using the guidelines established by the American Society for Non-destructive Testing or the “Military Standard for Nondestructive Testing Personnel Qualification and Certification” (MIL–STD–410E).
(i)
(ii)
Before further flight after the removal required in paragraph (g) of this AD, replace the wing lift struts following one of the options in paragraph (i)(1), (i)(2), or (i)(3) of this AD, including all subparagraphs, or inspect each wing lift strut following paragraph (h)(1) or (h)(2) of this AD.
(1) Install original equipment manufacturer (OEM) part number wing lift struts (or FAA-approved equivalent part numbers) that have been inspected following the procedures in either paragraph (h)(1) or (h)(2) of this AD, including all subparagraphs, and are found to be airworthy. Do the installations following Piper MSB No. 528D, dated October 19, 1990, or Piper MSB No. 910A, dated October 10, 1989, as applicable. Repetitively thereafter inspect the newly installed wing lift struts at intervals not to exceed 24 calendar months following the procedures in either paragraph (h)(1) or (h)(2) of this AD, including all subparagraphs.
(2) Install new sealed wing lift strut assemblies (or FAA-approved equivalent part numbers) (these sealed wing lift strut assemblies also include the wing lift strut forks) following Piper MSB No. 528D, dated October 19, 1990, and Piper MSB No. 910A, dated October 10, 1989, as applicable. Installing one of these new sealed wing lift strut assemblies terminates the repetitive inspection requirements in paragraphs (h)(1) and (h)(2) of this AD, and the wing lift strut fork removal, inspection, and replacement requirement in paragraphs (j) and (k) of this AD, including all subparagraphs, for that wing lift strut assembly.
(3) Install F. Atlee Dodge wing lift strut assemblies following F. Atlee Dodge Aircraft Services, Inc. Installation Instructions No. 3233–I for Modified Piper Wing Lift Struts Supplemental Type Certificate (STC) SA4635NM, dated February 1, 1991. Repetitively thereafter inspect the newly installed wing lift struts at intervals not to exceed 60 calendar months following the procedures in paragraph (h)(1) or (h)(2) of this AD, including all subparagraphs.
(1)
(2)
(1)
(2)
(3)
Before further flight after the removal required in paragraph (j) of this AD, replace the wing lift strut forks following one of the options in paragraph (l)(1), (l)(2), (l)(3), or (l)(4) of this AD, including all subparagraphs, or inspect the wing lift strut forks following paragraph (k) of this AD, including all subparagraphs.
(1) Install new OEM part number wing lift strut forks of the same part numbers of the existing part (or FAA-approved equivalent part numbers) that were manufactured with rolled threads. Wing lift strut forks manufactured with machine (cut) threads are not to be used. Do the installations following Piper MSB No. 528D, dated October 19, 1990, or Piper MSB No. 910A, dated October 10, 1989, as applicable. Repetitively thereafter inspect and replace the newly installed wing lift strut forks at intervals not to exceed 500 hours TIS following the procedures specified in paragraph (k) of this AD, including all subparagraphs.
(2) Install new sealed wing lift strut assemblies (or FAA-approved equivalent part numbers) (these sealed wing lift strut assemblies also include the wing lift strut forks) following Piper MSB No. 528D, dated October 19, 1990, and Piper MSB No. 910A, dated October 10, 1989, as applicable. This installation may have already been done through the option specified in paragraph (i)(2) of this AD. Installing one of these new sealed wing lift strut assemblies terminates the repetitive inspection requirements in paragraphs (h)(1) and (h)(2) of this AD, and the wing lift strut fork removal, inspection, and replacement requirements in paragraphs (j) and (k) of this AD, including all subparagraphs, for that wing lift strut assembly.
(3)
(i) For Models PA–12 and PA–12S airplanes: STC SA1583NM, which can be found on the Internet at
(ii) For Model PA–14 airplanes: STC SA1584NM, which can be found on the Internet at
(iii) For Models PA–16 and PA–16S airplanes: STC SA1590NM, which can be found on the Internet at
(iv) For Models PA–18, PA–18S, PA–18 “105” (Special), PA–18S “105” (Special), PA–18A, PA–18 “125” (Army L–21A), PA–18S “125”, PA–18AS “125”, PA–18 “135” (Army L–21B), PA–18A “135”, PA–18S “135”, PA–18AS “135”, PA–18 “150”, PA–18A “150”, PA–18S “150”, PA–18AS “150”, PA–18A (Restricted), PA–18A “135” (Restricted), and PA–18A “150” (Restricted) airplanes: STC SA1585NM, which can be found on the Internet at
(v) For Models PA–20, PA–20S, PA–20 “115”, PA–20S “115”, PA–20 “135”, and PA–20S “135” airplanes: STC SA1586NM, which can be found on the Internet at
(vi) For Model PA–22 airplanes: STC SA1587NM, which can be found on the Internet at
(4) Install F. Atlee Dodge wing lift strut assemblies following F. Atlee Dodge Installation Instructions No. 3233–I for Modified Piper Wing Lift Struts (STC SA4635NM), dated February 1, 1991. This installation may have already been done in accordance paragraph (i)(3) of this AD. Installing these wing lift strut assemblies terminates the repetitive inspection requirements of this AD for the wing lift strut fork only. Repetitively inspect the wing lift struts as specified in paragraph (h)(1) or (h)(2) of this AD, including all subparagraphs.
(1)
(i) Install “NO STEP” decal, Piper (P/N) 80944–02, on each wing lift strut approximately 6 inches from the bottom of the wing lift strut in a way that the letters can be read when entering and exiting the airplane; or
(ii) Paint the words “NO STEP” approximately 6 inches from the bottom of the wing lift strut in a way that the letters can be read when entering and exiting the airplane. Use a minimum of 1-inch letters using a color that contrasts with the color of the airplane.
(2)
(i) Install “NO STEP” decal, Piper (P/N) 80944–02, on each wing lift strut approximately 6 inches from the bottom of the wing lift strut in a way that the letters can be read when entering and exiting the airplane; or
(ii) Paint the words “NO STEP” approximately 6 inches from the bottom of the wing lift strut in a way that the letters can be read when entering and exiting the airplane. Use a minimum of 1-inch letters using a color that contrasts with the color of the airplane.
(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD related to Piper Aircraft, Inc. airplanes; the Manager, Seattle ACO, FAA has the authority to approve AMOCs for this AD related to FS 2000 Corp, FS 2001 Corp, FS 2002 Corporation, and FS 2003 Corporation airplanes; and the Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD related to LAVIA ARGENTINA S.A. (LAVIASA) airplanes, if requested using the procedures found in 14 CFR 39.19. In
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved for AD 93–10–06, AD 99–01–05, and AD 99–01–05 R1, are approved as AMOCs for this AD.
(1) For more information about this AD related to Piper Aircraft, Inc. airplanes, contact: Gregory “Keith” Noles, Aerospace Engineer, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, Georgia 30337; phone: (404) 474–5551; fax: (404) 474–5606; email:
(2) For more information about this AD related to FS 2000 Corp, FS 2001 Corp, FS 2002 Corporation, and FS 2003 Corporation airplanes, contact: Jeff Morfitt, Aerospace Engineer, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, Washington 98057; phone: (425) 917–6405; fax: (245) 917–6590; email:
(3) For more information about this AD related to LAVIA ARGENTINA S.A. (LAVIASA) airplanes, contact: S.M. Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4145; fax: (816) 329–4090; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on February 8, 1999 (63 FR 72132, December 31, 1998).
(i) Piper Aircraft Corporation Mandatory Service Bulletin No. 528D, dated October 19, 1990.
(ii) Piper Aircraft Corporation Mandatory Service Bulletin No. 910A, dated October 10, 1989.
(iii) F. Atlee Dodge Aircraft Services, Inc. Installation Instructions No. 3233–I for Modified Piper Wing Lift Struts Supplemental Type Certificate (STC) SA4635NM, dated February 1, 1991.
(iv) Jensen Aircraft Installation Instructions for Modified Lift Strut Fittings, which incorporates pages 1 and 5, Original Issue, dated July 15, 1983; pages 2, 4, and 6, Revision No. 1, dated March 30, 1984; and pages a and 3, Revision No. 2, dated April 20, 1984.
(4) For Piper Aircraft, Inc. service information identified in this AD, contact Piper Aircraft, Inc., Customer Services, 2926 Piper Drive, Vero Beach, Florida 32960; telephone: (772) 567–4361; Internet:
(5) You may review copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329–4148. It is also available on the Internet at
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
1. A portable ultrasonic thickness gauge or flaw detector with echo-to-echo digital thickness readout capable of reading to 0.001-inch and an A-trace waveform display will be needed to do this inspection.
2. An ultrasonic probe with the following specifications will be needed to accomplish this inspection: 10 MHz (or higher), 0.283-inch (or smaller) diameter dual element or delay line transducer designed for thickness gauging. The transducer and ultrasonic system shall be capable of accurately measuring the thickness of AISI 4340 steel down to 0.020-inch. An accuracy of +/− 0.002-inch throughout a 0.020-inch to 0.050-inch thickness range while calibrating shall be the criteria for acceptance.
3. Either a precision machined step wedge made of 4340 steel (or similar steel with equivalent sound velocity) or at least three shim samples of same material will be needed to accomplish this inspection. One thickness of the step wedge or shim shall be less than or equal to 0.020-inch, one shall be greater than or equal to 0.050-inch, and at least one other step or shim shall be between these two values.
4. Glycerin, light oil, or similar non-water based ultrasonic couplants are recommended in the setup and inspection procedures. Water-based couplants, containing appropriate corrosion inhibitors, may be utilized, provided they are removed from both the reference standards and the test item after the inspection procedure is completed and adequate corrosion prevention steps are then taken to protect these items.
• NOTE: Couplant is defined as “a substance used between the face of the transducer and test surface to improve transmission of ultrasonic energy across the transducer/strut interface.”
• NOTE: If surface roughness due to paint loss or corrosion is present, the surface should be sanded or polished smooth before testing to assure a consistent and smooth surface for making contact with the transducer. Care shall be taken to remove a minimal amount of structural material. Paint repairs may be necessary after the inspection to prevent further corrosion damage from occurring. Removal of surface irregularities will enhance the accuracy of the inspection technique.
1. Set up the ultrasonic equipment for thickness measurements as specified in the instrument's user's manual. Because of the variety of equipment available to perform ultrasonic thickness measurements, some modification to this general setup procedure may be necessary. However, the tolerance requirement of step 13 and the record keeping requirement of step 14, must be satisfied.
2. If battery power will be employed, check to see that the battery has been properly charged. The testing will take approximately two hours. Screen brightness and contrast should be set to match environmental conditions.
3. Verify that the instrument is set for the type of transducer being used,
4. If a removable delay line is used, remove it and place a drop of couplant between the transducer face and the delay line to assure good transmission of ultrasonic energy. Reassemble the delay line transducer and continue.
5. Program a velocity of 0.231-inch/microsecond into the ultrasonic unit unless an alternative instrument calibration procedure is used to set the sound velocity.
6. Obtain a step wedge or steel shims per item 3 of the EQUIPMENT REQUIREMENTS. Place the probe on the thickest sample using couplant. Rotate the transducer slightly back and forth to “ring” the transducer to the sample. Adjust the delay and range settings to arrive at an A-trace signal display with the first backwall echo from the steel near the left side of the screen and the second backwall echo near the right of the screen. Note that when a single element transducer is used, the initial pulse and the delay line/steel interface will be off of the screen to the left. Adjust the gain to place the amplitude of the first backwall signal at approximately 80% screen height on the A-trace.
7. “Ring” the transducer on the thinnest step or shim using couplant. Select positive half-wave rectified, negative half-wave rectified, or filtered signal display to obtain the cleanest signal. Adjust the pulse voltage, pulse width, and damping to obtain the best signal resolution. These settings can vary from one transducer to another and are also user dependent.
8. Enable the thickness gate, and adjust the gate so that it starts at the first backwall echo and ends at the second backwall echo. (Measuring between the first and second backwall echoes will produce a measurement of the steel thickness that is not affected by the paint layer on the strut). If instability of the gate trigger occurs, adjust the gain, gate level, and/or damping to stabilize the thickness reading.
9. Check the digital display reading and if it does not agree with the known thickness of the thinnest thickness, follow your instrument's calibration recommendations to
10. Place the transducer on the thickest step of shim using couplant. Adjust the thickness gate width so that the gate is triggered by the second backwall reflection of the thick section. If the digital display does not agree with the thickest thickness, follow your instruments calibration recommendations to produce the correct thickness reading. A slight adjustment in the velocity may be necessary to get both the thinnest and the thickest reading correct. Document the changed velocity value.
11. Place couplant on an area of the lift strut which is thought to be free of corrosion and “ring” the transducer to surface. Minor adjustments to the signal and gate settings may be required to account for coupling improvements resulting from the paint layer. The thickness gate level should be set just high enough so as not to be triggered by irrelevant signal noise. An area on the upper surface of the lift strut above the inspection area would be a good location to complete this step and should produce a thickness reading between 0.034-inch and 0.041-inch.
12. Repeat steps 8, 9, 10, and 11 until both thick and thin shim measurements are within tolerance and the lift strut measurement is reasonable and steady.
13. Verify that the thickness value shown in the digital display is within +/− 0.002-inch of the correct value for each of the three or more steps of the setup wedge or shims. Make no further adjustments to the instrument settings.
14. Record the ultrasonic versus actual thickness of all wedge steps or steel shims available as a record of setup.
1. Clean the lower 18 inches of the wing lift struts using a cleaner that will remove all dirt and grease. Dirt and grease will adversely affect the accuracy of the inspection technique. Light sanding or polishing may also be required to reduce surface roughness as noted in the EQUIPMENT REQUIREMENTS section.
2. Using a flexible ruler, draw a 1/4-inch grid on the surface of the first 11 inches from the lower end of the strut as shown in Piper MSB No. 528D, dated October 19, 1990, or Piper MSB No. 910A, dated October 10, 1989, as applicable. This can be done using a soft (#2) pencil and should be done on both faces of the strut. As an alternative to drawing a complete grid, make two rows of marks spaced every 1/4-inch across the width of the strut. One row of marks should be about 11 inches from the lower end of the strut, and the second row should be several inches away where the strut starts to narrow. Lay the flexible ruler between respective tick marks of the two rows and use tape or a rubber band to keep the ruler in place. See Figure 1.
3. Apply a generous amount of couplant inside each of the square areas or along the edge of the ruler. Re-application of couplant may be necessary.
4. Place the transducer inside the first square area of the drawn grid or at the first 1/4-inch mark on the ruler and “ring” the transducer to the strut. When using a dual element transducer, be very careful to record the thickness value with the axis of the transducer elements perpendicular to any curvature in the strut. If this is not done, loss of signal or inaccurate readings can result.
5. Take readings inside each square on the grid or at 1/4-inch increments along the ruler and record the results. When taking a thickness reading, rotate the transducer slightly back and forth and experiment with the angle of contact to produce the lowest thickness reading possible. Pay close attention to the A-scan display to assure that the thickness gate is triggering off of maximized backwall echoes.
• NOTE: A reading shall not exceed .041 inch. If a reading exceeds .041-inch, repeat steps 13 and 14 of the INSTRUMENT SETUP section before proceeding further.
6. If the A-trace is unsteady or the thickness reading is clearly wrong, adjust the signal gain and/or gate setting to obtain reasonable and steady readings. If any instrument setting is adjusted, repeat steps 13 and 14 of the INSTRUMENT SETUP section before proceeding further.
7. In areas where obstructions are present, take a data point as close to the correct area as possible.
• NOTE: The strut wall contains a fabrication bead at approximately 40% of the strut chord. The bead may interfere with accurate measurements in that specific location.
8. A measurement of 0.024-inch or less shall require replacement of the strut prior to further flight.
9. If at any time during testing an area is encountered where a valid thickness measurement cannot be obtained due to a loss of signal strength or quality, the area shall be considered suspect. These areas may have a remaining wall thickness of less than 0.020-inch, which is below the range of this setup, or they may have small areas of localized corrosion or pitting present. The latter case will result in a reduction in signal strength due to the sound being scattered from the rough surface and may result in a signal that includes echoes from the pits as well as the backwall. The suspect area(s) shall be tested with a Maule “Fabric Tester” as specified in Piper MSB No. 528D, dated October 19, 1990, or Piper MSB No. 910A, dated October 10, 1989.
10. Record the lift strut inspection in the aircraft log book.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Alma, NE. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Alma Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport. This action also corrects the state from KS to NE under the airport designation.
Effective date, 0901 UTC, June 25, 2015. 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.
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202–267–8783.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817–321–7740.
On October 28, 2014, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Alma Municipal Airport, Alma, NE. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures at the airport. This action enhances the safety and management of IFR operations for SIAPs at the airport. This action also correctly lists the airport state as NE instead of KS under the airport designation.
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 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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, 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 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 establishes controlled airspace at Alma Municipal Airport, Alma, NE.
The FAA has determined that this action qualifies for categorical under the National 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 exit 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(f), 106(g);, 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Alma Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Encinal, TX. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at El Jardin Ranch Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
Effective 0901 UTC, June 25, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202–267–8783.
Rebecca Shelby, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817–321–7740.
On October 28, 2014, the FAA published in the
Class E airspace designations are published in Paragraphs 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action amends Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of El Jardin Ranch Airport, Encinal, TX, to accommodate new Standard Instrument Approach Procedures at airport. The FAA is taking this action to enhance the safety and management of IFR operations at the airport.
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 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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, 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 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 establishes controlled airspace at El Jardin Ranch Airport, Encinal, TX.
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(f), 106(g);, 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of El Jardin Ranch Airport.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action amends Class D Airspace at Baltimore, MD, bringing current the regulatory text under the designation for Martin State Airport by adding the words “and Restricted Area R–4001C, which is continuously active up to 10,000 feet AGL”. This is an administrative change to coincide with the FAA's aeronautical database.
Effective 0901 UTC, June 25, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–8783.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
In a review of the airspace, the FAA found the airspace description for Martin State Airport, Baltimore, MD, Class D Airspace, in FAA Order 7400.9Y, Airspace Designations and Reporting Points, did not match the FAA's charting information. This administrative change coincides with the FAA's aeronautical database.
This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by referencing Restricted Area R–4001C in the regulatory text of the Class D airspace area at Martin State Airport, MD, adding the words “and Restricted Area R–4001C, which is continuously active up to 10,000 feet AGL”. This is an administrative change amending the description for Martin State Airport, Baltimore, MD, to be in concert with the FAAs aeronautical database, and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
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 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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, 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 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 further clarifies the description of controlled airspace at Martin State Airport, Baltimore, MD.
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(f), 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 2,500 feet MSL within a 5.2-mile radius of Martin State Airport and within 4.4 miles each side of a 14.7-mile radius arc of the Baltimore VORTAC extending clockwise from the Baltimore VORTAC 030° radial to the VORTAC 046° radial, excluding that airspace within the Washington Tri-Area Class B airspace area and Restricted Areas R–4001A and R–4001B when they are in effect, and Restricted Area R–4001C, which is continuously active up to 10,000 feet AGL. 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.
Federal Aviation Administration (FAA), DOT.
Final rule, technical amendment.
This action amends the legal description of the Class E airspace area at Livingston, MT. The geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database as well as correcting a longitudinal point of the airspace boundary. This does not affect the charted boundaries or operating requirements of the airspace.
Effective 0901 UTC, June 25, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Y, Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington DC 29591; telephone: 202–267–8783.
Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4563.
The Aeronautical Information Services branch identified an error in a longitudinal coordinate in the legal description extending upward from 1,200 feet above the surface, and the airport reference point (ARP) was not coincidental with the FAA's aeronautical database. This action makes these corrections.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the legal description of the Class E airspace area extending upward from 700 feet above the surface at Livingston, MT. The geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database, and a longitudinal point of the airspace boundary extending from 1,200 feet above the surface is corrected from “long. 112°29′00″W., to “long 110°29′00″W.”. This does not affect the boundaries or operating requirements of the airspace.
This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S. C. 553(b) is unnecessary.
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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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 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 amends Class E airspace at Mission Field Airport, Livingston, MT.
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(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 4.2-mile radius of Mission Field Airport, and that airspace bounded by a line beginning at lat. 45°40′30″ N., long. 110°15′20″ W.; to lat. 45°47′30″ N., long. 110°15′30″ W.; to lat. 45°47′30″ N., long. 110°23′00″ W.; to lat. 46°02′20″ N., long. 110°31′00″ W.; to lat. 45°58′00″ N., long. 110°47′15″ W.; to lat. 45°38′45″ N., long. 110°37′00″ W.; thence to point of beginning, and that airspace extending upward from 1,200 feet above the surface within an area bounded by a line beginning at lat. 46°16′00″ N., long 112°00′00″ W.; to lat. 46°37′00″ N., long. 111°30′00″ W.; to lat. 46°37′00″ N., long. 110°43′00″ W.; to lat. 46°00′00″ N., long. 110°29′00″ W.; to lat. 46°00′00″ N., long. 109°30′00″ W.; to lat. 45°30′00″ N., long. 109°30′00″ W.; to lat. 45°30′00″ N., long. 112°00′00″ W.; thence to point of beginning; excluding that airspace within Federal airways, the Helena, MT, and the Billings, MT, Class E airspace areas.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone on the navigable waters of the Southern Branch of the Elizabeth River in support of the Elizabeth River Park Grand Re-opening fireworks event. This safety zone will restrict vessel movement in the specified area during the fireworks display. This action is necessary to provide for the safety of life and property on the surrounding navigable waters during the fireworks display.
This rule is effective from April 29, 2015 through May 30, 2015 and enforced from 8:30 p.m. to 9 p.m. on May 30, 2015.
Documents mentioned in this preamble are part of docket [USCG–2015–0117]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Gregory Knoll, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone (757) 668–5580, 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 written 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 due to the short time period between event planners notifying the Coast Guard of details concerning the event, on March 24, 2015, and publication of this safety zone. As such, it is impracticable for the Coast Guard to provide a full comment period due to lack of time. Furthermore, delaying the effective date of this safety zone would be contrary to the public interest as immediate action is needed to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area. The Coast Guard will provide advance notifications to users of the affected waterway via marine information broadcasts, local notice to mariners.
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 legal basis and authorities for this rule are found in 33. U.S.C. 1231; 33 CFR 1.05–1, 6.04–1, 160.5; Department of Homeland Security Delegation No. 0170–1, which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones.
The purpose of this safety zone is to protect event participants, patrol vessels, spectator craft and other vessels transiting navigable waters on the Southern Branch of the Elizabeth River from hazards associated with a fireworks display. The potential hazards to mariners within the safety zone include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.
On May 30, 2015, the City of Chesapeake Parks, Recreation and Tourism will be hosting the Elizabeth River Park Grand Re-opening which will include a fireworks display on the bank of the Southern Branch of the Elizabeth River in Chesapeake, VA. The fireworks debris fallout area will extend over the navigable waters of the Southern Branch of the Elizabeth River.
The Captain of the Port of Hampton Roads is establishing a safety zone on specified waters of the Southern Branch of the Elizabeth River in Chesapeake, VA. The fireworks will be launched from the shore located in the Elizabeth River Park. The safety zone will encompass all navigable waters within a 140 foot radius of the fireworks launching location at position 36°48′31.0818″ N, longitude 076°17′14.2506″ W. This safety zone will be established and enforced from 8:30 p.m. to 9 p.m. on May 30, 2015. Access to the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Captain of the Port of his Representative, no person or vessel may enter or remain in the regulated area.
The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice to the affected segments of the public. This includes publication in the Local Notice to Mariners and Marine Information Broadcasts.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this safety zone restricts vessel traffic through the regulated area, the effect of this rule will not be significant because: (i) This rule will only be enforced for the limited size and duration of the event; and (ii) the Coast Guard will make extensive notification to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 affects the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in waters of the Southern Branch of the Elizabeth River during the enforcement period.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone is of limited size and duration, and (ii) Sector Hampton Roads will issue maritime advisories widely available to users of the Southern Branch of the Elizabeth River allowing mariners to adjust their plans accordingly.
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 rule. 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 the person listed in the
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 will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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 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
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
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; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) All waters of the Southern Branch of the Elizabeth River within a 140 foot radius of the fireworks display in approximate position 36°48′31.0818″ N, 076°17′14.2506″ W, located near the Elizabeth River Park, Chesapeake, Virginia.
(c)
(1) All persons are required to comply with the general regulations governing safety zones in § 165.23 of this part.
(2) With the exception of participants, entry into or remaining in this safety zone is prohibited unless authorized by the Captain of the Port, Hampton Roads or his designated representatives.
(3) All vessels underway within this safety zone at the time it is implemented are to depart the zone immediately.
(4) The Captain of the Port, Hampton Roads or his representative can be reached at telephone number (757) 668–5555.
(5) The Coast Guard vessels enforcing the safety zone can be contacted on VHF–FM marine band radio channel 13 (165.65Mhz) and channel 16 (156.8 Mhz).
(6) This section applies to all persons or vessels wishing to transit through the safety zone except participants and vessels that are engaged in the following operations:
(i) Enforcing laws;
(ii) servicing aids to navigation, and
(iii) Emergency response vessels.
(7) The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve elements of a state implementation plan (SIP) submission by Indiana regarding the infrastructure requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 ozone national ambient air quality standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. The proposed rulemaking associated with this final action was published on August 19, 2013, and EPA received two comment letters during the comment period, which ended on September 18, 2013. The concerns raised in these letters, as well as EPA's responses, will be addressed in this final action.
This final rule is effective on May 29, 2015.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2011–0969. All documents in the docket are listed in the
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This rulemaking addresses a December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM) intended to meet the applicable infrastructure SIP requirements for the 2008 ozone NAAQS.
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for ozone already meet those requirements.
EPA has highlighted this statutory requirement in multiple guidance documents, including the most recent guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)” issued on September 13, 2013.
EPA is acting upon Indiana's SIP submission that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.
This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (“SSM”)at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as “director's discretion”); and, (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking. A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (
In addition, EPA is not acting on section 110(a)(2)(D)(i)(I), interstate transport significant contribution and interference with maintenance, a portion of section 110(a)(2)(D)(i)(II) with respect to visibility, and 110(a)(2)(J) with respect to visibility. EPA is also not acting on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D, in its entirety. The rationale for not acting on elements of these requirements was included in EPA's August 19, 2013, proposed rulemaking or discussed below in today's response to comments.
The public comment period for EPA's proposed actions with respect to Indiana's satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on September 18, 2013. EPA received two comment letters, which were from the Sierra Club and the state of Connecticut. A synopsis of the comments contained in these letters and EPA's responses are provided below.
With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.
The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.
Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO
EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP addressed a control strategy SIP and not an infrastructure SIP (71 FR 12623).
The Indiana action provides even less support for the commenter's position (78 FR 78720). The review in that rule was of a completely different requirement than the 110(a)(2)(A) SIP. Rather, in that case, the state had an approved SO
In
The decision in
At issue in
In
The commenter suggests that
Two of the cases the commenter cites,
Furthermore, the commenter suggests that the state adopt specific controls that they contend are cost-effective for reducing NOx, a precursor to ozone.
The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.
We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.
Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”
In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (
In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A).
Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable
For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal.
Moreover, Indiana's SIP contains existing emission reduction measures that control emissions of VOCs and NO
EPA disagrees with the commenter's argument that EPA cannot approve a SIP without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve the states' SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101–228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of
The Agency interprets its authority under section 110(k)(3) as affording it the discretion to approve or conditionally approve individual elements of Indiana's infrastructure submission for the 2008 ozone NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements, and interprets section 110(k)(3) as allowing EPA to act on individual severable measures in a plan submission. In short, EPA has discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The commenter raises no compelling legal or environmental rationale for an alternate interpretation.
EPA notes, however, that it is working with state partners to assess next steps to address air pollution that crosses state boundaries and will later take a separate action to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the Indiana infrastructure SIP submission for the 2008 ozone NAAQS for the portions described in the NPR is, therefore, appropriate.
For the reasons discussed in our August 19, 2013, proposed rulemaking and in the above responses to public comments, EPA is taking final action to approve Indiana's infrastructure SIP for the 2008 ozone NAAQS as proposed with the exception of not taking final action on section 110(a)(2)(D)(i)(II) with respect to visibility. In EPA's August 19, 2013, proposed rulemaking for these infrastructure SIPs, EPA also proposed to approve Indiana's satisfaction of the state board requirements contained in section 128 of the CAA, as well as certain PSD requirements obligated by EPA's October 20, 2010, final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
In the table above, the key is as follows:
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Washington State Implementation Plan (SIP) that were submitted by the Department of Ecology (Ecology) on January 27, 2014. These revisions implement the preconstruction permitting regulations for large industrial (major source) facilities in attainment and unclassifiable areas, called the Prevention of Significant Deterioration (PSD) program. The PSD program in Washington has been historically operated under a Federal Implementation Plan (FIP). This approval of Ecology's PSD program narrows the FIP to include only those few facilities, emission sources, geographic areas, and permits for which Ecology does not have PSD permitting jurisdiction or authority. The EPA is also approving Ecology's visibility protection permitting program which overlaps significantly with the PSD program.
This final rule is effective on May 29, 2015.
The EPA has established a docket for this action under Docket ID No. EPA–R10–OAR–2014–0755. All documents in the docket are listed on the
Jeff Hunt at (206) 553–0256,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials “Act” or “CAA” mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii) The words “EPA”, “we”, “us” or “our” mean or refer to the Environmental Protection Agency.
(iii) The initials “SIP” mean or refer to State Implementation Plan.
(iv) The words “Washington” and “State” mean the State of Washington.
On January 27, 2014, Ecology submitted revisions to update the general air quality regulations contained in Chapter 173–400 of the Washington Administrative Code (WAC) that apply to sources within Ecology's jurisdiction, including minor new source review, major source nonattainment new source review (major NNSR), PSD, and the visibility protection (visibility) program. On October 3, 2014, the EPA finalized approval of provisions contained in Chapter 173–400 WAC that apply generally to all sources under Ecology's jurisdiction, but stated that we would act separately on the major source-specific permitting programs in a phased approach (79 FR 59653). On November 7, 2014, the EPA finalized the second phase in the series, approving the major NNSR regulations contained in WAC 173–400–800 through 173–400–860, as well as other parts of Chapter 173–400 WAC that support major NNSR (79 FR 66291).
On January 7, 2015, the EPA proposed approval of the remainder of Ecology's January 27, 2014 submittal, covering the PSD and visibility requirements for
Before addressing the public comments, the EPA is clarifying its discussion in the January 7, 2015 proposal, regarding two important distinctions between the applicability of Ecology's minor NSR program and its PSD program. These differences arise from the State's definitions of the terms “modification” in WAC 173–400–030(48) and “major modification” in WAC 173–400–710 and –720, which adopt the Federal definitions in 40 CFR 52.21(b)(2) for Ecology's PSD program. See 80 FR at 840. The proposal first noted that the applicability test for “modifications” under Ecology's minor NSR program is based on the definition of modification in CAA section 111(a)(4) and the EPA's implementing rules at 40 CFR 60.14, and specifically, that a modification is an increase in the emission rate of an existing facility in terms of kilograms per hour. See WAC 173–400–030(48). The proposal then noted that the applicability test under the Federal PSD program is based on tons per year. The EPA is clarifying here that under Washington's PSD program, the determination of whether a project (as that term is defined in 40 CFR 52.21(b)(52) and which is adopted by reference at WAC 173–400–720(4)(a)(vi)) is a “major modification” is, consistent with the Federal PSD program, based on whether the project results in both a significant emissions increase and a significant net emissions increase in terms of tons per year. See WAC 400–173–720(4)(a)(vi) (which adopts by reference the Federal PSD applicability test and definitions in 40 CFR 52.21(a)(2) and (b)(2), respectively); see also WAC 173–400–710(a). Therefore, as stated in the proposal, for any physical or operational change at an existing stationary source, regulated sources and permitting authorities will need to calculate emission changes in terms of both kilograms per hour and tons per year to determine whether changes are subject to minor NSR, PSD, or both.
Second, the proposal discussed a difference in minor NSR versus PSD review in Washington that arises from a limitation on the scope of the review of a modification under Ecology's minor NSR program. The EPA first noted that, under Ecology's minor NSR program, new source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification. See WAC 173–400–110(1)(d) (“New source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification.”). In contrasting this minor NSR provision with the requirements of Ecology's PSD program (and the Federal PSD program), the EPA incorrectly used the phrase “new and modified units” rather than the terms “new emissions units” and “existing emissions units,” the terminology used in 40 CFR 52.21(a)(2), which is incorporated into Washington's PSD regulations and the subject of this final SIP approval. The EPA is emphasizing here that, under Ecology's PSD program (as under the Federal PSD program), review of a project that is a “major modification” must be done in accordance with the provisions of WAC 173–400–700 through 173–400–750, and that the limitation in WAC 173–400–110(1)(d) on the review of a “modification” does not apply to a “major modification.” See WAC 173–400–110(1)(d) (“Review of a major modification must comply with WAC 173–400–700 through 173–400–750 or 173–400–800 through 173–400–860, as applicable.”).
The EPA received two sets of similar comments from the Northwest Pulp & Paper Association and the Washington Forest Protection Association regarding carbon dioxide (CO
On July 12, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision overturning the Biomass Deferral Rule.
Although the EPA is planning to initiate the rulemaking described above that would enable states to avoid applying BACT to GHG emissions from combustion of biogenic feedstocks derived from sustainable forest or agricultural practices, the CAA and EPA regulations presently require that PSD permitting programs address CO
As a result, the EPA must retain a FIP under 40 CFR 52.21 and issue partial PSD permits to ensure that major sources in Washington have a means to satisfy the CAA construction permit requirements for GHGs when CO
For sources subject to the FIP, the EPA is retaining the authority to conduct the BACT analysis for all GHGs when necessary, not just the biogenic CO
Thus, the EPA FIP addresses the impact of the Washington statutory provision in two ways. First, the Ecology and the EPA definitions of GHGs are effectively different, with the EPA's definition being more inclusive (
Given this dual CAA PSD permitting authority in situations where there are multiple combustion fuels producing CO
For the reasons set forth in our proposed rulemaking at 80 FR 838, January 7, 2015, as further discussed above, the EPA is approving and incorporating by reference the PSD and visibility permitting regulations submitted by Ecology on January 27, 2014. This action is the third and final in a series approving the remaining elements contained in Ecology's January 27, 2014 submittal. The previous two actions consisted of the EPA's October 3, 2014 (79 FR 59653) approval of general provisions that apply to all air pollution sources and the EPA's November 7, 2014 (79 FR 66291) approval of requirements that implement major source NNSR.
The EPA is approving and incorporating by reference into Washington's SIP at 40 CFR part 52, subpart WW, the PSD and visibility permitting regulations listed in the table below. A full copy of the regulations is included in the docket for this action. The EPA has also determined that the general air quality regulations at WAC 173–400–036, WAC 173–400–110, WAC 173–400–111, WAC 173–400–112, WAC 173–400–113, WAC 173–400–171, and WAC 173–400–560, to the extent they relate to implementation of Ecology's PSD and visibility programs, also meet the EPA's requirements for subject sources.
As discussed in the proposal, Ecology requested approval to exercise its authority to fully administer the PSD program with respect to those sources under Ecology's permitting jurisdiction that have existing PSD permits issued by the EPA since August 7, 1977. 80 FR 843, January 7, 2015. Upon the effective date of this approval of Ecology's PSD program into the SIP, we transfer the EPA-issued PSD permits issued on and after August 7, 1977 to Ecology. The EPA retains authority to administer PSD permits issued by the EPA in Washington prior to August 7, 1977. Id.
Under WAC 173–400–700, Ecology's PSD regulations contained in WAC 173–400–700 through 173–400–750 apply statewide, except where a local clean air agency has received delegation of the Federal PSD program from the EPA or has a SIP-approved PSD program. At this time, no local clean air agencies in Washington have a delegated or SIP-approved PSD program. For the reasons provided in the preambles to the proposed and final notices of rulemaking, the EPA is therefore approving WAC 173–400–700 through 173–400–750 to apply statewide, with the three exceptions described below. For the following exceptions, the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21 will continue to apply, and the EPA will retain responsibility for issuing PSD permits to and implementing the Federal PSD program for such sources:
By statute, Ecology does not have authority to issue PSD permits to sources under the jurisdiction of EFSEC. See Chapter 80.50 of the Revised Code of Washington (RCW). Therefore, the EPA's approval of Ecology's PSD program, under WAC 173–400–700 through 173–400–750, excludes projects under the jurisdiction of EFSEC. Such sources will continue to be subject to the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21, until such time that EFSEC's PSD rules are approved into the SIP.
As discussed above, under a provision contained in RCW 70.235.020, Greenhouse Gas Emissions Reductions—Reporting Requirements, Ecology is statutorily barred from
Excluded from the scope of this final approval of Ecology's PSD program are all Indian reservations in the State, except as specifically noted below, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Sources on such lands will continue to be subject to the PSD FIP codified at 40 CFR 52.2497 and 40 CFR 52.21.
Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) and the EPA is therefore proposing to approve Ecology's PSD regulations into the SIP with respect to such lands.
Consistent with the limitations on the scope of the EPA's final approval of WAC 173–400–700 through 173–400–750 in the Washington SIP, the EPA retains, but significantly narrows, the scope of the current PSD FIP codified at 40 CFR 52.2497. The EPA will continue to implement the current PSD FIP as provided in III.C.1.a., b., and c. of this document.
With respect to the EPA's approval of WAC 173–400–116 and WAC 173–400–117, the SIP-approved provisions of WAC 173–400–020 govern jurisdictional applicability for those sections. WAC 173–400–020 states, “[t]he provisions of this chapter shall apply statewide, except for specific subsections where a local authority has adopted and implemented corresponding local rules that apply only to sources subject to local jurisdiction as provided under RCW 70.94.141 and 70.94.331.” Because Ecology will be the only authority in Washington with a SIP-approved PSD program that would implement WAC 173–400–116,
For the following exceptions the visibility FIP codified at 40 CFR 52.2498 will continue to apply and the EPA will retain responsibility for issuing visibility permits for such sources:
By State statute, Ecology does not have authority to issue permits to sources under the jurisdiction of EFSEC. See Chapter 80.50 of the Revised Code of Washington (RCW). Therefore, the EPA's approval of WAC 173–400–116 and 173–400–117 excludes projects under the jurisdiction of EFSEC. Such sources will continue to be subject to the visibility FIP codified at 40 CFR 52.2498, until such time that EFSEC's corollaries to WAC 173–400–116 and 173–400–117 are approved into the SIP.
Excluded from the scope of this final approval of the visibility permitting program are all Indian reservations in the State, except as specifically noted below, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Sources on such lands will continue to be subject to the visibility FIP codified at 40 CFR 52.2498.
Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) and the EPA is therefore proposing to approve Ecology's visibility regulations into the SIP with respect to such lands for those facilities where Ecology has direct jurisdiction.
Consistent with the limitations on the scope of our approval of Ecology's major NNSR program (79 FR at 43349), the EPA retains, but significantly narrows, the scope of the current visibility FIP codified at 40 CFR 52.2498.
As discussed in the proposal, 80 FR at 845, in approving state new source review rules into SIPs, the EPA has a responsibility to ensure that all states properly implement their SIP-approved preconstruction permitting programs. The EPA's approval of Ecology's PSD rules does not divest the EPA of the responsibility to continue appropriate oversight to ensure that permits issued by Ecology are consistent with the requirements of the CAA, Federal regulations, and the SIP. The EPA's authority to oversee permit program implementation is set forth in sections 113, 167, and 505(b) of the CAA. For example, section 167 provides that the EPA shall issue administrative orders, initiate civil actions, or take whatever other action may be necessary to prevent the construction or modification of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) of the CAA provides for administrative orders and civil actions whenever the EPA finds that a state “is not acting in compliance with” any requirement or prohibition of the CAA regarding the construction of new
In making judgments as to what constitutes compliance with the CAA and regulations issued thereunder, the EPA looks to (among other sources) its prior interpretations regarding those statutory and regulatory requirements and policies for implementing them. It follows that state actions implementing the Federal CAA that do not conform to the CAA may lead to potential oversight action by the EPA.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Washington State Department of Ecology regulations listed in section II.A.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(a) The requirements of sections 160 through 165 of the Clean Air Act are not fully met because the plan does not include approvable procedures for preventing the significant deterioration of air quality from:
(1) Facilities subject to the jurisdiction of the Energy Facilities Site Evaluation Council pursuant to Chapter 80.50 Revised Code of Washington (RCW);
(2) Facilities with carbon dioxide (CO
(i) Where a new major stationary source or major modification would be subject to Prevention of Significant Deterioration (PSD) requirements for greenhouse gases (GHGs) under § 52.21, but would not be subject to PSD under the state implementation plan (SIP) because CO
(ii) Where a new major stationary source or major modification is subject to PSD for GHGs under both the Washington SIP and the FIP, but CO
(3) Indian reservations in Washington, except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) as provided in the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction; and
(4) Sources subject to PSD permits issued by the EPA prior to August 7, 1977, but only with respect to the general administration of any such permits still in effect (
(b)
(a) The requirements of section 169A of the Clean Air Act are not fully met because the plan does not include approvable procedures for visibility new source review for:
(1) Facilities subject to the jurisdiction of the Energy Facilities Site Evaluation Council pursuant to Chapter 80.50 Revised Code of Washington;
(2) Sources subject to the jurisdiction of local air authorities;
(3) Indian reservations in Washington except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area) as provided in the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation amends an exemption from the requirement of a tolerance for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- (CAS Reg. No. 23328–53–2) to allow its use on all growing crops as an inert ingredient (ultraviolet (UV) stabilizer) at a maximum concentration of 10% in pesticide formulations, Loveland Products Inc., submitted a petition to EPA under the Federal Food, Drug and Cosmetic Act (FFDCA). This regulation eliminates the need to establish a maximum permissible level for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-.
This regulation is effective April 29, 2015. Objections and requests for hearings must be received on or before June 29, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0418, is available at
Susan Lewis, Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2014–0418 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 29, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2014–0418, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.
In the
Since that rulemaking, as part of the data submitted in support of the current petition, an additional study has been submitted. In this study, a one-generation oral reproduction study (OECD Test Guideline 443) with the rat, the NOAEL for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- for parental and reproductive toxicity was 10,000 parts per million (ppm) (equal to 618 milligram/kilogram/day (mg/kg/day), the highest dose tested (HDT)). The NOAEL for offspring toxicity was 5,000 ppm (equal to 311 mg/kg/day) based on decreased body weight, body weight gain, increased absolute spleen weights in males and increased incidence of splenic extra medullary hematopoiesis in males at the LOAEL of 10,000 ppm (equal to 618 mg/kg/day). Specific information on the study received and the nature of the adverse effects caused by phenol-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, as well as the NOAEL and LOAEL can found at
Once a pesticide chemical's toxicological profile is determined. EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
No acute effects were observed from a single dose so no acute POD was selected. The POD for risk assessment for all remaining durations and routes of exposure was from the 90-day toxicity study in rats. The NOAEL was 20 mg/kg/day and the LOAEL was 40 mg/kg/day based on increases in liver, kidney, spleen, and testes weights. Although the chronic point of departure was selected from a subchronic study, no additional uncertainty factor is necessary for use of subchronic study for chronic exposure assessment since available longer-term studies shows the lack of toxicity even at higher doses. A 100-fold uncertainty factor was used for the chronic exposure (10X interspecies extrapolation, 10X for intraspecies variability and 1X Food Quality Protection Act (FQPA) factor. The NOAEL of 20 mg/kg/day was used for all exposure duration via dermal and inhalation routes of exposure. The residential, occupational and aggregate level of concern (LOC) is for MOEs that are less than 100 and is based on 10X interspecies extrapolation, 10X for intraspecies variability and 1X FQPA factor. Dermal absorption is estimated to be 10% based on SAR analysis. A 100% inhalation absorption is assumed.
In the
1.
In conducting the chronic dietary exposure assessment using the Dietary Exposure Evaluation Model/Food Commodity Intake Database (DEEM–FCID)
In the case of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, EPA made a specific adjustment to the dietary exposure assessment to account for the use limitations of the amount of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- that may be in formulations (no more than 10% by weight in pesticide products applied to growing crops) and assumed that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- is present at the maximum limitation in all pesticide product formulations used on growing crops.
2.
3.
Residential uses of pesticides containing phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- are extremely limited. However, in order to account for all of the current and unanticipated potential residential uses of pesticide products containing phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- various exposure models were employed. The Agency believes that the scenarios assessed represent highly conservative worst-case short-term and intermediate-term exposures and risks to residential handlers and those experiencing post-application exposure resulting from the use of indoor and outdoor pesticide products containing this inert ingredient in residential environments. Based on the use pattern, chronic exposure is not anticipated. Therefore, the risk from the chronic residential exposure was not assessed.
Further details of this residential exposure and risk analysis can be found at
4.
EPA has not found phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, to share a common mechanism of toxicity with any other substances, and phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
No adverse reproductive effects were observed in a one-generation reproductive toxicity study in rats at dose levels up to 10,000 ppm; equal to 618 mg/kg/day, the HDT. There is a quantitative evidence of increased susceptibility in the one-generation reproduction study in rats. In this study, the NOAEL for offspring toxicity was 5,000 ppm (equal to 311 mg/kg/day) based on decreased body weight, body weight gain, increased absolute spleen weights in males and increased incidence of splenic extra medullary hematopoiesis in males at the LOAEL of 10,000 ppm (equal to 618 mg/kg/day), while no systemic toxicity was observed in parental animals at doses up to 10,000 ppm (equal to 618 mg/kg/day). However, the concern for this susceptibility is low since there is a well characterized NOAEL for protecting the offspring and the NOAEL selected for chronic RfD is more than 12 fold lower. Therefore, there is no need for additional uncertainty factor.
3.
i. The toxicity database for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is complete. Previously (2010), EPA identified study measuring reproductive parameters and lack of Immunotoxicity study as the data gaps. Since the last assessment, EPA received the one generation reproduction study. EPA concluded that the Immunotoxicity study is not required because the newly submitted study and previously reviewed studies do not show any indication of Immunotoxicity except one 90-day toxicity study in rats showing slight increases in spleen weights without histopathological findings and without changes in the blood parameters was observed at the HDT (80 mg/kg/day). Since this is an isolated finding, EPA concluded that the Immunotoxicity study is not required.
ii. There is no indication that phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity. No clinical signs of neurotoxicity were seen in any of the
iii. No evidence of Immunotoxicity was seen in the available database except in one 90-day toxicity study in rats showing slight increases in spleen weights without histopathological findings and without changes in the blood parameters was observed at the HDT (80 mg/kg/day). Since this is isolated findings, EPA concluded that the Immunotoxicity study is not required.
iv. There is qualitative evidence of post natal susceptibility in 1-generation reproduction study in rats, however, EPA concluded that there is no need for additional uncertainty factor since there is well characterized NOAEL protecting the offspring and the NOAEL selected for chronic RfD is more than 12 fold lower.
v. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed using highly conservative model assumptions including 100 percent crop treated (PCT) and residue levels in crops equivalent to the highest established active ingredient tolerance. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-.
1.
2.
3.
Phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, is currently used as an inert ingredient in pesticide products that are registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-,.
Using the exposure assumptions described in this unit for short-term exposures and the use limitation described previously in Unit C. EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 170 for adult males and females. Adult residential exposure combines high-end dermal and inhalation handler exposure from liquids/trigger sprayer in home gardens with a high-end post-application dermal exposure from contact with treated lawns. EPA has concluded the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 140 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to mouth exposures). The EPA's level of concern for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- is for MOEs that are lower than 100; therefore, these MOEs are not of concern.
4.
Intermediate-term aggregate risk assessment was not conducted because short-term aggregate risk assessment is protective of intermediate-term aggregate risk since the same endpoint of concern has been identified for both exposure durations.
5.
6.
An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- in or on any food commodities. EPA is establishing a limitation on the amount of phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl-, that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for phenol, 2-(2H-benzotriazol-2-yl)-6-dodecyl-4-methyl- (CAS Reg. No. 23328–53–2) when used as an inert ingredient (UV stabilizer) at a maximum concentration of 10% in pesticide formulations applied to growing crops.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735,
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2015 Greenland turbot initial total allowable catch (ITAC) in the Aleutian Islands subarea of the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), May 1, 2015, through 2400 hrs, A.l.t., December 31, 2015.
Steve Whitney, 907–586–7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2015 Greenland turbot ITAC in the Aleutian Islands subarea of the BSAI is 170 metric tons (mt) as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015). The Regional Administrator has determined that the 2015 ITAC for Greenland turbot in the Aleutian Islands subarea of the BSAI is necessary to account for the
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 23, 2015.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211–535E4–37, RB211–535E4–B–37, and RB211–535E4–C–37 turbofan engines. This proposed AD was prompted by RR updating the life limits for certain high-pressure turbine (HPT) disks. This proposed AD would require reducing the cyclic life limits for certain HPT disks, removing those disks that have exceeded the new life limit, and replacing them with serviceable parts. We are proposing this AD to prevent failure of the HPT disk, which could result in uncontained disk release, damage to the engine, and damage to the airplane.
We must receive comments on this proposed AD by June 29, 2015.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.
• Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Fax: 202–493–2251.
For service information identified in this proposed AD, Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011–44–1332–242424; fax: 011–44–1332–249936; email:
You may examine the AD docket on the Internet at
Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7134; 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 AD 2014–0249R1, dated February 18, 2015 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
An engineering analysis, carried out by RR, of the lives of critical parts of the RB211–535E4–37 engine, has resulted in reduced cyclic life limits for certain high pressure (HP) turbine discs. The reduced limits are published in the RR RB211–535E4–37 Time Limits Manual (TLM): 05–10–01–800–000, current Revision dated July 2014.
Operation of critical parts beyond these reduced cyclic life limits may result in part failure, possibly resulting in the release of high-energy debris, which may cause damage to the aeroplane and/or injury to the occupants.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
We reviewed RR Non-Modification Service Bulletin (NMSB) No. RB.211–72–G188, Revision No. 1, dated October 30, 2013, and RR RB211–535E4–37, Time Limits Manual (TLM): 05–10–01–800–000, Revision dated July 1, 2014; and RR RB211–535E4–37, TLM: 05–00–01–800–000, Revision dated July 1, 2014. The NMSB describes the updated lifing analysis of the affected HP turbine disks. The TLMs provide revised life limits for the affected HP turbine disks. This service information is reasonably available because the interested parties have access to it through their normal course of business or see
This product has been approved by the aviation authority of the United Kingdom, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, 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
We estimate that this proposed AD affects 650 engines installed on airplanes of U.S. registry. We also estimate that it would take about 0 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Pro-rated cost of required parts cost would be about $12,213 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $7,938,450.
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),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, 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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 29, 2015.
None.
This AD applies to all Rolls-Royce plc (RR), RB211–535E4–37, RB211–535E4–B–37, and RB211–535E4–C–37 turbofan engines.
This AD was prompted by RR updating the life limits for certain high-pressure turbine (HPT) disks. We are issuing this AD to prevent failure of the HPT disk, which could result in uncontained disk release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) After the effective date of this AD, use RR RB211–535E4–37 Time Limits Manual (TLM): 05–10–01–800–000, Revision dated July 1, 2014 (referred to hereafter as `the TLM'), to determine the new life limits for the affected engine models and configurations, with the exception of those engine models mentioned in paragraph (e)(2) of this AD.
(2) For RR RB211–535E4–B–37 or RB211–535E4–C–37 engines with an affected HPT disk that was previously installed on an RB211–535E4–37 engine operated under Flight Plan A, use task 05–00–01–800–000 in the TLM to re-calculate equivalent cycles since new to obtain the new life limit.
(3) If an affected engine model has an HPT disk installed with P/N UL27681 or UL39767, remove the affected HPT disk before the accumulated cyclic life exceeds either 19,500 flight cycles (FCs) under Flight Plan A, or 14,700 FCs under Flight Plan B, or within 25 FCs after the effective date of this AD, whichever occurs later.
(4) For all affected engines, other than those specified in paragraph (e)(3) in this AD, remove each HPT disk before exceeding its applicable life limit as specified in the TLM.
(5) Install an HPT disk eligible for installation.
For the purpose of this AD, a part eligible for installation is one with a part number listed in the TLM with a total accumulated cyclic life that is less than the applicable life limit specified in the TLM.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7134; fax: 781–238–7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2014–0249R1, dated February 18, 2015, for more information. You may examine the MCAI in the AD docket on the Internet at
(3) RR Non-Modification Service Bulletin No. RB.211–72–G188, Revision No. 1, dated October 30, 2013, and RR RB211–535E4–37, TLM: 05–10–01–800–000, Revision dated July 1, 2014; and RR RB211–535E4–37, TLM: 05–00–01–800–000, Revision dated July 1, 2014, which are not incorporated by reference in this AD, can be obtained from Rolls-Royce plc, using the contact information in paragraph (h)(4) of this proposed AD.
(4) For service information identified in this proposed AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011–44–1332–242424; fax: 011–44–1332–249936; email:
(5) You may view this 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).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 747–8 series airplanes. This proposed AD was prompted by a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings were missing or had moved out of the holes. This proposed AD would require installing a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment. We are proposing this AD to prevent detachment of the quick-release pin, which could result in separation of the lateral support tie rod and subsequent detachment of the module and consequent injuries to passengers or flightcrew.
We must receive comments on this proposed AD by June 15, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6585; fax: 425–917–6590; 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 have received a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings of the outboard stowage bin module were missing or had moved out of the holes, and pins were installed incorrectly. These bushings were designed to prevent disengagement of the quick release pins; however, migration of the bushings deters this. It was determined that the interference fit of the bushings in the attachment brackets was incorrect. Subsequently, installation of the quick release pins during production has caused bushings to migrate or detach. This condition, if not corrected, could result in separation of the lateral support tie rod, detachment of the outboard stowage bin module, and consequent injuries to passengers or flightcrew.
We reviewed Boeing Special Attention Service Bulletin 747–25–3649, dated July 24, 2014. The service information describes procedures for installing a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment. Refer to this service information for information on the procedures and compliance times. This service information is reasonably available; see
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 accomplishing the actions specified in the service information identified previously.
The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee, to enhance the AD system. One enhancement was a
Steps that are identified as RC in any service information must be done to comply with the proposed AD. However, steps that are not identified as RC are recommended. Those steps that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the steps identified as RC can be done and the airplane can be put back in a serviceable condition. Any substitutions or changes to steps identified as RC will require approval of an AMOC.
We estimate that this proposed AD affects 2 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
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),
(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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 15, 2015.
None.
This AD applies to The Boeing Company Model 747–8 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 747–25–3649, dated July 24, 2014.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by a report of improperly installed outboard stowage bin modules in the passenger compartment found during maintenance. Further investigation revealed that certain attachment bracket bushings were missing or had moved out of the holes. We are issuing this AD to prevent detachment of the quick-release pin, which could result in separation of the lateral support tie rod and subsequent detachment of the module and consequent injuries to passengers or flightcrew.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Install a spacer on the end of each quick-release pin that attaches the outboard stowage bin module to the lateral support tie rods of the main deck passenger compartment, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747–25–3649, dated July 24, 2014.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) If any service information contains steps that are identified as RC (Required for
(1) For more information about this AD, contact Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6585; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Rolls-Royce plc (RR) RB211–524B–02, RB211–524B2–19, RB211–524B3–02, RB211–524B4–02, RB211–524B4–D–02, RB211–524C2–19, RB211–524D4–19, RB211–524D4–39, and RB211–524D4X–19 turbofan engines. This proposed AD was prompted by several failures of affected high-pressure turbine (HPT) blades. This proposed AD would require removing affected HPT blades. We are proposing this AD to prevent failure of the HPT blade, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.
We must receive comments on this proposed AD by June 29, 2015.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
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For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011–44–1332–242424; fax: 011–44–1332–249936; email:
You may examine the AD docket on the Internet at
Katheryn Malatek, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7747; 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 AD 2014–0250, dated November 19, 2014 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There were a number of pre-MOD/SB 72–7730 High Pressure Turbine (HPT) blade failures, with some occurring within a relatively short time. Engineering analysis carried out by RR on those occurrences indicates that certain pre-MOD/SB 72–7730 blades, Part Number (P/N) UL32958 and P/N UL21691 (hereafter referred to as `affected HPT blade'), with an accumulated life of 6500 flight hours (FH) since new or more, have an increased risk of in-service failure.
This condition, if not corrected, could lead to HPT blade failure, release of debris and consequent (partial or complete) loss of engine power, possibly resulting in reduced control of the aeroplane.
You may obtain further information by examining the MCAI in the AD docket on the Internet at
This product has been approved by the aviation authority of the United Kingdom, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, 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 and is likely to exist or develop on other products of the same type design. This proposed AD would require removal of the affected HPT blades.
We estimate that this proposed AD affects 6 engines installed on airplanes of U.S. registry. We also estimate that it would take about 4 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Pro-rated cost of required parts is about $250,000 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,502,040.
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),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, 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:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by June 29, 2015.
None.
This AD applies to all Rolls-Royce plc (RR) RB211–524B–02, RB211–524B2–19, RB211–524B3–02, RB211–524B4–02, RB211–524B4–D–02, RB211–524C2–19, RB211–524D4–19, RB211–524D4–39, and RB211–524D4X–19 turbofan engines with high-pressure turbine (HPT) blades, part numbers (P/Ns) UL32958 and UL21691, installed.
This AD was prompted by several failures of affected HPT blades. We are issuing this AD to prevent failure of the HPT blade, which could lead to failure of one or more engines, loss of thrust control, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
After the effective date of this AD, within 2 months or before exceeding 6,500 flight hours since first installation of HPT blades, P/Ns UL32958, and UL21691, on an engine, whichever occurs later, remove all affected HPT blades from service.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Katheryn Malatek, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7747; fax: 781–238–7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2014–0250, dated November 19, 2014, for more information. You may examine the MCAI in the AD docket on the Internet at
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public hearings.
On March 26, 2015, NOAA published a proposed rule in the
NOAA will accept public comments on the notice of proposed rulemaking published at 80 FR 16224 (March 26, 2015), the draft environmental impact statement, and draft management plan through June 19, 2015.
The instructions for submitting comments are detailed in the proposed rule published on March 26, 2015 (80 FR 16224). You may submit comments on this document, identified by NOAA–NOS–2015–0028, by any of the following methods:
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Malia Chow, Superintendent, Hawaiian Islands Humpback Whale National Marine Sanctuary at 808–725–5901 or
Copies of the draft environmental impact statement and proposed rule can be downloaded or viewed on the Internet at
In addition to the ten hearings listed in the proposed rule (80 FR 16224) published on March 26, 2015, two public hearings will be held in the following locations at the locales and times indicated:
16 U.S.C. 1431
Office of Workers' Compensation Programs, Labor.
Notice of proposed rulemaking; request for comments.
The Department is proposing revisions to the Black Lung Benefits Act (BLBA) regulations to address several procedural issues that have arisen in claims processing and adjudications. To protect a miner's health and promote accurate benefit determinations, the proposed rule would require parties to disclose all medical information developed in connection with a claim for benefits. The proposed rule also would clarify that a liable coal mine operator is obligated to pay benefits during post-award modification proceedings and that a supplemental report from a physician is considered merely a continuation of the physician's earlier report for purposes of the evidence-limiting rules.
The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by June 29, 2015.
You may submit written comments, identified by RIN number 1240–AA10, by any of the following methods. To facilitate receipt and processing of comments, OWCP encourages interested parties to submit their comments electronically.
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Michael Chance, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite N–3520, Washington, DC 20210. Telephone: 1–800–347–2502. This is a toll-free number. TTY/TDD callers may dial toll-free 1–800–877–8339 for further information.
The BLBA, 30 U.S.C. 901–944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a);
The Department is proposing several general revisions to advance the goals
Section 725.310 implements section 22 of the Longshore and Harbor Workers' Compensation Act (Longshore Act or LHWCA), 33 U.S.C. 922, as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a). Section 22 generally allows for the modification of claim decisions based on a mistake of fact or a change in conditions up to one year after the last payment of benefits or denial of a claim. The Department proposes several revisions to this regulation to ensure that responsible operators (and their insurance carriers) fully discharge their payment obligations while pursuing modification.
While modification is a broad remedy available to responsible operators as well as claimants, a mere request for modification does not terminate an operator's obligation to comply with the terms of a prior award, or otherwise undermine the effectiveness, finality, or enforceability of a prior award.
The plain language of the Act and its implementing regulations support this conclusion. An operator is required to pay benefits “after an effective order requiring the payment of benefits”—generally an uncontested award by a district director or any award by an administrative law judge, the Benefits Review Board, or a reviewing court—even if the operator timely appeals the effective award. 20 CFR 725.502(a)(1);
Despite this clear authority, some operators obligated to pay benefits to claimants (and to repay the Black Lung Disability Trust Fund for interim benefit payments) by the terms of effective or final awards have refused to comply with those obligations, claiming that a subsequent modification request excuses their non-compliance.
First, it prevents claimants from timely receiving all the benefits to which they are entitled. If an operator fails to comply with the terms of an effective award, the Black Lung Disability Trust Fund pays benefits to the claimant in the operator's stead.
The Act currently provides two mechanisms for claimants to enforce these liabilities. Section 21(d) of the Longshore Act, 33 U.S.C. 921(d), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.604, provides for the enforcement of final awards. And section 18(a) of the Longshore Act, 33 U.S.C. 918(a), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.605, does the same for effective awards. These remedies are, however, imperfect. Even if the previous award is final, section 21(d) still requires the claimant to file an enforcement action in federal district court to secure compliance with the award, a substantial barrier for unrepresented claimants. And even for represented claimants, the process can be a source of substantial delay. For example, the district court's order enforcing a final award under section 21(d) in
Second, the practice improperly shifts financial burdens from the responsible operator to the Trust Fund contrary to Congress's intent. Congress created the Trust Fund in 1978 to assume responsibility for claims for which no operator was liable or in which the responsible operator defaulted on its payment obligations. But Congress intended to “ensure that individual coal operators rather than the trust fund bear the liability for claims arising out of such operator's mines, to the maximum extent feasible.” S. Rep. No. 95–209 at 9 (1977), reprinted in Committee on Education and Labor, House of Representatives, 96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 1977 at 612 (Comm. Print) (1979). Thus, operators are required to reimburse the Trust Fund for all benefits it paid to a claimant on the operator's behalf under an effective or final order.
This intent is undermined if an operator does not pay benefits or reimburse the Trust Fund while seeking to modify an effective award. One of the few events that terminates an effective order is being “superseded by an effective order issued pursuant to § 725.310.” 20 CFR 725.502(a)(1). Thus, if an operator evades its obligation to pay benefits under the terms of an effective or final order until it successfully modifies that order under § 725.310, the operator may entirely evade its obligation to pay benefits (or to reimburse the Trust Fund for paying benefits on the operator's behalf) under the initial order. Moreover, because § 725.310(d) allows only certain benefits paid under a previously effective order to be recovered (generally only benefits for periods after modification was requested), the Trust Fund will be unable to recoup benefits paid prior to that date from the claimant. And the Trust Fund's right to recover the remaining overpayment is of little practical value in many cases given that claimants may be entitled to waiver of overpayments by operation of §§ 725.540–548.
Section 725.502's requirement that operators pay benefits owed under the terms of effective (as well as final) awards is designed to place these overpayment recovery risks where they properly belong: On the operator who, if successful, has the same overpayment recoupment rights as the Trust Fund.
To deal with this recurring problem, the Department proposes adding new paragraph (e) to § 725.310. Proposed paragraphs (e)(1) and (2) provide that an operator's request to modify any effective award will be denied unless the operator proves that it has complied with all of its obligations under that award, and any other currently effective award (such as an attorney fee award) in the claim, unless payment has been stayed. By incorporating § 725.502(a)'s definition of effective award, the proposed regulation clarifies that an operator is not required to prove compliance with formerly effective awards that have been vacated either on reconsideration by an administrative law judge, or on appeal by the Board or a court of appeals, or that have been superseded by an effective modification order.
Proposed paragraph (e)(3) integrates the requirements of paragraph (e)(1) into the overall modification procedures outlined by § 725.310(b)–(c). The Department anticipates that compliance with the requirements of outstanding effective awards will be readily apparent from the documentary evidence in most cases and that any non-compliance with those obligations will be easily correctable by the operator based on that evidence. Accordingly, paragraph (e)(3) encourages the parties to submit all documentary evidence at the earliest stage of the modification process (
Proposed paragraph (e)(4) clarifies that an operator has a continuing obligation to comply with the requirements of effective awards during all stages of a modification proceeding. The Department believes that imposing an affirmative obligation on operators to continually update the administrative law judge, Board, or court currently adjudicating its modification request about every continuing payment required by previous awards would be unduly burdensome on both operators and adjudicators. When an operator's non-compliance is brought to an adjudication officer's attention, however, the adjudicator must issue an order to show cause why the operator's modification petition should not be denied. Because the issue will be the operator's compliance with paragraph (e)(1) at the time of the order rather than at the time it requested modification, evidence relevant to this issue will be admissible even in the absence of extraordinary circumstances. In addition, to avoid the burden of a minor default resulting in the denial of modification, paragraph (e)(4) gives the operator an opportunity to cure any default identified by the Director or claimant before the modification petition is denied.
Proposed paragraph (e)(5) clarifies that the denial of a modification request on the ground that the operator has not complied with its obligations under previous effective awards will not prejudice the operator's right to make additional modification requests in that same claim in the future. At the time of that future request, of course, the operator must satisfy all modification requirements, including § 725.310(e).
Finally, proposed paragraph (e)(6) makes these requirements applicable only to modification requests filed on or after the effective date of the final rule. Making the rule applicable prospectively avoids any administrative difficulties that could arise from applying the rule's requirements to pending modification requests.
The Department proposes a new provision that requires the parties to disclose all medical information developed in connection with a claim. Currently, parties to a claim are free to develop medical information to the extent their resources allow and then select from that information those pieces they wish to submit into evidence, subject to the evidentiary limitations set out in § 725.414.
Experience has demonstrated that miners may be harmed if they do not have access to all information about their health, including information that is not submitted for the record. Claimants who do not have legal representation are particularly disadvantaged because generally they are unfamiliar with the formal discovery process and thus rarely obtain undisclosed information. Moreover, benefit decisions based on incomplete medical information are less accurate. These results are contrary to the clear intent of the statute.
One recent case,
Mr. Fox left the mines in 2006 at the age of 56 because his pulmonary capacity had diminished to the point he could no longer work. He filed a second claim for benefits that same year. This time he was represented by counsel, who successfully obtained discovery of the medical information that the responsible operator had developed in connection with Mr. Fox's first claim but had not disclosed. This additional information included the pathologists' opinions and X-ray interpretations showing that Mr. Fox had complicated pneumoconiosis. The operator did not disclose any of these documents, despite an order from an administrative law judge, until 2008. Mr. Fox died in 2009 while awaiting a lung transplant.
Had Mr. Fox received the responsible operator's pathologists' opinions in 2000 when they were authored, he could have sought appropriate treatment for his advanced pneumoconiosis five or six years sooner than he did. He also could have made an informed decision as to whether he should continue in coal mine employment, where he was exposed to additional coal-mine dust. Or, he might have transferred to a position in a less-dusty area of the mine.
Mr. Fox's case highlights the longstanding problem claimants face in obtaining a full picture of the miner's health from testifying and non-testifying medical experts as well as examining and non-examining physicians.
Ensuring that a miner has access to information about his or her health is consistent with the primary tenet of the Mine Safety and Health Act (Mine Act). Congress expressly declared that “the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource—the miner.” 30 U.S.C. 801(a). This priority informs the Secretary's administration of the BLBA—including adoption of appropriate regulations—because Congress placed the BLBA in the Mine Act.
By requiring disclosure, the rule also protects parties who do not have legal representation. Virtually without exception, coal mine operators are represented by attorneys in claims heard by administrative law judges. But claimants cannot always obtain legal representation. The Department estimates that approximately 23 percent of claimants appear before administrative law judges without any representation, and some of those claimants who have representation are represented by lay persons. Unrepresented claimants and lay representatives are generally unfamiliar with technical discovery procedures and thus do not pursue any information not voluntarily disclosed by the operator. And even when represented, not all attorneys use available discovery tools. Thus, making full disclosure mandatory will put all parties on equal footing, regardless of representation and regardless of whether they request disclosure of all medical information developed in connection with a claim.
Finally, allowing parties fuller access to medical information may lead to better, more accurate decisions on claims. Elevating correctness over technical formalities is a fundamental tenant of the BLBA. Subject to regulations of the Secretary, the statute gives the Department explicit authority to depart from technical rules: adjudicators “shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure . . . but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.” 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a).
An incorporated provision of the Social Security Act provides additional authority for proposed § 725.413.
The proposed rule sets out both requirements for the disclosure of medical information and sanctions that may be imposed on parties that do not comply with the rule. Proposed § 725.413(a) defines what constitutes “medical information” for purposes of this regulation. The regulation casts a broad net by encompassing any medical data about the miner that a party develops in connection with a claim. Treatment records are not information developed in connection with a claim and thus do not fall within this definition. But any party may obtain and submit records pertaining to treatment for a respiratory or pulmonary or related disease under § 725.414(a)(4).
Proposed paragraph (a)(1) addresses examining physicians' opinions and includes all findings made by an examining physician in the definition of “medical information.” An examining physician's opinion may disclose incidental physical conditions beyond a miner's respiratory or pulmonary systems that need attention. Giving miners full access to this data is consistent with the Act's and the Department's intent to protect the miner's health. Proposed paragraphs (a)(2) through (a)(4) include all other physicians' opinions, tests, procedures and related documentation in “medical information,” but only to the extent they address the miner's respiratory or pulmonary condition.
Proposed § 725.413(b) sets out the duty to disclose medical information about the miner and a time frame for such disclosure. The duty to disclose arises when either a party or a party's agent receives medical information. By including a “party's agent,” the proposed rule requires disclosure of medical information received by any individual or business entity that develops or screens medical information for the party or the party's attorney. Thus, a party may not avoid disclosure by having medical opinions and testing results filtered through a third-party agent. The time frame for disclosure is generally 30 days after receipt of the medical information. Within that time period, the disclosing party must send a copy of the medical information obtained to all other parties of record. In the event the claim is already scheduled for hearing by an administrative law judge when the medical information is received, the proposed rule requires the disclosing party to send the information no later than 20 days prior to the hearing. This provision correlates with current § 725.456(b)(2)'s 20-day requirement for exchanging any documentary evidence a party wants to submit into the hearing record.
Proposed § 725.413(c) provides sanctions that an adjudication officer may impose on a party that does not comply with its obligation to disclose the medical information described in proposed § 725.413(a). In determining an appropriate sanction, the proposed rule requires the adjudication officer to consider whether the party who violated the disclosure rule was represented by counsel when the violation occurred. The proposed rule also requires the adjudication officer to protect represented parties when the violation was attributable solely to their attorney's errors. The sanctions listed are not exclusive, and an adjudication officer may impose a different sanction, so long as it is appropriate to the circumstances presented in the particular case. Two of the listed sanctions are unique to the BLBA claims context. First, the proposed rule allows the adjudication officer to disqualify the non-disclosing party's attorney from further participation in the claim proceedings. The Department believes this is an appropriate sanction when the party's attorney is solely at fault for the non-disclosure and the failure to disclose resulted from more than an administrative error. Second, the proposed rule empowers an adjudication officer to relieve a claimant from the impact of a prior claim denial (
Finally, proposed § 725.413(d) sets out when the rule is applicable. Significantly, proposed paragraph (d)(2) specifies that the rule applies to claims pending on the rule's effective date if an administrative law judge has not yet entered a decision on the merits. To provide adequate time for disclosure in pending cases, the proposed rule allows the parties 60 days to disclose evidence received prior to the rule's adoption. Evidence received after the rule's effective date remains subject to proposed § 725.413(b)'s 30-day time limit. After an administrative law judge issues a merits decision, proposed paragraph (d)(3) imposes the obligation to disclose medical information only when further evidentiary development is permitted on reconsideration, remand from an appellate body, or after a party files a modification request. Applying this rule to pending claims will further one of the rule's primary purposes: protecting the health of the nation's miners.
(a) Section 725.414 imposes limitations on the quantity of medical evidence that each party may submit in a black lung claim. The Department proposed the limitations, in part, to ensure that eligibility determinations are based on the quality, not the quantity, of evidence submitted and to reduce litigation costs. 62 FR 3338 (Jan. 22, 1997). Under the evidence limiting rule, each side in a living miner's claim—both the claimant and the responsible operator (or Director, when appropriate)—may submit two chest X-ray interpretations, the results of two pulmonary function tests, two arterial blood gas studies and two medical reports as its affirmative case. Current § 725.414(a)(1) defines a medical report as a “written assessment of the miner's respiratory or pulmonary condition” that “may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence.” 20 CFR 725.414(a)(1). Because additional medical evidence may become available after a physician has prepared a medical report, physicians often update their initial reports in supplemental reports addressing the new evidence. This practice has, at times, caused confusion regarding whether the supplemental report must be deemed a second medical report for purposes of the evidentiary limitations. The Department proposes to amend § 725.414(a)(1) to reflect the Director's longstanding position that these supplemental reports are merely a continuation of the physician's original medical report for purposes of the evidence-limiting rules and do not count against the party as a second medical report. The revised rule would apply to all claims filed after January 19, 2001.
The Director's position flows from the language of the current rules, which constrains the evidence a physician may review in a written report based only on its admissibility. Current § 725.414(a)(1) makes clear that a physician who provides a written opinion on the miner's pulmonary condition may consider all “admissible medical evidence.” Significantly, a physician who prepares a written medical report may also provide oral testimony in a claim, either at the formal hearing or through a deposition, and may “testify as to any other medical evidence of
Supplemental reports are a reasonable and cost-effective means of providing medical opinion evidence given the practical realities of federal black lung litigation. Even with the evidence-limiting rules, a miner who files a black lung claim may undergo up to five sets of examinations and testing “spread . . . out over time.” 65 FR 79992 (Dec. 20, 2000). A physician who examines the miner early in the claim process will obviously not at that time have access to all the medical evidence that ultimately will be admitted into the record. Given that the rules allow the physician to review all admissible medical evidence when evaluating the miner's condition, it makes sense to allow the physician to supplement his or her original report as new evidence becomes available. Indeed, a contrary rule would increase litigation costs because the party would be forced to have the physician review new evidence during a deposition or in-court testimony, both of which are much more costly means of providing evidence. There is therefore no practical or logical reason to consider a physician's supplemental written report a second medical report under the evidence limiting rules.
