issue-1995-10-31•Federal Register proposed rules — 1995-10-31
Federal Register proposed rules — 1995-10-31
issue-1995-10-31Federal Register proposed rules — 1995-10-31Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 95-26978 Radio Broadcasting Services; Tillamook, OR
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Page 55358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26978]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-153; RM-8702)
Radio Broadcasting Services; Tillamook, OR
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition filed by Brian
Lord requesting the allotment of Channel 231A to Tillamook, OR, as the
community's second local FM service. Channel 231A can be allotted to
Tillamook in compliance with the Commission's minimum distance
separation requirements with a site restriction of 5.8 kilometers (3.6
miles) west, at coordinates 45-27-27 North Latitude; 123-55-00 West
Longitude, to avoid a short-spacing to Station KPDQ-FM, Channel 229C,
Portland, Oregon. Canadian concurrence is required since Tillamook is
located within 320 kilometers (200 miles) of the U.S.-Canadian border.
DATES: Comments must be filed on or before December 18, 1995, and reply
comments on or before January 2, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Brian
Lord, 3824 SW Myrtle Street, Seattle, WA 98126-3210 (Petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 95-153, adopted September
26, 1995, and released September 29, 1995. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 95-26978 Filed 10-30-95; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 95-26962 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Connecticut
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Page 55354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26962]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-5296-6]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Connecticut
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Connecticut to redesignate the
Hartford/New Britain/Middletown area from nonattainment to attainment
for carbon monoxide (CO). Under the Clean Air Act as amended in 1990
(CAA), designations can be revised if sufficient data is available to
warrant such revisions.
In addition, EPA is approving two related State Implementation Plan
(SIP) submissions by Connecticut DEP. On January 12, 1993, Connecticut
DEP submitted a final 1990 base year emission inventory for CO
emissions, which includes emissions data for all sources of CO in
Connecticut's two CO nonattainment areas (the Hartford/New Britain/
Middletown area and the Connecticut portion of the New York/New Jersey/
Connecticut Consolidated Metropolitan Statistical Area (CMSA). On
January 12, 1993, January 14, 1993, September 30, 1994 and August 1,
1995, Connecticut DEP submitted an oxygenated fuel program and
revisions for both CO nonattainment areas.
In the Final Rules Section of this Federal Register, EPA is
approving the CO emissions inventory for both areas and the oxygenated
fuels program only as it applies to the Hartford/New Britain/Middletown
nonattainment area as a direct final rule. In addition, EPA is also
approving Connecticut's redesignation, as a direct final rule without
prior proposal. A detailed rationale for the action is set forth in the
direct final rule. If no adverse comments are received in response to
that direct final rule, no further activity is contemplated in relation
to this proposed rule. If EPA receives adverse comments, the direct
final rule will be withdrawn and all public comments received will be
addressed in a subsequent final rule based on this proposed rule. EPA
will not institute a second comment period on this document. Any
parties interested in commenting on this document should do so at this
time.
DATES: Comments must be submitted by November 30, 1995.
ADDRESSES: Written comments should be sent to Damien Houlihan, at the
EPA Regional Office listed below. Copies of the redesignation request
and the State of Connecticut's submittal are available for public
review during normal business hours at the addresses listed below.
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460, and;
Environmental Protection Agency, One Congress Street, Boston, MA 02203.
FOR FURTHER INFORMATION CONTACT: Damien Houlihan of the EPA Region I
Air, Pesticides and Toxics Management Division at (617) 565-3266.
Dated: August 31, 1995.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 95-26962 Filed 10-30-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26960 Approval and Promulgation of Implementation Plans; Designation of Areas for Air Quality Planning Purposes; Redesignation of the Baltimore Carbon Monoxide Area to Attainment and Approval of the Area's Maintenance Plan and Emission Inventory; State of Maryland
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Page 55358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26960]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[MD44-1-3001b, MD44-2-3002b; FRL-5315-5]
Approval and Promulgation of Implementation Plans; Designation of
Areas for Air Quality Planning Purposes; Redesignation of the Baltimore
Carbon Monoxide Area to Attainment and Approval of the Area's
Maintenance Plan and Emission Inventory; State of Maryland
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to approve the State Implementation Plan (SIP)
revision submitted by the State of Maryland for the purpose of
approving a maintenance plan and a request to redesignate the Baltimore
carbon monoxide nonattainment area, from nonattainment to attainment
for CO. In the Final Rules section of this Federal Register, EPA is
approving the State's SIP revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial SIP
revision and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting on this
action should do so at this time.
DATES: Comments must be received in writing by November 30, 1995.
ADDRESSES: Written comments on this action should be addressed to
Marcia L. Spink, Associate Director, Air Programs, Mailcode 3AT00, U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air, Radiation, and Toxics Division, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107; Maryland Department of the Environment, 2500
Broening Highway, Baltimore, Maryland 21224.
FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 597-
6863.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final action which is located in the Rules and Regulations Section of
this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 29, 1995.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 95-26960 Filed 10-30-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26952 Clean Air Act Approval and Promulgation of New Source Review Implementation Plan for Mojave Desert Air Quality Management District
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55355-55358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26952]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 79-3-7211; AD-FRL-5322-1]
Clean Air Act Approval and Promulgation of New Source Review
Implementation Plan for Mojave Desert Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The EPA proposes to approve with a contingency, and disapprove
in the alternative, Mojave Desert Air Quality Management District
(MDAQMD) rules 1301, 1302, 1304, 1305, 1306, 1307, 1308, 1310, 1311,
and 1312 (submitted rules) as a revision to the California State
Implementation Plan (SIP). The State of California has submitted these
rules for the purpose of meeting the new source review (NSR)
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act)
for areas that have not attained the national ambient air quality
standards (NAAQS). The submitted rules contain a number of deficiencies
that prevent EPA from approving them as revisions to the SIP. However,
MDAQMD has agreed to correct these deficiencies, and has sent draft
rules (Initial Draft 3, 10/11/95--hereafter: ``proposed revisions'') to
EPA which contain acceptable language. This proposed approval is
therefore contingent upon MDAQMD adopting and submitting to EPA revised
rules which correct the deficiencies identified in this document before
EPA promulgates a final rulemaking on the submitted rules. Should
MDAQMD fail to adopt and submit its proposed revisions, then this
document will serve as a proposed disapproval of the submitted rules.
If the District adopts and submits rules which differ substantially
from those contained in its proposed revisions, then EPA will publish
an additional notice of proposed rulemaking for public review and
comment.
DATES: Comments on this proposed action must be received in writing by
November 30, 1995.
ADDRESSES: To submit comments or receive additional information, please
contact: Steve Ringer, Environmental Engineer, Air & Toxics Division
(A-5-1), EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105.
Copies of MDAQMD's submittal and other information are available for
inspection during normal business hours at the following locations: (1)
EPA Region 9, 75 Hawthorne Street, San Francisco, CA; (2) Mojave Desert
AQMD, 15428 Civic Drive, Suite 200, Victorville, CA 92932; (3) Air
Resources Board, 2020 ``L'' Street, Sacramento, CA 95814.
FOR FURTHER INFORMATION CONTACT: Steve Ringer at (415) 744-1260.
SUPPLEMENTARY INFORMATION: The air quality planning requirements for
nonattainment NSR are set out in Part D of Title I of the Act. EPA has
issued a ``General Preamble'' describing EPA's preliminary views on how
EPA intends to review SIPs and SIP revisions submitted under part D,
including those State submittals containing nonattainment NSR SIP
requirements (see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April
28, 1992)). Because EPA is describing its interpretations here only in
broad terms, the reader should refer to the General Preamble for a more
detailed discussion. EPA is currently developing proposed regulations
to implement the changes under the 1990 Amendments in the NSR
provisions in Parts C and D of Title I of the Act. EPA expects to
propose these regulations sometime during 1995 or 1996. Upon
promulgation of these regulations, EPA will review those NSR SIP
submittals on which it has taken final action to determine whether
additional SIP revisions are necessary.
Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) and section 110(l) of the Act provide that each
implementation plan or revision to an implementation plan submitted by
a State must be adopted after reasonable notice and public hearing.
Section 172(c)(7) of the Act provides that plan provisions for
nonattainment areas shall
[[Page 55356]]
meet the applicable provisions of Section 110(a)(2).
The MDAQMD Governing Board held a public hearing on September 22,
1993 to entertain public comment on the NSR implementation plan. The
plan was adopted by the State and submitted to EPA on March 29, 1994 as
a proposed revision to the SIP.
The SIP revision was not reviewed by EPA within six months to
determine completeness, and was therefore deemed complete by default.
The submittal has since been reviewed and found to be complete but
lacking certain requirements that would make it fully approvable.
However, as noted above, MDAQMD has agreed to make the required changes
and has submitted draft versions of its rules which address the
deficiencies described below. Therefore, contingent on the submittal of
a fully approvable SIP in the form of approved rules consistent with
the revised rules, EPA proposes to approve the MDAQMD's nonattainment
NSR SIP submittal. If the District fails to correct the deficiencies in
the submitted rules, then EPA's final action will be a disapproval. If
the District adopts and submits rules which differ substantially from
those contained in its proposed revisions, then EPA will publish an
additional notice of proposed rulemaking for public review and comment.
Summary of Rule Contents
MDAQMD submitted to EPA for adoption into the applicable NSR SIP
Rules 1301, 1302, 1304, 1305, 1306, 1307, 1308, 1310, 1311, and 1312.
These submitted rules constitute MDAQMD's new source permitting
regulations. Rule 1301 outlines the general requirements for
preconstruction review of permit applications. Rule 1302 defines terms
relating to new sources and modifications to existing sources of air
pollution, and their regulation. Rule 1304 allows an exemption from NSR
for a change of ownership. Rule 1305 describes the procedures for
submittal and review of permit modifications. Rule 1306 outlines
calculation methods for emissions increases and decreases, and for
offset requirements. Rule 1307 contains a description of which new and
modified sources require offsets. Rule 1308 outlines which sources are
eligible to create offsets. Rule 1310 describes District requirements
for completeness determinations, final action and public notice on a
permit submittal. Rule 1311 outlines the requirements for electrical
energy generating facilities. Rule 1312 contains an alternative siting
analysis requirement for major new sources and modifications. The
submitted rules are intended to replace the existing rules 1301 through
1313, which were adopted into the San Bernardino SIP by EPA on June 9,
1982. MDAQMD has adopted these new regulations in part to meet the 1990
CAA Amendments and the November 15, 1992 deadline for submittal. A
summary of the changes between the current SIP and the submitted rules
is contained in the Technical Support Document (TSD) for this action.
MDAQMD is currently designated as attainment or unclassifiable for
CO, NO2, Pb, and SO2, and moderate nonattainment for
PM10. In addition, part of the MDAQMD is designated severe
nonattainment for ozone [40 CFR 81.305]. The CAA requirements for
nonattainment NSR permitting are found at sections 172 and 173. With
certain exceptions, described below, MDAQMD's submittal satisfies these
requirements. For a detailed description of how the submitted rules and
MDAQMD's proposed revisions meet the CAA requirements, refer to EPA's
TSD.
Rule Deficiencies Requiring Correction
Below is a list of the deficiencies which must be corrected for EPA
to approve MDAQMD's NSR rules into the SIP.
Rule 1302
Actual Emissions
The definition of ``Actual Emissions'' in the submitted rules
should require that emissions calculations reflect actual production
rates, the actual amount of fuel burned, actual amounts of material
processed, and the actual hours of operation over the two years prior
to such a determination. Emission factors should be established by
source testing or obtained from a reliable source of emission factor
data such as EPA's AP-42.
Major Modification
The submitted rules do not contain this definition. Although the
submitted definition of ``Modification'' contains much of the language
from the definition of a major modification in 40 CFR 51.165(a)(1)(v),
the District must define a ``Major Modification'' as any modification
that results in a significant net emissions increase.
Modification
The definition of ``Modification'' in the submitted rules differs
from the published definition in 40 CFR 52.21(2)(i). The CFR defines a
modification as a ``physical change in or change in the method of
operation.'' The submitted rules, however, define this as ``any
equipment or process which undergoes a physical revision.'' The rules
should be changed to clarify that the term ``Modification'' refers to
the change, rather than to the equipment itself.
Volatile Organic Compound
The definition of ``Reactive Organic Compound'' in the submitted
rules contains a list of substances exempt from regulation as ROC's
which is inconsistent with the exemption list in 40 CFR 51.100(s). This
discrepancy should be corrected to avoid granting ROC emission
reduction credits, as well as requiring ROC offsets, for non-ozone-
precursor emissions. The definition in 40 CFR 51.100(s) should be
adopted verbatim into this section.
Additional Definitions:
In addition to the changes indicated above, it is necessary to add
the following terms to this section: Begin Actual Construction,
Commence Construction, Construction, Enforceable (or Federally
Enforceable), Net Emissions Increase, Secondary Emissions, and
Significant. These definitions should follow the language found at 40
CFR 51.165.
Rule 1306
Calculating Emissions Changes
This section uses a source's pre-modification potential to emit
(PTE), rather than its pre-modification actual emissions, as the
baseline for calculating the offset requirement for major modifications
in nonattainment areas. This method is not acceptable unless the source
has already offset its entire pre-modification PTE. The District must
amend the rule to calculate the offset requirement in this case as the
source's new PTE minus the source's pre-modification actual emissions.
Rule 1307
Determination of Offset Requirements (Non-major Facility)
Section (B)(2)(a) overlooks the case in which a non-major facility
undergoes a modification which is in itself major. In this case, the
entire modification must be offset, and not, as the rule states, only
the portion of the facility's PTE which exceeds the major source
threshold.
Obtaining Offsets
The submitted rules contain no provision, pursuant to section 173
of the Act, which requires that offsets be federally enforceable prior
to the issuance of an authority to construct
[[Page 55357]]
permit, and in effect by the time operation commences. Such provisions
must be added.
Rule 1308
Mobile Source Emission Reductions
EPA has not developed mobile source emission reduction crediting
guidance. The rules should therefore include a case by case approval by
EPA.
Mobile Source Emission Reductions
Section (A)(3)(b) allows emissions reduction credits to be
generated by the ``substitution and use of high occupancy vehicles for
low occupancy vehicles.'' Due to the extreme difficulty in quantifying
these types of emissions reductions, and in making them permanently
enforceable, EPA cannot approve this as a means of generating offsets.
This provision should be removed from the District's rules.
Emission Reduction Credits From Vehicle Scrappage
In order for EPA to determine if the offsets to be generated from a
vehicle scrappage program will be federally approvable, the details of
the program must be submitted with this rule. Section (A)(3)(c), which
states that these are a potential source of offsets, should either
include these details, or reference another section or rule which
contains the details of the program.
Interpollutant Offsets
The use of interpollutant trading to satisfy nonattainment offset
requirements is generally allowable only under very specific
conditions. On April 13, 1995, the Director of EPA Region 9's Air and
Toxics Division sent a letter to MDAQMD outlining an acceptable method
for the use of interpollutant trading. MDAQMD should either incorporate
this method into its NSR rules, or require case-by-case advance
approval by EPA.
Source Eligibility
Energy conservation projects could be an acceptable source of
offsets, but a definition should be included to clarify what is meant
by these. Section (A)(4) should also include a statement that these
projects are subject to the same standards as other sources of offsets
(i.e., the reductions must be real, enforceable, quantifiable, surplus,
and permanent).
Intra-basin and Inter-district Offsets
Section (D) should include the CAA section 173(c)(1) requirements
that sources locating in a nonattainment area may only obtain offsets
from other nonattainment areas which (A) have equal or higher
nonattainment classification, and (B) contribute to a violation of the
NAAQS in the nonattainment area in which the source is located.
Additional Requirements
Surplus Requirement: The submitted rules contain insufficient
provisions to ensure that all emission reduction credits (ERC's) used
to satisfy the nonattainment offset requirements will be surplus. These
provisions must be added to MDAQMD's NSR rules.
Prior Shutdowns: The submitted rules do not prohibit the use of
``prior shutdown'' credits as required in 40 CFR 51.165(a)(1)(xxv).
This provision applies either when the District attainment plan has
been disapproved, or when this plan is not yet due, but a due date
during the creation of this plan is missed. In these cases, sources
which seek ERC's due to a shutdown must do so at the time operation of
the source ceases. This provision must be added to the District's
rules.
Class I Area Visibility Protection: The submitted rules lack the
Class I Area visibility protection provisions of 40 CFR 51.307(b)(2)
for any new major source or major modification, proposing to locate in
a non-attainment area, that may have an impact on visibility in any
mandatory Class I Federal Area. This requirement must be added to the
District's rules.
Applicability: The submitted rules contain no provisions which
require NSR for a source or modification which becomes major due to a
relaxation in a federally-enforceable limit. As described in 40 CFR
51.165(a)(5)(ii), such sources and modifications are subject to NSR
``as though construction had not yet commenced.'' This requirement must
be added to the District's rules.
Proposed Action
EPA is proposing to approve with contingencies, and to disapprove
in the alternative, the SIP revisions submitted by MDAQMD on March 29,
1994. Full approval as a final action on this SIP revision is
contingent upon MDAQMD making the required changes to the submitted
rules as listed above.
If the specified changes to the submitted rules are not made before
EPA's final action on this SIP revision, then EPA's final action will
be a disapproval. If finalized, this disapproval would constitute a
disapproval under section 179(a)(2) of the Act (see 57 FR 13566-13567).
As provided under section 179(a), MDAQMD would have up to 18 months
after a final SIP disapproval to correct the deficiencies that are the
subject of the disapproval before EPA is required to impose sanctions.
