| Page Range | 38391-38612 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 38410 - Amendment to the Privacy of Consumer Financial Information Rule Under the Gramm-Leach-Bliley Act | |
| 80 FR 38475 - Sunshine Act Meetings | |
| 80 FR 38394 - Special Local Regulations; Annual Events in the Captain of the Port Detroit Zone | |
| 80 FR 38450 - National Institute on Drug Abuse; Notice of Closed Meetings | |
| 80 FR 38451 - Office of the Director Notice of Charter Renewal | |
| 80 FR 38417 - Drawbridge Operation Regulation; Rancocas Creek, Centerton, NJ | |
| 80 FR 38453 - Notice of Public Workshop Regarding Information Sharing and Analysis Organizations | |
| 80 FR 38446 - Delegation of Authority to the Commonwealth of Virginia To Implement and Enforce Additional or Revised National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards | |
| 80 FR 38444 - Proposed Consent Decree, Clean Air Act Citizen Suit | |
| 80 FR 38437 - Brass Sheet and Strip From Italy; Final Results of Antidumping Duty Administrative Review; 2013-2014 | |
| 80 FR 38397 - Special Local Regulation; L'HERMIONE Parade, Upper New York Bay and Lower Hudson River, New York, NY | |
| 80 FR 38394 - Special Local Regulations For Marine Events, Manasquan River; Seaside Park, New Jersey | |
| 80 FR 38501 - Generalized System of Preferences (GSP): Notice of a GSP Product Review, Including Possible Actions Related to Competitive Need Limitations | |
| 80 FR 38475 - Agency Information Collection Activities: Submission to OMB for Revision of a Currently Approved Information Collection, Credit Union Service Organizations; Comment Request | |
| 80 FR 38440 - Final Waiver and Extension of the Project Period; Native American Career and Technical Education Program | |
| 80 FR 38505 - Petition for Exemption; Summary of Petition Received | |
| 80 FR 38424 - Protecting and Promoting the Open Internet | |
| 80 FR 38448 - Agency Information Collection Activities; Proposed Collection; Comment Request; Extension of Certification of Maintenance of Effort on Help America Vote Act, Public Law 107-252, Title II, Subtitle D, Section 291, Payments for Protection and Advocacy Systems (P&A Voting Access Narrative Annual Report) | |
| 80 FR 38438 - Information Collection; Submission for OMB Review, Comment Request | |
| 80 FR 38450 - Advisory Council on Alzheimer's Research, Care, and Services; Meeting | |
| 80 FR 38448 - Administration on Intellectual and Developmental Disabilities, President's Committee for People With Intellectual Disabilities | |
| 80 FR 38461 - Notice of Open Public Meetings and Teleconferences for the National Park Service Alaska Region Subsistence Resource Commission Program | |
| 80 FR 38461 - Notice of July 20, 2015, Meeting for Cape Cod National Seashore Advisory Commission | |
| 80 FR 38462 - Notice of July 29, 2015, Meeting for Kalaupapa National Historical Park Advisory Commission | |
| 80 FR 38472 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Approval of a New Collection Request for Emergency or Term Access to National Security Information Form (FD-1116) | |
| 80 FR 38512 - Proposed Information Collection; Comment Request | |
| 80 FR 38512 - Advisory Group to the Commissioner of Internal Revenue; Renewal of Charter | |
| 80 FR 38463 - Determination of Eligibility for Consideration as Wilderness Areas, Intent To Prepare Wilderness Study, Big Cypress National Preserve | |
| 80 FR 38432 - Notice of Solicitation of Applications for the Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program | |
| 80 FR 38410 - Federal Housing Administration (FHA): Single Family Mortgage Insurance Maximum Time Period for Filing Insurance Claims, Curtailment of Interest and Disallowance of Operating Expenses Incurred Beyond Certain Established Timeframes | |
| 80 FR 38455 - 60 Day Notice of Proposed Information Collection; Ginnie Mae Mortgage-Backed Securities Guide 5500.3, Revision 1 (Forms and Electronic Data Submissions) | |
| 80 FR 38427 - Agency Information Collection Activities: Proposed Collection; Comment Request-Food Program and Reporting System (FPRS) | |
| 80 FR 38463 - Boundary Description and Final Maps for Virgin River, Zion National Park, Utah | |
| 80 FR 38436 - Export Trade Certificate of Review | |
| 80 FR 38430 - Notice of Intent To Revise and Extend a Currently Approved Information Collection | |
| 80 FR 38454 - Intent to Request Renewal From OMB of One Current Public Collection of Information: Office of Law Enforcement/Federal Air Marshal Service LEO Reimbursement Request | |
| 80 FR 38430 - Notice of Intent To Request an Extension of a Currently Approved Information Collection | |
| 80 FR 38439 - U.S. Air Force Exclusive Patent License | |
| 80 FR 38447 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 38447 - Notice of Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 80 FR 38504 - Office of Commercial Space Transportation; Notice of Availability of the Final Environmental Assessment (Final EA), Finding of No Significant Impact (FONSI), and Record of Decision (ROD) for the Houston Spaceport, City of Houston, Harris County, Texas | |
| 80 FR 38478 - Privacy Act of 1974; System of Records | |
| 80 FR 38473 - Privacy Act of 1974; Publication of an individual Systems of Records | |
| 80 FR 38467 - Manufacturer of Controlled Substances Registration: Rhodes Technologies | |
| 80 FR 38513 - Open Meeting of the Financial Research Advisory Committee | |
| 80 FR 38466 - Manufacturer of Controlled Substances Registration: Halo Pharmaceutical, Inc. | |
| 80 FR 38472 - Manufacturer of Controlled Substances Registration: Noramco, Inc. | |
| 80 FR 38471 - Manufacturer of Controlled Substances Registration: Euticals, Inc. | |
| 80 FR 38471 - Importer of Controlled Substances Registration: Mylan Pharmaceuticals, Inc. | |
| 80 FR 38465 - Manufacturer of Controlled Substances Registration: Johnson Matthey, Inc. | |
| 80 FR 38511 - Norfolk Southern Railway Company-Abandonment, Discontinuance of Trackage Rights and Discontinuance of Service-in Cleveland and Rutherford Counties, NC, and Cherokee County, SC | |
| 80 FR 38439 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Child Care Access Means Parents in School Program Annual Performance Report | |
| 80 FR 38468 - Importer of Controlled Substances Application: Lipomed, Inc. | |
| 80 FR 38508 - Information Collection Activities: Statutory Licensing and Consolidation Authority | |
| 80 FR 38466 - Importer of Controlled Substances Application: United States Pharmacopeial Convention | |
| 80 FR 38467 - Importer of Controlled Substances Application: Kremers Urban Pharmaceuticals, Inc. | |
| 80 FR 38467 - Bulk Manufacturer of Controlled Substances Application: AMPAC Fine Chemicals LLC | |
| 80 FR 38471 - Bulk Manufacturer of Controlled Substances Application: Navinta, LLC | |
| 80 FR 38459 - Renewal of Approved Information Collection | |
| 80 FR 38507 - Aston Martin Lagonda Limited, Receipt of Petition for Decision of Inconsequential Noncompliance | |
| 80 FR 38441 - Orlando Utilities Commission; Notice of Filing | |
| 80 FR 38442 - Combined Notice of Filings #1 | |
| 80 FR 38464 - Certain Windshield Wipers and Components Thereof; Notice of a Commission Determination not to Review an Initial Determination Terminating Investigation as to Federal-Mogul Respondents Based on a Settlement Agreement | |
| 80 FR 38464 - Preserved Mushrooms from Chile, China, India, and Indonesia; Scheduling of expedited five-year reviews | |
| 80 FR 38501 - Privacy Act of 1974, as Amended; Computer Matching Program (Social Security Administration (SSA)/Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA))-Match Number 1309 | |
| 80 FR 38499 - Small Business Investment Companies-Request for Comments on Credit and Risk Management Issues | |
| 80 FR 38500 - Texas Disaster Number TX-00447 | |
| 80 FR 38498 - Nebraska Disaster #NE-00065 | |
| 80 FR 38478 - Product Change-Parcel Return Service Negotiated Service Agreement | |
| 80 FR 38477 - Product Change-Parcel Return Service Negotiated Service Agreement | |
| 80 FR 38478 - Product Change-Priority Mail Negotiated Service Agreement | |
| 80 FR 38452 - Agency Information Collection Activities: Transfer of Cargo to a Container Station | |
| 80 FR 38452 - Agency Information Collection Activities: Importers of Merchandise Subject to Actual Use Provisions | |
| 80 FR 38509 - Information Collection Activities: Statutory Authority To Preserve Rail Service | |
| 80 FR 38491 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Delivery Procedures | |
| 80 FR 38481 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Extension of the Exchange's Penny Pilot Program and Replacement of Penny Pilot Issues That Have Been Delisted | |
| 80 FR 38493 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.9 of BATS Y-Exchange, Inc., To Modify its Price Adjust Functionality | |
| 80 FR 38496 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.9 of BATS Exchange, Inc., To Modify its Price Adjust Functionality | |
| 80 FR 38483 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving Proposed Rule Change Amending Rule 6.35 to Modify the Appointment Process Utilized by the Exchange | |
| 80 FR 38486 - Self-Regulatory Organizations; NYSE MKT LLC; Order Approving Proposed Rule Change Amending Rule 923NY to Modify the Appointment Process Utilized by the Exchange | |
| 80 FR 38489 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Amend the Fees Schedule | |
| 80 FR 38488 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change Relating to Finance Procedures To Add Clearstream Banking as a Triparty Collateral Service Provider | |
| 80 FR 38489 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940 | |
| 80 FR 38480 - Submission for OMB Review; Comment Request | |
| 80 FR 38476 - New Postal Product | |
| 80 FR 38477 - New Postal Product | |
| 80 FR 38506 - Reports, Forms and Recordkeeping Requirements; Agency Information Collection Activity Under OMB Review; Request for Comments on a New Information Collection | |
| 80 FR 38449 - The Drug Supply Chain Security Act Implementation: Product Tracing Requirements for Dispensers-Compliance Policy; Guidance for Industry, Availability | |
| 80 FR 38423 - Approval of Air Quality Implementation Plans; Sheboygan County, Wisconsin 8-Hour Ozone Nonattainment Area; Reasonable Further Progress Plan | |
| 80 FR 38400 - Approval of Air Quality Implementation Plans; Sheboygan County, Wisconsin 8-Hour Ozone Nonattainment Area; Reasonable Further Progress Plan | |
| 80 FR 38419 - Approval and Promulgation of Implementation Plans; Arkansas; Interstate Transport State Implementation Plan To Address Pollution Affecting Visibility | |
| 80 FR 38403 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Minor New Source Review Requirements | |
| 80 FR 38451 - Center for Scientific Review Notice of Closed Meetings | |
| 80 FR 38437 - United States Manufacturing Council: Meeting of the United States Manufacturing Council | |
| 80 FR 38429 - Ketchikan Resource Advisory Committee | |
| 80 FR 38445 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Kansas | |
| 80 FR 38408 - Airworthiness Directives; The Boeing Company Airplanes | |
| 80 FR 38406 - Airworthiness Directives; Piaggio Aero Industries S.p.A Airplanes | |
| 80 FR 38458 - Endangered and Threatened Wildlife and Plants; Notice of Availability of Draft Polar Bear Conservation Management Plan | |
| 80 FR 38391 - Airworthiness Directives; M7 Aerospace LLC Airplanes | |
| 80 FR 38427 - Notice of July 9 Advisory Committee on Voluntary Foreign Aid Meeting | |
| 80 FR 38515 - Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees |
Food and Nutrition Service
Forest Service
National Institute of Food and Agriculture
Rural Business-Cooperative Service
International Trade Administration
Air Force Department
Federal Energy Regulatory Commission
Community Living Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Drug Enforcement Administration
Wage and Hour Division
Federal Aviation Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2011-17-07 for certain M7 Aerospace LLC (type certificate previously held by M7 Aerospace LP) Models SA226-T, SA226-T(B), SA226-TC, and SA226-AT airplanes. AD 2011-17-07 required repetitive replacement and inspection of certain elevator, rudder, aileron, and aileron-to-rudder interconnect primary control cables, and checking and setting of flight control cable tension. This AD requires repetitively inspecting and replacing the primary flight control rudder cables, repetitively replacing all other primary flight control and trim tab cables, and checking/setting the flight control cable tension. This AD was prompted by a report of extensive damage found on the left hand primary flight control rudder cable located under the cockpit floor on one of the airplanes affected by AD 2011-17-07. We are issuing this AD to correct the unsafe condition on these products.
This AD is effective July 21, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 21, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of September 1, 2011 (76 FR 50881, August 17, 2011).
We must receive any comments on this AD by August 20, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet:
You may examine the AD docket on the Internet at
Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email:
On August 2, 2011, we issued AD 2011-17-07, Amendment 39-16771 (76 FR 50881, August 17, 2011), (“AD 2011-17-07”), for certain M7 Aerospace LLC (type certificate previously held by M7 Aerospace LP) Models SA226-T, SA226-T(B), SA226-TC, and SA226-AT airplanes. AD 2011-17-07 required repetitive replacement and inspection of certain elevator, rudder, aileron, and aileron-to-rudder interconnect primary control cables, and checking and setting of flight control cable tension. AD 2011-17-07 resulted from a report that the left-hand primary rudder control cable on a Model SA226-T airplane failed where the cable makes a 30 degree angle over a small pulley to accommodate re-routing of the control cable alongside the camera system installed in the center of the cabin.
We issued AD 2011-17-07 to prevent failure of a rudder, aileron and/or elevator control cable.
Since we issued AD 2011-17-07, extensive damage to the left hand (LH) primary flight control rudder cable was found under the cockpit floor on one of the airplanes affected by AD 2011-17-07. Inspection of the cable revealed five of the seven wires that make up the LH cable were broken adjacent to the pulley at FS126.06. A follow-on inspection of the right hand (RH) primary flight control rudder cable also showed several strands of some of the 7 x 19 cable wires were broken at the same RH FS126.06 pulley location. Both cables had been replaced at 1,513 hours time-in-service (TIS) before the finding of the broken cables to comply with the 3,500-hour TIS replacement time required in AD 2011-17-07.
We are issuing this AD to correct the unsafe condition on these products.
We reviewed M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011, and M7 Aerospace SA226 Series Service Letter 226-SL-050, issued April 15, 2015. The service
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD retains the actions previously required in AD 2011-17-07 and adds new inspection and replacement requirements for the LH and RH primary flight control rudder cables.
M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011, requires replacing the LH and the RH primary flight control rudder cables every 3,500 hours TIS. This AD requires inspecting the LH and the RH primary flight control rudder cables every 200 hours TIS and requires replacing the LH and the RH primary flight control rudder cables every 800 hours TIS.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because there are no airplanes currently on the U.S. registry and thus, does not have any impact upon the public. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
There are no affected airplanes currently on the U.S. registry. However, if an airplane affected by this AD were to become a U.S.-registered airplane, we estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 21, 2015.
(1) This AD supersedes AD 2011-17-07, Amendment 39-16771 (76 FR 50881, August 17, 2011) (“AD 2011-17-07”).
(2) AD 87-02-02, Amendment 39-5518 (52 FR 2511, January 23, 1987) relates to the subject of this AD.
This AD applies to the following M7 Aerospace LLC airplanes, certificated in any category, as identified in table 1 of paragraph (c) of this AD:
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by a report of extensive damage found to the left hand primary flight control rudder cable located under the cockpit floor on one of the airplanes affected by AD 2011-17-07. We are issuing this AD to prevent failure of a rudder, aileron and/or elevator control cable.
Unless already done, comply with paragraphs (g) through (k) of this AD. If the hours time-in-service (TIS) of the control cables cannot be positively determined by the logbook, then you must use hours TIS of the airplane to comply with the requirements of this AD.
Within the next 10 hours TIS after July 21, 2015 (the effective date of this AD) or within the next 60 days after July 21, 2015 (the effective date of this AD), whichever occurs first, and repetitively thereafter at or before reaching 200 hours TIS from the last inspection or replacement, do a detailed visual inspection of the left hand (LH) and right hand (RH) primary flight control rudder cables under the floor between FS 116.56 and FS 138.56, with specific focus on the cable and the pulley at FS126.06. Do the inspection as stated in paragraph 4. ACTION of M7 Aerospace SA226 Series Service Letter 226-SL-050, issued April 15, 2015, following the procedures specified in paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, section B., subparagraph (2) of M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011.
Before further flight after any inspection required in paragraph (g) of this AD, if any one of the conditions described in paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, section B., subparagraphs (3)(a) through (3)(d) of M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011, is found, replace the affected primary flight control rudder cable or cables with a new cable. Do the replacements following paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, sections C. through E., including all subparagraphs of M7 Aerospace Service Bulletin 226-27-072, issued June 27, 2011.
Within the next 800 hours TIS after the last replacement or within the next 50 hours TIS after July 21, 2015 (the effective date of this AD), whichever occurs later, and repetitively thereafter every 800 hours TIS, replace the LH and RH primary flight control rudder cables with new cables. Do the replacements following paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, sections C. through E., including all subparagraphs of M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011.
(1)
(2) If any deficiencies are found during the inspection required in paragraph (j)(1) of this AD, before further flight replace the cable(s).
(3) Replace all other primary control and trim tab cables (pilot and co-pilot aileron cables, rudder/aileron interconnect cables, aileron trim tab cables, rudder trim tab cables, and elevator cables) within the initial compliance times as listed in paragraphs (j)(3)(i) through (j)(3)(iii) below and repetitively thereafter at intervals not to exceed 3,500 hours TIS. Do the replacements following paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, sections C. through E., including all subparagraphs of M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011.
(i)
(ii)
(iii)
Between 50 hours TIS and 200 hours TIS after installing any new control cable as required in paragraphs (g) through (j) of this AD, including all subparagraphs, check (set) flight control cable tension following paragraph 2. ACCOMPLISHMENT INSTRUCTIONS, sections C. through E. of M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(1) The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (n) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved for AD 2011-17-07, Amendment 39-16771 (76 FR 50881, August 17, 2011) are not approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on July 21, 2015.
(i) M7 Aerospace SA226 Series Service Letter 226-SL-050, issued April 15, 2015.
(ii) Reserved.
(4) The following service information was approved for IBR on September 1, 2011 (76 FR 50881, August 17, 2011).
(i) M7 Aerospace SA226 Series Service Bulletin 226-27-072, issued June 27, 2011.
(ii) Reserved.
(5) For M7 Aerospace LLC service information identified in this AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet:
(6) You may view this service information at FAA, FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zones for annual marine events in the Captain of the Port Detroit zone on the dates and times noted below. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after marine events. During the aforementioned period, the Coast Guard will enforce restrictions upon, and control movement of, vessels in a portion of the Captain of the Port Detroit zone.
The regulations in 33 CFR 100.921, 33 CFR 100.927, and 33 CFR 100.928 will be enforced on the dates and times noted below.
If you have questions on this notice, call or email LT Jennifer M. Disco, Waterways Branch Chief, Marine Safety Unit Toledo, 420 Madison Ave., Suite 700, Toledo, OH 43604; telephone (419) 418-6023; email
The Coast Guard will enforce the special local regulations listed in 33 CFR 100.921, 33 CFR 100.927, and 33 CFR 100.928, Special Local Regulations; Annual Events in the Captain of the Port Detroit Zone, at the following times for the following events:
(1)
(2)
(3)
Under the provisions of 33 CFR 100.921, 33 CFR 100.927, and 33 CFR 100.928, vessels transiting within the regulated area shall travel at a no-wake speed and remain vigilant for event participants and safety craft. Additionally, vessels shall yield right-of-way for event participants and event safety craft and shall follow directions given by the Coast Guard's on-scene representative or by event representatives during the event. The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his behalf. The on-scene representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port, Sector Detroit or his designated on scene representative may be contacted via VHF Channel 16.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is temporarily changing the enforcement date of the special local regulation for the recurring New Jersey Offshore Grand Prix, held in the waters of the Manasquan River and Atlantic Ocean, near Seaside Park, New Jersey. The change of enforcement date for the special local regulation is necessary to provide for the safety of life on navigable waters during the event. This action will restrict vessel traffic in the waters of the Manasquan River and Atlantic Ocean near Seaside Park, New Jersey, from 10:00 a.m. to 5:00 p.m. on July 9, 2015, and July 10, 2015.
This rule is effective from July 9 to July 30, 2015.
Documents mentioned in this preamble are part of docket [USCG-
If you have questions on this temporary rule, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271-4851, email
The regulation for this recurring marine event may be found at 33 CFR 100.501, Table to § 100.501, section (a), line “7”. This year, the date is different than published in the Table, so this temporary final rule has been issued.
The Coast Guard is issuing this final rule after publication of NPRM USCG-2015-0328 (80 FR 35281) which received no comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorizes the Coast Guard to establish and define special local regulations.
The purpose of this special local regulation is to provide for the safety of participants, spectator craft, and other vessels transiting the event area while the Grand Prix is occurring.
The Coast Guard has previously published a list of annual marine events within the Fifth Coast Guard District and special local regulation locations at 33 CFR 100.501. The Table to § 100.501 identifies special local regulations by COTP zone, with the COTP Delaware Bay zone listed in section “(a.)” of the Table. The Table to § 100.501, at section (a.) event Number “7”, describes the enforcement date and regulated location for this marine event.
The date listed in the Table has the marine event on the third Wednesday and Thursday of July. However, this temporary rule changes the marine event date to July 9, 2015 and July 10, 2015, to reflect the actual date of the event for this year.
The Coast Guard will temporarily suspend the regulation listed in Table to § 100.501, section (a) event Number “7”, and insert this temporary regulation at Table to § 100.501, at section (a.) as event Number “15”, in order to reflect that the special local regulation will be effective and enforced from 10:00 a.m. until 5:00 p.m. on July 9, 2015 and July 10, 2015. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.
The regulated area of this special local regulation includes all the waters of the Manasquan River from the New York and Long Branch Railroad Bridge to Manasquan Inlet, together with all of the navigable waters of the United States from Asbury Park, New Jersey, latitude 40°14′00″ N.; southward to Seaside Park, New Jersey latitude 39°55′00″ N., from the New Jersey shoreline seaward to the limits of the Territorial Sea as defined in 33 CFR 2.22.
A fleet of spectator vessels is anticipated to gather nearby to view the marine event. Due to the need for vessel control during the marine event vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 100.501, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.
The Coast Guard may assign an event patrol, as described in 33 CFR 100.40, to each regulated event listed in the table. Additionally, a Patrol Commander may be assigned to oversee the patrol. The event patrol and Patrol Commander may be contacted on VHF-FM Channel 16. During the event, the Coast Guard Patrol Commander may forbid and control the movement of all vessels in the regulated area(s). When hailed or signaled by an official patrol vessel, a vessel in these areas shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard Patrol Commander may terminate the event, or the operation of any vessel participating in the event, at any time it is deemed necessary for the protection of life or property. Coast Guard Sector Delaware Bay will notify the public by broadcast notice to mariners at least one hour prior to the times of enforcement.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Special Local Regulation to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the Special Local Regulation with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the boat race.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100, applicable to Special Local Regulations on the navigable waterways. This zone will temporarily restrict vessel traffic from transiting the Manasquan River in the vicinity of Asbury Park, NJ, in order to protect the safety of life and property on the waters for the duration of the boat race. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
Coast Guard, DHS.
Temporary interim rule with request for comments.
The Coast Guard is establishing a Special Local Regulation on the navigable waters of the Upper New York Bay and Lower Hudson River, NY for the tall ship L'HERMIONE boat parade. This Special Local Regulation allows the Coast Guard to enforce restrictions on all vessel traffic through the Special Local Regulation during the L'HERMIONE boat parade, both planned and unforeseen, that could pose an imminent hazard to persons and vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during the parade of ships. The Coast Guard is issuing this temporary rule due to the exigent circumstances and invites comments to modify or amend the rule, as necessary.
This rule is effective and will be enforced from 6 a.m. to 3 p.m. on July 4, 2015.
Comments and related material may be received by the Coast Guard throughout the effective period.
Requests for public meetings must be received by the Coast Guard on or before July 27, 2015.
Documents mentioned in this preamble are part of Docket Number USCG-2015-0457. To view documents mentioned in this preamble as being available in the docket, go to
You may submit comments, identified by docket number, using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, contact Lieutenant Douglas Neumann, Waterways Management Division at Coast Guard Sector New York, telephone 718-354-4154 or email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We currently do not plan to hold a public meeting. You may, however, submit a request for one, using one of the methods specified under
The Coast Guard is issuing this temporary interim rule without prior notice through an NPRM pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because the event sponsors were late in submitting the marine event application. The Coast Guard will, however, consider comments in issuing a subsequent temporary interim rule or temporary final rule.
This late submission did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the parade, since the final submission was received on May 13, 2015. It would be impracticable and contrary to the public interest to delay promulgating this rule, as it is necessary to protect the safety of waterway users. At any time, the Coast Guard may publish an amended rule if necessary to address public concerns.
For the same reasons mentioned above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Under the Ports and Waterways Safety Act, 33 U.S.C. 1231, 1233; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation No. 0170.1, the Coast Guard has the authority to establish Special Local Regulations in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety.
This rule is prompted by the navigation safety situation created by highly concentrated boat parade through a highly-trafficked harbor.
The purpose of this rulemaking is to provide for safety on the navigable waters in the regulated area during the parade.
The Coast Guard is establishing a Special Local Regulation on the navigable waters of the Upper New York Bay and Lower Hudson River. This Special Local Regulation allows the Coast Guard to enforce restrictions on all vessel traffic through the parade route during the L'HERMIONE Parade, both planned and unforeseen, that could pose an imminent hazard to persons and vessels operating in the area. All vessels participating in the parade must proceed at five knots and display a flag that is blue in color. Parade vessels are required to be power driven. Sailing vessels may hoist sails, but are required to be power driven. All vessels must have the ability to communicate of VHF Frequency channel 8. Parade vessels must keep a distance of 50 yards from the L'HERMIONE at all times, unless authorized by the COTP or a designated representative. All vessels not participating in the parade but viewing the parade must keep a distance of 250 yards from the parade participants and not interfere with marine traffic. Human-powered vessels, such as kayaks and canoes, will not be considered participants in the parade, nor will they be allowed to enter the formation of the parade.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard determined that this rulemaking will not be a significant regulatory action for the following reasons: vessel traffic will only be restricted for limited durations and the Special Local Regulation covers only a small portion of the navigable waterway. Advanced public notifications will also be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter or transit within the parade route during a vessel restriction period.
The Special Local Regulation would not have a significant economic impact on a substantial number of small entities for the following reasons: the Special Local Regulation would be of limited size and any waterway closure of short duration. Additionally before the effective period of a waterway closure, advanced public notifications will be
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves restricting vessel movement within an area. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Safety of life in the regatta or marine parade area.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(2) In accordance with the general regulations, entry into or movement within this zone, during periods of enforcement, is prohibited unless authorized by the COTP Sector New York or a designated representative.
(3) Persons and vessels may request permission to enter the parade route by contacting the COTP or one of the COTP's on-scene representatives on VHF-16 or via phone at 718-354-4353.
(4) During periods of enforcement, all vessels participating in the parade must proceed at five knots or at such speed dictated by the event organizers. Vessels participating in the parade must display a flag that is blue in color and are required to be power driven. Sailing vessels may hoist sails, but are required to be power driven and must maneuver as power driven vessels. All vessels must have the ability to communicate on VHF Frequency channel 8. Vessels must keep a distance of 50 yards from the L'HERMIONE at all times unless authorized by the COTP or a designated representative. All vessels not participating in the parade but viewing the parade must keep a distance of 250 yards from the parade participants and not interfere with marine traffic. Human power vessels, such as kayaks and canoes will not be considered participants in the parade, nor will they be allowed to enter the formation of the parade.
(5) Vessels must comply with all directions given to them by the COTP or one of the COTP's on-scene representatives. The “on-scene representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. An on-scene representative may be on a Coast Guard vessel, private vessel, or may be on shore and communicating with vessels via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(6) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.
(7) All other relevant regulations, including but not limited to the Rules of the Road (33 CFR 84—Subchapter E, Inland Navigational Rules) remain in effect within the regulated area and must be strictly followed at all times.
(c)
(1) Prior to commencing or suspending enforcement of this regulation, the COTP will give notice by appropriate means to inform the affected segments of the public, to include dates and times. Such means of notification will include constructive notice by publication in the
(2) Violations of this Special Local Regulation may be reported to the COTP at 718-354-4353 or on VHF-Channel 16.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving an Early Progress Plan and motor vehicle emissions budgets (MVEBs) for volatile organic compounds (VOCs) and oxides of nitrogen (NO
This direct final rule will be effective September 4, 2015, unless EPA receives adverse comments by August 5, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0075, by one of the following methods:
1.
2.
3.
4.
5.
Michael Leslie, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6680,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
EPA's final rule designating nonattainment areas and associated classifications for the 2008 ozone National Ambient Air Quality Standards (NAAQS) was published in the
EPA allows for the establishment of MVEBs for the 8-hour ozone standard prior to a state submitting its first required 8-hour ozone SIP that would include new MVEBs. Although voluntary, these “early” MVEBs must be established through a plan that meets all the requirements of a SIP submittal. This plan is known as the “Early Progress Plan.” Specifically and in reference to Early Progress Plans, the preamble of the July 1, 2004, final transportation conformity rule (
“The first 8-hour ozone SIP could be a control strategy SIP required by the Clean Air Act (
The Early Progress Plan must demonstrate that the SIP revision containing the MVEBs, when considered with emissions from all sources, and when projected from the base year to a future year, shows some progress toward attainment. EPA has previously indicated that a 5 percent to 10 percent reduction in emissions from all sources could represent a significant level of emissions reductions from current levels (69 FR 40019). This allowance is provided so that areas have an opportunity to use the budget test to demonstrate conformity as opposed to the interim conformity tests (
It should also be noted that the Early Progress Plan is not a required plan and does not substitute for required submissions such as an attainment demonstration or rate-of-progress plan, if such plans become required for the Sheboygan 8-hour ozone area.
On January 16, 2015, the State submitted to EPA an Early Progress Plan for the sole purpose of establishing MVEBs for the Sheboygan 8-hour ozone area. The submittal utilizes a base year of 2011, and a projected year 2015 to establish NO
EPA found these MVEBs adequate for transportation conformity purposes in an earlier action (80 FR 17428). As of April 16, 2015, the effective date of EPA's adequacy finding for these MVEBs, conformity determinations in Sheboygan County must meet the budget test using these 8-hour MVEBs, instead of the 1-hour ozone MVEBs. Please note that this adequacy finding does not relate to the merits of the SIP submittal, nor does it indicate whether the submittal meets the requirements for approval. This EPA rulemaking action takes formal action on the Early Progress Plan SIP revision.
Through this rulemaking, EPA is approving the 2015 regional MVEBs for NO
The 2015 MVEBs in tpd for VOCs and NO
EPA is approving Sheboygan's Early Progress Plan, including the 2015 MVEBs for NO
EPA issues this direct final rulemaking in response to Wisconsin's January 16, 2015 submittal of an Early Progress Plan. This revision is a voluntary SIP revision for the sole purpose of establishing MVEBs for the purpose of implementing transportation conformity in the Sheboygan 8-hour ozone area.
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(cc) Approval—On January 16, 2015, the State of Wisconsin submitted a revision to its State Implementation Plan for Sheboygan County, Wisconsin. The submittal established new Motor Vehicle Emissions Budgets (MVEB) for Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NO
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a January 24, 2013 State Implementation Plan (SIP) revision submitted for the State of Maryland by the Maryland Department of the Environment (MDE). This revision pertains to preconstruction permitting requirements under Maryland's minor New Source Review (NSR) program. This action is being taken under the Clean Air Act (CAA).
This final rule is effective on August 5, 2015.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0225. All documents in the docket are listed in the
David Talley, (215) 814-2117, or by email at
On April 29, 2015 (80 FR 23756), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of revisions to MDE's minor NSR program. The formal SIP revision (#12-10) was submitted by MDE on behalf of the State of Maryland on January 24, 2013.
The revision consists of amendments to Regulation .09 under section 26.11.02 of the Code of Maryland Regulations (COMAR). An amendment to COMAR 26.11.01.01 inadvertently widened the universe of sources that are required to obtain a permit to construct under COMAR 26.11.02.09. The previously approved version of COMAR 26.11.02.09A(4) requires that any “National Emission Standards for Hazardous Air Pollutants Source (NESHAP Source) as defined in section 26.11.01.01 . . .” obtain a permit to construct. The definition of NESHAP Source at COMAR 26.11.01.01B(21) was amended and simplified (specifically, 26.11.01.01B(21)(b)), effective March 5, 2012.
COMAR 26.11.02.09A(4) has been revised to specify that NESHAP sources “. . . as defined by COMAR 26.11.01.01B(21)(a),” are required to obtain a permit to construct. This corrects the unintended consequence of applying MDE permitting requirements to emission sources that would otherwise be exempt. COMAR 26.11.02.09A(6) will continue to require that all sources not explicitly exempt are required to obtain a permit to construct. Additionally, as previously discussed, Regulations .09A(3) and .09A(4) under section 26.11.02 have been revised to clarify that electric generating stations that meet the definitions of NSPS sources and NESHAP sources are exempt from permitting requirements only if they receive a CPCN from the Maryland PSC.
As was noted in the NPR, limited approval was previously granted to a Maryland SIP revision that included amendments to COMAR 26.11.02.09.
Other specific requirements of MDE's January 24, 2013 submittal and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving MDE's January 24, 2013 submittal as a revision to the Maryland SIP. This action is being taken in accordance with CAA section 110.
In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MDE rules regarding definitions and permitting requirements discussed in section II of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Maryland's minor NSR program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Piaggio Aero Industries S.p.A Model P-180 airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as the need to restore the safe fatigue life of the bulkhead structure. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by August 20, 2015.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Piaggio Aero Industries S.p.A, Airworthiness Office, Viale Generale Disegna, 1-17038 Villanova d'Albenga, Savona, Italy; telephone: +39 010 6481800; fax: +39 010 6481374; email:
You may examine the AD docket on the Internet at
Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2015-0071, dated: April 30, 2015 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
In 1997, Piaggio Aero Industries S.p.A (PAI) developed a modification of the forward pressurized bulkhead, published through PAI Service Bulletin (SB) 80-0081, aiming to restore the safe fatigue life of the bulkhead structure.
Consequently, ENAC Italy (formerly RAI) issued Prescrizione di Aeronavigabilita (PA) 97-148 to require compliance with this SB.
After RAI PA 97-148 was issued, PAI issued SB 80-0081 Revision 2 to provide improved instructions for specific serial numbers. Prompted by this development, EASA issued AD 2010-0146 superseding PA 97-148 and requiring accomplishment of instruction of PAI issued SB 80-0081 Revision 2.
After that AD was issued, PAI issued SB 80-0081 Revision 3 to make the instructions for inspection (and, depending on findings, rework/reinforcement) applicable to all aeroplanes.
For the reasons described above, this AD retains the requirements of EASA AD 2010-0146, which is superseded, requires inspection and, depending on findings, reinforcement of the pressurized bulkhead structure on extended population of aeroplanes. This AD also specifies that certain aeroplanes modified in accordance with SB 80-0081 up to Revision 2 need to be inspected and, depending on findings, reinforced as required by this AD.
You may examine the MCAI on the Internet at
Piaggio Aero Industries S.p.A has issued Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015. The service information describes procedures for inspection and, depending on findings, rework/reinforcement of the bulkhead. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD will affect 28 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,380, or $85 per product.
In addition, we estimate that any necessary follow-on actions would take about 88 work-hours and require parts costing $30,000, for a cost of $37,480 per product. We have no way of determining the number of products that may need these actions.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by August 20, 2015.
None.
This AD applies to Piaggio Aero Industries S.p.A P-180 Model P-180 airplanes, serial numbers (S/N) 1004 through 1033, certificated in any category.
Air Transport Association of America (ATA) Code 53: Fuselage.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as the need to restore the safe fatigue life of the bulkhead structure. We are issuing this AD to correct the safe fatigue life of the airplane.
(1) Unless already done, do the actions in paragraphs (f)(2) through (f)(4) of this AD at whichever of the following compliance times occurs later:
(i) Within 1,500 hours time-in-service (TIS) after the effective date of this AD, but not to exceed 6,000 hours total hours TIS on the airplane; or
(ii) Within 200 hours TIS after the effective date of this AD or 6 months after the effective date of this AD, whichever occurs first.
(2) Inspect (visually or using a standard endoscope) the forward pressurized bulkhead to verify presence of bulkhead reinforcement following Part A1 of the Accomplishment Instructions of Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.
(i) If the inspection results indicate that the reinforcements are properly installed, ascertain (visually or by means of standard endoscope equipment) that there are no cracks or defects. If cracks or defects are identified, before further flight, repair using instructions from Piaggio Aero Industries as identified in Service Letter 80-0097.
(ii) If the inspection results indicate that the reinforcements are not installed, reinforce the forward pressurized bulkhead following Part A2 of the Accomplishment Instructions of Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.
(3) Modify the forward pressurized bulkhead following Part C of the Accomplishment Instructions of Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 3, dated: January 20, 2015.
(4) This AD allows credit for the actions required in paragraphs (f)(2)(ii) and (f)(3) of this AD if done before the effective date of this AD following the instructions of Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Original Issue, dated: April 28, 1997; Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 1, dated: May 11, 2010; or Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 2, dated: July 19, 2010.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2015-0071, dated April 30, 2015; Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Original Issue, dated: April 28, 1997; Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 1, dated: May 11, 2010; or Piaggio Aero Industries S.p.A. Service Bulletin 80-0081, Revision No. 2, dated: July 19, 2010, for related information. You may examine the MCAI on the Internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 767 airplanes. This proposed AD was prompted by reports of cracking at a central part of the structure. This proposed AD would require repetitive inspections of the skin hidden by the upper and lower splice fittings on both sides of the fuselage, and corrective action if necessary. We are proposing this AD to detect and correct fatigue cracking of the hidden fuselage skin and cracking, corrosion, and other damage to the splice fittings and adjacent visible fuselage skin and structure that could lead to loss of a primary load path between the fuselage and the wing box, and consequent reduced structural integrity of the airplane.
We must receive comments on this proposed AD by August 20, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206 766 5680; Internet
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
While replacing a cracked underwing longeron fitting, a crack indication was found in the STA 786 ring chord at the tension bolt hole common to the wing front spar lower chord and the internal bathtub fittings. There were two similar reports of these findings from two separate operators. The airplanes in these reports had 14,367 and 18,354 flight cycles and 90,389 and 96,826 flight hours, respectively. The current inspections in the Model 767 Maintenance Planning Document are not sufficient to detect any possible fuselage skin crack in the area adjacent to the ring chord at STA 786 before the crack extends to a critical length. The fuselage skin in this area is hidden between the splice fittings on the external side of the fuselage and the bathtub fittings on the internal side. This condition, if not corrected, could result in loss of a primary load path between the fuselage and the wing box, and consequent reduced structural integrity of the airplane.
We reviewed Boeing Alert Service Bulletin 767-53A0263, dated January
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” Refer to this service information for details on the procedures and compliance times.
Boeing Alert Service Bulletin 767-53A0263, dated January 12, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 430 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as RC (required for compliance) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.
For service information that contains steps that are labeled as Required for Compliance (RC), the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by August 20, 2015.
None.
This AD applies to all The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of cracking at the station (STA 786) ring chord at the tension bolt hole common to the wing front spar lower chord and the internal bathtub fittings. We are issuing this AD to detect and correct fatigue cracking of the hidden fuselage skin and cracking, corrosion, and other damage to the splice fittings and adjacent visible fuselage skin and structure that could lead to loss of a primary load path between the fuselage and the wing box, and consequent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0263, dated January 12, 2015, except as required by paragraph (h) of this AD, do external ultrasonic and detailed inspections to detect cracking, corrosion, or other damage at the splice fitting location, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0263, dated January 12, 2015.
(1) If cracking, corrosion, or other damage is not found, repeat the inspections at intervals not to exceed 6,000 flight cycles or 18,000 flight hours, whichever occurs first. Accomplishing a repair as specified in paragraph (g)(2) of this AD terminates the repetitive inspections in the repaired area only.
(2) If any cracking, corrosion, or other damage is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD. The repetitive inspections of paragraph (g)(1) are terminated in the repaired area only.
Where Boeing Alert Service Bulletin 767-53A0263, dated January 12, 2015, specifies a compliance time “after the original issue date of this Service Bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
In proposed rule document 2015-14328 beginning on page 36267 in the issue of Wednesday, June 24, 2015, make the following correction:
On page 36268, in the first column, in the second full paragraph, in the second line, “August 17, 2015” should read “August 31, 2015”.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Proposed rule.
This proposed rule would establish the maximum time period within which an FHA-approved mortgagee must file a claim with FHA for insurance benefits. HUD's current regulations are silent with respect to a deadline by which a claim for insurance benefits must be filed with FHA. Due to the downturn in the housing market, which resulted in a significant increase in mortgage defaults, some mortgagees have refrained from promptly filing claims for insurance benefits and instead have opted to wait and file multiple claims with FHA at a single point in time. The uncertainty regarding a deadline by which a claim must be
Interested persons are invited to submit comments regarding this rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the proposed rule.
Ivery Himes, Director, Office of Single Family Asset Management, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410; telephone number 202-708-1672 (this is not a toll-free number). Persons with hearing or speech impairments may access this number by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
HUD's regulations for FHA single family mortgage insurance are codified in 24 CFR part 203. These regulations address mortgagee eligibility requirements and underwriting procedures, contract rights and obligations, and the mortgagee's servicing obligations. These regulations also address action to be taken by a mortgagee when a mortgagor defaults on a loan, such as undertaking loss mitigation as provided in § 203.501. However, if it is determined that the default is not curable, the mortgagor does not remain in the home, or both, the mortgagee is eligible to file a claim for insurance benefits. (See §§ 203.330 through 203.417.) While the current regulations and related guidance
Mortgagees generally file claims for FHA mortgage insurance within 2 months after the date of the foreclosure sale. In recent years, however, some mortgagees altered this practice and opted to wait and file multiple claims with FHA at a single point in time. In some instances, mortgagees delayed filing claims for 2 years or more after foreclosure sales. The uncertainty regarding the timing of the filing of claims and the high number of claims filed all at once strain FHA resources. This activity has the potential to negatively impact HUD's ability to project the future state of the MMIF, and, consequently, FHA's ability to fulfill the statutory obligation to safeguard the MMIF. A delay in filing a claim also increases interest, property charges and other expenses included in the insurance benefit claim and can result in additional decline in the value of a property that had been the security for the FHA-insured mortgage foreclosed by the mortgagee, thereby reducing the amount FHA could recover on a real estate owned (REO) sales transaction. The proposed rule is designed to address these concerns.
Through this rule, HUD proposes to amend FHA's regulations in subpart B of 24 CFR part 203, which govern the contract rights and obligations pertaining to FHA single family mortgage insurance. The proposed rule would add a new § 203.317a which would terminate the contract of insurance if the mortgagee fails to file a claim within the maximum time periods established in this rule. It would also amend § 203.318 to provide that written notice of termination required by this section is not required for termination under new § 203.317a. The proposed rule would add a new § 203.372 that would establish a deadline by which an FHA-approved mortgagee (or its approved servicer) must file a claim for insurance benefits. In addition, the proposed rule would amend § 203.402 to establish a deadline to be eligible for reimbursement of certain expenses
New § 203.317a of this proposed rule would cause the contract of insurance to terminate if the mortgagee fails to file a claim within the maximum allowable time periods for filing the claim, and the proposed amendment to § 203.318 would exempt this type of termination from the written notice requirements.