(b) For cases in which the Trust Fund is liable for benefits, current § 725.414(a)(3)(iii) authorizes the Director to exercise the rights of a responsible operator for purposes of the evidentiary limitations. 20 CFR 725.414(a)(3)(iii). The current rule does not, however, allow the Director to submit medical evidence, except for the medical evidence developed under § 725.406, in cases in which a coal mine operator is deemed the liable party. The rule thus leaves the Trust Fund potentially unprotected in cases in which the identified responsible operator has ceased to defend a claim during the course of litigation because of adverse financial developments, such as bankruptcy or insolvency. The Department proposes to amend § 725.414(a)(3)(iii) to allow the Director to submit medical evidence, up to the limits allowed an identified responsible operator, in such cases. The revised rule would apply to all claims filed after January 19, 2001.
The Trust Fund is liable for the payment of benefits if no operator can be identified as liable or if the operator identified as liable fails to pay benefits owed.
The first choice forecloses any possibility of recovery from the operator in the case of an award because the award would run against the Trust Fund. To be enforceable against an operator, the order awarding benefits must identify the operator as the liable party.
Proposed § 725.414(a)(3)(iii) allows the Director the option of developing evidence in such cases. This revision would not prejudice claimants because the Director would be bound by the same evidence-limiting rules as the operator. In a miner's claim, the medical evidence developed under § 725.406 counts as one medical report and one set of tests submitted by the Director, 20 CFR 725.414(a)(3)(iii), and the Director would be able to submit only one additional medical report and set of tests, along with appropriate rebuttal evidence. And in a survivor's claim, the Director, like an operator, is limited to two complete reports and rebuttal evidence. Moreover, in appropriate cases, the Director may determine that an award of benefits is justified, and decline to submit additional evidence. In sum, the proposed rule reasonably allows the Director to defend the Trust Fund against unwarranted liability in appropriate circumstances without unjustifiably burdening claimants.
Current § 725.601 sets out the Department's policy regarding enforcing the liabilities imposed by Part 725. The last sentence of current paragraph (b) refers to “payments in addition to compensation (see § 725.607)[.]” For the reasons explained in the discussion under § 725.607, the Department proposes to replace the phrase “payments in addition to compensation” with the phrase “payments of additional compensation.” No substantive change is intended.
The Department proposes two revisions to current § 725.607, which implements section 14(f) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 914(f), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), to clarify that amounts paid under section 14(f) are compensation. Section 14(f) generally provides that claimants are entitled to an additional 20% of any compensation owed under the terms of an award that is not paid within ten days after it becomes due.
The majority of courts to consider the question have agreed with the Director's view that the 20% payment required by section 14(f) is itself “compensation” rather than a penalty.
Current § 725.607 does not consistently reflect the majority rule or the Director's position. Paragraph (b) describes section 14(f) payments as “additional compensation.” But both the title of the section and paragraph (c) describe them as payments “in addition to compensation.” The latter formulation could be read to suggest
Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration and enforcement of the Act.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
As discussed earlier in the preamble, proposed § 725.413 would require each party in a black lung benefits claim to disclose certain medical information about the miner that the party or the party's agent receives by sending a complete copy of the information to all other parties in the claim. The Department does not believe this rule will have a broad impact because in many (and perhaps the majority) of cases, the parties already exchange all of the medical information in their possession as part of their evidentiary submissions. But requiring an exchange of additional medical information could be considered a collection of information within the meaning of the PRA. Thus, consistent with the requirements codified at 44 U.S.C. 3506(c)(2)(B) and 3507(d), and at 5 CFR 1320.11, the Department has submitted a new Information Collection Request to OMB for approval under the PRA and is providing an opportunity for public comment. A copy of this request (including supporting documentation) may be obtained free of charge by contacting Michael Chance, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, U.S. Department of Labor, 200 Constitution Avenue, NW., Suite N–3464, Washington, DC 20210. Telephone: (202) 693–0978 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1–800–877–8339.
The Department has estimated the number of responses and burdens as follows for this information collection:
Title of Collection: Disclosure of Medical Information
OMB Control Number: 1240–0NEW [OWCP will supply before publication]
Total Estimated Number of Responses: 4,074
Total Estimated Annual Time Burden: 679 hours
Total Estimated Annual Cost Burden: $21,537.88
In addition to having an opportunity to file comments with the Department, the PRA provides that an interested party may file comments on the information collection requirements in a proposed rule directly with OMB at the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OWCP, Office of Management and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
OMB and the Department are particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Department has considered the proposed rule with these principles in mind and has determined that the regulated community will benefit from this regulation. The discussion below sets out the rule's anticipated economic impact and discusses non-economic factors favoring adoption of the proposal. OMB has reviewed this rule prior to publication in accordance with these Executive Orders.
The proposed rule includes only one provision that arguably could have an economic impact on parties to black lung claims or others: proposed § 725.310(e), which requires a responsible operator to pay effective awards of benefits while seeking to modify those awards. As set forth above in the Section-by-Section Explanation, within one year of an award of benefits or of the last payment of benefits, a liable coal mine operator may request modification of an award (
Even if the proposed rule were construed to impose a new obligation on operators, the Department believes any additional costs involved would not be burdensome for several reasons. First, if an operator's modification request is denied, the operator must reimburse the Trust Fund with interest for all benefits paid to the claimant during the proceeding. In such cases, whether the responsible operator starts paying benefits after the award is made initially or does so after the modification process has ended, the operator must pay all benefits owed. Second, in those instances where the operator's modification petition is successful, the operator can pursue reimbursement from the claimant for at least some of the benefits paid, including those paid during the modification proceeding itself.
The Department has also considered other benefits and burdens that would result from the proposed rules apart from any potential monetary impact. As discussed in the Section-by-Section analysis, proposed § 725.310(e) requires responsible operators to meet their payment obligations on effective awards before modifying those awards. This rule strikes an appropriate balance between the parties' competing interests: claimants are made whole while operators who would be irreparably harmed by making such payments can seek a stay in payments. While there is some risk that the operator will not recover payments made after a successful modification petition, placing that risk on the operator, rather than the Trust Fund, is consistent with the Act's intent.
Proposed § 725.413, which requires the parties to disclose all medical information they develop, will help protect miners' health and assist in reaching more accurate benefits determinations. These concerns far outweigh any minimal additional administrative burden this rule would place on the parties as a result of the mandatory exchange of this information. Moreover, the Department does not believe this rule will have an extremely broad impact. In many (and perhaps the majority) of cases, the Department believes, and has been informed by the public, that the parties already exchange all of the medical information in their possession as part of their evidentiary submissions.
Finally, the proposed revisions to § 725.414 and § 725.607 will benefit all regulated parties simply by adding clarity to the rules.
The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601
The Department has determined that a regulatory flexibility analysis under the RFA is not required for this rulemaking. While many coal mine operators are small entities within the meaning of the RFA,
Based on these facts, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, a regulatory flexibility analysis is not required. The Department invites comments from members of the public who believe the regulations will have a significant economic impact on a substantial number of small coal mine operators. The Department has provided the Chief Counsel for Advocacy of the Small Business Administration with a copy of this certification.
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” E.O. 13132, 64 FR 43255 (Aug. 4, 1999). The proposed rule 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” if promulgated as a final rule.
The proposed rule meets the 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 proposed rule is not a “major rule” as defined in the Congressional Review Act, 5 U.S.C. 801
Administrative practice and procedure, Black lung benefits, Claims, Health care, Reporting and recordkeeping requirements, Vocational rehabilitation, Workers' compensation.
For the reasons set forth in the preamble, the Department of Labor proposes to amend 20 CFR part 725 as follows:
5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901
(b) Modification proceedings must be conducted in accordance with the provisions of this part as appropriate, except that the claimant and the operator, or group of operators or the fund, as appropriate, are each entitled to submit no more than one additional chest X-ray interpretation, one additional pulmonary function test, one additional arterial blood gas study, and one additional medical report in support of its affirmative case along with such rebuttal evidence and additional statements as are authorized by paragraphs (a)(2)(ii) and (a)(3)(ii) of § 725.414. Modification proceedings may not be initiated before an administrative law judge or the Benefits Review Board.
(c) At the conclusion of modification proceedings before the district director, the district director may issue a proposed decision and order (§ 725.418) or, if appropriate, deny the claim by reason of abandonment (§ 725.409). In any case in which the district director has initiated modification proceedings on his own initiative to alter the terms of an award or denial of benefits issued by an administrative law judge, the district director must, at the conclusion of modification proceedings, forward the claim for a hearing (§ 725.421). In any case forwarded for a hearing, the administrative law judge assigned to hear such case must consider whether any additional evidence submitted by the parties demonstrates a change in condition and, regardless of whether the parties have submitted new evidence, whether the evidence of record demonstrates a mistake in a determination of fact.
(d) An order issued following the conclusion of modification proceedings may terminate, continue, reinstate, increase or decrease benefit payments or award benefits. Such order must not affect any benefits previously paid, except that an order increasing the amount of benefits payable based on a finding of a mistake in a determination of fact may be made effective on the date from which benefits were determined payable by the terms of an earlier award. In the case of an award which is decreased, no payment made in excess of the decreased rate prior to the date upon which the party requested reconsideration under paragraph (a) of this section will be subject to collection or offset under subpart H of this part, provided the claimant is without fault as defined by § 725.543. In the case of an award which is decreased following the initiation of modification by the district director, no payment made in excess of the decreased rate prior to the date upon which the district director initiated modification proceedings under paragraph (a) will be subject to collection or offset under subpart H of this part, provided the claimant is without fault as defined by § 725.543. In the case of an award which has become final and is thereafter terminated, no payment made prior to the date upon which the party requested reconsideration under paragraph (a) will be subject to collection or offset under subpart H of this part. In the case of an award which has become final and is thereafter terminated following the initiation of modification by the district director, no payment made prior to the date upon which the district director initiated modification proceedings under paragraph (a) will be subject to collection or offset under subpart H of this part.
(e)(1) Any modification request by an operator must be denied unless the operator proves that at the time of the request, the operator has complied with all of the obligations imposed by all awards in the claim that are currently effective as defined by § 725.502(a). These include the obligations to—
(i) Pay all benefits owed to the claimant (including retroactive benefits under § 725.502(b)(2), additional compensation under § 725.607, and medical benefits under §§ 725.701
(ii) Reimburse the Black Lung Disability Trust Fund for all benefits paid (including payments prior to final adjudication under § 725.522, costs for the medical examination under § 725.406, and other benefits paid on behalf of the operator) with such penalties and interest as are appropriate.
(2) The requirements of paragraph (e)(1) of this section are inapplicable to any benefits owed pursuant to an effective but non-final order if the payment of such benefits has been stayed by the Benefits Review Board or appropriate court under 33 U.S.C. 921.
(3) Except as provided by paragraph (e)(4) of this section, the operator must submit all documentary evidence pertaining to its compliance with the requirements of paragraph (e)(1) of this section to the district director concurrently with its request for modification. The claimant is also entitled to submit any relevant evidence to the district director. Absent extraordinary circumstances, no documentary evidence pertaining to the operator's compliance with the requirements of paragraph (e)(1) at the time of the modification request will be admitted into the hearing record or otherwise considered at any later stage of the proceeding.
(4) The requirements imposed by paragraph (e)(1) of this section are continuing in nature. If at any time during the modification proceedings the operator fails to meet obligations imposed by all effective awards in the claim, the adjudication officer must issue an order to show cause why the operator's modification request should not be denied and afford all parties time to respond to such order. Responses may include evidence pertaining to the operator's continued compliance with the requirements of paragraph (e)(1). If, after the time for response has expired, the adjudication officer determines that the operator is not meeting its obligations, the adjudication officer must deny the operator's modification request.
(5) The denial of a request for modification under this section will not bar any future modification request by the operator, so long as the operator satisfies the requirements of paragraph (e)(1) of this section with each future modification petition.
(6) The provisions of this paragraph (e) apply to all modification requests filed on or after the effective date of this rule.
(a) For purposes of this section, medical information is any medical data about the miner that a party develops in connection with a claim for benefits, including medical data developed with any prior claim that has not been disclosed previously to the other parties. Medical information includes, but is not limited to—
(1) Any examining physician's written or testimonial assessment of the miner, including the examiner's findings, diagnoses, conclusions, and the results of any tests;
(2) Any other physician's written or testimonial assessment of the miner's respiratory or pulmonary condition;
(3) The results of any test or procedure related to the miner's respiratory or pulmonary condition, including any information relevant to the test or procedure's administration; and
(4) Any physician's or other medical professional's interpretation of the results of any test or procedure related to the miner's respiratory or pulmonary condition.
(b) Each party must disclose medical information the party or the party's agent receives by sending a complete copy of the information to all other parties in the claim within 30 days after receipt. If the information is received after the claim is already scheduled for hearing before an administrative law judge, the disclosure must be made at least 20 days before the scheduled hearing is held (
(c) At the request of any party or on his or her own motion, an adjudication officer may impose sanctions on any party or his or her representative who fails to timely disclose medical information in compliance with this section.
(1) Sanctions must be appropriate to the circumstances and may only be imposed after giving the party an opportunity to demonstrate good cause why disclosure was not made and sanctions are not warranted. In determining an appropriate sanction, the adjudication officer must consider—
(i) Whether the sanction should be mitigated because the party was not represented by an attorney when the information should have been disclosed; and
(ii) Whether the party should not be sanctioned because the failure to disclose was attributable solely to the party's attorney.
(2) Sanctions may include, but are not limited to—
(i) Drawing an adverse inference against the non-disclosing party on the facts relevant to the disclosure;
(ii) Limiting the non-disclosing party's claims, defenses or right to introduce evidence;
(iii) Dismissing the claim proceeding if the non-disclosing party is the claimant and no payments prior to final adjudication have been made to the claimant unless the Director agrees to the dismissal in writing (
(iv) Rendering a default decision against the non-disclosing party;
(v) Disqualifying the non-disclosing party's attorney from further participation in the claim proceedings; and
(vi) Relieving a claimant who files a subsequent claim from the impact of § 725.309(c)(6) if the non-disclosed evidence predates the denial of the prior claim and the non-disclosing party is the operator.
(d) This rule applies to—
(1) All claims filed after the effective date of this rule;
(2) Pending claims not yet adjudicated by an administrative law judge, except that medical information received prior to the effective date of this rule and not previously disclosed must be provided to the other parties within 60 days of the effective date of this rule; and
(3) Pending claims already adjudicated by an administrative law judge where—
(i) The administrative law judge reopens the record for receipt of additional evidence in response to a timely reconsideration motion (
(ii) A party requests modification of the award or denial of benefits (
(a)
(2)(i) The claimant is entitled to submit, in support of his affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports. Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph (a)(2)(i) or paragraph (a)(4) of this section.
(ii) The claimant is entitled to submit, in rebuttal of the case presented by the party opposing entitlement, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the designated responsible operator or the fund, as appropriate, under paragraph (a)(3)(i) or (iii) of this section and by the Director pursuant to § 725.406. In any case in which the party opposing entitlement has submitted the results of other testing pursuant to § 718.107 of this chapter, the claimant is entitled to submit one physician's assessment of each piece of such evidence in rebuttal. In addition, where the responsible operator or fund has submitted rebuttal evidence under paragraph (a)(3)(ii) or (iii) of this section with respect to medical testing submitted by the claimant, the claimant is entitled to submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing. Where the rebuttal evidence tends to undermine the conclusion of a physician who prepared a medical report submitted by the claimant, the claimant is entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.
(3)(i) The responsible operator designated pursuant to § 725.410 is entitled to obtain and submit, in support of its affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports. Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph (a)(3)(i)
(A) To provide the Office or the designated responsible operator with a complete statement of his or her medical history and/or to authorize access to his or her medical records; or
(B) To submit to an evaluation or test requested by the district director or the designated responsible operator, the miner's claim may be denied by reason of abandonment. (
(ii) The responsible operator is entitled to submit, in rebuttal of the case presented by the claimant, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the claimant under paragraph (a)(2)(i) of this section and by the Director pursuant to § 725.406. In any case in which the claimant has submitted the results of other testing pursuant to § 718.107 of this chapter, the responsible operator is entitled to submit one physician's assessment of each piece of such evidence in rebuttal. In addition, where the claimant has submitted rebuttal evidence under paragraph (a)(2)(ii) of this section, the responsible operator is entitled to submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing. Where the rebuttal evidence tends to undermine the conclusion of a physician who prepared a medical report submitted by the responsible operator, the responsible operator is entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.
(iii) In a case in which the district director has not identified any potentially liable operators, or has dismissed all potentially liable operators under § 725.410(a)(3), or has identified a liable operator that ceases to defend the claim on grounds of an inability to provide for payment of continuing benefits, the district director is entitled to exercise the rights of a responsible operator under this section, except that the evidence obtained in connection with the complete pulmonary evaluation performed pursuant to § 725.406 must be considered evidence obtained and submitted by the Director, OWCP, for purposes of paragraph (a)(3)(i) of this section. In a case involving a dispute concerning medical benefits under § 725.708, the district director is entitled to develop medical evidence to determine whether the medical bill is compensable under the standard set forth in § 725.701.
(4) Notwithstanding the limitations in paragraphs (a)(2) and (3) of this section, any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, may be received into evidence.
(5) A copy of any documentary evidence submitted by a party must be served on all other parties to the claim. If the claimant is not represented by an attorney, the district director must mail a copy of all documentary evidence submitted by the claimant to all other parties to the claim. Following the development and submission of affirmative medical evidence, the parties may submit rebuttal evidence in accordance with the schedule issued by the district director.
(c)
(d) Except to the extent permitted by §§ 725.456 and 725.310(b), the limitations set forth in this section apply to all proceedings conducted with respect to a claim, and no documentary evidence pertaining to liability may be admitted in any further proceeding conducted with respect to a claim unless it is submitted to the district director in accordance with this section.
(b) It is the policy and intent of the Department to vigorously enforce the provisions of this part through the use of the remedies provided by the Act. Accordingly, if an operator refuses to pay benefits with respect to a claim for which the operator has been adjudicated liable, the Director may invoke and execute the lien on the property of the operator as described in § 725.603. Enforcement of this lien must be pursued in an appropriate U.S. district court. If the Director determines that the remedy provided by § 725.603 may not be sufficient to guarantee the continued compliance with the terms of an award or awards against the operator, the Director may in addition seek an injunction in the U.S. district court to prohibit future noncompliance by the operator and such other relief as the court considers appropriate (see § 725.604). If an operator unlawfully suspends or terminates the payment of benefits to a claimant, the district director may declare the award in default and proceed in accordance with § 725.605. In all cases payments of additional compensation (see § 725.607) and interest (see § 725.608) will be sought by the Director or awarded by the district director.
(c) In certain instances the remedies provided by the Act are concurrent; that is, more than one remedy might be appropriate in any given case. In such a case, the Director may select the remedy or remedies appropriate for the enforcement action. In making this selection, the Director shall consider the best interests of the claimant as well as those of the fund.
(a) If any benefits payable under the terms of an award by a district director (§ 725.419(d)), a decision and order filed and served by an administrative law judge (§ 725.478), or a decision filed by the Board or a U.S. court of appeals, are not paid by an operator or other employer ordered to make such
(b) If, on account of an operator's or other employer's failure to pay benefits as provided in paragraph (a) of this section, benefit payments are made by the fund, the eligible claimant will nevertheless be entitled to receive such additional compensation to which he or she may be eligible under paragraph (a), with respect to all amounts paid by the fund on behalf of such operator or other employer.
(c) The fund may not be held liable for payments of additional compensation under any circumstances.
Department of State.
Proposed rule.
Currently, all U.S. passport book applicants may apply for either a 28-page or 52-page passport book at no extra charge. U.S. passport book holders may then apply for additional visa pages while the passport book is still valid. The Department of State proposes eliminating the option to add visa pages in passports beginning January 1, 2016. To help mitigate the need for visa page inserts, the Department began issuing the larger 52-page passport book in October 2014 to all overseas U.S. passport applicants at no extra cost. U.S. passport applicants applying domestically can still obtain the 52-page passport book at no extra charge by requesting it on the application form. The elimination of visa page inserts coincides with the Department's anticipated rollout of the Next Generation Passport in 2016. The Next Generation Passport incorporates new security features designed to protect the integrity of U.S. passport books against fraud and misuse. An interagency working group determined that the addition of visa page inserts could reduce the effectiveness of these new security features. If this change is implemented, the fee for this service will be removed from the Schedule of Fees for Consular Services.
Written comments must be received on or before June 29, 2015.
Interested parties may submit comments by any of the following methods:
• Visit the Regulations.gov Web site at:
• Mail (paper, disk, or CD–ROM): U.S. Department of State, Office of Passport Services, Bureau of Consular Affairs (CA/PPT), Attn: CA/PPT/IA, 44132 Mercure Circle, P.O. Box 1227, Sterling, Virginia 20166–1227.
Michael Holly, Office of Passport Services, Bureau of Consular Affairs; 202–485–6373:
The Department proposes eliminating the visa page insert service for regular fee passport book holders beginning January 1, 2016. The expected effective date of this rule coincides with when the Department expects to begin issuing an updated version of the Next Generation Passport book. The Department routinely updates the technology used to produce U.S. passport books so that U.S. passport books use the most current anti-fraud and anti-counterfeit measures. The Next Generation Passport, which is the next update of the U.S. passport book, will contain a polycarbonate data-page and will be personalized with laser engraving. This passport will also employ conical laser perforation of the passport number through the data and visa pages; display a general artwork upgrade and new security features including watermark, security artwork, optical variable security devices, tactile features, and optically variable inks. The primary reason for eliminating visa page inserts is to protect the integrity of the Next Generation Passport books.
In 2012, an interagency working group tasked with overseeing the development and deployment of Next Generation Passport books found that visa page inserts could compromise the effectiveness of security features of the new passport books that are intended to provide greater protections against fraud and misuse. To maximize the effectiveness of the Next Generation Passport that is expected to be issued to the general public in 2016, the Department considered whether visa page inserts could be phased out at the time that the Department begins to issue the new passport books.
As part of this study, the Department considered the extent of the public's usage of visa page inserts, costs to the Department of eliminating the service, and whether any inconvenience to the public could be minimized. A study of a sample of visa page insert applications revealed that a significant majority of those applying for visa page inserts had them added to 28-page passport books, rather than to the larger 52-page books. A set of visa page inserts is 24 pages. Accordingly, a 52-page passport book is the same size as a 28-page book with a set of extra visa pages. The Department determined that the demand for additional visa pages would be substantially reduced by issuing only the larger 52-page passport books to overseas U.S. passport applicants. Accordingly, the Department has begun issuing the 52-page book to overseas applicants, who are the most likely to apply for extra visa pages, at no additional cost. This should further reduce the already limited demand for visa page inserts, thus making the rule's impact on the public very minimal. Individuals who apply for U.S. passports within the United States will continue to have the option to request a 52-page passport at no additional charge.
Each version of the Next Generation Passport book contains two fewer pages total, but the same number of visa pages as the passport books currently in circulation. Accordingly, after the Department begins issuing the Next Generation Passport book, all domestic passport book applicants will still have the option to choose between a 26-page passport book and a larger 50-page passport book, but the larger 50-page passport books will be automatically issued to people applying overseas.
The Department believes the limited demand for visa page inserts is outweighed by the importance of ensuring that the Next Generation Passport provides the maximum protection against fraud and misuse. Furthermore, the Department must monitor unused inventories of passport products, and the elimination of visa page inserts would facilitate more secure inventory controls. Accordingly,
If this change is implemented, the fee for additional visa pages will be removed from the Schedule of Fees for Consular Services of the Department of State's Bureau of Consular Affairs (“Schedule of Fees” or “Schedule”).
The Secretary of State is authorized to issue U.S. passports under 22 U.S.C. 211a. The Department of State, Bureau of Consular Affairs, administers the U.S. passport issuance program and manages the consular sections of all U.S. consulates and embassies overseas. The Department of State derives the authority to eliminate visa page inserts from its statutory authority to issue U.S. passports and manage the U.S. passport issuance program.
The Department intends to implement this proposed rule on January 1, 2016.
The Department is publishing this rule as a proposed rule, with a 60-day provision for public comments.
The Department, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). This rule eliminates the extra visa page insert service for U.S. passport book holders. Approximately 170,000 passport book holders applied for visa page inserts during Fiscal Year 2013. Only individuals, and no small entities, apply for visa page inserts.
This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501–1504.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, since it will not result in an annual impact on the economy of $100 million or more.
This rule is not economically significant under Executive Order 12866, section 3(f)(1), because it will not have an annual impact on the economy of $100 million or more. This rule has been submitted to the Office of Management and Budget for review.
The Department expects the proposed rule's impact on the public to be minimal because of the already low demand for visa page inserts and steps taken by the Department to reduce that demand even further. In Fiscal Year 2013, the Department processed only 170,000 requests for additional visa pages. By comparison, the Department issued more than 12 million passports during the same time period, and there are more than 122 million passports in circulation. The Department estimates that 97 percent of renewed U.S. passport books will use less than 18 visa pages, which is a strong indication that current book sizes (28 pages and 52 pages) meet the needs of U.S. travelers.
The Department of State does not anticipate that demand for passport services affected by this rule will change significantly because of the elimination of visa page inserts, and welcomes public comment on that expectation.
This rule 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. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
This rule does not impose or alter any reporting or record-keeping requirements under the Paperwork Reduction Act.
Consular services, fees, passports and visas.
Accordingly, for the reasons stated in the preamble, 22 CFR parts 22 and 51 are proposed to be amended as follows:
8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 1351 note, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 4219, 6551; 31 U.S.C. 9701; Executive Order 10,718,22 FR 4632; Executive Order 11,295,31 FR 10603.
8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 1351 note, 1714,1714 note; 10 U.S.C. 2602 (c); 11 U.S.C. 1157 note; 22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201,4206,4215, 4219,6551; 31 U.S.C. 9701; Executive Order 10,718,22 FR4632; Executive Order 11,295,31 FR 10603.
(a) An application for a passport, a replacement passport, or other passport related service must be completed using the forms the Department prescribes.
(a) Within the United States, an applicant for a passport service (including issuance or the replacement of a passport) may request expedited processing. The Department may decline to accept the request.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a January 24, 2013 State Implementation Plan (SIP) revision submitted for the State of Maryland by the Maryland Department of the Environment (MDE). This revision pertains to preconstruction permitting requirements under Maryland's minor New Source Review (NSR) program. This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before May 29, 2015.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2015–0225 by one of the following methods:
A.
B.
C.
D.
David Talley, (215) 814–2117, or by email at
On January 24, 2013, MDE submitted a revision to the Maryland SIP.
The proposed revision consists of amendments to Regulation .09 under section 26.11.02 of the Code of Maryland Regulations (COMAR). An amendment to COMAR 26.11.01.01 inadvertently widened the universe of sources that are required to obtain a permit to construct under COMAR 26.11.02.09. The previously approved version of COMAR 26.11.02.09A(4) requires that any “National Emission Standards for Hazardous Air Pollutants Source (NESHAP Source) as defined in section 26.11.01.01 . . .” obtain a permit to construct. The definition of NESHAP Source at COMAR 26.11.01.01B(21) was amended and simplified (specifically, 26.11.01.01B(21)(b)), effective March 5, 2012.
The proposed revision to section 26.11.02.09A(4) allows MDE to retain the exemptions for smaller sources as originally intended and already approved in the Maryland SIP. Additionally, Regulations .09A(3) and .09A(4) under section 26.11.02 were revised to clarify that electric generating stations that meet the definitions of New Source Performance Standard (NSPS) sources and NESHAP sources are exempt from MDE permitting requirements only if they receive a Certificate of Public Convenience and Necessity (CPCN) from the Maryland Public Service Commission (PSC).
COMAR 26.11.02.09A(4) has been revised to specify that NESHAP sources “. . . as defined by COMAR 26.11.01.01B(21)(a),” are required to obtain a permit to construct. This corrects the unintended consequence of applying MDE permitting requirements to emission sources that would otherwise be exempt. COMAR 26.11.02.09A(6) will continue to require that all sources not explicitly exempt are required to obtain a permit to construct. Additionally, as previously discussed, Regulations .09A(3) and .09A(4) under section 26.11.02 have been revised to clarify that electric generating stations that meet the definitions of NSPS sources and NESHAP sources are exempt from permitting requirements only if they receive a CPCN from the Maryland PSC. The proposed revisions were effective in Maryland on July 8, 2013.
EPA's review of this material indicates that it meets all applicable CAA requirements. EPA notes that in a February 10, 2012 final rulemaking action, limited approval was granted to a Maryland SIP revision that included amendments to COMAR 26.11.02.09.
In this proposed rulemaking action, EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference Maryland's permit to construct requirements as discussed in section II of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, relating to Maryland's preconstruction permitting requirements, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 2 is issuing a Notice of Intent to Delete the Crown Vantage Landfill Superfund Site (Site), located in Alexandria Township, Hunterdon County, New Jersey, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA and the State of New Jersey, through the New Jersey Department of Environmental Protection, have determined that all appropriate response actions under CERCLA, other than long-term maintenance and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.
Comments must be received by May 29, 2015.
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–2005–0002, by one of the following methods:
•
•
•
•
U.S. Environmental Protection Agency, Region 2, Superfund Records Center, 290 Broadway, Room 1828, New York, NY 10007–1866,
Milford Public Library, Crown Vantage Landfill Site Repository File, 40 Frenchtown Road, Milford, NJ 08848,
Alison Hess, Remedial Project Manager, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 19th Floor, New York, NY 10007–1866;
EPA Region 2 is announcing its intent to delete the Crown Vantage Landfill Superfund Site from the NPL and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300 which is the NCP, which EPA promulgated pursuant to section 105 of the CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.
EPA will accept comments on the proposal to delete this Site for thirty (30) days after publication of this document in the
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the Site:
(1) EPA consulted with the State before developing this Notice of Intent to Delete;
(2) EPA has provided the State 30 working days for review of this notice prior to publication of it today;
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;
(4) The State of New Jersey, through the New Jersey Department of Environmental Protection (NJDEP), has concurred with deletion of the Site from the NPL;
(5) Concurrently with the publication of this Notice of Intent to Delete in the
(6) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following summary provides EPA's rationale for deleting the Site from the NPL:
The Crown Vantage Landfill Site is an inactive former landfill located at 500 Milford-Frenchtown Road in Alexandria Township, New Jersey. The Site occupies about 10 acres and has approximately 1,500 feet of frontage on the eastern bank of the Delaware River. A mix of young and mature hardwood trees, shrubs and grasses covers the Site. Access to the landfill area is restricted by locked chain-link fencing.
To the west of the site, across the Delaware River, lies Bucks County, Pennsylvania. The Delaware and Raritan Canal foot path and a farm field bound the Site to the east. Historically, railroad tracks bounded the Site to the east. The landfill property is bounded to the south by the Delaware Raritan Canal State Park and to the north by the Curtis Specialty Papers Superfund site.
The landfill reportedly was utilized by the nearby former Curtis Specialty Papers mill, as well as by other nearby Riegel Paper Company facilities, for the disposal of waste beginning in the late 1930s through the early 1970s. The landfill may also have accepted flood-damaged items from the local community following record flooding of the Delaware River in 1955. Types of wastes disposed of at the landfill include fly ash, cinders, and bottom ash; paper mill and coating-related wastes, including foil-backed paper, off-specification paper, 55-gallon drums containing press room wastes, and paper fiber sludge from wastewater treatment plant operations; steel and fiber barrels and pallets; and construction and demolition debris. Historical aerial photos indicated that shallow trenches in the surface of the landfill may have been used for the burial of drummed wastes in the early 1970s.
Site characterization began in 1991 with the Preliminary Site Investigation (PSI), including an aerial photograph analysis, geophysical survey of the landfill area, soil gas sampling, ground water sampling and a wetlands assessment. The PSI was followed by the removal of drums (empty, full, and partially full) and paper products from the surface of the landfill. In 1994, monitoring wells were installed and the ground water quality was characterized.
From 2001 through 2003, the NJDEP fenced the Site, removed additional surface debris, including drums, and collected surface soil samples. The EPA conducted additional sampling of surface water, sediment, surface soil and fly ash, and ground water in 2003 and 2004. Additional wastes were removed from the surface and riprap was placed in flood-impacted areas.
The Site was proposed to the National Priorities List (NPL) in September 2004 (69 FR 56970) and listed on the NPL in April 2005 (70 FR 21644). The EPA CERCLIS ID# is NJN000204492.
In May 2005, Fort James Operating Company, a subsidiary of Georgia-Pacific, entered into an Administrative Order on Consent (AOC) with EPA for a Removal Action. Under the 2005 AOC, additional surficial drums were removed, additional fencing was provided, and an engineered slope stabilization wall was constructed to stabilize the landfill's western face. In total, over 700 surficial drums, drum remnants and drum carcasses were removed from the surface of the Site during investigations conducted between 1991 and 2007.
Further investigations and removal actions at the Site were performed by Georgia-Pacific Consumer Products, LP (GP) under an Administrative Agreement and Order on Consent signed in September 2007 and by International Paper Company (IP) under a Unilateral Administrative Order signed in December 2007. During the Remedial Investigation (RI) conducted in 2008–2009, more than 1,750 drums, drum carcasses and drum remnants were removed from the Site. Analytical data from surface water, pore water and groundwater sampling showed that these media were not impacted by the Site. The RI Report was completed in July 2010. The RI concluded that, after removal activities were conducted, all human health risks were within or below EPA's acceptable levels. An ecological risk assessment was also conducted and concluded that there was no need for remediation based on potential risks to ecological receptors. The Feasibility Study Report, developed to identify and compare cleanup alternatives, was completed in November 2010.
The Site remedy was selected and memorialized in the Site Record of Decision (ROD), which was issued on September 29, 2011. Because the baseline human health risk assessment and ecological risk assessments for the Site did not identify the presence of unacceptable human health or ecological risks requiring remediation under current and reasonably anticipated future Site use, the remedial action objectives were limited to preventing exposures to landfill materials. The major components of the selected remedy of the ROD are the following:
• Establishment of a deed restriction to ensure that future Site uses do not result in the disturbance of the surface of the Site, thereby preventing future residential or commercial/industrial development of the Site;
• Continued maintenance of security measures at the Site (
• Continued maintenance of the slope stabilization wall;
• Sealing of remaining shallow monitoring wells;
• Semi-annual monitoring of the Site, including the slope stabilization wall; and
• Five-Year Reviews by EPA to ensure that the remedy continues to be protective of public health and the environment.
A Consent Decree for IP's and GP's performance of the Remedial Design and Remedial Action was entered by the United States District Court for the District of New Jersey in April 2013.
The remedy was designed and constructed in a single phase pursuant to EPA-approved work plans. The monitoring well closures and fence relocation measures undertaken as part of maintaining the existing security as required by the ROD were conducted from February to April 2013. Three monitoring wells and two piezometers were located in the field and sealed in accordance with New Jersey well closure regulations. Another three monitoring wells and four piezometers were documented to have been closed in 2007. Lastly, two monitoring wells could not be located visually or with the use of a metal detector and may have been closed in 2007 or covered by silt and other materials since they were last sampled in 1994, and four piezometers located beneath the slope stabilization wall also could not be located and are presumed to no longer be accessible. New 12-foot fence posts were driven to a depth of four feet. Monitoring of ambient air was conducted during fence installation, with no measurable concentrations of volatile organic compounds detected above background levels. Old posts and fencing were removed and recycled, and a new section of fencing and fabric installed. New coated, rust-free aluminum signs were posted along the entire fence perimeter as needed. EPA conducted a final inspection in July 2013 and issued a Preliminary Site Close-Out Report in September 2013.
IP and GP prepared a draft deed notice pursuant to the April 2013 Consent Decree. EPA approved the final deed notice in December 2013. The deed notice was recorded by the Hunterdon County Clerk in February 2014.
EPA issued a Final Site Close-Out Report in December 2014.
The ongoing maintenance plan was approved in June 2013. This plan covers site security, the long-term monitoring and maintenance of the slope stabilization wall and recertification of the deed notice.
Hazardous substances, pollutants, or contaminants will remain at the Site above levels that allow for unlimited use and unrestricted exposure. Therefore, pursuant to CERCLA Section 121(c), EPA is required to conduct a review of the remedy at least once every five years. The first Five-Year Review Report will be completed prior to February 2018, which is five years from the start of the on-site remedial action construction.
Public participation activities for the Site have been satisfied as required by CERCLA sections 113(k) and 117, 42 U.S.C. 9613(k) and 9617. A Community Advisory Group (CAG) for the Site has been meeting quarterly since 2009. EPA finalized a site-specific Community Involvement Plan in March 2010. The CAG obtains information from EPA and provides community input on the site progress, including the implementation of field activities associated with investigations, removals and remedial construction. EPA maintains a local site information repository at the Milford Public Library and regularly adds site reports and other documents.
As part of the remedy selection process, the public was invited to comment on the proposed remedy. In June 2011, EPA released a Proposed Plan summarizing the RI/FS reports and identifying the preferred remedial alternative with the rationale for its preference. EPA held a public meeting on July 12, 2011 at the Milford Firehouse to explain the Proposed Plan and to receive public comments. EPA held a public comment period from July 1 through 31, 2011 to accept written comments. Responses to comments received at the public meeting and comments submitted during the public comment period are provided in the Responsiveness Summary section of the ROD.
All other documents and information the EPA relied on or considered in recommending this deletion are available for the public to review at the information repositories identified above.
All of the completion requirements for the Site have been met, as described in the December 29, 2014 Final Site Close-Out Report. The State of New Jersey, in January 12, 2015 letter, concurred with the proposed deletion of the Site from the NPL. As described in this Notice of Intent to Delete, the implemented remedy achieves the degree of cleanup specified in the ROD for all exposure pathways; the RAO has been met, and no further Superfund response is needed to protect human health and the environment.
The NCP specifies that EPA may delete a site from the NPL if responsible parties or other persons have implemented all appropriate response actions. EPA, with the concurrence of the State of New Jersey, believes that this criterion for deletion has been met. Consequently, EPA intends to delete the Crown Vantage Landfill Site from the NPL. Documents supporting this action are available for review at the information repositories identified above.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p.306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193. Dated: April 15, 2015.
Food Safety and Inspection Service, USDA.
Notice: Response to comments.
The Food Safety and Inspection Service (FSIS) is responding to comments on the September 19, 2012,
On July 28, 2015, FSIS will implement design changes in bench trim and other ground beef components besides trimmings.
Daniel Engeljohn, Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, (202) 205–0495.
On September 19, 2012, FSIS published a
In June 2012, FSIS implemented the risk-based design and other changes discussed in the 2012
Therefore, FSIS has concluded that its change in sampling was effective. However, FSIS has not been able to estimate STEC prevalence in trimmings because it has not obtained a sufficient number of sample results. To address this issue, FSIS has increased the number of trim samples scheduled to be collected by inspectors for each month to that of the number of samples it had previously scheduled to be collected during months in the high prevalence season, effective November 2014. FSIS made this change to obtain the number of samples needed to allow on-going prevalence determinations to be made from the data collected.
FSIS started conducting the Beef-Veal carcass baseline on August 1, 2014, and will complete the survey July 31, 2015. As stated in the previous
FSIS conducted a statistical analysis of the results from its sampling of bench trim program and its sampling of other ground beef components besides trimmings to identify factors that would lead to a higher probability of detecting
FSIS received comments from seven industry and consumer organizations in response to the September 2012 notice. Both industry and consumer organizations supported the Agency's use of statistically significant data to make scientifically supported decisions regarding its sampling programs. Following is a discussion of these comments and FSIS's responses.
As FSIS explained in response to the Office of the Inspector General's report on the Agency's sampling protocol for testing beef trim for
While a single N–60 sample result may not indicate definitively the success or failure of an establishment's process controls for beef trim, it can be an important part of the establishment's verification program, especially if the establishment or FSIS takes multiple N–60 samples over time.
FSIS' mission is not to screen the food supply through testing but to ensure the production of safe and wholesome food through inspection.
As explained in the 2012
At this time, FSIS does not have the means to collect different types of market class information other than to differentiate between beef and veal. FSIS will continue to report veal results separately from other beef results
FSIS reviewed the data for the relevant inspection tasks performed and FSIS positive results at establishments sampled under the trimmings (MT50)
The Agency has a finite number of resources which makes stocking multiple sample boxes at establishments cost prohibitive. Additionally, some USDA offices in establishments are small and do not allow for storage of multiple sample boxes. If establishments change their food safety system on the days that FSIS collects samples in a manner to influence the sample result, FSIS has instructed inspection program personnel to notify their supervisory chain so that a determination can be made as to how to address this concern. In such circumstances, FSIS may decide to conduct additional sampling at the establishment or to conduct a Food Safety Assessment (which includes in-depth verification that the establishment meets regulatory requirements related to food safety).
FSIS has used the numbers obtained in the survey to estimate sampling numbers for industry testing as part of the economic analysis for STEC sampling in all of the Agency's raw beef microbiological sampling programs. The economic analysis is available at
FSIS implemented the survey in such a way as to not cause an undue economic burden on industry.
With the two points that the Agency chose to use for sampling for the baseline carcass study, FSIS requires the establishment to hold or control the movement of sampled carcasses at pre-chill until the establishment is notified of STEC results. FSIS verifies that the establishment does not treat the sampled carcasses any differently than any of the other carcasses it is processing. In the event that a sampled carcass is treated differently, FSIS will randomly select another carcass during the same processing time and collect samples from that carcass.
The results from samples collected during the baseline carcass study become available after all analyses for STEC and
FSIS is not issuing noncompliance records (NRs) for STEC positive results during the baseline. In response to a positive result from the pre-chill sample only, field personnel perform a directed Slaughter HACCP Verification task to verify that the establishment has adequate slaughter controls (including antimicrobial intervention implementation) for the specific production lot represented by the positive STEC carcass result. Field personnel also verify that the establishment implements corrective actions that meet the applicable requirements in 9 CFR 417.3. Field personnel do not verify corrective actions in response to a positive STEC result from the post-hide/pre-evisceration sample. Rather, FSIS verifies that establishments ensure that carcasses found positive for STECs during the pre-chill sampling and testing are not processed into raw non-intact product. The presence of STEC on a pre-chill carcass intended for use as raw non-intact product would adulterate the carcass. The presence of STEC on a carcass intended for use as raw intact product would not adulterate the carcass if the entire carcass is going for intact product. In the event that a carcass tests positive for STEC, establishments may take action to ensure that all products from the carcass go for cooking, or they may take action to recondition the carcass and ensure that the carcass goes for intact use only.
In the event of a STEC positive on a post-hide removal/pre-evisceration sample without a corresponding pre-chill sample on a carcass intended for raw non-intact use, the carcass would not be considered adulterated. The carcass presumably will undergo further interventions after post-hide removal/pre-evisceration. In the event of a STEC positive from a pre-chill test result on a carcass intended for raw non-intact use, the carcass is considered adulterated. The establishment is required to take corrective action.
The following comment topics that were received are outside the scope of this notice: disappearing schedule dates from PHIS, returned FedEx sample boxes, FSIS training materials, and purge studies.
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250–9410, Fax: (202) 690–7442, Email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720–2600 (voice and TDD).
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this information collection. This collection is a revision of a currently approved collection which FNS employs to determine public participation in Special Milk Program for Children.
Written comments must be received on or before June 29, 2015.
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, including the validity of the methodology and assumptions that were used; (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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Lynn Rodgers-Kuperman, Branch Chief, Program Monitoring, Child Nutrition Programs, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 636,
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Lynn Rodgers-Kuperman at 703–305–2595.
Section 10 of the CNA (42 U.S.C. 1779) requires the Secretary of Agriculture to prescribe such regulations as deemed necessary to carry out this Act and the National School Lunch Act. Pursuant to that provision, the Secretary has issued 7 CFR part 215, which sets forth policies and procedures for the administration and operation of the SMP. State and local operators of the SMP are required to meet Federal reporting and accountability requirements. This information collection is required to administer and operate this program. The Program is administered at the State, school food authority (SFA), and child care institution levels; and operations include the submission of applications and agreements, submission and payment of claims, and maintenance of records. The reporting and record keeping burden associated with this revision has decreased from 21,246 to 14,914 hours. This change is mainly due to adjustments, such as corrections in the number of institutions and the amount of burden per response. All of the reporting and recordkeeping requirements associated with the SMP are currently approved by the Office of Management and Budget and are in force. This is a revision of the currently approved information collection.
Refer to the table below for estimated total annual burden for each type of respondent.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed information collection for the Annual State Report of Verification of SNAP Participation. This is a new collection. The purpose of the Annual State Report of Verification of Supplemental Nutrition Assistance Program (SNAP) Participants is to ensure that no person who is deceased, or has been permanently disqualified from SNAP, improperly received SNAP benefits for the fiscal year preceding the report submission. Section 4032 of the Agriculture Act of 2014 is the basis for this collection. Section 4032 mandates that States will “submit to the Secretary a report containing sufficient information for the Secretary to determine whether the State agency has, for the most recently concluded fiscal year preceding that annual date, verified that the State agency in that fiscal year—(1) did not issue benefits to a deceased individual; and (2) did not issue benefits to an individual who had been permanently disqualified from receiving benefits.” An annual email from each State agency to the corresponding Food and Nutrition Service (FNS) Regional SNAP Program Director will be used as the mechanism for State agencies to report their compliance with section 4032 of the Agriculture Act of 2014.
Written comments must be submitted on or before June 29, 2015.
Comments are invited on: (a) Whether the proposed information collection is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (b) the accuracy of the agency's estimated burden for the proposed information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection 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.
Comments may be sent to Jane Duffield, Branch Chief, State Administration Branch, Program Accountability and Administration Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 818, Alexandria, VA 22302. You may also download an electronic version of this notice at
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 822, Alexandria, Virginia 22302.
All comments to this notice will be included in the request for Office of Management and Budget approval. All comments will also become a matter of public record.
Requests for additional information or copies of this information collection should be directed to Clyde Thompson at (703) 305–2461.
The burdens associated with the activity of establishing a system to verify and ensure that benefits are not issued to deceased individuals or those permanently disqualified from SNAP using both the SSA Death Master File and eDRS are already conducted during the SNAP eligibility benefit process and is currently approved under OMB burden number 0584–0064, expiration date April 30, 2016.
In order to meet the reporting requirements specified in section 4032 of the Act, States are required to confirm via email to their FNS Regional SNAP Program Director that in the immediately preceding Federal fiscal year, they had the appropriate systems in place to meet the requirements of regulations at 7 CFR 272.14 and 273.16(i)(4) and that they conducted the matches required by these regulations. States are required to submit their section 4032 reports to the FNS Regional SNAP Director by March 31 each year for the preceding Federal fiscal year. The estimated annual burden for this collection is 57.41 hours. This estimate includes the time it takes each State agency to confirm that they have complied with FNS regulations for performing mandated checks against both eDRS and the SSA Death Master File, send an email to their FNS Regional Office SNAP Program Director to provide the verification, and any additional recordkeeping associated with this burden. States must perform this verification once a year and must retain these records for 3 years.
Food and Nutrition Service (FNS), United States Department of Agriculture (USDA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a new information collection for the Child Nutrition Program Operations Study-II.
Written comments on this notice must be received on or before June 29, 2015.
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, including the validity of the methodology and assumptions that were used; (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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: John Endahl, Senior Program Analyst, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1004, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of John Endahl at 703–305–2576 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
To request more information on the proposed project or to obtain a copy of the data collection plans, contact John Endahl, Senior Program Analyst, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1004, Alexandria, VA 22302; Fax: 703–305–2576; Email:
The CN–OPS–II will help the Food and Nutrition Service (FNS) better understand and address current policy issues related to Child Nutrition Programs (CNP) operations. The policy and operational issues include, but are not limited to, the preparation of the program budget, development and implementation of program policy and regulations, and identification of areas for technical assistance and training. Specifically, this study will help FNS obtain:
General descriptive data on the Child Nutrition (CN) program characteristics to help FNS respond to questions about the nutrition programs in schools;
Data related to program administration for designing and revising program regulations, managing resources, and reporting requirements; and
Data related to program operations to help FNS develop and provide training and technical assistance for School Food Authorities (SFAs) and State Agencies responsible for administering the CN programs.
The activities to be undertaken subject to this notice include:
Conducting a multi-modal (
Conducting a paper survey of all 56 State Agency CN Directors.
Natural Resources Conservation Service (NRCS), USDA.
Notice.
This notice announces the availability of the ROD for the Green River Diversion Rehabilitation Project, Green River, Utah, by the Utah office of NRCS. NRCS will use Emergency Watershed Protection (EWP) Program funds for the Green River Diversion Rehabilitation project in Emery and Grand counties, Utah as detailed in the ROD. The NRCS Utah State Conservationist, David Brown, signed the ROD on April 2, 2015, which constitutes the NRCS's final decision.
The complete text of the ROD and the final EIS can be viewed and downloaded from the project Web site at
David Brown, NRCS State Conservationist, 801–524–4555. Email:
The NRCS, as the lead Federal Agency, is working with the Utah Department of Agriculture and Food and the Bureau of Land Management as cooperating agencies to rehabilitate the existing Green River Diversion Dam (diversion) system that will continue to provide water delivery to water rights holders. The ROD constitutes the NRCS's final decision to implement the diversion improvements, based upon the analysis in the Final Environmental Impact Statement (Notice of Availability 79 FR 36511, June 27, 2014), which identified the “Replace In Place With Passages” option as the environmentally preferred alternative. The ROD adopted this alternative.
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).
English survey forms include:
NSCH–P–S1 (English Screener), NSCH–P–T1 (English Topical for 0- to 5-year-old children), NSCH–P–T2 (English Topical for 6- to 11-year-old children), and NSCH–P–T3 (English Topical for 12- to 17-year-old children).
Spanish survey forms include:
NSCH–PS–S1 (Spanish Screener), NSCH–PS–T1 (Spanish Topical for 0- to 5-year-old children), NSCH–PS–T2 (Spanish Topical for 6- to 11-year-old children), and NSCH–PS–T3 (Spanish Topical for 12- to 17-year-old children).
Plans for pretest data collection include two modes. The first mode that will be tested is a mail out/mail back of a self-administered paper-and-pencil interviewing (PAPI) screener instrument followed by a separate mail out/mail back of a PAPI age-based topical instrument. The second mode that will be tested is an Internet survey that contains the screener and topical instruments. The Internet instrument
The pretest allows for the preparation of a successful first year production survey based on previously tested methods and procedures. In turn, this enables the Maternal and Child Health Bureau (MCHB) of the Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) to produce national and state-based estimates on the health and well-being of children, their families, and their communities as well as estimates of the prevalence and impact of children with special health care needs.
Census Authority: Title 13, U.S.C. Section 8(b) MCHB Authority: 42 U.S.C., Chapter 7, Title V (Social Security Act) Confidentiality: Confidential Information Protection and Statistical Efficiency Act (CIPSEA).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Economic Development Administration, Department of Commerce.
Notice and Opportunity for Public Comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Economic Development Administration, Department of Commerce.
Notice and Opportunity for Public Comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Port of Stockton, California, grantee of FTZ 231, requesting two additional sites within Subzone 231A on behalf of Medline Industries, Inc. (Medline), located in Stockton and Tracy, California. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a–81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on April 22, 2015.
Subzone 231A was approved on March 4, 2007 (72 FR 14516, 03/28/2007) and currently consists of one site:
In accordance with the FTZ Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is June 8, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 23, 2015.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
Christopher Kemp at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding its administrative review in part and rescinding a new shipper review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC) for the period September 1, 2013, through August 31, 2014.
Yang Jin Chun or Minoo Hatten, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5760 and (202) 482–1690 respectively.
On September 2, 2014, we published a notice of opportunity to request an administrative review of the antidumping duty order on freshwater crawfish tail meat from the PRC for the period of review (POR) September 1,
On October 31, 2014, in response to requests from Chinese producers and exporters of subject merchandise, Hubei Yuesheng Aquatic Products Co., Ltd., Weishan Hongda Aquatic Food Co., Ltd., and Wuhan Coland Aquatic Products and Food Co., Ltd. (Wuhan Coland), and in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i), we initiated new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the PRC with respect to these three companies for the POR September 1, 2013, through August 31, 2014.
On November 21, 2014, the Department aligned the new shipper reviews of freshwater crawfish tail meat from the PRC with the concurrent administrative review of freshwater crawfish tail meat from the PRC.
On January 13, 2015, Xiping Opeck and Wuhan Coland withdrew their review requests.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” Because Xiping Opeck and Wuhan Coland withdrew their review requests in a timely manner, and because no other party requested a review of these companies, we are partially rescinding the administrative review with respect to Xiping Opeck, and we are rescinding the new shipper review with respect to Wuhan Coland. This rescission is in accordance with 19 CFR 351.213(d)(1).
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For Xiping Opeck and Wuhan Coland, for which the reviews are rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
National Institute of Standards and Technology, Department of Commerce.
Notice of public meeting.
The Visiting Committee on Advanced Technology (VCAT or Committee), National Institute of Standards and Technology (NIST), will meet in open session on Tuesday, June 9, 2015 from 8:30 a.m. to 5:30 p.m. Eastern Time and Wednesday, June 10, 2015 from 8:30 a.m. to 12:15 p.m. Eastern Time. The VCAT is composed of fifteen members appointed by the NIST Director who are eminent in such fields as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations.
The VCAT will meet on Tuesday, June 9, 2015, from 8:30 a.m. to 5:30 p.m. Eastern Time and Wednesday, June 10, 2015, from 8:30 a.m. to 12:15 p.m. Eastern Time.
The meeting will be held in the Portrait Room, Administration Building, at NIST, 100 Bureau Drive, Gaithersburg, Maryland, 20899. Please note admittance instructions under the
Stephanie Shaw, VCAT, NIST, 100 Bureau Drive, Mail Stop 1060, Gaithersburg, Maryland 20899–1060, telephone number 301–975–2667. Ms. Shaw's email address is
The purpose of this meeting is for the VCAT to review and make recommendations regarding general policy for NIST, its organization, its budget, and its programs within the framework of applicable national policies as set forth by the President and the Congress. The agenda will include updates on NIST activities and a review of NIST's bioscience and information technology research along with external presentations on the future direction and trends of these technical areas. The agenda may change to accommodate Committee business. The final agenda will be posted on the NIST Web site at
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request a place on the agenda.
On Wednesday, June 10, approximately one-half hour in the morning will be reserved for public comments and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received, but is likely to be about 3 minutes each. The exact time for public comments will be included in the final agenda that will be posted on the NIST Web site at
All visitors to the NIST site are required to pre-register to be admitted. Please submit your name, time of arrival, email address and phone number to Stephanie Shaw by 5:00 p.m. Eastern Time, Tuesday, June 2, 2015. Non-U.S. citizens must submit additional information; please contact Ms. Shaw. Ms. Shaw's email address is
15 U.S.C. 278 and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection for the National Oceanic and Atmospheric Administration. This is a new information collection for Evaluation Support Services.
Written comments should be received Written comments must be submitted on or before June 29, 2015.
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 Meka Laster at (301) 628–2906 or sent via email to
This request is for a new information collection.
Since its establishment in 1970 under the Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA)'s primary goals are to understand and predict changes in the Earth's environment, to conserve and manage coastal and marine resources, and to serve the nation's economic, social, and environmental needs. One of NOAA's staff offices, the Office of Education (OEd), also serves a critical function as the nation's primary educator on matters related to the ocean, coastal resources, the atmosphere, and climate. One of the ways NOAA fulfills its national duty is by providing educational resources and scholarship opportunities for future scholars.
The Ernest F. Hollings Undergraduate Scholarship Program (HUSP) was established in 2005; since then, it has provided support to approximately 1,144 undergraduate students. This scholarship opportunity provides 2 academic years of tuition support (up to $8,000 per year) and a 10-week paid internship with a NOAA mentor to competitive undergraduate scholars in NOAA-related major fields of study. The HUSP also provides undergraduates with additional supports such as living expenses, travel stipends, and conference allowances. The main goals of HUSP include increasing undergraduate training and research in NOAA sciences; recruiting and preparig students for careers as public servants and environmental science educators; and building public understanding of and support for environmental stewardship issues (
The Educational Partnership Program (EPP) comprises three unique components: The Undergraduate Scholarship Program (USP), the Graduate Studies Program (GSP), and four Cooperative Science Centers (CSCs). USP is a scholarship opportunity that provides recipients with hands-on research and training in NOAA-related sciences and provides scholars the opportunity to gain valuable work experience at NOAA facilities. To date, USP has funded 175 scholars. GSP is similar, and supported (funded 59 students) graduate students interested in pursuing NOAA mission-critical fields by providing them with work experience and hands-on training in NOAA-related research fields. The CSCs' overarching goal is to increase underrepresentation in STEM and NOAA-related fields by providing education and training opportunities in
The proposed evaluation will examine the effectiveness of two of NOAA's OEd scholarship programs: EPP and HUSP. It will also assess the efficacy of the CSCs, which constitute another educational component central to NOAA's educational mission. The primary objective of this evaluation is to determine how well NOAA's HUSP and EPP scholarship programs translate to measurable outcomes for participants.
This proposed mixed-methods evaluation will include the following components:
• Reviews of extant data to understand the program and historical trends.
• Web surveys of HUSP and EPP alumni with telephone follow-up to describe participant experiences and outcomes.
• A regression discontinuity design evaluation of HUSP, EPP USP, and EPP GSP to compare scholarship recipients to similar applicants who did not receive scholarships.
• Site visits to the CSCs to describe institution-level contexts and outcomes.
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 those who are eligible to respond.
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; request for comments.
NMFS has received a request from the California Department of Transportation (CALTRANS) for an incidental take authorization to take small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales, by harassment, incidental to construction activities associated with the East Span of the San Francisco-Oakland Bay Bridge (SF–OBB) in California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to CALTRANS to incidentally take, by harassment, small numbers of marine mammals for a period of 1 year.
Comments and information must be received no later than May 29, 2015.
Comments on the application should be addressed to Rob Pauline, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910–3225. The mailbox address for providing email comments is
The application used in this document may be obtained by visiting the internet at:
Robert Pauline, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
On December 15, 2014 CALTRANS submitted its most recent request to NOAA requesting an IHA for the possible harassment of small numbers of California sea lions (
An IHA was previously issued to CALTRANS for this activity on January 8, 2014 (79 FR 2421; January 14, 2014), based on activities described on CALTRANS' IHA application dated April 13, 2013. That IHA expired on January 7, 2015. Since the construction activity would last for approximately an additional two years after the expiration of the current IHA, CALTRANS requests to renew its IHA. In its IHA renewal request, CALTRANS also states that there has been no change in the scope of work for the SF–OBB Project from what was outlined in its April 13, 2013 IHA application project description, the
Construction activities for the replacement of the SF–OBB east span commenced in 2002 and are expected to be completed in 2016 with the completion of the bike/pedestrian path and eastbound on ramp from Yerba Buena Island. The new east span is now open to traffic. On November 10, 2003, NMFS issued the first project-related IHA to the Department, authorizing the take of small numbers of marine mammals incidental to the construction of the SFOBB Project. The Department has been issued a total of seven subsequent IHAs for the SFOBB Project to date, excluding the application currently under review.
General information on the marine mammal species found in California waters can be found in Carretta
The marine mammals most likely to be found in the SF–OBB area are the California sea lion, Pacific harbor seal, and harbor porpoise. From December through May gray whales may also be present in the SF–OBB area. Information on California sea lion, harbor seal, and gray whale was provided in the November 14, 2003 (68 FR 64595),
CALTRANS and NMFS have determined that open-water pile driving and pile removal, as well as dredging and dismantling of concrete foundation of existing bridge by saw cutting, flame cutting, mechanical splitting, drilling, pulverizing and/or hydro-cutting, as outlined in the project description, have the potential to result in behavioral harassment of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales that may be swimming, foraging, or resting in the project vicinity while pile driving is being conducted.
Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak
When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source can incur TTS, it is possible that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.
Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on anatomical similarities. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses as received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and probably greater than 6 dB (Southall
Measured source levels from impact pile driving can be as high as 214 dB re
Noises from dismantling of marine foundations by mechanical means include, but are not limited to, saw cutting, mechanical splitting, drilling and pulverizing. Saw cutting and drilling constitute non-pulse noise, whereas mechanical splitting and pulverizing constitute impulse noise. Although the characteristics of these noises are not well studied, noises from saw cutting and drilling are expected to be similar to vibratory pile driving, and noises from mechanical splitting and pulverizing are expected to be similar to impact pile driving, but at lower intensity, due to the similar mechanisms in sound generating but at a lower power outputs. CALTRANS states that drilling and saw cutting are anticipated to produce underwater sound pressure levels (SPLs) in excess of 120 dB RMS, but are not anticipated to exceed the 180 dB re 1 μPa (RMS). The mechanical splitting and pulverizing of concrete with equipment such as a hammer hoe has the potential to generate high sound pressure levels in excess of 190 dB re 1 μPa (RMS) at 1 m.
However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to repeated high intensity pulsed noise levels for prolonged period of time. Based on the best scientific information available, the expected received sound levels are far below the threshold that could cause TTS or the onset of PTS.
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.
Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from in-water pile driving during the SF–OBB construction activities is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by harbor porpoises. However, lower frequency noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Masking can potentially impact the species at population, community, or even ecosystem levels, as well as individual levels. Prolonged masking affects both senders and receivers of the signals and could have long-term effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than 3 times in terms of SPL) in the world's oceans from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessels traffic, pile driving, dredging, and dismantling existing bridge by mechanic means, contribute to the elevated ambient noise levels, thus intensifying potential for masking.
Nevertheless, the sum of noise from the proposed SF–OBB construction activities is confined in an area of inland waters (San Francisco Bay) that is bounded by landmass, therefore, the noise generated is not expected to contribute to increased ocean ambient noise. Due to shallow water depth near the Oakland shore, dredging activities are mainly used to create a barge access channel to dismantle the existing bridge. Therefore, underwater sound propagation from dredging is expected to be poor due to the extreme shallowness of the area to be dredged.
Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
• Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cessation of feeding or social interaction.
The proposed project area is not believed to be a prime habitat for marine mammals, nor is it considered an area frequented by marine mammals. Therefore, behavioral disturbances that could result from anthropogenic noise associated with SF–OBB construction and dismantling activities are expected to affect only a limited number of marine mammals on an infrequent basis.
Currently NMFS uses 160 dB re 1 μPa (RMS) at received level for impulse noises (such as impact pile driving, mechanic splitting and pulverizing) as the onset of marine mammal behavioral harassment, and 120 dB re 1 μPa (RMS) for non-impulse noises (vibratory pile driving, saw cutting, drilling, and dredging).
As far as airborne noise is concerned, based on airborne noise levels measured and on-site monitoring conducted during 2004 under a previous IHA, noise levels from the East Span project did not result in the harassment of harbor seals hauled out on Yerba Buena Island (YBI). Also, noise levels from the East Span project are not expected to
Short-term impacts to habitat may include minimal disturbance of the sediment where individual bridge piers are constructed. Long-term impacts to marine mammal habitat will be limited to the footprint of the piles and the obstruction they will create following installation. However, this impact is not considered significant as the marine mammals can easily swim around the piles of the new bridge, as they currently swim around the existing bridge piers.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
For the proposed CALTRANS SF–OBB construction activities, CALTRANS worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purpose of these mitigation measures is to detect marine mammals within or about to enter designated exclusion zones corresponding to NMFS current injury thresholds and to initiate immediate shutdown or power down of the piling hammer, making it very unlikely potential injury or TTS to marine mammals would occur, and to reduce the intensity of Level B behavioral harassment.
To reduce impact on marine mammals, CALTRANS shall use a marine pile driving energy attenuator (
Before the commencement of in-water construction activities, which include impact pile driving, vibratory pile driving, and mechanical dismantling of existing bridge, CALTRANS shall establish “exclusion zones” where received underwater sound pressure levels (SPLs) are higher than 180 dB (rms) and 190 dB (rms) re 1 μPa for cetaceans and pinnipeds, respectively, and “Level B behavioral harassment zones” where received underwater sound pressure levels (SPLs) are higher than 160 dB (rms) and 120 dB (rms) re 1 μPa for impulse noise sources (impact pile driving) and non-impulses noise sources (vibratory pile driving and mechanic dismantling), respectively. Before the sizes of actual zones are determined based on hydroacoustic measurements, CALTRANS shall establish these zones based on prior measurements conducted during SF–OBB constructions, as described in Table 1 of this document.
Once the underwater acoustic measurements are conducted during initial test pile driving, CALTRANS shall adjust the size of the exclusion zones and Level B behavioral harassment zones, and monitor these zones accordingly.
NMFS-approved marine mammal observers (MMOs) shall conduct initial survey of the exclusion zones to ensure that no marine mammals are seen within the zones before impact pile driving of a pile segment begins. If marine mammals are found within the exclusion zone, impact pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes for pinnipeds and harbor porpoise and 30 minutes for gray whales. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone. This 15-minute criterion is based on scientific evidence that harbor seals in San Francisco Bay dive for a mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994), and the mean diving duration for harbor porpoises ranges from 44 to 103 seconds (Westgate
Once the pile driving of a segment begins it cannot be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If pile driving stops and then resumes, it would potentially have to occur for a longer time and at increased energy levels. In sum, this would simply amplify impacts to marine mammals, as they would endure potentially higher SPLs for longer periods of time. Pile segment lengths
Although marine mammals will be protected from Level A harassment (
Although power down and shut-down measures will not be required for pile driving and removal activities for reasons explained above, these measures are required for mechanical dismantling of the existing bridge. The contractor performing mechanical dismantling work will stop in-water noise generating machinery when marine mammals are sighted within the designated exclusion zones.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned, and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of noises generated from ice overflight surveys that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
Besides using monitoring for implementing mitigation (ensuring exclusion zones are clear of marine mammals before pile driving begins and power down and shut-down measures for mechanical bridge dismantling), marine mammal monitoring will also be conducted to assess potential impacts from CALTRANS construction activities. CALTRANS will implement onsite marine mammal monitoring for 100% of all unattenuated impact pile driving of H-piles for 180- and 190-dB re 1 µPa exclusion zones and 160-dB re 1 µPa Level B harassment zone, attenuated impact pile driving (except pile proofing) and mechanical dismantling for 180- and 190-dB re 1 µPa exclusion zones. CALTRANS will also monitor 20% of the attenuated impact pile driving for the 160-dB re 1 µPa Level B harassment zone, and 20% of vibratory pile driving and mechanic dismantling for the 120-dB re 1 µPa Level B harassment zone.
Monitoring of the pinniped and cetacean exclusion zones shall be conducted by a minimum of three qualified NMFS-approved MMOs. Observations will be made using high-quality binoculars (
Data on all observations will be recorded and will include the following information:
(1) Location of sighting;
(2) Species;
(3) Number of individuals;
(4) Number of calves present;
(5) Duration of sighting;
(6) Behavior of marine animals sighted;
(7) Direction of travel; and
(8) When in relation to construction activities did the sighting occur (
The reactions of marine mammals will be recorded based on the following classifications that are consistent with the Richmond Bridge Harbor Seal survey methodology (for information on the Richmond Bridge authorization, see 68 FR 66076, November 25, 2003): (1) No response, (2) head alert (looks toward the source of disturbance), (3) approach water (but not leave), and (4) flush (leaves haul-out site). The number of marine mammals under each disturbance reaction will be recorded, as well as the time when seals re-haul after a flush.
The purpose of the underwater sound monitoring during dismantling of concrete foundations via mechanical means is to establish the exclusion zones of 180 dB re 1 µPa (rms) for cetaceans and 190 dB re 1 µPa (rms) for pinnipeds. Monitoring will occur during the initial use of concrete dismantling equipment with the potential to generate sound pressure levels in excess of 180 dB re 1 µPa (rms). Monitoring will likely be conducted from construction barges and/or boats. Measurements will be taken at various distances as needed to determine the distance to the 180 and 190 dB re 1 µPa (rms) contours.
The purpose of underwater sound monitoring during impact pile driving will be to verify sound level estimates and confirm that sound levels do not equal or exceed 180 dB re 1 µPa (rms).
CALTRANS will notify NMFS prior to the initiation of the pile driving and dismantling activities for the removal of the existing east span. NMFS will be informed of the initial sound pressure level measurements for both pile driving and foundation dismantling activities, including the final exclusion zone and Level B harassment zone radii established for impact and vibratory pile driving and marine foundation dismantling activities.
Monitoring reports will be posted on the SFOBB Project's biological mitigation Web site (
In addition, CALTRANS will provide NMFS with a draft final report within 90 days after the expiration of the IHA. This report should detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed due to pile driving. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.
In addition, NMFS would require CALTRANS to notify NMFS' Office of Protected Resources and NMFS' Stranding Network within 48 hours of sighting an injured or dead marine mammal in the vicinity of the construction site. CALTRANS shall provide NMFS with the species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).
In the event that an injured or dead marine mammal is found by CALTRANS that is not in the vicinity of the SF–OBB construction site, CALTRANS would report the same information as listed above as soon as operationally feasible to NMFS.
The most recent marine mammal monitoring report describes the number of harbor seals and California sea lions that were observed within zones of influence (ZOIs) between January 8, 2014 and January 7, 2015 that could result in behavioral harassment. Most of the observations of harbor seals within the behavioral zones occurred within the Coast Guard Cove or Clipper Cove. Monitoring of the vibratory and demolition activity was only required for 20% of the time when those activities occurred but there was often a mix of impact and vibratory driving; therefore, monitoring was conducted from 20–100% of the time for some construction projects. Table 7 of the 2014 monitoring report (CALTRANS 2015) summarizes all observations and estimates the total exposures of marine mammals if there was 100% monitoring for each construction or demolition project as requested by NMFS. The estimated number of exposures is 144 harbor seals which is above the limit of 50 permitted under the Authorization. No sea lions, harbor porpoise or gray whales were observed.
Marine mammal take estimates are based on marine mammal monitoring reports and marine mammal observations made during pile driving
Harbor seal densities were calculated from 657 observations of harbor seals made during 210 days from 2000 to 2014 during monitoring for the East Span of the SFOBB. Two densities were calculated because of the higher density of seals observed foraging near YBI and Treasure Island. Foraging seals tended to remain in the area for several hours while transiting seals passing under the SFOBB were only observed 1–2 times. Therefore, densities east of Pier E3–E8 are much lower than the density than west of Pier E3.
The area of 2,000-meter threshold for the Level B behavioral harassment zone is 12.57 km
This estimate for harbor seals is above the number of seals that have been permitted for take in previous IHAs that have been issued related to this project. However, the estimate presented here represents a more complete picture of the marine mammal density in the project area and the potential for exposure to project activities.
California sea lions are based on CALTRANS observations over 15 years of monitoring on the Bay Bridge, 2000 to 2014, including baseline monitoring in 2003 before bridge construction began. It should be noted that monitoring was not year round and there was little monitoring required during the period of mid-2010 to mid-2013 due to no pile driving. During 2013 and 2014, there was a large increase in pile driving to construct temporary falsework and for mechanical dismantling so the current estimates of animals do include recent monitoring. California sea lion numbers fluctuate from year to year. For example, in 2014 no sea lions were observed in the harassment zone, while in 2004, 36 sea lions were recorded near the Bay Bridge construction areas during pile driving. The larger number of sea lions in 2004 was probably related to a run of herring that was near the Bay Bridge and sea lions were observed feeding on dense aggregations of herring in the area. Therefore, 50 sea lions is a conservative estimate.
Harbor porpoises were observed near the tower of the new Bay Bridge in 2013 and 2014. Each of those was a single animal and far out of their normal range for the Bay. If 1 or 2 pods of porpoises were to enter the construction area, then there might be up to 6 takes (pod size of 2–3 porpoises). Based on this NMFS believes that an allowed take of up to 10 harbor porpoises is conservative, but reasonable.
Gray whale take estimates were based on sighting reports collected by the Marine Mammal Center in Sausalito (the NMFS stranding facility for northern California). The Center collects whale sightings information from the general public, researchers, and the U.S. Coast Guard. For the gray whale, 5 permitted takes is likely to be a conservative, but reasonable, estimate as they have never been observed within any of the behavioral zones during monitoring. Additionally, there has only been one report of a gray whale swimming under the original East Span of the Bay Bridge a number of years ago.
Based on these results, and accounting for a certain level of uncertainty regarding the next phase of construction, NMFS concludes that at maximum 460 harbor seals, 50 California sea lions, 10 harbor porpoises, and 5 gray whales could be exposed to noise levels that could cause Level B harassment as a result of the CALTRAN' SF–OBB construction activities. These numbers represent 1.5%, <0.01%, <0.01% and 0.10% of the California stock harbor seal, the U.S. stock California sea lion, the Eastern North Pacific stock gray whale, and the San Francisco-Russian River stock harbor porpoise, respectively (Table 3).
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the following discussion applies to the affected stocks of harbor seals, California sea lions, gray whales, and harbor porpoises, given that the best available information indicates that effects of the specified activity on individuals of those stocks will be similar, and there is no information about the population size, status, structure, or habitat use of the areas to warrant separate discussion.
Pile driving activities associated with this project, as outlined previously, have the potential to disturb or displace marine mammals. Even when mitigation measures are employed, the specified activities may result in Level B harassment from underwater sounds generated from pile driving. Takes could occur if individuals of these species are present in the Level B harassment zone while pile driving is occurring.
These low intensity, localized, and short-term noise exposures (
The CALTRANS' specified activities have been described based on best estimates of the planned SF–OBB construction project within the proposed project area. Some of the noises that would be generated as a result of the proposed bridge construction and dismantling project, such as impact pile driving, are high intensity. However, the in-water pile driving for the piles would use small hammers and/or vibratory pile driving methods, coupled with noise attenuation mechanism such as air bubble curtains for impact pile driving. Therefore the resulting exclusion zones for potential TS are expected to be extremely small (< 35 m) from the hammer. In addition, the source levels from vibratory pile driving are expected to be below the TS onset threshold. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious. The high likelihood that marine mammal detection by trained observers under the environmental conditions described for the project area further enables the implementation of shutdowns to avoid injury, serious injury, or mortality. Therefore, NMFS does not expect that any animals would receive Level A (including injury) harassment or Level B harassment in the form of TTS from being exposed to in-water pile driving associated with SF–OBB construction project.
The project is not expected to have significant adverse effects on affected marine mammals' habitat and would not significantly modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the affected stocks is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stocks as a whole. Level B harassment will be reduced to the level of least practicable impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.
In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment are relatively small and consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat within the project area, including rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals and is not expected to impact annual rates of recruitment or survival.