If the MDAQMD does not correct its SIP deficiencies within 18 months,
then section 179(a)(4) requires the immediate application of sanctions.
According to section 179(b), sanctions can take the form of a loss of
highway funds or a two to one emissions offset ratio. Once the
Administrator applies one of the section 179(b) sanctions, the State
will then have an additional six months to correct any deficiencies.
Section 179(a)(4) requires that both highway and offsets sanctions must
be applied if any deficiencies are still not corrected after the
additional six month period.
EPA is requesting comments on all aspects of this proposed
rulemaking action. Comments received by the date indicated above will
be considered in EPA's final action.
Administrative Review
Nothing in this action should be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to a SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42
U.S.C. 7410(a)(2). The Office of Management and Budget has exempted
this rule from the requirements of section 6 of Executive Order 12866.
[[Page 55358]]
Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. EPA has determined that
the approval proposed in this document does not include such a federal
mandate, as this proposed federal action would approve pre-existing
requirements under state or local law, and would impose no new federal
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, will result from this
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, nitrogen dioxide, Particulate matter,
Reporting and recordkeeping requirements, Sulfur dioxide, Volatile
organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 17, 1995.
Felicia Marcus,
Regional Administrator.
[FR Doc. 95-26952 Filed 10-31-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26942 Airworthiness Directives; Pratt & Whitney JT3D Series Turbofan Engines
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55337-55339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26942]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-45]
Airworthiness Directives; Pratt & Whitney JT3D Series Turbofan
Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to Pratt & Whitney (PW) JT3D series
turbofan engines. This proposal would require inspection of steel high
pressure compressor (HPC) disks for corrosion, recoating or replating
those disks, or replacing those disks as necessary. This proposal is
prompted by reports of a failure of a PW JT8D steel HPC disk, which is
similar in design to the PW JT3D steel HPC disks. The actions specified
by the proposed AD are
[[Page 55338]]
intended to prevent steel HPC disk failure due to corrosion, which
could result in an uncontained engine failure and damage to the
aircraft.
DATES: Comments must be received by January 2, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-ANE-45, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may be inspected at
this location between 8:00 a.m. and 4:30 p.m., Monday through Friday,
except Federal holidays.
The service information referenced in the proposed rule may be
obtained from Pratt & Whitney, 400 Main St., East Hartford, CT 06108.
This information may be examined at the FAA, New England Region, Office
of the Assistant Chief Counsel, 12 New England Executive Park,
Burlington, MA.
FOR FURTHER INFORMATION CONTACT: Barbara Caufield, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7146, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-ANE-45.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, New England Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-ANE-45, 12 New England Executive Park,
Burlington, MA 01803-5299.
Discussion
The Federal Aviation Administration (FAA) has received a report of
an uncontained failure of a Pratt & Whitney (PW) JT8D steel high
pressure compressor (HPC) disk due to corrosion. Investigation revealed
that fatigue can originate from a corrosion pit and progress to disk
failure. Corrosion is more apt to occur if the steel HPC disk is not
recoated or replated during its life span and retains the original
production protective coating or plating. This proposed rule,
applicable to PW JT3D series turbofan engines, is prompted by the
similarity between the PW JT8D and JT3D disk design. This condition, if
not corrected, could result in steel HPC disk failure due to corrosion,
which could result in an uncontained engine failure and damage to the
aircraft.
The FAA has reviewed and approved the technical contents of PW
Alert Service Bulletin (ASB) No. A6208, Revision 2, dated July 7, 1995,
that describes procedures for inspection of steel HPC disks, stages 10-
15, for corrosion, recoating or replating those disks, or replacing
those disks as necessary.
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would require inspection of steel HPC disks, stages 10-15,
for corrosion, recoating or replating those disks, or replacing those
disks as necessary. Disks have different initial inspection threshholds
and repetitive inspection intervals based on the type of coating or
plating and the calendar time since new or since last recoating or
replating. Pratt & Whitney conducted analytical studies of operator
experience. Over 150 PW JT3D and JT8D HPC disks were analyzed for
corrosion pit depth, and were correlated with disk history, utilization
rates, and coating or plating replacement. The actions would be
required to be accomplished in accordance with the ASB described
previously.
There are approximately 2,000 engines of the affected design in the
worldwide fleet. The FAA estimates that 1,000 engines installed on
aircraft of U.S. registry would be affected by this proposed AD, that
it would take approximately 16 work hours per engine to accomplish the
proposed actions, and that the average labor rate is $60 per work hour.
Required parts would cost approximately $75,000 per engine. Based on
these figures, the total cost impact of the proposed AD on U.S.
operators is estimated to be $75,960,000 over a 13-year period.
The regulations proposed herein would 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 Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, 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. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Pratt & Whitney: Docket No. 95-ANE-45.
Applicability: Pratt & Whitney (PW) Models JT3D-1, -1A, -3, -3B,
-3C, -1-MC6,
[[Page 55339]]
-1A-MC6, -1-MC7, -1A-MC7, -7, -7A turbofan engines, installed on but
not limited to Boeing 707 and 720 series aircraft and McDonnell
Douglas DC-8 series aircraft.
Note: This airworthiness directive (AD) applies to each engine
identified in the preceding applicability provision, regardless of
whether it has been modified, altered, or repaired in the area
subject to the requirements of this AD. For engines that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (b) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent steel high pressure compressor (HPC) disk failure due
to corrosion, which could result in an uncontained engine failure
and damage to the aircraft, accomplish the following:
(a) Inspect steel HPC disks, stages 10-15, for corrosion, recoat
or replate, or replace as necessary, in accordance with PW Alert
Service Bulletin (ASB) No. A6208, Revision 2, dated July 7, 1995,
and the following schedule:
(1) For disks coated with PW110 Aluminide (AL), and for disks
with unknown coating or plating, as follows:
(i) Initially inspect, recoat or replate, or replace as
necessary, 11 years since new or since last recoat or replate, or 24
months after the effective date of this AD, whichever occurs later.
(ii) Thereafter, inspect, recoat or replate, or replace as
necessary, at intervals not to exceed 11 years since new or last
coating, if AL protective coating is applied, or not to exceed 13
years since new or last plating, if Nickel Cadmium (NI-CAD) plating
is applied.
(2) For disks plated with NI-CAD, as follows:
(i) Initially inspect, recoat or replate, or replace as
necessary, 13 years since new or since last replate, or 24 months
after the effective date of this AD, whichever occurs later.
(ii) Thereafter, inspect, recoat or replate, or replace as
necessary, at intervals not to exceed 11 years since new or last
coating, if AL protective coating is applied, or not to exceed 13
years since new or last plating, if NI-CAD plating is applied.
(3) For disks with unknown history and unknown coating or
plating, as follows:
(i) Initially inspect, recoat or replate, or replace as
necessary, 24 months after the effective date of this AD.
(ii) Thereafter, inspect, recoat or replate, or replace as
necessary, at intervals not to exceed 11 years since new or last
coating, if AL protective coating is applied, or not to exceed 13
years since new or last plating, if NI-CAD plating is applied.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
Issued in Burlington, Massachusetts, on October 18, 1995.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 95-26942 Filed 10-30-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-26938 Meeting Regarding Access Authorization Program Issues
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Page 55337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26938]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
Meeting Regarding Access Authorization Program Issues
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of open meeting.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) will conduct an open
meeting to discuss access authorization program issues with
representatives of the Nuclear Energy Institute (NEI). The NEI
requested the meeting to discuss program issues related to licensee
implementation of 10 CFR 73.56, ``Personnel access authorization
requirements for nuclear power plants,'' and 10 CFR 73.57,
``Requirements for criminal history checks of individuals granted
unescorted access to a nuclear power facility or access to Safeguards
Information by power reactor licensees.'' A summary of the meeting will
be prepared and will be available upon request.
DATES: The meeting will be held at 10:00 a.m. on November 8, 1995, at
NRC Headquarters.
ADDRESSES: One White Flint North, Room 1 F-5, 11555 Rockville Pike,
Rockville, Maryland.
FOR FURTHER INFORMATION CONTACT: Nancy E. Ervin, United States Nuclear
Regulatory Commission, Office of Nuclear Reactor Regulation,
Washington, DC 20555-0001, Telephone (301) 415-2946.
Dated at Rockville, Maryland, this 24th day of October, 1995.
For the Nuclear Regulatory Commission.
Loren L. Bush, Jr.,
Senior Program Manager, Safeguards Branch, Division of Reactor Program
Management, Office of Nuclear Reactor Regulation.
[FR Doc. 95-26938 Filed 10-30-95; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 95-26921 Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55339-55348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26921]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
RIN 1205-AA89
Wage and Hour Division
29 CFR Part 507
RIN 1215-AA69
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models
AGENCIES: Employment and Training Administration, Labor; and Wage and
Hour Division, Employment Standards Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule is being proposed to obtain comments on certain
provisions of the Department's Final Rule implementing provisions of
the Immigration and Nationality Act (INA) as it relates to the
temporary employment in the Untied States (``U.S.'') of nonimmigrants
admitted under H-1B visas.
DATES: Public comments are invited. Comments shall be received by
November 30, 1995 in order to expedite the Department's ability to
provide additional guidance through issuance of a final rule.
ADDRESSES: Comments may be mailed to John R. Fraser, Deputy
Administrator, 200 Constitution Ave., NW., Room S3510, Washington, DC
20210.
FOR FURTHER INFORMATION CONTACT:
On 20 CFR part 655, subpart H, and 29 CFR part 507, subpart H, contact
Flora T. Richardson, Chief, Division of Foreign Labor Certifications,
U.S. Employment Service, Employment and Training Administration,
Department of Labor, Room N-4456, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone: (202) 219-5263 (this is not a toll-
free number).
On 20 CFR part 655, subpart I, and 29 CFR part 507, subpart I,
contact Thomas Shierling, Office of Enforcement Policy, Immigration
Team, Wage and Hour Division, Employment Standards Administration,
Department of Labor, Room S-3510, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone: (202) 219-7605 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act of 1995
As discussed above, this Proposed Rule is a republication for
notice and comment of various provisions published in the Final Rule.
It is also proposed that Sec. ______.731(b)(1) be revised to require
less recordkeeping than had been required in the Final Rule. Reporting
and recordkeeping requirements contained in the regulations have been
submitted for review to the Office of Management and Budget under
Section 3507(d) of the Paperwork Reduction Act of 1995.
Title: Wage recordkeeping requirements applicable to employers of
H-1B nonimmigrants.
Summary: This Proposed Rule requires that employers document an
objective actual wage system to be applied to H-1B nonimmigrants and
U.S. workers. it also requires that employers keep payroll records for
non-FLSA exempt H-1B workers and other employees for the specific
employment in question.
Need: The statute requires that the employer pay H-1B nonimmigrants
the higher of the actual or prevailing wage. In order to determine
whether the employer is paying the required wage, the Department
requires an employer to have and document an objective wage system used
to determine the wages of non-H-1B workers. The Department also
believes that it is essential to require the employer to maintain
payroll records for the employer's employees in the specific employment
[[Page 55340]]
in question at the place of employment to ensure that H-1B
nonimmigrants are being paid at least the actual wage being paid to
non-H-1B workers or the prevailing wage, whichever is higher.
Respondents and proposed frequency of response: The Department
estimates that approximately 26,480 of the 110,000 employers who file
labor condition applications actually employ H-1B nonimmigrants. The
Department further estimates that the public burden is approximately 1
hour per employer per year to document the actual wage system for a
total burden to the regulated community of 26,480 hours per year.
The payroll recordkeeping requirements are virtually the same as
those required by the Fair Labor Standards Act and any burden required
is subsumed in OMB Approval No. 1215-0017 for those regulations at 29
CFR Parts 516, except with respect to records of hours worked required
to be maintained for H-1B nonimmigrants who are exempt from the FLSA.
The Department estimates that the number of employers who are required
to keep such hourly records is approximately 2,251. The Department
estimates that each employer accounts for approximately 2.45 workers
and that the burden to employers to keep hourly records is 2.5 hours
per employee per year. Thus, the total burden for keeping hourly
records per employer is 6.125 hours per year for a total yearly burden
to the regulated community of 13,787 hours per year.
Estimated total annual burden: The Department estimates, based on
the figures above, that the total annual burden on the regulated
community is 40,267 hours per year.
The public is invited to provide comments on the collection of
information requirements of these provisions so the Department may:
(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 clarify 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, e.g., permitting electronic
submission of responses.
Written comments should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer for Employment Standards Administration, U.S. Department of
Labor, Washington, D.C. 20503.
II. Background
On November 29, 1990, the Immigration and Nationality Act (8 U.S.C.
1101 et seq.) (INA or Act) was amended by the Immigration Act of 1990
(IMMACT), Public Law 101-649, 104 Stat. 4978. On December 12, 1991, the
INA was further amended by the Miscellaneous and Technical Immigration
and Naturalization Amendments of 1991 (MTINA), Public Law 102-232, 105
Stat. 1733. These amendments assign responsibility to the Department of
Labor (Department of DOL) for the implementation of several provisions
of the Act relating to the entry of certain categories of employment-
based immigrants, and to the entry and temporary employment of certain
categories of nonimmigrants. One of the provisions of the Act governs
the temporary entry of foreign ``professionals'' to work in ``specialty
occupations'' in the U.S. under H-1B nonimmigrant status. 8 U.S.C.
1101(a)(15)(H)(i)(b), 1182(n), and 1184(c).
The H-1B category of specialty occupations consists of those
occupations which require the theoretical and practical application of
a body of highly specialized knowledge and the attainment of a
bachelor's or higher degree (or its equivalent) in the specific
specialty as a minimum for entry into the occupation in the U.S. 8
U.S.C. 1184(i)(1). In addition, a nonimmigrant in a specialty
occupation must possess full State licensure to practice in the
occupation (if required), completion of the required degree, or
experience equivalent to the degree and recognition of expertise in the
specialty. 8 U.S.C. 1184(i)(2). The category of ``fashion model''
requires that the nonimmigrant be of distinguished merit and ability. 8
U.S.C. 1101(a)(15)(H)(i)(b).
The rulemaking history, as published in the Federal Register, is as
follows:
March 20, 1991, Advance Notice of Proposed Rulemaking, 56 FR 11705.
August 5, 1991, Proposed Rule, 56 FR 37175.
October 22, 1991, Interim Final Rule, 56 FR 54720.
January 13, 1992, Interim Final Rule, 57 FR 1316.
October 6, 1993, Proposed Rule, 58 FR 52152.
December 30, 1993, Interim Final Rule, 58 FR 69226.
December 20, 1994, Final Rule, 59 FR 65646.
January 19, 1995, Final Rule, 60 FR 4028.
September 26, 1995, Notice, 60 FR 49505.
III. Proposed Provisions
The Department hereby republishes and reproposes several provisions
adopted in the Final Rule (59 FR 65646, December 20, 1994) to provide
the regulated community and the public an opportunity to comment on
these provisions which were not specifically set forth in this format
in the proposed rule. The Department also proposes to make an amendment
to Sec. ______.731(b)(1) as it appeared in the Final Rule.
With the exception of the Department's limited enforcement position
on the recordkeeping provision of Sec. ______.731(b)(1) (see 60 FR
49505, September 26, 1995), all provisions remain in effect and the
issuance of this notice does not affect their enforcement. The
Department will carefully consider all comments and will make any
appropriate revisions to these provisions.
The preamble explaining each of these provisions in the Final Rule
is set forth below for the convenience of the public, with minor
modifications where appropriate.
1. Labor Condition Application Filing Dates
(See Sec. ______.730(b).)
Through administration and enforcement of the H-1B program, the
Department became aware that some employers were filing labor condition
applications for periods of anticipated employment which were well in
the future (e.g., one year after the application filing date). This
practice poses dangers of abuse and frustrates Congressional intent to
protect the jobs and wages of U.S. workers. The prevailing wage,
strike/lockout, and notice obligations are based, in large part, upon
actions taken and conditions which exist at the time the labor
condition application is filed. Therefore, in the Final Rule the
Department established a time limit in advance of the beginning date of
the period of employment that an employer may file a labor condition
application. The Final Rule required and continues to require that a
labor condition application can be filed no earlier than 6 months
before the beginning date of the period of
[[Page 55341]]
employment. Labor condition applications which are received by an ETA
regional office more than 6 months prior to the beginning date of the
period of employment will be returned to the employer as unacceptable
for filing. This procedural change imposes few, if any, additional
burdens on employers and facilitates the achievement of the statutory
purposes.
2. Actual Wage
(See Sec. ______.731(a)(1) & Appendix A)
As the H-1B program evolved, the Department became aware that
inconsistent and perhaps confusing interpretations had, on occasion,
been provided in response to public inquiries concerning the
Department's enforcement position on the employer's responsibilities
under the ``actual wage'' provisions of the statute and regulation. To
rectify any misunderstanding within the regulated community, the
Department provided in the Final Rule the following guidance regarding
its enforcement policy concerning determination of the actual wage.
In determining the required wage rate, the employer must not only
obtain the prevailing wage, but also determine the actual wage for the
occupation in which the H-1B nonimmigrant is to be employed by the
employer. In establishing its compensation system for workers in an
occupational category, of course, an employer may take into
consideration objective standards relating to experience,
qualifications, education, specific job responsibilities and functions,
specialized knowledge, and other legitimate business factors. The use
of any or all these factors is at the discretion of the employer. The
employer must have and document an objective system used to determine
the wages of non-H-1B workers, and apply that system to H-1B
nonimmigrants as well. It is not sufficient for the employer simply to
calculate an average wage of all non-H-1B employees in an occupation;
the ``actual wage'' is not an ``average wage.''
