issue-1994-01-06•Federal Register final rules — 1994-01-06
Federal Register final rules — 1994-01-06
issue-1994-01-06Federal Register final rules — 1994-01-06Regulation
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FR Doc. 94-69 Advanced Technology Program
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 663-670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-69]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF COMMERCE
Technology Administration
15 CFR Part 295
[Docket No. 930242-3313]
RIN 0693-AA83
Advanced Technology Program
AGENCY: National Institute of Standards and Technology, Commerce.
ACTION: Final rule.
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SUMMARY: The National Institute of Standards and Technology (NIST) is
today issuing a final rule which amends the implementing regulations
for the Advanced Technology Program (ATP). A number of the revisions
are required by the American Technology Preeminence Act of 1992,
including provisions on: participation by foreign companies in ATP; the
establishment of a patent policy different from the government-wide
policy set out by the Bayh-Dole Act; and a new requirement that ``joint
research and development ventures'' be industry-led. Further,
requirements for royalty-sharing by ATP recipients with the Federal
government for inventions funded under ATP have been repealed by the
Act, and are thus removed from the regulations. Similarly, ATP
authority to provide direct funding to independent research
organizations has been repealed. Also, changes not required by the Act
are made, including changes to simplify and clarify the selection
criteria, and to streamline the internal operations of ATP, including
the selection process.
EFFECTIVE DATE: This rule is effective on January 6, 1994.
FOR FURTHER INFORMATION CONTACT:
George A. Uriano or Brian C. Belanger, Advanced Technology Program,
National Institute of Standards and Technology (NIST), telephone number
(301) 975-5187.
SUPPLEMENTARY INFORMATION: The National Institute of Standards and
Technology is today issuing a final rule which amends regulations found
at part 295 of title 15 of the Code of Federal Regulations, which
implement the Advanced Technology Program (ATP). The Advanced
Technology Program assists United States businesses to carry out high-
risk research and development that will, if successful, improve the
competitive position of the United States and its businesses by
accelerating the development of technologies that have significant
potential to stimulate economic growth, and raise productivity. ATP
enters into cooperative agreements with United States joint research
and development ventures and United States businesses, especially small
businesses. Where appropriate, Federal laboratories may be involved in
ATP projects consistent with other authority, such as cooperative
research and development agreements under section 12 of the Stevenson-
Wydler Technology Innovation Act of 1980.
Description of the Changes
Changes to part 295 include revisions on the following topics
(please see the analysis of comments below for additional details):
The eligibility of foreign firms to participate in ATP is
addressed in a new section 295.3 of the regulations, and a related
definition of ``United States owned company'' is added in section
295.2(r). These revisions follow the requirements of section 201(c)(6)
of the American Technology Preeminence Act of 1991 (15 U.S.C.
278n(d)(9)).
The establishment of a patent policy different from the
government-wide policy set out by the Bayh-Dole Act (Pub. L. 96-517, as
amended) is set out at section 295.8(a). These revisions follow the
requirements of section 201(c)(6) of the American Technology
Preeminence Act of 1991 (15 U.S.C. 278n(d)(11)). That statute requires
that title to inventions made in whole or part with Program funds
reside with for-profit companies that have been incorporated in the
United States. Entities that are not for-profit organizations
incorporated in this country are not eligible to obtain title to
inventions made under the Program.
A new requirement that ``joint research and development
ventures'' be industry-led, set out at Secs. 295.2(i) and 295.21, and
the repeal of ATP authority to provide direct funding to independent
research organizations, set out at Sec. 295.30. These revisions follow
the requirements of section 201(c)(2) and section 201(c)(4),
respectively, of the American Technology Preeminence Act of 1991 (15
U.S.C. 278n(b)(1) and (b)(2)).
Requirements for royalty-sharing by ATP recipients with
the Federal government for inventions funded under ATP have been
repealed, and are thus removed from existing Sec. 295.7(c) of the
regulations. This revision follows the requirements of section
201(c)(6) of the American Technology Preeminence Act of 1991.
Finally, changes not required by the Act are made to the
selection criteria, and to the internal operations of ATP, including
the selection process. These changes particularly include revisions to
the remaining definitions in Sec. 295.2, changes to the selection
process described in Secs. 295.4 and 295.5, changes to the selection
criteria as set out in Sec. 295.6, and changes to program
administration found in Secs. 295.7 and 295.14.
Summary of Comments
On August 2, 1993, the Technology Administration published a notice
of proposed rulemaking in the Federal Register (55 FR 41069). In
response to this notice forty-four letters were received; twenty-nine
from universities, ten from other not-for-profit research organizations
and industry associations, one from a state agency, one from a U.S.-
owned for-profit company, one from a U.S. subsidiary of a foreign-owned
corporation, one from a member of the U.S. House of Representatives,
and one from a member of the NIST staff.
All but four of the forty-four respondents, including all twenty-
nine from universities and all ten from other not-for-profit
organizations, commented on the proposed revision to the treatment of
patent rights found in Sec. 295.8. An additional two dozen comments
were received concerning proposed changes to the proposed definitions
set out in Sec. 295.2. The remaining comments were scattered among
several sections, including: five concerning new Sec. 295.14, which
deals with special financial reporting requirements; three on the
revisions to the selection criteria found in Sec. 295.5; two on the use
of abbreviated proposals proposed in Sec. 295.5; and one each on the
provisions on the eligibility and qualification of applicants found in
Secs. 295.3 and 295.31. No comments were received in response to
proposed changes to the following: Sec. 295.1, pertaining to the
purpose of the regulation; Sec. 295.4, the selection process;
Sec. 295.7, pertaining to notices of availability of funds;
Sec. 295.21, on qualification of applicants; Sec. 295.22, dealing with
limitations on assistance; Sec. 295.24, concerning registration under
the antitrust laws; and Sec. 295.30, which describes the types of
assistance available.
The following is a section-by-section description of the comments
received by NIST, and NIST's response to those comments.
Section 295.2 Definitions--Comment Summary (24 Comments)
Twenty-three respondents, all universities or other nonprofit
organizations, questioned whether the definition of ``United States-
owned company'' found in Sec. 295.2(r) of the proposed rule reflected
the actual intent of Congress as stated in the American Technology
Preeminence Act of 1991. The definition of United States-owned company
set out in Sec. 295.2(r) is used in section 295.8 to determine
eligibility to obtain title to inventions arising from assistance under
ATP. A consolidated analysis of the issues raised by Sec. 295.2(r) and
295.8 is presented in the discussion of Sec. 295.8 later in this
notice, and the reader is asked to refer to that discussion.
In addition to the issue described above, one respondent questioned
the exclusion (by omission) of independent research and development
(IR&D) costs in the definition of matching funds found in
Sec. 295.2(1). IR&D funds are generally generated through contracts
funded by the federal government. The financial assistance regulations
which are applicable to ATP awards, and particularly Attachment E to
OMB Circular A-110, prohibit the use of federal funds as cost share or
match unless specifically authorized by federal law. The rule follows
closely the wording of the 1988 legislation and hence cannot be changed
without congressional action. The purpose of the limitations on
qualified matching funds is to obtain a meaningful and significant
commitment of company resources towards ATP objectives, including
support to additional R&D beyond that which would have occurred without
the ATP award.
Section 295.3 Eligibility of United States and foreign-owned
businesses--(1 Comment)
One U.S. subsidiary of a foreign-owned company requested that both
eligibility requirements and cancellation requirements for foreign-
owned applicants be made clearer and that they be consistent with
present law and with H.R. 820. In response, NIST notes that H.R. 820 is
not law, but rather is pending legislation in the Congress. NIST cannot
base changes in rules upon proposed legislation that has not been
enacted.
Section 295.5 Use of Abbreviated Proposals in the Selection Process--
(2 Comments)
Two respondents endorsed the use of abbreviated proposals. One
respondent further proposed that abbreviated proposals address, and
thus be evaluated on, scientific and technical criteria only. NIST has
determined that business and economic factors are important factors in
assessing the potential for success of a proposed project, and
therefore must be considered in addition to the scientific and
technical merit of the proposal.
Section 295.6 Criteria for Selection--(3 Comments)
Two respondents endorsed the increased emphasis on ``scientific and
technical merit'', one of whom suggested increasing its weight further
to 40 percent. Another respondent took issue with the reduced weight
for two proposers ``level of commitment'' and suggested increasing the
weight for the ``commitment'' criteria to 30 percent by eliminating
``experience and qualifications'' as a separate criteria.
In response to these comments, Sec. 295.5 has been modified to
increase the weight of the ``level of commitment'' to 20 percent, the
level that exists in the regulation as it was promulgated in 1990. The
weight given ``experience and qualifications'' has been reduced from 20
percent to 10 percent.
Section 295.8(a) Patent Rights--(40 Comments)
Forty comments were received concerning the proposed revision to
Sec. 295.8(a)(1), thirty-nine from universities and other nonprofit
organizations opposed to the proposal, and one from a business
supporting the proposal. Also, twenty-three of the thirty-nine
commentors described above objected to the definition of ``United
States-owned company'' found in Sec. 295.2(r) of the proposed rule.
The term ``United States-owned company'' defined in Sec. 295.2(r)
is used in Sec. 295.8(a)(1) to determine who is eligible to obtain
title inventions arising from assistance under ATP. The definition
states that an entity must be organized for profit-making purposes to
be deemed a United States-owned company, and Sec. 295.8(a)(1) states
that only United States-owned companies may take title to inventions
arising under the ATP. Taken together, the two sections prevent
universities and other nonprofit organizations from obtaining title to
inventions arising under the ATP.
The thirty-nine universities and nonprofit commentors are strongly
opposed to this outcome. The following objection is typical: ``The ATP
legislation enables universities to participate in research funded
through the program, and (we have) taken advantage of the opportunity
to do so. However, the problem is that NIST has interpreted the ATP
legislation to exclude universities from ownership of intellectual
property resulting from ATP funded research.''
In the view of NIST, the decision to prevent universities and other
nonprofit organizations from taking title to inventions is embedded in
statute, and NIST has no alternative but to follow the law as it
presently is written. As a result of comments received from both for-
profit and nonprofit organizations, NIST recognizes that one ingredient
for the successful implementation of joint ventures under ATP is a
flexible patent policy. The participants in ATP joint ventures need the
flexibility to determine for themselves the best means of
commercializing the technology they develop. This, in turn, requires
the flexibility to allocate intellectual property rights as the joint
ventures best see fit. Accordingly, NIST is working with the Congress
in an attempt to enact a patent policy for ATP that leaves the
decisions on patent ownership to joint venture members. Should a change
in the law be enacted, NIST would immediately implement it. In that
case, NIST would rely on the ATP proposal evaluation criteria to assess
the probability of subsequent commercialization based on the proposed
intellectual property rights arrangement.
Section 201(c)(6) of the American Technology Preeminence Act of
1991 (15 U.S.C. 278n(d)(11)) states that intellectual property rights
developed under ATP ``shall vest in a company or companies incorporated
in the United States.'' In reaching the conclusion that the term
``company or companies'' refers to profit-making entities, NIST has
been guided by the broader context of changes made to the ATP by the
American Technology Preeminence Act. NIST believes that it was the
intent of Congress to provide title to inventions directly to U.S.
companies as the most effective means of assuring that research results
enter the marketplace rapidly, and in the way most beneficial to United
States businesses. In this context, NIST notes that the Act contains a
new requirement that ``joint research and development ventures'' funded
by ATP must be industry-led. NIST also notes the repeal of ATP
authority to provide direct funding to nonprofit independent research
organizations. (See sections 201(c)(2) and section 201(c)(4),
respectively, of the American Technology Preeminence Act of 1991 (15
U.S.C. 278n(b)(1) and (b)(2)).
Thus, NIST believes that the only reasonable reading of section
201(c)(6) is to interpret the term ``United States-owned company'' as
referring to businesses, and specifically, to for-profit entities.
Section 295.8 (b) and (c) Copyright and Publication--(24 Comments)
A number of universities have expressed fear that the new ATP rules
will prevent universities or their employees from copyrighting their
works. The fear is also raised that the ATP rule will require
universities to get the permission of their for-profit collaborators
before publishing their research findings. In response, NIST notes that
the parts of the ATP rule dealing with the questions raised by these
comments on copyright and publication were not proposed to be
substantively changed in the Federal Register notice of August 2, 1993.
In the old rule, the provision on copyright was found in Sec. 295.5(b),
and the treatment of publication of research results was found at
Sec. 295.8(d). In the new rule, the provision on copyright is found in
Sec. 295.8(b), and the treatment of publication of research results is
at Sec. 295.8(c).
Except for renumbering, the only change that NIST proposed for the
old Sec. 295.5(b) concerned the governmental use license that each ATP
funding recipient is required to provide to NIST for any copyrighted
data first produced in the performance of the ATP award. The scope of
the governmental use license has been truncated by deleting the
authority of the government to distribute computer programs first
produced in the performance of the ATP award to users in the United
States. The ability of funding recipients to copyright the works of
their employees remains unchanged. Both the old and new versions of the
ATP regulation state that ``funding recipients'' can copyright works
made under ATP. Universities that receive funds under ATP are ``funding
recipients''. They are funding recipients if they are members of joint
ventures. They are funding recipients if they are subcontractors.
Universities get copyright. Accordingly, no change is made to
Sec. 295.8(c) of the regulation based upon the comments described
above.
Except for renumbering, the only change that NIST proposed for the
old Sec. 295.5(d) was to delete the first part of the first sentence.
That sentence originally read: ``Although the program will encourage
the timely publication of research results by funding recipients, the
decision on whether to publish or not will be made by the funding
recipient(s).'' In the proposed revision, the sentence was revised to
read simply ``The decision on whether to publish or not will be made by
the funding recipient(s).'' NIST believes that the regulation is very
clear that the decision to publish shall be made by negotiated
agreement of the funding recipients and that the for-profit members of
a joint venture will not be able to dictate to universities on this
matter. This provision has been part of every ATP award made since
1990, and no difficulties have arisen under it. Accordingly, no change
is made to section 295.8(c) of the proposed regulation based upon the
comments described above.
Section 295.14 Special Financial Reporting--(5 Comments)
Two universities and three other not-for-profit organizations
commented on proposed section 295.14, which would increase the
flexibility of financial reporting requirements and encourage award
recipients to retain independent CPA firms to perform audit services,
while reserving the right of the Department of Commerce's Office of the
Inspector General to determine the timing and nature of these services,
and to conduct its own audit. The comments suggested a need for greater
specificity as to the applicable OMB regulations which might apply and
the conditions under which the Departmental Inspector General would
exercise his authority in setting the time frame and scope of audit
services.
In response, the regulations have been amended to state that the
audit principles to be applied to ATP awards are the Generally Accepted
Accounting Principles (GAAP) according to the General Accounting
Office's ``Government Auditing Standards'' subtitled ``Standards for
Auditing Government Organization, Program, Activities and Functions''.
Clarifying changes have also been made to the definitions of ``direct
costs'' found at Sec. 295.2(c) and ``indirect costs'' found at
Sec. 295.2(h).
Section 295.31 Qualification of Applicants--(1 Comment)
One respondent urged that state and local governments and U.S.
universities and non-profit research institutes working independently
should be eligible to receive individual ATP awards outside of joint
ventures. No change has been made to the regulation based upon this
comment because eligibility for individual awards is expressly limited
to United States companies by section 278n(b)(2) of title 15 of the
United States Code.
Effective Date of the Final Rule
This final rule relating to grants, benefits, and contracts is
exempt from the delayed effective date requirement, and accordingly,
under section 553(a)(2) of the Administrative Procedure Act (5 U.S.C.
553), is therefore being made effective immediately without a 30 day
delay in effective date.
Classification
This document was not reviewed by the Office of Management and
Budget under Executive Order 12866. The General Counsel certified to
the Chief Counsel for Advocacy, Small Business Administration, at the
time this rule was proposed that, if it were adopted as proposed it
would not have a significant economic effect on a substantial number of
small entities requiring a flexibility analysis under the Regulatory
Flexibility Act. This is because there are only a small number of
awardees and thus only a small number of awards will be given to small
businesses. The program is entirely voluntary for the participants that
seek funding. It is not a major federal action requiring an
environmental assessment under the National Environment Policy Act.
This rule contains collection of information requirements subject to
the Paperwork Reduction Act approved by OMB under control number 0693-
0009. The Advanced Technology Program does not involve the mandatory
payment of any matching funds from a state or local government, and
does not affect directly any state or local government. Accordingly,
the Technology Administration has determined that Executive Order 12372
is not applicable to this program. This notice does not contain
policies with Federalism implications sufficient to warrant preparation
of a Federalism assessment under Executive Order 12612.
List of Subjects in 15 CFR Part 295
Inventions and patents, Laboratories, Research, Science and
technology, Scientists.
Dated: December 27, 1993.
Arati Prabhakar,
Director.
For reasons set forth in the preamble, title 15, part 295 of the
Code of Federal Regulations is amended as follows:
PART 295--ADVANCED TECHNOLOGY PROGRAM
1. The authority citation for part 295 is revised to read as
follows:
Authority: 15 U.S.C. 278n.
2. Section 295.1 is revised to read as follows:
Sec. 295.1 Purpose.
(a) The purpose of the Advanced Technology Program (ATP) is to
assist United States businesses to carry out research and development
on pre-competitive generic technologies. These technologies are: (1)
Enabling, because they offer wide breadth of potential application and
form an important technical basis for future commercial applications;
and (2) high value, because when applied, they offer significant
benefits to the U.S. economy. Precompetitive technology is defined in
Sec. 295.2(n) and generic technology is defined in Sec. 295.2(e).
(b) In the case of joint research and development ventures
involving potential competitors, the willingness of firms to commit
significant amounts of corporate resources to the venture is evidence
that the proposed research and development is precompetitive. For joint
ventures that involve firms and their customers or suppliers or for
single firms not proposing cooperative research and development, a
quantified description of the expected broad applicability of the
technology and adequate assurances that the technology being developed
will be utilized widely can provide evidence that the proposed research
and development is pre-competitive.
(c) These rules prescribe policies and procedures for the award of
cooperative agreements under the advanced Technology Program in order
to ensure the fair treatment of all proposals. While the Advanced
Technology Program is authorized to enter into grants, competitive
agreements, and contracts to carry out its mission, these rules address
only the award of cooperative agreements. The Program employs
cooperative agreements rather than grants because such agreements allow
ATP to exercise appropriate management oversight of projects and also
to link ATP-funded projects to ongoing R&D at the National Institute of
Standards and Technology wherever such linkage would increase the
likelihood of success of the project.
3. Section 295.2 is amended by revising paragraph (a),
redesignating paragraphs (d) through (i) as paragraphs (k) through (p),
redesignating paragraph (b) as paragraph (e) , redesignating paragraph
(c) as paragraph (h), and adding new paragraphs (b), (c), (d), (f),
(g), (i), and (j) to read as follows:
Sec. 295.2 Definitions.
(a) For the purposes of the ATP, the term award means Federal
financial assistance made under a grant or cooperative agreement.
* * * * *
(b) The term cooperative agreement refers to a Federal assistance
instrument used whenever the principal purpose of the relationship
between the Federal Government and the recipient is the transfer of
money, property, or services, or anything of value to the recipient to
accomplish a public purpose of support or stimulation authorized by
Federal statute, rather than acquisition by purchase, lease, or barter,
of property or services for the direct benefit or use of the Federal
Government; and substantial involvement is anticipated between the
executive agency, acting for the Federal Government, and the recipient
during performance of the contemplated activity.
(c) The term direct costs means costs that can be identified
readily with activities carried out in support of a particular final
objective. Because of the diverse characteristics and accounting
practices of different organizations, it is not possible to specify the
types of costs which may be classified as direct costs in all
situations. However, typical direct costs could include salaries of
personnel assigned to the ATP project and associated normal fringe
benefits such as medical insurance. Direct costs might also include
supplies and materials, special equipment required specifically for the
ATP project, and travel associated with the ATP project. ATP shall
interpret direct costs in accordance with 48 CFR part 31 or OMB
Circular A-122, attachment B.
(d) The term foreign-owned company means a company other than a
United States-owned company as defined in Sec. 295.2(r).
* * * * *
(f) The term grant means a Federal assistance instrument used
whenever the principal purpose of the relationship between the Federal
Government and the recipient is the transfer of money, property,
services, or anything of value to the recipient in order to accomplish
a public purpose of support or stimulation authorized by Federal
statute, rather than acquisition by purchase, lease, or barter, of
property or services for the direct benefit or use of the Federal
Government; and no substantial involvement is anticipated between the
executive agency, acting for the Federal Government, and the recipient
during performance of the contemplated activity.
(g) The term independent research organization (IRO) means a
nonprofit research and development corporation or association organized
under the laws of any state for the purpose of carrying out research
and development on behalf of other organizations.
* * * * *
(i) The term industry-led joint research and development venture
means a joint research and development venture that consists of at
least two separately-owned businesses that contribute matching funds to
the project, perform research and development in the project, and
control the venture's membership, research directions and funding
priorities. The venture may include additional companies, independent
research organizations, universities, and/or government laboratories
which may or may not contribute funds to the project and perform
research and development. An independent research organization may
perform administrative tasks on behalf of an industry-led joint
research and development venture, such as handling receipts and
disbursements of funds and making antitrust filings.
(j) The term intellectual property means an invention patentable
under title 35, United States Code, or any patent on such an invention.
* * * * *
4. The newly designated Sec. 295.2(h) is revised to read as
follows:
Sec. 295.2 Definitions.
* * * * *
(h) The term indirect costs means those costs incurred for common
or joint objectives that cannot be readily identified with activities
carried out in support of a particular final objective. A cost may not
be allocated to an award as an indirect cost if any other cost incurred
for the same purpose in like circumstances has been assigned to an
award as a direct cost. Because of diverse characteristics and
accounting practices it is not possible to specify the types of costs
which may be classified as indirect costs in all situations. However,
typical examples of indirect costs include general administration and
general expenses, such as the salaries and expenses of executive
officers, personnel administration, maintenance, library expenses, and
accounting. ATP shall interpret indirect costs in accordance with 48
CFR part 31 or OMB Circular A-122, Attachment C.
5. The newly designated Sec. 295.2(k)(1)(v) is revised and
(k)(1)(vi) is added, to read as follows:
Sec. 295.2 Definitions.
* * * * *
(k)(1) * * *
* * * * *
(v) The production of any product, process, or service; or
(vi) any combination of the purposes specified in paragraphs
(k)(1), (i), (ii), (iii), (iv) and (v) of this section, and may include
the establishment and operation of facilities for the conducting of
research, the conducting of such venture on a protected and proprietary
basis, and the prosecuting of applications for patents and the granting
of licenses for the results of such venture, but does not include any
activity specified in paragraph (k)(2) of this definition.
* * * * *
6. The newly designated Sec. 295.2(l) is revised to read as
follows:
Sec. 295.2 Definitions.
* * * * *
(l) The term matching funds includes the following: (1) Dollar
contributions from state, county, city, company, or other non-federal
sources; (2) in-kind contributions of full-time personnel (i.e.,
persons employed full time by the joint venture or one of the joint
venture members); (3) in-kind contributions of a pro-rata share of
part-time personnel that the Program deems essential to carrying out
the proposed experimental work program and who devote at least 50% of
their time to the program; and (4) in-kind value of equipment that the
Program deems essential to carrying out the proposed experimental work
program, which may include either the purchase cost of new equipment or
the depreciated value of previously purchased equipment. The
depreciation method to be used for the matching fund determination
shall be the internal depreciation accounting method used by the
applicant for that equipment prior to the award. The value of equipment
will be further pro-rated according to the share of total use dedicated
to carrying out the proposed ATP work program. The total value of
equipment expenditures allowable under the match may be applied in the
award year expended or pro-rated over the duration of award years. The
total in-kind value of equipment expenditures can not exceed 30% of the
applicant's total annual share of matching funds. The total in-kind
value of part-time personnel can not exceed 20% of the applicant's
total annual share of matching funds.
* * * * *
7. The newly designated Sec. 295.2(p) is revised to read as
follows:
Sec. 295.2 Definitions.
* * * * *
(p) The term Secretary means the Secretary of Commerce or the
Secretary's designee.
8. Section 295.2 is amended by adding paragraphs (q) through (r) to
read as follows:
Sec. 295.2 Definitions.
* * * * *
(q) The term small business means a business that is independently
owned and operated, is organized for profit, and is not dominant in the
field of operation in which it is proposing, and meets the other
requirements found in 13 CFR part 121.
(r) The term United States-owned company means a for-profit
organization, including sole proprietors, partnerships, or
corporations, that has a majority ownership or control by individuals
who are citizens of the United States.
Secs. 295.3-295.10 [Redesignated as Secs. 295.6-295.13]
9. Sections 295.3 through 295.10 are redesignated as Secs. 295.6
through 295.13, and newly designated Secs. 295.3 through 295.5 are
added to read as follows:
Sec. 295.3 Eligibility of United States- and foreign-owned businesses.
(a) A company shall be eligible to receive an award from the
Program only if:
(1) The Program finds that the company's participation in the
Program would be in the economic interest of the United States, as
evidenced by investments in the United States in research, development,
and manufacturing (including, for example, the manufacture of major
components or subassemblies in the United States); significant
contributions to employment in the United States; and agreement with
respect to any technology arising from assistance provided by the
Program to promote the manufacture within the United States of products
resulting from that technology (taking into account the goals of
promoting the competitiveness of United States industry), and to
procure parts and materials from competitive suppliers; and
(2) Either the company is a United States-owned company, or the
Program finds that the company is incorporated in the United States and
has a parent company which is incorporated in a country which affords
to United States-owned companies opportunities, comparable to those
afforded to any other company, to participate in any joint venture
similar to those authorized under the Program; affords the United
States-owned companies local investment opportunities comparable to
those afforded to any other company; and affords adequate and effective
protection for the intellectual property rights of United States-owned
companies.
(b) The Program may, within 30 days after notice to Congress,
suspend a company or joint venture from continued assistance under the
Program if the Program determines that the company, the country of
incorporation of the company or a parent company, or the joint venture
has failed to satisfy any of the criteria contained in paragraph (a) of
this section, and that it is in the national interest of the United
States to do so.
Sec. 295.4 The selection process.
(a) The selection process for awards is a multi-step process based
on the criteria listed in Sec. 295.6. In the first step, called
``preliminary screening,'' proposals are eliminated that do not meet
the requirements of this rule or the program announcement. Typical but
not exclusive of the reasons for eliminating a proposal at this stage
is that the proposal: is deemed to have serious deficiencies in either
the technical or business plan; or does not meet the definition of
precompetitive, generic technology; or, is not industry-led; or is
significantly overpriced or underpriced given the scope of the work; or
does not meet the requirements set out in the Notice of Availability of
Funds issued pursuant to Sec. 295.7; or in the case of joint ventures,
requests more than a minority share of funding. NIST will also examine
proposals that have been submitted to a previous competition to
determine whether substantive revisions have been made to the earlier
proposal, and if not, may reject the proposal or forward it to a later
stage in the review process based upon the earlier review.
(b) In the second step, referred to as the ``technical and business
review,'' proposals are evaluated under the criteria found in
Sec. 295.6. Proposals are rated as ``not recommended'' or
``recommended.'' Proposals must have high scientific and technical
merit to be recommended. Only those proposals rated as ``recommended''
are considered further. These applicants are referred to as
``semifinalists.''
(c) In the third step, referred to as ``selection of finalists,''
the Program prepares a final scoring and ranking of semifinalist
proposals. During this step, the semifinalist proposers may be asked to
make oral presentations on their proposals at NIST, and in some cases
site visits may be required. Subject to the provisions of Sec. 295.6, a
list of ranked finalists is submitted to the selecting official.
(d) In the final step, referred to as ``selection of awardees,''
the Selecting Official selects funding recipients from among the
finalists, based upon (1) the rank order of the applications on the
basis of all selection criteria (Sec. 295.6); (2) assuring an
appropriate distribution of funds among technologies and activities,
and (3) the availability of funds. The Program reserves the right to
withhold awards in any case where a search of Federal records discloses
information that raises a reasonable doubt as to the responsibility of
the applicant. The decision of the Selecting Official is final.
(e) If a joint venture is ranked as a finalist, but the Program
determines that the joint venture contains weaknesses in its structure
or cohesiveness that may substantially lessen the probability of the
proposed program being completed successfully, the Program may inform
the applicant of the deficiencies and enter into negotiations with the
applicant in an effort to remedy the deficiencies. If appropriate,
funding up to 10 percent of the amount originally requested by the
applicant may be awarded by the Program to the applicant to assist in
overcoming the organizational deficiencies. If the Program determines
within six months of this award that the organizational deficiencies
have been corrected, the Program may award the remaining funds
requested by the applicant to that applicant.
(f) NIST reserves the right to negotiate with applicants selected
to receive awards the cost and scope of the proposed work, e.g., to add
or delete a task to improve the probability of success.
Sec. 295.5 Use of abbreviated proposals in the selection process.
To reduce proposal preparation costs incurred by applicants and to
make the selection process more efficient, NIST may use a preliminary
qualification process based on abbreviated proposals. Announcements
requesting abbreviated proposals will be published as indicated in
Sec. 295.7, seeking proposals that address all of the selection
criteria, but in considerably less detail than full proposals. The
Program will review the abbreviated proposals and select those that
best meet the selection criteria. Submitters of abbreviated proposals
will be notified in writing whether their proposals are recommended for
full proposal, or, not recommended for full proposal. Those whose
proposals are recommended for full proposal submission will be invited
to prepare and submit full proposals. Those not invited to submit
proposals may nonetheless elect to do so, and will have an equal
opportunity for selection. When the full proposals are received, the
review and selection process will continue as described in Sec. 295.4.
10. Section 295.6 is revised to read as follows:
Sec. 295.6 Criteria for selection.
The evaluation criteria to be used in selecting any proposal for
funding under this program, and their respective weights, are listed in
this section. No proposal will be funded unless the Program determines
via the technical review that it has high scientific and technical
merit, no matter how meritorious the proposal might be with respect to
the other selection criteria.
(a) Scientific and Technical Merit of the Proposal (30 Percent)
(1) Quality, innovativeness, and cost-effectiveness of the proposed
technical program, i.e. uniqueness with respect to current industry
practice. Applicants shall compare and contrast their approaches with
those taken by other domestic and foreign companies working in the same
field.
(2) Appropriateness of the technical risk and feasibility of the
project; that is, is there a sufficient knowledge base to justify the
level of technical risk involved, and is the risk commensurate with the
potential payoff. Projects should press the state of the art while
still demonstrating feasibility.
(3) Coherency of technical plan and clarity of vision of technical
objectives, and the degree the technical plan meets Program goals.
(4) Adequacy of systems-integration and multi-disciplinary planning
including integration of appropriate downstream or upstream production,
manufacturing, quality assurance, and customer service requirements.
(5) Potential broad impact on U.S. technology and knowledge base.
(b) Potential Broad-based Economic Benefits of the Proposal (20
Percent)
(1) Potential to improve U.S. economic growth.
(2) Timeliness of proposal; that is, the potential project results
will not occur too late or too early to be competitively useful.
(3) Degree to which ATP support is essential for the achievement of
the broad-based benefits from the proposed R&D and appropriateness of
proposed R&D for ATP support. This factor takes into consideration the
likelihood of the results being achieved in the same general time frame
by the applicant or by other U.S. researchers without ATP support, and
whether other Federal agencies or other sponsors are already funding
very similar kinds of work.
(4) Cost-effectiveness of proposal.
(c) Adequacy of Plans for Eventual Commercialization (20 Percent)
(1) Evidence that if the project is successful, the applicants will
pursue further development of the technology toward commercial
application, either through their own organization(s) or through
others.
(2) Degree to which proposal identifies potential applications of
the technology and provides evidence that the applicant has credible
plans to assure prompt and widespread use of the technology if the R&D
is successful and to ensure adequate protection of the intellectual
property by the participant(s) and, as appropriate, by other U.S.
businesses.
(d) Proposer's Level of Commitment and Organizational Structure (20
Percent)
(1) Level of commitment of proposer as demonstrated by contribution
of personnel, equipment, facilities, and cost-sharing. Extent to which
the proposer assigns the company's best people to the project. Priority
given to this work vis-a-vis other projects.
(2) For joint ventures, the extent to which the joint venture has
been structured (vertical integration, horizontal integration, or both)
so as to include sufficient participants possessing all of the skills
required to complete successfully the proposed work.
(3) For joint ventures, appropriate participation by small
businesses. ``Small business'' is defined in Sec. 295.2(q).
(4) Appropriateness of subcontractor/supplier/collaborator
participation and relationships (where applicable).
(5) Clarity and appropriateness of management plan. Extent to which
the proposers have clarified who is responsible for each task, and the
chain of command. Extent to which those responsible for the work have
adequate authority and access to higher level management.
(e) Experience and Qualifications of the Proposing Organization (10
Percent)
(1) Adequacy of proposer's facilities, equipment, and other
technical, financial, and administrative resources to accomplish the
proposed program objectives. This factor includes consideration of
resources possessed by subcontractors to the applicant or other
collaborators.
(2) Quality and appropriateness of the technical staff to carry out
the proposed work program and to identify and overcome barriers to
meeting project objectives.
(3) Past performance of the company or joint venture members in
carrying out similar kinds of efforts successfully, including
technology application. Consideration of this factor in the case of a
start-up company or new joint venture, will take into account the past
performance of the key people in carrying out similar kinds of efforts.
11. Newly designated Sec. 295.7 is revised to read as follows:
Sec. 295.7 Notice of availability of funds.
(a) The Program shall publish at least annually a Federal Register
notice inviting interested parties to submit proposals, and may more
frequently publish invitations for proposals in the Commerce Business
Daily, based upon the annual notice. Potential applicants must request
a proposal preparation kit from the Program. Applications will only be
considered for funding when submitted in response to an invitation
published in the Federal Register, or a related announcement in the
Commerce Business Daily.
(b) All notices published in accord with Sec. 295.7(a) shall
include the amount of funds available, the approximate number of
awards, types of awards, closing dates, the name, address and telephone
number of the contact person, a requirement that proposals be submitted
with a NIST Form 1262 (for single applicants), or NIST Form 1263 (for
joint ventures), and any other appropriate guidance.
(c) Notices issued under Sec. 295.7(a) shall also state that awards
under the Program shall be subject to all Federal laws and Federal and
Departmental regulations, policies and procedures applicable to
financial assistance awards, and shall require that funds awarded by
the Program under subpart C (single applicants) shall be used only for
direct costs and not for indirect costs, profits, or management fees of
the funding recipients. Notices shall also include the notification
that section 319 of Public Law 101-121 prohibits recipients of Federal
contracts, grants, and loans from using appropriated funds for lobbying
the Executive or Legislative Branches of the Federal Government in
connection with a specific contract, grant, or loan.
12. Newly designated Sec. 295.8 is revised to read as follows:
Sec. 295.8 Intellectual property rights; Publication of research
results.
(a)(1) Patent rights: Title to inventions arising from assistance
provided by the Program must vest in a company or companies
incorporated in the United States. The United States may reserve a non-
exclusive, nontransferable, irrevocable paid-up license to practice or
have practiced for or on behalf of the United Sates any such
intellectual property, but shall not, in the exercise of such license,
publicly disclose proprietary information related to the license. Title
to any such intellectual property shall not be transferred or passed,
except to a company incorporated in the United States, until the
expiration of the first patent obtained in connection with such
intellectual property. Nothing in this paragraph shall be construed to
prohibit the licensing to any company of intellectual property rights
arising from assistance provided under this section.
(2) Patent procedures: Each award by the Program will contain
procedures regarding reporting of inventions by the funding recipient
to the Program; determinations by the Program as to whether it will
retain a governmental use license; march-in rights, and other matters.
(b) Copyrights: Except as otherwise specifically provided for in an
Award, funding recipients under the Program may establish claim to
copyright subsisting in any data first produced in the performance of
the award. When claim is made to copyright, the funding recipient shall
affix the applicable copyright notice of 17 U.S.C. 401 or 402 and
acknowledgment of Government sponsorship to the data when and if the
data are delivered to the Government, are published, or are deposited
for registration as a published work in the U.S. Copyright Office. The
funding recipient shall grant to the Government, and others acting on
its behalf, a paid up, nonexclusive, irrevocable, worldwide license for
all such data to reproduce, prepare derivative works, perform publicly
and display publicly, and for data other than computer software to
distribute to the public by or on behalf of the Government.
(c) Publication of research results: The decision on whether or not
to publish research results will be made by the funding recipient(s).
Unpublished intellectual property owned and developed by any business
or joint research and development venture receiving funding or by any
member of such a joint venture may not be disclosed by any officer or
employee of the Federal Government except in accordance with a written
agreement between the owner or developer and the Program. The licenses
granted to the Government under Sec. 295.8(b) shall not be considered a
waiver of this requirement.
13. Section 295.14 is added to read as follows:
Sec. 295.14 Special financial reporting requirements.
Each award by the Program shall contain procedures regarding
financial reporting to ensure that awards are being used in accordance
with Office of Management and Budget Circular A-122--``Cost Principles
for Non-Profit Organizations'', Federal Acquisition Regulation (FAR)
part 31--``Contract Cost Principles and Procedures'', or other sound
accounting practices to be specified in the Cooperative Agreement. The
audit principles to be applied to ATP awards are the Generally Accepted
Accounting Principles (GAAP) according to the General Accounting
Office's ``Government Auditing Standards'' subtitled ``Standards for
Auditing Government Organization, Program, Activities and Functions''.
Each award will be subject to an Attestation Engagement (i.e.,
providing assurance on representations of compliance with statutory,
regulatory, and contractual requirements) or an audit in conjunction
with the recipient's annual audit at least every two years. In the
interest of efficiency, the recipients are encouraged to retain their
own independent CPA firm to perform these services. The Department of
Commerce's Office of Inspector General (OIG) reserves the right to
determine the time frame and/or level of service of financial audit
reports that are to be delivered and to determine how the close-out
audit is to be conducted. The use of an independent CPA firm does not
preclude the OIG's right to conduct its own audit.
14. The heading for subpart B is revised to read as follows:
Subpart B--Assistance to United States Industry-Led Joint Research
and Development Ventures
15. Section 295.21 is revised to read as follows:
Sec. 295.21 Qualification of applicants.
(a) Assistance under this subpart is available to industry-led
joint research and development ventures only, subject to the
limitations set out in Sec. 295.3 of these regulations. These ventures
may include universities, independent research organizations, and
governmental entities; however, the Program will not provide funding
directly to any university or governmental organization.
(b) Applications for funding under this subpart may be submitted on
behalf of an industry-led joint research and development venture by one
or more businesses or independent research organizations that are
members of the venture. Applications must, however, include letters of
commitment from all proposed members of the venture, verifying the
availability of matching funds, and authorizing the party or parties
submitting the proposal to act on behalf of the venture with the
Program on all matters pertaining to the proposal.
16. Section 295.22 is revised to read as follows:
Sec. 295.22 Limitations on assistance.
An award will be made under this subpart only if the award will
facilitate the formation of a joint venture or the initiation of a new
research and development project by an existing joint venture.
17. Section 295.24 is revised to read as follows:
Sec. 295.24 Registration.
Joint research and development ventures selected for funding must
notify the Department of Justice or the Federal Trade Commission under
the National Cooperative Research Act of 1984. No funds will be
released prior to receipt by the Program of copies of such
notification.
18. The heading for subpart C is revised to read as follows:
Subpart C--Assistance to Single-Applicant U.S. Businesses
19. Section 295.30 is revised to read as follows:
Sec. 295.30 Types of assistance available.
This subpart describes the types of assistance that may be provided
under the authority of 15 U.S.C. 278n(b)(2). Such assistance includes
but is not limited to entering into cooperative agreements with United
States businesses, especially small businesses.
20. Section 295.31 is revised to read as follows:
Sec. 295.31 Qualification of applicants.
Awards under this subpart will be available to all businesses,
subject to the limitations set out in Sec. 295.3 of these regulations.
The Program will not directly provide funding under this subpart to any
governmental entity, academic institution or independent research
organization.
[FR Doc. 94-69 Filed 1-5-94; 8:45 am]
BILLING CODE 3510-13-M
Complete official Federal Register PDF
FR Doc. 94-63 Medicare Program; Revisions to Criteria and Standards for Evaluating Intermediaries and Carriers
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 679-682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-63]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Part 421
[BPO-083-F]
RIN 0938-AF84
Medicare Program; Revisions to Criteria and Standards for
Evaluating Intermediaries and Carriers
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
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SUMMARY: This rule issues technical amendments to Medicare regulations
intended to simplify and improve our system for evaluating the
performance of fiscal intermediaries and carriers in the administration
of the Medicare program. Currently, we evaluate intermediaries using
performance criteria and standards announced in an annual notice in the
Federal Register. We are clarifying the methodology for establishing
these criteria and standards. For consistency, we establish comparable
regulation requirements for the evaluation of carrier performance.
These revisions are published in accordance with sections 1816(f)
and 1842(b)(2) of the Social Security Act which require us to develop
standards, criteria, and procedures to evaluate an intermediary's or
carrier's overall performance.
EFFECTIVE DATE: This final rule is effective February 7, 1994.
FOR FURTHER INFORMATION CONTACT: Larry Pratt, (410) 966-7403.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 1816(a) of the Social Security Act (the Act), public
or private organizations and agencies participate in the administration
of Part A (Hospital Insurance) of the Medicare program under agreements
with the Secretary of Health and Human Services (HHS). These agencies
or organizations are known as fiscal intermediaries, and they perform
bill processing and benefit payment functions for the Medicare program.
Under section 1842(a) of the Act, the Secretary is authorized to enter
into contracts with carriers to fulfill various functions in the
administration of Part B (Supplementary Medical Insurance) of the
Medicare program. Beneficiaries, physicians and suppliers of the
services submit claims to these carriers that, in turn, make
appropriate payments.
Beginning in 1980 for intermediaries and in 1981 for carriers, we
have been evaluating the effectiveness and efficiency of contractor
operations through a system of criteria and standards called the
Contractor Performance Evaluation Program (CPEP).
We refer to the performance requirements we use to evaluate the
performance of intermediaries and carriers in meeting their contractual
obligations to HCFA in our regulations and program instructions as
criteria and standards. When we developed our regulations, criteria
were expected to be distinguished from standards; we intended to
measure broad categorizations of performance using criteria (42 CFR
421.120) and to measure statistical and performance data using
standards (Sec. 421.122). As planned, a contractor had to be evaluated
by and pass the requirements of the criteria before we evaluated
contractor performance using statistical standards. However, in
practice, the standards have been used to measure a contractor's
compliance with the requirements of the criteria. The separate reliance
on statistical standards diminished and we have developed a CPEP under
which standards are used to measure the performance of specific
activities in a defined criteria instead of ``statistical'' standards.
II. Summary of the Proposed Rule
On December 3, 1992, we published in the Federal Register (57 FR
57125) a proposed rule describing technical revisions we proposed to
make to Medicare regulations in order to simplify and improve our
system for evaluating the performances of fiscal intermediaries and
carriers in the administration of the Medicare program. These technical
revisions are necessary to bring our regulations up to date with our
actual use of criteria and standards in performance evaluations.
In the preamble to the proposed rule we described how the reliance
on statistical standards diminished and that current ``standards'' are
used to measure the performance of specific activities in a defined
criterion. That is, measurement and evaluation using criteria and
standards have evolved into a one-step process. In addition, we noted
that certain functions that were included in the original planned
evaluation structure have been transferred to more appropriate review
activities. We, therefore, proposed to amend Secs. 421.3, 421.112(b),
421.118(b) and 421.122 to delete reference to statistical standards and
to replace the general standards for the areas evaluated formerly by
statistical standards with a general explanation of the areas evaluated
by performance standards.
We also mentioned in the proposed rule that our regulations do not
contain requirements relating to measurement of carrier performance
that are parallel to those for intermediaries. For consistency, we
proposed to establish a new Sec. 421.201, ``Performance Criteria and
Standards,'' that would measure and evaluate carrier performance of
functional responsibilities, such as, accurate and timely processing of
claims, responsiveness to beneficiaries', physicians' and suppliers'
concerns, and proper management of administrative funds.
We proposed to base performance criteria and standards on the
experience of carriers nationwide, changes in carrier operations due to
fiscal constraints, and our objectives in achieving better performance.
Before the beginning of each CPEP evaluation period, we would publish
the performance criteria and standards as a notice in the Federal
Register.
We also announced that we would add a new Sec. 421.203, ``Carrier's
failure to perform efficiently and effectively,'' to explain the
adverse action that may be taken by the Secretary if the carrier fails
to meet criteria and standards specified at Sec. 421.201. The content
is parallel to Sec. 421.124, which applies to intermediaries. This new
Sec. 421.203 does not add or change carrier obligations. It merely
codifies in regulations a provision specific to carriers that has been
in effect since Public Law 98-369.
III. Analysis of and Response to Public Comments
We received 10 timely items of correspondence in response to the
December 3, 1992 proposed rule. The comments were from intermediaries,
carriers, contractor advocacy groups, and provider advocacy groups. A
summary of the comments and the Department's responses follow:
Comment: Several commenters suggested that a process be developed
by HCFA for receiving comments, complaints, or problems with carrier
performance by physicians or professional organizations and that the
information generated by this process be included in the overall
performance evaluation of a carrier.
Response: Beginning in Fiscal Year 1994, HCFA will review both
intermediaries' and carriers' efforts to enhance customer satisfaction
through the use of customer satisfaction surveys, including the
National Physician Survey. Results of the surveys will be used to
establish performance data on customer satisfaction and to identify
areas in need of improvement. The results will be summarized for
publication in the report of contractor performance.
Comment: A number of the commenters believe that certain of our
proposed changes at Secs. 421.124 and 421.203 are unnecessary. Those
changes would allow the Secretary to take adverse action if an
intermediary or carrier exceeds the amount the Secretary finds to be
reasonable and adequate to meet the costs which must be incurred by an
efficiently and economically operated intermediary or carrier,
notwithstanding whether the intermediary or carrier meets the published
criteria and standards. Both the intermediary and carrier contracts
currently have a provision to allow the Secretary to request a
committee of the contractors to assist in efforts to effect
improvements in the high cost contractor's performance. In addition,
the current Contractor Performance Evaluation Program (CPEP) contains
measures on contractor costs. If a contractor fails to meet the
applicable criteria, its CPEP score is reduced accordingly.
Response: We do not agree that the proposed changes are
unnecessary. This section of the regulation would authorize us to take
adverse action for deficient performance of a function not specifically
evaluated by CPEP. Currently, CPEP only measures contractor performance
in meeting the approved budget and the contractor's relative standing
among similar contractors. Moreover, beginning in FY 1993, CPEP
eliminated the concept of passing/failing the overall evaluation.
Passing/failing now is determined on a standard by standard basis. For
example, if a contractor fails to meet the approved budget, it will
fail one standard in CPEP, not the entire CPEP. Thus, despite CPEP, the
authority to take adverse contract action against high cost
intermediaries and carriers is necessary. As the commenters note,
current contracts allow the Secretary to request a committee of the
contractors to assist in efforts to effect improvements in the high
cost contractor's performance. The proposed regulatory change allows us
to take the next logical step in the event efforts to effect
improvement have failed. We will have authority to take adverse action
based on continued high cost performance.
Comment: Several commenters stressed that the proposed Sec. 421.124
and Sec. 421.203 were vague. They asked that HCFA further define
``reasonable'' amount, and how and when high cost would be calculated.
Response: We believe that the provisions at Sec. 421.124 and
Sec. 421.203 are clear and straightforward. It is our responsibility to
consider the funding levels that are reasonable and adequate to meet
the costs incurred by an efficiently and economically operated
contractor. To address this responsibility, we develop unit cost
targets for each contractor prior to the start of every fiscal year.
These unit cost targets are forwarded to the HCFA regional offices as
part of the Budget and Performance Requirements (BPRs) package and
represent the benchmark for the negotiations between the regional
offices and the contractors.
We believe that the composition of a contractor's workload (for
example, number of hospital inpatient bills versus number of outpatient
bills or laboratory bills, etc.) is an important factor in the amount
of costs it incurs since some claims are inherently more problematic
and difficult to resolve. In order to give full consideration of each
contractor's unique situation, we currently apply a ``complexity
index'' to develop the BPRs' unit cost targets. This methodology allows
us to correlate the contractor's costs with its individual workload
composition. The use of the complexity index allows us to identify the
contractors whose unit costs appear to be out of proportion to the type
and medium (electronic versus hardcopy) of workload they must process.
Use of the complexity index methodology allows us to evaluate each
contractor's costs with full consideration of its unique workload mix
and within the national forum of its peers. In this way, we identify
our high cost contractors. However, since the use of the complexity
index methodology is an administrative tool to identify contractors
with aberrant costs and can be changed or modified as required, we do
not believe it necessary to outline this methodology in the regulation.
Comment: Several commenters stated that the proposed
Secs. 421.124(a) and 421.203(a) on high cost contractors do not specify
the types of adverse action we may take on the grounds of excessive
cost. Contractors are uncertain about how we would go about the process
of applying sanctions and what these sanctions might be.
Response: Adverse contract actions are listed in Secs. 421.124(a)
and 421.203(a) of the proposed regulation, but we are not limited to
those. Adverse contract actions are further defined in the intermediary
and carrier manual issuances released within the HCFA Program Manual
Issuances System, which contain the details of the CPEP. Adverse
actions range in severity commensurate with relative performance and
include, but are not limited to, such actions as, Regional Office
Letter of Admonition; Central Office Letter of Admonition; deletion of
the automatic renewal clause from the contract without performance
goals established; deletion of the automatic renewal clause from the
contract with performance goals established; limited contract
automatic-renewal clause and provision for termination upon 90 days
notice; reduction in territory or ``carve-out''; non-renewal; and
termination.
Comment: A commenter was unsure whether, if HCFA does not publish
the CPEP standards during a fiscal year, there would be no performance
evaluation for that year or whether the previous year's CPEP would
apply.
Response: In general, the evaluation period which the criteria and
standards measure is the Federal fiscal year. We make every effort to
publish the criteria and standards prior to the beginning of the
Federal fiscal year, that is, October 1st. If we do not publish a
Federal Register notice before the new fiscal year begins, readers may
presume that, until and unless notified otherwise, the criteria and
standards which were previously in effect remain in effect. When a new
CPEP is published, it usually applies to a prospective period, as
stated in the Federal Register notice.
Comment: One commenter states that contractors participate in pilot
projects which may involve additional funding from HCFA. They assume
this ``additional funding'' would not be considered as ``excessively
high costs''.
Response: We encourage contractors to participate in pilot projects
which may result in improved quality, service or efficiency in the
administration of the Medicare program. Where a contractor's
participation in a pilot study or program adversely affects its
performance evaluation, appropriate adjustments are made to mitigate
the impact of the pilot study or program.
Comment: One commenter recommends that HCFA not base criteria and
standards on the sliding scale of available funding but on true
expectations of performance and therefore delete ``changes in fiscal
operations due to fiscal constraints'' as a basis for developing
criteria and standards.
Response: Each year the specific standards are revised and
developed in concert with the specific budget and performance
requirements, because that is the fiscally responsible approach to
develop uniform and fair performance standards for the Medicare
contractor community. We will continue to develop standards in
conjunction with budget and performance requirements.
Comment: One commenter notes that Secs. 421.124 and 421.203 do not
include the contract's provision for an extension of the contract,
subject to cost limitations. This would deprive high cost contractors
of the formal opportunity to choose between accepting limits on their
reimbursable costs and losing their Medicare contracts.
Response: The contract allows us to offer a high cost contractor
the option of submitting a lower budget or losing its Medicare
contract. Sections 421.124 and 421.203 would give us the authority to
determine the amount which is reasonable and adequate to efficiently
and economically operate as an intermediary and carrier. If we
determine that we cannot afford to contract with high cost
intermediaries or carriers, we may consider appropriate adverse
contract action.
IV. Provisions of the Final Rule
Based on our review of the comments submitted, we are making no
substantive changes to the proposed revisions to the rules affecting
criteria and standards for evaluating intermediaries and carriers as
published on December 3, 1992, (57 FR 233). Only minor editorial and
technical revisions have been made to the proposed rules.
List of Subjects in 42 CFR Part 421
Administrative practice and procedure, Health facilities, Health
professions, Medicare, Reporting and recordkeeping requirements.
42 CFR part 421 is amended as set forth below:
PART 421--INTERMEDIARIES AND CARRIERS
1. The authority citation for part 421 continues to read as
follows:
Authority: Secs. 1102, 1815, 1816, 1833, 1834(a) and (h), 1842,
1861(u), 1871, 1874, and 1875 of the Social Security Act (42 U.S.C.
1302, 1395g, 1395h, 1395l, 1395m(a) and (h), 1395u, 1395x(u),
1395hh, 1395kk, and 1395ll), and 42 U.S.C. 1395b-1.
2. Section 421.3 is revised to read as follows:
Sec. 421.3 Definitions.
Intermediary means an entity that has a contract with HCFA to
determine and make Medicare payments for Part A or Part B benefits
payable on a cost basis (or under the Prospective Payment System for
hospitals) and to perform other related functions. For purposes of
designating regional or alternative regional intermediaries for home
health agencies and of designating intermediaries for hospices under
Sec. 421.117 as well as for applying the performance criteria in
Sec. 421.120 and the performance standards in Sec. 421.122 and any
adverse action resulting from such application, the term intermediary
also means a Blue Cross Plan which has entered into a subcontract
approved by HCFA with the Blue Cross and Blue Shield Association to
perform intermediary functions.
Sec. 421.112 [Amended]
3. In Sec. 421.112(b), ``statistical standards'' is revised to read
``performance standards''.
Sec. 421.118 [Amended]
4. In Sec. 421.118(b) ``statistical standards'' is revised to read
``performance standards''.
5. Section 421.122 is revised to read as follows:
Sec. 421.122 Performance standards.
(a) Development of standards. In addition to the performance
criteria (Sec. 421.120), HCFA develops detailed performance standards
for use in evaluating intermediary performance which may be based on
historical performance, application of acceptable statistical measures
of variation to nationwide intermediary experience during a base
period, or changing program emphases or requirements. These standards
are also developed considering intermediary experience and evaluate the
specific requirements of each functional responsibility or criterion.
(b) Factors beyond intermediary's control. To identify measurable
factors that significantly affect an intermediary's performance, but
that are not within the intermediary's control, HCFA will--
(1) Study the performance of intermediaries during the base period,
and
(2) Consider the noncontrollable factors in developing performance
standards.
(c) Publication of standards. The development and revision of
standards for evaluating intermediary performance is a continuing
process. Therefore, before the beginning of each evaluation period,
which usually coincides with the Federal fiscal year period of October
1-September 30, HCFA publishes the performance standards as part of the
Federal Register notice describing the performance criteria issued
under Sec. 421.120(c). HCFA may not necessarily publish the criteria
and standards every year. HCFA interprets the statutory phrase ``before
the beginning of each evaluation period'' as allowing publication of
the criteria and standards after the Federal fiscal year begins, as
long as the evaluation period of the intermediaries for the new
criteria and standards begins after the publication of the notice.
6. Section 421.124 is revised to read as follows:
Sec. 421.124 Intermediary's failure to perform efficiently and
effectively.
(a) Failure by an intermediary to meet, or to demonstrate the
capacity to meet, the criteria or standards specified in Secs. 421.120
and 421.122 may be grounds for adverse action by the Secretary or by
HCFA, such as reassignment of providers, offer of a short-term
agreement, termination of a contract, or non-renewal of a contract. If
an intermediary meets all criteria and standards in its overall
performance, but does not meet them with respect to a specific provider
or class of providers, HCFA may reassign that provider or class of
providers to another intermediary in accordance with Sec. 421.114.
(b) In addition, notwithstanding whether an intermediary meets the
criteria and standards, if the cost incurred by the intermediary to
meet its contractual requirements exceeds the amount which HCFA finds
to be reasonable and adequate to meet the cost which must be incurred
by an efficiently and economically operated intermediary, those high
costs may also be grounds for adverse action.
7. In subpart C a new Sec. 421.201 is added to read as follows:
Sec. 421.201 Performance criteria and standards.
(a) Application of performance criteria and standards. As part of
the carrier evaluations mandated by section 1842(b)(2) of the Act, HCFA
periodically assesses the performance of carriers in their Medicare
operations using performance criteria and standards.
(1) The criteria measure and evaluate carrier performance of
functional responsibilities such as--
(i) Accurate and timely payment determinations;
(ii) Responsiveness to beneficiary, physician, and supplier
concerns; and
(iii) Proper management of administrative funds.
(2) The standards evaluate the specific requirements of each
functional responsibility or criterion.
(b) Basis for criteria and standards. HCFA bases the performance
criteria and standards on--
(1) Nationwide carrier experience;
(2) Changes in carrier operations due to fiscal constraints; and
(3) HCFA's objectives in achieving better performance.
(c) Publication of criteria and standards. Before the beginning of
each evaluation period, which usually coincides with the Federal fiscal
year period of October 1-September 30, HCFA publishes the performance
criteria and standards as a notice in the Federal Register. HCFA may
not necessarily publish the criteria and standards every year. HCFA
interprets the statutory phrase ``before the beginning of each
evaluation period'' as allowing publication of the criteria and
standards after the Federal fiscal year begins, as long as the
evaluation period of the carriers for the new criteria and standards
begins after the publication of the notice.
8. A new Sec. 421.203 is added to read as follows:
Sec. 421.203 Carrier's failure to perform efficiently and effectively.
(a) Failure by a carrier to meet, or demonstrate the capacity to
meet, the criteria and standards specified in Sec. 421.201 may be
grounds for adverse action by the Secretary, such as contract
termination or non-renewal.
(b) Notwithstanding whether or not a carrier meets the criteria and
standards specified in Sec. 421.201, if the cost incurred by the
carrier to meet its contractual requirements exceeds the amount that
HCFA finds to be reasonable and adequate to meet the cost which must be
incurred by an efficiently and economically operated carrier, those
high costs may also be grounds for adverse action.
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: October 20, 1993.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: December 2, 1993.
Donna E. Shalala,
Secretary.
[FR Doc. 94-63 Filed 1-5-94; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 94-58 Medicare, Medicaid and CLIA Programs; Personnel Requirements for Cytotechnologists
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 682-685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-58]
[[Page Unknown]]
[Federal Register: January 6, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
42 CFR Part 493
[HSQ-210-FC]
Medicare, Medicaid and CLIA Programs; Personnel Requirements for
Cytotechnologists
AGENCY: Health Care Financing Administration (HCFA), and Public Health
Service (PHS), HHS.
ACTION: Final Rule with Comment Period.
-----------------------------------------------------------------------
SUMMARY: This rule amends certain personnel requirements for
cytotechnologists that perform testing in laboratories subject to the
requirements of the Clinical Laboratory Improvement Amendments of 1988
(CLIA). We are providing an adequate period of time for individuals to
gain the necessary 2 years experience performing cytology testing which
is currently included in two of the provisions for qualifying as a
cytotechnologist. Also, we are extending the time for individuals to
either meet the educational qualifications by virtue of completing
training in an approved cytotechnology training program or be certified
by an approved organization. We are making these changes to prevent the
loss of qualified personnel in the field of cytotechnology.
DATES: These regulations are effective on January 6, 1994. Comments
will be considered if we receive them at the appropriate address, as
provided below, no later than 5 p.m. on March 7, 1994.
ADDRESSES: Mail an original and 3 copies of comments to the following
address:
Health Care Financing Administration, Department of Health and Human
Services, Attention: HSQ-210-FC, P.O. Box 26676, Baltimore, MD 21207.
If you prefer, you may deliver your written comments to one of the
following addresses:
Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW.,
Washington, DC 20201, or
Room 132, East High Rise Building, 6325 Security Boulevard, Baltimore,
MD 21207.
Due to staffing and resource limitations, we cannot accept
facsimile (FAX) transmissions. In commenting, please refer to file code
HSQ-210-FC. Comments received timely will be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, in Room 309-G of the
Department's offices at 200 Independence Avenue, SW., Washington, DC,
on Monday through Friday of each week from 8:30 a.m. to 5 p.m. (phone:
(202) 690-7890).
FOR FURTHER INFORMATION CONTACT: Cheryl Wiseman, (410) 597-5906.
SUPPLEMENTARY INFORMATION:
I. Background
On February 28, 1992, we published in the Federal Register at 57 FR
7002, rules that set forth the test performance requirements for
laboratories that are subject to the Clinical Laboratory Improvement
Amendments of 1988 (CLIA). We subsequently published in the Federal
Register a related rule (January 19, 1993 (58 FR 5215)) that made
technical corrections and addressed immediate concerns raised by some
of the approximately 16,000 comments on the publication of the February
28 regulations. This rule responds to concerns raised by some of the
commenters and pertains to limited aspects of the CLIA requirements:
The period of time during which an individual who needs 2 years
experience as a cytotechnologist is allowed to earn that experience,
and the period of time that a person may either obtain appropriate
training in a school approved by the Commission on Allied Health
Education and Accreditation (CAHEA) or be certified by an organization
approved by HHS.
The February 28, 1992 CLIA regulations represented establishment of
uniform personnel standards for cytotechnologists for all laboratories
offering cytology, regardless of location. Prior to these regulations,
individuals working in hospital cytology laboratories that were not
licensed under the Clinical Laboratory Improvement Act of 1967 to test
specimens in interstate commerce were not subject to Federal personnel
qualification requirements for cytotechnologists. In addition,
individuals employed in cytology laboratories that were not approved to
participate in the Medicare or Medicaid program were not subject to
Federal requirements, including personnel requirements.
In the preamble to the February 28, 1992 regulations, we stated
that in developing the personnel standards for cytotechnologists, it
was not our intention to put out of work individuals currently employed
as cytotechnologists. Our aim was to provide qualification standards
that would ensure quality of service and be in the best interest of the
public health. Recognizing the existing shortage of laboratory
personnel, particularly cytotechnologists, we stated that we were
expanding the qualification requirements to allow individuals
additional methods of qualifying. We stated, ``In our opinion, many
individuals currently working in laboratories, as a function of their
employment, have gained valuable experience in testing operations. In
most instances in this rule, we are acknowledging the value of this
experience, by allowing those individuals, who do not meet the
qualification requirements in these regulations, to continue their
laboratory employment while acquiring the education or training
necessary to meet the requirements. The net effect of the personnel
standards will be to permit a preponderance of personnel presently
working in laboratories to continue their employment while they are
updating their credentials to meet the national standards for
laboratory personnel specified in this rule.'' (57 FR 7083)
To Sec. 493.1483, Standard: Cytotechnologist Qualifications, we
added several alternative qualification standards for cytotechnologists
with education or experience requirements that had to be met by the
effective date of the regulations (September 1, 1992) or by a specified
later date. To the previous Federal requirements, we added at
Sec. 493.1483(b)(4) a current work experience requirement that had to
be met by September 1, 1992, which was applicable to those individuals
who received their cytotechnology training and acquired their work
experience prior to January 1, 1969. At Sec. 493.1483(b)(5), we added a
new provision requiring current work experience by September 1, 1993,
in addition to requiring on or before September 1, 1994, that
individuals either complete their cytotechnology training in an
approved school or be certified in cytotechnology by an organization
approved by HHS.
II. Revisions to the Rules
We have now determined that we did not provide sufficient time for
cytotechnologists to meet current standards. Without prior
notification, the February 28, 1992 rule required individuals, who
obtained their education and training prior to January 1, 1969, 6
months to acquire 2 years of current work experience. Also,
individuals, who trained outside of the United States, were given 1
year and 6 months to fulfill the requirement of 2 years for current
work experience in the United States. Therefore, we are revising the
dates originally published in the February 28, 1992 rule at
Sec. 493.1483(b) (4) and (5) concerning personnel requirements for
cytotechnologists who qualified under Federal regulations and for
individuals who trained outside of the United States. Based on public
concern and our analysis of anticipated availability of qualified
individuals, we are revising our regulations to allow all individuals 2
full years from September 1, 1992, the effective date of our personnel
requirements, to gain the necessary experience to qualify under the
regulations.
Accordingly, in Sec. 493.1483(b)(4), we are revising the date from
September 1, 1992 to September 1, 1994, to enable a previously
qualified cytotechnologist to continue working without interruption and
obtain the necessary work experience. In Sec. 493.1483(b)(5)(i), we are
similarly revising the date from September 1, 1993 to September 1, 1994
to allow an individual trained outside the United States and an
individual who does not meet the other qualification standards an
opportunity to obtain the 2 years of slide examination experience
within the United States.
As a technical revision to our rules, we note that
Sec. 493.1483(b)(5)(ii) provides that an individual qualifying as a
cytotechnologist must, on or before September 1, 1994, have either
graduated from a school of cytotechnology approved by the CAHEA or be
certified by an organization approved by the Department. It is possible
that the CAHEA may cease to function as an accrediting organization
before the Department has recognized any alternative certifying
organization. In order to prevent the possibility that individuals will
not have 2 full years to be certified by an approved certifying
organization, we are extending the date from September 1, 1994 to
September 1, 1995. This will allow time for the Department to recognize
organizations that certify cytology personnel and minimize the loss of
currently employed individuals at a time when there is an existing
shortage of qualified cytology personnel.
We are also making a conforming change to Sec. 493.1483(b)(1) to
provide that a school of cytotechnology must be accredited by CAHEA
``or other organization approved by HHS.''
III. Waiver of Proposed Rulemaking and Delay of Effective Date
We ordinarily publish a notice of proposed rulemaking in the
Federal Register and invite public comment on proposed requirements.
The notice of proposed rulemaking includes a reference to the legal
authority under which the rule is proposed, and the terms and
substances of the proposed rule or a description of the subjects and
issues involved. This procedure can be waived, however, if an agency
finds good cause that a notice-and-comment procedure is impracticable,
unnecessary, or contrary to the public interest and incorporates a
statement of the finding and its reasons in the rule issued.
We believe that these revisions are essential to the effective
implementation of the CLIA program, and to delay the effective date
would potentially disrupt public access to laboratory services,
unnecessarily expose laboratories to greater costs than are needed to
help assure quality testing, and create unnecessary confusion among
laboratories in understanding the standards they must meet. Without
immediate revision of the regulations, we believe there may be
shortages of cytotechnologists in some areas resulting in limited
access to cytology services. Therefore, we believe it is contrary to
the public interest to go through a notice-and-comment procedure, and
we find good cause to waive the notice of proposed rulemaking and to
issue this final rule on an interim basis. For these same reasons, we
find there is good cause to dispense with a delayed effective date of
these regulations. Although the regulations are final and effective on
the date of publication, we are providing a 60-day period for public
comment.
IV. Regulatory Impact Statement
We generally prepare a regulatory flexibility analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612) unless the Secretary certifies that a final rule will not
have a significant economic impact on a substantial number of small
entities. For purposes of the RFA, all laboratories are considered to
be small entities. Individuals and States are not included in the
definition of a small entity.
Also, section 1102(b) of the Act requires the Secretary to prepare
a regulatory impact analysis if a final rule may have a significant
impact on the operations of a substantial number of small rural
hospitals. This analysis must conform to the provisions of section 604
of the RFA. For purposes of section 1102(b) of the Act, we define a
small rural hospital as a hospital that is located outside of a
Metropolitan Statistical Area and has fewer than 50 beds.
This final rule with comment period revises personnel requirements
for cytotechnologists by extending the dates by which they must meet
the qualification requirements. We are unable to quantify the number of
individuals, laboratories, or rural hospitals affected by this rule. In
the laboratory industry generally, recent surveys indicate that 80
percent of U.S. laboratories have experienced a shortage of technical
personnel. A shortage of cytotechnologists throughout the United States
has been demonstrated through anecdotal studies of wages and vacancy
rates. According to the American Hospital Association's 1991 Survey of
Human Resources, there was a full-time equivalent vacancy rate of 12.2
percent for cytotechnologists in hospital laboratories. The survey also
reported that more than 60 days were required to fill almost two-thirds
of the full-time vacancies. The average length of time required to fill
approximately half of the full-time vacancies was over 90 days. This
scarcity level existed prior to the imposition of Federal personnel
standards that might lead to lesser numbers of qualified
cytotechnologists.
In the absence of a registry that indicates the actual number of
cytotechnologists, their employment and age distribution, the amount
and type of work they do, and the specific number of individuals that
meet all the qualifications except the two years' experience, we cannot
determine the cause of this shortage or predict when the shortage will
end. Based on data projections from the Census Bureau and the National
Health Interview Survey, the demand for Pap smears in women 18 and
older was nearly 79 million in 1992 and is expected to increase. If
there is an existing shortage of personnel and we anticipate the
increased demand for cytology services, the impact of this regulation
would be beneficial to laboratories because it will allow larger
numbers of cytotechnologists to meet Federal personnel requirements.
Although we cannot determine whether this final rule's provisions to
allow a longer period of time for certain individuals to accumulate
required experience will have a significant impact on a substantial
number of small entities or small rural hospitals, because of the lack
of data, we have determined that its impact is beneficial.
As stated previously, one of the new methods of qualifying as a
cytotechnologist includes graduation, by September 1, 1994, from a
CAHEA-approved school. In the event that CAHEA should cease to function
as an accrediting agency prior to September 1, 1994, individuals may
not be able to avail themselves of this method of qualifying as a
cytotechnologist. To accommodate individuals seeking to qualify under
this provision, we are extending the date of graduation to September 1,
1995. This should provide sufficient time for us to formally recognize
another accrediting organization, if that becomes necessary.
Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
List of Subjects in 42 CFR Part 493
Grant programs--health, Health facilities, Laboratories, Medicaid,
Medicare, Reporting and recordkeeping requirements.
PART 493--LABORATORY REQUIREMENTS
Part 493 is amended as follows:
1. The authority citation for part 493 continues to read as
follows:
Authority: Sec. 353 of the Public Health Service Act, secs.
1102, 1861(e), the sentence following sections 1861(s)(14),
1861(s)(15), and 1861(s)(16) of the Social Security Act (42 U.S.C.
1302, 1395x(e), the sentence following 1395x(s)(14), 1395x(s)(15),
and 1395x(s)(16)).
Sec. 493.1483 [Amended]
2. Section Sec. 493.1483 is amended as set forth below:
a. In Sec. 493.1483(b)(1), ``Accreditation; or'' is revised to read
``Accreditation or other organization approved by HHS; or'';
b. In Sec. 493.1483(b)(4) introductory text, ``September 1, 1992,''
is revised to read ``September 1, 1994,'';
c. In Sec. 493.1483(b)(5)(i), ``September 1, 1993,'' is revised to
read ``September 1, 1994,''; and
d. In Sec. 493.1483(b)(5)(ii), ``September 1, 1994,'' is revised to
read ``September 1, 1995,''.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program; Program No. 93.773, Medicare--Hospital
Insurance; and Program No. 93.774, Medicare--Supplementary Medical
Insurance Program)
Dated: October 14, 1993.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: November 12, 1993.
Philip R. Lee.
Assistant Secretary for Health.
Dated: December 20, 1993.
Donna E. Shalala,
Secretary.
[FR Doc. 94-58 Filed 1-5-94; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 94-270 Safety Zone Regulations; Youghiogheny River
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 676-677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-270]
[[Page Unknown]]
[Federal Register: January 6, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[COTP Pittsburgh Regulation 93-010]
RIN 2115-AA97
Safety Zone Regulations; Youghiogheny River
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a safety zone on the
Youghiogheny River from mile 0.8 to mile 1.8. This regulation is needed
to control vessel traffic in the regulated area during demolition of
the main span of a bridge at mile 1.3. This regulation will restrict
general navigation in the regulated area during demolition and
subsequent debris clearing operations for the safety of vessels
transitting the area.
EFFECTIVE DATE: This regulation is effective from 9 a.m. on January 8,
1994 and will terminate at 10 a.m. on January 10, 1994.
FOR FURTHER INFORMATION CONTACT:
LT John Meehan, Port Operations Officer, Captain of the Port,
Pittsburgh, Pennsylvania at (412) 644-5808.
SUPPLEMENTARY INFORMATION:
Drafting Information
The drafters of this regulation are LT John Meehan, Project
Officer, Marine Safety Office, Pittsburgh, Pennsylvania and LCDR A.O.
Denny, Project Attorney, Second Coast Guard District Legal Office.
Regulatory History
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
has not been published for this regulation and good cause exists for
making it effective in less than 30 days from the date of publication.
Following normal rulemaking procedures would have been impracticable.
Specifically, a bridge is being removed from a navigable waterway.
Bridge removal operations pose inherent risks to the waterway because
the structure is progressively weakened as the operation proceeds. Once
commenced, such operations should be completed as quickly as possible.
Removal operations involving structural supports for this bridge have
proceeded ahead of schedule, leaving insufficient time to publish a
notice of proposed rulemaking. The Coast Guard deems it to be in the
public's best interest to issue a regulation without waiting for a
comment period, as immediate implementation of navigation restrictions
is needed to ensure the safety of vessels transitting the area and to
minimize the time a bridge in a weakened condition remains over the
waterway.
Background and Purpose
The Port Vue Bridge located at mile 1.3 on the Youghiogheny River
is not longer an active highway bridge and must be removed. The bridge
consists of several small spans that are located over land and one 310-
foot main span that crosses over the navigable waterway. As part of the
overall bridge removal operation, this main span will be demolished
with five simultaneously detonated explosive charges. This explosion,
which will create an obvious hazard to vessels transitting the area,
will occur at approximately 10 a.m. on January 8, 1994. After the
explosives on this span are detonated, the steel and other debris from
the bridge will fall into the navigable waters of the Youghiogheny
River, creating an unsafe condition of vessels. The contractor will
immediately commence clearing operations, but it will require 48 hours
to restore the navigability of this section of the Youghiogheny River.
Accordingly, during that period, no traffic will be permitted in the
safety zone, as it would be unsafe for vessels attempting to transit
and such transit attempts would interfere with the debris clearing
operations.
Regulatory Evaluation
This regulation is not considered a significant regulatory action
under Executive Order 12866 and not significant under Department of
Transportation Regulatory Policies and Procedures (44 FR 11040;
February 26, 1979), it will not have a significant economic impact on a
substantial number of small entities, and it contains no collection of
information requirements. A full regulatory analysis is unnecessary
because the Coast Guard expects the impact of this regulation to be
minimal due to the relatively short duration of vessel traffic
restrictions, the relatively small size of the area regulated, and the
absence of any commercial vessel transits along this section of the
Youghiogheny River, due to insufficient bridge clearances and water
depth downriver.
Federalism Assessment
Under the principles and criteria of Executive Order 12612, this
regulation does not raise sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under section 2.B.2.c. of Commandant
Instruction M16475.1B, this proposal is categorically excluded from
further environmental documentation as an action required to protect
public safety.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Records and
recordkeeping, Security measures, Waterways.
Temporary Regulation
In consideration of the foregoing, subpart C of part 165 of title
33, Code of Federal Regulations, is amended as follows:
PART 165--[AMENDED]
1. They authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 49 CFR 1.46 and 33 CFR
1.05-1(g), 6.04-1, 6.04-6, and 160.5.
2. A temporary Sec. 165.T02-079 is added, to read as follows:
Sec. 165.T02-079 Safety zone: Youghiogheny River.
(a) Location. The Youghiogheny River between mile 0.8 and mile 1.8
is established as a safety zone.
(b) Effective dates. This regulation becomes effective from 9 a.m.
on January 8, 1994 and will terminate at 10 a.m. on January 10, 1994.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23 of this part, entry into this zone is prohibited unless
authorized by the Captain of the Port.
Dated: December 30, 1993.
M.W. Brown,
Commander, U.S. Coast Guard, Captain of the Port, Pittsburgh,
Pennsylvania.
[FR Doc. 94-270 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-269 Safey Zone; Upper Mississippi River
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 675-676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-269]
[[Page Unknown]]
[Federal Register: January 6, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[COTP St. Louis Regulation 93-037]
RIN 2115-AA97
Safey Zone; Upper Mississippi River
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a safety zone on the Upper
Mississippi River. This regulation is needed to control vessel traffic
in the regulated area to provide safe working conditions and navigation
within the affected area. The regulation will prohibit navigation in
the regulated area for the safety of vessel traffic and the protection
of life and property associated with bridge and span removal.