Therefore, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the CALTRAN'S SF–OBB construction project will have a negligible impact on the affected marine mammal species or stocks.
Table 3 demonstrates the numbers of animals that could be exposed to receive noise levels that could cause Level B behavioral harassment for the proposed work associated with the CALTRANS SF–OBB construction project. These estimates represent 1.5% of the California stock of harbor seal population (estimated at 30,968; Carretta
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the numbers of marine mammals potentially affected by the proposed action, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
(1) This Authorization is valid from May 18, 2015, through May 17, 2016.
(2) This Authorization is valid only for activities involving the construction and dismantling of the East Span of SF–OBB, California.
(3) Species Impacted and Level of Takes
(a) The species authorized for takings by incidental Level B harassment are the California sea lion (
(b) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the Director, West Coast Regional Office, National Marine Fisheries Service, Telephone (562) 980–4000 and the Director, Office of Protected Resources, National Marine Fisheries Service, Telephone (301) 427–8400.
(4) The holder of this Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agencies monitoring the impacts of the activity on marine mammals. The holder must notify Monica DeAngelis of the West Coast Regional Office (phone: (562) 980–3232) at least 24 hours prior to starting activities.
(a) The taking, by incidental Level B harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed (see Table 3 of this
(a) Use of Noise Attenuation Devices
Pile driving energy attenuator (such as air bubble curtain system or dewatered cofferdam) shall be used for all impact pile driving of pipe piles, with the exception of pile proofing and H-piles.
(b) Establishment and Monitoring of Exclusion and Level B Harassment Zones
(i) For all in-water pile driving and mechanical dismantling activities, CALTRANS shall establish exclusion zones where received underwater sound pressure levels (SPLs) are higher than 180 dB (rms) and 190 dB (rms) re 1 µPa for cetaceans and pinnipeds, respectively, and Level B harassment zones where received underwater sound pressure levels (SPLs) are higher than 160 dB (rms) and 120 dB (rms) re 1 µPa for impulse noise sources (impact pile driving) and non-impulses noise sources (vibratory pile driving and mechanic dismantling), respectively.
(ii) The sizes of the initial exclusion and Level B harassment zones for different types of activities are provided [See Table 1 in this
(iii) NMFS-approved MMOs shall conduct initial survey of the exclusion zone to ensure that no marine mammals are seen within the zone for 30 minutes before impact pile driving and mechanical dismantling of bridge foundation. If marine mammals are observed within the exclusion zones, impact pile driving and/or mechanical dismantling activity of the segment shall be delayed until they move out of the area. If a marine mammal is seen above
(iv) If the time between pile-segment driving is less than 30 minutes, a new 30-minute survey is unnecessary provided the MMOs continue observations during the interruption. If pile driving ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone(s) prior to the commencement of pile-driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately (see condition 5(e)).
(v) For pile driving activities, if a marine mammal is sighted within the exclusion zone after pile-driving has begun, CALTRANS must have a qualified MMO record the species, numbers and behaviors of the animal(s) and report to Monica DeAngelis at the West Coast Regional Office, National Marine Fisheries Service, (phone: (562) 980–3232) within 24 hours of the incident.
(c) Soft Start
CALTRANS and its contractor shall implement soft start,
(d) Power Down and Shut-down
(i) For mechanical dismantling of bridge foundation, construction activities that generate underwater noise must be powered down or shutdown if a marine mammal is observed within the established 180 dB or 190 dB re 1 μPa exclusion zones for cetaceans or pinnipeds, respectively.
(a) General.
(i) The holder of this Authorization must designate a minimum of three biologically-trained, on-site MMOs approved in advance by the National Marine Fisheries Service's West Coast Regional Office, to monitor the area for marine mammals before, during, and after pile driving activities; and before, during, and after mechanical dismantling of marine foundations.
(ii) The National Marine Fisheries Service must be informed immediately of any proposed changes or deletions to any portions of the monitoring plan.
(b) Visual Monitoring
(i) CALTRANS shall implement onsite marine mammal monitoring for 100% of all unattenuated impact pile driving of H-piles for 180- and 190-dB re 1 μPa exclusion zones and 160-dB re 1 μPa Level B harassment zone, attenuated impact pile driving of pipe piles (except pile proofing) and mechanical dismantling for 180- and 190-dB re 1 μPa exclusion zones.
(ii) CALTRANS shall also monitor 20% of the attenuated impact pile driving for the 160-dB re 1 μPa Level B harassment zone, and 20% of vibratory pile driving and mechanic dismantling for the 120 dB re 1 μPa Level B harassment zone.
(iii) Marine mammal monitoring shall begin at least 30 minutes prior to the start of the activities, continue for the duration of construction activities, and until 30 minutes after the construction activities.
(iv) Observations shall be made using high-quality binoculars (
(v) Data on all observations must be recorded and include the following information:
• Location of sighting;
• Species;
• Number of individuals;
• Number of calves present;
• Duration of sighting;
• Behavior of marine animals sighted;
• Direction of travel;
• When and where in relation to construction activities did the sighting occur (
• Other human activities in the area.
(c) Hydroacoustic Measurements
At the beginning of pile driving and mechanical dismantling of bridge foundation, CALTRANS shall conduct hydroacoustic measurements to verify the exclusion and Level B harassment zones.
(a) CALTRANS shall notify NMFS of the initial sound pressure level measurements for both pile driving and foundation dismantling activities, including the final exclusion zone and Level B harassment zone radii established for impact and vibratory pile driving and marine foundation dismantling activities, within 72 hours after completion of the measurements.
(b) Monitoring reports shall be posted on the SFOBB Project's biological mitigation Web site (
(c) CALTRANS shall provide NMFS with a draft final report within 90 days after the expiration of the IHA. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed due to pile driving and mechanical dismantling of bridge foundations. If no comments are received from NMFS within 30 days, the draft final report would be considered the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.
(a) In the unanticipated event that CALTRANS' construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality (
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Type of activity involved;
(iii) Description of the incident;
(iv) Status of all sound source use in the 24 hours preceding the incident;
(v) Water depth;
(vi) Environmental conditions (
(vii) Description of marine mammal observations in the 24 hours preceding preceding the incident;
(viii) Species identification or description of the animal(s) involved;
(ix) The fate of the animal(s); and
(x) Photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with CALTRANS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. CALTRANS may not resume their activities until notified by NMFS via letter, email, or telephone.
(b) In the event that CALTRANS discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (
(c) In the event that CALTRANS discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in Condition 3 of this Authorization (
(9) A copy of this Authorization must be in the possession of all contractors and marine mammal monitors operating under the authority of this Incidental Harassment Authorization.
NMFS prepared an Environmental Assessment (EA) for the take of marine mammals incidental to construction of the East Span of the SF–OBB and made a Finding of No Significant Impact (FONSI) on November 4, 2003. Due to the modification of part of the construction project and the mitigation measures, NMFS reviewed additional information from CALTRANS regarding empirical measurements of pile driving noises for the smaller temporary piles without an air bubble curtain system and the use of vibratory pile driving. NMFS prepared a Supplemental Environmental Assessment (SEA) and analyzed the potential impacts to marine mammals that would result from the modification of the action. A Finding of No Significant Impact (FONSI) was signed on August 5, 2009. The proposed activity and expected impacts remain within what was previously analyzed in the EA and SEA. Therefore, no additional NEPA analysis is warranted. A copy of the SEA and FONSI is available upon request (see
NMFS has determined that issuance of the IHA will have no effect on ESA-listed marine mammals, as none are known to occur in the action area.
NMFS proposes to issue an IHA to CALTRANS for the potential harassment of small numbers of harbor seals, California sea lions, harbor porpoises, and gray whales incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge in California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in the harassment of only small numbers of harbor seals, California sea lions, harbor porpoises, and possibly gray whales and will have no more than a negligible impact on these marine mammal stocks.
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).
The National Marine Fisheries Service (NMFS) proposes to conduct a census of small scale fishermen operating in the United States (U.S.) Caribbean. The proposed socio-economic study will collect information on demographics, capital investment in fishing gear and vessels, fishing and marketing practices, economic performance, and miscellaneous attitudinal questions. The data gathered will be used for the development of amendments to fishery management plans which require descriptions of the human and economic environment and socio-economic analyses of regulatory proposals. The information collected will also be used to strengthen fishery management decision-making and satisfy various legal mandates under the Magnuson-Stevens Fishery Conservation and Management Act (U.S.C. 1801
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this
Rural Utilities Service, U.S. Department of Agriculture, and National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice and request for comments.
In furtherance of the Presidential Memorandum entitled
Submit written comments on or before 5 p.m. Eastern time on June 10, 2015.
Written comments may be submitted by email to:
Karen Hanson, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4626, Washington, DC 20230; telephone: (202) 482–0213; email:
On January 13, 2015, President Obama announced new Administration efforts to help more people, in more communities around the country, gain access to fast and affordable broadband.
On March 23, 2015, the White House released a Presidential Memorandum establishing a new Broadband Opportunity Council (Council), co-chaired by the U.S. Departments of Commerce and Agriculture. The Council comprises 25 federal agencies (Member Agencies) that can play a role in accelerating broadband deployment and promoting the technology's adoption across the country. To respond to this Presidential Memorandum, Member Agencies will provide a list of actions that they can take to identify and mitigate regulatory barriers, incentivize investment, promote best practices, align funding policies and decisions, and support broadband deployment and adoption. The Presidential Memorandum also directs the Council to consult with state, local, tribal, and territorial governments, as well as telecommunications companies, utilities, trade associations, philanthropic entities, policy experts, and other interested parties to identify and assess regulatory barriers and determine possible actions. This Notice seeks public comment to bolster the Council's work and to improve the number and quality of ideas under consideration.
This Notice offers an opportunity for all interested parties to share their perspectives and recommend actions the federal government can take to promote broadband deployment,
This Notice seeks comment in several different areas: (i) Ways the federal government can promote best practices, modernize outdated regulations, promote coordination, and offer more services online; (ii) identification of regulatory barriers to broadband deployment, competition, and adoption; (iii) ways to promote public and private investment in broadband; (iv) ways to promote broadband adoption; (v) issues related to state, local, and tribal governments; (vi) issues related to vulnerable communities and communities with limited or no broadband; (vii) issues specific to rural areas; and (viii) ways to measure broadband availability, adoption, and speed.
Commenters are encouraged to address any or all of the following questions. Please note in the response the number corresponding to the question(s). For any response, commenters may wish to consider describing specific goals, actions the Administration might take to achieve those goals, the benefits and costs associated with the action, whether the proposal is inter-agency or agency-specific, the rationale and evidence to support it, and the roles of other stakeholders. Specific, actionable proposals for policy mechanisms directed to the Executive Branch agencies included in the Council are most useful. Please note that the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) are independent regulatory agencies and not included in the Executive Branch. Independent agencies are not members of the Council, although the Presidential Memorandum strongly encourages them to comply with its requirements. As a result, commenters should focus on matters most within the control of the Executive Branch agencies serving on the Council.
RUS and NTIA seek public comment on the following questions:
1. How can the federal government promote best practices in broadband deployment and adoption? What resources are most useful to communities? What actions would be most helpful to communities seeking to improve broadband availability and use?
2. How can the federal government best promote the coordination and use of federally-funded broadband assets?
3. What federal regulations and/or statutes could be modernized or adapted to promote broadband deployment and adoption?
4. As the federal government transitions to delivering more services online, what should government do to provide information and training to those who have not adopted broadband? What should the federal government do to make reasonable accommodations to those without access to broadband?
5. How can the federal government best collaborate with stakeholders (state, local, and tribal governments, philanthropic entities, industry, trade associations, consumer organizations, etc.) to promote broadband adoption and deployment?
6. What regulatory barriers exist within the agencies of the Executive Branch to the deployment of broadband infrastructure?
7. What federal programs should allow the use of funding for the deployment of broadband infrastructure or promotion of broadband adoption but do not do so now?
8. What inconsistences exist in federal interpretation and application of procedures, requirements, and policies by Executive Branch agencies related to broadband deployment and/or adoption, and how could these be reconciled? One example is the variance in broadband speed definitions.
9. Are there specific regulations within the agencies of the Executive Branch that impede or restrict competition for broadband service, where residents have either no option or just one option? If so, what modifications could agencies make to promote competition in the broadband marketplace?
10. Are there federal policies or regulations within the Executive Branch that create barriers for communities or entities to share federally-funded broadband assets or networks with other non-federally funded networks?
11. Should the federal government promote the implementation of federally-funded broadband projects to coincide with other federally-funded infrastructure projects? For example, coordinating a broadband construction project funded by USDA with a road excavation funded by DOT?
12. How can communities/regions incentivize service providers to offer broadband services, either wired or wireless, in rural and remote areas? What can the federal government do to help encourage providers to serve rural areas?
13. What changes in Executive Branch agency regulations or program requirements could incentivize last mile investments in rural areas and sparsely populated, remote parts of the country?
14. What changes in Executive Branch agency regulations or program requirements would improve coordination of federal programs that help communities leverage the economic benefits offered by broadband?
15. How can Executive Branch agencies incentivize new entrants into the market by lowering regulatory or policy barriers?
16. What federal programs within the Executive Branch should allow the use of funding for broadband adoption, but do not do so now?
17. Typical barriers to broadband adoption include cost, relevance, and training. How can these be addressed by regulatory changes by Executive Branch agencies?
18. What barriers exist at the state, local, and/or tribal level to broadband deployment and adoption? How can the federal government work with and incentivize state, local, and tribal governments to remove these barriers?
19. What federal barriers do state, local, and tribal governments confront as they seek to promote broadband
20. What can the federal government do to make it easier for state, local, and tribal governments or organizations to access funding for broadband?
21. How can the federal government support state, local, and tribal efforts to promote and/or invest in broadband networks and promote broadband adoption? For example, what type of capacity-building or technical assistance is needed?
22. How can specific regulatory policies within the Executive Branch agencies be altered to remove or reduce barriers that prevent vulnerable populations from accessing and using broadband technologies? Vulnerable populations might include, but are not limited to, veterans, seniors, minorities, people with disabilities, at-risk youth, low-income individuals and families, and the unemployed.
23. How can the federal government make broadband technologies more available and relevant for vulnerable populations?
24. What federal regulatory barriers can Executive Branch agencies alter to improve broadband access and adoption in rural areas?
25. Would spurring competition to offer broadband service in rural areas expand availability and, if so, what specific actions could Executive Branch agencies take in furtherance of this goal?
26. Because the predominant areas with limited or no broadband service tend to be rural, what specific provisions should Executive Branch agencies consider to facilitate broadband deployment and adoption in such rural areas?
27. What information about existing broadband services should the Executive Branch collect to inform decisions about broadband investment, deployment, and adoption? How often should this information be updated?
28. Are there gaps in the level or reliability of broadband-related information gathered by other entities that need to be filled by Executive Branch data collection efforts?
29. What additional research should the government conduct to promote broadband deployment, adoption, and competition?
30. How might the federal government encourage innovation in broadband deployment, adoption, and competition?
United States Patent and Trademark Office, Commerce.
Notice.
The United States Patent and Trademark Office (USPTO) established an Internet usage policy in 1999, and this Internet usage policy permits patent examiners to communicate via the Internet only with individuals who have a written authorization in the application. This Internet usage policy also applies to USPTO video conferencing tools such as WebEx for use by patent examiners. The USPTO is updating its Internet usage policy by modifying the authorization requirements to now permit oral authorization for video conferencing tools, such as WebEx, to be provided by the patent applicant/practitioner to patent examiners before an interview is conducted.
Mark Polutta, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy at (571) 272–7709.
The USPTO adopted an Internet usage policy in 1999.
In accordance with the Internet usage policy as adopted in 1999, patent examiners may communicate via the Internet only with individuals who have a written authorization in the application.
The USPTO is updating its Internet usage policy by modifying the authorization requirements for patent examination to now include oral authorization for video conferencing tools such as WebEx in view of the more prevalent and accepted use of electronic communications and improvements in internet security. The USPTO will now accept oral authorization by the patent applicant/practitioner (practitioner) to participate in a video conference. Practitioners may request a video conference just as they would request a telephone or in-person interview with the examiner. For applicants that are juristic entities, see MPEP 401, which explains that a juristic entity must be represented by a registered practitioner.
Under the updated Internet usage policy, patent examiners may now use USPTO video conferencing tools,
Although this change in Internet usage policy provides applicant's representative with an alternative to providing a written authorization to conduct an interview using USPTO video conferencing tools, the best practice is to have such written authorization of record in the file.
All Internet communications between UPSTO employees and practitioners must be made using USPTO tools. Video conferencing communications regarding a patent application must be hosted by USPTO personnel. No personal phones, non-USPTO email, PDAs, etc. may be used by USPTO employees for official communications.
In accordance with MPEP 502.03 and 713.04, all communications with regard to the merits of a patent application between USPTO employees and applicants must be made of record.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before June 29, 2015.
You may submit comments, identified by “Process for Review of Swaps for Mandatory Clearing,” by any of the following methods:
•
•
•
•
Please submit your comments using only one method.
Eileen Chotiner, Division of Clearing and Risk, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418–5467; email:
Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (“OMB”) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• 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;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
44 U.S.C. 3501
Defense Acquisition University, DoD.
Meeting notice.
The Department of Defense is publishing this to notice to announce a Federal Advisory Committee meeting of the Defense Acquisition University Board of Visitors. This meeting will be open to the public.
Wednesday, May 20, 2015, from 9:00 a.m. to 1:30 p.m.
DAU Headquarters, 9820 Belvoir Road, Fort Belvoir, VA 22060.
Caren Hergenroeder, Protocol Director, DAU. Phone: 703–805–5134. Fax: 703–805–5940. Email:
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. § 552b, as amended), and 41 CFR § 102–3.150.
All written statements shall be submitted to the Designated Federal Officer for the Defense Acquisition University Board of Visitors, and this individual will ensure that the written statements are provided to the membership for their consideration.
Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Defense Acquisition University Board of Visitors until its next meeting. Committee's Designated Federal Officer or Point of Contact: Ms. Christen Goulding, 703–805–5412,
Office of Postsecondary Education, National Advisory Committee on Institutional Quality and Integrity (NACIQI), U.S. Department of Education.
Announcement of the time and location of a meeting.
This meeting notice is an update to the previous notice published in the
The NACIQI meeting will be held on June 25–26, 2015, from 8:00 a.m. to 5:30 p.m., at the Sheraton Pentagon City, 900 S. Orme Street, Arlington, VA 22204.
U.S. Department of Education, Office of Postsecondary Education, 1990 K Street NW., Room 8072, Washington, DC 20006.
Patricia Howes, Committee Coordinator, NACIQI, U.S. Department of Education, 1990 K Street NW., Room 8061, Washington, DC 20006–8129, telephone: (202) 502–7769, fax: (202) 502–7874, or email:
• The establishment and enforcement of the criteria for recognition of accrediting agencies or associations under Subpart 2, Part H, Title IV, of the HEA, as amended.
• The recognition of specific accrediting agencies or associations or a specific State approval agency.
• The preparation and publication of the list of nationally recognized accrediting agencies and associations.
• The eligibility and certification process for institutions of higher education under Title IV, of the HEA, together with recommendations for improvement in such process.
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions.
• Any other advisory function relating to accreditation and institutional eligibility that the Secretary may prescribe.
You may also access documents of the Department published in the
20 U.S.C. 1011c.
Institute of Education Sciences/National Center for Education Statistics (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before May 29, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Kashka Kubzdela, 202–502–7411.
The Department of Education (ED), 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, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. 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. Please note that written comments received in response to this notice will be considered public records.
National Assessment Governing Board, U.S. Department of Education.
Announcement of open and closed meetings.
This notice sets forth the agenda for the May 14–16, 2015 Quarterly Meeting of the National Assessment Governing Board (hereafter referred to as Governing Board). This notice provides information to members of the public who may be interested in attending the meeting or providing written comments on the meeting. The notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act (FACA).
The Quarterly Board meeting will be held on the following dates:
Munira Mwalimu, Executive Officer, 800 North Capitol Street NW., Suite 825, Washington, DC 20002, telephone: (202) 357–6938, fax: (202) 357–6945.
The Board is established to formulate policy for the National Assessment of Educational Progress (NAEP). The Board's responsibilities include the following: Selecting subject areas to be assessed, developing assessment frameworks and specifications, developing appropriate student achievement levels for each grade and subject tested, developing standards and procedures for interstate and national comparisons, improving the form and use of NAEP, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public.
On May 14, 2015, from 11:30 a.m. to 3:00 p.m., the Assessment Development Committee will meet in open session to review NAEP contextual variables. The Executive Committee will convene in open session on May 14, 2015 from 4:30 p.m. to 5:00 p.m. and thereafter in closed session from 5:00 p.m. to 5:45 p.m. During the closed session, the Executive Committee will receive and discuss cost estimates on various options for implementing NAEP's Assessment Schedule for 2014–2024 and will discuss NAEP's budgetary needs for the President's FY 2017 budget. The implications of the cost estimates and funds in support of the NAEP Assessment Schedule and future NAEP activities will also be discussed. This meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing confidential cost details and proprietary contract costs of current contractors to the public. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of § 552b of Title 5 U.S.C.
On May 15, 2015, the full Board will meet in open session from 8:30 a.m. to 9:45 a.m. The Board will review and approve the May 15–16, 2015 Board meeting agenda and meeting minutes from the March 2015 Quarterly Board meeting. This session will be followed by the Chairman's remarks and welcome remarks from Dale Nowlin, Governing Board member and Glenda Ritz, Indiana Superintendent of Public Instruction. Thereafter, the full Board will receive update reports from the Deputy Executive Director of the Governing Board, the Acting Director of the Institute of Education Sciences, and the Acting Commissioner of the National Center for Education Statistics. The Board will recess for Committee meetings from 10:15 a.m. to 12:30 p.m.
The Assessment Development Committee and the Reporting and Dissemination Committee will meet in open sessions from 10:15 a.m. to 12:30 p.m. The Committee on Standards, Design and Methodology (COSDAM) will meet in open session from 10:15 a.m. to 11:30 a.m. and thereafter in closed session from 11:30 a.m. to 12:30 p.m. During the closed session COSDAM will discuss information regarding analyses of the 2014 grade 8 Technology and Engineering Literacy (TEL) assessment, and discuss secure NAEP TEL data. This part of the meeting must be conducted in closed session because the analysis involves the use of secure data for the NAEP TEL assessment. Public disclosure of secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of § 552b of Title 5 U.S.C.
Following the Committee meetings, the Board will convene in open session from 1:00 p.m. to 2:15 p.m. to discuss the Governing Board's Strategic Planning Initiative. This session will be followed by discussions on the NAEP Assessment Literacy Initiative led by the Work Group Chair from 2:30 p.m. to 4:00 p.m. From 4:15 p.m. to 5:00 p.m. the Board will discuss a draft resolution on NAEP Trend Reporting.
The May 15, 2015 session of the Board meeting will adjourn at 5:00 p.m.
On May 16, 2015, the Nominations Committee will meet in closed session from 7:30 a.m. to 8:15 a.m. to discuss candidates for the eight Board vacancies for terms beginning on October 1, 2015 and begin discussion of the process for nominating candidates for terms beginning in October 2016. The Committee's discussions pertain solely to internal personnel rules and practices of an agency and information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of § 552b(c) of Title 5 of the United States Code.
Thereafter, the Board will meet in closed session from 8:30 a.m. to 9:45 a.m. to review and discuss independent government costs estimates for subjects to be assessed under the NAEP Schedule of Assessments. During the closed session, the Board will receive and discuss cost estimates on various options for implementing NAEP's Assessment Schedule through the year 2024 and will discuss NAEP's budgetary needs for the President's FY 2017 budget request. The implications of the cost estimates and funds in support of the NAEP Assessment Schedule and future NAEP activities will also be discussed. This session will be an in-depth briefing and discussion to examine cost projections which will impact the NAEP schedule through 2024. This part of the meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing contractors attending the Board meeting an unfair advantage in procurement and contract negotiations for NAEP. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of § 552b of Title 5 U.S.C.
Following the closed session, from 10:00 a.m. to 10:15 a.m., the incoming Executive Director will provide remarks to the full Board in open session. The Board will then receive reports from the standing committees and take action on a recommendation from the Reporting and Dissemination Committee on NAEP Core Contextual Variables. The May 16, 2015 meeting is scheduled to adjourn at 11:00 a.m.
You may also access documents of the Department published in the
Pub. L. 107–279, Title III—National Assessment of Educational Progress § 301.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before June 29, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Beth Grebeldinger, (202) 377–4018.
The Department of Education (ED), 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, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed
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 requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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 requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
284.123(g) Protests Due: 5 p.m. ET 5/7/15.
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 date(s). 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 has received the following Natural Gas Pipeline Rate and Refund Report 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 requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
The Association of American Pesticide Control Officials (AAPCO)/State, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Issues Research and Evaluation Group (SFIREG), Full Committee will hold a 2-day meeting, beginning on June 1, 2015, and ending June 2, 2015. This notice announces the location and times for the meeting and sets forth the tentative agenda topics.
The meeting will be held on Monday, June 1, 2015, from 8:00 a.m. to 5:00 p.m. and 8:30 a.m. to noon on Tuesday, June 2, 2015.
To request accommodation of a disability, please contact the person listed under
The meeting will be held at EPA. One Potomac Yard (South Bldg.) 2777 Crystal Dr., Arlington, VA., First Floor, South Conference Room.
Ron Kendall, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–5561; fax number: (703) 305–5884; email address:
You may be potentially affected by this action if you are interested in pesticide regulation issues affecting states and any discussion between EPA and SFIREG on FIFRA field implementation issues related to human health, environmental exposure to pesticides, and insight into EPA's decision-making process. You are invited and encouraged to attend the meetings and participate as appropriate. Potentially affected entities may include, but are not limited to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug and Cosmetics Act (FFDCA), or FIFRA and those who sell, distribute or use pesticides, as well as any nongovernment organization. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2015–0086, is available at
This meeting is open for the public to attend. You may attend the meeting without further notification.
7 U.S.C. 136
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning corporate aircraft costs.
Submit comments on or before June 29, 2015.
Submit comments identified by Information Collection 9000–0079, Corporate Aircraft Costs, by any of the following methods:
• Regulations.gov:
Submit comments via the Federal eRulemaking portal by searching the OMB control number. Select the link “Submit a Comment” that corresponds with “Information Collection 9000–0079, Corporate Aircraft Costs”. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 9000–0079, Corporate Aircraft Costs” on your attached document.
• Fax: 202–501–4067.
• Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405. ATTN: Ms. Flowers/IC 9000–0079, Corporate Aircraft Costs.
Ms. Kathy Hopkins, Federal Acquisition Policy Division, GSA, 202–969–7226 or via email
Government contractors that use company aircraft must maintain logs of flights containing specified information (
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulation (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Bryan Emery at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA) is announcing the progress of the Center for Devices and Radiological Health (CDRH) on its 2014–2015 Strategic Priority “Strike the Right Balance Between Premarket and Postmarket Data Collection.” To achieve this priority, CDRH established a goal to assure the appropriate balance between premarket and postmarket data collection to facilitate and expedite the development and review of medical devices, in particular high-risk devices of public health importance, and established a target date of December 31, 2014, by which to review 50 percent of product codes subject to a premarket approval application (PMA) that are legally marketed to determine whether or not, based on our current understanding of the technology, to rely on postmarket controls to reduce premarket data collection, to shift some premarket data collection to the postmarket setting, or to pursue down-classification. CDRH has taken such actions periodically in the past consistent with the medical device statutory framework but typically has done so on an ad hoc basis. CDRH also will require more data or up-classify a device, if warranted, based on the current state of the science; however, up-classification is not warranted for the devices subject to this retrospective review because they are already in the highest risk classification. In this document, CDRH is providing its current thinking on reviewed product types to solicit comments on the product codes that have been identified as candidates for reclassification, for reliance on postmarket controls to reduce premarket data collection, or a shift in premarket data collection to the postmarket setting.
Submit either electronic or written comments by June 29, 2015. See section IV for more information on how to submit comments to this document and properly identify the device(s) the comment concerns.
Submit electronic comments to
Nancy Braier, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5454, Silver Spring, MD 20993–0002, 301–796–5676.
One of three Strategic Priorities for 2014–2015 in CDRH is to “Strike the Right Balance Between Premarket and Postmarket Data Collection” (Ref. 1).
In order to achieve the proper balance between premarket and postmarket data collection, CDRH resolved in its Strategic Priorities for 2014–2015 to take several actions. CDRH committed to developing and seeking public comment on a framework for when it would be appropriate to shift premarket data collection to the postmarket setting. Pursuant to this commitment, CDRH and the Center for Biologics Evaluation and Research (CBER) issued the draft guidance, “Balancing Premarket and Postmarket Data Collection for Devices Subject to Premarket Approval” on April 23, 2014 (78 FR 22690). This draft guidance proposed an FDA policy of balancing premarket and postmarket data collection during the Agency's review of PMAs. This guidance outlined how FDA would consider the role of postmarket information in determining the appropriate type and amount of data that should be collected in the premarket setting to support premarket approval, while still meeting the statutory standard of a reasonable assurance of safety and effectiveness. Comments on this draft guidance were collected through July 22, 2014, and the guidance was finalized on April 13, 2015 (Ref. 2). Furthermore, under existing authorities, CDRH and CBER issued a draft guidance document on April 23, 2014 (78 FR 22691), entitled “Expedited Access for Premarket Approval Medical Devices Intended for Unmet Medical Need for Life Threatening or Irreversibly Debilitating Diseases or Conditions.” This draft guidance described FDA's proposal for a new, voluntary expedited access PMA program for certain medical devices to facilitate patient access to these devices by expediting the development, assessment, and review of certain devices that demonstrate the potential to address unmet medical needs for life threatening or irreversibly debilitating diseases or conditions. To expedite access for devices addressing unmet needs, this pathway to market would shift appropriate premarket data collection to the postmarket setting while maintaining the statutory standard of a reasonable assurance of safety and effectiveness. Comments on this draft guidance were collected through July 22, 2014, and the guidance was finalized and issued on April 13, 2015 (Ref. 3). In addition, CDRH is currently developing a mechanism to prospectively assure the appropriate balance of premarket and postmarket data collection for new devices subject to a PMA.
Another action in pursuit of the goal to strike the right balance between premarket and postmarket data collection is to commit to conducting a retrospective review of all PMA product codes (procodes) with active PMAs approved prior to 2010 to determine whether data typically collected premarket could be shifted to the postmarket setting, premarket data collection could be reduced through reliance on postmarket controls, or devices could be reclassified (down-classified) in light of our current understanding of the technology (Ref. 1). In general, some premarket data collections for class III devices that are currently marketed may be reduced through reliance on postmarket controls, or shifted to the postmarket setting if warranted based on CDRH's review experience as well as the postmarket performance and the current body of evidence regarding the benefit-risk profile of these devices. CDRH currently receives PMA submissions on the majority of these class III devices, and a change in premarket data collection is expected to expedite the approval of future PMA submissions. CDRH has periodically taken such actions consistent with the medical device statutory framework but has typically done so on an ad hoc basis. On the other hand, CDRH routinely requires more data when warranted based on our current understanding of that type of technology or based on issued raised by the data submitted by a sponsor for their device. CDRH will also up-classify a device, if warranted, based on the current state of the science. For example, in May 2014, CDRH proposed to up-classify surgical mesh when intended for use for pelvic organ prolapse (79 FR 24634), and in June 2014, CDRH issued a final order up-classifying sunlamps and sunlamp products (tanning beds/booths) (79 FR 31205). However, up-classification is not warranted for the devices subject to this retrospective review, because they are already in the highest risk classification.
During this retrospective review, the devices are analyzed according to procode. CDRH targeted the date of December 31, 2014, to review 50 percent of procodes subject to a PMA that are legally marketed to determine whether or not to change premarket data collection by shifting to the postmarket setting, reducing premarket data collection through reliance on postmarket controls, or pursuing reclassification (Ref. 1). This target extends to have 75 percent completed by June 30, 2015, and 100 percent completed by December 31, 2015.
The purpose of this
Retrospective analysis of the class III medical device procodes is intended to determine if current classifications and data collections remain appropriate for determining a reasonable assurance of safety and effectiveness. As our understanding of the technology associated with individual medical devices has increased and we have a better understanding of the risks associated with the technology of each device, the type and amount of data that is needed to demonstrate a reasonable assurance of safety and effectiveness evolve. This evolution to require the least burdensome amount of data to evaluate device effectiveness follows the least burdensome provisions of the FD&C Act (section 513(a)(3)(D)(ii)). Under section 513 of the FD&C Act, a device is a class III device and requires premarket approval if general controls and special controls are insufficient to provide reasonable assurance of the safety and effectiveness of the device, and if the device is to be used for supporting or sustaining human life or of substantial importance in preventing impairment of human health or if the device presents a potential unreasonable risk of illness or injury. In order to reclassify a class III device into class II, the device must meet the statutory criteria for class II: A device which cannot be classified as a class I device, because general controls are insufficient to provide reasonable assurance of the safety and effectiveness of the device, and for which there is sufficient information to establish special controls to provide such assurance. As new information becomes available over time, the accumulated information available for a device may be sufficient to establish special controls to provide a reasonable assurance of safety and effectiveness; therefore, the classification of the device may be changed either up or down.
In February 2014, CDRH began its retrospective review with procodes associated with active PMAs approved prior to 2010. PMA procodes created since 2010 were not included in this retrospective review because these
The results of this analysis include recommendations for procodes that are candidates for reclassification, a reduction in premarket data collection through reliance on postmarket controls, or a shift in premarket data collection to postmarket collection. These results are published online at
In this retrospective review, postmarket performance data, technology and performance considerations, and other relevant considerations were evaluated for each procode. These factors were used to evaluate the current benefit-risk profile to determine if the devices are good candidates for a reduction in premarket data collection through reliance on postmarket controls, a shift of premarket data collection to postmarket, or reclassification. Postmarket performance data (including recent PMA Annual Reports, literature reviews, total product lifecycle reports, medical device reporting analysis, market penetration, and recall analysis) were investigated for any performance concerns or problems that outpace any increases in device use or acceptance. In evaluating the technology and performance considerations for the procodes, performance concerns or problems that were uncovered in the review of postmarket data were considered unfavorable factors for a change in data collection or reclassification. Favorable factors to indicate a device is a good candidate for a change in data collection or reclassification included if risks are now well understood and determined to be moderate to low, technology uncertainties have been alleviated, performance standards or non-clinical tests have been developed that could be surrogates for some clinical testing, the need for a controlled study could be eliminated due to defined objective performance criteria, the device has been shown to have good short-term performance, or concerns are limited to long-term performance or rare adverse events.
Finally, several relevant considerations were evaluated for each procode. Unfavorable factors for devices to be considered candidates for a change in data collection or reclassification included if there have been significant changes implemented to address safety or effectiveness since the devices have been on the market or if the review of annual reports and manufacturing changes has been important to maintain safety of the devices. Furthermore, if there were a limited number of approvals or limited clinical use of the devices, this was considered an additional unfavorable factor for the devices to be considered candidates for a change in data collection or reclassification, due to inadequate data needed to conduct this scientific assessment.
After completion of this retrospective review, FDA will prioritize the procodes identified as candidates for reclassification (Table 1) according to public health impact and Center resources, in order to determine the top priority procodes for which reclassification would have the greatest impact. The procodes identified as top priority candidates for reclassification will proceed through the reclassification procedures according to 21 CFR part 860. FDA will also prioritize the procodes identified as candidates for a change in data collection (Table 2) according to public health impact and Center resources, in order to determine which reductions of or shifts to data collection would have the greatest impact. The FDA encourages firms to submit a presubmission to get feedback on their data collection plan or contact the appropriate review branch for additional information if they are in the process of developing a device in one of these categories.
This document 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 814 have been approved under OMB control number 0910–0231.
Interested persons may submit either electronic comments regarding this document to
The following references have been placed on display in the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for Xience Xpedition Everolimus Eluting Coronary Stent System and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Submit electronic comments to
Beverly Friedman, Office of Management, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Campus, Rm. 3180, Silver Spring, MD 20993–0002, 301–796–7900.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device, Xience Xpedition Everolimus Eluting Coronary Stent System. Xience Xpedition Everolimus Eluting Coronary Stent System is indicated for improving coronary luminal diameter in subjects with symptomatic heart disease due to de novo native coronary artery lesions (length ≤32 millimeters (mm)) with reference vessel diameter of ≥2.25 mm and ≤4.25 mm. Subsequent to this approval, the USPTO received a patent term restoration application for Xience Xpedition Everolimus Eluting Coronary Stent System (U.S. Patent No. 7,828,766) from Abbott Cardiovascular Systems Inc., and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated May 22, 2014, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of Xience Xpedition Everolimus Eluting Coronary Stent System represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for Xience Xpedition Everolimus Eluting Coronary Stent System is 178 days. Of this time, zero (0) days occurred during the testing phase of the regulatory review period, while 178 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 178 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Environmental Assessment: Questions and Answers Regarding Drugs With Estrogenic, Androgenic, or Thyroid Activity.” This guidance is intended to supplement CDER's guidance for industry on “Environmental Assessment of Human Drug and Biologics Applications,” issued July 1998, by addressing specific considerations for drugs that have potential estrogenic, androgenic, or thyroid pathway activity (E, A, or T activity) in environmental organisms. It is intended to help sponsors of such drugs determine whether they should submit environmental assessments (EA) for new drug applications (NDAs) and certain NDA supplements, and to clarify what information such sponsors should include if they submit a claim of categorical exclusion instead of an EA.
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 June 29, 2015.
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, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, 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
Raanan A. Bloom, Environmental Assessment Team, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993–0002, 301–796–2185,
FDA is announcing the availability of a draft guidance for industry entitled “Environmental Assessment: Questions and Answers Regarding Drugs With Estrogenic, Androgenic, or Thyroid Activity.” The National Environmental Policy Act of 1969 (Pub. L. 91–190) requires all Federal agencies to assess the environmental impact of their actions and to ensure that the interested and affected public is informed of the environmental analyses. FDA regulations at 21 CFR part 25 specify that EAs must be submitted as part of certain NDAs, abbreviated new drug applications (ANDAs), biologic license applications (BLAs), supplements to such applications, and investigational new drug applications (INDs), and for various other actions, unless the action qualifies for a categorical exclusion. Failure to submit either an EA or a claim of categorical exclusion is sufficient grounds for FDA to refuse to file or approve an application (§ 25.15(a), 21 CFR 314.101(d)(4), and 601.2(a) and (c)).
Categorical exclusions for actions related to human drugs and biologics are listed at § 25.31. This draft guidance focuses on the categorical exclusion for actions on NDAs and NDA supplements that would increase the use of an active moiety, but the estimated concentration of the substance at the point of entry into the aquatic environment would be below 1 part per billion (1 ppb) (§ 25.31(b)). Although an action that qualifies for this exclusion ordinarily does not require an EA, FDA will require “at least an EA” if “extraordinary circumstances” indicate that the specific proposed action (
FDA has, on a case-by-case basis, requested additional information from sponsors of NDAs and NDA supplements for drugs with E, A, or T activity to help it determine whether extraordinary circumstances exist. However, late cycle requests for additional environmental information have the potential to delay approval of applications. Accordingly, this guidance is intended to clarify that sponsors of drugs with potential E, A, or T activity should consult with the Agency early in product development concerning the information FDA may need to determine whether an EA will be required or whether a claim of categorical exclusion will be acceptable, and what information should be included in the EA or claim of categorical exclusion.
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 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 either electronic comments regarding this document to
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 part 25 have been approved under OMB control number 0910–0322 and the collections of information in part 314 have been approved under OMB control number 0910–0001.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration is correcting a notice entitled “Addressing Inadequate Information on Important Health Factors in Pharmacoepidemiology Studies Relying on Healthcare Databases; Public Workshop” that appeared in the
Leslie Wheelock, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4345, Silver Spring, MD, 301–796–8450, FAX: 301–847–8106,
In the
1. On page 21248, in the second column, starting at the sixth sentence of the first paragraph, the title “Methodological Considerations to Address Unmeasured Information About Important Health Factors in Pharmacoepidemiology Studies that Rely on Electronic Healthcare Databases to Evaluate the Safety of Regulated Pharmaceutical Products in the Postapproval Setting” is corrected to read “Inadequate Information on Important Health Factors in Pharmacoepidemiology Studies Relying on Healthcare Databases.”
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by June 29, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Respondents to this collection are sponsors of marketing applications that contain clinical data from studies covered by the regulations. These sponsors represent pharmaceutical, biologic, and medical device firms. Respondents are also clinical investigators who provide financial information to the sponsors of marketing applications.
Under § 54.4(a) (21 CFR 54.4(a)), applicants submitting an application that relies on clinical studies must submit a complete list of clinical investigators who participated in a covered clinical study, and must either certify to the absence of certain financial arrangements with clinical investigators (Form FDA 3454) or, under § 54.4(a)(3), disclose to FDA the nature of those arrangements and the steps taken by the applicant or sponsor to minimize the potential for bias (Form FDA 3455).
Under § 54.6, the sponsors of covered studies must maintain complete records of compensation agreements with any compensation paid to nonemployee clinical investigators, including information showing any financial interests held by the clinical investigator, for a time period of 2 years after the date of approval of the applications. Sponsors of covered studies maintain many records with regard to clinical investigators, including protocol agreements and investigator resumes or curriculum vitae. FDA estimates than an average of 15 minutes will be required for each recordkeeper to add this record to the clinical investigators' file.
Under § 54.4(b), clinical investigators supply to the sponsor of a covered study financial information sufficient to allow the sponsor to submit complete and accurate certification or disclosure statements. Clinical investigators are accustomed to supplying such information when applying for research grants. Also, most people know the financial holdings of their immediate family and records of such interests are generally accessible because they are needed for preparing tax records. For these reasons, FDA estimates that it will take clinical investigators 15 minutes to submit such records to the sponsor.
FDA estimates the burden of this collection of information as follows:
Notice is hereby given of a change in the meeting of the National Institute of Neurological Disorders and Stroke Special Emphasis Panel, April 22, 2015, 08:00 a.m. to April 23, 2015, 06:00 p.m., Lorien Hotel & Spa, 1600 King Street, Alexandria, VA, 22314 which was published in the
The meeting notice is amended to change the location of the meeting from the Lorien Hotel & Spa to the Hotel Monaco Alexandria. The date and time remain the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications/contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications/contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the National Institute of Allergy and Infectious Diseases Special Emphasis Panel, April 23, 2015, 01:00 p.m. to April 23, 2015, 04:00 p.m., National Institutes of Health, 5601 Fishers Lane, Rockville, MD, 20852 which was published in the
The meeting notice is amended to change the date of the meeting from 4/23/2015 to 5/22/2015. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Mental Health Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Closed: 8:30 a.m. to 10:30 a.m.
Open: 11:00 a.m. to 5:00 p.m.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
United States Coast Guard, DHS.
Request for Applicants; Extension of application.
The Coast Guard extends the deadline for accepting applications for membership on the Lower Mississippi River Waterway Safety Advisory Committee. This Committee advises and makes recommendations to the Coast Guard on matters relating to safe transit of vessels and products to and from the ports on the Lower Mississippi River and related waterways.
Completed applications should reach the Coast Guard May 11, 2015.
Send your cover letter and resume indicating the position you wish to fill via one of the following methods:
•
•
•
Lieutenant Junior Grade Colin Marquis, Alternate Designated Federal Officer of Lower Mississippi River Waterway Safety Advisory Committee; telephone (504) 365–2280 or email at
On January 20, 2015, the Coast Guard published a request in the
The Lower Mississippi River Waterway Safety Advisory Committee is a Federal advisory committee under the authority found in section 19 of the
The Committee expects to meet at least two times annually. It may also meet for extraordinary purposes with the approval of the Designated Federal Officer.
We will consider applications for 25 positions that expire or become vacant August 27, 2015. To be eligible, you should have experience regarding the transportation, equipment, and techniques that are used to ship cargo and to navigate vessels on the Lower Mississippi River and its connecting navigable waterways, including the Gulf of Mexico. The 25 positions available for application are broken down as follows:
1. Five members representing River Port authorities between Baton Rouge, Louisiana, and the Head of Passes of the Lower Mississippi River, of which one member shall be from the Port of St. Bernard and one member from the Port of Plaquemines.
2. Two members representing vessel owners domiciled in the state of Louisiana.
3. Two members representing organizations which operate harbor tugs or barge fleets in the geographical area covered by the Committee.
4. Two members representing companies which transport cargo or passengers on the navigable waterways in the geographical area covered by the Committee.
5. Three members representing State Commissioned Pilot organizations, with one member each representing New Orleans-Baton Rouge Steamship Pilots Association, the Crescent River Port Pilots Association, and the Associated Branch Pilots Association.
6. Two at-large members who utilize water transportation facilities located in the geographical area covered by the Committee.
7. Three members each one representing one of three categories: consumers, shippers, and importers-exporters that utilize vessels which utilize the navigable waterways covered by the Committee.
8. Two members representing those licensed merchant mariners, other than pilots, who perform shipboard duties on those vessels which utilize navigable waterways covered by the Committee.
9. One member representing an organization that serves in a consulting or advisory capacity to the maritime industry.
10. One member representing an environmental organization.
11. One member drawn from the general public.
12. One member representing the Associated Federal Pilots and Docking Masters of Louisiana.
Each member serves for a term of 2 years. Members may serve consecutive terms. All members serve at their own expense and receive no salary, reimbursement of travel expenses, or other compensation from the Federal Government. If you are selected as a member from the general public and from at-large members who utilize water transportation facilities in the geographical area covered by the Committee, you will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18, United States Code. As a candidate for appointment as a Special Government Employee, applicants are required to complete a Confidential Financial Disclosure Report (OGE Form 450). Coast Guard may not release the reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 United States Code 552a). Applicants can obtain this form by going to the Web site of the Office of Government Ethics (
Registered lobbyists are not eligible to serve on Federal advisory committees in an individual capacity. See “Revised Guidance on Appointment of Lobbyist to Federal Advisory Committees, Boards and Commissions” (79 FR 47482, August 13, 2014). Positions we list for members from the general public and from at-large members who utilize water transportation facilities in the geographical area covered by the Committee would be someone appointed in an individual capacity and would be designated as a Special Government Employee as defined in 202(a) of Title 18, United States Code. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Pub. L.104–65, as amended by Title II of Pub. L. 110–81).
The Department of Homeland Security does not discriminate in selection of Committee members 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 employment organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
To visit our online docket, go to
Note that during the vetting process applicants may be asked to provide date of birth and social security number. All email submittals will receive receipt confirmation.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day Notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until May 29, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
If you need a copy of the information collection instrument with instructions, or additional information, please contact us at: USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Laura Dawkins, Chief, 20 Massachusetts Avenue NW., Washington, DC 20529–2140, Telephone number 202–272–8377. Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency'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 through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice; response to comments.
On February 6, 2015, at 80 FR 6743, the Federal Housing Administration (FHA) published a notice to solicit public comment on the alternative path to claim payment—the Mortgagee Optional Election Assignment—for certain HECMs announced in Mortgagee Letter 2015–03. The public comment period on the February 6, 2015, notice closed on March 9, 2015. FHA received 7 public comments on the notice. In this notice, FHA responds to questions and comments raised by commenters.
Ivery Himes, Director, Office of Single Family Asset Management, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410; telephone number 202–708–1672 (this is not a toll-free number). Persons with hearing or speech impairments may access this number by calling the Federal Relay Service at 800–877–8339 (this is a toll-free number).
FHA has a statutory obligation to ensure the fiscal soundness of the FHA insurance funds. FHA also has the ability, pursuant to the Reverse Mortgage Stabilization Act of 2013 (Pub. L. 113–29), to establish, by notice or mortgagee letter, any additional or alternative requirements that the Secretary, in the Secretary's discretion, determines are necessary to improve the fiscal safety and soundness of the HECM program, which requirements shall take effect upon issuance.
Pursuant to this authority, FHA established Mortgagee Letter 2015–03 on January 29, 2015, for immediate effect. In Mortgagee Letter 2015–03, FHA set out the Mortgagee Optional Election (MOE) Assignment path to claim payment for existing HECMs with FHA Case Numbers issued prior to August 4, 2014. FHA alerted mortgagees
On February 6, 2015, at 80 FR 6743, FHA published a notice in the
Additionally, Mortgagee Letter 2015–03 implements an alternative Due Date for HECMs eligible under Mortgagee Letter 2015–03. Any extensions to any of the timeframes stated in Mortgagee Letter 2015–03 are at the sole discretion of the Secretary. Any extension request must be made in writing, before the expiration of the initial timeframe, and must show good cause. Where an extension request is received and granted in writing, it will operate in the same manner as approved extensions currently operate.
Mortgagee Letter 2015–03 does not place any restrictions or requirements on the source of funds to pay for any additional expenses that may be incurred. Similarly, Mortgagee Letter 2015–03 places no restrictions or requirements on the manner in which an outstanding loan balance may be brought into compliance with the Principal Limit Test.
The Principal Limit Test does take into account the calculated growth. The growth must be calculated by using what the PLF, in addition to the initial principal limit, would have been had the Eligible Surviving Non-Borrowing Spouse been a borrower at origination. In order to satisfy the Principal Limit Test, the outstanding loan balance must be equal to or less than what the principal limit would have been for the Eligible Surviving Non-Borrowing Spouse at the time the loan became due and payable due to the death of the last surviving borrower. Mortgagee Letter 2015–03 does not place restrictions or requirements on the source of funds that may be used to bring the outstanding loan balance in compliance with the Principal Limit Test. Additionally, Mortgagee Letter 2015–03 places no restrictions or requirements on the manner in which an outstanding loan balance may be brought into compliance with the Principal Limit Test. There will, however, be no new transaction codes in HERMIT.
(a) Commenter seeks clarification as to whether or not a mortgagee's reporting requirements of the election to take a MOE Assignment extend all of the current HECM servicing reporting timelines that impact claim curtailment, including but not limited to undertaking and reporting first legal action or ordering a due and payable appraisal. Commenter also requests that these adjusted timelines be automatically captured in HERMIT, thus avoiding an auto-curtailment in HERMIT which
Commenter asks HUD to clarify that that the “Due Date” for purposes of payment of claim means the date when a mortgagee notifies HUD under Mortgagee Letter 2015–03 that it has determined not to utilize the MOE Assignment, or, if applicable, that it has elected the MOE Assignment but then determined that the mortgage is not eligible for assignment because all established conditions and requirements for the MOE Assignment are not met, and that this timeline applies to all curtailable events.
(b) Commenter asks HUD to clarify that, following the election of the MOE Assignment and the assessment and determination that a Non-Borrowing Spouse is ineligible for a MOE Assignment Deferral Period, the timeline for First Legal Action is automatically extended, in addition to any additional time that may be allowed by the Secretary, beyond this automatically extended time period. Commenter requests that HUD clarify the manner in which a servicing mortgagee should update HERMIT with this information to avoid a claim being automatically curtailed to the date six months from the death of the last surviving borrower. Commenter also requests that HUD clarify which dates should be provided for the date the servicing mortgagee notified HUD of the death (Block 29) and the expiration of the extension (Block 19) in such cases in order to avoid curtailment.
The User Assistance Test (UAT) for the HERMIT changes will occur in Spring 2015, as the scheduled release date is targeted for April 25, 2015. The process expected to be in effect at that time is as follows: To change the “Due Date” in HERMIT, the User will access the “Contact Tab” and un-check the “Eligible NBS” box, causing the
(c) Commenter requests clarification regarding the time period for commencement of First Legal Action for loans which previously had extensions but are now under the time periods provided in Mortgagee Letter 2015–03. Commenter notes that there are many cases that have been on a Non-Borrowing Spouse extension and questions whether First Legal Action for these loans restarts as of Mortgagee Letter 2015–03. When must First Legal Action be completed to avoid interest curtailment?
Commenters urge HUD to provide alternative options to protect Non-Borrowing Spouses, such as the Hold Election. One commenter suggests that HUD could satisfy the HECM by paying the lesser of the unpaid principal balance or 95% of the property's appraised value on behalf of the deceased borrower and then take a new mortgage interest due upon the Non-Borrowing Spouse's death. Another commenter recommends that HUD allow Non-Borrowing Spouses to remain in the home and pay a portion of the interest accruing on the loan based on their ability to pay; HUD would accept early assignment of the loan and defer the due and payable status of the loan so long as the Non-Borrowing Spouse pays a portion of the interest accruing on the loan and fulfills the obligations under the mortgage. Commenter also recommends that HUD allow surviving Non-Borrowing Spouses to pay money to reduce the unpaid principal balance to meet the requirements of the Principal Limit Test over time, rather than in one large, lump-sum payment; HUD would accept early assignment of the loan, defer the due and payable status of the loan and allow the surviving spouse to pay the necessary amount over a period of years.
Additionally, as stated previously, Mortgagee Letter 2015–03 does not place restrictions or requirements on the source of funds that may be used to bring the outstanding loan balance in compliance with the Principal Limit Test, or the manner in which an outstanding loan balance may be brought into compliance with the Principal Limit Test. However, the mortgagee letter does require that the outstanding loan balance not exceed the MCA and that either the Factor Test or the Principal Limit Test is satisfied at the time of assignment.
Finally, as noted above, HECM loans are non-recourse and cannot result in a deficiency judgment against any party. A HECM foreclosure that may occur as a result of the last surviving borrower's death should not constitute a reportable event in the credit file of either the borrower's estate or the surviving Non-Borrowing Spouse.
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service, announce a public meeting of the Wildlife and Hunting Heritage Conservation Council (Council). The Council provides advice about wildlife and habitat conservation endeavors that benefit wildlife resources; encourage partnership among the public, the sporting conservation organizations, the States, Native American tribes, and the Federal Government; and benefit recreational hunting.
The meeting will be held in the Kenai National Wildlife Refuge Visitor's Center, Ski Hill Road, Soldotna, Alaska 99669.
Joshua Winchell, Council Designated Federal Officer, U.S. Fish and Wildlife Service, National Wildlife Refuge System, 5275 Leesburg Pike, Falls Church, VA 22041–3803; telephone (703) 358–2639; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that Wildlife and Hunting Heritage Conservation Council will hold a meeting.
Formed in February 2010, the Council provides advice about wildlife and habitat conservation endeavors that:
1. Benefit wildlife resources;
2. Encourage partnership among the public, the sporting conservation organizations, the states, Native American tribes, and the Federal Government; and
3. Benefit recreational hunting.
The Council advises the Secretary of the Interior and the Secretary of Agriculture, reporting through the Director, U.S. Fish and Wildlife Service (Service), in consultation with the Director, Bureau of Land Management (BLM); Director, National Park Service (NPS); Chief, Forest Service (USFS); Chief, Natural Resources Service (NRCS); and Administrator, Farm Services Agency (FSA). The Council's duties are strictly advisory and consist of, but are not limited to, providing recommendations for:
1. Implementing the Recreational Hunting and Wildlife Resource Conservation Plan—A Ten-Year Plan for Implementation;
2. Increasing public awareness of and support for the Wildlife Restoration Program;
3. Fostering wildlife and habitat conservation and ethics in hunting and shooting sports recreation;
4. Stimulating sportsmen and women's participation in conservation and management of wildlife and habitat resources through outreach and education;
5. Fostering communication and coordination among State, tribal, and Federal governments; industry; hunting and shooting sportsmen and women; wildlife and habitat conservation and management organizations; and the public;
6. Providing appropriate access to Federal lands for recreational shooting and hunting;
7. Providing recommendations to improve implementation of Federal conservation programs that benefit wildlife, hunting, and outdoor recreation on private lands; and
8. When requested by the Designated Federal Officer in consultation with the Council Chairperson, performing a variety of assessments or reviews of policies, programs, and efforts through the Council's designated subcommittees or workgroups.
Background information on the Council is available at
The Council will convene to consider issues including:
1. Public access on federal conservation easements;
2. recent changes to the Federal Migratory Bird Hunting and Conservation Stamp program; and
3. Other Council business.
The final agenda will be posted on the Internet at
To attend this meeting, register by close of business on the dates listed in “Public Input” under
Interested members of the public may submit relevant information or questions for the Council to consider during the public meeting. Written statements must be received by the date above, so that the information may be made available to the Council for their consideration prior to this meeting. Written statements must be supplied to the Council Coordinator in both of the following formats: One hard copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation at the meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator, in writing (preferably via email; see
Summary minutes of the conference will be maintained by the Council Coordinator (see
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the amendment to the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Title 5—Regulatory Provisions, Chapter 5–1, Liquor Control (Chapter). This Chapter amends the existing Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal (Confederated Tribes of the Coos) Liquor Code, enacted by the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal Council, which was published in the
Gregory Norton, Division of Tribal Government Services Officer, Northwest Regional Office, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, OR 97232–4169, Telephone: (503) 231–6723, Fax: (503) 231–2201; or Laurel Iron Cloud, Chief, Division of Tribal Government Services, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240, Telephone: (202) 513–7641.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal Council duly adopted amendments to the CLUSTIC Chapter 5–1 (Liquor Control) by Ordinance #031B on August 10, 2014.
The Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Title 5—Regulatory Provisions, Chapter 5–1, Liquor Control (Chapter), as amended, shall read as follows:
(a) The authority for this Chapter 5–1 and its adoption by Tribal Council is found in the CLUSI Const. Art. I, section 1 and Art. VI, section 2. This Chapter 5–1 is intended, and shall be construed, to conform to the requirements of state law as required by 18 U.S.C. 1161.
(b) This Chapter 5–1 is for the purpose of regulating the sale, possession and use of alcoholic liquor on Tribal Land of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians (Tribes).
The following definitions shall apply to this Chapter 5–1:
(a)
(b
(c)
(d)
(1) To provide alcoholic liquor in exchange for any value, consideration, or promise, or in any way other than purely gratuitously.
(2) To solicit or receive an order for alcoholic liquor.
(3) To keep or expose alcoholic liquor for sale or with the intent to sell.
(4) To peddle or traffic in alcoholic liquor.
(a) It shall be unlawful for any person or business establishment on Tribal Land to sell liquor without a liquor sales license from the Tribes.
(b) It shall be unlawful for any person or business establishment on Tribal Land to possess, transport or keep with intent to sell any liquor, except for those licensed business establishments on Tribal Land, provided, however, that a person may transport liquor from a licensed business establishment on Tribal Land consistent with the terms of the license.
(c) It shall be unlawful for any person to consume alcoholic liquor on a public highway.
(d) It shall be unlawful for any person to publicly consume any alcoholic liquor at any community function, or at or near any place of business, Indian celebration grounds, recreational areas, including ballparks and public camping areas, the Tribal Headquarters area and any other area where minors gather for meetings or recreation, except within a licensed business establishment on Tribal Land where liquor is sold.
(e) It shall be unlawful for any person under the age of twenty-one (21) years
(f) Alcoholic liquor may not be given as a prize, premium or consideration for a lottery, contest, game of chance or skill, or competition of any kind.
(g) Without limiting the foregoing paragraphs in this chapter, any other prohibition relating to liquor under the state law of Oregon shall apply on Tribal Lands.
An application for a liquor sales license under this Chapter 5–1 must be submitted at least thirty (30) days prior to the requested effective date on a form provided by the Tribal Council (available from the office of the Tribal Administrator). The application must be made by a person who is at least twenty-one (21) years of age and shall be submitted to the office of the Tribal Administrator with the required license fee. A license will not become effective unless the applicant delivers to the office of the Tribal Administrator:
(a) valid copy of applicant's state liquor license from the Oregon Liquor Control Commission; and
(b) proof of insurance sufficient to meet the requirements for a state liquor license from the Oregon Liquor Control Commission.
A Licensee may apply for renewal of a liquor sales license by filing, not less than thirty (30) days prior to the license expiration date, a renewal application on a form provided by the Tribal Council (available from the office of the Tribal Administrator). The renewal application shall be submitted to the office of the Tribal Administrator with the required license fee. A license renewal will not become effective unless the applicant delivers to the office of the Tribal Administrator:
(a) a valid copy of applicant's state liquor license from the Oregon Liquor Control Commission; and
(b) proof of insurance sufficient to meet the requirements for a state liquor license from the Oregon Liquor Control Commission.
The Tribal Administrator shall cause notice of the receipt of any completed application or renewal application for a liquor sales license to be posted for a period of fourteen (14) days in the Administrative Building, Tribal Hall, Outreach Offices, on the Tribes' Web site, in the office of the Gaming Commission and at the business establishment on Tribal Land requesting the license prior to Tribal Council consideration of the application or renewal. The notice shall include a statement that any comments on the application or renewal may be directed to the Tribal Council by delivery to the office of the Tribal Administrator.
(b) The Tribal Administrator shall deliver a copy of a completed application or renewal application to the Tribal Police Department for performance of a background check on the applicant. The Tribal Police Department, or its designee, will conduct a background check of the applicant and provide a report of its findings to the Tribal Administrator within ten (10) days of receipt of a copy of the completed application or renewal application.
(c) The Tribal Administrator shall forward to the Tribal Council any complete application or renewal application for a liquor sales license submitted with the required fee, along with a copy of the Tribal Police Department background check and certification of the date notice was posted pursuant to CLUSITC 5–1–6(a).
(d) Tribal Council action on a license application or renewal must be taken at a regular or special meeting. The Tribal Council shall deny an application for or renewal of a license if it determines that the applicant does not have a valid and current liquor license from the Oregon Liquor Control Commission. The Tribal Council may deny an application for or renewal of a license if it determines that sale of alcoholic liquor is not appropriate at that location.
(a) The following conditions apply to all liquor sales licenses:
(1) The holder of a Tribal liquor license must also maintain a state liquor license from the Oregon Liquor Control Commission to the extent required under state law.
(2) Except as provided in CLUSITC 5–1–7(d), a liquor sales license shall be valid for one (1) year from the date of its issuance.
(3) A liquor sales license shall not be transferable.
(4) The holder of the Tribal liquor license must maintain compliance with this Chapter 5–1 and Oregon Revised Statutes Chapter 471, including without limitation compliance with laws regarding the sale, service and handling of liquor.
(b) The Tribal Council may impose any other conditions it deems necessary to safeguard and promote the safety, health and general welfare of members of the Tribes.
(c) Unless otherwise specified, a renewed license will be subject to the same conditions as an original license and any additional conditions the Tribal Council deems appropriate.
(b) A liquor sales license issued to a business establishment on Tribal Land operated by the Tribes, including without limitation Three Rivers Casino & Hotel and Ocean Dunes Golf Course, shall be valid so long as the Tribal business establishment on Tribal Land maintains a valid state liquor license from the Oregon Liquor Control Commission unless earlier revoked or suspended pursuant to CLUSITC 5–1–10 or surrendered by the Licensee. A business establishment on Tribal Land operated by the Tribes remains subject to all other applicable provisions of this Chapter, including all provisions applicable to a Licensee.
An individual may request a special event liquor license for a special event or occasion of limited duration by submitting a request to the office of the Tribal Administrator for consideration by the Tribal Council. The Tribal Council may take action on a request for a special event liquor license, including imposing specific conditions on the license, at any regular or special meeting. Notwithstanding the foregoing, an individual requesting a special event liquor license under this section must also hold a state liquor license from the Oregon Liquor Control Commission, to the extent required under state law.
(a) Should an applicant or Licensee disagree with a Tribal Council decision on an application for or renewal of a liquor sales license, the applicant or Licensee may request a hearing before the Tribal Council by submitting a written request for a hearing to the office of the Tribal Administrator not later than seven (7) days after receipt of the Tribal Council's decision. If an applicant or Licensee so submits a timely request, the Tribal Council shall provide reasonable notice to the applicant of a hearing date, time and
(b) Following such hearing, the Tribal Council shall affirm, modify or reverse its initial licensing decision.
Any denial of a liquor sales license or renewal of a liquor sales license is final. There is no further right of appeal.
(a) Failure of a Licensee to abide by any provision of this Chapter 5–1 and any conditions set forth herein or imposed by Tribal Council may result in revocation or suspension of the Licensee's liquor sales license by the Tribal Council, as well as the assessment of civil penalties in accordance with CLUSITC 5–1–13.
(b) Prior to suspension or revocation of a liquor sales license, the Licensee shall have the right to a hearing before the Tribal Council. The Tribal Council shall provide reasonable notice to the Licensee of the hearing date, time and location, as well as the procedures to be followed. If the Tribal Council decides to revoke or suspend a liquor sales license, they will issue a decision in writing.
(c) The decision of the Tribal Council on the revocation or suspension of a liquor sales license is final. There is no further right of appeal.
(a) The holder of a license issued under this Chapter 5–1 or Oregon Revised Statutes Chapter 471 may employ persons eighteen (18), nineteen (19) and twenty (20) years of age who may take orders for, serve and sell alcoholic liquor in any part of the licensed premises when that activity is incidental to the serving of food except in those areas classified by the Oregon Liquor Control Commission as being prohibited to the use of minors. However, no person who is eighteen (18), nineteen (19) or twenty (20) years of age shall be permitted to mix, pour or draw alcoholic liquor except when pouring is done as a service to the patron at the patron's table or drawing is done in a portion of the premises not prohibited to minors.
(b) Except as stated in this section, it shall be unlawful to hire any person to work in connection with the sale and service of alcoholic beverages in a licensed business establishment on Tribal Land if such person is under the age of twenty-one (21) years.
Any person or business in possession of a liquor sales license, which sells liquor by the drink for consumption on the premises or sells for consumption off the premises, shall post a sign consistent with Oregon law informing the public of the effects and risks of alcohol consumption during pregnancy.
(a) The Tribal Council may assess a penalty against any person who violates this Chapter 5–1, in an amount not to exceed one thousand dollars ($1,000) for each violation, provided, however, that a penalty assessed against a minor shall not exceed five thousand dollars ($5,000).
(b) Upon the assessment of a penalty, the person against whom the penalty was assessed may request a hearing before the Tribal Council by submitting a written request to the Tribal Council not later than seven (7) days after receipt of assessment. If the person against whom the penalty was assessed so submits a timely request, the Tribal Council shall provide reasonable notice to the person against whom the penalty was assessed of the hearing date, time and location, as well as the procedures to be followed.
(c) If the Tribal Council upholds its decision to assess a penalty, the person against whom the penalty was assessed may appeal the decision to the Tribal Court, but only on the grounds that the decision was arbitrary and capricious or a violation of Tribal Constitutional rights. Such appeal must be filed with the Tribal Court in writing within fourteen (14) days following receipt of the Tribal Council's decision. The Tribal Court shall review without jury the decision of the Tribal Council. The person against whom the penalty was assessed has the burden of persuading the Tribal Court that the Tribal Council's decision is arbitrary or capricious or a violation of Tribal Constitutional rights.
(9) In addition to assessing a penalty against any person who violates this Chapter 5–1, the Tribal Council may direct the confiscation of any alcoholic liquor sold or possessed by a person in violation of this Chapter 5–1. Confiscation will be treated the same as the assessment of a civil penalty in this section for appeal purposes. The confiscated alcoholic liquor shall be stored in a secure manner until the completion of any appeal. If the person does not appeal within the time provided, or if forfeiture is upheld by the Tribal Court on appeal, then the Tribal Council may sell the confiscated liquor for the benefit of the Tribes or may dispose of the liquor in any other manner they deem appropriate.
(e) The Tribal Council hereby specifically finds that the penalties under this section are reasonably necessary and are related to the expense of governmental administration necessary in maintaining law and order and public safety on Tribal Land. All violations of this Chapter, whether committed by tribal members, non-member Indians, or non-Indians, are civil in nature rather than criminal.
Nothing in this Chapter 5–1 shall be construed to have waived the sovereign immunity of the Tribes, any tribal entity, department or program, or any tribal official or employee, except as specifically and explicitly described herein.
If a court of competent jurisdiction finds any provision of this Chapter 5–1 to be invalid or illegal under applicable Federal or Tribal law, such provision shall be severed from this Chapter 5–1 and the remainder of this Chapter 5–1 shall remain in full force and effect.
The Tribes will comply with Oregon liquor laws to the extent required by 18 U.S.C. 1161.
(a) This Chapter 5–1 shall be effective upon publication in the
(b) Tribal Council may adopt amendments to this Chapter 5–1 and those amendments shall be effective upon publication in the
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of
The Front Range RAC has scheduled a meeting June 11, 2015, from 9 a.m. to 4 p.m., with a public comment period regarding matters on the agenda at 9:30 a.m. A specific agenda for each meeting will be available prior to the meetings at
The meeting will be held at the BLM Cañon City Field Office, 3028 E. Main St., Cañon City, CO 81212.
Kyle Sullivan, Public Affairs Specialist, Front Range District Office, 3028 E. Main St., Cañon City, CO 81212. Phone: (719) 269–8553. Email:
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in the BLM Front Range District, which includes the Royal Gorge Field Office (RGFO) and the San Luis Valley Field Office (SLVFO), Colorado. Planned topics of discussion include: introductions of new members, an update from field managers and updates on the Guffey Gorge Management Plan and the Royal Gorge Field Office Resource Management Plan revision status. The public is encouraged to make oral comments to the Council at 9:30 a.m. or submit written comments for the Council's consideration. Summary minutes for the RAC meetings will be maintained in the Royal Gorge Field Office and will be available for public inspection and reproduction during regular business hours within thirty (30) days following the meeting. Previous meeting minutes and agendas are available at
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of intent to prepare an Environmental Impact Statement and notice of public scoping meetings.
Consistent with the regulations implementing the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
Section 18 of the OCS Lands Act (43 U.S.C. 1344) requires the development of an OCS oil and gas leasing program every five years, setting forth a five-year schedule of lease sales designed to best meet the Nation's energy needs. The lease sales proposed in the GOM in the 2017–2022 Draft Proposed Program are region-wide sales comprised of the Western, Central, and a small portion of the Eastern Planning Areas in the GOM not subject to Congressional moratorium. These planning areas are located offshore the States of Texas, Louisiana, Mississippi, Alabama, and Florida. Should the 2017–2022 OCS Oil and Gas Leasing Program include GOM-wide sales, any individual lease sale could still be scaled back during the pre-lease sale process to offer a smaller area should circumstances warrant. For example, an individual lease sale could offer an area that conforms more closely to the separate planning area model used in the 2012–2017 OCS Oil and Gas Leasing Program.
Regulations implementing NEPA encourage agencies to analyze similar or related proposals in one EIS (40 CFR 1508.25). Since each lease sale and ensuing OCS activities are similar each year in each sale area, BOEM is preparing a single 2017–2022 Gulf of Mexico Multisale EIS for the lease sales proposed to be held in the GOM during the program. The 2017–2022 Gulf of Mexico Multisale EIS will eliminate the repetition of annual draft and final EISs for each proposed lease sale. The Multisale EIS approach allows for subsequent NEPA analysis to focus on changes in the proposed sales and on new issues and information. The resource estimates and scenario information for the 2017–2022 Multisale EIS will include a range that encompasses the resources and activities estimated for any of the proposed lease sales. At the completion of this Multisale EIS process, a decision will be made for the first lease sale in the GOM. Thereafter, BOEM will conduct a NEPA review for each of the remaining proposed lease sales in the 2017–2022 OCS Oil and Gas Leasing Program.
The 2017–2022 Gulf of Mexico Multisale EIS analysis will focus on the potential environmental effects from oil and natural gas leasing, exploration, development, and production on all available acreage in the GOM, including the Western and Central Planning Areas and the portion of the Eastern Planning Area not subject to Congressional moratorium. In addition to the no action alternative (
Pursuant to OCSLA, BOEM will separately publish a Call for Information and Nominations (Call) to request and gather information to determine the Area Identification (ID) for each sale. The Call will invite potential bidders to nominate areas of interest within the program area(s) included in the 2017–2022 OCS Oil and Gas Leasing Program. The Call is also an opportunity for the public to provide information on environmental, socioeconomic, and other considerations relevant to determining the Area ID. Using information provided in response to the Call and from scoping comments
BOEM typically prepares technical reports that allow for detailed technical information to be incorporated by reference into EISs (40 CFR 1502.21). BOEM proposes to develop technical reports for this purpose, which will be publicly available and may replace and update appendices used in previous lease sale EISs (
BOEM is also soliciting comments to identify significant environmental issues deserving study, but also to deemphasize insignificant issues, thus streamlining the analyses and narrowing the scope of the EIS process accordingly (40 CFR 1501.7). BOEM has reviewed the environmental and socioeconomic resources analyzed in the 2012–2017 Western Planning Area/Central Planning Area Multisale EIS, 2014–2016 Eastern Planning Area Multisale EIS, and the resulting Supplemental EISs and is therefore proposing the following list of resources to be analyzed in the 2017–2022 Gulf of Mexico Multisale EIS:
Pursuant to the regulations implementing the procedural provisions of NEPA (42 U.S.C. 1501.7), BOEM will hold public scoping meetings in Texas, Louisiana, Mississippi, Alabama, and Florida. BOEM's scoping meetings will be held at the following places and times:
•
•
•
•
•
BOEM, as the lead agency, will not provide financial assistance to cooperating agencies. Even if an organization is not a cooperating agency, opportunities will exist to provide information and comments to BOEM during the normal public input stages of the NEPA process.
1. In written form enclosed in an envelope labeled “Comments on the 2017–2022 GOM Multisale EIS” and mailed (or hand carried) to Mr. Gary D. Goeke, Chief, Environmental Assessment Section, Office of Environment (GM 623E), BOEM, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123–2394;
2. Through the regulations.gov web portal: Navigate to
3. BOEM email address:
It is BOEM's practice to make comments, including the names and addresses of respondents, available for public review. BOEM does not consider anonymous comments. Please include your name and address as part of your submittal. Individual respondents may request that BOEM withhold their names and/or addresses from the public record, but BOEM cannot guarantee that it will be able to do so. If you wish your name and/or address to be withheld, you must state your preference prominently at the beginning of your comment. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety.
For information on the 2017–2022 Gulf of Mexico Multisale EIS, the submission of comments, or BOEM's policies associated with this notice, please contact Mr. Gary D. Goeke, Chief, Environmental Assessment Section, Office of Environment (GM 623E), BOEM, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123–2394, telephone 504–736–3233.
This NOI is published pursuant to the regulations (40 CFR 1501.7) implementing the provisions of NEPA.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of renewal of the MACOSH charter.