The documents explaining the wage system must be maintained in the
public disclosure file. The explanation of the compensation system must
be sufficiently detailed to enable a third party to apply the system to
arrive at the actual wage rate computed by the employer for any H-1B
nonimmigrant. The computation of the H-1B nonimmigrant's individual
actual wage rate shall be documented in the H-1B nonimmigrant's
personnel file.
In the event the employer has not developed and documented an
objective system and/or has not calculated the actual wage rate for an
H-1B nonimmigrant, the Administrator--in determining the actual wage
rate for enforcement and back wage computation purposes--may need to
average the wages of all non-H-1B workers who are employed in the same
occupation, rather than make determinations for each individual H-1B
nonimmigrant; the employer in such circumstances would be cited for
failure to comply with the requirements for determination of the actual
wage.
Assuming the actual wage is higher than the prevailing wage and
thus is the required wage rate, if an employer gives its employees a
raise at year's end, or if the employer's compensation system provides
for other adjustments in wages, H-1B nonimmigrants must also receive
the adjustment (consistent with legitimate employer-established
criteria such as level of performance, attendance, etc.). This is
consistent with Congressional intent that H-1B nonimmigrants be
provided the same wages as similarly-employed U.S. workers.
Where the employer's pay system or wage scale provides adjustments
during the validity period of the labor condition application--e.g.,
cost-of-living increase or other annual adjustment, increase in the
entry-level rate for the occupation due to market forces, or the
employee moves into a more advanced level in the same occupation--the
employer shall retain documentation explaining the changes and clearly
showing that, after such adjustments, the wages paid to the H-1B
nonimmigrant are at least the greater of the adjusted actual wage or
the prevailing wage for the occupation in the area of intended
employment.
3. Validity Period of a SESA Prevailing Wage
(See Sec. ______.731(a)(2)(iii)(A)(1).)
Through administration and enforcement of the H-1B program, the
Department became aware of confusion and potential adverse effect on
workers' wages in situations in which employers filing LCAs relied on
SESA prevailing wage determinations which were obtained on dates
considerably earlier than the time of the filing (e.g., six months
prior to LCA date). Employers were obtaining prevailing wage rates and
holding them indefinitely before using them in conjunction with filing
an LCA. The Department concluded that a practicable limit should be set
on the use of prevailing wage rates, and that 90 days is a reasonable
practicable limit.
In order to alleviate confusion and to better assure the
achievement of the Congressional purposes of protecting the wages of
U.S. workers, the Department clarified the regulation to set a deadline
for an employer's reliance on a SESA prevailing wage determination. An
employer that obtains a SESA prevailing wage determination must file
the labor condition application under which that rate will be paid
within 90 days from the date of the SESA's determination.
4. Challenges of Prevailing Wage Determinations Only Through Employment
Service Complaint System
(See Sec. ______ .731(a)(2)(iii)(A)(1), Sec. ______ .731(d)(2) and
Sec. ______ .840(c).)
Section ______ .731(a)(2)(iii)(A) lists the State Employment
Security Agency (SESA) as one source for obtaining a prevailing wage
determination. Although DOL regulations provide an avenue for an
employer to challenge an SESA determination through the Employment
Service (ES) complaint process (under 20 CFR part 658, subpart E), the
Interim Final Rule did not make it sufficiently clear that challenges
to SESA prevailing wage determinations were to be made only through
that process. In designing the program, the Department had envisioned
that the ES complaint process would be used for all prevailing wage
challenges. However, after substantial enforcement litigation
experience, the Department found that some employers were instead
attempting to contest such determinations through the hearing provided
under Sec. ______ .835. These enforcement procedures were not intended
to handle such challenges.
The Final Rule provided needed clarification by directing the
employer to the ES complaint process and alerting the employer that a
challenge of an SESA prevailing wage determination could be made only
prior to filing an LCA in which that SESA determination is used.
Implicit and essential in this process is the requirement that once an
employer obtains a prevailing wage determination from the SESA and
files an LCA using such determination without challenging it through
the ES complaint process, the employer, in effect, has accepted the
determination and waived its right to challenge the determination.
Permitting an employer to operate under a SESA prevailing wage
determination and later contest it in the course of an investigation or
enforcement action is contrary to sound public policy; such a delayed,
disruptive challenge would have a harmful effect on U.S. and H-1B
employees, competing employers, and other parties who may have received
notice of and/or relied on the prevailing wage at issue. Section ______
.731(a)(2)(iii)(A) of the Final Rule
[[Page 55342]]
explicitly stated the Department's clarification of the use and
consequences of the ES complaint process. Challenges to SESA prevailing
wage determinations can be made only through the State agency's ES
process. See 20 CFR 658.410 et seq.
Where the prevailing wage determination is made by the SESA prior
to the filing of the LCA, the employer's avenue of appeal is through
the ES complaint system, entering the system at the State level. See 20
CFR 658.410 et seq. However, where the prevailing wage determination is
made by ETA (with or without consultation with the SESA) during the
course of a Wage and Hour Division enforcement action, the employer's
avenue of appeal also is through the ES complaint system, but the
employer enters the system at the ETA regional office level. The
employer will be notified where to file any appeal. For purposes of the
H-1B program only, this is a collateral change to the ES complaint
system regulations, which generally require all complaints to be filed
at the SESA level (see 20 CFR 658.420 et seq.) and is notwithstanding
the provisions of 20 CFR 658.421(a) and 658.426. Similarly, Sec. ______
.731(d) provides that, where the employer does not have a valid
prevailing wage determination, the Administrator, during the course of
an investigation, may obtain a prevailing wage determination from ETA,
which, in turn, may consult with the SESA and then determine the
appropriate prevailing wage. Some employers also were contesting these
ETA prevailing wage determinations at the Wage and Hour enforcement
hearing provided under Sec. ______ .835. The Department believes that
the proper forum for all prevailing wage determination challenges--
whether the wage determination was obtained by the employer or by the
Administrator (where the employer does not have a valid prevailing wage
determination)--is the ES complaint process. Once the prevailing wage
determination is final, either through the lack of a timely challenge
or through the completion of the ES process, the determination will be
conclusive for purposes of enforcement. In such cases where the
prevailing wage determination is made by ETA at the Administrator's
request, any challenge must be initiated at the ETA regional office
level within 10 days after the employer receives the ETA prevailing
wage determination. Section ______ .731(d) was amended in the Final
Rule to reflect this clarification.
Finally, Sec. ______.840(c) provides that where the Administrator
has found a wage violation based on a prevailing wage determination
obtained by the Administrator from ETA, the Administrative Law Judge
(ALJ) in the enforcement proceeding ``shall not determine the
prevailing wage de novo, but shall * * * either accept the wage
determination or vacate the wage determination.'' This provision had
been interpreted by some employers as permitting a challenge of
prevailing wage determinations obtained by the Administrator for ETA.
Section ______.840(c) was not intended to function as a mechanism from
such challenges. Accordingly, Sec. ______.840(c) was clarified in the
Final Rule to reflect that once the Administrator obtains a prevailing
wage determination from ETA and the employer either fails to challenge
such determination through the ES complaint process within the
specified time of 10 days, or, after such a challenge, the
determination is found to be accurate by the ES complaint process, the
ALJ must accept the determination as accurate and cannot vacate it. As
with other final decisions of the Department, the employer continues to
have access to Federal district court if the issues are not
satisfactorily resolved.
5. Documentation of the Wage Statement
(See Sec. ______.731(b)(1).)
Section ______.731(b)(1) of the Final Rule requires that, in
documenting its compliance with the wage requirements, an employer
shall maintain certain documentation, not only for the H-1B
nonimmigrant(s), but for ``all other employees for the specific
employment in question at the place of the employment.'' In the
preamble to the Final Rule, the Department stated that ``[t]his
information is ordinarily maintained by the employer for purposes of
showing compliance with other applicable statutes (e.g., the Fair Labor
Standards Act) and will permit the Department to determine whether in
fact the required wage has been paid'' (59 FR 65654, December 20,
1994).
Upon further consideration, the Department issued a Notice of
Enforcement Position (60 FR 49505, September 26, 1995) announcing that,
with respect to any additional workers for whom the Final Rule may have
applied recordkeeping requirements, the Department would enforce the
provision to require the employer to keep only those records which are
required by the Fair Labor Standards Act (``FLSA''), 29 CFR part 516.
The Department concluded that, in virtually all situations, the records
required by the FLSA would include those listed under the H-1B Final
Rule.
An amendment is proposed to be made to Sec. ______.731(b)(1)(v).
This section requires employers to retain records of hours worked for
all employees in the same specific employment as the H-1B nonimmigrant
if employees are paid on other than a salary basis or if the actual or
prevailing wages are expressed as an hourly wage. The Department finds
that it is unnecessary to require employers to retain records of hours
worked for FLSA-exempt, similarly employed non-H-1B workers when the
employer expresses its actual wage as a salary, even if the prevailing
wage is expressed as an hourly wage. Therefore, the Department is
proposing to amend Sec. ______.731(b)(1)(v) so that employers are not
required to retain records of hours worked for FLSA-exempt, similarly
employed non-H-1B workers if the actual wage is expressed as a salary
but the prevailing wage is expressed as an hourly rate.
6. Enforcement of Wage Obligation
(See Sec. ______.731(c)(5).)
The Act requires an employer to state that it is offering and will
offer the H-1B nonimmigrant, during the period of authorized
employment, wages that are at least the required wage rate. The
required wage rate is the actual wage rate or the prevailing wage rate,
whichever is greater. Furthermore, the employer is required to indicate
on the LCA whether an H-1B nonimmigrant will work full-time or part-
time. Under the Secretary's statutory authority to implement the Act,
the regulations do not authorize an employer to fail to pay the
required wage rate. In enforcement proceedings, however, the Department
has encountered confusion over an employer's obligations in
circumstances where the H-1B nonimmigrant is in a nonproductive status
or circumstance.
There is no statutory or regulatory authorization for a reduction
in the prescribed wage rate for any H-1B nonimmigrant who is not
engaged in productive work for the LCA-filing employer due to
employment-related conditions such as training, lack of work, or other
such reasons. The H-1B program was not intended and should not operate
to provide an avenue for nonimmigrants to enter the U.S. and await work
at the employer's choice or convenience, as has been found to be
occurring. Compare 8 U.S.C. 1101(a)(15)(H)(iii). Instead, the H-1B
program's purpose is to enable employers to temporarily employ fully-
qualified workers for whom employment opportunities currently exist.
The employer, having attested to the duration and scope of the intended
[[Page 55343]]
employment (i.e., beginning and ending dates; full or part-time),
controls the nonimmigrant's employment status. The Immigration and
Nationality Act (8 U.S. C. 1182(n)(1)) requires that once the H-1B
status has been approved for the period specified by the employer, the
employer controls the status and work of the H-1B nonimmigrant, who is
unable to accept employment elsewhere without a certified labor
condition application and approved I-129 petition filed on the worker's
behalf by another employer.
For the purpose of DOL administration and enforcement of the H-1B
program pursuant to these regulations, an H-1B nonimmigrant is
considered to be under the control or employ of the LCA-filing employer
from the time of arrival in the United States and throughout the period
of his or her employment--regardless of whether the nonimmigrant is in
training or other nonproductive status, unless during the period
employment an H-1B nonimmigrant experiences a period of nonproductive
status due to conditions which are unrelated to the employment and
render the nonimmigrant unable to work--e.g., maternity leave,
automobile accident which temporarily incapacitates the nonimmigrant,
caring for an ill relative. In such circumstances where a period of
nonproductive status is due to conditions unrelated to employment, the
employer shall not be obligated to pay the required wage rate during
that period, provided that the INS permits the employee to remain in
the U.S. without being paid and provided further that such period is
not subject to payment under other statutes such as the Family and
Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with
Disabilities Act (42 U.S.C. 12101 et seq.).
It is the Department's position that an LCA-filing employer has no
prereogative--other than in circumstances described above--but to pay
the required wage beginning no later than the day the H-1B nonimmigrant
is in the United States under the control and employ of that LCA-filing
employer, and continuing throughout the nonimmigrant's period of
employment. Any H-1B nonimmigrant to be employed under an LCA in a
full-time capacity (the part-time block not having been checked on Item
7(b) of the LCA) shall be guaranteed full-time pay (ordinarily 40
hours' pay) each week, or the weekly equivalent if paid a monthly or
annual salary. If an employer's LCA shows ``part-time employment,'' the
employer will be required to pay the nonproductive employee for at
least the number of hours to be worked per week indicated on the I-129
petition filed by the employer with the INS. If the employer indicates
on the LCA that an employee is to work only part-time and subsequent
investigation discloses that, in fact, the employee was working full-
time in a majority of the weeks during the period covered by the
investigation, the employer will be responsible for full-time pay
including during nonproductive periods for which the worker received
either no pay or less than the required wage.
7. Notification
(See Sec. ______. 734(a)(1)(ii)(D).)
Section 212(n)(1)(C) of the INA requires that an employer seeking
to hire an H-1B nonimmigrant shall notify, at the time of filing the
application, the bargaining representative of its employees of the
filing of the labor condition application or, if there is no bargaining
representative, post notice of filing in conspicuous locations at the
place of employment. 8 U.S.C. 1182(n)(1)(C). The interim final
regulations at Sec. ______. 730(h)(1) implemented this statutory
requirement.
Based on program experience, the Final Rule clarified the
regulations to better assure the worker protections which Congress
intended the notice requirement to achieve. The Department had become
aware that some employers which place H-1B nonimmigrants at new
worksites within areas covered by existing LCA's failed to fulfill
their LCA obligations, but, because notices were not posted at the new
worksites, potentially adversely affected workers were not informed of
the LCA conditions or of their own rights to examine certain documents
and to file complaints. The Department recognized that it could take
the position that an employer wishing to place H-1B nonimmigrants at
worksites where notice had not been given could be required to both
post a notice and file a new LCA before placing H-1B nonimmigrants at a
new worksite within an area of intended employment. However, such a
two-step requirement appeared to the Department to be burdensome. The
protections intended by Congress can be effected by notice posted by
the employer at each new worksite within an area of intended employment
at the time the H-1B nonimmigrants are sent there to work, without the
employer being required to file new LCA's. The Final Rule, therefore,
imposed a less burdensome but equally worker-protective standard, by
providing that the employer shall post worksite notices on the first
day of work by an H-1B nonimmigrant at a new worksite, which will
remain posted for at least ten days.
A clarification of the regulation, based upon program experience,
was also made in the Final Rule with regard to the timing of an
employer's notice of filing an LCA. The Department became aware of
confusion and potential adverse effects in situations in which
employers provided the required notice of filing the application to the
bargaining representative, or to its employees by posting at the place
of employment, considerably in advance of the date the application was
filed (e.g., six months prior to filing). In order to alleviate
confusion and to better assure the achievement of Congressional intent
that U.S. workers who work side-by-side with H-1B nonimmigrants be
notified of the employer's intent and their ability to file complaints
if they believe violations have occurred, the Final Regulation required
that notice, provided by the employer under the fourth labor condition
statement, was to be provided on or within 30 days prior to the date
the labor condition application is filed.
8. Short-Term Placement of H-1B Nonimmigrants at Worksites Outside the
Location(s) Listed on the LCA
(See Sec. ______.735.)
Until the October 1993 NPRM, the Department had indicated that job
contractors would be treated like any other employer under the H-1B
program. After obtaining considerable programmatic experience regarding
the operations and effects of job contractors using H-1B nonimmigrants,
the Department proposed in its NPRM to clarify how LCA's should be
completed by job contractors, and proposed to amend the regulations to
create certain additional standards for such employers.
In the NPRM, as part of the proposal to develop special procedures
for job contractors, the Department defined the term ``job contractor''
and the proposed requirements to be met, including the general
requirement to assure that the information provided on the LCA in Item
7 (occupational information) must pertain to the location(s) (city and
State) of any and all worksites where H-1B nonimmigrants would be
employed. The Department further proposed that a job contractor filing
an LCA must indicate thereon the place of employment at which the H-1B
nonimmigrant will actually work (and for which the prevailing wage must
be determined) as opposed to the employer's headquarters or other
office location, if such location is different from the place of
employment. The Department also proposed that, if the
[[Page 55344]]
contractor wishes to relocate an H-1B nonimmigrant to work at any
location not listed on a certified LCA, a corresponding LCA shall be
filed and certified (and the appropriate prevailing wage determined)
before any H-1B nonimmigrant may be employed at that location. The NPRM
addressed other job contractor matters, such as the contractor's actual
wage obligation.
Of the 264 comments received in response to the NPRM, 171 commented
on these proposals and 153 (nearly 90%) opposed it--128 of those 153
coming from business commenters. The negative comments related to the
concept as a whole or related to a part of it--such as the nationwide
actual wage, worksite posting, and place of employment designation on
the labor condition application.
Concerns were expressed about an employer's ability to find workers
to fill health care needs, especially in the physical therapist
occupation. Other commenters expressed concern that the proposed rule
would impose special hardships on job contractors, would be onerous,
and would be discriminatory. Several commenters suggested that the
Department consider a time test methodology, rather than a ``job
contractor'' concept, in identifying the responsibilities of an
employer which places H-1B nonimmigrants at worksites owned or
controlled by entities other than the employer. Suggestions for the
allowable duration of temporary placement ranged from 30 days to 180
days.