In general, proposed § 203.372 will prohibit the filing of a claim for insurance benefits after the passage of a specified amount of time following certain events relating to the submission of a claim. Additionally, it will prohibit the filing of any claim more than 12 months after expiration of a period of time from the date of default that is equal to the amount of time provided in the reasonable diligence timeframe established under § 203.356(b). For purposes of this proposed rule, the date of default is the date defined in 24 CFR 203.331, or 203.467 for rehabilitation loans.
For a property acquired by the mortgagee through foreclosure, new § 203.372 would require the mortgagee to file a claim for insurance benefits no later than 3 months from the occurrence of one of the following events, whichever is the last to occur: (1) The date of the foreclosure sale; (2) the date of expiration of the redemption period (the period allowed the mortgagor to redeem and regain ownership of the property); (3) the date the mortgagee acquires possession of the property (
For a property sold through a pre-foreclosure sale (PFS), or Claim Without Conveyance of Title (CWCOT), new § 203.372 would require the mortgagee to file a claim for insurance benefits no later than 3 months following the date of the closing, for PFS, and no more than 12 months after expiration of a period of time from the date of default that is equal to the amount of time provided in the reasonable diligence time period for foreclosure, for CWCOT. If a claim is not timely filed, the mortgagee forfeits its right to file a claim for insurance benefits.
For a property acquired by the mortgagee through a deed-in-lieu of foreclosure, new § 203.372 would require the mortgagee to file a claim for insurance benefits no later than 3 months following the date of conveyance of the property to the mortgagee or the date of conveyance of the property to HUD, the date of execution of the deed by the mortgagor, or no more than 12 months after the expiration of a period of time from the date of default that is equal to the reasonable diligence time period for foreclosure, whichever occurs first.
The proposed deadline for filing mortgage insurance claims will bring greater certainty to the claims process, thereby facilitating HUD's ability to comply with its statutory obligation to protect the FHA insurance funds. HUD believes that these time periods in which to submit a claim for insurance, as proposed in new § 203.372, provide mortgagees with sufficient time to take all action necessary to file a claim for insurance benefits. The proposed deadlines would not deny mortgagees the administrative benefits of submitting multiple claims at one time, as long as the individual claims being filed fall within the relevant time periods proposed by this rule. Additionally, the filing of a claim will not toll the deadlines proposed in this rule or guarantee an extension of time in which to file or refile a claim that was withdrawn or denied for any reason.
In addition to establishing a deadline by which a mortgagee must file a claim for insurance benefits, this rule proposes to amend § 203.402 to disallow expenses incurred by a mortgagee prior to the filing of a claim for insurance benefits where such expenses result from a mortgagee's failure to timely initiate foreclosure action or timely take such other action that is a prerequisite to submission of a claim for insurance as established in the part 203, subpart B, regulations.
The amended § 203.402 emphasizes the need to meet the timelines established in the part 203, subpart B, regulations that pertain to claim procedures and payment of insurance benefits, and where such deadlines are not met, FHA will not reimburse related costs. This proposed rule would refine the time periods in which such expenses are disallowed to provide only for the curtailment of interest and reduction in expenses incurred as a result of the mortgagee's delay. Specifically, in proposed §§ 203.402(k)(1)(ii), 203.402(k)(2)(iii), and 203.402(k)(3)(iii), the interest would be reduced only by the amount determined to have been incurred as a result of the failure of the mortgagee to comply with the specified time periods, rather than for the remaining duration of the life of the mortgage and related FHA insurance contract. The amended § 203.402 would also provide that if the claim is filed after any of the timeframes set forth in new paragraph (u) of this section, then the mortgagee must curtail expenses as provided in that paragraph. The dates that would trigger curtailment of expenses due to failure to meet a deadline on a claim that is filed timely include the following: (1) The timeframe for taking First Legal Action to commence foreclosure; (2) the reasonable diligence timeframe for the state in which the property is located; (3) the timeframe to convey a property after obtaining title and possession; (4) the timeframe for marketing a property; or (5) any other timeframe established under this subpart that is applicable to the claim for insurance benefits. If the amount of incurred expenses is unavailable, then the mortgagee must estimate the expenses incurred (as a prorated amount) as a result of not complying with the deadlines specified for the events numbered (1) through (5). However, nothing in this section limits FHA's right to review a claim for any reason related to protection of the MMIF.
• The mortgagee completes First Legal Action on calendar day 230 instead of the First Legal Action deadline, which is day 180 (
• The reasonable due diligence timeframe (which includes 30 days to file a claim) is 15 months from the completion of First Legal Action in this hypothetical example.
•
• A mortgagee receives a 30 day extension to evaluate a mortgagor for loss mitigation because the mortgagor's expenses have decreased since the previous evaluation for loss mitigation. However, the mortgagor does not qualify for loss mitigation. The mortgagee completes First Legal Action on calendar day 252 instead of the First Legal Action deadline, which is day 210 (
• The reasonable due diligence timeframe, which includes 30 days to file a claim, is 10 months (300 calendar days) from completing First Legal Action in this hypothetical example.
•
Existing § 203.365, which pertains to documents and information to be furnished to the Secretary under a claim review, lists items to be furnished to the Secretary within 45 days after a deed is filed for record in the case of a conveyance claim or within 30 days after the closing of the pre-foreclosure sale in the case of a claim arising from a pre-foreclosure sale. The amended § 203.402 would provide for review of all claims. The amended § 203.402 further provides that, regardless of how FHA reviews a claim for insurance, if FHA determines that a claim includes costs not appropriately curtailed or reduced as established in § 203.402(u)(1), FHA may reduce the claim amount or issue a demand for repayment of all improperly claimed expenses. FHA may also offset future claims if such demand for repayment is not paid by the mortgagee within 30 days.
The regulatory changes proposed by this rule emphasize the importance of meeting established deadlines and provide for the denial of insurance benefits and disallowance of payment of expenses where such deadlines are not met.
This rule proposes to establish a maximum time period within which an FHA-approved mortgagee must file a claim with FHA for mortgage insurance benefits. Currently, there is not a required timeframe in which mortgagees must file claims for FHA mortgage insurance. The cost to mortgagees of compliance with this proposed rule is expected to be minimal. The cost of compliance for each loan is estimated to be $100, but mortgagees currently bear these costs when they file a claim. This cost consists of 15 minutes of supervisory review and 45 minutes of staff preparation.
This proposed rule offers many important benefits to FHA, including certainty regarding when payment will be sought on claims and increased recovery on REO sales transactions. In recent years, some mortgagees have opted to wait and file multiple FHA mortgage insurance claims at a single point in time, sometimes delaying the filing of claims for 2 years or more. See Table 1 for data on the timing of the filing of insurance claims. The uncertainty regarding the timing of the filing of claims and the high number of claims filed all at once strain FHA resources. This proposed rule will provide a better measurement of expected claims because it provides a definite date for which the mortgagee is no longer able to file a claim. Additionally, this proposed rule would ease the burden on mortgagees by allowing for the curtailment of interest and expenses associated with the actual delay of the mortgagee, rather than all interest and expenses incurred beyond a missed deadline until the termination of the insurance contract.
The uncertainty resulting from long-delayed filing of FHA insurance claims has the potential to negatively impact HUD's ability to project the future state of the MMIF, and, consequently, FHA's ability to fulfill its statutory obligation to safeguard the MMIF. Therefore, establishing a timeframe in which mortgagees must file FHA mortgage insurance claims will bring better predictability to FHA. The ability to better project capitalization of the MMIF will lessen the likelihood of FHA needing to obtain a capital infusion to support the solvency of the MMIF.
When the filing of an FHA insurance claim is delayed, it also results in increased property charges and other expenses included in the insurance benefit claim and can result in additional decline in the value of a property that had been the security for the FHA-insured mortgage foreclosed by the mortgagee, thereby reducing the amount FHA could recover on REO sales transactions. By preventing delayed claim filing, FHA expects to reduce claim cost, primarily due to taxes and insurance, of more than $1,000 per loan for claims filed after the reasonable due diligence timeframes. These benefits, coupled with the minimal compliance costs, motivate FHA's pursuit of this new policy.
The information collection requirements contained in this document have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2502-0429. In accordance with the Paperwork Reduction Act, HUD may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This proposed rule would address an issue that has arisen recently and that is the high number of defaults resulting from the downturn in the housing market that began in late 2007 and early 2008. Until that point, FHA-approved mortgagees filed insurance claims within a reasonable time following a foreclosure of the property or the last event that must be taken by an FHA-approved mortgagee prior to filing the insurance claim. HUD understands the strain on resources placed on FHA-approved mortgagees facing a high number of defaults by their mortgagors, and that bundling and filing multiple claims at a single point in time may be administratively convenient for the mortgagees. However, submission of a high number of claims to FHA by one single mortgagee at one single point in time long after the triggering event strains FHA resources and negatively impacts FHA's ability to project the future state of the MMIF, and, consequently, FHA's ability to fulfill its statutory obligation to safeguard the MMIF. The recent filing of multiple claims at a single point in time has emphasized to FHA the need to establish a deadline for filing insurance claims, which are absent from the regulations. While government and the industry have been working diligently since 2008 to implement requirements and measures to be taken to avoid another housing crisis, a clear deadline for filing an insurance claim will benefit both FHA and FHA-approved mortgagees.
HUD believes that the relevant time periods to file a claim for insurance benefits are reasonable periods for all FHA-approved mortgagees, large and small, and will not adversely affect any mortgagee. Additionally, HUD's existing regulations authorize the FHA Commissioner to extend any time period for action to be taken by FHA-approved mortgagees under the regulations of 24 CFR part 203, subpart C, and this authorization allows the FHA Commissioner to take into consideration any difficulties that may be faced by a mortgagee to meet a deadline. Moreover, this rule will benefit mortgagees because it will require mortgagees to only curtail the expenses and interest associated with the length of the delay beyond a required deadline, rather than all otherwise permissible expenses after a missed deadline for the remaining life of the loan, regardless of the length of the delay. At present, a missed foreclosure initiation deadline by one day could result in interest curtailment and disallowance of expenses for the remaining life of the loan, through the entire foreclosure and conveyance process until final termination of the FHA insurance contract.
Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.
The proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
The Catalog of Federal Domestic Assistance number for Mortgage Insurance—Homes is 14.117.
Hawaiian Natives, Home improvement, Indians—lands, Loan programs—housing and community development, Mortgage insurance,
Accordingly, for the reasons described in the preamble, HUD proposes to amend 24 CFR part 203 as follows:
12 U.S.C. 1709, 1710, 1715b, 1715z-16, 1715u, and 1717z-21; 42 U.S.C. 3535(d).
For mortgages endorsed for insurance on or after [insert effective date], the contract of insurance shall be terminated if the mortgagee fails to file a claim within the maximum time periods for filing a claim of insurance benefits in § 203.372.
No contract of insurance shall be terminated until the mortgagee has given written notice thereof to the Commissioner within 15 calendar days from the occurrence of one of the approved methods of termination set forth in this subpart, except that such written notice is not required for termination of the insurance contract under § 203.317a.
(a) This section applies to mortgages endorsed for insurance on or after [insert effective date].
(b) No claim for insurance benefits may be filed, regardless of claim processing type, more than 12 months after expiration of a period of time from the date of default that is equal to the amount of time provided in the reasonable diligence timeframe established under § 203.356(b) for the jurisdiction unless the Secretary has approved an extension. In the event any applicable redemption period exceeds the claim filing timeframe as stated in the previous sentence, the timeframe will be extended by a period of time equal to the applicable redemption period, unless the conveyance is permitted by FHA during the redemption period.
(c) In addition to the time period in paragraph (b) of this section, no conveyance, pre-foreclosure sale, or deed-in-lieu claim may be filed outside of the time period established by claim type under this paragraph.
(1)
(i) The date of the foreclosure sale;
(ii) The date of expiration of the redemption period (the period allowed the mortgagor to redeem and regain ownership of the property);
(iii) The date that the mortgagee acquires possession of the property (
(iv) Such further time as the Secretary or the Secretary's designee may approve in writing.
(2)
(3)
(d)
(k)(1) Except as provided in paragraphs (k)(1)(i) and (ii) of this section, for properties conveyed to the Secretary and endorsed for insurance on or before January 23, 2004, an amount equivalent to the debenture interest that would have been earned, as of the date such payment is made, on the portion of the insurance benefits paid in cash, if such portion had been paid in debentures, and for properties conveyed to the Secretary and endorsed for insurance after January 23, 2004, debenture interest at the rate specified in § 203.405(b) from the date specified in § 203.410, as applicable, to the date of claim payment, on the portion of the insurance benefits paid in cash.
(i) For properties endorsed for insurance on January 24, 2004 through [insert day before effective date]:
(A) When the mortgagee fails to meet any one of the applicable requirements of §§ 203.355, 203.356(b), 203.359, 203.360, 203.365, 203.606(b)(l), or 203.366 within the specified time and in a manner satisfactory to the Secretary (or within such further time as the Secretary may approve in writing), the interest allowance in such cash payment shall be computed only to the date on which the particular required action should have been taken or to which it was extended; and
(B) When the mortgagee fails to meet the requirements of § 203.356(a) within the specified time and in a manner satisfactory to the Secretary (or within such further time as the Secretary may specify in writing), the interest allowance in such cash payment shall be computed to a date set administratively by the Secretary.
(ii) For properties endorsed for insurance on or after [insert effective date]:
(A) When the mortgagee fails to meet any one of the applicable requirements of §§ 203.355, 203.356(b), 203.359, 203.360, 203.365, 203.606(b)(l), 203.366, or 203.402(u), within the specified time and in a manner satisfactory to the Secretary (or within such further time as the Secretary may approve in writing), the interest allowance in such cash payment shall be reduced by the amount determined, based on a pro rata calculation of interest by day, to have been incurred as a result of the failure of the mortgagee to comply with the specified time period; and
(B) When the mortgagee fails to meet the requirements of § 203.356(a) within the specified time and in a manner satisfactory to the Secretary (or within such further time as the Secretary may specify in writing), the interest allowance in such cash payment shall be reduced by the amount determined, based on a pro rata calculation of interest by day, to have been incurred as a result of the failure of the mortgagee to comply with the specified time period set administratively by the Secretary.
(2)(i) Where a claim for insurance benefits is being paid without conveyance of title to the Commissioner in accordance with § 203.368 and was endorsed for insurance on or before January 23, 2004, an amount equivalent to the sum of:
(A) The debenture interest that would have been earned, as of the date the
(B) The debenture interest that would have been earned from the date the mortgagee or a party other than the mortgagee acquires good marketable title to the mortgaged property to the date when payment of the claim is made, on the portion of the insurance benefits paid in cash if such portion had been paid in debentures, except that if the mortgagee fails to meet any of the applicable requirements of §§ 203.355, 203.356, and 203.368(i)(3) and (5) within the specified time and in a manner satisfactory to the Commissioner (or within such further time as the Commissioner may approve in writing), the interest allowance in such cash payment shall be computed only to the date on which the particular required action should have been taken or to which it was extended.
(ii) Where a claim for insurance benefits is being paid without conveyance of title to the Commissioner in accordance with § 203.368 and was endorsed for insurance on January 24, 2004 through [insert day before effective date], an amount equivalent to the sum of:
(A) Debenture interest at the rate specified in § 203.405(b) from the date specified in § 203.410, as applicable, to the date that the mortgagee or a party other than the mortgagee acquires good marketable title to the mortgaged property, on an amount equal to the amount by which an insurance claim determined in accordance with § 203.401(a) exceeds the amount of the actual claim being paid in debentures; plus
(B) Debenture interest at the rate specified in § 203.405(b) from the date the mortgagee or a person other than the mortgagee acquires good marketable title to the mortgaged property to the date when payment of the claim is made, on the portion of the insurance benefits paid in cash, except that if the mortgagee fails to meet any of the applicable requirements of §§ 203.355, 203.356, and 203.368(i)(3) and (5) within the specified time and in a manner satisfactory to the Commissioner (or within such further time as the Commissioner may approve in writing), the interest allowance in such cash payment shall be computed only to the date on which the particular required action should have been taken or to which it was extended.
(iii) Where a claim for insurance benefits is being paid without conveyance of title to the Commissioner in accordance with § 203.368 and was endorsed for insurance on or after [insert effective date], an amount equivalent to the sum of:
(A) Debenture interest at the rate specified in § 203.405(b) from the date specified in § 203.410, as applicable, to the date that the mortgagee or a party other than the mortgagee acquires good marketable title to the mortgaged property, on an amount equal to the amount by which an insurance claim determined in accordance with § 203.401(a) exceeds the amount of the actual claim being paid in debentures; plus
(B) Debenture interest at the rate specified in § 203.405(b) from the date the mortgagee or a person other than the mortgagee acquires good marketable title to the mortgaged property to the date when payment of the claim is made, on the portion of the insurance benefits paid in cash, except that if the mortgagee fails to meet any of the applicable requirements of §§ 203.355, 203.356, 203.368(i)(3) and (5), and 203.402(u) within the specified time and in a manner satisfactory to the Commissioner (or within such further time as the Commissioner may approve in writing), the interest allowance in such cash payment shall be reduced by the amount determined, based on a pro rata calculation of interest by day, to have been incurred as a result of the failure of the mortgagee to comply with the specified time period.
(3)(i) Where a claim for insurance benefits is being paid following a pre-foreclosure sale, without foreclosure or conveyance to the Commissioner in accordance with § 203.370, and the mortgage was endorsed for insurance on or before January 23, 2004, an amount equivalent to the sum of:
(A) The debenture interest that would have been earned, as of the date of the closing of the pre-foreclosure sale on an amount equal to the amount by which an insurance claim determined in accordance with § 203.401(a) exceeds the amount of the actual claim being paid in debentures; plus
(B) The debenture interest that would have been earned, from the date of the closing of the pre-foreclosure sale to the date when payment of the claim is made, on the portion of the insurance benefits paid in cash, if such portion had been paid in debentures; except that if the mortgagee fails to meet any of the applicable requirements of § 203.365 within the specified time and in a manner satisfactory to the Commissioner (or within such further time as the Commissioner may approve in writing), the interest allowance in such cash payment shall be computed only to the date on which the particular required action should have been taken or to which it was extended.
(ii) Where a claim for insurance benefits is being paid following a pre-foreclosure sale, without foreclosure or conveyance to the Commissioner, in accordance with § 203.370, and the mortgage was endorsed for insurance on January 24, 2004 through [insert day before effective date], an amount equivalent to the sum of:
(A) Debenture interest at the rate specified in § 203.405(b) from the date specified in § 203.410, as applicable, to the date of the closing of the pre-foreclosure sale, on an amount equal to the amount by which an insurance claim determined in accordance with § 203.401(a) exceeds the amount of the actual claim being paid in debentures; plus
(B) Debenture interest at the rate specified in § 203.405(b) from the date of the closing of the pre-foreclosure sale to the date when the payment of the claim is made, on the portion of the insurance benefits paid in cash, except that if the mortgagee fails to meet any of the applicable requirements of § 203.365 within the specified time and in a manner satisfactory to the Commissioner (or within such further time as the Commissioner may approve in writing), the interest allowance in such cash payment shall be computed only to the date on which the particular required action should have been taken or to which it was extended.
(iii) Where a claim for insurance benefits is being paid following a pre-foreclosure sale, without foreclosure or conveyance to the Commissioner, in accordance with § 203.370, and the mortgage was endorsed for insurance on or after [insert effective date], an amount equivalent to the sum of:
(A) Debenture interest at the rate specified in § 203.405(b) from the date specified in § 203.410, as applicable, to the date of the closing of the pre-foreclosure sale, on an amount equal to the amount by which an insurance claim determined in accordance with § 203.401(a) exceeds the amount of the actual claim being paid in debentures; plus
(B) Debenture interest at the rate specified in § 203.405(b) from the date of the closing of the pre-foreclosure sale to the date when the payment of the claim is made, on the portion of the insurance benefits paid in cash, except that if the mortgagee fails to meet any of the applicable requirements of § 203.365 within the specified time and
(u)
(1) If a mortgagee fails to comply with any of the timeframes established by the Secretary for actions set forth in this paragraph, the mortgagee must curtail all claim expenses in accordance with paragraph (u)(2) of this section:
(i) The timeframe for taking of First Legal Action to commence foreclosure;
(ii) The reasonable diligence timeframes established by the state in which the property is located;
(iii) The timeframe to convey a property after obtaining title and possession;
(iv) The timeframe for marketing a property; or
(v) Any other timeframe established under this subpart that is applicable to the mortgagee's filing of a claim for insurance benefits.
(2) For a mortgagee that does not meet one or more of the deadlines in paragraph (u)(1) of this section, the mortgagee must curtail on a prorated basis:
(i) Expenses in paragraph (u) of this section incurred during or as a result of any failure by the mortgagee to act within the applicable time period; or
(ii) Expenses that are reasonably estimated to have been incurred during or as a result of any failure by the mortgagee to act within the applicable time period if the amount of expenses specifically incurred beyond the applicable deadline is unavailable or not itemized; and
(iii) Any additional expenses incurred as a result of the mortgagee's failure to comply with the timeframe.
(3)(i) Regardless of the review type, if FHA determines that the mortgagee's claim included expenses incurred after the expiration of a timeframe listed in paragraph (u)(1) of this section, FHA may, in its discretion:
(A) Reduce the amount of insurance benefits paid to the mortgagee; or
(B) Demand for repayment of all expenses that were not curtailed by the mortgagee.
(ii) FHA may offset any future claims made by a mortgagee if the mortgagee does not satisfy any demand for repayment under paragraph (u)(3)(i)(B) of this section within 30 days of the date FHA issues the demand for repayment.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to change the regulation that governs the operation of the SR#38 Bridge in Centerton (Burlington County Route 635) over Rancocas Creek, mile 7.8, at Mt. Laurel, Westampton and Willingboro Townships in Burlington County, NJ. The proposed rule intends to change the current operating regulation and allow the bridge to remain in the closed position for the passage of vessels. There have been no requests for openings since the early 1990's. This proposed rule will also reflect a name change.
Comments and related material must reach the Coast Guard on or before September 4, 2015. Requests for public meetings must be received by the Coast Guard on or before August 5, 2015.
You may submit comments identified by docket number USCG-2015-0423 using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Jim Rousseau, Fifth Coast Guard District Bridge Administration Division, Coast Guard; telephone 757-398-6557, email:
We encourage you to participate in this proposed rulemaking by submitting comments and related materials. All comments received will be posted, without change to
If you submit a comment, please include the docket number for this proposed rulemaking (USCG-2015-0423), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not plan to hold a public meeting but you may submit a request for one that reaches the Coast Guard on or before August 5, 2015 using one of the four methods specified under
The current operating schedule for the SR#38 bridge is set out in 33 CFR 117.745 (b) which allows the SR#38 Bridge to operate as follows: From April 1 through October 31 open on signal from 7 a.m. to 11 p.m. From November 1 through March 31 from 7 a.m. to 11 p.m. open on signal if at least 24 hours notice is given. Year round from 11 p.m. to 7 a.m. need not open for the passage of vessels.
The bridge owner, County of Burlington, NJ requested a change in the operation regulation for the SR#38 Bridge, mile 7.8, across Rancocas Creek in Mt. Laurel, NJ and that its name is changed to what it is known locally. The County of Burlington provided information to the Coast Guard about the lack of any openings of the draw spans dating back to the early 1990's. The bridge is currently closed to navigation and vehicular traffic due to emergency repairs and emergency inspections since May 2015. The last requested opening was in the early 1990's as an emergency request. There have been monthly openings as per maintenance requirements.
In the closed-to-navigation position, the SR#38 Bridge has vertical clearances of six feet above mean high water. Typical waterway users include very small recreational vessels including canoes and kayaks.
In order to align the operating schedule of the SR#38 bridge with observed marine traffic the proposed change amends the regulation by adding a paragraph (c) to state “that the bridge need not open.” The lack of requests for vessel openings of the drawbridge for over 20 years illustrates that the vessels that use this waterway can safely navigate while the bridge is in the closed-to-navigation position. The current regulation also incorrectly identifies the bridge as the SR#38 Bridge. This proposed change will change the name to the Centerton County Route 635 Bridge. All language in existing paragraph (b) will remain the same except for the removal of the SR#38 bridge reference.
While this proposed rule will allow the bridge to remain closed to navigation, it does not alleviate the bridge owner of his responsibility under 33 CFR 117.7.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Based on County of Burlington bridge tender logs, there will not be any vessels impacted by this proposed change. No bridge openings have been requested in over 20 years.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This action will not have a significant economic impact on a substantial number of small entities for the following reasons: There have been no requests for the bridge to open since the early 1990's, and the bridge has been unable to open since May of 2015.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(b) The drawspan for the Riverside-Delanco/SR#543 Drawbridge, mile 1.3 at Riverside must operate as follows:
(c) The draw of the Centerton County Route 635 Bridge, mile 7.8, at Mt. Laurel, need not open for the passage of vessels.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to disapprove a revision to the Arkansas State Implementation Plan (SIP) submitted by the State of Arkansas on September 16, 2009, for the purpose of addressing the requirements of the Clean Air Act (CAA) regarding interference with other states' programs for visibility protection for the 2006
Comments must be received on or before August 5, 2015.
Submit your comments, identified by Docket No. EPA-R06-OAR-2008-0633, by one of the following methods:
•
•
•
•
Ms. Dayana Medina, 214-665-7241;
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
In 2006, we revised the 24-hour PM
On September 16, 2009, Arkansas submitted a SIP revision intended to address the requirements of Prong 4 with respect to visibility transport for the 2006 PM
In three memos released in 2006, 2009, and 2013, we provided guidance to the states regarding their obligations with respect to Prong 4. In the 2006 memo, we informed states that they could satisfy prong 4 for the 1997 8-hour ozone and PM
An approved regional haze SIP that fully meets the regional haze requirements in 40 CFR 51.308 satisfies the requirement for visibility protection as it ensures that emissions from the state will not interfere with measures required to be included in other state SIPs to protect visibility. Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM
In the September 16, 2009 infrastructure SIP submittal for the 2006 PM
Under section 110(c) of the Act, whenever we disapprove a mandatory SIP submission in whole or in part, we are required to promulgate a FIP within 2 years unless we approve a SIP revision correcting the deficiencies before promulgating a FIP. Specifically, CAA section 110(c) provides that the Administrator shall promulgate a FIP within 2 years after the Administrator disapproves a state implementation plan submission “unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.” The term “Federal implementation plan” is defined in section 302(y) of the CAA in pertinent part as a plan promulgated by the Administrator to correct an inadequacy in a SIP. Thus, upon finalizing our proposed disapproval of Arkansas' SIP submittal addressing the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility transport for the 2006 PM
Our April 8, 2015 proposed FIP corrects the disapproved portions of the Arkansas Regional Haze SIP. The disapproved portions included a majority of the State's BART determinations, the State's reasonable progress analysis and reasonable progress goals, and a portion of the State's long term strategies for its Class I areas.
We are proposing to disapprove a portion of a SIP submittal that was submitted by Arkansas on September 16, 2009. The portion of the SIP submittal we are proposing to disapprove addresses the CAA provisions for prohibiting air pollutant emissions from interfering with measures required to protect visibility in any other state for the 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to act on state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the CAA prescribes that various consequences (
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves certain State requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action.
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this proposed action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new regulations but simply disapproves certain State requirements for inclusion into the SIP.
This proposed action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The EPA believes that this proposed action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the CAA. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under section 110 and subchapter I, part D of the CAA and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.
The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Visibility, Interstate transport of pollution, Regional haze, Best available control technology.
Title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C. 7401
(c) The portion of the SIP addressing noninterference with measures required to protect visibility in any other state are disapproved for the 2006 24-hour PM
(d) The deficiencies in the portion of the SIP pertaining to adequate provisions to prohibit emissions in Arkansas from interfering with measures required to protect visibility in any other state for the 2006 24-hour PM
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve an Early Progress Plan and motor vehicle emissions budgets (MVEBs) for volatile organic compounds and oxides of nitrogen for Sheboygan County, Wisconsin. Wisconsin submitted an Early Progress Plan for Sheboygan County on January 16, 2015. This submittal was developed to establish MVEBs for the Sheboygan 8-hour ozone nonattainment area. This approval of the Early Progress Plan for the Sheboygan 8-hour ozone area is based on EPA's determination that Wisconsin has demonstrated that the State Implementation Plan (SIP) revision containing these MVEBs, when considered with the emissions from all sources, shows some progress toward attainment from the 2011 base year through a 2015 target year.
Comments must be received on or before August 5, 2015.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0075, by one of the following methods:
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Please see the direct final rule which is located in the Rules section of this
Michael Leslie, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6680,
In the Rules section of this
Federal Communications Commission.
Proposed rule.
In this document, the Commission via the Consumer and Governmental Affairs Bureau (CGB), seeks comment on whether to maintain a temporary exemption for smaller providers from certain enhancements to the existing transparency rules that govern the content and format of disclosures made by providers of broadband Internet access service.
Comments are due on or before August 5, 2015. Reply comments are due on or before September 4, 2015.
You may submit comments, identified by GN Docket No. 14-28, by any of the following methods:
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.
For detailed instructions for submitting comments and additional information on the rulemaking process,
Richard D. Smith, Consumer and Governmental Affairs Bureau, (717) 338-2797.
This is a summary of the Commission's document DA 15-731, released June 22, 2015 in GN Docket No. 14-28, seeking comment on the exemption from Open Internet enhanced transparency requirements. The full text of document DA 15-731 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document DA 15-731 can also be downloaded in Word or Portable Document Format (PDF) at:
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
The Commission currently has an Office and Management and Budget (OMB) collection 3060-1158 pending OMB's review and approval. The 60 day
The
1. In the
2. While the Commission described the exemption threshold using the terms “subscribers” and “subscriber lines,” it emphasized that the relevant metric should be that used on Form 477. That metric is broadband “connections,” the broadband equivalent of subscriber lines, which the Commission used in the analogous exemption adopted in the Rural Call Completion Order, published at 78 FR 76218, December 17, 2013. For these reasons, we make clear that the exemption from the enhanced transparency requirements applies to providers with 100,000 or fewer broadband connections.
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4. The Commission seeks specific comment on the following questions. What is the burden of the enhanced disclosures to smaller providers as measured in financial and other resources, and how is the burden disproportionately experienced by smaller providers? To the extent that concerns remain regarding any burdens, what is the corresponding benefit to customers of smaller providers of the information contained in those disclosures? For example, to what extent are customers of exempted providers deprived of information they need to understand the services they purchase and receive, and to monitor practices that could undermine an open Internet? Are rural customers likely to be disproportionally affected by exempting smaller providers from the enhanced disclosure requirements?
5. How should any benefits of the enhanced transparency requirements to customers of exempted providers be balanced against any public interest benefits of reducing burdens to the providers? Will the reduction of compliance burdens for smaller providers benefit consumers in the areas served by those providers by, for example, facilitating broadband deployment, lower prices, or better quality services for consumers?
6. If the Commission does not make the exemption permanent, would a one-time temporary extension of the exemption for some period be necessary to allow a smooth transition to full compliance, and would such an approach be more beneficial to consumers than a permanent exemption? What period of time would be appropriate for smaller providers to adequately address the potential burdens associated with the enhanced transparency rules? How does the subscriber threshold discussed below affect this analysis? Should the Commission require carriers to report to the Commission on their progress with meeting the goals of the enhanced transparency rules? What conditions may be appropriate for a one-time, temporary extension of the current exemption? What factors should the Commission consider in determining the limitations of a one-time, temporary extension of the exemption? The Commission seeks comment on these and any other relevant issues.
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United States Agency for International Development.
Notice of Meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA).
The Advisory Committee on Voluntary Foreign Aid (ACVFA) brings together USAID and private voluntary organization officials, representatives from universities, international nongovernment organizations, U.S. businesses, and government, multilateral, and private organizations to foster understanding, communication, and cooperation in the area of foreign aid.
USAID Acting Administrator Ambassador Alfonso E. Lenhardt will make opening remarks, followed by panel discussions among ACVFA members and USAID leadership on USAID Forward and Local Solutions. The full meeting agenda will be forthcoming on the ACVFA Web site at
The meeting is free and open to the public. Registration information will be forthcoming on the ACVFA Web site at
Jayne Thomisee,
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on a proposed information collection, which is a revision of a currently approved form.
The purpose of the Food and Programs Reporting System (FPRS) is to facilitate data gathering for the reporting of data for the Supplemental Nutrition Assistance Program (SNAP) and the Special Nutrition Programs. FPRS consolidated certain programmatic and financial data reporting requirements in an electronic reporting system and is the primary collection point for FNS program performance statistics and financial data from State agencies (SA), Indian Tribal Organizations (ITO), and U.S. Territories participating in the nutrition assistance programs.
Written comments must be submitted on or before September 4, 2015.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the burden hours, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments may be sent to Jane Duffield, Chief, State Administration Branch, Program Accountability and Administration Division, Supplemental Nutrition Assistance Program, U.S. Department of Agriculture, Food and Nutrition Service, 3101 Park Center Drive, Room 818, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Jane Duffield at 703-605-0795, Room 824, or via email to
All written comments will be open for public inspection at the office of FNS during regular business hours (8:30 a.m. to 5:00 p.m. Monday through Friday) at 3101 Park Center Drive, Room 824, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for the Office of Management and Budget (OMB) approval. All comments will also be a matter of public record.
FNS National and Regional Office staff developed national standardized Management Evaluation (ME) protocols for both Recipient Integrity and Program Access. The ME process provides a comprehensive assessment of how effectively States are managing SNAP activities related to the topic area and an opportunity for communication between FNS and State agencies on those management areas. MEs provided FNS the proper channel to discuss with State and local officials ideas for improving form FNS-366B, particularly Section C. In August 2014, the U.S. Government Accountability Office (GAO) completed a study of FNS' oversight of State recipient fraud responsibilities (GAO-14-641, SNAP: Enhanced Detection Tools Could Improve Efforts to Combat Recipient Fraud). GAO concluded FNS' ability to monitor State anti-fraud activities and develop more effective anti-fraud strategies was hindered by the lack of consistency and reliability of State reported data on form FNS-366B. FNS published a Request for Information (RFI) in the
Based on the GAO report, RFI responses, and results of MEs completed to date, it is apparent that State reporting lacks consistency and form FNS-366B data elements and instructions are not clearly defined. Due to the lack of clarity in these instructions, responses are left open to varying interpretation, among States, leading to unreliable reported data. Form FNS-366B lacks certain data elements that would increase its usefulness by providing more accurate information from State agencies on SNAP application timeliness, and on the types and impacts of fraud prevention activities in use. The revision of this form will improve reliability and accuracy of State reporting by adding, removing, and revising data elements related to application processing, fraud investigations, administrative disqualification hearings and prosecutions. By collecting more accurate and useful data SNAP can target technical assistance to those State agencies that need the most significant improvements to their application and recipient integrity processes. The changes to each section of form FNS-366B are specified below. Revisions were made to the form instructions for all revised sections to reflect the new and revised data elements. The revised form is available for review with this docket on
(1) Addition of the words “Approved and Denied” in header row (C)
(2) Addition of new column D with subset columns D(1)—D(4), under the header “Approved Overdue Applications” in section C,
a. New column D will collect the counts of overdue applications for “Initial Applications” (line 1), “Recertifications” (line 2), and “Total” (line 3) broken out by “1-30 days” (Column D(1)), “31-60 days” (Column D(2)), “61-90 days” (Column D(3)), and “Over 91 days” (Column D(4)).
(1) Removed requirement to separate investigations by “Pre-certification” (line 1) and “Post-certification” (line 2) and replaced with requirement to separate investigations by “Eligibility Fraud” (line 1) and “Trafficking” (line 2)
(2) Removed “Referred for Invest.” (column a)
(3) Changed “Invest Completed—Negative” (column b) to “Completed, Individual Not Referred for ADH or Prosecution”
a. To collect data on whether investigations not resulting in a fraud Intentional Program Violation (IPV) did result in an overissuance claim due to an Inadvertent Household Error (IHE), sub-columns were added in this section for: “(1) No IHE established”, “(2) IHE Established”, and “(3) $ IHE Established”
(4) Changed “Invest Completed—Positive” (column c) to “Completed, Individual Referred for ADH or Prosecution” (shifted to column a)
(5) Removed “Program Dollars” (column d) and “Invest Cancelled” (column f)
(6) Changed “Invest Pending” (column e) to “Open Investigations, Individuals” (shifted to column c)
(7) To collect data on operational efficiency, added “Average # of Days per Investigation” (column d), “Investigation Costs” (column e), and “Investigation FTE” (column f)
(1) Split Section F on current form into sections F and G on revised form. Section F now collects data on Administrative Disqualification Hearings (ADH) only.
(2) Removed “Cases (Persons) Referred” (column a)
(3) Changed “Upheld Convictions” (column d) to “ADH Completed, Individual Disqualified” (shifted to column a)
(4) Changed “Waivers” (column c) to “Waiver Signed, Individual Disqualified” (shifted to column b)
(5) Changed “Actually Acquitted” (column e) to “ADH Completed, Individual Not Disqualified” (shifted to column c)
(6) To collect data on operational efficiency, added “Average # of Days from Referral to Disqualification” (column d)
(7) Changed “Program Dollars” (shifted to column e) to include “Amount Subject to Claim” (e1) and “Cost Savings” (e2)
(8) Removed “Pending Decisions” (column g)
(9) To capture cases referred for ADH, but awaiting action by the State agency, added “Referred Individuals Awaiting Scheduling” (column f)
a. To collect data on the number of days cases await ADH scheduling, sub-columns were added in this section for: “(1) 0-180 Days”, “(2) 181-365 Days”, and “(3) 366+ Days”.
(10) Shifted “Decisions Overdue” to column g
(1) Split Section F on current form into sections F and G on revised form. Section G proposes to collect data on Prosecutions only.
(2) Removed “Cases (Persons) Referred” (column a)
(3) Changed “Upheld Convictions” (column d) to “Prosecution Completed, Individual Disqualified” (shifted to column a)
(4) Changed “Waivers” (column c) to “DCA Signed, Individual Disqualified” (shifted to column b)
(5) Changed “Actually Acquitted” (column e) to “Prosecution Completed, Individual Not Disqualified” (shifted to column c)
(6) To collect data on operational efficiency, added “Average # Days from Referral to Disqualification” (column d)
(7) Changed “Program Dollars” (shifted to column e) to include “Amount Subject to Claim” (e1) and “Cost Savings” (e2)
(8) Removed “Pending Decisions” (column g)
(9) To capture cases referred to the prosecuting agency, but awaiting action, added “Referred Individuals, No Action by Prosecutor” (column f)
a. To collect data on the status of cases awaiting action, sub-columns were added in this section for: “(1) 366+ Days” and “(2) Reclaimed for ADH”.
(1) Added remarks section (Section H) to allow space for State agencies to provide any additional information necessary to support data reported on the FNS-366B.
The current burden for FNS 366 B is 950.29 hours. As a result of these revisions, there is an anticipated burden of 1,855, an increase of 904.71 hours for form FNS-366B. As this is a revision to form FNS-366B within the FPRS system, the total FPRS burden is summarized below.
Forest Service, USDA.
Notice of meeting.
The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. The meeting is open to the public. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
The meeting will be held July 22, 2015, at 10:00 a.m. All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line has been set up for those wishing to listen in by telephone, for the conference call number, please contact the person listed under
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ketchikan Misty Fiords Ranger District. Please call ahead to facilitate entry into the building.
Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information
The purpose of the meeting is:
1. To update members on past RAC projects, and
2. Propose new RAC projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by July 10, 2015, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations which implement the Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to request approval to extend the currently approved information collection in support of authorizations to use the 4-H Club Name and/or Emblem.
Written comments on this notice must be received by September 4, 2015 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email:
Robert Martin, eGovernment Program Leader; Email:
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to request Office of Management and Budget (OMB) approval for the revision and extension of a currently approved information collection for the Expanded Food and Nutrition Education Program (EFNEP).
Written comments on this notice must be received by September 4, 2015, to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email:
Robert Martin, eGovernment Program Leader; Email:
Abstract: NIFA's Expanded Food and Nutrition Education Program (EFNEP) is a unique program that began in 1969 and is designed to reach limited resource audiences, especially youth and families with young children. EFNEP is authorized under section 1425 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3175) and funded under section 3(d) of the Smith-Lever Act (7 U.S.C. 343(d)). Extension professionals train and supervise paraprofessionals and volunteers who teach food and nutrition information and skills to limited resource families and youth. EFNEP operates through the 1862 and 1890 Land Grant Universities (LGU) in all 50 States, the District of Columbia, and in American Samoa, Guam, Micronesia, Northern Marianas, Puerto Rico, and the Virgin Islands.
The objectives of EFNEP are to assist limited resource families and youth in acquiring the knowledge, skills, attitudes, and changed behaviors necessary for nutritionally sound diets, and to contribute to their personal development and the improvement of the total family diet and nutritional well-being.
NIFA sponsors an integrated data collection process that is used at the county, State, and Federal level. The current data collection system, the Web-based Nutrition Education Evaluation and Reporting System (WebNEERS), captures EFNEP impacts. Its purpose is to gauge if the Federal assistance provided has had an impact on the target audience. It also enables EFNEP staff to make programmatic improvements in delivering nutrition education. Further, the data collected provide information for program management decisions and diagnostic assessments of participant needs. In order to capture all of EFNEP's reporting requirements in one place, EFNEP program plans and budgetary data are now submitted, reviewed, and approved through WebNEERS. These EFNEP specific reporting requirements are tied to release of Federal EFNEP funds.
Specifications for this system were developed by a committee of representatives from across the United States and are in compliance with Federal standards for maintaining, collecting, and presenting data on race and ethnicity and protecting personally identifiable information.
WebNEERS stores information on: (1) Adult program participants, their family structure, and dietary practices; (2) youth group participants; (3) staff; (4) annual budgets; and (5) annual program plans. WebNEERS is one web-based system which operates on three levels: The Region level (County), Institution level (university), and the Federal level. Data are entered at the regional level. They are available in aggregated form at the Institution level in real time. University staff generates State-level reports for State-level stakeholders and to guide program management decisions (State also refers to the District of Columbia and the insular areas; in States that have both 1862 and 1890 LGUs, it refers to the individual universities). Data are not available to the Federal level until the university staff submits them. This process allows for State and National assessments of the program's impact. The National data are used to create National reports which are made available to the public.
There are revisions to the currently approved collection. WebNEERS is an update to the currently approved NEERS5 system. WebNEERS is a secure online system designed, hosted, and maintained by Clemson University. WebNEERS is accessed through the Internet via Internet Explorer, Firefox, Google Chrome, and Safari web browsers. It can also be accessed through mobile devices and tablets. It incorporates local, university, and Federal components from the NEERS5 system as well as new elements such as the EFNEP 5-Year Plan/Annual Update (program plan), the EFNEP budget and budget justification, and the social ecological framework of the Community Nutrition Education (CNE) logic model. Only approved users can access WebNEERS and each user can only access data based on his/her defined permissions. The updated system also has the capability to export raw data for external analysis. Data exported from WebNEERS do not include personally identifiable information. Several stakeholder groups provided input on the updated system to ensure that EFNEP continues to collect only those data which it needs for evaluation and reporting. These groups also gave feedback to improve user interfaces and to improve functionality and capabilities of the system.