In accordance with the provisions of the Federal Advisory Committee Act (FACA), and after consultation with the General Services Administration, the Secretary of Labor is renewing the charter for the Maritime Advisory Committee for Occupational Safety and Health. The Committee will better enable OSHA to perform its duties under the Occupational Safety and Health Act (the OSH Act) of 1970. The Committee is diverse and balanced, both in terms of segments of the maritime industry represented, (
Amy Wangdahl, Director, Office of Maritime and Agriculture, Directorate of Standards and Guidance, U.S. Department of Labor, Occupational Safety and Health Administration, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–2066; email:
The Committee will advise OSHA on matters relevant to the safety and health of employees in the maritime industry. This includes advice on maritime issues that will result in more effective enforcement, training, and outreach programs, and streamlined regulatory efforts. The maritime industry includes shipyard employment, longshoring, marine terminal, and other related industries,
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice pursuant to Sections 6(b)(1), and 7(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)(1), 656(b)), the Federal Advisory Committee Act (5 U.S.C. App. 2), Section 41 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941), Secretary of Labor's Order 1–2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR part 1912.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirement contained in the Standard on Reports of Injuries to Employees Operating Mechanical Power Presses (29 CFR 1910.217(g)).
Comments must be submitted (postmarked, sent, or received) by June 29, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
In the event that a worker is injured while operating a mechanical power press, 29 CFR 1910.217(g) requires the employer to provide information to OSHA regarding the incident within 30 days of the injury. This information includes the employer's and worker's name(s), workplace address and location; injury sustained; task being performed when the injury occurred; number of operators required for the operation and the number of operators provided with controls and safeguards; cause of the incident; type of clutch, safeguard(s), and feeding method(s) used; and means used to actuate the press stroke. OSHA's Directorate of Standards and Guidance, or the State agency administering a plan approved by the Assistant Secretary of Labor for Occupational Safety and Health, collects the information. These reports are a source of up-to-date information on power press machines. Specifically, this information identifies the equipment used and conditions associated with these injuries.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirement contained in the Standard on Reports of Injuries to Employees Operating Mechanical Power Presses (29 CFR 1910.217(g)). OSHA is proposing to decrease the existing burden hour estimate for the collection of information requirement specified in the standard from 453 hours to 400 hours, for a total decrease of 53 hours. This adjustment is a result of a decline in the number of reports of such injuries received by OSHA annually.
The Agency will summarize the comments submitted in response to this notice and will include this summary in the request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
Information on using the
David Michaels, Ph.D., MPD, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirements contained in the Temporary Labor Camps Standard (29 CFR 1910.142).
Comments must be submitted (postmarked, sent, or received) by June 29, 2015.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
OSHA is requesting approval from the Office of Management and Budget (OMB) for certain information collection requirements contained in the Temporary Labor Camps Standard (29 CFR 1910.142). The main purpose of these provisions is to eliminate the incidence of communicable disease among temporary labor camp residents. The Standard requires camp superintendents to report immediately to the local health officer the name and address of any individual in the camp known to have, or suspected of having, a communicable disease (29 CFR 1910.142)(l)(1). Whenever there is a case of suspected food poisoning or an unusual prevalence of any illness in which fever, diarrhea, sore throat, vomiting or jaundice is a prominent symptom, the standard requires the camp superintendent to report that immediately to the health authority (29 CFR 1910.142)(l)(2). In addition, the Standard requires that where the toilet rooms are shared, separate toilet rooms must be provided for each sex. These rooms must be marked “for men” and “for women” by signs printed in English and in the native language of the persons occupying the camp, or marked with easily understood pictures or symbols (29 CFR 1910.142(d)(4)).
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements contained in the Temporary Labor Camps Standard (29 CFR 1910.142). OSHA is proposing to increase its existing burden hour estimate from 54 hours to 155 hours, for a total increase of 101 hours. Based on new data from the National Agricultural Statistics Service, the number of migrant workers has increased from 109,760 to 270,000 workers. Additionally, based upon this new data, the number of “incidents of notifiable diseases” has increased from 673 cases to 1,933 cases.
The Agency will summarize any comments submitted in response to this notice and will include this summary in its request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
Information on using the
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Rehabilitation Maintenance Certificate (OWCP–17). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before June 29, 2015.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S–3201, Washington, DC 20210, telephone/fax (202) 354–9647, Email
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological 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 Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Institute of Museum and Library Services (IMLS), NFAH.
Notice of meeting.
The National Museum and Library Services Board, which advises the Director of the Institute of Museum and Library Services on general policies with respect to the duties, powers, and authority of the Institute relating to museum, library and information services, will meet on May 19, 2015.
Tuesday, May 19, 2015, from 9:00 a.m. to 12:00 p.m. EST.
The meeting will be held at the Institute of Museum and Library Services, 1800 M Street NW., Suite 900, Washington, DC, 20036. Telephone: (202) 653–4798.
This meeting will be open to the public.
Thirty-First Meeting of the National Museum and Library Service Board Meeting:
Katherine Maas, Program Specialist, Institute of Museum and Library Services, 1800 M Street NW., 9th Floor, Washington, DC 20036. Telephone: (202) 653–4676. Please provide advance notice of any special needs or accommodations.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail & First-Class Package Service Contract 4 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Notice, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2015–48 and CP2015–60 to consider the Request pertaining to the proposed Priority Mail & First-Class Package Service Contract 4 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent
The Commission appoints Lyudmila Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015–48 and CP2015–60 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than April 30, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an amendment to Priority Mail Express & Priority Mail Contract 11. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
On April 22, 2015, the Postal Service filed notice that it has agreed to an Amendment to the existing Priority Mail Express & Priority Mail Contract 11 negotiated service agreement approved in this docket.
The Postal Service also filed the unredacted Amendment. The Postal Service incorporates by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal.
The Amendment changes the terms of Priority Mail Express & Priority Mail Contract 11 as contemplated by the contract's terms.
The Postal Service intends for the Amendment to become effective one business day after the date that the Commission completes its review of the Notice.
The Commission invites comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than April 30, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Cassie D'Souza to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2013–1 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Cassie D'Souza to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than April 30, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an amendment to Priority Mail Contract 64 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
On April 22, 2015, the Postal Service filed notice that it has agreed to an Amendment to the existing Priority Mail Contract 64 negotiated service agreement approved in this docket.
The Postal Service also filed the unredacted Amendment under seal. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal. Notice at 1.
The Amendment revises the prices to be paid by the contract partner but
The Postal Service intends for the Amendment to become effective one business day after the date that the Commission completes its review of the Notice. Notice at 1. The Postal Service asserts that the Amendment will not impair the ability of the contract to comply with 39 U.S.C. 3633.
The Commission invites comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than April 30, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2013–82 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints James F. Callow to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than April 30, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 22, 2015, it filed with the Postal Regulatory Commission a
Privacy and Civil Liberties Oversight Board.
Notice of Public Meeting.
The Privacy and Civil Liberties Oversight Board will hold a public meeting to examine the historical background, constitutional implications, and oversight of counterterrorism activities conducted under the Executive Order on United States Intelligence Activities (Executive Order 12333). The public meeting will inform the Privacy and Civil Liberties Oversight Board's oversight of and advice pertinent to such activities. Visit
The public meeting will be held on Wednesday, May 13, 2015 from 10:15 a.m. until 4:45 p.m. Eastern Standard Time (EST).
The National Constitution Center, Kirby Auditorium, 525 Arch Street, Philadelphia, Pennsylvania 19106.
Sharon Bradford Franklin, Executive Director, 202–331–1986.
The public meeting is free and open to the public. Pre-registration is not required. Individuals who plan to attend and require special assistance should contact Sharon Bradford Franklin, Executive Director, 202–331–1986, at least seventy-two (72) hours prior to the meeting date.
In notice document 2015–08941, appearing on pages 21778–21782 in the Issue of Monday, April 20, 2015, make the following correction:
On page 21781, in the third column, on the last line, “May 8, 2015.” should read “May 11, 2015.”
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under
Applicants have received a temporary order (the “Temporary Order”) exempting them from section 9(a) of the Act, with respect to a guilty plea entered April 23, 2015, by DB Group Services (UK) Ltd. (the “Settling Firm”) in the U.S. District Court for the District of Connecticut (the “District Court”) in connection with a plea agreement between the Settling Firm and the U.S. Department of Justice (“DOJ”), until the Commission takes final action on an application for a permanent order. Applicants have also requested a permanent order (the “Permanent Order,” and with the Temporary Order, the “Orders”).
Deutsche Investment Management Americas, Inc. (“DIMA”), Deutsche Asset & Wealth Management International GmbH (“DeAWMI”), Deutsche Investments Australia Limited (“DIAL”), RREEF America L.L.C. (“RREEF”), Deutsche Alternative Asset Management (Global) Limited (“DAAM Global”), DBX Advisors LLC (“DBX Advisors”), DBX Strategic Advisors LLC (“DBX Strategic Advisors”), DeAWM Distributors, Inc. (“DDI”), Harvest Global Investments Limited (“Harvest”) (each, a “Fund Servicing Applicant”); and the Settling Firm (with the Fund Servicing Applicants, the “Applicants”), and Deutsche Bank AG (“DB AG”).
The application was filed on April 23, 2015.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 18, 2015, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090; Applicants: DB AG, Taunusanlage 12, 60325 Frankfurt am Main, Germany; DIMA, DBX Advisors, and DBX Strategic Advisors, 345 Park Avenue, New York, NY 10154; DeAWMI, Mainzer Landstrasse 178–190, Frankfurt am Main, 60327, Germany; DIAL, Deutsche Bank Place, Level 16, CNR Hunter and Phillip Streets, Sydney, NSW 2000, Australia; RREEF and DDI, 222 South Riverside Plaza, Chicago, IL 60606; DAAM Global, Winchester House, 1 Great Winchester Street, London, United Kingdom EC2N 2DB; Harvest, 31/F One Exchange Square, 8 Connaught Place, Central Hong Kong, Hong Kong; and the Settling Firm, 23 Great Winchester Street, London, EC2P 2AX, United Kingdom.
David J. Marcinkus, Senior Counsel, at 202–551–6882 or David P. Bartels, Branch Chief, at 202–551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a temporary order and summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. DB AG, a stock corporation under the laws of Germany, is a financial services firm. Each of the Applicants, except Harvest, is either a direct or indirect wholly-owned subsidiary of DB AG. DIMA, a corporation organized under the laws of Delaware, is an investment adviser registered under the Investment Advisers Act of 1940 (the “Advisers Act”). DeAWMI, a corporation organized under the laws of Germany, is an investment adviser registered under the Advisers Act. DIAL, a corporation organized under the laws of Australia, is an investment adviser registered under the Advisers Act. RREEF, a Delaware limited liability company, is an investment adviser registered under the Advisers Act. DAAM Global, a UK limited company, is an investment adviser registered under the Advisers Act. DBX Advisors, a Delaware limited liability company, is an investment adviser registered under the Advisers Act. DBX Strategic Advisors, a Delaware limited liability company, is an investment adviser registered under the Advisers Act. DDI, a corporation organized under the laws of Delaware, is a broker-dealer registered under the Securities Exchange Act of 1934. Harvest, a Hong Kong limited company by shares, is the wholly owned subsidiary of a joint venture in which DB AG has an indirect minority interest.
2. The Settling Firm, a UK limited company, is an indirect wholly owned subsidiary of DB AG. The Settling Firm employs London-based employees across DB AG's businesses. Applicants state that the Settling Firm is a service company that does not serve as an investment adviser, principal underwriter, or depositor for any Fund (defined below). Applicants represent that the Settling Firm does not engage, has not engaged, and will not engage in Fund Servicing Activities (defined below).
3. Each of the Fund Servicing Applicants serves either as investment adviser (as defined in section 2(a)(20) of the Act) to investment companies registered under the Act or series of such companies (“Funds”) or as principal underwriter (as defined in section 2(a)(29) of the Act) to open-end management investment companies registered under the Act (“Open-End Funds”). While the Settling Firm does not serve, and no existing company of which the Settling Firm is an “affiliated person” within the meaning of section 2(a)(3) of the Act (“Affiliated Person”), other than the Fund Servicing Applicants, currently serves as an investment adviser or depositor of any Fund or employees' securities company (“ESC”) or investment company that has elected to be treated as a business development company under the Act, or principal underwriter for any Open-End Fund, unit investment trust registered under the Act, or face-amount certificate company registered under the Act (such activities, collectively, (“Fund Servicing Activities”), Applicants request that any relief granted also apply to any existing company of which the Settling Firm is an Affiliated Person and to any other company of which the Settling Firm may become an Affiliated Person in the future (together with the Fund Servicing Applicants, the “Covered Persons”).
4. On April 23, 2015, the DOJ filed a one-count criminal information (the “Information”) in the District Court charging the Settling Firm with one count of wire fraud, in violation of Title 18, United States Code, Section 1343.
5. Pursuant to a plea agreement (the “Plea Agreement”), the Settling Firm entered a plea of guilty in the District Court. In the Plea Agreement, the Settling Firm agreed to, among other things, a monetary fine and to full cooperation with law enforcement. On April 23, 2015, the District Court entered a judgment against the Settling Firm (the “Judgment”).
6. In addition to the Plea Agreement, DOJ also filed a two-count criminal information (the “DB AG Information”) in the District Court charging DB AG with one count of wire fraud and one count of price-fixing. The DB AG Information charges that, between 2003 and 2010, DB AG engaged in a scheme to defraud counterparties to interest rate derivatives trades executed on its behalf by manipulating certain benchmark interest rates to which the profitability of those trades was tied. In connection with the DB AG Information, DB AG entered into a deferred prosecution agreement with DOJ on April 23, 2015 (the “Deferred Prosecution Agreement”). In the Deferred Prosecution Agreement, DB AG agrees, among other things, to (i) full cooperation with law enforcement, (ii) installation of an independent compliance monitor, (iii) strengthening its internal controls as recommended by the monitor and as required by certain other U.S. and non-U.S. regulatory agencies that have addressed the relevant misconduct, and (iv) payment of a monetary fine.
7. In connection with the same misconduct described above, on April 23, 2015 the U.S. Commodity Futures Trading Commission entered an order (the “CFTC Order”) on consent, finding that DB AG made false reports regarding, attempted to manipulate, and in some cases successfully manipulated, certain benchmark interest rates. The CFTC Order requires DB AG to cease and desist from certain violations of the Commodity Exchange Act, to pay a monetary fine, and to agree to certain remedial undertakings.
8. In connection with the same misconduct described above, on April 23, 2015, the U.K. Financial Conduct Authority entered a final notice (the “FCA Final Notice”) finding that DB AG violated Principles 3, 5 and 11 of the FCA's Principles for Business and imposing a monetary fine.
9. On April 23, 2015, the New York State Department of Financial Services entered a consent order against DB AG (the “DFS Order”) relating to the same misconduct described above and imposing a civil monetary fine and certain undertakings, including engaging an independent compliance monitor.
10. In response to the misconduct described above, Applicants represent that they have engaged in various remedial measures. Applicants state that this has included implementing a “three lines of defense” model for benchmark submissions. According to Applicants, this restructuring involved segregating benchmark submission activities from other bank activities to reduce conflicts, creating an independent control group that monitors benchmark submissions and engaging in regular internal and external audits. Applicants state that DB AG has also formed a governance body to oversee these lines of defense and resolve material issues. Applicants further state that they have adopted specific standards, guidelines, policies and training for benchmark submissions, which did not exist during the period of misconduct. Applicants assert that they have been careful to ensure that the new control framework meets the requirements of regulatory undertakings required in previously announced settlements concerning similar misconduct.
1. Section 9(a)(1) of the Act provides, in pertinent part, that a person may not serve or act as an investment adviser or depositor of any registered investment company or a principal underwriter for any registered open-end investment company or registered unit investment trust, if such person within ten years has been convicted of any felony or misdemeanor arising out of such person's conduct, as, among other things, an investment adviser, a broker or dealer, or a bank. Section 2(a)(10) of the Act defines the term “convicted” to include a plea of guilty. Section 9(a)(3) of the Act extends the prohibitions of section 9(a)(1) to a company any affiliated person of which has been disqualified under the provisions of section 9(a)(1). Section 2(a)(3) of the Act defines “affiliated person” to include, among others, any person directly or indirectly controlling, controlled by, or under common control with, the other person. Applicants state that the Settling Firm is an Affiliated Person of each of the other Applicants within the meaning of section 2(a)(3). Applicants state that the guilty plea would, upon entry of the Judgment, result in a disqualification of each Applicant for ten years under section 9(a) of the Act because the Settling Firm would become the subject of a conviction described in section 9(a)(1).
2. Section 9(c) of the Act provides that the Commission shall grant an application for exemption from the disqualification provisions of section 9(a) if it is established that these provisions, as applied to Applicants, are unduly or disproportionately severe or that the Applicants' conduct has been such as not to make it against the public interest or the protection of investors to grant the exemption. Applicants have filed an application pursuant to section 9(c) seeking temporary and permanent orders exempting the Applicants and other Covered Persons from the disqualification provisions of section 9(a) of the Act. The Fund Servicing Applicants and other Covered Persons (but not the Settling Firm) may, if the relief is granted, in the future act in any of the capacities contemplated by section 9(a) of the Act subject to the conditions of the Temporary Order and the Permanent Order.
3. Applicants believe they meet the standard for exemption specified in section 9(c) of the Act. Applicants state that the prohibitions of section 9(a) as applied to them would be unduly and disproportionately severe and that the conduct of the Fund Servicing Applicants has been such as not to make it against the public interest or the protection of investors to grant the exemption from section 9(a).
4. Applicants assert that the conduct underlying the Plea Agreement (the “Conduct”) did not involve any of Applicants acting as an investment adviser or depositor of any Fund, ESC or business development company or principal underwriter for any Open-End Fund, unit investment trust registered under the Act, or face amount certificate company registered under the Act. Applicants state that the Conduct similarly did not involve any Fund, ESC or business development company with respect to which Applicants engaged in Fund Servicing Activities.
5. Applicants further represent that (a) none of the current or former directors, officers or employees of the Fund Servicing Applicants had any knowledge of, or had any involvement in, the Conduct; (b) except as discussed
6. Applicants represent that they have taken all possible steps, consistent with German and other relevant foreign employment law, to terminate the employment of all individuals responsible for the Conduct. However, as a consequence of proceedings under German labor law, four individuals who were identified as being responsible for the Conduct and were terminated are currently employed in non-risk-taking positions. Applicants state that DB AG has entered into court-mediated settlements with these individuals. Pursuant to the settlements, the two more senior employees will remain on paid leave through the end of 2015 and then will have no association with DB AG. Applicants represent that, although the two more junior employees have returned to DB AG, these employees (a) will not serve in risk-taking roles or the roles in which they served during the Conduct; (b) will not be employed by the Covered Persons relying on the relief or otherwise involved in the Fund Servicing Activities; and (c) will not be in a compliance monitoring role or have any influence over policy-making concerning the Fund Servicing Activities. DB AG states that it will take action to terminate any additional employee who is determined to have been responsible for the Conduct.
7. Except as discussed above, Applicants have agreed that neither they nor any of the other Covered Persons will employ any of the current or former employees of the Settling Firm or any Covered Person who previously have been or who subsequently may be identified by the Settling Firm, DB AG or any U.S. or non-U.S. regulatory or enforcement agencies as having been responsible for the Conduct in any capacity without first making a further application to the Commission pursuant to section 9(c). Applicants also have agreed that each Applicant (and any Covered Person that acts in any capacity described in section 9(a) of the Act) will adopt and implement policies and procedures reasonably designed to ensure compliance with the terms and conditions of the order granted under section 9(c). In addition, the Settling Firm has agreed to comply in all material respects with the material terms and conditions of the Plea Agreement, and DB AG has agreed to comply in all material respects with the material terms and conditions of the Deferred Prosecution Agreement, CFTC Order, FCA Final Notice and DFS Order.
8. Applicants state that (a) inability of the Fund Servicing Applicants to continue providing investment advisory services to Funds would result in the Funds and their shareholders facing potential hardship and (b) the inability of DDI to continue to serve as principal underwriters to the Open-End Funds would similarly result in potential hardship to the Open-End Funds and their shareholders. Applicants represent that they will distribute to the board of trustees/directors of the Funds (the “Boards”) written materials describing the circumstances that led to the Plea Agreement, any impact on the Funds, and the application. The written materials will include an offer to discuss the materials at an in-person meeting with each Board for which Applicants provide Fund Servicing Activities, including the directors who are not “interested persons” of the Fund as defined in section 2(a)(19) of the Act, and their independent legal counsel as defined in rule 0–1(a)(6) under the Act. Applicants state that they will provide the Boards with the information concerning the Plea Agreement and the application that is necessary for those Funds to fulfill their disclosure and other obligations under the federal securities laws and will provide them a copy of the Judgment as entered by the District Court.
9. Applicants state that if the Fund Servicing Applicants were barred under section 9(a) of the Act from engaging in Fund Servicing Activities and were unable to obtain the requested exemption, the effect on their businesses and employees would be severe because they have committed substantial resources to establishing an expertise in the provision of Fund Servicing Activities. Applicants further state that prohibiting them from providing Fund Servicing Activities would not only adversely affect their business, but would also adversely affect their employees who are involved in those activities.
10. Applicants argue that section 9(a) should not operate to bar them from serving the Funds and their shareholders in the absence of improper activities relating to their Fund Servicing Activities. Applicants state that the section 9(a) disqualification would disrupt the operations of the Funds as they sought to engage new advisers and distributors. Applicants assert that these effects would be unduly severe and disproportionately harsh given the Fund Servicing Applicants' lack of involvement in the Conduct. Moreover, Applicants state that the Settling Firm and DB AG have taken remedial actions to address the Conduct, as outlined in the application. Applicants also assert that the Conduct did not constitute conduct that would make it against the public interest or protection of investors to issue the Orders.
11. Applicants state that certain of the Applicants and their affiliates have received exemptive orders under section 9(c), as described in greater detail in the application.
Applicants agree that any order granted by the Commission pursuant to the application will be subject to the following conditions:
1. Any temporary exemption granted pursuant to the application shall be without prejudice to, and shall not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from Section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemptions granted under the Act in connection with the application.
2. Except as set out in Section IV.E of the application, neither the Applicants nor any of the other Covered Persons will employ any of the current or former employees of the Settling Firm or any Covered Person who previously has been or who subsequently may be identified by the Settling Firm, DB AG, or any U.S. or non-U.S. regulatory or enforcement agency as having been responsible for the Conduct, without first making a further application to the Commission pursuant to section 9(c).
3. Each Applicant and Covered Person will adopt and implement policies and procedures reasonably designed to ensure that it will comply with the terms and conditions of the Orders
4. The Settling Firm will comply in all material respects with the material terms and conditions of the Plea Agreement, and DB AG will comply in all material respects with the material terms and undertakings of the Deferred Prosecution Agreement, the CFTC Order, the FCA Final Notice, and the DFS Order.
5. Applicants will provide written notification to the Chief Counsel of the Commission's Division of Investment Management with a copy to the Chief Counsel of the Commission's Division of Enforcement of a material violation of the terms and conditions of the Orders within 30 days of discovery of the material violation.
The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption.
Accordingly,
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
The Commission: Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: One Corporate Center, Rye, NY 10580–1422.
Jean E. Minarick, Senior Counsel, or Daniele Marchesani, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust will be registered as an open-end management investment company under the Act and is a statutory trust organized under the laws of Delaware. Applicants seek relief with respect to seven Funds (as defined below, and those Funds, the “Initial Funds”). The portfolio positions of each Fund will consist of securities and other assets selected and managed by its Adviser or Subadviser (as defined below) to pursue the Fund's investment objective.
2. The Adviser, a New York limited liability company, will be the investment adviser to the Initial Funds. An Adviser (as defined below) will serve as investment adviser to each Fund. The Adviser is, and any other Adviser will be, registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser may retain one or more subadvisers (each a “Subadviser”) to manage the portfolios of the Funds. Any Subadviser will be registered, or not subject to registration, under the Advisers Act.
3. The Distributor is a Delaware limited liability company and a broker-dealer registered under the Securities Exchange Act of 1934 and will act as the principal underwriter of Shares of the Funds. Applicants request that the requested relief apply to any distributor of Shares, whether affiliated or unaffiliated with the Adviser (included in the term “Distributor”). Any Distributor will comply with the terms and conditions of the Order.
4. Applicants seek the requested Order under section 6(c) of the Act for
5. Applicants request that the Order apply to the Initial Funds and to any other existing or future open-end management investment company or series thereof that: (a) is advised by the Adviser or any entity controlling, controlled by, or under common control with the Adviser (any such entity included in the term “Adviser”); and (b) operates as an exchange-traded managed fund as described in the Reference Order; and (c) complies with the terms and conditions of the Order and of the Reference Order, which is incorporated by reference herein (each such company or series and Initial Fund, a “Fund”).
6. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general purposes of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
7. Applicants submit that for the reasons stated in the Reference Order: (1) With respect to the relief requested pursuant to section 6(c) of the Act, the relief is appropriate, in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act; (2) with respect to the relief request pursuant to section 17(b) of the Act, the proposed transactions are reasonable and fair and do not involve overreaching on the part of any person concerned, are consistent with the policies of each registered investment company concerned and consistent with the general purposes of the Act; and (3) with respect to the relief requested pursuant to section 12(d)(1)(J) of the Act, the relief is consistent with the public interest and the protection of investors.
By the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
Nasdaq proposes to list and trade under Nasdaq Rule 5745 (Exchange-Traded Managed Fund Shares) the common shares (“Shares”) of the below-listed exchange-traded managed funds (each, a “Fund,” and collectively, the “Funds”):
Each Fund is a series of either Eaton Vance ETMF Trust or Eaton Vance ETMF Trust II (each, a “Trust,” and together, the “Trusts”). The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to list and trade the Shares of each Fund under Nasdaq Rule 5745, which governs the listing and trading of exchange-traded managed fund shares, as defined in Nasdaq Rule 5745(c)(1), on the Exchange.
Eaton Vance Management will be the investment adviser (“Adviser”) to the Funds. Foreside Fund Services, LLC will be the principal underwriter and distributor of each Fund's Shares. State Street Bank and Trust Company will act as the administrator, accounting agent, custodian and transfer agent to the Funds. Interactive Data Corporation will be the intraday indicative value (“IIV”) calculator to the Funds.
Each Fund will be actively managed and will pursue the various principal investment strategies described below.
The investment objective of this Fund is to provide current income and long-term growth of capital. The Fund normally will invest between 50% and 75% of its net assets in equity securities and between 25% and 50% of its net assets in fixed-income securities.
The investment objective of this Fund is to provide current income and long-term growth of capital. The Fund normally will invest primarily in common stocks and, in the adviser's discretion, preferred stocks of U.S. and foreign companies that pay dividends.
The investment objective of this Fund is total return. The Fund will invest in a broadly diversified selection of equity securities, seeking companies with above-average growth and financial strength. Under normal market conditions, the Fund will invest primarily in large-cap companies.
The investment objective of this Fund is total return. Under normal market conditions, the Fund will invest primarily in value stocks of large-cap companies.
The investment objective of this Fund is total return. In seeking its investment objective, the Fund will have flexibility to allocate its assets in markets around the world and among various asset classes, including equity, fixed-income, commodity, currency and cash investments.
The investment objective of this Fund is total return. Under normal market conditions, the Fund will invest primarily in equity securities and derivative instruments that provide exposure to equity securities.
The investment objective of this Fund is long-term capital appreciation. The Fund normally will invest primarily in equity securities of small-cap companies.
The investment objective of this Fund is to achieve long-term capital appreciation by investing in a diversified portfolio of equity securities. The Fund normally will invest primarily in a diversified portfolio of common stocks.
The investment objective of this Fund is long-term capital appreciation. The Fund normally will invest primarily in equity securities of companies located in emerging market countries.
The investment objective of this Fund is long-term capital appreciation. The Fund normally will invest primarily in companies domiciled in developed markets outside of the United States, including securities trading in the form of depositary receipts.
The investment objective of this Fund is total return. The Fund normally will invest primarily in bonds and other fixed and floating-rate income instruments.
The investment objective of this Fund is to provide current income exempt from regular federal income tax. The Fund normally will invest primarily in municipal obligations with remaining maturities of between 5 and 15 years, the interest on which is exempt from regular federal income tax.
The investment objective of this Fund is to provide a high level of current income. The Fund normally will invest primarily in a combination of income-producing floating rate loans and other floating rate debt securities and high-yield corporate bonds.
The investment objective of this Fund is total return. The Fund will seek its investment objective by investing in securities, derivatives and other
The investment objective of this Fund is to provide a high current return. The Fund normally will invest primarily in securities issued, backed or otherwise guaranteed by the U.S. Government, its agencies or instrumentalities.
The primary investment objective of this Fund is to provide a high level of current income. The Fund will seek growth of capital as a secondary investment objective. The Fund normally will invest primarily in fixed-income securities, including preferred stocks, senior and subordinated floating rate loans, and convertible securities.
The investment objective of this Fund is to provide high current income exempt from regular federal income tax. The Fund normally will invest primarily in municipal obligations, the interest on which is exempt from regular federal income tax.
The investment objective of this Fund is to provide current income exempt from regular federal income tax. The Fund normally will invest primarily in municipal obligations, the interest on which is exempt from regular federal income tax.
Shares will be issued and redeemed on a daily basis at the Fund's next-determined net asset value (“NAV”)
The creation and redemption process for Funds may be effected “in kind,” in cash, or in a combination of securities and cash. Creation “in kind” means that an Authorized Participant—usually a brokerage house or large institutional investor—purchases the Creation Unit with a basket of securities equal in value to the aggregate NAV of the Shares in the Creation Unit. When an Authorized Participant redeems a Creation Unit in kind, it receives a basket of securities equal in value to the aggregate NAV of the Shares in the Creation Unit.
As defined in Nasdaq Rule 5745(c)(3), the Composition File is the specified portfolio of securities and/or cash that a Fund will accept as a deposit in issuing a Creation Unit of Shares, and the specified portfolio of securities and/or cash that a Fund will deliver in a redemption of a Creation Unit of Shares. The Composition File will be disseminated through the NSCC once each business day before the open of trading in Shares on such day and also will be made available to the public each day on a free Web site.
All persons purchasing or redeeming Creation Units are expected to incur a transaction fee to cover the estimated cost to the Fund of processing the transaction, including the costs of clearance and settlement charged to it by NSCC or DTC, and the estimated trading costs (
Because Shares will be listed and traded on the Exchange, Shares will be available for purchase and sale on an intraday basis. Shares will be purchased and sold in the secondary market at prices directly linked to the Fund's next-determined NAV using a new trading protocol called “NAV-Based Trading.”
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Because making markets in Shares will be simple to manage and low risk, competition among market makers seeking to earn reliable, low-risk profits should enable the Shares to routinely trade at tight bid-ask spreads and narrow premiums/discounts to NAV. As noted below, each Fund will maintain a public Web site that will be updated on a daily basis to show current and historical trading spreads and premiums/discounts of Shares trading in the secondary market.
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To avoid potential investor confusion, Nasdaq will work with member firms and providers of market data services to seek to ensure that representations of intraday bids, offers and execution prices of Shares that are made available to the investing public follow the “NAV−$0.01/NAV+$0.01” (or similar) display format. All Shares listed on the Exchange will have a unique identifier associated with their ticker symbols, which would indicate that the Shares are traded using NAV-Based Trading. Nasdaq makes available to member firms and market data services certain proprietary data feeds that are designed to supplement the market information disseminated through the consolidated tape (“Consolidated Tape”). Specifically, the Exchange will use the NASDAQ Basic and NASDAQ Last Sale data feeds to disseminate intraday price and quote data for Shares in real time in the “NAV−$0.01/NAV+$0.01” (or similar) display format. Member firms could use the NASDAQ Basic and NASDAQ Last Sale data feeds to source intraday Share prices for presentation to the investing public in the “NAV–$0.01/NAV+$0.01” (or similar) display format. Alternatively, member firms could source intraday Share prices in proxy price format from the Consolidated Tape and other Nasdaq data feeds (
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Prior to the commencement of market trading in Shares, each Fund will be required to establish and maintain a public Web site through which its current prospectus may be downloaded. The Web site will include additional Fund information updated on a daily basis, including the prior business day's NAV, and the following trading information for such business day expressed as premiums/discounts to NAV: (a) Intraday high, low, average and closing prices of Shares in Exchange trading; (b) the midpoint of the highest bid and lowest offer prices as of the close of Exchange trading, expressed as a premium/discount to NAV (the “Closing Bid/Ask Midpoint”); and (c) the spread between highest bid and lowest offer prices as of the close of Exchange trading (the “Closing Bid/Ask Spread.”). The Web site will also contain charts showing the frequency distribution and range of values of trading prices, Closing Bid/Ask Midpoints and Closing Bid/Ask Spreads over time.
The Composition File will be disseminated through the NSCC before the open of trading in Shares on each business day and also will be made available to the public each day on a free Web site. Consistent with the disclosure requirements that apply to traditional open-end investment companies, a complete list of current Fund portfolio positions will be made available at least once each calendar quarter, with a reporting lag of not more than 60 days. Funds may provide more frequent disclosures of portfolio positions at their discretion.
Reports of Share transactions will be disseminated to the market and delivered to the member firms participating in the trade contemporaneous with execution. Once a Fund's daily NAV has been calculated and disseminated, Nasdaq will price each Share trade entered into during the day at the Fund's NAV plus/minus the trade's executed premium/discount. Using the final trade price, each executed Share trade will then be disseminated to member firms and market data services via an FTP file to be created for exchange-traded managed funds and confirmed to the member firms participating in the trade to supplement the previously provided information to include final pricing.
Information regarding NAV-based trading prices, best bids and offers for Shares, and volume of Shares traded will be continuously available on a real-time basis throughout each trading day on brokers' computer screens and other electronic services.
Shares will conform to the initial and continued listing criteria as set forth under Nasdaq Rule 5745. A minimum of 50,000 Shares and no less than two Creation Units of each Fund will be outstanding at the commencement of trading on the Exchange. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and provided to Nasdaq via the Mutual Fund Quotation Service (“MFQS”) by the fund accounting agent. As soon as the NAV is entered into MFQS, Nasdaq will disseminate the value to market participants and market data vendors via the Mutual Fund Dissemination Service (“MFDS”) so all firms will receive the data element at the same time.
For each series of Shares, an estimated value of an individual Share, defined in Nasdaq Rule 5745(c)(2) as the “Intraday Indicative Value,” will be calculated and disseminated at intervals of not more than 15 minutes throughout the Regular Market Session
The Adviser is not a broker-dealer, although it is affiliated with a broker-dealer. The Adviser has implemented a fire wall with respect to its broker-dealer affiliate regarding access to information concerning the composition and/or changes to each Fund's portfolio. In the event (a) the Adviser registers as a broker-dealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or a sub-adviser to a Fund is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement a fire wall with respect to its relevant personnel and/or such broker-dealer affiliate, if applicable, regarding access to information concerning the composition and/or changes to the relevant Fund's portfolio and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio.
The Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in Shares. Nasdaq will halt trading in Shares under the conditions specified in Nasdaq Rules 4120 and in Nasdaq Rule 5745(d)(2)(C). Additionally, Nasdaq may cease trading Shares if other unusual conditions or circumstances exist which, in the opinion of Nasdaq, make further dealings on Nasdaq detrimental to the maintenance of a fair and orderly market. To manage the risk of a non-regulatory Share trading halt, Nasdaq has in place back-up processes and procedures to ensure orderly trading. Because, in NAV-Based Trading, all trade execution prices are linked to end-of-day NAV, buyers and sellers of Shares should be less exposed to risk of loss due to intraday trading halts than buyers and sellers of conventional exchange-traded funds (“ETFs”) and other exchange-traded securities.
Nasdaq deems Shares to be equity securities, thus rendering trading in Shares to be subject to Nasdaq's existing rules governing the trading of equity securities. Nasdaq will allow trading in
The Exchange represents that trading in Shares will be subject to the existing trading surveillances, administered by both Nasdaq and the Financial Industry Regulatory Authority, Inc. (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. 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.
FINRA, on behalf of the Exchange, will communicate as needed with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”)
In addition, the Exchange also has a general policy prohibiting the distribution of material non-public information by its employees.
Prior to the commencement of trading in a Fund, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and noting that Shares are not individually redeemable); (2) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in Shares to customers; (3) how information regarding the IIV and Composition File is disseminated; (4) the requirement that members deliver a prospectus to investors purchasing Shares prior to or concurrently with the confirmation of a transaction; and (5) information regarding NAV-Based Trading protocols.
As noted above, all orders to buy or sell Shares that are not executed on the day the order is submitted will be automatically cancelled as of the close of trading on such day. The Information Circular will discuss the effect of this characteristic on existing order types. The Information Circular also will identify the specific Nasdaq data feeds from which intraday Share prices in proxy price format may be obtained.
In addition, the Information Circular will advise members, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Funds. Members purchasing Shares from a Fund for resale to investors will deliver a summary prospectus to such investors. The Information Circular will also discuss any exemptive, no-action and interpretive relief granted by the Commission from any rules under the Act.
The Information Circular also will reference that the Funds are subject to various fees and expenses described in the Registration Statements. The Information Circular will also disclose the trading hours of the Shares and the applicable NAV calculation time for the Shares. The Information Circular will disclose that information about the Shares will be publicly available on the Fund's Web site.
Information regarding Fund trading protocols will be disseminated to Nasdaq members in accordance with current processes for newly listed products. Nasdaq intends to provide its members with a detailed explanation of NAV-Based Trading through a Trading Alert issued prior to the commencement of trading in Shares on the Exchange.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares would be listed and traded on the Exchange pursuant to the initial and continued listing criteria in Nasdaq Rule 5745. The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of Shares on Nasdaq and to deter and detect violations of Exchange rules and the applicable federal securities laws. The Adviser is affiliated with a broker-dealer and has implemented a “fire wall” between the investment adviser and the broker-dealer affiliate with respect to access to information concerning the composition and/or changes to the Funds' portfolio holdings. 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, to the extent necessary.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest. The Exchange will obtain a representation from each issuer of Shares that the NAV per Share will be calculated on each business day that the New York Stock Exchange is open for trading and that the NAV will be made available to all market participants at the same time. In addition, a large amount of information would be publicly available regarding the Funds and the Shares, thereby promoting market transparency.
Prior to the commencement of market trading in Shares, the Funds will be required to establish and maintain a public Web site through which its
Transactions in Shares will be reported to the Consolidated Tape at the time of execution in proxy price format and will be disseminated to member firms and market data services through Nasdaq's trading service and market data interfaces, as defined above. Once each Fund's daily NAV has been calculated and the final price of its intraday Share trades has been determined, Nasdaq will deliver a confirmation with final pricing to the transacting parties. At the end of the day, Nasdaq will also post a newly created FTP file with the final transaction data for the trading and market data services. The Exchange expects that information regarding NAV-based trading prices and volumes of Shares traded will be continuously available on a real-time basis throughout each trading day on brokers' computer screens and other electronic services. Because Shares will trade at prices based on the next-determined NAV, investors will be able to buy and sell individual Shares at a known premium or discount to NAV that they can limit by transacting using limit orders at the time of order entry. Trading in Shares will be subject to Nasdaq Rules 5745(d)(2)(B) and (C), which provide for the suspension of trading or trading halts under certain circumstances, including if, in the view of the Exchange, trading in Shares becomes inadvisable.
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 the Funds, which seek to provide investors with access to a broad range of actively managed investment strategies in a structure that offers the cost and tax efficiencies and shareholder protections of ETFs, while removing the requirement for daily portfolio holdings disclosure to ensure a tight relationship between market trading prices and NAV.
For the above reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. In fact, the Exchange believes that the introduction of the Funds would promote competition by making available to investors a broad range of actively managed investment strategies in a structure that offers the cost and tax efficiencies and shareholder protections of ETFs, while removing the requirement for daily portfolio holdings disclosure to ensure a tight relationship between market trading prices and NAV. Moreover, the Exchange believes that the proposed method of Share trading would provide investors with transparency of trading costs, and the ability to control trading costs using limit orders, that is not available for conventionally traded ETFs.
These developments could significantly enhance competition to the benefit of the markets and investors.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
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 Brent J. Fields, 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.
On February 19, 2015, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On June 5, 2014, in a speech entitled “Enhancing Our Market Equity Structure,” Mary Jo White, Chair of the Commission, requested that the equity exchanges conduct a comprehensive review of their order types and how they operate in practice, and as part of this review, consider appropriate rule changes to help clarify the nature of their order types.
The Exchange proposes to reorganize and revise its existing order type and modifier definitions in Rule 7.31. Specifically, proposed Rule 7.31(a) would contain the revised Exchange definitions for Market Orders, Limit Orders, and Inside Limit Orders (collectively “primary order types”).
Proposed Rule 7.31(b) would contain the definitions for the Exchange's Time-in-Force (“TIF”) Modifiers: Day, Good Till Cancelled, Good Till Date, IOC, and Fill-or-Kill.
Proposed Rule 7.31(c) would contain the Exchange's revised definitions for Limit-on-Open Orders, Market-on-Open Orders, Limit-on-Close Orders, and Market-on-Close Orders (collectively “Auction-Only Orders”).
Proposed Rule 7.31(d) would contain the Exchange's revised and reformatted definitions for Reserve Orders, Passive Liquidity Orders, and Mid-Point Passive Liquidity (“MPL”) Orders (collectively “Working Orders”).
Proposed Rule 7.31(e) would contain the Exchange's revised definitions for Adding Liquidity Only (“ALO”) Orders, Intermarket Sweep Orders, Post No Preference (“PNP”) Orders, PNP Blind Orders, Cross Orders, and Tracking Orders (collectively “non-routable orders”).
Proposed Rule 7.31(f) would contain the Exchange's revised definitions for Primary Only Orders, Primary Until 9:45 Orders, and Primary After 3:55 Orders (collectively “specified routing instructions”).
Proposed Rule 7.31(g) would contain the Exchange's definitions for other existing order types and modifiers, including the Pegged Order, Proactive if Locked Modifier, Do Not Reduce Modifier, Do Not Increase Modifier, and Self-Trade Prevention (“STP”) Modifier.
Proposed Rule 7.31(h) would contain the Exchange's revised Q Order definition clarifying that such orders do not route.
The Exchange also proposes to amend and conform Rules 7.35, 7.36, 7.37 and 7.38 to proposed Rule 7.31 as it relates cross references, term usage and capitalization.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission notes that the proposed rule change reflects the Exchange's continued efforts to review and clarify its rules governing order types.
The Commission notes that the proposal reduces the number of order types that will be accepted by the Exchange. The Commission also notes that the proposal provides additional detail regarding certain order type and modifier functionality that remain available on the Exchange. The Commission further notes that the Exchange has restructured and reorganized proposed Rule 7.31 such that order types with similar functionality are grouped together by subsection. The Commission believes that these proposed changes should provide greater specificity, clarity and transparency with respect to the order type and modifier functionality available on the Exchange, as well as the Exchange's methodology for handling certain order types. Accordingly, the Commission believes that the proposal should help to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
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”),
The Exchange proposes to postpone implementation of changes to Rules 4751(h) and 4754(b) relating to the closing process.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange 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 these 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 aspects of such statements.
NASDAQ is proposing to delay implementation of changes to Rules 4751(h) and 4754(b) relating to the closing process, which are effective but not yet implemented. On December 16, 2014, the Exchange filed an immediately effective filing
The Exchange had originally anticipated implementing the changes in mid-February 2015, after the expiration of the 30-day operative delay provided by Rule 19b–4(f)(6)(iii) under the Act.
Based upon the Exchange's final internal pre-implementation testing, however, the Exchange has determined not to proceed with the scheduled implementation. Out of an abundance of caution, the Exchange will instead conduct an additional industry-wide User Acceptance Test to ensure the proper function of the proposed changes. Upon successful completion of that test, the Exchange will determine a new implementation date and provide notice of the new date to the industry.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 Brent J. Fields, 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 proposes to delete outdated rule language contained in (i) Rule 1019, Precedence Accorded To Orders Entrusted To Specialists, and (ii) Options Floor Procedures Advices (“Advices”) A–2, A–13, D–1, D–2, F–3, F–7 and F–21, as explained further below.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange 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 these 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 aspects of such statements.
The purpose of the proposed rule change is to update the Exchange's rules by deleting eight obsolete rules, including Rule 1019 as well as and Advices A–2, A–13, D–1, D–2, F–3, F–7 and F–21. These rules are now obsolete for various reasons explained below.
Historically, Advices replicated the provisions of the Exchange's rule that were most pertinent for the trading floor community to keep handy, in lieu of the large, unwieldy rulebook; the Exchange adopted, for many years, both rules and Advices that contained nearly identical language where the Advice was the subject of a fine schedule under the Exchange's minor rule plan
Several provisions pertaining to Specialists
Phlx Rule 1019, Precedence Accorded to Orders Entrusted To Specialists, governs the precedence given to orders entrusted to the Specialist. Rule 1019 is now obsolete given that the Specialist no longer manually handles orders and therefore orders cannot be “entrusted.” This rule contains several specific obligations related to the Specialist's handling of orders. All of the provisions in Commentaries .01–.05 refer to the Specialist's book, leaving orders with the Specialist or entrusting orders to the Specialist. None of these provisions are operational or can be relied upon because the Specialist's book no longer exists.
Similarly, Advice A–2 governs the types of orders to be accepted into the Specialist's book. Advice A–2 is now obsolete given that the Specialist no longer manually handles orders.
Advice A–13 governs the Auto Execution Engagement/Disengagement responsibility of the Specialist. Specifically, it requires Specialists to engage (meaning, turn on) Auto-X, the automatic execution functionality, within a certain period of time and permits disengagement by the Specialist under certain circumstances. Advice A–13 is now obsolete given that the Specialist no longer manually handles orders and all orders are automatically executed.
Advice D–1 governs the Exchange's handling of errors. Specifically, this Advice governs missed orders and any corresponding remedies and protocols resulting from missed orders. Advice D–1 is now obsolete due to the automated functionality of Phlx XL II, as reflected in Rules 1017, 1080 and 1014. Missed orders cannot occur because orders are not held or guaranteed by Specialists.
Advice D–2 governs instances of non-liability. Advice D–2 is now obsolete because the opening and close of trading are now automated pursuant to Rule 1017; there is no manual participation in the opening for which Specialists or Floor Brokers could be held liable.
Advice F–3 governs manual trading of securities by the Specialist. Specifically, this Advice governs members' requests for sold sale designations, including the initialing of sold sales by Specialists. Sold sales are trades for which trade reporting to the “tape” was delayed. Advice F–3 is now obsolete given that the Specialist no longer manually handles orders.
Advice F–7 governs the size of the Exchange's disseminated bid or offer, including the sum of the size associated with Specialist, Streaming Quote Trader (“SQT”) and Remote Streaming Quote Trader (“RSQT”)
The Exchange currently offers foreign currency options for trading. At one time, there was a special block trading process for foreign currency options, which appeared in both Rule 1016 and Advice F–21. Both governed block transactions in foreign currency options, including the procedure for quoting and executing a block transaction, and the priority of execution among the contra-side participants of the block order. At the time, foreign currency options did not trade electronically. Because of the adoption of a new type of foreign currency option that became available for electronic trading, as explained below, Rule 1016 was made applicable only to physical delivery
In summary, the Exchange proposes to delete Options Floor Procedures Advices A–2, A–13, D–1, D–2, F–3, F–7 and F–21 as well as Rule 1019, in order to prevent the confusion that may result from having obsolete rules in the Exchange's rulebook and in order to ensure that the rulebook accurately reflects member obligations.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposal should result in a more accurate and understandable rule book, particularly for Exchange Specialists. It
The deletion of Advice D–1 regarding to liability for missed orders on the Specialist's book also promotes just and equitable principles of trade by making clear that a Floor Broker can no longer leave an order with the specialist. The deletion of Advice D–2 should promote just and equitable principles of trade by making it clear that openings occur automatically and do not involve Specialists or Floor Brokers. Specialists' functions are principally governed by Rules 1014 and 1020.
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 proposal raises neither intra-market nor inter-market competition issues because it merely deletes obsolete provisions and therefore does not impact how the market operates today.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) [sic] of the Act
Furthermore, Rule 19b–4(f)(6)(iii) requires a self-regulatory organization to give the Commission written notice of its intent to file a proposed rule change under that subsection at least five business days prior to the date of filing, or such shorter time as designated by the Commission. The Exchange has provided such notice.
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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 Brent J. Fields, 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 proposes to amend its rules regarding the submission of financial reports. The text of the proposed rule change is provided below. Proposed new language is in italics; proposed deletions are in brackets.
Each Trading Permit Holder shall submit to the Exchange answers to financial questionnaires, reports of income and expenses and additional financial information in the type, form, manner and time prescribed by the Exchange.
In its filing with the Commission, the Exchange 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 these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections II.A., II.B., and II.C. below, of the most significant aspects of such statements.
The Exchange proposes to amend its rules regarding the submission of financial reports. CBOE Rule 15.5 requires each Trading Permit Holder to submit to the Exchange answers to financial questionnaires, reports of income and expenses, and additional financial information in the type, form, manner, and time prescribed by the Exchange. With respect to FOCUS Reports
• Rule 15.5, Interpretation and Policy .02 requires Trading Permit Holders which are net capital computing to file electronically with the Exchange's Department of Financial and Sales Practice Compliance any required monthly and quarterly FOCUS Reports utilizing the WinJammer
• Rule 15.5, Interpretation and Policy .03 requires Trading Permit Holders who file an annual FOCUS Report and who are not net capital computing to, at their option, file the annual FOCUS Report and Schedule 1 by sending a hard copy to the Exchange or by filing electronically to the Exchange.
The Exchange recently entered into a Regulatory Services Agreement (the “RSA”) with the Financial Industry Regulatory Authority, Inc. (“FINRA”). FINRA provides its members and the members of exchanges for which it provides regulatory services access to its Firm Gateway system, which is a portal that provides consolidated access to various FINRA regulatory systems, including its financial reporting systems.
In connection with the RSA, FINRA is making the Firm Gateway available to Trading Permit Holders for the submission of various regulatory filings, including certain financial filings, such as FOCUS Reports. As a result, CBOE intends to require Trading Permit Holders that are required to submit FOCUS Reports to the Exchange to submit their FOCUS Reports through the Firm Gateway system, including Trading Permit Holders that are not net capital computing. Therefore, CBOE is proposing to amend Rule 15.5, Interpretations .02 and .03 to provide that FOCUS Reports must be filed electronically with the Exchange utilizing the system or software prescribed by the Exchange.
Many Trading Permit Holders are FINRA members and thus already have access to and submit reports via the Firm Gateway system. Additionally, the majority of Trading Permit Holders that currently submit FOCUS Reports to the Exchange do so electronically, and CBOE understands that the FINRA e-FOCUS system operates in a similar manner to the WinJammer system, as they are both web-based systems into which Trading Permit Holders sign in and input the relevant information. Thus, the Exchange does not anticipate that Trading Permit Holders who currently submit FOCUS Reports through WinJammer will experience any significant systemic or operational burden in order to submit FOCUS Reports via the Firm Gateway system.
The proposed rule change also makes technical, nonsubstantive changes to:
• Conform language in current Rule 15.5, Interpretations and Policies .02 and .03;
• renumber Interpretations and Policies .02 and .03 to .01 and .02, respectively, as current .01 is only reserved; and
• specify in the Rules that CBOE will announce the applicable system or software by Regulatory Circular (as is specified in Rule 15.5 for other financial reports).
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
In particular, the Exchange believes that the proposed change will create a more efficient and effective process for the Exchange's regulatory services provider, FINRA, to collect and review Trading Permit Holders' FOCUS Reports required to be filed with the Exchange, which fosters cooperation and coordination with FINRA in its performance of regulatory services with respect to Trading Permit Holders and CBOE's markets. By enhancing the process through which the Exchange (through its regulatory services provider) receives FOCUS Reports and allowing consolidation with other financial reports for electronic review, the Exchange believes the proposed rule change will promote just and equitable principles of trade and ultimately protect investors. Additionally, upon implementation, all Trading Permit Holders that are required to submit FOCUS Reports to the Exchange will be required to submit them in the same (and thus nondiscriminatory) electronic manner. Regulation of Trading Permits Holders continues to be performed by electronic processes, and thus the Exchange believes it is appropriate to require electronic submission of these reports so that they may be incorporated into these processes. By maintaining the flexibility within the rules for the Exchange to prescribe by Regulatory Circular which system or software will be used for the submission of FOCUS Reports, the Exchange believes it will be able to adjust, as necessary, its standards of financial reporting in a timely manner, particularly to the extent that new or enhanced software or systems are developed for this purpose.
The Exchange does not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change requires all Trading Permit Holders that are required to submit FOCUS Reports to submit those reports in the same electronic manner. Many Trading Permit Holders are also FINRA members and thus already have access to the Firm Gateway system. The majority of Trading Permit Holders that are required to submit FOCUS Reports to the Exchange currently do so electronically in a manner similar to what will be required when submission through the Firm Gateway system becomes mandatory, thus resulting in minimal additional burden. While some Trading Permit Holders will no longer be able submit hard copies of FOCUS Reports, the Exchange believes that any burden imposed by the proposed rule change is minimal and outweighed by the regulatory efficiencies that may be gained through electronic submission directly to the Exchange's regulatory services provider, who will be able to more efficiently and effectively review FOCUS Reports together with other financial reports in its system. The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition, as the proposed rule change is for regulatory purposes to enhance the process for Trading Permit Holders' submission and the Exchange's collection, tracking, consolidation, and review (through its regulatory services provider) of FOCUS Reports.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) 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
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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR–CBOE–2015–040 and should be submitted on or before May 20, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
The Commission: Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: Edward Macdonald, Esq., 5 Radnor Corporate Center–Suite 300, 100 Matsonford Road, Radnor, PA 19087.
Jean E. Minarick, Senior Counsel, or Daniele Marchesani, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust will be registered as an open-end management investment company under the Act and is a statutory trust organized under the laws of Delaware. Applicants seek relief with respect to four Funds (as defined below, and those Funds, the “Initial Funds”). The portfolio positions of each Fund will consist of securities and other assets selected and managed by its
2. The Adviser, a Delaware limited liability company, will be the investment adviser to the Initial Funds. An Adviser (as defined below) will serve as investment adviser to each Fund. The Adviser is, and any other Adviser will be, registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser may retain one or more subadvisers (each a “Subadviser”) to manage the portfolios of the Funds. Any Subadviser will be registered, or not subject to registration, under the Advisers Act.
3. The Distributor is a Delaware limited liability company and a broker-dealer registered under the Securities Exchange Act of 1934 and will act as the principal underwriter of Shares of the Funds. Applicants request that the requested relief apply to any distributor of Shares, whether affiliated or unaffiliated with the Adviser (included in the term “Distributor”). Any Distributor will comply with the terms and conditions of the Order.
4. Applicants seek the requested Order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act. The requested Order would permit applicants to offer exchange-traded managed funds. Because the relief requested is the same as the relief granted by the Commission under the Reference Order and because the Adviser has entered into, or anticipates entering into, a licensing agreement with Eaton Vance Management, or an affiliate thereof in order to offer exchange-traded managed funds,
5. Applicants request that the Order apply to the Initial Funds and to any other existing or future open-end management investment company or series thereof that: (a) Is advised by the Adviser or any entity controlling, controlled by, or under common control with the Adviser (any such entity included in the term “Adviser”); and (b) operates as an exchange-traded managed fund as described in the Reference Order; and (c) complies with the terms and conditions of the Order and of the Reference Order, which is incorporated by reference herein (each such company or series and Initial Fund, a “Fund”).
6. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general purposes of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
7. Applicants submit that for the reasons stated in the Reference Order: (1) With respect to the relief requested pursuant to section 6(c) of the Act, the relief is appropriate, in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act; (2) with respect to the relief request pursuant to section 17(b) of the Act, the proposed transactions are reasonable and fair and do not involve overreaching on the part of any person concerned, are consistent with the policies of each registered investment company concerned and consistent with the general purposes of the Act; and (3) with respect to the relief requested pursuant to section 12(d)(1)(J) of the Act, the relief is consistent with the public interest and the protection of investors.
By the Division of Investment Management, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Wednesday, April 29, 2015 at 12:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the item listed for the Closed Meeting in closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting will be a matter related to an enforcement proceeding.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before May 19, 2015.
Send comments identified by docket number FAA–2015–0561 using any of the following methods:
•
•
•
•
Valentine Castaneda (202) 267–7977, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before May 19, 2015.
Send comments identified by docket number FAA–2015–0555 using any of the following methods:
•
•
•
•
Keira Jones (202) 267–4024, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
National Highway Traffic Safety Administration (NHTSA), DOT.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatements of previously approved collections.
This document describes the collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before June 29, 2015.
You may submit comments identified by DOT Docket ID Number NHTSA–2015–0037 using any of the following methods:
Dr. J. Stephen Higgins, (202)-366–3976.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
This proposed study is the first step in NHTSA understanding the attitudes and challenges that LEOs and LEAs have with traffic safety enforcement. The agency will gain not only valuable information on the attitudes of Law Enforcement but will also gain valuable guidance in the logistics involved in recruiting and collecting data from agencies and officers as well as the quality of responses and data from the developed instruments for larger nationally representative future studies.
This project will document the state of current attitudes and resources and how they have changed in recent years. The result of this project will assist NHTSA in determining what can be done to encourage a more ideal prioritization of traffic safety.
44 U.S.C. Section 3506(c)(2)(A).
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice of the OMB review of information collection and solicitation of public comment.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), this notice announces that the Information Collection Request (ICR) abstracted below will be submitted to the Office of Management and Budget (OMB) for review. The ICR describes the nature of the information collection and its expected burden. A
Submit comments to the Office of Management and Budget (OMB) on or before XXX. May 29, 2015.
Dr. J. Stephen Higgins, 202–366–3976.
44 U.S.C. Section 3506(c)(2)(A).
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation (DOT).
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44
Comments must be submitted on or before May 29, 2015.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725–17th Street NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Dr. Amanda M. Kelley, 202–366–7394.
While child restraint use has increased over the years, many children are still fatally injured as a result of motor vehicles crashes. One possible explanation for this occurrence could be the large number of child passengers who are either riding unrestrained in vehicles, improperly placed in a CRS, or prematurely graduated to an adult vehicle seat belt system. The most prevalent installation errors observed include: Incorrect harness routing slot used, improper harness clip position, loose CRS installation, loose harness straps, and improper lap belt placement (NHTSA, 2012). Researchers have also identified errors related to caregivers selecting the correct CRS for the children's ages, heights, and weights.
Evaluating the causes of the various selection and installation errors can be challenging. That is, one or more factors may contribute to any one type of installation error. There are numerous CRS makes and models marketed to the consumer, each with its own installation procedures/manual. In addition, vehicle manufacturers design vehicle restraint systems and vehicle seats that are incompatible with various CRSs. New vehicles are continually introduced to the fleet, and CRSs continue to evolve each year. Finally, there is a never-ending flow of new parents/caregivers who need to be educated on child passenger safety. Despite their inexperience, new parents may overestimate their own accuracy in selecting and securely installing a CRS to the vehicle and securing the child in the CRS.
In an effort to reduce the number of errors, NHTSA is undertaking a study to gain some insight into the causes of errors related to selecting and installing CRSs. To accomplish this, NHTSA will evaluate installation performance and caregiver confidence for 150 experienced and novice CRS users and determine which factors contribute to both installation and securement errors and to determine what factors related to the CRS, vehicle, and user confidence contribute to errors. Evaluation measures will involve the independent identification, collection and evaluation of both qualitative and quantitative data that specifically document the types of errors made by both user groups, as well as vehicle and CRS features that might contribute to those errors. Identifying these causal factors that contribute to errors related to selecting and installing CRSs, as well as those factors that contribute to accurately selecting and properly installing CRSs for both novice and experienced users, will be the first step in increasing the safety of child passengers in moving vehicles. In addition, overall findings can be made available to CRS manufacturers and vehicle manufacturers related to improvements to specific CRS and vehicle design features that may foster a better fit in the vehicles and securement for children.
Comments are invited on the following:
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) the accuracy of the agency's estimate of the burden of the proposed information collection;
(iii) ways to enhance the quality, utility, and clarity of the information to be collected; and
(iv) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
A comment to OMB is most effective if OMB receives it within 30 days of publication.
44 U.S.C. Section 3506(c)(2)(A).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Safety Advisory Notice.
PHMSA is issuing this safety advisory to notify the public that Liberty Industrial Gases and Welding Supplies Inc., located at 600 Smith Street, Brooklyn, NY 11231, also known as Liberty Industrial Gases and Welding Supply, Inc., marked ICC, DOT-Specification, and DOT-Special Permit high pressure compressed gas cylinders as authorized for hazardous materials transportation without properly testing the cylinders and without authorization to do so.
Mr. Patrick Durkin, Hazardous Materials Investigator, Eastern Region, Office of Hazardous Materials Safety, Pipeline
If ICC, DOT-Specification, or DOT-Special Permit cylinders have been taken to or received from Liberty Industrial Gases and Welding Supplies Inc., from April 1986 through October 2014, these cylinders may not have been properly tested as prescribed by the Hazardous Materials Regulations (HMR). These cylinders should be considered unsafe and not authorized for the filling of hazardous materials unless the cylinder is first properly tested by an individual or company authorized to requalify DOT-Specification and DOT-Special Permit cylinders. Cylinders described in this safety advisory notice that are filled with atmospheric gas should be vented or otherwise safely discharged. Cylinders that are filled with a material other than an atmospheric gas should not be vented but instead should be safely discharged.
Prior to refilling or continued use, the cylinders must be taken to a DOT-authorized cylinder requalifier to ensure their suitability for continued service. A list of authorized requalifiers may be obtained at the following Web site:
A cylinder requalification consisting of a visual inspection and a hydrostatic test, conducted as prescribed in the HMR, specifically 49 CFR § 173.301, is used to verify the structural integrity of a cylinder. If the requalification is not performed in accordance with the regulations, a cylinder with compromised structural integrity may not be detected and may be returned to service when it should be condemned. Extensive property damage, serious personal injury, or death could result from rupture of a cylinder.
Investigators from PHMSA's Office of Hazardous Materials Safety (OHMS) recently conducted a compliance inspection of Liberty Industrial Gases and Welding Supplies Inc. after the company self-reported improper marking of cylinders. As a result of that inspection, PHMSA determined that Liberty Industrial Gases and Welding Supplies Inc. marked an unknown number of high pressure compressed gas cylinders with unauthorized markings and certified an unknown number of high pressure compressed gas cylinders as being properly requalified when it had not conducted the required testing.
The evidence suggests that Liberty Industrial Gases and Welding Supplies Inc. marked Requalifier Identification Number (RIN) A890 on these cylinders. However, Liberty Industrial Gases and Welding Supplies Inc. does not hold a RIN approval authorizing it to requalify cylinders. RIN A890 was issued by PHMSA to another company, Hi Pressure Technologies, located in Newark, NJ, granting it authority to requalify cylinders under the terms of the RIN approval supplied to it. Thus, if the cylinders were serviced by the approved RIN holder, Hi Pressure Technologies, they are not subject to this notice. Only cylinders serviced by Liberty Industrial Gases and Welding Supplies Inc. bearing these markings are affected.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on certain information collections pertaining to hazardous materials transportation for which PHMSA intends to request renewal and extension from the Office of Management and Budget (OMB).
Interested persons are invited to submit comments on or before June 29, 2015.
You may submit comments identified by the docket number (PHMSA–2015–0098) by any of the following methods:
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Requests for a copy of an information collection should be directed to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH–12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590–0001, Telephone (202) 366–8553.
Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH–12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590–0001, Telephone (202) 366–8553.
Section 1320.8 (d), Title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies information collection requests that PHMSA will be submitting to OMB for renewal and extension. These information collections are contained in 49 CFR parts 172, 173, 174, 175, 176, and 177 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171–180). PHMSA has revised
PHMSA is revising this information collection burden to reflect the anticipated completion of the collection of information under the Hazardous Materials Automated Cargo Communications for Efficient and Safe Shipments (HM–ACCESS) pilot program.
Number of Respondents: 260,000.
Total Annual Responses: 185,000,000.
Total Annual Burden Hours: 4,625,846.
Frequency of Collection: On occasion.
Number of Respondents: 3,817.
Total Annual Responses: 21,519.
Total Annual Burden Hours: 15,270.
Frequency of Collection: On occasion.
We also require the number and type of packagings to be indicated on the shipping paper. This requirement makes it mandatory for shippers to indicate on shipping papers the numbers and types of packages, such as drums, boxes, jerricans, etc., being used to transport hazardous materials by all modes of transportation.
Shipping papers serve as a principal means of identifying hazardous materials during transportation emergencies. Firefighters, police, and other emergency response personnel are trained to obtain the DOT shipping papers and emergency response information when responding to hazardous materials transportation emergencies. The availability of accurate information concerning hazardous materials being transported significantly improves response efforts in these types of emergencies. The additional information would aid
Number of Respondents: 250,000.
Total Annual Responses: 6,337,500.
Total Annual Burden Hours: 17,604.
Frequency of Collection: On occasion.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
On February 4, 2015, in accordance with the Paperwork Reduction Act of 1995, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice in the
During the 60-day comment period, PHMSA received no comments in response to this collection. PHMSA is publishing this notice to provide the public with an additional 30 days to comment on the renewal of this information collection and announce that the information collection will be submitted to OMB for approval.
Interested persons are invited to submit comments on or before May 29, 2015 to be assured of consideration.
You may submit comments identified by the docket number PHMSA–2015–0004 by any of the following methods:
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Requests for a copy of the Information Collection should be directed to Cameron Satterthwaite by telephone at 202–366–1319, by fax at 202–366–4566, by email at
Angela Dow by telephone at 202–366–1246, by email at
Section 1320.8(d), title 5, Code of Federal Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies an information collection request that PHMSA will be submitting to OMB for minor revision and extension approval. The information collection expires July 31, 2015, and is identified under OMB Control No. 2137–0047, titled: “Transportation of Hazardous Liquids by Pipeline: Recordkeeping and Accident Reporting.” This information collection addresses general recordkeeping and accident reporting requirements for hazardous liquid pipeline operators under 49 CFR part 195. The minor revision, as more fully described in the February notice, simplifies the instructions for reporting the amount of product released when completing form PHMSA F 7000–1 ACCIDENT REPORT—HAZARDOUS LIQUID PIPELINE SYSTEMS. This proposed revision to the instructions will not increase the hourly burden estimate for this information collection.
During the 60-day comment period, PHMSA received no comments on this information collection.
The following information is provided for this information collection: (1) Title of the information collection; (2) OMB control number; (3) Type of request; (4) Abstract of the information collection activity; (5) Description of affected public; (6) Estimate of total annual reporting and recordkeeping burden; and (7) Frequency of collection. PHMSA will request a three-year term of approval for this information collection activity. PHMSA requests comments on the following information collection:
Comments are invited on:
(a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Office of the Secretary, U.S. Department of Transportation.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
Comments on this notice must be received by June 29, 2015.
You may submit comments [identified by Docket No. DOT–OST–2015–0076] by any of the following methods:
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Tami L. Wright, Associate Director, Compliance Operations Division (S–34), Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, 202–366–9370 or (TTY) 202–366–0663.
Community Development Financial Institutions Fund, U.S. Department of the Treasury.
Notice of open meeting.
This notice announces an open meeting of the Community Development Advisory Board (the “Advisory Board”), which provides advice to the Director of the Community Development Financial Institutions Fund (CDFI Fund).
The next meeting of the Advisory Board will be held from 9 a.m. to 4 p.m. Eastern Daylight Time on Wednesday, May 20, 2015.
The Advisory Board meeting will be held in the Cash Room at the U.S. Department of the Treasury located at 1500 Pennsylvania Avenue NW., Washington, DC 20220.
Bill Luecht, Manager, Office of Legislative and External Affairs, CDFI Fund, 1500 Pennsylvania Avenue NW., Washington, DC 20220, (202) 653–0322 (this is not a toll free number) or
Section 104(d) of the Community Development Banking and Financial Institutions Act of 1994 (12 U.S.C. 4703(d)) established the Advisory Board. The charter for the Advisory Board has been filed in accordance with the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and with the approval of the Secretary of the Treasury.
The function of the Advisory Board is to advise the Director of the CDFI Fund (who has been delegated the authority to administer the CDFI Fund) on the policies regarding the activities of the CDFI Fund. The Advisory Board does not advise the CDFI Fund on approving
It has been determined that this document is not a major rule as defined in Executive Order 12291 and therefore regulatory impact analysis is not required. In addition, this document does not constitute a rule subject to the Regulatory Flexibility Act (5 U.S.C. Chapter 6).
In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. 2 and the regulations thereunder, Bill Luecht, Designated Federal Officer of the Advisory Board, has ordered publication of this notice that the next meeting of the Advisory Board, which will be open to the public, will be held in the Cash Room at the U.S. Department of the Treasury located at 1500 Pennsylvania Avenue NW., Washington, DC 20220, from 9 a.m. to 4 p.m. Eastern Daylight Time on Wednesday, May 20, 2015. The room will accommodate up to 50 members of the public on a first-come, first-served basis.
Because the meeting will be held in a secured federal building, members of the public who desire to attend the meeting must register in advance. The link to the online registration system can be found in the meeting announcement found at the top of
Participation in the discussions at the meeting will be limited to Advisory Board members, Department of the Treasury staff, and certain invited guests. Anyone who would like to have the Advisory Board consider a written statement must submit it to the CDFI Fund's Office of Legislative and External Affairs by 5 p.m. Eastern Daylight Time on Thursday, May 7, 2015, by mail to Bill Luecht, Manager, Office of Legislative and External Affairs, CDFI Fund, 1500 Pennsylvania Avenue NW., Washington, DC 20220, or by email at
In general, the CDFI Fund will make all statements available in their original format, including any business or personal information provided such names, addresses, email addresses, or telephone numbers, for public inspection and photocopying at the CDFI Fund. The CDFI Fund is open on official business days between the hours of 9 a.m. and 5 p.m. You can make an appointment to inspect statements by emailing
The Advisory Board meeting will include a report from the CDFI Fund Director on the activities of the CDFI Fund since the last Advisory Board meeting and on Fiscal Year 2015 priorities.
12 U.S.C. 4703.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is removing the name of one individual and two entities whose property and interests in property have been unblocked pursuant to Executive Order 13448.
OFAC's actions described in this notice are effective April 23, 2015.
Associate Director for Global Targeting, tel.: 202/622–2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622–2490, Assistant Director for Licensing, tel.: 202/622–2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622–2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On April 23, 2015, OFAC unblocked the property and interests in property of the following individual and entities pursuant to Executive Order 13448 of October 18, 2007, “Blocking Property and Prohibiting Certain Transactions Related to Burma.”
AUNG, Win (a.k.a. AUNG, Dagon Win; a.k.a. AUNG, U Win); DOB 1953; nationality Burma (individual) [BURMA] (Linked To: DAGON INTERNATIONAL LIMITED; Linked To: DAGON TIMBER LIMITED).
DAGON INTERNATIONAL LIMITED (a.k.a. DAGON INTERNATIONAL; a.k.a. DAGON INTERNATIONAL CONSTRUCTION COMPANY), Dagon Centre, 6th Floor, 262–264 Pyay Road, Myayingone, Sanchaung Township, Yangon, Burma [BURMA].
DAGON TIMBER LIMITED (a.k.a. DAGON TIMBER), Dagon Centre, 262–264 Pyay Road, Myaynigone, Yangon, Burma [BURMA].
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing pricing for the 2015 Coin and Chronicles Sets as follows:
Mary Lhotsky, Acting Associate Director
31 U.S.C. 5111(a)(2), 5112.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before May 29, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
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 OMB control number. The
By direction of the Secretary.
Office of Operations, Security, and Preparedness, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that The Office of Operations, Security, and Preparedness, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and it's expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before May 29, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492, or email
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 OMB control number. The
By direction of the Secretary.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice; current listing of designated and restricted routes for hazardous materials
This notice provides the current National Hazardous Materials Route Registry (NHMRR), which is a listing, as reported by State and Tribal Government routing officials, of all designated and restricted road and highway routes for transportation of highway route controlled quantities (HRCQ) of Class 7 (radioactive) materials (RAM) (HRCQ/RAM) and non-radioactive hazardous materials (NRHMs) transportation. The listing in this notice supersedes the NHMRR published on July 14, 2014, and includes current route limitations and allowances, and information on State and Tribal Government routing agency contacts reported to FMCSA as of March 30, 2015. The notice also responds to comments received on the Agency's Notice and request for comment on this subject published on July 14, 2014.
Ms. Roxane Oliver, (202) 366–0735, or
To find the most up-to-date listing of hazmat routes, you may access the NHMRR directly at:
Section 5112 of 49 U.S.C. paragraphs (a)(2) and (b) permit States and Tribal Governments to designate and limit highway routes over which HM may be transported provided the State or Tribal Government complies with standards prescribed by the Secretary of Transportation (the Secretary) and meets publication requirements in section 5112(c). To establish standards under paragraph (b), the Secretary must consult with the States, and, under section 5112(c), coordinate with the States to publish periodically a list of currently effective HM highway routing designations and restrictions. Subpart C of 49 CFR part 397 sets out the procedural requirements States and Tribal Governments must follow to establish, maintain, or enforce routing designations for the transport of placardable quantities of NRHM. In Subpart D, § 397.103 sets out the requirements for designating preferred routes for HRCQ/RAM shipments as an alternative to, or in addition to Interstate System highways. For HRCQ/RAM shipments, a preferred route is defined as an Interstate Highway for which no alternative route is designated by the State; a route specifically designated by the State; or both. See § 397.103(b). For the definition of NHRM routes, see § 397.65 “routing designations.”
Under a delegation from the Secretary,
In 49 CFR part 172, the Pipeline and Hazardous Materials Safety Administration (PHMSA) publishes a list of proper shipping names with corresponding identification numbers for HM that must be used when offering for transportation, or transporting any chemical or product that is a HM, hazardous substance or hazardous waste, as defined in 49 CFR 171.8. PHMSA lists HM in nine Classes, based on the type of substance and hazard, and determines the quantities that require a placard on the vehicle (
State and Tribal Governments may designate routes for transporting these HM. The States and Tribal Governments may also establish limitations for the use of routes under section 5112 by using the required procedures specified in 49 CFR part 397. Carriers must develop written route plans for transporting HRCQ/RAM, and adhere to the written route plan [§§ 397.71 and 397.101(d)].