Of the comments received in response to the January 13, 1992,
Interim Final Rule, concerning the worksite movement of H-1B
nonimmigrants, 13 commenters (11 of which were businesses) expressed
the view that the initial LCA filing should be sufficient when an H-1B
nonimmigrant is transferred between temporary worksites such as branch
offices or customer offices. These comments advocated the position that
an employer should be able to move H-1B nonimmigrant employees to
worksites where the tour of duty would be of a short or temporary
nature.
In promulgating the Final Rule, the Department carefully considered
the comments concerning the job contractor concept as proposed, and
decided based thereupon not to establish special procedures applicable
only to those businesses operating as job contractors. Based on the
overwhelming weight of the comments and the Department's experience in
the program, the Final Rule contained a modification of the proposed
rule, consistent with commentors' suggestions, to implement a ``time
test'' for short-term assignments of H-1B nonimmigrants to worksite(s)
outside the area(s) of employment covered by already-certified LCAs,
whether the new worksite is another establishment of the employer or is
the worksite of another entity (e.g., a customer of a job contractor
providing H-1B nonimmigrants or services provided by H-1B nonimmigrants
at the customer's location.) The Final Rule is both less burdensome for
employers and more protective of workers than was the provision as
proposed in the NPRM.
The Department recognizes that it is common practice for
employers--not only job contractors, but also other employers which
operate in more than one place of employment within the United States--
to move employers from one place of employment (worksite) to another
for short periods of time in response to business demands. The Final
Rule takes into consideration the practical and real world experience
of such short-term placement of employees.
The Final Rule applying to all LCA-filing employers includes a 90
workday placement option within a three-year period, beginning with the
first work day at any worksite in a new area of intended employment,
for an employer who shifts H-1B nonimmigrant workers to any worksite(s)
outside the location listed on the employer's already-certified LCA.
The 90-day option applies separately for each area of intended
employment (e.g., 90 cumulative days for Los Angeles, 90 cumulative
days for San Francisco). Under this option an employer may place H-1B
nonimmigrant(s) at such worksite(s)--without filing a new LCA (and thus
without meeting the notice, prevailing wage, and actual wage
requirements for such area of intended employment)--provided that the
employer complies with three requirements:
1. Unless an LCA has been filed and certified for the new area of
intended employment, no H-1B nonimmigrant continues to work at a
worksite in such area after 90 cumulative workdays by H-1B
nonimmigrants at all worksites within the area (starting with the first
day on which any H-1B nonimmigrant worked at any worksite in the area)
and the employer makes no further placement of H-1B worker(s) in such
area within the three-year period which began with the first day of
placement.
2. The H-1B nonimmigrant(s) working in the area is (are)
compensated at the required wage rate applicable under the employer's
already-certified LCA plus expenses for the other area of employment
when placed. The Department has incorporated the regulations
promulgated by the General Services Administration (``GSA'') for
Federal employees as the basis for such travel expenses as it is
unaware of any other universally available source of this information
for employers. GSA advises us that the rates are based on surveys of
two-star hotels and comparable restaurants. Furthermore, under IRS
guidelines, employers are not required to provide receipts for employee
travel expenses if the employer has used the Federal per diem rates.
(See IRS Rev. Proc. 94-77). Finally, some Federal District Courts have
found Federal per diem rates to be a ``fair method of compensation.''
(See PPG Industries, Inc. v. Celanese Polymer Specialties Co., 658
F.Supp. 555 (W.D.Ky. 1987), rev'd on other grounds, 840 F.2d 1565 (Fed.
Cir. 1988) and Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 684
F.Supp. 953 (N.D.Ohio 1988)). Thus, GSA per diem rates are recognized
as providing reasonable reimbursement for travel expenses.
3. No H-1B nonimmigrant is placed at a worksite where there is a
strike or lockout in the same occupational classification.
Of course, at any time an employer may file a new LCA covering the
new area of intended employment (complying with all LCA requirements,
including determination of actual and prevailing wage rates as well as
notice to employees). This filing can be done in advance of the
placement or, if such new LCA is filed and certified after placement
and the employer complies with any obligations attendant to the new
LCA, the employer could cease payment of per diem and transportation
rates. If, at the accumulation of 90 workdays, the employer has H-1B
nonimmigrants at any worksite(s) in the new area of intended
employment, the employer must have filed and received approval of a new
LCA and complied with all requirements attendant to such filing.
This 90 workday placement option does not apply to the placement of
H-1B nonimmigrants at any new worksite(s) within an area covered by an
already-certified LCA filed by the employer. Such worksite(s) would be
encompassed within and fully subject to the requirements of that LCA,
including prevailing wage and worksite notice(s) (see Sec. c.1.b
NOTIFICATION, above, regarding notification at new worksites). The only
additional action required for the employer in this circumstance is to
post notice for a period of 10 days at the new worksite.
[[Page 55345]]
IV. Executive Order 12866
The Department has determined that this Proposed Rule is not an
``economically significant regulatory action'' within the meaning of
Executive Order 12866, in that it will not have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities.
V. Regulatory Flexibility Act
The Department of Labor has notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the
rule does not have a significant economic impact on a substantial
number of small entities.
Catalog of Federal Domestic Assistance Number
This program is not listed in the Catalog of Federal Domestic
Assistance.
List of Subjects
20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement, Fashion models, Forest and forest
products, Guam, Health professions, Immigration, Labor, Longshore work,
Migrant labor, Nurse, Penalties, Registered nurse, Reporting and
recordkeeping requirements, Specialty occupation, Students, Wages.
29 CFR Part 507
Administrative practice and procedures, Aliens, Employment,
Enforcement, Fashion models, Immigration, Labor, Penalties, Reporting
and recordkeeping requirements, Specialty occupation, Wages, Working
conditions.
Adoption of the Joint Rule
The agency-specific adoption of the joint rule, which appears at
the end of the common preamble, appears below:
Signed at Washington, DC, this 24th day of October, 1995.
Tim Barnicle,
Assistant Secretary for Employment and Training.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Accordingly, certain amendments to part 655 of chapter V of title
20, and part 507 of chapter V of title 29 of the Code of Federal
Regulations, as published earlier in the Federal Register, are
republished for comment, and other amendments are proposed, as follows:
TITLE 20--EMPLOYEES' BENEFITS
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
1. The authority citation for Part 655 continues to read as
follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et
seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C.
1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); and 8 CFR 214.2(h)(4)(i).
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and
1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29
U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b),
1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L.
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
TITLE 29--LABOR
CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
Part 507--Enforcement of H-1B Labor Condition Applications
Subparts A, B, C, D, E, F, and G--(Reserved)
2. The authority citation for part 507 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184, and
29 U.S.C. 49 et seq.; and Pub. L. 102-232, 105 stat. 1733, 1748 (8
U.S.C. 1182 note).
3. In Sec. ______.730, in paragraph (b), the first sentence is
republished as follows:
Sec. ______.730 Labor condition application.
* * * * *
(b) Where and when should a labor condition application be
submitted? A labor condition application shall be submitted, by U.S.
mail, private carrier, or facsimile transmission, to the ETA regional
office shown in Sec. ______.720 of this part in whose geographic area
of jurisdiction the H-1B nonimmigrant will be employed no earlier than
six months before the beginning date of the period of intended
employment shown on the LCA. * * *
* * * * *
4. In Sec. ______.731, paragraph (a)(2)(iii)(A)(1) is republished
as follows:
Sec. ______.731 The first labor condition statement: wages.
(a) * * *
(2) * * *
(iii) * * *
(A) * * *
(1) An employer who chooses to utilize a SESA prevailing wage
determination shall file the labor condition application not more than
90 days after the date of issuance of such SESA wage determination.
Once an employer obtains a prevailing wage determination from the SESA
and files an LCA supported by that prevailing wage determination, the
employer is deemed to have accepted the prevailing wage determination
(both as to the occupational classification and wage) and thereafter
may not contest the legitimacy of the prevailing wage determination
through the Employment Service complaint system or in an investigation
or enforcement action. Prior to filing the LCA, the employer may
challenge an SESA prevailing wage determination through the Employment
Service complaint system, by filing a complaint with the SESA. See 20
CFR 658.410 through 658.426. Employers which challenge an SESA
prevailing wage determination must obtain a final ruling from the
Employment Service complaint system prior to filing an LCA based on
such determination. In any challenge, the SESA shall not divulge any
employer wage data which was collected under the promise of
confidentiality.
* * * * *
5. In Sec. ______.731, paragraph (b)(1) is revised to read as
follows:
Sec. ______.731 The first labor condition statement: wages.
* * * * *
(b) Documentation of the wage statement. (1) The employer shall
develop and maintain documentation sufficient to meet its burden of
proving the validity of the wage statement required in paragraph (a) of
this section and attested to on Form ETA 9035. The documentation shall
be made available to DOL upon request. Documentation shall also be made
available for public examination to the extent required by
Sec. ______.760(a) of this part. The employer shall also document that
the
[[Page 55346]]
wage rate(s) paid to H-1B nonimmigrant(s) is (are) no less than the
required wage rate(s). The documentation shall include information
about the employer's wage rate for all other employees for the specific
employment in question at the place of employment, beginning with the
date the labor condition application was submitted and continuing
throughout the period of employment. The records shall be retained for
the period of time specified in Sec. ______.760 of this part. The
payroll records for each such employee shall include:
(i) Employee's full name;
(ii) Employee's home address;
(iii) Employee's occupation;
(iv) Employee's rate of pay;
(v) Hours worked each day and each week by the employee if:
(A) The employee is paid on other than a salary basis; or
(B) The actual wage is expressed as an hourly rate; or
(C) With respect only to H-1B nonimmigrants, the prevailing wage is
expressed as an hourly rate.
(vi) Total additions to or deductions from pay each pay period by
employees; and
(vii) Total wages paid each pay period, date of pay and pay period
covered by the payment by employee.
* * * * *
6. In Sec. ______.731, paragraph (c)(5) is republished as follows:
Sec. ______.731 The first labor condition statement: wages.
* * * * *
(c) * * *
(5)(i) For the purpose of DOL administration and enforcement of the
H-1B program, an H-1B nonimmigrant is considered to be under the
control or employ of the LCA-filing employer, and therefore shall
receive the full wage which the LCA-filing employer is required to pay
beginning no later than the first day the H-1B nonimmigrant is in the
United States and continuing throughout the nonimmigrant's period of
employment. Therefore if the H-1B nonimmigrant is in a nonproductive
status for reasons such as training, lack of license, lack of assigned
work or any other reason, the employer will be required to pay the
salaried employee the full pro-rata amount due, or to pay the hourly-
wage employee for a full-time week (40 hours or such other numbers of
hours as the employer can demonstrate to be full-time employment for
the occupation and area involved) at the required wage for the
occupation listed on the LCA. If the employer's LCA carries a
designation of ``part-time employment,'' the employer will be required
to pay the nonproductive employee for at least the number of hours
indicated on the I-129 petition filed by the employer with the INS. If
during a subsequent enforcement action by the Administrator it is
determined that an employee designated in the LCA as part-time was in
fact working full-time or regularly working more hours than reflected
on the I-129 petition, the employer will be held to the factual
standard disclosed by the enforcement action.
(ii) If, however, during the period of employment, an H-1B
nonimmigrant experiences a period of nonproductive status due to
conditions unrelated to employment which render the nonimmigrant unable
to work--e.g., maternity leave, automobile accident which temporarily
incapacitates the nonimmigrant, caring for an ill relative--then the
employer shall not be obligated to pay the required wage rate during
that period provided that the INS permits the employee to remain in the
U.S. without being paid and provided further that such period is not
subject to payment under other statutes such as the Family and Medical
Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities
Act (42 U.S.C. 12101 et seq.).
* * * * *
7. In Sec. ______.731, paragraph (d)(2) is republished as follows:
Sec. ______.731 The first labor condition statement: wages.
* * * * *
(d) * * *
(2) In the event the Administrator obtains a prevailing wage from
ETA pursuant to paragraph (d)(1) of this section, the employer may
challenge the ETA prevailing wage only through the Employment Service
complaint system. See 20 CFR part 658, subpart E. Notwithstanding the
provisions of 20 CFR 658.421 and 658.426, the appeal shall be initiated
at the ETA regional office level. Such challenge shall be initiated
within 10 days after the employer receives ETA's prevailing wage
determination from the Administrator. In any challenge to the wage
determination, neither ETA nor the SESA shall divulge any employer wage
data which was collected under the promise of confidentiality.
(i) Where the employer timely challenges an ETA prevailing wage
determination obtained by the Administrator, the 30-day investigative
period shall be suspended until the employer obtains a final ruling
from the Employment Service complaint system. Upon such final ruling,
the investigation and any subsequent enforcement proceeding shall
continue, with ETA's prevailing wage determination serving as the
conclusive determination for all purposes.
(ii) Where the employer does not challenge ETA's prevailing wage
determination obtained by the Administrator, such determination shall
be deemed to have been accepted by the employer as accurate and
appropriate (both as to the occupational classification and wage) and
thereafter shall not be subject to challenge in a hearing pursuant to
Sec. ______.835 of this part.
* * * * *
8. In Sec. ______.734, paragraphs (a)(1)(ii) (C) and (D) are
republished as follows:
Sec. ______.734 The fourth labor condition statement: notice.
(a) * * *
(1) * * *
(ii) * * *
(C) The notices shall be posted on or within 30 days before the
date the labor condition application is filed and shall remain posted
for a total of 10 days.
(D) Where the employer places any H-1B nonimmigrant(s) at one or
more worksites not contemplated at the time of filing the application,
but which are within the area of intended employment listed on the LCA,
the employer is required to post notice(s) at such worksite(s) on or
before the date any H-1B nonimmigrant begins work, which notice shall
remain posted for a total of ten days.
* * * * *
9. Sec. ______.735 is republished as follows:
Sec. ______.735 Special provisions for short-term placement of H-1B
nonimmigrants at place(s) of employment outside the area(s) of intended
employment listed on labor condition application.
(a) Subject to the conditions specified in paragraph (b) of this
section, an employer may place H-1B nonimmigrant(s) at worksite(s)
(place(s) of employment) within areas of employment not listed on the
employer's labor condition application(s)--whether or not the employer
owns or controls such worksite(s)--without filing new labor condition
application(s) for the area(s) of intended employment which would
encompass such worksite(s).
(b) The following restrictions shall be fully satisfied by an
employer which places H-1B nonimmigrant(s) at worksite(s) (place(s) of
employment) within areas of employment not listed on the employer's
labor condition application(s):
(1) The employer has fully satisfied the requirements of
Secs. ______.730
[[Page 55347]]
through ______.734 of this part with regard to worksite(s) located
within the area(s) of intended employment listed on the employer's
labor condition application(s).
(2) The employer shall not place, assign, lease, or otherwise
contract out any H-1B nonimmigrant(s) to any worksite where there is a
strike or lockout in the course of a labor dispute in the same
occupational classification(s) as the H-1B nonimmigrant(s).
(3) For every day of the H-1B nonimmigrant's(s') placement outside
the LCA-listed area of employment, the employer shall pay such
worker(s) the required wage (based on the prevailing wage at such
worker's(s') permanent work site, or the employer's actual wage,
whichever is higher) plus per diem and transportation expenses (for
both workdays and non-workdays) at rate(s) no lower than the rate(s)
prescribed for Federal Government employees on travel or temporary
assignment, as set out in 41 CFR Part 301-7 and Ch. 301, App. A.
(4) The employer's placement(s) of H-1B nonimmigrant(s) at any
worksite(s) in an area of employment not listed on the employer's labor
condition application(s) shall be limited to a cumulative total of
ninety workdays within a three-year period, beginning on the first day
on which the employer placed an H-1B nonimmigrant at any worksite
within such area of employment. For purposes of this section,
``workday'' shall mean any day on which one or more H-1B nonimmigrants
perform any work at any worksite(s) within the area of employment. For
example, one ``workday'' would be counted for a day on which seven H-1B
nonimmigrants worked at three worksites within one city, and one
``workday'' would be counted for a day on which one H-1B nonimmigrant
worked at one worksite within a city. The employer may rotate such
workers into worksites within such area of employment or may maintain a
constant work force. However, on the first day after the accumulation
of 90 workdays, the employer shall not have any such H-1B
nonimmigrant(s) at any worksite(s) within such area of employment not
included on a certified LCA.
(c) At the accumulation of the 90 workdays described in paragraph
(b)(4) of this section, the employer shall have ended its placement of
all H-1B nonimmigrant(s) at any worksite(s) within the area of
employment not listed on the labor condition application, or shall have
filed and received a certified labor condition application for the
area(s) of intended employment encompassing such worksite(s) and
performed all actions required in connection with such filing(s) (e.g.,
determination of the prevailing wage; notice to collective bargaining
representative or on-site notice to workers).
(d) At any time during the 90-day period described in paragraph
(b)(4) of this section, the employer may file a labor condition
application for the area of intended employment encompassing such
worksite(s), performing all actions required in connection with such
labor condition application. Upon certification of such LCA, the
employer's obligation to pay Federal per diem rates to the H-1B
nonimmigrant(s) shall terminate. (However, see
Sec. ______.731(c)(7)(iii)(C) regarding payment of business expenses
for employee's travel on employer's business.)