The evaluation processes of EFNEP remain consistent with the requirements of Congressional legislation and OMB. The Government Performance and Results Act (GPRA) of 1993 (Pub. L. 103-62), the GPRA Modernization Act of 2010 (Pub. L. 111-352), the Federal Agriculture Improvement Reform (FAIR) Act of 1996 (Pub. L. 104-127), and the Agricultural Research, Extension and Education Reform Act (AREERA) of 1998 (Pub. L. 105-185), together with OMB requirements, support the reporting requirements requested in this information collection. Section 804 of the FAIR act requires the development and implementation of a system to monitor and evaluate agricultural research and extension activities in order to measure the impact and effectiveness of research, extension, and education programs. AREERA requires a performance evaluation to be conducted to determine whether Federally funded agricultural research, extension, and education programs result in public goods that have national or multistate significance.
Rural Business-Cooperative Service, USDA.
Notice.
This Notice announces the solicitation of applications for funds available under the Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program (the Program), formerly the Biorefinery Assistance Program, to provide guaranteed loans to fund the development, construction, and Retrofitting of Commercial Scale biorefineries using Eligible Technology and of Biobased Product Manufacturing facilities that use Technologically New Commercial Scale processing and manufacturing equipment to convert Renewable Chemicals and other biobased outputs of biorefineries into end-user products, on a Commercial Scale.
With this Notice, the Agency is announcing two separate application cycles, which are established in accordance with 7 CFR 4279.260(b), with application deadlines of October 1, 2015, and April 1, 2016.
The first application cycle begins with publication of this Notice and extends no later than 4:30 p.m. Eastern Daylight Time, October 1, 2015. The second application cycle begins at the close of the first application cycle and extends no later than 4:30 p.m. Eastern Daylight Time, April 1, 2016. Applications received after the close of the second application cycle will be considered in the subsequent application cycle. All applications received prior to October 1, 2015, will be evaluated under 7 CFR part 4279, subpart B, published in the
Applications and forms may be obtained from:
• USDA, Rural Business-Cooperative Service, Energy Division, Attention: Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program, 1400 Independence Avenue SW., STOP 3225, Washington, DC 20250-3225.
• Agency Web site:
Todd Hubbell, Rural Business-Cooperative Service, Energy Division, Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program, USDA, 1400 Independence Avenue SW., Mail Stop 3225, Washington, DC 20250-3225. Telephone: 202-690-2516. Email:
In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with the Program, as covered in this Notice, have been submitted to the Office of Management Budget (OMB) under OMB Control Number 0570-0065, for OMB approval.
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This Notice also announces the solicitation of applications for funds available under the Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program to specifically fund Biobased Product Manufacturing. The 2014 Farm Bill added Biobased Product Manufacturing to the Program and provided for up to 15 percent of the mandatory funds for fiscal years 2014 and 2015 to be used to support facilities producing Biobased Products for end use. The 2014 Farm Bill provides the definition of “Biobased Product Manufacturing,” which the Agency has incorporated into the subsequent interim rule (see 7 CFR 4279.202). This definition requires that the Biobased Product Manufacturing facility use Renewable Chemicals and/or other biobased outputs of biorefineries as inputs and also requires that the Borrower use Technologically New Commercial Scale processing and manufacturing equipment and required facilities. The facility must produce end-user products.
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(a) Whether the Borrower has established a market for the manufactured Biobased Product, as applicable. A maximum of 16 points can be awarded. Points to be awarded will be determined as follows:
(1) Degree of commitment of contracted sales agreements. A maximum of 6 points will be awarded.
(i) If the Borrower has signed contracts for purchase for greater than 50 percent of the dollar value of manufactured Biobased Product, 6 points will be awarded.
(ii) If the Borrower has signed letters of intent to enter into contracted sales agreements, or comparable documentation, for the purchase for greater than 50 percent of the dollar value of the manufactured Biobased Product, or combination of signed contracts or agreements and letters of intent or comparable documentation, 4 points will be awarded.
(iii) If the Borrower has signed letters of interest to enter into contracted sales agreements, or comparable documentation, for the purchase for greater than 50 percent of the dollar value of the manufactured Biobased
(2) Duration of contracted sales agreements. A maximum of 6 points will be awarded.
(i) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of manufactured Biobased Product for the period not less than the loan term, 6 points will be awarded.
(ii) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of the manufactured Biobased Product for the period not less than 5 years but less than the term of the loan, 4 points will be awarded.
(iii) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of the manufactured Biobased Product for the period not less than 1 year but less than 5 years, 2 points will be awarded.
(3) Financial strength of the contracted sales agreement counterparty. A maximum of 4 points will be awarded.
(i) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of the manufactured Biobased Product with a counterparty with a corporate credit rating not less than AA, Aa2, or equivalent, 4 points will be awarded.
(ii) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of the manufactured Biobased Product with a counterparty with a corporate credit rating less than AA, Aa2, or equivalent, but not less thanA−, or A3, or equivalent, 2 points will be awarded.
(iii) If the Borrower commits to enter into contracted sales agreements prior to loan closing for purchase for greater than or equal to 50 percent of the dollar value of the manufactured Biobased Product with a counterparty with a corporate credit rating less than A−, or A3, or equivalent, but not less than BBB−, or Baa3, or equivalent, 1 point will be awarded.
(b) Whether the area in which the Borrower proposes to place the Project, defined as the area that will supply the Renewable Chemicals and other biobased outputs of biorefineries to the proposed Project, has any other similar facilities. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(1) If the area that will supply the Renewable Chemicals and other biobased outputs of biorefineries to the proposed Project does not have any other similar facilities, 5 points will be awarded.
(2) If there are other similar facilities located within the area that will supply the Renewable Chemicals and other biobased outputs of biorefineries to the proposed Project, 0 points will be awarded.
(c) Whether the Borrower is proposing to use Renewable Chemicals and other biobased outputs of biorefineries not previously used in the Biobased Product Manufacturing. A maximum of 10 points can be awarded. Points to be awarded will be determined as follows:
(1) If the Borrower proposes to use Renewable Chemicals and other biobased outputs of biorefineries previously used in the manufacture of a Biobased Product in a commercial facility, 0 points will be awarded.
(2) If the Borrower proposes to use Renewable Chemicals and other biobased outputs of biorefineries not previously used in the manufacture of a Biobased Product in a commercial facility, 10 points will be awarded.
(d) Whether the Borrower is proposing to work with producer associations or cooperatives. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(1) If at least 50 percent of the dollar value of Renewable Chemicals and other biobased outputs of biorefineries to be used by the proposed Project will be supplied by producer associations and cooperatives or biorefineries supplied by producer associations and cooperatives, 5 points will be awarded.
(2) If at least 30 percent of the dollar value of Renewable Chemicals and other biobased outputs of biorefineries to be used by the proposed Project will be supplied by producer associations and cooperatives or biorefineries supplied by producer associations and cooperatives, 3 points will be awarded.
(e) The level of financial participation by the Borrower, including support from non-Federal Government sources and private sources. A maximum of 20 points can be awarded. Points to be awarded will be determined as follows:
(1) If the sum of the loan amount requested and other direct Federal funding is less than or equal to 50 percent of total Eligible Project Costs, 20 points will be awarded.
(2) If the sum of the loan amount requested and other direct Federal funding is greater than 50 percent but less than or equal to 55 percent of total Eligible Project Costs, 16 points will be awarded.
(3) If the sum of the loan amount requested and other direct Federal funding is greater than 55 percent but less than or equal to 60 percent of total Eligible Project Costs, 12 points will be awarded.
(4) If the sum of the loan amount and other direct Federal funding is greater than 60 percent but less than or equal to 65 percent of total Eligible Project Costs, 8 points will be awarded.
(5) If the sum of the loan amount and other direct Federal funding is greater than 65 percent but less than or equal to 70 percent of total Eligible Project Costs, 4 points will be awarded.
(f) Whether the Borrower has established that the adoption of the manufacturing process proposed in the application will have a positive effect on three impact areas: Resource conservation (
(1) If process adoption will have a positive impact on any one of the three impact areas (resource conservation, public health, or the environment), 3 points will be awarded.
(2) If process adoption will have a positive impact on two of the three impact areas, 6 points will be awarded.
(3) If process adoption will have a positive impact on all three impact areas, 10 points will be awarded.
(g) Whether the Borrower can establish that, if adopted, the technology proposed in the application will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use Renewable Chemicals and other biobased outputs of biorefineries. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(1) If the Borrower has failed to establish, through an independent third-party Feasibility Study, that the production technology proposed in the application, if adopted, will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use similar Renewable Chemicals and other biobased outputs of biorefineries, 0 points will be awarded.
(2) If the Borrower has established, through an independent third-party Feasibility Study, that the production technology proposed in the application, if adopted, will not have any economically significant negative impacts on existing manufacturing plants or other facilities that use Renewable Chemicals and other biobased outputs of biorefineries, 5 points will be awarded.
(h) The potential for Rural economic development. A maximum of 10 points will be awarded. Points to be awarded will be determined as follows:
(1) If the Project is located in a Rural Area, 5 points will be awarded.
(2) If the Project creates jobs through direct employment with an average wage that exceeds the county median household wages where the Project will be located, 5 points will be awarded.
(i) The level of local ownership of the facility proposed in the application. For the purposes of this Notice, a Local Owner is defined as “An individual who owns any portion of an eligible Advanced Biofuel Biorefinery and whose primary residence is located within 50 miles of the Biorefinery.” A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(
(
(j) Whether the Project can be replicated. A maximum of 10 points can be awarded. Points to be awarded will be determined as follows:
(1) If the Project can be commercially replicated regionally (
(2) If the Project can be commercially replicated nationally, 10 points will be awarded.
(k) If the Project uses a particular technology, system, or process that is not currently operating at Commercial Scale as of October 1 of the fiscal year for which the funding is available (October 1, 2014 for the first application cycle which deadline is October 5, 2015, and as of October 1, 2015 for the applications submitted for cycles ending October 1, 2015 and April 1, 2016, 5 points will be awarded.
(l) The Administrator can award up to a maximum of 10 bonus points:
(1) To ensure, to the extent practical, there is diversity in the types of Projects approved for loan guarantees to ensure a wide a range as possible technologies, products, and approaches are assisted in the program portfolio; and
(2) To applications that promote partnerships and other activities that assist in the development of new and emerging technologies for the development of Renewable Chemicals and other biobased outputs of biorefineries, so as to, as applicable, promote resource conservation, public health, and the environment; diversify markets for agricultural and forestry products and agriculture waste material; and create jobs and enhance the economic development of the Rural economy. No additional information regarding partnerships is detailed in this Notice.
A.
B.
C.
D.
A.
B.
1.
2.
C.
For general questions about this Notice, please contact Todd Hubbell, Rural Business-Cooperative Service, Energy Division, Biorefinery Assistance Program, U.S. Department of Agriculture, 1400 Independence Avenue SW., Mail Stop 3225, Washington, DC 20250-3225. Telephone: 202-690-2516. Email:
The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)
If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at
Individuals who are deaf, hard of hearing or have speech disabilities and you wish to file either an EEO or program complaint please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).
Persons with disabilities, who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (
Notice of application to amend the Export Trade Certificate of Review issued to DFA of California, Application no. 14-1A004.
The Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the amended Certificate should be issued.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2015). Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any information not marked as privileged or confidential business information will be deemed to be nonconfidential.
An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 14-1A004.”
DFA's proposed amendment of its Export Trade Certificate of Review would result in the following companies as Members under the Certificate:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 8, 2015, the Department of Commerce (the Department) published in the
Joseph Shuler, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1293.
The merchandise subject to the antidumping duty order is brass sheet and strip, other than leaded brass and tin brass sheet and strip, from Italy, which is currently classified under subheading 7409.21.00.50, 7409.21.00.75, 7409.21.00.90, 7409.29.00.50, 7409.29.00.75, and 7409.29.00.90 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS numbers are provided for convenience and customs purposes. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
As a result of our review, we determine that the following dumping margin on BSS from Italy exists for the period March 1, 2013, through February 28, 2014:
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1), the Department determined, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise, in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of BSS from Italy entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for KME Italy SpA will be equal to the dumping margin established in the final results of this review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer has its own rate, the cash deposit rate will continue to be 5.44 percent, the all-others rate determined in the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The United States Manufacturing Council (Council) will hold the second meeting of the current members' term on Wednesday, July 22, 2015. The Council was established in April 2004 to advise the Secretary of
The purpose of the meeting is for the Workforce, Energy, Innovation, Research, & Development, and Tax, Trade, & Export Growth subcommittees to provide relevant updates on their fact finding efforts to the Council as the subcommittees work towards drafting recommendations for consideration by the Manufacturing Council. The Council will also receive briefings from various senior officials across the Department on international trade policy, Manufacturing Day, and Industry & Analysis policy updates. The Council members will follow-up from the Council's initial meeting to discuss their views on major priorities facing the manufacturing industry and issues that they propose for the Council to advise on during their appointment term. The agenda may change to accommodate Council business. The final agenda will be posted on the Department of Commerce Web site for the Council at
Wednesday, July 22, 2015, 1:00 p.m.-4:00 p.m. The deadline for members of the public to register, including requests to make comments during the meetings and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5 p.m. EDT on July 15, 2015.
The meeting will be held at the U.S. Department of Commerce, Room 3407, 1401 Constitution Avenue NW., Washington, DC 20230. Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted to: U.S. Manufacturing Council, U.S. Department of Commerce, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230,
Archana Sahgal, the United States Manufacturing Council, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202-482-4501, email:
In addition, any member of the public may submit pertinent written comments concerning the Council's affairs at any time before or after the meeting. Comments may be submitted to Archana Sahgal at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5:00 p.m. EDT on July 15, 2015, to ensure transmission to the Council prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting. Copies of Council meeting minutes will be available within 90 days of the meeting.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a modification to a currently approved public information collection request (ICR) entitled Senior Corps Grant Application for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Tamika Becton, at (202) 606-6644 or email to
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The 60-day
Department of Education (ED), Office of Postsecondary Education (OPE).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before August 5, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Josephine Hamilton, 202-502-7583.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Career, Technical, and Adult Education, Department of Education.
Final waiver and extension of the project period.
For the 24-month projects funded in fiscal year (FY) 2013 under the Native American Career and Technical Education Program (NACTEP), the Secretary waives the requirements that generally prohibit project period extensions involving the obligation of additional Federal funds. The Secretary also extends the project periods of these grants for up to an additional 24 months. This enables the current NACTEP grantees to request and continue to receive Federal funding annually in FY 2015 and FY 2016 for project periods through FY 2016 and possibly through FY 2017.
The waiver and extension of the project period is effective July 6, 2015.
Gwen Washington, U.S. Department of Education, 400 Maryland Avenue SW., Room 11076, Potomac Center Plaza (PCP), Washington, DC 20202-7241. Telephone: (202) 245-7790, or by email:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.
On February 10, 2015, we published in the
(1) Enable the Secretary to provide additional funds to the current NACTEP grantees with FY 2015 funds and possibly FY 2016 funds for project periods through FY 2016 and possibly through FY 2017; and
(2) Request comments on the proposed waiver and extension.
There are no substantive differences between the proposed waiver and extension and the final waiver and extension.
An analysis of the comments received in response to the proposed waiver and extension follows.
Several commenters stated that it would be difficult for eligible entities to prepare NACTEP applications for short-term funding prior to the expected reauthorization of the Carl D. Perkins Career and Technical Education Act of 2006 (the Perkins Act). Some commenters stated that it was not in the public interest to conduct a NACTEP grant competition at this time because there are likely to be changes in the Perkins Act for NACTEP beyond FY 2015.
Several commenters expressed the view that the waiver and extension are necessary to allow current students sufficient time to complete their programs, which include programs awarding industry-recognized credentials, two-year certificates, and associate degrees.
One commenter noted that tribal colleges would not have sufficient time to plan, establish, or effectively operate viable programs, in a one-year timeframe. The commenter expressed the view that continuing the projects of current grantees would eliminate the difficulties, barriers, and inefficiencies associated with starting new programs, stating that extending the current project period and funding of current grantees would: Capitalize upon the current momentum of grantee service delivery, since service streams were already in place and operational; allow current grantees to modify their programs based on their experience to date without disruption to the projects' participants, partnerships, programs, or plans; and increase the likelihood of student attainment of associate degrees and certificates and subsequent job placement. The commenter further stated that, under NACTEP, grantees must evaluate the long-term impact of each project, which will be facilitated by extending the project duration beyond two years.
Another commenter noted that a lapse of funds would create a set-back in the progress made in cultivating successful relationships with the local community college to provide in-demand training within their Native American community.
A commenter provided examples of exemplary NACTEP programs that are making substantial gains in combating poverty and unemployment, long-term joblessness, and other problems that contribute to the lack of gainful employment. The commenter stated that the grantees have partnered with local community colleges to provide students opportunities to earn college credits, as well as State and national certifications that prepare students for employment. This commenter expressed the need for the Department to approve the NACTEP waiver and extension for current grantees.
NACTEP, as authorized by section 116(a) through (g) of the Perkins Act, supports grants to federally recognized Indian tribes, tribal organizations, Alaska Native entities and eligible Bureau of Indian Education-funded schools to improve career and technical education programs that benefit Native Americans and Alaskan Natives.
On February 26, 2013, we published in the
Because there is the potential for changes in the Perkins Act for NACTEP beyond FY 2015, we do not believe it is in the public interest to hold a new NACTEP competition in FY 2015 for projects that may then operate for just one year, or to announce a competition under which eligible entities would be expected to proceed through the application preparation and submission process while lacking critical information about the future of the program. Further, we do not think that it is in the public interest to have a lapse in the services currently provided by the NACTEP grantees.
For these reasons, the Secretary waives the requirements of 34 CFR 75.261(a) and (c)(2) that generally prohibit project extensions involving the obligation of additional Federal funds and extends the NACTEP project periods for up to 24 months. The waiver and extension will allow the current NACTEP grantees to request and continue to receive Federal funding annually for project periods through FY 2016 and possibly through FY 2017. We will fund the extended project period by using funds appropriated for FY 2015 or FY 2016, depending on whether the grants are extended for one or two years.
Any activities carried out during the period of a NACTEP continuation award will have to be consistent with, or a logical extension of, the scope, goals, and objectives of the grantee's application as approved in the FY 2013 NACTEP competition. The requirements applicable to continuation awards for this competition set forth in the 2013 NIA and the requirements in 34 CFR 75.253 will apply to any continuation awards sought by the current NACTEP grantees. We will base our decisions regarding continuation awards on the program narratives, budgets, budget narratives, and program performance reports submitted by the current grantees, and the requirements in 34 CFR 75.253.
The waiver and extension will not exempt the current NACTEP grantees from the appropriation account closing provisions of 31 U.S.C. 1552(a), nor will they extend the availability of funds previously awarded to current NACTEP grantees. As a result of 31 U.S.C. 1552(a), appropriations available for a limited period may be used for payment of valid obligations for only five years after the expiration of their period of availability for Federal obligation. After that time, the unexpended balance of those funds is canceled and returned to the U.S. Department of the Treasury and is unavailable for restoration for any purpose (31 U.S.C. 1552(b)).
The Secretary certifies that the waiver and extension and the activities required to support two additional years of NACTEP funding will not have a significant economic impact on a substantial number of small entities. The small entities that will be affected by the waiver and extension are the 31 currently-funded NACTEP grantees and any other potential applicants.
The Secretary certifies that the waiver and extension will not have a significant economic impact on these entities because the extension of an existing project imposes minimal compliance costs, and the activities required to support the additional years of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.
This waiver and extension does not contain any information collection requirements.
NACTEP is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
You may also access documents of the Department published in the
20 U.S.C. 2326(a) through (g).
Take notice that on June 8, 2015, Orlando Utilities Commission submitted tariff filing per 35.28(e): Further Regional Compliance Filing to be effective 1/1/2015.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Comment Date: 5:00 p.m. Eastern Time on July 9, 2015.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended, (“CAA” or the “Act”), notice is hereby given of a proposed consent decree to address a lawsuit filed by Sierra Club and California Communities Against Toxics (collectively “Plaintiffs”):
Written comments on the proposed consent decree must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2015-0430, online at
Scott Jordan, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-7508; email address:
Under sections 112(d)(6) and 112(f)(2) of the CAA, EPA has a mandatory duty to take actions relative to the review/revision of national emission standards for hazardous air pollutants (“NESHAP”) within eight years of the issuance of such standards. The proposed consent decree would resolve a deadline suit filed by Plaintiffs alleging EPA's failure to take the above actions within eight years of issuing the NESHAP for the POTW source category (40 CFR part 63, subpart VVV). The proposed consent decree establishes that EPA will propose action by December 8, 2016 and take final action by October 16, 2017. See the proposed consent decree for further details.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2015-0430) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Kansas' request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective August 5, 2015 for the State of Kansas' National Primary Drinking Water Regulations Implementation program, if no timely request for a public hearing is received and accepted by the Agency, and on July 6, 2015 for the State of Kansas' other authorized programs.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On January 4, 2010, the Kansas Department of Health and Environment (KDHE) submitted an application titled “Department of Health and Environment Enterprise System” for revisions/modifications of its EPA-authorized programs under title 40 CFR. EPA reviewed KDHE's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Kansas' request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 51, 70-71, 122, 141, 144, 146, 257, 258, 262, 264-266, 268, 270, 403, 412, and 437, is being published in the
KDHE was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Also, in this notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the State of Kansas' request to revise its authorized public water system program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f). Requests for a hearing must be submitted to EPA within 30 days of publication of today's
(2) A brief statement of the requesting person's interest in EPA's determination, a brief explanation as to why EPA should hold a hearing, and any other information that the requesting person wants EPA to consider when determining whether to grant the request;
(3) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
Environmental Protection Agency (EPA).
Notice of delegation of authority.
On May 7, 2015, the Environmental Protection Agency (EPA) sent the Commonwealth of Virginia (Virginia) a letter acknowledging that Virginia's delegation of authority to implement and enforce National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) had been updated, as provided for under previously approved delegation mechanisms. To inform regulated facilities and the public of Virginia's updated delegation of authority to implement and enforce NESHAP and NSPS, EPA is making available a copy of EPA's letter to Virginia through this notice.
On May 7, 2015, EPA sent Virginia a letter acknowledging that Virginia's delegation of authority to implement and enforce NESHAP and NSPS had been updated.
Copies of documents pertaining to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of Virginia's submittal are also available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.
Ray Chalmers, (215) 814-2061, or by email at
On March 12, 2015, Virginia notified EPA that Virginia had updated its incorporation by reference of Federal NESHAP and NSPS to include many such standards, as they were published in final form in the Code of Federal Regulations dated July 1, 2014. On May 7, 2015, EPA sent Virginia a letter acknowledging that Virginia now has the authority to implement and enforce the NESHAP and NSPS as specified by Virginia in its notice to EPA, as provided for under previously approved automatic delegation mechanisms. All notifications, applications, reports and other correspondence required pursuant to the delegated NESHAP and NSPS must be submitted to both the US EPA Region III and to the Virginia Department of Environmental Quality, unless the delegated standard specifically provides that such submittals may be sent to EPA or a delegated State. In such cases, the submittals should be sent only to the Virginia Department of Environmental Quality. A copy of EPA's letter to Virginia follows:
The United States Environmental Protection Agency (EPA) has previously delegated to the Commonwealth of
In a letter dated March 12, 2015, Virginia informed EPA that Virginia had updated its incorporation by reference of federal NESHAP and NSPS to include many such standards, as they were published in final form in the Code of Federal Regulations dated July 1, 2014. Virginia noted that its intent in updating its incorporation by reference of the NESHAP and NSPS was to retain the authority to enforce all standards included in the revisions, as per the provisions of EPA's previous delegation actions. Virginia committed to enforcing the federal standards in conformance with the terms of EPA's previous delegations of authority. Virginia made only allowed wording changes.
Virginia provided copies of its revised regulations specifying the NESHAP and NSPS which Virginia has adopted by reference. These revised regulations are entitled 9 VAC 5-50 “New and Modified Stationary Sources,” and 9 VAC 5-60 “Hazardous Air Pollutant Sources.” These revised regulations have an effective date of March 11, 2015.
Accordingly, EPA acknowledges that Virginia now has the authority, as provided for under the terms of EPA's previous delegation actions, to implement and enforce the NESHAP and NSPS standards which Virginia has adopted by reference in Virginia's revised regulations 9 VAC 5-50 and 9 VAC 5-60, both effective on March 11, 2015.
Please note that on December 19, 2008, in
Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 CFR 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed these SSM exemption provisions from the General Provisions of 40 CFR part 63. Because Virginia incorporated 40 CFR part 63 by reference, Virginia should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 CFR part 63 due to the Court's ruling in
EPA appreciates Virginia's continuing NESHAP and NSPS enforcement efforts, and also Virginia's decision to take automatic delegation of additional and more recent NESHAP and NSPS by adopting them by reference.
This notice acknowledges the update of Virginia's delegation of authority to implement and enforce NESHAP and NSPS.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 30, 2015.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the notices must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 30, 2015.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309:
1.
Administration on Intellectual and Developmental Disabilities, Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written comments on the collection of information by August 5, 2015.
Submit written comments on the collection of information by fax 202.395.5806 or by email to
Melvenia Wright, Program Specialist, Administration for Community Living, Washington, DC 20001. Telephone: (202) 357-3486; email
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
Administration for Community Living, HHS.
Notice.
Monday, August 3, 2015 from 9:00 a.m. to 4:30 p.m.; and Tuesday, August 4, 2015 from 9:30 a.m. to 4:00 p.m. These meetings will be open to the general public.
These meetings will be held in the U.S. Department of Health and Human Services
Individuals who would like to participate via conference call may do so by dialing toll-free 888-469-0957, when prompted enter pass code: 8955387. Individuals whose full participation in the meeting will require special accommodations (
For further information, please contact Dr. MJ Karimi, Team Lead, President's Committee for People with Intellectual Disabilities, One Massachusetts Avenue NW., Room 4206, Washington, DC 20201. Telephone: 202-357-3588. Fax: 202-205-8037. Email:
The PCPID acts in an advisory capacity to the President and the Secretary of Health and Human Services on a broad range of topics relating to programs, services and support for individuals with intellectual disabilities. The PCPID executive order stipulates that the Committee shall: (1) Provide such advice concerning intellectual disabilities as the President or the Secretary of Health and Human Services may request; and (2) provide advice to the President concerning the following for people with intellectual disabilities: (A) expansion of educational opportunities; (B) promotion of homeownership; (C) assurance of workplace integration; (D) improvement of transportation options; (E) expansion of full access to community living; and (F) increasing access to assistive and universally designed technologies.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing the availability of a guidance for industry entitled “DSCSA Implementation: Product Tracing Requirements for Dispensers—Compliance Policy.” This guidance announces FDA's intention with regard to enforcement of certain product tracing requirements of the Federal Food, Drug, and Cosmetic Act (FD&C Act) added by the Drug Supply Chain Security Act (DSCSA). FDA does not intend to take action against dispensers who, prior to November 1, 2015, accept ownership of product without receiving product tracing information, prior to or at the time of a transaction or do not capture and maintain the product tracing information, as required by the FD&C Act.
Effective July 1, 2015. For information about enforcement dates, please see the
All communications in response to this notice should be identified with Docket No. FDA-2015-D-2270, and should be directed to the office listed in the
Office of Compliance, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-3130,
We are announcing the availability of a guidance for industry entitled “DSCSA Implementation: Product Tracing Requirements for Dispensers—Compliance Policy.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). We are implementing this guidance without prior public comment because we have determined that prior public participation is not feasible or appropriate (21 CFR 10.115(g)(2)). We made this determination because this guidance document provides information pertaining to statutory requirements that take effect on July 1, 2015, regarding the provisions to provide and capture product tracing information under section 582(d)(1) of the FD&C Act (21 U.S.C 360eee-1(d)(1)). It is important that FDA provide this information before that date. Although this guidance document is immediately in effect, it remains subject to comment in accordance with the Agency's good guidance practices (21 CFR 10.115(g)(3)).
On November 27, 2013, the DSCSA (Title II of Pub. L. 113-54) was signed into law. Section 202 of DSCSA adds sections 581 and 582 to the FD&C Act, which set forth new definitions and requirements for the tracing of products through the pharmaceutical distribution supply chain. Starting in 2015, trading partners (manufacturers, wholesale distributors, dispensers, and repackagers) are required under sections 582(b)(1), (c)(1), (d)(1), and (e)(1) of the FD&C Act to exchange product tracing information when engaging in transactions involving certain prescription drugs. For dispensers, requirements for the tracing of products through the pharmaceutical distribution supply chain under section 582(d)(1) of the FD&C Act go into effect on July 1, 2015.
Some dispensers have expressed concern that electronic systems used to exchange, capture, and maintain product tracing information will not be operational by this effective date. Although the DSCSA allows product tracing information to be exchanged through paper in certain circumstances, FDA understands that many dispensers intend to utilize electronic systems to capture and maintain product tracing information. Thus, FDA recognizes that some dispensers may need additional time beyond July 1, 2015, to work with trading partners to ensure that the product tracing information required by section 582 is captured and maintained by dispensers. In light of these concerns, FDA does not intend to take action against dispensers who, prior to November 1, 2015: (1) Accept ownership of product without receiving product tracing information, prior to or at the time of a transaction, as required by section 582(d)(1)(A)(i) of the FD&C Act or (2) do not capture and maintain the product tracing information, as required by section 582(d)(1)(A)(iii) of the FD&C Act. This compliance policy does not extend to other requirements of the FD&C Act applicable to dispensers and other trading partners, including
The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments to
Persons with access to the Internet may obtain the document at
Assistant Secretary for Planning and Evaluation, HHS.
Notice of meeting.
This notice announces the public meeting of the Advisory Council on Alzheimer's Research, Care, and Services (Advisory Council). The Advisory Council on Alzheimer's Research, Care, and Services provides advice on how to prevent or reduce the burden of Alzheimer's disease and related dementias on people with the disease and their caregivers. During the July meeting, the Advisory Council will hear from experts on related dementias, such as Frontotemporal dementia, Lewy Body dementia, and others. Following this session, the Advisory Council will also hold a discussion of the expected bypass budget from NIA, required in the CRomnibus Bill. The Council will also discuss updates to international events on dementia.
The meeting will be held on April 28th, 2015 from 9:00 a.m. to 5:00 p.m. EDT.
The meeting will be held in the Great Hall in the Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
Comments: Time is allocated in the afternoon on the agenda to hear public comments. The time for oral comments will be limited to two (2) minutes per individual. In lieu of oral comments, formal written comments may be submitted for the record to Rohini Khillan, OASPE, 200 Independence Avenue SW., Room 424E, Washington, DC 20201. Comments may also be sent to
Rohini Khillan (202) 690-5932,
Notice of these meetings is given under the Federal Advisory Committee Act (5 U.S.C. App. 2, section 10(a)(1) and (a)(2)).
Topics of the Meeting: The Advisory Council will hear from experts on related dementias, such as Frontotemporal dementia, Lewy Body dementia, and others. Following this session, the Advisory Council will also hold a discussion of the expected bypass budget from NIA, required in the CRomnibus Bill. The Council will also discuss updates to international events on dementia.
Procedure and Agenda: This meeting is open to the public. Please allow 30 minutes to go through security and walk to the meeting room. The meeting will also be webcast at
42 U.S.C. 11225; Section 2(e)(3) of the National Alzheimer's Project Act. The panel is governed by provisions of Public Law 92-463, as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In accordance with Title 41 of the U.S. Code of Federal Regulations, Section 102-3.65(a), notice is hereby given that the Charter for the Sickle Cell Disease Advisory Council (SCDAC) was renewed for an additional two-year period on June 30, 2015.
It is determined that the SCDAC is in the public interest in connection with the performance of duties imposed on the National Institutes of Health by law, and that these duties can best be performed through the advice and counsel of this group.
Inquires may be directed to Jennifer Spaeth, Director, Office of Federal, Advisory Committee Policy, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Suite 1000, Bethesda, Maryland 20892 (Mail Code 4875), Telephone (301) 496-2123, or
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Importers of Merchandise Subject to Actual Use Provisions. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 5, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Transfer of Cargo to a Container Station. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before August 5, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
Office of Cybersecurity and Communications, National Protection and Programs Directorate, Department of Homeland Security.
Notice of public workshop.
This Notice announces a public workshop on July 30, 2015 to discuss Information Sharing and Analysis Organizations, Automated Threat Information Sharing, and Analysis Capabilities and Requirements, as related to Executive Order 13691, “Promoting Private Sector Cybersecurity Information Sharing” of February 13, 2015. This workshop builds off of the workshop held on June 9, 2015 at the Volpe Center in Cambridge, MA.
The workshop will be held on July 30, 2015, from 8:00 a.m. to 5:00 p.m. The meeting may conclude before the allotted time if all matters for discussion have been addressed.
The meeting location is Silicon Valley at San Jose State University—1 Washington Sq., San Jose, CA 95192. See
Executive Order 13691 can be found at:
If you have questions concerning the meeting, please contact
On February 13, 2015, President Obama signed Executive Order 13691 intended to enable and facilitate “private companies, nonprofit organizations, and executive departments and agencies . . . to share information related to cybersecurity risks and incidents and collaborate to respond in as close to real time as possible.” The order addresses two concerns the private sector has raised:
• How can companies share information if they do not fit neatly into the sector-based structure of the existing Information Sharing and Analysis Centers (ISACs)?
• If a group of companies wants to start an information sharing organization, what model should they follow? What are the best practices for such an organization?
ISAOs may allow organizations to robustly participate in DHS information sharing programs even if they do not fit into an existing critical infrastructure sector, seek to collaborate with other companies in different ways (regionally, for example), or lack sufficient resources to share directly with the government. ISAOs may participate in existing DHS cybersecurity information sharing programs and contribute to near-real-time sharing of cyber threat indicators.
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact
Members of the public may attend this workshop by RSVP only up to the seating capacity of the room. We plan to audio record the Workshop Panels that
We encourage you to participate in this meeting by submitting comments to the ISAO inbox
You may also submit written comments to the docket using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. All comments must either be submitted to the online docket on or before July 20, 2015, or reach the Docket Management Facility by that date.
6 U.S.C. 131-134; 6 CFR. 29; E.O. 13691.
Transportation Security Administration, DHS.
60-day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0063, abstracted below that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves the reimbursement of expenses incurred by airport operators for the provision of law enforcement officers to support airport checkpoint screening.
Send your comments by September 4, 2015.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Pursuant to 49 U.S.C. 114(m), and 106(l) and (m), TSA has authority to enter into agreements with participants to reimburse expenses incurred by airport operators for the provision of LEOs in support of screening at airport checkpoints. Consistent with this authority, TSA created the LEO Reimbursement Program, which is run by the Office of Law Enforcement/Federal Air Marshal Service (OLE/FAMS).
TSA OLE/FAMS requires that participants in the LEO Reimbursement Program record the details of all reimbursements sought. In order to provide for the orderly tracking of reimbursements, the LEO Reimbursement Program uses TSA Form 3503, LEO Reimbursement Request which captures and tracks reimbursement information.
The LEO Reimbursement Request form is available at
TSA estimates each respondent will spend approximately one hour to complete the request for reimbursement form, for a total annual hour burden of 3,912 hours.
Office of the President of Government National Mortgage Association (Ginnie Mae), HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to either: Anna Guido, FOIA/Privacy Specialist: email:
Debra Murphy, Ginnie Mae, 451 7th Street SW., Room B-133, Washington, DC 20410; email—
The Department will submit the proposed information collection to OMB for review, .13 required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden hours of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The name of the appendix will be changed to: Ginnie Mae Systems Access Appendix will have six (6) clearing defined sections. They are as follows:
The addition of the new sections and increase in Appendix III-29 is the reason for the increase of burden hours. There is no increase in burden hours with regard to Appendix III-13.
There are 15 forms and appendices in our collection which are volume driven rather than participant driven: these have increased as our portfolio has grown.
Included in the Guide are the appendices, forms, and documents necessary for Ginnie Mae to properly administer its MBS programs.
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of document availability for review and public comment.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of our draft Polar Bear Conservation Management Plan (Polar Bear Plan). The polar bear is listed as threatened under the Endangered Species Act of 1973, as amended, and is also considered “depleted” under the Marine Mammal Protection Act of 1972, as amended. The draft Polar Bear Plan identifies objective, measurable recovery criteria, site-specific recovery actions, and time and cost estimates, and also serves as a conservation plan. We request review and comment on the Polar Bear Plan from agencies, organizations, and individuals with an interest in polar bear conservation.
To ensure consideration of your comments in our preparation of the final plan, we must receive your comments and information by August 20, 2015. However, we will accept information about any species at any time.
• U.S. mail or hand-delivery: Public Comments Processing, ATTN: FWS-R7-ES-2014-0060, U.S. Fish and Wildlife Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803; or
• Federal eRulemaking Portal:
Mary Colligan, Chief, Marine Mammals Management, by telephone at 907-786-3800; by U.S. mail at Marine Mammals Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503; or by email at
We announce the availability of our draft Polar Bear Conservation Management Plan (Polar Bear Plan). The polar bear (
We listed the polar bear as threatened on May 15, 2008 (73 FR 28212). For description, taxonomy, distribution, status, breeding biology and habitat, and a summary of factors affecting the species, please see the final listing rule. Recovery of endangered or threatened animals and plants is a primary goal of our endangered species program and the ESA. To help guide the recovery effort, we prepare recovery plans for most listed species native to the United States. Further, the ESA requires that we develop recovery plans for listed species, unless such a plan would not promote the conservation of a particular species, and that we provide public notice and an opportunity for public review and comment during recovery plan development. Recovery plans describe actions considered necessary for the conservation and survival of the species, establish criteria for delisting listed species, and estimate time and cost for implementing needed recovery measures.
MMPA Conservation Plans have the purpose of conserving and restoring a species or stock to its optimum sustainable population. The MMPA further provides that Conservation Plans shall be modeled on ESA recovery plans. Therefore, once finalized, the Polar Bear Plan will provide us with recommended management actions for the survival and recovery of the species, and to conserve and restore the species to its optimum sustainable population.
Polar bears evolved to utilize the Arctic sea ice niche and are distributed throughout most ice-covered seas of the United States, Canada, the Russian Federation, Norway and Greenland/Denmark (Range States), in the Northern Hemisphere (see Figure 1 of the May 15, 2008, Listing Rule; 73 FR 28216). At the time of our 2008 final listing rule, we estimated the worldwide population of polar bears to be between 20,000 and 25,000 (73 FR 28215).
At the time of the listing, we determined that ongoing and projected loss of the polar bear's crucial sea ice habitat threatens the species throughout all of its range. Productivity, abundance, and availability of ice seals, the polar bear's primary prey base, would be diminished by the projected loss of sea ice, and energetic requirements of polar bears for movement and obtaining food would increase. Access to traditional denning areas would be affected. In turn, these factors would cause declines in the condition of polar bears from nutritional stress and reduced productivity. The eventual effect of this loss of sea ice is that the polar bear population would decline. The rate and magnitude of decline would vary geographically, based on differences in the rate, timing, and magnitude of impacts. However, within the foreseeable future, the worldwide population would be affected, and the species is likely to become in danger of extinction throughout all of its range (73 FR 28292-28293). As the Service explained in its listing determination, global climate change resulting from greenhouse gas emissions is the root cause of the loss of Arctic sea ice.
The Polar Bear Plan is more broadly focused than a typical recovery or conservation plan. At its core, the Polar Bear Plan contains a set of fundamental goals reflecting shared values of its diverse stakeholders. The fundamental
Conservation and recovery actions are specified in the Polar Bear Plan. The single most important action for the recovery of polar bears is global reduction of atmospheric greenhouse gases, which, if achieved, should result in reduced global climate change, including Arctic warming and sea ice loss. Along with communicating that fact, the Polar Bear Plan identifies a suite of high-profile actions designed to ensure that polar bears remain in sufficient number and diversity so that they are in a position to recover once climate change is addressed. Those actions include the following:
• Limit global atmospheric levels of greenhouse gases to levels appropriate for supporting polar bear recovery and conservation, primarily by reducing greenhouse gas emissions Support international conservation efforts through the Range States relationships
• Manage human-bear conflicts
• Collaboratively manage subsistence harvest
• Protect denning habitat
• Minimize risks of contamination from spills
• Conduct strategic monitoring and research
The full cost of implementing this Polar Bear Plan over the next 5 years is approximately $12,921,200.
We request written comments on the draft Polar Bear Plan. All comments received by the date specified in
Comments and materials received, as well as supporting documentation used in preparation of the recovery plan, will be available for inspection, during normal business hours at the Service's Anchorage office (see
This draft Polar Bear Plan represents the views and interpretations of the Service regarding the conservation and recovery of the polar bear only. The Service's approach set forth in this draft Polar Bear Plan does not necessarily preclude other approaches in developing ESA recovery plans or MMPA conservation plans. We seek comments from the public regarding viable alternatives for plans involving ice-dependent species and will consider all comments prior to finalizing this plan.
In addition, we specifically seek comments on the following:
(1) The scope and description of the six fundamental goals.
(2) The suitability and feasibility of the MMPA demographic criteria related to human-caused removals and to the health of the marine ecosystem of which polar bears are part.
(3) The suitability and feasibility of the ESA fundamental, demographic, and threats-based recovery criteria.
(4) The use of ecoregions as recovery units to represent the genetic, behavioral, life-history, and ecological diversity of the species.
(5) The conservation strategy and specific suite of high-priority conservation and recovery actions.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We developed our draft recovery plan under the authority of ESA section 4(f), 16 U.S.C. 1533(f), as well as section 115(b) of the MMPA, 16 U.S.C. 1383b(b). We publish this notice under ESA section 4(f) (16 U.S.C. 1531
Bureau of Land Management, Interior.
30-day notice and request for comments.
The Bureau of Land Management (BLM) has submitted an information collection request to the Office of Management and Budget (OMB) to continue the collection of information from respondents who provide certain information in order to conduct onshore oil and gas geophysical exploration on lands managed by the BLM or the U.S. Forest Service. The Office of Management and Budget (OMB) previously approved this information collection activity, and assigned it control number 1004-0162.
The OMB is required to respond to this information collection request within 60 days but may respond after 30 days. For maximum consideration, written comments should be received on or before August 5, 2015.
Please submit comments directly to the Desk Officer for the Department of the Interior (OMB #1004-0162), Office of Management and Budget, Office of Information and Regulatory Affairs, fax 202-395-5806, or by electronic mail at
Please provide a copy of your comments to the BLM. You may do so via mail, fax, or electronic mail.
Please indicate “Attn: 1004-0162” regardless of the form of your comments.
Jennifer Spencer, at 202-912-7146. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Ms. Spencer. You may also review the information collection request online at
The Paperwork Reduction Act (44 U.S.C. 3501-3521) and OMB regulations at 5 CFR part 1320 provide that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond. In order to obtain and renew an OMB control number, Federal agencies are required to seek public comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)).
As required at 5 CFR 1320.8(d), the BLM published a 60-day notice in the
The commenter expressed confusion owing to the lack of a specific proposal in the notice, and asked if the notice is a simple matter of continuing a geophysical Notice of Intent as currently written. The BLM responded to the commenter via email, explaining that the notice pertains to a collection of information defined in the PRA, the BLM is planning to seek renewal of control number 1004-0162, and the notice is the first step in the renewal process. The collection of information was not modified in response to this comment.