The NHMRR provides publicly accessible information concerning designated routes, which are mandatory assigned routes for transporting HM shipments and restricted routes over which such shipments may not be transported. FMCSA last published the NHMRR on July 14, 2014 (79 FR 40844). That listing reflected the Agency's validation through publicly available information of route designations and limitations, using as the starting point a 2008 spreadsheet developed to address requirements of the Implementing Recommendations of the 9/11 Commission Act of 2007. While validating HM route entries, FMCSA identified other information that could either enhance the NHMRR or correct identified issues. (For detailed information, see the July 2014
The Agency received five comments on the notice. Two industry organizations the American Trucking Associations (ATA) and the Institute of Makers of Explosives (IME) endorsed the new route order approach and content listing. ATA commended FMCSA for updating the routes with a “user-friendly planning tool.” However, ATA encouraged FMCSA to update the NHMRR process to implement the requirements of section 33013 of the Moving Forward for Progress in the 21st Century Act of 2012 (MAP–21) concerning establishing the form, manner, and timetable for State and Tribal Governments to issue and update HM route information. ATA asserted that until FMCSA updates the route registry process, States could not change HM routes and carrier operations could be affected adversely by conflicts between State and Federal officials over which routes to enforce.
IME expressed support for FMCSA's revised “streamlined approach,” stating that the new ordering approach was easy to understand and access. IME asserted, however, that the Agency either should use “preemptive authority” to compel State and Tribal Governments to update incorrect HM route information, or remove the designations from the NHMRR. Two State Government commenters (Texas and Commonwealth of Virginia Department of Transportation) and one individual citizen offered corrections to contact information, street names, or jurisdictional boundaries.
Regarding ATA's comments on updating the NHMRR process to conform to MAP–21, FMCSA published a Technical Amendments Rule that included provisions to address section 33013 of the statute. [79 FR 59450; October 2, 2014]. Among the amendments was a State reporting requirement to include the name of the agency responsible for HM highway route designations, and another to clarify that any State or Tribal-government-designated route is effective only after publication in the NHMRR. The NHMRR process now conforms to MAP–21.
FMCSA notes that in response to IME's comment on preemption, the Agency does not have preemptive authority to update State routing information. The Agency will continue notifying States concerning their obligations to submit correct and updated HM routing information. However, the applicable statute requires the Agency to update HM route listings in coordination with the States' submissions. A citizen who believes there are errors in these listings, such as the individual who commented on this notice, should contact the State entity responsible for designating and maintaining that State's listings.
The Agency has corrected the listing based on comments received from the State agencies with responsibility for HM route designations. The technical amendments referenced above should result in the maintenance of a current list of State and Tribal agencies and contacts that can provide current information on HM routes. Going forward, these entities can promote carrier and driver compliance by using the new ordering approach to provide clear route descriptions for each HM route. Specifically, State and Tribal entities should consider clearly defining each route, including start and endpoints (
As stated above, the only comments FMCSA received on the new route ordering approach and table expressed support for these changes, and the NHMRR published today reflects the same route ordering approach and content presentation as the listing published July 14, 2014. Today's listing also includes additions, changes, and corrections received from four State authorities (Colorado, Ohio, Texas, and Virginia). Any remaining Quality Assurance (QA) issues are noted in the “FMCSA QA Comment” column in the NHMMR tables for the applicable jurisdictions.
Note that the following 14 States have no designated or restricted HM routes in the NHMRR: Connecticut, Hawaii, Kansas, Maine, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, South Carolina, Vermont, and Wisconsin. Note, too, that the NHMRR does not include HM route designations and restrictions applicable to lands under the jurisdiction of Federal entities except for National Park Service (NPS) lands in Montana and South Dakota. The listing of HM routes on NPS lands is based on information readily available to FMCSA at the time of publication of this notice and may not be complete.
NPS regulations generally prohibit commercial motor vehicles and traffic in National Parks, including commercial shipments of HM (36 CFR 5.6). However, a park Superintendent may allow commercial motor vehicles in a National Park subject to permits issued by the Superintendent, and according to terms and conditions set in those permits. In the case of an HM shipment, if the Superintendent designates a route for HM shipments, the operator of the motor vehicle must apply for the permit under 36 CFR 1.6. The Superintendent will apply criteria in that provision to make a determination whether such a shipment is permissible, identify routes, and set other terms and conditions. Subject to obtaining the proper permit, current NPS regulations provide conditions for HM shipments along specified routes in Yellowstone (36 CFR 7.13) and Badlands (36 CFR 7.23) National Parks. NPS regulations expressly state the operator's obligation to comply with any State or Federal laws and regulations applicable to transportation of HM, including 49 CFR subtitle B (
The NHMRR presents HM route information in up to three tables per State. The three table possibilities are: (1) “Restricted Routes” (prohibited routes for specified classes of HM shipments), (2) “Designated HRCQ/RAM Routes” (permissible routes tor transporting HRCQ quantities of Class 7 [radioactive] HM shipments), and (3) “Designated NRHM Routes” (permissible routes for transporting specified classes of non-radioactive HM shipments). To help users and stakeholders interested in HM transportation operations understand the route ordering approach and table presentation, FMCSA is repeating the description of the NHMRR elements in
Each listing in the NHMRR includes codes to identify each route designation and each route restriction reported by the State. Designation codes identify the routes along which a driver can or must transport specified HM. Among the designation codes is one for “preferred routes,” which is defined in § 397.101(b)(1)
Each HM table is sorted by the “Route Order” column to help drivers navigate designated NRHM and HRCQ/RAM routes more easily and avoid restricted routes. At a minimum, each entry in the “Route Order” column, includes a capital letter and may contain a combination of capital letters, Arabic numbers, dashes, and decimals that present a “route order character” identifying the ordering relationship of each HM route in the table. The following table presents the alphanumeric key for understanding route order characters.
For the majority of states, the route order characters generally progress no further than the fourth order level. Alaska, California, Colorado, Illinois, Louisiana, Rhode Island, and Texas have route order characters beyond level four.
The route ordering approach is based on how distinct HM routes connect (each HM route is a separate row in the HM table). An HM route is a single road segment that does not connect (
For each HM table for a State, the route order character lettering runs directionally from Southwest to Northeast. For example, if the first letter of a route order character is “A,” the route is the first HM route encountered beginning from the Southwest section and moving across the State. Figure 1 displays an example of this relationship.
A “continuous route” is a sequence of distinct HM routes that connect at the termini. The individual HM routes will have the same first order level capital letter, with a second order level number added for each new, connecting HM route. In a continuous route, the second order level number increases by one from west to east for each connecting HM route (
A “continuous route with junctions” is a sequence of distinct HM routes that connect and intersect or branch. A junction may either be an intersection where two HM routes cross; or a branch where a new HM route starts at the termini of the previous HM route or at a point along the HM route (see A2A or A3A in Figure 3). For a continuous route with junctions, the route order character begins alphabetically with a first order level capital letter, a second order level number, and at each junction, a third order level alphabetical letter. When an HM route (
If an HM route (
If a road segment (
The pattern of increasing and alternating sequential numbers, letters, dashes, and decimals continues for each new junction from a road segment. For the three HM tables (Designated NRHM Routes, Designated HRCQ/RAM Routes, and Restricted HM Routes), the route ordering sequence begins anew, with the first HM route originating in the Southwest starting with the letter A. Figures 6, 7 and 8 illustrate the ordering approach for a subset of Designated NRHM Routes in Lorain, Ohio, Columbus, Ohio, and Denver, Colorado. High-resolution images of Figures 6, 7, and 8 also will be available for review in the docket.
The regulatory process that States must follow for route designations and limitations is provided in 49 CFR part 397. FMCSA continues to seek comment from the States of Alaska and California, and the District of Columbia about the route quality assurance issues identified in the tables as “FMCSA QA Comment.”
Tennessee Valley Authority (TVA).
Notice of republication of systems of records; notice of proposed new system of records.
In accordance with 5 U.S.C. 552a(e)(4), the Tennessee Valley Authority (TVA) is republishing in full a notice of the existence and character of each TVA system of records.
In accordance with the Privacy Act of 1974, the TVA is providing notice that it is retiring one system of records notice, TVA–8, Employee Alleged Misconduct Investigatory Files, from its inventory because the records are no longer relevant and have been disposed of in accordance with regular retention and disposal schedules. See appendix A.
TVA has transitioned from The Human Resource Information System (HRIS) to a new application, People Lifestyle Unified System (PLUS), which is reflected in TVA's current SORN's submission.
TVA is correcting minor typographical and stylistic errors in previously existing notices and has updated those notices to reflect current organizational structure. Also, updates are being made to show any changes to system locations; managers and addresses; categories of individuals and records; procedures and practices for storing, retrieving, accessing, retaining, and disposing of records.
Submit comments on or before May 29, 2015.
Address all comments concerning this notice to Christopher A. Marsalis, Senior Privacy Program Manager Enterprise Information Security & Policy, TVA, 400 West Summit Drive (WT 5D), Knoxville, TN 37902–1499.
Christopher A. Marsalis at (865) 632–2467 or
In accordance with 5 U.S.C. 552a(e)(4), TVA is today republishing a notice of the existence and character of each of its systems of records in order to make available in one place in the
TVA is also correcting minor typographical and stylistic errors in the previous existing systems. In addition, TVA is updating the system locations; managers and addresses; notification; categories of individuals covered; categories of records; storage policies and practices; retention and disposal; record access; and contesting record procedures. These changes are necessary to reflect TVA's current organizational structure, current technology, and procedural changes.
This document gives notice that the following TVA systems of records below are in effect:
Apprentice Training Records—TVA.
Unclassified.
Human Resource Information Systems, TVA, Knoxville, TN 37902–1499; Computer Operations, TVA, Chattanooga, TN 37402–2801; all TVA locations where apprentices are employed.
Current and former TVA apprentices.
Employment, qualifications, and evaluation information.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; National Apprenticeship Act of 1937, 50 Stat. 664.
The purpose of this system is to facilitate registration for, participation in, and the completion and documentation of apprenticeship training sponsored by TVA in support of its mission. Records in this system will be used to: Determine eligibility for, and the effectiveness of, TVA apprenticeship programs; and facilitate the compilation of statistical information about TVA's apprenticeship training programs.
To the Bureau of Apprenticeship and Training, the Veterans' Administration, Tennessee Valley Trades and Labor Council, and the State and local Government agencies for reporting and evaluation purposes.
To respond to a request from a Member of Congress regarding the status of an apprentice.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
To provide the following information to a prospective employer of a TVA or former TVA employee: Job description, dates of employment, reason for separation.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information; and to request information from private individuals, if necessary, to obtain information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices, microfiche, and in file folders.
Records are indexed by name, craft, job code, union code, and Social Security number.
Access to and use of these records is limited to persons whose official duties require such access. Files are kept in secured facilities.
Records are maintained and disposed of in accordance with established TVA record retention schedules.
Senior Manager, Talent Sourcing & Support Services
Individuals seeking to learn if information on them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name, craft, and location of employment.
Individuals seeking access to information about them in this system of records should contact the system manager named above. Access will not be granted to investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment. Federal contracts, or access to classified information to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. Access will not be granted to testing or examination material used solely to determine individual qualification for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
Individual to whom the record pertains; General Aptitude Test Battery scores from S\state employment security office; references from employers, military and educational institutions; and evaluations from joint committee on apprenticeship.
This system is exempt from subsections (d); (e)(4)(H); and (f)(2), (3), and (4) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence, and to the extent that disclosure of testing and examination material would compromise the objectivity of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a(k)(5) and (6) and TVA regulations at 18 CFR 1301.24.
Personnel Files—TVA.
Unclassified.
Human Resources, HR Services, TVA, Knoxville, TN 37902–1499; Human Resource Information Systems, TVA, Knoxville, TN 37902–1499; area human resources offices throughout TVA; Information Technology, TVA, Chattanooga, TN 37402–2801; National Personnel Records Center, St. Louis, MO 63118. Security/suitability investigatory files are located separately from other records in this system. Duplicate or certain specified temporary information may be maintained by human resources officers, supervisors, and administrative officers.
Current and former TVA employees, some contractors, applicants for employment, and applicants for employment by TVA contractors.
Information related to education; qualifications; work history; interests and skills; test results; performance evaluation; career counseling; personnel actions; job description; salary and benefit information; service dates, including other Federal and military service; replies to congressional inquiries; medical data; and security investigation data.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Executive Order 10577; Executive Order 10450; Executive Order 11478; Executive Order 11222; Equal Employment Opportunity Act of 1972, Public Law 92–261, 86 Stat. 103; Veterans' Preference Act of 1944, 58 Stat. 387, as amended; various sections of title 5 of the United States Code related to employment by TVA.
The purpose of this system is to provide a repository of personnel records, performance reports, events, developments, contract arrangements and other significant matters relating to an employee's employment with TVA.
To disclose test results to State employment services.
To a State employment security office in response to a request relating to a former employee's claim for unemployment compensation.
To respond to a request from a Member of Congress regarding the status of an employee, former employee, or applicant.
To refer, where there is an indication of a violation or potential violation of
To request from any pertinent source directly or through a TVA contractor engaged at TVA's direction, information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
To provide information or disclose to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
To provide the following information, as requested, to a prospective employer of a TVA or former TVA employee: Job descriptions, dates of employment, and reasons for separation.
To provide an official of Federal agency information needed in the performance of official duties related to reconciling or reconstructing data files, in support of the functions for which the records were collected and maintained.
To provide information to multi-employer health and welfare and pension funds as reasonably necessary and appropriate for proper administration of the plan of benefits.
To provide information to TVA contractors engaged in making suitability determinations for their prospective employees under TVA contracts.
To contractors and subcontractors engaged at TVA's direction in providing support services to TVA in connection with mailing materials to TVA employees or other related services.
To provide information as requested to the Office of Personnel Management pursuant to Executive Orders 10450 and 10577 and other laws.
To any agency of the Federal Government having oversight or review authority with regard to TVA activities.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To transfer information necessary to support a claim for life insurance benefits under Federal Employees' Group Life Insurance to Office of Federal Employees' Group Life Insurance.
To transfer information regarding claims for health insurance benefits to health insurance carrier.
To union representatives in exercising their responsibilities under TVA collective-bargaining agreements.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To TVA contractors and subcontractors engaged at TVA's direction in studies and evaluation of TVA personnel management and benefits; or the investigation of nuclear safety, reprisal, or other matters involving TVA personnel practices or policies; or the implementation of TVA personnel policies.
To provide pertinent information to local school districts and other Government agencies in order to study TVA project impacts and to aid school districts in qualifying for assistance under Public Law 81–874 and other laws.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To commemorate the month and day of employee birthday anniversaries.
To the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services Federal Parent Locator System (FPLS) and Federal Tax Offset System for use in locating individuals and identifying their income sources to establish paternity, establish and modify orders of support, and for enforcement action.
To the Office of Child Support Enforcement for release to the Social Security Administration for verifying social security numbers in connection with the operation of the FPLS by the Office of Child Support Enforcement.
To the Office of Child Support Enforcement for release to the Department of Treasury for purposes of administering the Earned Income Tax Credit Program (Section 32, Internal Revenue Code of 1986) and verifying a claim with respect to employment in a tax return.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Information is stored electronically in the People Lifecycle Unified System (PLUS), Enterprise Content Management (ECM) or on microfiche. Duplicate or certain specified temporary information may be maintained by human resources officers, supervisors, and administrative offices in a locked, secured location.
Records are indexed by name and Employee Identification Number.
Access to and use of these records is limited to those persons whose official duties require such access. Access to systems storing these records must be approved by the Senior Manager of Employee Relations Support Services
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Talent Acquisition, Deployment and Support, HR Services, TVA, Knoxville, TN 37902–1499.
Individuals wishing to learn if information on them is maintained in this system of records should address inquiries to the Manager, TVA Service Center, TVA, Knoxville, TN 37902–1499. Requests should include the individual's full name, job title, and
Current employees should address inquiries also to their supervisors or the TVA Service Center.
Individuals seeking to gain access to information about them in this system of records should contact the Manager, TVA Service Center, TVA, Knoxville, TN 37901–1499. In addition, current employees may present requests for access to their supervisors or the personnel officer of the employing division. Requests should include the individual's full name, job title, and date of birth. A Social Security number is not required but may expedite TVA's response; however, an Employee Identification Number may be included. Access will not be granted to investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or access to classified information to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. Access will not be granted to testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal Service the disclosure of which would compromise the objectivity or fairness of the testing or examination process.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the Manager, TVA Service Center, TVA, Knoxville, TN 37902–1499.
Individual to whom the record pertains; educational institutions; former employers; and other reference sources; State employment services; supervisors and other TVA personnel or personnel records; medical officers; other Federal agencies.
In addition to the above sources, security/suitability investigatory files contain information from law enforcement agencies.
This system is exempt from subsections (d); (e)(4)(H); and (f)(2), (3) and (4) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence, and to the extent that disclosure of testing or examination material would compromise the objectivity or fairness of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a(k)(5) and (6) and TVA regulations at 18 CFR 1301.24.
Discrimination Complaint Files—TVA.
Unclassified.
TVA Equal Opportunity Compliance Staff, Knoxville, TN 37902–1499. Duplicate copies may be maintained in the files of the TVA organization where the complaint originated.
Employees, former employees, or applicants who have received counseling or filed complaints of discrimination based on race, color, religion, sex, national origin, age, reprisal, disability or genetic information
This system of records contains information or documents relating to a decision or determination made by TVA or the Equal Employment Opportunity Commission affecting an individual. The records consist of the complaint, letters or notices to the individual, record of hearings when received from the Equal Employment Opportunity Commission, materials placed into the record to support the decision or determination, affidavits or statements, testimonies of witnesses, investigative reports, and related correspondence, opinions, and recommendations. Also, if the case is appealed to the Federal District Court of Appeals, the records will contain a copy of the complaint on file with the Federal District Court.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Executive Order 11478; 42 U.S.C. 2000e–16; 29 U.S.C. 633a; Title VII of the Civil Rights Act of 1964; Age Discrimination in Employment Act of 1967; Rehabilitation Act of 1973; Genetic Information Nondiscrimination Act of 2008.
The purpose of this system is to assist in the documentation of complaints, letters, notices, materials placed into the record to support the decision or determination, affidavits or statements, testimonies of witnesses, investigative reports, related correspondence, opinions, and recommendations to individuals regarding potential or alleged violations of equal employment opportunity statutes and regulations and to maintain records relating to a decision or determination made by TVA or the Equal Employment Opportunity Commission affecting an individual. Records in this system will be used for: Initiating, counseling, investigating, and adjudicating equal employment opportunity complaints and to resolve issues related to alleged discrimination because of race, color, religion, sex, national origin, age, physical or mental disability, and sexual orientation.
If a hearing is requested and/or an administrative appeal is filed with the Equal Employment Opportunity Commission, a copy of the complaint file, containing a record of investigations and a correspondence file of each complaint, is forwarded to the Equal Employment Opportunity Commission.
To the counselee's or complainant's representative.
To respond to a request from a Member of Congress regarding the status of a complaint.
To the parties of complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule,
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery.
In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To TVA consultants, contractors, and subcontractors who are engaged in studies and evaluation of TVA's administration of its Equal Employment Opportunity program or who are providing support services to the program.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records in this system are kept in file folders.
Records in this system are indexed by name.
Access to and use of these records is limited to those personnel whose official duties require such access.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Director of TVA Equal Opportunity Compliance, Knoxville, TN 37902–1499.
Individuals who have filed discrimination complaints are aware of that fact. However, inquiries may be addressed to the system manager named above. Individuals should provide their full name, the approximate date of their complaint, and their employing organization, if employed.
Individuals who have filed a discrimination complaint have been provided a copy of the record. However, an individual may gain access to a copy of their official complaint record by writing the system manager named above.
Individuals who have filed a discrimination complaint have had an opportunity during the complaint procedure to timely amend their record. TVA management has the same opportunity during the complaint procedure to timely amend the applicable record. However, requests for amendment or correction of items not involving the complaint procedure may be addressed to the system manager named above.
The individual to whom the record pertains; TVA personnel and other records; and witnesses.
None.
Work Injury Illness System—TVA.
Unclassified.
TVA Safety Programs, TVA, Chattanooga, TN 37402–2801. Accident reports may also be maintained in the file of the employing organization.
Employees and Staff Augmented contractors who have sustained a work-related injury or illness.
Personal identifying information and information related to the accident, injury, or illness.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Executive Order 12196; Occupational Safety and Health Act of 1970, Public Law 93–237, 87 Stat. 1024.
The purpose of this system is to assist in compliance with the Occupational Safety and Health Act and to provide a repository of documentation of work related accidents, injuries, illnesses, and health related exposures in the workplace.
To an injured employee's representative.
To the Department of Labor as required by the Occupational Safety and Health Act.
To the Office of Workers' Compensation Programs in relation to an individual's claim for compensation.
To respond to a request from a Member of Congress regarding the status of an employee.
To provide information to a Federal agency, in response to its request in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information, or other pertinent information; and to request information from private individuals, if necessary, to obtain information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purpose of this system of records.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Information in this system is maintained on automated data storage devices and in file folders.
Records are indexed by name, date of injury, and Employee Identification Number.
Access to and use of these records is limited to those persons whose official duties require such access. All filing systems are locked when unattended. Remote access facilities are secured through physical and system-based safeguards.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, Safety Process Support, TVA, Chattanooga, TN 37402–2801.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name, date of birth, and approximate date of injury.
Individuals who desire access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
The individual to whom the record pertains; TVA medical records; witnesses of accidents and inquires, including appraisers of property damage.
None.
Employee Accounts Receivable—TVA.
Unclassified.
Financial Services. TVA, Knoxville, TN 37902–1499; Office of the General Counsel, TVA, Knoxville, TN 37902–1499.
Employees or former employees who: Authorize a payment for specified purposes in their behalf; receive overpayment of earnings; receive duplicate payments; or are otherwise indebted to TVA.
Personal identifying information and information concerning indebtedness and repayment.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; 5 U.S.C. Chapter 55.
The purpose of this system is to create a record of employees and former employees who are indebted to TVA . The records in this system will be used to assist in the tracking and collection of debts owed to TVA.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Disclosures pursuant to 5 U.S.C. 552a(b)(12): Disclosures may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Debt Collection Act of 1982 (31 U.S.C. 3711(d)(4)).
Records are maintained on printouts, invoices, microfiche, and posting documents.
Records are indexed by payroll number, Social Security number, badge number, name, or invoice number.
Access to and use of these records is limited to persons whose official duties require such access. Files are kept in secured facilities.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Disbursement Services, TVA, Knoxville, TN 37902–1499.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name and employing organization. Provisions of the Social Security number is not required, but may expedite TVA's response and may prevent the erroneous retrieval of records for another individual with the same name.
Individuals who seek access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information about them maintained in the system should direct their request to the system manager named above.
Individuals to whom the record pertains; TVA payroll records; TVA disbursement voucher records.
None.
Health Records—TVA.
Unclassified.
TVA HR Health & Safety, Chattanooga, TN 37402–2801; all TVA medical facilities; Computer Operations, TVA, Chattanooga, TN 37402–2801; National Personnel Records Center, St. Louis, MO 63118; District Offices, Office of Workers' Compensation Programs.
Applicants for TVA employment, employees, former employees, official visitors, contractual assignees to TVA, interns, externs, employees of TVA contractors, and other Federal agencies who are examined under contract.
Health information pertinent to an individual's employment, official visit, or contractual work with TVA or other Federal agencies, including the basic Clinical Medical Record, Worker's Compensation and Rehabilitation claims and case files, Psychological and Fitness for Duty files including alcohol and drug testing information, clinical information received from outside sources, and information relative to an employee's claim for medical disability retirement. Health information includes paper documents, x-rays, microfiche, microfilm, and/or any automatic data processing media, regardless of the form or process by which it is maintained.
The purpose for this system is to maintain records concerning individual's medical records and treatments. Records in this system are used to: Determine fitness for duty; verify an employee's eligibility for certain services, evaluate an employee's claim for disability retirement or other separation actions; and prepare analytical and statistical studies and reports related to the health of TVA employees.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; 5 U.S.C. 7902; Federal Employees' Compensation Act, 5 U.S.C. chapter 81, 5 U.S.C. chapter 87 (Medical information relating to life insurance program); 5 U.S.C. 3301; Occupational Safety and Health Act of 1970, Public Law 93–237, 87 Stat. 1024, Public Law 91–616, Federal Civilian Employee Alcoholism Program and Public Law 92–255, Drug Abuse among Federal Civilian Employees, which are amended in regard to confidentiality of records by Public Law 93–282; Public health laws (State and Federal) related to the reporting of health hazards, communicable diseases or other epidemiological information; Energy Reorganization Act of 1974, Public Law 93–438, 88 Stat. 1233; 49 CFR part 382 Subpart D.
Compensation claim records are used for adjudicating claims and providing therapy. Appropriate information is exchanged with physicians, hospitals, and rehabilitation agencies approved by the Office of Workers' Compensation Programs for service to injured employees.
Alcohol, drug testing and psychological fitness for duty records may be exchanged with a physician or treatment center working with an employee, or in accordance with the provisions of Public Law 93–282.
Information in the Health Records System provided to officials of other Federal agencies responsible for other Federal benefit programs administered by Office of Workers' Compensation Programs. Retired Military Pay Centers, Veterans' Administration, Social Security Administration, and private contractors engaged in providing benefits under Federal contracts.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract, the issuance of a security clearance, the reporting of an investigation of an employee, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
To respond to a request from a Member of Congress regarding an employee.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority or a court of competent jurisdiction.
To transfer information regarding claims for health insurance or disability benefits to the health insurance carrier or plan participant.
To request information from a Government agency or private
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To TVA consultants, contractors, and subcontractors who are engaged in studies and evaluation of TVA's administration of its medical and employee benefits program or who are providing support sources to the program.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To provide information to private physicians and other health care professionals or facilities designated by an employee.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Health information includes paper documents, x-rays, microfiche, microfilm, and/or any automatic data processing media, regardless of the form or process by which it is maintained.
Records are indexed by name, Social Security number, date of birth, and/or case number.
Access to and use of these records is limited to those persons whose official duties require such access. All filing systems are locked when unattended.
Remote access facilities are secured through physical and system-based safeguards. Special instructions governing the medical staff employees assure the confidentiality of health records.
Records are maintained and disposed of in accordance with TVA rules and regulations approved by the Archivist of the United States. Retention schedules specify the length of time various records are kept. Active clinical medical records are kept indefinitely. Specific retention schedules for various components of the records systems are contained in the Comprehensive Records Schedule (CRS) which has been approved by the National Archives and Records Administration (NARA) for use by Health Services. These dispositions are mandatory unless TVA requests a revision from NARA. Items in this CRS should be cited as the disposition authority for transferring or destroying any records.
Manager, Occupational Health & Nursing Services, Chattanooga, TN 37402–2801. Inquiries and requests for psychological fitness for duty and alcohol & drug testing records should be sent to Manager, Non-Nuclear Fitness for Duty, TVA, Chattanooga, TN 37402–2801.
Individuals should address inquiries to the system manager named above. Individuals should provide their full name, Employee Identification Number (EIN) or social security number, date of birth, employing organization, and date of last employment, and employee compensation case number, if any.
Individuals who desire access to information about them in this system of records should contact or address their inquiries to the system manager named above. Inquiries should be specific as to which component of the health records system is to be accessed. If inquiries are not specific to a particular component of the health records, it will be assumed the access is directed toward the individual's clinical medical record.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
The individual to whom the record pertains; TVA medical staff; private physicians and medical institutions; Office of Workers' Compensation Programs; TVA personnel records; other health agencies and departments.
None.
Payroll Records—TVA.
Unclassified.
Financial Services, TVA, Knoxville, TN 37902–1499; garnishment files are located at the Office of the General Counsel, TVA, Knoxville, TN 37902–1499; duplicate copies of some records may also be maintained in the files of the employing organization; National Personnel Records Center, St. Louis, MO 63118.
All employees and personal service contractors selected for certain training programs and applicants for employment.
Personal identifying information, pay, leave, and debt claim information.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Internal Revenue Code; Fair Labor Standards Act, 29 U.S.C. Chapter 8; 5 U.S.C. Chapter 63.
The purpose of this system is to facilitate the facilitate fiscal operations for payroll, attendance, leave, insurance, tax, retirement and cost accounting programs. Records in this system will be used to: Generate W–2 forms, wage and tax statement, reports of withholding and contributions; facilitate the compilation of statistical information about TVA's payroll; and prepare comprehensive payroll related reports to other Federal agencies.
To report earnings and other required information to Federal, State, and local taxing authorities as required by law.
To report earnings to the Civil Service Retirement System for members of that system.
To transmit payroll deduction information to financial institutions and employee organizations.
To report earnings to courts when garnishments are served or in bankruptcy or wage earner proceedings.
To report earnings to the Department of Housing and Urban Development, State welfare agencies, and State employment security offices where an individual has made a claim for benefit with such agency.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
To provide information or disclose to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
To disclose to any agency of the Federal Government having oversight or review authority with regard to TVA activities.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To transfer information necessary to support a claim for life insurance benefits under Federal Employee's Group Life Insurance to Office of Federal Employee's Group Life Insurance.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information; and to request information from private individuals, if necessary, to obtain information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
To transfer information regarding claims for health insurance benefits to health insurance carriers.
To TVA contractors and subcontractors engaged in studies and evaluations of TVA payroll and personnel management.
To union representatives exercising their responsibilities under TVA collective bargaining agreements.
To report earnings to the Department of Housing and Urban Development, and State welfare agencies where an individual makes a claim for benefits, and to report earnings to State employment security offices in both manual and automated form for use by these offices in determining unemployment benefits.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services Federal Parent Locator System (FPLS) and Federal Tax Offset System for use in locating individuals and identifying their income sources to establish paternity, establish and modify orders of support, and for enforcement action.
To the Office of Child Support Enforcement for release to the Social Security Administration for verifying social security numbers in connection with the operation of the FPLS by the Office of Child Support Enforcement.
To the Office of Child Support Enforcement for release to the Department of the Treasury for purposes of administering the Earned Income Tax Credit Program (Section 32, Internal Revenue Code of 1986) and verifying a claim with respect to employment in a tax return.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Disclosures pursuant to 5 U.S.C. 552a(b)(12): Disclosures may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Debt Collection Act of 1982 (31 U.S.C. 3711(d)(4)).
Records are maintained on automated data storage devices, hard-copy printouts, and in an optical scanned electronic file.
Records are primarily indexed by name. They may also be retrieved by reference to employing organization, date of end of pay period, Social Security or badge number, year of birth, or job title.
Access to and use of these records is limited to persons whose official duties require such access. Filing systems are locked when unattended. Remote access facilities are secured through physical and system-based safeguards.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Disbursement Services, TVA, Knoxville, TN 37902–1499.
Individuals wishing to learn if information on them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name, employing organization, and date of last employment. The Social Security number is also required to expedite TVA's response and prevent the erroneous retrieval of records for another individual with the same name.
Individuals seeking access to information on them in this system of records should contact the system manager named above.
Individuals seeking to contest or amend information on them in this system of records should contact the system manager named above.
Individual to whom the record pertains; TVA personnel records; employee's supervisor for report of hours worked.
None.
Travel History Records—TVA.
Unclassified
Financial Services, TVA, Knoxville, TN 37902–1499. Duplicate copies of certain records may also be maintained in the files of the employing organization.
Current and former TVA employees who traveled on official business and filed travel expense vouchers, applied for a travel advance, or transferred between official stations; recently-hired employees who filed for reimbursement of relocation expenses; candidates for TVA positions who filed for reimbursement of travel expenses; and contractors with which there is an employer/employee relationship (
Travel advance requests, travel expense vouchers and supporting documentation, travel charge card program records and reports, and travel orders. Records supporting relocation expense claims also include real estate sales agreements and settlements, Federal Truth-In Lending disclosure statements, lease agreements, receipts for loss of rental deposit, and relocation income tax allowance documents.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; 5 U.S.C. 5701–5709, and related Federal travel regulations.
The purpose of this system is to facilitate the planning and arrangement of official TVA travel, obtain travel authorizations, maintain documentation on TVA employees on travel or being provided travel by TVA, and assist in the generation of travel expense reports. Records in this system will also be used to support relocation expense claims and generate travel vouchers.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation or charged with enforcing or implementing the statute, rule regulation, or order issued pursuant thereto.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To respond to a request from a Member of Congress regarding the status of an employee, former employee, or applicant.
To TVA contractors and subcontractors engaged at TVA's direction that are providing support services to TVA's travel charge card program.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Disclosures pursuant to 5 U.S.C. 552a (b)(12): Disclosures may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Debt Collection Act of 1982 (31 U.S.C. 3711(d)(4)).
Records are maintained on magnetic media, hard-copy printouts, microfiche, and in file folders.
Records are indexed by name and Social Security number.
Access to and use of these records is limited to persons whose official duties require such access. Security will be provided by physical, administrative, and computer system safeguards. Files are kept in secured facilities not accessible to unauthorized individuals.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Disbursement Services, TVA, Knoxville, TN 37902–1499.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name and Social Security number.
Individuals who seek access to information about them in this system of records should contact the system manager named above. Requests should include the individual's full name and Social Security number.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above. Requests should include the individual's full name and Social Security number.
Individual to whom the record pertains; TVA disbursement voucher
Employment Applicant Files—TVA.
HR System Administration and Reporting, Chattooga TN 37402.
Applicants for employment including former employees seeking reemployment.
Application forms and related correspondence.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; 5 U.S.C. 3101.
The purpose of this system is to provide documentation and records on TVA applicants for employment. Records in this system will be used to rate and rank applicants for employment, facilitate in the determination of individuals' eligibility and evaluate qualifications for employment at TVA, and to facilitate the compilation of statistical information about TVA's application process
To respond to a request from a Member of Congress regarding the status of an individual's application.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
To request from any pertinent source, directly or through a TVA contractor engaged at TVA's direction, information relevant to a TVA decision concerning the hiring of an employee, the issuance of a security clearance, or other decision within the purposes of this system or records.
To disclose test results to State employment services.
To provide information as requested to the Office of Personnel Management pursuant to Executive Orders 10450 and 10577 and other laws.
To provide information to a Federal agency in response to its request in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Information is stored electronically in the People Lifecycle Unified System (PLUS), Enterprise Content Management (ECM) or on microfiche. Duplicate or certain specified temporary information may be maintained by human resources officers, supervisors, and administrative offices in a locked, secured location.
Records are indexed by name and Employee Identification number.
Access to and use of these records is limited to those persons whose official duties require such access. Access to systems storing these records must be approved by the Senior Manager of Employee Relations Support Services. All filing systems are locked when unattended. Remote access facilities are secured through physical and system-based safeguards.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, Human Resource System Administration and Reporting TVA, 1101 Market Street, Chattanooga, TN 3740202801
Individuals wishing to learn if information on them is maintained in this system of records should address inquiries to the Senior Manager, Employee Relations Support Services, TVA, Knoxville, TN 37902–1499. Requests should include the individual's full name, Social Security number, date of birth, and approximate date of application.
Individuals wishing to gain access to information on them in this system of records should contact the Senior Manager, Employee Relations Support Services, TVA, Knoxville, TN 37902–1499. Access will not be granted to investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment. Federal contracts, or access to classified information, to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence.
Access will not be granted to testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal Service the disclosure of which would compromise the objectivity or fairness of the testing or examination process.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to Manager, TVA Service Center, TVA, Knoxville, TN 37902–1499.
The individual on whom the record is maintained; educational institutions, employers, and other references; State employment services.
This system is exempt from subsections (d); (e)(4)(H); and (f)(2), (3), and (4) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence and to the extent that disclosure of testing or examination material would compromise the objectivity or fairness of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a(k)(5) and (6) and TVA regulations at 18 CFR 1301.24.
Grievance Records—TVA.
Unclassified
Labor Relations Staff, TVA, Knoxville, TN 37902–1499. Original correspondence on the initial grievance steps below the Labor Relations level is maintained in the organization in which the grievance originated. Original correspondences on grievance appeals to the corporate level are maintained in the files of the Labor Relations office.
Duplicate copies of such correspondence are also maintained in the files of the organization concerned with the grievance.
TVA employees and former employees who have formally appealed to TVA for adjustment of their grievances.
Evidence and arguments relevant to the matter giving rise to the grievance and related correspondence.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee.
The purpose of this system is to document employee grievances, including statements of witnesses, reports of interviews and hearings, examiner's findings and recommendations, a copy of the original and final decision, and related correspondence and exhibits. Records in this system will be used to assist in the initiation, consideration, and adjudication of formally filed grievances by TVA employees.
To respond to a request from a Member of Congress regarding the status of an employee's grievance.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To request information from a Federal, State, or local agency, or private individual, if necessary, to obtain information relevant to a TVA decision within the purposes of this system of records.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulations, or order issued pursuant thereto.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices in some organizations and in file folders.
Records are indexed by name or by craft.
Access to and use of these records is limited to those persons whose official duties require such access.
Records are maintained and disposed of in accordance with established TVA record retention schedules.
Director, Labor Relations, TVA, Knoxville, TN 37902–1499.
Individuals who have filed grievances are aware of that fact. Inquiries may, however, be addressed to the system manager named above. Requests should include the individual's full name, craft, and location of employment.
Individuals who have filed a grievance may gain access to the official copy of the grievance record by contacting the system manager named above. Requests should include the grievant's full name, craft, and location of employment.
The contest, amendment, or correction of a grievance record is permitted during the prosecution of that grievance. However, an individual may address requests for amendment or correction of items not involved in prosecution of the grievance to the system manager named above.
Individual to whom the record pertains; TVA personnel records; statements and testimony of witnesses and related correspondence.
None.
Employee Supplementary Vacancy Announcement Records—TVA.
Unclassified
Human Resources, Knoxville and Chattanooga, Tennessee, and Muscle Shoals, Alabama; may also be maintained in other offices that issue or receive responses to supplementary vacancy announcements.
Employees applying for placement in positions covered by the supplementary vacancy announcement procedure.
Applications and supporting material submitted by employee.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Executive Order 11478; Equal Employment Opportunity Act of 1972, Public Law 92–261, 86 Stat. 103; 5 U.S.C. 3101.
The purpose of this system is to collect, maintain, and track applications for positions covered by the supplemental vacancy announcement procedure. This procedure allows TVA employees to apply for internal vacancies that are exempt from TVA's policy that employees must be given the opportunity to apply for vacant positions before they are filled.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Information is stored electronically in the People Lifecycle Unified System (PLUS), Enterprise Content Management (ECM) or on microfiche. Duplicate or certain specified temporary information may be maintained by human resources officers, supervisors, and administrative offices in a locked, secured location.
Records are indexed by name.
Access to and use of these records is limited to persons whose official duties require such access. Access to systems storing these records must be approved by the Manager of Human Resources System Administration and Support.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, Human Resource System Administration and Reporting, 1101 Market Street, Chattanooga, TN 3740202801
Individuals upon whom records are maintained in this system are aware of that fact through filing an application. However, inquiries may be addressed to the name and address to which application was submitted. Requests should include the individual's full name, position applied for, and location of job.
Individuals upon whom records are maintained in this system have supplied all information in this system. However, requests for access may be addressed to the name and address to which application was submitted.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the name and address to which application was submitted.
The individual upon whom the record is maintained.
None.
Consultant and Contractor Records—TVA.
People Lifestyle Unified System (PLUS) contains personal, employment, job, security restriction and training information. PLUS is located in HR & Accounting Solutions, TVA Knoxville, TN 37902–1499. The Contractor Workforce Management Software (IQ Navigator) for contractor time and expense reporting records is located at HR System Administration and Reporting, Chattanooga, TN 37402.
For contractors requiring unescorted access, records are located at TVA Nuclear Access Service, Chattanooga, TN 37402.
TVA business organizations for records on individuals who provide services under a TVA contract with an organization are kept in the files of that organization.
Payment records are located at the TVA Controller office: Knoxville, TN 37902–1499.
Records related to personal service contractors employed under the Comprehensive Employment and Training Act of 1973, Public Law 93–203, are located at the National Personnel Records Center, St. Louis, MO 63118.
Individuals who perform work for and/or provide services to TVA and who are not TVA employees or
Each organization maintains its contracts, records of the qualifications, performance, and evaluation of the contractor, and related correspondence. For public service employment program participants, Human Resources maintains information related to job placement such as test scores, interest inventories, and supervisor's evaluations. Payment information is maintained by the Controller.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Comprehensive Employment and Training Act, Public Law 93–203, 87 Stat. 839; Executive Order 11222; Executive Order 10450; Executive Order 10577; provisions of 5 U.S.C. applicable to employment with TVA; Internal Revenue Code.
The purpose of this system is to collect and maintain records related to TVA contractors and consultants, to support TVA's fiscal operations by recording contractor and consultant time, expenses and payroll; to record contractor and consultant personal, employment, security restrictions and clearances, facility access, and training information; and to otherwise support the management of TVA's contractors and consultants.
To transmit reports as requested to the Office of Personnel Management, pursuant to 5 U.S.C. 3323, Executive Orders 10577 and 10450, and other laws.
To report earnings information to the Internal Revenue Service and the Social Security Administration.
To respond to a request from a Member of Congress regarding the status of a contractor or consultant.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulations, or order issued pursuant thereto.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information; and to request information from private individuals if necessary to obtain information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
To transmit to the appropriate State contracting agency reports of hours worked by participants in the public service employment program, and to request reimbursement.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
To provide the following information to a prospective employer of a TVA or former TVA consultant or personal service contractor: Job descriptions, dates of employment, and reason for separation.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by TVA or another agency or entity) that rely upon the compromised information; and (3) the disclosure is made to such agencies, entities and persons is reasonably necessary to assist in connection with TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained in file folders and on automated data storage devices.
Records are indexed by name, Social Security number, or contract number.
Access to and use of these records is limited to persons whose official duties require such access. All filing systems are locked when unattended.
Records are maintained and disposed of in accordance with established TVA record retention schedules.
Senior Service Manager, HR & Accounting Solutions, TVA, Knoxville, TN 37902–1499. Manager, HR System Administration & Reporting, TVA, Chattanooga, TN 37402.
Individuals wishing to know if records on them are maintained in the system should address inquiries to the system manager named above. Requests shall include the individual's full name, employing or contracting organization, and whether the individual was a participant in the public service employment program. Social Security numbers are not required but may expedite TVA's response.
Individuals wishing to gain access to information on them in this system of records should contact the system manager named above. Access will not be granted to investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information, to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
Individual to whom the record pertains; educational institutions, former employers, and other reference sources; State employment services; supervisors and other TVA personnel or personnel records; medical officers; other Federal agencies.
In addition to the above sources, security/suitability investigatory files contain information from law enforcement agencies.
This system is exempt from subsections (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence, and to the extent that disclosure of testing or examination material would compromise the objectivity of fairness of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a(k)(5) and (6) and TVA regulations at 18 CFR 1301.24.
Nuclear Quality Assurance Personnel Records—TVA.
Unclassified.
Nuclear Quality Assurance, TVA, Chattanooga, TN 37402–2801. Copies of records for Quality Assurance Auditors/Assessors are maintained electronically by the Manager, Corporate Quality Assurance/designee, and are submitted and maintained in the TVA Nuclear Electronic Data Management System (EDMS).
Employees and former employees involved in quality assurance work.
Information related to the qualifications of employees.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Energy Reorganization Act of 1974, Public Law 93–438, 88 Stat. 1233 as implemented at Nuclear Regulatory Commission Regulatory Guides 1.58.
The purpose of this system is to collect and maintain records about TVA Nuclear Quality Assurance employees. These employees are responsible for providing confidence that the activities affecting quality during the design, construction, operation, and maintenance of TVA's nuclear facilities are accomplished in a manner to achieve compliance with TVA's established quality objectives and acceptance criteria. Information in the system is also used to respond to inspections or evaluations of the TVA Quality Assurance program.
To the Nuclear Regulatory Commission or its authorized representatives for inspection or evaluation of TVA Quality Assurance procedures.
To respond to a request from a Member of Congress regarding the status of an employee.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information; and to request information from private individuals if necessary to obtain information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained in electronic files.
Records are indexed by name.
Access to and use of these records is limited to those persons whose official duties require such access. All filing systems are locked when unattended.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
General Manager, Nuclear Quality Assurance, TVA, Chattanooga, TN 37402–2801.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Inquiries should include the individual's full name and employing organization.
Individuals who desire access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
The individual on whom the record is maintained; TVA personnel records.
This system of records is exempt from subsection (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. The exemption is pursuant to 5 U.S.C. 552a(k)(5) and TVA regulations at 18 CFR 1301.24.
Questionnaire-Land Use Surveys in Vicinity of Proposed or Licensed Nuclear Power Plant—TVA.
Unclassified.
Environmental Radiological Monitoring and Instrumentation, Western Area Radiological Laboratory (WARL) Facility, TVA, Muscle Shoals, AL 35662–1010.
Individuals having vegetable gardens, irrigated land, dairy cows, and milk goats within a five-mile radius of a proposed or licensed nuclear plant site.
Personal identifying information and information related to agriculture, milk consumption, water resources, and farm product value.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; National Environmental Policy Act, Public Law 91–190, 83 Stat. 852; Energy Reorganization Act of 1974, Public Law 93–438, 88 Stat. 1233.
This system is used to collect and maintain records concerning farming, gardening, and dairy operations in the areas surrounding proposed and operating nuclear plant sites. This information is used to prepare environmental evaluations and impact statements to assess the possible effects that such a plant might have on the production of crops and livestock in the area.
Information in this system of records is used in developing environmental evaluations and impact statements. Certain relevant but nonsensitive information may be disclosed in these statements.
Information may also be used:
In administrative and licensing proceedings, including the presentation of evidence and disclosure to opposing counsel in the course of discovery.
To disclose to any agency of the Federal Government having oversight or review authority with regards to TVA activities.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices, microfilm, microfiche, and in file folders.
Records are indexed by assigned number and aerial photo number and/or name of survey participant, plant site and year of survey.
Access to and use of these records is limited to persons whose official duties require such access. Security is provided by physical, administrative and computer system safeguards. Files are kept in secured facilities not accessible to unauthorized individuals or are locked when unattended.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, Environmental Radiological Monitoring and Instrumentation, TVA, Muscle Shoals, AL 35662–1010.
Individuals on whom information is maintained in this system are aware of that fact through response to the questionnaire. However, inquiries may be addressed to the system manager named above. Requests should include the individual's full name, address, and approximate date of survey.
Individuals who desire access to information about them in this system of records should contact the system manager named above. Requests should
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
Individuals to whom the record pertains; he nearest resident, to a distance of 5 miles, in each of the 16 compass sectors around each TVA nuclear site; farms with dairy cows or milk goats within a five mile radius of each site and additional dairy farms used as control locations for environmental monitoring; and individuals within a five mile radius of each site with home gardens meeting the survey criteria.
None.
Radiation Dosimetry Personnel Monitoring Records—TVA.
Unclassified.
Nuclear Operations, TVA, Chattanooga, TN 37402–2801.
Employees, former employees, and visitors who might be exposed or are exposed to radiation while in TVA installations.
Information on the magnitude of exposure at TVA installations, exposure prior to employment.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Energy Reorganization Act of 1974, Public Law 93–438, 88 Stat. 1233; 10 CFR parts 19, 20.
The purpose of this system is to fulfill TVA's legal obligation to record the exposure, or possible exposure, of individuals to radiation at TVA facilities and to report exposures to the Nuclear Regulatory Commission. This is information is used to maintain Occupational Dose records by the Nuclear Power Group for all persons monitored for occupational radiation exposure.
To the Nuclear Regulatory Commission for its use in evaluating TVA radiological control measures.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To health-related agencies, organizations, or professionals for the purpose of compiling vital health statistics, or conducting biomedical investigations as part of employee population health monitoring which includes routine clinical and epidemiological investigations.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices, microfilm, microfiche, and in file folders.
Records are indexed by individual name and Social Security number.
Access to and use of these records is limited to persons whose official duties require such access. Security is provided by physical, administrative and computer system safeguards. Files are kept in secured facilities not accessible to unauthorized individuals or are locked when unattended.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Radiation Protection Oversight, TVA, Chattanooga, TN 37402–2801.
Individuals should address inquiries to the system manager named above, or if a current employee, to the Radiological Control office at the TVA facility where employed. Requests should include the individual's full name, Social Security number and date of birth.
Individuals who desire access to information about them in this system of records should contact the system manager named above, or if a current employee, to the Radiological Control office at the TVA facility where employed. Requests should include the individual's full name, Social Security number and date of birth.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
Information in this system of records comes from the individual; previous licensees where the individual was monitored for radiation exposure; and TVA personnel conducting radiation monitoring programs.
None.
Retirement System Records—TVA.
Unclassified.
Retirement Management, TVA, 400 W. Summit Hill Drive, Knoxville, TN 37902–1499.
Active, retired, and former members of the TVA Retirement System; TVA employees and former employees who are members of the Civil Service Retirement System and the Federal Employees Retirement System; designated beneficiaries.
Personal identifying information; retirement, benefit, and investment information; related correspondence; and legal documents.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Internal Revenue Code.
The purpose of this system is to support the administration of TVA's retirement system, including the management and payment of pensions, investment accounts, and other retirement-related benefits and records. The system is used to provide retirement program registration, retirement benefit estimates, tax forms, benefit management and disbursement, and relevant information to TVA employees, former employees, and beneficiaries.
To report earnings to the Internal Revenue Service.
To disclose information to actuarial firms for valuation and projecting benefits.
To disclose information to the Medical Board of the TVA Retirement System for determinations related to disability retirement.
To certify insurance status to the Office of Personnel Management and the Office of Federal Employees' Group Life Insurance.
To respond to a request from a Member of Congress regarding the status of a system member.
To disclose information to auditing firms for use in auditing benefit calculations and financial statements.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information; and to request information from private individuals, if necessary, to obtain information relevant to a TVA decision within the purpose of this system of records.
To refer, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility of investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
To provide information to a Federal agency, in response to its request, in connection with the issuance of any benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To provide the following information on retirees to the TVA Retirees Association: Names, unique identification numbers assigned by the TVA Retirement System to each retiree, addresses, dates of birth, dates of termination of employment with TVA, retirement class (member, beneficiary, Civil Service, deferred), last official station, and dates of death (if applicable).
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To Contractors and subcontractors of TVA or the Retirement System who are provided records maintenance or other similar support service to the Retirement System.
To health-related agencies, organizations, or professionals for the purpose of compiling vital health statistics, or conducting biomedical investigations for employee population health monitoring which includes routine clinical and epidemiological investigations.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained in an electronic document management system.
Records are indexed by name and Social Security number.
Access to the electronic document management system requires a password and is limited to those persons whose official duties require such access.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Director, Retirement Management, TVA, 400 W. Summit Hill Drive, Knoxville, TN 37902–1499.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Inquiries should include the individual's full name, date of birth, and Social Security number.
Individuals who desire access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information maintained on them in this system should address inquiries to the system manager named above.
The individual on whom the record is maintained; TVA personnel and payroll records.
None.
Energy Program Participant Records—TVA.
Unclassified
Energy Right & Renewable Solutions, External Relations, P.O. Box 292409, Nashville, TN 37229–2409.
Individuals participating in the Energy Right programs.
Customer name, address, account number, meter number, telephone number, characteristics of their dwelling, including type of heating and cooling systems and number and kind of appliances; and other characteristics of study participants relevant to patterns of residential electrical use.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee.
The purpose of this system is to support the administration of the Energy Right program. Energy Right offers programs and products to help customers save energy and incentives, including rebates, to residential customers for reductions in their electric usage.
To power distributors participating in the program.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained in automated data storage devices and in file folders in locked file cabinets.
Records are indexed and retrieved by contractor name and invoice date.
Access to and use of these records is limited to those persons whose official duties require such access. All filing systems are locked when unattended.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Market & Program Analysis, Energy Right & Renewable Solutions, External Relations TVA, P.O. Box 292409, Nashville, TN 37229–2409.
Individuals about whom information is maintained in this system of records are aware of that fact through participation in the program. However, inquiries may be addressed to the system manager named above Request should include the individual's full name and address.
Requests for access may be directed to the system manager named above.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
The information in this system is solicited from the individual to whom the record pertains.
None.
OIG Investigative Records—TVA.
Unclassified
Office of the Inspector General, TVA, Knoxville, TN 37902–1499. Duplicate copies of certain documents may also be located in the files of other offices and divisions.
Individuals and entities who are or have been the subjects of investigations by the Office of the Inspector General (OIG), or who provide information in connection with such investigations, including but not limited to: Employees; former employees; current or former contractors and subcontractors and their employees; consultants; and other individuals and entities which have or are seeking to obtain business or other relations with TVA.
Information relating to investigations, including information provided by known or anonymous complainants; information provided by the subjects of investigations; information provided by individuals or entities with whom the subjects are associated (
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Executive Order 10450; Executive Order 11222; Hatch Act, 5 U.S.C. 7324–7327; 28 U.S.C. 535; Proposed Plan for the Creation, Structure, Authority, and Function of the Office of Inspector General, Tennessee Valley Authority, approved by the TVA Board of Directors on October 18, 1985; TVA Code XIII INSPECTOR GENERAL, approved by the TVA Board of Directors on February 19, 1987; Inspector General Act Amendments of 1988, Public Law 100–
The purposes of this system are to document the conduct and outcome of Office of the Inspector General (OIG) investigations; to report the results of investigations to other Federal agencies, other public authorities, or professional organizations which have the authority to bring criminal prosecutions or civil or administrative actions, or to impose other disciplinary sanctions; and to serve as a repository of information necessary to fulfill OIG reporting requirements.
To refer, where there is an indication of a violation of statute, regulation, order, or similar requirement, whether criminal, civil, or regulatory in nature, to the appropriate entity, including Federal, State, or local agencies or other entities charged with enforcement, investigative, or oversight responsibility.
To provide information to a Federal, State, or local entity (1) in connection with the hiring or retention of an individual, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting entity to the extent that the information is relevant to a decision on such matters, or (2) in connection with any other matter properly within the jurisdiction of such other entity and related to its prosecutorial investigatory, regulatory, administrative, or other responsibilities.
To the appropriate entity, whether Federal, State, or local, in connection with its oversight or review responsibilities or authorized law enforcement activities.
To respond to a request from a Member of Congress regarding an individual, or to report to a Member on the results of investigations, audits, or other activities of OIG.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To the subjects of an investigation and their representatives in the course of a TVA investigation of misconduct; to any other person or entity that has or may have information relevant to the investigation to the extent necessary to assist in the conduct of the investigation, such as to request information.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To a consultant, private firm, or individual who contracts or subcontracts with TVA, to the extent necessary to the performance of the contract.
To request information from a Federal, State, or local agency maintaining civil, criminal, or other relevant or potentially relevant information; and to request information from private individuals or entities, if necessary, to acquire information pertinent to the hiring, retention, or promotion of an employee; the issuance of a security clearance; the conduct of a background or other investigation; or other matter within the purposes of this system of records.
To the public when: (1) The matter under investigation has become public knowledge, or (2) when the Inspector General determines that such disclosure is necessary (a) to preserve confidence in the integrity of the OIG investigative process, or (b) to demonstrate the accountability of TVA officers, or employees, or other individuals covered by this system; unless the Inspector General determines that disclosure of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
To the news media and public when there exists a legitimate public interest (
To members of the Council of the Inspectors General on Integrity and Efficiency, for the preparation of reports to the President and Congress on the activities of the Inspectors General.
To members of the Council of the Inspectors General on Integrity and Efficiency, the Department of Justice, the Federal Bureau of Investigation, or the U.S. Marshals Service, as necessary, for the purpose of conducting qualitative assessment reviews of the investigative operations of TVA OIG to ensure that adequate internal safeguards and management procedures are maintained.
To appropriate agencies, entities, and persons when (a) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) TVA has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by TVA or another agency or entity) that rely upon the compromised information; and (c) The disclosure made to such agencies, entities and persons is reasonably necessary to assist in connection with TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices, hard-copy printouts, and in file folders.
Records are indexed and retrieved by individual name or case file number.
Access to and use of records is limited to authorized staff in OIG and to other authorized officials and employees of TVA on a need-to-know basis as determined by OIG management. Security will be provided by physical, administrative, and computer system safeguards. Files will be kept in secured facilities not accessible to unauthorized individuals.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Inspector General, TVA, Knoxville, TN 37902–1499.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(k)(2) and TVA regulations at 18 CFR 1301.24.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(k)(2) and TVA regulations at 18 CFR 1301.24.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(k)(2) and TVA regulations at 18 CFR 1301.24.
This system is exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) pursuant to 5 U.S.C. 552a(k)(2) and TVA regulations at 18 CFR 1301.24. This system is exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), and (g) of 5 U.S.C. 552a (section 3 of the Privacy Act of 1974) pursuant to 5 U.S.C. 552a(j)(2) and TVA regulations at 18 CFR 1301.24.
Call Detail Records—TVA.
Unclassified.
Data Center, TVA, Chattanooga, TN 37402–2801.
TVA employees, contractor personnel, and other individuals who make telephone calls from or charge telephone calls to TVA telephones.
Records relating to use of TVA telephones; records relating to long distance telephone calls charged to TVA; records relating to cellular telephone calls charged to TVA; records indicating assignment of telephone numbers and authorization numbers; records relating to locations of TVA telephones.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee.
The purpose of this system is to maintain call records. Call records are used to maintain a log for auditing or billing purposes. These records could be used to trace or identify call data regarding a caller threatening the safety of the public, TVA employees, or TVA property; as documentation to rebut costs provided on a monthly bill from the telephone carrier; to determine any employee conduct issues, such as repeated personal calls over a period of time; or to verify calls to or from a number for litigation purposes.
To respond to a request from a Member of Congress regarding an individual.
To provide to the appropriate entity, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To refer, where there is an indication of a violation of statute, regulation, order, or similar requirement, whether criminal, civil, or regulatory in nature, to the appropriate entity, including Federal, State, or local agencies, or other entities charged with enforcement, investigative, or oversight responsibility.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an individual, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant to the requesting agency's decision on that matter.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To a telecommunications company as well as to other TVA contractors providing telecommunications support to permit servicing the account.
To TVA contractors engaged at TVA's direction in investigations of abuse of TVA telephone service or other related issues.
To TVA contractors and contractor personnel to determine individual responsibility for telephone calls.
To TVA contractors in connection with amounts due TVA for telecommunications services provided to them.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained in file folders and on automated data storage devices.
Records are retrieved by name, authorization number, or telephone number.
Access to and use of these records is limited to persons whose official duties require such access. Files are kept in secured facilities. Automated data is secured through physical and system-based safeguards.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, IT Vendor Management, TVA, Chattanooga, TN 37402–2801.
Individuals wishing to learn if information on them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name, employing division, job title, and official TVA telephone number and authorization number.
Individuals seeking to gain access to information about them in this system of records should contact the system manager named above. Requests should include the individual's full name, employing division, job title, and official TVA telephone number and authorization number.
Individuals desiring to contest or amend information about them maintained in this system should direct
TVA Telecommunication Control System; telecommunications companies with which TVA contracts for telephone service; telephone and authorization number assignment records; results of administrative inquiries relating to assignment of responsibility for placement of specific long distance calls.
None.
Project/Tract Files—TVA.
Unclassified.
Realty, GIS, and Land Records, TVA, Chattanooga, TN 37402–2801, and secured off-site storage facility.
Individuals or business entities from/to whom TVA is in the process of or has (1) acquired, transferred, or sold land or landrights, (2) made payment for construction, maintenance, or other damage to real property, or (3) made payment for relocation assistance. A project/tract file may name more than one individual and/or business entity involved in a transaction. (The system records that pertain to individuals and reflect personal information are subject to the Privacy Act. Noncovered records include public information and records on corporations and other business entities.)
Maps, property descriptions, appraisal reports, and title documents on real property; reports on contracts and transaction progress; contracts and options; records of investigations, claims, and/or payments related to land transactions, damage restitution, and relocation assistance; related correspondence and reports.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; Public Law 87–852, 76 Stat. 1129; Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended.
To establish and maintain a system for recording parcel of land acquisitions and the disposal of land and land rights by TVA.
To respond to a request from a Member of Congress regarding an individual.
To lienholders as necessary to secure subordinations or releases of liens or to protect lienholders rights.
To county clerk and register of deeds offices to document and put on record the title acquired by TVA.
To landowners, prospective landowners, claimants, or trespassers to establish or cure titles, to resolve encroachments, to resolve boundary disputes, or to resolve questions about easement rights or the application of Section 26a of the TVA Act 16 U.S.C. 831y–1.
To contractors to secure appraisals and title abstracts.
To request information from a Federal, State, or local agency or from private individuals, as necessary, to obtain information relevant to a TVA decision to acquire or dispose of property or to pay claims or make payments related to land transactions, damage restitution, and relocation assistance.
To refer, where there is an indication of a violation of statute, regulation, order, or similar requirement, whether criminal, civil, or regulatory in nature, to the appropriate entity, including Federal, State, or local agencies, or other entities charged with enforcement, investigative, or oversight responsibility.
To provide information to a Federal agency, in response to its request, in connection with the hiring or retention of an individual, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant to the requesting agency's decision on that matter.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To provide to the appropriate entity, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To report any required information to Federal, State, and local taxing authorities as required by law.
To genealogical researchers, relevant portions of maps, descriptions, appraisals, and title documents on real property, after 20 years, to establish historical records.
To archaeological researchers, relevant portions of maps, descriptions, appraisals, and title documents on real property, after 20 years, to reconstruct historical settings.
To respond to a request from a Member of Congress regarding the status of a matter relating to a specific project or tract.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on registers, aperture cards, microfilm, in file folders, and/or on automated data storage devices.
Records are primarily indexed by tract number and project symbol. Records may also be retrieved by cross-index reference to individual and business entity names.
Access to and use of these records is limited to persons whose official duties require such access. Files are kept in secured facilities. Remote access facilities are secured through physical and system-based safeguards.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Senior Manager, Realty GIS, and Land Records TVA, 1101 Market Street, BR–4B–C Chattanooga, TN 37402–2801.
Individuals wishing to know whether information about them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name and, to the extent known, any project/tract identifying information such as the project name, tract number, address, or related data.
Individuals seeking to gain access to information about them in this system of records should contact the system manager named above. Requests should include the individual's full name, and to the extent known, any project/tract identifying information such as project name, tract number, address, or related data. Access will be granted only to individually segregable personal information about the requester and to segregable nonpersonal information in accordance with TVA regulations on release of records relating to negotiations in progress involving contracts or agreements for the acquisition or disposal of real or personal property by TVA prior to the conclusion of such negotiations.
Individuals desiring to contest or amend information about them maintained in this system should direct their requests to the system manager named above.
Public records and directories, landowners, tenants, and other individuals and business entities (including financial institutions) having an interest in or knowledge related to land ownership, appraisal, or title history; TVA personnel and contractors including independent appraisers and commercial title companies.
None.
Section 26a Permit Application Records—TVA.
Unclassified.
For applications involving construction of facilities located on TVA reservoirs, such as boathouses, piers, docks, launching ramps, marine railways, beaches, utilities, and ground improvements, the records are maintained in the following locations: Gray Regional Office, TVA, (Boone, Bristol Project Fort Patrick Henry, South Holston, Watauga, and Wilbur Reservoirs)) 106 Tri-Cities Business Park Drive, Gray Tennessee 376615
Morristown Regional Office, TVA, (Cherokee, Douglas, Nolichucky, French Broad, Holston and Norris Reservoirs) 3726 E. Morris Boulevard, Morristown, Tennessee 37813–1270 Lenoir City Regional Office, TVA, (Great Falls, Fort London, Melton Hill, Norris, Tellico, Fontana, and Watts Bar Reservoirs), 260 Interchange Park Drive, LCB 1A–LCT, Lenoir City, Tennessee 37772–5664
Chattanooga Regional Office, TVA, (Chickamauga and Nickajack Reservoirs), 4601 N. Access Road, Bldg. B, Chattanooga, Tennessee 37402–2801
Murphy Regional Office, TVA (Apalachia, Blue Ridge, Chatuge, Hiwassee, Nottely, and the Ocoee Reservoirs), 4800 US Highway 64 West, Suite 102, Murphy, North Carolina 28906
Guntersville Regional Office, TVA, (Guntersville, Normandy and Tims Ford Reservoirs), 3696 Alabama Highway 69, CAB 1A–GVA, Guntersville, Alabama 35976–7196
Muscle Shoals Regional Office, TVA (Bear Creek, Cedar Creek, Duck River, Elk River, Little Bear Creek, Pickwick, Upper Bear Creek, Wheeler, and Wilson Reservoirs), Post Office Box 1010, MPB 1H, Muscle Shoals, Alabama 35662–1010
Paris Regional, Office, TVA (Beech River Project, Kentucky, and Lower Duck Reservoirs), 2835–A East Wood Street, Paris, Tennessee 38242–5948
This system includes individuals who have filed a Section 26a application for approval of construction of such structures as boat ramps, docks, bridges, and dams located along, across, or in the Tennessee River and its tributaries. Also included in this system may be individuals whose structures do not have Section 26a permits, or whose approved structures have deteriorated so as to pose a threat to navigation, flood control, public lands or reservations.
Section 26a permit applications made by individuals, businesses and industries, utilities, and Federal, State, county and city Government agencies.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee.
Section 26a of the Tennessee Valley Authority Act of 1933, as amended, requires that TVA review and approve plans for the construction, operation, and maintenance of any dam, appurtenant works, or other obstruction affecting navigation, flood control, or public lands or reservations across, along, or in the Tennessee River or any of its tributaries. The information collected is used to assess the impact of the proposed project on the statutory TVA programs and the environment and determine if the project can be approved. Rules on the application for review and approval of such plans are published in 18 CFR part 1304, Approval of Construction in the Tennessee River System and Regulation of Structures.
To State or other Federal agencies for use in program evaluation, providing assistance to program participants, or engaged at TVA's direction in providing support services to the program, to the extent necessary to the performance of those services.
To TVA consultants, contractors, subcontractors or individuals who contract or subcontract with TVA, who are engaged in studies and evaluation of TVA's administration or other matters involving its Section 26a program or who are providing support services to the program, to the extent necessary to the performance of the contract.
To provide information to a Federal, State, or local entity in response to its request, in connection with the letting of a contract, or issuance of a license, grant, or other benefit by the requesting entity to the extent that the information is relevant and necessary to the requesting agency's decision on such matters.
To respond to a request from a Member of Congress regarding the status of a specific application.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To refer, where there is an indication of a violation of statute, regulation, order, or similar requirement, whether criminal, civil, or regulatory in nature, to the appropriate entity, including Federal, State, or local agencies or other
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices, in electronic format, on microfilm, and in hard copy files.
Records may be retrieved by applicant name, land tract number, or Section 26a application number, stream location, reservoir, county, or subdivision. Records in field offices are interfiled with land tract records and are retrieved by land tract number.
Access to and use of these records is limited through physical, administrative, and computer system safeguards to those persons whose official duties require such access.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Vice President, Natural Resources and Real Property Services, TVA 400 West Summit Hill Drive, Knoxville, TN 37902–1499.
Individuals seeking to learn if information on them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name. A land tract number, Section 26a permit application number, stream location or legal property description is not required, but may expedite TVA's response.
Individuals seeking access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
Information in this system is solicited from the individual to whom the record pertains. Information may also be obtained from other Federal, State, county or city Government agencies; public records and directories; landowners, tenants, and other individuals and business entities, including financial institutions, having an interest in or knowledge related to land ownership, appraisal, or title history; and TVA personnel and contractors including independent appraisers and commercial title companies.
None.
U.S. TVA Security Records—TVA.
Unclassified.
U.S. TVA Police and Emergency Management, TVA, 400 West Summit Hill Drive, WT–2D, Knoxville, Tennessee 37902–1499.
A. Individuals who relate in any manner to official U.S. TVA Police investigations into incidents or events occurring within the jurisdiction of TVA, including but not limited to suspects, victims, witnesses, close relatives, medical personnel, and associates who have relevant information to an investigation.
B. Individuals who are the subject of unsolicited information or who offer unsolicited information, and law enforcement personnel who request assistance and/or make inquiries concerning records.
C. Individuals including, but not limited to, current or former employees; current or former contractor and subcontractor personnel; visitors and other individuals that have or are seeking to obtain business or other relations with TVA; individuals who have requested and/or have been granted access to TVA buildings or property, or secured areas within a building or property.
D. Individuals who are the subject of research studies including, but not limited to, crime profiles, scholarly journals, and news media references.
E. Individuals who respond to emergency situations at TVA.
Information related to case investigation reports on all forms of incidents or events, visitor and employee registers, TVA forms authorizing access for individuals into TVA buildings or secured areas within a building, and historical information on an individual's building access or denial of access; U.S. TVA Police on incidents or events; visitor and employee registers, TVA forms, or permits authorizing access for individuals into TVA buildings, property, or secured areas within buildings or property, and historical information on an individual's access or denial of access within buildings or property; emergency personnel information data bases; permit applications under the Archaeological Resources Protection Act (ARPA); risk, security, and emergency preparedness, assessments conducted by the U.S. TVA Police on facilities, property, or officials; research studies, scholarly journal articles, textbooks, training materials, and news media references of interest to U.S. TVA personnel; an index of all detected trends, patterns, profiles and methods of operation of known and unknown criminals whose records are maintained in the system; an index of the names, address, and contact telephone numbers of professional individuals and organizations who are in a position to furnish assistance to the U.S. TVA Police; an index of public record sources for historical, statistical, geographic, and demographic data; and an alphabetical name index of all individuals whose records are maintained in the system.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; 5 U.S.C. 552a; and 28 U.S.C. 534.
The purpose of this system is to collect and maintain records of processing of personnel security-related
To the appropriate official agency, whether Federal, State, or local, where there is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
In litigation where TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, information may be disclosed to respond to process issued under color of authority of a court of competent jurisdiction.
To provide information to a Federal, State, or local entity in connection with the hiring or retention of an employee, the letting of a contract, or issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on that matter, or in connection with any other matter properly within the jurisdiction of such other agency and related to its responsibilities to prosecute, investigate, regulate, and administrate, or other responsibilities.
To any Federal, State, local or foreign Government agency directly engaged in the criminal justice process where access is directly related to a law enforcement function of the recipient agency in connection with the tracking, identification, and apprehension of persons believed to be engaged in criminal activity.
To an organization or individual in both the public and private sector pursuant to an appropriate legal proceeding or if deemed necessary, to elicit information or cooperation from the recipient for use by TVA in the performance of an authorized activity.
To an organization or individual in the public or private sector where there is reason to believe the recipient is or could become the target of a particular criminal activity or conspiracy and to the extent the information is relevant to the protection of life or property.
To the news media and general public where there exists a legitimate public interest such as obtaining public or media assistance in the tracking, identifying, and apprehending of persons believed to be engaged in repeated acts of criminal behavior; notifying the public and/or media of arrests; protecting the public from imminent threat to life or property where necessary; and disseminating information to the public and/or media to obtain cooperation with research, evaluation, and statistical programs.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in proceedings under the TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures.
To appropriately respond to congressional inquiries on behalf of constituents.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are stored manually as hard copies in a secured area and/or in computerized data storage devices at the U.S. TVA offices in Knoxville, TN. Information maintained in computerized form may be stored in memory, on disk storage, on computer tape, or on computer printed listings.
On-line computer access to U.S. TVA Police files is achieved by using the following search descriptors:
A. The names of individuals, their birth dates, physical descriptions, social security numbers, and other identification numbers, such as incident and case reports.
B. As previously described, summary variables contained on incident and call are submitted to the U.S. TVA Police.
C. Key word citations to research studies, scholarly journals, textbooks, training materials, and news media references.
Records are maintained in restricted areas and are accessed only by U.S. TVA Police employees. Security is provided by a comprehensive program of physical, administrative, personnel, and computer system safeguards. Access to and use of records is limited to authorized U.S. TVA Police personnel and to other authorized officials and employees of TVA on a need-to-know basis. Sensitive or classified information in electronic form is encrypted prior to transmission to ensure confidentiality, security, and to prevent interception and interpretation.
Records are maintained and disposed of in accordance with established TVA records retention schedules. As deemed necessary, certain records may be subject to restricted examinations by 44 U.S.C. 2104.
Director, TVA Police and Emergency Management, TVA, 400 West Summit Hill Drive, WT–2D, Knoxville, TN 37902–1499.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k) (2) and TVA regulations at 18 CFR 1301.24.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) and TVA regulations at 18 CFR 1301.24.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) and TVA regulations at 18 CFR 1301.24.
This system of records is exempt from this requirement pursuant to 5 U.S.C. 552a (j)(2) and (k)(2) and TVA regulations at 18 CFR 1301.24.
This system is exempt from subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f) of 5 U.S.C. 552a
Wholesale, Retail, and Emergency Data System—TVA.
Unclassified.
External Relations, Nashville, TN 37229–2409, and Customer Service Centers.
TVA wholesale and retail customers' key personnel and governing bodies.
Name, address, telephone number, emergency numbers, interests, key dates, associates, immediate family members, and credentials of TVA's wholesale and retail customers and their officers and other personnel.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee.
The purpose of this system is to maintain TVA wholesale and retail customers' key personnel and emergency information.
To the appropriate agency, whether Federal, State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To respond to a referral from a Member of Congress.
To contact customer personnel during system emergencies.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Records are maintained on automated data storage devices. Hard copies of power distributor managers' key information are given to TVA staff working with distributor managers.
Records are organized by wholesale and retail customer name and indexed by individual's name.
Access to and use of these records is limited to persons whose official duties require such access. Files are kept in a secured database. Access requires a login ID and password.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
General Manager, Customer Strategy and Support, TVA, 26 Century Blvd., Suite 100N, Nashville, TN 37214
Individuals seeking to learn if information on them is maintained in this system of records should address inquiries to the system manager named above. Requests should include the individual's full name and employer.
Individuals seeking access to information about them in this system of records should contact the system manager named above.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the system manager named above.
The information for this system is obtained from TVA's wholesale and retail customers and their personnel.
None.
Nuclear Access Authorization and Fitness for Duty Records-TVA
Unclassified
Nuclear Access Services, TVA, Chattanooga, Tennessee 37402–2801; various contractor locations.
Current and former TVA employees, contractors, applicants for employment, applicants for employment by contractors who have been employed or sought to be employed in TVA Nuclear.
Education; qualification; work history; residence history citizenship; employment and military history; financial history; spouse/cohabitation and relatives; personal references; information received from various law enforcement agencies, federal, state and local; fingerprints; background investigation reports; psychological assessment files, drug and alcohol testing schedules and results; personnel identifying information; and additional security investigation data.
Tennessee Valley Authority Act of 1933, 16 U.S.C. 831–831ee; E.O. 9397; E.O. 12038; E.O. 13467; Atomic Energy Act of 1954 as amended; Title II of the Energy Reorganization Act of 1974; 10 CFR Pt. 26; 10 CFR 72.56, 73.57.