10. Appendix A to Subpart H--Guidance for Determination of the
``Actual Wage'' is republished as follows:
Appendix A to Subpart H--Guidance for Determination of the ``Actual
Wage''
In determining the required wage rate, in addition to obtaining
the prevailing wage, the employer must establish the actual wage for
the occupation in which the H-1B nonimmigrant is employed by the
employer. For purposes of establishing its compensation system for
workers in an occupational category, an employer may take into
consideration objective standards relating to experience,
qualifications, education, specific job responsibility and function,
specialized knowledge, and other legitimate business factors. The
use of any or all these factors is at the discretion of the
employer. The employer must have and document an objective system
used to determine the wages of non-H-1B workers, and apply that
system to H-1B nonimmigrants as well. It is not sufficient for the
employer simply to calculate an average wage of all non-H-1B
employees in an occupation; the actual wage is not an ``average
wage''.
The documents explaining the system must be maintained in the
public disclosure file. The explanation of the compensation system
must be sufficiently detailed to enable a third party to apply the
system to arrive at the actual wage rate computed by the employer
for any H-1B nonimmigrant. The computation of the H-1B
nonimmigrant's individual actual wage rate must be documented in the
H-1B nonimmigrant's personnel file.
Assuming the actual wage is higher than the prevailing wage and
thus is the required wage rate, if an employer gives its employees a
raise at year's end or if the system provides for other adjustments
in wages, H-1B nonimmigrants must also be given the raise
(consistent with legitimate employer-established criteria such as
level of performance, attendance, etc.). This is consistent with
Congressional intent that H-1B nonimmigrants and similarly employed
U.S. workers be provided the same wages.
Where the employer's pay system or scale provides adjustments
during the validity period of the LCA--e.g., cost-of-living increase
or other annual adjustments, increase in the entry-level rate for
the occupation due to market forces, or the employee moves into a
more advanced level in the same occupation--the employer shall
retain documentation explaining the changes and clearly showing
that, after such adjustments, the wages paid to the H-1B
nonimmigrant are at least the greater of the adjusted actual wage or
the prevailing wage for the occupation in the area of intended
employment.
The following examples illustrate these principles:
(2) Worker A is paid $10.00 per hour and supervises two
employees. Worker B, who is similarly qualified and performs
substantially the same job duties except for supervising other
employees, is paid $8.00 per hour because he/she has no supervisory
responsibility.
The compensation differential is acceptable because it is based
upon a relevant distinction in job duties, responsibilities, and
functions: the difference in the supervisory responsibilities of the
two employees. The actual wage in this occupation at the worksite
for workers with supervisory responsibility is $10.00 per hour; the
actual wage in this occupation at the worksite for workers without
supervisory responsibility is $8.00 per hour.
(2) Systems Analyst A has experience with a particular software
which the employer is interested in purchasing, of which none of the
employer's current employees have knowledge. The employer buys the
software and hires Systems Analyst A on an H-1B visa to train the
other employees in its application. The employer pays Systems
Analyst A more than its other Systems Analysts who are otherwise
similarly qualified.
The compensation differential is acceptable because of the
distinction in the specialized knowledge and the job duties of the
employees. Systems Analyst A, in addition to the qualifications and
duties normally associated with this occupation at the employer's
worksite, is also specially knowledgeable and responsible for
training the employer's other Systems Analysts in a new software
package. As a result, Systems Analyst A commands a higher actual
wage. However, if the employer employs other similarly qualified
systems analysts who also have unique knowledge and perform similar
duties in training other analysts in their area of expertise, the
actual wage for Systems Analyst A would have to be at least
equivalent to the actual wage paid to such similarly employed
analysts.
(3) An employer seeks a scientist to conduct AIDS research in
the employer's laboratory. Research Assistants A (a U.S. worker) and
B (an H-1B nonimmigrant) both hold Ph.D's in the requisite field(s)
of study and have the same number of years of experience in AIDS
research. However,
[[Page 55348]]
Research Assistant A's experience is on the cutting edge of a
breakthrough in the field and his/her work history is distinguished
by frequent praise and recognition in writing and through awards.
Research Assistant B (the nonimmigrant) has a respectable work
history but has not conducted research which has been
internationally recognized. Employer pays Research Assistant A
$10,000 per year more than Research Assistant B in recognition of
his/her unparalleled expertise and accomplishments. The employer now
wants to hire a third Research Assistant on an H-1B visa to
participate in the work.
The differential between the salary paid Research Assistant A
(the U.S. worker) and Research Assistant B (an H-1B nonimmigrant) is
acceptable because it is based upon the specialized knowledge,
expertise and experience of Research Assistant A, demonstrated in
writing. The employer is not required to pay Research Assistant B
the same wage rate as that paid Research Assistant A, even though
they may have the same job titles. The actual wage required for the
third Research Assistant, to be hired on an H-1B visa, would be the
wage paid to Research Assistant B unless he/she has internationally
recognized expertise similar to that of Research Assistant A. As set
out in Sec. ______.731(1)(A) the employer must have and document the
system used in determining the actual wage of H-1B nonimmigrants.
The explanation of the system must be such that a third party may
use the system to arrive at the actual wage paid the H-1B
nonimmigrant.
(4) Employer located in City X seeks experienced mechanical
engineers. In City X, the prevailing wage for such engineers is
$49,500 annually. In setting the salaries of U.S. workers, employer
pays its nonsupervisory mechanical engineers with 5 to 10 years of
experience between $50,000 and $75,000 per year, using defined pay
scale ``steps'' tied to experience. Employer hires engineers A, B,
and C, who each have five years of experience and similar
qualifications and will perform substantially the same
nonsupervisory job duties. Engineer A is from Japan, where he/she
earns the equivalent of $80,000 per year. Engineer B is from France
and had been earning the equivalent of $50,000 per year. Engineer C
is from India and had been earning the equivalent of $20,000 per
year. Employer pays Engineer A $80,000 per year, Engineer B $50,000,
and Engineer C $20,000 as the employer has had a long-established
system of maintaining the home-country pay levels of temporary
foreign workers.
The INA requires that the employer pay the H-1B nonimmigrant at
least the actual wage or the prevailing wage, whichever is greater,
but there is no prohibition against paying an H-1B nonimmigrant a
greater wage. Therefore, Engineer A may lawfully be paid the $80,000
per year. Engineer B's salary of $50,000 is acceptable, since this
is the employer's actual wage for an engineer with Engineer B's
experience and duties. Engineer C's salary, however, at a rate of
$20,000 per year, is unacceptable under the law, even given the
employer's ``long-established `home country' system,'' since $20,000
would be below both the actual wage and the prevailing wage. The
latter situation is an example of an illegitimate business factor,
i.e., a system to maintain salary parity with peers in the country
of origin, which yields a wage below the required wage levels.
11. In Sec. ______.840, paragraph (c) is republished as follows:
Sec. ______.840 Decision and order of administrative law judge.
* * * * *
(c) In the event that the Administrator's determination(s) of wage
violation(s) and computation of back wages are based upon a wage
determination obtained by the Administrator from ETA during the
investigation (pursuant to Sec. ______.731(d) of this part), and the
administrative law judge determines that the Administrator's request
was not warranted (under the standards in Sec. ______.731(d) of this
part), the administrative law judge shall remand the matter to the
Administrator for further proceedings on the issue(s) of the existence
of wage violation(s) and/or the amount(s) of back waged owed. If there
is no such determination and remand by the administrative law judge,
the administrative law judge shall accept such wage determination as
accurate. Such wage determination is one made by ETA, from which the
employer did not file a timely complaint through the Employment Service
complaint system or from which the employer has appealed through the ES
complaint system and a final decision therein has been issued. See
Sec. ______.731 of this part; see also 20 CFR 658.420 through 658.426.
Under no circumstances shall the administrative law judge determine the
validity of the wage determination or require source data obtained in
confidence by ETA or the SESA, or the names of establishments contacted
by ETA or the SESA, to be submitted into evidence or otherwise
disclosed.
* * * * *
[FR Doc. 95-26921 Filed 10-30-95; 8:45 am]
BILLING CODE 4510-27-M
Complete official Federal Register PDF
FR Doc. 95-26891 Reef Fish Fishery of the Gulf of Mexico; Red Snapper
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55358-55359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26891]
=======================================================================
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[[Page 55359]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 641
[Docket No. 94113-4354; I.D. 102395D]
Reef Fish Fishery of the Gulf of Mexico; Red Snapper
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Announcement of a proposed reopening of a fishery.
-----------------------------------------------------------------------
SUMMARY: NMFS announces that the closed commercial fishery for red
snapper in the exclusive economic zone (EEZ) of the Gulf of Mexico will
be reopened. Reopening of the fishery is necessary because the 1995
annual commercial quota for red snapper has not been taken. The
commercial fishery for red snapper from the Gulf of Mexico will close
36 hours after the reopening is effective.
DATES: The reopening of the commercial red snapper fishery, to be
announced through publication in the Federal Register, will be
effective for a 36-hour period that will commence at 12:01 a.m., local
time, on a date yet to be determined. Such period will be between
October 29, 1995, and November 4, 1995.
FOR FURTHER INFORMATION CONTACT: Robert Sadler or Michael Justen, 813-
570-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the Fishery Management Plan for the Reef Fish Fishery
of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico
Fishery Management Council (Council) and is implemented through
regulations at 50 CFR part 641 under the authority of the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). Those
regulations set the commercial quota for red snapper in the Gulf of
Mexico at 3.06 million lb (1.39 million kg) for the current fishing
year, January 1 through December 31, 1995.
Under 50 CFR 641.26, NMFS is required to close the commercial
fishery for a species or species group when the quota for that species
or species group is reached, or is projected to be reached, by
publishing a notification to that effect in the Federal Register. Based
on statistics available at that time, NMFS projected that the
commercial quota for red snapper would be reached on April 14, 1995.
Accordingly, the commercial fishery in the EEZ in the Gulf of Mexico
for red snapper was closed effective 12:01 a.m., local time, April 15,
1995, through December 31, 1995--the end of the fishing year.
Notification of closure was filed with the Office of the Federal
Register on April 12, 1995 (60 FR 19363, April 18, 1995).
Upon further analysis of the landings data, including new
information that became available since announcement of the closure
date, NMFS has determined that approximately 210,000 lb (95,254 kg) of
the 1995 red snapper commercial quota remain unharvested. Accordingly,
the Council requested that NMFS reopen the fishery.
Catch rates during the first 7 days of the 1995 season averaged
approximately 90,000 lb (40,823 kg) per day. At that catch rate, and
under the restrictions in effect through 1995, the harvest of red
snapper during a 36-hour period would be approximately 135,000 lb
(61,235 kg). The restrictions in effect through 1995 specify that a
vessel with a red snapper endorsement on its reef fish permit may not
land, in any day, red snapper in excess of 2,000 lb (907 kg) and other
permitted vessels may not land, in any day, red snapper in excess of
200 lb (91 kg). While a 36-hour reopening of the commercial fishery may
not result in the full commercial quota being harvested, such period
provides reasonable assurance that the commercial quota on the
overfished red snapper resource is not exceeded.
The Council requested that this reopening of the commercial fishery
for red snapper occur around November 1, 1995, with the opening date to
be selected based on projected weather conditions. The Council and NMFS
do not want to create a situation where vessels owners and operators
would feel compelled to fish during marginal weather conditions.
Accordingly, this notification advises fishermen in the Gulf of Mexico
reef fish fishery that the commercial red snapper fishery in the EEZ of
the Gulf of Mexico will be reopened for a period of 36 hours commencing
at 12:01 a.m., local time, at a date to be selected between October 29,
1995, and November 4, 1995. A notification of the date will be filed
with the Office of the Federal Register not less than 48 hours prior to
the effective date of the reopening and notification will be
disseminated via a news release distributed to reef fish dealers, state
enforcement agencies, Sea Grant offices, and other constituents. In
addition, NMFS will request that advance notification of the effective
date and time of the reopening be broadcast by coastal NOAA Weather
Radio stations in the Gulf of Mexico.
Classification
This action is taken under 50 CFR 641.26 and is exempt from review
under E.O. 12866.
Dated: October 25, 1995.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 95-26891 Filed 10-25-95; 4:49 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 95-26890 Removal of Exemption for Certain Pseudoephedrine Products Marketed Under the Food, Drug, and Cosmetic Act (FD&C Act)
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55348-55353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26890]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Parts 1309, 1310, and 1313
[DEA-138P]
RIN 1117-AA32
Removal of Exemption for Certain Pseudoephedrine Products
Marketed Under the Food, Drug, and Cosmetic Act (FD&C Act)
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule is issued by the Deputy Administrator of
the Drug Enforcement Administration (DEA) to remove the exemption for
certain products containing pseudoephedrine (which are lawfully
marketed under the Federal Food, Drug, and Cosmetic Act) from the
chemical control provisions of the Controlled Substances Act (CSA) and
the Controlled Substances Import and Export Act. Due to the large scale
utilization of over-the-counter (OTC) pseudoephedrine products for the
clandestine manufacture of controlled substances, the DEA has
determined that certain products should be subject to recordkeeping,
reporting, registration and notification requirements of the CSA to
prevent their diversion. Such products include OTC tablets, capsules
and powder packets containing pseudoephedrine alone or in combination
with antihistamines, quaifenesin or dextromethorphan. This action also
proposes that the threshold for pseudoephedrine be reduced to 24.0
grams pseudoephedrine base. Such a threshold is sufficient to permit
the purchase of up to a 120 day supply of pseudoephedrine without the
application of regulatory requirements.
To further ensure the availability of pseudoephedrine products to
legitimate consumers at the retail level, this action also proposes to
waive the registration requirement for retail distributors of regulated
pseudoephedrine products.
DATES: Written comments and objections must be received by January 2,
1996.
FOR FURTHER INFORMATION CONTACT:
Howard McClain Jr., Chief, Drug and Chemical Evaluation Section, Office
of Diversion Control, Drug Enforcement Administration, Washington, D.C.
20537. Telephone (202) 307-7183.
SUPPLEMENTARY INFORMATION:
Background
The Chemical Diversion and Trafficking Act (PL 100-690) (CDTA)
[[Page 55349]]
amended the Controlled Substances Act and the Controlled Substances
Import and Export Act, and was passed by Congress to control the
diversion of certain chemicals (herein referred to as listed chemicals)
that are necessary for the illicit production of controlled substances.
The CDTA and its implementing regulations as set forth in Title 21,
Code of Federal Regulations (21 CFR), parts 1310 and 1313, established
a system of recordkeeping and reporting requirements through which DEA
and the chemical industry could identify persons seeking to divert
listed chemicals for the manufacture of illicit drugs. While bulk
ephedrine and pseudoephedrine were regulated under the CDTA, ephedrine
and pseudoephedrine products which are lawfully marketed or distributed
under the Federal Food, Drug, and Cosmetic Act (FD&C Act), were
originally exempt from CDTA regulations.
Since 1989, ephedrine has been the primary precursor used in the
clandestine synthesis of methamphetamine in the United States.
Clandestine laboratory operators have exploited the lack of controls on
OTC ephedrine products (such as tablets/capsules) to purchase millions
of dosage units for the synthesis of methamphetamine and methcathinone.
The Domestic Chemical Diversion Control Act (DCDCA) of 1993 (Public
Law 103-200) became effective on April 16, 1994. This Act further
amended the Controlled Substances Act and the Controlled Substances
Import and Export Act and removed the exemption for those transactions
involving products which are marketed or distributed lawfully in the
U.S. under the Federal Food, Drug, and Cosmetic Act, if these products
contain ephedrine (or its salts, optical isomers, or salts of optical
isomers) as the only active medicinal ingredient or contain ephedrine
in combination with therapeutically insignificant quantities of another
active medicinal ingredient. Thus single entity ephedrine products
became subject to reporting, recordkeeping and notification
requirements of the CSA. The DCDCA, however, did not remove the
exemption provided for pseudoephedrine OTC products, since the known
illicit use of pseudoephedrine was relatively infrequent when the DCDCA
was enacted.
The DCDCA also provided the Attorney General with the authority to
remove the exemption for any drug product containing a listed chemical
upon a determination that the drug product is being diverted for use in
the illicit production of a controlled substance. In addition, the
DCDCA imposed registration requirements for List I chemical handlers.
The CDTA established a system of thresholds for each listed
chemical to determine which transactions would be subject to regulatory
controls. Reporting, recordkeeping and notification requirements apply
to all regulated transactions which meet or exceed these threshold
amounts of a listed chemical. The threshold for ephedrine was
originally established as 1.0 kilogram for domestic, import and export
transactions. The threshold of 1.0 kilogram of ephedrine base is
equivalent to greater than 48,800 ephedrine 25 mg dosage units. Even
though the dosage form exemption was eliminated by the DCDCA, a 1.0
kilogram threshold was not adequate to prevent the significant
diversion of ephedrine to clandestine laboratories in the United
States.
Given evidence of the large-scale diversion of ephedrine from
various types of outlets and the public health threat imposed by the
diversion of these products, the DEA determined that additional action
was needed to prevent further diversion. Effective November 10, 1994
(59 FR 51365) the DEA eliminated the threshold for ephedrine.
Subsequently, all regulated transactions of ephedrine became subject to
reporting, recordkeeping and notification requirements of the CSA
regardless of size.
In response to regulatory and other actions taken against single-
entity ephedrine products, clandestine laboratory operators have again
attempted to circumvent CSA chemical controls in an effort to obtain
precursor material. The search for unregulated sources of precursor
material has led to the diversion and illicit utilization of OTC
ephedrine combination products and OTC pseudoephedrine products. The
DEA is currently reviewing the regulatory options which address the
diversion of OTC ephedrine combination products. This issue will be
addressed in the near future.
Pseudoephedrine and ephedrine are related as diastereomers. Because
of this structural relationship, pseudoephedrine can serve as a direct
substitute for ephedrine in the synthesis of methamphetamine.