EFFECTIVE DATES: This regulation is effective December 21, 1993 and
will terminate on January 21, 1994 unless sooner terminated by the
Captain of the Port.
FOR FURTHER INFORMATION CONTACT: LT Timothy Deal, Operations Officer,
Captain of the Port, St. Louis, Missouri at (314) 539-3823.
SUPPLEMENTARY INFORMATION:
Drafting Information
The drafters of this regulation are MK1 Christopher C. Schulz,
Project Officer, Marine Safety Office, St. Louis, Missouri and LCDR A.
O. Denny, Project Attorney, Second Coast Guard District Legal Office.
Regulatory History
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
has not been published for this regulation and good cause exists for
making it effective in less than 30 days from the date of publication.
Following normal rulemaking procedures would have been impracticable.
Specifically, the nature of repairs to the Burlington Highway Bridge at
mile 404.2 Upper Mississippi River leaves insufficient time to publish
a notice of proposed rule making. The Coast Guard deems it to be in the
public's best interest to issue a regulation without waiting for a
comment period since the conditions present an immediate hazard.
Background and Purpose
Extensive renovation of the bridge is required and removal of the
center is to be accomplished from a vessel located in the navigation
channel and this action will impede normal traffic flow. As a result of
these conditions this regulation is necessary to provide safe working
conditions and navigation within the affected area.
Regulatory Evaluation
This regulation is not considered a significant regulatory action
under Executive Order 12866 and not significant under Department of
Transportation Regulatory Policies and Procedures (44 FR 11040;
February 26, 1979), it will not have a significant economic impact on a
substantial number of small entities, and it contains no collection of
information requirements.
The Coast Guard expects the impact of this regulation to be so
minimal that a Regulatory Evaluation is unnecessary. The imposed
restrictions are anticipated to be of short duration. To avoid any
unnecessary adverse economic impact on businesses which use the river
for commercial purposes, Captain of the Port, St. Louis, Missouri will
monitor the situation and will authorized entry into the closed area as
conditions warrant. Changes will be announced by Marine Safety
Information Radio Broadcast on VHF Marine Band Radio, Channel 22 (157.1
MHZ). Mariners may also call the Port Operations Officer, Captain of
the Port, St. Louis, Missouri at (314) 539-3823 for current
information.
Federalism Assessment
Under the principles and criteria of Executive Order 12612, this
regulation does not raise sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under section 2.B.2.g.[5] of Commandant
Instruction M16475.1B, this proposal is categorically excluded from
further environmental documentation as an action to protect public
safety.
List of Subject in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Records and
recordkeeping, Security measures, Waterways.
Temporary Regulation
In consideration of the foregoing, subpart C of part 165 of title
33, Code of Federal Regulations, is amended as follows:
PART 165--[AMENDED]
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; CFR 1.46 and 33 CFR
1.05-1(g), 6.01-1, 6.04-6, and 160.5.
2. A temporary Sec. 165.T02-077 is added, to read as follows:
Sec. 165.T02-077 Safety zone: Upper Mississippi River.
(a) Location. The Upper Mississippi River between mile 403.2 and
405.2 is established as a safety zone.
(b) Effective dates. This regulation becomes effective on December
21, 1993 and will terminate on January 21, 1994.
(c) Regulations. The general regulations under Sec. 165.23 of this
part which prohibit entry into the described zones without authority of
the Captain of the Port apply. The Captain of the Port, St Louis,
Missouri will notify the maritime community of river conditions
affecting the areas covered by this safety zone by Marine Safety
Information Radio Broadcast on VHF Marine Band Radio, Channel 22 (157.1
MHZ).
Dated: December 17, 1993.
S.P. Cooper,
Commander, U.S. Coast Guard, Captain of the Port, St. Louis, Missouri.
[FR Doc. 94-269 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-268 Special Local Regulations; Operation Anzio Reenactment (Ohio River Between Mile 630.0-636.5)
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 673-674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-268]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD02 93-035]
RIN 2115-AE46
Special Local Regulations; Operation Anzio Reenactment (Ohio
River Between Mile 630.0-636.5)
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
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SUMMARY: A special local regulation is being adopted for the Operation
Anzio Reenactment training exercise which the U.S. Army will hold on
the Ohio River near Fort Knox, Kentucky on January 20-22, 1994. This
regulation is needed to control vessel traffic in the immediate
vicinity of the event. The regulation will restrict general navigation
in the regulated area for the safety of spectators, participants and
through traffic.
EFFECTIVE DATES: This regulation becomes effective daily at 12 p.m. to
3 p.m. local time on January 20-22, 1994.
FOR FURTHER INFORMATION CONTACT:
LTJG D.R. Dean, Chief, Boating Affairs Branch, Second Coast Guard
District, 1222 Spruce Street, St. Louis, Missouri 63103-2832. The
telephone number is (314) 539-3971, fax (314) 539-2685.
SUPPLEMENTARY INFORMATION:
Drafting Information
The drafters of these regulations are LTJG D.R. Dean, Project
Officer, Second Coast Guard District, Boating Safety Division and LCDR
A.O. Denny, Project Attorney, Second Coast Guard District Legal Office.
Regulatory History
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
has not been published for these regulations and good cause exists for
making them effective in less than 30 days from the date of
publication. Following normal rulemaking procedures would have been
impracticable. Specifically, the sponsor's late submission of the
regatta application left insufficient time to publish a notice of
proposed rulemaking in advance of the scheduled event. However, the
Coast Guard deems it to be in the public's best interest to issue a
regulation now as the benefits of holding the training during the
winter, as scheduled, rather than later in the spring will mean less
impact on the boating public.
Background and Purposes
Operation Anzio Reenactment consists of river crossing training for
the 19th Engineer Battalion, Fort Knox, Kentucky. The Training will
take place over three days, January 20-22, 1994. Each day's training
will begin at 12 p.m., and will end at 3 p.m. local time. In order to
provide for the safety of spectators and participants, and for the safe
passage of through traffic, the Coast Guard will restrict vessel
movement in the regatta area. The river will be closed during part or
all of the effective period to all vessel traffic except participants,
official regatta vessels, and patrol craft. These regulations are
issued pursuant to 33 U.S.C. 1233 and 33 CFR 100.35.
Regulatory Evaluation
This regulation is not considered a significant regulatory action
under Executive Order 12866 and is not significant under Department of
Transportation Regulatory Policies and Procedures (44 FR 11040;
February 26, 1979), it will not have a significant economic impact on a
substantial number of small entities, and it contains no collection of
information requirements. A full regulatory analysis is unnecessary
because the Coast Guard expects the impact of this regulation to be
minimal due to its short duration.
Federalism Assessment
Under the principles and criteria of Executive Order 12612, this
regulation does not raise sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environmental Assessment
Under section 2.B.2.c of Commandant Instruction M16475.1B, this
regulation is categorically excluded from further environmental
documentation.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Records and recordkeeping
requirements, Waterways.
Temporary Regulations
In consideration of the foregoing, part 100 of title 33, Code of
Federal Regulations, is amended as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. A temporary Sec. 100.35-T02-035 is added, to read as follows:
Sec. 100.35-T02-035 Ohio River, Fort Knox, Kentucky.
(a) Regulated area. Ohio River from mile 630.0 to 636.5.
(b) Special local regulations. (1) Except for participants in the
Operation Anzio Reenactment no person or vessel may enter or remain in
the regulated area without permission of the Patrol Commander.
(2) The Coast Guard Patrol Commander will be a commissioned or
petty officer designated by the Commanding Officer, Marine Safety
Office Louisville, Kentucky and may be contacted, during the event, on
channel 16 (156.8 MHZ) by the call sign ``Coast Guard Patrol
Commander.'' The Patrol Commander may:
(i) Direct the anchoring, mooring, or movement of any vessel within
the regulated area,
(ii) Restrict vessel operation within the regulated area to vessels
having particular operating characteristics,
(iii) Terminate the marine event or the operation of any vessel
when necessary for the protection of life and property, and
(iv) Allow vessels to transit the regulated area whenever an event
is not being conducted and the transit can be completed before another
event begins.
(3) Coast Guard commissioned or petty officers will patrol the
event on board patrol vessels which display the Coast Guard Ensign. If
radio or other voice communications are not available to communicate
with a vessel, they will use a series of sharp, short blasts by whistle
or horn to signal the operator of any vessel in the vicinity of the
regulated area to stop. When signaled, the operator of any vessel in
the immediate vicinity of the regulated area shall stop the vessel
immediately and shall proceed as directed.
(4) Vessels desiring to transit the regulated area may do so only
with the prior approval and direction of the Patrol Commander.
(5) The Patrol Commander will terminate enforcement of the
regulations at the conclusion of the marine event if earlier than the
announced termination time.
(c) Effective dates. This regulation becomes effective daily from
12 p.m. to 3 p.m. local time on January 20-22, 1994.
Dated: January 3, 1994.
Paul M. Blayney,
Rear Admiral, U.S. Coast Guard, Commander, Second Coast Guard District.
[FR Doc. 94-268 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-264 Safety Zone; Chevron #1 Well on Destin Dome #97
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 674-675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-264]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 147
[CGD08-93-026]
RIN 2115-AA97
Safety Zone; Chevron #1 Well on Destin Dome #97
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
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SUMMARY: This rulemaking establishes a 500 meter safety zone around the
structure at the Chevron #1 Well on Destin Dome #97. The overall impact
of these regulations will be to promote the safety of lives and
property on the structure, its appurtenances and attending vessels, and
on vessels in adjacent waters.
DATES: This regulation becomes effective on November 3, 1993, and
terminates on September 1, 1994, unless sooner terminated by Commander,
Eighth Coast Guard District. Comments on this regulation must be
received on or before February 22, 1994.
ADDRESSES: Comments should be mailed to Commander (mps), Eighth Coast
Guard District, Hale Boggs Federal Building, 501 Magazine Street, New
Orleans, LA 70130-3396. The comments will be available for inspection
and copying at the Marine Safety Division, Eighth Coast Guard District,
room 1319, Hale Boggs Federal Building, 501 Magazine Street, New
Orleans, LA. Normal office hours are between 7:30 a.m. and 4 p.m.,
Monday through Friday, except holidays. Comments may also be hand-
delivered to this address.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Verne Gifford, Marine Safety Division, Eighth Coast Guard
District, Hale Boggs Federal Building, 501 Magazine Street, New
Orleans, LA 70130-3396. Phone number: (504) 589-6271.
SUPPLEMENTARY INFORMATION: In accordance with 5 U.S.C. 553, a Notice of
Proposed Rulemaking was not published for this regulation and good
cause exists for making it effective in less than 30 days from the date
of publication. Following normal rulemaking procedures would have been
contrary to the public interest. Immediate action is needed to prevent
possible loss of life and damage to vessels in the area and to the
structure itself. Although this regulation is published as a final rule
without prior notice, an opportunity for public comment is nevertheless
desirable to ensure that the regulation is both reasonable and
workable. Accordingly, persons wishing to comment may do so by
submitting written comments to the office listed under ADDRESSES in
this preamble. Commenters should include their names and addresses,
identify the docket number for the regulations, and give reasons for
their comments. Based upon comments received, the regulations may be
changed.
Drafting Information
The drafters of this notice are Lieutenant Verne Gifford, project
officer, and Commander D.G. Dickman, project attorney, Eighth Coast
Guard District Legal Office.
Discussion of Regulation
The circumstances creating the need for this regulation is
information received by Chevron and by the Coast Guard that vessels
intend to protest and possibly interfere with drilling operations at
this site. This is the first site at which drilling will begin in this
particular area, which has been a subject of controversy. Precautionary
measures for safety at a drilling site require that the structure and
waters around it be maintained free of interference and traffic in
order to allow for immediate evacuation of personnel aboard the
structure and by attending vessels in case of emergency. The
establishment of a safety zone will prevent non-attending vessels from
remaining in close proximity to the offshore structure and hindering
any necessary evacuation of the area.
The final rule amends part 147 to add a temporary safety zone
around the Chevron Well #1, Destin Dome #97, which is about 27 miles
south of Pensacola, Florida. The regulation contains a description of
the area of the safety zone, including the location of the center of
the structure and information pertinent to the safety zone. The
regulations restrict the entry of vessels into the safety zone, except
for attending vessels and those vessels authorized by the Commander,
Eighth Coast Guard District.
Economic Assessment and Certification
This regulation is not considered a significant regulatory action
under Executive Order 12866 and is nonsignificant under Department of
Transportation regulatory policies and procedures (44 FR 11034;
February 26, 1979). The economic impact has been found to be so minimal
that a full regulatory evaluation is unnecessary. The Coast Guard
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities.
Federalism Assessment
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this rulemaking does not raise sufficient federalism implications
to warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
regulation and concluded that under section 2.B.2.c of Commandant
Instruction M16475.1B, it will have no significant environmental impact
and it is categorically excluded from further environmental
documentation. A Categorical Exclusion Determination is available in
the docket for examination or a copy may be obtained by contracting the
person identified under ``FOR FURTHER INFORMATION CONTACT.''
Paperwork Reduction Act
The rule contains no information collection or recordkeeping
requirements.
List of Subjects in 33 CFR Part 147
Continental shelf, Marine safety, Navigation (water).
Final Regulation
In consideration of the foregoing, part 147 of title 33, Code of
Federal Regulations, is amended as follows:
PART 147--[AMENDED]
1. The authority citation for this part is revised to read as
follows:
Authority: 43 U.S.C. 1333 as amended; 49 CFR 1.46.
2. A new Sec. 147.T801 is added to read as follows:
Sec. 147.T801 Safety Zone: Chevron #1 Well at Destin Dome #97.
(a) Description. The area within a line 500 meters from each point
on the structure's outer edge. The position of the center of the
structure is 29 deg.51'57.91'' N, 87 deg.20'07.74'' W.
(b) Effective date. This regulation becomes effective November 3,
1993. It terminates on September 1, 1994, unless sooner terminated by
Commander, Eighth Coast Guard District.
(c) Regulation. No vessel may enter or remain in this safety zone
except the following:
(1) An attending vessel or
(2) A vessel authorized by the Commander, Eighth Coast Guard
District.
Dated: November 3, 1993.
J.C. Card,
Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District.
[FR Doc. 94-264 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-250 Fingerprint Cards: Change in User Fee
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 661-662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-250]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN 3150-AE93
Fingerprint Cards: Change in User Fee
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to reflect an administrative change in the procedure for
notifying licensees of changes in the user fee charged by the Federal
Bureau of Investigation (FBI) for processing fingerprint cards as part
of the criminal history checks that nuclear power reactor licensees are
required to perform for those individuals granted unescorted access to
an operating nuclear power facility or access to Safeguards
Information. This notice also informs licensees of the new user fee
adopted by the FBI effective January 3, 1994.
EFFECTIVE DATE: February 7, 1994.
FOR FURTHER INFORMATION CONTACT:
C.H. Hendren, Office of Nuclear Reactor Regulation, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Telephone (301) 504-
3209.
SUPPLEMENTARY INFORMATION:
Background
The provisions of 10 CFR 73.57 requires licensees to process
fingerprint cards through the NRC to the FBI Criminal Justice
Information Services Division which then does a criminal history check.
A user fee for processing fingerprint cards was required by Congress
(Pub. L. 99-399), is established by the FBI, and is periodically
increased as the FBI's processing costs change.
Discussion
On December 3, 1993, the FBI's Division of Criminal Justice
Information Services (CJIS) notified the Nuclear Regulatory Commission
that the ``user fee'' charged by the FBI for processing fingerprint
cards had been increased from $23.00 to $24.00 effective January 3,
1994. The FBI user fee includes a $2.00 handling cost for the agency
doing the initial screening of the fingerprint cards, and provides that
the agency doing the initial screening retains that handling cost. In
the case of nuclear reactor licensees, the NRC performs this initial
screening. The user fee is periodically changed by the FBI, as their
processing costs change.
Because this amendment pertains only to a user-fee change imposed
by the FBI, the Commission for good cause finds that the notice and
public procedure provisions of the Administrative Procedure Act are
impractical and unnecessary. Comment will not serve to alter the FBI
fee, which is outside the control of the NRC. Further, rather than
engaging in an unnecessary rulemaking procedure to amend the rule every
time the FBI changes the fee, this amendment removes the fee amount
from the rule. The Commission will advise licensees directly when the
FBI fee changes. A notice of the FBI fee change pertaining to NRC
licensees will also be published in the Federal Register.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described as a categorical exclusion in 10 CFR 51.22(c)(2). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for this final rule.
Paperwork Reduction Act Statement
This final rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget under approval number 3150-0002.
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to the action taken in this final rulemaking and, therefore,
that a backfit analysis is not required for this final rule because
this amendment does not involve any provisions which would impose
backfits as defined in 10 CFR 50.109(a)(1).
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Nuclear materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Security measures.
For the reasons stated in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendment to 10 CFR part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245 (42 U.S.C. 5841,
5844).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241, (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
2. In Sec. 73.57, paragraph (d)(3) is revised to read as follows:
Sec. 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.
* * * * *
(d) * * *
(3) Fees for the processing of fingerprint checks are due upon
application. Licensees shall submit payment with the application for
the processing of fingerprints through corporate check, certified
check, cashier's check, or money order made payable to ``U.S. NRC.''
The amount of the fee is the user fee for processing fingerprint cards
submitted by the Nuclear Regulatory Commission on behalf of nuclear
power plants charged by the FBI for each card. Combined payment for
multiple applications is acceptable. The Commission will publish the
user fee charged by the FBI in the Federal Register whenever the fee
changes. The Commission will directly notify licensees who are subject
to this regulation of any fee changes.
* * * * *
Dated at Rockville, Maryland this 22nd day of December, 1993.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 94-250 Filed 1-5-94; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 94-246 Amendment to Class D Airspace Areas, Multiple Locations in Kentucky, Mississippi, North Carolina, South Carolina and Puerto Rico; Amendment to Class E Airspace Areas, Multiple Locations in Alabama, Georgia, Kentucky, Mississippi, North Carolina and Tennessee; Correction
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 662-663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-246]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 93-ASO-17 and 93-ASO-18]
Amendment to Class D Airspace Areas, Multiple Locations in
Kentucky, Mississippi, North Carolina, South Carolina and Puerto Rico;
Amendment to Class E Airspace Areas, Multiple Locations in Alabama,
Georgia, Kentucky, Mississippi, North Carolina and Tennessee;
Correction
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; corrections.
-----------------------------------------------------------------------
SUMMARY: This action corrects errors in the airspace designation of the
Columbus Golden Triangle, MS Class E airspace area published in final
rules on October 25, 1993 (58 FR 54953), Airspace Docket No. 93-ASO-17
and (58 FR 54954), Airspace Docket No. 93-ASO-18.
EFFECTIVE DATE: 0900 UTC, January 6, 1994.
FOR FURTHER INFORMATION CONTACT:
Kenneth R. Patterson, Airspace Section, System Management Branch, Air
Traffic Division, Federal Aviation Administration, P.O. Box 20636,
Atlanta, GA 30320; telephone (404) 305-5590.
SUPPLEMENTARY INFORMATION:
History
Airspace Docket 93-ASO-17, published on October 25, 1993 (58 FR
54953), changed the effective hours of certain Class D Airspace areas
from full time to part time. The Columbus Golden Triangle Airport was
inadvertently included in the list of Class D Airspace areas in error.
The Columbus Golden Triangle Airport is Class E2 airspace, an airspace
area designated as a surface area for an airport. Airspace Docket No.
93-ASO-18, published on October 25, 1993 (58 FR 54954), changed the
effective hours of certain Class E airspace areas from full time to
part time. The Columbus Golden Triangle Airport was inadvertently
omitted from the list of Class E airspace areas. This action corrects
the errors by changing the designation of the Columbus Golden Triangle,
MS Airspace area from Class D to Class E.
Correction to Final Rule
Accordingly, pursuant to the authority delegated to me, the
corrections to the airspace designation for the Columbus Golden
Triangle, Mississippi, Airspace area, as published in the Federal
Register on October 25, 1993 (58 FR 54953) (Federal Register Document
No. 93-26168, page 54954, column 2) and omitted from the Federal
Register on October 25, 1993 (58 FR 54954) (Federal Register Document
No. 93-26169, page 54955, column 1) is corrected in the amendment to
the incorporation by reference in 14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9A, Airspace Designations and Reporting
Points, dated June 17, 1993, and effective September 16, 1993, as
follows:
The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. app. 1348(a), 1354(a), 1510; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR
11.69.
Sec. 71.1 [Amended]
Para. 5000 General is amended by removing ``ASO MS D Columbus
Golden Triangle, MS''.
Para. 6002 Class E airspace areas designated as a surface area for
an airport is amended by adding ``ASO MS E2 Columbus Golden Triangle,
MS''.
Issued in College Park, Georgia, on December 17, 1993.
Michael J. Powderly,
Acting Manager, Air Traffic Division, Southern Region.
[FR Doc. 94-246 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 94-234 Schedules of Controlled Substances Temporary Placement of 4- Bromo-2,5-dimethoxyphenethylamine Into Schedule I
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 671-973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-234]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
Schedules of Controlled Substances Temporary Placement of 4-
Bromo-2,5-dimethoxyphenethylamine Into Schedule I
AGENCY: Drug Enforcement Administration, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Acting Administrator of the Drug Enforcement
Administration (DEA) is issuing this final rule to temporarily place 4-
bromo-2,5-dimethoxyphenethylamine into Schedule I of the Controlled
Substances Act (CSA) pursuant to the emergency scheduling provisions of
the CSA. This action is based on the finding by the Acting
Administrator of the DEA that the placement of 4-bromo-2,5-
dimethoxyphenethylamine in Schedule I of the CSA is necessary to avoid
an imminent hazard to the public safety. As a result of this rule, the
criminal sanctions and regulatory controls of Schedule I substances
under the CSA will be applicable to the manufacture, distribution, and
possession of 4-bromo-2,5-dimethoxyphenethylamine.
EFFECTIVE DATE: January 6, 1994.
FOR FURTHER INFORMATION CONTACT: Howard McClain, Jr., Chief, Drug and
Chemical Evaluation Section, Drug Enforcement Administration,
Washington, DC 20537, Telephone: (202) 307-7183.
SUPPLEMENTARY INFORMATION: The Comprehensive Crime Control Act of 1984
(Pub. L. 98-473) amended section 201 of the Controlled Substances Act
(CSA) (21 U.S.C. 811) to give the Attorney General the authority to
temporarily place a substance into Schedule I of the CSA if it is found
that such action is necessary to avoid an imminent hazard to the public
safety. A substance may be temporarily scheduled under the emergency
provision of the CSA if that substance is not listed in any other
schedule under Section 202 of the CSA (21 U.S.C. 812) of if there is no
approval or exemption in effect under 21 U.S.C. 355 of the Food, Drug,
and Cosmetic Act for the substance. The Attorney General has delegated
his authority under 21 U.S.C. 811 to the Administrator of the DEA (28
CFR 0.100).
A notice of intent to temporarily place 4-bromo-2,5-
dimethoxyphenethylamine into Schedule I of the CSA was published in the
Federal Register on November 4, 1993, (58 FR 58819). The Administrator
transmitted notice of his intention to temporarily place 4-bromo-2,5-
dimethoxyphenethylamine into Schedule I of the CSA to the Assistant
Secretary for Health of the Department of Health and Human Services
(HHS). In response to this notification, the Food and Drug
Administration has advised DEA that there are no exemptions or
approvals in effect under 21 U.S.C. 355 of the Food, Drug, and Cosmetic
Act for 4-bromo-2,5-dimethoxyphenethylamine and HHS has no objection to
DEA's intention to temporarily place 4-bromo-2,5-
dimethoxyphenethylamine into Schedule I of the CSA. No other comments
were received regarding this matter.
In accordance with 21 U.S.C. 811(h)(3), the Acting Administrator
has considered the following factors regarding 4-bromo-2,5-
dimethoxyphenethylamine: (1) Its history and current pattern of abuse;
(2) scope, duration and significance of abuse; and (3) what, if any,
risk there is to the public health.
4-Bromo-2,5-dimethoxyphenethylamine is structurally similar to the
Schedule I phenylisopropylamine hallucinogens, 4-methyl-2,5-
dimethoxyamphetamine (STP or DOM) and 4-bromo-2,5-
dimethoxyphenethylamine (DOB). Like DOM and DOB, 4-bromo-2,5-
dimethoxyphenethylamine displays high affinity for central serotonin
receptors and is capable of substituting for either DOM or DOB in drug
discrimination studies conducted in rats. These data suggest that 4-
bromo-2,5-dimethoxyphenethylamine is a psychoactive substance capable
of producing effects similar, though not identical, to DOM and DOB.
Data from human studies indicate that 4-bromo-2,5-
dimethoxyphenethylamine is orally active at 0.1-0.2 mg/kg producing an
intoxication with considerable euphoria and sensory enhancement which
lasts for 6 to 8 hours. Higher doses have been reported to produce
intense and frightening hallucinations.
DEA first encountered 4-bromo-2,5-dimethoxyphenethylamine in Texas
in 1979. Since that time, several other exhibits of 4-bromo-2,5-
dimethoxyphenethylamine have been analyzed by DEA and state forensic
laboratories in California, Arizona, Louisiana, Pennsylvania, Iowa,
Oregon, Georgia, Tennessee and Florida. Clandestine laboratories
producing 4-bromo-2,5-dimethoxyphenethylamine were seized in California
in 1986 and in Arizona in 1992. It has been represented as 3,4-
methylenedioxy-methamphetamine (MDMA) and has been sold in sugar cubes
as LSD. More recently, it has been promoted as an aphrodisiac and
distributed under the product name of NEXUS whose purported active
ingredient is brominated cathinine. DEA has recently seized several
thousand dosage units of this product.
The continued clandestine production, illicit importation,
distribution and abuse of 4-bromo-2,5-dimethoxyphenethylamine poses an
imminent hazard to public safety. DEA is not aware of any commercial
use for this substance in the United States.
In accordance with the provisions of section 201(h) of the CSA (21
U.S.C. 811(h)) and 28 CFR 0.100 and based on a consideration of the
requisite factors and other relevant information, the Acting
Administrator finds that placement of 4-bromo-2,5-
dimethoxyphenethylamine into Schedule I of the CSA on a temporary basis
is necessary to avoid an imminent hazard to the public safety.
The following regulations are effective with respect to 4-bromo-
2,5-dimethoxyphenethylamine on January 6, 1994, except for those
individuals registered with DEA in accordance with part 1301 or part
1311 of title 21 of the Code of Federal Regulations, who currently
possess 4-bromo-2,5-dimethoxyphenethylamine may continue to do so
pending DEA's receipt of an application for amended registration no
later than February 7, 1994:
1. Registration. Any person who manufactures, distributes,
delivers, imports or exports 4-bromo-2,5-dimethoxyphenethylamine or who
engages in research or conducts instructional activities with respect
to 4-bromo-2,5-dimethoxyphenethylamine or who proposes to engage in
such activities must be registered to conduct such activities in
accordance with parts 1301 and 1311 of title 21 of the Code of Federal
Regulations.
2. Security. 4-Bromo-2,5-dimethoxyphenethylamine must be
manufactured, distributed and stored in accordance with Secs. 1301.71
through 1301.76 of title 21 of the Code of Federal Regulations.
3. Labeling and Packaging. All labels and labeling for commercial
containers of 4-bromo-2,5-dimethoxyphenethylamine must comply with
requirements of Secs. 1302.03 through 1302.05, 1302.7 and 1302.08 of
title 21 of the Code of Federal Regulations.
4. Quotas. All persons required to obtain quotas for 4-bromo-2,5-
dimethoxyphenethylamine must submit applications pursuant to
Secs. 1303.12 and 1303.22 of title 21 of the Code of Federal
Regulations.
5. Inventory. Every registrant required to keep records and who
possesses any quantity of 4-bromo-2,5-dimethoxyphenethylamine is
required to take an inventory of all stocks of this substance on hand
pursuant to Secs. 1304.11 through 1304.19 of title 21 of the Code of
Federal Regulations.
6. Records. All registrants required to keep records pursuant to
Secs. 1304.21 through 1304.27 of title 21 of the Code of Federal
Regulations must do so regarding 4-bromo-2,5-dimethoxyphenethylamine.
7. Reports. All registrants required to submit reports in
accordance with Secs. 1304.34 through 1304.37 of title 21 of the Code
of Federal Regulations shall do so regarding 4-bromo-2,5-
dimethoxyphenethylamine.
8. Order Forms. All registrants involved in the distribution of 4-
bromo-2,5-dimethoxyphenethylamine must comply with the order form
requirements of Secs. 1305.01 through 1305.16 of title 21 of the Code
of Federal Regulations.
9. Importation and Exportation. All importation and exportation of
4-bromo-2,5-dimethoxyphenethylamine must be in compliance with part
1312 of title 21 of the Code of Federal Regulations.
10. Criminal Liability. Any activity with 4-bromo-2,5-
dimethoxyphenethylamine not authorized by, or in violation of, the CSA
or the Controlled Substances Import and Export Act occurring on or
after January 6, 1994, is unlawful.
The Acting Administrator of the DEA hereby certifies that the
temporary placement of 4-bromo-2,5-dimethoxyphenethylamine into
Schedule I of the CSA will have no significant impact upon entities
whose interests must be considered under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq. This action involves the temporary control of
a substance with no currently approved medical use in the United
States.
The temporary scheduling of 4-bromo-2,5-dimethoxyphenethylamine is
not a significant regulatory action for the purposes of Executive Order
(E.O.) 12866 of September 30, 1993. Drug scheduling matters are not
subject to review by the Office of Management and Budget (OMB) pursuant
to the provisions of E.O. 12866, section 3(d)(1). Accordingly, this
proposed emergency scheduling action is not subject to provisions of
E.O. 12778 which are contingent upon review by OMB. This regulation
both responds to an emergency situation posing an imminent hazard to
the public safety, and is essential to a criminal law enforcement
function of the United States.
This action has been analyzed in accordance with the principles and
criteria in E.O. 12612, and it has been determined that the temporary
placement of 4-bromo-2,5-dimethoxyphenethylamine into Schedule I of the
CSA does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 21 CFR Part 1308
Administrative practice and procedure, Drug traffic control,
Narcotics, Prescription drugs.
Under the authority vested in the Attorney General by section
201(h) of the CSA (21 U.S.C. 811(h)), and delegated to the
Administrator of the DEA by the Department of Justice regulations (28
CFR 0.100), the Acting Administrator hereby amends 21 CFR part 1308 as
follows:
PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES
1. The authority citation for 21 CFR part 1308 continues to read as
follows:
Authority: 21 U.S.C. 811, 812, 871b, unless otherwise noted.
2. Section 1308.11 is amended by adding paragraph (g)(5) to read as
follows:
Sec. 1308.11 Schedule I.
* * * * *
(g) * * *
(5) 4-bromo-2,5-dimethoxyphenethylamine, its optical isomers, salts
and salts of isomers--7392. Some other names: 2-(4-bromo-2,5-
dimethoxyphenyl)-1-aminoethane; alpha-desmethyl DOB; 2C-B.
Dated: December 27, 1993.
Stephen H. Greene,
Acting Administrator of Drug Enforcement.
[FR Doc. 94-234 Filed 1-5-94; 8:45 am]
BILLING CODE 4410-09-M
Complete official Federal Register PDF
FR Doc. 94-232 Diseases of the Ear and Systemic Conditions; Correction
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Page 677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-232]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
Diseases of the Ear and Systemic Conditions; Correction
AGENCY: Department of Veterans Affairs.
ACTION: Correcting amendment.
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SUMMARY: This document contains corrections to the regulations of the
Department of Veterans Affairs (VA) that govern the evaluation of
diseases of the ear and systemic conditions. These corrections are
required in order to amend editorial errors in those regulations. No
substantive change to the content of 38 CFR part 4 is being made by
this correcting amendment.
EFFECTIVE DATE: This correcting amendment is effective January 6, 1994.
FOR FURTHER INFORMATION CONTACT: John Bisset, Jr., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 233-3005.
SUPPLEMENTARY INFORMATION: The regulations that appear at 38 CFR 4.87a,
diagnostic code 6210, establish the criteria for evaluating disease of
the auditory canal. Due to VA error, that criteria contains the word
``serious'' instead of the word ``serous.'' This document corrects that
error.
The regulations that appear at 38 CFR 4.88a, diagnostic code 6311,
establish the criteria for evaluating military tuberculosis. Due to VA
error, that type of tuberculosis is identified as ``military'' instead
of ``miliary'' tuberculosis. This document corrects that error.
List of Subjects in 38 CFR Part 4
Handicapped, Pensions, Veterans.
For the reasons set out in the preamble, 38 CFR part 4, subpart B,
is amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
Subpart B--Disability Ratings
1. The authority citation for part 4, subpart B, continues to read
as follows:
Authority: 72 Stat. 1125; 38 U.S,C, 1155, unless otherwise
noted.
Sec. 4.87a [Corrected]
2. In Sec. 4.87a, diagnostic code 6210, remove the word
``serious'', and insert, in its place, the word ``serous''.
Sec. 4.88a [Corrected]
3. In Sec. 4.88a, diagnostic code 6311, remove the word
``military'', and insert, in its place, the word ``miliary''.
Approved: December 28, 1993.
Marjorie M. Leandri,
Chief, Records, Reports, and Regulations.
[FR Doc. 94-232 Filed 1-5-94; 8:45 am]
BILLING CODE 8320-01-M
Complete official Federal Register PDF
FR Doc. 94-222 Federal Old-Age, Survivors and Disability Insurance; Determining Disability and Blindness; Extension of Expiration Date for Cardiovascular System Listing
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 670-671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-222]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Part 404
[Regulations No. 4]
RIN 0960--None Assigned
Federal Old-Age, Survivors and Disability Insurance; Determining
Disability and Blindness; Extension of Expiration Date for
Cardiovascular System Listing
AGENCY: Social Security Administration, HHS.
ACTION: Final rule.
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SUMMARY: We are extending the date on which parts A and B of the
cardiovascular system listings, found in appendix 1 of part 404,
subpart P, will no longer be effective from January 6, 1994, to
February 15, 1994. We have made no revisions in the medical criteria in
the cardiovascular system listings; they remain the same as they now
appear in the Code of Federal Regulations. We are presently considering
comments we received on a Notice of Proposed Rulemaking (NPRM) to
update the medical criteria contained in part A and part B of the
cardiovascular system listings. When we have completed our review, any
revised criteria will be published as final regulations.
EFFECTIVE DATE: This final rule will be effective January 6, 1994.
FOR FURTHER INFORMATION CONTACT:
Irving Darrow, Esq., Legal Assistant, Office of Regulations, Social
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235,
(410) 966-0512.
SUPPLEMENTARY INFORMATION: On December 6, 1985, a revised Listing of
Impairments in appendix 1 to subpart P of part 404 was published in the
Federal Register (50 FR 50068). The Listing of Impairments describes,
for each of 13 major body systems, impairments that are considered
severe enough to preclude a person from engaging in any gainful
activity (part A), or in the case of a child under the age of 18,
impairments that are considered severe enough to prevent the child from
functioning independently, appropriately, and effectively in an age-
appropriate manner (part B). The Listing of Impairments is used for
evaluating disability and blindness at the third step of the sequential
evaluation process for adults and children under the Social Security
disability program and the supplemental security income program.
When the revised Listing of Impairments was published in 1985, we
indicated that medical advances in disability evaluation and treatment
and program experience would require that the listings be periodically
reviewed and updated. Accordingly, we established termination dates
ranging from 4 to 8 years for each of the listings for specific body
systems. A date of December 6, 1989, was established for the
cardiovascular system listings in part A to no longer be effective. A
date of December 6, 1993, was established for part B of the
cardiovascular system listings to no longer be effective.
The potential program impact of the changes to update the
cardiovascular system listings required careful analysis and
consideration within the Agency. As our analysis continued, it became
evident that we would be unable to publish a proposed and then a final
regulation containing revised criteria for part A of the cardiovascular
system listings by December 6, 1989. We published in the Federal
Register of December 5, 1989 (54 FR 50233), a final regulation
extending the current part A cardiovascular system listings for a
period of 18 months through June 5, 1991. The part A cardiovascular
system listings were again extended an additional 12 months through
June 5, 1992, by final regulation published in the Federal Register on
June 6, 1991 (56 FR 26030), and were extended to January 5, 1993, by
final regulation published in the Federal Register on June 5, 1992 (57
FR 23945), and to July 6, 1993, by final regulation published in the
Federal Register on December 29, 1992 (57 FR 61795). The part A and
part B cardiovascular system listings were extended to January 6, 1994,
by final regulation published in the Federal Register on July 6, 1993
(58 FR 36133).
On July 9, 1991, we published an NPRM proposing revisions to the
medical criteria contained in parts A and B of the cardiovascular
system listings (56 FR 31266), with provisions for a 60-day comment
period. The complex issues raised by the numerous comments we received
have required extensive analysis and careful consideration. In order to
ensure sufficient time for this review, we are extending the date on
which the current cardiovascular system listings in parts A and B will
no longer be effective from January 6, 1994, to February 15, 1994.
Regulatory Procedures
The Department, even when not required by statute, as a matter of
policy, generally follows the Administrative Procedure Act notice of
proposed rulemaking and public comment procedures specified in 5 U.S.C.
553 in the development of its regulations. The Administrative Procedure
Act provides exceptions to its notice and public comment procedures
when an agency finds there is good cause for dispensing with such
procedures on the basis that they are impracticable, unnecessary, or
contrary to the public interest. We have determined that, under 5
U.S.C. 553(b)(B), good cause exists for waiver of notice of proposed
rulemaking and public comment procedures on this rule because it only
extends the dates on which parts A and B of the cardiovascular system
listings will no longer be effective and makes no substantive changes
to these listings. The current regulations expressly provide that the
listings may be extended by the Secretary, as well as revised and
promulgated again. Because we are not making any revisions to the
current listings, we have determined that use of public comment
procedures is unnecessary under the Administrative Procedure Act.
Regulatory Flexibility Act
We certify that this regulation will not have a significant
economic impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis as provided in Public Law 96-354, the
Regulatory Flexibility Act, is not required.
Paperwork Reduction Act
This regulation imposes no reporting or recordkeeping requirements
necessitating clearance by the Office of Management and Budget.
(Catalog of Federal Domestic Assistance Program No. 93.802, Social
Security-Disability Insurance; No. 93.807, Supplemental Security
Income)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors and disability insurance, Reporting and
recordkeeping requirements.
Dated: December 21, 1993.
Shirley Chater,
Commissioner of Social Security.
Approved: December 29, 1993.
Donna E. Shalala,
Secretary of Health and Human Services.
For the reasons set forth in the preamble, part 404, title 20 of
the Code of Federal Regulations is amended as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
1. The authority citation for subpart P of part 404 is revised to
read as follows:
Authority: Secs. 202, 205 (a), (b), and (d) through (h), 216(i),
221 (a) and (i), 222(c), 223, 225, and 1102 of the Social Security
Act; 42 U.S.C. 402, 405 (a), (b), and (d) through (h), 416(i), 421
(a) and (i), 422(c), 423, 425, and 1302.
2. Appendix 1 to subpart P is amended by revising item 5 of the
introductory text before part A to read as follows:
Appendix 1 to Subpart P--Listing of Impairments
* * * * *
5. Cardiovascular System (4.00 and 104.00): February 15, 1994.
* * * * *
[FR Doc. 94-222 Filed 1-5-94; 8:45 am]
BILLING CODE 4190-29-M
Complete official Federal Register PDF
FR Doc. 94-204 Limited Access Management of Fisheries off Alaska
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 701-702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-204]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 676
[Docket No. 921114-3183; I.D. 123093A]
Limited Access Management of Fisheries off Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notification of application period.
-----------------------------------------------------------------------
SUMMARY: NMFS announces an application period for individuals and other
persons to apply for Quota Share (QS) under the Individual Fishing
Quota (IFQ) program for Pacific halibut and sablefish fisheries off
Alaska. The IFQ program was developed under the authority of the
Magnuson Fishery Conservation and Management Act (Magnuson Act) and the
Northern Pacific Halibut Act (Halibut Act). This action is necessary to
provide potential applicants with notice of an opportunity to apply for
QS under the IFQ program. Individuals and other persons thought to be
eligible to apply have been so informed by NMFS; all others are hereby
notified that they must submit a Request for Application prior to being
sent an individualized application form by NMFS. The intended effect of
this action is to formally announce the application period for QS under
the IFQ program for Pacific Halibut and sablefish fisheries off Alaska.
DATES: Applications must be received during the application period
beginning January 17, 1994, and ending at close of business on July 15,
1994.
ADDRESSES: Applications must be sent to NMFS, Restricted Access
Management, P.O. Box 21668, Juneau, AK 99802-1668 or 709 W. 9th, room
413, Juneau, AK 99801. Applications and copies of the regulations that
implement the IFQ program for Pacific halibut and sablefish fisheries
off Alaska may be obtained from NMFS at the above address.
FOR FURTHER INFORMATION CONTACT:
Phillip J. Smith, Chief, Restricted Access Management Division, Alaska
Region, NMFS, at 907-586-7344.
SUPPLEMENTARY INFORMATION: The IFQ program is a regulatory regime
intended by the North Pacific Fishery Management Council to promote the
conservation and management of halibut and sablefish resources and to
further the objectives of the Magnuson Act and the Halibut Act. The
regulations implementing the IFQ program were approved by the Secretary
of Commerce (Secretary) and became effective on December 9, 1993 (58 FR
59375, November 9, 1993).
Under 50 CFR 676.20(d), the Director, Alaska Region, NMFS (Regional
Director), must provide to any person, on request, an application form
for an initial allocation of QS. The application form sent to the
person requesting a QS allocation will include all data on that
person's vessel ownership and catch history of halibut and sablefish
that can be released to the applicant under current state and Federal
confidentiality rules, and that are available to the Regional Director
at the time of the request. The Regional Director must also provide for
an application period, of no less than 180 days, for the submission of
applications for initial allocation of QS. The Regional Director is
directed to provide notice of the application period in the Federal
Register and other information sources that the Regional Director deems
appropriate.
This notification is intended to comply with the requirements of 50
CFR 676.20(d). Persons thought to be eligible to apply for QS have been
so informed by NMFS by mail. All others are hereby notified that they
must submit a Request for Application prior to being sent an
individualized application form by NMFS. The application period to
submit applications for initial allocation of QS begins on January 17,
1994, and extends for 180 days, ending at the close of business on July
15, 1994. Incomplete applications will be returned to the applicant
with specific kinds of information identified that are necessary to
make it complete. Applications for initial allocation of QS received
after the close of business on July 15, 1994, will not be considered.
Classification
This action is taken under 50 CFR 676.20.
List of Subjects in 50 CFR Part 676
Fisheries, Reporting and recordkeeping requirements.
Authority: 16 U.S.C. 773 et seq. and 16 U.S.C. 1801 et seq.
Dated: December 30, 1993.
David S. Crestin,
Acting Director, Office of Fisheries, Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 94-204 Filed 1-5-94; 8:45 am]
BILLING CODE 3510-22-M
Complete official Federal Register PDF
FR Doc. 94-201 Federal Seed Act Regulations
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Page 655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-201]
Federal Register / Vol. 59, No. 4 / Thursday, January 6, 1994 /
[[Page Unknown]]
[Federal Register: January 6, 1994]
VOL. 59, NO. 4
Thursday, January 6, 1994
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 201
[Docket No. 93-164-1]
Federal Seed Act Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Federal Seed Act regulations to remove the
origin staining requirements for seed of alfalfa and red clover grown
in Mexico and imported into the United States. The removal of the
requirements is necessary to make the regulations conform to the
amendment of the Federal Seed Act by the North American Free Trade
Agreement Implementation Act. The effect of this action is to relieve a
restriction on importation of alfalfa and red clover seed from Mexico.
EFFECTIVE DATE: January 1, 1994.
FOR FURTHER INFORMATION CONTACT: Ms. Polly Lehtonen, Botanist,
Biological Assessment and Taxonomic Support, Operational Support, Plant
Protection and Quarantine, APHIS, USDA, room 626, Federal Building,
6505 Belcrest Road, Hyattsville, MD 20782, (301) 436-8896.
SUPPLEMENTARY INFORMATION:
Background
We are amending the Federal Seed Act Regulations in 7 CFR part 201
(referred to below as the regulations) by removing the requirement that
10 percent of each container of alfalfa or red clover grown in Mexico
be stained red.
On December 8, 1993, President Clinton signed the North American
Free Trade Agreement (NAFTA), to become effective January 1, 1994. To
implement this agreement, Congress passed the North American Free Trade
Agreement Implementation Act (the Act) (Pub. L. 103-182). The statutory
amendments included in the Act become effective coincident with NAFTA.
The amendment in this final rule is mandated by section 361(a) of
the Act, which amended section 302(e)(1) of the Federal Seed Act (7
U.S.C. 1582(e)(1)) by providing that the provisions requiring certain
seeds to be stained red shall not apply to alfalfa or red clover seed
originating in Mexico. (See Pub. L. 103-182).
This final rule is being taken to conform the regulations with the
amendments to the Act, by amending Sec. 201.104 of the regulations to
remove the origin staining requirements for seed of alfalfa and red
clover grown in Mexico and imported into the United States.
Emergency Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that good cause exists to publish this final rule
without prior notice and opportunity for public comment.
Certain regulatory actions must be taken as a result of the
statutory amendments discussed in the ``Background,'' and must become
effective with NAFTA to avoid inconsistency between the regulations and
their statutory authority. Removal of the origin staining requirement
for alfalfa and red clover seed imported from Mexico is one of the
regulatory changes that must become effective at the same time as NAFTA
and the Act to avoid this conflict.
This action relieves a restriction on the importation of alfalfa
and red clover seed from Mexico. Since prior notice and other public
procedures with respect to this final rule are impracticable,
unnecessary, and contrary to the public interest, and since this
regulatory change is mandated by Congress, there is good cause under 5
U.S.C. 553 for making this final rule effective as of January 1, 1994.
Executive Order 12866 and Regulatory Flexibility Act
This final rule has been reviewed under Executive Order 12866.
The Act, as amended, removes the requirement that alfalfa and red
clover seed that is imported from Mexico be stained red. This final
rule conforms the regulations to the Act. We have no record of any
alfalfa or red clover having been imported from Mexico in the past 5
years, and we anticipate no importations in the foreseeable future.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12278
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 201
Advertising, Agricultural commodities, Imports, Labeling, Reporting
and recordkeeping requirements, Seeds, Vegetables.
Accordingly, 7 CFR part 201 is amended as follows:
PART 201--FEDERAL SEED ACT REGULATIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 7 U.S.C. 1582.
2. In Sec. 201.104, paragraph (a) is revised to read as follows:
Sec. 201.104 Staining of imported seed.
(a) 10 percent of the seed in each container of the seed of alfalfa
or red clover grown in any foreign country other than the countries of
South America, Canada, and Mexico shall be stained red.
* * * * *
Done in Washington, DC, this 30th day of December 1993.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-201 Filed 1-5-94; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 94-200 Honeybees and Honeybee Semen
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 656-657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-200]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 322
[Docket No. 93-163-1]
Honeybees and Honeybee Semen
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending a footnote in the honeybee and honeybee semen
regulations that quotes the Honeybee Act, in order to conform the
footnote to the Honeybee Act, as amended by the North American Free
Trade Agreement Implementation Act.
EFFECTIVE DATE: January 1, 1994.
FOR FURTHER INFORMATION CONTACT: Dr. Matthew H. Royer, Chief Operations
Officer, Biological Assessment and Taxonomic Support, Operational
Support, Plant Protection and Quarantine, APHIS, USDA, room 626,
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301) 436-
8896.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 7 CFR part 322 (referred to below as the
regulations) govern the importation into the United States of honeybees
and honeybee semen. These regulations were established pursuant to the
Honeybee Act (7 U.S.C. 281 et seq.) The Honeybee Act was designed to
prevent the movement into the Sec. United States of diseases and
parasites harmful to honeybees. In addition, the Honeybee Act was
designed to prevent the movement into the United States of undesirable
species or subspecies of honeybees.
Section 322.1 of the regulations contains a footnote that includes
the criteria set forth in the Honeybee Act for determining which
countries may be listed in the regulations as countries from which
honeybees or honeybee semen may be imported into the United States. In
this rule, we are amending that footnote to reflect amendments to the
Honeybee Act made by section 361(d)(2) of the North American Free Trade
Agreement Implementation Act.
On December 8, 1993, President Clinton signed the North American
Free Trade Agreement (NAFTA), to become effective January 1, 1994. To
implement this agreement, Congress passed the North American Free Trade
Agreement Implementation Act (the Act) (Pub. L. 103-182). The statutory
amendments included in the Act become effective coincident with NAFTA.
Section 361(d)(2) of the Act amended subsections (a) and (b) of the
Honeybee Act by providing the following: (1) That honeybees may be
imported from Canada or Mexico, subject to such terms as the Secretary
of Agriculture determines appropriate, if the Secretary determines that
the region of Canada or Mexico from which the honeybees originated is,
and is likely to remain, free of diseases or parasites harmful to
honeybees, and undesirable species or subspecies of honeybees; and (2)
that honeybee semen may be imported from Canada or Mexico, if the
Secretary of Agriculture determines that the region of Canada or Mexico
from which the imports originate is, and is likely to remain, free of
undesirable species or subspecies of honeybees. (See Pub. L. 103-182;
107 Stat. 2057).
This rule is being published to conform a footnote in the
regulations with the Act, as amended.
Emergency Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that good cause exists to publish this final rule
without prior notice and opportunity for public comment.
Since prior notice and other public procedures with respect to this
final rule are impracticable, unnecessary, and contrary to the public
interest, and since this regulatory change is mandated by Congress,
there is good cause under 5 U.S.C. 553 for making this final rule
effective as of January 1, 1994.
Executive Order 12866 and Regulatory Flexibility Act
This final rule has been reviewed under Executive Order 12866.
This rule amends a footnote in the regulations that quotes the Act,
in order to conform the footnote to the Act, as amended by the North
American Free Trade Agreement Implementation Act.
The amendments to the regulations will have no practical impact on
importations of honeybees and honeybee semen from Canada or Mexico
since it merely quotes the Act. Furthermore, such importations are
already allowed from any part of Canada. Currently, the only regular
movement of honeybees from Canada to the United States is a relatively
insignificant movement from the Maritime Provinces of Canada to
northern New England. We anticipate that the amendments will have
little practical impact with regard to importations from Mexico.
Sufficient numbers of honeybees are already available in the United
States to make it unnecessary to import honeybees or honeybee semen
from Mexico.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 322
Bees, Honey, Imports, Quarantine, Transportation.
Accordingly 7 CFR part 322 is amended as follows:
PART 322--HONEYBEES AND HONEYBEE SEMEN
1. The authority citation for part 322 is revised to read as
follows:
Authority: 7 U.S.C. 281; 7 CFR 2.17, 2.51, and 371.2(c).
2. In Sec. 322.1, footnote 1 is revised to read as follows:
Sec. 322.1 Importation of honeybees and honeybee semen.\1\
---------------------------------------------------------------------------
\1\The criteria for determining which countries may be listed in
this part as countries from which honeybees or honeybee semen may be
imported into the United States are set forth in 7 U.S.C. 282. In
this regard, 7 U.S.C. provides in relevant part, that:
(a) In order to prevent the introduction and spread of diseases
and parasites harmful to honeybees, and the introduction of
genetically undesirable germ plasm of honeybees, the importation
into the United States of all honeybees is prohibited, except that
honeybees may be imported into the United States--
(1) By the United States Department of Agriculture for
experimental or scientific purposes;
(2) From countries determined by the Secretary of Agriculture--
(A) To be free of diseases or parasites harmful to honeybees,
and undesirable species or subspecies of honeybees; and
(B) To have in operation precautions adequate to prevent the
importation of honeybees from other countries where harmful diseases
or parasites, or undesirable species or subspecies, of honeybees
exist; or
(3) From Canada or Mexico, subject to such terms and conditions
as the Secretary of Agriculture determines appropriate, if the
Secretary determines that the region of Canada or Mexico from which
the honeybees originated is, and is likely to remain, free of
diseases or parasites harmful to honeybees, and undesirable species
or subspecies of honeybees.
(b) Honeybee semen may be imported into the United States only
from:
(1) Countries determines by the Secretary of Agriculture to be
free of undesirable species or subspecies of honeybees, and which
have in operation precautions adequate to prevent the importation of
such undesirable honeybees and their semen; or
(2) Canada or Mexico, if the Secretary of Agriculture determines
that the region of Canada or Mexico from which the imports originate
is, and is likely to remain, free of undesirable species or
subspecies of honeybees.
---------------------------------------------------------------------------
* * * * *
Done in Washington, DC, this 30th day of December, 1993.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-200 Filed 1-5-94; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 94-196 Policy on Audits of REA Borrowers
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 657-661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-196]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF AGRICULTURE
Rural Electrification Administration
7 CFR Part 1773
RIN 0572-AA93
Policy on Audits of REA Borrowers
AGENCY: Rural Electrification Administration, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises and clarifies a provision of the
current regulation which requires a certified public accountant (CPA)
to state whether an electric borrower has complied with certain
provisions of its loan and security instruments. This final rule also
incorporates the illustrative management letter issued by the American
Institute of Certified Public Accountants in a Technical Practice Aid
dated November 11, 1992.
DATES: This rule is effective February 7, 1994. This rule applies to
audits prepared as of December 31, 1993, and thereafter.
FOR FURTHER INFORMATION CONTACT:
Ms. Roberta E. Detwiler, Chief, Technical Accounting and Auditing
Staff, Borrower Accounting Division, Rural Electrification
Administration, room 2222, South Building, U.S. Department of
Agriculture, Washington, DC 20250, telephone number (202) 720-5227.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule is issued in conformance with Executive Order
12866.
Regulatory Flexibility Act Certification
The Administrator, REA, has determined that the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) does not apply to this final
rule.
Information Collection and Recordkeeping Requirements
In compliance with the Office of Management and Budget (OMB)
regulations (5 CFR part 1320) which implements the Paperwork Reduction
Act of 1980 (Pub. L. 96-511) and section 3504 of that Act, the
information collection and recordkeeping requirements have been
approved by the Office of Management and Budget (OMB) under control
number 0572-0095. Comments regarding these requirements may be sent to
the United States Department of Agriculture, Clearance Office, OIRM,
room 404-W, Washington, DC 20250 or to the Office of Management and
Budget, Office of Information and Regulatory Affairs, room 3201,
Washington, DC 20503.
National Environmental Policy Act Certification
The Administrator, REA, has determined that this final rule will
not significantly affect the quality of the human environment as
defined by the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). Therefore, this action does not require an environmental
impact statement or assessment.
Catalog of Federal Domestic Assistance
The program described by this final rule is listed in the Catalog
of Federal Domestic Assistance Programs under number 10.850--Rural
Electrification Loans and Loan Guarantees. This catalog is available on
a subscription basis from the Superintendent of Documents, the United
States Government Printing Office, Washington, DC 20402.
Executive Order 12372
This final rule is excluded from the scope of Executive Order
12372, Intergovernmental Consultation. A Notice of Final Rule entitled
Department Programs and Activities Excluded from Executive Order 12372
(50 FR 47034) exempts REA and Rural Telephone Bank (RTB) loans and loan
guarantees, and RTB bank loans, to governmental and nongovernmental
entities from coverage under this Order.
Executive Order 12778
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This final rule:
(1) Will not preempt any state or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule;
(2) Will not have any retroactive effect; and
(3) Will not require administrative proceeding before parties may
file suit challenging the provisions of this rule.
Background
On December 3, 1991, REA published a final rule on part 1773, at 56
FR 63354, concerning audits of REA borrowers. Part 1773 implements the
standard REA security instrument provision requiring REA borrowers to
prepare and furnish to REA, at least once during each 12-month period,
a full and complete report of its financial condition, operations, and
cash flows, in form and substance satisfactory to REA, audited and
certified by an independent CPA, satisfactory to REA, and accompanied
by a report of such audit, in form and substance satisfactory to REA. A
report of the audit was defined in Sec. 1773.1 to include the auditor's
report, report on compliance, report on internal controls and
management letter.
The management letter is prepared by the CPA and addresses specific
internal control, compliance, and other program issues not typically
addressed in the standard auditor's report, report on internal
controls, or report on compliance. The requirements for preparing a
management letter are set forth in Sec. 1773.34, Management Letter.
This final rule revises and clarifies Sec. 1773.34(e). Section 1773.34
(e)(1)(i) for electric borrowers and Sec. 1773.34 (e)(2)(i) for
telephone borrowers requires CPAs to test compliance with the loan and
security instrument provision requiring borrowers to maintain
insurance. REA is currently reviewing its insurance requirements to
determine if these requirements are representative of current industry
standards. Therefore, until such time as REA's review is completed and
revisions, if any, to current policies are finalized, CPAs will not be
required to test for compliance with the mortgage provision relating to
insurance.
Section 1773.34(e)(1)(ii) for electric borrowers and
Sec. 1773.34(e)(2)(iii) for telephone borrowers requires CPAs to test
for compliance with the loan and security instrument provision
requiring funds to be deposited in banks or other depositories
designated in the loan documents or approved by REA. Because of the
many and varied investing activities available in today's economy, CPAs
have questioned the definition of funds and what, if any, investments
are affected. This final rule provides a definition of funds for
purposes of applying this part 1773.
Section 1773.34(e)(1)(iv) for electric borrowers and
Sec. 1773.34(e)(2)(iv) for telephone borrowers requires CPAs to review
the financial and statistical report and state whether the information
presented is in agreement with the borrower's records. CPAs have
questioned whether they are required to review a certified copy of the
report obtained directly from REA or whether they may review a copy
represented by the borrower as having been submitted to REA. This final
rule clarifies REA's requirement for CPAs to review a copy of the
financial and statistical report represented by the borrower as having
been submitted to REA.
Section 1773.34(e)(1)(iii) for electric borrowers and
Sec. 1773.34(e)(2)(ii) for telephone borrowers requires the CPA to
state whether an REA borrower has complied with the provision of its
loan and security instrument that requires a borrower to obtain written
approval of mortgagees to enter into any contract for the operation or
maintenance of all or any part of its property, or for the use of its
property by others. This requirement clearly goes beyond the scope of
government auditing standards because it requires all contracts, even
those that have little or no impact on financial statement amounts, to
be reviewed by the CPA for REA approval. This testing has, during the
effective period of part 1773, translated into increased audit fees. To
minimize the cost impact to REA borrowers yet provide REA the assurance
it requires, this final rule details the contracts that must be
reviewed by CPAs.
This final rule also incorporates the illustrative management
letter, as amended by these part 1773 revisions, issued by the American
Institute of Certified Public Accountants in a Technical Practice Aid
dated November 11, 1992. The illustrative letter properly addresses the
management letter requirements set forth in 7 CFR 1773.34 and includes
specific language to ensure compliance with the promulgated auditing
literature. As such, REA believes it is more informative than the
sample management letter previously provided in appendix C to part
1773.
Due to a procedural change within REA that will more efficiently
process and review audit reports submitted by REA borrowers, this final
rule also amends Sec. 1773.3, Sec. 1773.20, and Sec. 1773.21 to require
borrowers to submit to REA an additional copy of the audit, report on
compliance, report on internal controls, and management letter and
revises Sec. 1773.21 to require the submission of an additional copy of
borrowers' plans for corrective action.
Comments
A proposed rule entitled Policy on Audits of REA Borrowers,
published September 23, 1993, at 58 FR 49442, invited interested
parties to submit comments on or before November 22, 1993. Comments
were received from the National Rural Electric Cooperative Association
(NRECA) and two certified public accounting firms. The comments
submitted by NRECA were based upon an analysis performed by the
Accounting & Depreciation Committee, a subcommittee of the Generation
and Transmission Managers Association Technical Advisory Committee, and
were considered and concurred in by the NRECA Accounting and Tax
Committee.
One accounting firm agreed with the proposed revisions in all
respects. The other commenters agreed with the proposed revisions;
however, proffered additional revisions. The following paragraphs
address the additional revisions proposed by the commenters.
Comment. Sections 1773.40 and 1773.45 state that the certified
public accountant's (CPA) workpapers must document whether all
regulatory assets and liabilities comply with the requirements of
Statement of Financial Accounting Standards No. 71, Accounting for the
Effects of Certain Types of Regulation, and have received REA approval.
REA telephone borrowers that comply with generally accepted accounting
principles as required by part 32 of the Federal Communications
Commission's Rules and Regulations, Uniform System of Accounts for
Telecommunications Companies, are not required to obtain specific REA
approval of regulatory assets and liabilities. Only REA electric
borrowers must seek such approval. Sections 1773.40 and 1773.45 should
be amended to specify that REA approval of regulatory assets and
liabilities must only be documented for REA electric borrowers.
Response. REA agrees with the comment and has revised Sec. 1773.40
and Sec. 1773.45 accordingly.
Comment. Section 1773.9(c) states that pursuant to the terms of its
audit agreement with the borrower, the CPA must immediately report, in
writing, all irregularities and all indications or instances of illegal
acts, whether material or not to: (1) The president of the borrower's
board of directors; (2) the Director, Borrowers Accounting Division;
and (3) the Office of Inspector General. This requirement goes beyond
that of generally accepted government auditing standards (GAGAS) which
limits reporting requirements for irregularities to material instances
and instances that cumulatively could have a material effect on the
financial statements. GAGAS further limits the reporting of illegal
acts to only the top official of the entity arranging for the audit.
REA should modify the requirements set forth in Sec. 1773.9(c) to
correspond with the GAGAS requirements.
Response. REA recognizes that certain procedures set forth in part
1773 exceed the requirements of a GAGAS audit and REA has acknowledged
that fact in the rule. The Office of Inspector General, in Departmental
Regulation No. 1700-1, Basic OIG Investigation/Audit Organization and
Procedures, sets forth certain requirements that all Federal agencies
within USDA must impose upon nonFederal auditors. One of these
requirements is that all irregularities or illegal acts, regardless of
materiality, discovered by nonFederal auditors be reported to the
Federal agency requiring the audit and to OIG for appropriate action.
For this reason, no revisions were made in the final rule.
Comment. Section 1773.6(a)(2) states that ``The borrower and CPA
acknowledge that REA regulations provide that if the borrower fails to
have an audit performed and documented in compliance with GAGAS and
this part, the borrower is in violation of its security instrument with
REA''. This language exceeds the applicable mortgage covenant and the
following language should be substituted: ``The borrower and CPA
acknowledge that REA will consider the borrower to be in violation of
its security instrument with REA if the borrower fails to have an audit
performed and documented in compliance with GAGAS and 7 CFR part 1773.
This acknowledgement shall not be considered a contractual admission
against interest by either the borrower or the CPA.''
Response. REA's proposed rule published on September 23, 1993, did
not include revisions to Sec. 1773.6(a)(2). Therefore, comments on this
section went beyond the scope of the proposal. REA is planning a
separate rulemaking procedures that will include changes in
Sec. 1773.6(a)(2) and REA will be soliciting comments at that time.
Comment. Certain disclosure and reporting requirements contained in
Sec. 1773.34 should include some consideration of materiality. The
concept of materiality is inherent in all audits. Strict compliance
with the existing policy has, however, resulted in reporting of
immaterial items of non-compliance.
Response. As previously discussed, REA recognizes that certain
procedures set forth in part 1773 exceed the requirements of a GAGAS
audit and REA has acknowledged that fact in the rule. Section 1773.34
sets forth REA's requirement that the CPA must prepare a management
letter and establishes the testing and reporting requirements for the
management letter.
Section 1773.34(e) sets forth certain provisions of REA's security
instrument that REA has determined are essential to the security of its
loans. CPAs auditing REA borrowers are, therefore, required to test for
compliance with the security instrument provisions set forth in
Sec. 1773.34. Because of the degree of reliance that REA places on the
CPAs' testing in these areas, REA has determined that materiality
should not be a factor upon which testing is based. REA has, however,
through the publication of this final rule, revised and eliminated many
of the unclear or burdensome requirements set forth in part 1773. For
this reason, no additional revisions were made to Sec. 1773.34.
List of Subjects in 7 CFR Part 1773
Accounting, Electric power, Loan programs--communications, Loan
programs--energy, Reporting and recordkeeping requirements, Rural
areas, Telephone.
For the reasons set forth in the preamble, REA hereby amends 7 CFR
chapter XVII as follows:
PART 1773--POLICY ON AUDITS OF REA BORROWERS
1. The authority citation for part 1773 is revised to read as
follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq.)
2. In Sec. 1773.3, paragraph (c) is revised to read as follows:
Sec. 1773.3 Annual audit.
* * * * *
(c) Until all loans made or guaranteed by REA have been repaid, the
borrower must furnish three copies of the auditor's report, report on
compliance, report on internal controls, and management letter to REA
within 120 days of the as of audit date.
* * * * *
3. In Sec. 1773.20, paragraph (a) is revised to read as follows:
Sec. 1773.20 CPA's submission of the auditor's report, report on
compliance, report on internal controls, and management letter.
(a) Time limit. As soon as possible after completion of the audit,
but within 90 days of the as of audit date, the CPA should deliver the
auditor's report, report on compliance, report on internal controls,
and management letter to the president of the borrower's board of
directors. As a minimum, copies should be provided for each member of
the board of directors and the manager. Further, three copies must be
provided to the borrower for transmittal to REA.
* * * * *
4. In Sec. 1773.21, paragraphs (b) and (c) are revised to read as
follows:
Sec. 1773.21 Borrower's review and submission of the auditor's report,
report on compliance, report on internal controls, and management
letter.
* * * * *
(b) The borrower must furnish REA with three copies of the
auditor's report, report on compliance, report on internal controls,
and management letter within 120 days of the as of audit date. Any
provision in REA's security instrument that requires such documents to
be furnished to REA in a shorter period of time may be disregarded.
(c) The borrower must furnish REA with three copies of its plan for
corrective action, if any, within 180 days of the as of audit date.
* * * * *
5. Section 1773.34 is amended by removing paragraph (e)(1)(i),
redesignating paragraphs (e)(1)(ii) through (e)(1)(iv) as paragraphs
(e)(1)(i) through (e)(1)(iii) respectively and revising the newly
designated paragraphs, removing paragraph (e)(2)(i), redesignating
paragraphs (e)(2)(ii) through (e)(2)(iv) as paragraphs (e)(2)(i)
through (e)(2)(iii) respectively and revising the newly redesignated
paragraphs to read as follows:
Sec. 1773.34 Management letter.
* * * * *
(e) * * *
(1) * * *
(i) The requirement for funds to be deposited in banks or other
depositories designated in the loan documents or approved by REA. For
purposes of this part 1773, funds shall be defined as cash on deposit
in demand and time accounts, and certificates of deposit;
(ii) The requirement for a borrower to obtain written approval of
mortgagees to enter into any contract for the operation or maintenance
of all or any substantial part of its property, or for the use by
others of its property. For purposes of this part 1773, the following
contracts shall be deemed as requiring REA approval:
(A) Management contracts in which the borrower has contracted to
have another borrower or other entity manage its affairs;
(B) Management contracts in which the borrower has contracted to
manage another borrower or other utility system;
(C) Operations and maintenance contracts in which the borrower has
contracted to have another borrower or other entity operate and/or
maintain all or a substantial part (45% or more) of the physical plant
facilities of the borrower;
(D) Operations and maintenance contracts in which the borrower has
contracted to operate and maintain the physical plant facilities of
another borrower or other utility system; and
(E) Contracts between the borrower and its manager; and
(iii) The requirement for a borrower to prepare and furnish
mortgagees annual financial and statistical reports on the borrower's
financial condition and operations. The CPA must state whether the
information represented by the borrower as having been submitted to REA
in its most recent December 31 REA Form 7 or Form 12 is in agreement
with the borrower's records, and must comment on any exceptions noted.
If the borrower represents that an amended report has been filed as of
December 31, the comments must relate to the amended report.
(2) * * *
(i) The requirement for a borrower to obtain written approval of
the mortgagees to enter into any contract for the operation or
maintenance of property and for the use of mortgaged property by
others, or for services pertaining to toll traffic, operator
assistance, or switching. For purposes of this part 1773, the following
contracts shall be deemed as requiring REA approval:
(A) Any contract, agreement or lease between the borrower and an
affiliate other than as allowed under 7 CFR part 1744, subpart E;
(B) Any lease of a building or land; and
(C) Any other contract as defined in Sec. 1773.34 (e)(2)(i) except:
(1) Industry standard traffic settlement agreements involving
interexchange and long distance carriers which, in form and substance,
conform with contracts in general use in the telecommunications
industry;
(2) Billing and collecting agreements;
(3) Toll pooling arrangements involving National Exchange Carrier
Association and state associations;
(4) Directory services agreements; and
(5) Joint use agreements;
(ii) The requirement for funds to be deposited in banks or other
depositories designated in the loan documents or approved by REA. For
purposes of this part 1773, funds shall be defined as cash on deposit
in demand and time accounts, and certificates of deposit; and
(iii) The requirement for a borrower to prepare and furnish
mortgagees annual financial and statistical reports on the borrower's
financial condition and operations. The CPA must state whether the
information represented by the borrower as having been submitted to REA
in its most recent December 31 REA Form 479 is in agreement with the
borrower's records, and must comment on any exceptions noted. If the
borrower represents that an amended report has been filed as of
December 31, the comments must relate to the amended report.
* * * * *
6. Section 1773.40 is revised to read as follows:
Sec. 1773.40 Regulatory assets.
The CPA's workpapers must document whether all regulatory assets
comply with the requirements of SFAS No. 71. For electric borrowers
only, the CPA's workpapers must document whether all regulatory assets
have received REA approval.
7. Section 1773.45 is revised to read as follows:
Sec. 1773.45 Regulatory liabilities.
The CPA's workpapers must document whether all regulatory
liabilities comply with the requirements of SFAS No. 71. For electric
borrowers only, the CPA's workpapers must document whether all
regulatory liabilities have received REA approval.
8. Appendix C to Part 1773 is revised to read as follows:
Appendix C to Part 1773--Illustrative Independent Auditors' Management
Letter
REA requires that CPAs auditing REA borrowers provide a
management letter in accordance with Sec. 1773.34. REA requires that
this letter bear the same date as the auditor's report and be
addressed to the borrower's board of directors. The CPA is required
to sign the auditor's report, report on compliance, report on
internal controls, and management letter.
Illustrative Independent Auditors' Management Letter
March 15, 19x6
Board of Directors
[Name of Borrower]
[City, State]
We have audited the financial statements of [Name of Borrower]
for the year ended December 31, 19x5, and have issued our report
thereon dated March 15, 19x6. We conducted our audit in accordance
with generally accepted auditing standards, Government Auditing
Standards issued by the Comptroller General of the United States,
and 7 CFR part 1773, Policy on Audits of Rural Electrification
Administration (REA) Borrowers. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement.
In planning and performing our audit of the financial statements
of [Name of Borrower] for the year ended December 31, 19x5, we
considered its internal control structure in order to determine our
auditing procedures for the purpose of expressing an opinion on the
financial statements and not to provide assurance on the internal
control structure.
A description of the responsibility of management for
establishing and maintaining the internal control structure and the
objectives of and inherent limitations in such a structure is set
forth in our independent auditors' report on the internal control
structure dated March 15, 19x6, and should be read in conjunction
with this report.
Our consideration of the internal control structure would not
necessarily disclose all matters in the internal control structure
that might be material weaknesses under standards established by the
American Institute of Certified Public Accountants.
A material weakness is a condition in which the design or
operation of the specific internal control structure elements does
not reduce to a relatively low level the risk that errors or
irregularities in amounts that would be material in relation to the
financial statements being audited may occur and not be detected
within a timely period by employees in the normal course of
performing their assigned functions. However, we noted no matters
involving the internal control structure and its operation that we
consider to be a material weakness as defined above. [If a material
weakness was noted, refer the reader to the independent auditors'
report on internal control structure.]
7 CFR 1773.34 requires comments on specific aspects of the
internal control structure, compliance with specific REA loan and
security instrument provisions, and other additional matters. We
have grouped our comments accordingly. In addition to obtaining
reasonable assurance about whether the financial statements are free
from material misstatements, at your request, we performed tests of
specific aspects of the internal control structure, of compliance
with specific REA loan and security instrument provisions, and of
additional matters. The specific aspects of the internal control
structure, compliance with specific REA loan and security instrument
provisions, and additional matters tested include, among other
things, the accounting procedures and records, materials control,
compliance with specific REA loan and security instrument provisions
set forth in 7 CFR 1773.34 (e)(1), [for telephone borrowers, 7 CFR
1773.34 (e)(2)], related party transactions, and depreciation rates.
[For electric borrowers:] The additional matters tested also include
a schedule of deferred debits and credits, upon which we express an
opinion. In addition, our audit of the financial statements also
included the procedures specified in 7 CFR 1773.38-.45. Our
objective was not to provide an opinion on these specific aspects of
the internal control structure, compliance with specific REA loan
and security instrument provisions, or additional matters, and
accordingly, we express no opinion thereon.
No reports (other than our independent auditors' report, our
independent auditors' compliance report, and our independent
auditors' report on the internal control structure, all dated March
15, 19x6) or summary of recommendations related to our audit have
been furnished to management.
Our comments on specific aspects of the internal control
structure, compliance with specific REA loan and security instrument
provisions, and other additional matters as required by 7 CFR
1773.34 are presented below.
Comments on Certain Specific Aspects of the Internal Control Structure
We noted no matters regarding [Name of Borrower]'s internal
control structure and its operation that we consider to be a
material weakness as previously defined with respect to:
--The accounting procedures and records [list other comments];
--The process for accumulating and recording labor, material, and
overhead costs, and the distribution of these costs to construction,
retirement, and maintenance or other expense accounts [list other
comments]; and,
--The materials control [list other comments].
Comments on Compliance With Specific REA Loan and Security Instrument
Provisions
Management's responsibility for compliance with laws,
regulations, contracts, and grants is set forth in our independent
auditors' report on compliance dated March 15, 19x6, and should be
read in conjunction with this report. At your request, we have
performed the procedures enumerated below with respect to compliance
with certain provisions of laws, regulations, and contracts. The
procedures we performed are summarized as follows:
--Procedure performed with respect to the requirement to maintain
all funds in institutions whose accounts are insured by an Agency of
the Federal Government:
1. Obtained information from financial institutions with which
[Name of Borrower] maintains funds that indicated that the
institutions are insured by an Agency of the Federal Government.
--Procedures performed with respect to the requirement for a
borrower to obtain written approval of the mortgagee to enter into
any contract for the operation or maintenance of property, or for
the use of mortgaged property by others [see Sec. 1773.34(e)(2)(i)
for additional telephone borrower requirements in accordance with 7
CFR 1773.34(e)] for the year ended December 31, 19x5 of [Name of
Borrower]:
1. Obtained and read a borrower prepared schedule of new written
contracts entered into during the year for the operation or
maintenance of its property, or for the use of its property by
others as defined in Sec. 1773.34(e)(1)(ii) [Sec. 1773.34(e)(2)(i)
for telephone borrowers].
2. Reviewed Board of Director minutes to ascertain whether
board-approved written contracts are included in the borrower-
prepared schedule.
3. Noted the existence of written REA [and other mortgagee]
approval of each contract listed by the borrower.
--Procedure performed with respect to the requirement to submit REA
Form 7 or Form 12 [Form 479 for telephone borrowers] to the REA:
1. Agreed amounts reported in Form 7 or Form 12 [Form 479 for
telephone borrowers] to [Name of Borrower]'s records.