The purpose of this system is to safely provide unescorted access to TVA's nuclear sites. The Nuclear Access Authorization and Fitness for Duty Records allow TVA to provide proper consideration when providing, maintaining, or denying unescorted access to sensitive areas in and around its nuclear sites.
To respond to a request from a member of Congress regarding the status of an employee, former employee or applicant made at the request of that individual.
To refer, where the is an indication of a violation or potential violation of law, whether criminal, civil, or regulatory in nature, to the appropriate agency, whether Federal, State, or local, charged with the responsibility if investigating and prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation or order issued pursuant thereto.
To request from any pertinent source directly or through a TVA contractor engaged at TVA's direction, information relevant to a TVA decision concerning the hiring, retention, or promotion of an employee, the issuance of a security clearance, or other decision within the purposes of this system of records.
To provide information or disclose to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the letting of a contract or the issuance of a license, grant, or other benefit by the requesting agency to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
To another licensee, contractor or vendor or their authorized representatives legitimately seeking the information as required by this section for unescorted access decisions and who have obtained a signed release from the individual.
To representatives of the NRC to determine compliance with the applicable regulations and law.
To the appropriate agency, whether Federal State, or local, in connection with its oversight review responsibilities or authorized law enforcement activities.
To the parties or complainants, their representatives, and impartial referees, examiners, administrative judges, or other decision makers in the proceedings under TVA grievance adjustment procedures, Equal Employment Opportunity procedures, Merit Systems Protection Board, or similar procedures, but only to the extent such records document processes or procedures used in making access determinations.
To those licensee representatives who have a need to have access to the information in performing assigned duties including audits of licensee's, contractor's, and vendors programs, determining clearance or access authorization eligibility, and reviewing access authorization determinations on appeal.
In litigation to which TVA is a party or in which TVA provides legal representation for a party by TVA attorneys or otherwise, for any use for any purpose including the presentation of evidence and disclosure in the course of discovery. In all other litigation, to respond to process issued under color of authority of a court of competent jurisdiction.
To persons deciding matters on review or appeal.
To appropriate agencies, entities, and persons when (1) TVA suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) TVA 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 TVA 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 TVA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
This section does not authorize the licensee, contractor or vendor to withhold evidence of criminal conduct from law enforcement officials.
Information is stored in hard copy files or electronically in the electronic document management system (EDMS) system.
Records are indexed by name and employee Social Security number
Access to and use of these records is limited to those persons whose official duties require such access and with the appropriate background investigation in accordance with 10 CFR 73.22. All filing systems are located in a secured area.
Records are maintained and disposed of in accordance with established TVA records retention schedules.
Manager, Nuclear Access and Fitness for Duty, TVA, Chattanooga, Tennessee, 37402–2801
Individuals wishing to learn if information on them is maintained in this system of records should address inquires to the Manager, Nuclear Access and Fitness for Duty, TVA, Chattanooga, Tennessee, 37402–2801. Requests should include the individual's full name, and date of birth. A Social Security Number is not required but may expedite TVA's response; additionally, an Employee Identification Number may be included.
Individuals seeking to gain access to information about them in this system of records should contact the Manager, Nuclear Access and Fitness for Duty, TVA, Chattanooga, Tennessee 37402–2801. Requests should include the individual's full name and date of birth. A Social Security Number is not required but may expedite TVA's response; additionally an Employee Identification Number may be included. Access will not be granted to investigatory material compiled solely for the purpose of determining access authorization to the extent that the disclosure of such material would reveal the identity of a source who furnished the information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. Access will not be granted to testing or examination material to the extent such disclosure would compromise the objectivity or fairness of the testing or examination process or would compromise business sensitive or Trade Secrets Act material.
Individuals desiring to contest or amend information about them maintained in this system should direct their request to the Manager, Nuclear Access and Fitness for Duty, TVA, Chattanooga, Tennessee 37402–2801.
Individual to whom the record pertains, educational institutions, former employees, and other reference sources, Federal, state, and local law enforcement agencies, physicians and psychologists, military and credit agencies.
This system is exempt from subsections (d); (e)(4)(H); and (f)(2), (3) and (4) of 5 U.S.C. 522a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, and to the extent that disclosure of testing or examination material would compromise the objectivity or fairness of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a (k)(5) and (6).
U.S. Citizenship and Immigration Services, Department of Homeland Security; Employment and Training Administration, and Wage and Hour Division, Labor.
Interim final rule; request for comments.
The Department of Homeland Security (DHS) and the Department of Labor (DOL) are jointly issuing 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 interim final rule establishes the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H–2B status. We are also issuing regulations to provide for increased worker protections for both United States (U.S.) and foreign workers. DHS and DOL are issuing simultaneously with this rule a companion rule governing the methodology to set the prevailing wage in the H–2B program.
This interim final rule is effective April 29, 2015. Interested persons are invited to submit written comments on this interim final rule on or before June 29, 2015.
You may submit comments, identified by Regulatory Information Number (RIN) 1205–AB76, by any one of the following methods:
•
•
Please submit your comments by only one method. Comments received by means other than those listed above or received after the comment period has closed will not be reviewed. The Departments will post all comments received on
Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Departments encourage the public to submit comments through the
For further information on 8 CFR part 214, contact Steven W. Viger, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW., Washington, DC 20529–2060; Telephone (202) 272–1470 (this is not a toll-free number).
For further information on 20 CFR part 655, subpart A, contact William W. Thompson, II, Acting 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.
The Immigration and Nationality Act (INA) establishes the H–2B nonimmigrant classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if 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), INA section 101(a)(15)(H)(ii)(b). In accordance with the INA and as discussed in detail in this preamble, the Department of Homeland Security (DHS) consults with the Department of Labor (DOL) with respect to the H–2B program, and DOL provides advice on whether U.S. workers capable of performing the temporary services or labor are available.
This interim final rule, which is virtually identical to the 2012 final rule that DOL developed following public notice and comment, improves DOL's ability to determine whether it is appropriate to grant a temporary employment certification. For reasons described in further detail below, DOL never implemented the 2012 final rule; as a result, this rulemaking contains a number of improvements to the temporary employment certification process that was in place on March 4, 2015. This interim final rule expands the ability of U.S. workers to become aware of the job opportunities in question and to apply for opportunities in which they are interested. For example, this interim final rule includes new recruitment and other requirements to broaden the dissemination of job offer information (such as by introducing the electronic job registry and the possibility of additional required contact with community-based organizations). The interim final rule also requires the job offer to remain open to U.S. workers until 21 days before the employer's start date of need, which provides a longer application period that ends closer to the date of need than was previously required. The interim final rule also reverts back to the compliance-based certification model that had been used prior to the 2008 final rule, rather than continuing to use the attestation model. Finally, the interim final rule also adopts an employer registration process that requires employers to demonstrate their temporary need for labor or services before they apply for a temporary labor certification, which expedites the certification process; additionally, the resulting registration may remain valid for up to three years, thereby shortening the employer's certification process in future years.
The interim final rule also provides a number of additional worker protections, such as increasing the number of hours per week required for full-time employment and requiring that U.S. workers in corresponding employment receive the same wages and benefits as the H–2B workers. It also requires that employers must guarantee employment for a total number of work hours equal to at least three-fourths of the workdays in specific periods for both H–2B workers and workers in corresponding employment. The interim final rule requires employers to pay visa and related fees of H–2B workers, and it requires employers to pay the inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period. Finally, it prohibits employers from retaliating against employees for exercising rights under the H–2B program.
The interim final rule also contains a number of provisions that will lead to increased transparency. It requires employers to disclose their use of foreign labor recruiters in the solicitation of workers; to provide workers with earnings statements, with hours worked and offered and deductions clearly specified; to provide workers with copies of the job order; and to display a poster describing employee rights and protections. The Departments believe that these procedures and additional worker protections will lead to an improved temporary employment certification process.
Summing the present value of the costs associated with this rulemaking in Years 1–10 results in total discounted costs over 10 years of $9.24 million to $10.58 million (with 7 percent and 3 percent discounting, respectively).
The INA establishes the H–2B nonimmigrant classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if 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), INA section 101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing employer (H–2B employer) to petition DHS for classification of the prospective temporary worker as an H–2B nonimmigrant.
Pursuant to the above-referenced authorities, DHS has promulgated regulations implementing the H–2B program.
USCIS examines H–2B petitions for compliance with a range of statutory and regulatory requirements. For instance, USCIS will examine each petition to ensure,
DHS has implemented the statutory protections attendant to the H–2B program, by regulation.
Accordingly, DHS regulations require that an H–2B petition for temporary employment in the United States must be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).
DHS relies on DOL's advice in this area, as DOL is the appropriate government agency with expertise in labor questions and historic and specific expertise in addressing labor protection questions related to the H–2B program. This advice helps DHS fulfill its statutory duty to determine, prior to approving an H–2B petition, that unemployed U.S. workers capable of performing the relevant service or labor cannot be found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS has therefore made DOL's approval of a temporary labor certification a condition precedent to the acceptance of the H–2B petition. 8 CFR 214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL temporary labor certification and other required evidence, USCIS may adjudicate an employer's complete H–2B petition.
Consistent with the above-referenced authorities, since at least 1968,
As discussed above, DHS has determined that the most effective implementation of the statutory labor protections in the H–2B program requires that DHS consult with DOL for its advice about matters with which DOL has unique expertise, particularly questions about testing the U.S. labor market and the methodology for setting the prevailing wage in the H–2B program. The most effective method for DOL to provide this consultation is by the agencies setting forth in regulations the standards that DOL will use to provide that advice. These rules set the standards by which employers demonstrate to DOL that they have tested the labor market and found no or insufficient numbers of qualified, available U.S. workers, and set the standards by which employers demonstrate to DOL that the offered employment does not adversely affect U.S. workers. By setting forth this structure in regulations, DHS and DOL ensure the provision of this advice by DOL is consistent, transparent, and provided in the form that is most useful to DHS.
In addition, effective January 18, 2009, pursuant to 8 U.S.C. 1184(c)(14)(B), INA section 214(c)(14)(B), DHS transferred to DOL its enforcement authority for the H–2B program.
As discussed in greater detail below, DOL's authority to issue its own legislative rules to carry out its duties under the INA has been challenged in litigation. On April 1, 2013, the U.S. Court of Appeals for the Eleventh Circuit upheld a district court decision that granted a preliminary injunction against enforcement of the 2012 H–2B rule, 77 FR 10038, on the ground that the employers were likely to prevail on their allegation that DOL lacks H–2B rulemaking authority.
To ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL (the Departments), together, are issuing this interim final rule. By proceeding together, the Departments affirm that this rule is fully consistent with the INA and implementing DHS regulations and is
In 2008, DOL issued regulations governing DOL's role in the H–2B temporary worker program. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule). The 2008 rule established, among other things, the framework for DOL to receive, review and issue H–2B labor certifications. The 2008 rule also established a methodology for determining the wage that a prospective H–2B employer must pay, the recruitment standards for testing the domestic labor market, and the mechanism for processing prevailing wage requests.
On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in
In response to the vacatur and 30-day compliance order in
On March 4, 2015, the U.S. District Court for the Northern District of Florida, which previously had vacated DOL's 2012 H–2B rule and enjoined its enforcement in
At the time of the
DHS is charged with adjudicating petitions for a nonimmigrant worker (commonly referred to as Form I–129 petitions or, in this rule, “H–2B petitions”), filed by employers seeking to employ H–2B workers, but, as discussed earlier, Congress directed the agency to issue its decisions relating to H–2B petitions “after consultation with appropriate agencies of the Government.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1). Legacy INS and now DHS have historically consulted with DOL on U.S. labor market conditions to determine whether to approve an employer's petition to import H–2B workers.
DOL has fulfilled its consultative role in the H–2B program through the use of legislative rules to structure its advice to legacy INS and now DHS for several decades.
As with the two weeks in March 2015, the Departments are again facing the prospect of experiencing another program hiatus if and when the temporary stay expires on or before May 15, 2015. DOL's 2008 rule is the only comprehensive mechanism in place for DOL to provide advice to DHS because the 2008 rule sets the framework, procedures, and applicable standards for receiving, reviewing, and issuing H–2B prevailing wages and temporary labor certifications. The 2008 rule sets the recruitment standards for testing the domestic labor market and provides the rules for processing prevailing wage requests. DHS is precluded by its own regulations from accepting any H–2B petition without a temporary labor certification from DOL.
The APA authorizes agencies to issue a rule without notice and comment upon a showing of good cause. 5 U.S.C. 553(b)(B). The APA's good cause exception to public participation applies upon a finding that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). Although the term is not defined in the APA, the accompanying Senate report described “impracticable” as “a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings.” S. Rep. No. 752, 79th Cong., 1st Sess. 200 (1945). The “ `[p]ublic interest' supplements . . . `impracticable' [and] requires that
Under the APA's “good cause” exception to notice and comment, an agency can take steps to minimize discontinuity in its program after the court has vacated a rule.
As an initial matter, DOL has already had to cease operating the H–2B program for two weeks in March 2015, and faces this prospect again at the expiration of the stay on or before May 15, 2015. Given the expectation of another regulatory void, were the Departments to follow the standard APA procedures, resumption of the H–2B program would be substantially delayed by the Departments' issuance of a notice of proposed rulemaking and request for comment, the time-consuming process involved in analyzing and responding to comments, and the publication of a final rule. Despite the fact that the statutory cap on H–2B visas has been reached for FY 2015, employers would normally now start the process for applying for temporary employment certifications for FY 2016 by: Filing requests for Prevailing Wage Determinations (PWDs); performing the required recruitment of U.S. workers; and submitting applications for temporary employment certification. In the absence of a rule, employers would not be able to take such actions.
Moreover, the on-again-off-again nature of H–2B program operations has created substantial confusion, uncertainty and disarray for the agencies and the regulated community. The original vacatur order in
This uncertainty and confusion is particularly applicable to DOL's ability to enforce rights and obligations under the H–2B program. Even if the temporary stay were to continue beyond May 15 or the court in
Accordingly, even if the
Finally, the Departments also have good cause to forego notice and comment because, as explained below, this rule has already been subject to one full round of notice and comment. On March 18, 2011, DOL proposed a regulation and sought public input on all issues addressed in this interim final rule during a 60-day comment period. 76 FR 15130. As noted below, DOL received over 800 comments from a wide variety of stakeholders, and adapted the final rule in 2012 based on those comments. 77 FR 10038 (Feb. 21, 2012). The public has by now had notice and an opportunity to comment on virtually every provision in this interim final rule. The only new provisions in this interim final rule involve transition filing procedures at § 655.4, which are necessary to instruct those program users who have already begun the employment certification process on the procedures to follow under the new regulatory system; electronic filing procedures at § 655.15(c) to permit easier submissions for H–2B program users; the rules that apply to Administrative Law Judge proceedings involving determinations under 8 U.S.C. 1184(c), section 214(c) of the INA, at 29 CFR 503.40(b); and implementation of the Congressional mandate in § 655.15(f) to permit employers in the seafood industry flexibility with respect to the entry into the U.S. by their H–2B nonimmigrant workers. The first three provisions (§§ 655.4, 655.15(c), 503.40(b)) are procedural in nature, and the last provision incorporates a statutory requirement that DOL and DHS have already implemented. The rulemaking record from the 2011–2012 proceeding remains fresh, and no new information relevant to policy decisions made during that proceeding has come to light. Therefore, the Departments have satisfied the APA's notice-and-comment requirements where, after one full period of notice and comment for a rule, we reinstate a virtually identical rule without an additional notice and comment period.
The APA also authorizes agencies to make a rule effective immediately upon a showing of good cause instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day effective date requirement is easier to meet than the good cause exception for notice and comment.
The Departments underscore that although we are implementing this interim final rule in advance of a period
Although this rule is being issued as an interim final rule, the Departments request public input on all aspects of the rule. The regulated community should be familiar with the provisions adopted in this interim final rule because they are largely the same as the provisions adopted in the 2012 H–2B rule, Temporary Non-agricultural Employment of H–2B Aliens in the United States, 77 FR 10038 (Feb. 21, 2012). As part of the rulemaking proceeding that culminated in the 2012 H–2B rule, DOL received, reviewed, and considered 869 comments on its proposal. Commenters represented a broad range of constituents of 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 interested members of the public. Those comments resulted in DOL's adjustment to or further explanation of that rule, and are incorporated here as well. As a result, to the extent that any provision of part 655 of title 20 or part 503 of title 29 of the Code of Federal Regulations adopted in this rulemaking proceeding requires further interpretation or justification, we refer the public to the explanations of the regulations contained in the prior rulemaking docket. That prior notice and comment proceeding does not foreclose public input in this proceeding, during which the Departments will jointly consider the public comments and revise this interim final rule as appropriate. The Departments invite the public to submit comments on all of the issues, requirements, and procedures addressed in this interim final rule; we will accept and consider these comments prior to issuing a final rule.
DHS currently requires all H–2B petitions to be accompanied by an approved temporary labor certification.
Due to a drafting oversight, when enacting the requirements above, DHS inadvertently left untouched the provisions at 8 CFR 214.2(h)(9)(iii)(B)(
For these reasons, DHS will rescind 8 CFR 214.2(h)(9)(iii)(B)(
This provision informs program users of the statutory basis and regulatory authority for the H–2B temporary labor certification process. This provision describes the Department's role in receiving, reviewing, adjudicating, and upholding the integrity of an Application for Temporary Employment Certification. DHS regulations at 8 CFR 214.2(h)(6)(iii)(D) recognize the Secretary of Labor as an appropriate authority with whom DHS consults regarding the H–2B program, and recognize the Secretary of Labor's authority, in carrying out that consultative function, to issue regulations regarding the issuance of temporary labor certifications. The purpose of these regulations is for the Secretary of Labor to determine that: (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 import foreign workers; and (2) the employment of the H–2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed.
This section describes the authority of and division of activities related to the H–2B program among DOL agencies. It discusses the authority of the Office of Foreign Labor Certification (OFLC), the office within ETA that exercises the Secretary of Labor's responsibility for determining the availability of qualified 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 discusses the authority of the Wage and Hour Division (WHD), the agency responsible for investigation and enforcement of the terms and conditions of H–2B labor certifications, as delegated by DHS.
Under DHS regulations and pursuant to DHS's consultative relationship with the Governor of Guam related to the H–2B visa program on Guam, the granting of H–2B labor certifications and the enforcement of the H–2B visa program on Guam resides with the Governor of Guam. 8 CFR 214.2(h)(6)(v). Subject to
Special procedures in DOL's temporary labor certification programs were based upon a determination that variations from the normal labor certification processes were necessary to permit the temporary employment of foreign workers in specific industries or occupations when qualified U.S. workers were not available and the employment of foreign workers would not adversely affect the wages or working conditions of similarly employed U.S. workers. The 2008 rule provided authority for DOL to “establish or to devise, continue, revise or revoke” special procedures in the H–2B program. 20 CFR 655.3 (2009). The regulation concerning the H–2A temporary agricultural worker program at 20 CFR 655.102 establishes in a virtually identical fashion, as did the 2008 H–2B rule, DOL's authority in the H–2A program to “establish, continue, revise, or revoke special procedures” for certain H–2A occupations. In
In light of
Generally, DOL will process all applications in accordance with the rules in effect on the date the application was submitted. Accordingly, DOL will continue to process all applications for PWDs and for certification submitted prior to the effective date of this rule in accordance with the 2008 rule and the 2013 IFR. Further, DOL will process all applications for PWDs and for certification submitted on or after the effective date of this rule in accordance with this interim final rule and the companion wage final rule issued simultaneously.
This rule will permit employers submitting an
For these employers with a start date of need before October 1, 2015, the NPC will also waive the regulatory filing timeframe under § 655.15 and process the
For the convenience of the employer submitting a new
For employers submitting new applications with a start date of need
For all employers submitting new applications for employment certification, regardless of the start date of need, DOL will require a period of time to operationalize the registration process for H–2B employers required in § 655.11. As a result, DOL will announce separately in the
Finally, employers with a prevailing wage determination issued by the NPWC, or who have a pending or granted
The Departments have made a number of changes to the definitions contained in the 2008 rule. Many of the changes clarify definitions in minor ways that do not substantively change the meaning of the term. However, we have also made some substantive changes to definitions, and we discuss below those definitions.
This new term reflects the established definition of area of substantial unemployment in use within ETA as it relates to Workforce Investment Act (WIA) fund allocations, and is the existing definition of area of substantial unemployment within ETA. ETA uses this definition to identify areas with concentrated unemployment and to focus WIA funding for services to facilitate employment in those areas. ETA employs this term 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,
In this interim final rule, “corresponding employment” means the employment of workers who are not H–2B workers by an employer that has a certified H–2B
The first category not included in the definition of corresponding employment covers incumbent employees:
1. Who have been 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
2. who have worked or been paid for at least 35 hours per week in at least 48 of the prior 52 workweeks; and
3. who have worked or been paid for an average of at least 35 hours per week over the prior 52 weeks.
In determining whether this standard was met, the employer may take credit for any hours that were reduced by the employee voluntarily choosing not to work due to personal reasons such as illness or vacation. Second, not included in the definition are 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.
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 interim 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 is in corresponding employment with H–2B workers, the employer must provide corresponding employment protections during the time period of the job order but may choose
The interim final rule includes these workers within the definition of corresponding employment in order to fulfill the DHS regulatory requirement that an
The 2008 rule, however, did 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 did not protect any incumbent employees. Therefore, for example, a U.S. employee hired three months previously performing the same work as the work requested in the job order, but earning less than the advertised wage, would have been required to quit the current employment and re-apply for the same job with the same employer to obtain the higher wage rate offered to H–2B workers. This was disruptive for the employer and created an additional administrative burden for the SWAs with respect to any workers being referred through them. It also overestimated employees' understanding of their rights under the regulations, and placed workers in insecure situations by requiring them to quit their jobs with the hope of being immediately rehired in order to avail themselves of the regulation's protections. Therefore, the interim final rule does not require incumbent employees to jump through this unnecessary hoop; U.S. workers generally will be entitled to the wage rates paid to H–2B employees without having to quit their jobs and be rehired.
As set out above, there are only two categories of incumbent U.S. employees who will 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 filed an
The interim final rule's inclusion of other workers within the definition of corresponding employment is important because the 2008 rule did 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 such U.S. workers 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 interim 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 2008 rule also did not protect U.S. workers in cases where employers placed 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 violate its obligations by assigning its H–2B workers to work as landscape laborers in the Chicago area. Because the employer did not fulfill its recruitment obligations in the Chicago area, 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 the Chicago area. Such a violation of the employer's attestations would result 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 underpaid H–2B workers. The interim 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, the definition of corresponding employment in the interim final rule is necessary to fulfill the responsibility to provide temporary labor certifications only in appropriate circumstances.
The definition of “full-time” means 35 or more hours of work per week. In accord with the decision in
This term means a person, association, firm, or a corporation that meets the definition of an employer and that contracts services or labor on a temporary basis to one or more employers, which is not an affiliate, branch or subsidiary of the job contractor and where the job contractor will 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. The following examples illustrate 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. Although 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 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. Employer B's 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.
Similarly, in the reforestation industry, employers may perform 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 interim 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
As discussed under § 655.6, we have decided to permit job contractors to participate in the 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 of “employer-client” to this interim final rule to define the characteristics of the employer that is served by the job contractor and the nature of their relationship.
We have included definitions of job offer and job order to make certain 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. The definition of job order reflects that it must include some, but not all, of the material terms and conditions of employment as reflected in § 655.18, which identifies the minimum content required for job orders. The definition of job offer requires an employer's job offer to contain all material terms and conditions of employment.
We have included the definition of strike so that the term is defined more consistently with DOL's 2010 H–2A regulations. The definition recognizes a range of protected concerted activity and clearly notifies employers and workers of their obligations when workers engage in these protected activities.
We will interpret temporary need in accordance with the DHS definition of that term and 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 interim final rule, as discussed in further detail below, is consistent with this approach.
a. Job Contractors: We generally conclude that 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. Job contractors generally have an ongoing business of supplying workers to other entities, even if the receiving entity's need for the services is temporary. However, we recognize that we should exclude from the program only those job contractors who have a definitively permanent need for workers, and that job contractors who only have a need for the services or labor to be performed several months out of the year have a genuine temporary need and should not be excluded. Therefore, § 655.6 permits 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 to demonstrate: 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 employ the 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 performing the same services or labor needed by the ski resorts outside of those months would qualify as having a temporary need that is seasonal for such workers.
We are allowing job contractors to be certified based only on seasonal or one-time need because it is extremely difficult, if not impossible, to identify appropriate peakload or intermittent needs for job contractors with clients who have variable needs. The seminal Immigration and Naturalization Service (INS) decision,
b. Duration of Temporary Need. For the reasons described below, DOL is defining temporary need, except in the event of a one-time occurrence, as 9 months in duration, a decrease from the 10-month limitation under DOL's 2008 rule. This definition is consistent with the definition of temporary need in DHS regulations, which provides that “[g]enerally, that period of time will be limited to one year
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 generally limited to 1 year or less in duration.
The impact of the change from 10 months, which was the standard in the 2008 rule, to 9 months, may have an adverse impact on some employers. But that impact, standing alone, is not dispositive regarding our legal obligation to protect the wages and working conditions of U.S. workers. DOL previously relied on the standard articulated in
Similarly, we have determined that limiting to 9 months 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 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 interim final rule, each employer with an intermittent need will be required to file a separate
c. Peakload need: The Departments will employ the definition of peakload need established in DHS regulations at 8 CFR 214.2(h)(6)(ii)(B)(
d. One-Time Occurrence. The Departments will employ the definition of one-time occurrence established in DHS regulations at 8 CFR 214.2(h)(6)(ii)(B)(
The employer, or its attorney or agent, are persons authorized to file an
Employer's agents are required to provide copies of current agreements defining the scope of their relationships with employers, or other document demonstrating the agent's authority to represent the employer. DOL will review the documents to make certain that there is evidence that a bona fide relationship exists between the agent and the employer and, where the agent is also engaged in recruitment, to ensure that the agreements include the language required at § 655.20(p) prohibiting the payment of fees by the worker. DOL also reserves the right to further review the agreements in the course of an investigation or other integrity measure. 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. The requirement does not obligate either the agent or the employer to disclose any trade secrets or other proprietary business information. The interim final rule only requires the agent to provide sufficient documentation to clearly demonstrate the scope of the agency relationship. In addition, under this
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 9142B and Appendix B, 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 9142B may now be held liable for their own independent violations of the H–2B program.
Finally, under this provision, 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.
Paragraph (a) requires an employer and its attorney and/or agent to provide DOL a copy of all agreements with any agent or recruiter that it engages or plans to engage in the recruitment of prospective H–2B workers, regardless whether the agent or recruiter is located in the U.S. or abroad. The written contract must contain the contractual prohibition on charging fees, as set forth in § 655.20(p). At the time of collection, DOL will review the agreements to obtain the names of the foreign labor recruiters (for purposes of maintaining a public list, as described below), and to verify that these agreements include the required contractual prohibition against charging fees. DOL may also further review the agreements in the course of an investigation or other integrity measure. Certification of an employer's application that includes such a submitted agreement, however, does not indicate general approval of the agreement or the terms therein. Where the contract is not in English and the required contractual prohibition is not readily discernible, DOL reserves the right to request further information to ensure that the contractual prohibition is included in the agreement. Agreements between the employer and the foreign labor recruiter will not be made public unless required by law. This interim final rule provides for DOL to obtain the agreements, but only share with the public the identity of the recruiters as discussed further below, but not the full agreements.
Paragraph (b) requires an employer and its attorney or agent, as applicable, to disclose to DOL the identity (name) and geographic location 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 prospective H–2B workers for the job opportunities offered by the employer. 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 downstream in the recruitment chain. This requirement 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 United States. Employers, and their attorneys or agents, as applicable, are expected to provide these names and geographic locations to the best of their knowledge at the time the application is filed. DOL expects that, as a normal business practice, when completing the written agreement with the primary recruiting agent or recruiter, the employer/attorney/agent will ask whom 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.
Paragraph (c) provides for DOL's public disclosure of the names of the agents and foreign labor recruiters used by employers, as well as the identities and locations of all the persons or entities hired by or working for the primary recruiter in the recruitment of prospective H–2B workers, and the agents or employees of these entities. Determining 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—serves several purposes. It bolsters program integrity by aiding in the enforcement of certain regulatory provisions. This provision will also bring a greater level of transparency to the H–2B worker recruitment process. By maintaining and making public a list of agents and recruiters, DOL will be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes because they will be able to verify whether a recruiter is in fact recruiting for legitimate H–2B job opportunities in the United States. As the Government Accountability Office (GAO) explained in a recent report, “[w]ithout accurate, accessible information about employers, recruiters, and jobs during the recruitment process, potential foreign workers are unable to effectively evaluate the existence and nature of specific jobs or the legitimate parties contracted to recruit for employers, potentially making them more vulnerable to abuse.”
The interim final rule requires employers to request PWDs from the NPWC before posting their job orders with the SWA. 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. Under the companion H–2B final wage rule, issued simultaneously with this interim final rule, employer-provided surveys may not be used to set the prevailing wage except in limited circumstances. Paragraph (g) provides that if OFLC determines that an employer-provided survey is not acceptable, it will inform the employer in writing of the reasons the survey is being rejected. Employers may request review of this determination through the appeal process in § 655.13 of this interim final rule. Unlike the 2008 rule, this interim final rule does not allow an employer to
The interim final rule bifurcates 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. This provision requires employers to submit an
Paragraph (a) requires employers to file an
Paragraph (c) requires employers to file an
Paragraph (d) states that the assertion of temporary need will be evaluated based on standards established by DHS in 8 CFR 214.2(h)(6)(ii).
Paragraph (g) authorizes the CO to issue one or more Requests for Further Information (RFIs) before issuing a Notice of Decision on the
Paragraph (h) provides that, if approved, the registration would be valid for a period of up to 3 years, absent a significant change in conditions, enabling an employer to begin the application process at the second phase without having to re-establish temporary need for the second and third years of registration. This provision grants the CO the necessary discretion to 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. If the
Paragraph (i) requires all employers that file an
Paragraph (j) adds a provision to allow for the transition to the registration process through a future announcement in the
Under this provision, an employer may file an
The interim final rule alters the process from the 2008 rule for the review of PWDs to improve clarity and consistency. Specifically, the provision reduces the number of days within which the employer must request review of a PWD by the NPWC Director from 10 calendar days in the 2008 rule to 7 business days from the date of the PWD in this interim final rule. In addition, the NPWC Director will review determinations, and the employer has 10 business days from the date of the NPWC Director's final determination within which to request review by the BALCA.
Under the interim final rule, we have 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. DOL's experience in administering the H–2B program since the implementation of the 2008 rule suggests that the lack of agency oversight during the pre-filing recruitment process has resulted in failures to comply with program requirements. We conclude that the recruitment model adopted in this interim 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 workers that they require in a timelier manner. This provision requires all employers to first obtain a prevailing wage determination under § 655.10 and register under the procedures set out in § 655.11, unless requirements under §§ 655.4 or 655.17 are met.
Paragraph (a) requires a registered employer to file the
Paragraph (c) permits the employer or its authorized attorney or agent to file electronically H–2B temporary employment certification applications under the H–2B visa category through the iCERT System (
Paragraph (d) requires the employer and, as applicable, its attorney and/or agent, to sign the
In addition to the H–2B temporary employment certification application, the regulations require an employer to
Where a temporary labor certification is granted, the Chicago NPC will send the approved H–2B temporary employment certification application and a 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. For all H–2B temporary employment certification applications granted under this interim final rule, whether filed electronically or mailed, the employer will receive from the Chicago NPC an original certified ETA Form 9142B, but not an Appendix B, issued on security certification paper. A certified ETA Form 9142B is valid when it contains a completed Section K bearing the electronic signature of the OFLC Administrator, and a completed “For Department of Labor Use Only” footer on each page identifying the case number, case status, and validity period. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B, retain the original Appendix B, and submit a signed copy of Appendix B, together with the original certified ETA Form 9142B directly to USCIS. Under the document retention requirements in § 655.56, the employer must retain a copy of the temporary labor certification and the original signed Appendix B.
Paragraph (f) requires that, with one exception discussed below applicable to employers in the seafood industry, employers file separate applications when there are different dates of need for the same job opportunity or different worksites within an area of intended employment. Employers must accurately identify their personnel needs and, for each period within their season for which they have more than one date of need, file a separate application for each separate date of need. An application with an accurate date of need will be more likely to attract qualified U.S. workers to fill those open positions, especially when the employer conducts recruitment closer to the actual date of need. This prohibition against staggered entries based on a single date of need is intended to require that employers provide U.S. workers the maximum opportunity to consider the job opportunity and is consistent with USCIS policies. It is intended to provide that U.S. workers are not treated less favorably than H–2B workers who, for example, may be permitted to report for duty 6 weeks after the stated date of need.
The interim final rule, at § 655.15(f), permits only employers in the seafood industry to stagger the entry of their otherwise admissible H–2B nonimmigrants into the United States under certain circumstances. Under section 108 of the Consolidated and Further Continuing Appropriations Act, 2015 (the “2015 Appropriations Act”), Public Law 113–235, 128 Stat. 2130, 2464, permits staggered entry of H–2B nonimmigrants employed by employers in the seafood industry under certain conditions. The Departments have determined that this legislation constitutes a permanent enactment, and so we have incorporated the requirements into this interim final rule.
Under the 2015 Appropriations Act and § 655.15(f), employers in the seafood industry may bring into the United States, in accordance with an approved H–2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer's certified start date of need if certain conditions are met. No additional information or documentation related to this provision should be submitted with an H–2B temporary employment certification application to the Chicago NPC. However, as discussed below, in order for employers to use this provision, H–2B nonimmigrant workers must show to the Department of State's consular officers and to the DHS's U.S. Customs and Border Protection officers, as necessary, the employer's attestation that the conditions set forth in the statute and regulation have been met.
The statute and regulation contain two primary conditions that employers must meet in order to benefit from this exception. First, this rule applies only to employers engaged in a business in the seafood industry. We have added to § 655.5 a definition of “seafood,” which is defined as fresh or saltwater finfish, crustaceans, other forms of aquatic animal life, including, but not limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals, and all mollusks. Second, any seafood industry employer that permits or requires its H–2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need, which must include: (A) Listing the job in local newspapers on two separate Sundays; (B) placing new job orders for the job opportunity with the SWA serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and (C) offering the job to any equally or better qualified U.S. worker who applies for the job and who will be available at the time and place of need. Seafood industry employers who conduct the required additional recruitment should not submit proof of the additional recruitment to OFLC. However, seafood industry employers must retain the additional recruitment documentation, together with their pre-filing recruitment documentation, for a period of 3 years from the date of certification, consistent with the document retention requirements under § 655.56.
In order to comply with this provision, a seafood industry employer must prepare a written, signed attestation indicating its compliance with the conditions outlined above.
The interim final rule requires the employer to submit its job order directly to the SWA at the same time it files the
Under paragraph (c), the SWAs must circulate the job order in intrastate clearance, and in interstate clearance by providing a copy of the job order to other states as directed by the CO. 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, and 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 circulate the job order in the course of interstate clearance, ensuring that the employer is also aware of the job order's exposure in the SWAs' labor exchange services systems.
Posting the job order in the SWA labor exchange system is but one of the recruitment requirements contained in the interim 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 at least 54 days, since the interim 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 receipt of the Notice of Acceptance and to keep the job order posted until 21 days before the date of need, as discussed in the preamble to § 655.20(t).
The interim final rule permits an employer to file an
To rely on this provision, the employer must provide the CO with detailed information describing the “good and substantial cause” necessitating the waiver. Such cause may include the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable human-made catastrophic event that is wholly outside the employer's control, unforeseeable changes in market conditions, or pandemic health issues. The CO's denial of an
In processing an emergency
Under the interim final rule, an
The job order is essential for U.S. workers to make informed employment decisions. It must include not only standard information about the job opportunity, but also several key assurances and obligations to which the employer is committing by filing an
There are two overarching assurances in § 655.18(a) with which the employer agrees to comply by filing an
a. Prohibition against preferential treatment, § 655.18(a)(1). Similar to the requirements under § 655.22(a) of the 2008 rule, and as described under § 655.20(q) of this interim final rule, the employer must provide to U.S. workers at least the same benefits, wages, and working conditions that are being or will be offered or provided to H–2B workers. The purpose of § 655.18(a)(1) is to protect U.S. workers by ensuring that 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, wages, and working conditions 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
b. Bona fide job requirements, § 655.18(a)(2). The job qualifications and requirements listed in the job order must 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.
Under DOL's longstanding policy, job qualifications and requirements must be customary;
This interpretation is consistent with program history, primarily under the General Administration Letter 1–95,
In addition to complying with the assurances in paragraph (a) of this section, § 655.18(b) requires that the employer include at a minimum the following contents in the job order.
a. Benefits, wages and working conditions, § 655.18(b)(2), (5), (6), (9). Employers must list the following benefits, wages, and working conditions in the job order: The rate of pay, frequency of pay, the availability of overtime, and that the job opportunity concerns a full-time position. These disclosures are critical to any applicant's decision to apply for and accept the job opportunity.
b. Board, lodging, or facilities, § 655.18(b)(10). If an 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, this must be listed in the job order along with any wage deductions related to such provision of board, lodging or other facilities. Assisting workers to secure lodging consists of more than 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. Assistance could be reserving a block of rooms for employees and negotiating a discounted rate on the workers' behalf, or arranging to have housing provided at a subsidized cost for employees. 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.
The Departments note that the concept of “facilities” is defined in 29 CFR 531.32, which has been construed and enforced by DOL for several decades. The Departments have concluded that it is beneficial for workers, employers, agents, and the WHD to ground enforcement of H–2B program obligations in DOL's decades of experience enforcing the Fair Labor Standards Act (FLSA), and the decades of court decisions interpreting the regulatory language we are adopting in these regulations. Therefore, the Departments note throughout this preamble where they rely on FLSA principles to explain the meaning of the requirements of the H–2B program that use similar language.
DOL's longstanding position is that deductions or costs incurred for facilities that are primarily for the benefit or convenience of the employer will not be recognized as reasonable and therefore may not be charged to the worker.
c. Deductions, § 655.18(b)(11). The job order must 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 intends to make from the worker's paycheck. This includes, if applicable, any wage deductions for the reasonable cost of board, lodging, or other facilities. Any deductions not disclosed in the job order are prohibited under § 655.20(c) of this interim final rule.
Under the 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 U.S. Court of Appeals for the Eleventh Circuit stated in
An employer may not deduct from employee wages the cost of facilities which primarily benefit the employer if such deductions drive wages below the minimum wage.
d. Three-fourths guarantee, § 655.18(b)(17). The employer must list in the job order that the employer will guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (or 6-week period if the employment covered by the job order is less than 120 days) and, if the guarantee is not met, the employer will pay the worker what the worker would have earned if the employer had offered the guaranteed number of days, as required by § 655.20(f) of this interim final rule.
e. Transportation and visa fees, § 655.18(b)(12)–(15). The employer must detail in the job order how the worker will be provided with or reimbursed for inbound transportation and subsistence costs if the worker completes 50 percent of the period of employment covered by the job order, consistent with § 655.20(j)(1)(i) of this interim final rule. The employer must also state that it will provide or pay for the worker's outbound transportation and subsistence if the worker completes the job order period or is dismissed early, consistent with § 655.20(j)(1)(ii) of this interim final rule. The employer must also disclose that it will provide or reimburse inbound and outbound transportation and daily subsistence costs for corresponding U.S. workers who are not reasonably able to return to their residence within the same workday. Finally, employers are required to disclose in the job order that they will provide daily transportation to the worksite, if they intend to do so, and that the employer will reimburse H–2B workers for visa and related fees in the first workweek.
f. Employer-provided items, § 655.18(b)(16). The job order must 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 gives 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.
The Departments note that section 3(m) of the FLSA and DOL regulations at 20 CFR part 531 prohibit 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, § 655.22(g)(1) in the 2008 rule (which required all deductions to be reasonable), and the Departments' obligation to prevent adverse effects on U.S. workers, this interim final rule similarly protects the integrity of the H–2B offered wage by treating it as the effective minimum wage. Therefore, deductions for items such as damaged and lost equipment, which are encompassed within deductions for equipment needed to perform a job, would not be permissible where such deductions bring a worker's wage below the offered wage.
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. This requirement 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.
In addition to the provisions discussed above, this interim final rule requires employers to list in the job order the following information that is essential for providing U.S. workers sufficient information about the job opportunity: 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 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 requirement is 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.
The Departments believe that the information employers are required to include in the job order under § 655.18 of this interim 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 nonimmigrants with a detailed worker rights card at the visa application stage.
Finally, the Departments view the terms and conditions of the job order as binding. In the event that an employer does not provide a copy of the job order to workers as required under § 655.20(l) of this interim final rule, the terms and conditions of the job order nevertheless apply.
This interim final rule establishes in § 655.6 the limited circumstances under which job contractors may continue to
Job contractors and their employer-clients must file a single application when acting as joint employers. Joint employment is defined as circumstances in which two or more employers each have sufficient definitional indicia of employment to be considered the employer of an employee, in which case the employers may be considered to jointly employ that employee. An employer may be considered a joint employer if it has an employment relationship with an individual, even if the individual may be considered the employee of another employer.
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 § 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.
Section 655.20 of the interim final rule, which is similar to § 655.22 of the 2008 rule, contains the employer obligations that WHD will enforce to ensure that the employment of H–2B workers will not adversely affect the wages and working conditions of U.S. workers similarly employed. These assurances and obligations are consistent with, and are intended to complement, DHS's regulations where they address similar issues, such as transportation and recruitment fees. 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)). Section 655.20(a)(1), like § 655.22(e) in the 2008 rule, requires 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. It also requires that such wages be paid free and clear.
With respect to productivity standards, § 655.20(a)(3) requires the employer to demonstrate that any productivity standards are normal and usual for non-H–2B employers for the same occupation in the area of intended employment. Unlike in the H–2A program, DOL 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 in order to ensure there is no adverse effect on similarly employed U.S. workers.
Finally, pursuant to § 655.20(a)(4), if an employer pays on a piece-rate basis, it 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, and that each workweek the average hourly piece rate earnings result in an amount at least equal to the offered wage (or the employer must make up the difference).
b. Wages free and clear (§ 655.20(b)). Section 655.20(b) requires 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 29 CFR part 531. This assurance clarifies the pre-existing obligation for both employers and employees to ensure that wages are not reduced below the required rate.
c. Deductions (§ 655.20(c)). Section 655.20(c) ensures payment of the offered wage by limiting deductions which reduce wages to below the required rate. The section limits 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. Similar to § 655.22(g)(1) of the 2008 rule, this section specifically provides that deductions not disclosed in the job order are prohibited. The section also specifies 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; kickbacks 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 that such deductions reduce the actual wage to below the required wage.
This section refers to the FLSA and 29 CFR part 531 for further guidance. Consistent with these and other authorities administered by DOL, for purposes of § 655.20(c) deductions must, among other requirements, be truly voluntary, and may not be a
Moreover, for purposes of § 655.20(c), a deduction for any cost that is primarily for the benefit of the employer is never reasonable and therefore never permitted under this interim final rule. Some examples of costs that DOL 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. Further, the concept of de facto deductions initially developed under the FLSA, where employees are required to purchase items like uniforms or tools that are employer business expenses, is equally applicable to purchases that bring H–2B workers' wages below the required wage, as the payment of the prevailing wage is necessary to ensure that the employment of foreign workers does not adversely affect the wages and working conditions of similarly employed U.S. workers. To allow deductions for business expenses, such as tools of the trade, would undercut the prevailing wage concept and, as a result, harm U.S. workers.
d. Job opportunity is full-time (§ 655.20(d)). Section 655.20(d) requires that all job opportunities be full-time temporary positions, consistent with language in § 655.22(h) of the vacated 2008 rule, and that employers use a single workweek as the standard for computing wages due. Additionally, consistent with the FLSA, this section provides that the workweek is 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. This establishment of a clear period for determining whether the employer has paid the required wage will aid in enforcement.
e. Job qualifications and requirements (§ 655.20(e)). Section 655.20(e), which clarifies § 655.22(h) of the 2008 rule, states 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 the same occupation in the area of intended employment. Further, 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. 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. Finally, the CO has the authority to require the employer to substantiate any job qualifications or requirements specified in the job order.
This provision enables DOL to continue to review 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 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. DOL 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.
f. Three-fourths guarantee (§ 655.20(f)). Section 655.20(f) requires employers to guarantee to offer 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 days or more and each 6-week period, if the period of employment covered by the job order is less than 120 days. If the guarantee is not met, the employer is required to pay the worker what the worker would have earned if the employer had offered the guaranteed number of days. These 12-week periods (6 weeks if the job order is less than 120 days) 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 end on the expiration date specified in the job order or in any extensions. A workday is based on the workday hours stated in the employer's job order, and the 12-week periods (6 weeks if the job order is less than 120 days) are based on the employer's workweek for pay purposes, with partial week 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.
If a worker fails or refuses to work hours offered by the employer, the employer may count any hours offered consistent with the job order that a worker freely and without coercion chooses not to work, up to the maximum number of daily hours on the job order, in the calculation of guaranteed hours. The employer may offer the worker more than the specified daily work hours, but the employer may not require the employee to work such hours or count them as offered if the employee chooses not to work the extra hours. However, the employer may include all hours actually worked when determining whether the guarantee has been met. Finally, as detailed in 20 CFR 655.20(g), 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, or for a similar man-made catastrophic event such as an oil spill or controlled flooding.
The Departments believe that the interim final rule's approach provides the benefits of having a wage 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
DOL's recent experience in enforcing the H–2B regulations demonstrates that its concerns about employers overstating their need for workers are not unfounded. DOL's investigations have revealed that some employers have stated on their H–2B temporary employment certification 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, 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.”
Therefore, spreading the three-fourths guarantee over the entire period covered by 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, or 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 Departments are establishing the increment of time for measuring the guarantee at 12 weeks (if the period of employment covered by the job order is at least 120 days) and 6 weeks (if the employment is less than 120 days). The Departments believe 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 (at the beginning and end of the season) than during 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.
The Departments remind 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
Finally, the Departments do not believe it would be appropriate to impose a more protective guarantee, such as a 100 percent, 90 percent, or weekly guarantee. The three-fourths guarantee is a reasonable deterrent to potential carelessness and an important protection for workers, while still providing employers with some 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 they are likely to be able to make up for them in other weeks of the season. Moreover, the Departments understand 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.
g. Impossibility of fulfillment (§ 655.20(g)). Section 655.20(g) allows employers to terminate a job order in certain narrowly-prescribed circumstances when approved by the CO, such as due to fire, weather, other Acts of God, or a similar unforeseeable human-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. In such an event, the employer is required to meet the three-fourths guarantee discussed in paragraph (f) of this section based on the starting date listed in the job order or first workday after the arrival of the worker, whichever is later, and ending on the date on which the job order is terminated due to the event. The employer also is 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 will be required to comply with the transportation requirements in paragraph (j) of this section. We remind employers that CO approval is required to terminate the job order; simply submitting a request to the CO is insufficient to terminate the three-fourths guarantee.
h. Frequency of pay (§ 655.20(h)). Section 655.20(h) requires 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 requires that wages be paid when due.
The requirement that workers be paid at least every 2 weeks is 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 are often paid low wages and may lack the means to make their income stretch through a month until they get paid.
i. Earnings statements (§ 655.20(i)). Section 655.20(i) requires the employer to maintain accurate records of worker earnings and provide the worker an appropriate earnings statement on or before each payday, specifying the information that the employer must include in such a statement (including,
The Departments believe that any 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. Similar to § 655.122(j)(3) in the H–2A program, the interim final rule requires an employer to record the reasons why a worker declined any offered hours of work, which will support DOL's enforcement activities related to the three-fourths guarantee in § 655.20(f). Additionally, this section, § 655.16(i)(2)(iv), and 29 CFR 503.16(i)(l) 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 reimbursements for costs incurred by the worker. This requirement is consistent with the recordkeeping requirements under the FLSA in 29 CFR part 516.
j. Transportation and visa fees (§ 655.20(j)). Section 655.20(j)(1)(i) requires an employer 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, if the workers complete 50 percent of the period of employment covered by the job order (not counting any extensions). The interim final rule 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 and subsistence; or reimburse the worker's reasonable costs. If the employer advances or provides transportation and subsistence costs to foreign workers, or it is the prevailing practice of non-H–2B employers to do so, the employer must advance such costs or provide the services to workers in corresponding employment traveling to the worksite. The interim final rule also reminds employers that the FLSA imposes independent wage payment obligations, where it applies.
Section 655.20(j)(1)(ii) requires 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; 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. 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
Section 655.20(j)(1)(iii) requires that all employer-provided transportation—including transportation to and from the worksite, if provided—must meet
Under the FLSA the transportation, subsistence, and visa and related expenses for H–2B workers are for the primary benefit of employers, as DOL 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 permits the visa holder to apply for admission in H–2B nonimmigrant status, which restricts the worker to the employer with an approved temporary labor certification and to the particular approved work described in the employer's application.
Therefore, the interim final rule includes a reminder to employers that the FLSA applies independently of the H–2B requirements. 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, which covers Louisiana, Mississippi, and Texas).
The interim 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 Departments believe this approach is appropriate and adequately protects the interests of both U.S. and H–2B workers and employers, because it does not require employers 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.
Additionally, the interim 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 reasonable return transportation costs if the employer dismisses the worker for any reason before the end of the period of authorized admission.
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 interim final rule fulfills the Departments' obligation to protect U.S. workers from adverse effect due to the presence of temporary foreign workers. As discussed above, under the FLSA, numerous courts have held in the context of both H–2B and H–2A workers that the inbound and outbound transportation costs associated with using such workers are an inevitable and inescapable consequence of employers choosing to participate in these visa programs. Moreover, the courts have held that such transportation expenses are not ordinary living expenses, because they have no substantial value to the employee independent of the job and do not ordinarily arise in an employment relationship, unlike normal daily home-to-work commuting costs. Therefore, the courts view employers as the primary beneficiaries of such expenses under the FLSA; in essence the courts have held that inbound and outbound transportation are employer business expenses just like any other tool of the trade. A similar analysis applies to the H–2B required wage. If employers were permitted to shift their business expenses onto H–2B workers, they would effectively be making a de facto deduction and bringing the worker below the H–2B required wage, thereby risking depression of the wages of U.S. workers in corresponding employment. This regulatory requirement, therefore, ensures the integrity of the full H–2B required wage, rather than just the FLSA minimum wage, over the full term of employment; both H–2B workers and U.S. workers in corresponding
Finally, to comply with this section, 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 place of recruitment to the consular city and then on to the worksite. Similarly, the employer must 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.
k. Employer-provided items (§ 655.20(k)). Section 655.20(k) requires, 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 provision gives workers additional protections against improper deductions for the employer's business expenses from required wages.
As discussed above with respect to the disclosure requirement in § 655.18(b), 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. This 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 § 655.18(b), this requirement does not prohibit employees from voluntarily choosing to use their own specialized equipment; it simply requires employers to make available to employees adequate and appropriate equipment.
l. Disclosure of the job order (§ 655.20(l)). Section 655.20(l) requires that the employer provide a copy of the job order to prospective 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. For H–2B workers changing to a subsequent H–2B employer, the job order must be provided no later than the time the subsequent offer of employment is made. The job order must contain information about the terms and conditions of employment and employer obligations as provided in § 655.18 and must be in a language understandable to the workers, as necessary and reasonable. 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.
This section does not require written disclosure of the job order at the time of recruitment, as required under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). DOL 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 conditions 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. Worker notification is a vital component of worker protection and program compliance, and the Departments believe that the requirement provides workers with sufficient notice of the terms and conditions of the job so that they can make an informed decision.
In addition, providing the terms and conditions of employment to each worker in a language that the individual understands is a key element of much-needed worker protection. Therefore, DOL 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 both place an undue burden on an employer and not significantly disadvantage an H–2B or corresponding worker.
m. Notice of worker rights (§ 655.20(m)). Section 655.20(m) requires that the employer post a notice in English of worker rights and protections in a conspicuous location and if necessary post the notice in other appropriate languages if such translations are provided by DOL.
The poster, which will be printed and provided by DOL, 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. While the purpose of this section would be undermined if workers cannot read the notice, DOL 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 DOL about the language needs of the H–2B worker population. If revised versions of the poster are created, DOL expects employers to post the most recent version published by DOL.
n. No unfair treatment (§ 655.20(n)). Section 655.20(n) provides nondiscrimination and nonretaliation protections that are fundamental to the statutes that DOL 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. Therefore, workers are protected from retaliation, including retaliation based on contact or consultation with an attorney or an employee of a legal assistance organization, or contact with labor
This provision protects against discrimination and retaliation for asserting rights specific to the H–2B program. For example, if workers sought legal assistance in relation to their terms and conditions of employment, such as legal assistance relating to employer-provided housing because 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. This section provides protection to U.S. workers and H–2B workers alike. While H–2B workers are particularly vulnerable to retaliation and need protection against employer retaliatory acts, it is important to encourage all workers to come forward when there is a potential workplace violation. Therefore, the Departments clarify that § 655.20(n) applies equally to H–2B workers and U.S. workers.
o. Comply with the prohibitions against employees paying fees (§ 655.20(o)). Section 655.20(o), similarly to § 655.22(j) in the 2008 rule, prohibits 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 temporary labor certification or employment, including recruitment costs. However, this provision does allow employers and their agents to receive reimbursement for fees that are primarily for the benefit of the worker, such as passport fees, which can be used for personal travel or for travel to another job.
p. Contracts with third parties to comply with prohibitions (§ 655.20(p)). Section 655.20(p), similarly to § 655.22(g)(2) in the 2008 rule, requires 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. DOL notes that the new requirements at § 655.9 of this interim final rule require disclosure of the employer's agreements with any agent or recruiter whom it engages or plans to engage in the recruitment of prospective H–2B workers, whether in the U.S. or abroad, 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 Departments believe that public disclosure of the identity of recruiters and the entities for which they work is necessary to prevent abuse, and this issue is addressed under § 655.9. DOL 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 prospective H–2B workers for the H–2B job opportunities offered by the employer.
The difference between § 655.9, which requires the employer to provide copies of such agreements to DOL when an employer files its
The Departments recognize the complexities of recruiters using subcontractor recruiters and have accounted for this in § 655.20(p) by including language requiring the employer to 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, from seeking or receiving payments from any prospective employees. 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.
q. Prohibition against preferential treatment of H–2B workers (§ 655.20(q)). Section 655.20(q), similarly to § 655.22(a) in the 2008 rule, prohibits employers from providing better terms and conditions of employment to H–2B workers than to U.S. workers. The substance of this provision is identical to the assurance found at § 655.18(a)(1) of this interim final rule, relating to the job order, and a discussion of it is set forth in the preamble to that section.
r. Non-discriminatory hiring practices § 655.20(r). Section 655.20(r), like § 655.22(c) of the 2008 rule, sets forth a non-discriminatory hiring provision; it clarifies that the employer's obligation to hire U.S. workers continues throughout the period described in § 655.20(t). Under this provision, rejections of U.S. workers continue to be permitted only for lawful, job-related reasons. This section works together with § 655.20(q), which specifies that 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. Thus, for example, where an employer requires drug tests or criminal background checks for U.S. workers and does not require the same tests and background checks for H–2B workers, the employer has violated this provision. Additionally, where an employer conducts criminal background checks on prospective employees, in order to be lawful and job-related, the employer's consideration of any arrest or conviction history must be consistent with guidance from the Equal Employment Opportunity Commission (EEOC) on employer consideration of arrest and conviction history under Title VII of the Civil Rights Act of 1964.
s. Recruitment requirements (§ 655.20(s)). Section 655.20(s) requires employers to conduct required recruitment as described in §§ 655.40–.46, including any activities directed by the CO. Such required recruitment activities are discussed in the preamble to those sections.
t. Continuing obligation to hire U.S. workers § 655.20(t). Section 655.20(t) requires employers to hire qualified U.S. workers referred by the SWA or who respond to recruitment until 21 days
Requiring a priority hiring period until 21 days before the date of need is consistent with the DHS requirement that H–2B nonimmigrants not be admitted to the United States until 10 days before the date of need,
The 21-day provision also will prevent H–2B workers from being dismissed after beginning travel from their home to the consulate or even to the United States as the obligation to hire U.S. workers now ends 11 days before the earliest date an H–2B worker may be admitted to the United States. 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.
The Departments believe this 21-day requirement, which extends the duration of the U.S. worker referral period by as much as 3 months compared to the 2008 rule, is sufficient to protect the interests of U.S. workers. Further, the Departments note that the extended recruitment period is not the only provision of this interim final rule enhancing U.S. applicants' access to vacancies: the number and breadth of recruitment vehicles in place (
The Departments note that regardless of the time when the obligation to hire terminates, 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 interim final rule's 21-day obligation-to-hire cutoff should provide employers with time to identify foreign workers if they are, in fact, needed and to initiate their travel without substantial uncertainty. However, the primary 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.
State laws that require 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 may affect the requirement that such employers continue to hire U.S. workers until 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 prospective 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.
Finally, given 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 Departments wish 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, such as by telling workers to come to work three weeks after the advertised first date of need, because the employer does not have a need for them at that time (but see the provisions applicable to employers in the seafood industry discussed in the preamble to § 655.15). This means that when workers 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)). Section 655.20(u) modifies the no strike or lockout language in the 2008 rule to
This provision is intended to decrease the chances that an unscrupulous employer will circumvent the regulatory requirement by transferring U.S. workers to fill positions vacated by striking workers and employing H–2B workers in the positions those U.S. workers vacated. The Departments believe that this extension will provide added protection for workers whose employers have multiple locations within a commuting distance where transferring employees among locations would be relatively easy.
With respect to annual layoffs that occur due to the end of the peak season, § 655.20(u) is not intended to include employer layoffs; § 655.20(v) addresses employer layoffs. Further, with respect to the ability of a CO to deny an application due to a strike or a lockout and whether that might complicate the application process and increase delays, unsuccessful applications, and last-minute refusals of H–2B workers, DOL 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)). Section 655.20(v) modifies the dates of impermissible layoffs of U.S. workers in § 655.22(i) of the 2008 rule, 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. Further, this section provides that H–2B workers must be laid off before any U.S. worker in corresponding employment. However, 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 its H–2B workers first.
w. Contact with former U.S. employees (§ 655.20(w)). Section 655.20(w) requires employers to contact former U.S. employees who worked for the employer in the occupation and at the place of employment listed on the
x. Area of intended employment and job opportunity (§ 655.20(x)). Section 655.20(x) modifies § 655.22(l) of the 2008 rule 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)). Section 655.20(y), which is largely consistent with the notification requirement in § 655.22(f) of the 2008 rule, requires that employers notify OFLC 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
This section provides employers with guidance regarding their notification obligations, which is informed by DOL's enforcement experience with the § 655.22(f) of the 2008 rule, under which neither WHD nor employers expressed confusion or concerns since its introduction in the 2008 rule. DOL's enforcement experience under the H–2A program suggests that the 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 written notification required under 20 CFR 655.20(y) must be provided by one of the following means:
1. By electronic mail (email) to:
2. Employers without Internet access may instead send written notification by:
(a) Facsimile to: (312) 886–1688; or
(b) U.S. Mail to: U.S. Department of Labor, Office of Foreign Labor Certification, Chicago National Processing Center, Attention: H–2B Program Unit, 11 West Quincy Court, Chicago, IL 60604–2105.
In order to ensure prompt and effective processing of the notification, DOL requests that the employer's notice include at a minimum the following information:
1. The reason(s) for notification or late notification, if applicable;
2. The H–2B temporary employment certification application Case Number(s);
3. The employer's name; address, telephone number, and Federal Employer Identification Number (FEIN).
4. The date of abandonment or separation from employment; and
5. The number of H–2B worker(s) and/or other worker(s) in corresponding employment who abandoned or was/were separated from employment, and the name(s) of each such H–2B worker and/or worker in corresponding employment and each employee's last known address.
The Chicago NPC will also accept a copy of the written notification of abandonment or separation from employment submitted by the employer to DHS as long as it contains all of the information listed above and is submitted to the Chicago NPC via one of the means enumerated in this IFR. Employers must retain records in accordance with documentation retention requirements outlined at 29 CFR 503.17. DOL penalties for this violation are different from DHS fines. The notification requirement serves different purposes for DHS and DOL, and DOL concludes it is fair and consistent to treat this violation in the same way it treats other violations of employers' H–2B obligations.
The Departments emphasize that the notification requirements in § 655.20(y) are not intended to be used as threats
With respect to whether a termination actually was for cause, DOL reminds the public that WHD, as part of its enforcement practices, may investigate conditions behind the early termination of foreign workers to ensure that the dismissals were not affected merely to relieve an employer of its outbound transportation and three-quarter guarantee obligations. Further, § 655.20(n) already protects workers from a dismissal in retaliation for protected activities. However, some employer personnel rules set the abscondment threshold at 3 days. This regulation does not intrude upon or supersede employer attendance policies. The requirement that an employer provide appropriate notification if a worker fails to report for 5 consecutive working days does not preclude an employer from establishing a different standard for dismissing its workers. Further, the Departments do not intend the H–2B regulations to provide job protection to workers in the case of illness or injury that may result in absences and considers such determinations beyond its authority. The rule leaves it largely to employers to determine the worker behaviors that trigger a dismissal for cause, beyond the protected activities described in § 655.20(n) and the requirement in § 655.20(z) that the employer comply with all applicable employment-related laws.
z. Compliance with applicable laws (§ 655.20(z)). Section 655.20(z) requires H–2B employers to comply with all other applicable Federal, State, and local employment laws, similar to the 2008 rule's provision at § 655.22(d), and it explicitly references 18 U.S.C. 1592(a), which prohibits employers from holding or confiscating workers' immigration documents such as passports or visas under certain circumstances. Because the prohibition must include employers' attorneys and agents in order to achieve the intended worker protection, appropriate language is included in § 655.20(z) of this interim final rule to reflect that coverage.
aa. Disclosure of foreign worker recruitment (§ 655.20(aa)). Section 655.20(aa) requires 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 recruitment of prospective H–2B workers under this
bb. Cooperation with investigators (§ 655.20(bb)). Section 655.20(bb) requires the employer to cooperate with any DOL employee who is exercising or attempting to exercise DOL's authority pursuant to 8 U.S.C. 1184(c), INA section 214(c). Including this provision in the list of employer obligations will facilitate enforcement if an employer fails to cooperate in any administrative or enforcement proceeding, and if that failure is determined to be a violation under these regulations. Requirements for employer cooperation with WHD investigations are set forth more fully in 29 CFR 503.25.
Under this provision, upon receipt of an
The interim final rule also requires 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 provision also contains 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.
This provision requires the CO to issue a formal Notice of Deficiency where the CO determines that the
The interim final rule permits the CO to deny any
If the CO deems a modified application acceptable, the CO will issue a Notice of Acceptance and require 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
The provision requires the CO to update the electronic job registry to reflect the necessary modification(s) and to direct the SWA(s) in possession of the job order to replace the job order in their active files with the modified job order. The provision also requires the employer to disclose the modified job order to all workers recruited under the original job order or
The interim final rule requires the CO to issue a formal notice accepting the employer's
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
The Notice of Acceptance will direct the employer to recruit U.S. workers in accordance with employer-conducted recruitment provisions in §§ 655.40–655.46, as well as to conduct any reasonable additional recruitment the CO directs, consistent with § 655.46, within 14 calendar days from the date of the notice. The Notice of Acceptance will 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 will require the employer to submit a written report of its recruitment efforts as specified in § 655.48. Finally, the Notice of Acceptance may require the employer to contact appropriate designated community-based organizations with the notice of the job opportunity.
The CO will post 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, and DOL will expand it to include H–2B job orders. DOL will inform the public when the electronic job registry is available for the H–2B program. Once the registry is operational, the CO will post the job orders on the electronic job registry, after accepting an
This provision permits an employer to request to amend its
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. We do not intend this provision to allow employers to amend their applications beyond the parameters contained in § 655.12; rather, part of the CO's review will involve comparing the requested amendments to the content of the approved
We have included certain limitations to ensure that these job opportunities are not misrepresented or materially changed as a result of such amendments. We expect that these parameters, which limit the extent of the change in number of workers or period of need permitted, and the CO review process to control the frequency with which post-acceptance and pre-certification job order amendments are requested or approved and maintain the integrity of the H–2B Registration process.
Specifically, the employer may request an amendment of the
Under this provision, the employer must request any amendment(s) to the
This interim final rule maintains and expands some of the requirements relating to the recruitment of U.S. workers that were contained in the 2008 rule. The Departments conclude that, with expanded requirements, including the requirement that the employer contact its former U.S. workers and the requirement to conduct additional recruitment at the discretion of the CO, recruitment is more likely to identify qualified and available U.S. workers than under the 2008 rule and will better protect against the potential for adverse effect.
Unlike under the 2008 rule, this interim final rule requires that the employer conduct recruitment of U.S. workers after its
Paragraph (a) contains the general requirement that employers must conduct recruitment of U.S. workers to ensure that there are not qualified U.S. workers who will be available for the positions listed in the
Paragraph (b) requires that employers complete specific recruitment steps outlined in §§ 655.42 through 655.46 within 14 days from the date of the Notice of Acceptance unless otherwise instructed by the CO. This paragraph further requires that all employer-conducted recruitment must be completed before the employer submits the recruitment report as required in § 655.48. We conclude that a 14-day recruitment period provides an appropriate timeframe for the employer to conduct the recruitment described in §§ 655.42 through 655.46, especially when combined with the longer SWA referral period discussed further below.
Paragraph (c) requires that employers must continue to accept referrals and applications of all U.S. applicants interested in the position until 21 days before the date of need. Separate from the employer-conducted recruitment, this interim final rule at § 655.16 requires the SWA, upon acceptance of the job order and
Paragraph (d) provides 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. This provision does not require employers to conduct employment interviews under this provision. Rather, employers are barred from offering preferential treatment to potential H–2B workers, including any requirement to interview for the job
To ensure no adverse effect to U.S. workers, paragraph (e) requires that the employer must consider all U.S. applicants for the job opportunity and that the employer must accept and hire any applicants who are qualified and who will be available for the job opportunity.
Paragraph (f) requires the employer to prepare a recruitment report meeting the requirements of § 655.48.
Section 655.41 of this interim final rule requires that all employer recruitment contain terms and conditions of employment no less favorable than those offered to the prospective H–2B workers and provide the terms and conditions of employment necessary to apprise U.S. workers of the job opportunity.
Paragraph (a) requires that all recruitment must, at a minimum, comply with the assurances applicable to job orders as set forth in § 655.18(a). While this requires advertising to conform to the job order assurances and include the minimum terms and conditions of employment, it does not require an advertisement to include the full text of the assurances applicable to job orders. Consistent with § 655.18(a), all job qualifications and requirements listed in the employer's advertising must be bona fide and consistent with normal and accepted job qualifications and requirements.
Paragraph (b) provides a list of the minimum terms and conditions of employment that must be included in all advertising, including 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. In requiring that advertisements comply with the assurances from the job order and meet minimum content requirements, but not requiring that advertisements contain all of the text of the assurances from the job order, we strike a balance between the employer's cost in placing potentially lengthy advertisements and the need to ensure 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 help employers comply with these requirements, we provide below specific language which is sufficient on the issues of transportation; the three-fourths guarantee; and tools, equipment, and supplies to apprise U.S. applicants of those required items in the advertisement. As provided above, the employer may also abbreviate some of this language so long as the underlying guarantee can be clearly understood by a prospective applicant. The following statements in an employer's advertisements are permitted:
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.
The interim final rule at § 655.41(b)(14) requires all employer advertisements to direct applicants to apply for the job at the nearest SWA office because we conclude 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 interim final rule at § 655.41(b)(1) requires that employers include their contact information to enable such direct contact. We anticipate that the enhanced role of the SWA in employee referrals and the additional duties inherent in that role will be offset through the elimination of the requirement for the SWA to conduct employment verification activities as discussed further below.
As under the 2008 rule, this interim final rule at § 655.42(a) requires 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, at least one appearing in a Sunday edition. In addition this paragraph requires the employer to place the advertisement(s) in a language other than English where the CO determines it is appropriate. Further, we eliminate the employer's option under the 2008 rule to replace one of the newspaper advertisements with an advertisement in a professional, trade, or ethnic newspaper.
Newspapers of general circulation remain an important source for recruiting U.S. workers, particularly those interested in positions typically found in the H–2B program. Low-wage workers are less likely to have internet access than more skilled workers, and are thus more likely to search for jobs using traditional means. Particularly given that the CO has authority to require the newspaper advertisement to be published in a language other than English, newspapers continue to be a valuable source for recruitment. In addition, newspaper advertisements are also recognized as information sources likely to generate informal, word of mouth referrals. 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 these types of job opportunities.
Paragraph (b) provides the CO with discretion to direct the employer, in place of a Sunday edition, to advertise in the regularly published daily print edition with the widest circulation in the area of intended employment if the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition. This provision is similar to the 2008 rule, which required an employer to advertise in the regularly published daily edition with the widest circulation in the area of intended employment if the job opportunity was located in such an area.
Paragraph (c) provides that the newspaper advertisements must meet the requirements in § 655.41.
Paragraph (d) requires the employer to maintain documentation of its newspaper advertisements in the form of copies of newspaper pages (with date of publication and full copy of the advertisement), 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 § 655.56. It further requires that if the advertisement was required to be placed in a language other than English, the employer must maintain a translation and retain it in accordance with § 655.56.
This provision requires employers to make reasonable efforts to contact by mail or other effective means its former U.S. workers who were employed by the employer in the same occupation at the place of employment during the previous year before the date of need listed in the
Each employer must provide its former U.S. employees a full disclosure of the terms and conditions of the job order, and solicit their return to the job. Employers will be required to maintain documentation to be submitted in the event of an audit or investigation sufficient to prove contact with its former employees consistent with document retention requirements under § 655.56. This documentation may consist of a copy of a form letter sent to all former employees, along with evidence of its transmission (postage account, address list, etc.).
Although the requirement focuses on a longer period of time than the requirement under the 2008 rule, it is unlikely that it will impose a significantly greater burden on employers. Typically, employers will have laid off seasonal or temporary U.S. workers at the end of the period of need, which was up to 10 months under the 2008 rule. This means that such workers are those whom the employer would have been required to contact under § 655.15(h) under the 2008 rule. If for some reason, the employer did lay off some workers who were hired to work during the employer's period of temporary need, before the end of the period of need—
The Departments recognize that collective bargaining agreements may require the employer to contact laid-off employees in accordance with specific terms governing recall and a recall period. The requirement in this section that the employer contact former employees employed by the employer during the prior year would not substitute for the terms in a collective bargaining agreement. The employer is separately obligated to comply with the terms and conditions of the bargaining agreement, which may include recall provisions that cover workers employed by the employer beyond the prior year.
The Departments also recognize that some unscrupulous employers may use termination as a means of retaliating against workers who complain about unlawful treatment or exercise their rights under the program. However, the requirement in this interim final rule that each employer affirmatively attest that it has not engaged in unfair treatment as defined in § 655.20(n),
Paragraph (a) of this section requires 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 by providing a copy of the
Paragraph (b) requires that, where there is no bargaining representative of the employer's employees, the employer must post a notice to its employees of the job opportunities for at least 15 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. Web posting can fulfill this requirement in some circumstances.
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 provide 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. This
Paragraph (c) provides, in addition to the requirements for notification to bargaining representatives or employees in this section, that the CO may also 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 occupations. ETA administers our nation's public exchange workforce system through a series of One-Stop Career Centers. These One-Stop Centers provide a wide range of employment and training services for workers through job training and outreach programs such as job search assistance, job referral and job placement services, and also provide recruitment services to businesses seeking workers. Community-based organizations with employment programs including workers who might be interested in H–2B job opportunities have established relationships with the One-Stop Career Center network. The One-Stop Center in or closest to the area of intended employment will be, in most cases, the designated point of contact the CO will give employers to use to provide notice of the job opportunity. This provides the employer with access not only to the community-based organization, but to a wider range of services of assistance to its goal of meeting its workforce needs. This contact is to be made when designated specifically by the CO in the Notice of Acceptance as appropriate to the job opportunity and the area of intended employment.
We note that, not unlike additional recruitment (discussed below), 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 and individuals who may be seeking positions in H–2B occupations that require little or no specialized knowledge. Although we will not require each employer to make this type of contact, this provision, where directed by the CO, will assist with fulfilling the intent of the H–2B program and enhancing the integrity of the labor market test.
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 who are likely to be available for a job opportunity, § 655.46 of this interim final rule provides the CO with discretion to require the employer to engage in additional reasonable recruitment activities. Paragraph (a) provides the CO with discretion to order additional reasonable recruitment where the CO has determined that there is a likelihood that U.S. workers are qualified and who will be available for the work, including, but not limited to, where the job opportunity is located in an Area of Substantial Unemployment. This discretion may be exercised, including in Areas of Substantial Unemployment where appropriate, where additional recruitment efforts will likely result in more opportunities for and a greater response from available and qualified U.S. workers. In addition, we recognize that the increased rate of technological innovation, 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 pace with the ever-changing labor market trends.
Areas of Substantial Unemployment by their nature have a higher likelihood of worker availability; DOL's recognition of worker availability in these areas is a strong indicator that these open job opportunities may have more receptive potential populations. However, Areas of Substantial Unemployment are only one example of a situation in which the CO has discretion to order additional recruitment. This discretion permits DOL 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. It is also within the CO's discretion to determine that such additional efforts are unlikely to result in additional meaningful applications for the job opportunity.
Additional positive recruitment under this paragraph 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. Thus, additional recruitment will not result in any delay in certification.
Paragraph (b) provides that, if the CO elects to require additional recruitment, the CO will describe the number and type of additional recruitment efforts required. This paragraph also provides a non-exclusive list of the types of additional recruitment that may be required by the CO, including, where appropriate: 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 reasonable additional print advertising. 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, where appropriate, and will consider both the cost and the likelihood that the additional recruitment will identify qualified and available U.S. workers, and where appropriate opt for the least burdensome method(s). CO-ordered efforts to contact community-based organizations and/or One-Stop Career Centers under this section are in addition to the requirements in §§ 655.16 and 655.45.
Paragraph (c) provides that, where the CO requires additional recruitment, the CO will specify the documentation or other supporting evidence that must be maintained by the employer as proof that the additional recruitment requirements were met. Documentation must be maintained as required in § 655.56.