Clandestine laboratory operators are exploiting the lack of regulatory
controls on OTC pseudoephedrine products by obtaining pseudoephedrine
for use as precursor material for the synthesis of methamphetamine.
Due to the significant increase in the utilization of
pseudoephedrine products for the illicit manufacture of these
controlled substances, the DEA Deputy Administrator has determined that
some of these products should be subject to recordkeeping, reporting,
registration and notification requirements of the Controlled Substances
Act and the Controlled Substances Import and Export Act, in order to
prevent their diversion. This action proposes to remove the exemption
for certain OTC products containing pseudoephedrine. These
pseudoephedrine products shall therefore be subject to regulatory
provisions of the CSA.
Removal of Exemption
21 U.S.C. 814(a) provides that the Attorney General may remove from
exemption under 21 U.S.C. 802(39)(A)(iv) any drug or group of drugs
that the Attorney General finds is being diverted to obtain a listed
chemical for use in the illicit production of a controlled substance.
21 U.S.C. 814(b) further provides that in removing the exemption for a
drug or group of drugs, the Attorney General shall consider (1) the
scope, duration, and significance of the diversion, (2) whether the
drug or group of drugs is formulated in such a way that it cannot be
easily used in the illicit production of a controlled substance and (3)
whether the listed chemical can be readily recovered from the drug or
group of drugs. A summary analysis of these factors follows.
Methamphetamine is the most prevalent controlled substance
clandestinely synthesized in the United States. Between January 1, 1994
and September 15, 1995 the DEA has been involved in the domestic
seizure of 453 methamphetamine laboratories. Ephedrine and/or
pseudoephedrine were utilized as the precursor material at
approximately 85 percent of these laboratories.
Evidence of the illicit utilization of pseudoephedrine in
clandestine laboratories is increasing. The identification of OTC
pseudoephedrine products at clandestine methamphetamine laboratories
increased dramatically in 1995. Pseudoephedrine was utilized in at
least 11 percent of the laboratories seized in 1994 and 22 percent in
1995. The DEA and local law enforcement have intercepted and seized
millions of pseudoephedrine dosage units from mail order shipments
destined for individuals for subsequent use in the illicit manufacture
of methamphetamine.
Pseudoephedrine is available in a variety of dosage forms either as
single entity products or in combination with one or more other active
medicinal ingredients. While the majority of OTC
[[Page 55350]]
pseudoephedrine products currently used for the illicit production of
methamphetamine are single entity products, some combination products
have been identified at clandestine laboratories. The DEA has reviewed
the various pseudoephedrine dosage forms and available combinations of
ingredients. Some of these products are formulated in such a way that
the product itself can be used in the illicit production of
methamphetamine; others are formulated in such a way that
pseudoephedrine can be readily recovered from the product; and some of
these products are formulated in such a way that the manufacture of
methamphetamine is impeded. Based on this analysis, the DEA has
determined that OTC solid dosage form products (i.e. tablets, capsules
and powder packets) lawfully marketed under the Federal Food, Drug, and
Cosmetic Act and which contain pseudoephedrine in combination with
acetaminophen, aspirin or ibuprofen are formulated in such a way that
pseudoephedrine cannot be readily recovered and these products are not
easily used as precursors for the illicit production of
methamphetamine. In addition, the DEA has determined that OTC liquids,
syrups and soft gelatin capsules, which are lawfully marketed under the
Food, Drug, and Cosmetic Act and which contain pseudoephedrine either
as the sole active ingredient or in combination with other active
ingredients, are formulated in such a way that the pseudoephedrine
cannot be readily recovered and the products cannot be easily used in
the illicit production of methamphetamine.
Thus the DEA is proposing to remove the exemption under 21 CFR
1310.01(f)(1)(iv) for OTC solid dosage form pseudoephedrine products
(i.e. tablets, capsules and powder packets) lawfully marketed under the
Food, Drug, and Cosmetic Act, which do not contain therapeutically
significant quantities of acetaminophen, aspirin or ibuprofen. These
products, which include tablets, capsules and powder packets containing
pseudoephedrine as the sole active ingredient or in combination with
one or more active indgredients such as antihistamines, guaifenesin or
dextromethorphan, will be subject to the regulatory requirements of the
CSA.
For purposes of this paragraph, the term ``therapeutically
significant quantities'' shall apply if the product formulation (i.e.
the qualitative and quantitative composition of active ingredients
within the product) is listed in current editions of the American
Pharmaceutical Association (APhA) Handbook of NonPrescription Drugs;
Drug Facts and Comparisons (published by Wolters Kluwer Company); or
USP DI (published by the authority of the United States Pharmacopeial
Convention, Inc.). For drug products having a formulation not found in
the above compendiums, the DEA Administrator shall determine, pursuant
to a written request as specified in Section 1310.14, whether the
active medicinal ingredients are present in quantities considered
therapeutically significant for purposes of this paragraph.
The exemption provided under 21 CFR 1310.01(f)(1)(iv) will remain
for liquids, syrups, and soft gelatin capsules containing
pseudoephedrine and any type of solid dosage form product which
contains pseudoephedrine in combination with therapeutically
significant quantities of either acetaminophen, aspirin or ibuprofen
provided that the product is lawfully marketed under the Food, Drug,
and Cosmetic Act. In addition, the proposed regulations allow
pseudoephedrine prescription products, regardless of the product
formulation, to remain exempt from the proposed regulations, given
existing distribution and dispensing requirements already imposed under
the Federal Food, Drug and Cosmetic Act.
Pursuant to 21 U.S.C. 814(c), the DEA has considered the evidence
of diversion of the above listed pseudoephedrine products, the pattern
of diversion of ephedrine products, including combination products and
other relevant data, and has determined that the affected group of
pseudoephedrine products is limited to that necessary to prevent the
diversion of pseudoephedrine products to illicit methamphetamine
laboratories.
Revision of Threshold
The current threshold for pseudoephedrine is 1.0 kilogram for
domestic, import and export transactions. Even if the exemption for
certain OTC pseudoephedrine products is eliminated, a 1.0 kilogram
threshold is not adequate to prevent the significant diversion of these
pseudoephedrine products to clandestine laboratories. The threshold of
1.0 kilogram of pseudoephedrine base is equivalent to greater than
20,000 pseudoephedrine HCl 60 mg dosage units. Therefore, the DEA
proposes to reduce the threshold for pseudoephedrine. In order to
ensure that OTC pseudoephedrine products remain available to those
individuals who utilize these decongestants for legitimate medical
purposes, the DEA proposes to establish the threshold for
pseudoephedrine at a level consistent with personal use. As such,
individuals who purchase below-threshold quantities intended for
legitimate personal medical use, and retailers who sell below-threshold
quantities for use by individuals for legitimate personal medical use,
will not be adversely impacted by these regulations.
The Food and Drug Administration (FDA) has established a labeling
requirement which sets the maximum adult daily dosage of
pseudoephedrine at 60 mg every 6 hours or 240 mg per day. A 120 day
supply of pseudoephedrine at the maximum daily recommended dose of 240
mg pseudoephedrine hydrochloride per day is equivalent to 28.8 gm of
pseudoephedrine hydrochloride or 23.7 gm pseudoephedrine base.
Therefore, the DEA proposes to establish a threshold of 24.0 grams
pseudoephedrine base. Such a threshold will allow the purchase and sale
of up to 120 day supply of pseudoephedrine for personal legitimate
medical use, without the application of regulatory requirements. This
will allow continued access to these products for legitimate use.
Waiver of Registration
In an effort to ensure the continued availability of
pseudoephedrine products for legitimate personal use at the retail
level, the DEA also proposes a waiver from registration for any retail
distributor of regulated pseudoephedrine products. The authority for
providing a waiver is clearly set forth in 21 U.S.C. Section 822(d)
whereby ``The Attorney General may, by regulation, waive the
requirement for registration of certain manufacturers, distributors, or
dispensers if he finds it consistent with the public health and
safety.''
Therefore retail distributors (defined under 21 CFR 1309.02 as
selling only personal use quantities to walk-in customers) of regulated
pseudoephedrine products would not be required to obtain a DEA
registration for such transactions.
As discussed later, it is estimated that there are approximately
750,000 retail distributors of pseudoephedrine in the U.S. Such a
waiver would benefit the vast majority of these distributors. Firms
engaging in above-threshold transactions of non-exempt pseudoephedrine
products, however, would not be retail distributors. Therefore they
would be required to obtain a DEA registration as a distributor,
maintain records as specified in 21 CFR 1310.04 and report suspicious
transactions as specified in
[[Page 55351]]
21 CFR 1310.05 notification requirement. In addition, all importers,
exporters and other types of distributors of non-exempt pseudoephedrine
products would be required to register with the DEA and would be
subject to the full regulatory provisions of the Controlled Substances
Act and the Controlled Substances Import and Export Act.
The clandestine manufacture and abuse of methamphetamine are
serious national public health problems which require Federal action.
Companies operating on the fringe of legitimate commerce are supplying
these clandestine laboratories. In an effort to minimize the impact of
the proposed regulations on the legitimate industry, the DEA has
examined various options available.
The DEA is aware of the large scale legitimate use of OTC
pseudoephedrine products and their widespread distribution at retail
outlets. However, the DEA believes that the registration,
recordkeeping, reporting and notification requirements that have been
successfully used to limit the diversion of other chemicals to
clandestine laboratories are needed to control this problem.
The DEA has determined that approximately 750,000 retail
distributors and an undetermined number of other distributors would be
impacted if pseudoephedrine products were made subject to the full
extent of the CSA chemical regulatory provisions. However, in
recognizing the need to limit the regulatory burden on handlers of
pseudoephedrine products to the minimum level necessary to prevent the
large scale diversion of these products for clandestine use, the DEA
has taken significant steps to minimize the burden on the 750,000
retailers who sell these pseudoephedrine products.
First, given the large number of retail distributors who handle
these products in the United States, the DEA has proposed that relief
be provided by providing a waiver from registration for these
distributors. Thus, the proposed regulations primarily impact
distributors who are not classified as retail distributors. These
distributors include mail-order and wholesale distributors. The DEA has
attempted to identify the number of firms which will be impacted by
these regulations. This review included consultation with industry
associations and other Federal and local government agencies. These
entities were only able to identify a limited number of newly affected
firms.
Secondly, the DEA has limited controls to a specific group of
products which have been demonstrated to be most readily used for
illicit purposes. The DEA believes that this approach provides
effective protection against diversion while minimizing the burden on
industry. Thirdly, the proposed regulations allow for the purchase and
sale of up to a 120 day supply of pseudoephedrine for personal
legitimate medical use, without the application of regulatory
requirements.
The DEA has consulted with the National Wholesale Druggists
Association (NWDA) in an effort to determine the potential size of the
impacted industry. According to NWDA sources, there are approximately
750,000 retail distributors in the U.S. which sell over-the-counter
pseudoephedrine products.
In addition, the DEA has met with the Nonprescription Drug
Manufacturers Association (NDMA) regarding the U.S. pseudoephedrine
market and to obtain input on the distribution of pseudoephedrine for
legitimate medical use. NDMA has further confirmed that there are
approximately 750,000 retail distributors of over-the-counter products
in the U.S. NDMA, which stated that its members account for the
manufacture of over 90 percent of the over-the-counter drugs marketed
domestically, informed DEA that member companies primarily distribute
pseudoephedrine in package sizes ranging from 10 to 60 solid dosage
units per package. In an effort to reduce the adverse impact upon those
who sell and purchase pseudoephedrine products at the retail level, the
DEA ensured that the proposed threshold was well above the standard
package size manufactured by NDMA members and distributed by retail
distributors. The proposed threshold of 24.0 grams pssudoephedrine base
is equivalent to 488 pseudoephedrine hydrochloride 60 mg dosage units.
The primary impact of the proposed regulations will be upon those
entities not classified as retail distributors. Such entities include
mail-order distributors and wholesale distributors. The DEA has
attempted to quantify the number of these distributors in the U.S. The
NWDA informed the DEA that its 1993 Operating Survey indicated that 70
full-line drug wholesalers (who distribute both prescription and over-
the-counter products) distributed nearly 80 percent of the prescription
drugs in the U.S. in 1993. These full-line drug wholesalers operated
approximately 230 distribution centers. Current information provided by
NWDA indicates that due to consolidation within the drug wholesale
industry, there are currently only approximately 50 full-line wholesale
distributors supplying this market in the U.S.
These firms are already CSA registrants and as such would not need
to obtain a separate registration under the proposed regulations (21
CFR 1309.25). In addition, the impact upon these full-line distributors
will be minimized since, pursuant to 1310.06(b), normal business
records shall be considered adequate if they contain the information
required in 21 CFR 1310.06(a) and are readily retrievable from other
business records.
The NWDA was unable to provide estimates of the percentage of the
over-the-counter market supplied by these full-line distributors but
informed DEA of the existence of other smaller wholesale distributors
who only distribute over-the-counter pseudoephedrine products. These
wholesale distributors will be impacted by the proposed regulations
since they will be required to register with the DEA and ensure that
records maintained are adequate to meet the requirements under Section
1310.06.
In addition to contact with the industry associations, the DEA has
contacted the National Association of Boards of Pharmacy and individual
State Boards of Pharmacy in an attempt to quantify the number of these
distributors currently operating in the U.S. which will be impacted by
these regulations. The DEA has not been successful in quantifying the
number of these firms operating in the U.S. or in finding a
professional association which represents these business entities.
However, the State of Idaho licenses all business entities which
distribute over-the-counter products into or within the state. The
Idaho Board of Pharmacy indicated that the majority of the distributors
are actually outside of Idaho and that only 418 distributors are
licensed to distribute drug products into Idaho.
The DEA has attempted to limit the regulatory burden on
pseudoephedrine handlers. The proposed regulations include provisions
which ensure that the 750,000 retailers of pseudoephedrine will not be
adversely impacted. These 750,000 retail distributors will not be
required to register or maintain records unless they engage in
transactions of a limited group of pseudoephedrine products in
quantities which exceed a 120 day supply. Therefore the vast majority
of retail distributors will not be impacted by these regulations.
While other types of distributors will be subject to the proposed
regulatory controls, the DEA ( in consultation with industry
associations and other
[[Page 55352]]
government agencies) has been able to identify only a limited number of
these newly affected firms. The DEA welcomes any information regarding
the number of entities affected.
The Attorney General has delegated authority under the CSA and all
subsequent amendments to the CSA to the Administrator of the DEA (28
CFR 0.100). The Administrator, in turn, has redelegated this authority
to the Deputy Administrator pursuant to 28 CFR 0.104.
The Deputy Administrator has reviewed this regulation and by
approving it certifies that this regulation will not have a significant
economic impact on a substantial number of small entities.
This proposed rule has been reviewed pursuant to the principles of
Executive Order 12866. It has been determined that the proposed rule is
not significant regulatory action and therefore has not been reviewed
by the Office of Management and Budget pursuant to Executive Order
12866.
This proposed action has been analyzed in accordance with the
principles and criteria in E.O. 12612, and it has been determined that
the proposed rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
List of Subjects
21 CFR Part 1309
Administrative practice and procedure, Drug traffic control,
Security measures, List I and List II chemicals.
21 CFR Part 1310
Drug traffic control, Reporting and recordkeeping requirements,
List I and List II chemicals.
21 CFR Part 1313
Drug traffic control, Imports, Exports, Transshipment and in-
transit shipments, List I and List II chemicals.
For reasons as set out above, 21 CFR Parts 1309, 1310 and 1313 are
proposed to be amended as follows:
PART 1309--[AMENDED]
1. The authority citation for Part 1309 continues to read as
follows:
Authority: 21 U.S.C. 821, 822, 823, 824, 830, 871(b), 875, 877,
958.
2. Section 1309 is proposed to be amended by adding a new paragraph
1309.28 to read as follows:
Sec. 1309.28 Exemption of retail distributors of certain
pseudoephedrine products.
The requirement of registration is waived for any retail
distributor, for the distribution of any product containing
pseudoephedrine that is regulated pursuant to Section
1310.01(f)(1)(iv)(A)(2). The term retail distributor, as defined in
Section 1309.02(g), means a distributor whose List I chemical
activities are restricted to the sale of drug products that are
regulated as List I chemicals pursuant to Section 1310.01(f)(1)(iv),
directly to walk-in customers for personal use. For purposes of this
paragraph, sale for personal use means the sale of below-threshold
quantities in a single transaction to an individual for legitimate
medical use. (The threshold of 24.0 grams pseudoephedrine base is
equivalent to 488 pseudoephedrine hydrochloride 60 mg dosage units.)
3. Section 1309.71 is proposed to be amended by revising paragraph
(a)(2) to read as follows:
Sec. 1309.71 General security requirements.
* * * * *
(a) * * *
(2) In retail settings open to the public where drugs containing
List I chemicals that are regulated pursuant to Section
1310.01(f)(1)(iv)(A)(1) are distributed, such drugs will be stocked
behind a counter where only employees have access.
* * * * *
PART 1310--[AMENDED]
1. The authority citation for Part 1310 continues to read as
follows:
Authority: 21 U.S.C. 802, 830, 871(b).
2. Section 1310.01 is proposed to be amended by revising paragraph
(f)(1)(iv)(A) to read as follows:
Sec. 1310.01 Definitions.