During the approval period, the BLM consulted with several respondents via email, to solicit comments on the burden hours and cost estimates, availability of data, frequency of collection, and clarity of instructions. Two respondents provided feedback.
One respondent suggested limiting the scope of what is reported on item 5, page 1 of the Notice of Completion form, to places where surface disturbance has not been reclaimed and to show those areas on a U.S. Geological Survey topographic map. At present, that item reads, “Describe any surface disturbance and how you reclaimed it.” In response to the respondent's comment, the BLM decided to change this item to “Describe any surface disturbance, its location, and how you reclaimed it.” The BLM needs this description in order to locate all disturbed areas and ensure that reclamation is completed adequately.
Both respondents addressed items on the Notice of Intent form. One respondent requested better guidance on what is needed for “Describe the survey type” and better definition for “Describe the survey method.” The other respondent suggested changing “Describe the survey type” to seismic type, and the “Describe the survey method” to seismic method. This respondent also suggested that item 1 include geographic information system (GIS) shape files, and that item 4 should ask when the starting date will be for the casual use survey, as well as for exploration.
Item 1 of the Notice of Intent form already requires submission of GIS data in a format that is useful for the BLM and will not be modified to include GIS shape files. However, item 1 will be changed to “A separate Plan of Operations is attached addressing items 1-5 below, in order to improve the clarity of the instruction.” The BLM will leave item 4 the same since it is common for the casual use surveys to be started and completed as soon as possible. The BLM's main concern is when the equipment will be on location. Regarding the survey type and method, the BLM will not make the requested change. Seismic is a type of survey or method, in addition to other types of surveys or methods used, for example, electromagnetic.
The BLM now requests comments on the following subjects:
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
The following information pertains to this request:
BLM Form 3150-5/FS Form 2800-16a, Notice of Completion of Oil and Gas Geophysical Exploration Operations.
The following table details the individual components and respective hour burdens of this information collection request:
National Park Service, Interior.
Meeting notice.
This notice sets forth the date of the 299th Meeting of the Cape Cod National Seashore Advisory Commission.
The public meeting of the Cape Cod National Seashore Advisory Commission will be held on Monday, July 20, 2015, at 1:00 p.m. (EASTERN).
The Commission members will meet in the conference room at park headquarters, 99 Marconi Site Road, Wellfleet, Massachusetts 02667.
The 299th meeting of the Cape Cod National Seashore Advisory Commission will take place on Monday, July 20, 2015, at 1:00 p.m., in the conference room at Headquarters, 99 Marconi Station Road, in Wellfleet, Massachusetts to discuss the following:
Further information concerning the meeting may be obtained from George E. Price, Jr. Superintendent, Cape Cod National Seashore, 99 Marconi Site Road, Wellfleet, MA 02667, or via telephone at (508) 771-2144.
The meeting is open to the public. It is expected that 15 persons will be able to attend in addition to the Commission members. Interested persons may make oral/written presentations to the Commission during the business meeting or file written statements. Such requests should be made to the Park Superintendent prior to the meeting.
The Commission was reestablished pursuant to Public Law 87-126, as amended by Public Law 105-280. The purpose of the Commission is to consult with the Secretary of the Interior, or her designee, with respect to matters relating to the development of Cape Cod National Seashore, and with respect to carrying out the provisions of sections 4 and 5 of the Act establishing the Seashore.
Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Meeting Notices.
As required by the Federal Advisory Committee Act (16 U.S.C. Appendix 1-16), the National Park Service (NPS) is hereby giving notice that the Cape Krusenstern National Monument Subsistence Resource Commission (SRC), the Kobuk Valley National Park SRC, and the Denali National Park SRC will hold public meetings to develop and continue work on NPS subsistence program recommendations, and other related regulatory proposals and resource management issues. The NPS SRC program is authorized by Section 808 of the Alaska National Interest Lands Conservation Act, (16 U.S.C. 3118), title VIII.
For more detailed information regarding this meeting or if you are interested in applying for SRC membership contact Ken Adkisson, Subsistence Manager, at (907) 443-6104, or via email at
SRC meeting locations and dates may change based on inclement weather or exceptional circumstances. If the meeting date and location are changed, the Superintendent will issue a press release and use local newspapers and radio stations to announce the rescheduled meeting.
SRC meetings are open to the public and will have time allocated for public testimony. The public is welcome to present written or oral comments to the SRC. SRC meetings will be recorded and meeting minutes will be available upon request from the Superintendent for public inspection approximately six weeks after the meeting. Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Meeting notice.
As required by the Federal Advisory Committee Act (5 U.S.C. Appendix 1-16), the National Park Service is giving notice of the July 29, 2015, meeting of the Kalaupapa National Historical Park Advisory Commission.
The public meeting of the Kalaupapa National Historical Park Advisory Commission will be held on Wednesday, July 29, 2015, at 9:45 a.m. (HAWAII STANDARD TIME).
The meeting will be held at Paschoal Hall, Kalaupapa National Historical Park, Kalaupapa, Hawaii 96742.
The Commission meeting will consist of the following:
1. Approval of Agenda.
2. Approval of April 21, 2015, Minutes.
3. Superintendent's Report.
4. Draft General Management Plan and Environmental Impact Statement Presentation.
5. Memorial Update.
6. Public Comments.
Further information concerning this meeting may be obtained from the Designated Federal Official Erika Stein Espaniola, Superintendent, Kalaupapa National Historical Park, P.O. Box 2222, Kalaupapa, Hawaii 96742, telephone (808) 567-6802, ext. 1100.
The meeting is open to the public. Interested persons may make oral/written presentations to the Commission or file written statements. Such requests should be made to the Superintendent at least seven days prior to the meeting. Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice of determination of wilderness eligibility for lands in Big Cypress National Preserve and intent to expand the scope of the Backcountry Access Plan (BAP)/Environmental Impact Statement (EIS) to include a wilderness study.
The National Park Service (NPS) has completed a Wilderness Eligibility Assessment to determine if lands within the original 1974 legislated boundary of Big Cypress National Preserve (Preserve) meet criteria indicating eligibility for preservation as wilderness. Based on the assessment, the NPS has concluded that of the 557,065 acres assessed, 188,323 acres meet the eligibility criteria.
In accordance with NPS
The NPS will conduct public meetings in the local area to receive further input from interested parties on issues, concerns, and suggestions pertinent to backcountry use and access and wilderness designation within the Preserve. The comment period will be announced through local media outlets, at the meetings, and on the backcountry access plan Web site at
The date, time, and location of public meetings will be announced through the NPS Planning, Environment, and Public Comment (PEPC) Web site
Maps and descriptions of eligible lands are on file at Big Cypress National Preserve Headquarters, 33100 Tamiami Trail East, Ochopee, Florida 34141-1000 and available on the backcountry access plan Web site at
Requests for further information should be directed to Big Cypress National Preserve Chief of Interpretation Bob DeGross by phone at 239-695-1107, via email at
The Preserve staff reviewed the Primary Eligibility Criteria in Section 6.2.1.1 of the NPS
Public notices announcing the Preserve's intention to conduct this eligibility assessment were published in the
National Park Service, Interior.
Notice of availability.
In accordance with the Wild and Scenic Rivers Act, the National Park Service has transmitted the final boundary description and map of the Virgin Wild and Scenic River to Congress. The classification and boundaries became effective as stated elsewhere in this notice.
The boundaries and classification of the Virgin Wild and Scenic River became effective October 26, 2014.
Documents may be viewed at any National Park Service Office through the LandsNet Web site [
National Park Service Denver Service Center, 12795 W. Alameda Parkway, Denver, CO 80228, 303-969-2325;
The Omnibus Public Land Management Act of 2009 (Pub. L. 111-11) of March 30, 2009, designated the Virgin Wild and Scenic River, to be administered by the Secretary of Interior. As specified by law (16 U.S.C. 1274(b)), the boundary becomes effective 90 days after the boundary amendments are forwarded to Congress. Since the boundary amendments were forwarded on July 28, 2014, the boundaries became effective on October 26, 2014.
Additional portions of the Virgin Wild and Scenic River are managed by the Bureau of Land Management. In accordance with national BLM policies outlined in BLM's Manual 6120, section .12,
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 24) of the presiding administrative law judge (“ALJ”) terminating the investigation as to Federal-Mogul respondents based on a settlement agreement.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3115. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted Investigation No. 337-TA-928,
On November 21, 2014, the Commission instituted Investigation No. 337-TA-937,
On December 9, 2014, the ALJ consolidated Investigation Nos. 337-TA-928 and 337-TA-937.
On May 19, 2015, complainants Valeo and respondents Federal-Mogul,
On June 5, 2015, the ALJ issued Order No. 24 in which he,
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty orders on preserved mushrooms from Chile, China, India, and Indonesia would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
Joanna Lo (202-205-1888), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
Notice of registration.
Johnson Matthey, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Johnson Matthey, Inc. registration as a manufacturer of those controlled substances.
By notice dated February 11, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Johnson Matthey, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed:
The company plans to manufacture the listed controlled substances in bulk for sale to its customers.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before August 5, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before August 5, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on March 3, 2015, United States Pharmacopeial Convention, 12601 Twinbrook Parkway, Rockville, Maryland 20852 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances in bulk powder form from foreign sources for the manufacture of analytical reference standards for sale to their customers.
The company plans to import analytical reference standards for distribution to its customers for research and analytical purposes. Placement of these drug codes onto the company's registration does not translate into automatic approval of subsequent permit applications to import controlled substances. Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under to 21 U.S.C. 952(a)(2). Authorization will not extend to the import of FDA approved or non-approved finished dosage forms for commercial sale.
Notice of registration.
Halo Pharmaceutical, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Halo Pharmaceutical, Inc. registration as a manufacturer of those controlled substances.
By notice dated January 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Halo Pharmaceutical, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to manufacture Hydromorphone HCL for sale to other manufacturers and to manufacture other controlled substances for distribution to its customers. Dihydromorphine is an intermediate in the manufacture of Hydromorphone and is not for commercial distribution.
Notice of application.
Registered bulk manufacturers of the affected basic class, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before August 5, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before August 5, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL/8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on January 12, 2015, Kremers Urban Pharmaceuticals, Inc., 1101 C Avenue West, Seymour, Indiana 47274 applied to be registered as an importer of methylphenidate (1724), a basic class of controlled substance listed in schedule II.
The company plans to import the listed substances in finished dosage form (FDF) from foreign sources for analytical testing and clinical trials in which the foreign FDF will be compared to the company's own domestically-manufactured FDF. This analysis is required to allow the company to export domestically-manufactured FDF to foreign markets.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before September 4, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on March 20, 2015, AMPAC Fine Chemicals LLC, Highway 50 and Hazel Avenue, Building 05001, Rancho Cordova, California 95670 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company is a contract manufacturer. In reference to Poppy Straw Concentrate the company will manufacture thebaine intermediates for sale to its customers for further manufacture. No other activity for this drug code is authorized for this registration.
Notice of registration.
Rhodes Technologies applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Rhodes Technologies registration as a manufacturer of those controlled substances.
By notice dated January 21, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Rhodes Technologies to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to manufacture the above-listed controlled substances in bulk for conversion and sale to dosage form manufacturers.
In reference to drug code 7370, the company plans to bulk manufacture a synthetic tetrahydrocannabinol. No other activity for this drug code is authorized for this registration.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before August 5, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before August 5, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on March 31, 2014, Lipomed, Inc., One Broadway, Cambridge, Massachusetts 02142 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import analytical reference standards for distribution to its customers for research and analytical purposes. Placement of these drug codes onto the company's registration does not translate into automatic approval of subsequent permit applications to import controlled substances. Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of FDA approved or non-approved finished dosage forms for commercial sale.
Notice of registration.
Euticals, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Euticals, Inc. registration as a manufacturer of those controlled substances.
By notice dated January 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Euticals, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for distribution and sale to its customers.
In reference to Amphetamine (1100), the company plans to acquire the listed controlled substance in bulk from a domestic source in order to manufacture other controlled substances in bulk for distribution to its customers.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before September 4, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on February 4, 2015, Navinta, LLC, 1499 Lower Ferry Road, Ewing, New Jersey 08618-1414 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans initially to manufacture API quantities of the listed controlled substances for validation purposes and FDA approval, then eventually upon FDA approval to produce commercial size batches for distribution to dosage form manufacturers.
Notice of registration.
Mylan Pharmaceuticals, Inc. applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Mylan Pharmaceuticals, Inc. registration as an importer of those controlled substances.
By notice dated March 20, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Mylan Pharmaceuticals, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the basic classes of controlled substances:
The company plans to import the listed controlled substances in finished dosage form (FDF) from foreign sources for analytical testing and clinical trials in which the foreign FDF will be compared to the company's own domestically-manufactured FDF. This analysis is required to allow the company to export domestically-manufactured FDF to foreign markets.
Notice of registration.
Noramco, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Noramco, Inc. registration as a manufacturer of those controlled substances.
By notice dated September 26, 2014, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Noramco, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed:
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
Federal Bureau of Investigation, DOJ.
30-day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Security Division (SecD) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the FR 80 23290, April 27, 2015, allowing for a 60 day comment period.
Comments are encouraged and will be accepted for an additional 30 days until August 5, 2015.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted via email to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E.405B, Washington, DC 20530.
Office of the Secretary, Labor.
Notice of One New System of Records.
The Privacy Act of 1974 requires that each agency publish notice of all of the systems of records that it maintains. This document proposes to establish an individual system of records to the current systems of records of the Department of Labor (Department or DOL).
Persons wishing to comment on the changes set out in this notice may do so on or before August 17, 2015.
Joseph J. Plick, Counsel for FOIA and Information Law, Office of the Solicitor, Department of Labor, 200 Constitution Avenue, NW., Room N-2420, Washington, DC 20210, telephone (202) 693-5527, or by email to
The Department of Labor has established a system of records pursuant to the Privacy Act of 1974 (5 U.S.C. 552a(e)(4)), hereinafter referred to as the Act, the Department hereby publishes notice of updates to its systems of records.
This current document presents one new system of records. This notice provides a summary of the new system of records and then provides the Universal Routine Uses applicable to this new system of records.
The proposed new system is entitled DOL/VETS-5,
The following routine uses of the records apply to and are incorporated by reference into each system of records published below unless the text of a particular notice of a system of records indicates otherwise. These routine uses
1. To disclose the records to the Department of Justice when: (a) The agency or any component thereof; or (b) any employee of the agency in his or her official capacity; or (c) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation, and the use of such records by the Department of Justice is for a purpose that is compatible with the purpose for which the agency collected the records.
2. To disclose the records in a proceeding before a court or adjudicative body, when: (a) The agency or any component thereof; or (b) any employee of the agency in his or her official capacity; or (c) any employee of the agency in his or her individual capacity; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation, and that the use of such records is for a purpose that is compatible with the purpose for which the agency collected the records.
3. When a record on its face, or in conjunction with other information, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate agency, whether Federal, foreign, State, local, or tribal, or other public authority responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the agency determines by careful review that the records or information are both relevant and necessary to any enforcement, regulatory, investigative or prosecutive responsibility of the receiving entity, and that the use of such records or information is for a purpose that is compatible with the purposes for which the agency collected the records.
4. To a Member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained.
5. To the National Archives and Records Administration or to the General Services Administration for records management inspections conducted pursuant to 44 U.S.C. 2904 and 2906.
6. To disclose to contractors, employees of contractors, consultants, grantees, and volunteers who have been engaged to assist the agency in the performance of or working on a contract, service, grant, cooperative agreement or other activity or service for the Federal Government.
Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
7. To the parent locator service of the Department of Health and Human Services or to other authorized persons defined by Public Law 93-647 (42 U.S.C. 653(c)) the name and current address of an individual for the purpose of locating a parent who is not paying required child support.
8. To any source from which information is requested in the course of a law enforcement or grievance investigation, or in the course of an investigation concerning retention of an employee or other personnel action, the retention of a security clearance, the letting of a contract, the retention of a grant, or the retention of any other benefit, to the extent necessary to identify the individual, inform the source of the purpose(s) of the request, and identify the type of information requested.
9. To a Federal, State, local, foreign, tribal, or other public authority of the fact that this system of records contains information relevant to the hiring or retention of an employee, the granting or retention of a security clearance, the letting of a contract, a suspension or debarment determination or the issuance or retention of a license, grant, or other benefit.
10. To the Office of Management and Budget during the coordination and clearance process in connection with legislative matters.
11. To the Department of the Treasury, and a debt collection agency with which the United States has contracted for collection services, to recover debts owed to the United States.
12. To the news media and the public when (1) the matter under investigation has become public knowledge, (2) the Solicitor of Labor determines that disclosure is necessary to preserve confidence in the integrity of the Department or is necessary to demonstrate the accountability of the Department's officers, employees, or individuals covered by this system, or (3) the Solicitor of Labor determines that there exists a legitimate public interest in the disclosure of the information, provided the Solicitor of Labor determines in any of these situations that the public interest in disclosure of specific information in the context of a particular case outweighs the resulting invasion of personal privacy.
The following paragraph applies to and is incorporated by reference into all of the Department's systems of records under the Privacy Act, within the category entitled,
Pursuant to the Department of Labor's Flexiplace Programs (also known as “telework” pursuant to the Telework Enhancement Act), copies of records may be temporarily located at alternative worksites, including employees' homes or at geographically convenient satellite offices for part of the workweek. All appropriate safeguards will be taken at these sites.
Veterans' Data Exchange Initiative (VDEI)
None.
The VDEI servers are located at the ByteGrid Data Center, 12401 Prosperity Drive, Silver Spring, Maryland 20904.
Exiting Service Members (ESMs) participating in the United States Department of Defense (DOD) Pre-separation Counseling of the Transition Assistance Program (TAP) who complete documentation.
The records in the system are for ESMs who participated in this program. Records contain the following personally identifiable information (PII) data for ESMs:
1. Branch
2. Name
3. Rank
4. SSN
5. Gender
6. Race
7. Basic Active Service Date
8. Expiration Service Date
9. Level of Education
10. Guard/Reserve Status
11. Date of Birth
12. Military Occupational Specialty
13. Type of Discharge
14. EDIPI (DOD Electronic Data Interchange Person Identifier)
15. Marital Status
16. Home of Record State Code
17. Home of Record Country Code
18. Citizenship
19. Email Address
20. Mailing Address Street Address
21. Mailing Address City
22. Mailing Address State Code
23. Mailing Address Zip Code
24. Date Began the Department of Labor Employment Workshop (DOL EW) During TAP
25. Date End DOL EW During TAP
26. Location DOL EW During TAP
27. Number of Dependents Under Eighteen
28. Armed Services Vocational Aptitude Battery (ASVAB)/Armed Forces Qualification Test (AFQT) Score
29. Medical Discharge
(1) DMDC 01, Defense Manpower Data Center Data Base, November 23, 2011, 76 FR 72391; 38 U.S.C. 4102, Job Counseling, Training, and Placement Service for Veterans; and (2) 10 U.S.C. 1142, Pre-separation Counselling; E.O. 9397.
To provide services to ESMs in areas of employment and training.
In addition to the universal routine uses, VETS intends to be a conduit for other departments who need similar veteran data (upon approval from DOD).
None.
Files are stored electronically.
Files are retrieved by:
1. Branch, Race, Level of Education, Length of Service, Military Occupational Specialty (MOS), Length of Service (Basic Active Service Date and Expiration Service Date), Marital Status, Gender, Medical Discharge, Number of Dependents Under 18 and Type of Discharge; or
2. EDIPI, Rank, Mailing Address Street Address, Mailing Address City, Mailing Address State Code, Mailing Address Zip Code, Mailing Address, Home of Record State Code, Home of Record Country Code, Length of TAP (Date Begun DOL EW TAP and Date End DOL EW TAP), Location of the DOL EW during TAP, Citizenship, Guard/Reserve status, and ASVAB score/AFQT score.
Accessed by authorized personnel only. Computer security safeguards are used for electronically stored data.
Records are retained indefinitely.
Director, Office of Agency Management and Budget United States
Inquiries should be mailed to the System Manager.
A request for access should be mailed to the System Manager.
A petition for amendment should be mailed to the System Manager.
Information contained within this system is obtained from the DOD/DMDC.
None.
The Members of the National Council on Disability (NCD) will hold a quarterly meeting on Thursday, July 23, 2015, 9:00 a.m.-4:30 p.m. (Eastern Daylight Time), and on Friday, July 24, 2015, 9:00 a.m.-12:30 p.m. (Eastern Daylight Time) in Washington, DC.
This meeting will occur in Washington, DC, at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004. Interested parties are welcome to join in person or by phone in a listening-only capacity (other than the period allotted for by-phone public comment on Friday, July 24) using the following call-in number: 888-523-1225; Conference ID: 7629517; Conference Title: NCD Meeting; Host Name: Jeff Rosen.
The Council will receive reports from its standing committees; release its annual Progress Report; review and vote on proposed policy projects for FY16 and FY17; discuss updates on the rights of parents with disabilities; host a discussion on emerging technologies; and receive public comment focused on future directions in technology policy.
The times provided below are approximations for when each agenda item is anticipated to be discussed (all times Eastern):
Those who plan to attend the meeting in-person and require accommodations should notify NCD as soon as possible to allow time to make arrangements. To help reduce exposure to fragrances for those with multiple chemical sensitivities, NCD requests that all those attending the meeting in person refrain from wearing scented personal care products such as perfumes, hairsprays, and deodorants.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public. NCUA amended its credit union service organization (CUSO) regulation to increase transparency and address certain safety and soundness concerns. The final rule extends certain requirements of the CUSO regulation to federally insured, state-chartered credit unions and imposes new requirements on federally insured credit unions (FICUs). Under the amended rule FICUs with an investment in, or loan to, a CUSO must obtain a written agreement with the CUSO addressing accounting, financial statements, audits, reporting, and legal opinions. The rule limits the ability of a “less than adequately capitalized” FICU to recapitalize an insolvent CUSO. All CUSOs are required to annually provide basic profile information to NCUA and the appropriate state supervisory authority (SSA). CUSOs engaging in certain
Comments will be accepted until September 4, 2015.
Interested parties are invited to submit written comments to the NCUA Contact and the OMB Reviewer listed below:
Requests for additional information, a copy of the information collection request, or a copy of submitted comments should be directed to:
NCUA is revising the currently approved collection of information, OMB Control Number, 3133-0149, to reflect amendments to part 712 (part 712 or the rule). Part 712 of the National Credit Union Administration's (NCUA) regulations
Part 712 contains the following information collection (IC) requirements:
(IC 1.) Obtain Written Agreement. Before making a loan to, or investment in, a CUSO, a FICU must obtain a written agreement from the CUSO (or revise any current agreement the FICU has with a CUSO) that the CUSO will: Follow generally accepted accounting principles (GAAP); prepare financial statements at least quarterly and obtain an annual opinion audit from a licensed certified public accountant; provide access to its books and records to NCUA and the appropriate SSA; and file financial and other reports directly with NCUA and the appropriate SSA;
(IC 2.) Obtain Written Legal Opinion. A FICU must obtain a written legal opinion confirming the CUSO is established in a legally sufficient way to limit the credit union's exposure to loss of its loans to, or investments in, the CUSO;
(IC 3.) Obtain Regulatory Approval. Any FICU that is or, as a result of recapitalizing an insolvent CUSO will become, less than adequately capitalized, must seek NCUA approval before recapitalizing an insolvent CUSO; and
(IC 4.) CUSO Reporting. A CUSO with an investment or loan from a FICU must annually submit a report directly to NCUA and the appropriate SSA that contains financial and other information prescribed in the rule. All CUSOs are required to provide basic profile information to NCUA and the appropriate SSA. CUSOs engaging in certain complex or high-risk activities are also required to report more detailed information, including audited financial statements and customer information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
NCUA requests that you send your comments on the information collection requirements for Credit Union Service Organizations, 12 CFR part 712, to the locations listed in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Parcel Return Service Contract 9 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2015-58 and CP2015-88 to consider the Request pertaining to the proposed Parcel Return Service Contract 9 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than July 7, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015-58 and CP2015-88 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than July 7, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On June 26, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-87 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than July 7, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015-87 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than July 7, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 26, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 26, 2015, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 26, 2015, it filed with the Postal Regulatory Commission a
Recovery Accountability and Transparency Board.
Notice of amendment to existing Privacy Act system of records.
The Recovery Accountability and Transparency Board (Board) is issuing public notice of its intent to amend a system of records that it maintains subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. Specifically, RATB-11 entitled “Oversight Support” is being amended to reflect one new routine use for information contained in the system and to make various technical corrections and/or clarifications.
This action will be effective without further notice on August 5, 2015 unless comments are received that would result in a contrary determination.
Comments may be submitted:
All comments on the proposed amended systems of records should be clearly identified as such.
Atticus J. Reaser, General Counsel, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue NW., Suite 700, Washington, DC 20006, (202) 254-7900.
The Board is amending a system of records that it maintains subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. Specifically, RATB-11 entitled “Oversight Support” is being amended to reflect one new routine use for information contained in the system to enable the transfer of information to successor data custodians in advance of the Board's termination on September 30, 2015. The Board is also making technical corrections and/or clarifications in other sections, including the security classification, categories of individuals covered by the system, authority for maintenance of system, purpose(s), routine uses, safeguards, system manager, notification procedure, record access procedures, and contesting records procedures. Also for clarity, the Board is adding a separate section specifically addressing exemptions from certain provisions of the Privacy Act; however, the underlying exemptions are not new. In accordance with 5 U.S.C. 552a(r), the Board has provided a report of this amended system of records to the Office of Management and Budget and to Congress. The amended system of records reads as follows:
Oversight Support
Controlled Unclassified Information.
The principal location of the system is the Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue NW., Suite 700, Washington, DC 20006.
This system contains records on individuals who relate to official Recovery Accountability and Transparency Board (Board) efforts undertaken in support of its oversight responsibilities reflected in the authorities listed in the Authority for Maintenance of the System section below. These individuals include:
(a) Individuals who are or have been the subject of investigations or inquiries identified by or submitted to the Board;
(b) Individuals who are or have been witnesses, complainants, or informants in investigations or inquiries identified by or submitted to the Board;
(c) Individuals who are or have been potential subjects or parties to an investigation or inquiry identified by or submitted to the Board; and
(d) Individuals who are or have been related to entities or individuals that are or have been a subject of, potential subject of, or party to an investigation or inquiry identified by or submitted to the Board.
The system also contains records concerning individuals in their entrepreneurial capacity, corporations, and other business entities. These records are not subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
Information relating to investigations and inquiries identified by or submitted to the Board, including:
(a) Letters, memoranda, and other documents describing complaints, derogatory information, or alleged criminal, civil, or administrative misconduct; and
(b) General intelligence and relevant data, leads for Inspectors General (or other applicable oversight and law enforcement entities), reports of investigations and related exhibits, statements and affidavits, and records obtained during an investigation or inquiry.
The American Recovery and Reinvestment Act of 2009, §§ 1521, 1523(a)(1), Pub. L. 111-5, 123 Stat. 115, 289-90 (2009) (Recovery Act), Education Jobs Fund, Pub. L. 111-226, § 101, 124 Stat. 2389 (2010), and Disaster Relief Appropriations Act, 2013, § 904(d), Pub. L. 113-2, 127 Stat. 4, 18 (2013), as well as in accordance with the Board's responsibility to develop and test technology resources and oversight mechanisms to detect and remediate fraud, waste, and abuse in federal spending (
The purpose of this system of records is to enable the Board to carry out its oversight responsibilities under applicable law, including but not necessarily limited to: coordinating with others and conducting oversight to detect and prevent fraud, waste, and abuse of Recovery Act and Education Jobs Fund funds; developing and using information technology resources and oversight mechanisms to detect and remediate waste, fraud and abuse in the obligation and expenditure of funds appropriated for purposes related to the impact of Hurricane Sandy; and developing and testing information technology resources and oversight mechanisms to enhance transparency of and detect and remediate waste, fraud, and abuse in all federal spending for use by the Board and other federal agencies and entities.
In addition to those disclosures generally permitted under the Privacy Act (5 U.S.C. 552a(b)), the records or information contained in this system of records may specifically be disclosed outside the Board as a routine use pursuant to the Privacy Act (5 U.S.C. 552a(b)(3)) as follows:
A. To the appropriate federal, state, local, or tribal agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, if the information is relevant to a violation or potential violation of civil or criminal law or regulation within the jurisdiction of the receiving entity.
B. To any individual or entity when necessary to elicit information that will assist in a Board review or audit.
C. To appropriate officials and employees of a federal agency or entity that require information relevant to a decision concerning the hiring, appointment, or retention of an individual; the issuance, renewal, suspension, or revocation of a security clearance; or the execution of a security or suitability investigation.
D. To provide responses to queries from federal agencies and entities, including but not limited to regulatory and law enforcement agencies, regarding federal fund recipients, subrecipients, or vendors, or those seeking federal funds, when the information is relevant to a determination related to or arising out of a past, present or prospective (i) contract or (ii) grant or other benefit.
E. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
F. Information may be disclosed to the Department of Justice (DOJ), or in a proceeding before a court, adjudicative body, or other administrative body before which the Board is authorized to appear, when:
1. The Board, or any component thereof; or
2. Any employee of the Board in his or her official capacity; or
3. Any employee of the Board in his or her individual capacity where the DOJ or the Board has agreed to represent the employee; or
4. The United States, if the Board determines that litigation is likely to affect the Board or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the DOJ or the Board is deemed by the Board to be relevant and necessary to the litigation, provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
G. Information may be disclosed to the National Archives and Records Administration in records management inspections.
H. Information may be disclosed to contractors, grantees, consultants, or volunteers performing or working on a contract, service, grant, cooperative agreement, job, or other activity for the Board and who have a need to access the information in the performance of their duties or activities for the Board.
I. To appropriate federal agencies or entities that will act as successor legal and/or physical custodians of the information disclosed from the system.
Not applicable.
Information in this system is stored electronically on digital storage devices or as hard copy files. All record storage procedures are in accordance with current applicable regulations.
Records are retrievable by database management systems software designed to retrieve data elements based upon role-based user access privileges. Records may be retrieved by personal identifiers such as, but not limited to, name, social security number, date of birth, or telephone number. Records may also be retrieved by non-personal information such as file number, entity/institution name, subject matter, agency involved, or other information.
The Board has minimized the risk of unauthorized access to the system by
Paper records are maintained in file cabinets which may be locked or in specified areas to which only authorized personnel have access.
Board personnel will review records on a periodic basis to determine whether they should be retained or modified. Further, the Board will retain and dispose of these records in accordance with Board Records Control Schedules approved by the National Archives and Records Administration.
Executive Director, Recovery Accountability and Transparency Board, 1717 Pennsylvania Avenue NW., Suite 700, Washington, DC 20006.
Address inquiries to the System Manager listed above. Note that the major part of this system is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
The major part of this system is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
Requesters shall direct their request to the System Manager listed above, stating clearly and concisely what information is being contested, the reason for contesting it, and the proposed amendment to the information. Note that the major part of this system is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
The subjects of investigations and inquiries; individuals and entities with which the subjects of investigations and inquiries are associated; federal, state, local, and foreign law enforcement and non-law enforcement agencies and entities; private citizens; witnesses; informants; and public and/or commercially available source materials.
The Board has exempted this system from the following provisions of the Privacy Act pursuant to the general authority in 5 U.S.C. 552a(j)(2): 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G)-(I), (e)(5), and (e)(8); (f); and (g). Additionally, the Board has exempted this system from the following provisions of the Privacy Act pursuant to the general authority in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1) and (e)(4)(G)-(H); and (f).
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-Q (17 CFR 249.332 and 274.130) is a reporting form used by registered management investment companies, other than small business investment companies registered on Form N-5 (“funds”), under Section 30(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-1
We estimate that there are 11,348 funds required to file reports on Form N-Q. Based on staff experience and conversations with industry representatives, we estimate that it takes approximately 26 hours per fund to prepare reports on Form N-Q annually. Accordingly, we estimate that the total annual burden associated with Form N-Q is 295,048 hours (26 hours per fund × 11,348 funds) per year.
The estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms. The collection of information under Form N-Q is mandatory. The information provided by the form is not kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
BX is filing with the Commission a proposal to amend Chapter VI, Section 5 (Minimum Increments) to extend through June 30, 2016 or the date of permanent approval, if earlier, the Penny Pilot Program in options classes in certain issues (“Penny Pilot” or “Pilot”), and to change the date when delisted classes may be replaced in the Penny Pilot.
The text of the amended Exchange rule is set forth immediately below.
Proposed new language is
(a) The Board may establish minimum quoting increments for options contracts traded on BX Options. Such minimum increments established by the Board will be designated as a stated policy, practice, or interpretation with respect to the administration of this Section within the meaning of Section 19 of the Exchange Act and will be filed with the SEC as a rule change for effectiveness upon filing. Until such time as the Board makes a change in the increments, the following principles shall apply:
(1)-(2) No Change.
(3) For a pilot period scheduled to expire on June 30, [2015]
The Exchange may replace any pilot issues that have been delisted with the next most actively traded multiply listed options classes that are not yet included in the pilot, based on trading activity in the previous six months. The replacement issues may be added to the pilot on the second trading day following
(4) No Change.
(b) No Change.
The text of the proposed rule change is also available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend Chapter VI, Section 5 to extend the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to change the date when delisted classes may be replaced in the Penny Pilot. The Exchange believes that extending the Penny Pilot will allow for further analysis of the Penny Pilot and a determination of how the program should be structured in the future.
Under the Penny Pilot, the minimum price variation for all participating options classes, except for the Nasdaq-100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot is currently scheduled to expire on June 30, 2015.
The Exchange proposes to extend the time period of the Penny Pilot through June 30, 2016 or the date of permanent approval, if earlier, and to provide a revised date for adding replacement issues to the Penny Pilot. The Exchange proposes that any Penny Pilot Program issues that have been delisted may be replaced on the second trading day following July 1, 2015 and January 1, 2016. The replacement issues will be selected based on trading activity in the previous six months.
This filing does not propose any substantive changes to the Penny Pilot Program; all classes currently participating in the Penny Pilot will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the potential increase in quote traffic.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In particular, the proposed rule change, which extends the Penny Pilot for an additional twelve months through June 30, 2016 or the date of permanent approval, if earlier, and changes the date for replacing Penny Pilot issues that were delisted to the second trading day following July 1, 2015 and January 1, 2016, will enable public customers and other market participants to express their true prices to buy and sell options for the benefit of all market participants. This is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, this proposal is pro-competitive because it allows Penny Pilot issues to continue trading on the Exchange. Moreover, the Exchange believes that the proposed rule change will allow for further analysis of the Pilot and a determination of how the Pilot should be structured in the future; and will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot is an industry-wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot will allow for continued competition between market participants on the Exchange trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 20, 2015, NYSE Arca, Inc. (the “Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 6.35 to modify the options Market Maker appointment and withdrawal process used by the Exchange. Under the proposal, once an option trading permit (“OTP”) holder has been approved as a Market Maker under Exchange Rule 6.33,
Currently, a registered Market Maker may seek an appointment in one or more option classes pursuant to Rule 6.35. Specifically, Rule 6.35(a) provides that “[o]n a form or forms prescribed by the Exchange, a Market Maker must apply for an appointment in one or more classes of option contracts.”
Under current Rule 6.35, “Market Makers may change the option issues in their appointment, subject to the approval of the Exchange,” provided such requests are “made in a form and
The Exchange periodically evaluates whether Market Makers have fulfilled performance standards, relating to, among other things, quality of markets, competition of Market Makers, observance of ethical standards and administrative factors.
The Exchange proposes to modify the current appointment and withdrawal process. Specifically, the Exchange proposes to modify Rule 6.35 to provide that, rather than apply for an appointment, “a Market Maker may register for an appointment in one or more classes of option contracts,” in a form and manner prescribed the Exchange.
In addition, the Exchange proposes to modify Rule 6.35(c) to provide that “[a] Market Maker may select or withdraw option issues included in their appointment by submitting a request via an Exchange-approved electronic interface with the Exchange on a day when the Exchange is open for business.”
As noted above, paragraph (d) of current Rule 6.35 sets forth the number of OTPs a Market Maker must have in order to have a specified number of option issues included in the Market Maker's appointment. The Exchange recently amended its fee schedule to include this information on its Fee Schedule and therefore is proposing to delete the detailed information set forth in Rule 6.35(d) and instead state that “[a] Market Maker must have the number of OTPs required under the Fee Schedule for its appointment as a Market Maker in option issues.”
Proposed Rule 6.35(h) would provide that a Market Maker may seek review of any action taken by the Exchange under Rule 6.35.
Pursuant to current Rule 6.35(j), the Exchange conducts periodic evaluations of Market Makers to determine whether they have fulfilled performance standards. The Exchange proposes to modify Rule 6.35(j)(1) to specify two additional factors it may consider in evaluating whether a Market Maker has fulfilled performance standards pursuant to Rule 6.35(j): (1) The financial resources available to the Market Maker and (2) the Market Maker's operational capability.
Further, the Exchange proposes to modify Rule 6.35(j)(2) to reflect the proposed changes to the Market Maker appointment process. Specifically, the Exchange proposes to change the reference to a Market Maker being “re-
Finally, the Exchange proposes certain clarifying technical changes to Rule 6.35 as well as certain conforming changes so that there is consistency throughout the rule text.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act
The Commission believes that the proposal to permit an OTP holder approved as a registered Market Maker pursuant to Exchange Rule 6.33 to register for and withdraw from options appointments, subject to the proposed conditions and in accordance with the other provisions of Rule 6.35, is reasonably designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange states that the proposed changes regarding how Market Makers select and modify their appointments would provide Market Makers with more efficient access to the securities in which they want to make markets, enabling them to quickly begin disseminating competitive quotations in those securities which would provide additional liquidity and enhanced competition in those securities on the Exchange.
The Commission notes that the Exchange has proposed to add a Market Maker's available financial resources and operational capability as factors the Exchange may consider during its periodic evaluation of a Market Maker's performance, stating that these factors are important considerations in evaluating a Market Maker's performance, and that continued consideration of these factors would remove impediments to and perfect the mechanism of a free and open market and would benefit investors and the public interest.
Based on the foregoing, the Commission finds the proposed rule change is consistent with the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 20, 2015, NYSE MKT LLC (the “Exchange” or “NYSE MKT”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 923NY to modify the options Market Maker appointment and withdrawal process used by the Exchange. Under the proposal, once an Amex trading permit (“ATP”) holder has been approved as a Market Maker under Exchange Rule 9.21NY,
Currently, a registered Market Maker may seek an appointment in one or more option classes pursuant to Rule 923NY. Specifically, Rule 923NY provides that “[o]n a form or forms prescribed by the Exchange, a Market Maker must apply for an appointment in one or more classes of option contracts.”
Under current Rule 923NY, “Market Makers may change the option issues in their appointment, subject to the approval of the Exchange,” provided such requests are “made in a form and manner prescribed by the Exchange.”
The Exchange periodically evaluates whether Market Makers have fulfilled performance standards, relating to, among other things, quality of markets, competition of Market Makers, observance of ethical standards and administrative factors.
The Exchange proposes to modify the current appointment and withdrawal process. Specifically, the Exchange proposes to modify Rule 923NY(a) to provide that, rather than apply for an appointment, “a Market Maker may register for an appointment in one or more classes of option contracts,” in a form and manner prescribed the Exchange.
In addition, the Exchange proposes to modify Rule 923NY(c) to provide that “[a] Market Maker may select or withdraw option issues included in their appointment by submitting a request via an Exchange-approved electronic interface with the Exchange on a day when the Exchange is open for business.”
Proposed Rule 923NY(h) would provide that a Market Maker may seek review of any action taken by the Exchange under Rule 923NY.
Pursuant to current Rule 923NY(j), the Exchange conducts periodic evaluations of Market Makers to determine whether they have fulfilled performance standards. The Exchange proposes to modify Rule 923NY(j) to specify two additional factors it may consider in evaluating whether a Market Maker has fulfilled performance standards pursuant to Rule 923NY(j): (1) The financial resources available to the Market Maker and (2) the Market Maker's operational capability.
Further, the Exchange proposes to modify Rule 923NY(j)(2) to reflect the proposed changes to the Market Maker appointment process. Specifically, the Exchange proposes to change the reference to a Market Maker being “re-appointed” by the Exchange if an option issue or issues has been terminated pursuant to this subsection (j), and to instead provide that “the Exchange may restrict the Market Maker's registration as a Market Maker in that option issue or issues for a period not to exceed 6 months.”
Finally, the Exchange proposes certain clarifying technical changes to Rule 923NY as well as certain conforming changes so that there is consistency throughout the rule text.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act
The Commission believes that the proposal to permit an ATP holder approved as a registered Market Maker pursuant to Exchange Rule 921NY to register for and withdraw from options appointments, subject to the proposed conditions and in accordance with the other provisions of Rule 923NY, is reasonably designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange states that the proposed changes regarding how Market Makers select and modify their appointments would provide Market Makers with more efficient access to the securities in which they want to make markets, enabling them to quickly begin disseminating competitive quotations in those securities which would provide additional liquidity and enhanced competition in those securities on the Exchange.
The Commission notes that the Exchange has proposed to add a Market Maker's available financial resources and operational capability as factors the Exchange may consider during its periodic evaluation of a Market Maker's performance, stating that these factors are important considerations in evaluating a Market Maker's performance, and that continued consideration of these factors would remove impediments to and perfect the mechanism of a free and open market and would benefit investors and the public interest.
Based on the foregoing, the Commission finds the proposed rule change is consistent with the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 5, 2015, ICE Clear Europe Limited (“ICEEU”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of June 2015. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
The Commission: Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Diane L. Titus at (202) 551-6810, SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of
The Exchange proposes to amend its Fees Schedule. Specifically, the Exchange proposes to amend fees for Qualified Contingent Cross (“QCC”) transactions. A QCC order is comprised of an order to buy or sell at least 1,000 contracts (or 10,000 mini-option contracts) that is identified as being part of a qualified contingent trade, coupled with a contra side order to buy or sell an equal number of contracts. Currently, the Exchange assesses no fee for Customer (“C” origin) QCC transactions and $0.20 per contract side for Clearing Trading Permit Holder Proprietary (“F” or “L” origin code) QCC transactions, as well as Broker-Dealer, Non-Trading Permit Holder Market Maker, Professional/Voluntary Professional and Joint Back-Office QCC transactions. Additionally, Market-Maker QCC transactions are subject to the Liquidity Provider Sliding Scale. In lieu of the current QCC transaction fees stated above, the Exchange proposes to establish a transaction fee for all non-customer QCC orders of $0.15 per contract side (customer orders will continue to not be assessed a charge). In addition, the Exchange proposes to adopt a $0.10 per contract credit for the initiating order side, regardless of origin code. The Exchange proposes to explicitly provide in the Fees Schedule that a QCC transaction is comprised of an `initiating order' to buy (sell) at least 1,000 contracts, coupled with a contra-side order to sell (buy) an equal number of contracts and that for complex QCC transactions, the 1,000 contracts minimum is applied per leg. The `initiating order' is considered to be the agency side of a QCC order. The Exchange notes that with regard to order entry, the first order submitted into the system is marked as the initiating/agency side and the second order is marked as the contra side. The credit will be paid to the Trading Permit Holder that enters the order into the system. The purpose of these changes is to incentivize the sending of QCC orders to the Exchange. The Exchange notes that another Exchange similarly provides rebates on QCC initiating orders.