Section 655.47 of this interim final rule requires that SWAs refer for employment only individuals who have been informed of the material terms and conditions of the job opportunity and are qualified and will be available for employment. Unlike the 2008 rule, this interim final rule does not require that the SWAs conduct employment (I–9) eligibility verification.
In light of limited resources, we have determined that the requirement under the 2008 rule that SWAs conduct employment eligibility verification of job applicants was 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.
The elimination of the requirement that SWAs conduct employment eligibility verification 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 the contrary, many H–2B referrals are not staff-assisted but are instead self-referrals (
The Departments do not presume that the judgment of the SWAs as to an applicant's qualifications is irrebuttable or a 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 DOL that the applicant was rejected only for lawful, job-related reasons.
Consistent with the requirements of the 2008 rule, paragraph (a) continues to require the employer to submit to the Chicago NPC a signed recruitment report. Unlike the 2008 rule, however, this interim final rule requires 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
Paragraph (a) further details the information the employer is required to include in the recruitment report, including the recruitment steps undertaken and their results, as well as other pertinent information. The provision 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 DOL to ensure the employer has met its obligation and the agency has met its 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.
Paragraph (b) requires the employer to update the recruitment report throughout the referral period to ensure that the employer accounts for contact with each prospective U.S. worker. The employer is not required to submit the updated recruitment report to DOL, but is required to retain the report and make it available in the event of a post-certification audit, a WHD investigation, or upon request by the CO.
DOL notes that it continues to reserve the right to post any documents received in connection with the
This section corresponds to 20 CFR 655.32(a) and (b) in the 2008 rule. Paragraph (a) generally authorizes the OFLC Administrator and center-based COs to certify or deny
This section requires, as conditions of certification, that the employer have a valid
This section generally corresponds to 20 CFR 655.32(d) in the 2008 rule, but has been updated to better reflect current practices and DOL's experience. In cases where the application is approved, this interim final rule requires that the CO use electronic mail or other next day delivery methods to send the Final Determination letter to the employer and, when applicable, a copy to the employer's representative. The requirement for next-day delivery is designed to add efficiency and economy
This section generally corresponds to 20 CFR 655.32(e) in the 2008 rule, but has been updated in ways similar to § 655.52, above. In cases where the application is denied, this provision, as in § 655.52, requires that the CO use electronic mail or other means of next day delivery to send the Final Determination letter to the employer and, when applicable, a copy to the employer's attorney or agent. The Final Determination letter must state the reasons for the denial, and cite the relevant regulatory provisions that govern. The letter must also advise the employer of its right to seek administrative review of the determination and of the consequences, should the employer elect not to appeal.
This section generally corresponds to 20 CFR 655.32(f) in the 2008 rule. It grants the CO authority to issue a partial certification that reflects either a shorter-than-requested period of need or a lower-than-requested number of H–2B workers, or both. For each qualified, available U.S. worker the SWA has referred or who applies directly with the employer, and whom the employer has accepted or has rejected for reasons that are unlawful or unrelated to the job, the CO will reduce by one the number of H–2B workers certified. To issue a partial certification, the CO will amend the application and return it and a Final Determination letter to the employer, with a copy to the employer's representative. The letter must state the reasons for the reduction, and governing legal authority; when appropriate, address the availability of U.S. workers in the occupation; explain the employer's right to seek administrative review; and describe the consequences, should the employer elect not to appeal.
This section mirrors 29 CFR 503.18 and corresponds to 20 CFR 655.34(a) and (b) in the 2008 rule, establishing the period of time and scope for which an
This section brings together recordkeeping requirements that appeared in separate paragraphs throughout the 2008 rule, including 20 CFR 655.6(e), 655.10(i), and 655.15(c) and (j). These requirements are similar to those in the WHD provisions of this interim final rule, at 29 CFR 503.17. Under § 655.56, employers must retain documents and records proving compliance with this subpart and the WHD regulation at 29 CFR part 503, including but not limited to the documents listed in paragraph (c). Paragraph (c) lists, among other things, the
This requirement is substantively similar to the record retention requirement currently in place for H–2B employers. In addition, employers keeping records under this provision may keep those records electronically. Hence, this requirement does not create significant additional burden. Further, the records this provision covers serve a critical purpose in the operation and integrity of the H–2B program. For example, in the past, DOL has used employer records to make basic decisions related to the certification, verify compliance with program requirements, and confirm the nature of payments under contracts with agents or recruiters.
This section addresses employers for which certified numbers have been reduced due to the existence of qualified, available U.S. workers who later fail to report for work or fail to stay for the period of the contract. In such cases, the employer may request a new determination from the CO, who must make a determination within 72 hours after receiving the complete request. The employer must submit its request directly to the CO, attach a statement signed by the employer, and include contact information for every U.S. worker whom the employer claims has become unavailable and the reason for nonavailability.
If the CO denies a new determination, the employer may appeal. If the CO cannot identify sufficient available U.S. workers, the CO will grant the
Sections 655.60 through 655.63 concern actions an employer may take after an
Under the interim final rule, there will be 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 the
The provision requires that the employer submit its request to the CO in writing and provide documentation showing that the extension is needed and that the employer could not have reasonably foreseen the need. Except in extraordinary circumstances, extensions are available only to employers whose original certified period of employment is less than the 9-month maximum period allowable in this subpart.
This provision sets forth the procedures for BALCA review of a decision of a CO. Subparagraph (a) provides the timeframe within which requests must be made and sets forth the various requirements related to the request, including that requests must contain only legal argument and be limited to evidence that was actually submitted to the CO before the date the CO's determination was issued. This provision does not provide for de novo review.
The substance of this provision is the same as that in the 2008 rule. However, this provision does not refer to the particular decision of the CO that may be appealed, such as the denial of temporary labor certification. Rather, this provision refers generally to the decisions of the CO that may be appealed, where authorized in this subpart. These decisions are identified in the section of the interim final rule that discusses the CO's authority and procedure for making that particular decision. Additionally, this provision increases from 5 business days to 7 business days: the time in which the CO will assemble and submit the appeal file in § 655.61(b); the time in which the CO may file a brief in § 655.61(c); and the time BALCA should provide a decision upon the submission of the CO's brief in § 655.61(f).
Under this provision, an employer may withdraw an
This provision codifies DOL's 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 temporary labor certifications. The database will continue to include non-privileged 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 Departments through FOIA requests.
Sections 655.70 through 655.73 have been grouped together under the heading Integrity Measures, describing those actions DOL plans to take to ensure that an
The Departments have not elected to establish procedures to allow for workers and organizations of workers to intervene and participate in the audit, revocation, and debarment processes. Such procedures would be administratively infeasible and inefficient and would cause numerous delays in the adjudication process. For example, 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.
This section outlines the process under which the CO will conduct audits of adjudicated temporary employment certification applications. These provisions are similar to the 2008 rule. The Departments' mandate to ensure that qualified workers in the United States are not available and that the foreign worker's employment will not adversely affect wages and working conditions of similarly employed U.S. workers serves as the basis for the Departments' authority to audit adjudicated applications, even if the employer's application was 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 those applications because they could be used to establish a record of employer compliance or non-compliance with program requirements and because the information they contain assists DOL in determining whether it needs to further investigate or debar an employer or its
Paragraph (a) provides the CO with sole discretion to choose which
Paragraph (c) permits the CO to request additional information and/or documentation from the employer as needed in order to complete the audit. Paragraph (d) provides that the CO may provide any findings made or documents received in the course of the audit to DHS or other enforcement agencies, as well as WHD. The CO may also refer any findings that an employer discriminated against a qualified U.S. worker to the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Paragraph (a) of this provision permits the CO to require an employer to participate in assisted recruitment for any future
Under paragraph (b) 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
As set forth in paragraph (c), the assisted recruitment may consist of, but is not limited to, reviewing the employer's advertisements before posting and directing the employer where such advertisements are to be placed and for how long, requiring the employer to conduct additional recruitment, 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 materially fails to comply with the requirements of this section, paragraph (d) provides that the employer's application will be denied and the employer may be debarred from future program participation under § 655.73.
Under this section, OFLC can revoke an approved H–2B temporary labor certification under certain conditions, including where there is fraud or willful misrepresentation of a material fact in the application process as defined in § 655.73(d), or a substantial failure to comply with the terms and conditions of the certification, as defined in § 655.73(d) and (e). Discussion of the standards used in determining willful misrepresentations and substantial failures is discussed in the preamble to 29 CFR 503.19 (Violations) of this interim final rule. OFLC may also revoke a certification upon determining that the employer failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit, or law enforcement function, or that 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 of Labor, with respect to the H–2B program.
The procedures for revocation begin with OFLC sending the employer a Notice of Revocation. Upon receiving the Notice of Revocation, the employer has two options: (1) It may submit rebuttal evidence or (2) appeal the revocation under the procedures in § 655.61. If the employer does not file rebuttal evidence or an appeal within 10 business days of the date of the Notice of Revocation, the Notice will be deemed final agency action and will take effect immediately at the end of the 10-day period. If the employer chooses to file rebuttal evidence, and the employer timely files that evidence, OFLC will review it and inform the employer of the final determination on revocation within 10 business days of receiving the rebuttal evidence.
If OFLC determines that the certification should be revoked, OFLC will inform the employer of its right to appeal under § 655.61. The employer must file the appeal of OFLC's determination within 10 business days, or OFLC's decision becomes the final decision of the Secretary and will take effect immediately after the 10-day period.
If the employer chooses to appeal either in lieu of submitting rebuttal evidence, or after OFLC makes a determination on the rebuttal evidence, the appeal will be conducted under the procedures contained in § 655.61. The timely filing of either the rebuttal evidence or an administrative appeal stays the revocation pending the outcome of those proceedings. If the temporary labor certification is ultimately revoked, OFLC will notify DHS and the Department of State.
Section 655.72(c) lists an employer's continuing obligations to its H–2B and corresponding workers if the employer's H–2B certification is revoked. The obligations include reimbursement of actual inbound transportation, visa, and other expenses (if they have not been paid), payment of the workers' outbound transportation expenses, payment to the workers of the amount due under the three-fourths guarantee; and payment of any other wages, benefits, and working conditions due or owing to workers under this subpart.
When an employer's certification is revoked, the revocation applies to that particular certification only; violations relating to a particular certification will not be imputed to an employer's other certifications in which there has been no finding of employer culpability. However, in some situations, 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 OFLC finds that the employer meets either the basis for revocation in subparagraph (a)(3) of this section (failure to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit, or law enforcement function) or in subparagraph (a)(4) of this section (failure to comply with sanctions or remedies imposed by WHD or with decisions or orders of the Secretary of Labor 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 OFLC finds that violations of paragraphs (a)(1) or (a)(2) of this section affect all of the
The Departments recognize the seriousness of revocation as a remedy; accordingly, the bases for revocation reflect violations that significantly undermine the integrity of the H–2B program. OFLC intends to use the authority to revoke only when an employer's actions warrant such a severe consequence. OFLC does not intend to revoke certifications if an employer commits minor mistakes.
This interim final rule revises the debarment provision from the 2008 rule to strengthen the enforcement of H–2B labor certification requirements and to clarify the basis under which debarment may be applied. Under § 655.73(a), OFLC may debar an employer if it finds that the employer: willfully misrepresented a material fact in its
Section 655.73(d) provides the standard for determining whether a violation was willful. Section 655.73(e) describes the factors that OFLC may consider in determining whether a violation constitutes a significant deviation from the terms and conditions of the
Section 655.73(f) provides a comprehensive but not exhaustive list of violations that would warrant debarment where the standards in § 655.73(d)–(e) are met. This is an updated list of debarrable violations from the 2008 rule. The most significant differences are that a single act, as opposed to a pattern or practice of such actions, would be sufficient to merit debarment and that the following violations would be considered debarrable:
• Improper layoff or displacement of U.S. workers or workers in corresponding employment (§ 655.73(f)(4));
• A violation of the requirements of § 655.20(o) or (p) concerning fee shifting and related matters (§ 655.73(f)(10));
• A violation of any of the anti-discrimination provisions listed in § 655.20(r) (§ 655.73(f)(11));
• Failure to comply with the assisted recruitment process (§ 655.73(f)(7)); and
• A material misrepresentation of fact during the registration or application process (§ 655.73(f)(14)).
The procedures for debarment are similar to the debarment procedures contained in the 2008 rule. They begin with OFLC sending the employer, attorney, or agent a Notice of Debarment. Upon receiving the Notice of Debarment, the party has two options: It may submit rebuttal evidence or request a hearing. If the party does not file rebuttal evidence or request a hearing within 30 days, the Notice will be deemed final agency action and will take effect immediately at the end of the 30-day period. If the party timely files rebuttal evidence, OFLC will review it and inform the party of the final determination on debarment within 30 days of receiving the rebuttal evidence. If OFLC determines that the party should be debarred, OFLC will inform the party of its right to request a hearing. The party must request a hearing of OFLC's determination within 30 days, or OFLC's decision becomes the final decision of the Secretary of Labor and will take effect immediately at the end of the 30-day period. The timely filing of either the rebuttal evidence or a hearing request stays the debarment pending the outcome of those proceedings.
If the employer chooses to request a hearing either in lieu of submitting rebuttal evidence, or after OFLC makes a determination on the rebuttal evidence, the hearing will be conducted before an Administrative Law Judge (ALJ) under the procedures contained in 29 CFR part 18. After the hearing, the ALJ must affirm, reverse, or modify OFLC's determination. The ALJ's decision becomes the final agency action unless either party seeks review of the decision with the Administrative Review Board (ARB) within 30 days. If the ARB declines to accept the petition or does not issue a notice accepting the petition for review within 30 days, the ALJ's decision becomes the final agency action. If the ARB accepts the petition for review, the ALJ's decision is stayed until the ARB issues a decision.
Paragraph (h) of this section provides that copies of final DOL debarment decisions will be forwarded to DHS and DOS promptly.
WHD also has independent debarment authority under this interim final rule.
Finally, § 655.73(i) provides that an employer, agent, or attorney who is debarred by OFLC or WHD from the H–2B program will also be debarred from all other foreign labor certification programs administered by DOL for the time period in the final debarment decision. Many employers, agents and attorneys participate in more than one foreign labor certification program administered by DOL. However, under the 2008 rule, a party that was debarred under the H–2B program could continue to file applications under DOL's other foreign labor programs. Under this interim final rule DOL will refuse to accept applications filed by or on behalf of a debarred party under the H–2B program in any of DOL's foreign labor certification programs.
Although DOL does not have the authority to routinely seek debarment of entities that are not listed on the ETA
This interim final rule does not limit debarment to employers. Under § 655.73(b), agents and attorneys of the employer may be debarred for their own violations as well as their participation in an employer's violation (under the 2008 rule agents could only be debarred for their participation in an employer's violation). As discussed under § 655.8, the Departments have had 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. However, the Departments recognize that the vast majority of employers file H–2B temporary employment certification applications using an agent, and that many of these agents are intimately familiar with the H–2B program requirements, and help guide employers through the process. The Departments believe that, in order to improve program integrity and compliance, these agents and attorneys should be accountable for their own program violations, just as their employer-clients are.
The agents and attorneys who file applications on behalf of employers certify under penalty of perjury on the ETA Form 9142B
The Departments 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. DOL will be sensitive to the facts and circumstances in each particular instance when considering whether an attorney or agent has participated in an employer's violation; DOL 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.
OFLC and WHD publicly post a list of employers, agents, or attorneys who have been debarred under all of the labor certification programs. Where circumstances warrant, DOL 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.
Under this interim final rule, an employer, attorney, or agent may not be debarred for less than 1 year nor more than 5 years from the date of the final debarment decision. This increases the maximum debarment period, which was 3 years in the 2008 rule. The 1 to 5-year range for the period of debarment is consistent with the H–2B enforcement provisions in the INA, and the Departments believe that it is appropriate to apply the same standard in our regulations. 8 U.S.C. 1184(c)(14)(A)(ii), INA section 214(c)(14)(A)(ii);
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, DOL cannot ensure any particular timing for the debarment process, or that the timing would align before an employer obtains authorization to bring in H–2B workers for another season.
Effective January 18, 2009, pursuant to INA section 214(c)(14)(B), DHS transferred to DOL enforcement authority for the provisions in section 214(c)(14)(A)(i) of the INA that govern petitions to admit H–2B workers.
The Departments have carefully reviewed the 2008 rule, and this interim final rule provides substantive changes to both the certification and enforcement processes to enhance protection of U.S. and H–2B workers.
This interim final rule includes a new part, 29 CFR part 503, to further define and clarify the protections for workers. This part and 20 CFR part 655, subpart A, have 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 Departments have enhanced 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 it did under the 2008 rule.
To ensure consistency and clear delineation of responsibilities between DOL 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 interim final rule in 20 CFR part 655, subpart A, to amend the employer certification process.
Sections 503.0 through 503.8 provide general background information about the H–2B program and its operation. Section 503.1 is similar to the 2008 rule provision at 20 CFR 655.1; it explains the standards governing the H–2B program, the respective roles of ETA and WHD, and the consultative role played by DOL. Section 503.2 is similar to the 2008 rule provision at 20 CFR 655.2; it explains in particular that WHD does not enforce compliance with the provisions of the H–2B program in the Territory of Guam. Section 503.3 describes how DOL will coordinate both internally and with other agencies.
This section contains definitions that are identical to those contained in 20 CFR part 655, subpart A, except that this section contains only those definitions applicable to this part. The preamble to 20 CFR 655.5 contains the relevant discussion of these definitions.
This section mirrors the requirements set forth in 20 CFR 655.6; the preamble to that section includes a full discussion of this provision.
This section prohibits an employer from seeking to have workers waive or modify any rights granted them under these regulations. Under this provision, any agreement purporting to waive or modify such rights is void, with limited exceptions. The Departments recognize the vulnerability of foreign H–2B workers, and believe that the non-waiver principle is important to ensure that unscrupulous employers do not induce waiver of rights under the program. Such waiver would also undermine the required H–2B wages and working conditions, which are necessary to prevent an adverse effect on U.S. workers. This provision is also consistent with similar prohibitions against waiver of rights under other laws, such as the Family and Medical Leave Act,
This section retains the authority established under 20 CFR 655.50 of the 2008 rule, and affirms WHD's authority to investigate employer compliance with these regulations and WHD's obligation to protect the confidentiality of complainants. This section also discusses the reporting of violations. 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
This section notes that information, statements, and data submitted in compliance with 8 U.S.C. 1184(c), INA section 214(c), or these regulations are subject to 18 U.S.C. 1001, under which entities that make false representations to the government are subject to penalties, including a fine of up to $250,000 and/or up to 5 years in prison.
This section provides that the investigation, inspection, and law enforcement functions that carry out the provisions of 8 U.S.C. 1184(c), INA section 214(c), and the regulations in this interim final rule pertain to the employment of H–2B workers, any worker in corresponding employment, or any U.S. worker improperly rejected for employment or improperly laid off or displaced. WHD investigates complaints filed by both foreign and U.S. workers affected by the H–2B program, as well as concerns raised by other federal agencies, such as DHS or DOS, regarding particular employers and agents. WHD also conducts targeted or directed (
Corresponding workers, as defined under 20 CFR 655.5, are included in these enforcement provisions in order to ensure that U.S. workers are not adversely affected by the employment of H–2B workers. The preamble at 20 CFR 655.5 discusses the rationale for including corresponding workers in this interim final rule. The Departments believe that giving corresponding workers this means of redress is critical to effectuating their mandate to ensure that the certification and employment of H–2B aliens does not harm similarly-situated U.S. workers. Further, it helps to prevent situations where U.S. workers who are employed alongside H–2B workers are not afforded the pay, benefits, and worker protections that their H–2B counterparts enjoy.
The assurances and obligations described in this section are identical to those in 20 CFR 655.20. The preamble to 20 CFR 655.20 contains the relevant discussion of the assurances and obligations for employers participating in the H–2B program.
The document retention requirements in this section are similar to those in 20 CFR 655.56, with minor differences related to OFLC's and WHD's separate interests. The preamble to 20 CFR 655.56 discusses these recordkeeping requirements. Employers must retain documents and records proving compliance with the regulations, including but not limited to the specific documents listed in this section that require, for example, retention of documentation showing employers' recruitment efforts, workers' earnings, and reimbursement of transportation and subsistence costs incurred by workers. This section does not require employers to create any new documents, but simply to preserve those documents that are already required for participation in the H–2B program. The Departments believe that these documentation retention requirements and a retention period of 3 years will be sufficient for purposes of WHD's enforcement responsibilities in this interim final rule, which, as discussed in the preamble introducing this part, have been augmented by the addition of workers in corresponding employment to the protected worker group, 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.
Employers are required to make such records available to WHD within 72 hours following a request by WHD. This time frame is the same under the FLSA, where 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; indeed, 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.
This section mirrors 20 CFR 655.55, and corresponds to 20 CFR 655.34 (a) and (b) in the 2008 rule, providing the time frame and scope for which an
Under this section, the Departments specify the types of violations that may be cited as a result of an investigation. However, the definitions and concepts used in this section apply to all violations under the H–2B program, 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, monetary or other remedies assessed by WHD pursuant to § 503.20, or civil money penalties assessed by WHD pursuant to § 503.23.
Under paragraphs (a)(1) and (3) of this section, a violation may consist of a willful misrepresentation of a material fact on the
Violations under the H–2B program, both in the 2008 rule and this interim final rule, have been defined in accordance with the INA's provisions regarding H–2B violations. 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), INA section 214(c)(14)(D). The
Based on this statutory language, it is the Departments' view that non-willful violations are not cognizable under the H–2B program. In this interim final rule, the basis for determining violations continues to be either a misrepresentation of material fact or a substantial failure to comply with terms and conditions, both of which will be determined to be a violation if the evidence surrounding the violation establishes that it is willful.
Further, tracking the INA language, 8 U.S.C. 1184(c)(14)(D), INA section 214(c)(14)(D), a substantial failure continues to be defined as willful as well as a significant deviation from the terms or conditions of a petition.
When WHD encounters violations that do not rise to the level of willfulness, it puts the party on notice regarding future compliance. WHD will consider subsequent violations committed with the knowledge that such acts or omissions violate H–2B program requirements to be willful. In evaluating whether a first-time violation constitutes a willful violation, WHD will look at all circumstances, including the fact that employers submit a signed
This section sets forth the remedies that WHD will pursue when it determines that there has been a violation(s), as described in § 503.19. These remedies are largely the same types of remedies WHD pursued in its enforcement under the 2008 rule, see 20 CFR 655.65, upon determining that a violation had occurred. Remedies include but are not limited to the recovery of unpaid wages, recovery of prohibited recruitment fees paid or impermissible deductions, and wages due for improperly placing workers in areas of employment or in occupations other than those identified on the
a.
The Departments believe that requiring employers to incur the costs of recruitment is reasonable, even when taking place in a foreign country. However, the Departments recognize that an employer's ability to control the actions of agents and subcontractors across international borders is constrained, just as the Departments' ability to enforce regulations across international borders is constrained. As discussed in the preamble to 20 CFR 655.20(p), the Departments are 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 recruitment of prospective H–2B workers to seek or receive payments from prospective employees. DOL 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
When employers use recruiters, and in particular when they impose the contractual prohibition on collecting prohibited fees, they must make it abundantly clear that the recruiter and its agents or employees, whether in the United States or abroad, are not to receive remuneration from the foreign worker recruited in exchange for access to a job opportunity or in exchange for having that worker maintain that job opportunity. For example, evidence showing that the employer paid the recruiter no fee or an extraordinarily low fee, or continued to use a recruiter about whom the employer had received credible complaints, could be an indication that the contractual prohibition was not bona fide. In addition, where WHD determines that workers have paid these fees and the employer cannot demonstrate the requisite bona fide contractual prohibitions, WHD will require the employer to reimburse the workers in the amount of these prohibited fees. However, where an employer has complied in good faith with this provision and has contractually prohibited the collection of prohibited fees from workers, and exercised reasonable diligence to ensure that its agents and others involved in the recruitment process, whether in the United States or abroad, adhere to this contractual prohibition, there is no willful violation.
b.
c.
d.
Under this section, the Departments clarify the different roles and responsibilities of OFLC and WHD, and note that both agencies have concurrent jurisdiction to impose debarment. Section 503.3(c) is intended to protect the employer from being debarred by both entities for a single violation.
The Solicitor of Labor will continue to represent the Administrator, WHD and the Secretary of Labor in all administrative hearings under 8 U.S.C. 1184(c)(14), INA section 214(c), and these regulations.
This interim final rule utilizes a CMP assessment scheme similar to the CMP assessment contained in the 2008 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. CMPs represent a penalty for non-compliance, and are payable to WHD for deposit with the Treasury.
Similar to the CMPs in the 2008 rule, the 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. There is also a catch-all CMP provision for any other violation that meets the standards in § 503.19. Section 503.23(e) sets forth the factors WHD will consider in determining the level of penalties to assess for all violations but wage violations, which are similar to the factors WHD used to determine the level of CMPs assessed under 20 CFR 655.65(g) in the 2008 rule. 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), INA section 214(c)(14)(A).
Under this section, WHD has the authority, upon finding a violation that meets the standards in § 503.19, to debar an employer, agent or attorney for not less than 1 year or more than 5 years. Section 503.24(a) contains a non-exhaustive list of acts or omissions that may constitute debarrable violations. Section 503.24(e) clarifies that while WHD and OFLC will have concurrent debarment jurisdiction, the two agencies will coordinate their activities so that a specific violation for which debarment is imposed will be cited in a single debarment proceeding. 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 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 bureaucratic hurdles by removing extra steps. Under the 2008 rule, WHD conducted investigations of H–2B employers and assessed back wages, civil money penalties, and other remedies, which the employer had the right to challenge administratively. However, WHD could not order debarment, no matter how egregious the violations, and instead was required to take the extra step of recommending that OFLC issue a Notice of Debarment based on the exact same facts, which then had to be litigated again by OFLC. Allowing WHD to impose debarment along with the other remedies it can already impose in a single proceeding will simplify and speed up this duplicative enforcement process, and result in less bureaucracy for employers who have received a debarment determination. Instead, administrative hearings and appeals of back wage and civil money penalties, which the WHD already handles, will now be consolidated with challenges to debarment actions based on the same facts, so that an employer need only litigate one case and file one appeal rather than two. This means that both matters can be resolved more expeditiously.
Moreover, WHD has extensive debarment experience under regulations implementing other programs, such as H–2A, H–1B, the Davis-Bacon Act, and the Service Contract Act.
WHD's debarment procedures at § 503.24(d) include procedural protections similar to the procedures in OFLC's debarment proceedings at 20 CFR 655.73, including notice of
The discussion of the time period for debarment in the preamble to OFLC's debarment provision at 20 CFR 655.73 applies equally to WHD's period of debarment. For the reasons stated under Debarment of Agents and Attorneys in 20 CFR 655.73, WHD may also debar agents and attorneys for their own independent violations as well as their participation in employer violations.
Section 503.24(f) provides that an employer, agent, or attorney who is debarred by OFLC or WHD from the H–2B program will also be debarred from all other foreign labor certification programs administered by DOL for the time period in the final debarment decision. Many employers, agents and attorneys participate in more than one foreign labor certification program administered by DOL. However, under the 2008 rule, a party that was debarred under the H–2B program could continue to file applications under DOL's other foreign labor programs. Under this interim final rule, DOL will refuse to accept applications filed by or on behalf of a debarred party under the H–2B program in any of DOL's foreign labor certification programs. Paragraph (e) of this section also provides that copies of final debarment decisions will be forwarded to DHS and DOS promptly.
Although DOL does not have the authority to routinely seek debarment of entities that are not listed on the ETA Form 9142, in appropriate circumstances, DOL may pierce the corporate veil in order to more effectively remedy the violations found. Piercing the corporate veil may be necessary to foreclose the ability of individual principals of a company or legal entity to reconstitute under another business entity.
This provision prohibits interference or refusal to cooperate with a DOL investigation or enforcement action. In addition, it describes the penalties for failure to cooperate. Specifically, it notes the federal criminal laws prohibiting interference with federal officers in the course of official duties and permits WHD to recommend revocation to OFLC, initiate debarment proceedings, and/or assess CMPs for failures to cooperate that meet the violation standards set forth in § 503.19.
This provision instructs employers regarding how to submit payment of any CMPs owed. This section is administrative in nature and slightly modifies the provision from the 2008 rule at 20 CFR 655.65(j).
This interim final rule generally adopts the applicable administrative proceedings from the 2008 rule at 20 CFR 655.70–655.80.
The administrative procedures begin with WHD notifying the party in writing regarding WHD's determination (§§ 503.41, 503.42). A party that wishes to appeal WHD's determination must request an ALJ hearing within 30 days after the date of the determination (§ 503.43). The determination will take effect unless the appeal is timely filed, staying the determination pending the outcome of the appeal proceedings (§ 503.43(e)).
The ALJ hearing will be conducted in accordance with 29 CFR part 18 (§ 503.44). The ALJ will prepare a decision following a hearing within 60 days after completion of the hearing and closing of the record (§ 503.50(a)). This decision will constitute the final agency order unless a party petitions the ARB to review the decision within 30 days and the ARB accepts a party's petition for review (§ 503.50(e)).
A party that wishes to review the ALJ's decision must, within 30 days, petition the ARB to review the decision, specifying the issue(s) stated in the ALJ decision giving rise to the petition and the reason(s) why the party believes the decision is in error (§ 503.51(a)–(b)). If the ARB does not accept the petition for review within 30 days, the decision of the ALJ is deemed the final agency action (§ 503.51(c)). When the ARB determines to review a petition, either on its own or by accepting a party's petition, it will serve notice on the ALJ and all parties to the proceeding (§ 503.51(d)). The ARB will notify the parties of the issue(s) raised, the form in which submissions will be made and the timeframe for doing so (§ 503.53). Upon receipt of the ARB's notice, the Office of Administrative Law Judges (OALJ) will forward a copy of the hearing record to the ARB (§ 503.52).
Section 503.54 provides the requirements for submission of documents to the ARB. The ARB's decision will be issued within 90 days from the notice granting the petition (§ 503.55). The official record of every completed administrative hearing will be maintained by the Chief ALJ, or, where the case was the subject of administrative review, the ARB (§ 503.56).
For the reasons stated in the preamble under Integrity Measures (20 CFR 655.70–655.73), the Departments have not adopted additional procedures allowing workers a right to intervene
Under Executive Order (E.O.) 12866 and E.O. 13563, the Departments 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 Departments have 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 Departments also have 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 results of the Departments' cost-benefit analysis under this Part (VI.A) are meant to satisfy the analytical requirements under Executive Orders 12866 and 13563. These longstanding requirements ensure that agencies select those regulatory approaches that maximize net benefits—including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity—unless otherwise required by statute. The Departments did not use the cost-benefit analysis under this Part (VI.A) for purposes forbidden by or inconsistent with the Immigration and Nationality Act, as amended
The Departments have determined that there is a need for this interim final rule in light of the litigation, described in the preamble, challenging DOL's authority to independently issue its own legislative rules in the H–2B program.
The Departments considered a number of alternatives: (1) Promulgating the policy changes contained in the interim final rule; (2) issuing the 2008 rule as the interim final rule; (3) and adopting various aspects of those two rules. The Departments conclude that this interim final rule retains the best features of the 2008 rule and adopts additional provisions to allow DOL to best achieve its policy objectives, consistent with its mandate under the H–2B program.
DOL had previously examined these same issues in a notice-and-comment rulemaking that was finalized in 2012; before issuing the 2012 final rule, DOL carefully considered the hundreds of substantive comments that were received and made a number of modifications to the provisions that had been in the proposed rule based upon those comments. DOL's implementation of the 2012 final rule was enjoined in the
However, in light of the
DOL derives its estimates by comparing the baseline, that is, the program benefits and costs under the 2008 rule, against the benefits and costs associated with the implementation of the provisions in this interim final rule. The benefits and costs of the provisions of this interim final rule are estimated as incremental impacts relative to the
DOL sought to quantify and monetize the benefits and costs of this interim final rule where feasible. Where DOL was unable to quantify benefits and costs—for example, due to data limitations—DOL described them qualitatively. The analysis covers 10 years (2015 through 2024) to ensure it captures major benefits and costs that accrue over time.
In addition, DOL provides an assessment of transfer payments associated with certain provisions of the interim final rule.
The inputs used to calculate the costs of this interim final rule are described below.
DOL estimates that from FY 2013–2014, an average of 87,998 H–2B positions were certified per year. Because the number of H–2B visas is statutorily limited, only a portion of these certified positions were ultimately filled by foreign workers.
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 (134.8 million).
According to H–2B program data for FY 2013–2014, the average annual numbers of H–2B positions certified in the top five industries were as follows:
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.
DOL estimates that from FY 2013–2014, an average of 4,657 unique employers applied for H–2B workers,
Several provisions of the interim 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.
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. DOL does not systematically collect data regarding what have been defined as corresponding employees, and therefore cannot identify the numbers of workers to whom the obligations would apply. DOL extensively examined alternative data sources that might be used to accurately estimate the number of corresponding workers.
First, DOL evaluated whether WHD field staff could provide reliable information on the number of corresponding workers employed by H–2B employers based on the data gathered during investigations. This information has not been relevant to WHD investigations because the 2008 rule did not have a definition of corresponding employees and did not protect such incumbent workers; it protected only workers who were newly hired in response to the employer's required H–2B recruitment activities. Anecdotal information from investigations indicates that the number of U.S. workers similarly employed varies widely among the companies investigated. However, no reliable data on the number of workers in corresponding employment compared to the number of H–2B workers is available, because no definition of corresponding employment existed in the 2008 rule. It also is unclear whether the limited numbers available in WHD investigations reflect the number of U.S. workers who were working during the pay period that WHD conducted the on-site investigation or the number who worked there at any point during the two-year period typically covered by an investigation. Further, there is no data regarding the length of the employment of the U.S. workers. Therefore, it is impossible to compare the pattern of employment of U.S. and H–2B workers. Finally, the limited data that is available did not represent a random sample of H–2B employers, but just the subset of employers that WHD had some reason to investigate.
Second, DOL reviewed a random sample of 225 certified and partially certified applications from FY 2010 submitted by employers in response to Requests for Information (RFIs) during the application process. While the 2011 version of ETA Form 9142B 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. (
DOL 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 that 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 DOL's estimate that there are a total of 115,500 H–2B employees at any given time, suggests that 19,939 permanent workers (115,500 × 0.17) would be eligible for pay raises due to the rule.
DOL 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 by 4.5 percent to match temporary worker wages.
For several reasons, however, DOL 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 DOL, the distribution of occupations represented in the payroll tables is not representative of the distribution of occupations in H–2B temporary employment certification applications. The 34 payroll tables examined by DOL 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 represented 35 percent of FY 2010 applications.
Second, the total number of payroll tables or payroll records provided to DOL was very small. DOL found only 34 payroll tables in 225 randomly selected applications. Furthermore, payroll records in H–2B temporary employment certification 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 DOL 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, DOL has no data regarding the number of employees who would fall under the two exclusions in the definition of corresponding employment.
DOL, therefore, cannot confidently rely on 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, DOL 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 on all the information available to us, including the payroll tables and DOL's enforcement experience, DOL attempted to quantify the impact of the corresponding employment provision. DOL notes that the 2008 rule already protected 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 interim final rule will have no impact on their wages. This interim 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, with the exception of the aforementioned incumbent employees. DOL believes that a reasonable estimate is that H–2B workers make up 75 to 90 percent of the workers in the particular job and location covered by a job order; DOL assumes, therefore, that 10 to 25 percent of the workers will be U.S. workers newly covered by the interim final rule's coverage of corresponding workers. This assumption does not discount for the fact, as noted above, that some of these U.S. workers are already 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 its estimate that there are a total of 115,500 H–2B workers employed at any given time, DOL thus estimates that there will be between 12,833 (if 90 percent are H–2B workers) and 38,500 (if 75 percent are H–2B workers) U.S. workers newly covered by the corresponding employment provision.
In this analysis, DOL uses the most recent OES wage data available from BLS, and its most recent estimate of the ratio of fringe benefit costs to wages, 44.1 percent.
For registry development and maintenance activities, DOL uses fully loaded rates based on an Independent Government Cost Estimate (IGCE) produced by OFLC in 2010,
The 2014 wages used in the analysis are summarized in Table 3.
Subject to the transfer of authority to DOL, this interim 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. Because that transfer has not been effectuated, this analysis does not reflect any costs related to employment in Guam.
DOL's analysis below considers the expected impacts of the interim final rule provisions against the baseline (
In order to ensure that the capped H–2B visas are appropriately made available to employers based on their actual need for workers, and to ensure that U.S. workers can realistically evaluate the job opportunity, DOL asserts 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 the substantially the same work as the H–2B workers, other than those that fall under one of the two exclusions in the definition. The former are part of the baseline for purposes of the wage obligation, as employers have always been required to pay U.S. workers recruited under the H–2B program the same prevailing wage that H–2B workers get. Of the latter group of corresponding workers, some will already be paid a wage equal to or exceeding the H–2B prevailing wage so their wages represent no additional cost to the employer. Those who are currently paid less than the H–2B prevailing wage will have to be paid at a higher rate, with the additional cost to the employer equal to the difference between the former wage and the H–2B wage.
As discussed above, DOL 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, DOL 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, DOL can reasonably 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 its estimate of the total number of H–2B workers (115,500) employed at any given time, DOL estimates 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. The prevailing wage calculation is based on the current wages received by all workers in the occupation and area of intended employment. Based on OES data,
These newly covered U.S. workers who are currently paid below the new H–2B prevailing wage as established in the final wage rule promulgated simultaneously with this interim final rule (generally the OES mean in the area of intended employment) are likely to receive a wage increase that would be the difference between the new H–2B prevailing wage and their current wage. DOL estimated the weighted wage differences between workers at the 10th percentile and workers at the OES mean ($3.22), between workers at the 25th percentile and workers at the OES mean ($2.39), and between workers at the 50th percentile and workers at the OES mean ($1.03), respectively, for the top five occupations of the H–2B program. Using these weighted average hourly wage differences, DOL assumes that the wage increases for newly covered corresponding workers will be distributed between three hourly wage intervals: 10 percent of newly covered corresponding workers will receive an average hourly wage increase of $3.22; 15 percent will receive an average hourly wage increase of $2.39; and 35 percent will receive an hourly wage increase of $1.03.
Finally, DOL estimates 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 on 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, DOL estimates the total annual transfer incurred due to the increase in wages for newly covered workers in corresponding employment ranges from $18.21 million to $54.62 million. See Table 4.
Also, based on DOL's 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. DOL found that two of the top five industries that most commonly employ H–2B workers are landscaping services and janitorial services. Establishments in these industries tend to be small: Approximately seven percent of janitorial service and three percent of landscaping establishments have more than 50 year-round employees; and 83 percent of janitorial services and 91 percent of landscaping establishments have fewer than 20 year-round employees.
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. A 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 which janitorial and landscaping services are classified) is highly diffused throughout the economy.
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 389 sectors, building services account for less than $0.01 for each dollar of output in 379 sectors, and less than $0.005 for each dollar of output in 369 sectors. The largest users of these services tend to be
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 DOL 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, DOL 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, 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 interim final rule requires H–2B employers to provide workers—both H–2B workers and those in corresponding employment who are unable to reasonably return to their permanent residences each day—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 United States 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, DOL first calculated the average number of certified H–2B positions per year during FY 2013–2014 from the 10 most common countries of origin, along with each country's proportion of this total.
DOL calculates transportation costs by adding two components: The estimated cost of a bus or ferry trip from a regional city
The travel cost estimates are presented in Table 6. DOL estimated the round-trip transportation costs by doubling the weighted average one-way cost (for a round-trip travel cost of $836), then multiplying by the annual number of H–2B workers entering the United States (66,000). DOL estimates average annual transfer payments associated with transportation expenditures to be approximately $55.2 million. Employers likely are already paying some of this cost, either voluntarily 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. However, it is not possible to determine how much of the cost of transportation employers currently are paying. To the extent that this does already occur, this transportation transfer is an upper-bound estimate. DOL also believes it has 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 interim final rule also requires the employer provide inbound and outbound transportation to and from the place of employment for corresponding workers who are unable to return daily to their permanent residences. DOL 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 ($86), Pittsburgh, PA ($135), Omaha, NE ($88), Nashville, TN ($81), and Palmdale, CA ($230).
Because DOL 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, DOL is unable to further estimate the total transfer involved.
DOL estimated the transfer related to subsistence payments by multiplying the annual cap set for the number of H–2B workers generally entering the United States (66,000) by the subsistence per diem ($11.86), and the round-trip travel time for the top 10 H–2B countries (4 days—3 days to account for travel from the worker's home town to the consular city to obtain a visa and from the consular city to the place of employment, and 1 day to account for the workers' transportation back to their home town). Multiplying by 66,000 new entrants per year and the subsistence per diem of $11.86 results in average annual transfers associated with the subsistence per diem of approximately $3.1 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 round-trip travel days at a rate of $11.86 per day, each corresponding worker would receive $23.72 in subsistence payments. DOL 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.
Any expenses incurred between a worker's hometown and the consular city are within the scope of inbound transportation and subsistence costs, which also includes 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. DOL estimates that H–2B workers will spend an average of two nights in an inexpensive hostel-style accommodation and the costs of those stays in consular cities of the 10 most common countries of origin are as follows: Monterrey (Mexico), $13.81; Kingston (Jamaica), $22.72; Guatemala City (Guatemala), $13.25; London (United Kingdom), $38.66; Pretoria (South Africa), $17.55; Manila (Philippines), $11.25; San Salvador (El Salvador), $10.00; Tegucigalpa (Honduras), $15.78; Ottawa (Canada), $25.06; and Bucharest (Romania), $10.38.
Under the 2008 rule, visa-related fees—including fees required by the Department of State for scheduling and/or conducting an interview at the Consulate—may be paid by the temporary worker. This interim 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
The reimbursement by employers of visa application fees and fees for scheduling and/or conducting an interview at the consular post is a transfer from employers to H–2B workers. DOL estimates the total cost of these expenses by adding the cost of an H–2B visa and any applicable appointment and reciprocity fees. The H–2B visa fee is $160 in all of the 10 most common countries of origin. We have not attributed a cost with respect to Canada because Canadian citizens traveling to the United States for temporary employment generally do not need a visa,
The interim 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 “j” below, which discuss additional provisions aimed at further improving the recruitment of U.S. workers.
The extension of the referral period in this interim final rule will likely result in more U.S. workers applying for these jobs, requiring more SWA staff time to process additional referrals. DOL 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.
DOL 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 DOL 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 interim 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
Under the interim final rule, an employer may be directed by the CO to conduct additional recruitment if the CO has determined that there may be qualified U.S. workers available, particularly when the job opportunity is located in an area of substantial unemployment. This provision applies to all employer applicants regardless of whether they ultimately employ H–2B workers. Therefore, DOL estimates costs using the estimated number of unique employer applicants for FY 2013–2014 (4,657). DOL conservatively estimates that 50 percent of these employer applicants (2,329) will be directed by the CO to conduct additional recruitment.
To estimate the cost of a newspaper advertisement, DOL calculates the cost of placing a classified advertisement in the following newspapers: The Virginian Pilot ($574.00),
DOL estimates that no more than 10 percent of employer applicants (
To account for labor costs in posting additional ads, DOL multiplies the estimated number of unique employer applicants required to conduct additional recruiting (2,329) 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 ($34.15). The result, $0.01 million, is added to the average annual cost of CO-directed recruiting activities for a total of approximately $0.8 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, DOL is unable to quantify the impact.
Under the interim final rule, DOL 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 interim 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 DOL's administration of
The establishment of an electronic job registry in this interim final rule represents increased maintenance costs to DOL. DOL 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 ($1,342) suggests that 105 labor hours will be required in the first year, and 35 labor hours will be required in subsequent years (see Table 12).
The interim final rule requires an employer to provide a copy of the job order to H–2B workers outside the United States no later than the time at which the worker applies for the visa, and to workers 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.
DOL estimates 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 2013–2014, 89.1 percent of H–2B workers work in an industry other than reforestation, suggesting that the job order will need to be reproduced for 102,911 (89.1 percent of 115,500) H–2B workers. DOL estimates the cost of reproducing the terms and conditions document by multiplying the number of affected H–2B workers (102,911) by the number of pages to be photocopied (3) and by the cost per photocopy ($0.09). DOL estimates average annual costs of reproducing the document containing the terms and conditions of employment to be approximately $0.03 million (see Table 13).
DOL estimates that 91.6 percent of H–2B workers from the top 10 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 $0.2 million (see Table 13).
The 2008 rule used an attestation-based model: employers conducted the required recruitment before submitting an
Using a post-filing recruitment 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 levels. 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 DOL 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. DOL, however, is not able to estimate the economic impacts of these several effects and is therefore unable to quantify the related benefits.
Requiring post-filing recruitment 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).
DOL estimated two costs for post-filing recruitment: the material cost of reproducing and mailing the documents, and the associated labor cost. DOL estimated material costs equal to $2,492, calculated by multiplying the number of unique certified H–2B employers (3,955) by the estimated additional number of pages that must be submitted (3) and the additional postage required to ship those pages ($0.21). DOL estimated labor cost of $10,806 by multiplying the number of unique certified H–2B employers (3,955) 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 ($34.15). Summing these two components results in incremental costs of $0.01 million per year associated with post-filing recruitment (see Table 14).
Under the interim final rule, H–2B employers must retain documentation in addition to that required by the 2008 rule. DOL assumes that each H–2B employer will purchase a filing cabinet at a cost of $67.99
Under this interim final rule, SWAs will see both additions to and reductions from the 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 larger number of U.S. applicants during the extended recruitment period. DOL, however, does not have reliable data to measure these increased activities and is therefore unable to provide an estimate of the increased workload.
In contrast, SWAs will not be responsible for conducting employment eligibility verification activities. These activities included completion of Form I–9 and vetting of application documents by SWA personnel.
Under the 2008 rule, SWAs were 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 interim final rule, SWAs will not be required to complete this process, resulting in cost savings. Due to a lack of data on the number of SWA referrals, DOL is not able to quantify this cost reduction.
During the first year that the interim final rule will be in effect, H–2B employer applicants will need to learn about the new processes and requirements. DOL estimates the cost to read and understand the rule by multiplying the average number of unique H–2B employer applicants in FY 2013–2014 (4,657) 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 ($69.83). In the first year of the rule, this amounts to labor costs of approximately $1.0 million (see Table 16).
The interim 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, DOL multiplied the average number of unique H–2B employer applicants FY 2013–2014 (4,657) by the cost per photocopy ($0.09) and the number of postings per place of employment (2), which amounts to $838 per year (see Table 17).
In addition, the interim final rule requires employers to post and maintain in a conspicuous location at the place of employment a poster provided by DOL which sets out the rights and protections for workers. The poster must be in English and, to the extent necessary and as provided by DOL, 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, DOL multiplied the estimated number of unique certified H–2B employers (3,955) by the cost of downloading and printing the poster ($0.09). In total, the cost of producing workers' rights posters is $356 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 interim 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, DOL 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 interim final rule. However, because the size of the H–2B program is limited, DOL expects that any deadweight loss would be small. The monetized costs displayed are the annual summations of the calculations described above. The total undiscounted costs of the rule in
Summing the present value of the costs in Years 1–10 results in total discounted costs over 10 years of $9.24 million to $10.58 million (with 7 percent and 3 percent discounting, respectively) (see Table 20). The total transfers over 10 years range from $669.18 million to $942.80 million and from $792.92 million to $1,112.81 million with 7 percent and 3 percent discounting, respectively. The annual average cost is $0.92 million with 7 percent discounting and $1.06 million with 3 percent discounting. The annual average transfers range from $66.92 million to $94.28 million with 7 percent discounting and from $79.29 to $111.28 million with 3 percent discounting.
Because DOL was not able to monetize any benefits for this interim 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.
DOL 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 (and cost reductions) result from the following provisions of this interim final rule: the enhanced U.S. worker referral period, additional recruiting directed by the CO, the electronic job registry, transportation to and from the place of employment, payment of visa and consular fees, 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 an electronic job registry will provide greater transparency with respect to DOL's administration of the H–2B program to the public, members of Congress, and other stakeholders.
The changes and increased protections for workers will result in an improved ability on the part of workers and their families to meet their costs of living and spend money in their local communities. These protections may also decrease turnover among U.S. workers and thereby decrease the costs of recruitment and retention to employers. Reduced worker turnover is associated with lower costs to employers arising from recruiting and training replacement workers. Because seeking and training new workers is costly, reduced turnover leads to savings for employers. Research indicates that decreased turnover costs partially offset increased labor costs.
Several unquantifiable benefits result in the form of cost savings. As more U.S. workers are hired as a result of this interim 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 rule, SWAs were 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 interim final rule, SWAs will not be required to complete this process, resulting in cost savings to SWAs. DOL was 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 interim final rule, DOL has concluded that the societal benefits of the rule justify the societal costs.
The Regulatory Flexibility Act, 5 U.S.C. 601
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 interim final 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 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 interim final rule the SWA will continue to play a significant and active role. The Departments continue 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,
SWA activities under the H–2B program are currently funded by DOL through grants provided under the Wagner-Peyser Act. 29 U.S.C. 49
We have reviewed this interim final rule in accordance with E.O. 13132 on federalism and have determined that it does not have federalism implications. The interim 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 interim final rule will not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
We reviewed this interim final rule under the terms of E.O. 13175 and determined it not to have tribal implications. The interim final 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 Supplemental Appropriations Act of 1999 (Pub. L. 105–277, 112 Stat. 2681) requires us to assess the impact of this interim final rule on family well-being. A rule that is determined to have a negative effect on families must be supported with an adequate rationale. We have assessed this interim final rule and determined that it will not have a negative effect on families.
The interim 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 interim 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 Departments have developed the interim final rule to minimize litigation and provide a clear legal standard for affected conduct, and has reviewed the interim final rule carefully to eliminate drafting errors and ambiguities.
We drafted this interim final rule in plain language.
In accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The Departments note that a Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
The forms used to comply with this interim final rule include those that have been required in the H–2B program over the last few years of program operation, except that Form ETA–9142, Appendix B has been modified to reflect the assurances and obligations of the H–2B employer as required under the compliance-based system of this interim final rule. Also, a new form was created for registering as an H–2B employer—the Form ETA–9155,
The information collection aspects of this rulemaking are taking effect immediately, but DOL will be following the normal approval process for the extension of this collection within the next 6 months.
Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
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, for the reasons stated in the joint preamble, part 214 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:
8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477–1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.
(k)
(h) * * *
(9) * * *
(iii) * * *
(B)
Accordingly, for the reasons stated in the joint preamble, 20 CFR part 655 is amended and 29 CFR part 503 is added as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–232, 105 Stat. 733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103–206, 107 Stat. 2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107–296, 116 Stat. 2135, as amended; Pub. L. 109–423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
Subpart A 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 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 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).
Section 214(c)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to consult with appropriate agencies before authorizing the classification of aliens as H–2B workers. Department of Homeland Security (DHS) regulations at 8 CFR 214.2(h)(6)(iii)(D) designate the Secretary of Labor as an appropriate authority with whom DHS consults regarding the H–2B program, and specifies that the Secretary of Labor, in carrying out this consultative function, shall issue regulations regarding the issuance of temporary labor certifications. DHS regulations at 8 CFR 214.2(h)(6)(iv) further provide that an employer's petition to employ H–2B nonimmigrant workers 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)
This subpart does not apply to temporary employment in the Territory of Guam, except that an employer who applies for a temporary labor certification for a job opportunity on Guam will need to obtain a prevailing wage from the U.S. Department of Labor (DOL) in accordance with § 655.10, subject to the transfer of authority to set the prevailing wage for a job opportunity on Guam to DOL in title 8 of the Code of Federal Regulations. DOL does not certify to DHS the temporary employment of H–2B nonimmigrant foreign workers, or enforce compliance with the provisions of the H–2B visa program, in the Territory of Guam.
(a) The NPWC shall continue to process an
(b) The NPWC shall process an
(c) The NPC shall continue to process an
(d) The NPC shall process an
(1) Employers will be permitted to file an
(2) The NPC will waive the regulatory filing timeframe under § 655.15 and process the
(3) If the Chicago NPC grants a temporary labor certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B of the
(4) An employer who did not submit an
(e) The NPC shall process an
(f) Employers with a prevailing wage determination issued by the NPWC, or who have a pending or granted
(1) The SPWD will apply during the validity period of the certification, except that such SPWD will be applicable only to those H–2B workers who are not yet employed in the certified position on the date of the issuance of the SPWD. The SPWD will not be applicable to H–2B workers who are already employed in the certified position at the time of the issuance of the SPWD, and it will not apply to U.S. workers recruited and hired under the original job order. For seafood employers whose workers' entry into the U.S. may be staggered under § 655.15(f), an SPWD issued under this provision will apply only to those H–2B workers who have not yet entered the U.S. and are therefore not yet employed in the certified position at the time of the issuance of the SPWD.
(2) In order to receive an SPWD under this provision, the employer must submit a new ETA Form 9141 to the NPWC that contains in Section E.a.5 Job Duties the original PWD tracking number (starting with P–400), the H–2B temporary employment certification application number (starting with H–400), and the words “Request for a Supplemental Prevailing Wage Determination.” Electronic submission through the iCERT Visa Portal System is preferred. Upon receipt of the request, the NPWC will issue to the employer, or if applicable, the employer's attorney or agent, an SPWD in an expedited manner and provide a copy to the Chicago NPC.
For purposes of this subpart:
(1) A legal entity or person who:
(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 of Labor, 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.
(1) The employment of workers who are not H–2B workers by an employer that has a certified H–2B
(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, section 207 of the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or is an alien otherwise authorized under the immigration laws 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), section 274a(h)(3) of the INA) 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.
(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 regulations. 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.
(d) Nothing in this paragraph (d) is intended to limit the authority of the Secretary of Homeland Security, in the course of adjudicating an H–2B petition, to make the final determination as to whether a prospective H–2B employer's need is temporary in nature.
(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 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 of Labor 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)
(b) [Reserved]
(c)
(2) The PWD must be valid on the date the job order is posted.
(d)
(e)
(f) [Reserved]
(g)
(2) The employer, after receiving notification that the survey it provided for consideration is not acceptable, may request review under § 655.13.
(h)
(i)
(j)
(k)
All employers, including job contractors, 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 by DHS regulations 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 Homeland Security 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)
(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
(c) The
(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)
(1) Subject to paragraph (f)(2) of this section, if a petition for H–2B nonimmigrants filed by an employer in the seafood industry is granted, the employer may bring the nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition.
(2) An employer in the seafood industry may not bring H–2B nonimmigrants into the United States after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer conducts new recruitment, that begins at least 45 days after, and ends before the 90th day after, the certified start date of need as follows:
(i) Completes a new assessment of the local labor market by—
(A) Listing the job orders in local newspapers on 2 separate Sundays; and
(B) Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and
(C) Offering the job to an equally or better qualified United States worker who—
(
(
(3) In order to comply with this provision, employers in the seafood industry must—
(
(
(
(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)
(2)
(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, 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,
(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 through 655.46. 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 avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the worksite location(s) where workers will perform labor or services.
(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 (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 (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 in the first 12-week period (12 weeks × 35 hours/week = 420 hours × 75 percent = 315), 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)
(iii)
(iv)
(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), section 214(c) of the INA, 29 CFR part 503, or this subpart, or any other regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other 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), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other 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), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder.
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(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 through 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)
(a)
(b)
(c)
(d)
(e)
(f)
(a) All recruitment conducted under §§ 655.42 through 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, 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 must 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 § 655.56. If the advertisement was required to be placed in a language other than English, the employer must maintain a translation and retain it in accordance with § 655.56.
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
(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 (c) 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;
(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 of Labor 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;
(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 of Labor 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 documentation showing why the extension is needed and that the need could not have been reasonably foreseen by the employer. The CO will notify the employer of the decision in writing. Except in extraordinary circumstances, the CO will not grant an extension where the total work period under that
(a)
(1) Must be sent to the BALCA, with a copy simultaneously sent to the CO who issued the determination, 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 of Labor 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 employment 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 employment 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 Labor.
(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)
(3)
(4)
(5)
(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)
(3)
(4)
(5)
(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)
(h)
(i)
8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c); 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), section 214(c) of the INA and 20 CFR part 655, subpart A, applicable to the employment of H–2B workers in nonimmigrant status under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA, 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 who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers; 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 of Labor does not certify to DHS the temporary employment of nonimmigrant foreign
(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:
(1) A legal entity or person who:
(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 of Labor, 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.
(1) The employment of workers who are not H–2B workers by an employer that has a certified H–2B
(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) Where an employer has violated 20 CFR part 655, subpart A, or this part, 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,
(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, section 207 of the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or is an alien otherwise authorized under the immigration laws 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), section 274a(h)(3) of the INA) 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.
(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 regulations.
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), INA section 214(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), INA section 214(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), INA section 214(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 (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
(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 in the first 12-week period (12 weeks × 35 hours/week = 420 hours × 75 percent = 315), at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 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)
(iii)
(iv)
(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), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other 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), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself or herself or others any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other 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 H–2B nonimmigrant 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
(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.
(a) 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 provisions 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.
(b) With respect to determinations as listed in paragraph (a) involving provisions under 8 U.S.C. 1184(c), the procedures and rules contained in this subpart will apply regardless of the date of 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 will be notified in writing of such determination.
(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
(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), INA section 214(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:
In the Matter of __________, Respondent.
(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.
Employment and Training Administration, Labor; U.S. Citizenship and Immigration Services, Department of Homeland Security.
Final rule.
The Department of Homeland Security (DHS) and the Department of Labor (DOL) are issuing final regulations governing certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment. This final rule sets forth how DOL provides the consultation that DHS has determined is necessary to adjudicate H–2B visa petitions by setting the methodology by which DOL calculates the prevailing wages to be paid to H–2B workers and U.S. workers recruited in connection with applications for temporary labor certification. Specifically, for the purposes of an H–2B temporary labor certification, this final rule establishes that, in the absence of a wage set in a valid and controlling collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H–2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey. Any such survey submitted must meet the new methodological criteria established in this final rule in order to be used to establish the prevailing wage. The final rule does not permit use of the wage determinations issued under the Service Contract Act or the Davis Bacon Act as sources to set the prevailing wage in the H–2B temporary labor certification context.
DHS and DOL are issuing this final rule together because DHS, as the Executive Branch agency charged with administering the H–2B program, has determined that the most effective implementation of the statutory H–2B labor protections requires that DHS consult with DOL for its advice about matters with which DOL has expertise, including questions about the methodology for setting the prevailing wage in the H–2B program. DHS (and the former Immigration and Naturalization Service, Department of Justice, which was charged with administration of the H–2B program prior to enactment of the Homeland Security Act of 2002) has long recognized that DOL is the appropriate agency with which to consult regarding the availability of U.S. workers and for assuring that wages and working conditions of U.S. workers are not adversely affected by the use of H–2B workers. This rule also adopts, without change, certain revisions made to DHS's H–2B regulations, to clarify that DHS is the Executive Branch agency charged with making determinations regarding eligibility for H–2B classifications, after consulting with DOL for its advice about matters with which DOL has expertise, including questions related to the methodology for setting the prevailing wage in the H–2B program. Finally, DHS and DOL are issuing, simultaneously with this rule, a companion H–2B rule 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 is effective April 29, 2015.
For further information on 8 CFR part 214, contact Steven W. Viger, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW., Washington, DC 20529–2060; Telephone (202) 272–1470 (this is not a toll-free number).
For further information on 20 CFR part 655, subpart A, contact William W. Thompson, II, Acting Administrator, Office of Foreign Labor Certification, Employment and Training Administration, 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.
The Immigration and Nationality Act (INA) establishes the H–2B visa classification for a non-agricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if 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), INA section 101(a)(15)(H)(ii)(b). Section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), requires an importing employer (H–2B employer) to petition the Department of Homeland Security (DHS) for classification of the prospective temporary worker as an H–2B nonimmigrant.
Pursuant to the above-referenced authorities, DHS has promulgated regulations implementing the H–2B program.
USCIS examines H–2B petitions for compliance with a range of statutory and regulatory requirements. For instance, USCIS will examine each petition to ensure,
DHS has implemented the statutory protections attendant to the H–2B program by regulation.
Accordingly, DHS regulations require that an H–2B petition for temporary employment in the United States must be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).
DHS relies on DOL's advice in this area, as DOL is the appropriate government agency with expertise in labor questions and historic and specific expertise in addressing labor protection questions related to the H–2B program. This advice helps DHS fulfill its statutory duty to determine, prior to approving an H–2B petition, that unemployed U.S. workers capable of performing the relevant service or labor cannot be found in the United States. 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), INA section 214(c)(1). DHS has therefore made DOL's approval of a temporary labor certification a condition precedent to the completion of the H–2B petition. 8 CFR 214.2(h)(6)(iii) and (vi). Following receipt of an approved DOL temporary labor certification and other required evidence, USCIS may adjudicate an employer's complete H–2B petition.
Consistent with the above-referenced authorities, since at least 1968,
As discussed above, DHS has determined that the most effective implementation of the statutory labor protections in the H–2B program requires that DHS consult with DOL for its advice about matters with which DOL has unique expertise, particularly questions about the methodology for setting the prevailing wage in the H–2B program. The most transparent and effective method for DOL to provide this consultation is by setting forth in regulations the standards it will use to provide that advice, as required by existing DHS regulations. DOL's rules set the standards by which employers demonstrate to DOL that they have tested the labor market and found insufficient numbers of qualified and available U.S. workers, and set the standards by which employers demonstrate to DOL that the offered employment does not adversely affect U.S. workers. By setting forth this structure in regulations, DHS and DOL ensure the provision of this advice by DOL is consistent, transparent, and provided in the form that is most useful to DHS.
As discussed in greater detail below, DOL's authority to issue its own legislative rules to carry out its duties under the INA has been challenged in litigation. On April 1, 2013, the U.S. Court of Appeals for the Eleventh Circuit upheld a district court decision that granted a preliminary injunction against enforcement of the 2012 comprehensive H–2B rule (2012 H–2B rule) on the ground that the employers were likely to prevail on their allegation that DOL lacks H–2B rulemaking authority.
In order to ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL (the Departments), together, are issuing this final rule. By proceeding together, the Departments affirm that this rule is fully consistent with the INA and existing DHS regulations implementing the H–2B program and is vital to DHS's ability to faithfully implement the statutory labor protections attendant to the program.
In 2008, DOL issued regulations governing DOL's role in the H–2B temporary worker program. The regulation established, among other things, a methodology for determining the wage that a prospective H–2B employer must pay. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes, 73 FR 78020 (Dec. 19, 2008) (the 2008 rule).
Because the OES survey captures no information about actual skills or responsibilities of the workers whose wages are being reported, the four-tiered wage structure, adapted from the statutorily required four tiers applicable to the H–1B visa program under section 212(p)(4) of the INA, 8 U.S.C. 1182(p), was derived by mathematical formula as follows to reflect “entry level,” “qualified,” “experienced,” and “fully competent” workers: Level 1 is the mean of the lowest-paid
In response to the
The new methodology set the prevailing wage as the highest of the OES arithmetic mean wage for each occupational category in the area of intended employment; the applicable SCA/DBA wage rate; or the CBA wage. The rule also eliminated the use of employer-provided surveys as alternative wage sources, except in
Shortly before the 2011 Wage Rule was to become effective, Congress issued an appropriations rider effectively barring its implementation. The Consolidated and Further Continuing Appropriations Act, 2012, enacted on November 18, 2011, provided that “[n]one of the funds made available by this or any other Act for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012 the [2011 Wage Rule].” Public Law 112–55, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 2011) (the November 2011 Appropriations Act). In response to the Congressional prohibition on implementation, DOL delayed the effective date of the 2011 Wage Rule until January 1, 2012. 76 FR 73508 (Nov. 29, 2011). The delayed effective date was necessary because, although the November 2011 Appropriations Act prevented the expenditure of funds to implement, administer, or enforce the 2011 Wage Rule, it did not prevent the 2011 Wage Rule from going into effect. 76 FR at 73509. Had the 2011 Wage Rule gone into effect, it would have superseded and nullified the prevailing wage provisions from the 2008 rule, leaving DOL without a methodology to make prevailing wage determinations.
Subsequent appropriations legislation
Based on DOL's ongoing use of the 2008 rule's four wage tiers, the
Therefore, the court vacated 20 CFR 655.10(b)(2), which was the basis for the four-tiered wage structure, and remanded the matter to DOL, ordering it to comply within 30 days.
In response to the vacatur and 30-day compliance order in
Despite immediate implementation of the provisions of the 2013 IFR, the Departments requested comments on all aspects of the prevailing wage methodology of 20 CFR 655.10, including, among other things, whether the OES mean is the appropriate basis for determining the prevailing wage; whether wages based on the DBA or SCA should be used to determine the prevailing wage and if so, to what extent; and whether the continued use of employer-submitted surveys should be permitted and if so, how to better ensure their methodological soundness. The comment period closed on June 10, 2013, and the Departments received over 300 comments on all aspects of the H–2B wage methodology from interested parties.
On July 23, 2013, DOL proposed the indefinite delay of the effective date of the 2011 Wage Rule, and accepted comments from the public on the proposed indefinite delay through August 9, 2013. 78 FR 44054. The reasons for this delay were two-fold: First, at that time, Congress's continued denial of appropriated funds for this purpose, with no indication that the prohibition would be lifted in the future, made implementation of the 2011 Wage Rule effectively impossible. Second, at that time, the Departments were reviewing and analyzing the comments received on the 2013 IFR to determine whether changes to 20 CFR 655.10 and 8 CFR 214.2(h)(6) were warranted in light of the public comments. For these reasons, on August 30, 2013, DOL published a final rule indefinitely delaying the effective date of the 2011 Wage Rule. 78 FR 53643, 53645 (indefinite delay rule). In the final indefinite delay rule, DOL stated that when “Congress no longer prohibits implementation of the 2011 Wage Rule, the Department [of Labor] will publish a document in the
On January 17, 2014, the Consolidated Appropriations Act, 2014, Public Law 113–76, 128 Stat. 5, was enacted. In that law, for the first time in over two years, DOL's appropriations did not prohibit the implementation or enforcement of the 2011 Wage Rule. Moreover, on February 5, 2014, the U.S. Court of Appeals for the Third Circuit held that “DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H–2B program, and that the 2011 Wage Rule was validly promulgated pursuant to that authority.”
As discussed above, given the swift deadline for compliance in the
In 2014, CATA challenged the Departments' decision under the 2013 IFR to continue to permit use of employer-provided surveys to set the prevailing wage under 20 CFR 655.10(f).
The
The court justified its decision to vacate the wage survey provision of the IFR, 20 CFR 655.10(f), along with the Wage Guidance. “[I]f we did not do so, we would leave in place a rule that is causing the very adverse effect that DOL is charged with preventing, and we would be `legally sanction[ing] an agency's disregard of its statutory or regulatory mandate.'” 774 F.3d at 191 (quoting
Given the substantive concerns expressed by the
On March 14, 2014, DOL announced its decision to engage in further notice and comment rulemaking “working off the 2011 Wage Rule as a starting point.” 79 FR 14450, 14453. DOL concluded at that point that “recent developments” in the H–2B program required additional consideration of the comments submitted in connection with the 2013 IFR, and that further notice and comment was appropriate.
In finalizing the 2013 IFR, the Departments underscore that stakeholders have had several opportunities since 2008 to comment on the three primary issues covered by this final rule: (1) The appropriateness of using the mean wage or tiered wage when basing the prevailing wage on the OES; (2) the appropriate role of the SCA and DBA wage rates in setting the H–2B prevailing wage; and (3) whether and under what circumstances an employer-provided survey could be used to set the prevailing wage. Most recently, we provided the public with the opportunity to comment on all aspects of this final rule in response to the 2013 IFR, and we received over 300 comments from a range of interested parties, including employers, worker advocates, and members of Congress. Therefore, we have balanced the Departments' and the public's interest in additional notice and opportunity for public comment against our current need to timely act in response to the
Three months after the
At the time of the
The court order in
DHS is charged with adjudicating petitions for a nonimmigrant worker (commonly referred to as Form I–129 petitions or, in this rule, “H–2B petitions”), filed by employers seeking to employ H–2B workers. But, as discussed earlier, Congress directed the agency to issue its decisions relating to H–2B petitions “after consultation with appropriate agencies of the Government.” 8 U.S.C. 1184(c)(1), INA section 214(c)(1). Legacy INS and now DHS have historically consulted with DOL on U.S. labor market conditions to determine whether to approve an employer's petition to import H–2B workers.
DOL has fulfilled its consultative role in the H–2B program through the use of legislative rules to structure its advice to legacy INS and now DHS for several decades.
The Departments are again facing the prospect of experiencing another program hiatus if and when the temporary stay expires on or before May 15, 2015. DOL's 2008 rule, which includes all the procedural provisions necessary for employers to request and DOL to issue a prevailing wage determination, is the only comprehensive mechanism in place for DOL to provide advice to DHS because the 2008 rule sets the framework, procedures, and applicable standards for receiving, reviewing, and issuing H–2B prevailing wages and labor certifications. DHS regulations require employers to obtain a temporary labor certification from DOL before filing a petition with DHS to import H–2B workers, and DHS is precluded by its own regulations from accepting any H–2B petition without a temporary labor certification from DOL.
The APA authorizes agencies to make a rule effective immediately, instead of imposing a 30-day delay, upon a showing of good cause. 5 U.S.C. 553(d)(3). The APA's good cause exception to a delayed effective date is easier to meet than the APA's exception at 5 U.S.C. 553(b)(B) for dispensing with notice-and-comment.
Under the APA's “good cause” exception, an agency can take steps to minimize discontinuity in its program after a court has vacated a rule by making a new rule effective immediately.
As a result of the
The Departments have concluded that because of the program hiatus caused by the
While the comments received from the public overwhelmingly focused on the changes to the DOL prevailing wage methodology, a few submissions focused on DHS's authority to consult with DOL and to set wages. Some of these comments welcomed DHS's and DOL's joint promulgation of the 2013 IFR. Commenters stated that the IFR is consistent with statutory authority and that consultation with DOL is appropriate in light of DOL's expertise. A few commenters, however, stated that DHS improperly delegated its authority regarding the H–2B program to DOL. Another commenter also questioned why DHS does not consult with other government entities apart from DOL. Commenters also asked whether DOL had authority to promulgate the 2013 IFR. Finally, some commenters questioned DHS's statutory authority to set H–2B wages, stating that the INA does not support DHS's requirement that H–2B employment not adversely affect the wages and working conditions of United States workers.
DHS disagrees with the comments that DHS improperly delegated its authority involving the H–2B visa classification to DOL. The general provision at 8 U.S.C. 1184(c)(1), INA section 214(c)(1) requires DHS to consult with other “appropriate agencies of the Government” in adjudicating a variety of nonimmigrant
Finally, DHS's authority to administer and enforce immigration laws is longstanding.
DHS disagrees with comments stating that DHS lacks legal authority to set H–2B wages, and in particular, its authority to rely on DOL's advice, as a threshold matter, as to what constitutes the prevailing wage for H–2B occupations. DHS's authority to administer and enforce immigration laws through regulations is well established.
Accordingly, in this rule, DHS is adopting the revision to 8 CFR 214.2(h)(6)(iii)(D) in this rulemaking without change.
In 1998, DOL first implemented use of the OES survey as an efficient and cost-effective way to develop consistent and accurate prevailing wage determinations in the H–2B program.
BLS surveys workers' wages based on the 2010 Standard Occupational Code (SOC) system, which is used by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data.
Despite the change in 1998 from reliance on State workforce agency surveys to the OES survey in the H–2B program, DOL continued its prior practice of setting a prevailing wage based on two skill levels—“entry level” and “experienced level”—as previously set out in GAL 4–95 and subsequently reiterated in GAL 2–98. Because, as noted above, the OES does not provide data about skill differential within SOC codes, DOL established the entry and experienced skill levels mathematically. In 1998, the entry level, or Level I, wage was set at the mean of the lower one-third of the survey universe (approximately the 17th percentile), and the experienced level, or Level II, wage was the mean wage of workers in the upper two-thirds of the survey universe (approximately the 67th percentile). These two “skill level” tiers were expanded in 2005 guidance to include four “skill levels”—“entry level,” “qualified,” “experienced,” and “fully competent”—and, based on a linear interpolation, Levels 1 through IV were set, respectively, at approximately the 17th percentile, the 34th percentile, the 50th percentile, and the 67th percentile.
As discussed above in Sec. I. B., supra, the lack of notice-and-comment rulemaking in the 2008 rule on the issue of the four-tiered wage structure in the H–2B program resulted in a court ruling in 2010 that the implementation of the tiered wages violated the APA.
As noted above, because of Congressional riders, the 2011 Wage Rule was never implemented, and DOL continued to implement the four-tiered
In the 2013 IFR, the Departments specifically invited comments on “whether the OES mean is the appropriate basis for determining the prevailing wage.” 78 FR at 24053. All worker advocates who commented expressed general support for the continued use of the OES mean, stating it was far preferable to the 2008 rule's four-tiered approach. They agreed with the Departments' finding in the IFR that dividing wages into four skill levels artificially lowered wages. In their view, the use of the OES mean substantially improves the protection of the wages and working conditions of U.S. workers because most H–2B jobs require little or no prior training or experience. They also agreed with the Departments' conclusion that a four-tiered approach is inappropriate because there are no significant skill-based wage differences in the H–2B occupations. Numerous H–2B employers and associations of employers generally opposed the use of the OES mean wage, and most advocated for a return to the four-tiered structure.
Some commenters disagreed with DOL's premise in 2011,
Several worker advocates included the same basic position in their comments that a four-tier approach is inappropriate because there are no significant skill-based wage differences in the occupations that predominate in the H–2B program, and to the extent such differences exist, the differences are not captured by the existing four-tier system. In their view, eliminating tiers is appropriate because H–2B jobs require little or no experience and the use of the OES mean better protects U.S. wages and working conditions.
One commenter, an economic advocacy group, acknowledged that the use of the OES mean was a significant improvement over the approach taken in the 2008 rule. In its view, however, the IFR does not sufficiently protect the wages and working conditions of all workers in positions using H–2B workers. Setting the wage at the OES mean will pressure employers to establish the OES mean as the norm for a position, resulting in the eventual reduction in higher wages now received by U.S. workers in the position. According to this commenter, the only way to ensure that there is no reduction in wages paid to U.S workers would be to set the H–2B wage at the highest wage for a position. As an alternative to this method, it suggested that the Employment and Training Administration (ETA) use the OES 90th percentile wage rate for a position, which the commenter asserted would adequately protect the interests of U.S. workers.