* * * * *
(f) * * *
(1) * * *
(iv) * * *
(A)(1) The drug contains ephedrine or its salts, optical isomers,
or salts of optical isomers as the only active medicinal ingredient or
contains ephedrine or its salts, optical isomers, or salts of optical
isomers and therapeutically insignificant quantities of another active
medicinal ingredient. For purposes of this paragraph, the term
``therapeutically insignificant quantities'' shall apply if the product
formulation (i.e., the qualitative and quantitative composition of
active ingredients within the product) is not listed in current
editions of the American Pharmaceutical Association (APhA) Handbook of
NonPrescription Drugs; Drug Facts and Comparisons (published by Wolters
Kluwer Company); or USP DI (published by the authority of the United
States Pharmacopeial Convention, Inc.); or the product is not listed in
Section 1310.15 as an exempt drug product. For drug products having
formulations not found in the above compendiums, the Administrator
shall determine, pursuant to a written request as specified in Section
1310.14, whether the active medicinal ingredients are present in
quantities considered therapeutically significant for purposes of this
paragraph; or
(2) The drug is an over-the-counter (OTC) solid dosage form product
(tablet, capsule or powder packet) which contains pseudoephedrine or
its salts, optical isomers, or salts of optical isomers but does not
contain either acetaminophen, aspirin or ibuprofen in therapeutically
significant quantities. For purposes of this paragraph, the quantities
of either acetaminophen, aspirin or ibuprofen present in a
pseudoephedrine drug product shall be considered to be present in
``therapeutically significant quantities'' if the product formulation
(i.e. the qualitative and quantitative composition of active
ingredients within the product) is listed in current editions of the
American Pharmacoutical Association (APhA) Handbook of NonPrescription
Drugs; Drug Facts and Comparisons (published by Wolters Kluwer
Company); or USP DI (published by the authority of the United States
Pharmacopeial Convention, Inc.); or the product is listed in Section
1310.15 as an exempt drug product. For drug products having a
formulation not found in the above compendiums, the Administrator shall
determine, pursuant to a written request as specified in Section
1310.14, whether the active medicinal ingredients (acetaminophen,
aspirin or ibuprofen) are present in quantities considered
therapeutically significant for purposes of this paragraph; or
* * * * *
3. Section 1310.04 is proposed to be amended by revising paragraph
(f)(1)(x) to read as follows:
Sec. 1310.04 Maintenance of records.
* * * * *
(f) * * *
(1) List I Chemicals:
------------------------------------------------------------------------
Chemical Threshold by base weight
------------------------------------------------------------------------
(x) Pseudoephedrine, its salts, optical 24 grams.
isomers and salts of optical isomers.
------------------------------------------------------------------------
* * * * *
[[Page 55353]]
4. Section 1310.14 is proposed to be amended by revising the
heading and by revising paragraph (a) to read as follows:
Sec. 1310.14 Exemption of certain ephedrine or pseudoephedrine
combination drug products.
(a) Any manufacturer of a drug product containing ephedrine in
combination with another active medicinal ingredient, the product
formulation of which is not listed in the compendiums set forth in
Section 1310.01(f)(1)(iv)(A)(1), or any manufacturer of a drug product
containing pseudoephedrine in combination with acetaminophen, aspirin
or ibuprofen, the product formulation of which is not listed in the
compendiums set forth in Section 1310.01(f)(1)(iv)(A)(2), may request
that the Administrator exempt the product as one which contains
ephedrine together with therapeutically significant quantities of the
other active medicinal ingredients or pseudoephedrine in combination
with therapeutically significant quantities of acetaminophen, aspirin
or ibuprofen.
* * * * *
5. Section 1310.15 is proposed to be amended by revising the
heading, by revising paragraph (a), and by revising paragraph (d) to
read as follows:
Sec. 1310.15 Exempt combination drug products containing ephedrine or
pseudoephedrine.
(a) The drug products containing ephedrine in combination with
therapeutically significant quantities of another active medicinal
ingredient, or pseudoephedrine in combination with therapeutically
significant quantities of acetaminophen, aspirin, or ibuprofen; listed
in paragraph (e) of this section, have been exempted by the
Administrator from application of sections 302, 303, 310, 1007, and
1008 of the Act (21 U.S.C. 822-3, 830, and 957-8) to the extent
described in paragraphs (b), (c), and (d) of this section.
* * * * *
(d) In addition to the drug products listed in the compendium set
forth in Section 1310.01(f)(1)(iv)(A)(1) and 1310.01(f)(1)(iv)(A)(2),
the following drug products, in the form and quantity listed in the
application submitted (indicated as the ``date'') are designated as
exempt drug products for the purposes set forth in this section:
Exempt Drug Products Containing Ephedrine in Combination With
Therapeutically Significant Quantities of Another Active Medicinal
Ingredient and Exempt Drug Products Containing Pseudoephedrine in
Combination With Therapeutically Significant Quantities of
Acetaminophen, Aspirin or Ibuprofen
------------------------------------------------------------------------
Supplier Product name Form Date
------------------------------------------------------------------------
[Reserved]....................... ............... ............ ......
------------------------------------------------------------------------
PART 1313--[AMENDED]
1. The authority citation for Part 1313 continues to read as
follows:
Authority: 21 U.S.C. 802, 830, 871(b), 971.
2. Section 1313.02 is proposed to be amended by revising paragraph
(d)(1)(iv)(A) to read as follows:
Sec. 1313.02 Definitions.
* * * * *
(d) * * *
(1) * * *
(iv) * * *
(A)(1) The drug contains ephedrine or its salts, optical isomers,
or salts of optical isomers as the only active medicinal ingredient or
contains ephedrine or its salts, optical isomers, or salts of optical
isomers and therapeutically insignificant quantities of another active
medicinal ingredient. For purposes of this paragraph, the term
``therapeutically insignificant quantities'' shall apply if the product
formulation (i.e. the qualitative and quantitative composition of
active ingredients within the product) is not listed in current
editions of the American Pharmaceutical Association (APhA) Handbook of
NonPrescription Drugs; Drug Facts and Comparisons (published by Wolters
Kluwer Company); or USP DI (published by the authority of the United
States Pharmacopeial Convention, Inc.); or the product is not listed in
Section 1310.15 as an exempt drug product. For drug products having
formulations not found in the above compendiums, the Administrator
shall determine, pursuant to a written request as specified in Section
1310.14, whether the active medicinal ingredients are present in
quantities considered therapeutically significant for purposes of this
paragraph; or
(2) The drug is an over-the-counter (OTC) solid dosage form product
(tablet, capsule or powder packet) which contains pseudoephedrine or
its salts, optical isomers, or salts of optical isomers, but does not
contain either acetaminophen, aspirin or ibuprofen in therapeutically
significant quantities. For purposes of this paragraph, the quantities
of either acetaminophen, aspirin or ibuprofen present in a
pseudoephedrine drug product shall be considered to be present in
``therapeutically significant quantities'' if the product formulation
(i.e. the qualitative and quantitative composition of the active
ingredients within the product) is listed in current editions of the
American Pharmaceutical Association (APhA) Handbook of NonPrescription
Drugs; Drug Facts and Comparisons (published by Wolters Kluwer
Company); or USP DI (published by the authority of the United States
Pharmacopeial Convention, Inc.); or the product is listed in Section
1310.15 as an exempt drug product. For drug products having a
formulation not found in the above compendiums, the Administrator shall
determine, pursuant to a written request as specified in Section
1310.14, whether the active medicinal ingredients (acetaminophen,
aspirin or ibuprofen) are present in quantities considered
therapeutically significant for purposes of this paragraph; or
* * * * *
Dated: October 25, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-26890 Filed 10-30-95; 8:45 am]
BILLING CODE 4410-09-M
Complete official Federal Register PDF
FR Doc. 95-26885 Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision, South Coast Air Quality Management District and Santa Barbara County Air Pollution Control District
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55354-55355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26885]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 162-1-7250b; FRL-5321-2]
Approval and Promulgation of State Implementation Plans;
California State Implementation Plan Revision, South Coast Air Quality
Management District and Santa Barbara County Air Pollution Control
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 55355]]
SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP) which concerns the control of volatile
organic compound (VOC) emissions from graphic arts and wood products
coating operations.
The intended effect of proposing approval of these rules is to
regulate emissions of VOCs in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). In the Final Rules
Section of this Federal Register, the EPA is approving the state's SIP
revision as a direct final rule without prior proposal because the
Agency views this as a noncontroversial revision amendment and
anticipates no adverse comments. A detailed rationale for this approval
is set forth in the direct final rule. If no adverse comments are
received in response to this proposed rule, no further activity is
contemplated in relation to this rule. If EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. The EPA will not institute a second comment period
on this document. Any parties interested in commenting on this action
should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
November 30, 1995.
ADDRESSES: Written comments on this action should be addressed to:
Daniel A. Meer, Rulemaking Section (A-5-3), Air and Toxics Division,
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Copies of the rule revisions and EPA's evaluation report of each
rule are available for public inspection at EPA's Region 9 office
during normal business hours. Copies of the submitted rule revisions
are also available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
95105.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
SW., Washington, DC 20460.
California Air Resources Board, Stationary Source Divison, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812-2815.
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, CA 91765-4812.
FOR FURTHER INFORMATION CONTACT: Daniel A. Meer, Chief Rulemaking
Section (A-5-3), Air and Toxics Division, U.S Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105,
Telephone: (415) 744-1185.
SUPPLEMENTARY INFORMATION: This document concerns South Coast Air
Quality Management District's Rules 1130, Graphic Arts and 1136, Wood
Products Coating, submitted by the California Air Resources Board on
October 13, 1995. For further information please see the information
provided in the Direct Final action which is located in the Rules
Section of this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 19, 1995.
John Wise,
Acting Regional Administrator.
[FR Doc. 95-26885 Filed 10-30-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26788 Filberts/Hazelnuts Grown in Oregon and Washington; Secretary's Decision and Referendum Order on Proposed Further Amendment of Marketing Agreement and Order No. 982
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55333-55337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26788]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 60, No. 210 / Tuesday, October 31, 1995 /
Proposed Rules
[[Page 55333]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 982
[Docket No. AO-205-A7; FV94-982-1]
Filberts/Hazelnuts Grown in Oregon and Washington; Secretary's
Decision and Referendum Order on Proposed Further Amendment of
Marketing Agreement and Order No. 982
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
-----------------------------------------------------------------------
SUMMARY: This decision proposes amendments to Marketing Agreement and
Order No. 982 (order). The agreement and order regulate the handling of
filberts/hazelnuts grown in Oregon and Washington. The proposals would
change order provisions regarding: Volume control; nomination and
membership of the Filbert/Hazelnut Marketing Board (Board); assessment
collections; and the administration and operation of the program. The
proposed amendments were submitted by the Board to make the order more
consistent with current industry conditions and needs. The Fruit and
Vegetable Division (Division), Agricultural Marketing Service (AMS), is
proposing conforming and other necessary changes. These proposed
amendments are designed to improve order operations.
DATES: A referendum shall be conducted from November 27 through
December 15, 1995. The representative period for the purpose of the
referendum herein ordered is July 1, 1994, through June 30, 1995.
FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Marketing
Specialist, Northwest Marketing Field Office, Fruit and Vegetable
Division, Agricultural Marketing Service, USDA, 1220 SW Third Ave.,
room 369, Portland, OR 97204; telephone (503) 326-2724, FAX (503) 326-
7440; or Tom Tichenor, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, room 2523-S, P.O. Box 96456, Washington,
D.C. 20090-6456; telephone: 202-720-6862; FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Public Hearing issued on February 24, 1994, and published in the
February 28, 1994, issue of the Federal Register (59 FR 9425).
Recommended Decision and Opportunity to File Written Exceptions issued
on May 24, 1995, and published in the Federal Register on June 7, 1995
(60 FR 30170).
This administrative action is governed by the provisions of
sections 556 and 557 of title 5 of the United States Code, and,
therefore, is excluded from the requirements of Executive Order 12866.
Preliminary Statement
The proposed amendments were formulated on the record of a public
hearing held in Newberg, Oregon, on March 8, 1994, to consider the
proposed further amendment of the Marketing Agreement and Order No.
984, regulating the handling of hazelnuts grown in Oregon and
Washington, hereinafter referred to collectively as the ``order.'' The
hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.),
hereinafter referred to as the ``Act'', and the applicable rules of
practice and procedure governing proceedings to formulate marketing
agreements and marketing orders (7 CFR part 900). The Notice of Hearing
contained several amendment proposals submitted by the Board
established under the order to assist in local administration of the
program.
The proposals would: (1) Change the name of the commodity covered
under the order from ``filberts'' to ``hazelnuts;'' (2) for purposes of
volume regulation, establish the trade demand area as the continental
United States and allow the Board, with the Secretary's approval, to
make changes in the inshell trade acquisition distribution area; (3)
change the length of Board members' terms of office and the number of
consecutive terms that may be held, make changes in the criteria used
for nominating handler members and for weighting handler votes when
electing handler nominees, and change the voting procedures used for
nominating members; (4) allow Board telephone votes to remain
unconfirmed until the next public Board meeting; (5) remove the
``verbatim'' reporting requirement on Board marketing policy meetings;
(6) provide the Board with some flexibility in recommending final free
and restricted percentages; (7) authorize different identification
standards for inspected and certified hazelnuts; (8) correct current
language that specifies handler credit for ungraded hazelnuts; (9)
change the procedures for establishing bonding requirements for
deferred restricted obligations and allow the Board to purchase excess
restricted credits from handlers; (10) clarify that mail order sales
outside the production area are not exempt from order requirements;
(11) allow the Board to accept advance assessment payments, provide
discounts for such payments, and accept voluntary contributions; and
(12) make such changes as are necessary to conform with any amendment
that may result from the hearing.
Upon the basis of evidence introduced at the hearing and the record
therof, the Administrator of the Africultural Marketing Service (AMS)
on June 7, 1995, filed with the Hearing Clerk, U.S. Department of
Agriculture, a Recommended Decision and Opportunity to File Written
Exceptions thereto by July 7, 1995. None were filed.
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the AMS has
determined that this action would not have a significant economic
impact on a substantial number of small entities. Small agricultural
service firms, which include handlers regulated under this order, have
been defined by the Small Business Administration (SBA) (13 CFR
121.601) as those having annual receipts for the last three years of
less than $5,000,000. Small agricultural producers are defined as those
having annual receipts of less than $500,000.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Interested persons were
invited to present evidence at the hearing on the probable impact that
the proposed amendments to the order would have on small businesses.
The record indicates
[[Page 55334]]
that handlers would not be unduly burdened by any additional regulatory
requirements, including those pertaining to reporting and
recordkeeping, that might result from this proceeding. The record also
indicates that a majority of handlers and producers would meet the SBA
definitions of small agricultural service firms and small agricultural
producers, respectively.
During the 1993-94 marketing year, approximately 25 handlers were
regulated under the order. In addition, there were approximately 950
producers of hazelnuts in the production area. The Act requires the
application of uniform rules on regulated handlers. Since handlers
covered under the order are predominantly small businesses, the order
itself is tailored to the size and nature of small businesses.
Marketing orders and amendments thereto, are unique in that they are
normally brought about through group action of essentially small
entities for their own benefit. Thus, both the RFA and the Act are
compatible with respect to small entities.
For discussion of the anticipated impact on small businesses, the
proposed amendments have been grouped into program categories.
Amendments concerning the order's marketing and volume control programs
would: Change the name of the commodity to ``hazelnuts'' (Sec. 982.4
and every other place it appears in part 982); establish the trade
demand area as the continental United States and allow the Board to
make changes in the shell trade acquisition area, with approval of the
Secretary (Sec. 982.16); provide the Board the flexibility to release
up to 15 percent of the average three year inshell trade acquisitions
for desirable carryout (Sec. 982.40); correct the current language that
determines handler credit for ungraded hazelnuts (Sec. 982.51);
establish the bonding rate for deferred restricted obligations at the
estimated value of restricted credits for the current marketing year
and allow the Board to use defaulted bond payments to purchase excess
restricted credits (Sec. 982.54); and clarify that mail order sales are
not exempt from order requirements (Sec. 982.57). These proposed
amendments are designed to assist the Board in its domestic and export
marketing efforts. The amendments would allow the Board to make program
and management decisions that are more consistent with changing market
conditions and better respond to changing marketing needs. Because the
Board acts in the best interests of the industry, increased Board
decision-making flexibility should benefit the industry and, thus,
small businesses in the industry.
Regarding nomination and Board membership, the proposed amendments
would: Change from one to two years the length of Board member and
alternate member terms of office (Sec. 982.33); limit the number of
consecutive terms members and alternate members may hold to three two-
year terms (Sec. 982.33); and make conforming changes and a correction
in the qualifications for nominating members (Secs. 982.30 and 982.32).
The amendments are proposed to ease the burden of conducting nomination
meetings every year and enhance the Board's efficiency. The amendments
are administrative in nature and would not impose additional costs on
small businesses.
Other recommended amendments to the order's administrative
procedures and operations would: Allow Board telephone votes to remain
unconfirmed in writing until the next public Board meeting
(Sec. 982.37); remove the ``verbatim'' reporting requirement on Board
marketing policy meetings (Sec. 982.39); allow the Board to accept
advance assessment payments and provide discounts for such payments
(Sec. 982.61); and allow the Board to accept voluntary contributions
(new Sec. 982.63). These proposed amendments are intended to improve
the operations of the Board, lessen the administrative burden on Board
members and staff, and improve management of the order's financial
resources. As such, the proposed changes would have negligible, if any,
economic impact on small entities.
Finally, one amendment would provide the Board with the authority
to establish more up-to-date identification standards (Sec. 982.46),
which would make order identification and certification provisions
consistent with current industry practices and enable handlers more
flexibility in meeting identification requirements.