The results of our tests indicate that, with respect to the
items tested, [Name of Borrower] complied, except as noted below, in
all material respects, with the specific REA loan and security
instrument provisions referred to below. With respect to items not
tested, nothing came to our attention that caused us to believe that
[Name of Borrower] had not complied, in all material respects, with
those provisions. The specific provisions tested, as well as any
exceptions noted, include the requirements that:
--The borrower maintains all funds in institutions whose accounts
are insured by an Agency of the Federal Government [list all
exceptions];
--The borrower has obtained written approval of the REA [and other
mortgagees] to enter into any contract for the operation or
maintenance of property, or for the use of mortgaged property by
others as defined in Sec. 1773.34(e)(1)(ii) [Sec. 1773.34(e)(2)(i)
for telephone borrowers] [list all exceptions]; and
--The borrower has submitted its Form 7 or Form 12 [Form 479 for
telephone borrowers] to the REA and the Form 7 or Form 12 [Form 479
for telephone borrowers], Financial and Statistical Report, as of
December 31 19x5, represented by the borrower as having been
submitted to REA is in agreement with the [Name of Borrower]'s
records in all material respects [list all exceptions].
Comments on Other Additional Matters
In connection with our audit of the financial statements of
[Name of Borrower], nothing came to our attention that caused us to
believe that [Name of Borrower] failed to comply with respect to:
--The reconciliation of subsidiary plant records to the controlling
general ledger plant accounts addressed at 7 CFR 1773.34(c)(1) [list
all exceptions];
--The clearing of the construction accounts and the accrual of
depreciation on completed construction addressed at 7 CFR
1773.34(c)(2) [list all exceptions];
--The retirement of plant addressed at 7 CFR 1773.34(c) (3) and (4)
[list all exceptions];
--Sales of plant material, or scrap addressed at 7 CFR 1773.34(c)(5)
[list all exceptions];
--The disclosure of material related party transactions, in
accordance with Statement of Financial Accounting Standards No. 57,
Related Party Transactions, for the year ended December 31, 19x5, in
the financial statements referenced in the first paragraph of this
report addressed at 7 CFR 1773.34(f) [list all exceptions]; and
--For electric borrowers only: depreciation rates addressed at 7 CFR
1773.34(g) [list all exceptions].
Detailed Schedule of Inventory Differences
A detailed schedule of differences between physical inventory,
perpetual inventory records, and the general ledger (identifying
gross overages and gross shortages) is provided below. This schedule
is not a required part of the basic financial statements but is
supplementary information required by 7 CFR 1773.34(d). We have
applied certain limited procedures, which consisted principally of
inquiries of management regarding the method of measurement and
presentation of the supplementary information. However, we did not
audit the information and express no opinion on it. [Disclose the
disposition of inventory differences.]
[The detailed schedule of inventory differences would be included
here. The word ``unaudited'' should appear in the title of the
schedule.]
For Electric Borrowers Only: Detailed Schedule of Deferred Debits and
Deferred Credits
Our audit was made for the purpose of forming an opinion on the
basic financial statements taken as a whole. The detailed schedule
of deferred debits and deferred credits required by 7 CFR 1773.34(h)
and provided below is presented for purposes of additional analysis
and is not a required part of the basic financial statements. This
information has been subjected to the auditing procedures applied in
our audit of the basic financial statements and, in our opinion, is
fairly stated in all material respects in relation to the basic
financial statements taken as a whole.
[The detailed schedule of deferred debits and deferred credits would
be included here. The total amount of deferred debits and deferred
credits as reported in the schedule must agree with the totals
reported on the Balance Sheet under the specific captions of
``Deferred Debits'' and ``Deferred Credits''. Those items that have
been approved, in writing, by REA should be clearly indicated.]
This report is intended solely for the information and use of
the board of directors, management, and the REA and supplemental
lenders. However, this report is a matter of public record and its
distribution is not limited.
Name of Firm-----------------------------------------------------------
Michael V. Dunn,
Acting Under Secretary, Small Community and Rural Development.
[FR Doc. 94-196 Filed 1-5-94; 8:45 am]
BILLING CODE 3410-15-M
Complete official Federal Register PDF
FR Doc. 94-181 Revisions to Corporate Average Fuel Economy (CAFE) Calculations Pursuant to the North American Free Trade Agreement Implementation Act of 1993
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 677-679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-181]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 600
[AMS-FRL 4823-1]
Revisions to Corporate Average Fuel Economy (CAFE) Calculations
Pursuant to the North American Free Trade Agreement Implementation Act
of 1993
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action changes the Corporate Average Fuel Economy (CAFE)
calculation regulations to conform to changes required by section 371
of the North American Free Trade Agreement Implementation Act of 1993,
which specifies that costs to motor vehicle manufacturers attributable
to value added in Mexico be included with the costs attributable to
value added in the United States and Canada for the purpose of
separating foreign and domestic fleets.
EFFECTIVE DATE: This action is effective January 1, 1994.
ADDRESSES: Interested parties may submit written comments (in
duplicate, if possible) to Public Docket No. A-93-52 at: Air Docket
Section, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460.
Materials relevant to this final rule have been placed in Docket
No. A-93-52. The docket is located at the above address in room M-1500,
Waterside Mall, and may be inspected weekdays between 8:30 a.m. and
noon, and between 1:30 p.m. and 3:30 p.m.
FOR FURTHER INFORMATION CONTACT: Cliff Tyree, Certification Division,
U.S. Environmental Protection Agency, National Vehicle and Fuel
Emissions Laboratory, 2565 Plymouth Road, Ann Arbor, MI 48105.
Telephone (313) 668-4310.
SUPPLEMENTARY INFORMATION:
I. Background
EPA is today promulgating changes to its fuel economy calculation
regulations to conform to changes in the Motor Vehicle Information &
Cost Savings Act (MVICSA), 15 U.S.C. 2003(b)(2), made by section 371 of
the North American Free Trade Agreement Implementation Act of 1993
(NAFTA Implementation Act), Public Law 103-182 (December 8, 1993).
Section 104(a)(2) of the NAFTA Implementation Act specifically provides
that ``appropriate officers of the United States Government may issue
such regulations * * * as may be necessary to ensure that any * * *
amendment made by this Act, that takes effect on the date the Agreement
enters into force is appropriately implemented on such date.''
The MVICSA, 15 U.S.C. 2003(b)(1), specifies that the EPA
Administrator is to separate passenger automobiles manufactured by a
manufacturer into foreign and domestic fleets, and to calculate the
average fuel economy of each category separately. Prior to the NAFTA
Implementation Act, 15 U.S.C. 2003(b)(2) specified that an automobile
is to be considered domestically manufactured in any model year if at
least 75% of the cost to the manufacturer is attributable to value
added in the United States or Canada, unless the assembly is completed
in Canada and the automobile is not imported into the United States
prior to the expiration of 30 days following the end of the model year.
Section 371 of the NAFTA Implementation Act simply adds a new
subparagraph (G) to 15 U.S.C. 2003(b)(2) extending domestic treatment
to costs to the manufacturer attributable to value added in Mexico,
according to an explicit phase-in schedule. The statutory change does
not alter the current treatment of costs to the manufacturer
attributable to value added in the United States or Canada. Pursuant to
clause (iii) in new subparagraph (G), the Secretary of Transportation
is to prescribe reasonable procedures for manufacturers to make
elections for the phase-in schedules described in today's regulations,
and the EPA Administrator may prescribe rules for carrying out
subparagraph (G). Today, EPA is amending its regulations governing the
determination of domestic production to include the provisions of new
subparagraph (G) in 15 U.S.C. 2003(b)(2).
II. Environmental Effects and Economic Impacts
Because the NAFTA Implementation Act does not give EPA discretion
as to the content of these regulations and because Congress required
the regulations to become effective less than a month after enactment
of this Act, the Agency has not conducted detailed analyses of the
environmental and economic impacts separate from the analyses that were
done on the North American Free Trade Agreement.
III. Public Participation and Effective Date
Pursuant to section 553(b)(3)(B) of the Administrative Procedure
Act, the Agency is not using notice and comment rulemaking procedures
to promulgate this rule because the Agency has found that notice is
unnecessary and impracticable. Comment is unnecessary because the rule
issued today merely conforms pre-existing regulations as required by
the NAFTA Implementation Act and does not involve an exercise of
discretion by the Administrator. Furthermore, comment is impracticable
because the NAFTA Implementation Act allowed the Administrator less
than one month between the date of enactment and the date by which the
regulations must be effective. It is impracticable to have notice-and-
comment rulemaking completed in such a short time. This short time
period is consistent with EPA's view that it is performing a
ministerial act that is not subject to notice and comment rulemaking.
The rule is being made effective sooner than 30 days after
publication or service. This is permitted by section 553(d) of the
Administrative Procedure Act when the Agency finds good cause and
publishes it with the rule. The Agency finds that there is good cause.
The regulation needs to be effective on January 1, 1994, to avoid
having the statute (which goes into effect on January 1, 1994) differ
from the implementing regulations. In addition, the statutory provision
itself will go into effect less than 30 days after it was enacted,
which precludes EPA from providing 30 days between publication or
service and the effective date.
The Agency does not believe that notice-and-comment rulemaking is
required and does not expect this change to be controversial, as it
directly incorporates the explicit provisions of the statutory
amendment into the current regulations. Nonetheless, EPA will accept
comments on these regulatory changes and will consider making changes
if justified by the comments.
IV. Statutory Authority
Authority for the actions promulgated in this final rule is granted
to EPA by section 371 of the North American Free Trade Agreement
Implementation Act of 1993, Public Law 103-182.
V. Administrative Designation
Under Executive Order 12866, the Agency must determine whether the
regulatory action is ``significant'' and, therefore, subject to OMB
review and the requirements of the Executive Order. The order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1990, which requires federal
agencies to identify potentially adverse impacts of federal regulations
upon small entities, does not apply to this rulemaking. Section 604 of
the Regulatory Flexibility Act requires analyses only for final rules
for which a general notice of proposed rulemaking is required. As
discussed in section III, a general notice of rulemaking would be
unnecessary and impracticable and, thus, is not required for this rule.
VII. Reporting and Recordkeeping Requirements
Under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.,
EPA must obtain Office of Management and Budget clearance for any
activity that will involve collecting substantially the same
information from ten or more non-Federal respondents. This regulation
does not impose any new information requirements or contain any new
information collection requirements and will result in no change in the
reporting burden.
List of Subjects in 40 CFR Part 600
Environmental protection, Administrative practice and procedure,
Energy conservation, Fuel economy, Gasoline, Imports, Labeling, Motor
vehicles, Reporting and recordkeeping requirements.
Dated: December 30, 1993.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 600 of chapter I,
title 40 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 600 is revised to read as
follows:
Authority: Title III of the Energy Policy and Conservation Act
of 1975, Public Law 94-163, 89 Stat. 871, Title IV of the National
Energy Conservation Policy Act of 1978, Public Law 95-619, 92 Stat.
3206, Section 371 of the North American Free Trade Agreement
Implementation Act of 1993, Public Law 103-182, 107 Stat. 2057.
2. Section 600.502-81 is amended by revising paragraph (a)(1) to
read as follows:
Sec. 600.502-81 Definitions.
(a) * * *
(1) ``Declared value'' of imported components shall be:
(i) The value at which components are declared by the importer to
the U.S. Customs Service at the date of entry into the customs
territory of the United States, or
(ii) With respect to imports into Canada, the declared value of
such components as if they were declared as imports into the United
States at the date of entry into Canada, or
(iii) With respect to imports into Mexico (when paragraph (b)(3) of
this section applies), the declared value of such components as if they
were declared as imports into the United States at the date of entry
into Mexico.
* * * * *
3. Section 600.511-80 is amended by revising paragraphs (a)
introductory text, (a)(1), and (b)(2) introductory text, and adding new
paragraphs (b)(3), (b)(4) and (b)(5) to read as follows:
Sec. 600.511-80 Determination of domestic production.
(a) An automobile shall be considered domestically produced in any
model year if it is included within a domestically produced car line
(car line includes station wagons for purposes of this paragraph),
unless the assembly of such automobile is completed in Canada or Mexico
and such automobile is not imported into the United States prior to the
expiration of 30 days following the end of the model year. For purposes
of this paragraph a car line will be considered domestically produced
if the following ratio is less than 0.25:
(1) The sum of the declared value, as defined in Sec. 600.502, of
all of the imported components installed or included on automobiles
produced within such a car line within a given model year plus the cost
of transportation and insuring such components to the United States
port of entry, the Mexican port of entry (when Sec. 600.511-80(b)(3)
applies), or the Canadian port of entry but exclusive of any customs
duty, divided by
* * * * *
(b) * * *
(2) For automobiles for which paragraph (b)(3) of this section does
not apply pursuant to the schedule in paragraph (b)(4), components
shall be considered imported unless they are either:
* * * * *
(3) For automobiles for which this paragraph applies pursuant to
the schedule in paragraph (b)(4) of this section, components shall be
considered imported unless they are either:
(i) Wholly the growth, product, or manufacture of the United States
and/or Canada and/or Mexico, or
(ii) Substantially transformed in the United States and/or Canada
and/or Mexico into a new and different article of commerce.
(4) Paragraphs (b)(4) (i) through (v) of this section set forth the
schedule according to which paragraph (b)(3) of this section applies
for all automobiles manufactured by a manufacturer and sold in the
United States, wherever assembled.
(i) With respect to a manufacturer that initiated the assembly of
automobiles in Mexico before model year 1992, the manufacturer may
elect, at any time between January 1, 1997, and January 1, 2004, to
have paragraph (b)(3) of this section apply to all automobiles it
manufactures, beginning with the model year commencing after the date
of such election.
(ii) With respect to a manufacturer initiating the assembly of
automobiles in Mexico after model year 1991, paragraph (b)(3) of this
section shall apply to all automobiles it manufactures, beginning with
the model year commencing after January 1, 1994, or the model year
commencing after the date that the manufacturer initiates the assembly
of automobiles in Mexico, whichever is later.
(iii) With respect to a manufacturer not described by paragraph
(b)(4) (i) or (ii) of this section assembling automobiles in the United
States or Canada but not in Mexico, the manufacturer may elect, at any
time between January 1, 1997, and January 1, 2004, to have paragraph
(b)(3) of this section apply to all automobiles it manufactures,
beginning with the model year commencing after the date of such
election, except that if such manufacturer initiates the assembly of
automobiles in Mexico before making such election, this paragraph shall
not apply, and the manufacturer shall be subject to paragraph
(b)(4)(ii) of this section.
(iv) With respect to a manufacturer not assembling automobiles in
the United States, Canada, or Mexico, paragraph (b)(3) of this section
shall apply to all automobiles it manufactures, beginning with the
model year commencing after January 1, 1994.
(v) With respect to a manufacturer authorized to make an election
under paragraph (b)(4) (i) or (iii) of this section which has not made
that election within the specified period, paragraph (b)(3) of this
section shall apply to all automobiles it manufactures, beginning with
the model year commencing after January 1, 2004.
(5) All elections under paragraph (b)(4) of this section shall be
made in accordance with the procedures established by the Secretary of
Transportation pursuant to 15 U.S.C. 2003(b)(2)(G)(iii).
* * * * *
[FR Doc. 94-181 Filed 1-5-94; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 94-17 Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 874-903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17]
[[Page Unknown]]
[Federal Register: January 6, 1994]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Employment and Training Administration
20 CFR Parts 621 and 655
_______________________________________________________________________
Wage and Hour Division
_______________________________________________________________________
29 CFR Part 504
Attestations by Facilities Using Nonimmigrant Aliens as Registered
Nurses; Final Rule
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 621 and 655
RIN 1205-AA84
Wage and Hour Division
29 CFR Part 504
RIN 1215-AA55
Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
AGENCIES: Employment and Training Administration and Wage and Hour
Division, Employment Standards Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) and the Wage
and Hour Division of the Employment Standards Administration (ESA) of
the Department of Labor (DOL or Department) are publishing final
regulations governing the filing and enforcement of attestations by
facilities seeking to use nonimmigrant aliens as registered nurses
under H-1A visas.
The attestations, required under the Immigration and Nationality
Act, pertain to substantial disruption in the delivery of health care
services, absence of adverse effect on wages and working conditions of
similarly employed registered nurses, payment of wages to nonimmigrant
alien nurses employed by the facility at wage rates paid to other
registered nurses similarly employed by the facility, taking timely and
significant steps designed to recruit and retain U.S. nurses in order
to reduce dependence on nonimmigrant alien nurses, absence of a strike
or lockout, and giving appropriate notice of filing.
Facilities are required to submit these attestations to DOL as a
condition for being able to petition the Immigration and Naturalization
Service (INS) for H-1A nurses. The attestation process is administered
by ETA, while complaints and investigations regarding the attestations
are handled by ESA.
EFFECTIVE DATE: February 7, 1993, except 20 CFR 655.310 and 655.350 and
29 CFR 504.310 and 504.350 which contain information collection
requirements which are under review at OMB. When approval is received,
the agencies will publish a document announcing the effective date.
FOR FURTHER INFORMATION CONTACT:
On 20 CFR part 655, subpart D, and 29 CFR part 504, subpart D, contact
Mr. Denis M. Gruskin, Senior Specialist, 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: 202-219-4369 (this is not
a toll-free number).
On 20 CFR part 655, subpart E, and 29 CFR part 504, subpart E,
contact Mr. Solomon Sugarman, Chief, Farm Labor Programs, Wage and Hour
Division, Employment Standards Administration, Department of Labor,
room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.
Telephone: 202-219-7605 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
The Immigration Nursing Relief Act of 1989 (INRA), Public Law 101-
238, 103 Stat. 2099 (December 18, 1989), amended the Immigration and
Nationality Act (INA) to add new sections 101(a)(15)(H)(i)(a) and
212(m) governing the admission to the United States of nonimmigrant
aliens for employment as registered nurses (RN's) during a 5-year
``pilot'' period. 8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m). The
provisions which INRA added to the INA were further amended by section
162(f) of the Immigration Act of 1990 (IMMACT), Public Law 101-649, 104
Stat. 4978 (November 29, 1990), and by section 302(e) (9) and (10) of
the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991 (MTINA), Public Law 102-232, 105 Stat. 1733
(December 12, 1991).\1\
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\1\The provisions of INRA do not apply to nurses admitted under
the free trade agreement with Canada, whose admission is authorized
under section 214(e) of the INA. Under the provisions of Appendix
1603.D.4 of Annex 1603 of the North Atlantic Free Trade Agreement
(NAFTA), the number of Mexican professionals (including registered
nurses) entering the United States pursuant to NAFTA is limited to
5,500 annually. This limit may be increased by agreement between
Mexico and the United States and will expire 10 years after NAFTA
enters into effect, unless the two countries decide to remove the
limit earlier. Entry into the United States under these provisions
of NAFTA neither forecloses nor establishes their eligibility for
entry under other similar provisions of the INA.
As authorized by Paragraph 5(b) of Section D of Annex 1603 of
NAFTA, during the period that the transition provisions of Appendix
1603.D.4 of Annex 1603 of the NAFTA are in effect, Mexican nurses
are subject to the labor attestation requirements of section 212(m)
of the INA. See 8 U.S.C. 1182(m); Section 341(b) of the NAFTA
Implementation Act.
In order to implement its responsibilities with respect to the
admission of Mexican nurses during the transition period provided
under the NAFTA, the Department will require health care facilities
seeking to use the services of Mexican registered nurses to file H-
1A labor attestations under and pursuant to existing regulations
implementing section 212(m) of the INA, at 20 CFR part 655, subpart
D; and 29 CFR part 504, subpart D. Complaints regarding such
attestations will be processed under and pursuant to existing
regulations at 20 CFR part 655, subpart E; and 29 CFR part 504,
subpart E. This document amends the applicability section of the
regulations promulgated pursuant to section 212(m) of the INA
pertaining to facilities using nonimmigrants as registered nurses
under H-1A visas, to implement the provisions of NAFTA.
---------------------------------------------------------------------------
Congress enacted this legislation based on its finding of a
shortage of RN's in the United States. See, e.g., H.R. Rep. No. 101-
288, 101st Cong., 1st Sess. 1-4 (October 16, 1989). Some health care
facilities had been relying on nonimmigrant RN's admitted under H-1
visas to meet this need. However, the numbers of visas available for
such aliens to adjust their immigration status to permanent residency
had been limited. Id. at 2 and 3.
At the time of INRA's enactment, many such RN's were approaching
the end of their periods of admission to the United States and faced
return to their home countries. Many H-1 RN's potentially affected by
the INRA were thought to be employed in critical care and emergency
service units. Id. at 2. The House Judiciary Committee found that
departure of these H-1 RN's would have a detrimental impact on the care
provided to critically ill patients. Id. The INRA addressed this
situation by permitting certain RN's who had H-1 status to become
permanent residents. Public Law 101-238, sec. 2, 8 U.S.C. 1255 note.
At the same time, Congress was concerned about the perceived
increased dependence of health care providers on foreign RN's. As a
result, the INA, as amended, links future access to nonimmigrant RN's
to the taking of significant steps by the facility to develop, recruit
and retain U.S. workers in the registered nursing profession while
ensuring that the temporary foreign nurses admitted are protected in
their employment and that their employment does not adversely affect
the employment of U.S. nurses. 8 U.S.C. 1182(m).
Facilities are required to file attestations with DOL attesting to
certain conditions and to steps taken to recruit and retain U.S. nurses
in order to reduce dependence on nonimmigrant alien nurses. Facilities
are required to submit these attestations to DOL as a condition to
being able to petition INS for admission of H-1A nurses. The
attestation process is administered by ETA, while complaints and
investigations regarding the attestations are handled by ESA.
The INRA-amended portions of the INA were amended by IMMACT to make
clear that where nursing contractors are involved, both the contractor
and the worksite facility (other than private households) must file
attestations, but granted the Secretary of Labor (Secretary) some
discretion in determining the requirements of the worksite facility
attestation. MTINA further amended the INA to clarify Congressional
intent concerning the ``no lay off'' provision, to specify that a
facility that has laid off a nurse other than a staff nurse still meets
the ``no lay off'' requirement, if it attests that it will not replace
the nurse with an H-1A nurse for 1 year after the lay off.
B. Attestation Process
The INA requires a health care facility seeking access to temporary
foreign RN's (under the H-1A visa category) to file an ``attestation''
with the Department of Labor (DOL or Department) on an annual basis. 8
U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m)(2)(A) and (C). This includes
worksites (except private households) seeking to use the services of an
H-1A nurse through a nursing contractor. See IMMACT section 162(f). The
attestation must assure that the following six statutory criteria are
met:
(1) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility
without the services of such alien(s). A facility is not considered to
meet this clause if, within the previous year, it laid off RN's, unless
such RN's were other than staff nurses and the facility has attested
that it will not replace them with H-1A visa nurses.
(2) The employment of the alien(s) will not adversely affect the
wages and working conditions of RN's similarly employed.
(3) The alien(s) employed by the facility will be paid the wage
rate for RN's similarly employed by the facility.
(4) Either:
(a) The facility has taken and is taking timely and significant
steps designed to recruit and retain sufficient RN's who are United
States citizens or immigrants who are authorized to perform nursing
services, in order to remove as quickly as reasonably possible the
dependence of the facility on nonimmigrant RN's or
(b) The facility is subject to an approved State plan for the
recruitment and retention of nurses (see 8 U.S.C. 1182(m)(3)).
(5) There is not a strike or lockout in the course of a labor
dispute, and the employment of such alien(s) is not intended or
designed to influence an election for a bargaining representative for
RN's of the facility.
(6) At the time of the filing of the petition for RN's, notice of
the filing has been provided by the facility to the bargaining
representative of the RN's at the facility or, where there is none,
notice of the filing has been provided to RN's employed at the facility
through posting in conspicuous locations.
8 U.S.C. 1182(m)(2)(A)(i) through (vi).
Each of the following is a ``significant step'' reasonably designed
to recruit and retain RN's (see Item (4)(a) above):
(i) Operating of training program for RN's at the facility or
financing (or providing participation in) a training program for RN's
elsewhere;
(ii) Providing career development programs and other methods of
facilitating health care workers to become RN's;
(iii) Paying RN's wages at a rate higher than currently being paid
to RN's similarly employed in the geographic area;
(iv) Providing adequate support services to free RN's from
administrative and other non-nursing duties;
(v) Providing reasonable opportunities for meaningful salary
advancement by RN's.
8 U.S.C. 1182(m)(2)(B) (i) through (v); see 8 U.S.C.
1182(m)(2)(A)(iv)(I).
Items (i) through (v) above are not an exclusive list of the
significant steps that may be taken to meet the requirements of the
fourth attestations element, and a facility is not required to take
more than one step if the facility can demonstrate than taking a second
step is not reasonable. 8 U.S.C. 1182(m)(2)(B).
Special rules apply to cases where an alien nurse, for whom an
employer has filed an attestation, is performing services at a worksite
other than the employer's worksite or other than a worksite controlled
by the employer. In cases of temporary, emergency circumstances, with
respect to information not within the knowledge of the attestor, or for
other good cause, the Secretary may waive such requirements for the
attestation for the worksite as the Secretary may determine are
appropriate, in order to avoid duplicative attestations. 8 U.S.C.
1182(m)(2)(A) (as amended by section 162(f)(2)(B)(iii) of IMMACT).
These attestations (and visa petitions supported by them) are
available for public examination in the Employment and Training
Administration (ETA) National Office in Washington, D.C. 8 U.S.C.
1182(m)(2)(E)(i). The Department also informs the Immigration and
Naturalization Service (INS) which attestations have been accepted. The
employer must furnish evidence to INS that the Department has accepted
its attestation for filing as a prerequisite for INS approving a
petition to bring in foreign RN's under H-1A visas (which visas are
issued by the U.S. Department of State (DOS)). 8 U.S.C.
1101(a)(15)(H)(i)(a).
In summary, DOL's administrative functions under the INRA include,
with certain limited exceptions, receiving and accepting attestations
for filing, i.e., checking that the attestation form is properly
completed and that the required explanatory statements are provided.
DOL reviews elements of attestations in only four instances: (1) the
facility attests to a ``non-standards'' indicator of substantial
disruption (Element I); (2) the facility takes as one of its two steps
a ``non-standard'' timely and significant step (Element IV); (3) the
facility attests that taking a second timely and significant step under
Element IV would not be reasonable; and (4) the facility is not an
employer of H-1A nurses and is claiming a bona fide medical emergency
as the basis for requesting a waiver of one or more of the attestation
elements. The Department also makes the accepted attestations available
for public inspection, and notifies INS of those attestations that DOL
has on file. These administration functions are delegated, by
regulation, to ETA.
C. Complaints, Investigations and Enforcement
The Department is also authorized to investigate allegations that a
facility has failed to meet the conditions attested to or that a
facility has misrepresented a material fact in an attestation. 8 U.S.C.
1182(m)(2)(E) (ii) through (v). If violations are found, DOL may impose
administrative remedies, including civil money penalties (CMP's); shall
notify the Attorney General, who shall not approve H-1A petitions for a
period of at least 1 year for the facility; shall obtain back wages;
and may impose other remedies. These activities constitute the
Department's enforcement functions under the INRA. Under the
regulations, the enforcement functions are delegated to the
Department's Employment Standards Administration (ESA), Wage and Hour
Division.
D. Advisory Group
Finally, pursuant to the INRA, the Secretary appointed an advisory
group which includes representatives of DOL, the Department of Health
and Human Services, the Attorney General, hospitals, and labor
organizations representing RN's. Pub. L. 101-238 section 3(c)(2), 103
Stat. at 2103.
Under the INRA, the advisory group advises the Secretary on:
(1) The impact of this legislation on the nursing shortage,
(2) Programs that health care facilities may implement to recruit
and retain U.S. RN's,
(3) State recruitment and retention plans, and
(4) The advisability of extending the law beyond the current 5-year
duration of this pilot program.
The advisory group operates under the auspices of the DOL Office of
the Assistant Secretary for Policy.
E. Operating Experience
On December 6, 1990, an interim final rule was published in the
Federal Register to implement the Department's responsibilities
relating to attestations by facilities seeking to use nonimmigrant
aliens as registered nurses. 55 FR 50500. This interim final rule
incorporated many of the comments the Department received on the Notice
of Proposed Rulemaking (NPRM) which was published in the July 6, 1990,
Federal Register. 55 FR 27992; see also 55 FR 30720 (July 27, 1990).
The interim final rule went into effect on the date it was published
and established a comment period that ended February 4, 1991.
The rulemaking was the Department's first experience with defining
and implementing an attestation process. The interim final rule
required attestations to be filed in the ETA National Office to allow
it to gain operating experience in this new process. The final rule
published below decentralizes the processing of H-1A attestations to
four ETA regional offices.
The attestation includes a completed Form ETA 9029 and accompanying
statements that explain briefly how the facility complies with the
various attestation elements and describe the documentation available
at the facility that demonstrates compliance. In the case of facilities
attesting to ``other'' indicators of substantial disruption, ``other''
timely and significant steps, the unreasonableness of taking more than
one timely and significant step, and/or a bona fide medical emergency,
the attestation must also include more detailed information describing
how the prescribed standards are being met.
Attesting facilities are required to maintain sufficient
documentation to demonstrate compliance with the statutory and
regulatory standards for each of the attestation elements. The
attestation, along with supporting documentation, must be maintained by
the facility on site in a separate file. The file shall also contain
visa petitions supported by the attestation. Any interested party may
request to see this file. The facility is required to make all of the
information in the file available within 72 hours of receiving a
request.
ETA has provided for a 30-day time period to determine whether an
attestation can be accepted for filing. All attestations are examined
to ensure that the Form ETA 9029 is properly completed and that the
explanatory statements contain the required information. In the case of
facilities attesting to ``other'' indicators of substantial disruption,
``other'' timely and significant steps, the unreasonableness of taking
more than one timely and significant step, or a bona fide medical
emergency, the explanatory information is reviewed to ensure that the
prescribed standards are being met. Attestations which meet the
established criteria are accepted for filing.
At the time the interim final rule was promulgated, ETA estimated
that approximately 1,000 facilities per year would be submitting
attestations. Experience has proven this estimate to be too low.
Approximately 1,500 facilities submitted attestations the first year
the H-1A attestation process was in effect. Approximately 1,400
facilities submitted attestations during the 1992 fiscal year. It
should be noted, however, that the number of attestations received was
substantially larger than the number of facilities submitting
attestations, because many facilities submitted attestations that were
returned as unacceptable.
As employers' experience with the H-1A program has increased, the
proportion of attestations that ETA returns because they are
unacceptable for filing has decreased from 43 percent to the current
level of 23 percent. The two most common reasons why ETA is not able to
accept attestations for filing are that the Form ETA 9029 is not
properly completed and the required explanatory statements are not
included with the submission. ETA returns unacceptable attestations to
the facility with a letter explaining why the attestation cannot be
accepted for filing. The facility may file a new attestation which
corrects the deficiencies. There are no restrictions on how frequently
they may be refiled. Most facilities which have submitted attestations
not accepted for filing continue to refile their attestations until
they are accepted for filing.
Over 70 percent of the attestations have been submitted by health
care facilities located in six States--California, New York, New
Jersey, Texas, Illinois, and Florida. Approximately 90 percent of the
attestations received have been submitted by three types of facilities:
about 62 percent by acute care facilities; 22 percent by long-term care
facilities; and 6 percent by nursing contractors.
It was estimated in the interim final rule that 10 notices of
strikes or lockouts and 10 annual State plans would be submitted per
year. However, ETA has received notice from an attesting facility of a
strike that lasted 1 day. ETA has not received any annual State plans.
F. Comments on Interim Final Rule
The interim final rule, which was published in the Federal Register
on December 6, 1990, invited comments through February 4, 1991. 55 FR
50500. comments were received from 21 organizations and individuals,
including employers and employer associations, labor organizations, a
nurse association, a commission, an attorney association, two
individual attorneys, one Member of Congress, and one State employment
security agency (SESA). The 41 comments received on the NPRM were
discussed at 55 FR 50501-50504 and are further discussed in pertinent
part below.
The labor organizations and other organizations representing the
interests of registered nurses asserted that the interim final rule did
not offer U.S. nurses the protection offered in the proposed rule,
while the attorneys and commenters representing the interests of
employers asserted that the interim final rule did not go far enough in
``streamlining'' the attestation process. See 55 FR 27992 (July 6,
1990); and 55 FR 30720 (July 27, 1990). Some commenters stated that the
Department had been successful in addressing concerns that the proposed
definition of ``nurse'' did not take into consideration the differences
among State governments in defining nursing duties and practices and
did not clearly state that foreign nurses who have not been licensed by
State nursing boards must have passed the Commission on Graduates of
Foreign Nursing Schools (CGFNS) Examination.
The major concerns expressed by commenters on the interim final
rule included: the type of and location for retention of supporting
documentation; the waiver provisions; DOL's role in reviewing
attestations; the definition of ``facility''; and the indicators of
substantial disruption.
All of the comments received on the interim final rule, as well as
those comments received on the proposed rule that may not have been
fully addressed in the interim final rule, have been reviewed and
considered in preparing this final rule.
1. Location for Retention of Supporting Documentation
Three labor organizations and one Member of Congress commented that
supporting documentation should be available at DOL, as well as at the
facility. The attorneys commented that only the Form ETA 9029 should be
submitted to DOL and that the requirement concerning the accompanying
explanatory statements should be removed in the final rule. Two
employer associations commented in support of the interim final rule
provisions which require the attestor to maintain the supporting
documentation at the facility, but these commenters wanted the rule to
be more specific about the explanatory statements to be submitted with
the Form ETA 9029.
As indicated in the preamble to the interim final rule, ETA found
the comments offered by Former Representative Bruce Morrison, then
Chairman of the House Judiciary Committee's Subcommittee on
Immigration, Refugees, and International Law when INRA was passed, and
one of the principal authors of the legislation, to be very persuasive.
In commenting on the proposed rule, Representative Morrison voiced his
support for the kinds of supporting documentation required, and
indicated that the intent of a streamlined attestation process would
best be served by keeping the amount of documentation filed with the
attestation to a minimum, and requiring the bulk of it to be retained
at the facility. (The preamble to the interim final rule also pointed
out that the Office of Management and Budget in its official comments
to the Department on the paperwork burden stated that there should be a
streamlined attestation process.) See 55 FR at 50502.
After reviewing the comments received during this rulemaking
concerning the location for retention of supporting documentation, and
considering the fact that the comments received from Representative
Morrison and OMB are consistent with a ``complaint driven process'' for
investigating and resolving complaints, the Department has decided to
retain the interim final rule's provisions concerning the location of
the supporting documentation. The facility must submit to DOL only a
brief statement of what documentation is available at the facility to
demonstrate compliance with the various attestation elements. The full
documentation must be retained at the facility for the duration of the
attestation period, and for as long thereafter as the facility
continues to employ an H-1A nurse hired under the attestation. Further,
the facility must attest that the documentation will be available for
public examination within 72 hours of receiving a request. Failure to
provide access may be the basis for a complaint as a ``failure to
perform.''
2. DOL Authority To Review Attestations
An attorney commenting on the interim final rule questioned whether
DOL has the authority to review any H-1A attestations, and an employer
and an attorney association commented that the DOL role in reviewing
attestations should be reduced. However, two of the labor organizations
submitting comments voiced concern that the interim final rule weakened
DOL's role in reviewing attestations.
The proposed rule prescribed a substantial review function by DOL.
As indicated in the preamble to the interim final rule, ETA found the
comments of Representative Morrison and Senator Edward M. Kennedy,
Chairman of the Senate Judiciary Committee's Subcommittee on
Immigration and Refugee Affairs, highly persuasive. Both Representative
Morrison and Senator Kennedy expressed the view that the proposed DOL
review function was greater than that intended by the legislation. This
was also the view expressed by many health care facility commenters.
See 55 FR at 50502. In response to these comments, the interim final
rule substantially restricted the DOL review function. As indicated
above, DOL reviews elements of attestations in only four instances. For
all other attestations, the DOL function is limited to checking that
the attestation Form ETA 9029 is properly completed, the required
explanatory statements are included, and the facility is attesting to
compliance with the regulatory standards.
The Department has concluded that the provisions governing DOL's
review function, set forth in the interim final rule should be
retained. After a careful review of the comments received both on the
proposed rule and on the interim final rule, considering that only
minimal documentation is submitted, and, in view of the fact that the
H-1A program relies on a ``complaint driven process'' for investigating
and resolving complaints, DOL has determined that no further change in
this provision is warranted.
3. Indicators of Substantial Disruption
The Department received 10 comments concerning the indicators of
substantial disruption under Attestation Element One. One attorney
commented that the rule should not be more specific than the
legislation in addressing ``substantial disruption''; and an employer
commented that a simple description of the steps taken to fill vacant
nursing positions should suffice as evidence that there would be a
substantial disruption without the services of nonimmigrant alien
nurses. In contrast, one employer commented that the requirement that a
facility document its recruiting efforts does not belong in the section
of the regulations dealing with substantial disruption. The employer
also commented that the documentation requirements under
Sec. ____.310(d)(3) should be limited to the total number of nursing
vacancies and the total number of H-1A nurses employed at the time the
attestation is submitted. Other commenters recommended adding more
specific requirements to Sec. ____.310(d)(2) and allowing facilities to
count as vacant all positions encumbered by H-1A nurses.
INRA was enacted to allow facilities to use nonimmigrant alien
nurses temporarily to help alleviate substantial disruptions in health
care services, while requiring that facilities take steps designed to
develop, recruit and retain a trained U.S. workforce as the long-term
solution to the current nursing shortage. One of the legislatively-
mandated elements that a facility must attest to in order to have its
attestation accepted by DOL is a substantial disruption in health care
services due to a shortage of nurses (absent the services of the
nonimmigrant alien nurses on whose behalf they are petitioning).
The interim final rule listed four possible indicators of
substantial disruption. These indicators were identified by
organizations representing both employers and nurses as being those
most commonly experienced throughout the health care industry. However,
this provision was not intended to be an exhaustive list. When a
facility finds that the indicators of substantial disruption listed in
the regulations cannot be demonstrated or that such indicators are
inappropriate to that facility, the facility may propose an alternative
indicator of substantial disruption under the ``other'' category. A
facility attesting to an ``other'' indicator of substantial disruption
is required to provide an explanation which clearly shows a substantial
disruption in the delivery of specific health care services due to a
shortage of nurses. For example, a facility that has a large number of
H-1A nurses with visas that will be expiring within the next 12 months
may be able to demonstrate that it will experience a substantial
disruption if it cannot petition INS for extensions of stay and/or new
H-1A nurses. Such a facility may choose to attest to an ``other''
indicator substantial disruption. The facility would then be required
to demonstrate that it has made conscientious efforts to recruit and
retain U.S. nurses but has a history of being able to fill only a small
percentage of its vacancies with U.S. nurses, and that it projects a
vacancy rate of at least 7 percent, if it cannot continue to petition
INS for H-1A nurses.
DOL has determined that the four indicators of substantial
disruption listed in the interim final rule, coupled with the ``other''
indicator of substantial disruption, strike the proper balance in
addressing the concerns raised in the comments. These indicators
satisfy the need for standardized criteria that can be used by
facilities in determining whether they qualify to file an attestation
and by DOL in carrying out its enforcement responsibilities. Therefore,
they have been retained in this final rule.
However, based on its operating experience, the Department has
determined that a brief explanatory statement is not necessary if the
employer attests to a vacancy rate of 7 percent or more, or to an
unutilized bed rate of 7 percent or more. The employer is still
required to maintain supporting documentation and to make it available
for review at the facility in accordance with Sec. ____.350(b).
4. No Adverse Effect
A nurses' association, a labor organization, and one Member of
Congress submitted comments endorsing the Department's approach to
determining no adverse effect on wages. The labor organization and the
Member of Congress advocated using the same approach to determining
whether there would be no adverse effect on working conditions. A
nationwide employer organization and a statewide employer association
both commented that the rule should state that the wage need only be
the lowest point on the prevailing wage range since most H-1A nurses
start out in entry-level positions. One attorney commented that
facilities should not be required to get prevailing wage determinations
prior to filing their attestations, and another attorney and an
attorney association commented that the prevailing wage requirement
should be deleted entirely.
After careful consideration of the comments received, the
Department has determined that there will be no substantive changes
made to the interim final rule's requirements concerning no adverse
effect on wages and working conditions.
The requirement concerning no adverse effect on wages is statutory
and, as such, cannot be removed from the regulations. As pointed out in
the preamble to the interim final rule:
The phrase ``not adversely affect the wages'' is a well
established legal term of art that has been used for decades in
alien labor certification programs, with a very specific meaning of
at least the area prevailing wage for the occupation * * *.
Presumably Congress was aware of this meaning in incorporating this
language in the INRA. [55 FR at 50506.]
The prevailing wage rate is derived by averaging the wages paid by
a sample of facilities in the geographic area. If the prevailing wage
determination was not obtained prior to submitting the attestation, the
facility would not have the knowledge needed to determine whether it
could truthfully attest to paying each nurse it employs at least the
prevailing wage for the geographic area, nor would it be able to attest
to having the supporting documentation available at the facility for
examination by interested parties.
Operating experience has indicated that clarification is desirable
as to how far in advance a health care facility can obtain the
prevailing wage from the SESA. Some facilities have allowed an
inordinate amount of time to elapse between obtaining a prevailing wage
determination from the SESA and filing an appropriate attestation.
Since prevailing wage surveys and determinations are frequently updated
by SESA's, to minimize the possibility of adverse effect on the wages
of U.S. registered nurses the prevailing wage determination should be
reasonably contemporaneous with the filing of the attestation. To
assure that the prevailing wage determination supporting the
attestation is current the regulation at 20 CFR 655.310(e)(1)(i) has
been amended to require filing of the attestation within 90 days of the
date the prevailing wage request was submitted to the SESA by the
facility.
Section Sec. ____.310(e)(1)(i) of the interim final rule requires
that a facility obtain a prevailing wage determination from the SESA.
Although the SESA and ETA administrative system provide an avenue for a
facility to challenge a SESA determination through the Employment
Service (ES) complaint process (see 20 CFR part 658, subpart E), the
interim final rule did not specifically identify that process. The
final rule provides needed clarification by directing the facility to
the ES complaint process and alerting the facility that a challenge of
a SESA determination may be made only prior to filing an attestation in
which that SESA determination is used. Implicit and essential in this
process is the requirement that once a facility obtains a prevailing
wage determination from the SESA and files the attestation without
challenging the SESA's determination through the ES complaint system,
the facility has in effect accepted the determination and waived its
right to challenge the determination. Permitting a facility to operate
under a 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 nurses, competing hospitals, and other parties who may
have relied on the wage provided by the facility on the attestation.
Section Sec. ____.310(3)(1)(i) of the final rule explicitly states the
Department's clarification of the use and consequence of the ES
complaint process.
Regarding working conditions, the final rule, as did the interim
final rule, applies an adverse effect standard on a facility basis, due
to the administrative infeasibility of making prevailing practice
determinations on an area-wide basis.
Concerning the documentation requirements for pay and compensation,
a Member of Congress commented that the interim final rule did not
require specific enough documentation. He suggested that the rule
should require specific wage and job data for individual nurses and
positions, not summaries. However, a statewide employer association
expressed concern that the interim final rule made confidential
information available to the public. This commenter suggested that such
information should be available only to the Department of Labor and/or
others as hospital policy allows. Former Representative Morrison, in
commenting on the NPRM, which contained documentation requirements much
like the interim final rule, voiced his support for the kinds of
supporting documentation required.
After careful consideration of the comments received, the
Department has determined that there will be no changes made to the
interim final rule's requirements concerning documentation of no
adverse effect on wages and working conditions. Employers should note
that if a complaint is filed, an investigation conducted, and a hearing
held, any employer information submitted as evidence for the hearing
will become a matter of public record. Such information may well be
more extensive than that which the employer must make available for
public examination. See 8 U.S.C. 1182(m)(2)(E).
5. Notification of Strike or Lockout
One employer commented that the requirement that the facility
notify ETA within 3 days of the occurrence of a strike or lockout at
the facility involving registered nurses should be changed to allow the
facility 10 days to notify ETA.
The Department has determined that the current requirement that ETA
be notified within 3 days of the occurrence of a strike or lockout
provides the facility with adequate time for making the required
notification, since the facility will be aware of any such occurrence
immediately. The current protections offered to U.S. nurses would be
weakened if the 3-day notification period were lengthened. Therefore,
no change is being made in the requirements governing notification of
strike or lockout.
6. Notification of Filing
An attorney commented that the requirement that facilities notify
their employees when they file an attestation is burdensome to
employers and goes beyond what is in the statute. The attorney
recommended that facilities be required to provide notice only of the
filing of H-1A visa petitions with INS and only from the time of filing
until the alien begins work. The attorney also commented that the
current requirement concerning the availability for public examination
of the supporting documentation goes beyond what should be required.
While INRA amendments to the INA call for notice of filing when the
visa petition is filed, the accompanying House Judiciary Committee
report on INRA (then called H.R. 3259) recommending that the bill pass
without amendment, stated on page 5 that:
[T]he facility is required to provide notice of filing of an
attestation to various labor representatives or to post a notice in
a conspicuous location. The Committee believes that notice of filing
is an important element of the new procedure, particularly in view
of the fact that this is one of two mechanisms available for U.S.
nurses to monitor the admission of foreign nurses and its possible
effect on their employment situation. [H.R. Rep. No. 101-288, 101st
Cong., 1st Sess. 5 (1989).]
The Department believes that the notice requirements are consistent
with the intent of Congress that all aspects of the process should be
open to public review. Additionally, this approach is necessary to
facilitate the complaint and investigative process that is called for
in the INA.
7. Waiver Provisions
The Department received numerous comments critical of the interim
final rule's provisions concerning waivers of certain attestation
elements. Such waivers may be requested by facilities which are not
themselves employers of H-1A nurses, but which use H-1A nurses employed
by contractors. Three labor organizations opposed the interim final
rule's waiver provisions. One of these organizations expressed
opposition to allowing any waivers, while another commented that the
provisions go beyond the statute and allow for circumvention of
legislative intent. One Member of Congress commented that waivers for
temporary emergency situations should be very narrow and for a short
period of time.
One attorney commented that the waiver provisions should be
expanded so that facilities only using H-1A nurses employed by
contractors would not be required to file an attestation. Such a broad
waiver would go beyond the scope of the statute. The Secretary only has
the discretion to waive attestations for worksites using nonimmigrant
nurses employed by contractors ``to avoid duplicate attestations in
cases of temporary circumstances, with respect to information not
within the knowledge of the attestor, or for other good cause.''
Section 212(m)(2)(A) of the INA as amended by section 162(f)(2)(B)(iii)
of IMMACT.
The Department has carefully considered the comments concerning the
waiver provisions set forth in the interim final rule. With the above
one exception, none of the commenters made any specific recommendations
for revisions to these provisions which would address the concerns
raised. No need or basis for revisions are indicated by the
Department's operational experience, the Department has received very
few requests for waivers during the 2 years the program has been in
operation. Therefore, for the above reasons, no changes have been made
to this section in the final rule.
8. Nursing Contractors
An attorney organization commented that contractors should not be
required to comply with each attestation element. The commenter
suggested that, at most, they should be required to attest that their
employees will be paid at a rate equal to the rate for nurses similarly
employed by the facility where they are placed. The Department does not
have the authority to make such a change. Amendments to the INA by
IMMACT require that both the contractor and the worksite facility
(other than private households) file attestations. These amendments
grant the Secretary discretion to determine the requirements of the
attestation filed by the worksite facility, but they do not grant the
Department the authority to waive any attestation elements for
contractors. To the contrary, IMMACT amended the INA to make clear
that, where nursing contractors are involved, both the contractor and
the worksite facility (other than private households) must file
attestations.
9. Definition of ``Facility''
One labor organization commented in support of the definition of
``facility'' set forth in the interim final rule, which requires an
employer with multiple sites to file an individual attestation for each
site unless the sites are in reasonable geographic proximity, used for
the same purpose, and share the same nursing staff and equipment. On
the other hand, one employer and an attorney recommended that a multi-
site employer should be allowed to file a single attestation so long as
the same employer controls each worksite.
DOL carefully considered this multi-site issue during the
development of both the NPRM and the interim final rule and determined
that any advantages of a ``single attestation'' would be offset by the
problems it would cause. Area prevailing wage rates would be different
for sites in different geographic areas. Entities would be
significantly increasing the vulnerability of their entire system to
suspension from the program, should one of their sites incur a
violation or should a lay off of nurses occur at only one of their
sites. It should be noted, however, that multi-site entities may
develop materials that could be used by all of their sites, with
perhaps some minor modifications. See 55 FR at 50504.
10. State Plans
Three commenters stated that the section dealing with State plans
for the recruitment and retention of nurses should be expanded. One
labor organization commented that the regulations need to specify that
a State may use a State plan to impose obligations on a facility that
go beyond those that would be applicable in the absence of a State
plan. One Member of Congress commented that the regulations should
specify that the list of eight components of a State plan is not an
exhaustive list and that States should be encouraged to develop
additional components. An employer association commented that the
regulations should include the criteria that will be used for
determining whether to approve State plans.
To date, the Department has received no State plans. All of the
changes suggested by the commenters would make the section dealing with
State plans more restrictive. The Department believes that any
additional restrictions would further discourage States from developing
and implementing State plans. Therefore, no revision has been made to
this section.
11. Definitions of ``U.S. Nurse'' and ``U.S. Worker''
The definitions of ``United States (U.S.) nurse'' and ``United
States (U.S.) worker'' in the interim final rule include U.S. citizens,
U.S. nationals, permanent resident aliens, and temporary resident
aliens. A Member of Congress commented that refugees and asylees should
be included in both of these definitions, since refugees and asylees
are lawfully in the U.S., are allowed to work for an indefinite period
of time, and there is nothing in the statute that excludes them.
In response to comments received from the Office of Special Counsel
for Immigration-Related Unfair Employment Practices (OSC) of the
Department of Justice during the rulemaking process implementing the
IMMACT amendments to the permanent labor certification program, the
definition of ``U.S. worker'' for the purposes of that program was
amended to include within that definition ``protected individuals''
under the INA's unfair immigration-related employment practices
provision. 8 U.S.C. 1324b(a)(3); see 56 FR 54920, 54926 (October 23,
1991); see also 8 U.S.C. 1182(a)(5)(A); and 20 CFR part 656. To meet
the definition of a ``protected individual'', one must be a U.S.
citizen, a U.S. national, or an alien in one of four citizenship status
categories: (1) permanent resident; (2) temporary resident (including
seasonal and replenishment agricultural workers); (3) refugee; or (4)
asylee. To remain a ``protected individual'', these aliens must
complete the naturalization process within a specified period of time.
Protected individuals can work indefinitely in the United States.
The H-1A interim final rule's definitions of ``U.S. nurse'' and
``U.S. worker'' included all ``protected individuals'' except refugees
and asylees. To have consistent definitions of the term ``U.S. worker''
in the certification and attestation programs administered by DOL, the
definitions of ``U.S. nurse'' and ``U.S. worker'' have been clarified
and amended in Sec. ____.302 to be consistent with the definition of
``U.S. worker'' for the permanent alien labor certification program.
12. Layoff Provision
INRA amended the INA to provide that a facility cannot meet the
first attestation element, relating to a substantial disruption in the
delivery of health care services, if, within the past 12 months it has
laid off any registered nurses. In the interim final rule the
Department interpreted this statutory provision to cover lay offs of
all individuals who are licensed registered nurses, regardless of the
positions they held within the health care facility.
MTINA amended the INA to clarify Congressional intent regarding lay
offs, by specifying that a facility which has laid off a registered
nurse other than a staff nurse still meets the ``no layoff''
requirement, if, in its attestation, the facility attests that it will
not replace the nurse with an H-1A nurse (either through promotion or
otherwise) for a period of 1 year after the date of the layoff. In the
final rule, section Sec. ______.310(d)(1) has been revised to
incorporate this statutory amendment. The definition of ``layoff'' in
Sec. ______.302 has been revised to specify that if staff nurses are
separated from one specialized activity, the retraining and retention
they are offered must be in another activity involving direct patient
care at the same facility in order for their separation not to be
considered a ``layoff'', and a sentence has been expanded to indicate
that a ``staff nurse'' means a nurse who provides nursing care directly
to patients Item 8.a(i) on the Form ETA 9029 has also been modified to
reflect the amendment to the ``no layoff'' provision.
G. Technical and Clarifying Amendments in Final Rule
1. Decentralization to the Regional Offices
The interim final rule required that attestations be submitted to
the ETA National Office. This was done as a temporary measure, in order
to allow the National Office, which is responsible for establishing the
policies and procedures for administering the program, an opportunity
to gain first-hand experience in administering an attestation program.
It was believed that this experience would assist the National Office
in developing regulations and in providing policy guidance for regional
offices once they were assigned responsibility for administering the
program.
The final rule decentralizes the processing of attestations for
four ETA regional offices--Boston, Chicago, Dallas, and Seattle--by
revising Sec. ______.310(b) and by making the modifications required
elsewhere, so that the entire body of the rule reflects this
decentralization. Information on the addresses of the four regional
offices and the States served by each has been added to the
instructions for completing the Form ETA 9029.
2. Claims of Business Exigency
Under Sec. ______.310(c)(1)(iii) of the interim final rule, a
facility submitting an attestation prior to April 1, 1991, was allowed
to claim business exigency as a basis for delaying the compilation of
documentation supporting its attestation for up to 90 days after
submission of its attestation. This provision, now obsolete, which was
intended to ease the transition from the H-1 to the H-1A program, has
been deleted from the final rule since the applicable date has passed.
3. Indicators of Substantial Disruption
The third indicator of substantial disruption was described in
Sec. ______.310(d)(2)(C) of the interim final rule as the elimination
or curtailment of ``essential health care services that are otherwise
not available in the community. * * *'' This indicator should have been
described, in accordance with section 212(m)(2)(A)(i) of the INA, as
the elimination or curtailment of essential health care services not
otherwise available ``at the facility.'' Section 212(m)(2)(A)(i) of the
INA requires the facility to attest that ``there would be a substantial
disruption through no fault of the facility in the delivery of health
care services of the facility without the services of [the] alien''.
The final rule makes this change, so that the third indicator of
substantial disruption, as described in ______.310(d)(2)(C) of the
final rule reads so that it applies to the elimination or curtailment
of health services at the facility.
4. Timely and Significant Steps
Section 212(m)(2)(E)(iv) of the INA provides that a violation will
be found if a facility ``fail[s] to meet a condition attested to''. The
regulation, Sec. ______.310(g)(1), has been modified, in accordance
with this statutory directive, to specify that employers will be held
responsible for all timely and significant steps to which they attest.
If, for example, the employer attests it is taking four timely and
significant steps, but is found in an investigation to be complying
with only two, a violation will be cited. It should be noted that the
INA requires a minimum of two steps, unless taking a second step would
be unreasonable.
The interim final rule required a facility taking the third timely
and significant step specified in section 212(m)(2)(B)(iii) of the
INA--the facility is paying nurses at a higher rate than nurses
similarly employed in the--area to maintain documentation showing that
its entire schedule of wages for nurses is at least 5 percent higher
than the prevailing wages, as determined pursuant to 22
Sec. ______.310(e)(1). The question arose whether, in the case of a
facility where wages for nurses are the result of arms-length
collective bargaining, this regulation required the facility to pay at
least 5 percent higher than the collectively-bargained rate in order to
attest to the third statutory step. The Department has concluded that
it is not reasonable to require that facilities pay 5 percent higher
than a collectively-bargained rate, if such a wage is at least five
percent higher than the prevailing wage for the geographic area as
determined by the SESA. Therefore, in the final rule
Sec. ______.310(g)(1)(i)(A)(3) has been amended to allow a facility the
option of attesting to the third timely and significant step if its
entire schedule of collectively-bargained wage rates is 5 percent above
the prevailing wage as determined by the SESA.
One commenter, an employer organization, suggested a new waiver
provision. This commenter proposed that any facility which can
demonstrate that it is unable to meet the requirements for nursing
services under title XVIII or title XIX of the Social Security Act, or
that can demonstrate that it fails to meet minimum federal or state
statutory requirements for nursing staff, should be exempt from the
fourth attestation element--timely and significant steps. The
Department has concluded that it does not have the authority to
promulgate such a waiver, since timely and significant steps are
required by the statute.
5. Review of Attestations Accepted and Not Accepted for Filing
The interim final rule's provision for administrative-judicial
review of a determination by DOL whether or not to accept an
attestation for filing has been clarified. Under Sec. ______.301(e), an
appeal may be taken to the Board of Alien Labor Certification Appeals
only on an ETA determination where ETA has performed a review function.
The four instances in which ETA performs a review function involve
determinations on the following issues only: (1) The facility attests
to a ``non-standard'' indicator of substantial disruption (Element I);
(2) the facility takes as one of its two steps a ``non-standard''
timely and significant step (Element IV); (3) the facility attests that
taking a second timely and significant step under Element IV would not
be reasonable; and (4) the facility is not an employer of H-1A nurses
and is claiming a bona fide medical emergency as the basis for
requesting a waiver of one or more of the attestation elements.
6. Technical Amendments to Enforcement Subpart
Based on ESA's operational experience with the H-1A program, three
technical changes have been made in subpart E on enforcement. First, to
regularize the hearing process, while remaining consistent with
Congressional intent regarding timely hearings for interested parties,
the final rule specifies that, once the deadline for requesting a
hearing has expired, an interested party may participate in an
administrative law judge proceeding only with the approval of the
judge. Further, to make the hearing and notification process more
easily understood, the final rule has a separate section setting out
the stages at which the enforcement determination becomes final agency
action and notification (if any) is sent to ETA and INS. In the interim
final rule, these provisions appeared in the same section with the
provisions regarding the ESA determination notification, and this
regulatory structure was somewhat confusing. In addition, the final
rule contains an express statement of the opportunity to direct
inquiries and requests for technical assistance to the Wage and Hour
Division of ESA. The final rule also expressly authorizes the filing of
hearing requests by facsimile transmission (FAX) and requires that the
Solicitor of Labor will be appropriately served with hearing requests.
Finally, the rule has been modified to make corrections regarding cross
references and citations.
II. Paperwork Reduction Act
The information collection requirements contained in the final rule
have been submitted to the Office of Management and Budget (OMB) for
clearance under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
and have been assigned OMB Control No. 1205-0305.
Based on operating experience, technical changes were made to the
Form ETA 9029 to clarify the attestation requirements and reduce the
need for separate explanatory statements. The Department believes that
the changes to the form will result in a decrease in the proportion of
attestations returned to employers because they are unacceptable for
filing.
Included among the changes made to the form are the following:
a. The phrase ``no explanatory statement required'' has been added
as a parenthetical after the first two indicators of substantial
disruption under item 8.a.(ii), to make it clear that explanatory
statements are no longer required for these two attestation elements.
b. The word ``past'' has been added before ``elimination/
curtailment'' in the third indicator of substantial disruption under
item 8.a.(ii), to make it clear that the elimination or curtailment
must already have occurred.
c. Language has been added under item 8.b. clarifying that in order
to be in compliance with the no adverse effect wage requirement the
facility must be paying each nurse it employs at least the prevailing
wage as determined by the SESA unless wages for nurses at the facility
are the result of a collective bargaining agreement.
d. The words ``developed under the provisions of the Immigration
and Nationality Act'' have been added to item 8.d.(i) to clarify that
the State plan has to be one developed pursuant to the requirements of
the INA.
e. The words ``steps of comparable timeliness and significance''
have been added to the sixth box under item 8.d.(ii) to clarify the
``other'' timely and significant step category.
ETA estimates that 1,400 facilities per year will be submitting
attestations. The public reporting burden for this collection of
information is estimated to average 8-10 hours for searching existing
information/data sources and gathering and compiling the data at the
facility the first year that a facility submits an attestation. In the
second, and subsequent years, the reporting burden, based on operating
experience, will average 2-3 hours.
Regulatory Impact and Administrative Procedure
E.O. 12866
In accordance with Executive Order 12866, the Department of Labor
has determined that this is not a significant regulatory action as
defined in section 3(f) of the Order.
Regulatory Flexibility Act
At the time the proposed rule was published, the Department of
Labor 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 yet listed in the Catalog of Federal Domestic
Assistance.
List of Subjects
20 CFR Part 621
Administrative practice and procedure, Aliens, Employment, Guam,
Labor, Wages.
20 CFR Part 655
Administrative and practice procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement, 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 504
Administrative practice and procedures, Aliens, Employment,
Enforcement, Health professions, Immigration, Labor, Nurse, Penalties,
Registered nurse, Reporting and recordkeeping requirements, Wages.
Text of the Joint Final Rule
The text of the joint final rule as adopted by ETA and the Wage and
Hour Division, ESA, in this document appears below.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec.
______.300 Purpose and scope of subparts D and E.
______.301 Overview of process.
______.302 Definitions.
______.310 Attestations.
______.315 State plans.
______.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
______.350 Public access.
Subpart E--Enforcement of H-1A Attestations
______.400 Enforcement authority of Administrator, Wage and Hour
Division.
______.405 Complaints and investigative procedures.
______.410 Civil money penalties and other remedies.
______.415 Written notice and service of Administrator's
determination.
______.420 Request for hearing.
______.425 Rules of practice for administrative law judge
proceedings.
______.430 Service and computation of time.
______.435 Administrative law judge proceedings.
______.440 Decision and order of administrative law judge.
______.445 Secretary's review of administrative law judge's
decision.
______.450 Administrative record.
______.455 Notice to the Attorney General and the Employment and
Training Administration.
______.460 Non-applicability of the Equal Access to Justice Act.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec. ______.300 Purpose and scope of subparts D and E.
(a) Purpose. The Immigration and Nationality Act (INA) establishes
the H-1A program to provide relief for the nursing shortage crisis.
Subpart D of this part sets forth the procedure by which health care
facilities seeking to use nonimmigrant registered nurses may submit
attestations to the Department of Labor relating to the effects of the
nursing shortage on their operations, their efforts to recruit and
retain United States workers as registered nurses and certain
information on wages and working conditions for nurses at the facility.
Subpart E of this part sets forth complaint, investigation, and penalty
provisions with respect to such attestations.
(b) Procedure. The INA establishes a procedure for health care
facilities to follow in seeking admission to the United States for, or
use of, nonimmigrant nurses under H-1A visas. The procedure is designed
to reduce reliance on nonimmigrant nurses in the future, and calls of
the health care facility to attest, and be able to demonstrate, that,
e.g., there would be substantial disruption to health services without
the nonimmigrant nurses and that it is taking timely and significant
steps to develop, recruit, and retain U.S. nurses. Subparts D and E of
this part set forth the specific requirements for those procedures.
(c) Applicability. (1) Subparts D and E of this part apply to all
facilities that seek the temporary admission or use of nonimmigrants as
registered nurses.
(2) During the period that the provisions of Appendix 1603.D.4 of
Annex 1603 of the North American Free Trade Agreement (NAFTA) apply,
subparts D and E of this part shall apply to the entry of a
nonimmigrant who is a citizen of Mexico under and pursuant to the
provisions of section D of Annex 1603 of NAFTA.
Sec. ______.301 Overview of process.
This section provides a context for the attestation process, to
facilitate understanding by health care facilities that may seek
nonimmigrant nurses under H-1A visas.
(a) Federal agencies' responsibilities. The United States
Department of Labor (DOL), Department of Justice, and Department of
State are involved in the H-1A visa process. Within DOL, the Employment
and Training Administration (ETA) and the Employment Standards
Administration (ESA) have responsibility for different aspects of the
process.
(b) Health care facility's attestation responsibilities. Each
health care facility seeking one or more H-1A nurses shall, as the
first step, submit an attestation on Form ETA 9029, as described in
Sec. ______.310 of this part, to the designated regional office of the
Employment and Training Administration (ETA) of DOL. If the attestation
is found to meet the requirements set at Sec. ______.310 (a) through
(k) of this part, ETA shall accept the attestation for filing, shall
return the cover form of the accepted attestation to the health care
facility, and shall notify the Immigration and Naturalization Service
(INS) of the Department of Justice of the filing. As discussed in
Sec. ______.310 of this part, if the facility proposes to utilize
alternative methods to comply with Attestation Elements I and/or IV, or
asserts that taking a second timely and significant step under Element
IV would be unreasonable, or claims a bona fide medical emergency
exemption from Element IV as a worksite using one or more H-1A nurses
through a nursing contractor only, additional supporting information
and ETA review shall be required.
(c) Visa petitions. Upon ETA's acceptance of the filing, the health
care facility may then file with INS H-1A visa petitions for the
admission of H-1A nurses, or to extend the stay of alien nurses
currently working at the facility. the facility shall attach a copy of
the accepted attestation form (Form ETA 9029) to the visa petition
filed with INS. At the same time that the facility files a visa
petition with INS, it shall also send a copy of the visa petition with
INS, it shall also send a copy of the visa petition to the Chief,
Division of Foreign Labor Certifications, U.S. Employment Service,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue, NW., room N-4456, Washington, DC 20210.
(d) Visa issuance. INS assures that the nonimmigrants possess the
required qualifications and credentials to be employed as nurses. See 8
U.S.C. 1182(m)(1)). The Department of State is responsible for issuing
the visa.
(e) Board of Alien Labor Certification Appeals (BALCA) review of
attestations accepted and not accepted for filing. The decision whether
or not to accept for filing an attestation which ETA has reviewed, that
is: an attestation where the facility is attesting to alternative
methods of compliance with Element I and/or Element IV; an attestation
where the facility is claiming that taking a second timely and
significant step would not be reasonable; and/or an attestation where a
facility that is not an employer of H-1A nurses is claiming a bond fide
medical emergency as the basis for requesting a waiver of Element IV;
may be appealed by any interested party to the BALCA.
(f) Complaints. Complaints concerning misrepresentation in the
attestation or failure of the health care facility to carry out the
terms of the attestation may be filed with the Wage and Hour Division
(Division), Employment Standards Administration (ESA) of DOL, according
to the procedures set forth in subpart E of this part. Complaints of
``misrepresentation'' may include assertions that a facility's
attestations of compliance failed to meet the regulatory standards for
attestation elements under which the attestation was accepted by ETA
for filing without ETA review. The Division shall then investigate,
and, where appropriate, after an opportunity for a hearing, assess
sanctions and penalties. Subpart E of this part also provides that
interested parties may obtain an administrative law judge hearing and
may seek the Secretary's review of the administrative law judge's
decision.
Sec. ______.302 Definitions.
For the purposes of subparts D and E of this part:
Accepted for filing means that the attestation and supporting
documentation submitted by the health care facility have been received
by the Employment and Training Administration of the Department of
Labor (DOL) and have been found to be in compliance with the
attestation requirements in Sec. ____.310 of this part.
Act and INA mean the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Administrative law judge means an official appointed pursuant to 5
U.S.C. 3105.
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, Department of Labor, and
such authorized representatives as may be designated to perform any of
the functions of the Administrator under subparts D and E of this part.
Attorney General means the chief official of the U.S. Department of
Justice or the Attorney General's designee.
Board of Alien Labor Certification Appeals (BALCA) means a panel of
one or more administrative law judges who serve on the permanent Board
of Alien Labor Certification Appeals established by 20 CFR Part 656.
BALCA consists of administrative law judges assigned to the Department
of Labor and designated by the Chief Administrative Law Judge to be
members of the Board of Alien Labor Certification Appeals.
Bona fide medical emergency means a situation in which the services
of one or more H-1A contract nurses are necessary at a worksite
facility (which itself does not employ an H-1A nurse) to prevent death
or serious impairment of health, and, because of the danger to life or
health, nursing services for such situation are not elsewhere available
in the geographic area.
Certifying Officer means a Department of Labor official, or such
official's designee, who makes determinations about whether or not H-1A
attestations are acceptable for filing.
Chief Administrative Law Judge means the chief official of the
Office of the Administrative Law Judges of the Department of Labor or
the Chief Administrative Law Judge's designee.
Chief, Division of Foreign Labor Certifications, USES means the
chief official of the Division of Foreign Labor Certifications within
the United States Employment Service, Employment and Training
Administration, Department of Labor, or the designee of the Chief,
Division of Foreign Labor Certifications, USES.
Date of filing means the date an attestation is ``accepted for
filing'' by ETA.
Department and DOL mean the United States Department of Labor.
Director means the chief official of the United States Employment
Service (USES), Employment and Training Administration, Department of
Labor, or the Director's designee.
Division means the Wage and Hour Division of the Employment
Standards Administration, DOL.
Employer means a person, firm, corporation, or other association or
organization involved in the direct provision of health care services,
which:
(1) Suffers or permits a person to work;
(2) Has a location within the United States to which U.S. workers
may be referred for employment;
(3) Proposes to employ workers at a place within the United States;
and
(4) Has an employer-employee relationship with respect to employees
under subpart D and E of this part, as indicated by the fact that it
may hire, pay, fire, supervise or otherwise control the work of such
employee.
Employment means full-time work by an employee for an employer/
health care facility other than oneself. ``Full-time work'' means work
where the nurse is regularly scheduled to work 40 hours or more per
week, unless the facility documents as part of its attestation that it
is common practice for the occupation at the facility or for the
occupation in the geographic area for nurses to work fewer hours per
week.
Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the United States
Employment Service (USES).
Employment Standards Administration (ESA) means the agency within
the Department of Labor (DOL) which includes the Wage and Hour
Division.
Facility means a user of nursing services with either a single site
or a group of contiguous locations at which it provides health care
services. ``Facility'' includes an employer of registered nurses which
provides health care services in a home or other setting, such as a
hospital, nursing home, or other site of employment, not owned or
operated by the employer (e.g., a visiting nurse association or a
nursing contractor). ``Facility'' also includes a private household
which employs or seeks to employ one or more H-1A nurses, but does not
include a private household which uses H-1A nurses only through a
nursing contractor. Groups of structures which form a campus or
separate buildings across the street from one another are a single
facility. However, separate buildings or areas which are not physically
connected or in immediate proximity are a single health care facility
if they are in reasonable geographic proximity, used for the same
purpose, and share the same nursing staff and equipment. An example is
an entity which manages a nursing home and a hospital in the
FR Doc. 94-17 Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses
same area
and which regularly shifts or rotates the nurses between the two. Non-
contiguous sites, even within the same geographic area, which do not
share the same nursing staff and operational purposes are not a single
facility. For example, hospitals which are located on opposite sides of
a municipality, but which are managed or owned by a single entity, are
separate facilities if they do not regularly share nursing staff and
operational purpose.
Geographic area means the area within normal commuting distance of
the place (address) of the intended worksite. If the geographic area
does not include a sufficient number of facilities to make a prevailing
wage determination, the term ``geographic area'' shall be expanded (by
the State employment service, unless directed not to do so by the
Director) with respect to the attesting facility to include a
sufficient number of facilities to permit a prevailing wage
determination to be made. If the place of the intended worksite is
within a Metropolitan Statistical Area (MSA), any place within the MSA
may be deemed to be within normal commuting distance of the place of
intended employment.
Governor means the chief elected official of a State or the
Governor's designee.
H-1A nurse means any nonimmigrant alien admitted to the United
States to perform services as a nurse under section 101(a)(15)(H)(i)(a)
of the Act (8 U.S.C. 1101(a)(15)(H)(i)(a)).
Immigration and Naturalization Service (INS) means the component of
the Department of Justice which makes the determination under the Act
on whether to grant visa petitions to petitioners seeking the admission
of nonimmigrant nurses under H-1A visas.
Layoff means any involuntary separation of one or more staff nurses
without cause/prejudice. If a staff nurse is separated from one
specialized activity and is offered retraining and retention at the
same facility in another activity involving direct patient care at the
same wage and status, but refuses such training and retention, such
separation shall not constitute a layoff. The layoff provision applies
to staff nurses only, not to other health occupations. If the position
occupied by the staff nurse is covered by a collective bargaining
agreement, the collective bargaining agreement definition of ``layoff''
(if any) shall apply to that position.
Lockout means a labor dispute involving a work stoppage, wherein an
employer withholds work from its employees in order to gain a
concession from them.
Nurse means a person who is or will be authorized by a State Board
of Nursing to engage in registered nursing practice in a State or U.S.
territory or possession at a facility which provides health care
services. A staff nurse means a nurse who provides nursing care
directly to patients. In order to qualify under this definition of
``nurse'' the alien shall:
(1) Have obtained a full and unrestricted license to practice
nursing in the country where the alien obtained nursing education, or
have received nursing education in the United States or Canada;
(2) Have passed the examination given by the Commission on
Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full
and unrestricted (permanent) license to practice as a registered nurse
in the state of intended employment, or have obtained a full and
unrestricted (permanent) license in any state or territory of the
United States and received temporary authorization to practice as a
registered nurse in the state of intended employment; and,
(3) Be fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse
to be employed) governing the place of intended employment to practice
as a registered nurse immediately upon admission to the United States,
and be authorized under such laws to be employed by the employer. For
purposes of this paragraph, the temporary or interim licensing may be
obtained immediately after the alien enters the United States and
registers to take the first available examination for permanent
licensure.
Nursing contractor means an entity that employs registered nurses
and supplies these nurses, on a temporary basis and for a fee, to
health care facilities or private homes.
Prevailing wage means the average wage paid to similarly employed
registered nurses within the geographic area.
Secretary means the Secretary of Labor or the Secretary's designee.
Similarly employed means employed by the same type of facility
(acute care or long-term care) and working under like conditions, such
as the same shift, on the same days of the week, and in the same
specialty area.
State means one of the 50 States, the District of Columbia, Puerto
Rico, the U.S. Virgin Islands, and Guam.
State employment security agency (SESA) means the State agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
USES in the operation of the national system of public employment
offices.
Strike means a labor dispute wherein employees engage in a
concerted stoppage or work (including stoppage by reason of the
expiration of a collective-bargaining agreement) or engage in any
concerted slowdown or other concerted interruption of operations.
United States Employment Service (USES) means the agency of the
Department of Labor, established under the Wagner-Peyser Act, which is
charged with administering the national system of public employment
offices.
United States (U.S.) nurse means any nurse who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien admitted for temporary residence under 8
U.S.C. 1160(a), 1161(a), or 1255a(a)(1); is admitted as a refugee under
8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.
United States (U.S.) worker means any worker who is a U.S. citizen;
is a U.S. national; is lawfully admitted for permanent residence; is
granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 1161(a), or 1255(a)(1); is admitted
as a refugee under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C.
1158.
United States is defined at 8 U.S.C. 1101(a)(38).
Worksite means the health care facility or home where the nurse is
involved in the practice of nursing. It is possible, in the case of
nursing contractors, that the employer's physical location and the
worksite facility's physical location will differ.
Sec. ______.310 Attestations.
(a) Who may submit attestations? Any entity meeting the definition
of ``facility'' in Sec. ______.302, may submit an attestation. The
attestation shall include: a completed Form ETA 9029, which shall be
signed by the chief executive officer of the facility (or the chief
executive officer's designee); and explanatory statements prescribed in
paragraphs (c) through (k) of this section. A nursing contractor that
seeks to employ nonimmigrant nurses shall file its own attestation
(including Form ETA 9029 and explanatory statements) as prescribed by
this section, and, as part of its own attestation, shall attest that it
shall refer H-1A nurses only to facilities that, with the exception of
private households which themselves do not employ H-1A nurses, have
current and valid attestations on file with ETA. Subparts D and E of
this part shall apply both to the nursing contractor and to the
worksite facility.
(b) Where should attestations be submitted? Attestations shall be
submitted, by U.S. mail or private carrier, to the U.S. Department of
Labor ETA Regional Office which has jurisdiction over the geographic
area where the H-1A nurse will be employed, as designated by the Chief,
Division of Foreign Labor Certifications, USES. The addresses of the
Certifying Officers are set forth in the instructions to Form ETA 9029.
(c) What should be submitted?--(1) Form ETA 9029 and explanatory
statements.