Finally, the Exchange proposes to eliminate references to QCC fees in the Equity, ETF and ETN options rate tables, and instead establish a QCC-specific rate table. No substantive changes, other than those mentioned above, are being made by the reorganization and relocation of QCC-related transaction fees. Rather, the Exchange believes the proposed change will make the Fees Schedule easier to read and alleviate potential confusion.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed transaction fee for QCC orders is reasonable because the proposed amount is in line with the amount assessed at other Exchanges for similar transactions.
The Exchange believes the $0.10 per contract credit for the initiating order side of a QCC transaction is reasonable because another Exchange also provides a rebate on the initiating order side.
Finally, the Exchange believes reorganizing and relocating QCC related transaction fees (and credits) makes the Fees Schedule easier to read and alleviates potential confusion, thereby removing impediments to and perfecting the mechanism of a free and open market and a national market system, and, in general, protecting investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, because the proposes rule change applies to all Trading Permit Holders. The Exchange believes this proposal will not cause an unnecessary burden on intermarket competition because the proposed changes will actually enhance the competiveness of the Exchange relative to other exchanges which offer comparable fees and rebates for QCC transactions.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe proposes amendments to its Delivery Procedures with respect to the settlement of certain European emissions allowance and cocoa futures contracts that are currently traded on ICE Futures Europe and cleared by ICE Clear Europe. The proposed rule change also makes certain clarifications and updates to the Complaint Resolution Procedures.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to modify the ICE Clear Europe Delivery Procedures for certain emissions allowance and cocoa futures contracts traded on ICE Futures Europe and cleared by ICE Clear Europe, namely the ICE Futures EUA Futures Contract, ICE Futures EUA Daily Futures Contract, ICE Futures EUAA Auction Contract, ICE Futures EUAA Futures Contract, ICE Futures EUAA Auction Contract, ICE Futures CER Futures Contract, ICE Futures CER Futures Daily Contract and ICE Futures ERU Futures Contract (collectively, the “Emissions Contracts”), and Financials & Softs Cocoa Futures Contracts (the “Cocoa Contracts”). ICE Clear Europe also proposes to make certain clarifications and updates to its Complaint Resolution Procedures. ICE Clear Europe does not otherwise propose to amend its clearing rules or procedures.
The amendments to the Delivery Procedures relating to the Emissions Contracts adjust the deadlines for certain actions in connection with delivery under those contracts, including the timing of submission of Transfer Requests by the relevant Seller or the Clearing House, the timing of receipt of emissions allowances by the Clearing House and the Buyer, and the timing of submission of certain confirmation forms. The timing changes are intended to move certain aspects of the settlement process earlier in the day, in order to facilitate orderly settlement. The amendments also remove certain superfluous language prior to the beginning of Part A of the Delivery Procedures.
The amendments to the Delivery Procedures for the Cocoa Contracts clarify the reports made available to Buyers and Sellers in the event there are no conversions of delivery units to be made under relevant exchange rules. Specifically, Sellers will have access to an account sale report and delivery details via Guardian or any successor system. Buyers will have access to an invoice report and delivery details.
A correction is also made in the Delivery Procedures to a reference to a report provided in connection with the delivery of Swiss Government Bond Futures Contracts.
The amendments to the Complaint Resolution Procedures eliminate an unnecessary reference to different categories of Clearing Members and update contact details for making a complaint.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
ICE Clear Europe does not believe the proposed rule change would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the Act. ICE Clear Europe is adopting the amendments to the Delivery Procedures to clarify certain timing requirements in connection with physical delivery under Emissions Contracts, and to clarify certain other documentation requirements for Emissions Contracts and Cocoa Contracts. ICE Clear Europe does not believe that these operational changes will impose any significant additional costs on Clearing Members or other market participants or otherwise adversely affect Clearing Members or market participants. In particular, the changes are not expected to affect access to clearing in these products for Clearing Members or their customers. The changes will apply to all Clearing Members clearing transactions in the products, and accordingly are not expected to affect competition among Clearing Members or the market for clearing services generally.
Written comments relating to the proposed amendments have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
The foregoing proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.9 to modify the Exchange's Price Adjust functionality, as described below.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange currently offers various forms of sliding, which, in all cases, result in the re-pricing of an order to, or ranking and/or display of an order at, a price other than an order's limit price in order to comply with applicable securities laws and/or Exchange rules. Specifically, the Exchange currently offers price sliding to ensure compliance with Regulation NMS and Regulation SHO. Price sliding currently offered by the Exchange re-prices and displays an order upon entry and in certain cases again re-prices and re-displays an order at a more aggressive price one time if and when permissible (“single display-price sliding”), and optionally continually re-prices an order (“multiple display-price sliding”) based on changes in the national best bid (“NBB”) or national best offer (“NBO”, and together with the NBB, the “NBBO”). The Exchange proposes to modify one form of price sliding offered by the Exchange, the Price Adjust process, as described below, in order to align more closely with the Exchange's other form of price sliding, the display-price sliding process.
The Exchange's display-price sliding functionality is designed to avoid locking or crossing other markets' Protected Quotations, but does not price slide to avoid executions on the Exchange's order book (“BATS Book”). Specifically, when the Exchange receives an incoming order designated with a display-price sliding instruction that could execute against resting displayed liquidity on the BATS Book, it will execute against such liquidity. However, when an execution against resting displayed liquidity does not occur because an incoming order is designated as an order that will not remove liquidity (
As proposed, under the Price Adjust process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market will be ranked and displayed by the System at one minimum price variation below the current NBO (for bids) or to one minimum price variation above the current NBB (for offers). However, as is true for the current display-price sliding process, the Price Adjust process would not adjust the price of a BATS Post Only Order or Partial Post Only at Limit Order that would lock or cross an order displayed by the Exchange but rather, would either execute
As an example of the Price Adjust process, assume the Exchange has a posted and displayed bid to buy 100 shares of a security priced at $10.10 per share and a posted and displayed offer to sell 100 shares at $10.11 per share. Assume the NBBO is $10.10 by $10.11, which includes an offer of $10.11 displayed by at least one other market. The Exchange notes that under its current pricing structure, which pays a rebate to orders that remove liquidity and charges a fee to orders that add liquidity, all orders (including BATS Post Only Orders and Partial Post Only at Limit Orders) that would lock or cross liquidity resting on the Exchange would remove liquidity on entry pursuant to Rule 11.9(c)(6). However, the Exchange has included the examples below in order to demonstrate how the proposed functionality would operate in the event the Exchange has a different pricing structure that does not allow the incoming BATS Post Only Order to remove liquidity upon entry.
• Under the current functionality, if the Exchange receives a Post Only bid to buy 100 shares at $10.11 per share with a Price Adjust instruction the Exchange will rank and display the order to buy at $10.10 because displaying the bid at $10.11 would lock the offer to sell for $10.11 displayed by the Exchange (as well as one or more external markets).
• As proposed, however, if the Exchange receives a Post Only bid to buy 100 shares at $10.11 per share with a Price Adjust instruction the Exchange will cancel the order back because displaying the bid at $10.11 would lock the offer to sell for $10.11 displayed by the Exchange (as well as one or more external markets) and the Exchange's Price Adjust functionality would no longer price slide past a displayed order resting on the Exchange.
• Assume however, that all facts are the same as the immediately preceding example except that the Exchange's best offer is displayed at $10.12. Because an incoming Post Only bid to buy 100 shares at $10.11 could be displayed by the Exchange but would lock the Protected Quotation of one or more external markets at that price, the Exchange would re-price and display the order to buy at $10.10.
In addition to the change proposed above, the Exchange proposes to correct two aspects of the Exchange's current rule regarding the display-price sliding process. First, the Exchange proposes to modify Rule 11.9(g)(1)(D), which states that “any” display-eligible BATS Post Only Order or Partial Post Only at Limit order that locks or crosses a Protected Quotation displayed by an external market upon entry will be subject to the display-price sliding process. Because an order can also be subject to the Price Adjust process or no price sliding option at all, the Exchange proposes to instead start this provision with “depending on User instructions.” The Exchange proposes to use this same language in the proposed revision to Rule 11.9(g)(2)(D) with respect to Price Adjust. Second, the Exchange proposes to modify the cross-reference at the end of Rule 11.9(g)(2)(D) from 11.9(c)(7) to 11.9(c)(6) to accurately refer to the rule applicable to BATS Post Only Orders.
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange believes that the proposed change to Price Adjust is consistent with Section 6(b)(5) of the Act,
Rule 610(d) requires exchanges to establish, maintain, and enforce rules that require members reasonably to avoid “[d]isplaying quotations that lock or cross any protected quotation in an NMS stock.”
Thus, if the Exchange has a Protected Quotation that an incoming order to the Exchange locks or crosses then such incoming order will execute against the resting order, or, if the incoming order is a BATS Post Only Order or Partial Post Only at Limit Order, such order would be executed in accordance with Rules 11.9(c)(6) and (c)(7), respectively, or cancelled. The Exchange believes that it is reasonable and consistent with the Act to cancel orders on entry that cannot executed or displayed at their limit price because this is consistent with display-price sliding functionality. Therefore, the Exchange believes the proposal to apply the Price Adjust process to orders that cannot be displayed because they would lock or cross displayed contra-side interest on the Exchange will promote just and equitable principles of trade, remove impediments to, and perfect the mechanism of, a free and open market and a national market system. The Exchange also reiterates that the proposed change to the Price Adjust process will continue to enable the System to avoid displaying a locking or crossing quotation in order to ensure compliance with Rule 610(d) of Regulation NMS.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is being proposed as minor modification to functionality offered by the Exchange that will ensure that the Exchange's Price Adjust process is consistent with the display-price sliding process offered by the Exchange today.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.9 to modify the Exchange's Price Adjust functionality, as described below.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange currently offers various forms of sliding, which, in all cases, result in the re-pricing of an order to, or ranking and/or display of an order at, a price other than an order's limit price in order to comply with applicable securities laws and/or Exchange rules. Specifically, the Exchange currently offers price sliding to ensure compliance with Regulation NMS and Regulation SHO. Price sliding currently offered by the Exchange re-prices and displays an order upon entry and in certain cases again re-prices and re-displays an order at a more aggressive price one time if and when permissible (“single display-price sliding”), and optionally continually re-prices an order (“multiple display-price sliding”) based on changes in the national best bid (“NBB”) or national best offer (“NBO”, and together with the NBB, the “NBBO”). The Exchange proposes to modify one form of price sliding offered by the Exchange, the Price Adjust process, as described below, in order to align more closely with the Exchange's other form of price sliding, the display-price sliding process.
The Exchange's display-price sliding functionality is designed to avoid locking or crossing other markets' Protected Quotations, but does not price slide to avoid executions on the Exchange's order book (“BATS Book”). Specifically, when the Exchange receives an incoming order designated with a display-price sliding instruction that could execute against resting displayed liquidity on the BATS Book, it will execute against such liquidity. However, when an execution against resting displayed liquidity does not occur because an incoming order is designated as an order that will not remove liquidity (
As proposed, under the Price Adjust process, an order eligible for display by the Exchange that, at the time of entry, would create a violation of Rule 610(d) of Regulation NMS by locking or crossing a Protected Quotation of an external market will be ranked and displayed by the System at one minimum price variation below the current NBO (for bids) or to one minimum price variation above the current NBB (for offers). However, as is true for the current display-price sliding process, the Price Adjust process would not adjust the price of a BATS Post Only Order or Partial Post Only at Limit Order that would lock or cross an order displayed by the Exchange but rather, would either execute
As an example of the Price Adjust process, assume the Exchange has a posted and displayed bid to buy 100 shares of a security priced at $10.10 per share and a posted and displayed offer to sell 100 shares at $10.11 per share. Assume the NBBO is $10.10 by $10.11, which includes an offer of $10.11 displayed by at least one other market.
• Under the current functionality, if the Exchange receives a Post Only bid to buy 100 shares at $10.11 per share with a Price Adjust instruction the Exchange will rank and display the order to buy at $10.10 because displaying the bid at $10.11 would lock the offer to sell for $10.11 displayed by the Exchange (as well as one or more external markets).
• As proposed, however, if the Exchange receives a Post Only bid to buy 100 shares at $10.11 per share with a Price Adjust instruction the Exchange will cancel the order back because displaying the bid at $10.11 would lock the offer to sell for $10.11 displayed by the Exchange (as well as one or more external markets) and the Exchange's Price Adjust functionality would no longer price slide past a displayed order resting on the Exchange.
• Assume however, that all facts are the same as the immediately preceding example except that the Exchange's best offer is displayed at $10.12. Because an incoming Post Only bid to buy 100 shares at $10.11 could be displayed by the Exchange but would lock the Protected Quotation of one or more external markets at that price, the Exchange would re-price and display the order to buy at $10.10.
In addition to the change proposed above, the Exchange proposes to correct two aspects of the Exchange's current rule regarding the display-price sliding process. First, the Exchange proposes to modify Rule 11.9(g)(1)(D), which states that “any” display-eligible BATS Post Only Order or Partial Post Only at Limit order that locks or crosses a Protected Quotation displayed by an external market upon entry will be subject to the display-price sliding process. Because an order can also be subject to the Price Adjust process or no price sliding option at all, the Exchange proposes to instead start this provision with “depending on User instructions.” The Exchange proposes to use this same language in the proposed revision to Rule 11.9(g)(2)(D) with respect to Price Adjust. Second, the Exchange proposes to modify the cross-reference at the end of Rule 11.9(g)(2)(D) from 11.9(c)(7) to 11.9(c)(6) to accurately refer to the rule applicable to BATS Post Only Orders.
The Exchange believes that the proposed rule changes are consistent with section 6(b) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange believes that the proposed change to Price Adjust is consistent with section 6(b)(5) of the Act,
Rule 610(d) requires exchanges to establish, maintain, and enforce rules that require members reasonably to avoid “[d]isplaying quotations that lock or cross any protected quotation in an NMS stock.”
Thus, if the Exchange has a Protected Quotation that an incoming order to the Exchange locks or crosses then such incoming order will execute against the resting order, or, if the incoming order is a BATS Post Only Order or Partial Post Only at Limit Order, such order would be executed in accordance with Rules 11.9(c)(6) and (c)(7), respectively, or cancelled. The Exchange believes that it is reasonable and consistent with the Act to cancel orders on entry that cannot executed or displayed at their limit price because this is consistent with display-price sliding functionality. Therefore, the Exchange believes the proposal to apply the Price Adjust process to orders that cannot be displayed because they would lock or cross displayed contra-side interest on the Exchange will promote just and equitable principles of trade, remove impediments to, and perfect the mechanism of, a free and open market and a national market system. The Exchange also reiterates that the proposed change to the Price Adjust process will continue to enable the System to avoid displaying a locking or crossing quotation in order to ensure compliance with Rule 610(d) of Regulation NMS.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is being proposed as minor modification to functionality offered by the Exchange that will ensure that the Exchange's Price Adjust process is consistent with the display-price sliding process offered by the Exchange today.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The Exchange has designated this rule filing as non-controversial under section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Nebraska (FEMA-4225-DR), dated 06/25/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 06/25/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14359B and for economic injury is 14360B.
U.S. Small Business Administration.
Notice and request for comments.
The Small Business Administration (SBA) has identified two issues that potentially affect SBA's ability to make recoveries from a small business investment company (SBIC) that performs poorly and poses a credit risk to SBA. The Agency seeks public input on how SBA should address its credit concerns regarding these two issues: SBICs with unsecured lines of credit, and the determination of “equity capital investments” when calculating an SBIC's capital impairment percentage.
Comments must be received on or before September 4, 2015.
Submit your comments, identified by Docket ID No. SBA-2015-0009, at
Lyn Womack, Office of Investment and Innovation, 409 Third St. SW., Washington, DC 20416, (202) 205-2416.
The SBIC Program was established under the Small Business Investment Act of 1958. 15 U.S.C. 661
SBICs are governed by Title 13, Part 107 in the Code of Federal Regulations (13 CFR part 107) which may be found at
SBA is seeking public input on the following areas of concern:
1.
Leveraged SBICs commonly use unsecured lines of credit. Although permitted by the regulations without SBA prior approval, all such credit facilities pose a potential credit risk to SBA because, with certain limited exceptions set forth under 13 CFR 107.560, the Agency is subordinated to the first $10 million of such debt. Furthermore, SBA is concerned that many such credit facilities contain certain provisions that may increase SBA's credit risk. SBA is specifically concerned about provisions that, upon a default (which may include events other than a payment default; for example, failure by more than a certain number of investors in the SBIC to fund a capital call within a stated period), allow a lender to make a capital call directly on the SBIC's investors and use the proceeds to repay the line of credit. Similarly, SBA is concerned about provisions that permit a lender to compel the SBIC's General Partner to make a capital call, together with remedies including specific performance and/or injunctive relief. If an SBIC defaults on its leverage and is transferred by SBA to a liquidation status in accordance with the SBIC's leverage terms, the SBIC's remaining commitments are a significant source of capital that SBA relies upon for repayment of the SBIC's leverage. However, such commitments will not be available to SBA if they have already been called to satisfy a default under the SBIC's unsecured credit facility. SBA has also observed that some SBICs use these lines on a short-term basis to fund investments, while others maintain outstanding balances on a longer-term basis for working capital or other purposes.
SBA is seeking comments as to how the Agency can best address its credit concerns while continuing to permit SBICs to utilize unsecured lines of credit. Among other things, SBA is seeking input from the public with regard to the following questions:
(a) What credit concerns should SBA have regarding an SBIC's credit facility if the maximum extension of credit under such a facility is in the amount of $10 million or less?
(b) How frequently, or what percent of total dollars or lines of credit, do lenders provide unsecured credit to SBICs in an amount above $10 million?
(c) What are the typical maturity dates for such credit facilities (
(d) What is the average balance and settlement of credit lines extended to SBICs?
(e) Based on SBA's view that short-term borrowings pose a lower credit risk, what restrictions, if any, should SBA consider placing on the length of time a balance may remain outstanding on an unsecured line?
(f) Should SBA permit such facilities only during time periods of an SBIC's lifecycle when the risk to SBA is lower, for example during the early years of the SBIC's life or before additional leverage is drawn? If so, what considerations should SBA take into account in determining the timing and duration of these periods?
(g) Are there certain provisions in unsecured loan agreements that SBA should be especially concerned about with respect to credit risk (
(h) What type of credit risk policies would be most effective in managing SBA's credit risk with respect to unsecured lines of credit?
2.
Under 13 CFR 107.50, ECI generally means investments in a small business in the form of common or preferred stock, limited partnership interests, options, warrants, or similar equity instruments, including subordinated debt with equity features if such debt provides only for interest payments contingent upon and limited to the extent of earnings. Further, Leverageable Capital means, as more fully described in 13 CFR 107.50, paid-in capital of an SBIC.
SBA's regulations permit a higher maximum allowable CIP when the percentage of ECI in an SBIC's portfolio is higher in recognition that equity-type investment strategies are inherently riskier and frequently require a longer holding period relative to debt investments before a successful exit can be achieved.
SBA has observed over the last few years that SBICs seeking to avoid Capital Impairment have converted non-ECI investments to ECI solely for the purpose of attaining an increase in maximum allowable CIP. For example, an SBIC can convert a loan into equity, which would cause the investment to then qualify as ECI. Depending on the circumstances of the SBIC, the converted security could cause the SBIC's maximum allowable CIP to increase and artificially forestall the SBIC from having a condition of Capital Impairment, which creates risk to taxpayers.
SBA has also observed the deteriorating performance of portfolio companies held in a particular SBIC can likewise result in an SBIC's maximum allowable CIP increasing. Using the example in the prior paragraph, the loan could have been converted to equity as a result of a distressed restructuring of the company. In either case, the increased ECI was not the result of the SBIC making an ECI investment from the outset, but instead converting non-ECI based on the impairment status of the SBIC or the deteriorated status of a small concern.
SBA aims to prevent conversions specifically and solely intended to artificially increase maximum allowable CIP, because such conversions result in the SBIC having a reduced collateral position in the portfolio company at a time when that collateral may be critical for SBA to obtain a recovery from the SBIC. However, in considering any policy changes to managing its credit risk with respect to ECI, SBA does not seek to create unnecessary burdens for SBICs who may convert an investment to ECI for business reasons unrelated to solely avoiding Capital Impairment (
(a) Other than the examples provided in this notice, what transactions or circumstances can result in an original non-ECI becoming qualified as an ECI?
(b) What specific factors should SBA consider in determining that investments are disqualified as ECI for the purposes of calculating an SBIC's maximum allowable CIP?
(c) Without creating an undue reporting burden on SBICs, how can SBA differentiate between investments converted for legitimate business reasons and those converted for other reasons, including solely to inflate total ECI in the SBIC's portfolio?
15 U.S.C. 681.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of Texas (FEMA-4223-DR), dated 05/29/2015.
Submit completed loan applications to: U.S. Small Business Administration Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of TEXAS, dated 05/29/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Social Security Administration (SSA).
Notice of a renewal of an existing computer matching program that will expire on April 01, 2015.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a renewal of an existing computer matching program that we are currently conducting with VA/VBA.
We will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 966-0869 or writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L.100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain approval of the matching agreement by the Data Integrity Boards of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and VA/VBA
The purpose of this matching program is to provide us with VA compensation and pension payment data. This disclosure will provide us with information necessary to verify an individual's self-certification of eligibility for the Extra Help with Medicare Prescription Drug Plan Costs program (Extra Help). It will also enable us to identify individuals who may qualify for Extra Help as part of our Medicare outreach efforts.
The legal authority for VA to disclose information under this agreement is 1631(f) of the Social Security Act (Act) (42 U.S.C. 1383(f)). The legal authorities for us to conduct this computer matching are 1860D-14(a)(3), 1144(a)(1), and 1144(b)(1) of the Act (42 U.S.C. 1395w-114 and 1320b-14).
VA will provide us with electronic files containing compensation and pension payment data from its system of records (SOR) entitled “Compensation, Pension, Education, and Vocational Rehabilitation and Employment Records-VA” (58VA/21/22/28), republished with updated name at 74 FR 14865 (April 1, 2009) and last amended at 77 FR 42593 (July 19, 2012).
We will match the VA data with our SOR 60-0321, Medicare Database (MDB), last published at 71 FR 42159 (July 25, 2006).
VA's data file will consist of approximately 4.9 million electronic records. Our comparison file contains approximately 90 million records obtained from the MDB. The number of people who apply for Extra Help determines in part the number of records matched.
We will conduct the match using the Social Security number, name, date of birth, and VA claim number on both the VA file and the MDB.
VA will furnish us with an electronic file containing VA compensation and pension payment data monthly. The actual matching will take place approximately the first week of every month.
The effective date of this matching program is April 02, 2015 provided that the following notice periods have lapsed: 30 days after publication of this notice in the
Office of the United States Trade Representative.
Notice of hearing and solicitation of petitions and comments.
This notice announces a review of products under the Generalized System of Preferences (GSP) program that based on full-year 2014 import data, are subject to certain actions related to competitive need limitations (CNLs). The review will also consider the proposed designation for GSP eligibility of five cotton products from least developed beneficiary developing countries (LDBDCs).
The Office of the United States Trade Representative (USTR) will accept petitions by interested parties seeking waivers of CNLs for certain products submitted by July 31, 2015. USTR will also accept comments from the public submitted by July 31, 2015, regarding: (1) Possible
July 31, 2015: Deadline for petitions requesting waivers of CNLs and for all other written comments in response to this notice.
July 31, 2015: Deadline for pre-hearing briefs and requests to appear at the August 11 public hearing regarding CNL waiver petitions and the proposed designation of the cotton products.
August 11, 2015: The GSP Subcommittee of the Trade Policy Staff Committee (TPSC) will convene a public hearing on CNL waiver petitions and the proposed designation of the cotton products.
August 18, 2015: Deadline for submission of post-hearing briefs and comments.
Marin Weaver, GSP Program, Office of the United States Trade Representative. The telephone number is (202) 395-2974, the fax number is (202) 395-9674, and the email address is
The GSP program provides for the duty-free importation of designated articles imported from designated beneficiary developing countries (BDCs). The GSP program is authorized by Title V of the Trade Act of 1974 (19 U.S.C. 2461,
Section 503(c)(2)(A) of the 1974 Act sets out the two CNLs. When the President determines that a BDC exported to the United States during a calendar year either: (1) A quantity of a GSP-eligible article having a value in excess of the applicable amount for that year ($165 million for 2014), or (2) a quantity of a GSP-eligible article having a value equal to or greater than 50 percent of the value of total U.S. imports of the article from all countries (the “50 percent” CNL), the President must terminate GSP duty-free treatment for that article from that BDC by no later than July 1 of the next calendar year, unless a waiver is granted. The Trade Preferences Extension Act of 2015 provides that the applicable deadline for all CNL-related actions based on import data from 2014, will be October 1, 2015.
Pursuant to the Trade Preferences Extension Act of 2015, exclusions from GSP duty-free treatment where CNLs have been exceeded for calendar year 2014 will be effective October 1, 2015, unless granted a waiver by the President. Any CNL-based exclusions, CNL waiver revocations, and decisions with respect to
In order to provide notice of articles that have exceeded the CNLs for 2014 and to afford an opportunity for comment regarding (1) potential
The lists available on the USTR Web site contain, for each article, the Harmonized Tariff System (HTS) of the United States subheading and BDC country of origin, the value of imports of the article from the subject BDC for the 2014 calendar year, and that country's share of total U.S. imports of that article.
List I on the USTR Web site shows the following two GSP-eligible articles—both from Thailand—that exceeded a CNL in 2014 by having been exported in a quantity equal to or greater than 50 percent of the total U.S. import value, in 2014:
List II identifies GSP-eligible articles from BDCs that are above the 50 percent
List III shows GSP-eligible articles from certain BDCs that are currently not receiving GSP duty-free treatment but that may be considered for GSP redesignation based on 2014 trade data and consideration of certain statutory factors.
List IV shows the following three articles from specified BDCs that are subject to CNL waiver revocation based on the provisions of Section 503(d)(4)(B)(ii) of the 1974 Act, as amended by Public Law 109-432:
Petitions from interested parties seeking a waiver of the application of CNLs for the two products on List I, and comments from the public in support of or in opposition to CNL waivers, revocations of CNL waivers, and redesignation of products are invited in accordance with the Requirements for Submissions below.
Pursuant to authority granted to the President in Section 202 of the Trade Preferences Extension Act of 2015 and consistent with USTR's December 2011 announcement of trade initiatives intended to enable least-developed countries to benefit more fully from global trade, five cotton products are being considered for GSP eligibility for LDBDCs at the initiative of USTR. These include:
Comments from the public in support of or in opposition to designation of the proposed product additions are invited in accordance with the Requirements for Submissions below.
The GSP regulations (15 CFR part 2007) provide the schedule of dates for conducting an annual review unless otherwise specified in a notice published in the
In the interim, and pursuant to Section 203 of the Trade Preferences Extension Act of 2015, the GSP Subcommittee of the TPSC will conduct a limited GSP review encompassing products that, based on full-year 2014 import data, are subject to CNL-related actions, including exclusions, waivers, and revocation of waivers, as well as redesignations. These products appear on Lists I—IV described above. In addition, the review will also consider the designation of the five cotton products mentioned above as eligible for GSP benefits for LDBDCs of the GSP program.
As part of this limited GSP product review, the GSP Subcommittee will accept petitions from interested parties seeking a waiver of the application of CNLs for the two products on List I, described above. The GSP Subcommittee also invites comments in support of or in opposition to: (1) The CNL waiver petitions which it is anticipated will be submitted for the two products on List I; (2)
Procedures for submission of both petitions and written comments are described in Section VI below.
In addition to comments from the public on the matters listed above, the GSP Subcommittee of the TPSC will convene a public hearing at 9:30 a.m. on Tuesday, August 11, 2015, to receive testimony related to (1) the CNL waiver petitions for products on List I, and (2) the proposed designation of the five cotton products. The hearing will not address
The hearing will be held at 1724 F Street NW., Washington, DC 20508 and will be open to the public and to the press. A transcript of the hearing will be made available on
All interested parties wishing to make an oral presentation at the hearing must submit, following the “Requirements for Submissions” set out below, the name, address, telephone number, and email address, if available, of the witness(es) representing their organization by 5 p.m., Friday, July 31, 2015. Requests to present oral testimony must be accompanied by a written brief or summary statement, in English, and also must be received by 5 p.m., Friday, July 31, 2015. Oral testimony before the GSP Subcommittee will be limited to five-minute presentations that summarize or supplement information contained in briefs or statements submitted for the record. Post-hearing briefs or statements will be accepted if they conform with the requirements set out below and are submitted, in English, by 5 p.m., Tuesday, August 18, 2015. Parties not wishing to appear at the public hearing may submit pre-hearing and post-hearing briefs or comments by the aforementioned deadlines.
Written comments submitted in response to this notice, including petitions for CNL waivers, must be submitted electronically by 5:00 p.m., July 31, 2015, using
To make a written comment or to submit a CNL waiver petition using
Each submitter will receive a submission tracking number upon completion of the submissions procedure at
An interested party requesting that information contained in a submission be treated as business confidential information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such. The submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page, and the submission should indicate, via brackets, the specific information that is confidential. Additionally, “Business Confidential” must be included in the “Type Comment” field. For any submission containing business confidential information, a non-confidential version must be submitted separately (
Submissions in response to this notice, except for information granted “business confidential” status under 15 CFR 2003.6, will be available for public viewing pursuant to 15 CFR 2007.6 at
Federal Aviation Administration (FAA), Department of Transportation.
Notice of Availability of the Final EA and FONSI/ROD.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA; 42 United States Code 4321
Mr. Daniel Czelusniak, Office of Commercial Space Transportation, Federal Aviation Administration, 800 Independence Ave. SW., Suite 325, Washington DC 20591; phone (202) 267-5924; or email
The Final EA was prepared to analyze the potential environmental impacts of Houston Airport System's (HAS's) proposal to establish and operate a commercial space launch site at the Ellington Airport (EFD), in Houston, Texas and offer the site to prospective commercial space launch operators for the operation of horizontal take-off and horizontal landing Concept X and Concept Z reusable launch vehicles (RLVs). To operate a commercial space launch site, HAS must obtain a commercial space launch site operator license from the FAA. Under the Proposed Action addressed in the Final EA, the FAA would: (1) Issue a launch site operator license to HAS for the operation of a commercial space launch site at EFD; (2) issue launch licenses to prospective commercial space launch operators that would allow them to conduct launches of horizontal take-off and horizontal landing Concept X and Concept Z RLVs from EFD, and (3) provide unconditional approval to the Airport Layout Plan (ALP) modifications that reflect the designation of a spaceport boundary and construction of planned spaceport facilities and infrastructure. Proposed launch operations would begin in 2015 and continue through 2019 in accordance with the terms of the launch site operator license. HAS proposes to provide RLV operators the ability to conduct up to 50 launches and landings (or 100 operations) per year, with approximately five percent of the operations expected to occur during night-time hours.
The Final EA addresses the potential environmental impacts of implementing the Proposed Action and the No Action Alternative. Under the No Action Alternative, the FAA would not issue a launch site operator license to HAS, and thus no launch licenses would be issued to individual commercial space launch vehicle operators to operate at EFD. Also, there would be no need to update the EFD ALP, and thus there would be no FAA approval of a revised ALP. Existing operations would continue at EFD, which is currently classified as a general aviation reliever airport.
The environmental impact categories considered in the Final EA include air quality; climate; coastal resources; compatible land use; Department of Transportation Act: Section 4(f); fish, wildlife, and plants; floodplains; hazardous materials, pollution prevention, and solid waste; historical, architectural, archaeological, and cultural resources; light emissions and visual impacts; natural resources and energy supply; noise; socioeconomics, environmental justice, and children's environmental health and safety risks; water quality; and wetlands. The Final EA also considers the potential secondary (induced) impacts and cumulative impacts.
The FAA has posted the Final EA and FONSI/ROD on the FAA Office of Commercial Space Transportation Web site:
The FAA published a Notice of Availability (NOA) of the Draft EA in the
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before July 27, 2015.
You may send comments identified by docket number FAA-2014-0661 using any of the following methods:
•
•
•
•
Deana Stedman, ANM-113, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057-3356, email
This notice is published pursuant to 14 CFR 11.85.
Section of 14 CFR Affected:
14 CFR 25.979(d) and (e)
The petitioner requests relief from the use of industry standard pressures for onloads and offloads installations of the 767-2C modified supplemental type certificate (STC) to ensure consistency within the current military fleet. The baseline 767-2C aircraft will be modified to be an in-flight tanker and receiver. The onload and offload installations could experience surge pressures that approach 240 pounds per square inch gage (PSIG). The baseline 767-2C aircraft designed to the maximum burst pressure of 360 PSIG will not meet the regulatory requirement of 2.0 times the ultimate load at maximum pressures, including surge.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before July 16, 2015.
You may send comments identified by docket number FAA-2014-1042 using any of the following methods:
• Government-wide rulemaking Web site: Go to
• Mail: Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
• Fax: Fax comments to the Docket Management Facility at 202-493-2251.
• Hand Delivery: Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Deana Stedman, ANM-113, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057-3356, email
This notice is published pursuant to 14 CFR 11.85.
National Highway Traffic Safety Administration (NHTSA), DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before August 5, 2015.
Wayne McKenzie, Office of Crash Avoidance Standards (NVS-121), National Highway Traffic Safety Administration, West Building W43-462, 1200 New Jersey Avenue SE., Washington, DC 20590. Mr. McKenzie can be reached at (202) 366-1729.
The manufacturers of new tractors and trailers are required to certify that their products are equipped with retroreflective material complying with the requirements of the standard. The Federal Motor Carriers Safety Administration (FMCSA) enforces this and other standards through roadside inspections of trucks. There is no practical field test for the performance requirements, and labeling is the only objective way of distinguishing trailer conspicuity grade material from lower performance material. Without labeling, FMCSA will not be able to enforce the performance requirements of the standard and the compliance testing of new tractors and trailers will be complicated. Labeling is also important to small trailer manufacturers because it may help them certify compliance. Because wider stripes or material of lower brightness also can provide the minimum safety performance, the marking system serves the additional role of identifying the minimum stripe width required for retroreflective conspicuity of the particular material.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503.
Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Aston Martin Lagonda Limited (AML) has determined that certain MY 2009-2013 Aston Martin passenger cars do not fully comply with paragraph S4.4(c)(2), of Federal Motor Vehicle Safety Standard (FMVSS) No. 138,
The closing date for comments on the petition is August 5, 2015.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and submitted by any of the following methods:
• Mail: Send comments by mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Deliver: Deliver comments by hand to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays.
• Electronically: Submit comments electronically by: Logging onto the Federal Docket Management System (FDMS) Web site at
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
This notice of receipt of AML's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
S4.4 TPMS Malfunction.
(c)
(2) Flashes for a period of at least 60 seconds but no longer than 90 seconds upon detection of any condition specified in S4.4(a) after the ignition locking system is activated to the “On” (“Run”) position. After each period of prescribed flashing, the telltale must remain continuously illuminated as long as a malfunction exists and the ignition locking system is in the “On” (“Run”) position. This flashing and illumination sequence must be repeated each time the ignition locking system is placed in the “On” (“Run”) position until the situation causing the malfunction has been corrected. . . .
(A) AML stated that although the malfunction indicator does not re-illuminate immediately after the vehicle is restarted, it generally will illuminate shortly thereafter, and in any event it will illuminate in no more than about 40 seconds, even in vehicles containing the noncompliance. Once a vehicle has started and is accelerating above 23 mph for a period of 15 seconds, the TPMS will seek to confirm the sensors fitted to the vehicle. If a sensor is not fitted, the TPMS will detect this within a further period of 15-20 seconds (up to a maximum of 25 seconds) and the TPMS malfunction indicator will illuminate correctly. Once the malfunction indicator is illuminated, it will remain illuminated throughout that ignition cycle, regardless of the vehicle's speed.
(B) AML also stated that if the TPMS fails to detect the wheel sensors, the TPMS monitor will display on the TPMS pressures screen “—” warning the driver that the status of the wheel sensor is unconfirmed. Once the vehicle starts moving, the system will then accurately determine if a sensor is present or not.
(C) AML says that the noncompliance is confined to one particular aspect of the functionality of the otherwise compliant TPMS malfunction indicator. All other aspects of the low-pressure monitoring system functionality are fully compliant with the requirements of FMVSS No. 138.
(D) AML is not aware of any customer complaints, field communications, incidents or injuries related to this condition.
AML has additionally informed NHTSA that all unsold vehicles in AML's custody and control will have the TPMS Electronic Control Unit reprogrammed prior to being sold.
In summation, AML believes that the described noncompliance of the subject vehicles is inconsequential to motor vehicle safety, and that its petition, to exempt AML from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that AML no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after AML notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
Surface Transportation Board, DOT.
60-day notice and request for comments.
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3519 (PRA), the Surface Transportation Board (STB or Board) gives notice of its intent to seek from the Office of Management and Budget (OMB) an extension of approval for the information collections required from those seeking licensing authority under 49 U.S.C. 10901-03 and consolidation authority under §§ 11323-26.
Under these Title 49 provisions, rail carriers and non-carriers are required to file an application with the Board, or seek an exemption (through petition or notice) from the full application process under § 10502, before they may construct, acquire, or operate a line of railroad; abandon or discontinue operations over a line of railroad; or consolidate their interests through a merger or common-control arrangement. The relevant information collections are described in more detail below.
Comments are requested concerning: The accuracy of the Board's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate; and whether the collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility. Submitted comments will be summarized and included in the Board's request for OMB approval.
Comments on this information collection should be submitted by September 4, 2015.
Direct all comments to Chris Oehrle, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001, or to
Under §§ 10901-03 and 11323-26, an application is required to seek authority under these sections, unless an applicant receives an exemption under 49 U.S.C. 10502. Respondents seeking such authority from the Board must submit certain information required under the Board's related regulations. The table below shows the statutory and regulatory provisions under which the Board requires the information collections that are the subject of this notice.
Under the PRA, a Federal agency conducting or sponsoring a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under § 3506(c)(2)(A) of the PRA, Federal agencies are required to provide, prior to an agency's submitting a collection to OMB for approval, a 60-day notice and comment period through publication in the
Surface Transportation Board, DOT.
60-day notice and request for comments.
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3519 (PRA), the Surface Transportation Board (STB or Board) gives notice of its intent to seek from the Office of Management and Budget (OMB) an extension of the information collections required under 49 U.S.C. 10904-05 and 10907, and 16 U.S.C. 1247(d).
Under these statutory provisions, the Board administers programs designed to preserve railroad service or rail rights-of-way. When a line is proposed for abandonment, affected shippers, communities, or other interested persons may seek to preserve rail service by filing with the Board: An offer of financial assistance (OFA) to subsidize or purchase a rail line for which a railroad is seeking abandonment (49 U.S.C. 10904), including a request for the Board to set terms and conditions of the financial assistance; a request for a public use condition (§ 10905); or a trail-use request (16 U.S.C. 1247(d)). Similarly, when a line is placed on a system diagram map identifying it as an anticipated or potential candidate for abandonment, affected shippers, communities, or other interested persons may seek to preserve rail service by filing with the Board a feeder line application to purchase the identified rail line (§ 10907). When a line is so placed on the map, the feeder line applicant need not demonstrate that the public convenience and necessity require or permit the sale of the line, but need only pay the constitutional minimum value to acquire it. Additionally, the railroad owning the rail line subject to abandonment must, in some circumstances, provide
Comments are requested concerning: (1) The accuracy of the Board's burden estimates; (2) ways to enhance the quality, utility, and clarity of the information collected; (3) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology when appropriate; and (4) whether the collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility. Submitted comments will be summarized and included in the Board's request for OMB approval.
The collection by the Board of these offers, requests, and applications, and the railroad's replies (when required), enables the Board to meet its statutory duty to regulate the referenced rail transactions.
Comments on this information collection should be submitted by September 4, 2015.
Direct all comments to Chris Oehrle, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001, or to
Respondents seeking authority from the Board to preserve rail lines must submit certain information required under the Board's related regulations and, in some circumstances, railroads seeking to abandon a line must disclose certain information to the offeror or applicant.
Under the PRA, a Federal agency conducting or sponsoring a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under § 3506(c)(2)(A) of the PRA, Federal agencies are required to provide, prior to an agency's submitting a collection to OMB for approval, a 60-day notice and comment period through publication in the
Norfolk Southern Railway Company (NSR) has filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
NSR has certified that: (1) No local traffic has moved over the Line for at least two years; (2) no overhead traffic has moved over the Line for at least two years and that overhead traffic, if there were any, could be rerouted over other lines; (3) no formal complaint has been filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line, and no such complaint is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment or discontinuance shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on August 5, 2015, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to NSR's representative: William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW., Suite 300, Washington, DC 20037.
If the verified notice contains false or misleading information, the exemption is void
NSR has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. OEA will issue an environmental assessment (EA) by July 10, 2015. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), NSR shall file a notice of consummation with the Board to signify that it has exercised authority granted and fully abandoned the Line. If consummation has not been effected by NSR's filing of a notice of consummation by July 6, 2016, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before September 4, 2015 to be assured of consideration.
Direct all written comments to Christie A. Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS); Treasury.
Notice.
The Charter for the Advisory Committee on Tax Exempt and Government Entities (ACT) has been renewed for a two-year period beginning May 11, 2015.
Mark O'Donnell by email at
Notice is hereby given under section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), and with the approval of the Secretary of Treasury to announce the renewal of the
Office of Financial Research, Department of the Treasury.
Notice of open meeting.
The Financial Research Advisory Committee for the Treasury's Office of Financial Research (OFR) is convening for its sixth meeting on Thursday, July 23, 2015, in the Cash Room, Main Treasury Building, 1500 Pennsylvania Avenue, Washington, DC 20220, beginning at 9:45 a.m. Eastern Time. The meeting will be open to the public via live webcast at
The meeting will be held on Thursday, July 23, 2015, beginning at 9:45 a.m. Eastern Time.
The meeting will be held in the Cash Room, Main Treasury Building, 1500 Pennsylvania Avenue, Washington, DC 20220. The meeting will be open to the public via live webcast at
David Johnson, Designated Federal Officer, Office of Financial Research, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, (202) 622-3002 (this is not a toll-free number),
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2, 10(a)(2), through implementing regulations at 41 CFR 102-3.150,
• Electronic Statements. Email the Committee's Designated Federal Officer at
• Paper Statements. Send paper statements in triplicate to the Financial Research Advisory Committee, Attn: David Johnson, Office of Financial Research, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
The OFR will post statements on the Committee's Web site,
This is the sixth meeting of the Financial Research Advisory Committee. Topics to be discussed among all members will include welcoming new Committee members, OFR progress on prior Committee recommendations, current activities of the OFR, Subcommittee reports to the Committee, and Committee recommendations. For more information on the OFR and the Committee, please visit the OFR Web site at
Wage and Hour Division, Department of Labor.
Proposed rule and request for comments.