All of these changes are designed to enhance the administration and
functioning of the order and benefit the entire industry. Any added
costs are not expected to be significant because the benefits of the
proposed amendments are expected to outweigh the costs. Finally, the
proposed amendments would have no significant impact or burden on small
businesses' recordkeeping and reporting requirements.
The amendments proposed herein have been reviewed under Executive
Order 12778, Civil Justice Reform and are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the amendments.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
Chapter 35), any additional reporting and recordkeeping requirements
that might result from the proposed amendments would be submitted to
the Office of Management and Budget (OMB). The provisions would not be
effective until after receiving OMB approval.
Findings and Conclusions and Rulings on Exceptions
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the June 7, 1995, issue of the Federal Register (60 FR 30170)
are hereby approved and adopted without change.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Hazelnuts Grown
in Oregon and Washington''. This document has been decided upon as the
detailed and appropriate means of effectuating the foregoing findings
and conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR part 900.400 et
seq.) to determine whether the issuance of the annexed order amending
the order
[[Page 55335]]
regulating the handling of hazelnuts grown in Oregon and Washington, is
approved or favored by producers, as defined under the terms of the
order, who during the representive period were engaged in the
production for market of hazelnuts grown in Oregon and Washington.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 1994, through June 30, 1995.
The agents of the Secretary to conduct such referendum are hereby
designated to be Gary D. Olson and Teresa L. Hutchinson, Marketing
Order Administration Branch, Northwest Marketing Field Office, 1220
S.W. Third Avenue, Room 369, Portland, Oregon 97204, telephone 503-326-
2724; or Tom Tichenor, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, room 2523-S, P.O. Box 96456, Washington,
D.C. 20090-6456; telephone: 202-720-6862; FAX 202-720-5698.
List of Subjects in 7 CFR Part 982
Filberts, Hazelnuts, Marketing Agreements, Nuts, Reporting and
recordkeeping requirements.
Dated: October 23, 1995.
Shirley R. Watkins,
Acting Assistant Secretary, Marketing and Regulatory Programs.
Order Amending the Order Regulating the Handling of Hazelnuts Grown in
Oregon and Washington \1\
Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the marketing
agreement and order and each previously issued amendment thereto. All
of the said previous findings and determinations are hereby ratified
and affirmed, except insofar as such findings and determinations may be
in conflict with the findings and determinations set forth herein.
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
---------------------------------------------------------------------------
(a) Findings and Determinations Upon the Basis of the Hearing
Record. Pursuant to the provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), and the
applicable rules of practice and procedure effective thereunder (7 CFR
part 900), a public hearing was held upon the proposed amendments to
Marketing Agreement and Order No. 982 (7 CFR part 982), regulating the
handling of hazelnuts grown in Oregon and Washington.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, as amended, and hereby
proposed to be further amended, and all of the terms and conditions
thereof, will tend to effectuate the declared policy of the Act;
(2) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of hazelnuts
grown in the production area in the same manner as, and are applicable
only to, persons in the respective classes of commercial and industrial
activity specified in the marketing agreement and order upon which a
hearing has been held;
(3) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, are limited in their application to the
smallest regional production area which is practicable, consistent with
carrying out the declared policy of the Act, and the issuance of
several orders applicable to subdivisions of the production area would
not effectively carry out the declared policy of the Act; and
(4) All handling of hazelnuts grown in the production area as
defined in the marketing agreement and order, as amended, and as hereby
proposed to be further amended, is in the current of interstate or
foreign commerce or directly burdens, obstructs or affects such
commerce.
Marketing Agreement and Order
Annexed hereto and made a part hereto is the document entitled
``Order Amending the Order Regulating the Handling of Hazelnuts Grown
in Oregon and Washington''. This document has been decided upon as the
detailed and appropriate means of effectuating the foregoing findings
and conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of hazelnuts grown in Oregon and Washington, shall
be in conformity to, and in compliance with, the terms and conditions
of the said order as hereby proposed to be amended as follows:
The provisions of the proposed marketing agreement and the order
amending order contained in the Recommended Decision issued by the
Administrator on May 24, 1995, and published in the Federal Register on
June 7, 1995, shall be and are the terms and provisions of this order
amending the order and are set forth in full herein.
PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON
1. The authority citation for 7 CFR part 982 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In part 982 all references to ``filbert'', ``filberts'',
``filbert/hazelnut'', ``filberts/hazelnuts'' are revised to read as
``hazelnut'', ``hazelnuts'', ``hazelnut'', and ``hazelnuts'',
respectively.
3. Section 982.4 is revised to read as follows:
Sec. 982.4 Hazelnuts.
Hazelnuts means hazelnuts or filberts produced in the States of
Oregon and Washington from trees of the genus Corylus.
4. Section 982.16 is revised to read as follows:
Sec. 982.16 Inshell trade acquisitions.
Inshell trade acquisitions means the quantity of inshell hazelnuts
acquired by the trade from all handlers during a marketing year for
distribution in the continental United States and such other
distribution areas as may be recommended by the Board and established
by the Secretary.
5. Section 982.30, is amended by revising paragraphs (a), (b)(1),
(b)(2), and (b)(3) to read as follows:
Sec. 982.30 Establishment and membership.
(a) There is hereby established a Hazelnut Marketing Board
consisting of 10 members, each of whom shall have an alternate member,
to administer the terms and provisions of this part. Each member and
alternate shall meet the same eligibility qualifications. The 10 member
positions shall be allocated as follows:
(b) * * *
(1) One member shall be nominated by the handler who handled the
largest volume of hazelnuts during the two marketing years preceding
the marketing year in which nominations are made;
(2) One member shall be nominated by the handler who handled the
second largest volume of hazelnuts during the two marketing years
preceding the marketing year in which nominations are made;
(3) One member shall be nominated by the handler who handled the
third largest volume of hazelnuts during the two marketing years
preceding the
[[Page 55336]]
marketing year in which nominations are made;
* * * * *
6. In Sec. 982.32, paragraphs (a), (b), (c) and (f) are revised to
read as follows:
Sec. 982.32 Initial members and nomination of successor members.
(a) Members and alternate members of the Board serving immediately
prior to the effective date of this amended subpart shall continue to
serve on the Board until their respective successors have been
selected.
(b) Nominations for successor handler members and alternate members
specified in Sec. 982.30(b)(1) through (3) shall be made by the
largest, second largest, and third largest handler determined according
to the tonnage of certified merchantable hazelnuts and, when shelled
hazelnut grade and size regulations are in effect, the inshell
equivalent of certified shelled hazelnuts (computed to the nearest
whole ton) recorded by the Board as handled by each such handler during
the two marketing years preceding the marketing year in which
nominations are made.
(c) Nominations for successor handler member and alternate handler
member positions specified in Sec. 982.30(b)(4) shall be made by the
handlers in that category by mail ballot. All votes cast shall be
weighted according to the tonnage of certified merchantable hazelnuts
and, when shelled hazelnut grade and size regulations are in effect,
the inshell equivalent of certified shelled hazelnuts (computed to the
nearest whole ton) recorded by the Board as handled by each handler
during the two marketing years preceding the marketing year in which
nominations are made. If less than one ton is recorded for any such
handler, the vote shall be weighted as one ton. Voting will be by
position, and each eligible handler can vote for a member and an
alternate member. The person receiving the highest number of weighted
votes for each position shall be the nominee for that respective
position.
* * * * *
(f) Nominations received in the foregoing manner by the Board for
all handler and grower member and alternate member positions shall be
certified and sent to the Secretary at least 60 days prior to the
beginning of each two-year term of office, together with all necessary
data and other information deemed by the Board to be pertinent or
requested by the Secretary. If nominations are not made within the time
and manner specified in this subpart, the Secretary may, without regard
to nominations, select the Board members and alternates on the basis of
the representation provided for in this subpart.
* * * * *
7. In Sec. 982.33, paragraph (b) is revised to read as follows:
Sec. 982.33 Selection and term of office.
* * * * *
(b) Term of office. The term of office of Board members and their
alternates shall be for two years beginning on July 1 and ending on
June 30, but they shall serve until their respective successors are
selected and have qualified: Provided, That beginning with the 1996-97
marketing year, no member shall serve more than three consecutive two-
year terms as member and no alternate member shall serve more than
three consecutive two-year terms as alternate unless specifically
exempted by the Secretary. Nomination elections for all Board grower
and handler member and alternate positions shall be held every two
years.
* * * * *
8. In Sec. 982.37, paragraph (b) is revised to read as follows:
Sec. 982.37 Procedure.
* * * * *
(b) The Board may vote by mail, telephone, telegraph, or other
means of communication: Provided, That any votes (except mail votes) so
cast shall be confirmed at the next regularly scheduled meeting. When
any proposition is submitted for voting by any such method, its
adoption shall require 10 concurring votes.
* * * * *
9. In Sec. 982.39, paragraph (i) is revised to read as follows:
Sec. 982.39 Duties.
* * * * *
(i) To furnish to the Secretary a report of the proceedings of each
meeting of the Board held for the purpose of making marketing policy
recommendations.
Sec. 982.40 [Amended]
10. In Sec. 982.40, paragraph (c)(2) introductory text is amended
by removing the word ``shall'' in the third sentence and adding in its
place the word ``may''.
11. Section 982.46 is amended by revising paragraph (b) to read as
follows:
Sec. 982.46 Inspection and certification.
* * * * *
(b) All hazelnuts so inspected and certified shall be identified as
prescribed by the Board. Such identification shall be affixed to the
hazelnut containers by the handler under direction and supervision of
the Board or the Federal-State Inspection Service, and shall not be
removed or altered by any person except as directed by the Board.
* * * * *
Sec. 982.51 [Amended]
12. In Sec. 982.51, paragraph (a) is amended by removing the word
``percent'' at the end of the first sentence.
13. Section 982.52 is amended by revising paragraph (b) to read as
follows:
Sec. 982.52 Disposition of restricted hazelnuts.
* * * * *
(b) Export. Sales of certified merchantable restricted hazelnuts
for shipment to destinations outside the continental United States and
such other distribution areas as may be recommended by the Board and
established by the Secretary shall be made only by the Board. Any
handler desiring to export any part or all of that handler's certified
merchantable restricted hazelnuts shall deliver to the Board the
certified merchantable restricted hazelnuts to be exported, but the
Board shall be obligated to sell in export only such quantities for
which it may be able to find satisfactory export outlets. Any hazelnuts
so delivered for export which the Board is unable to export shall be
returned to the handler delivering them. Sales for export shall be made
by the Board only on execution of an agreement to prevent exportation
into the area designated in Sec. 982.16. A handler may be permitted to
act as an agent of the Board, upon such terms and conditions as the
Board may specify, in negotiating export sales, and when so acting
shall be entitled to receive a selling commission as authorized by the
Board. The proceeds of all export sales, after deducting all expenses
actually and necessarily incurred, shall be paid to the handler whose
certified merchantable restricted hazelnuts are so sold by the Board.
* * * * *
14. Section 982.54 is amended by revising paragraphs (b), (c), (d),
(e) and (f) to read as follows:
Sec. 982.54 Deferment of restricted obligation.
* * * * *
(b) Bonding requirement. Such bond or bonds shall, at all times
during their effective period, be in such amounts that the aggregate
thereof shall be no less than the total bonding value of the handler's
deferred restricted obligation. The bonding value shall be the deferred
[[Page 55337]]
restricted obligation poundage multiplied by the applicable bonding
rate. The cost of such bond or bonds shall be borne by the handler
filing same.
(c) Bonding rate. Said bonding rate shall be an amount per pound as
established by the Board. Such bonding rate shall be based on the
estimated value of restricted credits for the current marketing year.
Until bonding rates for a marketing year are fixed, the rates in effect
for the preceding marketing year shall continue in effect. The Board
should make any necessary adjustments once such new rates are fixed.
(d) Restricted credit purchases. Any sums collected through default
of a handler on the handler's bond shall be used by the Board to
purchase restricted credits from handlers, who have such restricted
credits in excess of their needs, and are willing to part with them.
The Board shall at all times purchase the lowest priced restricted
credits offered, and the purchases shall be made from the various
handlers as nearly as practicable in proportion to the quantity of
their respective offerings of the restricted credits to be purchased.
(e) Unexpended sums. Any unexpended sums which have been collected
by the Board through default of a handler on the handler's bond,
remaining in the possession of the Board at the end of a marketing
year, shall be used to reimburse the Board for its expenses, including
administrative and other costs incurred in the collection of such sums,
and in the purchase of restricted credits as provided in paragraph (d)
of this section.
(f) Transfer of restricted credit purchases. Restricted credits
purchased as provided for in this section shall be turned over to those
handlers who have defaulted on their bonds for liquidation of their
restricted obligation. The quantity delivered to each handler shall be
that quantity represented by sums collected through default.
* * * * *
15. In Sec. 982.57, paragraph (b) is revised to read as follows:
Sec. 982.57 Exemptions.
* * * * *
(b) Sales by growers direct to consumers. Any hazelnut grower may
sell hazelnuts of such grower's own production free of the regulatory
and assessment provisions of this part if such grower sells such
hazelnuts in the area of production directly to end users at such
grower's ranch or orchard or at roadside stands and farmers' markets.
The Board, with the approval of the Secretary, may establish such
rules, regulations, and safeguards and require such reports,
certifications, and other conditions, as are necessary to ensure that
such hazelnuts are disposed of only as authorized. Mail order sales are
not exempt sales under this part.
16. Section 982.58 is amended by revising the last sentence of
paragraph (a) to read as follows:
Sec. 982.58 Research, promotion, and market development.
(a) * * * The expenses of such projects shall be paid from funds
collected pursuant to Sec. 982.61, Sec. 982.63, or credited pursuant to
paragraph (b) of this section.
* * * * *
17. Section 982.61 is amended by designating the current text as
paragraph (a) and by adding a new paragraph (b) to read as follows:
Sec. 982.61 Assessments.
(a) * * *
(b) In order to provide funds for the administration of the
provisions of this part during the first part of a fiscal period before
sufficient operating income is available from assessments on the
current year's shipments, the Board may accept the payment of
assessments in advance, and may also borrow money for such purpose.
Further, payment discounts may be authorized by the Board upon the
approval of the Secretary to handlers making such advance assessment
payments.
18. A new Sec. 982.63 is added to read as follows:
Sec. 982.63 Contributions.
The Board may accept voluntary contributions but these shall only
be used to pay expenses incurred pursuant to Sec. 982.58. Furthermore,
such contributions shall be free from any encumbrances by the donor and
the Board shall retain complete control of their use.
[FR Doc. 95-26788 Filed 10-30-95; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 95-26373 Requirements for Approval of Flame-Resistant Conveyor Belts
[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Proposed Rules]
[Pages 55353-55354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26373]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 14, 18, and 75
RIN 1219-AA92
Requirements for Approval of Flame-Resistant Conveyor Belts
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Proposed rule; reopening of the record; request for public
comment.
-----------------------------------------------------------------------
SUMMARY: The Mine Safety and Health Administration (MSHA) is reopening
the rulemaking record to receive additional test data, technical
information, and further comment on proposed revisions to its
regulations for the approval of flame-resistant conveyor belts for use
in underground coal mines. After the close of the public record, some
commenters indicated to MSHA that they had obtained or would be
obtaining flame test data and technical
[[Page 55354]]
information which MSHA should review and evaluate. This new information
is relevant to MSHA's proposed rule and the Agency's technical
assessment of other flammability test data. Also, MSHA has placed the
Agency's response to questions from certain commenters in the
rulemaking record for public review.
DATES: Written material and comments must be submitted by December 15,
1995.
ADDRESSES: Send written comments to MSHA; Office of Standards,
Regulations, and Variances; 4015 Wilson Boulevard, Room 631; Arlington,
VA 22203. Commenters are encouraged to submit comments on a computer
disk along with a hard copy.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director; Office
of Standards, Regulations, and Variances; 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Background
On December 24, 1992, MSHA published a proposed rule (57 FR 61524)
to implement new procedures and requirements for testing and approval
of flame-resistant conveyor belts and requirements for their use in
underground coal mines. The proposed revision would replace the
existing flame test for acceptance of flame-resistant belts specified
in Agency regulations. The comment period on the proposed rule closed
on March 26, 1993. Several commenters requested that the Agency hold a
public hearing on its proposal. The comment period on the proposed rule
was reopened until April 21, 1995, and on May 2, 1995, MSHA held a
public hearing in Washington, PA (60 FR 16589, March 31, 1995). The
post-hearing comment period closed on June 5, 1995.
II. Issues
Following the close of the post-hearing comment period, a
manufacturer indicated that additional flammability testing of conveyor
belts was scheduled using the Factory Mutual conveyor belt flammability
test (FM test) and invited MSHA to witness that testing. To avoid
participation in testing where all parties to the rulemaking were not
invited, and because the record was closed, MSHA neither witnessed
these tests nor received the results of this testing. Another
manufacturer also requested that MSHA accept additional flammability
test data generated from the FM test that were not available during the
comment period.
Also, in the comments submitted during the post hearing comment
period, the United Mine Workers of America (UMWA) and the Bituminous
Coal Operators' Association (BCOA) jointly submitted 10 questions to
MSHA. MSHA's response is being placed in the rulemaking record and is
available to the public from MSHA, Office of Standards, Regulations,
and Variances.
MSHA is reopening the record for 45 days to provide all interested
parties an opportunity to review the record and to submit additional
data, test results, and technical information. MSHA encourages all
interested parties to submit comments prior to the close of the record.
Dated: October 18, 1995.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 95-26373 Filed 10-24-95; 8:45 am]
BILLING CODE 4510-43-P
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