The Departments received extensive comments from the forestry industry. One commenter suggested that the OES mean should be used for all H–2B jobs requiring little or no training (all O*NET Job Zone 1 positions) absent higher wages under a CBA, SCA, or DBA for a particular job. For H–2B jobs requiring some training (O*NET Job Zone 2 and 3 positions), it stated that the OES mean should also generally be used.
Several employers and associations of employers preferred the use of tiered wage rates because such rates, in their view, reflect the actual demands of the positions for which they seek H–2B or U.S. workers. Most of these commenters expressed an interest in preserving the approach set forth in the 2008 rule. Some commenters asserted that DOL was bound by the appropriations legislation to apply the four-tiered
Many commenters cited to a study conducted by an H–2B employer coalition, predicting a substantial across-the-board increase in labor costs from the use of the OES mean rather than tiered wages. Some commenters emphasized the impact that use of the OES mean would have on wages within particular industries. For example, one commenter asserted that in the forestry industry wage-rate increases would exceed 20 percent in most areas and exceed 60 percent in Arkansas, Idaho, and Virginia. Another commenter stated that landscape employers, based on new wage determinations, would face an average wage increase in H–2B wage rates of $3.27 an hour, or more than 36.9 percent. To emphasize its point about the large, unexpected increases experienced by employers within its industry, this commenter included a chart showing by state the amount and percentage of increases. To underscore a similar point across industries, the workforce coalition included a chart showing, by state and occupation, the amount and percentage increases that result from using the OES mean. While many commenters complained about the effect of using the H–2B rule on their particular industries (
One commenter (describing itself as a group of “H–2B employers, agents who help small businesses . . ., and legal and economic experts”) made the following claims to support its view that the OES skill-levels should be used to set prevailing wages:
• use of tiered wage levels could not allow employers to pay H–2B workers a lower wage than was appropriate because ETA certified the wage level;
• the OES mean wage inflates the wages for more than half the H–2B workers in a particular occupation;
• the 2011 Wage Rule's focus on wage depression for H–2B workers should have been outweighed by concerns about the impact of the ultimate wage depression on U.S. workers—the loss of their jobs;
• preventing wage deflation for H–2B workers does not protect domestic workers because the vast majority of H–2B applications involve 25 or fewer workers and the total number of H–2B workers is too small to impact domestic workers;
• the 2013 IFR's analysis of wage depression was flawed because “the mean exceeds the median of the [wage] distribution. This means that a majority of workers, permanent or temporary, skilled or entry level, earn less than the arithmetic mean”;
• the 2013 IFR inappropriately did not consider that the presence of temporary foreign workers is complementary and improves the job security of permanent U.S. workers, making “[t]he wage depression issue” irrelevant;
• the 2013 IFR's stated premise,
• the use of a single prevailing wage for a classification that includes different tasks, skills, and experience, “makes no economic sense” and will prevent the hiring of workers with the lowest skills in those categories.
A different commenter, an association of H–2B employers, stated that by requiring H–2B workers to be paid at the OES mean, the Departments denied some H–2B workers wages they were previously paid at a higher skill level. Several other commenters expressed similar concerns, and made the following points:
• DOL should provide data to support its position that “skill levels as determined currently do not reflect wage levels in lower skilled jobs.” It is arbitrary to require the same rate be paid for a hotel housekeeping position without regard to whether the employee is able to clean 5 or 15 rooms per day;
• wages must be market driven, reflecting both the demand for workers for various seasonal positions not filled locally and the levels of experience available within the labor pool of seasonal and visitor workers;
• conflating tiers 1 through 4 compels employers to pay a wage rate that is appropriate for a more skilled worker than the lower-skilled worker requested by its application, which upwardly skews its labor costs not only for the H–2B workers but also for other individuals it employs;
• use of the OES mean is based on the false premise that unskilled entry-level positions should be paid an amount that greatly exceeds the Federal minimum wage;
• use of the OES mean requires an employer to pay an H–2B wage that is not based on the appropriate entry-level wage for the position, but instead a rate that includes wages paid to more experienced workers in the position or those with supervisory duties. The “premium” paid to the more experienced workers and supervisors appropriately reflected the nature of their jobs as year-round, permanent employees, differentiating them from temporary, supplemental employees;
• the OES mean reflects, in part, the wages paid to workers that have greater training, experience, and education than entry-level H–2B employees. It is inappropriate to include in the prevailing wage computation the rates paid to senior, experienced workers whose contributions to the employer's operations are greater than the H–2B workers because the senior workers require less supervision and are involved in fewer accidents than the entry-level workers; and
• the OES mean arbitrarily inflates the wages of entry-level workers and deflates the wages of more experienced workers. A “one-size-fits all approach ignores real-world wage differentiation factors such as supervisory duties, responsibilities, seniority/tenure, talent, dependability and efficiency.” The regulatory history supports the use of setting wages based on the skill required for a position. Before 2005, where an applicant was the only employer in an area of intended employment, setting the H–2B wage required an analysis of
A number of commenters, including worker advocates and employers in the industry, expressed the view that the SCA rates better reflect wages paid in the forestry industry than the OES mean.
An employer stated that gaps in the OES survey data result in extreme differences from county to county when compared year to year and that wide variations in required OES wages for adjoining counties demonstrate that the rates do not reflect actual wage rates paid to workers in the counties. In its view, the SCA rates better reflect the true prevailing wage for forestry occupations in an area, but it suggested that the H–2A program provided a better model for its industry. This commenter stated that ETA should establish state or regional rates for forestry work based on wages paid within the same multi-state regions used in the H–2A program. Alternatively, it suggested that ETA could establish larger geographical regions that follow the seasonal migratory patterns for forestry-related work: A Northeast Region, a Midwest and Great Lakes Region, a Pacific and Northwest Region, a Southwest Region, and a Southern Region. As a second possible alternative to the existing system, the commenter advocated the use of an average state-wide wage to avoid the wide divergence in rates from one particular local area of employment to another.
An individual commenter in the public sector stated that the use of skill levels, where level one becomes the default level for H–2B workers, could have an adverse effect on U.S. workers. At the same time, the commenter expressed concern that the use of the OES mean rate—without regard to skill—could lead to workers with different skills and education receiving the same level of pay. As an example he chose the OES “Construction Managers” category, which groups construction foreman and job superintendent, positions that in his view both required job experience but only one of which (job superintendent) required a college degree. The commenter suggested that each position likely would receive the same H–2B rate of pay, despite the different educational requirements for the two positions. He suggested that the use of some tiers, but not necessarily four, would be more appropriate than using the OES mean.
Another individual commenter suggested that ETA create a two-tiered system based on the percentage differences between the average wage issued for a position in fiscal years 2011 and 2012 and the mean wage for that position. He characterized his approach as follows: “Wage Tier 1 = the mean of the lowest
Some commenters, including a group of employers, employer agents, lawyers and economists, criticized DOL's reading of the court's order in
After reviewing the use of the OES survey in setting the prevailing wage in the H–2B program, including consideration of all the comments received on the 2013 IFR, the Departments have decided to continue to set the prevailing wage at the mean wage of all workers in the occupation in the area of intended employment when the prevailing wage is based on the OES survey. As discussed in the preambles to the 2010 NPRM, the 2011 Wage Rule, and the 2013 IFR, it remains our view that the OES mean better protects U.S. workers from adverse effect than the tiered-wage approach used previously in the H–2B program.
A basic principle of supply-and-demand theory in economics is that in market economies, shortages signal that adjustments should be made to maintain equilibrium. Therefore, if employers experience a shortage of available workers in a particular region or occupation, compensation should rise as needed to attract workers. Market signals such as labor shortages that would normally drive wages up may become distorted by the availability of
As in 2010 and 2013, we considered, but ultimately rejected, reinstituting a tiered wage system for H–2B employment.
DOL continues to see the pattern identified in 2011, in which Level I wages (approximately the 17th percentile) predominate where a tiered wage structure is in place. DOL conducted a fresh analysis for this rule of the frequency with which the former Level I wages occur in prevailing wage determinations under a tiered wage structure. In a statistically significant random sample of 472 wage determinations issued in FY 2012, before implementation of the IFR, DOL found that 344 determinations, or 72.88 percent of the sample, were issued at Level I; 68 wage determinations, or 14.41 percent of the sample, were issued at Level II; 41 wage determinations, or 8.69 percent of the sample, were issued at Level III; and 19 wage determinations, or 4.03 percent of the sample, were issued at Level IV. As a result, approximately 96 percent of the wage determinations analyzed in the 2012 sample (summing the percentage of determinations issued at Levels I, II and III) were below the OES mean wage. Based on this analysis, DOL remains convinced that when tiered wages are available and the tiers are set below the mean, the average wage of workers in the occupation is driven down, resulting in an adverse effect on U.S. workers' wages caused by the influx of foreign workers.
Moreover, a tiered approach in the H–2B program has been an inadequate proxy for skill or other characteristics associated with wages, thereby discrediting comments on the 2013 IFR suggesting that any variation in wage payments when tiers are in place reflects remuneration for relative skill or proficiency. These commenters argued that if the premise that there are a few or no skill differences in H–2B work were accurate, we would not see the range of wages, and the dispersal away from the mean, that can be observed on an H–2B wage distribution. The wage differential, they say, must reflect a skill differential. However, many more factors can account for the H–2B wage differential than skill level. The literature reflects that there are factors in addition to skill level that can account for OES wage variation for the same occupation and location, which include, but are not limited to: Size of employer; seniority; rate of worker turnover; union status; gender, race, ethnicity, or nationality; work hour schedule; age; availability of benefits in the form of training opportunity, health insurance, paid time off, and other benefits; sub-location within the same area of intended employment; and pay structure (performance-based pay vs. fixed pay per hour).
In the absence of a tiered wage system, the Departments must assign prevailing wages in the H–2B program in a manner in which does not depress wages for U.S. workers because of the artificially elevated labor supply in the market. Thus, we must identify the point on the OES wage distribution that protects the wages of U.S. workers from the depressive effect of the influx of surplus labor. In 2011 and in 2013, DOL concluded that the mean was that point (76 FR at 3462; 78 FR at 24053), and we rely on that same finding following public comment for the purposes of this final rule. The mean is the average of all wages surveyed in an occupation in the geographic area, and in the low-skilled occupations in the H–2B program, the mean represents the average wage paid to unskilled workers to perform that job. If the prevailing wage is set below the mean, the average wage of workers in the occupation would be drawn down, resulting in a depressive effect on U.S. workers' wages overall. In addition, we have set the wage rate at the mean rather than at the median because the mean provides equal weight to the wage rate received by each worker in the occupation across the wage spectrum and maintaining the OES mean provides regulatory continuity. As a result, when the prevailing wage is based on the OES survey, we will set it at the mean because it is the most appropriate wage to use in order to avoid immigration-induced labor market distortions
For all these reasons, we have not returned to a tiered system as a basis for setting the prevailing wage for H–2B workers. We recognize that the use of the OES mean, rather than the use of tiered wages, has in some cases resulted in an increase in the wages paid to H–2B workers, which may result in overall increases in labor costs for some U.S. businesses that employ H–2B workers. The Departments also recognize that the use of the OES mean may impose particular burdens on small businesses. However, DOL is obligated to set a prevailing wage that protects all U.S. workers from adverse effect; this requirement could not be met by setting a lower wage for small businesses. In addition, most H–2B employers now have experience paying workers at the OES mean, which was established in the H–2B program two years ago. DOL concludes that the impact on small businesses of having to pay the OES mean wage will be less than that incurred under the 2013 rule, given that employers have been able since then to base projections of future labor costs on these wage rates. As discussed above, DOL concludes that use of the OES mean best meets the Departments' obligation to protect against adverse effect, while setting the prevailing wage at a threshold based on artificial skill levels likely distorts the labor market for U.S. workers, driving down wages.
DOL historically relied on the prevailing wage regulations used for permanent labor certifications in the immigrant labor program, as codified at 20 CFR 656.40, to determine prevailing wages in the H–2B program. Versions of section 656.40(a)(1) that pre-date 2005 set wage rates at the levels mandated by the DBA and the SCA “if the job opportunity is in an occupation which is subject to a wage determination” in the area of intended employment under either statute. As a result, before 2005, if an H–2B job fell within an occupation for which an SCA or DBA wage determination had been issued in the area of intended employment, that wage rate became the H–2B prevailing wage, even in cases in which the OES survey may have identified a wage for a comparable occupation. DOL abandoned this approach in the same 2005 guidance that introduced skill-based tiered wages, which gave employers the option to request the SCA or DBA prevailing wage determination, but did not mandate its application.
In DOL's 2010 H–2B Wage NPRM, DOL proposed revisions to the wage methodology that set the prevailing wage as the highest of: The OES arithmetic mean wage for each occupational category in the area of intended employment; the applicable SCA/DBA wage rate (if one was available); or the CBA wage. 75 FR 61578 (Oct. 5, 2010). This approach was finalized in 2011, 76 FR 3452, although never implemented as a result of Congressional riders, as discussed above. Because the riders prevented implementation of the 2011 “highest of” approach, DOL continued to use the approach in the 2008 rule, which permitted employers to request prevailing wages based on the SCA and DBA, if applicable and available.
The 2013 IFR retained the “employer's option” approach. 78 FR 24047. The preamble to the IFR explained that “although there are various ways to define or calculate the prevailing wage rate, [DOL concludes] that, under the present circumstances in which we must act expeditiously in response to the
The 2013 IFR sought “comment on the use of the DBA and the SCA in making prevailing wage determinations, and
As a general matter, many worker advocates supported the mandatory application of SCA and DBA prevailing wage determinations where they are available for the occupation in the area of intended employment for which certification is being sought. These commenters often argued that the SCA and DBA wage determinations were the most complete and accurate measure of appropriate compensation levels for the occupations covered by those statutes in the geographic areas for which such wage rates have been determined. Many such commenters argued in favor of DOL's pre-2005 approach in which the SCA and DBA wage determinations must be used where applicable to the job in the area of intended employment. However some commenters did not clearly state whether they advocated for use of the SCA and DBA wage determinations in the H–2B program as part of the unimplemented 2011 “highest of” methodology, in which SCA and DBA wage determinations are used only if they are higher than the OES mean and/or a CBA wage.
Similarly, many employers and employer associations advocated in favor of the approach in the 2008 rule, but did not identify whether this preference was specifically tied to the 2008 rule's voluntary use of the SCA and DBA wage determinations, or whether it reflected a preference for the four-tiered OES structure over the OES mean. In addition, many of the same commenters suggested that, in the event we do not employ the 2008 rule's voluntary use of the SCA and DBA wage determinations, we should adopt the 2005 guidance, which mirrors the 2008 rule's employer election to use SCA or DBA wage determinations. Many commenters also suggested that the Departments adopt the wage standards set out in S. 744, as alternative
One employer who is an extensive user of the H–2B program suggested that the SCA is a more appropriate rate-setting device for forestry occupations than is the OES because of the OES's single category of forestry worker, rather than the SCA's three categories. This commenter submitted that for forestry workers, the OES artificially inflates the wages of lower paid, manual labor-type forestry work and suggested that the SCA's use of three categories better recognizes the distinction between forestry work that requires solely manual labor and skilled forestry work performed by college graduates. This commenter further suggested that, with respect to the “range of” forestry-related occupations, the Departments should issue “regional” SCA rates as well as a “regional” OES wage rate with four skill levels, from among which an employer could select its preferred option.
An association of contractors criticized the DBA wage determinations. This commenter argued that DBA rates are “grossly inflated” due to the “unscientific methodology” used to create them, and underscored that the surveys used to collect the information for the DBA wage determination are voluntary. As a result, this commenter suggested that labor organizations and large government contractors disproportionately submit the required data, resulting in wage determinations that are inconsistent with the actual prevailing wage rates. This comment also suggested that the system of deferring to the local area practice in defining the job duties of a particular classification makes it “difficult to determine the appropriate wage rate for many construction-related jobs.”
We received virtually identical submissions from a dozen worker advocacy groups who advocated that DOL return to the pre-2005 approach, which required the use of the SCA or DBA wage determinations if the job opportunity was in an occupation subject to a wage determination in the area of intended employment under either statute. Most of the entities submitted the same statement advancing this position, expressing the view that the SCA and DBA wage rates “are the most complete and accurate measure of determining appropriate compensation levels for the occupations covered by those Acts in those geographic areas for which such wage rates have been determined” and asked that SCA and DBA wage rates be required in all circumstances in which they were available. The commenter further noted that requiring the use of SCA and DBA wage rates wherever available would be consistent with DOL's approach prior to 2005.
Moreover, as discussed above regarding the use of the OES mean to set the prevailing wage, a comment submitted by a worker advocacy project on behalf of a large consortium of worker groups underscored the view that the SCA wage determinations are particularly apt in the forestry and logging occupations because they are more “closely tailored” to the jobs and the SCA “classification includes many jobs that demand more knowledge, training and experience and pay higher wages.”
As discussed in the OES section above, the same comment also suggested that if there were additional occupations beyond forestry for which many H–2B certifications were issued that were grouped in an SOC code with other occupations requiring different levels of preparation, DOL should develop new sub-codes using the O*NET system. Pending the development of these sub-codes, the comment asked that DOL use a case-by-case method to determine the appropriate wage rate. For Job Zones 4 and 5 (occupations requiring considerable preparation and occupations requiring extensive preparation), the group suggested the OES mean should be the presumed rate absent strong evidence to the contrary. The commenter discussed the use of O*NET Job Zones where the SOC code includes a mix of jobs and some require substantially more preparation than others, and concluded that O*NET sub-classifications should be created for any Job Zones 2 and 3 jobs that require mixed levels of skills and training “to permit a separate treatment of lower skilled jobs in a SOC class appropriately to reflect actual wage differences based upon the real differences in the training and skills needed to do the job.” The comment again emphasized that classifying H–2B forest and conservation workers in a Job Zone 3 classification “is misleading as to the actual job duties performed for the positions certified for H–2B workers,” so they again recommended using SCA wage rates for such workers. They also identified other H–2B jobs that fall within Job Zone 3, and stated that many of them may be appropriate, but that there may be circumstances where the H–2B jobs “do not require Zone 3 levels of experience and training, similar to forestry. In cases where this is identified, if there are SCA or Davis Bacon rates that apply, they should be used.” If not, they again recommended creating sub-classifications and using ad hoc adjudication to set rates in the meantime.
An individual commenter stated that the U.S. workers would be adversely
ETA used the following process to issue prevailing wage determinations under the 2008 rule, as modified at 20 CFR 655.10(b)(2) by the 2013 IFR. ETA issued a prevailing wage determination for a specific job performed in a specific geographic area. In order to do so, H–2B jobs or tasks were structured into occupational titles. These occupations were catalogued in taxonomies, which established how the occupations were defined, organized and presented. Taxonomies would vary depending on the wage survey used. For example, as discussed above, when conducting the OES survey, BLS surveys of workers' wages are based on the 2010 SOC system, which contains 840 detailed occupations, each one of which has its own definition. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together to form 461 broad occupations, 97 minor groups, and 23 major groups. The SOC classifies all occupations in the economy, including private, public, and military occupations, in order to provide a means to compare occupational data produced for statistical purposes across agencies. It is designed to reflect the current occupational work structure in the U.S. and to cover all occupations in which work is performed for pay or profit.
By contrast, the Wage and Hour Division (WHD) employs the
Although WHD is the agency responsible for the administration and enforcement of the SCA and DBA, all prevailing wage determinations requested through the H–2B program, regardless of whether the wage source is the OES, the SCA or the DBA, were set by ETA's National Prevailing Wage Center (NPWC). In order to issue a prevailing wage determination for a position requested in the H–2B program, the NPWC needed to first match the job duties identified on the employer's request for a prevailing wage, Form 9141, to an occupational title for which a prevailing wage determination exists. On the Form 9141, the employer requested a wage for an H–2B job that the employer identified by both SOC code and by the job's duties and tasks.
For all prevailing wage requests, the NPWC assessed the employer's job description, checked the employer's submitted SOC code against the job description, and determined the most accurate SOC code for the position. If the prevailing wage was based on the OES survey, which is keyed to the SOC system, the NPWC found the SOC occupation on its online wage library
Although there is some overlap in the occupational titles and descriptions, the SOC, the SCA and DBA taxonomies can vary in ways that are challenging in setting the prevailing wage. The occupations contained in the SCA Directory and the DBA taxonomies are often defined more narrowly than are the corresponding occupations in the SOC system.
Often, the job duties listed on a Form 9141 requesting an SCA or DBA wage either did not correspond to the job duties of the occupational classification in the SCA and DBA systems, or contained a combination of duties that cross one or more occupational titles, while the work performed under an H–2B job order ordinarily fits within a single SOC. In the former case, where the duties described by the employer were incompatible with the duties in an occupation within the relevant SCA or DBA wage determination, the NPWC would issue a default OES-based prevailing wage determination. In the latter case, where the duties described by the employer crossed occupational titles, the NPWC would issue a prevailing wage that is the highest wage of the SCA or DBA occupations encompassing the employer's job duties.
By contrast, when an SCA- or DBA-covered contract requires the performance of work for which the applicable wage determination contains no corresponding classification, the WHD engages in a conformance process to determine what the appropriate prevailing wage should be for the unlisted, relevant occupation. This generally entails identifying a wage rate that is reasonable in relationship to the wage rates of listed occupations in the applicable wage determination. 29 CFR 4.6(b)(2).
Finally, once the proper occupational title was identified, a similar matching process needed to occur to determine the proper area of intended employment. In the DBA context, however, the area of intended employment might determine not just the appropriate wage, but also the title and description of the job itself, because the DBA taxonomy varies from area to area and is determined by local area practice. Issuing a DBA prevailing wage determination thus required the NPWC to match the Form 9141 tasks to a specific job taxonomy for every area of intended employment.
In the 2013 IFR, the Departments asked whether and to what extent SCA and DBA wage determinations should be used in the H–2B program. 78 FR at 24054. This request for input reflected, in part, DOL's past practice of using the SCA and DBA wage determinations in the H–2B program in a variety of ways, and whether those methods effectively served our obligation to prevent against adverse effect to the wages of U.S. workers. Our previously varied use of the SCA and DBA wage determinations to set the H–2B prevailing wage included relying on them as the sole, mandatory source for determining the prevailing wage before 2005, allowing their use at the employer's discretion in 2008, and requiring their use if they were the highest of an array of wage sources in the unimplemented 2011 wage rule. Under each of those scenarios, some groups strongly favored the approach, and others strongly objected. Comments on this subject in response to the 2013 IFR generally reflected the same divergence of opinion, with some groups favoring the mandatory use of the SCA and DBA wage determinations, others favoring only their discretionary use, and still others favoring their use only where the wage determinations were higher than the OES mean. In considering the competing interests of the regulated community with respect to using the SCA and DBA wage determinations to set the H–2B prevailing wage, the Departments' challenge is to protect against adverse wage effects resulting from the importation of foreign workers, establish a policy that promotes regulatory stability, and address the administrative challenges in conforming the SCA and DBA wage determinations in the H–2B program. Our decision, as outlined below, reflects these considerations.
This rule does not provide the option to request, for purposes of the H–2B program, a prevailing wage determination under the SCA or the DBA. The decision will result in the use of the SOC-based OES as the basis for all prevailing wage determinations in the H–2B program, unless an employer has a CBA or meets one of the conditions that would permit the submission of an employer-provided wage survey as discussed,
Our decision not to allow the use of the SCA and DBA wage determinations for establishing prevailing wage rates in the H–2B program is based largely on DOL's challenges conforming the SCA and DBA taxonomies and wage determinations to requests for prevailing wages in the H–2B program, including to avoid the potential for inconsistent prevailing wage determinations in the H–2B program. The substantial distinctions between the SOC system and the SCA and DBA occupation taxonomies, as discussed above, make the tasks of issuing and enforcing SCA and DBA prevailing wages in the H–2B program more complex than necessary to assure that U.S. workers experience no adverse wage effects when foreign workers are employed on a temporary basis.
As noted above, the SCA and DBA classifications are defined more narrowly than those in the SOC system, and job duties captured by an SOC occupation often span two or more applicable occupational titles in the SCA and DBA. Because the NPWC assigned the prevailing wage from the occupation with the higher wage in those cases where the employer's job duties cross more than a single SCA or DBA occupation, employers had an economic incentive to tailor their job descriptions on the Form 9141 to fit within the lower-paid occupational title.
The use of SCA and DBA wage determinations in the H–2B program has never carried with it the implementing tools established in the SCA and DBA regulations, such as the ability to prorate mixed-duty job descriptions or the conformance process that accompanies those wage determinations when administered by WHD. As discussed above, the conformance process used by WHD cannot be used by NPWC to issue H–2B prevailing wage determinations because the conformance process generally takes significantly longer than the timeframe under which the NPWC must issue prevailing wages. The absence of the SCA and DBA regulatory structures that facilitate WHD's effective implementation of the wage determinations, coupled with the frequent mismatch between the SOC occupations and the SCA and DBA classifications, could result in varying applications of the wage determinations between ETA and WHD. This is particularly true because ETA issues a single prevailing wage for the job opportunity in the H–2B program, while, in the SCA and DBA programs, multiple wage rates may apply to a single worker, depending on the tasks performed at various points during the job. In order to eliminate confusion concerning implementation of the SCA and DBA wage determinations, DOL will not rely on SCA and DBA wage determinations as a source for H–2B prevailing wage determinations. WHD is the agency statutorily tasked with the administration of the SCA and DBA, and has extensive experience issuing prevailing wage determinations in the specific classifications within the SCA and DBA, and that agency will have sole authority within DOL to issue a prevailing wage based on those wage determinations. Without the regulatory structure attendant to the SCA and DBA wage determinations and because of the misalignment in their taxonomies as compared to the default SOC system currently in use, we conclude that the use of those wage determinations in the H–2B program is not feasible, and we are not allowing their use as prevailing wage determination sources.
The challenges noted above—the distinctions between the occupational categories under the SOC codes and those in the SCA and DBA and the absence of the same regulatory structures that promote effective implementation of those wage determinations—have caused uncertainty and confusion in the H–2B program, which in turn has resulted in complex litigation over the proper wage.
The challenges identified above in using the SCA and DBA wage determinations as prevailing wage sources would be alleviated by relying solely on the SOC-based OES as the primary wage source for prevailing wage determinations in the H–2B program. SOC occupational titles are broadly defined, and therefore capture a wider range of job duties than do the SCA and DBA occupational titles. As such, small differences in the requested job duties reported on a Form 9141 will not often result in differences in the prevailing wage issued under the OES. On the other hand, the very fact that SCA and DBA often provide more tailored occupational titles posed challenges in the H–2B program because in many cases duties for a single H–2B job opportunity cross multiple SCA or DBA occupations. The problems presented in
Declining to allow employers the option to request an H–2B prevailing wage based on an SCA or DBA wage determination will streamline the H–2B prevailing wage determination process and expedite review of applications by the NPWC. As mentioned above, to issue a prevailing wage determination, the NPWC matched the tasks identified in the Form 9141 to an SOC code for every prevailing wage application received. Because the OES wage data is aligned with the SOC taxonomy, once the SOC code has been identified, it is relatively easy for NPWC to issue an OES-based prevailing wage for the occupation. An additional step is required, however, to match the position the employer has described on the Form 9141 to the corresponding occupation in the SCA Directory or the DBA local practice, which can be a cumbersome process because the duties identified on the Form 9141 do not always coincide with the duties reflected in the SCA and DBA occupational titles. As was recognized in the preamble to the 2013 IFR, determining whether multiple wage rates exist for every application is a time consuming process. 78 FR at 24054. If the H–2B regulation does not permit the optional use of the SCA and DBA wage determinations as sources to set the H–2B prevailing wage, the administration of the wage process will be streamlined and expedited, and disputes over their application and the attendant litigation will be reduced.
It is particularly time consuming for the NPWC to issue H–2B prevailing wage determinations based on DBA wage determinations because the same occupations can sometimes encompass different job duties based on the prevailing practice in the locality in question. The result is that the matching process described above must be completed for each area of intended employment identified in the Form 9141. Issuing an H–2B prevailing wage determination based on DBA wage rates differs from the process for determining the prevailing wage in an area of intended employment for the OES and the SCA. When issuing an H–2B prevailing wage determination based on a DBA wage rate, the NPWC does not identify the appropriate occupation only once and then locate that occupation's proper wage in each geographic area applicable to the employer's job opportunity. Rather, the job descriptions themselves change based on the local practice. This requires the NPWC to sort through each locality's taxonomy to find a position that matches the job duties identified on the Form 9141 for each area of intended employment. This particular complexity in relying on DBA wage determinations for determining H–2B wage rates further underscores how the decision not to permit their use in the H–2B program will streamline the wage determination process, and reduce disputes over their application and any attendant litigation.
The percentage of H–2B prevailing wage requests seeking an SCA- or DBA-based prevailing wage determination steadily increased over the last few years, thereby increasing the amount of time and resources that are devoted to issuing these determinations. Although there is some fluctuation, in the three fiscal years (FYs 2010, 2011, and 2012) before implementation of the wage provisions in the 2013 IFR, the NPWC issued H–2B prevailing wage determinations based on SCA and DBA wage rates, on average, in slightly more than one percent of all H–2B wage determinations.
The 2013 IFR acknowledged that the SCA and DBA wage rates constituted sound and reliable evidence of a wage that would “not adversely affect U.S. workers similarly employed,” 78 FR at 24054, and this rule does not reach a different conclusion. Instead, the rule is based on the “extensive discretionary authority [granted to] the Secretary of Labor [under the INA to use] any of a number of reasonable formulas to prevent the employment of [temporary] foreign workers from having an adverse effect upon domestic workers. The immigration statute does not specify the particular way in which avoidance of this adverse effect must be determined.”
Before 1998, in the absence of an applicable SCA or DBA wage
In 1998, DOL began using the OES to set prevailing wages in the H–2B program where there was no available CBA, SCA, or DBA wage rate, but continued to allow employers to submit employer-provided surveys in the absence of a CBA, SCA, or DBA wage rate for the employer's job, even where there was an available OES wage.
(1) The data upon which the survey was based must have been collected within 24 months of the publication date of the survey or, if the employer itself conducted the survey, within 24 months of the date the employer submits the survey to the SESA.
(2) If the employer submits a published survey, it must have been published within the last 24 months and it must be the most current edition of the survey with wage data that meet the criteria under this section.
In 2005, DOL issued revised prevailing wage guidance that allowed employers to continue to submit surveys.
In the 2008 rule, DOL continued to allow use of employer-provided wage surveys in the absence of a CBA, provided that the surveys met minimum standards for validity.
In November 2009, shortly before DOL centralized prevailing wage determinations with the NPWC, it issued a new prevailing wage guidance document reiterating the standards carried over from the May 2005 guidance document, now reflected in the 2008 rule.
In the 2011 Wage Rule, DOL eliminated the use of employer-provided wage surveys, except under limited circumstances. The 2011 Wage Rule stated that where there was no CBA, DBA, or SCA wage available for the job opportunity, an employer could submit a survey if the employer's job opportunity was in a geographic area where OES wage data is not available, or where the OES does not accurately represent the employer's job opportunity.
As discussed above, the 2013 IFR made no changes to the provisions of 20 CFR 655.10 dealing with employer provided surveys, which were maintained from the 2008 rule until vacated in
Worker advocates argued for a move from the status quo under the 2008 rule—permissive use of employer-provided surveys—which the 2013 IFR did not modify, and which remained in place until the
More specifically, worker advocacy groups echoed concerns, expressed in the 2011 Wage Rule and 2013 IFR, about the consistency, reliability, and validity of employer-provided surveys, and the groups stated that such surveys are only used to depress wages.
If the Departments elect to permit in the future employer-provided surveys beyond those allowed under the 2011 Wage Rule, worker advocacy groups, including a labor-based think tank and a federation of unions, overwhelmingly
In addition, we received virtually identical submissions from a dozen worker advocacy groups who recommended that, if we did not adopt the 2011 Wage Rule, which they favored, we should adopt a multi-part test for assessing employer-provided surveys. Most of these entities submitted the same statement advancing the following position:
• Recommended that the Departments never permit employer-provided surveys if the resulting wage would be lower than the DBA, SCA, or CBA wage, consistent with DOL policy before 2005;
• Asked that the Departments require any employer to demonstrate that the OES mean is inaccurate and inappropriate for the position. In the view of these commenters, the OES mean wage is the only accurate and appropriate wage for Zone 1 occupations if BLS has sufficient data to calculate the mean wage for the SOC. They stated that employer-provided surveys should only be permitted for Zones 2 and 3 if the employer can demonstrate that the job requires no pre-hire training or experience or requires less training or experience than other jobs in that occupational group;
• Recommended that we incorporate by reference the standards for employer-provided surveys in the PERM rule at 20 CFR 656.40(g), “including requiring that employer-provided surveys must be statistically accurate and independently verifiable”;
• Recommended that we “not accept employer-provided surveys that are based on data from H–2B employers whose wages have been depressed by participation in the prior four-tiered system or by reliance on prior employer wage surveys that did not meet the [PERM] requirements at 20 CFR 656.40(g)”;
A comment submitted by a worker advocacy project on behalf of a large consortium of worker advocacy groups reiterated the proposals above and offered further explanation. Instead of asking the Departments to use the survey standards from the PERM regulation, this comment advocated the use of survey standards from the 2009 Prevailing Wage Guidance [which already applied to the H–2B program at the time the 2013 IFR was published], emphasizing the requirement that any survey be conducted “across industries that employ workers in the occupation.” The comment further asked us to define the “occupation” in a manner consistent with the SOC. In addition, this comment recommended that, if there were occupations in which ETA receives a significant number of H–2B applications for which it determines that a job in Zone 2 or above requires less skill or experience than other jobs within the SOC (suggesting forestry as such an example), ETA should consult with its O*NET partners to establish appropriate O*NET sub-codes for that occupation. After completing this process, the comment further requested that ETA consult with BLS to establish methodologies that would allow the modification of OES-reported wage rates for those within the new sub-code. This comment asked that in all cases where an employer seeks to challenge the appropriateness of the BLS OES mean wage rate for a position within an SOC, we establish procedures to provide public notice of that application, including notice to labor organizations and others representing the economic interests of workers, allowing them to participate in the determination.
This same comment provided several additional recommendations. First, it stated that the wages of nonimmigrant workers should be excluded from any survey because the wages of such workers have been depressed by earlier wage rules. Second, it suggested a three-year phase-in of the new OES wage rate for employers who have long relied on employer-provided surveys if the industry is impacted by international trade, including in the seafood industry, in lieu of broader use of employer-provided surveys. Third, on the subject of state-conducted surveys, it expressed the view that: “The H–2B program has been adopted by some industries as a source of cheap labor at rates below the competitive market rates for such labor. State or maritime surveys that document the degree to which certain industries have been able to exploit nonimmigrant labor to pay below the prevailing market rates in that occupational classification should not be the basis for setting future wage rates.”
On the other hand, we received several comments from employers and employer associations in favor of the use of employer-provided surveys.
Several commenters noted DOL's long history of permitting employer-provided surveys across multiple programs and asserted that the methodology standards in place at the time the 2013 IFR was published are sufficient. For example, one employer association promoted the use of employer-provided surveys as an “important safeguard” for employers whose work “does not align with OES wage categories,” but did not identify any specific occupation for which there was a mismatch. This comment further provided that “the current provision provides more than enough safeguards to ensure such surveys are valid and reliable” and such surveys have been “long utilized by the Department [of Labor] across several temporary worker programs.”
Comments offered by several associations of seafood processing employers, individual employers, and members of Congress specifically endorsed use of employer-provided, state-conducted surveys by seafood processing employers. These comments considered state surveys to be reliable, cited the “unique” nature of seafood processing occupations, and asserted that the broader SOC category
Finally, although the 2013 IFR requested public comment on ways that “the validity and reliability of employer-submitted surveys can be strengthened,” 78 FR at 24055, we did not receive any comments from any source that provided suggestions on sample size, response rates, or other data improvements that might make such surveys more reliable.
Based on DOL's administrative experience with employer-provided surveys, the comments received, and the court's decision on
As discussed earlier in this preamble, given the substantive concerns expressed by the court in
These exceptions identified in
DOL continues to have concerns about the consistency, reliability, and validity of employer-provided surveys set out in the 2011 Wage Rule and in the 2013 IFR, 78 FR at 24055. Moreover, DOL experience reviewing employer-provided surveys since 2011 has not provided any demonstrable evidence that the wage information produced from non-government surveys is any more consistent or reliable than DOL determined was the case four years ago. These ongoing concerns were echoed in many comments submitted by worker advocates. The court underscored those concerns in the
We conclude that, given the reliability and comprehensiveness of the OES survey, the 2011 Wage Rule reflects reasonable limitations on an employer's ability to submit an employer-provided survey. That rule's two limited exceptions identify the only circumstances in which employer-provided surveys may provide DOL with wage information to which DOL does not currently have access. Some comments suggested that there are other categories of jobs beyond those identified in the 2011 Wage Rule in which the OES is somehow mismatched to the H–2B job opportunity. However, despite some general criticisms about a particular H–2B job's inclusion in an overly broad SOC category, none of these comments established with any conclusiveness that a specific occupation is not included in the particular SOC surveyed by the OES. Accordingly, we continue to hold the view that the OES adequately covers all occupations outside of the two exceptions identified in the 2011 Wage Rule and upheld in
Accordingly, consistent with the 2011 Wage Rule and pursuant to the court's decision in
DOL intended in the 2011 Wage Rule to permit surveys in both cases, that is, where the OES does not collect data in a geographic area and where the OES does not report a wage in a geographic area, and we adopt this construction of the exception in this final rule. In both cases, there is no BLS data from which to access a wage in the particular geographic area. This is also the reading the
Similarly, the description of the second exception in the 2011 Wage Rule—where the OES does not accurately represent the job opportunity—also contained an ambiguity that is corrected here. The regulatory text set forth a somewhat unwieldy two-part test that would have led to confusion and subjectivity.
DOL intended in the 2011 Wage Rule to permit surveys where the job opportunity is not within an SOC occupation, or if it is within an SOC occupation, it is designated in an SOC “all other” classification. The regulatory text at Sec. 655.10(f)(1)(iii) has been modified to reflect that.
After considering the comments submitted in response to the 2013 IFR and re-examining the administrative findings from the 2011 Wage Rule, we have determined that it is appropriate to permit prevailing wage surveys that are conducted and issued by a state as a third, limited category of acceptable employer-provided surveys, even where the occupation is sufficiently
This result has support in comments offered by worker advocates. Many commenters argued that, if permitted, employer-provided surveys must be conducted by third parties disinterested in the results. In addition, many survey advocates pointed to state-conducted surveys as ones undertaken by neutral third parties free from bias related to the outcome. Finally, no comments suggested that state-conducted surveys suffer from an inherent pro-employer bias, and we conclude that they do not so long as they are conducted using the survey standards we adopt here. Further, we understand that state-conducted surveys are ordinarily provided free of charge, and so allowing this limited exception does not implicate the court's concern in
Moreover, DOL has substantial experience with wage surveys conducted by the states, and DOL concludes that they are generally reliable and an adequate substitute for the OES, provided that they meet sufficient methodological standards.
DOL stated in the 2011 Wage Rule that some wage surveys conducted by states did not meet DOL's methodological standards. However, rather than barring all state-conducted surveys because some do not pass muster, we conclude that the appropriate course is to permit the submission of state-conducted surveys, but for DOL to review them carefully, and reject those that do not meet methodological requirements. In addition, DOL is no longer concerned about the depletion of administrative resources in the review of employer-submitted surveys noted in 2011 for the following reasons.
DOL's experience to date shows that state-conducted surveys have produced prevailing wage rates below the OES mean. However, we conclude that this is likely the result of those instruments surveying the wages of only entry level workers. The now-vacated 2009 Prevailing Wage Guidance permitted surveys using skill levels and, as a result, under the 2013 IFR, the state surveys submitted by some employers surveyed only entry level workers. We think that this explains much of the wage gap between the wages issued under these surveys and the OES mean. As the court held in
Because many state-conducted surveys use their own occupational taxonomy in conducting prevailing wage surveys, we received comments asking us to standardize job classifications by requiring all employer-conducted surveys to use the OES SOC taxonomy. We decline to impose such a standard because it would be inconsistent with DOL's current practice in other immigrant and nonimmigrant programs. Where the survey reflects the actual job duties to be performed by the H–2B workers, it
For the reasons discussed above, this final rule permits the prevailing wage to be set based on an employer-provided survey only where the survey was conducted by a state or in the two limited circumstances where this final rule concludes that the OES wage does not provide adequate information for the geographic area or occupation. DOL will provide all other employers with a prevailing wage determined by either a collective bargaining agreement negotiated at arms' length or the OES mean wage for the occupation.
For the limited class of employer-provided surveys that are permitted, this final rule imposes methodological requirements to ensure that the survey is sufficiently reliable as the basis for setting the prevailing wage. Many of the requirements are imposed to provide consistency between the OES and an employer-provided survey to the extent possible, and were contained in the 2009 Prevailing Wage Guidance that DOL uses to implement the PERM rule.
Some commenters asked us to adopt additional requirements, beyond those included in the 2009 Prevailing Wage Guidance that was in effect at the time the 2013 IFR was published, for the limited class of employer-provided surveys permitted under this final rule. The commenters suggested creating an adjudicatory process to allow worker advocates to submit competing evidence in response to an employer-provided survey. DOL has never required such a process in any of the prevailing wage programs that ETA administers, and the agency declines to do so now. ETA analysts review surveys submitted across the immigrant and nonimmigrant programs within DOL's jurisdiction and possess the expertise needed to review an employer-provided survey to determine whether it falls into one of the permissible categories and meets methodological requirements. Accordingly, we determine that any value from this additional information is outweighed by the costs and delays that such a requirement would impose.
This final rule requires that, in the limited circumstances where an employer-provided survey is permitted, the survey must provide the arithmetic mean of the wages of all workers similarly employed in the area of intended employment, except that if the survey provides only a median, the prevailing wage will be based on the median of the wages of workers similarly employed in the area of intended employment.
In addition, while 20 CFR 655.10(b)(4) of the 2008 Rule provided that any median from an employer-provided survey must be the “median of the wages of U.S. workers similarly employed,” we do not include the “U.S.” from this language in the new regulatory text at 20 CFR 655.10(f)(2). DOL has never had a rule in effect for the H–2B program that limited employer-provided surveys that provide a mean wage rate to U.S. workers, and the limitation on surveys providing the median in the 2008 Rule appears to be the result of a drafting error. A discussion of the inclusion of nonimmigrant workers in employer-provided surveys is provided below.
The court held in
In addition, the requirement that the survey provide the mean or median of the wages of all workers “similarly employed” requires the survey to be conducted without regard to the immigration status of the workers surveyed. In imposing this requirement, we revisit DOL's administrative finding in the 2011 Wage Rule that including the wages of H–2B or other nonimmigrant workers in the survey may depress wages. 76 FR at 3467. In addition, some comments in response to the 2013 IFR asked that we bar employer-provided surveys that include the wages of nonimmigrant workers on the same grounds. However, we now conclude, for the reasons stated below, that requiring surveys to collect data without consideration of the immigration status of nonimmigrant workers is appropriate. We caution that this final rule does not allow the selective reporting of only nonimmigrant workers, but requires all similarly employed workers to be included in the sample, regardless of immigration status. DOL will not accept wage surveys that exclude the wages of U.S. workers or exclude the wages of nonimmigrant workers.
DOL's determination in the 2011 Wage Rule was not based on empirical data showing that excluding the wages of nonimmigrant workers from a survey would result in a more accurate prevailing wage. In addition, the commenters did not submit any data supporting their request to exclude nonimmigrant workers from surveys. Requiring the survey to be collected without regard to immigration status will promote consistency with the OES, which does not bar the inclusion of nonimmigrant workers.
The content of employer-provided surveys in the H–2B program has varied widely and has not been consistently reliable, which is why such surveys are generally not permitted in this final rule. To enhance the consistency of the limited class of employer-provided surveys that are acceptable under this final rule and ensure that surveys provide sufficient information to allow DOL to make a finding that the survey is reliable, this final rule requires that each employer-submitted survey include a standard attestation, signed by the employer, based on information provided by the surveyor. The attestation must set forth specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. The form, provided as an appendix to this final rule, addresses each of the methodological requirements in this final rule.
Much of the information required by the new form was already required to be provided under the 2008 rule. This information was unchanged as to employer-provided surveys under the 2013 IFR, and required an employer to provide, among other things: “Specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey in accordance with guidance issued by the OFLC national office.”
The enhanced survey consistency enabled by the new form will make DOL's review more efficient. In addition, the required attestation will increase the transparency of the survey review process by providing all employers the criteria against which DOL will assess the surveys in an easily accessible format. This will reduce the number of instances where DOL will reject an employer-provided survey because it provides insufficient information to assess its validity.
Although employer-provided surveys are limited to those conducted by bona fide third parties for occupations and geographic areas where the OES does not provide adequate information (as discussed in Sec. II.C.4.f below) or surveys conducted by states (as discussed in Sec. II.C.3 and II.C.4.f), it is appropriate to require the employer to attest to the methodology in the survey to the best of its knowledge and belief. Because the employer is seeking to use the survey to set the prevailing wage, the employer is ultimately responsible for ensuring that the survey meets all required standards. We expect that in many cases the employer will be able to obtain the basic methodological information required to complete the attestation from the survey instrument
The 2009 Prevailing Wage Guidance suggested, but did not expressly require, that an employer-provided survey use random sampling.
Where the universe of employers is small, it may be necessary to attempt to contact all employers with workers similarly employed in the occupation and geographic area to ensure that the minimum sample size is met. A reasonable, good faith attempt to contact all employers with workers similarly employed in the occupation means, for example, that the surveyor might send the survey through mail or other appropriate means to all employers in the geographic area and then follow-up by telephone with all non-respondents.
On the other hand, if there are a large number of employers in the geographic area, surveyors will likely use the random sample option. Proper randomization requires the surveyor to determine the appropriate “universe” of employers to be surveyed before beginning the survey and to select randomly a sufficient number of employers to survey to meet the minimum criteria on the number of employers and workers who must be sampled, as discussed below.
Consistent with OES methodology, this final rule requires an employer-provided survey to include wages collected from at least three employers and 30 workers. BLS requires wage information from a minimum of three employers and 30 workers (after raw OES survey data is appropriately scrubbed and weighted) before it deems data of sufficient quality to publish on its Web site. In addition, these standards are consistent with the methodology from the 2009 Prevailing Wage Guidance that was in effect for the H–2B program at the time the 2013 IFR was published and with standards for the PERM program that some commenters recommended we apply to any H–2B surveys accepted.
Based on DOL's experience reviewing employer-provided surveys and the desire to provide consistency between the OES methodology and the methodology for employer-provided surveys, we conclude that three employers and 30 workers is the minimum number of data points required to produce a reliable arithmetic mean wage for an occupation in a given area of intended employment. Under this final rule, the surveyor would take into account the nature and duties of the job opportunity, and contact a large enough sample of employers to yield usable data for at least three employers and 30 workers similarly employed, regardless of immigration status, as discussed further in Sec. II.C.4.a above. Employers responding to the survey may not report wages selectively or base responses on only a portion of the workers similarly employed in the occupation that is the subject of the survey; rather, each employer responding to the survey must collect and report wage data for all of its workers in the occupation regardless of their level of skill, education, seniority, or experience. Under this final rule, if a surveyor could not obtain wage results for 30 workers, the area surveyed may be expanded beyond the area of intended employment under the guidelines discussed further below. However, as DOL stated in the 2009 Prevailing Wage Guidance (
In any of the three limited categories in which an employer-provided survey may be submitted, this final rule permits the survey to cover a geographic area larger than the area of intended employment only if all of the following conditions are met: (1) The expansion is limited to geographic areas that are contiguous to the area of intended employment; (2) the expansion is required to meet either the 30-worker or three-employer minimum; and (3) the geographic area is expanded no more than necessary to meet these minimum requirements. The H–2B program has always required that surveys reflect wage data for the area of intended employment, but has allowed states and employers to expand wage survey boundaries under limited circumstances, such as where the employer submitting the prevailing wage request is the only entity in the area employing persons in a given occupation,
This final rule also requires that the area to which the survey expands be
The final rule further requires that surveyors expand the geographic area only to the extent necessary to meet the minimum sample size requirements of this final rule. DOL has traditionally cautioned states and employers that, for purposes of surveys, the geographic area should be expanded only to the extent necessary to produce a representative sample,
Incremental, tailored expansion is consistent with OES survey methodology. The OES data used in the foreign labor certification program (which appears on DOL's Online Wage Library) uses the concept of geographic “levels” to allow expansion of the area for which wages are reported. Geographic levels are indicators of the breadth of the area. When the OES survey fails to collect enough usable data for a given geographic area (for example, an MSA or a “balance of state” area), BLS rolls over to the next largest geographic area until it reaches an area large enough that it has enough data to report. BLS will expand the area for which it reports data only as necessary, and will report wage data for the smallest area for which reliable data is available.
Surveyors may approach this requirement in two ways. In cases where an employer contracts with a surveyor familiar with the area of employment, the surveyor may determine before beginning the survey that the survey will not elicit a sufficient response to meet the regulatory requirements—for example, if there are not enough employers or workers in the area. In these cases, the surveyor may elect, at the outset, to survey a geographic area larger than the area of employment. The employer, when completing the survey attestation, discussed above at Sec. II.C.4.b, must explain the decision to expand the survey area at the outset, and describe the extent of the expansion and the reason why expansion was needed to meet the regulatory requirements based on information provided by the surveyor.
In other cases, a surveyor may use a more incremental approach. For example, the surveyor may survey the area of intended employment, but the survey still yields an insufficient response. In such cases, the surveyor must either make a reasonable, good faith effort to contact all employers employing workers in the occupation in the expanded area or survey a new, random sample of such employers in the expanded area, as discussed further in Sec II.C.4.c.
This final rule requires that if an employer provides a survey because the OES survey does not provide data for the SOC in a geographic area under 20 CFR 655.10(f)(1)(ii) or the OES does not provide adequate information for the occupation as provided under 20 CFR 655.10(f)(1)(iii), a bona fide third party must conduct the collection.
This rule reflects our determination that DOL will accept non-state surveys only where the OES either does not cover the geographic area and occupation or does not adequately provide data about the job. In these limited circumstances in which the OES does not provide adequate data, it would be inappropriate to require the employer to submit only a state-conducted survey because such a survey may not be available. As discussed in Sec. II.C.3, where an OES wage adequately represents the occupation, thus making the exceptions in 20 CFR 655.10(f)(1)(ii) or (iii) of this final rule inapplicable, a survey conducted and
This final rule requires that the wage reported from any employer-provided survey must include all types of “pay” to workers in the survey as required by new Form ETA–9165. Form ETA–9165 uses the definition of pay from the OES. The OES requires surveys to consider as pay and convert into the hourly rate reported to the surveyor the base rate of pay, commissions, cost-of-living allowance, deadheading pay, guaranteed pay, hazard pay, incentive pay, longevity pay, piece rate, portal-to-portal rate, production bonus, and tips.
This final rule requires that the data reported in an employer-provided survey must be based on wages paid no more than 24 months before the survey is submitted to ETA. The relevant provision of the 2008 Rule at 20 CFR 655.10(f)(3) (which was unchanged in the 2013 IFR until vacated by the
This final rule updates and strengthens the data timeliness requirements from earlier rules, starting with the distinction between types of surveys. Over the years, the program and its stakeholders have developed a vocabulary referring to the source of surveys supporting prevailing wage requests. These include, for example, “published,” “unpublished,” “commercial,” and “private.” In the digital age, these distinctions are no longer as meaningful or as helpful for prevailing wage determination purposes. Today, technology often allows professional surveyors and users of surveys alike to post or make surveys widely available on the Internet, thus blurring the clear distinctions that once existed between published and private surveys. In addition, the survey landscape has changed dramatically, as the production of surveys has developed into an industry with multiple choices, prices, and arrangements that include, for example, survey search services, survey subscription services, traditional surveyors for hire, and more informal or customized surveys conducted directly by private employers or their agents for limited purposes. Thus, we have concluded that these distinctions made in the 2008 Rule are less relevant, and we eliminate them.
This allows us to collapse the requirements on age of data. To be relevant and reliable, survey data must, among other things, be contemporary. Wage data, in particular, quickly becomes stale in a growing economy, and we have determined that data over 24 months old is sufficiently out-of-date that it does not permit us to set an accurate prevailing wage in the area of intended employment. Moreover, in the information age, it is no longer appropriate for the foreign labor certification program to use employer-provided wage data that at times may be up to four years old. In addition, many professional wage survey services update their surveys annually or quarterly. Requiring wage data to be based on wages paid no more than 24 months before submission in all instances, and accepting only the current edition of the survey, adds rigor and improves data quality for the limited class of employer-provided surveys permitted under this final rule.
As discussed above, the 2011 Wage Rule would have required the prevailing wage to be set at the wage rate contained in a collective bargaining agreement only where the CBA rate was the highest of the OES mean, SCA, DBA, and CBA wage rates. In explaining its decision to set the prevailing wage at the CBA wage only where it is the highest applicable wage, DOL stated that “a CBA rate below the prevailing wage would not be a valid wage for purposes of the H–2B program.” 76 FR at 3455.
In contrast, the 2008 Rule at 20 CFR 655.10(b)(1), which was unchanged in the 2013 IFR, included the requirement that, unless the job opportunity was covered by a sports league's rules or
In response to the 2013 IFR, we received several comments about the appropriate role of CBA wage rates in the H–2B program. Worker advocates, including a federation of unions and a worker advocate project representing a large consortium of worker advocate groups, asked the Departments to adopt the 2011 Wage Rule's position on the application of the CBA wage rate to the H–2B prevailing wage, and require the CBA wage rate to be paid only where it is the highest wage. These comments generally reflected the concern that a wage rate is often only one of a package of terms and conditions of employment negotiated between an employer and the employees' representative, and the negotiated wage rate may reflect a quid pro quo in exchange for another improved term in the package.
After considering these comments, we adopt the approach under the 2008 Rule, which was unchanged by the 2013 IFR, in which the CBA wage rate is the prevailing wage where it is applicable to the H–2B employer's job opportunity, regardless whether the OES mean is higher. When negotiated at arms' length by a duly elected or recognized bargaining representative, the CBA wage accurately represents the “wage paid to similarly employed workers in a specific occupation in the area of intended employment[,]” which is DOL's definition of the prevailing wage for the purposes of its labor certification programs.
This final rule will apply to all new prevailing wage requests submitted on or after the effective date of this rule. Any prevailing wage request submitted before the effective date of this rule and pending at the time this rule is published will be processed under the standards of the rule in effect on the date that the prevailing wage request was filed.
Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Under Executive Order 12866, the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the Executive Order and review by OMB. 58 FR 51735. Section 3(f) of Executive Order 12866 defines a “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 affects in a material way 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 Executive Order.
This final rule is a significant regulatory action under section 3(f)(4) of Executive Order 12866. The results of the Departments' cost-benefit analysis under this Part (III.A) are meant to satisfy the analytical requirements under Executive Orders 12866 and 13563. These longstanding requirements ensure that agencies select those regulatory approaches that maximize net benefits—including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity—unless otherwise required by statute. The Departments did not use the cost-benefit analysis under this Part (III.A) for purposes forbidden by or inconsistent with the Immigration and Nationality Act, as amended.
The following analysis evaluates the expected impacts of this final rule. According to the principles contained in OMB Circular A–4, the baseline for the economic analysis of this rule is the situation most recently in effect, as described in detail below, which is based on the 2008 rule and the 2013 IFR, as modified by the
The 2013 IFR establishes that when the prevailing wage determination (PWD) is based on the Occupational Employment Statistics (OES) survey, the wage rate is the arithmetic mean of the OES wages for a given geographic area of employment and occupation. The 2013 IFR permits, but does not require, an employer to use a PWD based on employer-provided surveys approved by DOL or Service Contract Act (SCA) and Davis-Bacon Act (DBA) wage determinations. The 2013 IFR also requires the use of an applicable Collective Bargaining Agreement (CBA) wage rate, if one exists. Finally, the 2013 IFR requires that employers offer H–2B workers and U.S. workers hired in response to the required H–2B recruitment a wage that is at least equal to the highest of the prevailing wage or the federal, state, or local minimum wage.
On December 5, 2014, the Court of Appeals for the Third Circuit in
This final rule retains the OES mean as the default wage, does not permit the use of wage determinations under the SCA or DBA as H–2B wage sources, and establishes three circumstances in which employer-provided surveys may be accepted for PWDs. They are as follows:
• The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the Standard Occupation Classification (SOC);
• The job opportunity is not included within an occupational classification of the SOC system or is within an occupational classification of the SOC system designated as an “all other” classification; or
• The survey was conducted and issued by a state, including any state agency, state college, or state university.
The final rule continues to use the OES mean as the basis for setting H–2B prevailing wage rates. The OES mean wage rate conforms more closely to the wages paid by employers in a given geographic area of employment and occupation and, as discussed above, is the most appropriate wage to use to prevent adverse immigration-induced labor market distortions inconsistent with the requirements of the Immigration and Nationality Act. The use of the OES mean is consistent with the 2013 IFR in which we explained that the four-tier skill levels used in the 2008 rule did not adequately ensure that H–2B workers are paid a wage that will not adversely affect the wages of similarly employed U.S. workers.
Historically, SCA and DBA wage determinations developed for work on government contracts were used as sources for H–2B prevailing wages before the OES survey began to dominate the wage survey landscape. In the 2008 rule, SCA and DBA wage rates became permissive sources; employers could request their use as a source for PWDs among an array of sources. The 2013 IFR retained the 2008 rule's approach, allowing employers to select among the array of available sources (OES mean, SCA, DBA, or employer-provided surveys).
The final rule does not permit the use of SCA and DBA wage determinations as sources for the H–2B prevailing wage. SCA and DBA wage determinations would still be applicable to and enforced in H–2B work covered by a government contract, but the prevailing wage issued by OFLC would be based on the OES mean, unless an employer-provided survey was submitted and approved. The primary benefits of this approach are the resulting streamlined PWD process, the removal of challenges associated with conforming the SCA and DBA wage determinations into the H–2B prevailing wage process, and the alleviation of the administrative burden associated with matching employers' job descriptions submitted in prevailing wage requests with the appropriate SCA or DBA job classifications.
The final rule allows the use of employer-provided surveys in limited circumstances for determining H–2B prevailing wages. First, in specific geographic locations where OES does not collect wage data or the OES reports only a national-level wage for the SOC, employers are permitted to use a survey that meets the methodological standards required by this final rule. The only geographic area where OES wage data are not collected is the Commonwealth of the Northern Mariana Islands (CNMI).
Second, employers will be able to submit a survey if the job opportunity is not included in the SOC or is in a SOC “all other” category. Based on an analysis of approximately 9,250 H–2B PWDs issued during FY 2014, DOL issued a PWD using a SOC “all other” category in only 6 instances, constituting less than 0.1 percent of all PWDs issued. Therefore, DOL believes the category is largely unavailable and it has received H–2B certification requests that would meet this category only on very rare occasions.
Third, the final rule permits employers to request a PWD based on a wage survey of all similarly employed workers in the job and area of intended employment where such a survey is conducted and issued by a state. Such a survey must also meet the new methodological standards contained in the final rule.
The 2008 rule and the 2013 IFR permitted employers to submit
After the issuance of the 2013 IFR and the establishment of the default wage at the OES mean, the use of employer-provided surveys grew exponentially. Pre-IFR use of these surveys included about 1 percent of all PWDs, while post-IFR use climbed to about 30 percent of all PWDs.
In addition, in many cases the survey methodology employed was insufficient to produce a reliable and valid wage for the occupation, largely because the current survey standards do not adequately promote valid and reliable results. Given the low quality of many of the surveys deemed acceptable under the existing wage guidance, we have determined that if employer-provided surveys continue to be available, additional methodological rigor is needed to support their continued use. Therefore, the final rule improves the methodological standards required for employer-provided surveys to improve their reliability and validity. Key improvements to the methodological standards generally are as follows:
1. Require the survey to include the mean or median wage of all similarly employed workers in the area of intended employment, regardless of skill level, experience, education, and length of employment;
2. Require the survey to make a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conduct a randomized sample of such employers;
3. Require the survey to be independently conducted and issued by a state and approved by a state official or, in the limited circumstances where the OES wage does not provide adequate data for the occupation or geographic area, a bona fide third party;
4. Require the survey to include at least thirty employees and three employers in a sample;
5. Require that surveys include all types of pay set out in the OES survey instrument, including payment of piece rates or production bonuses in the wages reported;
6. Require the wages reported in the survey be no more than twenty-four months old;
7. Require that that surveys be conducted across industries that employ workers in the occupation; and
8. Require that employers submit a new Employment and Training Administration (ETA) Form ETA–9165, which permits DOL to better assess the validity and reliability of the survey.
Changes in the method of determining prevailing wages required by this final rule will result in additional compensation (
The impact of wage increases to employers was measured by comparing the prevailing wages under the final rule to the H–2B hourly wages under the baseline (
The equation below shows the formula that DOL used to calculate the weighted average wage differential (WWD). In the formula,
Finally, to estimate the total transfer to all H–2B workers that results from the increase in wages due to the application of the final rule's new PWD method, DOL multiplied the weighted average wage differential by the total number of H–2B workers in the United States in a given year.
Under the current baseline, employers could select their prevailing wage source from the OES mean, the SCA or DBA wage, or the CBA wage if one exists. DOL believes employers that select prevailing wages based on the OES mean under the current baseline would continue to select the OES mean, except for those employers who elect to submit a survey in the three circumstances in which surveys are accepted for PWDs under the final rule. As a result, the final rule will have no impact on the employers who continue to use the OES mean. Employers who use the OES mean account for
One of the more challenging aspects of this economic analysis is accurately determining the expected prevailing wages for the employers that selected their prevailing wage sources from the SCA and DBA wage determinations (approximately 5 percent of employers under the current baseline). Employers that submitted an SCA or DBA wage determination as a source for their prevailing wage under the current baseline will no longer be able to use the SCA or DBA wage determinations under the final rule. Therefore, they can either request the OES mean wage as the prevailing wage source or submit a survey conducted and issued by a state or third party, if one is available and permissible and the wage from the survey is lower than the OES mean.
Employers that received a prevailing wage determination based on a survey under the 2013 IFR before the
Employers that submitted a state survey as their PWD source under the 2013 IFR prior to the
Under certain circumstances, employers requesting H–2B certifications are permitted to use an employer-provided survey that meets the methodological standards required under this final rule. Such employers must be operating in geographic areas where the OES does not collect data or where the OES reports a wage for the SOC at the national level only. In addition, employers requesting H–2B certifications for an occupation not included in the SOC or designated as an “all other” classification will be able to use an employer-provided survey. However, DOL does not have enough information to predict with reasonable accuracy which employers are going to submit the OES mean as the prevailing wage source or which employers are going to submit an employer-provided survey. In addition, DOL has no information about how much the new survey requirements will affect the number of surveys submitted or the resulting wages. Therefore, DOL estimated the upper-bound wage impact of this final rule by applying the OES mean wages to employers that potentially fall into the two categories described above. DOL estimated that employers in these two categories represent approximately 2 percent of all employers in the H–2B Program. Therefore, the upper-bound estimate of the impact would not substantially overstate the true wage impact of this final rule.
DOL based its analysis on sample data drawn from a pool of 3,593 employers with 92,602 certified H–2B positions between May 1, 2013, and April 30, 2014, to represent the most recent data available for the one-year period following the publication of the 2013 IFR on April 24, 2013. A statistically valid sample that accurately represents the employers with certified H–2B
Using the random sample of 524 employers, DOL calculated the increase in wages as the difference between the baseline
The remaining sections of this analysis present the estimated costs of the final rule, the transfer payments associated with the increased wages resulting from the changes in the wage determination method, and the benefits of the final rule.
During the first year that this rule is in effect, employers would need to learn about the new rule and its requirements. DOL estimates this cost for a hypothetical entity interested in applying for H–2B workers by multiplying the time required to read the final rule and/or any educational and outreach materials explaining the wage calculation methodology under the rule by the average compensation of a human resources manager (SOC code 11–3121).
Employers are allowed to submit wage surveys as long as they meet the criteria set forth in the final rule. DOL estimated that approximately up to 185 or 2 percent of H–2B PWDs could be based on private wage surveys.
Accordingly, these employers will incur additional costs. The cost of conducting a wage survey by a third party can vary widely depending on various factors, such as the scope of the survey, the survey methodology used, the number of respondents, and the nature of the sample. After reviewing pricing information provided by some survey service providers,
Salary Basics—Compensation Surveys,
HRA–NCA 2014 Benefit and Compensation Survey,
In addition to the 185 employers that will submit an employer-provided survey, DOL estimated that approximately 93 employers
The total cost of the final rule is estimated at $555,751, which is the sum of the regulatory familiarization cost ($274,613), the cost of conducting private wage surveys ($263,786), and the cost of completing and signing Form ETA–9165 ($17,352).
Transfer payments, as defined by OMB Circular A–4, are payments from one group to another that do not affect total resources available to society. Transfer payments are associated with a distributional effect but do not result in additional benefits or costs to society. The primary recipients of transfer payments reflected in this analysis are H–2B workers and U.S. workers hired in response to the required recruitment under the H–2B program. The primary payers of transfer payments reflected in this analysis are H–2B employers. Under the higher wage obligation established in this final rule, those employers who participate in the H–2B program are likely to be those who have the greatest need to access the H–2B program.
Employment in the H–2B program represents a very small fraction of the total employment in the U.S. economy as well as in the industries represented in the program. The H–2B program is capped at 66,000 visas issued per year, but an H–2B worker who extends his/her stay in H–2B status may remain in the country and not count against the cap. The 2013 IFR assumed that half of all such workers (33,000) in any year are able to extend their stay at least one additional year and that half of those workers (16,500) are able to extend their stay a third year.
To estimate the total transfer to H–2B workers that results from the increase in wages due to application of the final rule's new method of determining the prevailing wage, DOL multiplied the weighted average wage differential ($0.16) by the total number of H–2B workers estimated to be in the United States in a given year (115,500). For the number of hours worked per day, seven hours were used as typical. For the number of days worked, DOL assumed that the employer would retain the H–2B worker for the maximum time allowed (9 months or 274 days) and would employ the workers for five days per week. Thus, the total number of days worked equals 196 (274 ×
The Departments have determined that a new wage methodology is necessary for the H–2B program, particularly in light of the
The increase in the prevailing wage rates induces a transfer from participating employers not only to H–2B workers but also to U.S. workers hired in response to the required H–2B recruitment. The increase in the prevailing wage rates is expected to improve workers' productivity and the quality of their work, thereby mitigating the higher labor costs to employers. Furthermore, higher prevailing wages promote the retention of experienced workers and minimize the costs of hiring and training new employees, and also create an environment of increased compliance with workplace safety and workers' compensation rules and regulations.
The discontinued use of the SCA and DBA wage determinations as a source for the prevailing wage in the H–2B program offers additional benefits. The primary benefits of this approach are the streamlining of the PWD process, the removal of challenges associated with conforming the SCA and DBA wage determinations into the H–2B prevailing wage process, and the alleviation of the administrative burden associated with matching employers' job descriptions submitted in prevailing wage requests with the appropriate SCA or DBA job classifications.
A review of post-IFR employer-provided surveys used as wage sources indicated that, in many cases, employers report wages of workers at the entry level of the occupation instead of reporting the mean wage of all workers in the occupation as required when the prevailing wage is based on the OES. In addition, in many cases the survey methodology employed was insufficient to produce a reliable and valid wage for the occupation. Therefore, we have decided to raise the methodological standards required for employer-provided surveys to improve their reliability and validity so the prevailing wage rate adequately reflects the appropriate prevailing wage necessary to ensure that U.S. workers are not adversely affected by the employment of H–2B workers.
The Regulatory Flexibility Act, 5 U.S.C. 601
Consistent with the policy of the RFA, the Departments encouraged the public to submit comments that suggested alternative rules that would accomplish the stated purpose of the 2013 IFR and minimize the impact on small entities. We received just a handful of comments responsive to this request, including one from the Office of the Chief Counsel for Advocacy of the Small Business Administration (SBA Advocacy). SBA Advocacy noted that the IFR would suddenly increase the wages that small businesses must pay to hire foreign workers under the H–2B program mid-season, and that employers have told SBA Advocacy that the IFR would have significant economic impacts on their businesses because they operate on narrow margins. In particular, SBA Advocacy obtained input from employer associations in landscaping, seafood processing, and lodging industries, and all those associations asserted that the higher labor costs resulting from the 2013 IFR negatively impacted their businesses. The Departments received similar comments from some small businesses indicating that the 2013 IFR unnecessarily encumbered those businesses with increased wage costs. We also recognize that wage increases may impose unique burdens on small businesses. However, as further explained in Section II.A.4 above, a prevailing wage that protects all U.S. workers from adverse effect is a legal requirement, and this requirement could not be met by setting a lower wage for small businesses. As previously discussed, use of the OES mean best meets the Departments' obligation to protect against adverse effect, whereas setting the prevailing wage at a threshold based on artificial skill levels likely distorts the labor market for U.S. workers, driving down wages. Wage increases from the 2013 IFR resulted for some H–2B employers, but most H–2B employers now have experience paying workers at the OES mean. Moreover, most H–2B employers now have experience paying workers at the OES mean, and DOL concludes it is likely that H–2B employers have incorporated the new wage requirements, which were established in the H–2B program two years ago. This final rule is estimated to increase wages on average only $0.16 per hour above the levels that have been required for two years under the 2013 IFR.
The final rule modifies the standards associated with the submission by employers of surveys as an alternative to establishing the prevailing wage based on the OES survey. As noted above, we are modifying the H–2B regulation to set new standards for permissible employer-provided surveys in order to improve their reliability and validity. The new standards require: (1) The survey to include the mean or median wage of all workers regardless of skill or experience; (2) the survey collection must be independently conducted and issued by a state and approved by a state official or, in limited circumstances, a bona fide third party; (3) that surveyors make a reasonable good-faith effort to survey all employers in the occupation and area surveyed or base the survey on a random sample; (4) the survey to include at least 3 employers and 30 employees in a sample; (5) that any wage survey submitted report all types of pay; (6) that surveys be conducted across industries that employ workers in the occupation; (7) that wages paid and reported in the survey be no more than 24 months old; and (8) that employers submit new Form ETA–9165 that permits DOL to better assess the validity and reliability of the survey.
New Form ETA–9165, which is attached as an Appendix to this final rule, asks the employer to respond to a number of questions about the underlying methodology used to develop the wage surveyed. Most of the questions require a yes/no response or the selection of a response from an array of two to four standard choices. There are a few questions that require a fill-in-the-blank response, such as the survey name, title of the job opportunity, the duties of the job, the area of intended employment, and the resulting wage found by the survey. The responses to all of the questions on the form are intended to provide that the third-party who conducts the survey for the H–2B employer complies with the new survey standards, that the employer is aware of the compliance standards and certifies that they have been met, and permits the agency to more easily assess compliance. Once the survey is designed and conducted with the new standards in mind, the third-party surveyor should have at its ready disposal the responses to the questions in the new Form ETA–9165, and should be able to transmit them to the employer
Form ETA–9165 is an information collection subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Executive Order 12875—This rule will not create an unfunded Federal mandate upon any State, local or tribal government.
Unfunded Mandates Reform Act of 1995—This rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more. It also does not result in increased expenditures by the private sector of $100 million or more, because participation in the H–2B program is entirely voluntary.
The Congressional Review Act (5 U.S.C. 801
The Departments have reviewed this final rule in accordance with E.O. 13132 regarding federalism and has determined that it does not have federalism implications. The 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, the Departments have determined that this rule will not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
This final rule was reviewed under E.O. 13175 and determined 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 Supplemental Appropriations Act of 1999 (Pub. L. 105–277, 112 Stat. 2681) requires the Departments to assess the impact of this final rule on family well-being. A rule that is determined to have a negative effect on families must be supported with an adequate rationale. The Departments have assessed this final rule and determined that it will not have a negative effect on families.
This 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.
This 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 Departments have developed the final rule to minimize litigation and provide a clear legal standard for affected conduct, and has reviewed the rule carefully to eliminate drafting errors and ambiguities.
The Departments have drafted this final rule in plain language.
Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
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.
Accordingly, for the reasons stated in the joint preamble, the interim final rule amending 8 CFR part 214, which was published at 78 FR 24047 on April 24, 2013, is adopted as a final rule without change.
Accordingly, for the reasons stated in the joint preamble, part 655 of title 20 of the Code of Federal Regulations is amended as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–232, 105 Stat. 733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103–206, 107 Stat. 2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107–296, 116 Stat. 2135, as amended; Pub. L. 109–423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
(b)
(1) Except as provided in paragraph (i) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the union and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is considered the “prevailing wage” for labor certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended employment using the wage component of the BLS Occupational Employment Statistics Survey (OES), unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section.
(f)
(i) The survey was independently conducted and issued by a state, including any state agency, state college, or state university;
(ii) The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;
(iii)(A) The job opportunity is not included within an occupational classification of the SOC system; or
(B) The job opportunity is within an occupational classification of the SOC system designated as an “all other” classification.
(2) The survey must provide the arithmetic mean of the wages of all workers similarly employed in the area of intended employment, except that if the survey provides a median but does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment.
(3) Notwithstanding paragraph (f)(2) of this section, the geographic area surveyed may be expanded beyond the area of intended employment, but only as necessary to meet the requirements of paragraph (f)(4)(ii) of this section. Any geographic expansion beyond the area of intended employment must include only those geographic areas that are contiguous to the area of intended employment.
(4) In each case where the employer submits a survey under paragraph (f)(1) of this section, the employer must submit, concurrently with the ETA Form 9141, a completed Form ETA–9165 containing specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. In addition, the information provided by the employer must include the attestation that:
(i) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conducted a randomized sampling of such employers;
(ii) The survey includes wage data from at least 30 workers and three employers;
(iii) If the survey is submitted under paragraph (f)(1)(ii) or (iii) of this section, the collection was administered by a bona fide third party. The following are not bona fide third parties under this rule: Any H–2B employer or any H–2B employer's agent, representative, or attorney;
(iv) The survey was conducted across industries that employ workers in the occupation; and
(v) The wage reported in the survey includes all types of pay, consistent with Form ETA–9165.
(5) The survey must be based upon recently collected data: The survey must be the most current edition of the survey and must be based on wages paid not more than 24 months before the date the survey is submitted for consideration.