The Fair Labor Standards Act (FLSA or Act) guarantees a minimum wage and overtime pay at a rate of not less than one and one-half times the employee's regular rate for hours worked over 40 in a workweek. While these protections extend to most workers, the FLSA does provide a number of exemptions. The Department of Labor (Department) proposes to update and revise the regulations issued under the FLSA implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees. This exemption is referred to as the FLSA's “EAP” or “white collar” exemption. To be considered exempt, employees must meet certain minimum tests related to their primary job duties and be paid on a salary basis at not less than a specified minimum amount. The standard salary level required for exemption is currently $455 a week ($23,660 for a full-year worker) and was last updated in 2004.
By way of this rulemaking, the Department seeks to update the salary level to ensure that the FLSA's intended overtime protections are fully implemented, and to simplify the identification of nonexempt employees, thus making the EAP exemption easier for employers and workers to understand. The Department also proposes automatically updating the salary level to prevent the level from becoming outdated with the often lengthy passage of time between rulemakings. Lastly, the Department is considering whether revisions to the duties tests are necessary in order to ensure that these tests fully reflect the purpose of the exemption.
Submit written comments on or before September 4, 2015.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA11, by either of the following methods:
Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this proposed rule may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's Web site at
The FLSA was passed to both guarantee a minimum wage and to limit the number of hours an employee could work without additional compensation. Section 13(a)(1), which excludes certain white collar employees from minimum wage and overtime pay protections, was included in the original Act in 1938. The exemption was premised on the belief that the exempted workers earned salaries well above the minimum wage and enjoyed other privileges, including above-average fringe benefits, greater job security, and better opportunities for advancement, setting them apart from workers entitled to overtime pay. The statute delegates to the Secretary of Labor the authority to define and delimit the terms of the exemption.
On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department to update the regulations defining which white collar workers are protected by the FLSA's minimum wage and overtime standards. 79 FR 18737 (Apr. 3, 2014). Consistent with the President's goal of ensuring workers are paid a fair day's pay for a fair day's work, the memorandum instructed the Department to look for ways to modernize and simplify the regulations while ensuring that the FLSA's intended overtime protections are fully implemented.
Since 1940, the regulations implementing the white collar exemption have generally required each of three tests to be met for the exemption to apply: (1) The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee's job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”).
One of the Department's primary goals in this rulemaking is updating the section 13(a)(1) exemption's salary requirements. The Department has updated the salary level requirements seven times since 1938, most recently in 2004. Under the current regulations, an executive, administrative, or professional employee must be paid at least $455 per week ($23,660 per year for a full-year worker) in order to come within the standard exemption; in order to come within the exemption for highly compensated employees (HCE), such an employee must earn at least $100,000 in total annual compensation.
The Department has long recognized the salary level test as “the best single test” of exempt status. If left at the same amount over time, however, the effectiveness of the salary level test as a means of determining exempt status diminishes as the wages of employees entitled to overtime increase and the real value of the salary threshold falls. In order to maintain the effectiveness of the salary level test, the Department proposes to set the standard salary level equal to the 40th percentile of earnings for full-time salaried workers ($921 per week, or $47,892 annually for a full-year worker, in 2013).
The Department is proposing to update the salary and compensation levels to ensure that the FLSA's intended overtime protections are fully implemented and to simplify the identification of overtime-protected and exempt employees, thus making the exemptions easier for employers and workers to understand. The proposed increase to the standard salary level is also intended to address the Department's conclusion that the salary level set in 2004 was too low to efficiently screen out from the exemption overtime-protected white collar employees when paired with the standard duties test. The Department believes that a standard salary level at the 40th percentile of all full-time salaried employees ($921 per week, or $47,892 for a full-year worker, in 2013) will accomplish the goal of setting a salary threshold that adequately distinguishes between employees who may meet the duties requirements of the EAP exemption and those who likely do not, without necessitating a return to the more detailed long duties test.
In 2013, there were an estimated 144.2 million wage and salary workers in the United States, of whom the Department estimates that 43.0 million are white collar salaried employees who may be impacted by a change to the Department's part 541 regulations. Of these workers, the Department estimates that 21.4 million are currently exempt EAP workers who are subject to the salary level requirement and may be potentially affected by the proposed rule.
In Year 1 the Department estimates 4.6 million currently exempt workers who earn at least the current weekly salary level of $455 but less than the 40th earnings percentile ($921) would, without some intervening action by their employers, become entitled to minimum wage and overtime protection under the FLSA (Table ES1). Similarly, an estimated 36,000 currently exempt workers who earn at least $100,000 but less than the 90th earnings percentile ($122,148) per year and who meet the HCE duties test but not the standard duties test may also become eligible for minimum wage and overtime protection. In Year 10, with automatic updating of the salary levels, the Department projects that between 5.1 and 5.6 million workers will be affected by the change in the standard salary level test and between 33,000 and 42,000 workers will be affected by the change in the HCE total annual compensation test, depending on the updating methodology used (CPI-U or fixed percentile of wage earnings, respectively). Additionally, the Department estimates that an additional 6.3 million white collar workers who are currently overtime eligible because they do not satisfy the EAP duties tests and who currently earn at least $455 per week but less than the proposed salary level would have their overtime protection strengthened in Year 1 because their exemption status would be clear based on the salary test alone without the need to examine their duties.
Three direct costs to employers are quantified in this analysis: (1) Regulatory familiarization costs; (2) adjustment costs; and (3) managerial costs. Assuming a 7 percent discount rate, the Department estimates that average annualized direct employer costs will total between $239.6 and $255.3 million per year, depending on the updating methodology used as shown in (Table ES1). In addition to the direct costs, this proposed rulemaking will also transfer income from employers to employees in the form of higher earnings. Average annualized transfers are estimated to be between $1,178.0 and $1,271.4 million, depending on which of the two updating methodologies analyzed in this proposal is used. The Department also projects average annualized deadweight loss of between $9.5 and $10.5 million, and notes that the projected deadweight loss is small in comparison to the amount of estimated costs.
Impacts of the proposed rule extend beyond those quantitatively estimated. For example, a potential impact of the rule's proposed increase in the salary threshold is a reduction in litigation costs. Other unquantified transfers, costs, and benefits are discussed in section VII.D.vii.
The Department believes that the proposed increase in the standard salary level to the 40th percentile of weekly earnings for full-time salaried workers and increasing the HCE compensation level to the 90th percentile of full-time salaried workers' earnings, combined with annual updating, is the simplest method for securing the effectiveness of the salary level as a bright-line for ensuring that employees entitled to the Act's overtime provisions are not exempted. The Department recognizes that the proposed standard salary threshold is lower than the historical average salary for the short duties test (the basis for the standard duties test) but believes that it will appropriately distinguish between overtime-eligible white collar salaried employees and those who may meet the EAP duties test without necessitating a return to the more rigorous long duties test. A standard salary threshold significantly below the 40th percentile, or the absence of a mechanism for automatically updating the salary level, however, would require a more rigorous duties test than the current standard duties test in order to effectively distinguish between white collar employees who are overtime protected and those who may be bona fide EAP employees. The Department believes that this proposal is the least burdensome but still cost-effective mechanism for updating the salary and compensation levels, and indexing future levels, and is consistent with the Department's statutory obligations.
The FLSA generally requires covered employers to pay their employees at least the federal minimum wage (currently $7.25 an hour) for all hours worked, and overtime premium pay of one and one-half times the employee's regular rate of pay for all hours worked over 40 in a workweek.
The Department has consistently used its rulemaking authority to define and clarify the section 13(a)(1) exemptions. Since 1940, the implementing regulations have generally required each of three tests to be met for the exemptions to apply: (1) The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee's job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”).
Although section 13(a)(1) exempts covered employees from both the FLSA's minimum wage and overtime requirements, its most significant impact is its removal of these employees from the Act's overtime protections. It is widely recognized that the general requirement that employers pay a premium rate of pay for all hours worked over 40 in a workweek is a cornerstone of the Act, grounded in two policy objectives. The first is to spread employment by incentivizing employers to hire more employees rather than requiring existing employees to work longer hours, thereby reducing involuntary unemployment.
Section 13(a)(1) was included in the original Act in 1938 and was based on provisions contained in the earlier National Industrial Recovery Act of 1933 (NIRA) and state law precedents. Specific references in the legislative history to the exemptions contained in section 13(a)(1) are scant. However, the exemptions were premised on the belief that the exempted workers typically earned salaries well above the minimum wage and were presumed to enjoy other privileges to compensate them for their long hours of work, such as above-average fringe benefits, greater job security, and better opportunities for advancement, setting them apart from the nonexempt workers entitled to overtime pay.
The universe of employees eligible for the exemptions has fluctuated with amendments to the FLSA. Initially, persons employed in a “local retailing capacity” were exempt, but Congress eliminated that language from section 13(a)(1) in 1961 when the FLSA was expanded to cover retail and service enterprises.
A 1990 enactment expanded the exemptions to include in the regulations defining exempt executive, administrative, and professional employees, computer systems analysts, computer programmers, software engineers, and similarly skilled professional workers, including those paid on an hourly basis if paid at least 6
The FLSA became law on June 25, 1938, and the first version of part 541, setting forth the criteria for exempt status under section 13(a)(1), was issued that October. 3 FR 2518 (Oct. 20, 1938). Following a series of public hearings, which were discussed in a report issued by WHD,
The Department revised the part 541 regulations twice in 1992. First, the Department created a limited exception from the salary basis test for public employees, permitting public employers to follow public sector pay and leave systems requiring partial-day deductions from pay for absences for personal reasons or due to illness or injury not covered by accrued paid leave, or due to budget-driven furloughs, without defeating the salary basis test required for exemption. 57 FR 37677 (Aug. 19, 1992). The Department also implemented the 1990 law requiring it to promulgate regulations permitting employees in certain computer-related occupations to qualify as exempt under section 13(a)(1) of the FLSA. 57 FR 46744 (Oct. 9, 1992);
On March 31, 2003, the Department published a Notice of Proposed Rulemaking proposing significant changes to the part 541 regulations. 68 FR 15560 (Mar. 31, 2003). On April 23, 2004, the Department issued a Final Rule (2004 Final Rule), which raised the salary level for the first time since 1975, and made other changes, some of which are discussed below. 69 FR 22122 (Apr. 23, 2004). Current regulations retain the three tests for exempt status that have been in effect since 1940: A salary basis test, a salary level test, and a job duties test.
The regulations in part 541 contain specific criteria that define each category of exemption provided by section 13(a)(1) for bona fide executive, administrative, professional, outside sales employees, and teachers and academic administrative personnel. The regulations also define those computer employees who are exempt under section 13(a)(1) and section 13(a)(17).
The Department last updated the salary levels in the 2004 Final Rule, setting the standard test threshold at $455 per week for executive, administrative, and professional employees. Since its prior revision in 1975, the salary level tests had grown outdated and were thus no longer effective at distinguishing between exempt and nonexempt employees. Mindful that nearly 30 years had elapsed between salary level increases, and in response to commenter concerns that similar lapses would occur in the future, in the 2004 Final Rule the Department expressed the intent to
Under the current part 541 regulations, an exempt executive employee must be compensated on a salary basis at a rate of not less than $455 per week and have a primary duty of managing the enterprise or a department or subdivision of the enterprise. § 541.100(a)(1)-(2). An exempt executive must also customarily and regularly direct the work of at least two employees and have the authority to hire or fire, or the employee's suggestions and recommendations as to the hiring, firing, or other change of status of employees must be given particular weight. § 541.100(a)(3)-(4).
An exempt administrative employee must be compensated on a salary or fee basis at a rate of not less than $455 per week and have a primary duty of the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers. § 541.200. An exempt administrative employee's primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.
An exempt professional employee must be compensated on a salary or fee basis at a rate of not less than $455 per week and have a primary duty of (1) work requiring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged, specialized, intellectual instruction and study, or (2) work that is original and creative in a recognized field of artistic endeavor, or (3) teaching in a school system or educational institution, or (4) work as a computer systems analyst, computer programmer, software engineer, or other similarly-skilled worker in the computer field. §§ 541.300; 541.303; 541.400. An exempt professional employee must perform work requiring the consistent exercise of discretion and judgment, or requiring invention, imagination, or talent in a recognized field of artistic endeavor. § 541.300(a)(2). The salary requirements do not apply to certain licensed or certified doctors, lawyers, and teachers. §§ 541.303(d); 541.304(d).
An exempt outside salesperson must be customarily and regularly engaged away from the employer's place of business and have a primary duty of making sales, or obtaining orders or contracts for services or for the use of facilities. § 541.500. There are no salary or fee requirements for exempt outside sales employees.
The 2004 Final Rule created a new “highly compensated” test for exemption. Under the HCE exemption, employees who are paid total annual compensation of at least $100,000 (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA's overtime requirements if they customarily and regularly perform at least one of the exempt duties or responsibilities of an executive, administrative, or professional employee identified in the standard tests for exemption. § 541.601. The HCE exemption applies only to employees whose primary duty includes performing office or non-manual work; non-management production line workers and employees who perform work involving repetitive operations with their hands, physical skill, and energy are not exempt under this section no matter how highly paid.
Employees who meet the requirements of part 541 are excluded from both the Act's minimum wage and overtime pay protections. As a result, employees may work any number of hours in the workweek and not be subject to the FLSA's minimum wage and overtime pay requirements. Some state laws have stricter exemption standards than those described above. The FLSA does not preempt any such stricter state standards. If a State establishes a higher standard than the provisions of the FLSA, the higher standard applies in that State.
On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department to update the regulations defining which “white collar” workers are protected by the FLSA's minimum wage and overtime standards. 79 FR 18737 (Apr. 3, 2014). The memorandum instructed the Department to look for ways to modernize and simplify the regulations while ensuring that the FLSA's intended overtime protections are fully implemented. As the President noted at the time, the FLSA's overtime protections are a linchpin of the middle class and the failure to keep the salary level requirement for the white collar exemption up-to-date has left millions of low-paid salaried workers without this basic protection.
Following issuance of the memorandum, the Department embarked on an extensive outreach program, conducting listening sessions in Washington, DC, and several other locations, as well as by conference call. The listening sessions were attended by a wide range of stakeholders: Employees, employers, business associations, non-profit organizations, employee advocates, unions, state and local government representatives, tribal representatives, and small businesses. In these sessions the Department asked stakeholders to address, among other issues: (1) What is the appropriate salary level for exemption; (2) what, if any, changes should be made to the duties tests; and (3) how can the regulations be simplified.
Stakeholders representing employers expressed a wide variety of views on the appropriate salary level, ranging from a few who said the salary should not be raised, to several who noted their entry level managers already earned salaries far above the current annual salary level of $23,660. A number of representatives of national employers also noted regional variations in the salary levels they pay to EAP employees. Several employers encouraged the Department to consider nondiscretionary bonuses in determining whether the salary level is met, noting that such bonuses are a key part of exempt employees' compensation in their industries and contribute to an “ownership mindset.” Many employer stakeholders stated that they consider first-line managerial positions to be the gateway to developing their future senior managers and organizational leadership. A number of these employer stakeholders also raised concerns about changing currently exempt employees to nonexempt employees as a result of an increase in the salary requirement, stating that employees are attached to the perceived higher status of being in exempt salaried positions, and value the time flexibility and steady income that comes with such positions. These stakeholders also stressed the need for flexibility under the regulations, in particular emphasizing the value they place on a work culture that encourages managers to lead by example and “pitch in” to assist nonexempt employees. They stressed that changing the duties tests to limit exempt employees' ability to perform nonexempt work—such as California's 50 percent primary duty rule—would negatively impact the culture of the workplace, be difficult and costly to implement, and lead to increased litigation. They also noted the significant investment they made in
Stakeholders representing employees universally endorsed the need to increase the salary level, noting that it has not been updated since 2004. Several employee advocates also stressed the need to index the salary level to ensure that it maintains its effectiveness as a demarcation line between exempt and overtime-eligible employees without having to rely on time consuming future rulemaking. Both individual employees and their representatives shared their concerns that some employers are taking advantage of exempt employees, requiring them to perform large amounts of routine work in order to keep down labor costs, and a few suggested that there needs to be a maximum hours cap for EAP exempt employees. They stressed that employees in “management” positions who are required to spend disproportionate amounts of time performing routine nonexempt tasks (ringing up customers, stocking shelves, bussing tables, cleaning stores and restaurants, etc., alongside or in place of front line workers) are not bona fide executives and do not, in fact, enjoy the flexibility and status traditionally associated with such positions and therefore are entitled to the overtime protections the FLSA was designed to provide. Employee advocates pointed to the California overtime rule as more protective of such workers.
While the HCE exemption was not a primary focus of any of the listening sessions, a number of business stakeholders stated that the $100,000 total annual compensation requirement was too high, and a few suggested that the duties test for the HCE exemption should be dropped and the exemption should be based on compensation level alone. In contrast, the employee stakeholders who addressed the issue argued that the HCE duties test was too lax and that the $100,000 total annual compensation requirement was too low, particularly in light of the wage gains at the top end of the earnings spectrum since 2004. Some employee advocates suggested eliminating the HCE exemption. While the outside sales exemption was also not a central focus of the sessions, several stakeholders representing employer interests argued that the distinction between inside and outside sales positions in the application of the EAP exemption does not reflect the realities of the modern workplace.
The Department's outreach has made clear that there are also some widespread misconceptions about overtime eligibility under the FLSA. For example, many employers and employees mistakenly believe that payment of a salary automatically disqualifies an employee from entitlement to overtime compensation irrespective of the duties performed. Many employees are also unaware of the duties required to be performed in order for the exemption to apply. Additionally, many employers seem to mistakenly believe that nonexempt white collar employees
Lastly, the Department notes that multiple stakeholders on both sides of the issue expressed frustration with the exempt/nonexempt terminology and asked the Department to consider more descriptive terms. The Department recognizes that the terms “exempt” and “nonexempt” are not intuitive and can be confusing to both employers and employees. In an attempt to address this concern, the Department uses the terms “overtime protected” and “overtime eligible” at times in this NPRM as synonyms for nonexempt, and “not overtime protected” and “overtime ineligible” as synonyms for exempt. While the Department will continue to use the terms exempt and nonexempt as technical terms to ensure accuracy and continuity, we will, where appropriate, endeavor to use these more descriptive terms to aid the regulated community. The Department also uses the term “EAP exemption” throughout this NPRM to reflect the section 13(a)(1) exemption for executive, administrative, and professional employees.
The discussions in the listening sessions have informed not just the development of this NPRM, but also the Department's understanding of the role of overtime in the modern workplace. Some of the issues raised in the listening sessions are specifically referenced below in the Department's proposals; some issues that were raised are either beyond the scope of this rulemaking or beyond the Department's authority under the FLSA. For example, several employers expressed concern that employees who would become newly entitled to overtime under a higher salary level requirement would lose the flexibility they currently enjoy to work remotely on electronic devices because of employer concerns about overtime liability. Because this concern involves compensation for hours worked by overtime-protected employees, it is beyond the scope of this rulemaking. The Department, however, understands the importance of this concern and will publish a Request for Information in the near future seeking information from stakeholders on the use of electronic devices by overtime-protected employees outside of scheduled work hours.
The Department appreciates the views of all the participants in the listening sessions and welcomes further input from the public in response to this NPRM. Finally, consistent with the President's commitment to a 21st-century regulatory system, the Department would consider conducting a retrospective review of the Final Rule resulting from this proposal at an appropriate time in the future.
One of the Department's primary goals in this rulemaking is updating the section 13(a)(1) exemption's salary level requirement. A salary level test has been part of the regulations since 1938 and
The salary level's function in differentiating exempt from nonexempt employees takes on greater importance when there is only one duties test that has no limitation on the amount of nonexempt work that an exempt employee may perform, as has been the case since 2004. The Department set the standard salary level in 2004 equivalent to the former long test salary level, thus not adjusting the salary threshold to account for the absence of the more rigorous long duties test. The long test salary level was designed to operate as a ready guide to assist employers in identifying employees who were unlikely to meet the duties tests for the EAP exemption. The salary level required for exemption under section 13(a)(1) is currently $455 a week and has not been updated in more than 10 years. The annual value of the salary level ($23,660) is now lower than the poverty threshold for a family of four. If left at the same amount, the effectiveness of the salary level test as a means of helping determine exempt status diminishes as the wages of employees entitled to overtime pay increase and the real value of the salary threshold falls.
By way of this rulemaking, the Department seeks to update the salary level to ensure that the FLSA's intended overtime protections are fully implemented, and to simplify the identification of overtime-eligible employees, thus making the exemptions easier for employers and workers to understand. For similar reasons, the Department also proposes to update the total annual compensation required for the HCE exemption, since it too has been unchanged since 2004, and the current level could lead to inappropriate classification given the minimal duties test for that exemption.
In a further effort to respond to changing conditions in the workplace, the Department is also considering whether to allow nondiscretionary bonuses to satisfy some portion of the standard test salary requirement. Currently, such bonuses are only included in calculating total annual compensation under the HCE test, but some stakeholders have urged broader inclusion, pointing out that in some industries, particularly the retail and restaurant industries, significant portions of salaried EAP employees' earnings may be in the form of such bonuses.
The Department also proposes automatically updating the salary levels based on changes in the economy to prevent the levels from becoming outdated with the often lengthy passage of time between rulemakings. The Department proposes to automatically update the standard salary test, the annual compensation requirement for highly compensated employees, and the special salary levels for American Samoa and for motion picture industry employees, in order to ensure the continued utility of these tests over time. As explained in the Weiss Report, the salary test is only a strong measure of exempt status if it is up to date, and a weakness of the salary test is that increases in wage rates and salary levels over time gradually diminish its effectiveness.
The Department is also considering revisions to the duties tests in order to ensure that they fully reflect the purpose of the exemption. Possible revisions include requiring overtime-ineligible employees to spend a specified amount of time performing their primary duty (
The Department's current proposal focuses primarily on updating the salary and compensation levels by proposing that the standard salary level be set at the 40th percentile of weekly earnings for full-time salaried workers, proposing to increase the HCE annual compensation requirement to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers, and proposing a mechanism for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption. While the primary regulatory changes proposed are in §§ 541.600 and 541.601, additional conforming changes are proposed to update references to the salary level throughout part 541 as well as to update the special salary provisions for American Samoa and the motion picture industry. The proposal also discusses the inclusion of nondiscretionary bonuses to satisfy a portion of the standard salary requirement but does not propose specific regulatory changes. Additionally, the proposal discusses the duties tests, requests comments on the current requirements, and solicits suggestions for additional occupation examples, but does not make any specific proposals for revisions to these sections.
The FLSA became law on June 25, 1938, and the first version of part 541, issued later that year, set a minimum salary level of $30 per week for executive and administrative employees. 3 FR 2518. Since 1938, the Department has increased the salary levels seven times—in 1940, 1949, 1958, 1963, 1970, 1975, and 2004.
In 1940, the Department maintained the $30 per week salary level set in 1938 for executive employees, increased the salary level for administrative employees, and established a salary level for professional employees. The Department used salary surveys from federal and state government agencies, experience gained under the National Industrial Recovery Act, and federal government salaries to determine the salary level that was the “dividing line” between employees performing exempt and nonexempt work. Stein Report at 9, 20-21, 31-32. The Department recognized that the salary level falls within a continuum of salaries that overlaps the outer boundaries of exempt and nonexempt employees. Specifically, the Department stated:
To make enforcement possible and to provide for equity in competition, a rate should be selected in each of the three definitions which will be reasonable in the light of average conditions for industry as a whole. In some instances the rate selected will inevitably deny exemption to a few employees who might not unreasonably be exempted, but, conversely, in other instances it will undoubtedly permit the exemption of some persons who should properly be entitled to the benefits of the act.
In 1949, the Department again looked at salary data from state and federal agencies, including the Bureau of Labor Statistics (BLS). The data reviewed included wages in small towns and low-wage industries, earnings of federal employees, average weekly earnings for exempt employees, starting salaries for college graduates, and salary ranges for different occupations such as bookkeepers, accountants, chemists, and mining engineers. Weiss Report at 10, 14-17, 19-20. The Department noted that the “salary level adopted must exclude the great bulk of nonexempt persons if it is to be effective”.
In 1949, the Department also established a second, less-stringent duties test for each exemption, but only for those employees who were paid at or above a higher “short test” salary level. Those paid above the higher salary level were exempt if they also met a “short” duties test, which lessened the duties requirements for exemption.
In setting the long test salary level in 1958, the Department considered data collected during 1955 WHD investigations on the “actual salaries paid” to employees who “qualified for exemption” (
The Department followed a similar methodology when determining the appropriate long test salary level increase in 1963, using data regarding salaries paid to exempt workers collected in a 1961 WHD survey. 28 FR 7002. The salary level for executive and administrative employees was increased to $100 per week, for example, when the 1961 survey data showed that 13 percent of establishments paid one or more exempt executives less than $100 per week, and 4 percent of establishments paid one or more exempt administrative employees less than $100 a week. 28 FR 7004. The professional exemption salary level was increased to $115 per week, when the 1961 survey data showed that 12 percent of establishments surveyed paid one or more professional employees less than $115 per week.
Salary tests set at this level would bear approximately the same relationship to the minimum salaries reflected in the 1961 survey data as the tests adopted in 1958, on the occasion of the last previous adjustment, bore to the minimum salaries reflected in a comparable survey, adjusted by trend data to early 1958. At that time, 10 percent of the establishments employing executive employees paid one or more executive employees less than the minimum salary adopted for executive employees and 15 percent of the establishments employing administrative or professional employees paid one or more employees employed in such capacities less than the minimum salary adopted for administrative and professional employees.
The Department continued to use a similar methodology when updating the long test salary level in 1970. After examining data from 1968 WHD investigations, 1969 BLS wage data, and information provided in a report issued by the Department in 1969 that included salary data for executive, administrative, and professional employees,
In 1975, instead of following these prior approaches, the Department set the long test salary levels based on increases in the Consumer Price Index (CPI), although the Department adjusted the salary level downward “in order to eliminate any inflationary impact.” 40 FR 7091. As a result of this recalibration of the 1970 levels, the long test salary level for the executive and administrative exemptions was set at $155, while the professional level was set at $170. The salary levels adopted were intended as interim levels “pending the completion and analysis of a study by [BLS] covering a six month period in 1975[,]” and were not meant to set a precedent for future salary level increases.
As reflected in Table A, the short test salary level increased in tandem with the long test level throughout the various rulemakings since 1949. Because the short test was designed to capture only those white collar employees whose salary was high enough to indicate a stronger likelihood of exempt status and thus warrant a less stringent duties requirement, the short test salary level was always set significantly higher than the long test
The salary level test was most recently updated in 2004, when the Department abandoned the concept of separate long and short tests, opting instead for one “standard” test, and set the salary level under a new standard duties test at $455 for executive, administrative, and professional employees. Due to the lapse in time between the 1975 and 2004 rulemakings, the salary threshold for the long duties tests (
The Department in the 2004 Final Rule based the new “standard” duties tests on the short duties tests (which did not limit the amount of nonexempt work that could be performed), and tied them to a single salary test level that was updated from the long test salary (which historically had been paired with a cap on nonexempt work). 69 FR 22164, 22168-69;
In determining the new salary level in 2004, the Department reaffirmed our oft-repeated position that the salary level is the “best single test” of exempt status. 69 FR 22165. Consistent with prior rulemakings, the Department relied on actual earnings data and set the salary level near the lower end of the current range of salaries. Specifically, the Department used Current Population Survey (CPS) data that encompassed most salaried employees, and set the salary level to exclude roughly the bottom 20 percent of these salaried employees in each of the subpopulations: (1) The South and (2) the retail industry. Although several prior salary levels were based on salaries of approximately the lowest 10 percent of exempt salaried employees (the Kantor method), the Department stated that the change in methodology was warranted in part to account for the elimination of the short and long duties tests, and because the utilized data sample included nonexempt salaried employees, as opposed to only exempt salaried employees. However, as the Department acknowledged, the salary arrived at by this method was, in fact, equivalent to the salary derived from the Kantor method. 69 FR 22168. Based on the adopted methodology, the Department ultimately set the salary level for the new standard test at $455 per week.
In the 2004 Final Rule the Department also created a test for highly compensated employees, which provided a minimal duties test for workers within the highest compensation range. Reasoning that an especially high salary level negated the need for a probing duties analysis, the Department provided that employees who earned at least $100,000 in total annual compensation (of which at least $455 was paid weekly on a salary or fee basis) were covered by the exemption if they customarily and regularly spent time on one or more exempt duties, and were not engaged in manual work. 69 FR 22172.
In summary, the regulatory history reveals a common methodology used, with some variations, to determine appropriate salary levels. In almost every case, the Department examined a broad set of data on actual wages paid to salaried employees and then set the salary level at an amount slightly lower than might be indicated by the data. In 1940 and 1949, the Department looked to the average salary paid to the lowest level of exempt employees. Beginning in 1958, the Department set salary levels to exclude approximately the lowest-paid 10 percent of exempt salaried employees in low-wage regions, employment size groups, city size, and industry sectors, and we followed a similar methodology in 1963 and 1970. The levels were based on salaries in low-wage categories in order to protect the ability of employers in those areas and industries to utilize the exemptions and in order to mitigate the impact of higher-paid regions and sectors. In 1975, the Department increased the salary levels based on changes in the CPI, adjusting downward to eliminate any potential inflationary impact. 40 FR 7091 (“However, in order to eliminate any inflationary impact, the interim rates hereinafter specified are set at a level slightly below the rates based on the CPI.”). In 2004, the Department raised the salary level to $455 per week using earnings data of full-time salaried employees (both exempt and nonexempt) in the South and in the retail sector. As in the past, the use of lower-salary data sets was intended to accommodate those businesses for which salaries were generally lower due to geographic or industry-specific reasons. This most recent revision eliminated the short and long duties requirements in favor of a standard duties test for each exemption and a single salary level for executive, administrative, and professional employees.
Between 1938 and 1975, the Department increased the salary level every five to nine years. Following the 1975 rulemaking, however, 29 years passed before the salary level was again raised. In the 2004 Final Rule, the Department expressed a commitment to updating the salary levels “on a more regular basis,” particularly when “wage survey data and other policy concerns support such a change.” 69 FR 22171. Regular updates to the salary level test are imperative to ensuring that the salary level does not become obsolete over time, and providing predictability for employers and employees. Not only does the annualized current salary level of $23,660 a year not reflect increases in nationwide salary levels since 2004, but this figure, as noted above, is below the 2014 poverty threshold of $24,008 per year for a family of four.
The Department has long recognized that the line of demarcation between the salaries of white collar employees who are overtime-protected and those who are exempt EAP employees cannot be reduced to a standard formula. There will always be white collar overtime-eligible employees who are paid above the salary threshold, and employees performing EAP duties who are paid below the salary threshold. The salary level selected will inevitably affect the number of workers falling into each of these categories. As the Department has noted:
Inevitably, if the salary tests are to serve their purpose in a situation where salaries and wages have risen, some employees who have been classified as exempt under the present salary tests will no longer be within the exemption under any new tests adopted. Such employees include some whose status in management or the professions is questionable in view of their low salaries. Also included in the group who would not be exempt are employees whose exempt status, on the basis of their duties and responsibilities, is questionable.
Regulations of general applicability such as these must be drawn in general terms to apply to many thousands of different situations throughout the country. In view of the wide variation in their applicability the regulations cannot have the precision of a mathematical formula. The addition to the regulations of a salary requirement furnishes a completely objective and precise measure which is not subject to differences of opinion or variations in judgment. The usefulness of such a precise measure as an aid in drawing the line between exempt and nonexempt employees, particularly in borderline cases, seems . . . to be established beyond doubt.
A thorough review of the regulatory history of the seven previous increases to the salary levels reveals an essentially common methodology to determine the appropriate level, which has been refined periodically in order to better meet the salary level test's goals. In almost every case, the Department considered a broad set of salary data and then set the salary level at an amount slightly lower than the dividing line between exempt and nonexempt that might be indicated by the data, or otherwise set it “at points near the lower end of the current range of salaries for each of the [EAP] categories.” Kantor Report at 5. The exact line of demarcation set by the Department, however, has varied, and is guided by practical considerations that allow it to best serve the underlying principles of the exemption, that is, to differentiate exempt and nonexempt white collar employees.
With that objective in mind, the Department proposes to increase the minimum salary level required to qualify for the EAP exemptions from $455 per week to the 40th percentile of weekly earnings for full-time salaried workers ($921 per week).
After a careful review of the guidance articulated in the Department's previous part 541 rulemakings, and observing more than a decade of experience since the 2004 salary level test update, the Department has chosen to rely on the general methodology used in every previous update except 1975, with a few changes designed to simplify and improve the methodology as a tool for differentiating exempt and nonexempt workers. Specifically, in the interest of making the salary methodology simpler and more transparent, the Department is using nationwide CPS data on full-time salaried employees (both exempt and nonexempt) to set the proposed salary level. As discussed
This is not the first time the Department has modified the methodology, in part because the specific sources of the Department's data have changed over the years. In 1940, the Department considered salary surveys by government agencies, experience under the NIRA, state laws, and federal government salaries. Stein Report at 9, 20-21, 31-32. In 1949, the Department looked at salary data collected by state and federal agencies, including the BLS, and considered wages in small towns and low-wage industries, earnings of federal employees, average weekly earnings for exempt employees, wages of clerical employees, and starting salaries for college graduates. Weiss Report at 10, 13-20. In 1958, the Department used a data set that consisted of data collected during WHD investigations on actual salaries paid to employees who qualified for the exemption, grouped by geographic region, broad industry groups, number of employees, and size of city, and the Department supplemented the investigation data with BLS and Census data on the income increases of white collar and
The Department made some adjustments in 2004 to broaden the data set used, rather than continuing to rely upon WHD's limited enforcement data. The Department continued to carefully review actual salary levels, but did so by using the CPS as the data source. The CPS is a large, statistically robust survey jointly administered by the Census Bureau and BLS, and it is widely used and cited by industry analysts. It surveys 60,000 households a month, covering a nationally representative sample of workers, industries, and geographic areas.
In this proposed rule, the Department continues to adhere to the basic methodological principle of looking to actual salaries paid to employees, but as in the 2004 rulemaking, the Department has reexamined the precise contours of the sample to ensure that it is as transparent, accessible, and easily replicated as possible. By moving to an even more standardized sample than the one used in 2004—the proposed rule includes all full-time salaried employees nationwide, without exclusions—the Department seeks to further improve upon the methodology.
The proposed rule uses CPS data comprising all full-time salaried employees to determine the proposed salary levels, and the Department is not further restricting the sample. Inclusion of those employees previously excluded by the Department in 2004 achieves a more robust sample that is more representative of salary levels throughout the economy. For example, while teachers, physicians, lawyers, outside sales employees, and federal employees were excluded from the 2004 sample because they are not subject to the part 541 salary level test, they nonetheless are part of the universe of salaried employees and, as such, their salaries shed light on the salaries paid to employees performing exempt EAP duties. Furthermore, replicating this sample from the CPS public-use files would require no adjustments, making it easier for members of the public to access it and use it.
Using a broader sample does not diminish the soundness of the ultimate salary level derived. As the Department noted with respect to our change in the sample for the 2004 rulemaking, different “approaches are capable of reaching exactly the same endpoint [
In addition to looking to a less-restricted sample, this proposed rule also differs from the 2004 Final Rule in that the Department proposes to set the standard salary level at a higher percentile of the salary distribution and relies upon salaries nationwide rather than salaries in a limited geographic area or industry. The Department is also proposing to set the salary level as a percentile of weekly earnings of full-time salaried workers rather than a specific dollar amount because we believe a percentile serves as a better proxy for distinguishing between overtime-eligible and exempt white collar workers as it is rooted in the relative distribution of earnings which are linked to the type of work undertaken by salaried workers. The proposed standard salary level of the 40th percentile of weekly earnings for all full-time salaried employees is higher than the percentile used by the Department in either the 2004 Final Rule or the Kantor method. In the 2004 Final Rule, the Department set the required standard salary level at approximately the 20th percentile of salaried employees in the South region and in the retail industry, and in 1958, using the Kantor method which had both the long and short tests, the Department set the required salary level at approximately the 10th percentile of exempt EAP workers' salaries in low-wage regions, employment size groups, city size, and industries. As explained in the 2004 Final Rule, those two methods produced roughly equivalent salary levels when taking into account their differing samples.
However, the higher percentile proposed here is necessary to correct for the current pairing of a salary based on the lower salary long test with a duties test based on the less rigorous short duties test, and ensure that the proposed salary is consistent with the Department's longstanding goal of finding an appropriate line of demarcation between exempt and nonexempt employees.
The proposed percentile diverges from the percentiles adopted in both the 2004 Final Rule and the Kantor method because it more fully accounts for the Department's elimination of the long duties test. As discussed in detail below, the Department acknowledged in the 2004 Final Rule that it was necessary in setting the salary level to account for the shift to a single standard duties test that was equivalent to the less rigorous short duties test. The Department intended the change from the 10th to the 20th percentile to address, in part, the elimination of the long duties test. 69 FR 22167. The Department also intended this change, however, to account for the use of a different data set. 69 FR 22168. Based on further consideration of our analysis of the 2004 salary, the Department has now concluded that the $455 salary level did not adequately account for both the shift to a sample including all salaried workers covered by the part 541 regulations, rather than just EAP exempt workers,
This is the first time that the Department has needed to correct for such a mismatch between the existing salary level and the applicable duties test. Under the old short test/long test structure, the Department routinely focused on setting a long test salary level that would minimize the number of employees performing bona fide EAP duties deemed overtime-eligible based on their salaries (keeping the number of such excluded employees to about 10 percent of those who qualified for exemption based upon their duties). This approach was possible because the long duties test included a limit on the amount of nonexempt work that could be performed and thus provided an adequate safeguard against the exemption of white collar workers who should be overtime-protected but who exceeded the salary level. The creation of a single standard test based on the less rigorous short duties test caused new uncertainty as to what salary level is sufficient to ensure that employees intended to be overtime-protected are not subject to inappropriate classification as exempt, while minimizing the number of employees disqualified from the exemption even though their primary duty is EAP exempt work.
A brief history of the long duties test illustrates the importance of offsetting its elimination with a corresponding increase in the salary level. The so-called long test was the sole test for all employees until 1949. The Department devised a separate short test in 1949 to supplement the long test with a short-cut, more permissive, method for determining exempt status for only those employees meeting a higher salary requirement. For example, the long duties test in effect from 1949 to 2004 for administrative employees required that an exempt employee: (1) Have a primary duty consisting of the performance of office or non-manual work directly related to management policies or general business operations of the employer or the employer's customers; (2) customarily and regularly exercise discretion and independent judgment; (3) regularly and directly assist a proprietor or a bona fide executive or administrative employee, or perform under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or execute under only general supervision special assignments and tasks; and (4) not devote more than 20 percent (or 40 percent in a retail or service establishment) of hours worked in the workweek to activities that are not directly and closely related to the performance of the work described above. 29 CFR 541.2 (2003). By contrast, the short duties test in effect during the 1949 to 2004 period provided that an administrative employee paid at or above the short test salary level qualified for exemption if the employee's primary duty consisted of the performance of office or non-manual work directly related to management policies or general business operations of the employer or the employer's customers which includes work requiring the exercise of discretion and independent judgment.
Between 1949 and 2004, employers were only able to claim the exemption based on the less-stringent short duties test for employees who were paid a specified higher salary level. The Department reasoned that, “in the categories of employees under consideration the higher the salaries paid the more likely the employees are to meet all the requirements for exemption, and the less productive are the hours of inspection time spent in analysis of the duties performed.” Weiss Report at 22. The original, more thorough duties test became known as the long test, and remained for decades
Apart from the differing salary requirements, the most significant difference between the short test and the long test was the long test's limit on the amount of time an exempt employee could spend on nonexempt duties while allowing the employer to claim the exemption. For all three EAP exemptions, the long duties test imposed a limit on nonexempt duties. A bright-line, 20 percent cap on nonexempt work was instituted in 1940 for executive and professional employees, and in 1949 for administrative employees.
In 2004 the Department discontinued the use of the long duties test because it had effectively become dormant due to the passage of time since the required salary level had last been raised in 1975, and because the Department believed that reinstituting it would be administratively burdensome. Instead the Department essentially adopted the short duties tests as the standard duties tests, stating that the new standard duties tests “are substantially similar to the current short duties tests,” 69 FR 22214, and that “it is impossible to quantitatively estimate the number of exempt workers resulting from the
Thus, although the Department had identified the need to adjust the required salary percentile to account for the elimination of the long duties test, the Department effectively paired the short test's less stringent duties requirements with the lower salary level historically associated with the long duties test.
While the role of the salary level test as an initial test for exemption increased in 2004, the Department has always recognized the impact of the threshold on overtime-eligible white collar employees. In the Stein Report, the Department looked at the impact of various salary thresholds on overtime-eligible bookkeepers, noting that approximately 50 percent of surveyed bookkeepers earned more than the then applicable $30 weekly salary threshold, while that number decreased to approximately 8 percent at the $50 dollar level at which the applicable salary level was ultimately set. Stein Report at 32. The Department went on to note that evidence that a salary of $50 “would not also exclude persons who properly deserve the exemption is illustrated by the fact that almost 50 percent of the accountants and auditors [many of whom are properly considered administrative or professional] earn at least $50 a week.”
The Department's 2004 pairing of the lower long test salary level with the short test duties requirements also runs contrary to the Department's rationale for the short duties test that “the higher the salaries paid the more likely the employees are to meet all the requirements for exemption,” and at “the higher salary levels in such classes of employment, the employees have almost invariably been found to meet all
The importance of adjusting the salary level threshold upward to account for the lack of a long duties test is illustrated by the Department's
The continued extensive litigation regarding employees for whom employers assert the EAP exemption also demonstrates that using the 20th percentile of salaried employees in the South and in retail as the threshold has not met the Department's goals as stated in the 2004 Final Rule of simplifying enforcement and reducing litigation.
As discussed previously, the salary component of the EAP test for exemption has always worked hand-in-hand with the duties test in order to simplify the application of the exemption. At a lower salary level, more overtime-eligible employees will exceed the salary threshold, and a more rigorous duties test would be required to ensure that they are not classified as falling within an EAP exemption and therefore denied overtime pay. At a higher salary level, more employees performing bona fide EAP duties will become entitled to overtime because they are paid a salary below the salary threshold. Setting the salary threshold too low reduces the risk that workers who pass the duties test become entitled to overtime protection, but does so at the cost of increasing the number of overtime-eligible employees exceeding the salary level who are subject to the duties test and possible misclassification. In contrast, setting the salary level too high reduces the number of overtime-protected employees subject to the duties test and eliminates their risk of misclassification, but at the cost of requiring overtime protection for workers who pass the duties test. With those concerns in mind, the Department has reviewed a variety of data sources to ascertain the appropriate amount to increase the required salary level in order to ensure that it works effectively with the standard duties tests to distinguish between overtime-eligible white collar employees and employees performing bona fide EAP duties.