(i) A completed and dated original Form ETA 9029, containing the
required attestation elements and the original signature of the chief
executive officer of the facility, shall be submitted, along with two
copies of the completed, (signed, and dated) Form ETA 9029. (Copies of
Form ETA 9029 are available at the address listed in paragraph (b) of
this section.) In addition, explanations, where required, for the
required attestation elements as to what documentation is available at
the facility and how such documentation indicates compliance with the
regulatory standards as prescribed in paragraphs (d) through (i) of
this section. In addition,
(A) If the facility is a nursing contractor, the special
attestation element in paragraph (j) of this section; or
(B) If the facility is a worksite (other than a private household
which itself does not employ, seek to employ, or file a visa petition
on behalf of an H-1A nurse), which will use H-1A nurses only through a
nursing contractor, the special attestation element in paragraph (k) of
this section, shall be submitted in triplicate with the Form ETA 9029.
(ii) If the facility is proposing to meet alternative standards for
substantial disruption (Element I) and/or the taking of timely and
significant steps (Element IV), an explanation of the standards being
proposed and an explanation of how these proposed standards are of
comparable significance to those set forth in the statute shall be
submitted in triplicate. If the facility is attesting that it can only
take one timely and significant step (Element IV), it shall submit an
explanation, in triplicate, demonstrating that taking a second step is
unreasonable. If the facility uses H-1A nurses only through a nursing
contractor, but claims a bona fide medical emergency exemption from
Element IV, it shall submit a written explanation, in triplicate,
demonstrating the existence of such an emergency. DOL may request
additional explanation and/or documentation from a facility in the
process of determining acceptability in cases described in this
paragraph (c)(1)(ii).
(2) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by section 212(m)(2)(A)
of the Act (8 U.S.C. 1182(m)(2)(A)). Section 212(m)(2)(A) of the Act
requires covered facilities to attest as follows:
(i) The attestation referred to in section 101(a)(15)(H)(i)(a) of
the Act, with respect to a facility for which an alien will perform
services, is an attestation as to the following:
(A) There would be a substantial disruption through no fault of the
facility in the delivery of health care services of the facility
without the services of such an alien or aliens.
(B) The employment of the aliens will not adversely affect the
wages and working conditions of registered nurses similarly employed.
(C) The aliens employed by the facility will be paid the wage rate
for registered nurses similarly employed by the facility.
(D) Either--(1) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient registered
nurses who are United States citizens or immigrants who are authorized
to perform nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on nonimmigrant
registered nurses, or
(2) The facility is subject to an approved State plan for the
recruitment and retention of nurses (described in section 212(m)(3) of
the Act; 8 U.S.C. 1182(m)(3)).
(E) There is not a strike or lockout in the course of a labor
dispute, and the employment of such an alien is not intended or
designed to influence an election for a bargaining representative for
registered nurses of the facility.
(F) At the time of the filing of the petition for registered nurses
under section 101(a)(15)(H)(i)(a) of the Act, notice of the filing has
been provided by the facility to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses at the facility through posting in conspicuous locations.
(ii) A facility is considered not to meet paragraph (c)(2)(i)(A) of
this section (relating to an attestation of a substantial disruption in
delivery of health care services) if the facility, within the previous
year, has laid off registered nurses. A facility which lays off a
registered nurse other than a staff nurse still meets the ``no layoff'
requirement if, in its attestation, it attests that it will not replace
the nurse with an H-1A nurse (either through promotion or otherwise)
for a period of 1 year after the date of the layoff. Nothing in
paragraph (c)(2)(i)(D) of this section shall be construed as requiring
a facility to have taken significant steps described in such paragraph
before December 18, 1989 (i.e., the date of enactment of the
Immigration Nursing Relief Act of 1989).
(d) The first attestation element: substantial disruption. The
facility shall attest that ``there would be substantial disruption
through no fault of the facility in the delivery of health care
services of the facility without the services of such an alien or
aliens.'' This element shall be met if the facility provides the
following information:
(1) Layoffs. The facility shall attest that it has not laid off
nurses during the 12-month period prior to submitting the attestation.
A facility which lays off a registered nurse other than a staff nurse
still meets the ``no layoff'' requirement if, in its attestation it
attests that it will not replace the nurse with an H-1A nurse (either
through promotion or otherwise) for a period of 1 year after the date
of the layoff.
(2) Nursing shortage. (i) The facility shall attest to one of the
following:
(A) It has a current nurse vacancy rate of 7 percent or more. An
explanatory statement does not have to be submitted for this
attestation element, but documentation to support this attestation
shall be maintained at the facility and shall be available for review
in accordance with Sec. ______.350(b).
(B) It is unable to utilize 7 percent or more of its total beds due
to a shortage of nurses. An explanatory statement does not have to be
submitted for this attestation element, but supporting documentation
for this attestation shall be maintained at the facility and shall be
available for review in accordance with Sec. ______.350(b).
(C) It has had to eliminate or curtail the delivery of essential
health care services due to a shortage of nurses, and provide brief
explanatory information about the essential services eliminated or
curtailed by the facility due to a nursing shortage, what documentation
is available at the facility to substantiate this attestation, where
this documentation is located and can be reviewed, and the applicable
time period of the documentation.
(D) It has been unable to effect established plans to provide
needed new health care services in the community due to a shortage of
nurses, and provide brief explanatory information about needed new
services that have not been implemented by the facility due to a
nursing shortage and which will be implemented with the availability of
H-1A nurses, what documentation is available at the facility to
substantiate this attestation, where this documentation is located and
can be reviewed, and the applicable time period of the documentation.
(ii) Other substantial disruption. When an attesting facility finds
that the indicators in paragraphs (d)(2)(i) (A) through (D) of this
section cannot be demonstrated, or that such indicators are
inappropriate to that facility, but that without the services of H-1A
nurses, substantial disruption in the delivery of health care services
of the facility still would occur due to a shortage or nurses, the
facility shall provide an explanation of how a shortage of nurses has
caused a ``substantial disruption'' in the delivery of its health care
services. Such explanation shall be sufficient to provide a clear
showing of ``substantial disruption'' in the delivery of specific
health care services due to a shortage of nurses, and shall clearly
explain why the indicators in paragraphs (d)(2)(i) (A) through (D) of
this section cannot be met by or are inappropriate to that facility. In
addition to the documentation required to be maintained by attesting
facilities described in paragraph (d)(3) of this section, facilities
attesting under this paragraph also shall maintain and make available
for inspection (as described elsewhere in this section) such additional
documentation as is necessary to substantiate such claim of substantial
disruption.
(3) Documentation of facility's nursing positions. The attesting
facility shall maintain and make available for inspection (as described
in Sec. ______.350(b)) documentation substantiating:
(i) The total number of nursing positions at the facility;
(ii) The number of nursing vacancies at the facility during a 12-
month period ending no later than 3 months prior to submittal of the
attestation;
(iii) The number of nurses who left the facility during the same
12-month period;
(iv) The number of nurses hired by the facility during the same 12-
month period;
(v) The overall staffing pattern for nursing positions at the
facility; and
(vi) A description of the facility's efforts to recruit U.S. nurses
during the same 12-month period. The documentation on numbers of
nurses, maintained for the purposes of this paragraph (d)(3), shall be
broken out by numbers of U.S. nurses, nurses admitted under H-1 visas,
nurses admitted under H-1A visas, nurses admitted under other
nonimmigrant visas, and other nurses.
(e) The second attestation element: no adverse effect. The facility
shall attest that ``the employment of the alien will not adversely
affect the wages and working conditions of registered nurses similarly
employed.''
(1) Wages. To meet the requirement of no adverse effect on wages,
the facility shall attest that it shall pay each nurse of the facility
at least the prevailing wage for the occupation in the geographic area.
The facility shall pay the higher of the wage required pursuant to this
paragraph (e) or the wage required pursuant to paragraph (f) of this
section (i.e., the third attestation element: facility wage).
(i) State employment security determination. The facility does not
independently determine the prevailing wage. The State employment
security agency (SESA) shall determine the prevailing wage for
similarly employed nurses in the geographic area in accordance with
administrative guidelines or regulations issued by ETA. The facility
shall request the appropriate prevailing wage from the SESA not more
than 90 days prior to the date the attestation is submitted to ETA.
Once a facility obtains a prevailing wage determination from the SESA
and files an attestation supported by that prevailing wage
determination, the facility shall be deemed to have accepted the
prevailing wage determination as accurate and appropriate (both to the
occupational classification and wage) and thereafter shall not contest
the legitimacy of the prevailing wage determination in an investigation
or enforcement action. A facility may challenge a SESA prevailing wage
determination through the Employment Service complaint system. See 20
CFR part 658, Subpart E. A facility which challenges a SESA prevailing
wage determination shall obtain in final ruling from the Employment
Service prior to filing an attestation. Any such challenge shall not
require the SESA to divulge any employer wage data which was collected
under the promise of confidentiality.
(ii) Collectively bargained wage rates. Where wage rates for nurses
at a facility are the result of arms-length collective bargaining,
those rates shall be considered ``prevailing'' for that facility for
the purposes of this subpart.
(iii) Total compensation package. The prevailing wage finding under
this paragraph (e)(1) relates to wages only. However, each item in the
total compensation package for U.S., H-1A, and other nurses employed by
the facility shall be the same within a given facility, including such
items as housing assistance and other perquisites.
(iv) Documentation of pay and total compensation. The facility
shall maintain documentation summarizing its pay schedule and
compensation package for nurses. See Sec. ______.350(b). The summary
shall cover each category of nursing position in which H-1A nurses are
or will be hired or promoted into and each category of nursing position
in which H-1A nurses (or nurses admitted on H-1 visas) have been hired
or promoted into. Categories of nursing positions not covered by the
documentation shall not be covered by the attestation, and, therefore,
such positions shall not be filled or held by H-1A nurses.
(2) Working conditions. To meet the requirement of no adverse
effect on working conditions, the facility shall attest that it shall
afford equal treatment to U.S. and H-1A nurses with the same seniority,
with respect to such working conditions as the number and scheduling of
hours worked (including shifts, straight days, weekends); vacations;
wards and clinical rotations; and overall staffing-patient patterns.
(f) The third attestation element: facility/employer wage. The
facility employing or seeking to employ the alien shall attest that
``the alien employed by the facility will be paid the wage rate for
registered nurses similarly employed by the facility.'' The facility
shall maintain documentation substantiating compliance with this
attestation which shall include a description of the factors taken into
consideration by the facility in making compensation decisions for
nurses and the facility pay schedule for nurses maintained pursuant to
paragraph (e)(1) of this section. See Sec. ______.350(b). The facility
shall pay the higher of the wage required pursuant to this paragraph
(f) or the wage required pursuant to paragraph (e) of this section
(i.e., the second attestation element: no adverse effect).
(g) The fourth attestation element: timely and significant steps;
or State plan. The facility may satisfy the fourth attestation element
by satisfying Alternative I in paragraph (g)(1) of this section or by
satisfying Alternative II in paragraph (g)(2) of this section.
(1) Alternative I: Timely and significant steps. The facility shall
attest that it ``has taken and is taking timely and significant steps
designed to recruit and retain sufficient registered nurses who are
United States citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as reasonably possible
the dependence of the facility on nonimmigrant registered nurses.'' The
facility shall take at least two such steps, unless it demonstrates
that taking a second step is not reasonable. The steps described in
this paragraph (g)(1) shall not be considered to be an exclusive list
of the significant steps that may be taken to meet the conditions of
this paragraph (g)(1). Nothing in this subpart or subpart E of this
part shall require a facility to take more than one step, if the
facility can demonstrate that taking a second step is not reasonable.
The facility is not required to have taken any of these steps prior to
December 18, 1989. A facility choosing to take timely and significant
steps other than those specifically described in paragraph (g)(1)(i)(A)
of this section shall submit with its attestation a description of the
steps it is proposing to take and an explanation of how the proposed
steps are of comparable timeliness and significance to those described
in paragraph (g)(1)(i)(A) of this section. A facility claiming that a
second step is unreasonable shall submit an explanation of why such
second step would be unreasonable.
(i) Descriptions of steps-- (A) Statutory steps. Each of the
actions described in this paragraph (g)(1)(i)(A) shall be considered a
significant step reasonably designed to recruit and retain U.S. nurses.
A facility choosing any one of the following steps shall attest that
its program(s) meets the regulatory requirements set forth for each and
provide an explanation of how the requirements are satisfied by the
program(s). In addition, the attesting facility shall maintain and make
available for inspection (as described in Sec. ______.350(b) of this
part) documentation specified in the particular step selected and/or
documentation which provides a complete description of the nature and
operation of its program(s) sufficient to substantiate its attestation
and full compliance with the requirements for the particular step
selected. Section 212(m)(2)(E) of the INA provides that a violation
shall be found if a facility fails to meet a condition attested to.
Thus, a facility shall be held responsible for all timely and
significant steps to which it attests.
(1) Step One: ``Operating a training program for registered nurses
at the facility or financing (or providing participation in) a training
program for registered nurses elsewhere.'' Training programs may
include either courses leading to a higher degree (i.e., beyond an
associate or a baccalaureate degree), or continuing education courses.
If the program includes courses leading to a higher degree, they shall
be courses which are part of a program accepted for degree credit by a
college or university and accredited by a State Board of Nursing or a
State Board of Higher Education (or its equivalent), as appropriate. If
the program includes continuing education courses, they shall be
courses which meet criteria established to qualify the nurses taking
the courses to earn continuing education units accepted by a State
Board of Nursing (or its equivalent). In either type of program,
financing by the facility, either directly or arranged through a third
party, shall cover the total tuition costs of such training. The number
of U.S. nurses for whom such training actually is provided shall be no
less than half of the number of nurses who left the facility during the
12-month period prior to submission of the attestation. (U.S. nurses to
whom such training was offered, but who rejected such training, may be
counted towards those provided training, but the facility, in such
case, shall maintain documentation of such offer and rejection). See
Sec. ______.350(b).
(2) Step Two: ``Providing career development programs and other
methods of facilitating health care workers to become registered
nurses.'' This may include programs leading directly to a degree in
nursing, or career ladder/career path programs which could ultimately
lead to a degree in nursing. A facility choosing this step shall
maintain as documentation a description of the content and eligibility
requirements for both types of programs and an explanation of how the
requirements of this paragraph (g)(1)(i)(A)(2) are satisfied by each
program. Any such degree program shall be, at a minimum, either through
an accredited community college (leading to an associate's degree), 4-
year college (a bachelor's degree), or diploma school, and the course
of study shall be one accredited by a State Board of Nursing (or its
equivalent). For career ladder or career path programs, the facility
shall maintain documentation that the programs are normally part of a
course of study or training which prepares a U.S. worker for enrolling
in formal direct training leading to a degree in nursing, either
through an accredited community college, a 4-year college, or a diploma
school. See Sec. ______.350(b) of this part. Financing by the facility,
either directly or arranged through a third party, shall cover the
total costs of such programs. U.S. workers participating in such
programs shall be working or have worked in health care occupations or
health care facilities. The number of U.S. workers for whom such
training is provided shall be equal to no less than half the average
number of vacancies for nurses during the 12-month period prior to the
submission of the attestation.
(3) Step Three: ``Paying registered nurses wages at a rate higher
than currently being paid to registered nurses similarly employed in
the geographic area.'' A facility choosing this step shall maintain
documentation showing that its entire schedule of wages for nurses is
at least 5 percent higher than the prevailing wages as determined by
the SESA pursuant to paragraph (e)(1)(i) of this section, and it shall
attest that such differentials shall be maintained throughout the
period of the attestation's effectiveness.
(4) Step Four: ``Providing adequate support services to free
registered nurses from administrative and other non-nursing duties.''
Non-nursing duties include such activities as housekeeping duties; food
preparation and delivery; transporting patients; providing occupational
and respiratory therapy; answering telephones; running errands for
patients; and clerical tasks. A facility choosing this step shall not
require nurses at the facility to perform non-nursing duties. However,
it is understood that on an infrequent non-recurring basis, nurses at
the facility may perform one or more of the tasks encompassed by the
duties listed above in this paragraph (g)(1)(i)(A)(4) or other non-
nursing duties. Facilities choosing this step shall maintain
documentation showing what steps they have taken to ensure that nursing
jobs do not include any of these duties and that such activity by
nurses at the facility occurs without regularity and infrequently. Such
a facility also shall maintain documentation with respect to any other
steps being taken to relieve nurses from non-nursing duties, or to
enhance the nursing function, such as computerizing certain writing and
routine functions performed by nurses.
(5) Step Five: ``Providing reasonable opportunities for meaningful
salary advancement by registered nurses.'' Documentation for this step
shall include documentation of systems for salary advancement based on
factors such as merit, education, and specialty, and/or salary
advancement based on length of service with other bases for wage
differentials remaining constant.
(i) Merit, education, and specialty. For salary advancement based
on factors such as merit, education, and specialty, the facility shall
maintain and make available for inspection documentation that it
provides opportunities for professional development of its nurses which
lead to salary advancement, e.g., opportunities for continuing
education; in-house educational instruction; special committees, task
forces, or projects considered of a professional development nature;
participation in professional organizations; and writing for
professional publications. Such opportunities shall be available to all
the facility's nurses.
(ii) Length of service. For salary advancement based on length of
service, the facility shall maintain and make available for inspection
documentation that it has clinical ladders in place which provide,
annually, salary increases of 3 percent or more for a period of no less
than 10 years, over and above the costs of living and merit, education,
and specialty increases and differentials.
(B) Other possible steps. The Act indicates that the five steps
described in paragraphs (g)(1)(i)(A) (1) through (5) of this section
are not an exclusive list of timely and significant steps which might
qualify. Facilities are encouraged to be innovative in devising other
timely and significant steps, but these shall be of timeliness and
significance comparable to those in paragraphs (g)(1)(i)(A) (1) through
(5) of this section to qualify. A facility may attest that it has taken
and is taking other such steps and explain in its attestation what
these steps are, their nature and scope, how they are effected and how
they meet the statutory test of timeliness and significance comparable
to those Steps One through Five described above. A facility choosing
alternative steps shall attest that its program(s) meet(s) the
statutory requirements of timeliness and significance in promoting the
development, recruitment and retention of U.S. nurses, explaining how
these requirements are satisfied by such program(s). In addition, the
attesting facility shall maintain and make available for inspection (as
described in Sec. ______.350(b)) documentation which provides a
complete description of the nature and operation of its program(s)
sufficient to substantiate its attestation and full compliance with the
requirements of this paragraph (g)(1)(i)(B). Examples of such steps
which--depending on the circumstances, the size and nature of the
attesting facility, the nature and scope of the step(s) described, the
number of persons affected, and other such factors--may meet these
requirements are:
(1) Monetary incentives--providing monetary incentives to nurses,
through bonuses and merit pay plans not included in the base
compensation package, for additional education, and for efforts leading
to increased recruitment and retention of U.S. nurses. Such monetary
incentives can be based on actions by nurses such as: Innovations to
achieve better patient care, increased productivity, reduced waste,
better safety; obtaining additional certification in a nursing
specialty; unused sick leave; recruiting other U.S. nurses; staying
with the facility for a given number of years; taking less desirable
assignments (other than shift differential); participating in
professional organizations, on task forces and on special committees;
or contributing to professional publications. Facilities attesting to
this step shall have a documented system for providing significant
financial rewards in the form of bonuses or salary advancement to
nurses participating in the activities described in this paragraph.
(2) Special perquisites--providing nurses with special perquisites
for dependent care or housing assistance of a nature and/or extent that
constitute a ``significant'' factor in inducing employment and
retention of U.S. nurses.
(3) Work schedule options--providng nurses with non-mandatory work
schedule options for part-time work, job-sharing, compressed work week
or non-rotating shifts (provided, however, that H-1A nurses are
employed only in full-time work) of a nature and/or extent that
constitute a ``significant'' factor in inducing employment and
retention of U.S. nurses.
(4) Other training options--providing training opportunities to
become registered nurses to U.S. workers not currently in health care
occupations by means of financial assistance (e.g., scholarship, loan
or pay-back programs) to such persons.
(ii) Unreasonableness of second step. The steps described in this
paragraph (g)(1) shall not be considered to be an exclusive list of the
significant steps that may be taken to meet the conditions of this
paragraph (g)(1). Nothing in this subpart or subpart E of this part
shall require a facility to take more than one step, if the facility
can demonstrate that taking a second step is not reasonable. However, a
facility shall make every effort to take at least two steps. A facility
taking only one step shall provide an explanation with its attestation,
and maintain documentation at the facility, relating to why taking a
second step is not reasonable. The taking of a second step may be
considered unreasonable if it would result in the facility's financial
inability to continue providing the same quality and quantity of health
care or if the provision of nursing services would otherwise be
jeopardized by the taking of such a step. If the single step which is
taken is one of the statutorily defined steps described in paragraphs
(g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section, the facility
shall explain with its attestation, and maintain documentation at the
facility, with respect to each of the four statutory steps (described
in paragraphs (g)(1)(i)(A)(1) through (g)(1)(i)(A)(5) of this section)
not taken, relating to why it would be unreasonable for the facility to
take such step and also shall explain with its attestation, and shall
maintain and make available for inspection (as described in
Sec. ______.350(b)) documentation demonstrating why it would be
unreasonable for the facility to take any other steps designed to
recruit, develop and retain sufficient U.S. nurses to meet its staffing
needs. If the single step which is taken is not one of the five
statutory steps described in paragraphs (g)(1)(i)(A)(1) through
(g)(1)(i)(A)(5) of this section, the facility shall, with respect to
each of the five statutory steps not taken, explain with its
attestation, and maintain documentation and make available for
inspection (as described in Sec. ______.350(b)) documentation,
demonstrating why it would be unreasonable for the facility to take
such step; the facility also shall explain with its attestation, and
make available for inspection (as described in Sec. ______.350(b))
documentation demonstrating why it would be unreasonable for the
facility to take any other steps designed to recruit and retain
sufficient U.S. nurses to meet its staffing needs. On the basis of the
explanation submitted by the facility, the Certifying Officer shall
determine whether the requirements of this paragraph (g)(1)(ii) have
been met. See paragraph (m) of this section regarding such
determinations and administrative appeals therefrom.
(iii) Alternative to criteria for each specific step. Instead of
complying with the specific criteria for each of the steps in the
second and succeeding years, a facility may include in its prior year's
attestation, in addition to the actions taken under Steps One through
Five, that it shall reduce the number of alien (H-1 and H-1A
visaholders) nurses it utilizes within 1 year from the date of
attestation by at least 10 percent, without reducing the quality or
quantity of services provided. If this goal is achieved (as
demonstrated by documentation maintained by the facility and made
available for inspection, and indicated in its subsequent year's
attestation), the facility's subsequent year's attestation may simply
include the Form ETA 9029, an explanation demonstrating that this goal
has been achieved and an attestation that it shall again reduce the
number of alien nurses it utilizes within 1 year from the date of
attestation by at least 10 percent. This alternative is designed to
permit a facility to achieve the objectives of the Act, without
subjecting the facility to detailed requirements and criteria as to the
specific means of achieving that objective. The first, second, and
succeeding years shall be consecutive.
(2) Alternative II: subject to approved annual State plan. As an
alternative to attesting to the timely and significant steps set forth
in paragraph (g)(1) of this section, the facility may attest that it
``is subject to an approved State plan for the recruitment and
retention of nurses.'' The contents of the annual State plan are
described in more detail in Sec. ______.315. For an individual facility
to meet the requirements of this paragraph (g)(2), the annual State
plan shall provide for the taking of timely and significant steps by
that facility, and the facility shall maintain appropriate
documentation with respect to those steps. See Sec. ______.350(b). To
qualify for this Alternative II, the annual State plan shall have been
approved prior to the date the facility submits its attestation to ETA
for filing.
(h) The fifth attestation element: No strike or lockout; no
intention or design to influence bargaining representative election.
The facility shall attest that ``there is not a strike or lockout in
the course of a labor dispute, and the employment of such an alien is
not intended or designated to influence an election for a bargaining
representative for registered nurses of the facility.'' Labor disputes
for purposes for this attestation element relate only to those
involving nurses providing nursing services; other health service
occupations are not included. This attestation element applies to
strikes and lockouts and elections of bargaining representatives at
both the facility employing the nurse and, in the case of nursing
contractors, at the worksite facility.
(1) Notice of strike or lockout. In order to remain in compliance
with the no strike or lockout portion of this attestation element, if a
strike or lockout of nurses at the facility occurs during the 1 year's
validity of the attestation, the facility, within 3 days of the
occurrence of the strike or lockout, shall submit to the ETA National
Office, by U.S. mail or private carrier, written notice of the strike
or lockout.
(2) ETA notice to INS. Upon receiving from a facility a notice
described in paragraph (h)(1) of this section, ETA shall examine the
documentation, and may consult with the union at the facility or other
appropriate entities. If ETA determines that the strike or lockout is
covered under 8 CFR 214.2(h)(17), INS's Effect of strike regulation for
``H'' visaholders, ETA shall certify to INS, in the manner set forth in
that regulation, that a strike or other labor dispute involving a work
stoppage of nurses is in progress at the facility.
(i) The sixth attestation element: notice of filing. The facility
shall attest that at the time of filing of the petition for registered
nurses under section 101(a)(15)(H)(i)(a) of the Act, notice of filing
has been provided by the facility to the bargaining representative of
the registered nurses at the facility or, where there is no such
bargaining representative, notice of the filing has been provided to
registered nurses at the facility through posting in conspicuous
locations. The requirement applies to providing notice of filing both
for attestations submitted to ETA and for visa petitions filed with
INS.
(1) Notification of bargaining representative. No later than the
date the attestation is mailed to DOL to be considered for filing, the
facility shall notify the bargaining representative (if any) for nurses
at the facility that the attestation is being submitted to DOL, and
shall state in that notice that the attestation is available at the
facility (explaining how it can be inspected or obtained) and at the
national office of ETA for review by interested parties. No later than
the date the facility transmits a visa petition for H-1A nurses to INS,
the facility shall notify the bargaining representative (if any) for
nurses at the facility that the visa petition is being submitted to
INS, and shall state in that notice that the attestation and visa
petition are available at the facility (explaining how they can be
inspected or obtained) and at the national office of ETA for review by
interested parties. Notices under this paragraph (i)(1) shall include
the following statement: ``Complaints alleging misrepresentation of
material facts in the attestation or failure to comply with the terms
of the attestation may be filed with any office of the Wage and Hour
Division of the United States Department of Labor.''
(2) Posting notice. If there is no bargaining representative for
nurses at the facility, when the facility submits and attestation to
ETA, and each time the facility files an H-1A visa petition with INS,
the facility shall post a written notice at the facility (and, in
addition, at the worksite facility, if at a different location, such as
in the case of nursing contractors), stating that the attestation and/
or visa petition(s) have been filed and are available at the facility
(explaining how these documents can be inspected or obtained) and at
the national office of ETA for review by interested parties. In order
for the facility to remain in compliance with this paragraph (i)(2),
all such notices shall remain posted during the validity period of the
attestation and the attestations and petitions shall be available for
examination at the facility throughout this period of time. The notice
of posting shall provide information concerning the availability of
these documents for examination at the facility and at the national
office of ETA, and shall include the following statement: ``Complaints
alleging misrepresentation of material facts in the attestation or
failure to comply with the terms of the attestation may be filed with
any office the Wage and Hour Division of the United States Department
of Labor.'' Such posted notices shall be clearly visible and
unobstructed while posted, shall be posted in conspicuous places, where
the facility's U.S. nurses readily can read the posted notice on the
way to or from their duties. Appropriate locations for posting such
notices include locations in the immediate proximity of mandatory Fair
Labor Standards Act wage and hour notices and Occupational Safety and
Health Act occupational safety and health notices.
(j) Special provisions for nursing contractors. A nursing
contractor submitting an attestation for filing as a facility shall
attest, in addition to the first through sixth attestation elements,
that it will refer H-1A nurses only to facilities that (with the
exception of private households which themselves do not employ H-1A
nurses) have valid attestations on file with ETA. The nursing
contractor shall obtain from each such worksite facility a copy of that
facility's Form ETA 9029, accepted for filing by ETA and then currently
on file with ETA. The nursing contractor shall maintain a copy of such
worksite facility's accepted attestation on file at the nursing
contractor's principal office during the validity period of the nursing
contractor's attestation or the period of time that any H-1A nurse in
its employ is providing nursing services at the worksite facility,
whichever is longer.
(k) Special provisions for worksite facilities which are not
employers of H-1A nurses and are not controlled by employers of H-1A
nurses. A facility (other than a private household) which obtains the
services of an H-1A nurse by contracting with a nursing contractor, but
which is itself neither the employer of any H-1A nurse nor controlled
by the employer of any H-1A nurse (see paragraph (k)(1) of this
section), shall file an attestation with ETA pursuant to this subpart.
Such a worksite facility may request from ETA a waiver of specific
elements of the attestation to avoid duplicative attestations, in cases
of temporary, emergency circumstances, with respect to information not
within the knowledge of the attestor, or for other good cause. The
attesting worksite facility shall be to ably demonstrate the existence
of the circumstances or good cause which are asserted as the basis(es)
for the request for a waiver of a particular element of the
attestation, but need not submit such evidence with its request for
waiver, except evidence with respect to a bona fide medical emergency
(see paragraph (k)(3)(iii) of this section).
(1) Worksites employing, seeking to employ, or filing visa
petitions on behalf of H-1A nurses. An attestation with respect to
which waiver is requested or granted pursuant to this paragraph (k) is
not valid (i.e., is not ``on file and in effect'') for a worksite
facility employing, seeking to employ, or filing a visa petition on
behalf of H-1A nurses. Only an attestation meeting the requirements of
paragraphs (a) through (i) of this section (and paragraph (j) of this
section, in the case of a nursing contractor) can serve as the basis
for a petition for an H-1A visa. A worksite facility which uses H-1A
nurses only through a nursing contractor and, as part of its
attestation, requests waiver of one or more attestation elements
nevertheless shall file a complete attestation in order to be able to
use such attestation as a basis for itself filing a visa petition for
an H-1A nurse. Thus, a worksite facility should consider its future
needs for H-1A nurses in filing attestations and requests for waiver
pursuant to this paragraph (k).
(2) Inapplicability of third attestation element: facility/employer
wage. If a worksite facility uses H-1A nurses only through a nursing
contractor, the third attestation element (facility/employer wage; see
paragraph (f) of this section) is not applicable to that facility,
since the worksite facility is not the employer of the H-1A nurse and
does not guarantee the H-1A nurse's wage. The third attestation element
is required only for the employer of the H-1A nurse(s), i.e., the third
attestation element shall be included in the attestation of and met by
the H-1A nurse's employer (i.e., the nursing contractor).
(3) Waiver of attestation elements. ETA may consider, pursuant to
this paragraph (k)(3) requests for waiver of certain attestation
elements by a worksite facility which uses or will use an H-1A nurse
provided by a nursing contractor (i.e., an ``H-1A contract nurse''),
but which worksite facility itself does not employ, seek to employ, or
file a visa petition on behalf of an H-1A nurse. Paragraphs (k)(3) (i)
through (iii) of this section set forth different conditions for waiver
depending on the number of workdays of H-1A contract nurse services the
worksite facility will use. For the purposes of this paragraph (k)(3),
a ``workday'' shall consist of one H-1A contract nurse working for one
normal shift in a day. Thus, for example, three normal shifts worked by
each of a group of five H-1A contract nurses totals 15 workdays.
(i) Minimal use of H-1A contract nurses by a worksite. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use no more than a total of 15
workdays of H-1A contract nurse services in any 3-month period of the
attestation's 1-year period of validity to meet emergency needs on a
temporary basis, ETA may waive the first (substantial disruption),
second (adverse effect), and fourth (timely and significant steps or
State plan) elements of the attesting worksite facility's attestation.
See paragraphs (d), (e), and (g) of this section; see also paragraphs
(f) and (k)(2) of this section, with respect to the inapplicability of
third attestation element (facility/employer wage). ETA shall not waive
pursuant to this paragraph (k)(3)(i) the fifth attestation element
(strike, lockout, or intent or design to influence bargaining
representative election) or the sixth attestation element (notice). See
paragraphs (h) and (i) of this section.
(ii) Short-term use of H-1A contract nurses. Where the attesting
worksite facility attests in its request for waiver pursuant to this
paragraph (k)(3) that it will use no more than a total of 60 workdays
of H-1A contract nurse services in any 3-month period of the
attestation's 1-year period of validity to meet temporary needs, ETA
may waive the nursing shortage component of the first element
(substantial disruption; see paragraphs (d)(2) and (d)(3) of this
section) and may waive the fourth (timely and significant steps or
State plan; see paragraph (g) of this section) element of the attesting
worksite facility's attestation. See also paragraphs (f) and (k)(2) of
this section, with respect to the inapplicability of third attestation
element (facility/employer wage). ETA shall not waive pursuant to this
paragraph (k)(3)(ii) the no-layoff component of the first attestation
element (substantial disruption; see paragraph (d)(1) of this section);
the second attestation element (adverse effect); the fifth attestation
element (strike, lockout, or intent to influence a bargaining
representative election); or the sixth attestation element (notice).
See paragraphs (d), (e), (h), and (i) of this section.
(iii) Long-term use of H-1A contract nurse services. Where the
attesting worksite facility attests in its request for waiver pursuant
to this paragraph (k)(3) that it will use more than 60 workdays of H-1A
contract nurse services in any 3-month period of the attestation's 1-
year period of validity, ETA shall not waive any attestation element,
except that, if the attestor documents a bona fide medical emergency
warranting a waiver of the fourth attestation element (timely and
significant steps or State plan) ETA may waive such element. See
paragraph (g) of this section.
(l) Agents of worksite facilities. A worksite facility (including a
worksite facility which itself employs or seeks to employ an H-1A
nurse) may authorize a nursing contractor to act as its agent in
preparing and filing the worksite facility's attestation; however, a
worksite facility using an agent for preparation and filing of the
attestation is responsible for the contents of such attestation and
remains liable for any violations which may be disclosed in any
investigation under Subpart E of this Part, and the chief executive
officer of the worksite facility shall sign the original attestation,
as required by paragraph (c)(1)(i) of this section.
(m) Actions on attestations submitted for filing. An attestation
which meets the established criteria set forth in this Sec. ____.310
shall be accepted for filing by ETA on the date it is signed by the
Certifying Officer. ETA shall then follow the procedures set forth in
paragraph (m)(1) of this section. An attestation submitted by a
facility proposing alternative criteria or steps for the first and/or
the fourth attestation elements, and/or proposing to take only one
timely and significant step, and/or claiming a bona fide medical
emergency exemption from the fourth attestation element shall be
reviewed by ETA, and a determination shall be made by the Certifying
Officer whether to accept or reject the attestation for filing. See
paragraphs (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), and (k)(3)(iii) of
this section. The Certifying Officer may request additional explanation
and/or documentation from the facility in making this determination. If
the Certifying Officer does not contact the facility for such
information or make any determination within 30 days of receiving the
attestation, the attestation shall become accepted for filing. Upon the
facility's submitting the attestation to ETA and providing the notice
required by the sixth attestation element (see Sec. ____.310(i)), the
attestation shall be available for public examination at the health
care facility itself. When ETA accepts the attestation for filing, the
Certifying Officer shall forward the attestation to the ETA National
Office, where it shall be available for public examination. Information
contesting an attestation received by ETA prior to the determination to
accept or reject the attestation for filing shall not be made part of
ETA's administrative record on the attestation, but shall be referred
to ESA to be processed as a complaint pursuant to Subpart E of this
part, and, if such attestation nevertheless is accepted by ETA for
filing, the complaint will be handled by ESA under that subpart.
(1) Acceptance. (i) If the attestation (and any explanatory
statements that may be required) meet the requirements of this subpart,
ETA shall accept the attestation for filing, shall, in the case of a
facility intending to file a visa petition as the employer of an H-1A
nurse, notify INS in writing of the filing, shall return to the
facility one copy of the attestation form submitted by the facility,
with ETA's acceptance indicated thereon, and shall forward one copy of
the attestation with ETA's acceptance indicated thereon to the ETA
National Office. The facility may then file a visa petition with INS
for alien nurses in accordance with INS regulations.
(ii) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(2) Appeals of acceptances. If an attestation which is subject to a
determination under paragraph (d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or
(k)(3)(iii) of this section is accepted for filing, any interested
party may appeal ETA's determination(s) on the element(s) that have
been reviewed. Appeals of acceptances shall be filed with the BALCA, no
later than 30 days after the date of acceptance, and will be considered
under the procedures set forth at Sec. ____.320.
(3) Appeals of rejections. If the attestation is not accepted for
filing, which may occur as a result of a determination under paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), or (k)(3)(iii) of this section,
ETA shall notify the facility in writing, specifying the reasons for
rejection and quoting the language of Sec. ____.320(a)(1). Any
interested party may appeal such rejection to the BALCA, no later than
30 days after the date of rejection. Appeals of rejections shall be
filed and considered under the procedures set forth at Sec. ____.320.
(n) Effective date and validity of filed attestations. An
attestation becomes filed and effective as of the date it is accepted
and signed by the Certifying Officer and accepted thereby for filing.
Such attestation is valid for the 12-month period beginning on the date
of acceptance for filing, unless suspended or invalidated pursuant to
Sec. ____.320 or subpart E. The filed attestation expires at the end of
the 12-month period of validity.
(o) Suspension or invalidation of filed attestation. Suspension or
invalidation of an attestation may result from a BALCA decision
reversing an ETA acceptance for filing; from investigations by the
Administrator, Wage and Hour Division, of the facility's
misrepresentation in or failure to carry out its attestation; or from a
discovery by ETA that it made an error in its review of the attestation
(in those cases where ETA performs such review pursuant to paragraph
(d)(2)(ii), (g)(1)(i)(B), (g)(1)(ii), (k)(3)(iii) of this section) and
that the explanation and documentation provided and maintained by the
facility does not or did not meet the criteria set forth at
Sec. ____.310 (a) through (k). If an attestation is suspended or
invalidated, DOL shall notify INS.
(1) Result of BALCA or Wage and Hour Division action. If an
attestation is suspended or invalidated as a result of a BALCA decision
overruling an acceptance of the attestation for filing, or is suspended
or invalidated as a result of a Wage and Hour Division action pursuant
to subpart E, such suspension or invalidation may not be separately
appealed, but shall be merged with appeals of BALCA's or the Wage and
Hour Division's determination on the underlying violation.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA discovers that it erroneously accepted that attestation for
filing, and, as a result, ETA suspends or invalidates that acceptance,
the facility may appeal such suspension or invalidation pursuant to
Sec. ____.320 as if that suspension or invalidation were a decision to
reject the attestation for filing.
(p) Facility's responsibilities during suspension and after
invalidation or expiration of filed attestation. A facility shall
comply with the terms of its attestation, even if such attestation is
suspended, invalidated, or expired, as long as any H-1A nurse is at the
facility, unless the attestation is superseded by a subsequent
attestation accepted for filing by ETA.
(q) Facilities subject to penalties. No attestation shall be
accepted for filing from a nursing contractor or other facility which
has failed to comply with any penalty, sanction, or other remedy
assessed in a final agency action following an investigation by the
Wage and Hour Division pursuant to subpart E.
Sec. ______.315 State plans.
A State may submit an annual plan for the recruitment and retention
of U.S. citizens and permanent resident aliens who are authorized to
perform nursing services in the State.
(a) Who should prepare and file the annual plan? The Governor of
each State that chooses to submit an annual State plan shall be
responsible for the preparation and filing of the annual plan. The
Governor may designate any public and/or private organization(s) to
assist the Governor in the development of the annual plan.
(b) When and where should the annual plan be filed? If a State
determines to file an annual State plan, the Governor shall submit the
original plan, signed by the Governor, by U.S. mail or private carrier,
to ETA at the following address: Director, U.S. Employment Service,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue, NW., room N-4456, Washington, DC 20210. An annual
State plan may be filed with ETA at any time. However, for an
individual facility legitimately to attest to being subject to an
annual State plan for the purposes of the fourth attestation element,
Alternative II (see Sec. ______.310(g)(2)), such annual State plan
shall have been approved prior to the date the attestation was
submitted to ETA for filing and be in current effect. Therefore, if the
Governor is aware that a facility within the State plans to submit an
attestation for filing with ETA, the annual State plan should be mailed
to ETA at least 35 days prior to the facility's submission of its
attestation to ETA.
(c) What overall issues shall the annual State plan address? The
annual State plan shall address the overall issue of supply of and
demand for nurses within the State, with particular emphasis on
measures to develop a sufficient supply of U.S. nurses to meet
projected demand. The State, as opposed to individual facilities, is in
a position to--and may be expected to--address broad issues and perform
such functions as conducting a Statewide needs assessment; overall
management, facilitation and coordination among various interested
entities within the State; and undertaking more regionally based
approaches. The State is also in a position to devote resources which
individual facilities may be lacking.
(d) How should the annual State plan address the timely and
significant steps? The annual State plan shall address all of the
timely and significant steps in Sec. ______.310(g)(1)(i)(A)(1) through
(g)(1)(i)(A)(5) generically, without regard to the specific criteria
therein, on a Statewide basis. However, for the annual State plan to
satisfy Alternative II of the fourth attestation requirement for an
individual facility (see Sec. ______.310(g)(2)), the annual State plan
shall indicate which of those timely and significant steps relate to
individual facilities, and that each individual facility shall take
such a step (either one step or more, as appropriate) to meet the
appropriate specific criteria as set forth in Sec. ______.310(g)(1).
(e) What other components may the annual State plan include? An
annual State plan may include the following components:
(1) The cooperation of high schools and colleges may be enlisted in
counseling health workers and other individuals to enter the nursing
profession.
(2) Geographic and salary data may be made available to assist in
linking nurses to facilities.
(3) Publications of vacancies and programs may be made in industry
and State newsletters.
(4) Training films and videotapes, as well as information on
housing and relocation services, may be developed and distributed.
(5) Measures may be taken to encourage other health professionals
to become nurses, such as: setting up home study programs with State
licensing boards to allow work credits for purposes of meeting
educational or State clinical requirements; entering into cooperative
agreements for providing health care insurance and other job-related
elements which would allow greater flexibility for those attempting to
combine careers and school; providing monetary grants or long-term
loans to persons preparing to become nurses.
(6) Steps may be taken to encourage nurses who have left the
nursing field to return to nursing, by providing such inducements as
child care, holiday schedule adjustments, and substantial salary
increases.
(7) The State may profile and publicize those facilities with
special model programs.
(8) The annual State plan may place demands on facilities for
comprehensive plans to reduce reliance on foreign nurses.
(f) Approval and disapproval of annual State plans. Determinations
of approval and disapproval of annual State plans shall be made by the
Director, USES. The annual State plan shall be reviewed by ETA, in
consultation with the Department of Health and Human Services, and a
determination to approve or disapprove the annual State plan made
within 30 calendar days of ETA's receipt of the plan.
(1) If the annual State plan is approved, the Director shall notify
the Governor in writing.
(2) If the annual State plan is disapproved, the Director shall
notify the Governor in writing, specifying the reason(s) for
disapproval. The notice shall state that within 30 calendar days of the
date of the notice of disapproval, the Governor may correct the
deficiencies noted in the disapproval and resubmit the annual State
plan to ETA; and shall inform the state of its right to an appeal, by
quoting the language of Sec. ______.320(a).
(g) An approved annual State plan shall be valid for 12-month
period beginning on the date of its approval by DOL.
(Approved by the Office of Management and Budget under control
number 1205-0305)
Sec. ______.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
(a) Appeal right--(1) Attestations; when to file appeals from
acceptances and rejections. On the basis that the explanation and
documentation provided and maintained by the facility does not or did
not meet the criteria set forth at Sec. ______.310(d)(2)(ii),
(g)(1)(i)(B)(5), (g)(1)(ii), or (k)(3)(iii), an interested party may
appeal an acceptance or rejection by ETA of an attestation submitted by
a facility for filing in those cases where DOL performed an attestation
review function under those provisions. The appeal shall be limited to
ETA's determinations on the element(s) reviewed and shall not be an
appeal as to any other element(s) in the attestation. An interested
party may also appeal ETA's invalidation or suspension of a filed
attestation due to a discovery by ETA that it made an error in its
reviewing of the attestation (see Sec. ______.310(o). In the case of an
appeal of an acceptance, the facility shall be a party to the appeal;
in the case of the appeal of a rejection, invalidation, or suspension,
the collective bargaining representative (if any) representing nurses
at the facility shall be a party to the appeal. Appeals shall be in
writing; shall set forth the grounds for the appeal; shall state if de
novo consideration by BALCA is requested; and shall be mailed by
certified mail within 30 calendar days of the date of the action from
which the appeal is taken (i.e., the acceptance, rejection, suspension
or invalidation of the attestation).
(2) Annual State plans; when to file appeals from disapprovals. A
Governor of a State may appeal ETA's disapproval of an annual State
plan. Individual facilities in the State may file briefs as amici
curiae. Appeals shall be in writing and shall be mailed by certified
mail within 30 calendar days of the disapproval of the annual State
plan.
(3) Where to file appeals. Appeals made pursuant to this section
shall be in writing and shall be mailed by certified mail to: Director,
U.S. Employment Service, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue, NW., Room N-4456,
Washington, DC 20210.
(4) Complaints. Appeals under this paragraph (a) shall not
encompass questions of misrepresentation by a health care facility or
nonperformance by such a facility of its attestation. Such complaints
shall be filed with an office of the Wage and Hour Division, United
States Department of Labor.
(b) Transmittal to BALCA; case file. Upon receipt of an appeal
pursuant to this section, the Certifying Officer (or, in the case of
State plans, the Director, USES), shall send to BALCA a certified copy
of the ETA case file, containing the attestation and supporting
documentation and any other information or data considered by ETA in
taking the action being appealed. The administrative law judge chairing
BALCA shall assign a panel of one or more administrative law judges who
serve on BALCA to review the record for legal sufficiency and to
consider and rule on the appeal.
(c) Consideration on the record; de novo hearings.--(1) General.
BALCA shall not remand, dismiss, or stay the case, except as provided
in paragraph (c)(2) of this section, but may otherwise consider the
appeal on the record or in a de novo hearing (on its own motion or on a
party's request). Interested parties and amici curiae may submit briefs
in accordance with a schedule set by BALCA. The ETA official making the
determination from which the appeal was taken shall be represented by
the Associate Solicitor for Employment and Training Legal Services,
Office of the Solicitor, Department of Labor, or the Associate
Solicitor's designee. If BALCA determines to hear the appeal on the
record without a de novo hearing, BALCA shall render a decision within
30 calendar days after BALCA's receipt of the case file. If BALCA
determines to hear the appeal through a de novo hearing, the procedures
contained in 29 CFR part 18 shall apply to such hearings, except that:
(i) The appeal shall not be considered to be a complaint to which
an answer is required;
(ii) BALCA shall ensure that, at the request of the appellant, the
hearing is scheduled to take place within a reasonable period after
BALCA's receipt of the case file (see also the time period described in
paragraph (c)(1)(iv) of this section);
(iii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges
(29 CFR part 18, subpart B), shall not apply to any hearing conducted
pursuant to this subpart, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where
reasonably necessary by BALCA in conducting the hearing; BALCA may
exclude irrelevant, immaterial, or unduly repetitious evidence; the
certified copy of the case file transmitted to BALCA by the Certifying
Officer (or, in the case of State plans, the Director, USES), shall be
part of the evidentiary record of the case and need not be removed into
evidence; and
(iv) BALCA's decision shall be rendered within 120 calendar days
after BALCA's receipt of the case file.
(2) Dismissals and stays. If the BALCA determines that the appeal
is solely a question of misrepresentation by the facility or is solely
a complaint of the facility's nonperformance of the attestation, BALCA
shall dismiss the case and refer the matter to the Administrator, Wage
and Hour Division, for action under subpart E. If the BALCA determines
that the appeal is partially a question of misrepresentation by the
facility or is partially a complaint of the facility's nonperformance
of the attestation, BALCA shall refer the matter to the Administrator,
Wage and Hour Division, for action under Subpart E of this part and
shall stay BALCA consideration of the case pending final agency action
on such referral. During such stay, the 120-day period described in
paragraph (c)(1)(iv) of this section shall be suspended.
(d) BALCA's decision. After consideration on the record or a de
novo hearing, BALCA shall either affirm or reverse ETA's decision, and
shall so notify the appellant; the Director, if the affirmation or
denial involves a State plan; Certifying Officer; Chief, Division of
Foreign Labor Certifications; and any other parties. See
Sec. ______.450 custody of the record of the appeal.
(e) Decisions on attestations. With respect to an appeal of the
acceptance, rejection, suspension or invalidation of an attestation,
the decision of BALCA shall be the final decision of the Secretary, and
no further review shall be given to the matter by any DOL official.
(f) Decisions on annual State plans. With respect to an appeal of
the disapproval of an annual State plan, the decision of BALCA shall be
the final decision by the Secretary, unless a petition for review of
the BALCA decision is filed with the Secretary and the Secretary
determines to review the decision.
(1) Filing of petition for review. The Director or the State
desiring review of the decision and order of BALCA may petition the
Secretary to review the decision and order. To be effective, such
petition shall be received by the Secretary within 30 days of the date
of the decision and order. Copies of the petition shall be served on
all parties and on BALCA.
(2) Form of petition for review. No particular form is prescribed
for any petition for Secretary's review permitted by this paragraph
(f). However, any such petition shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the issue or issues stated in the BALCA decision and
order giving rise to such petition;
(iv) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(v) Be signed by the party filing the petition or by an authorized
representative of such party;
(vi) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(vii) Attach copies of BALCA's decision and order, and any other
record documents which would assist the Secretary in determining
whether review is warranted.
(3) Notice of determination to review. Whenever the Secretary
determines to review the decision and order of BALCA on an annual State
plan, a notice of the Secretary's determination to do so shall be
served upon BALCA and upon all parties to the proceeding within 30 days
after the Secretary's receipt of the petiti
FR Doc. 94-17 Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses
on for review.
(4) Hearing record. Upon receipt of the Secretary's notice, BALCA
shall within 15 days forward the complete hearing record to the
Secretary.
(5) Contents of Secretary's notice. The Secretary's notice shall
specify:
(i) The issue or issues to be reviewed;
(ii) The form in which submissions shall be made by the parties;
and
(iii) The time within which such submissions shall be made.
(6) Filing of documents. All documents submitted to the Secretary
pursuant to this paragraph (f) shall be filed with the Secretary of
Labor, U.S. Department of Labor, Washington, DC 20210, Attention:
Executive Director, Office of Administrative Appeals, Room S-4309. An
original and two copies of all documents shall be filed. Documents are
not deemed filed with the Secretary until actually received by the
Secretary. All documents, including documents filed by mail, shall be
received by the Secretary either on or before the due date.
(7) Service of documents. Copies of all documents filed with the
Secretary pursuant to this paragraph (f) shall be served simultaneously
upon all other parties involved in the proceeding. Service upon the
Director shall be in accordance with paragraph (a)(3) of this section.
(8) Secretary's decision. The Secretary's final decision pursuant
to this paragraph (f) shall be issued within 180 days from the date of
the notice of intent to review. The Secretary's decision shall be
served upon all parties and BALCA.
(9) Transmittal of record. Upon issuance of the Secretary's
decision under this paragraph (f), the Secretary shall transmit the
entire record to the Chief Administrative Law Judge for custody
pursuant to Sec. ______.450.
Sec. ________.350 Public access.
(a) Public examination at ETA. ETA shall make available for public
examination in Washington, DC, a list of facilities which have filed
attestations, and such facilities' visa petitions (if any) for H-1A
nurses, and for each such facility, a copy of the facility's
attestation and any explanatory statements it has received; the annual
State plan (if any) which relates to the facility's attestation; and a
copy of each of the facility's H-1A visa petitions (if any) to INS. A
copy of the latter shall be transmitted to ETA by the facility at the
same time it is submitted to INS. The facility shall also forward to
ETA a copy of the INS visa petition approval notice within 5 days after
it is received from INS.
(b) Public examination at facility. For the duration of the
attestation's validity and thereafter for so long as the facility uses
any H-1 or H-1A nurse under the attestation, the facility shall
maintain a separate file containing the attestation and required
documentation, and shall make this file available to any interested
parties within 72 hours upon written or oral request. If a party
requests a copy of the file, the facility shall provide it and any
charge for such copy shall not exceed the cost of reproduction.
(c) Notice to public. ETA periodically shall publish a notice in
the Federal Register announcing the names and addresses of facilities
which have submitted attestations; facilities which have attestations
on file; facilities which have submitted attestations which have been
rejected for filing; facilities which have had attestations suspended;
States which have submitted annual State plans; States which have
approved annual State plans; and States which have submitted annual
State plans which were disapproved.
Subpart E--Enforcement of H-1A Attestations
Sec. ______.400 Enforcement authority of Administrator, Wage and Hour
Division.
(a) The Administrator shall perform all the Secretary's
investigative and enforcement functions under 8 U.S.C. 1182(m) and
subparts D and E of this part.
(b) The Administrator, either pursuant to a complaint or otherwise,
shall conduct such investigations as may be appropriate and, in
connection therewith, enter and inspect such places and such records
(and make transcriptions thereof), question such persons and gather
such information as deemed necessary by the Administrator to determine
compliance regarding the matters to which a health care facility has
attested under section 212(m) of the INA (8 U.S.C. 1182(m)) and
subparts D and E of this part.
(c) A facility being investigated shall make available to the
Administrator such records, information, persons, and places as the
Administrator deems appropriate to copy, transcribe, question, or
inspect. No facility shall interfere with any official of the
Department of Labor performing an investigation, inspection or law
enforcement function pursuant to 8 U.S.C. 1182(m) or subparts D or E of
this part. In the event of such interference, the Administrator may
deem the interference to be a violation and take such further actions
as the Administrator considers appropriate. (Note: Federal criminal
statutes prohibit certain interference with a Federal officer in the
performance of official duties. 18 U.S.C. 111 and 1114.)
(d) A facility subject to subparts D and E of this part shall at
all times cooperate in administrative and enforcement proceedings. No
facility shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any person because
such person has:
(1) Filed a complaint or appeal under or related to section 212(m)
of the INA (8 U.S.C. 1182(m)) or subpart D or E of this part;
(2) Testified or is about to testify in any proceeding under or
related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart D or
E of this part;
(3) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart D or E of this part.
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to the Act or to subparts D or E of this
part or any other DOL regulation promulgated pursuant to 8 U.S.C.
1182(m).
In the event of such intimidation or restraint as are described in
paragraph (d)(1), (2), (3), or (4) of this section, the Administrator
may deem the conduct to be a violation and take such further actions as
the Administrator considers appropriate.
(e) A facility subject to subpart D and E of this part shall
maintain a separate file containing its attestation and required
documentation, and shall make that file or copies thereof available to
interested parties, as required by Sec. ______.350(b). In the event of
a facility's failure to maintain the file, to provide access, or to
provide copies, the Administrator may deem the conduct to be a
violation and take such further actions as the Administrator considers
appropriate.
(f) No health care facility shall seek to have an H-1A nurse, or
any other nurse similarly employed by the employer, or any other
employee waive rights conferred under the Act or under subpart D or E
of this part. In the event of such waiver, the Administrator may deem
the conduct to be a violation and take such further actions as the
Administrator considers appropriate. Any agreement by an employee
purporting to waive or modify any rights inuring to said person under
the Act or subpart D or E of this part may be void as contrary to
public policy, except that a waiver or modification of rights or
obligations hereunder in favor of the Secretary shall be valid for
purposes of enforcement of the provisions of the Act or subpart D and E
of this part. This prohibition of waivers does not prevent agreements
to settle litigation among private parties.
(g) The Administrator shall, to the extent possible under existing
law, protect the confidentiality of any complainant or other person who
provides information to the Department.
Sec. ______.405 Complaints and investigative procedures.
(a) The Administrator, through investigation, shall determine
whether a facility has failed to perform any attested conditions,
misrepresented any material facts in an attestation (including
misrepresentation as to compliance with regulatory standards), or
otherwise violated the Act or subpart D or E of this part.
(Note: Federal criminal statutes provide penalties of up to
$10,000 and/or imprisonment of up to 5 years for knowing and willful
submission of false statements to the Federal Government. 18 U.S.C.
1001; see also 18 U.S.C. 1546).
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of section 212(m) of the INA (8 U.S.C.
1182(m)) or subpart D or E of this part. No particular form of
complaint is required, except that the complaint shall be written or,
if oral, shall be reduced to writing by the Wage and Hour Division
official who receives the complaint. The complaint shall set forth
sufficient facts for the Administrator to determine what part or parts
of the attestation or regulations have allegedly been violated. Upon
the request of the complainant, the Administrator shall, to the extent
possible under existing law, maintain confidentiality regarding the
complainant's identity; if the complainant wishes to be a party to the
administrative hearing proceedings under this subpart, the complainant
shall then waive confidentiality. The complaint may be submitted to any
local Wage and Hour Division office; the addresses of such offices are
found in local telephone directories. Inquiries concerning the
enforcement program and requests for technical assistance regarding
compliance may also be submitted to the local Wage and Hour Division
office.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation and, if so,
shall conduct an investigation, within 180 days of the receipt of a
complaint. If the Administrator determines that the complaint fails to
present reasonable cause for an investigation, the Administrator shall
so notify the complainant, who may submit a new complaint, with such
additional information as may be necessary.
(d) When an investigation has been conducted, the Administrator
shall, within 180 days of the receipt of a complaint, issue a written
determination, stating whether a basis exists to make a finding that
the facility failed to meet a condition of its attestation, or made a
misrepresentation of a material fact therein, or otherwise violated the
Act or subpart D or E. The determination shall specify any sanctions
imposed due to violations. The Administrator shall provide a notice of
such determination to the interested parties and shall inform them of
the opportunity for a hearing pursuant to Sec. ______.420.
Sec. ______.410 Civil money penalties and other remedies.
(a) The Administrator may assess a civil money penalty not to
exceed $1,000 for each affected person with respect to whom there has
been a violation of the attestation or subpart D or E of this part of
and with respect to each instance in which such violation occurred. The
Administrator also shall impose appropriate remedies, including the
payment of back wages and the performance of attested obligations such
as providing training.
(b) In determining the amount of civil money penalty to be assessed
for any violation, the Administrator shall consider the type of
violation committed and other relevant factors. The matters which may
be considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the facility
under the Act and subpart D or E of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
attestation or the State plan as provided in the Act and Subparts D and
E of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance, taking into
account the public health, interest or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
or adverse effect upon the workers.
(c) The civil money penalty, back wages, and any other remedy
determined by the Administrator to be appropriate, are immediately due
for payment or performance upon the assessment by the Administrator, or
the decision by an administrative law judge where a hearing is
requested, or the decision by the Secretary where review is granted.
The facility shall remit the amount of the civil money penalty, by
certified check or money order made payable to the order of ``Wage and
Hour Division, Labor.'' The remittance shall be delivered or mailed to
the Wage and Hour Division Regional Office for the area in which the
violations occurred. The payment of back wages, monetary relief, and/or
the performance or any other remedy prescribed by the Administrator
shall follow procedures established by the Administrator. The
facility's failure to pay the civil money penalty, back wages, or other
monetary relief, or to perform any other assessed remedy, shall result
in the rejection by ETA of any future attestation submitted by the
facility, until such payment or performance is accomplished.
Sec. ______.415 Written notice and service of Administrator's
determination.
(a) The Administrator's determination, issued pursuant to
Sec. ______.405(d), shall be served on the complainant, the facility,
and other interested parties by personal service or by certified mail
at the parties' last known addresses. Where service by certified mail
is not accepted by the party, the Administrator may exercise discretion
to serve the determination by regular mail. Where the complainant has
requested confidentiality, the Administrator shall serve the
determination in a manner which will not breach that confidentiality.
(b) The Administrator shall file with the Chief Administrative Law
Judge, U.S. Department of Labor, a copy of the complaint and the
Administrator's determination.
(c) The Administrator's written determination required by
Sec. ______.405(c) shall:
(1) Set forth the determination of the Administrator and the reason
or reasons therefor; prescribe any remedies or penalties including the
amount of any unpaid wages due, the actions required for compliance
with the facility attestation and/or State plan, and the amount of any
civil money penalty assessment and the reason or reasons therefor.
(2) Inform the interested parties that they may request a hearing
pursuant to Sec. ______.420.
(3) Inform the interested parties that in the absence of a timely
request for a hearing, received by the Chief Administrative Law Judge
within 10 days of the date of the determination, the determination of
the Administrator shall become final and not appealable.
(4) Set forth the procedure for requesting a hearing, and give the
address of the Chief Administrative Law Judge.
(5) Inform the parties that, pursuant to Sec. ______.455, the
Administrator shall notify the Attorney General and ETA of the
occurrence of a violation by the employer.
Sec. ______.420 Request for hearing.
(a) Any interested party desiring to request an administrative
hearing on a determination issued pursuant to Sec. ______.405(d) shall
make such request in writing to the Chief Administrative Law Judge at
the address stated in the notice of determination.
(b) An interested party may request a hearing in the following
circumstances:
(1) Where the Administrator determines that there is no basis for a
finding of violation, the complainant or other interested party may
request a hearing. In such a proceeding, the party requesting the
hearing shall be the prosecuting party and the facility shall be the
respondent; the Administrator may intervene as a party or appear as
amicus curiae at any time in the proceeding, at the Administrator's
discretion.
(2) Where the Administrator determines that there is a basis for a
finding of violation, the facility or other interested party may
request a hearing. In such a proceeding, the Administrator shall be the
prosecuting party and the facility shall be the respondent.
(c) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination given rise to such request;
(4) State the specific reason or reasons why the party requesting
the hearing believes such determination is in error;
(5) Be signed by the party making the request or by an authorized
representative of such party; and
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto.
(d) The request for such hearing shall be received by the Chief
Administrative Law Judge, at the address stated in the Administrator's
notice of determination, no later than 10 days after the date of the
determination. An interested party which fails to meet this 10-day
deadline for requesting a hearing may thereafter participate in the
proceedings only by consent of the administrative law judge, either
through intervention as a party pursuant to 29 CFR 18.10 (b) through
(d) or through participation as an amicus curiae pursuant to 29 CFR
18.12.
(e) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service. For the requesting
party's protection, if the request is filed by mail, it should be
certified mail. If the request is filed by facsimile transmission, the
original of the request, signed by the requestor or authorized
representative, shall be filed within 10 days of the date of the
Administrator's notice of determination.
(f) Copies of the request for a hearing shall be sent by the
requestor to the Wage and Hour Division official who issued the
Administrator's notice of determination, to the representative(s) of
the Solicitor of Labor identified in the notice of determination, and
to all known interested parties.
Sec. ______.425 Rules of practice for administrative law judge
proceedings.
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
``Rules of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges'' established by the Secretary
at 29 CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) shall not apply,
but principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The administrative law
judge may exclude evidence which is inmaterial, irrelevant, or unduly
repetitive.
Sec. ______.430 Service and computation of time.
(a) Under this subpart, a party may serve any pleading or document
by regular mail. Service is complete upon mailing to the last known
address. No additional time for filing or response is authorized where
service is by mail. In the interest of expeditious proceedings, the
administrative law judge may direct the parties to serve pleadings or
documents by a method other than regular mail.
(b) Two (2) copies of all pleadings and other documents in any
administrative law judge proceeding shall be served on the attorneys
for the Administrator. One copy shall be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC
20210, and one copy on the attorney representing the Administrator in
the proceeding.
(c) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or federally-observed holiday, in which case the time period
includes the next business day.
Sec. ______.435 Administrative law judge proceedings.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. ______.420, the Chief Administrative Law
Judge shall appoint an administrative law judge to hear the case.
(b) Within 7 days following the assignment of the case, the
administrative law judge shall notify all interested parties of the
date, time and place of the hearing. All parties shall be given at
least 5 days notice of such hearing.
(c) The date of the hearing shall be not more than 60 days from the
date of the Administrator's determination. Because of the time
constraints imposed by the Act, no requests for postponement shall be
granted except for compelling reasons and by consent of all the parties
to the proceeding.
(d) The administrative law judge may prescribe a schedule by which
the parties are permitted to file a prehearing brief or other written
statement of fact or law. Any such brief or statement shall be served
upon each other party in accordance with Sec. ______.430. Posthearing
briefs will not be permitted except at the request of the
administrative law judge. When permitted, any such brief shall be
limited to the issue or issues specified by the administrative law
judge, shall be due within the time prescribed by the administrative
law judge, and shall be served on each other party in accordance with
Sec. ______.430.
Sec. ______.440 Decision and order of administrative law judge.
(a) Within 90 days after receipt of the transcript of the hearing,
the administrative law judge shall issue a decision.
(b) The decision of the administrative law judge shall include a
statement of findings and conclusions, with reasons and basis
therefore, upon each material issue presented on the record. The
decision shall also include an appropriate order which may affirm,
deny, reverse, or modify, in whole or in part, the determination of the
Administrator; the reason or reasons for such order shall be stated in
the decision. The administrative law judge shall not render
determinations as to the legality of a regulatory provision or the
constitutionality of a statutory provision.
(c) The decision shall be served on all parties in person or by
certified or regular mail.
Sec. ______.445. Secretary's review of administrative law judge's
decision.
(a) The Administrator or any interested party desiring review of
the decision and order of an administrative law judge shall petition
the Secretary to review the decision and order. To be effective, such
petition shall be received by the Secretary within 30 days of the date
of the decision and order. Copies of the petition shall be served on
all parties and on the administrative law judge.
(b) No particular form is prescribed for any petition for
Secretary's review permitted by this subpart. However, any such
petition shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the administrative law
judge decision and order giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Attach copies of the administrative law judge's decision and
order, and any other record documents which would assist the Secretary
in determining whether review is warranted.
(c) Whenever the Secretary determines to review the decision and
order of an administrative law judge, a notice of the Secretary's
determination shall be served upon the administrative law judge and
upon all parties to the proceeding within 30 days after the Secretary's
receipt of the petition for review.
(d) Upon receipt of the Secretary's notice, the Office of
Administrative Law Judges shall within 15 days forward the complete
hearing record to the Secretary.
(e) The Secretary's notice shall specify:
(1) The issue or issues to be reviewed;
(2) The form in which submissions shall be made by the parties
(e.g., briefs, oral argument);
(3) The time within which such submissions shall be made.
(f) All documents submitted to the Secretary shall be filed with
the Secretary of Labor, U.S. Department of Labor, Washington, DC 20210,
Attention: Executive Director, Office of Administrative Appeals, room
S-4309. An original and two copies of all documents shall be filed.
Documents are not deemed filed with the Secretary until actually
received by the Secretary. All documents, including documents filed by
mail, shall be received by the Secretary either on or before the due
date.
(g) Copies of all documents filed with the Secretary shall be
served upon all other parties involved in the proceeding. Service upon
the Administrator shall be in accordance with Sec. ______.430(b).
(h) The Secretary's final decision shall be issued within 180 days
from the date of the notice of intent to review. The Secretary's
decision shall be served upon all parties and the administrative law
judge.
(i) Upon issuance of the Secretary's decision, the Secretary shall
transmit the entire record to the Chief Administrative Law Judge for
custody pursuant to Sec. ______.450.
Sec. ______.450 Administrative record.
The official record of every completed administrative hearing
procedure provided by subparts D and E of this part shall be maintained
and filed under the custody and control of the Chief Administrative Law
Judge. Upon receipt of a complaint seeking review of the final agency
action in a United States District Court, the Chief Administrative Law
Judge shall certify the official record and shall transmit such record
to the clerk of the court.
Sec. ______.455 Notice to the Attorney General and the Employment and
Training Administration.
(a) The Administrator shall promptly notify the Attorney General
and ETA of the final determination of a violation by an employer upon
the earliest of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by an employer, and no timely request for hearing
is made pursuant to Sec. ______.420; or
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by an employer; or
(3) Where the administrative law judge finds that there was no
violation, and the Secretary, upon review, issues a decision pursuant
to Sec. ______.445, holding that a violation was committed by an
employer.
(b) The Attorney General, upon receipt of the Administrator's
notice pursuant to paragraph (a) of this section, shall not approve
petitions filed with respect to that employer under section 212(m) of
the INA (8 U.S.C. 1182(m)) during a period of at least 12 months from
the date of receipt of the Administrator's notification.
(c) ETA, upon receipt of the Administrator's notice pursuant to
paragraph (a) of this section, shall suspend the employer's attestation
under subparts D and E of this part, and shall not accept for filing
any attestation submitted by the employer under subparts D and E of
this part, for a period of 12 months from the date of receipt of the
Administrator's notification or for a longer period if such is
specified by the Attorney General for visa petitions filed by that
employer under section 212(m) of the INA.
Sec. ______.460 Non-applicability of the Equal Access to Justice Act.
A proceeding under subpart D or E of this part is not subject to
the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a
proceeding, the administrative law judge shall have no authority to
award attorney fees and/or other litigation expenses pursuant to the
provisions of the Equal Access to Justice Act.
Adoption of the Joint Final Rule
The agency specific adoption of the joint final rule which appears
at the end of the common preamble, appears below:
TITLE 20--EMPLOYEES' BENEFITS
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
Accordingly, the interim final rule published on December 6, 1990
(55 FR 50500) amending Chapter V of Title 20 of the Code of Federal
Regulations by redesignating Secs. 621.1, 621.2 and 621.3 to subpart A
of part 655, removing the remainder of part 621 and amending part 655
is adopted as final, and part 655 is further amended as follows:
PART 655--[AMENDED]
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 655.00 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. 101-
238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note); and sec. 341(a) and
(b), Pub. L. 103-182, 107 Stat. 2057.
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).
2. Part 655 is amended by revising subparts D and E to read as set
forth in the joint final rule above in this document.
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec.
655.300 Purpose and scope of subparts D and E.
655.301 Overview of process.
655.302 Definitions.
655.310 Attestations.
655.315 State plans.
655.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
655.350 Public access.
Subpart E--Enforcement of H-1A Attestations
655.400 Enforcement authority of Administrator, Wage and Hour
Division.
655.405 Complaints and investigative procedures.
655.410 Civil money penalties and other remedies.
655.415 Written notice and service of Administrator's
determination.
655.420 Request for hearing.
655.425 Rules of practice for administrative law judge proceedings.
655.430 Service and computation of time.
655.435 Administrative law judge proceedings.
655.440 Decision and order of administrative law judge.
655.445 Secretary's review of administrative law judge's decision.
655.450 Administrative record.
655.455 Notice to the Attorney General and the Employment and
Training Administration.
655.460 Non-applicability of the Equal Access to Justice Act.
Signed at Washington, DC, this 28th day of December, 1993.
Robert B. Reich,
Secretary of Labor.
TITLE 29--LABOR
CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
Accordingly, part 504 of Title 29, Code of Federal Regulations, is
revised to read as follows:
PART 504--ATTESTATIONS BY FACILITIES USING NONIMMIGRANT ALIENS AS
REGISTERED NURSES
Subparts A, B, and C--[Reserved]
Subpart D--Attestations by Facilities Using Nonimmigrant Aliens as
Registered Nurses
Sec.
504.300 Purpose and scope of subparts D and E.
504.301 Overview of process.
504.302 Definitions.
504.310 Attestations.
504.315 State plans.
504.320 Appeals of acceptance and rejection of attestations
submitted for filing and of State plans.
504.350 Public access.
Subpart E--Enforcement of H-1A Attestations
504.400 Enforcement authority of Administrator, Wage and Hour
Division.
504.405 Complaints and investigative procedures.
504.410 Civil money penalties and other remedies.
504.415 Written notice and service of Administrator's
determination.
504.420 Request for hearing.
504.425 Rules of practice for administrative law judge proceedings.
504.430 Service and computation of time.
504.435 Administrative law judge proceedings.
504.440 Decision and order of administrative law judge.
504.445 Secretary's review of administrative law judge's decision.
504.450 Administrative record.
504.455 Notice to the Attorney General and the Employment and
Training Administration.
504.460 Non-applicability of the Equal Access to Justice Act.
Authority: 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m) and Pub. L.
101-238, sec. 3(c)(1), 103 Stat. 2099, 2103; and sec. 341(a) and
(b), Pub. L. 103-182, 107 Stat. 2057.
Signed at Washington, DC, this 28th day of December, 1993.
Robert B. Reich,
Secretary of Labor.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix--Form ETA 9029
Billing Code 4510-10-M and 4510-27-M
TR06JA94.000
TR06JA94.001
TR06JA94.002
TR06JA94.003
TR06JA94.004
[FR Doc. 94-17 Filed 1-5-94; 8:45 am]
BILLING CODE 4510-10-C and 4510-27-C
Complete official Federal Register PDF
FR Doc. 94-16 Trade Adjustment Assistance for Workers; Amendment of Regulations
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 906-945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16]
[[Page Unknown]]
[Federal Register: January 6, 1994]
_______________________________________________________________________
Part IV
Department of Labor
_______________________________________________________________________
Employment and Training Administration
_______________________________________________________________________
20 CFR Part 617
Trade Adjustment Assistance for Workers; Amendment of Regulations;
Final Rule
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 617
RIN: 1205-AA72
Trade Adjustment Assistance for Workers; Amendment of Regulations
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule; request for comments.
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SUMMARY: This document contains a final rule amending the regulations
on trade adjustment assistance for workers which implement the 1988
Amendments to the Trade Act of 1974 as contained in the Omnibus Trade
and Competitiveness Act of 1988. This action will update the
regulations and will provide uniform instructions to State agencies in
carrying-out their responsibilities under the Trade Act. These State
agencies act as agents of the United States for the purpose of
providing adjustment assistance benefits and services to adversely
affected workers. Comments are requested on the several material
changes being made in this final rule, which differ from the September
1988 proposed rule, and on a number of other changes which were not
included in the proposed rule.
DATES: Effective date: February 7, 1994.
Comment date: Comments on the material changes, from the proposed
rule to this final regulation, are invited and must be received in the
Department on or before February 22, 1994.
ADDRESSES: Written comments on the changes in the regulations, on which
comments are invited, may be mailed or delivered to the Office of Trade
Adjustment Assistance, Employment and Training Administration, 200
Constitution Avenue NW., room C-4318, Washington, DC 20210.
All comments received will be available for public inspection
during normal business hours in Room C-4318 at the above address.
FOR FURTHER INFORMATION CONTACT: Marvin M. Fooks, Director, Office of
Trade Adjustment Assistance, 200 Constitution Avenue NW., Washington,
DC 20210. Telephone: (202) 219-5555 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
In General
The Trade Act of 1974 made major changes to the trade adjustment
assistance program (hereafter ``TAA program'') for workers displaced
because of increased imports of articles like or directly competitive
with articles produced by the workers' firm. On receiving a petition
for trade adjustment assistance (hereafter ``TAA'') from a group of
workers or its authorized representative, the Department conducts a
factfinding investigation in response to the petition. If the findings
substantiate that the workers of a firm or subdivision of a firm have
been adversely affected by import competition, a certification is
issued stating that the workers are eligible to apply at a local office
of a State employment security agency for TAA benefits.
The 1981 Amendments to the Trade Act of 1974 (Title XXV of Pub. L.
97-35) made extensive changes in the TAA program. Further changes were
made in the 1984 Amendments (Sections 2671 and 2672, of Pub. L. 98-369)
and in the 1986 Amendments (Part 1 of Subtitle A of Title XIII of Pub.
L. 99-272). Final regulations implementing the 1986 Amendments were
published in the Federal Register on August 24, 1988, at 53 FR 32344,
and on May 23, 1989, at 54 FR 22277.
The 1988 Amendments to the TAA program are contained in Part 3,
Trade Adjustment Assistance, of subtitle D of title I of the ``Omnibus
Trade and Competitiveness Act of 1988'' (Pub. L. 100-418) (hereafter
the ``OTCA''). The 1988 Amendments expand eligibility for TAA to
workers in the oil and natural gas industry engaged in exploration and
drilling; require detailed information about TAA program benefits to be
given to every individual who files an initial claim for unemployment
benefits, and further require an individualized notice to every worker
believed to be covered by a certification issued by the Department;
require publication of a notice of the certification in a newspaper of
general circulation; require a worker to participate in training as a
condition for receiving basic trade readjustment allowances (hereafter
``TRA''); authorize the waiver of the training requirement for a worker
when training is not feasible or appropriate; authorize the payment of
basic and additional TRA to a worker during breaks in training that do
not exceed 14 days; reinstate the movable eligibility period for basic
TRA, based on the worker's most recent qualifying (total) separation
rather than the first qualifying separation as was previously required;
extend the expiration date of the TAA program to September 30, 1993;
emphasize coordination with programs and services to dislocated workers
provided under title III of the Job Training Partnership Act; and make
other changes.