In the 1949, 1958, 1963, 1970 and 1975 updates to the salary level, all of which featured a long test/short test structure, the short test salary level was set at approximately 130 to 180 percent of the long duties test salary level to adequately establish a salary level that obviated the need to engage in a more probing duties analysis. To remedy the Department's error from 2004 of pairing the lower long test salary with the less stringent short test duties, the Department is setting the salary level within the range of the historical short test salary ratio so that it will work appropriately with the current standard duties test. The Department recognizes that the proposed salary amount is only about 140 percent of the long duties test salary level under the Kantor method, and thus may be viewed as slightly out of line with the historic average of approximately 150 percent of the long test at which the short-test salary has
This salary level also accounts for the fact that the salary threshold will apply to all employees nationwide, including employees who work in low-wage regions and low-wage industries. In this rulemaking, we are proposing a salary level of the 40th percentile of the weekly wages of all full-time salaried workers nationwide. The Department believes that setting the salary level based on nationwide salary data is consistent with the goals of modernizing and simplifying the regulations. Using nationwide salary data will also produce a salary level appropriate to both low- and high-wage areas and industries. While the proposed salary level is lower than the average historical short test salary ratio under the Kantor method, a higher percentile more in line with the historical short duties test could have a negative impact on the ability of employers in low-wage regions and industries to claim the EAP exemptions for employees who have bona fide executive, administrative, or professional duties as their primary duty, particularly in the absence of a long duties test as an alternative. As will be discussed in section VII.D., the Department believes this proposal is appropriate in low-wage areas and low-wage industries.
The proposal also is consistent with the Department's practice in prior rulemakings, including the 2004 Final Rule, of establishing a national salary level, rather than multiple levels for different regions or industries. As stated in the 2004 Final Rule, the Department does not believe that having different salary levels for different areas of the country or for different kinds or sizes of businesses “is administratively feasible because of the large number of different salary levels this would require.” 69 FR 22171. The Department came to the same conclusion in 1940 when the Department rejected suggestions for varying salary levels, stating that it would present serious difficulties in enforcement, and that the FLSA is a national law that cannot take
Setting the salary level at the 40th percentile of full-time salaried workers places it far enough above the minimum wage to provide an effective means of screening out workers who should be overtime protected. As the Stein Report noted, “[i]t must be assumed that [executive employees] enjoy compensatory privileges and this assumption will clearly fail if they are not paid a salary substantially higher than the wages guaranteed as a mere minimum under section 6 of the act.” Stein Report at 19. Furthermore, the failure to require a salary level of substantially more than the minimum wage would “invite evasion of section 6 and 7 for large numbers of workers to whom the wage-and-hour provisions should apply.”
Moreover, the median earnings for all salaried workers provides further support for the proposed salary level. The Weiss Report observed approvingly that in the Stein Report, the “dividing line [between subprofessional and professional employees was] based on the midpoint salaries” of federal government service classifications of administrative and professional employees, and thus suggested that a midpoint value of the aggregated earnings of such workers is an appropriate benchmark for the salary level. Weiss Report at 16-17 (referencing Stein Report at 43). In 1947, 1962, 1969, and 2003, data showing median increases in earnings for all employees in various industries were generated and considered instructive to a determination of an appropriate salary level.
The Department's proposed salary level is further supported by its increased ability to distinguish overtime-eligible employees. The primary objective of the salary level test has always been the drawing of a line separating overtime-eligible white collar salaried employees from employees who may be bona fide EAP employees. At the current salary threshold, there are 11.6 million salaried white collar workers who are overtime protected but are paid at or above the $455 salary level and therefore must be subjected to a duties analysis to determine their overtime eligibility. At the proposed salary level, the number of overtime-eligible salaried white collar employees paid at or above the salary level would be reduced by more than 50 percent. Thus a salary level at the 40th percentile of weekly earnings for salaried workers would be more efficient at distinguishing overtime-eligible employees.
While the Department has largely followed historical precedent in determining the proposed salary threshold by basing it on the level of salaries that employers currently pay and making only modest changes to our time-tested model, the Department did consider other approaches to determine the appropriate salary test level.
The Department has thus recognized that measures of inflation and losses in purchasing power provide helpful background for setting the salary level because they indicate how far the levels erode between updates and underscore the need for an update. They can also point very generally to ranges in which new salary levels might be considered. Indeed, with respect to the current rulemaking, looking at inflation provides added support for the proposed salary level. Updating the 2004 standard salary level for inflation based on the Consumer Price Index for all urban consumers (CPI-U) would result in a salary level of $561 per week (approximately the 15th percentile of weekly earnings for all full-time salaried workers). Updating the 1975 short test salary level with the CPI-U would result in a salary level of $1,083 per week (approximately the 50th percentile of weekly earnings for all full-time salaried workers). Considering that the standard test most closely approximates the historic short duties test, looking at an inflation adjustment would support a higher salary level than that being proposed. However, inflation has been used as a method for setting the precise salary level only in the breach, as in 1975 when practical considerations prevented a more complete analysis of actual salaries. The Department continues to believe that looking to the actual earnings of workers provides the best evidence of the rise in prevailing salary levels and, thus, constitutes the best source for setting the proposed salary requirement. This viewpoint reflects guidance from previous updates, including the Weiss Report, where the Department rejected suggestions to base the salary level on the change in the cost of living. Weiss Report at 12 (“The change in the cost of living which was urged by several witnesses as a basis for determining the appropriate levels is, in
The Department also considered setting the salary level using the 2004 method (20th percentile of full-time salaried employees in the South and retail) or Kantor method (10th percentile of likely exempt employees in low-wage regions, employment size groups, city size, and industries). While these methods produced similar salaries in 2004 when the Department last revised the salary levels, over time they have diverged significantly and today would result in salaries of $577 and $657 per week, respectively (approximately the 15th and 20th percentiles of weekly earnings for all full-time salaried workers). Because the Kantor method was based on the long test duties requirements (which limited the amount of nonexempt work that EAP employees could perform), the Department concluded that the resulting salary level was inappropriately low when paired with the standard duties test (which was based on the short test). For similar reasons the Department concluded that the 2004 method (which paired the lower long test salary level with a standard duties test based on the short duties test) also resulted in an inappropriately low salary level.
The Department further considered setting the standard salary level equal to the median earnings for all full-time wage and salaried workers combined (
The Department also considered updating the Kantor long test salary level of $657 to a short test level, reflecting the historical relationship of the short test to the long test which has ranged from approximately 130 percent to 180 percent of the long test level and averaged approximately 150 percent. This would result in a salary level between $854 and $1,183 per week, with the historical average yielding a salary level of $979 per week. The end points of the historical range are approximately the 35th and 55th percentiles of weekly earnings for all full-time salaried workers, respectively. While the Department thought that salaries throughout this historical salary range would work appropriately with the standard duties test, we were concerned that the top end of the resulting range would be too high for low-wage regions and industries, particularly because employers no longer have a long duties test to fall back on for purposes of exempting lower-salaried workers performing bona fide EAP duties.
Finally, the Department considered setting the standard salary equal to the 50th percentile, or median, of weekly earnings for all full-time salaried workers. This method would be similar to the proposed method but would use a higher percentile. Using the 50th percentile would result in a standard salary level of $1,065 per week. The Department believes that the salary level generated with this method would be too high for low-wage regions and industries, particularly in light of the absence of a lower salary long duties test.
When measured against inflation or previous methods of setting the salary levels (standard, short, and long), the proposed salary level is within the range that was the historical norm until the 2004 update. For instance, this level falls well below the 1975 inflation-adjusted short test level ($1,083 per week) and is lower than the salary level comparable to the average historical ratio between the short and long test salary ($979 per week). But the proposed salary exceeds the inflation-adjusted 2004 salary level and the levels suggested by the Kantor and 2004 methods (all of which were based on the long test salary). While, for the reasons stated herein, none of these alternative measures was used as a methodology to establish the proposed salary test level, they confirm that the 40th percentile of weekly earnings of all full-time salaried employees ($921) proposed by the Department is in line with previous updates.
Therefore, for the reasons stated above, the Department proposes to increase the standard salary level to qualify for exemption from the FLSA minimum wage and overtime requirements as an executive, administrative, or professional employee from $455 a week to the weekly earnings of the 40th percentile of full-time salaried employees ($921 a week). The Department reached the proposed salary level after considering available data on actual salary levels currently being paid in the economy. The Department believes that, in view of the regulatory history and all other relevant considerations, using the earnings of all full-time salaried workers (exempt and nonexempt) as the basis for setting the proposed salary level is appropriate here, and setting the salary level at the 40th percentile establishes an appropriate dividing line helping differentiate between white collar workers who are overtime-eligible and those who are not.
The Department invites comments on this proposed salary level and on any alternative salary level amounts, or methodologies for determining the salary level, that appropriately distinguish between overtime-eligible white collar workers and bona fide EAP workers. In addition, the Department invites comments on the effectiveness of the proposed salary level to
The Department has historically applied a special salary level test to employees in American Samoa because minimum wage rates in that jurisdiction have remained lower than the federal minimum wage.
Consistent with our practice since 1975, in the 2004 Final Rule the Department set the special salary level test for employees in American Samoa at approximately 84 percent of the standard salary test level—which computed to $380 per week.
The Department invites comments on this special salary level proposal.
The Department currently permits employers to classify as exempt employees in the motion picture producing industry who are paid at a base rate of at least $695 per week (or a proportionate amount based on the number of days worked), so long as they meet the duties tests for the EAP exemptions. § 541.709. This exception from the “salary basis” requirement was created to address the “peculiar employment conditions existing in the [motion picture] industry” (18 FR 2881 (May 19, 1953)), and applies, for example, when a motion picture industry employee works less than a full workweek and is paid a daily base rate that would yield at least $695 if six days were worked.
In the 2004 Final Rule the Department increased the base rate for motion picture industry employees by the same percentage that the salary level tests, on average, increased.
The Department invites comments on this base rate proposal.
The Department has consistently assessed compliance with the salary level test by looking only at actual salary or fee payments made to employees and, with the exception of the highly compensated test, has not included bonus payments of any kind in this calculation. During stakeholder listening sessions several business representatives asked the Department to include nondiscretionary bonuses and incentive payments as a component of any revised salary level requirement. These stakeholders conveyed that nondiscretionary bonuses and incentive payments are an important component of employee compensation in many industries and stated that such compensation might be curtailed if the standard salary level was increased and employers had to shift compensation from bonuses to salary to satisfy the new standard salary level. They asserted that such a change would have a negative impact on the workplace and would undermine managers' sense of “ownership” in their organizations. A few employer stakeholders also raised the possibility of counting fringe benefits and/or commissions toward the salary level requirement.
The Department's longstanding position has been to allow employers to pay additional compensation in the form of bonuses in addition to the required salary. § 541.604(a). However, in recognition of the increased role bonuses play in many compensation systems, and as part of the Department's efforts in this rulemaking to modernize these regulations, the Department is now considering whether to also permit nondiscretionary bonuses and incentive payments to count toward a portion of the standard salary level test for the executive, administrative, and professional exemptions.
The Department is also considering how to include nondiscretionary bonuses and incentive payments as part of the salary level test, if such a change is implemented. Compliance with the HCE exemption's $100,000 total compensation requirement is assessed annually, and employers are permitted to make a “catch-up” payment at or shortly after the end of the year that counts toward this amount. Employees for whom the HCE exemption is claimed must receive the full standard salary amount, currently $455, weekly on a salary or fee basis.
With these parameters in mind, the Department seeks comments on whether it should modify the standard exemption for executive, administrative, and professional employees to permit nondiscretionary bonuses and incentive payments to count toward partial satisfaction of the salary level test. The Department seeks information on what industries commonly have pay arrangements that include nondiscretionary bonuses and incentive payments, what types of employees typically earn nondiscretionary bonuses and incentive payments, the types of nondiscretionary compensation employees receive, and to what extent including nondiscretionary bonuses and incentive payments as part of the salary level would advance or hinder that test's ability to serve as a dividing line between exempt and nonexempt employees. The Department also seeks comments on whether payment on a monthly basis is the appropriate interval for such nondiscretionary compensation that will be credited toward the weekly salary requirement, and whether 10 percent is the appropriate limit on the amount of the salary requirement that can be satisfied by nondiscretionary bonuses and incentive payments (with the remaining 90 percent paid on a salary or fee basis in accordance with the regulations).
Consistent with the rule for highly compensated employees (which counts nondiscretionary bonuses toward the total annual compensation requirement), the Department is not considering expanding the salary level test calculation to include discretionary bonuses. The Department is also not considering changing the exclusion of board, lodging, or other facilities from the salary calculation, a position that it has held consistently since the salary requirement was first adopted. Similarly, the Department also declines to consider including in the salary requirement payments for medical, disability, or life insurance, or contributions to retirement plans or other fringe benefits.
In the 2004 Final Rule, the Department created a new highly compensated exemption for EAP employees. Section 541.601(a) provides that such employees are exempt if they earn at least $100,000 in total annual compensation and customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee. Section 541.601(b)(1) states that employees must receive at least $455 per week on a salary or fee basis, while the remainder of the total annual compensation may include commissions, nondiscretionary bonuses, and other nondiscretionary compensation. It also clarifies that total annual compensation does not include board, lodging, and other facilities, and does not include payments for medical insurance, life insurance, retirement plans, or other fringe benefits. Pursuant to § 541.601(b)(2), an employer is permitted to make a final payment (catch-up pay) during the final pay period or within one month after the end of the 52-week period to bring an employee's compensation up to the required level. If an employee does not work for a full year, § 541.601(b)(3) permits an employer to pay a pro rata portion of the required annual compensation, based upon the number of weeks of employment (and one final payment may be made, as under paragraph (b)(2), within one month for employees who leave employment during the year).
In the 2003 NPRM, where the HCE test was first introduced, the Department had proposed to require total annual compensation of at least $65,000. The Department stated that, “[t]o determine an appropriate salary level for highly compensated employees, the Department looked to points near the higher end of the current range of salaries and found that the top 20 percent of all salaried employees earned above $65,000 annually. This level is consistent with setting the proposed standard test salary level at the bottom 20 percent of salaried employees.” 68 FR 15571. However, in the 2004 Final Rule, the Department recognized that the required compensation level had to “be set high enough to avoid the unintended exemption of large numbers of employees—such as secretaries in New York City or Los Angeles—who clearly are outside the scope of the exemptions and are entitled to the FLSA's minimum wage and overtime pay provisions.” 69 FR 22174. Therefore, the Department increased the required annual compensation to $100,000, to “address commenters' concerns regarding the associated duties test, the possibility that workers in high-wage regions and industries could inappropriately lose overtime protection, and the effect of future inflation.”
The Department set the level at $100,000 because our experience demonstrated that
The Department continues to believe that an HCE test for exemption is an appropriate means of testing whether highly compensated employees qualify as bona fide executive, administrative, or professional employees. In the 2004 Final Rule, the Department concluded that the requirement for $100,000 in total annual compensation struck the
Therefore, the Department proposes to increase the total annual compensation required by § 541.601 in order to ensure that it remains a meaningful and appropriate standard when matched with the minimal duties test. Just as with the standard salary level test, it is imperative to increase the compensation level that was established more than ten years ago to ensure that it continues to allow for the exemption of only bona fide exempt employees. Over the past decade, the percentage of salaried employees who earn more than $100,000 annually has increased substantially to approximately 17 percent of full-time salaried workers. Accordingly, the Department proposes to increase the total annual compensation requirement to the annualized weekly earnings of the 90th percentile of all full-time salaried workers ($122,148). As discussed earlier with respect to the standard salary level, the Department is proposing to set the annual compensation requirement as the annualized value of a percentile of weekly earnings of full-time salaried workers rather than a specific dollar amount because we believe it serves as a better proxy for distinguishing those white collar workers who meet the requirements of the HCE exemption. Consistent with the current regulations, the Department also proposes that at least the standard salary requirement must be paid on a salary or fee basis.
The Department believes that the 90th percentile of full-time salaried workers is appropriate because it brings the required compensation level more in line with the level established in 2004; therefore, it will ensure that, as in 2004, the HCE exemption covers only those employees who are at the very top of today's economic ladder and minimizes “the possibility that workers in high-wage regions and industries could inappropriately lose overtime protection.” 69 FR 22175. The proposed $122,148 requirement also generally corresponds to the increase that would result from updating the $100,000 level by the amount of the increase in the CPI-U between 2004 and 2013 (the CPI-U increase would result in a compensation level of approximately $123,000). The Department invites comments on whether the 90th percentile is the correct HCE total annual compensation level and whether the Department should make any other changes to the requirements for the use of the HCE exemption.
As previously discussed, the salary level test plays a crucial role in ensuring that the EAP exemptions effectively differentiate between exempt and overtime-protected workers. But even a well-calibrated salary level that is fixed becomes obsolete as wages for nonexempt workers increase over time. Since the EAP regulations were first issued in 1938, the Department has increased the salary level only seven times—in 1940, 1949, 1958, 1963, 1970, 1975, and 2004. The lapses between rulemakings have resulted in salary levels that are based on outdated salary data and thus ill-equipped to help employers assess which employees are unlikely to meet the duties tests for the exemptions. During stakeholder listening sessions several employee advocates called on the Department to index the EAP salary level requirement to ensure that the revised salary test set in this rulemaking does not suffer the same fate as the salary tests in the Department's prior rulemakings.
After careful consideration of the history of EAP salary increases and the impact on the regulated community of routine updating of the salary test, the Department is proposing to modernize the EAP exemptions by establishing a mechanism for automatically updating the standard salary test, as well as the total annual compensation requirement for highly compensated employees. The addition of automatic updating will ensure that the salary test level is based on the best available data (and thus remains a meaningful, bright-line test), produce more predictable and incremental changes in the salary required for the EAP exemptions, and therefore provide certainty to employers, and promote government efficiency by removing the need to continually revisit this issue through resource-intensive notice and comment rulemaking. The Department also proposes to update annually the special salary level test for employees in American Samoa and the base rate test for motion picture industry employees, as described
The Department is considering two alternative methodologies for annually updating the salary and compensation thresholds. One method would update the thresholds based on a fixed percentile of earnings for full-time salaried workers. The other method would update the thresholds based on changes in the CPI-U. Both methods are described in detail below and the Department seeks comments on which methodology would be the most appropriate basis for annual updates to the salary and compensation thresholds.
The Department has only directly commented twice on the subject of automatically updating the salary level test for the EAP exemptions. In the 1970 rulemaking, the Department stated that a comment “propos[ing] to institute a provision calling for an annual review and adjustment of the salary tests . . . appears to have some merit, particularly since past practice has indicated that approximately 7 years elapse between amendment of the salary level requirements.” 35 FR 884. Despite recognizing the potential value of this approach, the Department ultimately determined that “such a proposal will require further study.”
The lack of Congressional guidance either supporting or prohibiting automatic updating is unsurprising given the origin and evolution of the salary level test, and does not foreclose the Department's proposal. Congress did not specifically set forth precise criteria, such as a salary level test, for defining the EAP exemptions, but instead delegated that task to the Secretary. The Department established the first salary level tests by regulation in 1938, using our delegated authority to define and delimit the EAP exemptions.
The addition of an automatic updating mechanism will ensure that the standard salary level and the HCE total annual compensation requirement remain meaningful tests for distinguishing between bona fide EAP workers who are not entitled to overtime and overtime-protected white collar workers. Experience has shown that the salary level test is only a strong measure of exempt status if it is up to date. Left unchanged, the test becomes substantially less effective as wages for overtime-protected workers increase over time.
Automatically updating the salary level will ensure that it continues to be a reliable proxy for identifying overtime-eligible white collar employees, thus reducing one source of uncertainty for employers and employees. Regular updates to the salary level will also prevent the more drastic and unpredictable salary level increases that have resulted from the differing time periods between rulemakings. For example, between 1940 and 2004 the time between salary level updates ranged from five to 29 years. In part as a result of these breaks, long test salary level increases between 1940 and 1975 ranged from roughly five to 50 percent, and the 2004 standard salary level test represented an average 180 percent increase from the 1975 long test salary levels. Automatically updating the standard salary level test will ensure that future salary level increases occur at regular intervals and at more even increments.
The Department recognizes that instituting a mechanism for automatically updating the salary level is a change to the part 541 regulations. As explained in the 2004 Final Rule, the Department's reluctance to institute automatic updating was tied in part to our preference for issuing new salary level regulations when new wage survey data necessitated such action. 69 FR 22171. However, a review of salary test history shows that the Department has updated the salary level only once since 1975, and has gone nine or more years between updates on several occasions. This history underscores the difficulty in maintaining an up-to-date and effective salary level test, despite the Department's best intentions. Competing regulatory priorities, overall agency workload, and the time-intensive nature of notice and comment rulemaking have all contributed to the Department's difficulty in updating the salary level test as frequently as necessary to reflect changes in workers' salaries. These impediments are exacerbated because unlike most regulations, which can remain both unchanged and forceful for many years if not decades, in order for the salary level test to be effective, frequent updates are imperative to keep pace with changing employee salary levels. Confronted with this regulatory landscape, the Department believes automatic updating is the most viable and efficient way to ensure that the standard salary level test and the HCE total annual compensation requirement remain current and can serve their intended function of helping differentiate between white collar workers who are overtime-eligible and those who are not.
The Department proposes to insert a new provision in the regulations in the Final Rule that will establish a set methodology for recalculating the required salary level annually. The Department is not proposing specific regulatory text because it has not chosen the updating methodology and is instead seeking comments on two alternatives—using a fixed percentile of wage earnings or using the CPI-U. In the 1970 rulemaking, the Department recognized the potential merit of automatically updating the salary level test, but determined that such action would “require further study.” 35 FR 884. The Department has now examined a range of possible updating methodologies and concluded, for the reasons stated herein, that either maintaining the standard salary level at the 40th percentile of weekly wages of all full-time salaried workers or
1. Fixed Percentile Approach to Automatically Updating the Standard Salary Level
The “fixed percentile” approach would permit the Department to reset the salary level test by applying the same methodology proposed in this rulemaking to update the standard salary level. As explained at length in section V.A. of this preamble, the proposed salary level test methodology closely tracks prior rulemakings, with a few adjustments drawn from the Department's long history of administering the part 541 regulations. The chosen population—all full-time salaried workers—represents the broadest pool of workers who could potentially be denied overtime pay as bona fide EAP workers. The BLS data for this pool is readily available and transparent (all full-time salaried workers in the CPS data set are included), and at the 40th percentile level is representative of those employees who may be bona fide executive, administrative or professional workers. The Department has proposed raising the salary percentile to the 40th percentile in part to reflect our conclusion that the 20th percentile figure used in the 2004 Final Rule did not fully account for the elimination of the more stringent long duties test; by updating the long—rather than the short—test salary level, and effectively pairing it with the less rigorous short duties test, we inadvertently made the exemptions over-inclusive and increased the risk of misclassification. The proposed salary level percentile reflects the Department's best estimate of the appropriate line of demarcation between exempt and nonexempt workers, and maintaining the salary level at the 40th percentile by updating it annually would ensure that the salary level test continues to fulfill its intended purpose. Further, because annual salary level updates would be based on actual salaries that employers are currently paying, it is consistent with the methodology the Department has used in prior rulemakings when setting the required salary level.
Other factors make the fixed percentile approach well-suited for automatic updating. For example, on a quarterly basis, BLS publishes a table of deciles of the weekly wages of full-time salaried workers, calculated using CPS data,
The Department could also automatically update the salary level test based on changes to the CPI-U—a commonly used economic indicator for measuring inflation. The CPI-U calculates inflation by measuring the average change over time in the prices paid by urban consumers for a set basket of consumer goods and services.
The Department has generally discussed inflation adjustments in the context of determining how to raise the salary level from a prior rulemaking, not as a method for ensuring the salary level's ongoing effectiveness. The Department has expressed concern in prior part 541 rulemakings with setting a new salary level test by using inflationary indicators to update the prior salary level. These sentiments were first raised in 1949 in the Weiss Report, which considered and rejected proposals to use cost-of-living increases to update the 1940 salary levels. Weiss Report at 12. More recently, in the 2003 NPRM the Department considered whether to calculate the new salary level by adjusting the 1975 salary levels for inflation, and expressed concern that the 1975 figure was a potentially inaccurate benchmark and that an inflation-based adjustment would not account for changes in working conditions over the preceding 28 years.
Although the Department acknowledges these prior concerns regarding whether the CPI-U will accurately track the actual salaries and incomes, we believe that using the CPI-U to update the proposed salary level, which will be set using current data on wages being paid to full-time salaried workers, would ensure that the salary level remains a useful tool for distinguishing between overtime-eligible white collar employees and those who may be exempt. Many of the concerns raised in prior rulemakings are less troublesome here because the Department is only proposing to use the CPI-U to automatically update the proposed salary level going forward; it is not being used to update the salary from its 2004 level. The related concerns about using an outdated salary level as a baseline for inflation-based adjustments, and the inability of inflation-based indicators to account for changes in working conditions, are not cause for concern in the context of
The Department expressed concern in the 2003 NPRM about the effect that adjusting the 1975 salary levels for inflation “would have on certain segments of industry and geographic areas of the county, particularly in the retail industry and in the South, which tend to pay lower salaries.” 68 FR 15570. In the 2004 Final Rule the Department explained that these concerns applied “equally when considering automatic increases to the salary levels” and declined to adopt commenter requests to institute a mechanism for automatically updating the salary level. 69 FR 22171-72.
The Department continues to believe that any automatic updating mechanism must adequately protect low-wage industries and geographic areas. However, two related factors have led the Department to conclude that updating the salary level using the CPI-U would not harm vulnerable business sectors or have other negative economic effects. First, the Department's proposal to set the salary level test at the 40th percentile of the salaries of all full-time salaried workers already accounts for and protects low-wage industries and geographic areas. In choosing to set the salary level as a percentile of full-time salaried workers, the Department set the salary level at the 40th percentile rather than a higher percentile to account for low-wage regions and industries. Second, the Department has analyzed the historical relationship between the 40th percentile benchmark and the CPI-U, and determined that the data does not substantiate the Department's past concerns about the likely effects on low-wage regions and industries of updating the salary level test using an inflation-based updating mechanism.
As discussed in section VII.E., the CPI-U has largely tracked the earnings rates of the 40th percentile of weekly wages of full-time salaried workers. The two updating methodologies are thus expected to produce roughly equivalent salary growth in the future; or, put another way, past evidence suggests that updating the salary level using the CPI-U would result in a comparable salary level to updating using the fixed percentile approach. Since the 40th percentile figure adequately protects low-wage industries and areas, it follows that CPI-U based updating would do likewise, while also maintaining the appropriate line of demarcation between white collar workers who are overtime-eligible and those who are not. This congruence also supports the conclusion that updating the salary level using the CPI-U, as opposed to actual salary and income data, would not produce an appreciably different result.
Automatically updating the salary level test using the CPI-U would provide a familiar and well understood method for updating the salary level and ensure that the real value of the salary level does not degrade over time. The CPI-U is commonly applied as an automatic updating mechanism. For example, the Internal Revenue Service uses the CPI-U to adjust personal tax brackets, 26 U.S.C. 1(f)(3)-(5), and multiple federal agencies use the CPI-U to determine eligibility for a wide range of government programs.
The Department seeks comments on both methods to update the standard salary level test—the fixed percentile approach and the CPI-U—including comments on whether one approach is better suited to maintaining the effectiveness of the salary level test. Additionally, the Department seeks comments on whether to schedule updates based on the effective date of the Final Rule, on January 1, or some other specified date. The Department also seeks comments on how often automatic updates to the salary level test should occur. In order to ensure that the salary level tests are based on the best available data, the Department proposes to update the salary level annually, which will produce predictable and incremental changes. However, we seek comments identifying whether a different updating period would be more appropriate.
As discussed in subpart V.B., the Department has historically set a special salary test for employees in American Samoa because minimum wage rates there are lower than the federal minimum wage. This gap is likely to remain for the foreseeable future since American Samoa's industry-specific minimum wage rates are scheduled to increase only every three years (Sec. 4, Pub. L. 112-149), and as a result the industry with the highest minimum wage will not equal the current federal minimum wage ($7.25 an hour) until September 30, 2027.
Consistent with the 2004 Final Rule, the Department is proposing to set the special salary level for employees in American Samoa at 84 percent of the proposed standard salary level ($774 per week). In future years, the Department proposes to automatically update the special salary level test in American Samoa with the same frequency as the standard salary level and to maintain the 84 percent ratio. The Department will publish the updated American Samoa special salary level and standard salary level simultaneously. Once any industry-specific minimum wage rate in American Samoa equals the federal minimum wage, the special salary level will no longer be operative and the standard salary level test will apply in full to all EAP employees in all industries in American Samoa. The Department seeks comments on this proposal.
As discussed in subpart V.B., the Department is proposing to increase the base rate for the motion picture industry exception from the salary basis requirement with the same frequency and by the same percentage as the proposed increase to the standard salary level test. This updating method will ensure that the base rate remains a meaningful test for helping determine exempt status for motion picture industry employees who work partial workweeks and are paid a daily rate, rather than a weekly salary. The Department will publish the updated base rate and the standard salary test level simultaneously. The Department seeks comments on this proposal.
The Department is also proposing to automatically update the total annual compensation requirement for highly compensated employees. This change is needed to ensure that only those who are “at the very top of [the] economic ladder” satisfy the total annual compensation requirement and are thus subject to a minimal duties test analysis. 69 FR 22174. Leaving the total annual compensation requirement at a fixed dollar amount would risk exempting increasingly large numbers of employees, thus diluting the effectiveness of the HCE total annual compensation test and allowing exemption of increasing numbers of employees who do not meet the standard duties test.
The Department proposes to update the HCE total annual compensation requirement with the same method and frequency used to update the standard salary level test—either by maintaining the required total annual compensation level at the annualized value of the 90th percentile of the weekly wages of all full-time salaried workers or by updating the total annual compensation requirement based on changes in the CPI-U. As discussed with regard to the standard salary level, either method for updating the required compensation would preserve what the Department has identified as the appropriate dividing line for the use of the minimal duties test. The Department also proposes to update the portion of the total annual compensation that employers are required to pay on a salary basis (proposed to be $921 per week) so that it continues to mirror the standard salary requirement as it is updated. The Department seeks comments on both methods of updating the HCE total annual compensation requirement, including comments on whether one method is better suited to maintaining the effectiveness of the compensation test.
While the Department has long viewed the salary level test as an initial bright-line test for white collar overtime eligibility, we have always recognized the salary level test works in tandem with the duties test. As previously explained, the part 541 regulations set forth three criteria that, in most instances, must be met for an employee to be excluded from the Act's minimum wage and overtime pay protections. Employees must (1) be paid on a salary basis, (2) be paid at least a fixed minimum salary per week, and (3) meet certain requirements as to their job duties.
The duties test has always worked in conjunction with the salary requirement to correctly identify exempt EAP employees. The Department has often noted that as salary levels rise a less robust examination of the duties is needed. This inverse correlation between the salary level and the need for an extensive duties analysis was the basis of the historical short and long duties tests. While the salary provides an initial bright-line test for EAP exemption, application of a duties test is imperative to ensure that overtime-eligible employees are not swept into the exemption. While the contours of the duties tests have evolved over time, the Department has steadfastly maintained that meeting a duties test remains a core requirement for the exemptions.
During the stakeholder listening sessions held in advance of this proposed rule, the Department heard from employer stakeholders, particularly in the retail and restaurant industries, who advocated for the need to maintain flexibility in the duties tests. These stakeholders stated that the ability of a store or restaurant manager or assistant manager to “pitch in” and help line employees when needed was a key part of their organizations' management culture and necessary to enhancing the customer experience. They emphasized that the employees in these entry-level management positions are critically important to their organizations and that the experience they gain in these positions will lead to higher level management opportunities. Employer stakeholders universally urged the Department not to consider any changes to the current duties tests, explaining that while the duties tests are sometimes difficult to apply and may not be perfect, employers have an understanding of the meaning and application of the current duties tests and any changes might engender costly litigation as parties try to adapt to and interpret the new rules.
Employee stakeholders, on the other hand, stated that the current duties tests, particularly the 50 percent primary duty rule of thumb (§ 541.700(c)) and the concurrent duties doctrine for executives (§ 541.106), are insufficiently protective of employees. In particular, they expressed concern with cases in which the exemption has been applied to employees who have spent large amounts of time (sometimes more than 90 percent) performing nonexempt work. They asserted that some businesses, particularly in the retail industry, have built into their business model having exempt store managers perform significant amounts of nonexempt work in order to keep labor costs down. These employee stakeholders argued that where employees are essentially required to perform significant amounts of nonexempt work, the employees do not, in fact, have a primary duty of management in any meaningful sense.
The Department appreciates the views shared by employer and employee stakeholders on this important issue. The Department understands the importance of managers “pitching in” and leading by example. At the same time, the Department is concerned that employees in lower-level management positions may be classified as exempt and thus ineligible for overtime pay even though they are spending a significant amount of their work time performing nonexempt work. The Department believes that, at some point, a disproportionate amount of time spent on nonexempt duties may call into question whether an employee is, in fact, a bona fide EAP employee. The Department is concerned that the removal of the more protective long duties test in 2004 has exacerbated these concerns and led to the inappropriate classification as EAP exempt of employees who pass the standard duties test but would have failed the long duties test. The issue sometimes arises when a manager is performing exempt duties less than 50 percent of the time, but it is argued that those duties are sufficiently important to nonetheless be considered the employee's primary duty. The issue also arises when a manager who is performing nonexempt duties much of the time is deemed to perform exempt duties concurrently with those nonexempt duties, and it is argued the employee is exempt on that basis. While the regulations provide that exempt executives can perform exempt duties concurrently with nonexempt duties, § 541.106, this rule can be difficult to apply and can lead to varying results.
Taking into account the views of stakeholders, the Department is seeking to determine whether, in light of our salary level proposal, changes to the duties tests are also warranted. The duties test must adequately protect overtime-eligible white collar employees who exceed the salary threshold from misclassification as exempt EAP employees.
The Department is proposing to set the salary threshold at the 40th percentile of weekly earnings of full-time salaried employees. As previously discussed, because the standard duties test is based on the short duties test—which was intended to work with a higher salary level—and the proposed salary level is below the historic average for the short test salary, a salary level significantly below the 40th percentile would necessitate a more robust duties test to ensure proper application of the exemption. The Department believes that the salary level increase proposed in this NPRM, coupled with automatic updates to maintain the effectiveness of the salary level test, will address most of the concerns relating to the application of the EAP exemption. A regularly updated salary level will assist in screening out employees who spend significant amounts of time on nonexempt duties and for whom exempt work is not their primary duty. However, the Department invites comments on whether adjustments to the duties tests are necessary, particularly in light of the proposed change in the salary level test. The Department recognizes that duties remain a critical metric of exempt status and invites comment on the effectiveness of the duties tests found in the current regulations.
While the Department is not proposing specific regulatory changes at this time, the Department is seeking additional information on the duties tests for consideration in the Final Rule. Specifically, the Department seeks comments on the following issues:
A. What, if any, changes should be made to the duties tests?
B. Should employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for exemption? If so, what should that minimum amount be?
C. Should the Department look to the State of California's law (requiring that 50 percent of an employee's time be spent exclusively on work that is the employee's primary duty) as a model? Is some other threshold that is less than 50 percent of an employee's time worked a better indicator of the realities of the workplace today?
D. Does the single standard duties test for each exemption category appropriately distinguish between exempt and nonexempt employees? Should the Department reconsider our decision to eliminate the long/short duties tests structure?
E. Is the concurrent duties regulation for executive employees (allowing the performance of both exempt and nonexempt duties concurrently) working appropriately or does it need to be modified to avoid sweeping nonexempt employees into the exemption? Alternatively, should there be a limitation on the amount of nonexempt work? To what extent are exempt lower-level executive employees performing nonexempt work?
In addition to seeking comments on the duties tests, the Department is also considering whether to add to the regulations examples of additional occupations to provide guidance in administering the EAP exemptions. Employer stakeholders have indicated that examples of how the exemptions may apply to specific jobs, such as those provided in current §§ 541.203, 541.301(e), and 541.402, are useful in determining exempt status and should be expanded. The Department agrees that examples of how the general executive, administrative, and professional exemption criteria may apply to specific occupations are useful to the regulated community and seeks comments on what specific additional examples of nonexempt and exempt occupations would be most helpful to include.
In further effort to provide effective guidance to the public on the administration of the EAP exemptions, the Department is considering the suggestions of employer stakeholders from the computer and information technology sectors to include additional examples of the application of the EAP exemptions to occupational categories in computer-related fields. The Department has, as a threshold matter, reviewed the authority by which it might include additional examples of computer-related occupations. For the reasons articulated in the preamble to the 2004 Final Rule, the Department continues to believe that we should not expand the EAP exemption beyond the computer exemption currently set forth in section 13(a)(17), given the clarity
However, in the 2004 Final Rule, the Department did add additional examples of occupations within the computer industry such as systems analysts and computer programmers which, subject to a case-by-case duties analysis, might fall within the section 13(a)(1) administrative and executive exemptions. § 541.402. In response to stakeholder input and as part of our broader effort to simplify part 541, the Department is again exploring the possibility of listing additional illustrative examples that typically do or do not fall within the general criteria for the three basic EAP exemptions (
The Department continues to be cognizant of the “tremendously rapid pace of significant changes occurring in the information technology industry” (69 FR 22158), and therefore requests comments from employer and employee stakeholders in the computer and information technology sectors as to what additional occupational titles or categories should be included as examples in the part 541 regulations, along with what duties are typical of such categories and would thus cause them to generally meet or fail to meet the relevant EAP exemption criteria. To provide additional context, the Department, as an initial matter, expresses the view that a help desk operator whose responses to routine computer inquiries (such as requests to reset a user's password or address a system lock-out) are largely scripted or dictated by a manual that sets forth well-established techniques or procedures would not possess the discretion and independent judgment necessary for the administrative exemption, nor would that individual likely qualify for any other EAP exemption. On the other hand, an information technology specialist who, without supervision, routinely troubleshoots and repairs significant glitches in his company's point of sale software for the company's retail clients might be an example of an administrative employee pursuant to § 541.200 as this employee's work appears to be directly related to the management or business operation of his employer or employer's customers and requires the use of discretion and independent judgment with respect to matters of significance.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Summary: FLSA section 11(c) requires all employers covered by the FLSA to make, keep, and preserve records of employees and of wages, hours, and other conditions of employment. A FLSA-covered employer must maintain the records for such period of time and make such reports as prescribed by regulations issued by the Secretary of Labor. The Department has promulgated regulations at 29 CFR part 516 to establish the basic FLSA recordkeeping requirements. No new information collection requirements would be imposed by the adoption of this NPRM; rather, burdens under existing requirements are expected to increase as more employees receive minimum wage and overtime protections due to the proposed increase in the salary level requirement. More specifically, the proposed changes in this NPRM may cause an increase in burden on the regulated community because employers will have additional employees to whom certain long-established recordkeeping requirements apply (
Purpose and Use: WHD and employees use employer records to determine whether covered employers have complied with various FLSA requirements. Employers use the records to document compliance with the FLSA, including showing qualification for various FLSA exemptions. Additionally, WHD uses the Employment Information form to document allegations of non-compliance with labor standards the agency administers.
Technology: The regulations prescribe no particular order or form of records and employers may preserve records in forms of their choosing provided that facilities are available for inspection and transcription of the records.
Minimizing Small Entity Burden: Although the FLSA recordkeeping requirements do involve small businesses, including small state and local government agencies, the Department minimizes respondent burden by requiring no specific order or form of records in responding to this information collection. Burden is reduced on complainants by providing a template to guide answers.
Public Comments: As part of its continuing effort to reduce paperwork and respondent burden, the Department conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the PRA. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Department seeks public comments regarding the
As previously noted, an agency may not conduct an information collection unless it has a currently valid OMB approval, and the Department has submitted information collection requests under OMB control numbers 1235-0018 and 1235-0021 in order to update them to reflect this rulemaking and provide interested parties a specific opportunity to comment under the PRA.
OMB and the Department are particularly interested in comments that:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Total annual burden estimates, which reflect both the existing and new responses for the recordkeeping and complaint process information collections at the proposed salary, are summarized as follows:
Other Burden Cost: 0.
Other Burden Cost: 0.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if the regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
Under Executive Order 12866, the Department must determine whether a regulatory action is economically “significant,” defined as having an annual effect on the economy of $100 million or more, and therefore subject to review by OMB and the requirements of the Executive Order. This proposed rule is economically significant within the meaning of Executive Order 12866; therefore, the Department has prepared a Preliminary Regulatory Impact Analysis (PRIA) in connection with this proposed rule as required under section 6(a)(3) of Executive Order 12866, and OMB has reviewed the rule.
The FLSA applies to all enterprises that have employees engaged in commerce or in the production of goods for commerce and have an annual gross volume of sales made or business done of at least $500,000 (exclusive of excise taxes at the retail level that are separately stated); or are engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or individuals with intellectual disabilities who reside on the premises; a school for intellectually or physically disabled or gifted children; a preschool, elementary or secondary school, or an institution of higher education (without regard to whether such hospital, institution or school is public or private, or operated for profit or not); or are engaged in an activity of a public agency.
There are two ways an employee may be covered by the provisions of the FLSA: (1) Enterprise coverage, in which any employee of an enterprise covered by the FLSA is covered, and (2) individual coverage, in which even employees of non-covered enterprises may be covered if they are engaged in interstate commerce or in the production of goods for commerce, or are employed in domestic service. The FLSA requires employers to: (1) Pay employees who are covered and not exempt from the Act's requirements not less than the Federal minimum wage for all hours worked and overtime premium pay at a rate of not less than one and one-half times the employee's regular rate of pay for all hours worked over 40 in a workweek, and (2) make, keep, and preserve records of the persons
The FLSA provides a number of exemptions from the Act's minimum wage and overtime pay provisions, including one for bona fide executive, administrative, and professional employees. Such employees typically receive more monetary and non-monetary benefits than most blue collar and lower-level office workers and therefore are less likely to need the Act's protection. Thus, Congress created the exemption from the FLSA's minimum wage and overtime pay protections for employees employed in a bona fide executive, administrative, or professional capacity and for outside sales employees, as those terms are “defined and delimited” by the Department. 29 U.S.C. 213(a)(1). The Department's regulations implementing those exemptions are codified at 29 CFR part 541.
For an employer to exclude an employee from minimum wage and overtime protection pursuant to the EAP exemptions, the employee generally must meet three criteria: (1) The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test”); (2) the amount of salary paid must meet a minimum specified amount (the “salary level test”); and (3) the employee's job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test”). The regulations governing these tests have been updated periodically since the FLSA's enactment in 1938, most recently in 2004 when, among other revisions, the Department increased the salary level test to $455 per week.
As a result of inflation and the low value of the salary threshold, the annual value of this salary level test, $23,660 ($455 per week for 52 weeks), is now slightly below the 2014 poverty threshold for a family of four ($24,008),
In the 2004 Final Rule, the Department also changed the structure of the duties test. Between 1949 and 2004, the EAP exemptions included two versions of the duties test. Assuming that a worker was paid on a salary basis, the exemptions would be met if a worker passed either a “long” test, which involved a more rigorous set of duties criteria, paired with a lower salary level, or a “short” test, which imposed fewer duties requirements, paired with a higher salary level. In the 1975 update, the last before the 2004 Final Rule, the Department set the long test salary levels at $155 per week for executive and administrative employees and $170 per week for professional employees. The short test salary level was set at $250 per week for all three EAP categories. In 2004, the Department replaced the two-test structure with a single “standard” duties test for each category, which closely resembles the former short test duties requirements, and a single salary level test of $455 per week based on an update of the 1975 long test salary level. The Department also introduced a highly compensated employee (HCE) exemption in the 2004 Final Rule, under which an employee may be exempt if he or she passes a very minimal duties test, receives at least $455 per week paid on a salary basis, and is highly compensated, defined in the 2004 Final Rule as earning total annual compensation, which may include commissions and nondiscretionary bonuses in addition to a salary, of at least $100,000. The HCE duties test is much more abbreviated than the historical short test duties requirements.