While most of the provisions of Part 3 affecting the TAA program
are in the form of amendments to Chapter 2 of Title II of the Trade Act
of 1974, some provisions of Part 3 affecting workers do not amend
existing law. Examples are the provision which permits workers in the
oil and natural gas industry engaged in exploration or drilling,
separated after September 30, 1985, to file petitions under new
eligibility rules, and the provision concerning the eligibility of
workers totally separated from adversely affected employment during the
period beginning August 13, 1981, and ending April 7, 1986. The
provisions of the 1988 Amendments became effective, in general, on
August 23, 1988, except that the amendments to sections 231(a)(5), (b)
and (c) took effect on November 21, 1988, and the amendment to Section
225 took effect on September 22, 1988.
Because many of the 1988 Amendments were effective on the date of
their enactment into law, August 23, 1988, most notably the new
``movable'' eligibility period for basic TRA, the Department issued
interim Operating Instructions in General Administration Letter
(hereafter ``GAL'') No. 7-88, dated September 12, 1988, which was
published in the Federal Register on September 16, 1988, at 53 FR
36180-36213, together with Training and Employment Information Notice
(hereafter ``TEIN'') 6-88. GAL 7-88 and the two changes thereto were
subsequently rescinded and replaced by GAL 15-90, dated August 21,
1990. These GALs disseminated controlling guidance to the States on the
administration of the TAA program as amended by the OTCA, pending the
issuance of final amendments to the regulations. GAL 15-90 was
published in the Federal Register on November 21, 1990, at 55 FR 48774-
48800, together with TEIN 13-90.
Following the issuance of GAL 7-88, amendments to the regulations
at 20 CFR part 617, implementing the 1988 Amendments, were proposed in
a document published in the Federal Register on November 30, 1988, at
53 FR 48474, with a comment period ending on December 30, 1988.
Preparation of a final rule document, addressing the comments received,
began after the end of the comment period. The need for other changes
in the regulations was identified in light of the comments received,
further reflection on the 1988 Amendments, and experience with the
interim Operating Instructions. The most significant changes, resulting
in the issuance of GAL 15-90 and in delaying the publication of this
final rule document, were the changes in the interpretations of
subsections (a) and (g) of Section 1430 of the OTCA, relating to the
new ``movable'' eligibility period for basic TRA. This significant
change, and other related changes, were announced in GAL 15-90.
This final rule therefore includes substantive changes in the
amendments to part 617 that were included in the proposed rule
published on November 30, 1988. The most significant of these changes
are the new interpretations of the effective dates of the 1988
Amendments relating to the ``movable'' eligibility period for basic
trade readjustment allowances (Secs. 617.3 and 617.11(a) (1) and (2)).
This document also includes substantive changes to Part 617 that were
not included in the published proposed rule, including sub-stantive
changes that were announced in Changes 2 and 3 to GAL 15-90, relating
to a complete revision of Sec. 617.26 and a change in Sec. 617.22(a).
Many of these substantive changes resulted from a consideration of
comments received on the proposed rule. Nonetheless, in the interests
of keeping its rulemaking processes as open as possible, the Department
is inviting public comments on these changes. Further changes are made
in Secs. 617.3, 617.11(a), 617.15(b) and (d), 617.16, 617.19(b),
617.21, 617.22(f), 617.33, 617.44, 617.50(d), 617.55, 617.60 and
617.64, which are related to the revision of Sec. 617.26 or for other
reasons as explained below. Conforming changes are also made in
Sec. 617.67.
The effective date of all of the substantive changes in the statute
and the regulations that are announced in any GAL (or change thereto)
is the same as the effective date of the amendment(s) to which the GAL
pertains, but any substantive change in GAL operating instructions
applies, unless stated otherwise, in the case of all decisions made
after the date of issuance of the GAL (or change thereto) by the
Department. However, all of the substantive changes noted below in
items A through R are subject to an opportunity for comment after
publication of this final rule. After the end of the comment period,
and consideration of any comments received, another final rule document
will be published relating to these substantive changes.
Substantive changes in the interpretations of the 1988 Amendments
which are addressed below relate primarily to the effective date and
application of the new eligibility period for basic TRA, but also
relate to other provisions of the OTCA, the Trade Act of 1974 and
section 106(a) of Public Law 102-318 which amends section 231(a)(2) of
the Trade Act, as discussed below.
The Department's new interpretations center on the effective date
provisions of subsections (a) and (g) of Section 1430 of the OTCA.
These new interpretations are discussed in detail in paragraph A,
below.
Good Cause Exception
The Department has determined, pursuant to 5 U.S.C. 553 (b)(B),
that good cause exists for publication in final of the substantive
changes in this document, because all of such changes are essential to
the proper administration of the TAA program by the States, and such
changes either relieve a restriction, and have been previously
announced in controlling operating instructions issued to the States,
or relate primarily to procedural relationships between and among the
States. In addition, because of the delays encountered in issuing this
final rule, any further delay in putting these substantive changes into
effect would be impractical and contrary to the public interest. As
explained above, comments are invited and will be considered, after
which a final rule will be published. In the meantime, public
implementation of these substantive changes as final regulations will
not be delayed further.
In the following text, therefore, substantive changes, on which
comments are requested, are addressed first. These changes are followed
by a discussion of the comments received on the proposed rule published
on November 30, 1988.
Substantive Changes from November 30, 1988 Proposed Rule
The substantive changes noted under this heading are either changes
in the amendments to part 617, as published on November 30, 1988, or
changes in other sections of Part 617 that were not included in the
proposed rule. These substantive changes also include conforming
changes in the transition provisions of Sec. 617.67.
Comments are requested on all of these substantive changes, after
which a final rule document on such changes will be published.
A. New Eligibility Period for Basic TRA
Section 1425 (a) of the OTCA amended section 233(a)(2) of the Trade
Act of 1974 to reinstate the ``movable'' eligibility period for basic
TRA. Section 1430(a) of the OTCA made this amendment effective on the
date of enactment, August 23, 1988, and section 1430(g) of the OTCA
provided that amended section 233(a)(2) would not be applied in certain
circumstances if it would result in an earlier expiration date of a
worker's eligibility period established on the basis of the prior law.
In the proposed rule published on November 30, 1988 (53 FR 48474)
(as well as in Section 4.F.1. of GAL 7-88), Section 1430(a) was
interpreted as making this amendment applicable to any total qualifying
separation which occurred on or after August 23, 1988. The limitation
in section 1430 (g) was interpreted as applying with respect to any
such total qualifying separation if it would result in an earlier
expiration date of the eligibility period of a worker based on the
prior law and a first qualifying separation which occurred before
August 23, 1988.
In GAL 15-90, issued on August 21, 1990, the Department announced
that, in conjunction with the development of final regulations
implementing the 1988 Amendments, the Department determined that the
previously published interpretations of the effective date provisions
in the proposed rule published on November 30, 1988, were in error. The
same erroneous interpretations were contained in GAL 7-88, and this
fact necessitated the issuance of revised operating instructions in GAL
15-90, which was published in the Federal Register on November 21,
1990, at 55 FR 48774.
Subsection (a) of section 1430 of the OTCA provides that: ``Except
as otherwise provided by this section, the amendments made by this part
shall take effect on the date of enactment of this Act.'' Subsection
(a) thus applied to, among others, the amendment to section 233(a)(2)
of the Trade Act of 1974, which prescribes the eligibility period for
basic TRA. In the proposed rule and in GAL 7-88, the amendment to
section 233(a)(2) was interpreted as being applicable to separations
which occurred on or after the date of enactment of the OTCA, August
23, 1988.
In the new interpretations announced in GAL 15-90, section 1430(a)
was interpreted as applying to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) made on and after August
23, 1988.
The Department concluded, and announced in GAL 15-90, that amended
section 233(a)(2) should be applied to all decisions rendered on or
after August 23, 1988, regardless of whether they involved initial
determinations of TRA eligibility, redeterminations, or decisions on
appeal.
The Department also stated in GAL 15-90 that the new interpretation
of section 1430(a) is supported by the analysis and construction placed
on subsection (g) of section 1430, and by the general principle of law
known as the law-in-effect rule. Under the law-in-effect rule, the law
to be applied in making any decision is the law in effect at the time
the decision is made. In GAL 15-90, this law-in-effect rule was
determined to be applicable to the new interpretations and the 1988
Amendments.
Subsection (g) of section 1430 provides that the amendment to
section 233(a)(2) ``shall not apply with respect to any total
separation of a worker * * * that occurs before the date of enactment
of this Act if the application of such amendment with respect to such
total separation would reduce the period for which such worker would
(but for such amendment) be allowed to receive'' basic TRA. In the
proposed rule and in GAL 7-88, section 1430(g) was interpreted as
limiting the application of amended section 233(a)(2) to total
separations which occurred on or after August 23, 1988, where the
result otherwise achieved would be an earlier expiration date of the
eligibility period of a worker established on the basis of the prior
law and a first qualifying separation which occurred before August 23,
1988.
In the new interpretations announced in GAL 15-90, section 1430(g)
was interpreted literally as applying only to total separations that
occurred before August 23, 1988, and the limitation in section 1430(g)
thus applies only to such prior separations.
A consequence of this new interpretation of section 1430(g) is
that, if the application of amended section 233(a)(2) to a total
separation prior to August 23, 1988, would result in extending the
worker's eligibility period, the amended section 233(a)(2) shall be
applied. Conversely, amended section 233(a)(2) shall be applied to
total separations which occur on and after August 23, 1988, regardless
of whether it would result in an earlier expiration date of the
worker's eligibility period based upon a first qualifying separation
which occurred before August 23, 1988.
Section 1430(g) is not applicable, however, to a ``first qualifying
separation'' which occurs before August 23, 1988. It is on the basis of
such a first qualifying separation that a worker would have a longer
eligibility period ``but for'' the amendment to section 233(a)(2). To
preserve a longer eligibility period, and thereby give effect to the
limitation in section 1430(g), therefore, such limitation could not
logically be made applicable to such a first qualifying separation.
A more extensive explanation and justification for the new
interpretations affecting amended section 233(a)(2) was set forth in
GAL 15-90, and in Attachment A and Section F.1. of GAL 15-90. That
explanation and justification was published in the Federal Register, at
55 FR 48774, 48778, 48782, and 48789 (November 21, 1990).
The new interpretations require substantive changes in the final
rule, particularly in the definitions of ``eligibility period'' and the
various types of ``separation'' defined in Secs. 617.3(m) and 617.3(t),
as well as in the transition provisions in Sec. 617.67. Other
conforming changes are made throughout the document, including the
deletion of clause (D) in Sec. 617.11(a)(2)(iii).
B. Other Applications of New Interpretations
The new interpretation of section 1430(a) and the law-in-effect
rule also affect other amendments to which section 1430(a) applies.
These include--
OTCA Section 1421(a)(1)(B)--Sec. 617.11(a)(4) Special
rules for oil and gas workers--retroactive. (Section A.2. of Attachment
A to GAL 15-90);
Trade Act Section 233(b)--Sec. 617.15 (Section E.4. of
Attachment A to GAL 15-90);
OTCA Section 1425(b)--Sec. 617.11(a)(3) Special rules for
workers separated in 1981 to 1986 period. (Section F.2. of Attachment A
to GAL 15-90).
A more extensive explanation and justification for the application
of the new interpretations to these provisions was set forth in GAL 15-
90 and Attachment A thereto.
The Department also has decided that the 1988 Amendments relating
to sections 231(a)(5), 231(b), and 231(c) of the Trade Act, which,
under section 1430(f) of the OTCA, took effect 90 days after the date
of enactment (i.e., on November 21, 1988), are not affected by the new
interpretation of section 1430(a). Although the effective date language
of section 1430(f) is the same as the effective date language of
section 1430(a), the Department has determined that the application of
the new interpretation to these provisions would cause manifest
injustice to affected workers and also would appear to be contrary to
the intent of the Congress and the logic of the 90-day delay in the
effective date of these amendments. This is more fully explained in GAL
15-90 and Attachment A.
C. Changes to Sec. 617.11(a)(2)(iii)(B) (1) and (2)
Section 106(a) of Public Law 102-318 amended section 231(a)(2) of
the Trade Act of 1974 by adding a new paragraph (D) to the categories
which are considered a week of adversely affected employment at wages
of $30 or more a week in order to qualify for TRA. The new subparagraph
(D) provides that any week a worker is on call-up for active duty in a
reserve status in the armed forces, provided such active duty is
``Federal service'' as defined in 5 U.S.C. 8521(a)(1), shall constitute
a week in meeting the TRA qualifying requirements of section 231(a)(2)
of the Trade Act of 1974. Section 106(a) also clarifies that not more
than 26 weeks described in subparagraphs (B) or (D) of section
231(a)(2) of the Trade Act may be used for TRA qualifying purposes.
This means that all of the required employment and wages necessary
to qualify for TRA may be attained during a reservist's call-up to
active duty. This amendment only affects the TRA qualifying requirement
in section 231(a)(2); all other TRA qualifying requirements in section
231 are unchanged. Therefore, State agencies must also determine if a
reservist meets the remaining TRA qualifying requirements contained in
section 231 of the Trade Act before awarding TRA entitlement to the
reservist.
In determining the worker's qualifying weeks at wages of $30 or
more a week for TRA qualifying purposes, the amendment to section
231(a)(2) of the Trade Act applies to weeks beginning after August 1,
1990. The effective date of this amendment results in a retroactive
application to TRA claims filed (or which would have been filed) by
reservists who took part in Operations Desert Storm and Desert Shield.
This means that State agencies must redetermine the TRA initial claims
of all reservists called-up for active duty whose claims were denied
solely because they did not meet the requirements of section 231(a)(2)
of the Trade Act as in effect prior to the enactment of this amendment.
State agencies must also take TRA initial claims of reservists who did
not previously file a TRA initial claim because they did not meet the
requirements of section 231(a)(2) as in effect prior to the enactment
of this amendment.
Operating instructions issued to State agencies in GAL No. 10-92,
Operating Instructions to section 231(a)(2) of the Trade Act of 1974
Contained in H.R. 5260, dated July 6, 1992, explained the changes to
section 231(a)(2) of the Trade Act and instructed State agencies and
cooperating agencies to take the appropriate actions to identify and
inform reservists of their rights to redetermination or the opportunity
to file TRA initial claims. Actions by State agencies include a search
of claimant files and publication of information on this new provision
in newspapers of general circulation and other appropriate media.
Accordingly, a new clause (iv) is added to
Sec. 617.11(a)(2)(iii)(B)(1) and clause (ii) in
Sec. 617.11(a)(2)(iii)(B)(2) is changed to implement these amendments
to section 231 (a)(2) of the Trade Act.
D. Change to Sec. 617.11(a)(3)(i)(E)
Section 1425(b) of OTCA provides eligibility for TRA to certain
workers who were continuously unemployed since separation from
adversely affected employment during the period from August 13, 1981 to
April 7, 1986, not taking into account seasonal employment, odd jobs,
or part-time, temporary employment. This provision opened up
eligibility to workers who could not qualify for additional weeks of
TRA because they did not meet the 210-day time limit for filing for
training and to workers who did not receive all of their TRA
entitlement because their eligibility period was based on their first
rather than their most recent separation. In the proposed rule, general
guidance was provided to State agencies on ``continuously unemployed''
but State agencies were allowed to apply the provisions using their
expertise in determining eligibility relating to employment. However,
the Department decided that it was essential to provide State agencies
with guiding instructions for implementing section 1425(b)(2)(A) (ii)
of the OTCA so that the Department, rather than States, defines the
limits of the Federal liability. Accordingly, definitions to be used in
applying the terms ``seasonal employment'', ``odd jobs'' and ``part-
time, temporary employment'' are added in a new clause (2) in
Sec. 617.11(a)(3)(i)(E). Because precise definitions were not available
for each of these terms, definitions were developed for purposes of
this final rule from various sources and other program applications.
The seasonal provision of applicable State law is used in applying the
``seasonal employment'' provision. A definition for ``odd jobs'' was
developed in which the established period of employment occurs within 5
days or less. The definition for ``part-time'' is taken from the ETA
Glossary of Program Terms and Definitions (ETA Handbook No. 373), which
provides for less than 30 hours per week of regularly scheduled work.
However, that definition has to be applied along with ``temporary
employment.'' The definition for ``temporary employment'' is based on
ETA reporting requirements for the public employment service in which
an established employment period of 150 days or less is used.
E. Change to Sec. 617.15(b)
Amendments to Sec. 617.15 were included in the proposed rule
published for comment on November 30, 1988. A further change in
Sec. 617.15 was considered as a result of the reinstatement of the
movable eligibility period for basic TRA. This change was to base the
210-day period for filing an application for training, in order to
qualify for up to 26 weeks of additional TRA, on the worker's most
recent partial or total separation from employment under the
certification, rather than within 210 days after the date of the first
qualifying separation. This change reinstates the rule that was
applicable prior to the 1981 Amendments, when the eligibility period
was movable, and was adopted with the issuance of Change 2 to GAL 7-88,
dated May 22, 1989. In view of the new interpretation of section
1430(a), and the law-in-effect rule, a further change was made in the
interpretation and application of the 210-day rule, which was announced
in GAL 15-90. The new interpretation applies to all decisions (i.e.,
determinations, redeterminations, and decisions on appeals) which are
made after the date of issuance of GAL 15-90, on August 21, 1990. (See
GAL 15-90 and section E.4 of Attachment A). These changes are
incorporated in Sec. 617.15(b) of this final rule.
F. Change to Sec. 617.15(d)
The proposed rule was published for comment on November 30, 1988.
At that time, the Department had concluded that days ``in which
training would not normally be scheduled'' should not be counted as
part of a scheduled break in training. Initially, the Department
limited the exclusion to Saturdays and Sundays, if training in the
applicable training program would not normally be conducted on those
days. In GAL 7-88, and Change 1 to GAL 7-88, the Department interpreted
section 233(f) of the Trade Act as excluding certain weekend days and
holidays in counting the days of a break in training. GAL 7-88 and
Change 1 were unclear, however, whether the exclusion of holidays
included both National and State holidays. On further consideration,
the Department agreed that all officially recognized National and State
holidays should be excluded in counting the days of a break in
training, to the extent that training in the applicable training
program would not normally be scheduled on those days if they did not
occur during the break. This change was adopted with the issuance of
GAL 15-90 and is applicable to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) which are made on or after
August 23, 1988, regardless of when the training was approved under
section 236 of the Trade Act, or whether the training was approved or
is approvable under section 236 as amended by the 1988 Amendments, or
when the break in training began or ended. In making decisions under
Sec. 617.15(d), the law to be applied is the law as in effect on the
date the decision is made, and this rule has applied since the issuance
of GAL 15-90 on August 21, 1990. Decisions previously made under prior
operating instructions are subject to redetermination in accordance
with State law, as set forth in section 4.b. of GAL 15-90.
In order to clarify what constitutes a ``break in training'' for
purposes of section 233(f), a new clause (2) is added to Sec. 617.15(d)
defining a break in training as including all periods within or between
courses, terms, quarters, semesters and academic years, whether or not
such breaks are scheduled by the training provider.
Clauses (2) through (5) of Sec. 617.15(d) are renumbered (3)
through (6).
G. Revision of Sec. 617.16
Section 234 of the Trade Act of 1974 specifies the State law
provisions that shall be applicable to claimants for TRA purposes, and
Sec. 617.16 distills the provisions of section 234 in a definition of
``applicable State law.'' Section 617.16 is now being revised for two
essential reasons. The first reason is to include in the definition the
situation of the worker who is not entitled to UI after separation from
adversely affected employment, as is provided for in Section 234. This
had not seemed relevant after the 1981 Amendments, because of the
addition in section 231(a)(3) of the eligibility requirement that the
worker must be entitled to and have exhausted all UI. The 1988
Amendments, however, have prompted rethinking of the roles and
responsibilities of the States in the administration of the TAA
program, and particularly of the role of the ``applicable State''
(i.e., the State whose law is the applicable State law) in the case of
TAA program benefits other than TRA. Accordingly, the definition of
``applicable State law'' is broadened so that it is a useful reference
point for all TAA program benefits. While providing a useful reference
point, there is no intent in revising Sec. 617.16 to suggest that an
individual who is not entitled to UI after a qualifying separation from
adversely affected employment may be entitled to TRA.
The second reason for revising Sec. 617.16 is to conform
Sec. 617.16 to the revision of Sec. 617.26, relating to the roles and
responsibilities of the States as liable States and agent States in the
administration of the TAA program. As discussed below, Sec. 617.26 is
revised to incorporate the Department's thinking as set out in Change 2
to GAL 15-90. In this connection, consideration was given to including
in Sec. 617.16 the definition of ``applicable State'' which is set
forth in Change 2. Upon further consideration, however, it was decided
that the definition of ``applicable State law'' furnished the most
useful reference point for all purposes of the TAA program, and that a
special definition of ``applicable State'' is neither necessary nor
useful.
Accordingly, Sec. 617.16 is revised to track more closely Section
234, and to serve as a useful reference point for all of the purposes
of the TAA program. The section also is modified to make it clear that
the UI entitlement referred to is that which immediately follows a
qualifying separation from adversely affected employment, and not UI
entitlement in some past period, however recent or remote it may have
been.
H. Revision of Sec. 617.19(b)(1)(i)(B) and (b)(2)(ii)(A)
Clause (A) of Sec. 617.19(b)(2)(ii) explains that training is not
appropriate when the firm from which the individual was separated plans
to recall the individual within the ``reasonably foreseeable future''.
Also, Sec. 617.19(b)(1)(i)(B) defines ``appropriate'' as including
whether there is a reasonable prospect which is reasonably foreseeable
that the individual will be reemployed by the separating firm. These
provisions are consistent with Sec. 617.22(a)(1)(ii) on conditions for
approval of training when there is reasonable prospect of suitable work
within the foreseeable future. (See item 43 below.)
While it is reasonable to deny training under Sec. 617.22 (a) to a
worker who is scheduled for recall, there is an identified need to
provide additional guidance in the regulations on the application of
the term ``recall that will occur in the reasonably foreseeable
future'', for purposes of administering Secs. 617.19(b)(1)(i)(B) and
(b)(2)(ii)(A). These regulations are consistent with the
Administration's position to tighten waivers. Publication of these
regulations will improve efficiency in utilizing waivers. This moves
the current TAA program in to closer alignment with the Transitional
Adjustment Assistance provisions of NAFTA. Therefore, this section is
being amended by adding a new clause (2) to Secs. 617.19(b)(2)(ii)(A),
for use in approving training and granting waivers. Clause (2) provides
guidance on two types of planned recalls. The first type is a specific
recall where an individual or group of individuals who was separated
from employment is identified and notified by the employer to return to
work within a specified time period. In this situation an individual
would not be approved for training and a waiver of the training
requirement would be granted for purposes of receiving basic TRA.
The second type is a general recall where the employer announces an
intention to recall an individual or group of individuals, or by other
action reasonably signals an intent to recall, but does not specify a
certain time period in which the recall will occur. In this situation,
if the recall in each individual case is reasonably expected to occur
after the individual would exhaust his or her eligibility for regular
UI associated with the most recent total separation that is within the
TAA certification period, the individual would be treated as any other
individual who was separated from adversely affected employment and the
participation in training requirement would be applied.
I. Revision of Sec. 617.21
Section 617.21 describes the activities that are included as
reemployment services and allowances. Paragraph (e) of this section is
revised to add child care as a support service. This revision is made
to eliminate any uncertainty that child care is a support service and
that the costs for such service may not be charged as a related cost of
training and paid with TAA program funds. See also the Department's
response to item 47 below.
Paragraph (g) of this section is also revised to reflect the 1988
Amendment to section 236 of the Act which added remedial education as
being approvable as classroom training. Training designed to enhance
the employability of individuals by upgrading basic skills, through
remedial education or English-as-second-language courses, are
considered as remedial education approvable under Sec. 617.22(a) if all
the approval criteria in that section are met. A training program of
remedial education only may now be approved for an individual if he or
she possesses occupational skills and needs only remedial education to
obtain employment. Ordinarily, remedial education is made part of a
broader skills training program as defined in Sec. 617.22(f) (3).
J. Revision of Sec. 617.22(a)(5)
Section 617.22(a) lists six criteria that must be met for approval
of training. These are intended to assure that training will lead to a
specific occupational goal. Clause (5) of Sec. 617.22(a) deals with a
worker's personal qualifications to undertake and complete such
training. The Department's interpretation of this clause has been
changed to add ``financial resources'' to those personal
qualifications, and this change is included in amended
Sec. 617.22(a)(5).
Change 3 to GAL 15-90, dated July 17, 1991, (56 FR 46331, 46333),
announced a change in the definition of the criterion for approval of
training in Section 236(a)(1) (E) of the Act, by adding ``financial
resources'' to the existing physical and mental qualifications which
must be reviewed in making a determination that a worker is able to
undertake and complete training, as set out for criterion (E) in
Section G.1. of Attachment A to GAL 15-90 and incorporated in this
final rule. This change was made to enhance the worker's ability to
complete training by stressing that the duration of approved training
should be commensurate with the worker's financial resources.
Training may be approved for a duration not to exceed 104 weeks
under a single certification, as limited in amended Sec. 617.22(f)(2).
However, combined UI and TRA entitlement is available to workers for a
maximum of 78 weeks. When the duration of training exceeds the
remaining weeks of UI and TRA payments, a worker's income support may
end or be substantially reduced before completing the approved training
program. This situation often results in workers dropping out of
training.
The amended Sec. 617.22(a)(5) will require State agency staff to
explain to workers seeking approval of training in which the duration
of training exceeds their remaining weeks of UI and TRA payments, that
in the absence of other financial resources such training may not be
appropriate. When the worker's financial resources are not commensurate
with a training program suitable to the worker, the training
requirement may be waived under Sec. 617.19(b)(2)(ii)(B).
K. Revision of Sec. 617.22(f)
An individual who satisfies the six criteria for approval of
training in Sec. 617.22(a) may be enrolled in a training program that
does not exceed 104 weeks in length. (See Sec. 617.22(f)(2).) Inquiries
were received on whether an individual may pursue more than one
training program under a single certification or whether training under
a certification is limited by the 104-weeks time provision. To
eliminate any uncertainty on this matter, clause (2) on length of
training has been revised to state more clearly that the maximum
duration for any approvable training program is 104 weeks and no
individual shall be entitled to more than one training program under a
single certification.
For purposes of part 617, a new clause (3) is added to
Sec. 617.22(f), which provides a definition for a ``training program''.
Subclause (i) of clause (3) provides that a training program may
consist of a single course or a group of courses designed and approved
by the State agency for an individual to meet a specific occupational
goal. Subclause (ii) of clause (3) authorizes State agencies to amend
an individual's approved training program, when the duration of
training is less than 104 weeks, to add a course or courses designed to
satisfy unforeseen needs, such as the need for remedial education or
specific occupational skills. However, the amended training program may
not exceed the 104-week time limitation in clause (2).
Clause (4), previously clause (3), is amended to clarify that the
hours in a day and the days in a week an individual attends an approved
training program must be full time commensurate with the standards of
the training facility. The purpose of this amendment is to ensure that
hours of training per week and length of the training program are
scheduled in a manner that the individual will develop the skills
needed to achieve a specific occupational goal in a reasonable time
period and at a reasonable cost. Any week in which training is less
than full time will still count as a full week for the purposes of the
104-week limitation.
L. Revision of Sec. 617.26
Section 617.26, entitled ``Approval of other training including
interstate,'' was not among the sections of regulations proposed to be
amended in the proposed rule published on November 30, 1988. However,
rethinking occasioned by the 1988 Amendments led to the conclusion that
there is a need to clarify, and in some respects alter, the roles and
responsibilities of liable States and agent States in the
administration of the TAA program. Among the OTCA amendments that
caused such rethinking were those making training an entitlement and an
eligibility requirement for basic TRA, and the provisions of amended
section 231(c) on training waivers. In addition, comments received on
related sections of the proposed regulations were considered in
reaching this conclusion. The redescription of liable State and agent
State roles and responsibilities was announced in Change 2 to GAL 15-
90, which was published at 56 FR 46331, 46332.
The present Sec. 617.26, written in 1975, provides that the agent
State shall be responsible for the selection and approval of training,
and will pay any training related costs, and that the liable State is
responsible for determining eligibility for TRA, job search and
relocation allowances, and may approve and purchase training provided
that certain conditions are met. Although the respective roles of the
liable and agent States were spelled out, the section was silent on the
legal relationships and the appellate authority in the case of
determinations made by the agent State. In addition, there were some
overlapping responsibilities relative to training approval and payment
of training costs. The regulations as revised in this document address
these issues and, in general, deal more comprehensively with the roles
and responsibilities of liable and agent States in administering the
TAA program. Accordingly, Sec. 617.26 is retitled ``Liable and agent
State responsibilities'' and the roles of liable and agent States are
delineated.
After examining State practices, as affected by the OTCA
amendments, the Department has concluded that, as a general rule, the
agent State should continue to be responsible for procuring and paying
for TAA approved training and related costs, including subsistence and
transportation, as appropriate. In addition, the agent State shall
assist the liable State in fulfilling its responsibilities for making
determinations of entitlement to all TAA program benefits. These
changes are reflected in revised Sec. 617.26.
Another significant change in Sec. 617.26 is in making the liable
State responsible for all determinations, redeterminations, and
decisions on appeals pertaining to any worker's eligibility for or
entitlement to any TAA program benefit under Part 617. This includes
determinations relating to training approval, disapproval, waivers and
revocation of waivers for training, and training related costs
including subsistence and transportation. This requirement will
preclude due process objections which could be raised if workers were
required to appeal some issues under the agent State law and other
issues under the liable State law. Responsibility for selection and
approval of training no longer resides in the agent State, as is
provided in the present rule.
However, a liable State and an agent State may jointly agree to
modify this rule with respect to their TAA administrative functions,
but any such change must comply with the legal requirement that all
determinations will be under the authority of the liable State, and all
appeals by individuals will be under the law of the liable State.
Further, prior approval for any such modification must be obtained
under Sec. 617.54. (See also Secs. 617.33 and 617.44, below.)
Additionally, in those situations where two or more States share a
common labor market area and workers commute across State lines for
work, those States may wish to develop cooperative arrangements,
consistent with revised Sec. 617.26, and approved under Sec. 617.54, to
provide TAA ser-vices to adversely affected workers in the area.
The definition of ``liable State'' at Sec. 617.3(aa) is also
revised to conform with changes in Secs. 617.16, 617.26, 617.33 and
617.44, and a definition is added for ``agent State''. (The term
``applicable State,'' which is defined and used in Change 2 to GAL 15-
90, is not used in this final rule. It was decided that the terms
``liable State'' and ``agent State,'' and the definition of
``applicable State law'' in Sec. 617.16 were adequate to cover the
rules associated with interstate responsibilities without adding a
further definition of ``applicable State.'')
As revised in this final rule, Sec. 617.26 comprehensively
addresses the roles and responsibilities of liable States and agent
States in interstate cases, clarifies the legal and appellate
relationships among the States, and assures due process for workers and
conformance with section 239(d) of the Act. With this revision, and
other changes in the rules, there is consistency among the regulations
in addressing State responsibilities: Sec. 617.16 covers applicable
State law; Sec. 617.20 addresses State responsibilities for the
delivery of reemployment services, in general; Sec. 617.33 addresses
findings required before final payment of a job search allowance is
made by the liable State; Sec. 617.44 addresses findings required
before final payment of a relocation allowance is made by the liable
State; and Secs. 617.50 and 617.51 speak to determinations of
entitlement, and appeals and hearings under the applicable State law,
respectively.
A conforming change is made in Sec. 617.50(a) by striking the
clause ``, or the State agency as provided in Sec. 617.26(d),''.
M. Revision of Sec. 617.33
Section 617.33 prescribes the findings required before final
payment of a job search allowance is made to an eligible worker by the
liable State. It describes the responsibilities of liable and agent
States in regard to those findings. This section is revised to
delineate more clearly the responsibilities of liable and agent States
for determinations (and appeal rights) regarding job search allowances.
N. Revision of Sec. 617.44
Section 617.44 prescribes the findings required before final
payment of a relocation allowance is made to an eligible worker by the
liable State. It describes the responsibilities of liable and agent
States in regard to those findings. This section is revised to
delineate more clearly the responsibilities of liable and agent States
for determinations (and appeal rights) regarding relocation allowances.
O. Revision of Sec. 617.50(d)
Section 617.50(d) contains the rules on the use of State law and
regulations in making and reviewing determinations and redeterminations
under part 617. Questions have arisen in at least two States whether
the 210-day time limit in Sec. 617.15(b) (and section 233(b) of the
Act) may be waived for good cause, or whether State law provisions on
good cause for late filing of UI claims may be applied. The Department
has consistently taken the position that such good cause provisions may
not be applied, in view of the lack of authority for doing so in any
provision of the Act or the regulations. Nevertheless, State
authorities in one State have ruled a number of times that there can be
good cause for late filing. And more recently, in a matter arising in
another State, the Sixth Circuit Court of Appeals issued a decision
adverse to the position of the Department. Because the Department
believes that conclusions inconsistent with its longstanding position
do not comport with the Act, it has decided to address the issue in a
broad manner and state as clearly as possible in the regulations the
precise situations in which State laws may be applicable in addressing
issues arising under the regulations.
The Sixth Circuit's decision started with the proposition that the
Trade Act of 1974 was passed by the Congress ``during a mood of
congressional largesse,'' and that the 210-day rule in section 233(b)
of the Act ``was not intended to act as a jurisdictional prerequisite
to additional TRA benefits.'' From this premise it reasoned that ``the
purpose of the rule is to discourage dilatory'' conduct by applicants,
and that absent a finding of dilatory conduct ``the application of the
210-day rule does nothing to further the Act's remedial purpose and
everything to frustrate it''. Citing another holding in the District of
Columbia Circuit, the Sixth Circuit held that the Department's
``interpretation makes sense only if there was a congressional policy
in favor of limiting TRA benefits.'' The Sixth Circuit concluded that:
``That court found no evidence of such a policy. Nor do we.'' From this
line of reasoning the Sixth Circuit held that the State's ``waiver for
good cause rule [is applicable] in this context''.
The Department believes the Sixth Circuit erred in relying upon the
``mood of congressional largesse'' in passing the 1974 Act, without
taking into account the critical redirection in the 1981 amendments
away from TRA and towards greater emphasis upon training (including
changing the 233(b) rule from 180 days to 210 days), and the direct
linkage in the 1988 Amendments of training and eligibility for basic
TRA (as well as additional TRA). In this context, there is a sound
reason for upholding the ``jurisdictional'' nature of the 210-day rule,
and less reason for reaching out to State law for a good cause
exception, as distinguished from fashioning an exception from the
language of Section 233(b). For these reasons, the Department believes
the Sixth Circuit's decision was incorrect. The Department is therefore
moving to clarify the regulations to make its interpretation of the Act
clearer.
In considering where in the regulations the clarification of the
Department's position should be made, the Department took into account
the fact that there are other time limits expressed in the regulations,
such as in Secs. 617.10(b), 617.31(c), 617.41(c), and 617.43(b). Since
all such time limits may be vulnerable to the same deviations that
occurred with respect to the 210-day time limit, it was decided that a
general rule was needed that is applicable to all of part 617. The
placement of this general rule thus fell logically in paragraph (d) of
Sec. 617.50.
Accordingly, paragraph (d) of Sec. 617.50 is amended to add the
general rule that no provision of State law or regulations as to good
cause for waiver of any time limit or for late filing of any claim
shall apply in the case of any time limitation stated in part 617,
unless such State law or regulation is made applicable by a specific
provision of part 617. This change eliminates any uncertainty about the
Department's position, and places a clear obligation on the States to
adhere to the time limitations in all of part 617.
P. Revision of Sec. 617.55
Section 243 of the Act, on Fraud and Recovery of Overpayments, is
interpreted as being drawn in broad terms so as to impose liability for
repayment of all improper payments under the Act, and to impose
penalties for all false statements or representations resulting in
improper payments. Subsection (a) imposes repayment liability upon any
``person'' receiving an improper payment, whereas subsections (b) and
(c) use the term ``individual'' in the fraud and recovery provisions.
In Sec. 617.55, in contrast, the term ``individual'' is used throughout
the liability, fraud, and waiver provisions of the regulations.
Recent experience in the administration of the TAA program has
highlighted the difference between ``person'' and ``individual'' as
such terms are commonly understood in other areas of law. The term
``person'' is more comprehensive, and may include an employer or other
entity or organization as well as an individual, whereas the term
``individual'' as used throughout part 617 typically means the
individual workers who are the beneficiaries of the program. The
question that arose was whether Sec. 617.55(a) was sufficiently broad
in wording to impose repayment liability upon an employer who had
received improper payments for the on-the-job training. In examining
this issue it became apparent that the same issue existed with respect
to payments for training of individuals that are made directly to
training providers. Although the payments in both cases may be said to
be made on behalf of the individual workers, it is evident that, in
many cases (particularly in the case of on-the-job training), liability
for repayment as well as responsibility for fraud is more properly
assignable primarily to the employer and possibly the training
provider.
To clarify the regulations, and to reflect the broad interpretation
given to section 243 of the Act, Sec. 617.55 is revised throughout to
make it specifically applicable to any person or individual, and
paragraph (i) is added to define person as any employer or other entity
or organization as well as the officers and officials thereof who may
bear individual responsibility.
Q. Revision of Sec. 617.60
A new Sec. 617.60, on Administrative requirements, was included in
the proposed rule published on November 30, 1988, for comment. Although
no comments were received, the substance of several of the provisions
are affected by other administrative regulations. Since further work is
required to bring the TAA administrative requirements into full
conformity with those other regulations, the decision was made to
reserve Sec. 617.60 for use when the revised TAA administrative
requirements are completed and published.
R. Revision of Sec. 617.64
In the 1986 Amendments to the Trade Act, section 285 was amended
by, among other things, adding a subsection (b), to provide that ``no
assistance, allowance, or other payments may be provided under chapter
2 * * * after September 30, 1991.'' This new subsection (b) superseded
the current provisions in Sec. 617.64, which were consistent with the
amendments made by section 2512 of the Omnibus Budget Reconciliation
Act of 1981. Section 1426(a) of the OTCA extended the termination of
the program to September 30, 1993. While the 1986 and 1988 amendments
to the TAA program changed the termination dates to September 30, 1991
and 1993, respectively, appropriate changes were not made to
Sec. 617.64 concerning the payment of TAA program benefits after the
termination date in the Act. Therefore, Sec. 617.64 is amended to bring
it into accord with the amended language in section 285 of the Act.
A strict construction of the law, prohibiting the actual payment of
TAA program benefits to individuals after the termination date in the
Act, would have a profound effect on those persons who completed
approved TAA program services, but, because of State processing
requirements, payment for such services cannot be made by the State
agency until after the termination date in the Act. This strict
construction would unnecessarily make the orderly termination of the
program impossible. It would deny payment of benefits to individuals
for the period prior to the termination date of the program simply
because it was administratively infeasible to make the payment before
the termination date. Therefore, in order to avoid these untoward
results stemming from a strict construction, a more liberal
construction of section 285(b) is necessary to effectuate the
Congressional intent. A ``payment,'' within the meaning of section
285(b), will be deemed to have been made before the termination date of
the program, if a final determination on the amount payable to, or on
behalf of, the individual for TAA program services was made on or
before the termination date of the program, for which payment was due.
This means that State agency approved job search and relocation,
and training related transportation and subsistence, must be completed
on or before the termination date in the Act and that the State make a
final determination on the amount of TAA program funds payable to the
individual on or before such termination date. This places the
requirement on the State agency to inform all individuals presently
approved for such benefits of the statutory time provision that the
service must be completed and a final determination on the amount
payable made on or before the termination date of the program. It also
places a requirement on individuals to complete the approved services
and to submit all claims for such activities to the State agency in
time to receive a final determination on the amount payable on or
before the termination date.
Individuals approved for training who began approved training on or
before the termination date in the Act must have a final determination
by the State agency on or before the termination date on the amount due
and payable for the training costs to cover previously incurred tuition
and related expenses. Determinations on tuition shall be limited to the
current training term, quarter, semester, or other scheduled period,
and be in accord with normal billing practices of the training provider
and payment practices of the State agency. In order to conform with the
intent of the law, the State agency may make a final determination on
the amount payable only for the training term, quarter, semester or
other time period for which payment is due and payable on or before the
termination date of the program.
Individuals entering training, and those currently in training
programs which extend beyond the termination date of the program,
should be informed that no payments will be authorized or made for any
costs or expenses which become due and payable after the termination
date of the program, nor will any such costs or expenses be paid prior
to the expiration date of the program.
Moreover, only the last full TRA benefit week, for which a final
determination has been made according to normal State UI processing
procedures on or before the termination date of the program, will be
paid to any individual.
When a claim for TRA is submitted to the State agency subsequent to
the termination date in the Act, or for which a final determination on
the amount payable has not been made on or prior to the termination
date of the program, the State agency is required to issue a ``no-
payment'' determination on the claim because the State may not refuse
to take and process the claim even though it is prohibited by statute
from paying the claim. These provisions apply also to claims for job
search allowances under Sec. 617.33 and for relocation allowances under
Sec. 617.44.
Discussion of Comments and Changes
In response to the proposed rule, the Department received written
comments from two State Governors, fourteen State employment security
agencies, three labor unions, and one public interest group.
1. Eligibility period. The Pennsylvania Department of Labor and
Industry (PDLI) recommended that clause (i) of Sec. 617.3(m)(1)
(defining ``eligibility period'' for basic TRA) be amended by removing
the word ``first'' after the word ``individual'' in the seventh line,
and by removing all language after the parenthetical clause ``(as
defined in paragraph (oo)(1) of this section).'' The PDLI stated that
these deletions are necessary for the regulation to conform to the
eligibility requirement of Section 233(a)(2) prior to its amendment by
the OTCA. The International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) commented that the
proposed rule incorrectly ties the eligibility period for basic TRA to
the date on which the first qualifying separation occurs, and the
reference to eligibility period, therefore, should be omitted.
Department's response. The Department believes that these comments
reflect an incorrect view of the 1981 Amendments and the effect of the
1988 Amendments in the OTCA. The Department construes the 1981
Amendments as setting the beginning of the eligibility period as the
week immediately following the week in which regular benefits are
exhausted following the worker's first qualifying separation. This is
explicitly provided for in section 233(a)(2), as amended in 1981, and
is set forth in the Department's regulations implementing the 1981
Amendments. The only change in this provision of the law was the
extension of the eligibility period from 52 weeks to 104 weeks in the
1986 Amendments. No change was made in the fixed eligibility period
until the 1988 Amendments, which restored the movable eligibility
period based on the most recent qualifying total separation. Therefore,
in Sec. 617.3(m)(1), the fixed eligibility period is retained for first
qualifying separations that occurred before August 23, 1988. The new
movable eligibility period is also implemented, in accordance with the
1988 Amendments, for decisions made on or after August 23, 1988, for
other qualifying total separations which occurred before, on, or after
August 23, 1988.
Section 1430(g) of the OTCA provides for the retention of the pre-
OTCA eligibility period which was established by the first qualifying
separation occurring before August 23, 1988, even if the decision is
made on or after August 23, 1988. Amended section 233(a)(2) may not be
applied in a decision made on or after August 23, 1988, in the case of
a more recent total separation occurring before August 23, 1988, if the
effect of applying such amended section would result in an earlier
expiration date of the eligibility period established on the basis of
an earlier first qualifying separation.
It is essential to retain the definition of eligibility period for
the application of prior law with respect to first qualifying
separations which occurred before August 23, 1988, while adding a
definition of the new eligibility period for qualifying separations to
which amended section 233(a)(2) is applicable. If, however, the
adversely affected worker is totally separated on or after August 23,
1988, following a first qualifying separation which occurred prior to
August 23, 1988, amended section 233(a)(2) must be applied even though
it results in an earlier expiration date of the eligibility period
established under pre-OTCA law.
Therefore, no substantive change is made in paragraph (m)(1)(i) of
Sec. 617.3, but as noted below substantive changes are made in
paragraphs (m) and (t) as a result of the new interpretations of
sections 1430 (a) and (g) of the OTCA, and to correct technical errors.
2. Application of new eligibility period. The UAW commented that in
Sec. 617.3(m)(1) the Department set up two standards for the 104-week
eligibility period during which TRA is payable. The UAW argues that the
proposed two standards differ according to whether the date of
separation occurred before or after August 23, 1988. The UAW commented
that Congress explicitly provided in section 1430(g) of the OTCA that
the revised definition of the 104-week eligibility period in section
1425(a) (amending section 233(a)(2)) was effective upon enactment
unless the application of the amended eligibility period would reduce
the period for which a worker would have been eligible for TRA.
Therefore, the two standards should not turn on the date of the
worker's separation, but on whether or not the worker's period of
eligibility is reduced through the application of the amended
eligibility period. The UAW commented further that Congress intended
the amendment to be fully effective upon enactment, permitting the
amendment to increase the eligibility period for basic TRA or establish
a TRA eligibility period for some workers, and noted that the
Conference agreement statements in House Conference Report 100-576 on
sections 1425 and 1430 of the OTCA strongly support this application of
the amendments. The UAW also commented that under OTCA sections 1425(a)
and 1430(g) the most recent total separation which is qualifying must
be used to determine the eligibility period, unless the eligibility
period would be shortened through the application of the amendment to
workers separated prior to enactment.
The PDLI, commenting on the transition guidelines in
Sec. 617.67(e)(3), noted that section 1430(g), in specifically
referring to total separations prior to the enactment of the OTCA,
raised the unavoidable implication that amended section 233(a)(2) shall
be applied to total separations prior to August 23, 1988, if such
application would provide the worker with a longer or later eligibility
period than the worker would have had under the pre-OTCA law. The
Unemployment Council of Southwestern Pennsylvania made the same point
in its comments.
Department's response. The Department agrees with the commenters'
understanding that the amendment to the basic TRA eligibility period is
not to operate to the disadvantage of workers whose eligibility period
would expire at a later date with respect to a qualifying separation
which occurred before the date of enactment of the amendment to section
233(a)(2). These comments were also a factor in the Department's
reconsideration of GAL 7-88 and the resulting new interpretations of
sections 1430(a) and 1430(g) announced in GAL 15-90 (see discussion in
item A. above).
If workers are to retain the advantage of a later expiration date
for the eligibility period based on the prior law, then the prior law
must continue to be applied to first qualifying separations which occur
before the date of enactment of the OTCA (August 23, 1988).
Accordingly, in general the comments have merit, and substantial
changes are made in the final regulations regarding the definition of
``eligibility period'' in Sec. 617.3(m)(1) and the definitions of
``separations'' in Sec. 617.3(t). Furthermore, the transition
provisions at Sec. 617.67(e) also have been revised to reflect the
Department's new interpretations of sections 1430(a) and 1430(g). For
further clarification, a proviso directly implementing section 1430(g)
of the OTCA is added to Sec. 617.3(m)(1).
3. Retroactive approval. The PDLI stated that Sec. 617.3(m)(2)(iii)
does not clearly point out why weeks of training prior to approval
cannot be paid. The PDLI asked ``What if the trainee, for example, was
in JTPA funded training that would be, after approval, either paid for
by TAA or continued under JTPA?''
Department's response. This comment suggests a misunderstanding of
the TAA program and the effects of the 1988 Amendments and earlier
changes. Since the addition of section 236(a)(3) (now 236(a)(4)) in the
1986 Amendments, the switching of training costs from other funds to
TAA funds has to be subject to the controls set out in that section. In
the 1988 Amendments those controls were retained, and authority was
added to mix TAA funding with funding from other public and private
sources and to use funding solely from other sources for TAA training.
That is why, in GAL 15-90 (and earlier in GAL 7-88) and in amended
Sec. 617.25, greater emphasis is given to entering into prearrangements
for sharing the costs of training with other funding sources. With
training becoming an eligibility requirement for basic TRA in the 1988
Amendments, the same emphasis upon prospective treatment must now be
given to basic TRA as has been given to additional TRA and, to a
somewhat lesser extent, TAA funds for training. Additional TRA has not
been paid for retroactive weeks, nor, under Sec. 617.22(c), have
previously incurred training costs been payable from TAA funds. This
same rule must now be applied to basic TRA, as well as additional TRA
and TAA training funds, and it is this rule that is reflected in
amended Sec. 617.3(m)(2)(iii) as well as in amended Sec. 617.22(c).
Under the 1988 Amendments, therefore, TAA funding will not follow
automatically from approval of training under Sec. 617.22(a), nor will
approval of training that commenced before approval under
Sec. 617.22(a) imply or justify payment of previously incurred training
costs from TAA funds, or payment of any TRA for any week that ended
before such approval was documented.
For the foregoing reasons, no substantive change is made in the
final regulations to accord with PDLI's comment. Changes are made in
Sec. 617.3(m)(2)(iii), as well as in Sec. 617.22(c), however, for
purposes of stating the prospective rule as clearly as possible and to
furnish a regulatory response to the PDLI's multi-faceted question.
4. Retroactive payments. The Ohio Bureau of Employment Services
(OBES) commented that Sec. 617.3(m)(2)(iii) specifies that the
eligibility period, during which additional weeks of TRA are payable to
a worker in approved training, if such training is approved after the
training commences, begins with the first week such training is
approved. Approval of such training after the training has commenced
shall not be deemed to authorize the payment of TRA for any week which
ended before such approval was documented. The OBES explained that, at
the present time, many individuals are enrolled in training programs
which were not TAA approvable prior to the 1988 Amendments because the
costs of training were paid with non-appropriated funds. While these
individuals are being made aware of the change in the law that now
authorizes the use of non-appropriated funds to pay the costs of
training, there are unavoidable delays in documenting sources of
training funds and approving the training under part 617. These delays
result in lost worker eligibility for weeks of additional TRA. OBES
recommends that the final rule provide for retroactive payment of the
additional weeks of TRA in such cases, at least to the date of
application for approval of such training. Sections 617.22(c) and
617.67(f) would also need to be modified for this purpose.
Department's response. The OBES presented the problem as one that
existed at the time the letter was written; that is, when the OBES's
comments were made in December 1988. Although the Department
understands that such a problem may have existed in late August and in
September 1988, the operating instructions in GAL 7-88 were issued to
State agencies some three months before the OBES comments were made.
Accordingly, the Department has decided not to relax its long-standing
rule against retroactive payments expressed in Sec. 617.22(c). See
discussion under the preceding item. It was not expected that the new
authorization for sharing costs of training would furnish a viable
solution to all existing cases. One of the safeguards built into the
new system was to require that sharing of costs be under conditions
arranged before the training was approved under Sec. 617.22 and
undertaken by the worker. There is no intent to approve the payment of
additional TRA for weeks a worker is not actually participating in
training nor to approve retroactive payments that are not allowable
under Sec. 617.22 (c). The expectation is that cooperating agencies
will enter into shared cost prearrangements for training not funded
wholly from TAA funds.
Therefore, the Department has decided to make no change in the
regulations in response to this comment, but notes under item 3 that
clarifying technical changes are being made in Secs. 617.3(m)(2)(iii)
and 617.22(c).
5. Qualifying separations. The Missouri Department of Labor and
Industrial Relations (MDLIR) commented on paragraphs (t)(1), (t)(2)(ii)
and (t)(3)(ii) of Sec. 617.3 in the proposed rule, which define ``first
separation'', ``qualifying separation'', and ``first qualifying
separation''. Since a worker must have a total separation on or after
August 23, 1988 to qualify for TRA, the MDLIR asked why the definition
of ``partial separation'' should not be eliminated if it takes a total
separation to establish eligibility for TRA?
Department's response. The Department retained the definition of
``partial separation'' because the qualifying requirements in section
231(a)(1) and (2) continue to permit workers to have a total or partial
separation from employment to qualify for TRA prior to August 23, 1988,
and for TAA services other than TRA whether a separation occurs before
or after August 23, 1988. The amended law does not require that a
worker have a total qualifying separation on or after August 23, 1988,
in order to qualify for basic or additional TRA for weeks beginning
after August 23, 1988. Workers will continue to be eligible for basic
and additional TRA after August 23, 1988, based on a partial or total
qualifying separation that occurred before August 23 under the prior
law. Although the amended law requires that a qualifying separation
must be a total separation to qualify initially for basic TRA (or to
move the eligibility period based on a prior qualifying separation
under the same certification), a partial qualifying separation will be
used for purposes other than the basic TRA eligibility period. For
example, under Sec. 617.15(b) an application for training must be filed
within 210 days after the date of the worker's total or partial
separation referred to in Section 231(a) (1). (See item E. above, and
item 25, below, concerning changes to Sec. 617.15(b) on the application
of the 210-day rule.) Further, the weekly and maximum amounts of TRA
payable to an individual are based on the first total or partial
separation. However, with respect to qualifying separations to which
amended section 233(a)(2) applies, a worker's eligibility period for
basic TRA is based on total separations only.
In considering this comment, however, an error was discovered in
paragraph (t)(3) of Sec. 617.3, which did not give proper effect to a
partial separation on or after August 23, 1988. Therefore, in addition
to other changes as discussed above, paragraph (t)(3) is amended in
this final rule to accord with the above response to this comment. For
the same reason a parallel change is made in Sec. 617.67(e)(4).
6. TRA weekly and maximum. In commenting on the application of
amended section 233(a)(2) to the most recent total qualifying
separation, in determining the eligibility period of a worker, the UAW
argued that this contrasts with the determination of weekly and maximum
amounts of TRA, which does require the use of ``first qualifying
separation.'' The proper use of ``first qualifying separation'' is
restricted to the determination of the weekly and maximum amounts of
TRA.
Department's response. The Department agree
FR Doc. 94-16 Trade Adjustment Assistance for Workers; Amendment of Regulations
s that determinations of
TRA weekly benefit amounts and maximum benefit amounts, under sections
232(a) and 233(a)(1), will continue to be based on the first total or
partial separation, and that this was not changed by the 1988
Amendments. What this means is that monetary determinations of TRA
entitlement may have to be based upon two separations which occurred in
different years. For example, for a period of up to three years or more
after August 23, 1988 (the impact date to termination date of a
certification plus the time between petition and certification dates
can be a period of up to or in excess of three years), it is possible
that a worker will have had a first qualifying separation before August
23, 1988, and computations under sections 232(a) and 233(a)(1) will be
based upon UI entitlement in the first benefit period following such
first separation, whereas the worker's most recent total qualifying
separation will be used to determine the basic TRA eligibility period.
This is simply illustrative, however, because in all cases decided on
or after August 23, 1988, the eligibility period under amended section
233(a)(2) will be based upon the most recent ``total qualifying
separation,'' whereas computations of weekly and maximum TRA amounts
under sections 232(a) and 233(a)(1) will continue to be based on the
first separation with respect to which the worker is entitled to UI,
whether such separation occurred before or after August 23, 1988. This
is an additional reason why, for any worker who is determined to have
had a ``total qualifying separation,'' it will be necessary to
establish whether the worker had an earlier first separation under the
same certification.
The definition of ``first qualifying separation'' in paragraph
(t)(3) of Sec. 617.3 incorrectly relates determinations of weekly and
maximum TRA amounts only to first qualifying separations with respect
to which the worker also qualifies for TRA. This is corrected in the
final regulations, and other technical corrections are made to
distinguish between ``first separation'' and the meaning of ``first
qualifying separation'' for its two purposes; that is, (a) eligibility
period for TRA, and (b) computation of weekly and maximum TRA amounts.
7. Partial separations. The Indiana Department of Employment and
Training Services (IDETS) commented that, based on its understanding of
Sec. 617.3(t)(3)(ii) of the proposed rule, and sections 233(a)(1) and
231(a)(3)(A) of the Act, there appears to be a conflict over whether a
partial separation after August 23, 1988, may be used to determine
benefit amounts.
Department's response. The IDETS is correct in noting this error in
paragraph (t)(3) of Sec. 617.3. See the discussion under the preceding
two items. The first separation under a single certification, with
respect to which the worker is entitled to UI, must be used to
determine the worker's weekly and maximum amounts of basic TRA, whether
such first separation occurs before or after August 23, 1988. As noted
in the preceding two items, Sec. 617.3(t) is modified to clarify this
and other points.
8. Advice to workers. The Vermont Department of Employment and
Training (VDET) commented on Sec. 617.4 concerning what constitutes
proper advice and assistance to workers. The VDET stated that the
requirement to inform each worker applying for unemployment insurance
``of the procedures and deadlines for applying for such benefits''
taken literally includes a large number of applicants who are applying
for short term UI benefits and who in no way are likely to be eligible
for benefits under the TAA program. The VDET argues that while it is
important that the State agency take the initiative to inform workers
who may be eligible for the benefits, the current language is too
rigid, and will only cause confusion among short term unemployed. The
Vermont agency recommended that the requirement be rephrased to require
States to develop the means to identify trade eligible workers who
apply for UI and then provide the necessary information to those
workers.
Department's response. The Department agrees that State agencies
should identify potential trade eligible workers as early as possible
in their benefit period. However, section 239(f) of the Act provides,
among other things, that each worker who applies for unemployment
insurance shall be advised of the benefits under the TAA provisions of
the Trade Act and the procedures and deadlines to apply for such
benefits. There is no language which would support the limitation
suggested by the VDET. Often temporary layoffs by a firm adversely
affected by import competition or other economic conditions become
permanent. The intent of Congress is to ensure that such workers are
made aware early in their unemployment experience of the TAA program,
how to apply for benefits, and the services available to them. Many
State UI agencies furnish an information bulletin or brochure to every
worker who files a claim for UI. These bulletins or brochures should
include full and correct information on the amended TAA program, and on
the benefits and services available to unemployed workers. The
Department is encouraging all State agencies to publish a brochure for
handout to workers filing initial claims for UI. State agencies should
revise their previously used brochures to accurately reflect all the
changes made in this final rule, and furnish a copy to each worker who
files an initial claim for UI as required by section 239(f) since
August 23, 1988.
While no change is made in the final regulations regarding the
requirement of advising all UI claimants of the TAA program,
Sec. 617.4(e) is modified by eliminating the unnumbered paragraph at
the end of this section and by adding the provisions of that paragraph
in clause (2).
9. Notice to workers. The Michigan Employment Security Commission
(MESC) explained that Sec. 617.4(d)(1)(ii)(A) states that notices to
workers must include information as to the article(s) produced. The
MESC commented that unless the article(s) produced is part of the
certification statement, e.g. ``all workers producing shock
absorbers,'' referring to it will often confuse rather than clarify
worker coverage. For example, if the certification covers ``all workers
of XYZ Company,'' to state in the worker notice that the company
``produces shock absorbers,'' will confuse workers of the XYZ Company
who may have produced brakes. Unless a specific article is identified
in the published certification document, it should not be required
information in the notice to workers.
Department's response. The Department concurs with the comment. The
articles produced are to be specified in a notice to the workers only
when there is a specific reference in the published certification
document to an article or articles. When all workers in the firm are
covered by the certification it is not necessary to identify the
article(s) produced. The regulation is modified at
Sec. 617.4(d)(1)(ii)(A) to reflect this change, and the same change is
made in Sec. 617.4(d)(2)(ii)(A) regarding newspaper notices.
10. Identifying workers. The New York Department of Labor (NYDL)
commented that Sec. 617.4(d)(1) expands the intent of the Trade Act by
specifying the sources that the State agency should utilize in
identifying adversely affected workers. The NYDL stated that it is
inappropriate to specify such sources in a regulation and suggested
that the Department adhere to the language of the Act. It also
suggested the following substitute language: ``The state agency shall
provide written notice, through the mail, of benefits available under
this chapter to each worker whom the State agency has reason to believe
is covered by a certification made under subchapter A of this chapter.
The notice must include the following information: * * *.''
Department's response. The proposed rule merely refers to any other
reliable sources of information other than the workers' firm. When a
firm closes, information from the firm's records may be difficult to
obtain. In this case, as well as others, the State agency should obtain
the best information available to it. This level of specificity seems
appropriate for the regulations. Similarly, in implementing the
provision on the scope of the notice to be given, the Department has
concluded that amended Section 225 requires that all workers who can be
identified shall receive such notice. Therefore, no change is made in
the final regulations.
11. Newspaper notices. The OBES commented that Sec. 617.4(d)(2)
requires State agencies to publish a notice of each certification
issued in its State in a newspaper of general circulation in the areas
in which the affected workers reside. OBES further commented that it is
not uncommon that prior to the State agency being informed of a
certification by the Department of Labor all affected workers have
already learned of the certification and have reported to the State
agency to file for TAA benefits. Therefore, OBES recommended that the
final rule provide for a waiver of the public notice requirement when
it can be verified by the State agency that all the affected workers
have filed for TAA benefits. The OBES also recommended that the funding
source for such newspaper notices be identified formally. The
California Employment Development Department (CEDD) provided similar
comments on Sec. 617.4(d)(2). CEDD pointed out that there is no useful
purpose in placing an expensive newspaper ad when all affected workers
are notified by letter, or when the ad will very likely not be seen by
any of the former workers.
Department's response. The Department agrees that a newspaper
notice is not needed in some situations because all the workers are
identified by the State agency and notified by mail. This situation
occurs frequently when the certified worker group is small. Therefore,
the Department is amending the final rule at Sec. 617.4(d)(2) to
authorize State agencies to dispense with the newspaper notice when it
can be substantiated and is documented in the agency's records that all
adversely affected workers covered by a certification have been
identified and have been sent written notice by mail as required by
Sec. 617.4(d)(1)(i).
12. Notices of waivers. The UAW, commenting on Sec. 617.4(e),
stated that workers should be provided with a notice of their right to
seek a waiver of the training requirement and the procedure for doing
so.
Department's response. The Department believes that the regulations
as proposed establish the right of workers to waivers of the training
requirement in appropriate cases, and provide for appeal and review of
determinations on such waivers. State agencies will initiate waivers
where training is not feasible or appropriate. Information that waivers
will be issued to workers when training is not appropriate or feasible
must be furnished to the workers or be included in the bulletin or
brochure furnished to each worker under paragraph (e)(1) of Sec. 617.4.
The Department does not believe that more specificity is required in
paragraph (e)(1). Therefore, no change is made in the final
regulations.
13. Information to workers. The CEDD, commenting on Sec. 617.4(e),
stated that there is some confusion between this section and
Sec. 617.67(c)(2). The CEDD commented that it is not clear whether TAA
information must be provided to every individual who applies for
unemployment insurance, as stated in Sec. 617.67(c)(2), or just to
those certified as adversely affected as implied by use of the word
``worker'' in Sec. 617.4(e). The CEDD recommended, if States are to
provide TAA information to all individuals filing for UI, this
requirement should be clearly identified in the final rule.
Department's response. The Department does not believe that the
regulations are ambiguous on this issue. The 1988 Amendments to section
239(f) state that every worker filing for UI is to be informed of the
TAA program and the benefits available, even though the worker may not
qualify for TAA. The regulations at Secs. 617.4(e)(1) and 617.67(c)(2)
clearly state that each worker who applies for UI shall be advised of
the benefits available under the TAA program and does not confine such
advice to workers who have been identified as adversely affected by
imports. Therefore, no change is made in the regulations.
14. Advice to UI claimants. The OBES commented that
Sec. 617.4(e)(1) requires State agencies to advise each worker who
files for unemployment insurance of TAA benefits available and the
deadlines for applying for such benefits. The OBES requested that the
final rule replace the term ``deadlines'' with ``time limits''. The
final rule should also establish the administrative funding mechanism
for the substantial costs associated with implementing this
requirement. CEDD also commented on a funding issue.
Department's response. The regulations at Sec. 617.4(e)(1) track
the language of section 239(f)(1) of the Trade Act, which provides that
workers shall be informed of the ``deadlines'' for applying for TAA
benefits. Matters of administrative funding are addressed in program
letters and other issuances of the Department and will be addressed
further in Sec. 617.60 when it is published. (See explanation on the
publication of Sec. 617.60 in item Q. above.) No special funding
category is contemplated for furnishing information and assistance to
applicants and potential applicants. Therefore, no change is made in
the final regulations.
15. All UI claimants. The CEDD, commenting on Sec. 617.10(d),
stated that this section contains a statement about providing
``workers'' with TAA information at the time the UI claim is filed. The
CEDD argues that, if the rule means every individual who files a UI
claim, States will have problems meeting this requirement because often
a TAA certification has not been issued when the worker files an
initial UI claim.
Department's response. The 1988 Amendments require the State agency
to inform every worker filing an initial UI claim about the TAA program
and the benefits available under it. There are no exceptions to this
rule. One of the purposes of the amendment is to ensure that workers
are informed of the program at that time so they can file a petition
for TAA if they wish, whether or not a petition has been filed or a
certification issued covering that worker or others. See Sec. 617.4(e).
The Department believes this requirement can be met easily by
furnishing an information bulletin or brochure on the TAA program to
every worker who files an initial UI claim. See discussion in item 8,
above. Therefore, no change is made in the final regulations.
16. Legal work requirement. The UAW commented that the proposed
rules at Sec. 617.11(a)(1)(iii)(C) and (a)(2)(iii)(C) are not reflected
in any provision of the Trade Act of 1974, as amended, nor in the 1988
Amendments. The UAW stated that the Department is trying to enforce the
Immigration Reform and Control Act (IRCA) with this provision. The UAW
argued that if Congress wished to enact such a provision it could have,
but it did not do so. IRCA did not implicitly amend other federal laws.
The Department should not amend the TAA program to enforce IRCA in the
absence of statutory authority and therefore the referenced
subparagraphs should be deleted entirely.
Department's response. The content of Secs. 617.11(a)(1)(iii)(C)
and (a)(2)(iii)(C) is not changed by reason of the 1988 Amendments.
These sections of the regulations merely restate a requirement which
has been in the TAA regulations since they were issued in 1975 in a
different place within the regulations. No substantive change has been
made in this regulatory requirement. These provisions do not implement
the IRCA. Therefore, no change is made to the regulations.
17. Certification period. The NYDL recommended that paragraphs (B)
and (C) of Sec. 617.11(a)(1)(ii) and (a)(2)(ii) be combined to read as
follows: ``(B) Before the expiration of the two-year period beginning
on the date of such certification, or, if earlier, before the
termination date, if any, of such certification.''
Department's response. The Department agrees that this change would
clarify an ambiguity in the statutory language. Therefore, the
regulations are changed along the lines suggested by the NYDL.
18. Job search program. The NYDL recommended that
Sec. 617.11(a)(1)(vii) on the job search program (JSP) be deleted from
the regulations since retroactive TRA claims approved for weeks prior
to November 21, 1988, will no longer require participation in a JSP.
After November 21, 1988, individuals involved will not know about the
requirement. The UAW made a similar comment on the JSP requirement.
However, the UAW commented further that this proposed rule creates a
likelihood that workers will not be informed by State agencies of the
deletion of this requirement in the 1988 Amendments since the
Department is ``encouraging'' States to continue the program.
Department's response. Various provisions of the 1988 Amendments
became effective on different dates. The proposed rule was structured
to address those statutory requirements that applied prior to, and
apply on and after November 21, 1988. The JSP requirement was
applicable through November 20, 1988. The training requirement became
applicable on November 21, 1988. Therefore, it is essential to
delineate the statutory requirements for each time period, and set them
forth clearly in these regulations. Also, appeal actions may be pending
on workers who were denied TRA eligibility because they failed to begin
participation in or failed to complete a JSP. Some of these cases could
eventually be resolved in the courts. The retention of the regulations
on the JSP will continue to provide the basis for supporting
determinations made by State agencies during the period the JSP
requirement was applicable. In the proposed rule, a new paragraph was
added to Sec. 617.49, specifically providing that JSP is not a
requirement for any week which begins after November 20, 1988, and this
provision is included in the final regulations. In addition, the
Department believes that a JSP is a very useful employability service
for adversely affected workers and should be encouraged. Therefore, no
change is made in the final regulations.
19. Temporary work. The OBES commented that Sec. 617.11(a)(3)(iii)
specifies that State agencies are to take into account local labor
market characteristics in giving effect to the terms seasonal
employment and part-time, temporary work. The OBES recommended that the
final rule should provide a definition of temporary work to ensure
uniformity among and between States.
Department's response. As noted in item D. above, the Department
decided to add to the regulations definitions of the terms ``seasonal
employment'', ``odd jobs'', and ``part-time, temporary employment'', to
provide State agencies with guiding instructions for implementing
section 1426(b)(2)(A)(ii) of the OTCA, so that the Department, rather
than the States, defines the limits of Federal liability under
Sec. 617.11(a)(3) as under other aspects of the TAA program. The
explanation for each of these definitions is noted in item D. In more
specific response to the commenter, notice that the definitions go
beyond simply defining temporary work separate and apart from ``part-
time, temporary employment'' as used in the statute. To fit into this
category, as is made clear in the amended regulation, such work must be
both part-time and temporary.
20. Enrolled in training. The Governor of North Dakota and the Job
Service of North Dakota, commenting on Sec. 617.11(a)(2)(vii), point
out that the definition for ``enrolled into training'' is when the
worker has been accepted to an approved training program that will
begin within 30 calendar days. Both recommended that the definition
provide that a worker be considered as enrolled in training upon
acceptance into an approved training program and scheduled to commence
training on the next regularly scheduled program starting date. Rural
States have a limited number of training facilities offering open entry
and open exit options. Virtually all training programs offered by both
public and private facilities have designated enrollment dates. The 30-
day limitation would cause States to invoke the waiver provision
unnecessarily.
Department's response. The Department included the 30-day provision
in the definition for ``Enrolled in training'' to help reduce the
number of waivers of the training requirement that would have to be
issued by State administering agencies because approved training would
not begin immediately. The Department recognizes that schedules for
some training institutions may involve periods longer than 30 days for
training to begin. In such situations, a waiver may and should be
granted. States must search for training programs for individuals which
will begin within 30 days, or as soon as possible thereafter. To allow
fewer days in the definition for ``Enrolled in training'' would
generate more waivers of the training requirement and increase
administrative costs. The Department believes that extending this
period in regulations would be difficult to justify. Under the statute,
the objective of the training requirement is to get workers actively
engaged in training as soon as possible, as a condition of entitlement
to TRA. The 30-day requirement eliminates the need for a waiver where
the training program is to begin within 30 days, but does not subject
the worker to the EB work test while awaiting the start of training.
Accordingly, no change is made in the final regulations.
21. Apparent contradiction with EB work test. The MDLIR commented
that Sec. 617.11(a)(2)(vi)(B) and (vii)(B) and (C), which refer to the
EB work test and the training requirement, appear to be contradictory.
The regulations state that the EB work test and the training
requirement shall not apply to an individual with respect to a claim
for TRA for weeks of unemployment prior to the filing of an initial
claim for TRA, nor for any week which begins before the certification
is issued and the individual is fully informed of the requirement. The
MDLIR points out that the language of these paragraphs appears to
permit retroactive payments of TRA.
Department's response. The Department does not agree with the
commenter. The cited paragraphs of the regulations do not authorize
retroactive payments of TRA. These paragraphs specifically provide that
the requirements for eligibility in clauses (vi) and (vii) may not be
applied retroactively, to workers otherwise eligible for basic TRA,
because workers cannot comply retroactively with those requirements.
This is a ``due process'' issue only. Therefore, no change is made in
the regulations.
22. Completed training. The Unemployed Council of Southwestern
Pennsylvania (UCSP), commenting on Sec. 617.11(a)(2)(vii)(D)(2), stated
that the requirement ``the training occurred subsequent to the
individual's total or partial separation'' goes beyond Congressional
intent. The UCSP argues that in amended Section 231(a)(5)(B) Congress
allowed TRA payments to workers who have ``* * * after the date on
which the worker became totally separated, or partially separated, from
adversely affected employment, completed a training program approved by
the Secretary. * * *'' The UAW also commented along the same lines.
Department's response. The Department agrees with the comments, and
the regulations have been changed accordingly to delete the word
``occurred'' and insert in place thereof ``was completed'' in
Sec. 617.11(a)(2)(vii)(D)(2).
23. Enrolled in training. The Washington Employment Security
Department (WESD), commenting on Sec. 617.11(a)(2)(vii)(D)(1),
recommended that the definition for ``enrolled in training'' be amended
by adding after ``within 30 calendar days'' the words ``or the next
available time the training could begin at the training institution.''
The WESD explained that in the cases where training is not available
within 30 days of approval that to subject the worker to the EB work
test, which means a worker must accept any work the worker is
physically capable of performing, would be to the detriment of the
worker when training is approved and planned for in the foreseeable
future.
Department's response. During the period the EB work test is
applied under Sec. 617.19(b)(3), when the training requirement is
waived, the worker may find suitable employment which would eliminate
the need for additional training. If the State agency determines the
job is not suitable (as defined in Sec. 617.22(a)(1)(ii)), and it is
reasonable and necessary for the worker to quit work in order to enter
training, as provided in Sec. 617.18(b)(1)(iii), the individual may
enter training when the training program begins. Also, see the
Department's response in item 20, above. Therefore, no change is made
in the final regulations.
24. Certain waivers. The PDLI commented that
Sec. 617.11(a)(3)(i)(C) appears to require that a worker must meet all
the requirements applicable to eligibility for basic TRA in the
preceding sections, including the wage and employment qualifying
requirements, with respect to the total separation in
Sec. 617.11(a)(3)(i)(B), to qualify for the waiver of the basic TRA
eligibility period and the 210-day filing requirement under Section
1425(b) of the OTCA. The PDLI commented further that the reference in
Section 1425(b) is to total separations from adversely affected
employment within the meaning of Section 247 of the Act. Section 247
defines both separation and adversely affected employment. The
definitions do not include references to wage and employment qualifying
requirements. Requiring workers to meet these additional conditions
with respect to the total separation noted in section 1425(b) seems to
be beyond the intent of the law. Further, to the extent previous
Federal operating instructions (GAL 7-88) direct the wage requirements,
including equivalent qualifying weeks, be met as provided under the law
prior to the 1986 Amendments, the PDLI believes those instructions are
incorrect and should be revised.
Department's response. The Department does not concur in these
comments. Section 1425(b) does not remove the wage and employment
qualifying requirements of the Trade Act. This section, by specific
reference to sections 233(a)(2) and 233(b), only eliminates the time
limit on the eligibility period for receiving basic TRA and the 210-day
time limit for filing for training to qualify for additional weeks of
TRA. No waiver of any of the other basic eligibility requirements is
implied in removing these two time constraints. Therefore, no change is
made in the regulations.
25. 210-day period. The WESD, commenting on Sec. 617.15(b)(2),
argues that it would be a contradiction for the Department to retain
the present 210-day requirement for requesting training in order to
qualify for additional weeks of TRA rather than applying a movable
eligibility period as used for TRA payments. The NJDL and the MESC also
commented that the 210-day period should begin with the individual's
most recent qualifying separation.
Department's response. The Department agrees with these comments,
and Sec. 617.15(b) is revised accordingly in the final rule. This
change has already been implemented through Change 2 to GAL 7-88 and
reiterated in GAL 15-90, both of which were also previously published
as notices in the Federal Register. This change is effective for
decisions made on or after August 23, 1988, when the movable
eligibility period took effect. However, as this change was not
included in the proposed rule, a 30-day comment period is provided in
this final rule. (See the explanation above in item C.)
26. Scheduled breaks in training. The UAW, commenting on
Sec. 617.15(d)(1), pointed out that amended section 233(f) provides
that a worker shall be treated as participating in training during a
week which falls in a break of 14 days or less, if the worker was
participating in training before the break and ``the break is provided
under such training program.''
The UAW points out that the proposed rule adds the requirement that
the break be ``provided in the published schedule of the training
program.'' While ``publication'' might ease administration, there are
some individualized training programs which do not have published
schedules. Therefore, the UAW recommended that ``previously
established'' schedule as an alternative formulation which would permit
workers in less academic settings to continue to receive TRA as
Congress intended, but prevent nonparticipating workers from arguing
they were merely ``on break.''
Department's response. The Department does not believe such a
narrow reading need be given to the word ``published,'' but has
clarified the regulations by modifying Sec. 617.15(d)(1) to add after
the ``published schedule'' the words ``or previously established
schedule'' and by adding that the break may be indicated in the
training program approved for the individual. The intent is to ensure
that ``breaks'' in training during which TRA payments may continue are
not limited to regularly scheduled breaks established by the training
provider before the program begins but also include all other periods
of time elapsing between courses or phases of the approved training
program. Therefore, the changes made in this final rule with respect to
this matter go beyond the comments received, and, as explained in item
F. above, a new clause (2) is added to Sec. 617.15(d) to define a
scheduled break in training as including scheduled breaks within or
between courses, terms, quarters, semesters, and academic years,
whether or not such breaks are scheduled by the training provider.
27. Before and after break. The PDLI commented that
Sec. 617.15(d)(1)(i) requires, in addition to other requirements, that
the worker be participating in training immediately prior to the break
and resume participation immediately after the break ends. The PDLI
recommends that this provision might be stated better by changing the
final regulation to participating in training for the week claimed
prior to the beginning of the break and resuming participation for the
week claimed at the end of the break.
Department's response. The Department believes the commenter's
suggestion would introduce some ambiguity in the wording of the
regulations. However, Sec. 617.15(d)(1) is revised to reflect the
change announced in GAL 15-90, and set forth in Section E.3., Payments
of TRA During Breaks in Training, in Attachment A to GAL 15-90. Section
233(f) provides for the payment of basic and additional TRA ``during
any week which is part of a break in training'' provided certain
conditions are met. The conditions are spelled out in
Sec. 617.15(d)(1), clauses (i) through (iii). In addition, as a
condition of TRA eligibility during the break, Sec. 617.15(d)(1) is
amended to restate the requirement that the worker shall be required to
participate in training after the break ends. This will assure that the
purpose of Section 233(f) is carried out. Section 617.15(d)(1)
accordingly is modified by removing the ``resume participation''
condition from clause (i) and restating it in clause (iii), with
emphasis upon ``immediate'' resumption of participation.
28. Break delay. The ODHR, commenting on Sec. 617.15(d)(1)(i),
explains that by including the phrase ``and resumes participation'' as
a condition for payment means that no payment for the break can be paid
until the break is over and this is verified. The ODHR states that this
contradicts the intent of the rule that ``An individual will continue
to receive basic and additional weeks of TRA during scheduled breaks in
training'' and would create problems if the break fell within the
individual's scheduled reporting period. The NYDL provided similar
comments on Sec. 617.15(d)(1)(i).
Department's response. The Department agrees that it is not the
intent of this regulation to delay TRA payments during scheduled breaks
in training that do not exceed 14 days. However, if a worker fails to
resume participation in the training immediately after the break ends,
any payments made during the scheduled break shall be established as
overpayments, subject to repayment under the provisions of Sec. 617.55.
Therefore, no change in the regulations is necessary to reflect this
intent.
29. Inconsistency. The MESC, commenting on Sec. 617.15(d)(2),
stated that no basic TRA may be paid if the individual is on a
scheduled training break of 15 days or more. The MESC stated that
denial of TRA to a claimant during a break which exceeds 14 days, but
less than 30 days, is inconsistent with the definition of ``enrolled in
training'' in Sec. 617.11(a)(2)(vii)(D)(1), which allows payment of TRA
to a claimant who will enter training within 30 days. A claimant during
a break in training of less than 30 days should be considered enrolled
in training and eligible for basic TRA.
Department's response. The purpose of these two provisions is not
similar, nor is there a basis in the statute for altering the specific
14-day provision of section 233(f). The 14-day break in training
provision is a statutory requirement and not subject to change in
regulations. On the 30-day provision, see the discussion in item 20
above. Therefore, no change is made in the final regulations.
30. Holidays during breaks. The West Virginia Department of
Employment Security (WVDES) commented that, in counting days of breaks
under Sec. 617.15(d)(3), Saturdays and Sundays are not counted but
holidays are counted. The WVDES recommends that for purposes of
counting the days in a break, holidays not be counted along with
Saturdays and Sundays. The MESC, NYDL and the Oregon Department of
Human Resources (ODHR) provided similar comments.
Department's response. The Department agrees that recognized legal
holidays should not be counted, and has already acknowledged this
change in section E.3. of Attachment A to GAL 15-90 (also see page 3 of
the GAL). Ordinarily, breaks in training are oriented to National and
State holidays, and to periods within terms or semesters of the
training institution. The one long holiday oriented break each year is
the holiday beginning around the second or third week in December and
ending after New Year's Day. Since these holidays are the reason for
the break, the Department agrees that such holidays should not be
included in counting the number of days of the break. The critical
point is whether a particular day would ordinarily be a scheduled
training day in the particular training program. Therefore, official
State and National holidays are added to the days not counted in
counting the days of a break, if training in the program concerned
would not normally be scheduled on such days. (See the explanation in
item F. above.)
31. EB work test. The MESC, commenting on Sec. 617.17(b)(2), stated
that this section indicates that on or after November 21, 1988,
claimants in training which is State approved (but not TAA approved)
must satisfy the EB work test. The MESC further states that before
November 21, 1988, the EB work test was not applied to claimants in
State approved training. The MESC argues that there should be no change
in the exception to the EB work test on or after November 21, 1988.
Section 231(a)(4) of the Trade Act, unchanged by the 1988 Amendments,
requires that to be eligible for TRA, a worker would not be
disqualified for EB due to the work test. An EB claimant in State
approved training would not be disqualified.
Department's response. The commenter incorrectly reads section
231(a)(4) and the effect of the substantive amendment to section
231(a)(5), which was effective on November 21, 1988. Prior to November
21, 1988, for the purposes of basic TRA, participation in training
approved under the State law or under Sec. 617.22(a) was sufficient to
make the able and available requirement, including the EB work test,
inapplicable. The amendment to section 231(a)(5) makes training
approved under section 236 an eligibility requirement for basic TRA,
effective on November 21, 1988. After November 20, therefore, claimants
for basic TRA may not satisfy the requirement of section 231(a)(5), or
avoid the EB work test, by participating in training which is not
approved under section 236. The Department's position was clearly set
forth in section 4.C. of GAL 7-88, and was reiterated without change in
section C. of Attachment A to GAL 15-90; it also is correctly stated in
Secs. 617.11(a) (2), (3), and (4) and 617.17(b) of the proposed rule
and is retained in this final rule.
To give full effect to the 1988 Amendments, moreover, the EB work
test must apply even after the TRA claimant has satisfied the
requirement of Section 231(a)(5) by completing a training program
approved under amended Sec. 617.22(a), (see Section C. of Attachment A
to GAL 15-90). Having completed such training, the individual should be
job ready, and should be actively seeking work so as to return to
employment as soon as possible. It is particularly appropriate in these
circumstances, therefore, that the EB work test of section 231(a)(4)
should apply in regard to any further claims for basic TRA. It would
not accord with these purposes to permit the claimant to avoid the EB
work test by engaging in any other training that is not approved under
amended Sec. 617.22(a). The Department has concluded, and the final
regulations provide, therefore, that the EB work test must be met by
every claimant for basic TRA, unless the claimant actually is enrolled
in or participating in TAA approved training as specified in the Trade
Act and in these final regulations. This requirement applies as well to
claimants who have completed TAA approved training, with respect to any
claim for basic TRA for any week beginning after completing the
training program. For the foregoing reasons, no change is made in the
final regulations.
(Note: section 202(b) of the Unemployment Compensation
Amendments of 1992 added paragraph (7) to section 202(a) of the
Federal-State Extended Unemployment Compensation Act of 1970, which
suspends the eligibility and requalification requirements of
paragraphs (3) and (4) of section 202(a) for the weeks beginning
after March 6, 1993, until January 1, 1995. GAL No. 7-93, 58 F.R.
21477, makes this change applicable to the TAA Program and should be
used for guidance with respect to this issue. This change is not
incorporated into the final regulations because it is a temporary
suspension.)
32. Justifiable cause. The American Federation of Labor and
Congress of Industrial Organizations (AFL-CIO), commented on
Sec. 617.18(b)(2)(i), regarding an individual who ``* * * fails to make
satisfactory progress in training,'' and on Sec. 617.18(b)(2)(ii)(C),
Justifiable cause, including reasons related to the individual's
capability to participate in or complete approved training. The AFL-CIO
recommends that, since educational limitations are a common reason for
failure to profit from job training, such individuals should be
promptly evaluated as to the need for remedial education, as authorized
under the 1988 Amendments.
Department's response. The Department agrees that training must be
suitable for the worker. The fifth criterion in section 236(a)(1)
requires a supported determination that a worker is qualified to
undertake and complete the training being approved. See section G.1. of
Attachment A to GAL 15-90 and section 4.G.1. of GAL 7-88, and
Sec. 617.22(a)(5). This provision emphasizes the worker's personal
qualifications; that is, that the worker's own physical and mental
capabilities and background and experience are appropriate to the
training. It states further that the worker must be evaluated before
approving training as being qualified to undertake the specific
training program being considered and to complete that training program
successfully. If the worker needs remedial education, this should be
identified and included as a part of the approved training program. If,
during the training program, the need for remedial education becomes
apparent, appropriate arrangements should be made to accommodate those
needs as part of the same training program. Therefore, while the
Department agrees with the comment, no change is needed in the
regulations to accomplish this intent. However, the worker's personal
qualifications in Sec. 617.22(a)(5) are amended by adding financial
resources to the existing qualifications to undertake and complete the
training being approved. Item J., above, explains the change and the
Department's reasons for the change.
33. Satisfactory progress in training. The PDLI commented that
several paragraphs in the proposed rule refer to ``making satisfactory
progress'' in training. This language was amended in section 233(a) of
the Trade Act effec- tive on November 21, 1988, to ``participating'' in
training, and section 236(c) was repealed. The PDLI recommends that
unless these sections refer to the law prior to November 21, 1988, this
language only serves to confuse and should be revised or deleted. The
UCSP and UAW made similar comments on the requirement in the proposed
rule that the worker must have ``successfully'' completed an approved
training program to meet the training completion requirement of amended
Section 231(a)(5).
Department's response. The Department has reconsidered these
matters and agrees that the comments on ``satisfactory progress'' have
merit. References to ``satisfactory progress'' have therefore been
removed from Secs. 617.11(a)(3)(i)(D), 617.15(b)(3), 617.18(b)(1)(ii)
and (iii), and 617.18(b)(2)(i). The references to ``successfully''
completed and ``satisfactory'' completion of training are also removed
from Secs. 617.11(a)(2)(vii) (A)(2) and (D)(2). However, the conditions
for ``completed training'' in Sec. 617.11(a)(2)(vii)(D)(2) are
retained. To meet the requirements of section 231(a)(5) of the Act, it
is reasonable to expect an individual who completed a training program
to have satisfied the standards or conditions for the training program
and, therefore, to have ``successfully'' completed such training in
order to be job ready. Further, in connection with making this
correction in Sec. 617.11(a)(3)(i)(D), the language is modified to make
it clearer that an individual must actually be enrolled in or
participating in approved training in each week that TRA is claimed,
and that, while the break in training provisions of Sec. 617.15(d)
apply, the waiver of participation provisions of Sec. 617.19 shall not
be applicable under paragraph (a)(3).
34. Waiver appeals. The PDLI commented that Sec. 617.19(a)(2)
provides the minimum information that shall be contained on the waiver
of training participation. (Sec. 617.19(c)(3) provides for equivalent
information on the waiver revocation form.) These minimum information
items do not include an appeal date, or instructions for appeal.
However, Sec. 617.19(c)(4) appears to state that waivers and waiver
revocations shall be appealable. The PDLI suggests that the issuance of
waivers and waiver revocations should not be appealable determinations;
rather, these documents are prerequisites to determinations of
entitlement to TRA payments, and these latter determinations should be
appealable. The PDLI recommends further evaluation of this regulation.
Department's response. The 1975 regulations required that all
determinations relating to TAA program benefits shall be subject to
appeal and review, as specifically required by section 239(d) of the
Trade Act of 1974. That requirement continues in effect and is
correctly implemented in the regulations in providing that Secs. 617.50
and 617.51 shall apply to all determinations regarding waivers, as well
as any determination pertaining to any other TAA program benefit.
Waivers have a direct relationship to basic TRA entitlement. The
Department does not believe it would be appropriate to provide that an
individual should be denied the right to appeal a determination issued
by the State agency that training is not feasible or appropriate, or
that written notice of such determinations (granting, denying, or
revoking a waiver) should not include notice of appeal rights.
Consideration of the comments, however, reveals that there appears
to be some lingering uncertainty about the scope of the waiver
provision and the appeal rights of individual workers, and the
reexamination of the language proposed for Sec. 617.19 underscores the
need for some clarification of the regulatory language so as to express
the scope of the waiver provision more accurately and to declare
unmistakably the appeal and review rights of individuals in regard to
all determinations relating to waivers.
Paragraph (a)(1) of Sec. 617.19 thus is revised to state more
accurately the scope of the waiver provision, and to state explicitly
that a waiver pertains solely to basic TRA and may never be made
applicable to additional TRA. Paragraph (a)(2) is revised so as to be
more explicit about the application of the waiver provision, and to
provide that waiver determinations shall include all of the information
required by Sec. 617.50(e), which thereby requires inclusion of notice
of appeal rights in any such determination. This is in addition to
other information specified in paragraph (a)(2) that is required to be
furnished in the determination.
Other important changes in paragraph (a) of Sec. 617.19 are the
addition of clauses (3) and (4). Clause (3) is added to make certain
that denial of a waiver also is a determination to which all of the
requirements for determinations apply. Clause (4) is a restatement of
the provision proposed in paragraph (c)(4), and is moved in paragraph
(a) and revised to make more explicit the application of Secs. 617.50
and 617.51 to all determinations under paragraph (a) and to provide
expressly that this means and includes notice of appeal rights.
Conforming changes are made in other paragraphs of Sec. 617.19,
most significantly including a combining of the provisions of clauses
(3) and (4) of paragraph (c) into a revised clause (3), and deleting
the proposed clause (4). This revision makes clear that waiver
revocations are determinations to which Secs. 617.50 and 617.51 apply,
and that such determinations shall include all of the information
required for determinations under paragraph (a), including notice of
appeal rights.
35. Waiver revocation. The NYDL commented on Sec. 617.19(a)(2)(iv),
which mandates inclusion of the statement that the ``waiver will be
revoked at any time suitable training becomes available.'' This
statement would be appropriate only for waivers issued because suitable
training is not currently available; however, there are numerous
situations in which training may become available and yet a revocation
of waiver would not be appropriate. Accordingly, the NYDL recommended
the following statement as more appropriate: ``This waiver is subject
to review at 30 day intervals.'' This would afford the states the
needed latitude to assess the continuing validity of a waiver should
training become available but remain inappropriate.
Department's response. The Department agrees that the qualifying
wording is too narrowly focused, but does not agree on affording States
the broad latitude suggested by the NYDL. Accordingly,
Sec. 617.19(a)(2)(iv) is revised by deleting the term ``suitable
training'' and inserting in place thereof ``appropriate and feasible
training'' as provided in amended section 231(c)(2) of the Act.
36. Waiver reasons. The UAW commented that Sec. 617.19(b)(2)(i) as
drafted should be of substantial assistance to State agencies in
administering this provision. The UAW suggested that, for clarity, the
Department repeat the criteria that ``the worker is so situated as to
be able to take full advantage of the training'' at this point in the
rule.
Department's response. The Department believes that
Sec. 617.19(b)(2) adequately covers the reasons for issuing a waiver
when training is not feasible or appropriate. The UAW's point is
covered under the criteria for approval of training. Therefore, no
change is made in the regulations.
37. Training limitation. The Nebraska Department of Labor (NDL)
commented that Sec. 617.19(b)(2)(ii)(B) indicates that a course of
training is not appropriate if the duration of training exceeds the
individual's maximum entitlement to TRA payments. This would seem to
limit appropriate training to a duration of 52 weeks when initial UI
eligibility is 26 weeks. If this is the actual effect, it ignores the
fact that an individual may enter training during the initial UI
benefit period. When the individual enters training during the UI
eligibility period, a training program of up to 78 weeks might be
completed before exhausting TRA benefits. It seems further to preclude
the possibility for an individual who enters training during the first
13 weeks of UI to be eligible for needs based payments under EDWAA
during the portion of a training period which might extend beyond the
end of TRA eligibility. If this section in fact has these effects, they
may be unintended, and should perhaps be reconsidered.
Department's response. The TAA provisions of the Trade Act
authorize the State to approve training for a worker for up to 104
weeks; however, the maximum combined duration of UI and TRA payments
generally is 78 weeks. If a training program longer than the worker's
remaining eligibility for UI and TRA payments is being considered, the
State administering agency should ensure that the individual has the
financial resources to complete the training program after TRA payments
expire. If such an assurance cannot be made, a training program of
shorter duration should be considered for approval. The Department
therefore agrees that the regulation is too strictly worded, and
Sec. 617.19(b)(2)(ii)(B) is clarified in these final regulations. (See
discussion in item J. above, on Revision of Sec. 617.22(a)(5).)
38. Reasons for waiver. The VDET, commenting on
Sec. 617.19(b)(2)(ii)(C), concerning reasons for issuing a waiver,
asked why, after 26 weeks of UI, a person with skills for suitable
employment has not become reemployed already. Simply allowing a waiver
to be granted at this point in a person's unemployment seems to be at
odds with the intent of all of the recently enacted Federal retraining
legislation, and may actually exacerbate a situation where the worker
has not been receiving the proper services which would result in new
employment. The VDET recognized that there may be some circumstances
where it would be unfair to the worker not to receive a waiver based on
this condition. However, the VDET recommended making this condition an
extreme one, by not specifically identifying it as a reason to grant a
waiver.
Department's response. The Department agrees that waivers should
only be issued on a limited basis. As reflected in the VDET comment,
however, there may be situations where such waivers are properly
warranted. For example, when a firm agrees to employ a worker in the
foreseeable future, no purpose would be served by having the worker
enter training to learn other occupational skills. Therefore, the
Department sees no need to make any change in the regulations.
39. Every 30 days. The PDLI recommended that the parenthetical
phrase ``(i.e., every 30 days or less)'' in Sec. 617.19(c)(1) be
deleted as an unnecessary guideline with which compliance could be
impossible. The OBES presented similar comments that the final rule
should reflect administrative and logistical realities by specifying
such period for waiver review to be 60 days. Basic TRA payments should
be made once a waiver has been issued until such time as the waiver is
revoked, and not require documentation of such waiver reviews on an
ongoing or routine basis. The CEDD also recommended that the frequency
of waiver reviews be changed to 60 days. The MESC recommended that
waivers be reviewed every 90 days, while the ODHR recommended that the
State have more flexibility in the frequency for reviewing waivers. The
NJDL recommended that States be given authority to establish procedures
for reviewing appropriate waivers.
Department's response. A major objective of the 1988 Amendments is
to enroll adversely affected workers in training programs to help
facilitate their return to employment as quickly as possible. The
Department believes that, when the training requirement is waived for
an individual, proper program administration necessitates regular
reviews of waivers issued by the State agencies. The frequency of such
reviews at 30-day intervals is reasonable to carry out the provision
requiring adversely affected workers to be enrolled in training for
purposes of receiving TRA, particularly in light of the fact that TRA
is a weekly benefit program and the 30-day rule only requires review
approximately every four weeks. Section 231(c)(2)(B) provides that
``If, after submitting to a worker a written statement * * * a State or
State agency finds that it is feasible or appropriate to approve a
training program for such worker pursuant to the requirements of
section 236(a), the State or State agency shall submit to such worker *
* * a written statement that revokes the certification * * *.'' To
review waivers less frequently than every 30 days would not give the
sense of urgency reflected in the law on placing adversely affected
workers into training programs as soon as possible.
However, the comments highlight an omission in the regulations, in
that, in individual cases, when circumstances change, the need to
revoke a waiver may arise earlier than the next periodic review, and,
accordingly, necessitate action to revoke the certification before the
next review date. Therefore, Sec. 617.19(c)(2) is amended to require
revocation in individual cases at any time a change in circumstances
occurs.
40. Waiver determinations appealable. The MESC, commenting on
Sec. 617.19(c)(4), stated that waiver actions should not be appealable
determinations. If training is being denied, the denial and any appeal
should come on the training determination, not on the waiver.
Otherwise, duplicative appeals and confusion of issues will result. The
waiver form should contain an explanatory statement, such as: ``If you
disagree with this waiver action, you have the right to appeal any
denial of training or trade readjustment allowances (TRA) that results
from this action.''
Department's response. See discussion under item 34, above. A
determination on the feasibility and appropriateness of training, and
the reason(s) therefor, constitutes the critical determination on
whether a worker is subject to the EB work test regarding claims for
basic TRA. Equally important is the relevance of a waiver in some
cases. For example, a waiver is not appropriate concerning entitlement
to additional TRA, because additional TRA is payable only while the
worker is actually participating in training, and, in that case, the EB
work test is not applicable. Similarly, a waiver is not appropriate
during breaks in training. It is not needed if the break is not more
than 14 days. A waiver is not appropriate if the break is more than 14
days, since payment of basic or additional TRA in this case would be
inconsistent with sections 231(a)(5), 233(a)(3), and 233(f). It is
clear, therefore, that the determination resulting in the issuance,
denial or revocation of a waiver presents justiciable issues, and,
accordingly, determinations relating to waivers must be subject to the
right of appeal and review. To deny the right of appeal and review on
justiciable issues cannot be justified. Paragraph (c)(4) of
Sec. 617.19, therefore, has a sound basis in law, and is unchanged in
the final rule.
41. Recording waivers. The NYDL, commenting on Sec. 617.19(d)(1),
stated that recordkeeping and reporting of waivers issued and revoked
by reason constitutes a very real problem in that the agency relies on
time consuming manual systems. Any requirement in this regard must be
accompanied by appropriate levels of administrative funding,
specifically for this purpose, in order to yield reliable data.
Department's response. The regulations at Sec. 617.19(d) (1) track
the language of section 231(c)(3) of the Trade Act, which provides that
the Secretary shall submit an annual report to Congress on the number
of waivers issued and the number revoked. As explained in item 14
above, matters concerning the administrative funding for all TAA
activities are addressed in program letters and other issuances of the
Department and will be addressed further in Sec. 617.60 when it is
published. No special funding category is contemplated for this item.
Therefore, no change is made in the final regulations.
42. Reemployment plans. The NYDL commented that to require monthly
reviews of individual reemployment plans, as implied in
Sec. 617.20(b)(13), would not serve the worker in a constructive way,
and to interview every adversely affected worker needlessly would place
an unreasonable burden on the agency when there is a minimum amount of
funds available for staff costs. The PDLI and the NJDL provided similar
comments.
Department's response. The Department concurs in the comments. It
is not the Department's intent to have State agency staffs review
individual reemployment plans every 30 days, as is required for waivers
of the training requirement. Therefore, the rule is modified to provide
for periodic review and updating of reemployment plans, as may be
appropriate, in individual cases. The review of waivers, which is
required no less frequently than every 30 days under Sec. 617.19(c)(1),
is addressed in a new clause (14) in Sec. 617.20(b).
43. Work in the ``foreseeable future''. The UAW, commenting on
Sec. 617.22(a)(1)(ii), stated the proposed rule provides that training
can be denied if there is a reasonable prospect of suitable work within
the ``foreseeable future.'' The statute does not include this element,
providing instead that there must be ``no suitable employment
available'' to the adversely affected worker. The UAW argues that under
the proposed rule, a worker could be denied TRA because training was
not approved due to foreseeable work, even though the worker had no job
to enter. The UCSP provided similar comments and recommended that the
last part of the rule be eliminated.
Department's response. This provision was incorporated in the
regulations to preclude the approval of training when the worker is
clearly scheduled to be employed or recalled. For that worker, suitable
employment is ``available'' if the employment may occur in the
foreseeable future. The purpose of including the provision in the rule
is to give meaning to the first criterion of section 236(a)(1) and help
preserve limited training funds for use by workers who need such
assistance to return to employment. Labor-management agreements
frequently provide for worker recall on a seniority basis. When recalls
are scheduled in the foreseeable future, workers clearly do not need
training in order to return to employment. In such situations, a waiver
of the training requirement is appropriate and shall be issued by the
State administering agency. Therefore, no change is made in
Sec. 617.22(a)(1)(ii) of the regulations. However, as explained in item
H. above, guidance is added in Secs. 617.19 (b)(1)(i)(B) and
(b)(2)(ii)(A) for use by State agencies on the application of recall
that will occur in the ``reasonably foreseeable future.''
44. Suitable employment. The AFL-CIO, commenting on
Sec. 617.22(a)(1)(ii), pointed out that the term ``suitable
employment'' means work at no less than 80 percent of the worker's
average weekly wage in such adversely affected employment. Since job
benefits such as health insurance and pension entitlement must be
coupled with wages to determine the total compensation of a position,
this definition should be expanded to include ``and benefits valued at
not less than 80 percent of those provided in the worker's adversely
affected employment.''
Department's response. The regulation uses the definition in
section 236(e), and any change such as that suggested would require a
change in the law. Therefore, no change is made in the regulations.
45. Adversely affected wage. The MDLIR, commenting on
Sec. 617.22(a)(1)(ii), explained that suitable employment is defined in
the proposed rule as work of a substantially equal or higher skill
level than the worker's past adversely affected employment and wages
for such work at not less than 80 percent of the worker's average
weekly wage in such adversely affected employment. The MDLIR asks why,
since there does not appear to be a change in the law, the regulation
was changed from average weekly wage to average weekly wage in
adversely affected employment? In addition, the definition of average
weekly wage in adversely affected employment makes reference to partial
separation which, for separations on August 23, 1988 or later, will no
longer establish TRA eligibility.
Department's response. The Department agrees that the definition of
``average weekly wage in adversely affected employment'' is used
appropriately only in the definition of ``partial separation,'' and the
definition of ``suitable work'' in section 236(e) does not include the
reference to adversely affected employment. Therefore, to fully accord
with the statute, the phrase ``in such adversely affected employment''
is removed from Sec. 617.22(a)(1)(ii).
46. Training cost limit. The UAW, commenting on Sec. 617.22(b),
pointed out that the Conference Committee rejected a proposed $4000 per
worker limit on training costs, stating that ``it is inappropriate to
establish a ceiling on training and related costs for individual
workers since such costs may vary significantly from one region of the
country to another and from one worker dislocation to another.'' The
Department cannot give the States the authority to do indirectly what
the Congress decided it would not let the Department do directly. The
UAW recommended that this proposal should be dropped. The UCSP provided
similar comments. The MESC also commented that it is contradictory to
require States to establish a single maximum amount and then indicate
that States should take into consideration the type of occupational
training, duration of training, etc. The different types of training
and varying durations render a single maximum cost meaningless. By
applying Sec. 617.22(a)(6)(iv)(B), there will be sufficient cost
control. Section 617.22(a)(6)(iv)(B) requires comparison of training
similar in quality, content and results at different training
facilities, and approval of the lowest cost training. Also, the ODHR
recommended that more guidelines are needed in order to define the
``maximum amount allowable for the total costs of training.''
Specifically, ODHR is concerned with overcoming inequities in setting
an amount both for individuals in a rural area without training
facilities and for individuals in an urban area with training
facilities. The ODHR asked if it is the intent for the maximum amount
allowable, because the cost of subsistence or mileage is part of the
cost of training, to limit the kinds or duration of training for
individuals in rural areas.
Department's response. The Department agrees with the comments and
is amending this section by eliminating the requirement that States
establish, annually, a maximum amount allowable for the total cost of
training for each worker. While the Congress did not establish a
national ceiling for the costs of training for individual workers, the
Conferees did state in the Conference Report that they expected the
Secretary of Labor to set forth guidelines for State administering
agencies to provide approved training at the lowest reasonable cost for
the particular type of training in that region consistent with the
objective of assisting import impacted workers to obtain suitable
skills to return to work as quickly as possible. The 1988 Amendments
clearly provide that State administering agencies shall approve
training for individual workers at the lowest reasonable cost which
will lead to employment and will result in training opportunities for
the largest number of adversely affected workers. This means that State
administering agencies should avoid approving training for occupations
that require an extraordinarily high skill level relative to the
worker's current skills level and for which total costs of training,
including transportation and subsistence, are excessively high. While
the final regulations eliminate the requirement for States to establish
a maximum amount allowable for the total costs of training, they
continue to provide that States approve training at the lowest
reasonable cost for the particular type of training in that region that
will lead to employment and will enable the worker to obtain employment
within a reasonable period of time.
47. Child care. The WESD, commenting on Sec. 617.22, stated it
believed that child care is equally important as transportation and
subsistence to include as a cost of training. The WESD recommended that
child care be included under the definition for supportive services, as
is transportation and subsistence. The WESD states that the 1981
Amendments do not permit self-financed training and require TAA or
other Federal, State, or private sources to ``pay the full costs of the
training.'' Washington contends that the lack of child care would, in
fact, require self payment of training costs and it should be included
as part of the reasonable costs of training.
Department's response. Section 236(b) authorizes transportation and
subsistence expenses applicable to training. Child care is a supportive
service to be obtained for individuals under section 235 of the Act
(and Sec. 617.21(e)), and is not a training cost in the TAA program.
Funds for the administration of sections 225, 231 through 235, 243 and
244 of the Trade Act are appropriated in the State Unemployment
Insurance and Employment Service Operations (SUIESO) account. The
SUIESO account includes funds for the administration of section 235
activities but not for the direct payment of supportive services for
certified individuals. Since child care is a supportive service
authorized by section 235 to be provided if available under ``any other
Federal law'', no TAA funds are appropriated for such services.
The Department's position is that the State administering agency,
in carrying out its responsibilities under section 235 and
Sec. 617.21(e), should make every reasonable effort to secure for
adversely affected workers covered by a certification any supportive
services, including child care, which are obtainable under any other
Federal law, to help individuals in training and to obtain employment.
No change is made in the regulations, but Sec. 617.21 is amended to
make clear that supportive services are to be provided under other
Federal law and may include child care.
48. Other source funds. The MESC, commenting on Sec. 617.24(e),
stated that this rule allows approval of training for which all, or any
portion, of the cost of training is paid ``from any other source''. The
MESC points out that the rule does not sufficiently define acceptable
funding sources. Some limits are necessary. Acceptable funding sources
should be limited to recognized employment and training programs,
including employer training funds. Such funding sources as friends,
relatives, and fraternal organizations should not be acceptable, but
Sec. 617.24(e) does not preclude them.
Department's response. The Department concurs in this comment and
has modified Secs. 617.24(e)(2) and 617.25(b)(1) to clarify that other
funding sources may not include sources personal to the individual,
such as self, relatives, or friends. This is consistent with the
Department's prior position on this matter.
49. Equal monthly installments. The MESC questioned the application
of the requirement in Sec. 617.25(a) that employers be paid in equal
monthly installments for on-the-job training (OJT) programs. The MESC
stated that problems are associated with trainees entering OJT programs
in the middle of the month, trainees receiving raises in wages during
the month, and trainees working different hours. The MESC explained
that it has attempted to satisfy the intent of the equal monthly
payment requirement by having the employer bill for the trainee's hours
in training during the month, which results in approximately equal
monthly payments. The Governor of Idaho and the WESD presented similar
comments on Sec. 617.25. The Governor stated that the proposed rule
will require Idaho and possibly many other States to incur additional
administrative costs to pay for tracking OJT reimbursements. The WESD
suggested that reimbursement to employers for actual hours worked by
the trainee, on a monthly basis, would eliminate overpayments.
Department's response. The Department recognizes that the statutory
provision requiring payments for OJT to be made to employers in equal
monthly installments is presenting problems in negotiating and
reimbursing employers for OJT contracts. In negotiating OJT contracts
with employers, reasonable costs should be based on the achievement of
a prescribed level of job skills, rather than being based solely on the
hourly wages of the worker. The hourly wages should serve only as a
guide for establishing OJT contract costs. A raise in the worker's
wages implies increased proficiency of the worker and higher
productivity, and may not form the basis for increasing training costs.
Once the cost of OJT for a worker is established, payments can be made
in equal monthly installments, with any required adjustment made in the
final payment to the employer.
What appears to be troubling to States in administering this
provision is thinking of equal monthly installments in terms of equal
``dollar'' amounts. Instead, it appears most reasonable to base the
``equal monthly installments'' on the number of hours of paid work
during the month, multiplied by the agreed upon rate of payment.
Although this would not assure the same dollar figure for each month,
it is nonetheless ``equal'' in the sense that the payment for each
month is computed at the same rate. This method would appear to ad-
dress the concerns expressed in the comments received, and may be
accomplished under the present reading of Sec. 617.25(a). For these
reasons, no change is made in the regulations.
50. Pell and similar grants. The ODHR, commenting on
Sec. 617.25(b)(4)(i)(A)(2), stated the rule is clear that when the
direct payment of the costs of training has been made under any other
Federal law, or the costs are reimbursable under any other Federal law
and a portion of the direct costs has already been paid under such
other Federal law, payment of such training costs may not be made from
TAA funds. The ODHR points out, however, that grants, such as Pell
Grants, are often paid directly to the institution to be applied toward
tuition. The ODHR feels this contingency should be addressed here and
that these funds should be allowed in these cases in determining costs
payable from TAA funds for training.
Department's response. The Department agrees that complications are
presented in considering appropriate TAA funding in the case of Pell
Grants and similar Federal educational assistance. Section
617.25(b)(4)(ii)(C) provides, in implementing section 236(a)(4)(C),
that such federal educational assistance paid to the individual may not
be taken into account in determining payment of the costs of training
from TAA or other funds, but such payments to the individual shall be
deducted from TRA under Sec. 617.13(c)(2). Conversely, when such
Federal educational assistance is paid to the training institution, to
the extent it is used for training costs otherwise payable from TAA
funds, it must be taken into account in determining the training costs
payable from TAA funds, either alone or in combination with other
funds. To clarify this matter, the regulations at
Sec. 617.25(b)(4)(ii)(C) are modified; combination funding is otherwise
addressed in more detail in the completely revised Sec. 617.25.
51. OJT approval. The AFL-CIO recommended that additional standards
be added in Sec. 617.25(a) concerning the approval of on-the-job
training agreements. Further, the AFL-CIO recommended that since
employers available to provide OJT under TAA have offered such training
under JTPA, those who failed to meet JTPA requirements should be barred
from receiving TAA funds for such training. Such a requirement is
clearly in keeping with the emphasis on coordination of TAA program
activities with the JTPA Title III program.
Department's response. The requirements in Sec. 617.25(a) are based
on existing statutory language, and provide adequate protection to
workers from adverse effects under OJT training contracts. The
Department agrees that contracts under the TAA program for OJT should
not be entered into with employers who failed to meet JTPA
requirements. While Sec. 617.25 (a)(9) and (a)(10) are intended to
avoid such situations, the final rule is clarified to help ensure that
employers who violated a JTPA training contract will be denied TAA
training contracts. The words ``or under any other Federal law'' is
added after ``this Subpart C'' in paragraph (a)(9) of Sec. 6
FR Doc. 94-16 Trade Adjustment Assistance for Workers; Amendment of Regulations
17.25, with
another addition at the end of paragraph (a)(9) to make this point
clear.
52. Information on waivers. The UCSP, commenting on Sec. 617.67(c),
argues that workers should be furnished information on applying for a
waiver of the training requirement in order to receive TRA payments.
Department's response. The Department does not believe a specific
provision is needed for the reasons explained in the response to item
12, above.
53. Homework. The Amalgamated Clothing and Textile Workers Union
(ACTWU) commented that a major problem has recently arisen which
affects workers, when the Department lifted the restrictions
prohibiting homework in five of the six industries, and announced it
will shortly lift the re-straints on homework in the women's and
children's apparel industry. While this matter is not finally resolved
due to court challenges, the TAA regulations have to anticipate the
situation of potentially extensive homework in these industries.
Department's response. This issue is beyond the scope of the 1988
Amendments to the TAA program, and the final rule in this document.
Other changes. In addition to the changes discussed above in
responses to comments received, other changes are made in the final
rule in this document to correct printing errors, and to make technical
and conforming changes that either do not affect the substance of the
regulations, or, in the case of other provisions (including the
transition provisions of Sec. 617.67), are necessary to conform to
other changes in the final regulations. Further, references to
compliance with ``the Act and this Part'' are changed to eliminate
references to the Act so that it is clear that the regulations are
controlling and express the Department's interpretations of the Act.
Drafting Information
This document was prepared under the direction and control of the
Director, Office of Trade Adjustment Assistance, Employment and
Training Administration, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210: telephone: (202) 219-5555 (this is
not a toll free number).
Classification Executive Order 12866
The final rule in this document is not classified as a ``major
rule'' under Executive Order 12866 on Federal Regulations, because it
is not likely to result in (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1980, 44 U.S.C. Ch. 35, approval of the recordkeeping requirement
contained at Secs. 617.19(d) and 617.57 has been obtained from the
Office of Management and Budget (control number 12050016, for reporting
forms ETA 563 and ETA 9027). OMB control number 12050222 applies to
forms used by States to convey reports to the Department as required in
Secs. 617.52(c) and 617.54.
Regulatory Flexibility Act
No regulatory flexibility analysis is required where the rule
``will not . . . have a significant economic impact on a substantial
number of small entities.'' 5 U.S.C. 605(b). The definition of the term
``small entity'' under 5 U.S.C. 601 (6) does not include States. Since
these regulations involve an entitlement program administered by the
States, and are directed to the States, no regulatory flexibility
analysis is required. The Secretary has certified to the Chief Counsel
for Advocacy of the Small Business Administration to this effect.
Accordingly, no regulatory flexibility analysis is required.
Catalog of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at No. 17.245, ``Trade Adjustment Assistance--Workers.''
List of Subjects in 20 CFR Part 617
Job search assistance, labor, reemployment services, relocation
assistance, trade readjustment allowances, unemployment compensation,
vocational education.
Words of Issuance
For the reasons set out in the preamble, part 617 of title 20, Code
of Federal Regulations, is amended as set forth below.
Signed at Washington, DC on December 21, 1993.
Doug Ross,
Assistant Secretary of Labor.
PART 617--TRADE ADJUSTMENT ASSISTANCE FOR WORKERS
1. The authority for part 617 continues to read as follows:
Authority: 19 U.S.C. 2320; Secretary's Order No. 3-81, 46 FR
31117.
2. Paragraphs (j), (m), (t), (aa), (ff), and (oo)(4) of Sec. 617.3
are revised to read as follows:
Sec. 617.3 Definitions.
* * * * *
(j)(1) Certification means a certification of eligibility to apply
for TAA issued under section 223 of the Act with respect to a specified
group of workers of a firm or appropriate subdivision of a firm.
(2) Certification period means the period of time during which
total and partial separations from adversely affected employment within
a firm or appropriate subdivision of a firm are covered by the
certification.
* * * * *
(m) Eligibility period means the period of consecutive calendar
weeks during which basic or additional TRA is payable to an otherwise
eligible individual, and for an individual such eligibility period is--
(1) Basic TRA. (i) With respect to a first qualifying separation
(as defined in paragraph (t)(3)(i)(A) of this section) that occurs on a
day that precedes August 23, 1988, the 104-week period beginning with
the first week following the week with respect to which the individual
first exhausts all rights to regular compensation (as defined in
paragraph (oo)(1) of this section) in such individual's first benefit
period (as described in Sec. 617.11(a)(1)(iv)) or
Sec. 617.11(a)(2)(iv), whichever is applicable), and
(ii) With respect to a total qualifying separation (as defined in
paragraph (t)(3)(i)(B) of this section) that occurs on or after August
23, 1988--or before August 23, 1988, if the individual also had a prior
first qualifying separation under the same certification--the 104-week
period beginning with the first week following the week in which such
total qualifying separation occurred;
Provided, that, an individual who has a second or subsequent total
qualifying separation within the certification period of the same
certification shall be determined to have a new 104-week eligibility
period based upon the most recent such total qualifying separation; but
the rule of this proviso shall not be applicable in the case of an
individual who had a total qualifying separation before August 23,
1988, and also had a prior first qualifying separation (as referred to
in paragraph (m)(1)(i) of this section) within the certification period
of the same certification, if the individual's 104-week eligibility
period based upon the total qualifying separation (as referred to in
paragraph (m)(1)(i) of this section) would end on a date earlier than
the ending date of the individual's eligibility period which is based
upon the prior first qualifying separation; and
(2) Additional TRA. With respect to additional weeks of TRA, and
any individual determined under this part 617 to be entitled to
additional TRA, the consecutive calendar weeks that occur in the 26-
week period that--
(i) Immediately follows the last week of entitlement to basic TRA
otherwise payable to the individual, or
(ii) Begins with the first week of training approved under this
part 617, if such training begins after the last week described in
paragraph (m)(2)(i) of this section, or
(iii) Begins with the first week in which such training is approved
under this part 617, if such training is so approved after the training
has commenced; but approval of training under this part 617 after the
training has commenced shall not imply or justify approval of a payment
of basic or additional TRA with respect to any week which ended before
the week in which such training was approved, nor approval of payment
of any costs of training or any costs or expenses associated with such
training (such as travel or subsistence) which were incurred prior to
the date of the approval of such training under this part 617.
* * * * *
(t)(1) First separation means, for an individual to qualify as an
adversely affected worker for the purposes of TAA program benefits
(without regard to whether the individual also qualifies for TRA), the
individual's first total or partial separation within the certification
period of a certification, irrespective of whether such first
separation also is a qualifying separation as defined in paragraph
(t)(2) of this section;
(2) Qualifying separation means, for an individual to qualify as an
adversely affected worker and for basic TRA--
(i) Prior to August 23, 1988, the individual's first (total or
partial) separation within the certification per-iod of a
certification, with respect to which the individual meets all of the
requirements of Sec. 617.11(a)(1) (i) through (iv), and which qualifies
as a first qualifying separation as defined in paragraph (t)(3)(i)(A)
of this section, and
(ii) At any time before, on, or after August 23, 1988, any total
separation of the individual within the certification period of a
certification (other than a first qualifying separation as defined in
paragraph (t)(3)(i)(A) of this section), with respect to which the
individual meets all of the requirements in Sec. 617.11(a)(2) (i)
through (iv), and which qualifies as a total qualifying separation as
defined in paragraph (B) of (t)(3)(i)(B) of this section;
(3) ``First qualifying separation'' means--
(i) For the purposes of determining an individual's eligibility
period for basic TRA--
(A) with respect to a separation that occurs before August 23,
1988, the individual's first (total or partial) separation within the
certification period of a certification, with respect to which the
individual meets all of the requirements of Sec. 617.11(a)(1) (i)
through (iv), and
(B) with respect to a separation that occurs before, on, or after
August 23, 1988 (other than a first qualifying separation as defined in
paragraph (t)(3)(i)(A) of this section), the first total separation of
the individual within the certification period of a certification, with
respect to which the individual meets all of the requirements in
Sec. 617.11(a)(2) (i) through (iv); and
(ii) For the purposes of determining the weekly and maximum amounts
of basic TRA payable to an individual, with respect to a separation
that occurs before, on, or after August 23, 1988, the individual's
first (total or partial) separation within the certification period of
a certification if, with respect to such separation, the individual
meets the requirements of Sec. 617.11(a)(1) (i), (ii) and (iv) or
Sec. 617.11(a)(2) (i), (ii) and (iv).
* * * * *
(aa) Liable State and Agent State are defined as follows:
(1) Liable State means, with respect to any individual, the State
whose State law is the applicable State law as determined under
Sec. 617.16 for all purposes of this Part 617.
(2) Agent State means, with respect to any individual, any State
other than the State which is the liable State for such individual.
* * * * *
(ff)(1) Secretary means the Secretary of Labor of the United States
of America.
(2) Department of Labor or Department means the United States
Department of Labor or the Employment and Training Administration
within the Department.
* * * * *
(oo) * * *
(4) Federal supplemental compensation means the supplemental
unemployment compensation payable to individuals who have exhausted
their rights to regular and extended compensation, and which is payable
under the Federal Supplemental Compensation Act of 1982 or any similar
Federal law enacted before or after the 1982 Act.
* * * * *
4. Sections 617.3(h)(1) and 617.3(kk) (1) and (2) are revised to
read as follows.
Sec. 617.3 Definitions.
* * * * *
(h) Benefit period * * *
(1) The benefit year and any ensuing period, as determined under
the applicable State law, during which the individual is eligible for
regular compensation, additional compensation, extended compensation,
or federal supplemental compensation, as these terms are defined by
paragraph (oo) of this section; or
* * * * *
(kk) Suitable work * * *
(1) Suitable work as defined in the applicable State law for
claimants for regular compensation (as defined in paragraph (oo)(1) of
this section); or
(2) Suitable work as defined in applicable State law provisions
consistent with section 202(a)(3) of the Federal-State Extended
Unemployment Compensation Act of 1970;
whichever is applicable, but does not in any case include self-
employment or employment as an independent contractor.
* * * * *
5. Section 617.4 is amended by revising the heading of paragraph
(c) and adding new paragraphs (d) and (e) to read as follows:
Sec. 617.4 Benefit information to workers.
* * * * *
(c) Providing information to State vocational education agencies
and others. * * *
(d) Written and newspaper notices. (1) Written notices to workers.
(i) Upon receipt of a certification issued by the Department of Labor,
the State agency shall provide a written notice through the mail of the
benefits available under subparts B through E of this part 617 to each
worker covered by a certification issued under section 223 of the Act
when the worker is partially or totally separated or as soon as
possible after the certification is issued if such workers are already
partially or totally separated from adversely affected employment.
(ii) The State agency will satisfy this requirement by obtaining
from the firm, or other reliable source, the names and addresses of all
workers who were partially or totally separated from adversely affected
employment before the certification was received by the agency, and
workers who are thereafter partially or totally separated within the
certification period. The State agency shall mail a written notice to
each such worker of the benefits available under the TAA Program. The
notice must include the following information:
(A) Worker group(s) covered by the certification, and the
article(s) produced as specified in the copy of the certification
furnished to the State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the
certification document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how workers apply for TAA benefits and services.
(F) Whom to call to get additional information on the
certification.
(G) When and where the workers should come to apply for benefits
and services.
(2) Newspaper notices. (i) Upon receipt of a copy of a
certification issued by the Department affecting workers in a State,
the State agency shall publish a notice of such certification in a
newspaper of general circulation in areas in which such workers reside.
Such a newspaper notice shall not be required to be published, however,
in the case of a certification with respect to which the State agency
can substantiate, and enters in its records evidence substantiating,
that all workers covered by the certification have received written
notice required by paragraph (d)(1) of this section.
(ii) A published notice must include the following kinds of
information:
(A) Worker group(s) covered by the certification, and the
article(s) produced as specified in the copy of the certification
furnished to the State agency.
(B) Name and the address or location of workers' firm.
(C) Impact, certification, and expiration dates in the
certification document.
(D) Benefits and reemployment services available to eligible
workers.
(E) Explanation of how and where workers should apply for TAA
benefits and services.
(e) Advice and assistance to workers. In addition to the
information and assistance to workers as required under paragraphs (a)
and (b) of this section, State agencies shall--
(1) Advise each worker who applies for unemployment insurance under
the State law of the benefits available under subparts B through E of
this part and the procedures and deadlines for applying for such
benefits.
(2) Facilitate the early filing of petitions under section 221 of
the Act and Sec. 617.4(b) for any workers that the agency considers are
likely to be eligible for benefits. State agencies shall utilize
information received by the State's dislocated worker unit to
facilitate the early filing of petitions under section 221 of the Act
by workers potentially adversely affected by imports.
(3) Advise each adversely affected worker to apply for training
under Sec. 617.22(a) before, or at the same time as, the worker applies
for trade readjustment allowances under subpart B of this part.
(4) Interview each adversely affected worker, as soon as
practicable, regarding suitable training opportunities available to the
worker under Sec. 617.22(a) and review such opportunities with the
worker.
6. Section 617.10 is amended by adding a new paragraph (d) to read
as follows:
Sec. 617.10 Applications for TRA.
* * * * *
(d) Advising workers to apply for training. State agencies shall
advise each worker of the qualifying requirements for entitlement to
TRA and other TAA benefits at the time the worker files an initial
claim for State UI, and shall advise each adversely affected worker to
apply for training under subpart C of this part before, or at the same
time, the worker applies for TRA, as required by Sec. 617.4(e)(1) and
(3).
7. Section 617.11 is revised to read as follows:
Sec. 617.11 Qualifying requirements for TRA.
(a) Basic qualifying requirements for entitlement--(1) Prior to
November 21, 1988. To qualify for TRA for any week of unemployment that
begins prior to November 21, 1988, an individual must meet each of the
following requirements of paragraphs (a)(1) (i) through (vii) of this
section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(B) Before the expiration of the two-year period beginning on the
date of such certification, or, if earlier, before the termination
date, if any, of such certification.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, the individual must have had at least 26
weeks of employment at wages of $30 or more a week in adversely
affected employment with a single firm or subdivision of a firm.
Evidence that an individual meets this requirement shall be obtained as
provided in Sec. 617.12. Employment and wages covered under more than
one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(1)(iii) of this section,
any week in which such individual--
(i) is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) not more than 7 weeks in the case of weeks described in
paragraph (a)(1)(iii)(B)(1)(i) or paragraph (a)(1)(iii)(B)(1)(iii) of
this section, or both, and (ii) not more than 26 weeks described in
paragraph (a)(1)(iii)(B)(1)(ii) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(1)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(1)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled to if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in
Sec. 617.3(kk), and actually apply for any suitable work the individual
is referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
Part 615 of this Chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning
prior to the filing of an initial claim for TRA, nor for any week which
begins before the individual is notified that the individual is covered
by a certification issued under the Act and is fully informed of the
Extended Benefit work test requirements of paragraph (a)(1)(vi) of this
section and Sec. 617.17. Prior to such notification and advice, the
individual shall not be subject to the Extended Benefit work test
requirements, nor to any State timely filing requirement, but shall be
required to be unemployed and able to work and available for work with
respect to any such week except as provided for workers in approved
training in Sec. 617.17(b)(1).
(vii) Job search program participation. (A) The individual is
enrolled in, participating in, or has successfully completed a job
search program which meets the requirements of Sec. 617.49(a); or the
State agency has determined that no acceptable job search program is
reasonably available under the criteria set forth in Sec. 617.49(c).
(B) The job search program requirement shall not apply to an
individual with respect to claims for TRA for weeks of unemployment
beginning prior to the filing of an initial claim for TRA, nor for any
week which begins before the individual is notified that the individual
is covered by a certification issued under the Act and is fully
informed of the job search program requirement of paragraph (a)(1)(vii)
of this section and Sec. 617.49.
(C) The job search program requirement shall not apply to an
individual, as a qualifying requirement for TRA, with respect to any
week ending after November 20, 1988, but cooperating State agencies are
encouraged to continue to utilize job search programs after November
20, 1988, as an effective tool to assist adversely affected workers in
finding suitable employment, particularly unemployed workers who have
completed training or for whom the training requirement has been waived
under Sec. 617.19.
(2) On and after November 21, 1988. To qualify for TRA for any week
of unemployment that begins on or after November 21, 1988, an
individual must meet each of the following requirements of paragraphs
(a)(2) (i) through (vii) of this section:
(i) Certification. The individual must be an adversely affected
worker covered under a certification.
(ii) Separation. The individual's first qualifying separation (as
defined in paragraph (t)(3)(i) of Sec. 617.3) before application for
TRA must occur:
(A) On or after the impact date of such certification; and
(B) Before the expiration of the two-year period beginning on the
date of such certification, or, if earlier, before the termination
date, if any, of such certification.
(iii) Wages and employment. (A) In the 52-week period (i.e., 52
consecutive calendar weeks) ending with the week of the individual's
first qualifying separation, or any subsequent total qualifying
separation under the same certification, the individual must have had
at least 26 weeks of employment at wages of $30 or more a week in
adversely affected employment with a single firm or subdivision of a
firm. Evidence that an individual meets this requirement shall be
obtained as provided in Sec. 617.12. Employment and wages covered under
more than one certification may not be combined to qualify for TRA.
(B)(1) For the purposes of paragraph (a)(2)(iii) of this section,
any week in which such individual--
(i) Is on employer-authorized leave from such adversely affected
employment for purposes of vacation, sickness, injury, maternity, or
inactive duty or active duty military service for training, or
(ii) Does not work in such adversely affected employment because of
a disability compensable under a workers' compensation law or plan of a
State or the United States, or
(iii) Had adversely affected employment interrupted to serve as a
full-time representative of a labor organization in such firm or
subdivision, or
(iv) Is on call-up for the purpose of active duty in a reserve
status in the Armed Forces of the United States (if such week began
after August 1, 1990), provided such active duty is ``Federal service''
as defined in part 614 of this chapter,
shall be treated as a week of employment at wages of $30 or more;
(2) Provided, that--
(i) Not more than 7 weeks in the case of weeks described in
paragraph (a)(2)(iii)(B)(1) (i) or (iii) of this section, or both, and
(ii) Not more than 26 weeks described in paragraph
(a)(2)(iii)(B)(1) (ii) or (iv) of this section,
may be treated as weeks of employment for purposes of paragraph
(a)(2)(iii) of this section.
(C) Wages and employment creditable under paragraph (a)(2)(iii) of
this section shall not include employment or wages earned or paid for
employment which is contrary to or prohibited by any Federal law.
(iv) Entitlement to UI. The individual must have been entitled to
(or would have been entitled to if the individual had applied therefor)
UI for a week within the benefit period--
(A) in which the individual's first qualifying separation occurred,
or
(B) which began (or would have begun) by reason of the filing of a
claim for UI by the individual after such first qualifying separation.
(v) Exhaustion of UI. The individual must:
(A) Have exhausted all rights to any UI to which the individual was
entitled (or would have been entitled if the individual had applied
therefor); and
(B) Not have an unexpired waiting period applicable to the
individual for any such UI.
(vi) Extended Benefit work test. (A) The individual must--
(1) Accept any offer of suitable work, as defined in
Sec. 617.3(kk), and actually apply for any suitable work the individual
is referred to by the State agency, and
(2) Actively engage in seeking work and furnish the State agency
tangible evidence of such efforts each week, and
(3) Register for work and be referred by the State agency to
suitable work,
in accordance with those provisions of the applicable State law which
apply to claimants for Extended Benefits and which are consistent with
part 615 of this chapter.
(B) The Extended Benefit work test shall not apply to an individual
with respect to claims for TRA for weeks of unemployment beginning
prior to the filing of an initial claim for TRA, nor for any week which
begins before the individual is notified that the individual is covered
by a certification issued under the Act and is fully informed of the
Extended Benefit work test requirements of paragraph (a)(2)(vi) of this
section and Sec. 617.17. Prior to such notification and advice, the
individual shall not be subject to the Extended Benefit work test
requirements, nor to any State timely filing requirement, but shall be
required to be unemployed and able to work and available for work with
respect to any such week except as provided in Sec. 617.17(b)(2) for
workers enrolled in, or participating in, a training program approved
under Sec. 617.22(a).
(vii) Participation in training. (A) The individual must--
(1) Be enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), or
(2) Have completed a training program approved under
Sec. 617.22(a), after a total or partial separation from adversely
affected employment within the certification period of a certification
issued under the Act, or
(3) Have received from the State agency a written statement under
Sec. 617.19 waiving the participation in training requirement for the
individual.
(B) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall not apply to an individual with
respect to claims for TRA for weeks of unemployment beginning prior to
the filing of an initial claim for TRA, nor for any week which begins
before the individual is notified that the individual is covered by a
certification issued under the Act and is fully informed of the
participation in training requirement of paragraph (a)(2)(vii) of this
section and Sec. 617.19.
(C) The participation in training requirement of paragraph
(a)(2)(vii) of this section shall apply, as a qualifying requirement
for TRA, to an individual with respect to claims for TRA for weeks of
unemployment commencing on or after November 21, 1988, and beginning
with the first week following the week in which a certification
covering the individual is issued under the Act, unless the State
agency has issued a written statement to the individual under
Sec. 617.19 waiving the participation in training requirement for the
individual.
(D) For purposes of paragraph (a)(2)(vii) of this section, the
following definitions shall apply:
(1) Enrolled in Training. A worker shall be considered to be
enrolled in training when the worker's application for training is
approved by the State agency and the training institution has furnished
written notice to the State agency that the worker has been accepted in
the approved training program which is to begin within 30 calendar days
of the date of such approval. (A waiver under Sec. 617.19 shall not be
required for an individual who is enrolled in training as defined
herein.)
(2) Completed Training. A worker shall be considered to have
completed a training program if the training program was approved, or
was approvable and is approved, pursuant to Sec. 617.22, and the
training was completed subsequent to the individual's total or partial
separation from adversely affected employment within the certification
period of a certification issued under the Act, and the training
provider has certified that all the conditions for completion of the
training program have been satisfied.
(3) Special rules for workers separated in 1981 to 1986 period. (i)
Basic conditions. Under section 1425(b) of the Omnibus Trade and
Competitiveness Act of 1988 (the ``OTCA'') (Pub. L. 100-418) the time
limit on the eligibility period for basic TRA in section 233(a)(2) of
the Act (before and after the amendment by Public Law 100-418), and the
210-day time limit in section 233(b) of the Act on the filing of a bona
fide application for training in order to qualify for additional TRA,
are set aside and shall be disregarded for any individual separated
from adversely affected employment in the period which began on August
13, 1981, and ended on April 7, 1986: Provided, That, any such
individual must meet all of the following requirements of paragraphs
(a)(3)(i)(A) through (E) of this section to qualify for TRA for any
week.
(A) Period of separation. The separation of the individual must
have occurred on a date within the period which began on August 13,
1981 and ended on April 7, 1986.
(B) Total separation required. Such separation must be a ``total
separation'' as defined in Sec. 617.3(ll), and a ``total qualifying
separation'' as defined in Sec. 617.3(t)(3)(i)(B); and, for the
purposes of determining whether an individual has been continuously
unemployed, as defined in Sec. 617.3(t)(3)(i)(E), only the last such
total separation within the August 13, 1981 to April 7, 1986 period
shall be taken into account.
(C) Other standard requirements. The individual must, with respect
to such total separation, meet all of the requirements of paragraphs
(a)(2)(i) through (v) of this section.
(D) Participation in training. (1) The individual must meet the
requirements of paragraph (a)(2)(vii) of this section, with respect to
being enrolled in or participating in a training program approved
pursuant to Sec. 617.22(a), as to each week TRA is claimed, and not be
ineligible under Sec. 617.18(b)(2) for failure to begin participation
in such training or for ceasing to participate in such training.
(2) With respect to participation in training, as required under
paragraph (a)(3) of this section, the break in training provisions of
Sec. 617.15(d) shall be applicable, and the waiver of participation
provisions in Sec. 617.19 shall not be applicable.
(E) Continuously unemployed. (1) The individual must have been
continuously unemployed since the date of the individual's total
separation referred to in paragraph (a)(2)(vii)(B) of this section, not
taking into account for the purposes of this determination any work in
which the individual was employed in seasonal employment, odd jobs, or
part-time, temporary employment.
(2) For purposes of Sec. 617.11(a)(3)(i)(E)(1), continuously
unemployed shall mean the individual has not been engaged in any
employment, except for seasonal employment, odd-jobs, or part-time,
temporary employment. Employment shall be considered:
(i) Seasonal employment when seasonality provisions of the
applicable State law are applicable to such employment; or
(ii) An odd job when the established period of employment occurs
within five (5) consecutive days or less; or
(iii) Part-time, temporary employment when a termination date of
one hundred fifty (150) days or less was established at the time of
employment, and the average weekly hours for the job, over the period
of employment, was less than 30 hours per week.
(ii) TRA payments prospective only. The provisions of paragraph
(a)(3) of this section apply to payments of TRA only for weeks which
begin after August 23, 1988, and with respect to training in which the
individual becomes enrolled and begins participation before or after
such date, and which is approved under Sec. 617.22(a) before or after
such date. No payment of TRA may be authorized under paragraph (a)(3)
of this section for any week which ends before such training is
approved under Sec. 617.22(a).
(iii) Other special rules. (1) Although the last total qualifying
separation of an individual will be used for the purposes of the
determination under paragraph (a)(3)(i)(B) of this section, the
individual's first qualifying separation (as defined in paragraph
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and
maximum amounts payable to the individual in accordance with
Secs. 617.13 and 617.14.
(2) No individual shall be determined to be eligible for TRA under
paragraph (a)(3) of this section if the individual has previously
received all of the basic and additional TRA to which the individual
was entitled.
(3) The 26-week eligibility period for additional TRA is applicable
under paragraph (a)(3) of this section, as such term is defined in
paragraph (m)(2) of Sec. 617.3.
(4) Special rules for oil and gas workers--retroactive. (i) Basic
conditions. Under section 1421(a)(1)(B) of the OTCA, individuals
employed by independent firms engaged in exploration or drilling for
oil and natural gas who were separated after September 30, 1985, may be
entitled, retroactively, to TAA program benefits, but only if, as to
any such individual, all of the conditions in the following provisions
of paragraph (a)(4) of this section are met.
(ii) Prior certification. Individuals covered by this paragraph
(a)(4) do not include any individual covered under a certification
(made with respect to the same firm or subdivision of a firm) that was
issued under section 223 of the Act without regard to the amendments to
section 222 of the Act (relating to oil and gas workers) made by
section 1421 (a)(1)(A) of the OTCA.
(iii) Petition. (A) To apply for a certification under section 223
covering workers referred to in section 1421 (a)(1)(B) of the OTCA, a
petition must have been filed in the Office of Trade Adjustment
Assistance after August 23, 1988, and on or before November 18, 1988,
by or on behalf of a group of workers of such a firm or subdivision of
a firm.
(B) A petition, to be valid, may not be signed by or on behalf of
an individual referred to in paragraph (a)(4)(ii) of this section.
(iv) Certification. (A) As provided in section 1421(a) (1)(B) of
the OTCA, a certification issued pursuant to section 223 of the Act
will not be subject to the one-year limitation on the impact date which
is specified in section 223(b) of the Act, but the impact date of any
such certification may not be a date earlier than October 1, 1985.
(B) A certification shall not be issued under the authority of
section 1421(a)(1)(B) of the OTCA if a certification could have been
issued under section 223 of the Act before or after the amendment made
by section 1421(a)(1)(A) of the OTCA.
(v) Coverage of certification. Individuals covered by a
certification issued under the authority of section 1421(a)(1)(B) of
the OTCA will be eligible to apply for TAA program benefits as follows:
(A) Basic and additional TRA, retroactively and prospectively,
subject to the conditions stated in paragraph (a)(4) of this section;
(B) Training, prospectively, subject to the conditions stated in
subpart C of this part;
(C) Job search allowances, prospectively, subject to the
conditions stated in subpart D of this part; and
(D) Relocation allowances, prospectively, subject to the conditions
stated in subpart E of this part.
(vi) TRA entitlement. To qualify for TRA for any week, an
individual must meet all of the following requirements of paragraphs
(a)(4)(vi)(A) through (D) of this section;
(A) Certification. The individual must be an adversely affected
worker covered under a certification issued pursuant to section 223 of
the Act and under the authority of section 1421(a)(1)(B) of the OTCA.
(B) Date of separation. The date of the individual's most recent
total separation (as defined in Sec. 617.3) must be a date after
September 30, 1985, and within the certification period of the
certification under which the worker is covered. Separations occurring
prior to October 1, 1985, shall be disregarded for the purposes of
determining whether an individual experienced a total separation after
September 30, 1985.
(C) Other standard requirements. (1) With respect to weeks of
unemployment that begin after September 30, 1985, but prior to November
21, 1988, the individual must, with respect to the separation referred
to in paragraph (a)(4)(vi)(B) of this section, meet all of the
requirements of paragraph (a)(1)(i) through (vii) of this section, and
(2) With respect to weeks of unemployment that begin on or after
November 21, 1988, the individual must meet all of the requirements of
paragraphs (a)(2)(i) through (vii) of this section.
(D) Other special rules. (1) Although an individual's most recent
total or partial separation after September 30, 1985 must be used for
the purposes of this paragraph (a)(4)(vi)(B) of this section, the
individual's first qualifying separation (as defined in paragraph
(t)(3)(ii) of Sec. 617.3) must be used to determine the weekly and
maximum amounts payable to the individual in accordance with
Secs. 617.13 and 617.14.
(2) The 60-day preclusion rule in paragraph (b)(1) of this section
shall not be applicable to an individual covered by a certification
referred to in paragraph (a)(4)(vi)(A) of this section, and who is
eligible for TRA under the provisions of paragraph (a)(4) of this
section.
(3) The 26-week eligibility period for additional TRA (as defined
in paragraph (m)(2) of Sec. 617.3) is applicable under paragraph (a)(4)
of this section.
(b) First week of entitlement. The first week any individual may be
entitled to a payment of basic TRA shall be the later of:
(1) The first week beginning more than 60 days after the date of
the filing of the petition which resulted in the certification under
which the individual is covered (except in the case of oil and gas
workers to whom paragraph (a)(4) of this section applies); or
(2) The first week beginning after the individual's exhaustion of
all rights to UI including waiting period credit, as determined under
Sec. 617.11(a)(1)(v) or Sec. 617.11(a)(2), as appropriate.
8. Section 617.14(a)(2) is revised to read as follows:
Sec. 617.14 Maximum amount of TRA.
(a) General rule. * * *
(2) Subtracting from the product derived under paragraph (a)(1) of
this section, the total sum of UI to which the individual was entitled
(or would have been entitled if the individual had applied therefor) in
the individual's first benefit period described in
Sec. 617.11(a)(1)(iv) or, as appropriate, Sec. 617.11(a)(2)(iv). The
individual's full entitlement shall be subtracted under this paragraph,
without regard to the amount, if any, that was actually paid to the
individual with respect to such benefit period.
9. Section 617.15 is revised to read as follows:
Sec. 617.15 Duration of TRA.
(a) Basic weeks. An individual shall not be paid basic TRA for any
week beginning after the close of the 104-week eligibility period (as
defined in Sec. 617.3(m)(1)), which is applicable to the individual as
determined under Secs. 617.3 (m)(1), 617.3(t), and 617.67(e).
(b) Additional weeks. (1) To assist an individual to complete
training approved under subpart C of this part, payments may be made as
TRA for up to 26 additional weeks in the 26-week eligibility period (as
defined in Sec. 617.3(m)(2)) which is applicable to the individual as
determined under Secs. 617.3(m)(2) and 617.67(f).
(2) To be eligible for TRA for additional weeks, an individual must
make a bona fide application for such training--
(i) within 210 days after the date of the first certification under
which the individual is covered, or
(ii) if later, within 210 days after the date of the individual's
most recent partial or total separation (as defined in Secs. 617.3(cc)
and 617.3(ll)) under such certification.
(3) Except as provided in paragraph (d) of this section, payments
of TRA for additional weeks may be made only for those weeks in the 26-
week eligibility period during which the individual is actually
participating fully in training approved under Sec. 617.22(a).
(c) Limit. The maximum TRA payable to any individual on the basis
of a single certification is limited to the maximum amount of basic TRA
as determined under Sec. 617.14 plus additional TRA for up to 26 weeks
as provided in paragraph (b) of this section.
(d) Scheduled breaks in training. (1) An individual who is
otherwise eligible will continue to be eligible for basic and
additional weeks of TRA during scheduled breaks in training, but only
if a scheduled break is not longer than 14 days, and the following
additional conditions are met:
(i) The individual was participating in the training approved under
Sec. 617.22(a) immediately before the beginning of the break; and
(ii) The break is provided for in the published schedule or the
previously established schedule of training issued by the training
provider or is indicated in the training program approved for the
worker; and, further
(iii) The individual resumes participation in the training
immediately after the break ends.
(2) A scheduled break in training shall include all periods within
or between courses, terms, quarters, semesters and academic years of
the approved training program.
(3) No basic or additional TRA will be paid to an individual for
any week which begins and ends within a scheduled break that is 15 days
or more.
(4) The days within a break in a training program that shall be
counted in determining the number of days of the break for the purposes
of paragraph (d) of this section shall include all calendar days
beginning with the first day of the break and ending with the last day
of the break, as provided for in the schedule of the training provider,
except that any Saturday, Sunday, or official State or National holiday
occurring during the scheduled break in training, on which training
would not normally be scheduled in the training program if there were
no break in training, shall not be counted in determining the number of
days of the break for the purposes of paragraph (d) of this section.
(5) When the worker is drawing basic TRA, the maximum amount of TRA
payable is not affected by the weeks the worker does not receive TRA
while in a break period, but the weeks will count against the 104-week
eligibility period.
(6) When the worker is drawing additional weeks of TRA to complete
training, any weeks for which TRA is not paid will count against the
continuous 26-week eligibility period and the number of weeks payable.
10. Section 617.16 is revised to read as follows:
Sec. 617.16 Applicable State law.
(a) What law governs. The applicable State law for any individual,
for all of the purposes of this part 617, is the State law of the
State--
(1) In which the individual is entitled to UI (whether or not the
individual has filed a claim therefor) immediately following the
individual's first separation (as defined in paragraph (t)(1) of
Sec. 617.3), or
(2) If the individual is not so entitled to UI under the State law
of any State immediately following such first separation, or is
entitled to UI under the Railroad Unemployment Insurance Act (RRUI),
the State law of the State in which such first separation occurred.
(b) Change of law. The State law determined under paragraph (a) of
this section to be the applicable State law for an individual shall
remain the applicable State law for the individual until the individual
becomes entitled to UI under the State law of another State (whether or
not the individual files a claim therefor).
(c) UI entitlement. (1) An individual shall be deemed to be
entitled to UI under a State law if the individual satisfies the base
period employment and wage qualifying requirements of such State law.
(2) In the case of a combined-wage claim (Part 616 of this
chapter), UI entitlement shall be determined under the law of the
paying State.
(3) In case of a Federal UI claim, or a joint State and Federal UI
claim (Parts 609 and 614 of this Chapter), UI entitlement shall be
determined under the law of the State which is the applicable State for
such claims.
(d) RRUI claimants. If an individual is entitled to UI under the
Railroad Unemployment Insurance Act, the applicable State law for
purposes of paragraphs (a) and (b) of this section is the law of the
State in which the individual's first qualifying separation occurs.
(e) Liable State. The State whose State law is determined under
this section to be the applicable State law for any individual shall be
the liable State for the individual for all purposes of this part 617.
Any State other than the liable State shall be an agent State.
11. Section 617.17 is revised to read as follows:
Sec. 617.17 Availability and active search for work.
(a) Extended Benefit work test applicable. Except as provided in
paragraph (b) of this section, an individual shall, as a basic
condition of entitlement to basic TRA for a week of unemployment--
(1) be unemployed, as defined in the applicable State law for UI
claimants, and
(2) be able to work and available for work, as defined in the
applicable State law for UI claimants, and
(3) satisfy the Extended Benefit work test in each week for which
TRA is claimed, as set forth in Secs. 617.11(a)(1) (vi) and
617.11(a)(2)(vi).
(b) Exceptions--(1) Prior to November 21, 1988. The conditions
stated in paragraphs (a) and (b) of this section shall not be
applicable to an individual actually participating in training approved
under the applicable State law or under Sec. 617.22(a), or during a
scheduled break in the training program if (as determined for the
purposes of Sec. 617.15 (d)) the individual participated in the
training immediately before the beginning of the break and resumes
participation in the training immediately after the break ends, unless
the individual is ineligible or subject to disqualification under the
applicable State law or Sec. 617.18 (b)(2).
(2) On and after November 21, 1988. The conditions stated in
paragraphs (a)(2) and (a)(3) of this section shall not be applicable to
an individual who is enrolled in or participating in a training program
approved under Sec. 617.22 (a), or during a break in the training
program if (as determined for the purposes of Sec. 617.15(d)) the
individual participated in the training immediately before the
beginning of the break and resumes participation in the training
immediately after the break ends.
12. Paragraph (b) of Sec. 617.18 is revised to read as follows:
Sec. 617.18 Disqualifications.
* * * * *
(b) Disqualification of trainees--(1) State law inapplicable. A
State law shall not be applied to disqualify an individual from
receiving either UI or TRA because the individual:
(i) Is enrolled in or is participating in a training program
approved under Sec. 617.22(a); or
(ii) Refuses work to which the individual has been referred by the
State agency, if such work would require the individual to discontinue
training, or if added to hours of training would occupy the individual
more than 8 hours a day or 40 hours a week, except that paragraph
(b)(1)(ii) of this section shall not apply to an individual who is
ineligible under paragraph (b)(2) of this section; or
(iii) Quits work, if the individual was employed in work which was
not suitable (as defined in Sec. 617.22(a)(1)), and it was reasonable
and necessary for the individual to quit work to begin or continue
training approved for the individual under Sec. 617.22(a).
(2) Trainees ineligible. (i) An individual who, without justifiable
cause, fails to begin participation in a training program which is
approved under Sec. 617.22(a), or ceases to participate in such
training, or for whom a waiver is revoked pursuant to Sec. 617.19(c),
shall not be eligible for basic TRA, or any other payment under this
part 617, for the week in which such failure, cessation, or revocation
occurred, or any succeeding week thereafter until the week in which the
individual begins or resumes participation in a training program that
is approved under Sec. 617.22(a).
(ii) For purposes of this section and other provisions of this Part
617, the following definitions shall be used:
(A) Failed to begin participation. A worker shall be determined to
have failed to begin participation in a training program when the
worker fails to attend all scheduled training classes and other
training activities in the first week of the training program, without
justifiable cause.
(B) Ceased participation. A worker shall be determined to have
ceased participation in a training program when the worker fails to
attend all scheduled training classes and other training activities
scheduled by the training institution in any week of the training
program, without justifiable cause.
(C) Justifiable cause. For the purposes of paragraph (b)(2) of this
section, the term ``justifiable cause'' means such reasons as would
justify an individual's conduct when measured by conduct expected of a
reasonable individual in like circumstances, including but not limited
to reasons beyond the individual's control and reasons related to the
individual's capability to participate in or complete an approved
training program.
* * * * *
13. A new Sec. 617.19 is added to read as follows:
Sec. 617.19 Requirement for participation in training.
(a) In general--(1) Basic requirement. (i) All individuals
otherwise entitled to basic TRA, for all weeks beginning on and after
November 21, 1988, must either be enrolled in or participating in a
training program approved under Sec. 617.22(a), or have completed a
training program approved under Sec. 617.22(a), as provided in
Sec. 617.11(a)(2)(vii), in order to be entitled to basic TRA payments
for any such week (except for continuation of payments during scheduled
breaks in training of 14 days or less under the conditions stated in
Sec. 617.15(d)). The training requirement of paragraph (a)(1)(i) of
this section shall be waived in writing on an individual basis, solely
in regard to entitlement to basic TRA, if approval of training for the
individual is not feasible or is not appropriate, as determined in
accordance with paragraph (a)(2) of this section.
(ii) As a principal condition of entitlement to additional TRA
payments, all individuals must actually be participating in a training
program approved under Sec. 617.22(a), for all weeks beginning before
November 21, 1988, and for all weeks beginning on and after November
21, 1988 (except for continuation of payments during breaks in training
under the conditions stated in Sec. 617.15(d)). Paragraph (a)(2) of
this section is not applicable in regard to additional TRA, and the
participation in training requirement of paragraph (a)(1)(ii) of this
section may not be waived under any circumstances.
(2) Waiver of participation requirement. When it is determined, in
accordance with paragraph (a)(2) of this section, that it is not
feasible or is not appropriate (as such terms are defined in paragraph
(b) of this section) to approve a training program for an individual
otherwise entitled to basic TRA, the individual shall be furnished a
formal written notice of waiver, with an explanation of the reason(s)
for the waiver and a statement of why training is not feasible or is
not appropriate in the case of such individual. At a minimum, the
written statement furnished to the individual shall contain information
required by Sec. 617.50(e) as well as the following information:
(i) Name and social security number of the individual;
(ii) Petition number under which the worker was certified;
(iii) A statement why the agency has determined that it is not
feasible or is not appropriate to approve training for the individual
at that time, and the reason(s) for the finding;
(iv) A statement that the waiver will be revoked at any time that
feasible and appropriate training becomes available;
(v) Any other advice or information the State agency deems
appropriate in informing the individual;
(vi) Signature block (with signature) for the appropriate State
official; and
(vii) Signature block (with signature) for the worker's
acknowledgement of receipt.
(3) Denial of a waiver. In any case in which a determination is
made to deny to any individual a waiver of the participation
requirement, the individual shall be furnished a formal written notice
of denial of waiver, which shall contain all of the information
required of formal written notices under paragraph (a)(2) of this
section.
(4) Procedure. Any determination under paragraph (a)(2) or
paragraph (a)(3) of this section shall be a determination to which
Secs. 617.50 and 617.51 apply, including the requirement that any
written notice furnished to an individual shall include notice of the
individual's appeal rights as is provided in Sec. 617.50(e).
(b) Reasons for issuing a waiver. (1) For the purposes of
paragraphs (a)(2) and (a)(3) of this section, a waiver of the
participation in training requirement shall be issued to an individual
only upon a supported finding that approval of a Sec. 617.22(a)
training program for that individual is not feasible or is not
appropriate at that time.
(i) Feasible and appropriate. For the purposes of this section:
(A) Feasible. The term feasible means:
(1) training is available at that time which meets all the criteria
of Sec. 617.22(a);
(2) the individual is so situated as to be able to take full
advantage of the training opportunity and complete the training; and
(3) funding is available to pay the full costs of the training and
any transportation and subsistence expenses which are compensable.
The funding referred to in paragraph (b)(1)(i)(A)(3) of this section
includes not only TAA program funds but also all other funds available
under any of the provisions of the Job Training Partnership Act
(including Title III) or any other Federal, State or private source
that may be utilized for training approvable under Sec. 617.22(a).
Further, the individual's situation in respect to undertaking training
(as referred to in paragraph (b)(1)(i)(A)(2) of this section) shall
include taking into account personal circumstances that preclude the
individual from being able to participate in and complete the training
program, such as the availability of transportation, the ability to
make arrangements for necessary child care, and adequate financial
resources if the weeks of training exceeds the duration of UI and TRA
payments.
(B) Appropriate. The term appropriate means being suitable or
compatible, fitting, or proper. Appropriate, therefore, refers to
suitability of the training for the worker (including whether there is
a reasonable prospect which is reasonably foreseeable that the
individual will be reemployed by the firm from which separated), and
compatibility of the training for the purposes of the TAA Program. In
these respects, suitability of training for the individual is
encompassed within the several criteria in Sec. 617.22 (a), and
compatibility with the program is covered by the various provisions of
subpart C of this part which describe the types of training approvable
under Sec. 617.22(a) and the limitations thereon.
(ii) Basis for application. Whether training is feasible or
appropriate at any given time is determined by finding whether, at that
time, training suitable for the worker is available, the training is
approvable under subpart C of this part including the criteria in
Sec. 617.22(a), the worker is so situated as to be able to take full
advantage of the training and satisfactorily complete the training,
full funding for the training is available from one or more sources in
accordance with Secs. 617.24 and 617.25, the worker has the financial
resources to complete the training when the duration of the training
program exceeds the worker's eligibility for TRA, and the training will
commence within 30 days of approval.
(2) Particular applications. The reasons for any determination that
training is not feasible or is not appropriate shall be in accord with
the following:
(i) Not feasible because--
(A) The beginning date of approved training is beyond 30 days, as
required by the definition for ``Enrolled in training'' in
Sec. 617.11(a)(2)(vii)(D),
(B) Training is not reasonably available to the individual,
(C) Training is not available at a reasonable cost,
(D) Funds are not available to pay the total costs of training, or
(E) Personal circumstances such as health or financial resources,
preclude participation in training or satisfactory completion of
training,
(F) Other (explain).
(ii) Not appropriate because--
(A)(1) The firm from which the individual was separated plans to
recall the individual within the reasonably foreseeable future (State
agencies must verify planned recalls with the employer),
(2) Planned recall. For the purpose of determining whether the
recall or reemployment of an individual is reasonably foreseeable (for
the purposes of this section and Sec. 617.22), either a specific or
general type of recall (as set out) shall be deemed to be sufficient.
(i) Specific recall. A specific recall is where an individual or
group of individuals who was separated from employment is identified
and notified by the employer to return to work within a specified time
period.
(ii) General recall. A general recall is where the employer
announces an intention to recall an individual or group of individuals,
or by other action reasonably signals an intent to recall, without
specifying any certain date or specific time period.
(iii) Reasonably foreseeable. For purposes of determining whether
training should be denied and a training waiver granted, because of a
planned recall that is reasonably foreseeable, such a planned recall
includes a specific recall and also includes a general recall (as
defined in paragraph (b)(2)(ii)(A)(2) of this section) if the general
recall in each individual's case is reasonably expected to occur before
the individual exhausts eligibility for any regular UI payments for
which the individual is or may become entitled. A general recall, in
which the timing of the recall is reasonably expected to occur after
the individual's exhaustion of any regular UI to which the individual
is or may become entitled, shall not be treated as precluding approval
of training, but shall be treated as any other worker separation for
these purposes.
(B) The duration of training suitable for the individual exceeds
the individual's maximum entitlement to basic and additional TRA
payments and the individual cannot assure financial responsibility for
completing the training program,
(C) The individual possesses skills for ``suitable employment'' and
there is a reasonable expectation of employment in the foreseeable
future, or
(D) Other (explain).
(3) Waivers and able and available. An individual who has been
furnished a written notice of waiver under paragraph (a)(2) of this
section (or denial of waiver under paragraph (a)(3) of this section)
shall be subject to all of the requirements of Sec. 617.17(a), which
shall continue until the individual is enrolled in a training program
as required by paragraph (a)(2)(vii) of Sec. 617.11.
(c) Waiver review and revocations. (1) State agencies must have a
procedure for reviewing regularly (i.e., every 30 days or less) all
waivers issued under this section to individuals, to ascertain that the
conditions upon which the waivers were granted continue to exist. In
any case in which the conditions have changed--i.e., training has
become feasible and appropriate--then the waiver must be revoked, and a
written notice of revocation shall be furnished to the individual
involved.
(2) In addition to the periodic reviews required by paragraph
(c)(1) of this section, State agencies must have a procedure for
revoking waivers in individual cases promptly whenever a change in
circumstances occurs. For example, a written notice of revocation shall
be issued to the individual concurrent with the approval of the
training in which the individual has enrolled (if such training is
scheduled to commence within 30 days), and shall not be issued prior to
such approval.
(3) State agencies may incorporate a revocation section in the
waiver form or on a separate revocation form. Any determination under
paragraph (c) of this section shall be a determination to which
Secs. 617.50 and 617.51 apply. The information included in a written
notice of revocation issued under this paragraph (c) shall include all
of the information required for written notices issued under paragraph
(a)(2) of this section.
(d) Recordkeeping and reporting. (1) State agencies must develop
procedures for compiling and reporting on the number of waivers issued
and revoked, by reason, as specified in paragraphs (b) and (c) of this
section, and report such data to the Department of Labor as requested
by the Department.
(2) State agencies are not required to forward copies of individual
waiver and revocation notices to the Department of Labor, unless
specifically requested by the Department. However, each State agency
shall retain a copy of every individual waiver and revocation notice
issued by the State, for such period of time as the Department
requires. (Approved by the Office of Management and Budget under
control number 1205-0016).
14. Section 617.20 is revised to read as follows:
Sec. 617.20 Responsibilities for the delivery of reemployment
services.
(a) State agency referral. Cooperating State agencies shall be
responsible for:
(1) Advising each adversely affected worker to apply for training
with the State agency responsible for reemployment services, while the
worker is receiving UI payments, and at the time the individual files
an initial claim for TRA; and
(2) Referring each adversely affected worker to the State agency
responsible for training and other reemployment services in a timely
manner.
(b) State agency responsibilities. The responsibilities of
cooperating State agencies under subpart C of this part include, but
are not limited to:
(1) Interviewing each adversely affected worker regarding suitable
training opportunities reasonably available to each individual under
subpart C of this part, reviewing such opportunities with each
individual, informing each individual of the requirement for
participation in training as a condition for receiving TRA, and
accepting each individual's application for training. Such training may
be approved for any adversely affected worker at any time after a
certification is issued and the worker is determined to be covered
without regard to whether the worker has exhausted all rights to
unemployment insurance;
(2) Registering adversely affected workers for work;
(3) Informing adversely affected workers of the reemployment
services and allowances available under the Act and this Part 617, the
application procedures, the filing date requirements for such
reemployment services and the training requirement for receiving TRA;
(4) Determining whether suitable employment, as defined in
Sec. 617.22(a)(1), is available;
(5) Providing counseling, testing, placement, and supportive
services;
(6) Providing or procuring self-directed job search training, when
necessary;
(7) Providing training, job search and relocation assistance;
(8) Developing a training plan with the individual;
(9) Determining which training institutions offer training programs
at a reasonable cost and with a reasonable expectation of employment
following the completion of such training, and procuring such training;
(10) Documenting the standards and procedures used to select
occupations and training institutions in which training is approved;
(11) Making referrals and approving training programs;
(12) Monitoring the progress of workers in approved training
programs;
(13) Developing, and periodically reviewing and updating
reemployment plans for adversely affected workers;
(14) Developing and implementing a procedure for reviewing training
waivers and revocations at least every 30 days to determine whether the
conditions under which they are issued have changed; and
(15) Coordinating the administration and delivery of employment
services, benefits, training, and supplemental assistance for adversely
affected workers with programs under the Act and under Title III of the
Job Training Partnership Act.
15. The introductory text and paragraphs (e) and (g) of Sec. 617.21
are revised to read as follows:
Sec. 617.21 Reemployment services and allowances.
Reemployment services and allowances shall include, as appropriate,
the services and allowances as set forth in this section, provided that
those services included within the scope of paragraphs (a) through (e)
of this section shall be provided for under any other Federal law other
than the Act.
* * * * *
(e) Supportive services. Supportive services shall be provided so
individuals can obtain or retain employment or participate in
employment and training programs leading to eventual placement in
permanent employment. Such services may include work orientation, basic
education, communication skills, child care, and any other services
necessary to prepare an individual for full employment in accordance
with the individual's capabilities and employment opportunities.
* * * * *
(g) Classroom training. This training activity is any training of
the type normally conducted in a classroom setting, including
vocational education, and may be provided to individuals when the
conditions for approval of training are met, as provided in
Sec. 617.22(a), to impart technical skills and information required to
perform a specific job or group of jobs. Training designed to enhance
the employability of individuals by upgrading basic skills, through the
provision of courses such as remedial education or English-as-a-second-
language, shall be considered as remedial education approvable under
Sec. 617.22(a) if the criteria for approval of training under
Sec. 617.22(a) are met.
* * * * *
16. Paragraphs (a), (b), (c), and (f) (2), (3), and (4) of
Sec. 617.22 are amended to read as follows:
Sec. 617.22 Approval of training.
(a) Conditions for approval. Training shall be approved for an
adversely affected worker if the State agency determines that:
(1) There is no suitable employment (which may include technical
and professional employment) available for an adversely affected
worker.
(i) This means that for the worker for whom approval of training is
being considered under this section, no suitable employment is
available at that time for that worker, either in the commuting area,
as defined in Sec. 617.3(k), or outside the commuting area in an area
in which the worker desires to relocate with the assistance of a
relocation allowance under subpart E of this part, and there is no
reasonable prospect of such suitable employment becoming available for
the worker in the foreseeable future. For the purposes of paragraph
(a)(1) of this section only, the term ``suitable employment'' means,
with respect to a worker, work of a substantially equal or higher skill
level than the worker's past adversely affected employment, and wages
for such work at not less that 80 percent of the worker's average
weekly wage.
(2) The worker would benefit from appropriate training. (i) This
means that there is a direct relationship between the needs of the
worker for skills training or remedial education and what would be
provided by the training program under consideration for the worker,
and that the worker has the mental and physical capabilities to
undertake, make satisfactory progress in, and complete the training.
This includes the further criterion that the individual will be job
ready on completion of the training program.
(3) There is a reasonable expectation of employment following
completion of such training. (i) This means that, for that worker,
given the job market conditions expected to exist at the time of the
completion of the training program, there is, fairly and objectively
considered, a reasonable expectation that the worker will find a job,
using the skills and education acquired while in training, after
completion of the training. Any determination under this criterion must
take into account that ``a reasonable expectation of employment'' does
not require that employment opportunities for the worker be available,
or offered, immediately upon the completion of the approved training.
This emphasizes, rather than negates, the point that there must be a
fair and objective projection of job market conditions expected to
exist at the time of completion of the training.
(4) Training approved by the Secretary is reasonably available to
the worker from either governmental agencies or private sources (which
may include area vocational education schools, as defined in section
195(2) of the Vocational Education Act of 1963, and employers). (i)
This means that training is reasonably accessible to the worker within
the worker's commuting area at any governmental or private training (or
education) provider, particularly including on-the-job training with an
employer, and it means training that is suitable for the worker and
meets the other criteria in paragraph (a) of this section. It also
means that emphasis must be given to finding accessible training for
the worker, although not precluding training outside the commuting area
if none is available at the time within the worker's commuting area.
Whether the training is within or outside the commuting area, the
training must be available at a reasonable cost as prescribed in
paragraph (a)(6) of this section.
(ii) In determining whether or not training is reasonably
available, first consideration shall be given to training opportunities
available within the worker's normal commuting area. Training at
facilities outside the worker's normal commuting area should be
approved only if such training is not available in the area or the
training to be provided outside the normal commuting area will involve
less charg
FR Doc. 94-16 Trade Adjustment Assistance for Workers; Amendment of Regulations
es to TAA funds.
(5) The worker is qualified to undertake and complete such
training. (i) This emphasizes the worker's personal qualifications to
undertake and complete approved training. Evaluation of the worker's
personal qualifications must include the worker's physical and mental
capabilities, educational background, work experience and financial
resources, as adequate to undertake and complete the specific training
program being considered.
(ii) Evaluation of the worker's financial ability shall include an
analysis of the worker's remaining weeks of UI and TRA payments in
relation to the duration of the training program. If the worker's UI
and TRA payments will be exhausted before the end of the training
program, it shall be ascertained whether personal or family resources
will be available to the worker to complete the training. It must be
noted on the worker's record that financial resources were discussed
with the worker before the training was approved.
(iii) When adequate financial resources will not be available to
the worker to complete a training program which exceeds the duration of
UI and TRA payments, the training shall not be approved and
consideration shall be given to other training opportunities available
to the worker.
(6) Such training is suitable for the worker and available at a
reasonable cost. (i) Such training means the training being considered
for the worker. Suitable for the worker means that paragraph (a)(5) of
this section is met and that the training is appropriate for the worker
given the worker's capabilities, background and experience.
(ii) Available at a reasonable cost means that training may not be
approved at one provider when, all costs being considered, training
substantially similar in quality, content and results can be obtained
from another provider at a lower total cost within a similar time
frame. It also means that training may not be approved when the costs
of the training are unreasonably high in comparison with the average
costs of training other workers in similar occupations at other
providers. This criterion also requires taking into consideration the
funding of training costs from sources other than TAA funds, and the
least cost to TAA funding of providing suitable training opportunities
to the worker. Greater emphasis will need to be given to these elements
in determining the reasonable costs of training, particularly in view
of the requirements in Sec. 617.11(a) (2) and (3) that TRA claimants be
enrolled in and participate in training.
(iii) For the purpose of determining reasonable costs of training,
the following elements shall be considered:
(A) Costs of a training program shall include tuition and related
expenses (books, tools, and academic fees), travel or transportation
expenses, and subsistence expenses;
(B) In determining whether the costs of a particular training
program are reasonable, first consideration must be given to the lowest
cost training which is available within the commuting area. When
training, substantially similar in quality, content and results, is
offered at more than one training provider, the lowest cost training
shall be approved; and
(C) Training at facilities outside the worker's normal commuting
area that involves transportation or subsistence costs which add
substantially to the total costs shall not be approved if other
appropriate training is available.
(b) Allowable amounts for training. In approving a worker's
application for training, the conditions for approval in paragraph (a)
of this section must be found to be satisfied, including assurance that
the training is suitable for the worker, is at the lowest reasonable
cost, and will enable the worker to obtain employment within a
reasonable period of time. An application for training shall be denied
if it is for training in an occupational area which requires an
extraordinarily high skill level and for which the total costs of the
training are substantially higher than the costs of other training
which is suitable for the worker.
(c) Previous approval of training under State law. Training
previously approved for a worker under State law or other authority is
not training approved under paragraph (a) of this section. Any such
training may be approved under paragraph (a) of this section, if all of
the requirements and limitations of paragraph (a) of this section and
other provisions of Subpart C of this part are met, but such approval
shall not be retroactive for any of the purposes of this Part 617,
including payment of the costs of the training and payment of TRA to
the worker participating in the training. However, in the case of a
redetermination or decision reversing a determination denying approval
of training, for the purposes of this Part 617 such redetermination or
decision shall be given effect retroactive to the issuance of the
determination that was reversed by such redetermination or decision;
but no costs of training may be paid unless such costs actually were
incurred for training in which the individual participated, and no
additional TRA may be paid with respect to any week the individual was
not actually participating in the training.
* * * * *
(f) Length of training and hours of attendance. * * *
(2) Length of training. The maximum duration for any approvable
training program is 104 weeks (during which training is conducted) and
no individual shall be entitled to more than one training program under
a single certification.
(3) Training program. (i) For purposes of this Part 617, a training
program may consist of a single course or group of courses which is
designed and approved by the State agency for an individual to meet a
specific occupational goal.
(ii) When an approved training program involves more than one
course and involves breaks in training (within or between courses, or
within or between terms, quarters, semesters and academic years), all
such breaks in training are subject to the ``14-day break in training''
provision in Sec. 617.15(d), for purposes of receiving TRA payments. An
individual's approved training program may be amended by the State
agency to add a course designed to satisfy unforeseen needs of the
individual, such as remedial education or specific occupational skills,
as long as the length of the amended training program does not exceed
the 104-week training limitation in paragraph (f)(2) of this section.
(4) Full-time training. Individuals in TAA approved training shall
attend training full time, and when other training is combined with OJT
attendance at both shall be not less than full-time. The hours in a day
and days in a week of attendance in training shall be full-time in
accordance with established hours and days of training of the training
provider.
* * * * *
17. Section 617.24 is revised to read as follows:
Sec. 617.24 Preferred training.
Training programs that may be approved under Sec. 617.22(a)
include, but are not limited to--
(a) On-the-job training,
(b) Any training program provided by a State pursuant to Title III
of the Job Training Partnership Act,
(c) Any training program approved by a private industry council
established under the Job Training Partnership Act,
(d) Any program of remedial education,
(e) Any training program (other than a training program described
in paragraph (c) of Sec. 617.25) for which all, or any portion, of the
costs of training the worker are paid--
(1) Under any other Federal or State program other than this
Subpart C, or
(2) From any other source other than this section, but not
including sources personal to the individual, such as self, relatives,
or friends, and
(f) Any other training program approved by the Department.
18. Section 617.25 is revised to read as follows:
Sec. 617.25 Limitations on training under Subpart C of this part.
The second sentence of amended section 236(a)(1) of the Act
provides that an adversely affected worker shall be entitled to have
payment of the costs of training approved under the Act paid on the
worker's behalf, subject, however, ``to the limitations imposed by''
section 236. The limitations in section 236 which are implemented in
this section concern the restrictions on approval of training which are
related directly or indirectly to the conditions on training which are
approvable or on the funding of training costs.
(a) On-the-job training. The costs of on-the-job training approved
Subpart C of this part for a worker, which are paid from TAA funds,
shall be paid in equal monthly installments. Such costs may be paid
from TAA funds, and such training may be approved under subpart C of
this part, however, only if the State agency determines that:
(1) No currently employed individual is displaced by such eligible
worker, including partial displacement such as a reduction in the hours
of non-overtime work, wages, or employment benefits;
(2) Such training does not impair existing contracts for services
or collective bargaining agreements;
(3) In the case of training which would be inconsistent with the
terms of a collective bargaining agreement, written concurrence has
been obtained from the concerned labor organization;
(4) No other individual is on layoff from the same or any
substantially equivalent job for which such eligible worker is being
trained;
(5) The employer has not terminated the employment of any regular
employee or otherwise reduced the work force with the intention of
filling the vacancy so created by hiring the eligible worker;
(6) The job for which the eligible worker is being trained is not
being created in a promotional line that will infringe in any way upon
the promotional opportunities of currently employed individuals;
(7) Such training is not for the same occupation from which the
worker was separated and with respect to which such worker's group was
certified pursuant to section 222 of the Act;
(8) The employer certifies to the State agency that the employer
will continue to employ the eligible worker for at least 26 weeks after
completing the training if the worker desires to continue such
employment and the employer does not have due cause to terminate such
employment;
(9) The employer has not received payment under this Subpart C or
under any other Federal law for any other on-the-job training provided
by such employer which failed to meet the requirements of paragraphs
(a)(1) through (a)(6) of this section or such other Federal law; and
(10) The employer has not taken, at any time, any action which
violated the terms of any certification described in paragraph (a)(8)
of this section made by the employer with respect to any other on-the-
job training provided by the employer for which the employer has
received a payment under Subpart C of this part (or the prior
provisions of Subpart C of this part).
(b) Other authority and restrictions on funding--
(1) In general. Section 236(a) contains several provisions which
allow the costs of a training program approved under the Act to be
paid--
(i) Solely from TAA funds,
(ii) Solely from other public or private funds, or
(iii) Partly from TAA funds and partly from other public or private
funds,
but also precludes the use of TAA funds or funds under another Federal
law where such use of funds would result in duplication of payment of
training costs. Those authorities and restrictions are spelled out in
paragraph (b) of this section: Provided, that, private funds may not
include funds from sources personal to the individual, such as self,
relatives, or friends.
(2) Section 236(a)(5)(E) of the Act. (i) In general. Paragraph
(5)(E) of section 236(a) of the Act specifies one of the types of
training programs approvable under the Act, as including a program
(other than a training program described in section 236(a)(7)
(paragraph (b)(5) of this section)) for which all, or any portion, of
the costs of the training program are paid--
(A) Under any Federal or State program other than the Act, or
(B) From any source other than TAA funds.
(ii) Application. Paragraph (E) of section 236(a)(5) of the Act
thus authorizes prearrangements between cooperating State agencies
administering the TAA program and the authorities administering any
other Federal, State, or private funding source, to agree upon any mix
of TAA funds and other funds for paying the costs of a training program
approved under Subpart C of this part. Any such prearrangement must
contain specific commitments from the other authorities to pay the
costs they agree to assume.
(3) Section 236(a)(6) of the Act. (i) In general. Paragraph (6) of
section 236(a) of the Act is related to section 236(a)(5)(E) in
providing that the costs of a training program approved under the Act
are not required to be paid from TAA funds to the extent that such
costs are paid under any Federal or State program other than the Act or
from any source other than the Act.
(ii) Application. (A) Although paragraph (6) of section 236(a) of
the Act is expressed in terms of the costs not being required to be
paid from TAA funds, it authorizes the mixing of TAA funds and funds
from any other Federal, State or private source. Therefore, sharing the
future costs of training is authorized where prior costs were paid from
another Federal, State or private source, but this does not authorize
reimbursement from TAA funds of any training costs which were incurred
and for which payment became due prior to the approval of the training
program under Subpart C of this part. In utilizing the authority under
paragraph (b)(3) of this section for sharing training costs,
prearrangements shall be entered into as required under paragraph
(b)(2) of this section before any TAA funds are obligated.
(B) Paragraph (6) of section 236(a) contains a special restriction
on the authority derived thereunder to use TAA funds in sharing
training costs. Therefore, before approving any training program under
Subpart C of this part, which may involve sharing of the training costs
under the authority of paragraph (b)(3) of this section, the
cooperating State agencies for the TAA program shall require the worker
to enter into a written agreement with the State under which TAA funds
will not be applied for or used to pay any portion of the costs of the
training the worker has reason to believe will be paid by any other
governmental or private source.
(4) Section 236(a)(4) of the Act. (i) In general. (A) Paragraph (4)
of section 236(a) of the Act (paragraph (3) of section 236(a) before
August 23, 1988) continues to provide, as it did before the addition of
paragraphs (5)(E), (6), and (7) to section 236(a), that:
(1) When the costs of training are paid from TAA funds under
subpart C of this part, no other payment for such costs of training may
be made under any other Federal law; and
(2) When the payment of the costs of training has already been made
under any other Federal law, or the costs are reimbursable under any
other Federal law and a portion of the costs has already been paid
under such other Federal law, payment of such training costs may not be
made from TAA funds.
(B) Paragraph (4) of section 236(a) also requires that: The
provisions of paragraphs (b)(4)(i) (A)(1) and (A)(2) of this section
shall not apply to, or take into account, any funds provided under any
other provision of Federal law which are used for any purpose other
than the direct payment of the identical costs incurred in training the
adversely affected worker under the TAA Program, even if such other use
has the effect of indirectly paying or reducing any portion of the
costs involved in training the adversely affected worker.
(ii) Application. (A) Although the prohibition on duplicate
payments in the first part of section 236(a)(4) remains fully
implemented in this section, the second part of section 236(a)(4) on
the sharing of costs from TAA funds and other Federal fund sources is
modified by the explicit provisions of paragraphs (5)(E) and (6) of
section 236(a), as set forth in paragraphs (b)(2) and (b)(3) of this
section.
(B) When the direct costs of a training program approvable under
subpart C of this part are payable from TAA funds and are also wholly
or partially payable under another Federal law, or under any State law
or from private, nongovernmental sources, the TAA Program agencies
shall establish procedures which ensure that TAA funds shall not be
utilized to duplicate funds available from another source, but this
preclusion of duplication does not prohibit and shall not discourage
sharing of costs under prearrangements authorized under paragraphs
(b)(2) and (b)(3) of this section.
(C)(1) Therefore, pursuant to paragraph (4) of section 236(a),
paragraph (b)(4) of this section continues to prohibit duplicate
payment of training costs, which is consistent with the general
prohibition expressed in subpart C of this part, against any use of TAA
funds to duplicate payment of training costs in any circumstances.
Paragraph (b)(4) of this section also continues to prohibit taking into
account, in determining whether training costs are payable from TAA
funds, any payments to the worker under any other Federal law which may
have the effect of indirectly paying all or a portion of the training
costs. Such indirect payments include Veterans Educational Assistance,
Pell Grants, and Supplemental Educational Opportunity Grants, which are
paid to the individual. However, any payments to the individual under
these programs are deductible from TRA payable to the individual under
Sec. 617.13(c)(2).
(2) When payments of Veterans Educational Assistance, Pell Grants,
and Supplemental Educational Opportunity Grants are made to the
training provider, instead of the individual, and are used for training
costs, such payments shall be taken into account as direct payment of
the training costs under other Federal law for the purposes of this
section.
(5) Section 236(a)(7) of the Act. (i) In general. Paragraph (7) of
section 236(a) of the Act provides that a training program shall not be
approved under the Act if--
(A) all or a portion of the costs of such training program are paid
under any nongovernmental plan or program,
(B) the adversely affected worker has a right to obtain training or
funds for training under such plan or program, and
(C) such plan or program requires the worker to reimburse the plan
or program from funds provided under the Act, or from wages paid under
such training program, for any portion of the costs of such training
program paid under the plan or program.
(ii) Application. Paragraph (7) of section 236(a), which is
implemented in paragraph (b)(5) of this section, reinforces the
prohibition in Sec. 617.22(h) against approval of a training program
under subpart C of this part if the worker is required to pay a fee or
tuition. The provisions of paragraph (b) and paragraph (h) of this
section shall be given effect as prohibiting the approval under subpart
C of this part of any training program if the worker would be requested
or required, at any time or under any circumstances, to pay any of the
costs of a training program, however small, from any TAA funds given to
the worker or from any other funds belonging to the worker from any
source whatever. Aside from this stringent limitation, however,
paragraph (7) of section 236(a) of the Act implicitly authorizes
training approved under this subpart C to be wholly or partly funded
from nongovernmental (i.e., employer, union or other private) sources.
19. Section 617.26 is revised to read as follows:
Sec. 617.26 Liable and agent State responsibilities.
(a) Liable State. The liable State means, for any individual, the
State which administers the applicable State law (as determined under
Sec. 617.16). The liable State is responsible for making all
determinations, redeterminations, and decisions on appeals on all
claims for program benefits under this part 617, including waivers and
revocations of waivers pursuant to Sec. 617.19, subsistence payments
pursuant to Sec. 617.27, and transportation payments pursuant to
Sec. 617.28. Upon receiving a copy of a certification issued by the
Department, with respect to an affected firm in the State, the liable
State also is responsible for publishing newspaper notices as provided
in Sec. 617.4(d), furnishing information and assistance to workers as
provided in Sec. 617.4, furnishing reemployment services under subparts
C, D, and E of this part to all eligible workers covered by such
certification, and carrying out other activities and functions required
by the State's Agreement with the Secretary entered into pursuant to
Sec. 617.59. All determinations pertaining to any individual's
eligibility for or entitlement to any program benefit under this part
617 shall be subject to the provisions of Secs. 617.50 and 617.51.
(b) Agent State. Agent State means, for any individual, any State
other than the liable State for the individual. Agent States shall be
responsible for cooperating fully with the liable State and assisting
the liable State in carrying out its activities and functions. These
agent State responsibilities shall be part of the activities and
functions undertaken by the agent States under their Agreements entered
into pursuant to Sec. 617.59. Agent State responsibilities include
cooperating with liable States in taking applications and claims for
TAA, providing reemployment services to certified workers in accordance
with subparts B, C, D and E of this part, providing interstate
claimants with TAA program information and assistance, assisting
applicants or claimants to file claims for TAA program benefits and
services, cooperating with the liable State by providing information
needed to issue determinations, redeterminations, and decisions on
appeals, and procuring and paying the cost of any approved training,
including subsistence and transportation costs, according to
determinations issued by the liable State.
20. Section 617.32(a)(4) is revised to read as follows:
Sec. 617.32 Eligibility.
(a) Conditions. * * *
(4) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has a reasonable expectation of obtaining suitable employment
of long-term duration outside the commuting area and in the area where
the job search will be conducted. For the purposes of this section, the
term ``suitable employment'' means suitable work as defined in
Sec. 617.3(kk) (1) or (2), whichever is applicable to the individual;
and
* * * * *
21. Section 617.33 is revised to read as follows:
Sec. 617.33 Findings required.
(a) Findings by liable State. Before final payment of a job search
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a job
search allowance specified in Sec. 617.32(a) (1) through (4);
(2) The application for a job search allowance was submitted by the
individual within the time limits specified in Sec. 617.31(c); and
(3) The individual completed the job search within the time limits
stated in Sec. 617.32(a)(5), and the requirements of paragraphs (b) and
(c) of Sec. 617.32 have been met.
(b) Agent State. (1) When an individual files an application for a
job search allowance with respect to a job search conducted in a State
other than the liable State, the State agency of the State in which the
individual conducts the job search shall serve as the agent State and
be responsible for assisting the individual in conducting the job
search and in filing an application for a job search allowance with the
liable State, and for assisting the liable State by furnishing to it
any information required for the liable State's determination of the
claim.
(2) The agent State shall cooperate fully with the liable State in
carrying out its activities and functions with regard to such
applications.
22. Paragraph (b) of Sec. 617.34 is revised to read as follows:
Sec. 617.34 Amount.
* * * * *
(b) Limit. The total job search allowances paid to an individual
under a certification may not exceed $800, regardless of the number of
job searches undertaken by the individual. The amounts otherwise
payable under paragraph (a) of this section shall be reduced by any
amounts the individual is entitled to be paid or reimbursed for such
expenses from any other source.
23. Section 617.42(a)(6) is revised to read as follows:
Sec. 617.42 Eligibility.
(a) Conditions. * * *
(6) A determination by the State agency that the individual has no
reasonable expectation of securing suitable employment in the commuting
area, and has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer
of such suitable employment, outside the commuting area and in the area
of intended relocation. For the purposes of this section, the term
``suitable employment'' means suitable work as defined in
Sec. 617.3(kk) (1) and (2), whichever is applicable to the individual;
and
* * * * *
24. Section 617.44 is revised to read as follows:
Sec. 617.44 Findings required.
(a) Findings by liable State. Before final payment of a relocation
allowance may be approved, the following findings shall be made by the
liable State:
(1) The individual meets the eligibility requirements for a
relocation allowance specified in Sec. 617.42(a) (1) to (6) and
Sec. 617.42(b).
(2) The application for a relocation allowance was submitted by the
individual within the time limits specified in Sec. 617.41(c);
(3) The individual began and completed the relocation within the
limitations specified in Sec. 617.42(a)(7) and Sec. 617.43; and
(4) The liable State has verified (directly or through the agent
State) with the employer, and finds, that the individual has obtained
suitable employment affording a reasonable expectation of employment of
long-term duration, or a bona fide offer of such suitable employment,
in the area of intended relocation, in accordance with
Sec. 617.42(a)(6).
(b) Agent State. (1) When an individual relocates in a State other
than the liable State, the State agency of the State in which the
individual relocates shall serve as the agent State and be responsible
for:
(i) Assisting the individual in relocating to the State, and in
filing an application for a relocation allowance with the liable State,
and
(ii) Assisting the liable State by furnishing to it any information
required for the liable State's determination on the claim.
(2) The agent State shall cooperate with the liable State in
carrying out its activities and functions with regard to such
applications. When requested by the liable State, the agent State shall
verify with the employer and report to the liable State whether the
individual has obtained suitable employment affording a reasonable
expectation of employment of long-term duration, or a bona fide offer
of such suitable employment.
25. Section 617.49 is amended by adding a new paragraph (e) to read
as follows:
Sec. 617.49 Job search program.
* * * * *
(e) Termination of requirement. The job search program requirement
set out in this section shall not be a condition of entitlement to TRA
for any week which begins after November 20, 1988.
26. Paragraphs (a) and (d) of Sec. 617.50 are revised to read as
follows:
Sec. 617.50 Determinations of entitlement; notices to individuals.
(a) Determinations of initial applications for TRA or other TAA.
The State Agency whose State law is the applicable State law under
Sec. 617.16 shall upon the filing of an initial application for TRA or
other TAA promptly determine the individual's entitlement to such TRA
or other TAA under this part 617, and may accept for such purposes
information and findings supplied by another State agency under this
part 617.
* * * * *
(d) Use of State law. In making determinations or redeterminations
under this section, or in reviewing such determinations or
redeterminations under Sec. 617.51, a State agency shall apply the
regulations in this part 617. As to matters committed by this part 617
to the applicable State law, a State agency, a hearing officer, or a
State court shall apply the applicable State law and regulations
thereunder, including procedural requirements of such State law or
regulations, except so far as such State law or regulations are
inconsistent with this part 617 or the purpose of this part 617:
Provided, that, no provision of State law or regulations on good cause
for waiver of any time limit, or for late filing of any claim, shall
apply to any time limitation referred to or specified in this part 617,
unless such State law or regulation is made applicable by a specific
provision of this part 617.
27. Section 617.55 is revised to read as follows:
Sec. 617.55 Overpayments; penalties for fraud.
(a) Determination and repayment. (1) If a State agency or a court
of competent jurisdiction determines that any person or individual has
received any payment under this part 617 to which the person or
individual was not entitled, including a payment referred to in
paragraph (b) or paragraph (c) of this section, such person or
individual shall be liable to repay such amount to the State agency,
and the State agency shall recover any such overpayment in accordance
with the provisions of this part 617; except that the State agency may
waive the recovery of any such overpayment if the State agency
determines, in accordance with the guidelines prescribed in paragraph
(a)(2) of this section, that:
(i) The payment was made without fault on the part of such person
or individual; and
(ii) Requiring such repayment would be contrary to equity and good
conscience.
(2)(i)(A) In determining whether fault exists for purposes of
paragraph (a)(1)(i) of this section, the following factors shall be
considered:
(1) Whether a material statement or representation was made by the
person or individual in connection with the application for TAA that
resulted in the overpayment, and whether the person or individual knew
or should have known that the statement or representation was
inaccurate.
(2) Whether the person or individual failed or caused another to
fail to disclose a material fact, in connection with an application for
TAA that resulted in the overpayment, and whether the person or
individual knew or should have known that the fact was material.
(3) Whether the person or individual knew or could have been
expected to know, that the person or individual was not entitled to the
TAA payment.
(4) Whether, for any other reason, the overpayment resulted
directly or indirectly, and partially or totally, from any act or
omission of the person or individual or of which the person or
individual had knowledge, and which was erroneous or inaccurate or
otherwise wrong.
(5) Whether there has been a determination of fraud under paragraph
(b) of this section or section 243 of the Act.
(B) An affirmative finding on any one of the factors in paragraphs
(a)(2)(i)(A) of this section precludes waiver of overpayment recovery.
(ii)(A) In determining whether equity and good conscience exists
for purposes of paragraph (a)(1)(ii) of this section, the following
factors shall be considered:
(1) Whether the overpayment was the result of a decision on appeal,
whether the State agency had given notice to the person or individual
that the case has been appealed and that the person or individual may
be required to repay the overpayment in the event of a reversal on
appeal, and whether recovery of the overpayment will not cause
extraordinary and lasting financial hardship to the person or
individual.
(2) Whether recovery of the overpayment will not cause
extraordinary financial hardship to the person or individual, and there
has been no affirmative finding under paragraph (a)(2)(ii)(A) of this
section with respect to such person or individual and such overpayment.
(B) An affirmative finding on either of the foregoing factors in
paragraphs (a)(2)(ii)(A) of this section precludes waiver of
overpayment recovery.
(C)(1) For the purpose of paragraph (a)(2)(ii) of this section, an
extraordinary financial hardship shall exist if recovery of the
overpayment would result directly in the person's or individual's loss
of or inability to obtain minimal necessities of food, medicine, and
shelter for a substantial period of time; and an extraordinary and
lasting financial hardship shall be extraordinary as described above
and may be expected to endure for the foreseeable future.
(2) In applying this test in the case of attempted recovery by
repayment, a substantial period of time shall be 30 days, and the
foreseeable future shall be at least three months. In applying this
test in the case of proposed recoupment from other benefits, a
substantial period of time and the foreseeable future shall be the
longest potential period of benefit entitlement as seen at the time of
the request for a waiver determination. In making these determinations,
the State agency shall take into account all potential income of the
person or individual and the person's or individual's firm,
organization, or family and all cash resources available or potentially
available to the person or individual and the person's or individual's
firm, organization, or family in the time period being considered.
(3) Determinations granting or denying waivers of overpayments
shall be made only on request for a waiver determination. Such request
shall be made on a form which shall be furnished to the person or
individual by the State agency. Notices of determination of
overpayments shall include an accurate description of the waiver
provisions of paragraph (a) of this section, if the State agency has
elected to allow waivers of TAA overpayments.
(4) Each State shall have the option to establish a policy as to
whether the waiver provisions of this section shall be applied to TAA
overpayments. A State's decision on its policy shall not be controlled
by whether it waives UI overpayments, but the State's decision shall be
published for the information of the public and the Department.
(5)(i) Unless an overpayment is otherwise recovered, or is waived
under paragraph (a) of this section, the State agency shall recover the
overpayment by deduction from any sums payable to such person or
individual under:
(A) This part 617;
(B) Any Federal unemployment compensation law administered by the
State agency; or
(C) Any other Federal law administered by the State agency which
provides for the payment of unemployment assistance or an allowance
with respect to unemployment.
(ii) In addition, a State agency may recover the overpayment from
unemployment insurance payable to such person or individual under the
State law.
(b) Fraud. If a State agency or a court of competent jurisdiction
finds that any person or individual:
(1) Knowingly has made, or caused another to make, a false
statement or representation of a material fact; or
(2) Knowingly has failed, or caused another to fail, to disclose a
material fact; and as a result of such false statement or
representation, or of such nondisclosure, such individual has received
any payment under this part 617 to which the person or individual was
not entitled, such person or individual shall, in addition to any other
penalty provided by law, be ineligible for any further payments under
this part 617.
(c) Training, job search and relocation allowances. (1) If an
individual fails, with good cause, to complete training, a job search,
or a relocation, any payment or portion of a payment made under this
part 617 to such individual or any person that is not properly and
necessarily expended in attempting to complete such training, job
search, or relocation, shall constitute an overpayment.
(2) If an individual fails, without good cause, to complete
training, a job search, or a relocation, any payment made under this
part 617 to such individual or any person shall constitute an
overpayment.
(3) Such overpayment shall be recovered or waived as provided in
paragraph (a) of this section.
(d) Final determination. Except for overpayments determined by a
court of competent jurisdiction, no repayment may be required, and no
deduction may be made, under this section until a determination under
paragraph (a) of this section by the State agency has been made, notice
of the determination and an opportunity for a fair hearing thereon has
been given to the person or individual concerned, and the determination
has become final.
(e) Deposit. Any amount recovered by a State agency under this
section shall be deposited into the Federal fund or account from which
payment was made.
(f) Procedural requirements. (1) The provisions of paragraphs (c),
(e), and (g) of Sec. 617.50 shall apply to determinations and
redeterminations made pursuant to this section.
(2) The provisions of Sec. 617.51 shall apply to determinations and
redeterminations made pursuant to this section.
(g) Fraud detection and prevention. State procedures for the
detection and prevention of fraudulent overpayments of TAA shall be, as
a minimum, commensurate with the procedures adopted by the State with
respect to State unemployment compensation and consistent with the
Secretary's ``Standard for Fraud and Overpayment Detection,''
Employment Security Manual, Part V, sections 7510-7515 (Appendix B of
this Part).
(h) Debts due the United States or Others. (1) Notwithstanding any
provision of this part 617, TAA payable to a person or an individual
under this part 617 shall be applied by the State agency for the
recovery by offset of any debt due the United States from the person or
individual.
(2) TAA shall not be applied or used by the State agency in any
manner for the payment of any debt of any person or individual to any
State or any other entity or person, except that TRA payable to an
individual shall be payable to someone other than the individual if
required by State law and Federal law to satisfy the individual's
obligation for child support or alimony.
(i) Definition of person. For purposes of this section, a person
includes any employer or other entity or organization as well as the
officers and officials thereof who may bear individual responsibility.
28. Section 617.59 is amended by adding a new paragraph (h) and a
new paragraph (i) to read as follows:
Sec. 617.59 Agreements with State agencies.
* * * * *
(h) Program coordination. State agencies providing employment
services, training and supplemental assistance under Subpart C of this
part shall, in accordance with their Agreements under this section,
coordinate such services and payments with programs and services
provided by State Service Delivery Areas, Private Industry Councils,
and substate grantees under the Job Training Partnership Act and with
the State agency administering the State law.
(i) Administration absent State Agreement. In any State in which no
Agreement under this section is in force, the Secretary shall
administer the Act and this part 617 and pay TAA hereunder through
appropriate arrangements made by the Department, and for this purpose
the Secretary or the Department shall be substituted for the State or
cooperating State agency wherever appropriate in this part 617. Such
arrangements shall include the requirement that TAA be administered in
accordance with this part 617, and the provisions of the applicable
State law except to the extent that such State law is inconsistent with
any provision of this part 617 or section 303 of the Social Security
Act (42 U.S.C. 503) or section 3304(a) of the Internal Revenue Code of
1986 (26 U.S.C. 3304(a)), and shall also include provision for a fair
hearing for any individual whose application for TAA is denied. A final
determination under paragraph (i) of this section as to entitlement to
TAA shall be subject to review by the courts in the same manner and to
the same extent as is provided by section 205(g) of the Social Security
Act (42 U.S.C. 405(g)).
29. Section 617.60 is added and reserved to read as follows:
Sec. 617.60 Administrative requirements. [Reserved]
30. Section 617.64 is revised to read as follows:
Sec. 617.64 Termination of TAA program benefits.
The following rules are applicable to the termination of TAA
benefits under the Act:
(a) No application for TRA, or transportation or subsistence
payment while in training approved under subpart C of this part 617,
shall be approved, and no payment of TRA or payment for transportation
or subsistence occurring on or before the termination date shall be
made after the termination date specified in the Act, unless the claim
for TRA or an invoice for transportation and subsistence is presented
to the State agency and a final determination is made on the amount
payable on or before the termination date in the Act.
(b) No payment of job search or relocation allowances shall be made
after the termination date specified in the Act, unless an application
for such allowances was approved, such job search or relocation was
completed, and a final determination made on the amount payable for
such benefits by the State agency on or before the termination date in
the Act.
(c) No training under subpart C of this part shall be approved
unless a determination regarding the approval of such training was made
on or before the termination date in the Act, and such training
commenced on or before such termination date. Consistent with the
requirements of section 236(a)(1) of the Act, and the termination
provisions of paragraph (c) of this section, a final determination must
be made on the invoice for the training costs by the State agency on or
before the termination date specified in the Act to cover tuition
related expenses. Determinations on tuition bills shall be limited to
the training term, quarter, semester or other period beginning on or
before the termination date in the Act. The training period should be
in accord with normal billing practices of the training provider and/or
State agency approval practices.
31. Section 617.67 is added to read as follows:
Sec. 617.67 Transition guidelines for the 1988 Amendments.
The provisions of part 3 of subtitle D of title I of the Omnibus
Trade and Competitiveness Act of 1988 (the ``OTCA''), Public Law 100-
418, approved on August 23, 1988, made material changes in the TAA
Program for workers that are reflected in the amended regulations
published with this new section on transition guidelines for the 1988
Amendments. States and cooperating State agencies shall be guided by
the following paragraphs of this section in the transition to the TAA
Program as modified by the 1988 Amendments and reflected in the
preceding provisions of this part 617, as well as in the interim
operating instructions issued by the Department which are superseded by
these regulations. The operating instructions in GAL 15-90, and the
Changes thereto, shall continue in effect as guidance on the proper
application of the 1988 Amendments except as modified in these final
regulations. (GAL 15-90 is available from the Office of Trade
Adjustment Assistance, U.S. Department of Labor, 200 Constitution Ave.,
NW., room C-4318, Washington, DC 20210.)
(a) Oil and gas workers--prospective. Workers in firms or
appropriate subdivisions of firms engaged in exploration or drilling
for oil or natural gas are newly covered under the TAA Program by an
amendment to section 222 of the Trade Act of 1974. This is a permanent
change in the Act having prospective effect, and became effective on
August 23, 1988. Oil and gas workers covered by a certification issued
pursuant to section 223 of the Act and the regulations at 29 CFR part
90 shall be entitled to basic and additional TRA and other TAA Program
benefits on precisely the same terms and conditions as apply to other
workers covered by other certifications and which are specifically set
forth in this part 617.
(b) Oil and gas workers--retroactive. Oil and gas workers referred
to in paragraph (a) of this section, who were separated from adversely
affected employment after September 30, 1985, are covered retroactively
under section 1421(a)(1)(B) of the OTCA, if they are covered by a
certification issued pursuant to section 223 of the Act which is in
response to a petition filed in the Office of Trade Adjustment
Assistance on or before November 18, 1988. Administration of TAA
Program benefits to these workers shall be on precisely the same terms
and conditions as apply to other workers covered by other
certifications, except that the limitations of the impact date
provision of section 223(b) and the 60-day preclusion in section 231(a)
may not be applied to these workers.
(c) Benefit information to workers. (1) An amendment to section 225
of the Act requires individualized and published notices to workers
covered by certifications issued pursuant to section 223 of the Act.
This amendment became effective as a requirement on September 22, 1988,
and is applicable to all certifications issued on and after that date.
Individualized notices and published notices shall contain the
information specifically set forth in this part 617.
(2) Section 239(f) of the Act requires cooperating State agencies
to furnish four discrete items of information and advice to individuals
about TAA Program benefits, commencing with such advice and information
to every individual who applies for unemployment insurance under each
State's unemployment compensation law. See Sec. 617.4(e). This
amendment became effective on August 23, 1988. Information and advice
required by section 239(f) shall be provided in accordance with this
part 617.
(d) Training and eligibility requirements for TRA. Effective on
November 21, 1988, in general, enrollment and participation in, or
completion of, a training program approved under subpart C is required
as a condition of entitlement to basic TRA. Amendments to sections
231(a)(5), 231(b), and 231(c) of the Act incorporate this new
requirement, replacing the job search program requirement which remains
in effect through November 20, 1988. Continuation of the job search
program requirement through November 20, 1988, and installation of the
training program requirement on and after November 21, 1988, is
required of all applicants for basic TRA.
(e) Eligibility period for basic TRA. (1) Effective on August 23,
1988, and with respect to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) issued on or after that
date, the eligibility period for basic TRA is changed from the prior
law. Prior to the OTCA amendments, section 233(a)(2) provided that the
eligibility period for an individual was a fixed 104-week period that
immediately followed the week with respect to which the individual
first exhausted all rights to regular benefits after the individual's
first qualifying separation. Under section 233(a)(2) the new
eligibility period is movable, and is the 104-week period that
immediately follows the week in which the worker's most recent total
qualifying separation occurs under the same, single certification.
Under the effective date provisions of the OTCA, section 233(a)(2)
applies to all decisions (i.e., determinations, redeterminations, and
decisions on appeals) issued on and after August 23, 1988. Further, the
law to be applied in making any such decision is the law as in effect
on the date such a decision is made. These interpretative rules apply
in all cases, regardless of whether the total qualifying separation
occurred before, on, or after August 23, 1988, except as noted in
paragraph (e)(3) of this section.
(2) The major significance of the change in section 233(a)(2) is
that, effective for all decisions (i.e., determinations,
redeterminations, and decisions on appeals) issued on or after August
23, 1988, it applies to the ``most recent'' total qualifying
separation. This means that, after the first qualifying separation
before August 23, 1988, or the first total qualifying separation on and
after August 23, 1988, with each subsequent total qualifying separation
of an individual under the same certification the individual's
eligibility period must be redetermined as the 104-week period that
immediately follows the week in which such subsequent separation
occurred.
(3) Section 1430(g) of the OTCA requires that the new eligibility
period not be applied with respect to any total qualifying separation
occurring before August 23, 1988, if as a result of applying section
233(a)(2) the individual would have an eligibility period with an
earlier expiration date than the expiration date of the eligibility
period established under the prior law and based on a first qualifying
separation which occurred under the same certification before August
23, 1988. Therefore, for decisions (i.e., determinations,
redeterminations, and decisions on appeals) issued on or after August
23, 1988, for a worker who had a first qualifying separation under the
same certification before August 23, 1988, it must be determined what
the individual's eligibility period is based upon the prior law, and,
if the individual also had a subsequent total qualifying separation,
what the individual's eligibility period is based on the amended law.
Only if the subsequent total qualifying separation occurred before
August 23, 1988, and the expiration date of the new eligibility period
ends on the same date or a later date than the expiration date of the
old eligibility period may the new eligibility period be applied to the
individual, and in that event it must be applied; if the new
eligibility period would end on a date earlier than the ending date of
the eligibility period based on the worker's first qualifying
separation, section 1430(g) operates to preclude the application of
amended section 233(a)(2).
(4) Computation of the weekly and maximum amounts of basic TRA do
not change under the 1988 Amendments in the OTCA. They must continue to
be based upon the first benefit period which is related to the worker's
first total or partial separation under the same certification
regardless of whether such first separation occurs before, on, or after
August 23, 1988. Upon the occurrence of a second or subsequent
separation under the same certification which is a total qualifying
separation under this part 617, the individual's eligibility period
will be 104 weeks after the week of such second or subsequent (total
qualifying) separation, but no change will be made in the weekly or
maximum amounts of basic TRA as computed in relation to the first
separation. Therefore, for any decision (i.e., determination,
redetermination, or decision on appeal) issued on or after August 23,
1988, whenever an individual files a new TRA claim it will be necessary
to determine whether the individual's most recent separation was a
total qualifying separation, and, if so, whether the individual had a
prior partial or total separation within the certification period of
the same certification which was a first qualifying separation. If such
most recent (total qualifying) separation occurred before August 23,
1988, and was not the individual's first qualifying separation, then:
(i) The eligibility period will be the 104 weeks beginning with the
week following the week in which the most recent total qualifying
separation occurred or 104 weeks after the first exhaustion of regular
UI following the first qualifying separation, whichever is longer, and
(ii) The individual's weekly amount of basic TRA, as computed under
Sec. 617.13, and the individual's maximum amount of basic TRA, as
computed under Sec. 617.14, are established or remain fixed as
determined with respect to the individual's first benefit period
following the first separation which is within the certification period
of the certification covering the individual.
(f) Eligibility period for additional TRA. One technical and one
conforming change are made by the OTCA in section 233(a)(3) of the Act,
but have no effect on the 26-week eligibility period for additional TRA
as the statute has been interpreted and applied in the past. Therefore,
the 26-week eligibility period begins with the first week of training
if the training begins after exhaustion of basic TRA. Further, if the
training begins before approval is obtained under this part 617, the
26-week eligibility period begins with the week in which the
determination of approval is issued, if there is any scheduled training
session in that week after the date of the determination.
(g) Eligibility for TRA during breaks in training. (1) Paragraph
(f) of section 233 of the Act, added by the OTCA, provides for the
payment, under specified conditions, of both basic and additional TRA
during scheduled breaks in a training program, provided the conditions
for such payments are met as expressed in this part 617. By making this
provision applicable to basic TRA as well as additional TRA, paragraph
(f) of section 233 of the Act changes the prior law for both.
Previously, basic TRA was payable during training breaks, but
additional TRA was payable solely with respect to weeks of training.
Under new section 233(f), both basic and additional TRA are payable
during training breaks, but only if the break does not exceed 14 days.
Now, as under the prior law, weeks when TRA is not payable will still
count against the eligibility periods for both basic and additional
TRA, and in the case of additional TRA it will also count against the
number of weeks payable.
(2) Paragraph (f) of section 233 of the Act is effective with
regard to all decisions (i.e., all determinations, redeterminations,
and decisions on appeals) made on or after August 23, 1988, regardless
of when the training was approved under section 236 of the Trade Act,
or whether the training was approved or is approvable under section 236
as amended by the 1988 Amendments, or when the break in training began
or ended. In making any decision involving paragraph (f) of section 233
of the Act, the law to be applied is the law as in effect on the date
the decision is made.
(h) Retroactive eligibility for TRA. (1) Effective on August 23,
1988, section 1425(b) of the OTCA provides for an open-ended waiver of
the time limit in section 233(a)(2) on the eligibility period for basic
TRA, and the 210-day time limit in section 233(b) on filing a bona fide
application for training in order to qualify for additional TRA. This
waiver provision applies solely to workers who experienced a total
qualifying separation in the period which began on August 13, 1981 and
ended on April 7, 1986. Other conditions must be met that are specified
in section 1425(b) and in this part 617.
(2) Altogether, nine conditions must be met for workers to obtain
TRA payments under this special provision. (See Sec. 617.11(a)(3).)
Further, this special provision applies solely to weeks which begin
after August 23, 1988; no retroactive payments may be made under this
special provision. Finally, only the two specific time limitations are
waived, and all other requirements of the prior and amended law apply,
including the first separation rule (relating to computation of the
weekly and maximum amounts of basic TRA payable), the 26-week
eligibility period for additional TRA, and the break provision of
section 233(f).
(i) Training for adversely affected workers. Extensive amendments
to section 236 are made in the OTCA which, except for some technical
and conforming changes that take effect on November 21, 1988, all
became effective on August 23, 1988. These changes must be effectuated
in accordance with this part 617.
(j) Agreements with States. Section 239 also was amended by the
OTCA, to require new terms and conditions in the section 239
agreements. This requires new agreements to be executed between the
States and the Secretary of Labor, and gives new emphasis to the
contractual nature of the obligations entered into by the States to
administer the TAA Program in strict accordance with the Act and the
regulations and operating instructions issued by the Department.
(k) Other. Other matters covered by the OTCA amendments, as well as
the matters discussed in the preceding paragraphs of this section,
shall, to the extent that the States may be involved in their
implementation, be effectuated in strict accordance with the Act and
the regulations and operating instructions issued by the Department,
and as of the respective effective dates of the various provisions of
the OTCA.
32. By redesignating Appendixes A and B as Appendixes B and C.
Sec. 617.50 [Amended]
33. By amending Sec. 617.50(g) by removing ``(Appendix A of this
part)'' and adding in place ``(Appendix B of this Part)''.
Sec. 617.55 [Amended]
34. By amending Sec. 617.55(g) by removing ``(Appendix B of this
part)'' and adding in place ``(Appendix C of this Part)''.
Sec. 617.10 [Amended]
35. By amending Sec. 617.10(c) by removing all words after
``sections 5000 et seq.'' and adding in place ``(Appendix A of this
Part)''.
36. By adding a new appendix A to read as follows:
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
EMPLOYMENT SECURITY MANUAL (Part V, Sections 5000-5004)
5000-5099 Claims Filing
5000 Standard for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security
Act require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax and section
303(a)(5) of the Social Security Act require that a State law
provide for:
``Expenditure of all money withdrawn from an unemployment fund
of such State, in the payment of unemployment compensation * * *''
Section 303(a)(1) of the Social Security Act requires that the
State law provide for:
``Such methods of administration * * * as are found by the
Secretary to be reasonably calculated to insure full payment of
unemployment compensation when due.''
B. Secretary's interpretation of federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security
Act to require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims
offices administered by the State employment security agency if such
agency provides for such coordination in the operations of its
public employment offices and claims offices as will insure (a) the
payment of benefits only to individuals who are unemployed and who
are able to work and available for work, and (b) that individuals
claiming unemployment compensation (claimants) are afforded such
placement and other employment services as are necessary and
appropriate to return them to suitable work as soon as possible.
2. The Secretary interprets all the above sections to require
that a State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and
who are able to work and available for work, and (2) that claimants
are afforded such placement and other employment services as are
necessary and appropriate to facilitate their return to suitable
work as soon as possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such States law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment
1. Individuals claiming unemployment compensation for total or
part-total unemployment are required to file a claim weekly or
biweekly, in person or by mail, at a public employment office or a
claims office (these terms include offices at itinerant points) as
set forth below.
2. Except as provided in paragraph 3, a claimant is required to
file in person.
a. His new claim with respect to a benefit year, or his
continued claim for a waiting week or for his first compensable week
of unemployment in such year; and
b. Any other claim, when requested to do so by the claims
personnel at the office at which he files his claim(s) because
questions about his right to benefits are raised by circumstances
such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s)
indicate that he may be unable to work or that there may be undue
restrictions on his availability for work or that his search for
work may be inadequate or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of
understanding of the applicable requirements; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to
file claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for
the resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any
of the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in
person;
b. Conditions make it impracticable for the agency to take
claims in person;
c. He has returned to full-time work on or before the scheduled
date for his filing a claim, unless the agency makes provision for
in-person filing at a time and place that does not interfere with
his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or
part-total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning
less than the earnings limit provided in the State law, shall not be
required to file a claim for such week or other claim period earlier
than 2 weeks from the date that wages are paid for such claim period
or, if a low earnings report is required by the State law, from the
date the employer furnished such report to the individual. State
agencies may permit claims for partial unemployment to be filed
either in person or by mail, except that in the circumstances set
forth in section A 3, filing by mail must be permitted, and in the
circumstances set forth in section A 2 b, filing in person may be
required.
5002 Requirement for Job Finding, Placement, and Other Employment
Services Designed to Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in
finding suitable work and at their discretion determine when more
complete placement and employment services are necessary and
appropriate for a claimant; and if they determine more complete
services are necessary and appropriate, the claims personnel are to
refer him to employment service personnel in the public employment
office in which he has been filing claim(s), or, if he has been
filing in a claims office, in the public employment office most
accessible to him; or
2. All placement and employment services are required to be
afforded to each claimant by employment service personnel in the
public employment office most accessible to him in which case the
claims personnel in the office in which the claimant files his claim
are to refer him to the employment service personnel when placement
or other employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other
employment services as are necessary and appropriate to facilitate
their return to suitable work as soon as possible.
In some circumstances, no such services or only limited services
may be required. For example, if a claimant is on a short-term
temporary layoff with a fixed return date, the only service
necessary and appropriate to be given to him during the period of
the layoff is a referral to suitable temporary work if such work is
being performed in the labor market area.
Similarly, claimants whose unemployment is caused by a labor
dispute presumably will return to work with their employer as soon
as the labor dispute is settled. They generally do not need
services, nor do individuals in occupations where placement
customarily is made by other nonfee charging placement facilities
such as unions and professional associations.
Claimants who fall within the classes which ordinarily would
require limited services or no services shall, if they request
placement and employment services, be afforded such services as are
necessary and appropriate for them to obtain suitable work or to
achieve their reasonable employment goals.
On the other hand, a claimant who is permanently separated from
his job is likely to require some services. He may need only some
direction in how to get a job; he may need placement services if he
is in an occupation for which there is some demand in the labor
market area; if his occupation is outdated, he may require
counseling and referral to a suitable training course. The extent
and character of the services to be given any particular claimant
may change with the length of his unemployment and depend not only
on his own circumstances and conditions, but also on the condition
of the labor market in the area.
D. Claimants are required to report to employment service
personnel, as directed, but such personnel and the claims personnel
required to so arrange and coordinate the contacts required of a
claimant as not to place an unreasonable burden on him or
unreasonably limit his opportunity to establish his rights to
compensation. As a general rule, a claimant is not required to
contact in person claims personnel or employment service personnel
more frequently than once a week, unless he is directed to report
more frequently for a specific service such as referral to a job or
a training course or counseling which cannot be completed in one
visit.
E. Employment service personnel are required to report promptly
to claims personnel in the office in which the claimant files his
claim(s): (1) his failure to apply for or accept work to which he
was referred by such personnel or when known, by any other nonfee-
charging placement facility such as a union or a professional
association; and (2) any information which becomes available to it
that may have a bearing on the claimant's ability to work or
availability for work, or on the suitability of work to which he was
referred or which was offered to him.
5004 Evaluation of Alternative State Provisions
If the State law provisions do not conform to the ``suggested
State law requirements'' set forth in sections 5001 and 5002, but
the State law contains alternative provisions, the Manpower
Administrator, in collaboration with the State agency, will study
the actual or anticipated affect of the alternative provisions. If
the Manpower Administrator concludes that the alternative provisions
satisfy the requirements of the Federal law as construed by the
Secretary (see section 5000 B) he will so notify the State agency.
If he does not so conclude, he will submit the matter to the
Secretary. If the Secretary concludes that the alternative
provisions satisfy such requirements, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy such requirements, the
State agency will be advised that unless the State law provisions
are appropriately revised, a notice of hearing will be issued as
required by the Code of Federal Regulations, title 20, section
601.3.
[FR Doc. 94-16 Filed 1-5-94; 8:45 am]
BILLING CODE 4510-30-P
Complete official Federal Register PDF
FR Doc. 94-133 Establishment of Class D Airspace, Barking Sands, Kauai, HI
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Page 662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-133]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 93-AWP-17]
Establishment of Class D Airspace, Barking Sands, Kauai, HI
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; correction.
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SUMMARY: This document contains corrections to the final rule published
on December 10, 1993. This final rule established Class D airspace at
Barking Sands Pacific Missile Range Facility (PMRF), Kekaha, Kauai,
Hawaii, effective January 10, 1994. This correction to the final rule
will establish the Class D airspace at Barking Sands PMRF effective on
March 3, 1994.
EFFECTIVE DATE: Effective January 6, 1994, the effective date of the
final rule at 58 FR 64880 is corrected to be 0901 U.T.C., March 3,
1994.
FOR FURTHER INFORMATION CONTACT: Gene Enstad, Airspace Specialist,
System Management Branch, AWP-530, Air Traffic Division, Western-
Pacific Region, Federal Aviation Administration, 15000 Aviation
Boulevard, Lawndale, California 90261: telephone (310) 297-0010.
SUPPLEMENTARY INFORMATION: On December 10, 1993, the Federal Aviation
Administration (FAA) published a final rule that established Class D
airspace at Barking Sands Pacific Missile Range Facility, Kekaha,
Kauai, Hawaii (58 FR 64880). The effective date was established as 0901
U.T.C., January 10, 1994. That date was incorrect. The new effective
date is now 0901 U.T.C., March 3, 1994.
Correction of Final Rule Effective Date
Accordingly, pursuant to the authority delegated to me, the
publication on December 10, 1993 (58 FR 64880) is corrected as follows:
On page 64880, in the second column, in EFFECTIVE DATE, by removing
``0901 U.T.C., January 10, 1994'' and inserting in its place ``0901
U.T.C., March 3, 1994''.
Issued in Lawndale on December 21, 1993.
Harvey R. Riebel,
Manager, System Management Branch, AWP-530.
[FR Doc. 94-133 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 93-32118 Foreign Fishing; Pacific Coast Groundfish Fishery
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 685-701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32118]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 611 and 663
[Docket No. 931249-3349; ID. # 121693B]
Foreign Fishing; Pacific Coast Groundfish Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic
Atmospheric Administration (NOAA), Commerce.
ACTION: 1994 groundfish fishery specifications and management measures;
request for comments.
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SUMMARY: NMFS announces the 1994 fishery specifications and management
measures for groundfish taken in the U.S. exclusive economic zone and
state waters off the coasts of Washington, Oregon, and California as
authorized by the Pacific Coast Groundfish Fishery Management Plan
(FMP). The specifications include the level of the acceptable
biological catch (ABC) and harvest guidelines including the
distribution between domestic and foreign fishing operations. The
management measures for 1994 are designed to keep landings within the
harvest guidelines, for those species for which there are harvest
guidelines and to achieve the goals and objectives of the FMP and its
implementing regulations. The intended effect of these actions is to
establish allowable harvest levels of Pacific coast groundfish and to
implement management measures designed to achieve but not exceed those
harvest levels while extending fishing and processing opportunities as
long as possible during the year.
DATES: Effective January 1, 1994, until modified, superseded, or
rescinded. Comments will be accepted until February 7, 1994.
ADDRESSES: Comments on these specifications should be sent to Mr. J.
Gary Smith, Acting Director, Northwest Region, National Marine
Fisheries Service, 7600 Sand Point Way NE., BIN C15700, Bldg. 1,
Seattle, WA 98115-0070; or Dr. Gary Matlock, Acting Director, Southwest
Region, National Marine Fisheries Service, 501 West Ocean Blvd., suite
4200, Long Beach, California 90802-4213. Information relevant to these
specifications and management measures has been compiled in aggregate
form and is available for public review during business hours at the
office of the Director, Northwest Region NMFS (Regional Director), or
may be obtained from the Pacific Fishery Management Council (Council),
by writing Pacific Fishery Management Council, Metro Center, suite 420,
2000 SW. First Avenue, Portland, OR 97201.
FOR FURTHER INFORMATION CONTACT:
William L. Robinson (Northwest Region, NMFS) 206-526-6140; or Rodney R.
McInnis (Southwest Region, NMFS) 310-980-4040.
SUPPLEMENTARY INFORMATION: The FMP requires that fishery specifications
for groundfish be evaluated each calendar year, that harvest guidelines
or quotas be specified for species or species groups in need of
additional protection, and that management measures designed to achieve
the harvest guidelines or quotas be published in the Federal Register
and implemented by January 1, the beginning of the next fishing year.
These final fishery specifications and management measures have
been recommended by the Council and approved by the Secretary of
Commerce (Secretary) for implementation on January 1, 1994. The ABCs
and harvest guidelines announced herein are the basis for the
management measures recommended for 1994, and may be modified during
the year as provided in the FMP. Unless otherwise specified, all of the
management measures announced in this notice are considered
``routine,'' and have been so designated at 50 CFR 663.23. The
exception is trip limits in the open-access fisheries for groundfish
caught incidentally in nongroundfish gear (such as trawl gear used to
fish for pink shrimp, spot or ridgeback prawns, California halibut, or
sea cucumbers). These trip limits will be designated ``routine'' in a
separate Federal Register notice so that they may be adjusted as
necessary.
The FMP provides for announcement of the final fishery
specifications in the Federal Register after consideration at two
Council meetings. The process for adopting ABCs and harvest guidelines
for 1994 was initiated early in 1993 so that preliminary specifications
could be adopted by the Council at its September 1993 meeting. New
stock assessments, the basis for changes to the 1993 ABCs, were
distributed to the public prior to the September Council meeting. The
Council's scientific and industry advisory committees and the public
reviewed and commented on the documents. After receiving comments, the
Council adopted preliminary ABCs and harvest guidelines at its
September meeting, which were subsequently made available to the
public. Comments were requested before and at the November Council
meeting. The final recommendations of harvest specifications and
management measures designed to achieve those specifications, adopted
at the November Council meeting, were forwarded to the Secretary for
implementation by January 1, 1994.
I. Final Specifications: ABCs and Harvest Guidelines, or;
Apportionments to Foreign and Joint Venture Fisheries; Open-Access and
Limited-Entry Allocations
The fishery specifications include ABCs, the designation of harvest
guidelines or quotas for species that need individual management, the
apportionment of the harvest guidelines or quotas between domestic and
foreign fisheries, and subsequent allocation between the open-access
and limited-entry segments of the fishery.
The final 1994 specifications (except for DAP, DAH, JVP, and TALFF)
are listed in Table 1, followed by a discussion of each specification
that differs from 1993 levels. As in the past, these specifications
include fish caught in state ocean waters (0-3 nautical miles offshore)
as well as fish caught in the exclusive economic zone (EEZ) (3-200
nautical miles offshore).
BILLING CODE 3510-22-M
TR06JA94.011
TR06JA94.012
BILLING CODE 3510-22-C
Footnotes Are for Table 1
___________
aThe acceptable biological catch (ABC) for sablefish, widow
rockfish, and bocaccio is calculated after regulation-induced
discard has been deducted, and therefor applies to landed catch
(including observed incidental catch in the whiting fishery).
bU.S. portion.
cThese species are not common nor important in the areas
footnoted. Accordingly, for convenience, Pacific cod is included in
the ``other fish'' category for the areas footnoted, and rockfish
species are included in the ``remaining rockfish'' category for the
areas footnoted only.
dCoastwide ABC including Canadian waters. The U.S. harvest
guideline is 80 percent of the U.S./Canada ABC.
eDover sole, thornyheads, and trawl-caught sablefish are
managed together as the ``DTS complex'' (formerly called the
deepwater complex). There is no harvest guideline for the DTS
complex.
fAll subareas except Conception, which does not have a harvest
guideline. The sablefish trawl and nontrawl allocations also are
harvest guidelines. (See the section on trawl and nontrawl
sablefish management for 1994).
gOpen access and limited entry allocation percentages for
sablefish north of the Conception subarea are applied to only to
the nontreaty fishery which is 6,700 mt in 1994. (7,000 mt harvest
guideline minus 300 mt for the treaty Indian fishery).
hOnly jack mackerel caught north of 39 deg.00' N. latitude are
governed by the FMP. The ABC and harvest guideline also include
area beyond 200 nm.
iHarvest guidelines for commercial harvests of all species of
rockfish by members of the Makah, Quileute, Hoh, and Quinault
Indian tribes are established as follows: 51,000 pounds (23.1 mt)
for the area between the U.S.-Canada border and Cape Alava
(48 deg.09'30'' N. latitude); and 10,000 pounds (4.5 mt) for the
area between Destruction Island (47 deg.40'00'' N. latitude) and
Leadbetter Point (46 deg.38'10 N. latitude).
jThe POP harvest guideline applies to the Vancouver/Columbia
subareas combined. A discard factor of 16 percent was deducted from
the 1993 harvest guideline to determine the 1994 harvest guideline.
kThe thornyhead harvest guideline includes both species in the
Monterey, Eureka, and Columbia subareas. The 1994 harvest guideline
is derived by subtracting a discard factor (8 percent) from the
1993 harvest guideline.
lThe Sebastes-North harvest guideline applies to the Vancouver
and Columbia subareas and equals the sum of the ABCs in those
areas: canary (2,300 mt), yellowtail rockfish (6,740 mt minus 300
mt), and remaining rockfish (7,000 mt). The Vancouver/Columbia
portion for yellowtail rockfish is derived by subtracting a 300 mt
estimate for the Eureka subarea ABC from the total ABC for the
Vancouver/Columbia/Eureka areas.
mThe Sebastes-South harvest guideline is the sum of the ABCs
for the species in the Eureka/Monterey/Conception subareas:
bocaccio (1,540 mt), canary (600 mt), chilipepper (4,000 mt),
yellowtail rockfish (300 mt), and remaining rockfish (7,000 mt).
nThe bocaccio harvest guideline applies to the Eureka,
Monterey, and Conception subareas.
oThe open access and limited entry allocation percentages for
bocaccio are applied only to the commercial portion of the harvest
guideline, which is 1,340 mt in 1994. (The 1,540 mt harvest
guideline minus 200 mt estimated harvest by the recreational
fishery).
pThe yellowtail rockfish assessment addresses three separate
areas: Vancouver, Columbia north of Cape Lookout, and Columbia
south of Cape Lookout plus Eureka. For this table, the Columbia ABC
means north Columbia only, and the Eureka ABC means Eureka plus
south Columbia. The total ABC for yellowtail rockfish is divided
into two harvest guidelines: 4,160 mt for the northern area
(Vancouver plus Columbia north of Cape Lookout) and 2,580 mt for
the southern area (Eureka plus Columbia area south of Cape
Lookout). (Separate harvest guidelines are established for the
Sebastes complex north and south of the Eureka-Columbia border.
Therefore, 300 mt of the yellowtail rockfish southern harvest
guideline is included in the southern Sebastes complex harvest
guideline, and the remainder of the yellowtail rockfish southern
harvest guideline is included in the northern Sebastes complex
harvest guideline.) A 16 percent discard factor will be added to
certain landings of yellowtail rockfish inseason. This will affect
inseason landings estimates for the Sebastes complex also.
qThe 16,900 mt harvest guideline applies coastwide, and
includes a 5,000 mt harvest guideline for the Columbia subarea. The
Columbia subarea harvest guideline is higher than its ABC, and is
intended to be reduced to ABC (4,000 mt) in 1995.
rIncludes sharks, skates, rays, ratfish, morids, grenadiers
and other groundfish species noted above in footnote c.
Changes to the ABCs and Harvest Guidelines
The 1994 final ABCs are changed from the 1993 levels for the
following species: Pacific whiting, shortbelly rockfish, widow
rockfish, chilipepper, yellowtail rockfish, remaining rockfish, English
sole, and petrale sole. These changes are based on the best available
scientific information. Information considered in determining the ABCs
is available from the Council (See ADDRESSES) and was distributed to
the public in the Council's stock assessment and fishery evaluation
(SAFE) document. The SAFE document, required under the guidelines for
Fishery Management Plans at 50 CFR part 602, summarizes the best
available scientific information concerning the past, present, and
possible future condition of the stocks and fisheries being managed
under Federal regulation.
Those species or species groups with harvest guidelines in 1993
will continue to be managed with harvest guidelines in 1994. As in
1993, no quotas are established. The harvest guidelines are changed
from those for 1993 for Pacific whiting, jack mackerel, Pacific ocean
perch (POP), shortbelly rockfish, widow rockfish, thornyheads,
yellowtail rockfish, the Sebastes complex in the Vancouver/Columbia
subareas, Dover sole in the Columbia subarea and coastwide, and new
harvest guidelines are established for lingcod coastwide and the
Sebastes complex in the Eureka, Monterey, and Conception subareas.
The changes to the ABCs and harvest guidelines are described below.
All other ABC and annual harvest guideline specifications announced in
Tables 1 and 2 for 1993 (58 FR 2990, January 7, 1993) will apply again
in 1994 and are included in Table 1.
Lingcod. The ABC for lingcod remains at 7,000 mt, but a new harvest
guideline is established at 4,000 mt in 1994, approximating peak
landings during the past 10 years. Landings ranged between 3,000 and
3,500 mt in 1989-1991. The ABC is based on historical landings rather
than a scientific stock assessment, and has not been updated since
1986. A stock assessment for lingcod is planned for the near future.
The Council was concerned that the new open-access fishery would expand
its lingcod harvest. In order to discourage expansion pending
completion of the new stock assessment, a harvest guideline was
designated. Based on the harvest guideline, open-access and limited-
entry allocations are being specified. If effort shifts into this
fishery, trip limits may be imposed to keep landings within the
allocations and/or harvest guidelines.
Pacific whiting. The ABC for Pacific whiting in 1994 (325,000 mt
for the United States (U.S.) and Canada combined) is substantially
higher than in 1993 (177,000 mt) for several reasons. The 1992
hydroacoustic survey utilized new, more sensitive equipment, and
extended further offshore and further north to better encompass the
range of pacific whiting. As a result, the biomass estimate was more
than double the previous estimate. In recent years, the Council has
adopted a hybrid fishing strategy that combines the features of a
constant fishing mortality (F) strategy at higher levels of biomass,
and, at lower levels of biomass, a variable F strategy where fishing
mortality for a particular year in proportional to the level of female
spawning biomass. If this moderate harvest policy is applied to the new
projected numbers in 1994, the potential yield would be 450,000 mt.
However, the Council recommended a more conservative harvest rate for
1994, which provides a yield of 325,000 mt, to provide for cautious
exploitation until further information can be obtained; the large
increase in projected yield is due to a single survey estimate that
will not be replicated until 1995. In addition, the Council felt it
prudent to acknowledge the possibility of a combined U.S. and Canadian
harvest in excess of the U.S.-Canada ABC as occurred in 1992 and 1993.
These overages (15 percent in 1993) have not caused a biological
problem, particularly given the large increase in the ABC in 1994. The
Council recommended that the U.S. share in 1994 continue at 80 percent
of the U.S.-Canada ABC, as was the case in 1993, providing a U.S.
harvest guideline of 260,000 mt. If Canada continues to calculate its
share in the same manner as in 1992 and 1993, the U.S. and Canadian
total harvest would be 14 percent above the coastwide ABC in 1994.
However, the total harvest would be lower than the overfishing level,
and lower than the amount that would have been taken if the Council had
chosen to use the moderate harvest rate level, as in 1993, in
determining the ABC. If recruitment remains near the median level, a
decline in annual yield is expected over the next few years, and will
be slightly more severe if the catch exceeds the harvest guideline.
Bilateral negotiations with Canada are expected to continue to resolve
this issue.
Jack mackerel. The ABC is maintained at 52,600 mt, the same level
as in 1993, and the harvest guideline is adjusted upward to equal the
ABC. In 1992, the harvest guideline has been set at 46,500 mt, lower
than the ABC, to deduct the amount of jack mackerel that was expected
to be taken beyond 200 nautical miles (nm). However, the fishery did
not materialize and the Council recommended setting the harvest
guideline equal to ABC in 1993. This change inadvertently was not
announced with the 1993 specifications in the Federal Register, so the
correction is made for 1994.
Chilipepper rockfish. In 1993, the coastwide ABC was set at 3,600
mt with nearly all the catch coming from the Eureka, Monterey, and
Conception subareas. The catch in 1992 was about 2,895 mt; 1993
landings data are not yet available for this species. A new assessment
indicates that the ABC could be higher, up to 5,000 mt, due to a very
strong 1984 year class, and that the stock is at a level above that
expected under the recommended level of exploitation. However, the
Council recommended a lower ABC of 4,000 mt for 1994, higher than the
expected 1993 catch, but less than the maximum amount suggested by the
assessment and close to the long-term average yield. Although a higher
ABC appears supportable from the assessment, it is not recommended
because bocaccio, which is at a low stock level and has an ABC of 1,540
mt and 1993 landings near that level, are unavoidably caught with
chilipepper. There is no harvest guideline at this time for chilipepper
rockfish.
Pacific ocean perch (POP). Based on the 1992 stock assessment, the
ABC for POP remains at zero. A rebuilding program was established for
POP in 1981, following depletion of this stock during the 1960's and
early 1970's. Significant rebuilding has not been detected. The stock
abundance is estimated to be about 50 percent of its target level and
recent harvests of about 1,000 mt are near the level of overfishing. If
the stock recovers to its target level, then annual yields of about
1,400 mt may be possible. Strong year classes which are necessary to
rebuild the stock occur infrequently, so the lack of rebuilding is not
unexpected. The harvest guideline continues to be set at the level that
accommodates the incidental catch of POP caught while fishing for other
species. The reduction of the harvest guideline from 1,550 mt in 1993
to 1,300 mt in 1994 results from converting the harvest guideline from
an estimate of total catch (retention plus discards) to an estimate of
landed catch (retention only). The harvest guideline of 1,550 mt in
1993 applied to the total catch, 1,300 mt for landed catch and a 250-mt
(16 percent) estimate of trip-limit induced discards. In 1994, the
harvest guideline represents only the landed catch, and therefore is
lowered to 1,300 mt.
For the last several years, the harvest guideline, in conjunction
with a very small trip limit, was necessary to accommodate only
incidental catches of POP which otherwise would have been discarded.
The trip limit will not be relaxed to achieve the harvest guideline,
but may be changed to reflect revised estimates of bycatch levels. The
catch in 1993 is projected to be about 1,447 mt, 93 percent of the
harvest guideline. The 1994 harvest guideline is consistent with the
Council's policy to allow for incidental catches during the 20-year
rebuilding schedule for POP.
Shortbelly rockfish. Shortbelly rockfish remains an unexploited
stock and thus is difficult to assess quantitatively. In recent years,
the ABC has been maintained at 13,000 mt until further data can be
collected. However, the midpoint of the range of recently revised yield
estimates is 23,500 mt. The Council agreed that this represents the
best available scientific information and recommended that the harvest
guideline be set equal to the ABC. To date, a fishery for this species
has not developed. Less than 10 mt were taken in 1992 and similar
landings have occurred in 1993.
Widow rockfish. A new assessment was conducted for widow rockfish
which explored the consequences of near-term landings between 5,000-
7,000 mt. If recent recruitment remains near the average, then stock
abundance is expected to remain nearly constant with annual landings of
7,000 mt (which would, including discards, indicate a total harvest of
8,150 mt) in 1994-1996. With annual harvest at 6,500 mt, stock
abundance would be expected to increase slightly towards its target
level. However, the assessment also provides a plausible alternative,
based on lower stock abundance and recent recruitment at a lower,
median level, which would support landings of only 5,000 mt during
1994-1996. Given this uncertainty, the ABC and HG are both set at 6,500
mt for 1994.
Thornyheads. The ABCs for shortspine and longspine thornyheads are
the same as in 1993. The two species of thornyhead cannot be
practically separated in the landings, so, as in 1993, the 1994 harvest
guideline is set for the combined species. However, like POP, the
harvest guideline is adjusted so that it applies only to landed catch
in 1994. Under the assumption that equal amounts of each species will
be in the catch, the harvest guideline is set at 6,440 mt for both
species combined (the 1993 harvest guideline of 7,000 mt, which
represented the total catch, minus 8 percent for trip limit induced
discards). This would result in a shortspine thornyhead catch equal to
its overfishing level of 3,500 mt and a longspine catch that is less
than its ABC of 10,100 mt. However, the percentage of shortspine
thornyheads in 1991 and 1992 has been lower than 50 percent, and
therefore the catches in these years have been below the overfishing
level. During the first half of 1993, shortspine contributed only 35
percent of the thornyhead landings. If the percentage shortspine in
1994 remains at this reduced level as expected, the 1994 catch would be
2,450 mt, well below the overfishing level.
Yellowtail rockfish. A new stock assessment was conducted which
indicates that 1983 and 1984 were stronger year classes than previously
thought. The ABCs which were applied to the Vancouver, Columbia, and
Eureka subareas separately in the past, are applied to different
subareas in 1994, coinciding with the subareas used in the new stock
assessment. These areas are: The Eureka subarea combined with the
Columbia subarea south of Cape Falcon (40 deg.30' to 45 deg.46' N.
latitude); the Columbia subarea north of Cape Falcon (45 deg.46' to
47 deg.30' N. latitude); and the Vancouver subarea between 47 deg.30'
and 49 deg.00' N. latitude which includes Canadian waters.
In the north Columbia subarea, the assessment indicates a stock
that is slowly declining, and further declines are expected as the
1983-1984 year class moves through the stock. The 1994 4,160 mt ABC in
this area is higher than the 1992 catch and similar to average catches
between 1986-1989. In the Vancouver subarea, which extends into
Canadian waters, there are contrary indicators of stock condition.
Trawl survey data indicate a stable healthy stock from 1980-1992,
whereas age composition data do not indicate a particularly strong
1983-1984 year class and implies a steeply declining stock. Therefore
the ABC for the Vancouver subarea is more conservative, based on the
lower end of the optimistic scenario in the stock assessment, and the
U.S. portion is estimated at 60 percent, or 1,190 mt. In the southern
subareas (Eureka/south Columbia), the stock is believed to have
recently increased because of the strong 1983-1984 year classes, but
will experience a declining trend as the strong year classes are
exploited. In 1993, 300 mt of the ABC was set aside for the Eureka
subarea, and a harvest guideline, equal to the sum of the ABCs, was set
only for the U.S. Vancouver/Columbia subareas combined. In 1994,
however, two harvest guidelines are set for yellowtail rockfish,
dividing the U.S. Vancouver, Columbia, and Eureka subareas at Cape
Falcon, Oregon. The 4,160 mt harvest guideline in the northern subareas
(U.S. Vancouver/north Columbia) is the sum of the ABCs. In the southern
area (south Columbia/Eureka), the harvest guideline is set equal to the
ABC of 2,580 mt.
Remaining rockfish. Remaining rockfish in the Eureka, Monterey, and
Conception subareas includes all rockfish except POP, widow rockfish,
shortbelly rockfish, bocaccio and chilipepper rockfish. The ABCs for
remaining rockfish have been unchanged since 1983. The ABCs in the
Eureka, Monterey, and Conception subareas were set at 1.2 times the
1977 catch, for a total of 9,500 mt. During 1983-1992, the catch of
remaining rockfish in this area has ranged from 5,100 mt to 7,200 mt
with an average of 6,600 mt. Although annual catches never have
achieved the 9,500 mt ABC, an examination of declines in average length
for several rockfish species suggests that the fishery is having a
noticeable impact. Although there is insufficient information to
conduct a quantitative stock assessment for the remaining rockfish in
this southern area, an increase in effort in this area should not be
encouraged, and therefore the ABC is reduced to 7,000 mt, the upper
range of harvest in recent years.
Remaining rockfish in the Vancouver and Columbia subareas are
defined as all rockfish except POP, yellowtail rockfish, canary
rockfish, widow rockfish, and shortbelly rockfish. The ABC is not
changed in 1994.
Remaining rockfish are included in both the northern and southern
harvest guidelines for the Sebastes complex.
Sebastes complex. The Sebastes complex includes all rockfish except
widow, shortbelly, Pacific ocean perch, and thornyheads.
North: The harvest guideline for the Sebastes complex in the
Vancouver-Columbia area has been, and continues to be, the sum of the
ABCs of the species in that area, and therefore is 13,240 mt in 1994.
It is calculated by adding the ABCs for canary and remaining rockfish
in the Vancouver and Columbia subareas, and for yellowtail rockfish in
the Vancouver, Columbia and Eureka subareas and then subtracting 300
mt, an estimate of the yellowtail ABC in the Eureka subarea.
South: A harvest guideline of 13,440 mt is established for the
first time for the Sebastes complex in the Eureka, Monterey, and
Conception subareas, based on the sum of the ABCs of the species in
those subareas (bocaccio, chilipepper, yellowtail rockfish, and
remaining rockfish). The decline in average size of some the Sebastes
species in this southern area, particularly dark-blotched rockfish,
indicated a need to keep effort from expanding. Uncertainty generated
by the new limited-entry management regime in 1994 prompted the Council
to recommend a harvest guideline to better respond to effort shifts
during the season.
Dover sole. There is no change to any of the subarea or coastwide
ABCs for Dover sole. At its November 1992 meeting, to mitigate the
economic impact of abrupt reductions in ABC, the Council adopted a
policy to reduce the harvest (and therefore the harvest guideline) in
the Columbia subarea by 1,000 mt annually until the 4,000 mt ABC for
that subarea is reached in 1995. This is the second year of the step-
down, and therefore the harvest guideline in the Columbia subarea is
reduced from 6,000 mt in 1993 to 5,000 mt in 1994, 1,000 mt above the
1994 ABC. Consequently, the coastwide harvest guideline, which is the
sum of the subarea harvest guidelines, is 16,900 mt, 1,000 mt higher
than the sum of the ABCs. As stated at 58 FR 2994 (January 7, 1993),
the risk of overfishing Dover sole in the Columbia subarea is not
appreciably increased by setting the harvest guideline greater than the
ABC in 1993 and 1994. The Columbia subarea catch has declined from an
average of 7,970 mt in 1988-1991 to 5,665 mt in 1992, and landings are
expected to be about 5,800 mt in 1993.
English sole. The coastwide ABC of 1,900 mt in 1993 is changed to
two area ABCs in 1994: 2,000 mt for the Vancouver-Columbia area and
1,100 mt for the Eureka-Monterey-Conception area. A new stock
assessment was conducted only for the Vancouver-Columbia area. It
indicated high recruitment during 1977-1992. The large biomass,
combined with the early age at maturity which allows a high
exploitation rate, suggest that a ten-fold increase in short-term yield
may be possible in the Vancouver-Columbia area. However, catches have
averaged only about 2,100 mt between 1983-1991. The 1994 ABC is set
conservatively, at 2,000 mt in this area, approximately double the
coastwide average catch during 1983-1991. The southern area ABC is set
near the recent average catch because trawl surveys indicate little
trend in abundance. There is no harvest guideline for English sole.
Petrale sole. A new stock assessment for the Vancouver and Columbia
subareas was conducted which resulted in the ABC for the two subareas
being combined and lowered from 1,700 mt in 1993 to 1,200 mt in 1994.
The assessment indicates that the stock in this area is essentially at
the expected long-term average level of abundance, and recent yields
are slightly below the potential. In addition, the ABC is lowered to
exclude the portion that applied to Canadian waters that mistakenly was
included in the previous ABC. There is no harvest guideline for petrale
sole.
Setting Harvest Guidelines Greater Than ABC
In most cases, harvest guidelines equal the ABCs, or prorated ABCs,
for specific areas. However, for 1994 as in 1993, the Council
recommended harvest guidelines that exceed the ABCs for three species,
POP, Dover sole in the Columbia subarea, and shortspine thornyheads.
The FMP requires that the Council consider certain factors when setting
a harvest guideline above an ABC. These factors were analyzed by the
Council's Groundfish Management Team (GMT) and considered at the
Council's November 1993 meeting before recommending the 1994 harvest
guidelines. These factors also were considered in establishing the 20-
year rebuilding schedule for POP in the 1981 FMP, and in the most
recent stock assessments for POP and Dover sole in the Council's August
1992 SAFE document, which provided the basis for the 1993 and 1994
ABCs. A synopsis of these issues appears in the above discussion of
these species.
Overfishing. The FMP defines ``overfishing'' as a fishing mortality
rate that would, in the long-term, reduce the spawning biomass per
recruit below 20 percent of what it would have been if the stock had
never been exploited (unless the species is above the level that would
produce the maximum sustainable yield (MSY)). The rate is defined in
terms of the percentage of the stock removed per year. Therefore, a
large amount of catch can cause overfishing at any stock abundance
level. Conversely, overfishing does not necessarily occur for stocks at
low abundance levels if the catch can be kept to a sufficiently small
fraction of that stock level. The target rate of exploitation for west
coast groundfish typically is the rate that would reduce spawning
biomass per recruit to 35 percent of its unfished level. This desired
rate of fishing will always be less than the overfishing rate, so there
is a buffer between the management target and the level that could harm
the stock's long-term potential productivity. If the overfishing level
is reached, the Guidelines for Fishery Management Plans at 50 CFR part
602 require the Council to identify actions to be undertaken to
alleviate overfishing. POP is the only species believed to be near its
overfishing level in 1993, and no others are expected to be overfished
in 1994.
POP was depleted off Washington and Oregon mainly by foreign
fishing during the 1960's and early 1970's. In 1981, a rebuilding
program was established for POP in the Vancouver and Columbia subareas.
(POP are neither common nor important in the more southern areas). A
review in 1992 of fishery and survey data does not indicate any
significant rebuilding. The stock is estimated to be about 50 percent
of its MSY level and recent harvests are near the level of overfishing
(1,100 mt). The review also indicates that strong year classes, which
are necessary to rebuild the stock, occur infrequently so the lack of
rebuilding is not expected. The Council's GMT recognized that, as long
as trawling occurs in these areas, incidental catches of POP will
result. The GMT recommended that trip limits continue to be set to
discourage targeting on POP while allowing landings of incidental
catches.
It is not anticipated that lowering the level of the trip limit (or
the harvest guideline) will reduce the fishing mortality of POP. The
level of catch will vary with effort in the Vancouver-Columbia area,
and it is possible that the overfishing level will be reached, but not
substantially exceeded, in 1994. Under the same harvest guideline and
trip limit (3,000 pounds (1,361 kg) or 20 percent of all groundfish per
trip, whichever is less), the total landings were 1,378 mt in 1991,
1,023 mt in 1992, and are projected at 1,214 mt in 1993.
Discards. Stock assessments and inseason catch monitoring are
designed to account for all fishing mortality, including that resulting
from fish discarded at sea. Discards of rockfish and sablefish in the
fishery for whiting processed at sea are well-monitored and are
accounted for inseason as they occur. In the other fisheries, discards
caused by trip limits are not monitored, so discard factors have been
developed to reasonably account for this extra catch. These discard
factors are applied in several ways.
In some cases (trawl sablefish, widow rockfish, bocaccio, Dover
sole), the discard factor was used in the stock assessment and in the
setting of the ABC. Therefore the ABC and harvest guideline are defined
in terms of landed catch. No additional discard factor is applied to
inseason catch projections.
In other cases (yellowtail rockfish, POP, thornyheads), a discard
factor was not anticipated in the stock assessment leading to the
setting of the ABC because the assessment was conducted before the trip
limits became low enough to induce discards. For POP and thornyheads,
an estimate of discards caused by trip limits has been subtracted from
the ABC so that the harvest guideline represents only the landed catch.
For yellowtail rockfish, a variety of gears with different discard
levels contribute to the catch, so the harvest guideline is set equal
to ABC and landings are adjusted by a discard factor during the season
to estimate total removals.
The level of trip limit discard is not monitored. A level
previously measured for widow rockfish (16 percent) in a scientific
study is assumed to be appropriate for the commercial fisheries for
widow rockfish, yellowtail rockfish and POP. A lower level of 8 percent
is used for the deepwater thornyhead fishery.
Discarded bycatch in the Pacific whiting fishery always is counted
towards the harvest guideline inseason because this source of discard
is measured accurately by observers and is variable from year to year.
Foreign and domestic fisheries. For those species needing
individual management that will not be fully utilized by domestic
processors or harvesters, and that can be caught without severely
impacting species that are fully utilized by domestic processors or
harvesters, the harvest guidelines or quotas may be apportioned to
domestic annual harvest (DAH, which includes domestic annual processing
(DAP) and joint venture processing (JVP)) and the total allowable level
of foreign fishing (TALFF). In 1994, there are no surplus groundfish
available for joint venture or foreign fishing operations.
Consequently, all the harvest guidelines in 1994 are designated
entirely for DAP (which also equals DAH), and JVP and TALFF are set at
zero.
In the unlikely event that a foreign or joint venture fishery
should occur, the incidental catch levels would be the same as
announced at Table 2, footnote 1 of 58 FR 2990 (January 7, 1993).
The Limited-Entry Program--Effective January 1, 1994
Amendment 6 to the FMP establishes a limited-entry program which
divides the groundfish fishery into two components, the limited-entry
fishery and the open-access fishery, each of which has its own
allocations and management measures. The limited-entry and open-access
allocations are calculated according to a formula specified in the FMP
and implementing regulations, and are announced annually with the ABC
and harvest guideline specifications. At its November 1993 meeting, the
Council recommended the species and areas subject to open-access and
limited-entry allocations in 1994, and the Regional Director calculated
the amounts of the allocations which are presented in Table 1. Unless
otherwise specified, the limited-entry and open-access allocations are
treated as harvest guidelines in 1994.
Open-access allocations. The open-access fishery means the fishery
composed of vessels using (i) exempt gear, or (ii) longline or pot
(trap) gear used pursuant to the harvest guidelines, quotas, and other
management measures governing the open-access fishery. Exempt gear
means all types of fishing gear except groundfish trawl, longline, and
pots. (Exempt gear includes trawls used to harvest pink shrimp or spot
or ridgeback prawns (shrimp trawls), and, south of Point Arena,
California, California halibut, or sea cucumbers.) Simply put, open-
access gear is all types of fishing gear except longline, pot, or
groundfish trawl gear fished by a vessel that has a limited-entry
permit affixed with a gear endorsement for that gear.
The open-access allocation is derived by applying the open-access
allocation percentage to the annual harvest guideline or quota after
subtracting any set asides for recreational fishing or treaty Indians
under sections II.E. (b) and (c) of the Appendix to part 663. For those
species in which the open-access share would have been less than one
percent, no open-access allocation is specified for 1994 because
significant open-access effort is not anticipated. At the time the
calculations were made, the status of some vessels (whether or not they
would receive a limited-entry permit) was not certain. The catch by
these vessels was divided equally between the limited-entry and open-
access allocations. The highest ``undecided'' amount is 4.7 percent for
the catch of species used to represent bocaccio during the window
period. Therefore the greatest potential error in any of the open-
access or limited-entry allocations is less than 2.5 percent of the
harvest guideline. This level of error would not result in a change in
any of the trip limits for the limited-entry or open-access fisheries.
Limited-entry allocations. The limited-entry fishery means the
fishery composed of vessels using limited-entry gear fished pursuant to
the harvest guidelines, quotas, and other management measures governing
the limited-entry fishery. Limited-entry gear means longline, pot, or
groundfish trawl gear used under the authority of a valid limited-entry
permit, issued under 50 CFR part 663, affixed with an endorsement for
that gear. (Groundfish trawl gear excludes shrimp trawls used to
harvest pink shrimp, spot prawns, or ridgeback prawns, and other trawls
used to fish for California halibut or sea cucumbers south of Pt.
Arena, California.)
The limited-entry allocation is the allowable catch (harvest
guideline or quota) reduced by: (1) Set asides, if any, for treaty
Indian fisheries or recreational fisheries, and (2) the open-access
allocation.
II. 1994 Management Measures--Commercial Fishery
Most of the 1994 management measures announced in this notice have
been designated as ``routine'' under the procedures contained in
Amendment 4 to the FMP (56 FR 736, January 8, 1991). The ``routine''
designation means that a measure is likely to need adjustment on an
annual or more frequent basis, and that it may be implemented and
adjusted for a specified species or species group and gear type after
consideration at a single Council meeting. However, the effects of the
particularly measure must have been analyzed previously, the purpose of
the measure must be the same as when it was designated as routine, and
the measure must be announced in the Federal Register.
Those management measures not yet designated as routine apply to
the harvest of groundfish taken incidentally in non-groundfish
fisheries (in the open-access fishery) for pink shrimp, spot and
ridgeback prawns, California halibut, and sea cucumbers. These
fisheries must be managed under ``routine'' trip limits to assure that
open-access allocations are not exceeded. The trip limits for pink
shrimp, and spot and ridgeback prawns previously were codified at 50
CFR 663.24; those for California halibut and sea cucumbers are
announced herein for the first time. In the future, the Council also
may recommend designating trip limits for lingcod as routine, so that
they may be adjusted in season to achieve its harvest guideline which
was specified for the first time in 1994.
Limited-entry fishery. The following management measures apply to
vessels operating in the limited-entry fishery after January 1, 1994,
and are designed to keep landings within the harvest guidelines or
limited-entry allocations.
The Sebastes complex (including yellowtail rockfish and Bocaccio).
Beginning January 1, 1993, the cumulative trip limit for the Sebastes
complex coastwide was 50,000 pounds (22,680 kg) in a 2-week period, of
which no more than 10,000 pounds (4,536 kg) could be bocaccio taken
south of Cape Mendocino, or 8,000 pounds (3,629 kg) could be yellowtail
rockfish caught north of Coos Bay, Oregon. The Sebastes complex trip
limit remained the same all year, but the trip limit for yellowtail
rockfish was lowered to 6,000 pounds (2,722 kg) in late April, and the
bacaccio trip limit was increased to 15,000 pounds (6,804 kg) in early
October. By the end of 1993, landings of bocaccio are yellowtail
rockfish and the Sebastes complex catches are expected to exceed their
harvest guideline in the Vancouver/Columbia subareas by as much as 27
percent and 18 percent, respectively. The Council did not recommend
further reductions in the trip limit for yellowtail rockfish in 1993
because the ABC and harvest guideline for this species were expected to
increase substantially in 1994, and the overage in 1993 is not expected
to reduce future productivity. The Sebastes complex harvest guideline
was exceeded entirely due to the overage in the yellowtail rockfish
landings, so the trip limit for the complex was not reduced for the
same reasons as for yellowtail rockfish.
In 1994, the cumulative trip limit period for the Sebastes complex
(including yellowtail rockfish and bocaccio) is extended from 2 weeks
to a calendar month, consistent with the period for widow rockfish and
the Dover sole/thornyhead/sablefish complex. However, the trip limit is
not simply doubled because experience has shown that the opportunity
for landings, and thus catch rates, increase as the trip limit period
is lengthened. Consequently, the coastwide trip limit for the Sebastes
complex is increased to only 80,000 pounds (36,290 kg) per calendar
month in 1994. Analysis of 1993 Washington and Oregon landings
accumulated by 4-week periods indicated that this trip limit will not
be severely constraining because few cumulative Sebastes trips exceeded
80,000 pounds (36,290 kg) in 1993.
In addition, the management line for yellowtail rockfish is moved
north to Cape Lookout, Oregon (45 deg.20'15'' N. latitude), to better
define the areas where this species is concentrated. The cumulative
trip limit for yellowtail rockfish north of Cape Lookout is set at
14,000 pounds (6,350 kg) per month, intermediate to the 1993 levels
(6,000 pounds (2,722 kg) and 8,000 pounds (3,629 kg) per 2-week
periods), because landings in 1993 are believed to have been similar to
the 1994 harvest guideline for the same area. To keep landings from
accelerating south of the line, as occurred in 1992, a trip limit of
30,000 pounds (13,608 kg) per month is established for yellowtail
rockfish caught south of Cape Lookout.
Because landings of bocaccio did not reach the 1993 harvest
guideline, the trip limit is almost doubled to 30,000 pounds (13,608
kg) per month.
The 1993 restrictions limited a vessel to the northern, more
restrictive trip limit for yellowtail rockfish if operating on both
sides of the line at Coos Bay. This was a problem for vessels that took
the yellowtail rockfish limit south of Coos Bay at the beginning of the
month, and then fished north of the line for the DTS complex because
yellowtail rockfish is commonly taken as bycatch. The yellowtail
rockfish would either need to be discarded or the vessel would be in
violation of the more restrictive northern limit. The same problem
would exist north and south of Cape Lookout in 1994. Consequently, the
Council endorsed a declaration procedure by the States of Oregon and
Washington that would allow a fisherman to operate both north and south
of Cape Lookout during a month and retain up to the southern limit of
yellowtail rockfish, if the State is notified in advance where the
vessel will be operating on each trip that crosses the line during that
month. These declarations, which are binding for the trip, are similar,
but not identical, to those used in the past. The State where the fish
will be landed (Oregon or Washington) should be contacted for more
complete information on these procedures, which may differ between the
two States. The phone numbers of the State agencies appear in Section
III.C.
Widow rockfish. The 1993 cumulative trip limit for widow rockfish
initially was set at 30,000 pounds (13,608 kg) per 4-week period, but
was reduced to 3,000 pounds (1,361 kg) per trip on December 1, 1993.
Landings of widow rockfish are projected to exceed the harvest
guideline by as much as 12 percent in 1993. For 1994, the trip limit is
again initially set at 30,000 pounds (13,608 kg), but the period is
slightly extended from 4-weeks to a calendar month. Reducing the number
of trip limit periods from 13 4-week periods (of 28 days) to 12
calendar months (of 30-31 days) is intended to reduce landings from
1993 levels and avoid the need for further trip limit reductions before
the fall of 1994.
POP. The 1994 trip limit for POP is the same as in 1991-1993: 3,000
pounds (1,361 kg) or 20 percent of all fish on board, whichever is
less, in landings of POP above 1,000 pounds (454 kg). This is not a
cumulative limit because it is intended to accommodate only incidental
catches. It therefore applies to each fishing trip. Because the trip
limit for POP is intended to accommodate only unavoidable incidental
catches, it will not be increased if landings are lower than the
harvest guideline.
DTS complex (Dover sole, thornyheads, and trawl-caught sablefish).
In January 1993, the cumulative trip limit for the DTS complex was
45,000 pounds (20,412 kg) per 2-week period, of which no more than
20,000 pounds (9,072 kg) could be thornyheads and no more than 1,000
pounds (454 kg), or 25 percent of the DTS complex, whichever was
greater, could be sablefish. In April, the trip limits were reduced and
applied on a 4-week cumulative basis: 60,000 pounds (27,216 kg) of the
DTS complex, of which no more than 35,000 pounds (15,876 kg) could be
thornyheads. The sablefish trip limit remained the same (but was
expected to result in lower landings due to the reduction in the trip
limit for the complex) until September when a ceiling of 3,000 pounds
(1,361 kg) per trip was added. Nonetheless, landings continued at high
levels and, at the Council's November 1993 meeting, were projected to
exceed the harvest guidelines for trawl-caught sablefish by 18 percent
and for thornyheads by 17 percent. Dover sole landings were projected
to be 17 percent below its coastwide harvest guideline, but only 3
percent below the harvest guideline in the Columbia subarea (which is
1,000 mt lower in 1994). Further reductions were implemented in
December 1993 (58 FR 64169, December 6, 1993) but were not expected to
substantially reduce these overages. Throughout the year, no more than
5,000 pound (2,268 kg) of sablefish per trip could be smaller than 22
inches (56 cm) (total length).
In 1994, the cumulative trip limit for the DTS complex is 50,000
pounds (22,680 kg) per month, including no more than 30,000 pounds
(13,608 kg) of thornyheads and 12,000 pounds (5,443 kg) of trawl-caught
sablefish. The cumulative period is lengthened from 4-weeks to calendar
month. The sablefish trip limit of 1,000 pounds (454 kg) or 25 percent
of the DTS complex, whichever is greater, that applies to each trip,
remains in effect. The 5,000-pound (2,268 kg) trip limit on sablefish
smaller than 22 inches (56 cm) also continues. Even though the
sablefish harvest guideline applies only to the Vancouver, Columbia,
Eureka, and Monterey areas, these trip limits are applied coastwide to
avoid effort shifts into the Conception area.
Nontrawl trip limits for sablefish. In 1993, a coastwide 250-pound
(113 kg) daily trip limit was applied until May 9, the beginning of the
72-hour closure before the start of the regular season on May 12. The
250-pound (113 kg) daily trip limit was reimposed on June 5 following a
72-hour closure beginning June 2. Landings are projected to be within
one percent of the harvest guideline in 1993. The harvest guideline
applies coastwide except for the Conception subarea.
Daily trip limits are established again in 1994, until 72 hours
before, and 72 hours after, the regular season which is scheduled to
start on May 15, 1994. However, the 250-pound (113 kg) daily trip limit
will apply only to the Vancouver, Columbia, Eureka, and Monterey
subareas, the same areas covered by the harvest guideline. In the
Conception area, where there is no harvest guideline and landings have
been below the 425 mt ABC, the daily trip limit is increased to 350
pounds (159 kg). This limit will accommodate most current landings
without encouraging excessive effort shifts into that area.
The trip limit for sablefish smaller than 22 inches (56 cm) (1,500
pounds (680 kg) or 3 percent of all legal sablefish on board, whichever
is greater) remains in effect.
Pacific whiting. The Council recommended continuation of the
10,000-pound (4,536 kg) trip limit for Pacific whiting taken before and
after the regular season. In 1994, the regular season begins on March 1
between 42 deg.00'--40 deg.30' N. latitude, and on April 15 north of
42 deg.00' N. latitude and south of 40 deg.30' N. latitude.
Open-access fishery. At its November meeting, the Council
recommended open-access fishery trip limits for certain gear types,
areas, and species or species groups. For all open-access gear except
trawls, the Council recommended: (1) A 10,000 pound (4,536 kg) trip
limit for all rockfish, not to exceed 40,000 pounds (18,144 kg)
cumulative in a month; and (2) a sablefish trip limit of the same
amounts and areas as for the limited-entry nontrawl fishery at the
beginning of the year (250 pounds (113 kg) per day north of 36 deg.00'
N. latitude; 350 pounds (159 kg) per day south of 36 deg.00' N.
latitude). For shrimp trawls, the trip limit for spot and ridgeback
prawns remains the same at 1,000 pounds (454 kg) of groundfish per
trip, and the trip limit in the pink shrimp fishery (1,500 pounds (680
kg) of groundfish per day times the number of days in the fishing trip)
is the same except the exclusion of whiting, shortbelly rockfish, and
arrowtooth flounder is removed. The trip limits all are designed to
keep landings within the open-access allocation for as long as possible
during the year. In addition, any more restrictive limits imposed on
the limited-entry vessels also apply to the open-access vessels. In
particular, the cumulative monthly limits for bocaccio and for
yellowtail rockfish are more restrictive than the 40,000 pounds (18,144
kg) cumulative limit on all rockfish in the open-access fishery.
Public comment resulting from the discussion of trip limits at the
September 1993 Council meeting revealed two minor trawl fisheries for
non-groundfish species (California halibut and sea cucumbers south of
Point Arena, California) that incidentally take small amounts of
groundfish. If these vessels had landed the 500-pound (227 kg) minimum
landing requirement during the window period, they would have qualified
for a limited-entry permit, but they did not. These vessels are
considered to be using exempt gears, and therefore may participate in
the open-access fishery. The Council agreed that the total take of
groundfish in these fisheries was insignificant, if measurable, and
that there was no need to force these fishers to discard incidentally-
caught groundfish. Therefore, a 500-pound (227 kg) trip limit for all
groundfish species was recommended for these fisheries.
Vessels using open-access gear are subject to the management
measures for the open-access fishery, whether or not the vessel has a
valid limited-entry permit endorsed for any other gear. In addition, a
vessel operating in the open-access fishery must not exceed any trip
limit, frequency limit, and/or size limit for the same gear and/or
subarea in the limited-entry fishery (as announced in this Federal
Register notice in paragraphs titled ``limited-entry''). A vessel that
operates in both the open-access and limited-entry fisheries is not
entitled to two separate trip limits for the same species. Fish caught
with open-access gear will also be counted toward the limited-entry
trip limit. For example; In one month, a trawl vessel catches 12,000
pounds (5,443 kg) of yellowtail rockfish in the limited-entry fishery,
and in the same month catches 4,000 pounds (1,814 kg) of yellowtail
rockfish using hook-and-line (open-access) gear. Because the open-
access landings are counted toward the limited-entry limit, the vessel
would have exceeded its monthly 14,000 pound (6,350 kg) limited-entry
limit for yellowtail rockfish by 2,000 pounds (907 kg).
III. 1994 Management Measures--Recreational Fishery
The recreational size and bag limits in 1994 are the same as in
1993 except for the bag limit for black rockfish off Oregon. The State
of Oregon is concerned that numbers of black rockfish on the north
Oregon coast are declining and has reduced the State bag limit from 15
rockfish of any species, to 15 rockfish of which no more than 10 may be
black rockfish. The Council recommended that the same change be made to
the bag limit in Federal waters to conserve the species and maintain
consistency with Oregon regulations. The commercial fishery is not
restricted at this time because the commercial catch of black rockfish
is low, and commercial vessels have voluntarily agreed to avoid the
nearshore areas where black rockfish are found.
IV. Secretarial Actions
For the reasons stated above, the Secretary concurs with the
Council's recommendations and announces the following management
actions for 1994, including those that have not been changed since
1993.
A. General Definitions and Provisions
The following definitions and provisions apply to the 1994
management measures, unless otherwise specified in a subsequent notice:
(1) A trip limit is the total allowable amount of a groundfish
species or species complex, by weight, or by percentage of fish on
board, that may be taken and retained, possessed, or landed per vessel
from a single fishing trip.
(2) A daily trip limit is the maximum amount that may be taken and
retained, possessed or landed per vessel in 24 consecutive hours,
starting at 0001 hours local time. Only one landing of groundfish may
be made in that 24-hour period.
(3) A cumulative trip limit is the maximum amount that may be taken
and retained, possessed or landed per vessel in a specified period of
time, without a limit on the number of landings or trips. Cumulative
trip limits for 1994 initially apply to calendar months.
(4) Unless the fishery is closed, a vessel which has landed its
cumulative or daily limit may continue to fish on the limit for the
next legal period so long as the fish are not landed (offloaded) until
the next legal period.
(5) All weights are round weights or round weight equivalents.
(6) Percentages are based on round weights, and, unless otherwise
specified, apply only to legal fish on board.
(7) Legal fish means fish taken and retained, possessed, or landed
in accordance with the provisions of 50 CFR part 663, the Magnuson Act,
any notice issued under subpart B of part 663, and any other regulation
promulgated or permit issued under the Magnuson Act.
(8) Closure, when referring to closure of a fishery, means that
taking and retaining, possessing or landing the particular species or
species group is prohibited. (See the regulations at 50 CFR 663.2.)
(9) The fishery management area for these species is the EEZ off
the coasts of Washington, Oregon, and California between 3 and 200
nautical miles offshore, and bounded on the north by the Provisional
International Boundary between the United States and Canada, and
bounded on the south by the International Boundary between the United
States and Mexico. All groundfish possessed 0-200 nautical miles
offshore, or landed in, Washington, Oregon, or California are presumed
to have been taken and retained from the fishery management area,
unless otherwise demonstrated by the person in possession of those
fish.
(10) Inseason changes to trip limits are announced by notices
published in the Federal Register. Information concerning changes to
trip limits also is available from the NMFS Northwest and Southwest
regional offices [see ADDRESSES above]. Changes to trip limits are
effective at the times stated in the Federal Register notices. Once a
change is effective, it is illegal to take and retain, possess, or land
more fish than allowed under the new trip limit.
(11) It is unlawful for any person to take and retain, possess, or
land groundfish in excess of the landing limit for the open-access
fishery without having a valid limited-entry permit for the vessel
affixed with a gear endorsement for the gear used to catch the fish.
(50 CFR 663.7(t))
(12) The following provisions that are not covered under the
headings ``limited-entry'' or ``open-access'' apply to all vessels that
take and retain groundfish unless otherwise stated.
B. Widow Rockfish
(1) Limited-entry Fishery. No more than 30,000 pounds (13,608 kg)
cumulative of widow rockfish may be taken and retained, possessed, or
landed per vessel per month. (Widow rockfish are also called brownies.)
(2) Open-access Fishery. See section G. Of the 40,000 pound (18,144
kg) monthly cumulative trip limit for rockfish taken in the open-access
fishery, no more than 30,000 pounds (13,608 kg) may be widow rockfish.
C. Sebastes Complex (Including Yellowtail and Bocaccio Rockfish)
(1) General. (a) Sebastes complex means all rockfish managed by the
FMP except Pacific ocean perch (Sebastes alutus), widow rockfish (S.
entomelas), shortbelly rockfish (S. jordani), and Sebastolobus spp.
(also called thornyheads, idiot, or channel rockfish). Yellowtail
rockfish (S. flavidus) are commonly called greenies. Bocaccio (S.
paucispinis) are commonly called rock salmon.
(b) Cape Lookout means 45 deg.20'15'' N. latitude.
(c) Cape Mendocino means 40 deg.30'00'' N. latitude.
(2) Limited-entry fishery. (a) Cumulative trip limits. Coastwide,
no more than 80,000 pounds (36,287 kg) cumulative of the Sebastes
complex may be taken and retained, possessed or landed per vessel per
month. Within this 80,000 pounds (36,287 kg), no more then 14,000
pounds (6,350 kg) cumulative may be yellowtail rockfish taken and
retained north of Cape Lookout; no more than 30,000 pounds (13,608 kg)
cumulative may be yellowtail rockfish taken and retained south of Cape
Lookout; and no more than 30,000 pounds (13,608 kg) cumulative may be
bocaccio taken and retained south of Cape Mendocino.
(b) The provisions of this paragraph (b) apply unless declarations
are made according to paragraph (c) below. If any vessel transits
through or fishes in the area north of Cape Lookout during a month,
then that vessel is subject to the trip limit for yellowtail rockfish
taken and retained north of Cape Lookout, no matter where the fish are
possessed or landed. Similarly, if a vessel takes and retains
yellowtail rockfish south of Cape Lookout and possesses or lands
yellowtail rockfish north of Cape Lookout during a month, that vessel
is subject to the northern trip limit.
(c) State declarations. The States of Oregon and Washington are
implementing declaration procedures that enable a vessel that fishes or
transits both north and south of Cape Lookout during a month to retain
the 30,000 pound (13,608 kg) cumulative limit for yellowtail rockfish
south of Cape Lookout. For any vessel that takes and retains or lands
yellowtail rockfish during the month, a declaration must be filed for
each fishing trip that crosses the line at Cape Lookout during that
month, must be made before leaving port on the fishing trip, and may
not be changed once the vessel has left port. Declarations must be
made, according to State law, to the state where the fish will be
landed. To make a declaration or for further information, contact:
Washington Department of Fisheries, Montesano, WA, at 206-249-4628; or
Oregon Department of Fish and Wildlife, Newport, OR, at 503-867-4741.
(i) A vessel under a northern trip declaration may not exceed the
northern limit during a single trip, nor may the cumulative catch of
all northern declared trips exceed the northern cumulative limit. The
total cumulative catch for the month may not exceed the southern limit,
no matter where the fish are caught.
(ii) A vessel under a southern trip declaration may not fish for
any groundfish north of Cape Lookout during the fishing trip for which
the declaration is made; otherwise, the northern trip limit would
apply. A vessel under a southern trip declaration may not exceed the
southern trip limit during a single trip, nor may the cumulative catch
of all southern declared trips exceed the southern cumulative limit.
The total cumulative catch for the month may not exceed the southern
limit, no matter where the fish are caught.
(d) If any vessel is used to fish south of Cape Mendocino during
the month, then the vessel is subject to the trip limit for bocaccio
taken and retained south of Cape Mendocino, no matter where the fish
are possessed or landed. Similarly, if a vessel is used to take and
retain bocaccio north of Cape Mendocino and possesses or lands bocaccio
south of Cape Mendocino, that vessel is subject to the southern trip
limit.
(3) Open-access Fishery. See section G. Of the 40,000 pound (18,144
kg) monthly cumulative trip limit for rockfish taken in the open-access
fishery, no more than 14,000 pounds (6,350 kg) cumulative may be
yellowtail rockfish caught north of Cape Lookout, no more than 30,000
pounds (13,608 kg) cumulative may be yellowtail rockfish caught south
of Cape Lookout, and no more than 30,000 pounds (13,608 kg) cumulative
may be bocaccio caught south of Cape Mendocino. The State declaration
procedures apply to all vessels, whether in the limited-entry or open-
access fishery.
D. Pacific Ocean Perch (POP)
(1) Limited-entry Fishery. The trip limit for Pacific ocean perch
coastwide is 3,000 pounds (1,361 kg) or 20 percent of all legal fish on
board, whichever is less. If less than 1,000 pounds (454 kg) of Pacific
ocean perch are landed, the 20 percent limit does not apply.
Note: Twenty percent of all legal fish on board including
Pacific ocean perch is equivalent to 25 percent of all legal
groundfish on board other than Pacific ocean perch.
(2) Open-access Fishery. See section G. Within the 10,000 pound
(4,536 kg) trip limit for rockfish taken in the open-access fishery, no
more than 3,000 pounds (1,361 kg) or 20 percent of all legal fish on
board, whichever is less, may be POP. If less than 1,000 pounds (454
kg) of Pacific ocean perch are landed, the 20 percent limit does not
apply.
E. Sablefish and the DTS Complex (Dover Sole, Thornyheads, and Trawl-
Caught Sablefish
(1) 1994 Management Goal. The sablefish fishery will be managed to
achieve the 7,000 mt harvest guideline in 1994.
(2) Washington Coastal Tribal Fisheries. An estimate will be made
of the catch to the end of 1994 for the Washington coastal treaty
tribes. It is anticipated that these tribes will regulate their
fisheries so as not to exceed their estimated catch. There will be no
Federally imposed tribal allocation or quota. In 1994, the estimated
tribal catch is 300 mt, the same as in 1991, 1992, and 1993.
(3) Limited-entry Fishery. (a) Gear Allocations. After subtracting
the tribal-imposed catch limit and the open-access allocation from the
harvest guideline, the remainder will be allocated 58 percent to the
trawl fishery and 42 percent to the nontrawl fishery.
[Note: The 1994 harvest guideline for sablefish is 7,000 mt. The
300-mt tribal-imposed catch limit is subtracted, and the limited-
entry and open-access allocations are based on the remaining 6,700
mt. The limited-entry allocation for 1994 of 6,070 mt is allocated
3,520 mt (58 percent) to the trawl fishery and 2,550 mt (42 percent)
to the nontrawl fishery. The trawl and nontrawl gear allocations are
harvest guidelines in 1994, which means the fishery will be managed
so that the harvest guidelines are not exceeded, but will not
necessarily be closed if they are reached.]
(b) Trip and Size Limits for the DTS Complex (Thornyheads, Dover
Sole, and Trawl-caught Sablefish). These provisions apply to
thornyheads and Dover sole caught with any limited-entry gear and
sablefish caught with limited-entry trawl gear.
(i) ``DTS complex'' (formerly called the ``deepwater complex'')
means Dover sole (Microstomus pacificus), thornyheads (Sebastolobus
spp.), and trawl-caught sablefish (Anoplopoma fimbria). Sablefish also
are called blackcod. Thornyheads also are called idiots, channel
rockfish, or hardheads.
(ii) Trip limits. Coastwide, no more than 50,000 pounds (22,680 kg)
cumulative of the DTS complex may be taken and retained, possessed, or
landed per vessel per month. Within this 50,000 pounds (22,680 kg), no
more than 30,000 pounds (13,608 kg) cumulative may be thornyheads, and
no more than 12,000 pounds (5,443 kg) cumulative may be trawl-caught
sablefish. In any landing of the DTS complex, the trip limit for trawl-
caught sablefish is the greater of 1,000 pounds (454 kg), or 25 percent
of the DTS complex. In any landing, no more than 5,000 pounds (2,268
kg) of sablefish may be smaller than 22 inches (56 cm) (total length).
[Note: Twenty-five percent of the DTS complex (including
sablefish) is equivalent to 33.333 percent of the legal thornyheads
and Dover sole.]
(c) Nontrawl trip and size limits. (i) The daily trip limit for
sablefish in the Vancouver, Columbia, Eureka and Monterey subareas (the
U.S.-Canada border to 36 deg.00'00'' N. latitude) is 250 pounds (113
kg), and in the Conception subarea (36 deg.00'00'' N. latitude to the
U.S.-Mexico border) is 350 pounds (159 kg). These daily trip limits,
which apply to sablefish of any size, remain in effect until the
regular season begins, as specified at 50 CFR 663.23(b)(2).
[Note: In 1994, the daily trip limits will be in effect from
0001 hours January 1 through 2400 hours May 11; the first 72-hour
closure will occur from 0001 hours May 12 through 2400 hours May 14;
and the regular season will start at 0001 hours May 15.]
(ii) During the ``regular'' season, the only trip limit in effect
applies to sablefish smaller than 22 inches (56 cm) (total length)
which may comprise no more than 1,500 pounds (680 kg) or 3 percent of
all legal sablefish on board, whichever is greater.
(See paragraph (d) regarding length measurement.)
(iii) Following the regular season, on a date to be announced in
the Federal Register, the daily trip limits will be reimposed for
sablefish (of any size) caught with nontrawl gear.
(d) Length measurement. (i) Total length is measured from the tip
of the snout (mouth closed) to the tip of the tail (pinched together)
without mutilation of the fish or the use of additional force to extend
the length of the fish.
(ii) For processed (``headed'') sablefish,
(a) The minimum size limit is 15.5 inches (39 cm) measured from the
origin of the first dorsal fin (where the front dorsal fin meets the
dorsal surface of the body closest to the head) to the tip of the upper
lobe of the tail; the dorsal fin and tail must be left intact; and,
(b) The product recovery ratio (PRR) established by the state where
the fish is or will be landed will be used to convert the processed
weight to round weight for purposes of applying the trip limit. (The
PRR currently is 1.6 in Washington, Oregon, and California. However,
the state PRRs may differ and fishermen should contact fishery
enforcement officials in the state where the fish will be landed to
determine that state's official PRR.)
(e) No sablefish may be retained which is in such condition that
its length has been extended or cannot be determined by the methods
stated above in paragraph (d).
(4) Open-access Fishery. The daily trip limit for sablefish in the
Vancouver, Columbia, Eureka and Monterey subareas (the U.S.-Canada
border to 36 deg.00'00'' N. latitude) is 250 pounds (113 kg), and in
the Conception subarea (36 deg.00'00'' N. latitude to the U.S.-Mexico
border) is 350 pounds (159 kg).
F. Pacific Whiting. (1) Limited-entry Fishery. (a) No more than
10,000 pounds (4,536 kg) of pacific whiting may be taken and retained,
possessed, or landed, per vessel per fishing trip until the regular
season for whiting begins, as specified at 50 CFR 663.23(b)(3).
(b) No more than 10,000 pounds (4,536 kg) of Pacific whiting may be
taken and retained, possessed, or landed by a vessel that, at any time
during a fishing trip, fished in the fishery management area shoreward
of the 100-fathom contour (as shown on NOAA Charts 18580, 18600, and
18620) in the Eureka subarea (from 43 deg.00'00'' N. latitude to
40 deg.30'00'' N. latitude).
Additional regulations that apply to the whiting fishery are found
in the Pacific Coast Groundfish regulations at 50 CFR 663.7 and 663.23
(58 FR 21261 and 58 FR 21265, both April 20, 1992).
G. Vessel Limits In The Open-Access Fishery
(1) Set net, hook-and-line, pot, and other exempt gear except
exempted trawl gear:
(a) Rockfish. No more than 10,000 pounds (4,536 kg) of rockfish may
be taken and retained, possessed, or landed per vessel per fishing
trip. No more than 40,000 pounds (18,144 kg) cumulative of rockfish may
be taken and retained, possessed or landed per vessel per month.
Rockfish means the Sebastes complex, shortbelly rockfish, widow
rockfish, Pacific ocean perch, and thornyheads, as listed at 50 CFR
663.2. Within these limits, a vessel may not take and retain, possess
or land more widow rockfish, Pacific ocean perch, thornyheads, DTS
complex, Sebastes complex, yellowtail rockfish, or bocaccio than
authorized for the limited-entry fishery. (See paragraphs B.(1), C.(2),
D.(1), and E.(3).)
(b) Sablefish. The daily trip limit for sablefish in the Vancouver,
Columbia, Eureka and Monterey subareas (the U.S.-Canada border to
36 deg.00'00'' N. latitude) is 250 pounds (113 kg), and in the
Conception subarea (36 deg.00'00'' N. latitude to the U.S.-Mexico
border) is 350 pounds (159 kg).
Note: The ``regular'' season and 72-hour closures specified at
50 CFR 663.23(b)(2) do not apply to the open-access fishery.
(2) Shrimp trawl (used to catch pink shrimp or spot or ridgeback
prawns):
(a) Pink shrimp. The trip limit for a vessel engaged in fishing for
pink shrimp is 1,500 pounds (680 kg) (multiplied by the number of days
of the fishing trip) of groundfish species listed at 50 CFR 663.2.
(b) Spot and ridgeback prawns. The trip limit for a vessel engaged
in fishing for spot or ridgeback prawns is 1,000 pounds (454 kg) of
groundfish species per fishing trip.
(c) Within these limits, a vessel may not take and retain, possess
or land more widow rockfish, Pacific ocean perch, thornyheads, DTS
complex, Sebastes complex, yellowtail rockfish, bocaccio, Dover sole,
or Pacific whiting than authorized in the limited-entry fishery. (See
paragraphs B.(1), C.(2), D.(1), E.(3), and F.(1).)
(3) California halibut or sea cucumber trawl. No more than 500
pounds (227 kg) of groundfish may be taken and retained, possessed, or
landed per trip by a vessel participating in the California halibut
fishery or in the sea cucumber fishery south or Point Arena, California
(38 deg.57'30'' N. latitude).
(i) A trawl vessel will be considered participating in the
California halibut fishery if (i) it is not fishing under a valid
limited-entry permit issued under 50 CFR part 663 for trawl gear, and
(ii) all fishing on the trip takes place south of Point Arena and the
landing includes California halibut of a size required at California
Fish and Game Code Section 8392(a) which states:
No California halibut may be taken, possessed or sold which
measures less than 22 inches in total length, unless it weighs four
pounds or more in the round, three and one-half pounds or more
dressed with the head on, or three pounds or more dressed with the
head off. Total length means the shortest distance between the tip
of the jaw or snout, whichever extends farthest while the mouth is
closed, and the tip of the longest lobe of the tail, measured while
the halibut is lying flat in natural repose, without resort to any
force other than the swinging or fanning of the tail.
(ii) A trawl vessel will be considered participating in the sea
cucumber fishery if (i) it is not fishing under a valid limited-entry
permit issued under 50 CFR part 663 for trawl gear, and (ii) all
fishing on the trip takes place South of Point Arena and the landing
includes sea cucumbers taken in accordance with California Fish and
Game Code Section 8396, which requires a permit issued by the State of
California.
(iii) Currently, no trawl trip limit in the limited-entry fishery
is less than 500 pounds (227 kg). However, if a limited-entry trip
limit were lower than 500 pounds (227 kg), no groundfish landing by
California halibut or sea cucumber trawl may be in excess of the
limited-entry trip limit for trawl gear.
(4) Operating in both limited-entry and open-access fisheries. The
open-access trip limit applies to any fishing conducted with open-
access gear, even if the vessel has a valid limited-entry permit with
an endorsement for another type of gear. A vessel operating in the
open-access fishery must not exceed any trip limit, frequency limit,
and/or size limit for the same gear and/or subarea in the limited-entry
fishery (as announced in this Federal Register notice in paragraphs
titled ``limited-entry''). A vessel that operates in both the open-
access and limited-entry fisheries is not entitled to two separate trip
limits for the same species. Fish caught with open-access gear will
also be counted toward the limited-entry trip limit.
(5) Sorting. 50 CFR 663.7(l) makes it unlawful for any person to
``fail to sort, prior to the first weighing after offloading, those
groundfish, species or species groups for which there is a trip limit,
if the weight of the total delivery exceeds 3,000 pounds (1,361 kg)
(round weight or round weight equivalent).'' This provision applies to
both the limited-entry and open-access fisheries.
IV. Recreational Fishing
(1) California. The bag limit for each person engaged in
recreational fishing seaward of the State of California is 5 lingcod
which may be no smaller than 22 inches (56 cm) (total length) and 15
rockfish per day. Multi-day limits are authorized by a valid permit
issued by the State of California and must not exceed the daily limit
multiplied by the number of days in the fishing trip.
(2) Oregon. The bag limit for each person engaged in recreational
fishing seaward of the State of Oregon is 3 lingcod per day and 15
rockfish per day, of which no more than 10 may be black rockfish
(Sebastes melanops).
(3) Washington (South of Leadbetter Point). The bag limit for each
person engaged in recreational fishing seaward of the States of
Washington south of Leadbetter Point (46 deg.38'10'' N. latitude) and
Oregon is 3 lingcod per day and 15 rockfish per day.
(4) Washington (North of Leadbetter Point). The bag limit for each
person engaged in recreational fishing seaward of the State of
Washington north of Leadbetter Point (46 deg.38'10'' N. latitude) is 3
lingcod per day and 12 rockfish per day.
V. Inseason Adjustments
At subsequent meetings, the Council will review the best data
available and recommend modifications to these management measures if
appropriate. The Council intends to examine the progress of these
fisheries during the year in order to avoid overfishing and to achieve
the goals and objectives of the FMP and its implementing regulations.
VI. Experimental Fisheries
U.S. vessels operating under an experimental fishing permit issued
under 50 CFR 663.10 also are subject to these restrictions unless
otherwise provided in the permit.
Classification
The final specifications and management measures for 1994 are
issued under the authority of and in accordance with the regulations
implementing the FMP at 50 CFR parts 611 and 663.
Much of the data necessary for these specifications and management
measures comes from the current fishing season. Because of the timing
of the receipt, development, review, and analysis of the fishery
information necessary for setting the initial specifications and
management measures, and the need to have these specifications and
management measures in effect at the beginning of the fishing year,
there is good cause to waive the publication of proposed specifications
in the Federal Register and 30-day comment period on the proposed
specifications. Amendment 4 to the FMP, implemented on January 1, 1991,
recognized these timeliness considerations, and set up a system by
which the interested public was notified, through Federal Register
notice and Council mailings of meetings, and of the development of
these measures, and was provided the opportunity to comment during the
Council process. The public participated in GMT, Groundfish Advisory
Subpanel, Scientific and Statistical Committee, and Council meetings in
August, September, October, and November 1993 that resulted in these
recommendations from the Council. Additional public comments will be
accepted for 30 days after publication of this notice in the Federal
Register. The Assistant Administrator for Fisheries, NOAA will consider
all comments made during the public comment period and may propose
modifications as appropriate.
Because the rule is being issued without prior notice and
opportunity for public comment, preparation of a Regulatory Flexibility
Analysis is not required and none has been prepared.
The Administrative Procedure Act requires that publication of an
action be made not less than 30 days before its effective date unless
the Secretary finds and publishes with the rule good cause for an
earlier effective date. Good cause for waiving the delay in
effectiveness is found if the delay is impracticable, unnecessary, or
contrary to the public interest. These specifications announce the
harvest goals and the management measures designed to achieve those
harvest goals in 1994. A delay in implementation could compromise the
management strategies that are based on the projected landings from
these trip limits. Therefore, a delay in effectiveness is contrary to
the public interest and these actions are effective on January 1, 1994.
List of Subjects
50 CFR Part 611
Fisheries, Foreign relations, Reporting and recordkeeping
requirements.
50 CFR Part 663
Administrative practice and procedure, Fisheries, Fishing,
Reporting and Recordkeeping requirements.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 30, 1993.
Samuel W. McKeen,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 93-32118 Filed 12-30-93; 5 pm]
BILLING CODE 3510-22-M
Complete official Federal Register PDF
FR Doc. 93-32117 Pacific Coast Groundfish Fishery
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Rules and Regulations]
[Pages 685-701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32117]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 663
[Docket No. 931248-3348; ID. 100693A]
Pacific Coast Groundfish Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule amends the regulations governing the
Pacific coast groundfish limited-entry fishery to: (1) Clarify
distinctions between holders, owners, and lessees of limited-entry
permits in the Pacific coast groundfish fishery by adding definitions
of these terms and making minor corrections consistent with the new
definitions; (2) clarify that shrimp (including spot and ridgeback
prawn) trawls, California halibut trawls, and California sea cucumber
trawls are ``exempted gear''; (3) delete trip limits for groundfish
taken in the pink shrimp and spot and ridgeback prawn trawl fisheries;
(4) designate trip limits in the pink shrimp and spot and ridgeback
prawn fisheries as ``routine'' management measures; (5) modify the
method of calculating allocations for the ``open-access'' fishery; and
(6) clarify that the sablefish ``regular'' season for nontrawl gear
only applies to the limited-entry groundfish fishery. These actions are
necessary to make the regulations implementing the Fishery Management
Plan for the Pacific Coast Groundfish Fishery (FMP) consistent with
Amendment 6 (limited entry) to the FMP, and to improve recordkeeping
and enforcement of regulations in the Pacific coast groundfish fishery.
DATES: Effective on December 30, 1993. Comments will be accepted
through January 31, 1994.
ADDRESSES: Effective January 1, 1994. Comments should be sent to Mr. J.
Gary Smith, Acting Director, Northwest Region, National Marine
Fisheries Service, 7600 Sand Point Way NE., BIN C15700, Seattle, WA
98115-0070.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140.
SUPPLEMENTARY INFORMATION: On November 16, 1992, NOAA promulgated
regulations (57 FR 54001) that establish a license limitation limited-
entry program for the Pacific coast commercial groundfish fishery based
on the issuance of gear-specific Federal permits (the ``limited-entry
program''). Under the program, permits are initially issued to owners
of qualifying vessels. Permits with type ``A'' gear endorsements are
transferrable, and may be leased by one vessel owner to another. The
implementing regulations, codified at 50 CFR part 663, subpart C, use
the terms ``permit holder'' and ``permit owner'' interchangeably, and
do not clearly define the relationship between permit owners and permit
lessees. This lack of definition creates potential recordkeeping and
enforcement problems. These problems stem from a person being able to
``own'' a permit, but lease it to someone else. Maintenance of records
identifying the permit owner, even if the permit is currently
registered to a lessee, is essential for recording and enforcement
purposes. The NMFS records system is the only place available to
officially record permit ownership, and give notice to creditors,
purchasers, encumbrancers, and other interested parties. NMFS itself
needs to know who owns the permit in the event it becomes necessary to
take an enforcement action such as sanctioning the permit or collecting
a delinquent penalty.
Accordingly, the first clarification made by this interim final
rule is to add the following definitions for ``permit owner,'' ``permit
lessee,'' and ``permit holder.'' A ``permit owner'' is defined as the
person owning the permit; a ``permit lessee'' is defined as a person
who does not own the permit, but has the right to possess and use it
for a designated period, with reversion to the permit owner; and
``permit holder'' is an umbrella term which includes both ``permit
owners'' and ``permit lessees.'' This rule amends the regulations in
multiple paragraphs to use the term ``permit owner'' rather than
``permit holder'' when appropriate, and to amend the definition of
``owner'' to ``owner of a vessel'' or ``vessel owner'' to distinguish a
vessel owner from a ``permit owner.'' These revisions clarify that only
permit owners may transfer a limited-entry permit to a different
person, thus not allowing a lessee to transfer the permit to someone
other than the permit owner.
With respect to administration of the limited-entry program, the
terms ``permit holder,'' ``permit owner,'' and ``permit lessee'' are
used for ease of understanding only, and do not signify traditional
property rights. As stated in Amendment 6,
Groundfish limited entry permits and endorsements confer a right
to participate in the Pacific coast groundfish fishery with a
limited entry gear in accordance with the limited entry system
established under the Pacific Coast Groundfish FMP as modified by
this chapter of the FMP (created under Amendment 6) or any future
amendment which may modify or even abolish the limited entry system.
The permits and endorsement are also subject to sanctions, including
revocation, as provided by the Magnuson Fishery Conservation and
Management Act, 16 U.S.C. at 1858(g) and 15 CFR part 904, subpart D.
The second clarification revises the definition of ``exempted
gear'' in the implementing regulations. Section 4.2.1 of the FMP states
that exempted gear includes all gears other than groundfish trawl,
longline, and fishpot (which are limited-entry gears). The FMP points
out that shrimp trawl gear, a non-groundfish trawl gear, is an exempt
gear. Shrimp trawl gear is not defined in terms of physical attributes,
but includes trawl gear used to take pink shrimp, or spot or ridgeback
prawns. Two other trawl fisheries, California halibut and California
sea cucumber, also have been identified as non-groundfish trawl
fisheries, which have traditionally landed small quantities of
groundfish as a bycatch. However, the implementing regulations at 50
CFR 663.31 define ``exempted'' gear as all types of fishing gear except
trawl, longline, and trap (or pot) gear, thus inadvertently excluding
shrimp, California halibut, and California sea cucumber trawl gear from
participation in the open-access fishery. This action clarifies that
``exempted'' gear includes all gear other than longline, trap, and
groundfish trawl gear. Trawl gear used to take pink shrimp, spot
prawns, ridgeback prawns, California halibut, or California sea
cucumbers is specifically defined as ``exempted gear.'' ``Limited-entry
gear'' is redefined to include ``groundfish trawl gear'' rather than
``all trawl gear.'' A new definition of ``groundfish trawl gear'' is
added to include only trawl gear used under the authority of a valid
Pacific Coast Groundfish limited-entry permit affixed with an
endorsement for trawl gear.
The third and fourth clarifications address how trip limits are
established for groundfish taken in trawl fisheries for pink shrimp and
spot and ridgeback prawn fisheries. Trip limits for groundfish in these
fisheries have been fixed in the regulations at 50 CFR 663.24(a) and
(b). The trip limits were codified because the Council did not foresee
any future need to revise them under the management regime that existed
prior to limited entry. Under Amendment 6, however, groundfish bycatch
in the shrimp and prawn trawl fisheries is managed as a component of
the ``open-access'' fishery because it is taken with ``exempted gear.''
Amendment 6 provides for the establishment of trip limits for bycatch
of groundfish with exempted gear in the open-access fishery to make
sure that the total catch of each species and species group does not
exceed the historical catch proportions during the limited-entry
qualifying period, and that the open-access allocations are not
exceeded during the fishing year. Because the amount of effort in the
open-access fishery may change over time, Amendment 6 contemplated that
trip limits may need frequent revision.
The Pacific coast groundfish regulations at 50 CFR 663.23(c)
establish a category of management measures called ``routine.'' Routine
measures include the types of management measures, primarily trip
limits but also including trip frequency limits and bag limits in the
recreational fishery, that need to be adjusted frequently in order to
manage the fishery consistent with the FMP's goals and objectives. Once
a particular management measure has been established by regulation as
``routine,'' the Pacific Fishery Management Council (Council) may
recommend that the Secretary adjust that measure at any time, following
consideration at a single Council meeting and publication of the
adjustment in the Federal Register, provided that the purpose for the
adjustment is consistent with the rationale for needing frequent
adjustments that was articulated at the time the management measure was
determined to be ``routine.''
Implementing regulations for Amendment 6 inadvertently omitted a
``routine'' designation for trip limits for groundfish in the shrimp
and prawn trawl fisheries. The routine designation is necessary in
order to limit the open-access catch of groundfish to its historical
catch proportions and to ensure that the annual open-access allocation
is not exceeded. Thus, this rule deletes the trip limits in the pink
shrimp and spot and ridgeback prawn fisheries at 50 CFR 663.24(a) and
(b) while simultaneously designating them as ``routine'' under 50 CFR
663.23(c)(2) so that the Council may recommend adjustments as necessary
without undertaking the time-consuming regulatory amendment process.
In accordance with the procedures for routine designation, the
Council considered the routine designation for trip limits for pink
shrimp and prawns at the September 1993 meeting and recommended the
designation at its November 1993 meeting. Rockfish and sablefish trip
landing and trip frequency limits for all gear are already designated
as routine. This action clarifies the regulations to include trip
landing and frequency limits for rockfish and sablefish in the open-
access as well as the limited-entry portion of the Pacific coast
groundfish fishery.
The fifth clarification addresses an inconsistency between how
catches in the ``limited-entry'' and ``open-access'' fisheries are
accounted for, and how the allocations are calculated for each fishery.
50 CFR 663.32(c) provides that any groundfish caught by a vessel with a
limited-entry permit will be counted against the limited-entry
allocation while the limited-entry fishery for that vessel's limited-
entry gear type is open. Thus, for example, while the limited-entry
fishery for groundfish is open, any groundfish taken by a vessel with a
limited-entry permit, even if it is fishing with exempted gear such as
shrimp trawl gear, will be counted against the limited-entry
allocation. In sections II.E.(d)(3) and (d)(4)(A)(1) and (2) of the
appendix to part 663, the ``open-access'' allocation is derived by
applying the open-access allocation percentage to the annual harvest
guideline or quota after subtracting any set asides for recreational
fishing or treaty Indians. The ``open-access allocation percentage'' is
calculated by computing the total catch during the limited-entry
qualifying (window) period by longlines and traps (or pots) not
initially receiving a limited-entry endorsement for that gear, and by
exempted gear, and dividing that amount by the total catch during the
window period by all gear. Thus, the groundfish catch taken during the
window period with exempted gear by a vessel that initially receives a
limited-entry permit will be included in the open-access allocation
even though the catch with that same exempted gear in 1994 and beyond
will count against the limited-entry allocation as long as the limited-
entry fishery is open. To rectify this inconsistency, this rule amends
the regulations to provide that the window period catch by vessels not
initially receiving limited-entry permits will count toward the ``open-
access'' allocation; conversely, the window period catch with exempted
gear by vessels initially receiving a limited-entry permit will count
toward the ``limited-entry'' allocation.
Finally, this rule clarifies that the ``regular'' season with
longline and fish trap (or pot) gear (nontrawl gear) for sablefish
refers only to the ``limited-entry'' fishery. Vessels participating in
the ``open-access'' fishery are not affected by the regular season
because they are regulated under open-access trip landing limits which
extend throughout the year.
Classification
This interim final rule is issued under the Magnuson Fishery
Conservation and Management Act, 16 U.S.C. 1801 et seq. This rule makes
minor changes designed to clarify and facilitate implementation of
Amendment 6. NMFS became aware of the need for these changes while
implementing the Pacific coast groundfish limited-entry program, a new
and complex regulatory system. These changes need to be in place when
the fishery itself begins to operate under the limited-entry system on
January 1, 1994. Most of the changes effected by this rule are
necessary to conform the implementing regulations to the letter and
intent of Amendment 6 to the FMP. As such, these provisions were
discussed and were subject to public comment and scrutiny during the
years the Council developed Amendment 6. Furthermore, the revisions and
clarifications are necessary to uniformly administer the program and to
ensure accurate recordkeeping. These provisions will not result in any
significant changes in the day-to-day operating practices of the
fishery. Accordingly, the Assistant Administrator for Fisheries, NOAA,
has determined under 5 U.S.C. 553(b) and (d), that it would be
unnecessary and contrary to the public interest to delay the
effectiveness of these provisions pending advance notice and comment
and a 30-day delay in effectiveness.
The revision of 50 CFR 663.22(d)(1) is the only change that was not
necessarily contemplated by Amendment 6; however, it would be
impracticable and contrary to the public interest to provide advance
notice and comment before the fishery converts to limited-entry
because, without it, permit owners and potential purchasers would be
susceptible to substantial losses if permits could be freely
transferred by permit lessees.
List of Subjects in 50 CFR Part 663
Fisheries, Fishing, Reporting and recordkeeping requirements.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 30, 1993.
Samuel W. McKeen,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 663 is amended
as follows:
PART 663--PACIFIC COAST GROUNDFISH FISHERY
1. The authority citation for part 663 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 663.7 [Amended]
2. In Sec. 663.7, in paragraph (q), the word ``groundfish'' is
added before the words ``trawl gear'' the first two times they appear.
3. In Sec. 663.23, paragraph (b)(2) is amended by revising the
paragraph heading and adding introductory text, the title of paragraph
(c)(1) is revised, paragraph (c)(2) is redesignated as (c)(3), and a
new paragraph (c)(2) is added to read as follows:
Sec. 663.23 Catch restrictions.
* * * * *
(b) * * *
(2) Nontrawl sablefish--Limited entry Fishery. This paragraph
(b)(2) applies to vessels using nontrawl gear in the limited entry
fishery, but not to vessels in the open access fishery as described in
Subpart C--Limited entry and Open Access Fisheries. * * *
* * * * *
(c) * * *
(1) Commercial--Limited entry and Open Access Fisheries. * * *
* * * * *
(2) Commercial--Open Access Fishery.
(i) All groundfish--Shrimp trawls used to harvest pink shrimp, spot
prawn, or ridgeback prawn--trip landing and frequency limits.
(ii) Reasons for ``routine'' management measures. All routine
management measures on the open access fisheries are intended to keep
landings within the harvest levels announced by the Secretary, maintain
landings at historical (1984-1988) proportions, and extend the fishing
season to minimize disruption of traditional fishing and marketing
patterns.
(3) Recreational. * * *
* * * * *
Sec. 663.24 [Removed and Reserved]
4. Section 663.24 is removed and reserved.
5. Section 663.31 is amended by revising the definitions of
``exempted gear,'' ``limited entry gear'', removing the definition of
``owner'' and adding definitions for ``groundfish trawl gear'', ``owner
of a vessel'', ``permit holder'', ``permit lessee'', and ``permit
owner'' in alphabetical order as follows:
Sec. 663.31 Definitions.
* * * * *
Exempted gear means all types of fishing gear except longline, trap
(or pot), and groundfish trawl gear. Exempted gear includes trawl gear
used to take pink shrimp, spot and ridgeback prawns, California halibut
south of Pt. Arena, California, and sea cucumber, south of Pt. Arena,
California, under the authority of a State of California limited entry
permit for the sea cucumber fishery.
* * * * *
Groundfish trawl gear means trawl gear that is used under the
authority of a valid limited entry permit issued under this part
endorsed for trawl gear. It does not include any type of trawl gear
listed as ``exempted gear.''
* * * * *
Limited entry gear means longline, trap (or pot) or groundfish
trawl gear used under the authority of a valid limited entry permit
affixed with an endorsement for that gear.
* * * * *
Owner of a vessel or vessel owner, as used in this subpart, means a
person who is identified as the current owner in the Certificate of
Documentation (CG-1270) issued by the U.S. Coast Guard for a documented
vessel, or in a registration certificate issued by a state or the U.S.
Coast Guard for an undocumented vessel.
* * * * *
Permit holder means a permit owner or a permit lessee.
Permit lessee means a person who has the right to possess and use a
limited entry permit for a designated period of time, with reversion to
the permit owner.
Permit owner means a person who owns a limited entry permit.
* * * * *
Sec. 663.33 [Amended]
6. In Sec. 663.33, in paragraph (d)(1), the words ``Permit holder''
are revised to read ``Permit owner'', and the words ``person, or'' are
revised to read ``person. The permit holder may''.
Sec. 663.35 [Amended]
7. In Sec. 663.35, in paragraph (b)(1), the word ``holder'' is
revised to read ``permit owner''.
8. In Sec. 663.35, in paragraph (b)(2)(i), the words ``permit
holder'' are revised to read ``permit owner''.
9. In Sec. 663.35, in paragraph (b)(2)(ii), the word ``transferee''
is revised to read ``new permit owner''.
Sec. 663.36 [Amended]
10. In Sec. 663.36, in paragraph (b)(1), the word ``holder'' is
revised to read ``permit owner''.
Sec. 663.37 [Amended]
11. In Sec. 663.37, in paragraph (b)(1), the word ``holder'' is
revised to read ``permit recipient''.
Sec. 663.41 [Amended]
12. In Sec. 663.41, in paragraph (c)(2), the twice occurrence of
the words ``permit holder'' are revised to read ``permit owner''.
13. In Sec. 663.41, in paragraph (c)(3), the words ``permit
holder'' are revised to read ``permit owner''.
14. In Section II.E.(d)(4)(i) of the appendix to part 663,
paragraph (A) is revised to read as follows:
Appendix to Part 663--Groundfish Management Procedures
* * * * *
II. * * *
E. * * *
(d) * * *
(4) * * *
(i) * * *
(A) Computing the total catch for that species during the window
period by any vessel that does not initially receive a limited entry
permit; and
* * * * *
[FR Doc. 93-32117 Filed 12-30-93; 5:12 pm]
BILLING CODE 3510-22-M
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