The premise behind the salary level tests is that employers are more likely to pay higher salaries to workers in bona fide EAP jobs than to workers performing nonexempt duties. A high salary is considered a measure of an employer's good faith in classifying an employee as exempt, because an employer is less likely to have misclassified a worker as exempt if he or she is paid a high wage. Stein Report at 5; Weiss Report at 8.
The salary level requirement was created to identify the dividing line distinguishing workers performing truly exempt duties from the nonexempt workers Congress intended to be protected by the FLSA's minimum wage and overtime provisions. Throughout the regulatory history of the FLSA, the Department has considered the salary level test the “best single test” of exempt status. Stein Report at 19. This bright-line test is easily observed, objective, and clear.
The salary level test has been updated seven times since it was implemented in 1938. Table 1 presents the weekly salary levels associated with the EAP exemptions since 1938, organized by exemption and long/short/standard duties test.
The standard salary level was set at $455 per week in 2004. Following more than ten years of inflation, the purchasing power, or real value, of the standard salary level test has eroded substantially, and as a result increasingly more workers earn above the salary threshold. By 2013 the real value of the standard salary level had declined 18.9 percent since 2004, calculated using the Consumer Price Index for all urban consumers (CPI-U).
As a result of the erosion of the real value of the standard salary level, more and more workers lack the clear protection the salary level test is meant to provide. Each year that the salary level is not updated, its utility as a distinguishing mechanism between exempt and nonexempt workers declines. The Department has revised the levels just once in the 40 years since 1975. In contrast, in the 37 years between 1938 and 1975, salary test levels were increased approximately every five to nine years. In our 2004 rulemaking, the Department stated the intention to “update the salary levels on a more regular basis, as it did prior to 1975,” and added that “the salary levels should be adjusted when wage survey data and other policy concerns support such a change.” 69 FR 22171.
The real value of the salary level test has fallen substantially both when measured against its 2004 level and the 1975 levels. If the standard EAP salary level established in 2004 had kept up with inflation (measured using the CPI-U), it would be $561 per week in 2013 dollars, a 23.3 percent increase relative
In order to restore the value of the standard salary level as a line of demarcation between those workers for whom Congress intended to provide minimum wage and overtime protections and those workers who may be performing bona fide EAP duties, and to maintain its continued validity, the Department proposes to set the standard salary level equal to the 40th percentile of weekly earnings for all full-time salaried workers. Based on 2013 salary data,
The Department estimated the number of affected workers and quantified costs and transfer payments associated with this proposed rulemaking.
The Department proposes to increase the standard salary level from $455 per week to the 40th percentile of weekly earnings for all full-time salaried workers, which translates to $921 per week, an increase of $466 over the current level (Table 2).
The Department also proposes to annually update the standard salary level to ensure the ongoing effectiveness of the salary level as a means of delimiting workers who should not fall within the EAP exemption. Similarly, the Department proposes to annually update the HCE total annual compensation level to ensure the effectiveness of the annual compensation requirement as a test for which employees should be subject to the minimal duties test for the HCE exemption.
In Year 1, an estimated 4.6 million workers would be affected by the increase in the standard salary level test (Table 3). This figure consists of currently EAP-exempt workers who earn at least $455 per week but less than the 40th percentile ($921) of all full-
Three direct costs to employers are quantified in this analysis: (1) Regulatory familiarization costs; (2) adjustment costs; and (3) managerial costs. Regulatory familiarization costs are the costs incurred to read and become familiar with the requirements of the rule. Adjustment costs are the costs accrued to determine workers' new exemption statuses, notify employees of policy changes, and update payroll systems. Managerial costs associated with this proposed rulemaking occur because hours of workers who are newly entitled to overtime may be more closely scheduled and monitored to minimize or avoid paying the overtime premium.
The costs presented here are the combined costs for both the change in the standard salary level test and the HCE annual compensation level (these will be disaggregated in section VII.D.iv.). With updating, total average annualized direct employer costs were estimated to be between $239.6 and $255.3 million, assuming a 7 percent discount rate; hereafter, unless otherwise specified, average annualized values will be presented using the 7 percent real discount rate (Table 4). Deadweight loss (DWL) is also a cost but not a direct employer cost. DWL is a function of the difference between the wage employers are willing to pay for the hours lost, and the wage workers are willing to take for those hours. In other words, DWL represents the decrease in total economic surplus in the market arising from the change in the regulation. Average annualized DWL was estimated to be between $9.5 and $10.5 million, depending on updating methodology.
In addition to the direct costs, this proposed rulemaking will also transfer income from employers to employees in the form of wages. Average annualized transfers were estimated to be between $1,178.0 and $1,271.4 million, depending on updating methodology. The majority of these transfers are from employers to affected EAP workers who become overtime protected due to changes in the EAP regulations.
Employers may incur additional costs, such as hiring new workers. These other costs are discussed in section VII.D.iv.5. Another potential impact of the rule's proposed increase in the salary threshold is a reduction in litigation costs. Other unquantified transfers, costs, and benefits are discussed in section VII.D.vii.
The following terminology and abbreviations will be used throughout this Regulatory Impact Analysis (RIA).
Occasional overtime workers: Workers who report they usually work 40 hours or less per week (identified with variable PEHRUSL1 in CPS MORG) but in the survey week worked more than 40 hours (variable PEHRACT1 in CPS MORG).
Regular overtime workers: Workers who report they usually work more than 40 hours per week (identified with variable PEHRUSL1 in CPS MORG).
The Department also notes that the terms
This section explains the methodology used to estimate the number and characteristics of workers who are subject to the EAP exemptions. In this proposed rule, as in the 2004 Final Rule, the Department estimated the number of EAP exempt workers because there is no data source that identifies workers as EAP exempt. Employers are not required to report EAP exempt workers to any central agency or as part of any employee or establishment survey. The methodology described here is largely based on the approach the Department used in the 2004 Final Rule. 69 FR 22196-209. All tables include estimates for 2013. Some tables also include estimates for 2005
The estimates of EAP exempt workers are based on data drawn from the CPS MORG, which is sponsored jointly by the U.S. Census Bureau and the BLS. The CPS is a large, nationally representative sample of the labor force. Households are surveyed for four months, excluded from the survey for eight months, surveyed for an additional four months, then permanently dropped from the sample. During the last month of each rotation in the sample (month 4 and month 16), employed respondents complete a supplementary questionnaire (the MORG) in addition to the regular survey. This supplement contains the detailed information on earnings necessary to estimate a worker's exemption status.
Although the CPS is a large scale survey, administered to 60,000 households representing the entire nation, it is still possible to have relatively few observations when looking at subsets of employees, such as exempt workers in a specific occupation employed in a specific industry, or workers in a specific region. To increase the sample size, the Department pooled together three years of CPS MORG data (2011 through 2013). Earnings for each 2011 and 2012 observation were inflated to 2013 dollars using the CPI-U, and the weight of each observation was adjusted so that the total number of potentially affected EAP workers in the pooled sample remained the same as the number represented by the 2013 CPS MORG. Thus, the pooled CPS MORG sample uses roughly three times as many observations to represent the same total number of workers in 2013. The additional observations allow the Department to better estimate certain attributes of the potentially affected labor force.
Some assumptions had to be made to use these data as the basis for the analysis. For example, the Department eliminated workers who reported that their weekly hours vary and provided no additional information on hours worked. This was done because the Department cannot estimate impacts for these workers since it is unknown whether they work overtime and therefore unknown whether there would be any need to pay for overtime if their status changed from exempt to nonexempt. The Department reweighted the rest of the sample to account for this change (to keep the same total population estimates). This adjustment assumes that the distribution of hours worked by workers whose hours do not vary is representative of hours worked by workers whose hours do vary. The Department believes that without more information this is an appropriate assumption.
To estimate the number of workers covered by the FLSA and subject to the Department's part 541 regulations, the Department first excluded workers who are not protected by the FLSA or are not subject to the Department's regulations for a variety of reasons—for instance, they may not be covered by, or considered to be employees under, the FLSA. These workers include:
• Military personnel,
• unpaid volunteers,
• self-employed individuals,
• clergy and other religious workers, and
• federal employees (with a few exceptions described below).
Many of these workers are excluded from the CPS MORG: members of the military on active duty, unpaid volunteers, and the self-employed. For other categories that are not automatically excluded from the CPS data, such as unpaid workers, that is, workers with zero wages and earnings but who report being employed, the Department has implemented measures to screen them out.
Religious workers were excluded from the analysis after being identified by their occupation codes: `clergy' (Census occupational code 2040), `directors, religious activities and education' (2050), and `religious workers, all other' (2060). Most employees of the federal government are covered by the FLSA but are not subject to the Department's part 541 regulations because their minimum wage and overtime pay are regulated by the Office of Personnel Management (OPM).
Table 5 presents the Department's estimates of the total number of workers, and the number of workers covered by the FLSA and subject to the Department's part 541 regulations in 2005 and 2013. The Department estimated that in 2013 there were 144.2 million wage and salary workers in the United States. Of these, 128.5 million were covered by the FLSA and subject to the Department's regulations (89.1 percent). The remaining 15.7 million workers were excluded from coverage by the FLSA for the reasons described above and delineated in Table 6.
After limiting the analysis to workers covered by the FLSA and subject to the Department's regulations, several other groups of workers are identified and excluded from further analysis since they are unlikely to be affected by this proposed rule. These include:
• Blue collar workers,
• workers paid hourly, and
• workers who are exempt under certain other (non-EAP) exemptions.
In 2013 there were 46.6 million blue collar workers (Table 7). These workers were identified in the CPS MORG data using data from the U.S. Government Accountability Office's (GAO) 1999 white collar exemptions report
Also excluded from further analysis were workers who are exempt under certain other (non-EAP) exemptions. Although some of these workers may also be exempt under the EAP exemptions, even if these workers lost their EAP exempt status they would remain exempt from the minimum wage and/or overtime pay provisions and thus were excluded from the analysis. In 2013 an estimated 4.2 million workers, including some agricultural and transportation workers, were excluded from further analysis because they were subject to another (non-EAP) overtime exemption.
The Department excluded some of these workers from the population of potentially affected EAP workers in the 2004 Final Rule, but not all of them. Agricultural and transportation workers are two of the largest groups of workers excluded from this analysis, and they were similarly excluded in 2004. Agricultural workers were identified by occupational-industry combination.
For 2013 there were a total of 85.5 million workers excluded from the analysis for the reasons denoted above. These eliminations left 43.0 million workers covered by the FLSA and potentially affected by this proposed rulemaking.
After excluding workers not subject to the Department's FLSA regulations and workers who are unlikely to be affected by this proposed rulemaking (
• Be paid a predetermined and fixed salary that is not subject to reductions because of variations in the quality or quantity of work performed (the salary basis test),
• earn at least a designated salary amount; the salary level has been set at $455 per week since 2004 (the salary level test), and
• perform work activities that primarily involve executive, administrative, or professional duties as defined by the regulations (the duties test).
The HCE test requires the employee to pass the same standard salary basis and salary level tests. However, the HCE duties test is much less restrictive than the standard duties test, and the employee must earn at least $100,000 in total annual compensation, including at least $455 per week paid on a salary or fee basis, while the balance may be paid as nondiscretionary bonuses and commissions.
Hourly computer employees who earn at least $27.63 per hour and perform certain duties are exempt under section 13(a)(17) of the FLSA. These workers are considered part of the EAP exemptions but were excluded from the analysis because they are paid hourly and will not be affected by this proposed rulemaking (these workers were similarly excluded in the 2004 analysis). Salaried computer workers are exempt if they meet the salary and duties tests applicable to the EAP exemptions, and are included in the analysis since they will be impacted by this proposed rulemaking.
Additionally, administrative and professional employees may be paid on a fee basis,
Weekly earnings are also available in the data, which allowed the Department to identify which workers passed the salary level tests.
WHD's representatives examined 499 occupational codes, excluding nine that
The occupations identified by the GAO in 1999 and used by the Department in the 2004 Final Rule map to an earlier occupational classification scheme (the 1990 Census Occupational Codes). Therefore, for this proposed rule an occupational crosswalk was used to map the previous occupational codes to the 2002 Census Occupational Codes which are used in the CPS MORG 2002 through 2010 data, and to the 2010 Census Occupational Codes which are used in the CPS MORG 2011 through 2013 data.
These codes provide information on the likelihood an employee met the duties test but they do not identify the workers in the CPS MORG who actually passed the test. Therefore, the Department designated workers as exempt or nonexempt based on the probabilities. For example, for every ten public relations managers, between five and nine were estimated to pass the standard duties test (based on probability category 2). However, it is unknown which of these ten workers are exempt; therefore, the Department must determine the status for these workers. Exemption status could be randomly assigned with equal probability, but this would ignore the earnings of the worker as a factor in determining the probability of exemption. The probability of qualifying for the exemption increases with earnings because higher paid workers are more likely to perform the required duties, an assumption adhered to by both the Department in the 2004 Final Rule and the GAO in its 1999 Report.
The Department estimated that of the 43.0 million workers considered in the analysis, 28.5 million qualified for the EAP exemptions (Table 9). However, some of these workers were excluded from further analysis because they would not be affected by the proposed rule. This excluded group contains workers in named occupations who are not required to pass the salary requirements (although they must still pass the duties tests) and therefore whose exemption status is not dependent on their earnings. These occupations include physicians (identified with Census occupation codes 3010, 3040, 3060, 3120), lawyers (2100), teachers (occupations 2200-2550 and industries 7860 or 7870), academic administrative personnel (school counselors (occupation 2000 and industries 7860 or 7870) and educational administrators (occupation 0230 and industries 7860 or 7870)), and outside sales workers (a subset of occupation 4950). Out of the 28.5
There are three groups of workers who lose minimum wage and overtime protections under the EAP exemptions: (1) Those passing just the standard EAP tests (
After estimating the population of workers who are subject to the EAP exemptions and potentially affected by this proposed rulemaking, the Department tabulated the characteristics of these workers. The characteristics considered and presented here include: industry of employment, occupation, and Metropolitan Statistical Area (MSA) status. As previously noted, the Department estimated 2013 values using CPS MORG data pooled from 2011-2013 in order to increase the sample size.
Table 11 presents the estimated number of potentially affected EAP workers broken down into 13 major industry groups.
Looking at exemption status by occupation, 10.8 million workers employed in the management, business, and financial occupations were potentially affected; this occupation category accounts for roughly half of all potentially affected EAP workers. Professional and related occupations also employed many of the potentially affected EAP workers (7.0 million, which is 32.9 percent of all potentially affected EAP workers).
The Department considered MSA status because workers in cities and suburban areas tend to be paid more than workers in rural areas. The percentage of potentially affected EAP workers (92.0 percent) who live in MSAs is larger than the percentage of the total workforce (85.8 percent) who live in MSAs.
The Department proposes to set the EAP standard salary level at the 40th percentile of the weekly earnings distribution for all full-time salaried workers and to set the HCE compensation test equal to the 90th percentile (at an annual salary equivalent) of this distribution. These methods were used because they generate salary levels that (1) were deemed to be appropriate in distinguishing between workers who should and should not be exempt; (2) are easy to calculate and thus easy to replicate, creating transparency through simplicity; and (3) generate consistent salary levels.
The methodologies used to revise the EAP salary levels have varied somewhat across the seven updates to the salary level test since it was implemented in 1938. To guide the determination of the proposed salary level, the Department considered methodologies used previously to revise the EAP salary levels. In particular, the Department focused on the 1958 revisions and the most recent revisions in 2004. The 1958 methodology is particularly instructive in that it synthesized previous approaches to setting the salary level, and the basic structures it adopted have been a touchstone in subsequent rulemakings (with the exception of 1975).
In 1958, the Department updated the salary levels based on a 1958 Report and Recommendations on Proposed Revision of Regulations, Part 541, by Harry S. Kantor (Kantor Report). To determine the revised salary levels the Department looked at data collected during WHD investigations on actual salaries paid to exempt EAP employees, grouped by geographic region, industry groups, number of employees, and size of city. The Department then set the salary level so that no more than about 10 percent of those in the lowest-wage
A significant change in 2004 from the Kantor method was that the salaries of both exempt and nonexempt full-time salaried workers in the South and retail industry were used to determine levels (hereafter referred to as the 2004 method), rather than the salaries of exempt workers only. However, because the salaries of exempt workers on average are higher than the salaries of all full-time salaried workers, the Department selected a higher earnings percentile for full-time salaried workers. Based on the Department's 2004 analysis, the 20th percentile of earnings for exempt and nonexempt full-time salaried workers in the South and retail industry achieved a result very similar to the 10th percentile for workers in the lowest-wage regions and industries who were estimated to be exempt. 69 FR 22169.
The Department proposes to set the standard salary level at the 40th percentile of the distribution of weekly earnings for all full-time salaried workers nationwide. For the purposes of this proposed rulemaking, the Department relied on BLS calculations of the dollar value of the 40th earnings percentile from the CPS MORG data. BLS limited the population to salaried workers who work at least 35 hours per week and determined the specified percentile of the resulting weighted weekly earnings distribution.
This methodology differs somewhat in specifics from previous revisions to the salary levels but the general concept holds: define a relevant population of workers, estimate an earnings distribution for that population, then set the salary level to a designated percentile of that distribution in order for the salary to serve as a meaningful line of demarcation between those Congress intended to protect and those who may qualify for exemption. The proposed method continues the evolution of the Department's approach from the Kantor method to the 2004 method.
The Department spent considerable time evaluating the previous methodologies. Where the proposed methodology differs from past methodologies, the Department believes the proposed methodology is an improvement. The Department compared the proposed method with the past methods, and the reasons for selecting the proposed method are detailed in the rest of this section.
The Department replicated the Kantor method and the 2004 method to evaluate and compare them to the proposed methodology.
1. Identify workers likely to be members of the population of interest.
2. Further narrow the population of interest by distinguishing that sub-population employed in low-wage categories.
3. Estimate the distribution of earnings for these workers.
4. Identify the salary level that is equal to a pre-determined percentile of the distribution.
The population of workers considered for purposes of setting the salary level depends on whether the 2004 method or the Kantor method is used. In replicating both methods, we limited the population to workers subject to the FLSA and covered by the Department's part 541 provisions, and excluded EAP exempt workers in named occupations, and those exempt under another (non-EAP) exemption. For the 2004 method, the Department further limited the population to full-time salaried workers, and for the Kantor method we further limited the population of interest by only including those workers determined as likely to be EAP exempt (see more detailed methodology explanations in section VII.B. and Appendix A).
During the 2004 revisions the Department identified two low-wage categories: The South (low-wage geographic region), and the retail industry (low-wage industry). For this proposed rule the Department identified low-wage categories by comparing average weekly earnings across categories for the populations of workers used in the Kantor method and the 2004 method. The South was determined to be the lowest-wage region and was used for the 2004 method; however, the Department chose to use a more detailed geographical break-down for the Kantor method to reflect the geographic categories Kantor used. Therefore, for the Kantor method the East South Central Division is considered the lowest-wage geographical area.
Next, the Department estimated the distributions of weekly earnings of two populations: (1) Workers who are in at least one of the low-wage categories and in the Kantor population, and (2) workers who are in at least one of the low-wage categories and in the 2004 population. From these distributions, alternate salary levels were identified based on pre-determined percentiles. For the Kantor method, the salary level for the long duties test is identified based on the 10th percentile of weekly earnings for the relevant population of likely EAP exempt workers, while the 2004 method salary level is identified based on the 20th percentile of weekly
The salary level test has historically been intended to serve as an initial bright-line test for overtime eligibility for white collar employees. As discussed previously, however, there will always be white collar overtime-eligible employees who are paid above the salary threshold. A low salary level increases the number of these employees. The necessity of applying the duties test to these overtime-protected employees consumes employer resources, may result in misclassification (which imposes additional costs to employers and society in the form of litigation), and is an indicator of the effectiveness of the salary level. Similarly, there will always be employees performing bona fide EAP duties who are paid below the salary threshold; the inability of employers to claim the EAP exemption for these employees is also an indicator of the effectiveness of the salary level. Selecting the standard salary level will inevitably affect the number of workers falling into each of these two categories. The Kantor method sought to minimize the number of white collar employees who pass the duties test but were excluded from the exemption by the salary threshold and therefore set the salary level at the bottom 10 percent of exempt EAP employees in low wage regions and industries so as to prevent “disqualifying any substantial number of such employees.” Kantor Report at 5;
In this rulemaking, the Department wants to correct for the elimination of the long duties test and set a salary level that appropriately classifies white collar workers as entitled to minimum wage and overtime protection or potentially exempt. Thus the Department's proposed standard salary level is higher than the level the Kantor or 2004 methods would generate but still lower than the historical average for the short test. Setting the salary level at the 40th percentile of weekly earnings for full-time salaried workers will reduce the number of employees subject to the standard duties test by raising the salary threshold; the Department believes that this will simplify the determination of exemption status for employers and will result in reduced misclassification of overtime-eligible white collar workers as exempt and reduced litigation. At the 40th percentile, 10.6 million white collar employees would no longer be subject to potential litigation over the duties they perform (4.6 million currently EAP exempt employees who would be newly entitled to overtime due to the increase in the salary threshold and 6.0 million overtime-eligible white collar employees who are paid between $455 and $921 per week whose exemption status would no longer depend on the application of the duties test). The proposed salary level will therefore more efficiently distinguish between employees who may meet the duties requirement of the
The proposed salary level also affects the likelihood of workers being misclassified as exempt from overtime pay. This provides an additional measure of the effectiveness of the salary level as a bright-line test delineating exempt and nonexempt workers. The Department estimated the number of workers misclassified as exempt as the number of salaried white collar workers who: Earn at least $455 per week; do not satisfy the EAP duties tests; are not in a named occupation (or exempt under another (non-EAP) exemption); usually work overtime; and do not usually receive overtime pay.
In this section the Department assesses the impact of the standard salary level as a bright-line test for the EAP exemptions by examining: (1) The number of white collar workers who pass the salary level test but not the duties test and (2) the number of white collar workers who pass the duties test but not the salary level test. The Department makes this assessment at the current salary level and the proposed salary level, while holding all other factors determining exempt status constant (
In order to calculate the potential impact on the two groups of workers, the Department estimated: (1) The number of salaried white collar workers who are eligible for overtime pay because they do not pass the standard EAP duties test, but earn above a specific salary level; and (2) the number of salaried white collar workers who satisfy the standard duties test but earn less than a specific standard salary level.
As a benchmark, the Department estimates that at the current standard salary threshold, there are 11.6 million salaried white collar workers who fail the standard duties test and are therefore overtime eligible, but earn at least the $455 threshold, while there are only 845,500 salaried white collar workers who pass the standard duties test but earn less than the $455 level. Thus the number of white collar workers who pass the current salary threshold test but not the duties test is nearly 14 times the number of white collar workers who pass the duties test but are paid below the salary threshold. This underscores the large number of overtime-eligible workers for whom employers must perform a duties analysis, and who may be at risk of misclassification as EAP exempt. If the salary threshold were raised to the 40th percentile, the number of overtime-eligible salaried white collar workers who would earn at least the threshold but do not pass the duties test would be reduced to 5.6 million. At the 40th percentile, the number of salaried white collar workers who would pass the standard duties test but earn less than the 40th percentile would be 4.6 million (approximately 25 percent of all white collar salaried employees who pass the standard duties test). While this number is higher than the number of such employees under the Kantor method, it includes employees who would not have passed the more rigorous long duties test and therefore were not included under that approach.
As illustrated in Figure 3, as the salary level increases there is a decrease in the share of overtime-eligible white collar workers for whom employers would be required to make an assessment under the duties test and who would be subject to possible misclassification. At the same time, as the salary level increases there is an increase in the share of white collar workers who pass the duties test but are screened from exemption by the salary threshold. At the current salary level, there is a very large gap between white collar workers who are overtime eligible but earn at least the threshold (about 85 percent of all salaried white collar workers who fail the duties test are paid at least $455 per week) and white collar workers who pass the standard duties test but do not meet the current salary level (about 4 percent of all salaried white collar workers who pass the duties test are paid less than $455 per week). At the proposed salary level of the 40th percentile of weekly earnings of full-time salaried workers, the percentage of overtime-eligible white collar workers who earn above the threshold (and thus would be at risk of misclassification) remains substantially higher than the percentage of white collar workers who pass the duties test but earn less than the salary threshold (and would become overtime protected).
The Department has also looked at the impact of the proposed salary level on these two groups of workers in low-wage (East South Central) and high-wage (Pacific) regions in addition to nationally.
Based on the comparison of the characteristics of the methods reviewed in this section, the Department has determined that the proposed method, for the reasons identified, meets the objectives of appropriateness, simplicity, and consistency.
When assessing the effects of the proposed standard salary level on the U.S. economy, the Department also evaluated several alternatives. This section presents the alternative salary levels considered and the bases for identifying those alternative levels. As shown in Table 13, the alternative salary levels evaluated are:
• Alternative 1: Calculate the salary level by adjusting the 2004 salary level of $455 for inflation from 2004 to 2013 as measured by the CPI-U. This results in a salary level of $561 per week.
• Alternative 2: Use the 2004 method to set the salary level at $577 per week.
• Alternative 3: Use the Kantor method to set the salary level at $657 per week.
• Alternative 4: Use the 50th earnings percentile of full-time hourly and salaried workers. This results in a salary level of $776 per week.
• Alternative 5: Adjust the salary level from the Kantor method to reflect the historical ratio between the long and short test salary levels. This results in a salary level of $979 per week.
• Alternative 6: Use the 50th earnings percentile of full-time salaried workers. This results in a salary level of $1,065 per week.
• Alternative 7: Adjust the 1975 short test salary level of $250 for inflation from 1975 to 2013. This results in a salary level of $1,083 per week.
Alternatives 2 (2004 method) and 3 (Kantor method) were already discussed. Alternative 5 (Kantor short test) is also based on the Kantor method but, whereas alternative 3 generates the salary level associated with the long duties test, alternative 5 generates a level more closely resembling the salary associated with the short duties test. In the 2004 Final Rule, the Department replaced the structure of a short and a long duties test with a single standard
Alternatives 1 (inflating the 2004 level) and 7 (inflating the 1975 short test level) use similar approaches to each other. Both begin with an exemption salary level set in an earlier rulemaking, and use the CPI-U to adjust that salary level to account for inflation between the year it was set and 2013. Where the two approaches differ is in the selection of the starting point. Alternative 1 assumes the 2004 standard salary level was set at an appropriate level, and that changes in earnings since that time can be reflected well by changes in prices. Alternative 1 is inappropriate because the salary level set in 2004 does not fully account for changes in the sample and the change from long and short duties tests to a single standard test that is comparable to the old short duties test. Alternative 7 assumes that the 1975 salary levels were set to a more appropriate level than the 2004 levels; inflating the 1975 short duties test salary level to 2013 results in a salary level of $1,083 per week. This alternative is inappropriate because it is based on interim salary rates. 40 FR 7091. Additionally, the Department thinks the salary level generated with this method is too high in light of the fact that there no longer is a long duties test with an associated lower salary level that employers may use to claim that employees are exempt.
Alternatives 4 and 6 set the standard salary equal to the 50th percentile, or median, of weekly earnings for two groups of workers: full-time hourly and salaried workers and full-time salaried workers, respectively. These approaches are similar to the proposed method in that they set the salary level equal to a percentile of an earnings distribution. The 50th earnings percentile of all full-time hourly and salaried workers results in a salary level of $776. The Department concluded, however, that it would not be appropriate to include the wages of hourly workers in setting the EAP salary threshold and that the resulting salary level was too low to work effectively with the standard duties test. Selecting the 50th earnings percentile of full-time salaried workers results in a standard salary level of $1,065, which is only $18 per week less than alternative 7. Like alternative 7, the Department believes that the salary level generated with this method is too high because there is no longer a long duties test with an associated lower salary level that employers may use to claim that employees are exempt.
Section VII.D. will detail the transfers, costs, and benefits of the proposed salary levels and alternatives. A comparison of the costs and benefits justifies the Department's decision to propose a standard salary level of the 40th percentile of weekly earnings for all full-time salaried workers ($921 per week).
The Department proposes to set the HCE compensation level equal to the annual equivalent of the 90th percentile of the distribution of earnings for all full-time salaried workers. BLS calculated the salary level from the CPS MORG data by limiting the population to non-hourly workers who work full-time (
The Department also evaluated the following alternative HCE compensation levels:
• HCE alternative 1: Leave the HCE compensation level unchanged at $100,000 per year.
• HCE alternative 2: Set the HCE compensation level at $150,000 per year, which is approximately the annualized level of weekly earnings exceeded by 6.3 percent of full-time salaried workers. This is the same percent of such workers that exceeded the HCE compensation level in 2004.
The Department concluded that HCE alternative 1 was inappropriate because leaving the HCE compensation level unchanged at $100,000 per year would ignore more than 10 years of wage growth. In 2013, approximately 17 percent of full-time salaried workers earned at least $100,000 annually, more than twice the share who earned that amount in 2004. Conversely, HCE alternative 2 would set the annual compensation level at $150,000.
Impacts due to the proposed increases in the EAP salary levels will depend on how employers respond. Employer response is expected to vary by the characteristics of the affected EAP workers. For workers who usually work 40 hours a week or less, the Department assumes that employers will reclassify these workers as overtime-eligible and will pay the same weekly earnings for the same number of hours worked. While these employees will become overtime eligible, employers can continue to pay their current salaries and need make no adjustments as long as the employees' hours do not exceed 40 hours in a workweek.
The cost, benefit and transfer estimates appearing throughout this section represent nationwide aggregates. Given the potential for this proposed rule to have impacts that differ by region or industry, the Department invites detailed comment, data and analysis that would allow for estimation of impacts on a regional or industry basis.
Table 14 presents the aggregated projected costs, transfers, and DWL associated with increasing the standard EAP salary level from $455 per week to the 40th earnings percentile, $921 per week, and the HCE compensation level from $100,000 to the 90th earnings percentile, $122,148 annually (without automatic updating). The Department estimated that the direct employer costs of this proposal will total $592.7 million in the first year, with average annualized direct costs of $194.2 million per year over 10 years. In addition to the direct costs, this proposed rulemaking would also transfer income from employers to employees. Year 1 transfers would equal $1,482.5 million, with average annualized transfers estimated at $872.9 million per year over 10 years. Finally, the 10-year average annualized DWL was estimated to be $7.2 million.
In order to increase the sample size and the reliability and granularity of results in this analysis, the Department used three years (2011-2013) of CPS MORG data to represent the 2013 labor market. Monetary values in 2011 and 2012 were inflated to 2013 dollars and the sample was reweighted to reflect the population of potentially affected workers in 2013. The potential employer costs due to reduced profits and additional hiring were not quantified but are discussed in section VII.D.iv.5.
Costs, transfer payments, DWL, and benefits of this proposed rulemaking depend on the number of affected EAP workers and labor market adjustments made by employers. The Department estimated there were 21.4 million potentially affected EAP workers, that is EAP workers who either (1) passed the salary basis test, the standard salary level test, and the standard duties test, or (2) passed the salary basis test, passed the standard salary level test, the HCE total compensation level test, and the HCE duties test. This number excludes workers in named occupations who are not subject to the salary tests or who qualify for another (non-EAP) exemption.
The Department estimated that increasing the standard salary level from $455 per week to the 40th earnings percentile of all full-time salaried workers ($921 per week) would directly affect 4.6 million workers (
Table 15 presents the number of affected EAP workers, the mean number of overtime hours they work per week, and their average weekly earnings. The 4.6 million workers affected by the increase in the standard salary level average 1.6 hours of overtime per week and earn an average of $731 per week.
Although most affected EAP workers who typically do not work overtime might experience little or no change in their daily work routine, those who regularly work overtime may experience significant changes. The Department expects that workers who routinely work some overtime or who earn less than the minimum wage are most likely to be tangibly impacted by the revised salary level.
The Department considered two types of overtime workers in this analysis: regular overtime workers and occasional overtime workers.
An estimated 181,000 occasional overtime workers will be affected by either the standard salary level or the HCE total annual compensation level increase in any given week (3.9 percent of all affected EAP workers). They averaged 8.0 hours of overtime per week. This group represents the number of workers with occasional overtime hours in the week the CPS MORG survey was conducted. In other weeks, these specific individuals may not work overtime but other workers, who did not work overtime in the survey week, may work overtime. Because the survey week is a representative week, the Department believes the prevalence of occasional overtime in the survey week, and the characteristics of these workers, is representative of other weeks (even though a different group of workers would be identified as occasional overtime workers in a different week).
In this section the Department examines the characteristics of affected EAP workers. Table 16 presents the distribution of affected workers across industries, occupations, and MSA status. The industry with the largest number of affected EAP workers was education and health services (1.0 million). The management, business, and financial occupation category accounted for the most affected EAP workers by occupation (2.1 million). A substantial majority of affected EAP workers resided in MSAs (4.1 million). Employers in non-MSAs and low-wage industries may perceive a greater impact due to the lower wages and salaries typically paid in those areas and industries. However, because the vast majority of potentially affected workers reside in MSAs and do not work in low-wage industries, the Department believes that the proposed salary level is appropriate.
Three direct costs to employers were quantified in this analysis: (1) Regulatory familiarization costs; (2) adjustment costs; and (3) managerial costs. Regulatory familiarization costs are costs to learn about the change in the regulation and only occur in Year 1. Adjustment costs are costs incurred by firms to determine workers' exemption statuses, notify employees of policy changes, and update payroll systems. Managerial costs associated with this proposed rulemaking occur because employers may spend more time scheduling newly nonexempt employees and more closely monitor their hours to minimize or avoid paying the overtime premium.
The Department estimated costs in Year 1 assuming the first year of the analysis was 2013. The Department estimated that in Year 1 regulatory familiarization costs would equal $254.5 million, Year 1 adjustment costs would sum to $160.1 million, and Year 1 managerial costs would total $178.1 million (Table 17). Total direct employer costs in Year 1 were estimated to equal $592.7 million. Adjustment costs and management costs are ongoing and will need to be projected for future years (section VII.D.x.).
Costs that are not quantified are discussed in section VII.D.iv.5. Adjustment costs and managerial costs associated with automatically updating the standard salary level are discussed in section VII.E.iii.
A change in the standard EAP weekly salary test to the proposed level would impose direct costs on businesses by requiring them to review the regulation. It is not clear whether regulatory familiarization costs are a function of the number of establishments or the number of firms. The Department believes that generally the headquarters of a firm will conduct the regulatory review for the entire company; however, some firms provide more autonomy to their establishments, and in such cases regulatory familiarization may occur at the establishment level. To be conservative, the Department uses the number of establishments in its cost estimate because this provides a larger cost estimate.
The Department believes that all establishments will incur regulatory familiarization costs, even if they do not employ exempt workers, because all establishments will need to confirm whether this proposed rulemaking includes any provisions that may impact their workers. Firms with more affected EAP workers will likely spend more time reviewing the regulation than firms with fewer or no affected EAP workers (since a careful reading of the regulations will probably follow the initial decision that the firm is affected). However, the Department does not know the distribution of affected EAP workers across firms and so an average cost per establishment is used.
No data were identified from which to estimate the amount of time required to review the regulation. The Department requests that commenters provide data if possible. For this NPRM, the Department estimated establishments will use on average one hour of time because the proposed regulation is narrowly focused on the salary level tests.
To estimate the total regulatory familiarization costs, three pieces of information must be estimated: (1) A wage level for the employees reviewing the rule; (2) the number of hours each employee spends reviewing the rule; and (3) the number of establishments employing workers. The Department's analysis assumed that mid-level human resource workers with a median wage of $23.63 per hour will review the proposed rule.
Regulatory familiarization costs in Year 1 were estimated to be $254.5 million ($34.19 per establishment × 1 hour × 7.44 million establishments).
A change in the EAP salary test to the proposed level will impose direct costs on firms by requiring them to re-determine the exemption status of employees, update and adapt overtime policies, notify employees of policy changes, and adjust their payroll systems. The Department believes the size of these costs will depend on the number of affected EAP workers and will occur in any year when the salary level is raised and exemption status is changed for some workers. To estimate adjustment costs three pieces of information must be estimated: (1) A wage level for the employees making the adjustments; (2) the amount of time spent making the adjustments; and (3) the estimated number of newly affected EAP workers. The Department again estimated that the average wage with benefits for human resources, training, and labor relations specialists is $34.19 per hour (as explained above). No applicable data were identified from which to estimate the amount of time required to make these adjustments.
Adjustment costs may be partially offset by a reduction in the cost to employers of determining employees' exempt status. Currently, to determine whether an employee is exempt firms must apply the duties test to salaried workers who earn at least $455 per week. Following this rulemaking, firms will no longer be required to apply the potentially time consuming duties test to employees earning less than the proposed salary level. This will be a clear cost savings to employers for employees who do not pass the duties test and earn at least $455 per week but less than the proposed salary level. The Department did not estimate the potential size of this cost savings.
If employers reclassify employees as overtime eligible due to the changes in the salary levels, then firms may incur ongoing managerial costs associated with this proposed rulemaking because the employer may schedule and more closely monitor an employee's hours to minimize or avoid paying the overtime premium. These costs are in addition to the one-time regulatory familiarization and adjustment costs described above. For example, when scheduling hours the manager may have to assess whether the marginal benefit of scheduling the worker for more than 40 hours exceeds the marginal cost of paying the overtime premium. Additionally, the manager may have to spend more time monitoring the employee's work and productivity since the marginal cost of employing the worker per hour has increased.
Because there was little precedent or data to aid in evaluating these costs, the Department examined several sources to estimate costs. First, prior part 541 rulemakings were reviewed to determine whether managerial costs were estimated. No estimates were found. This cost was not quantified for the 2004 rulemaking. Second, a literature review was conducted in an effort to identify information to help guide the cost estimates; again, no estimates were found. The Department requests data from the public applicable to this cost estimate. Despite a lack of available data, the Department chose to include estimated managerial costs to produce as full and accurate a cost estimate to employers as possible.
To provide a sense of the potential magnitude of these costs, the Department estimated these costs assuming that management spends an additional five minutes per week scheduling and monitoring each affected worker expected to be reclassified as overtime eligible as a result of this NPRM, and whose hours are adjusted (1,022,000 affected EAP workers as calculated in section VII.D.vi.). As will be discussed in detail below, most affected workers do not currently work overtime, and there is no reason to expect their hours worked to change when their status changes from exempt to nonexempt. Similarly, employers are likely to find that it is less costly to give some workers a raise in order to maintain their exempt status. For both these groups of workers, management will have little or no need to increase their monitoring of hours worked. Under these assumptions, the additional managerial hours worked per week were estimated to be 85,200 hours rounded ((5 minutes/60 minutes) × 1,022,000 workers).
The median hourly wage in 2013 for a manager was $27.78 and benefits were paid at a rate of 45 percent of the base wage, which totaled $40.20 per hour.
In addition to the costs discussed above, there may be additional costs that have not been quantified. Other categories of unquantified costs are discussed in section VII.D.vii and immediately below.
The increase in worker earnings' resulting from the revised salary level is a transfer of income from firms to workers, not a cost, and is thus neutral concerning its primary effect on welfare and gross domestic product (GDP). However, there are potential secondary effects (both costs and benefits) of the transfer due to the potential difference in the marginal utility of income and the marginal propensity to consume between workers and business owners. The transfer may result in societal gain during periods when the economy is operating below potential to the extent that transferring income to workers with a relatively high marginal propensity to consume results in a larger multiplier effect and impact on GDP. Conversely, this transfer may also reduce the profits available to firms for business investment.
One of Congress' goals in enacting the FLSA in 1938 was to spread employment to a greater number of workers by effectively raising the wages of employees working more than 40 hours per week. To the extent that firms respond to an update to the salary level test by reducing overtime, they may do so by spreading hours to other workers, including: Current workers employed for less than 40 hours per week by that employer, current workers who retain their exempt status, and newly hired workers. If new workers are hired to absorb these transferred hours, then the associated hiring costs are a cost of this proposed rulemaking. The reduction in hours is considered in more detail in section VII.D.v.
Transfer payments occur when income is redistributed from one party to another. The Department has quantified two possible transfers likely to result from this proposed update to the salary level tests: (1) Transfers to employees from employers to ensure compliance with the FLSA minimum wage provision; and (2) transfers to employees from employers to ensure compliance with the FLSA overtime pay provision. Transfers in Year 1 to workers from employers due to the minimum wage provision were estimated to equal $46.7 million. The proposed increase in the HCE exemption compensation level does not affect minimum wage transfers because workers eligible for the HCE exemption earn well above the minimum wage. Transfers to employees from employers due to the overtime pay provision were estimated to be $1,435.8 million, $1,394.2 million of which is from the increased standard salary level, while the remainder is attributable to the increased HCE compensation level. Total Year 1 transfers were estimated to be $1,482.5 million (Table 18).
Because the overtime premium depends on the base wage, the estimates of minimum wage transfers and overtime transfers are linked. This can be considered a two-step approach. The Department first identified affected EAP workers with an implicit regular hourly wage lower than the minimum wage, and then calculated the wage increase necessary to reach the minimum wage. The implicit regular rate of pay is calculated as usual weekly earnings divided by usual weekly hours worked. For those employees whose implicit regular rate of pay is below the minimum wage, the overtime premium was based on the minimum wage as the regular rate of pay.
Transfers from employers to workers to ensure compliance with the federal minimum wage are small compared to the transfers attributed to overtime pay and are only associated with the change in the standard salary level (workers currently eligible for the HCE test earn well above the minimum wage). For purposes of this analysis, the hourly rate of pay is calculated as usual weekly earnings divided by usual weekly hours worked. In addition to earning low wages, this set of workers earns an hourly rate below the federal minimum wage and also works many hours per week. To demonstrate, in order to earn less than the federal minimum wage of $7.25 per hour, but at least $455 per week, these workers must regularly work significant amounts of overtime (since $455/$7.25 = 62.8 hours). The applicable minimum wage is the higher of the federal minimum wage and the state minimum wage. Most affected EAP workers already receive at least the minimum wage; an estimated 12,000 affected EAP workers (less than 0.3 percent of all affected EAP workers) currently earn an implicit hourly rate of pay less than the minimum wage. The Department estimated transfers due to payment of the minimum wage by calculating the change in earnings if wages rose to the minimum wage for workers who become nonexempt and thus would have to be paid the minimum wage.
In response to an increase in the regular rate of pay to the minimum wage, employers may reduce the workers' hours, which must be considered when estimating transfers attributed to payment of the minimum wage to newly overtime-eligible workers. In theory, because the quantity of labor hours demanded is inversely related to wages, a higher mandated wage could result in fewer hours of labor demanded. However, the weight of the empirical evidence finds that increases in the minimum wage have caused little or no significant job loss.
At the proposed salary level ($921 per week), the Department estimated that 12,000 affected EAP workers will on average see an hourly wage increase of $0.98, work 1.0 fewer hour per week, and receive an increase in weekly earnings of $74.0 as a result of coverage by the minimum wage provisions (Table 19). Thus, the total change in weekly earnings due to the payment of the minimum wage was estimated to be $897,300 per week ($74.0 × 12,000) or $46.7 million in Year 1.
The proposed rule will also transfer income to affected EAP workers working in excess of 40 hours per week through payment of overtime to workers earning between the current and proposed salary levels. The size of the transfers will depend largely on how employers respond to the proposed salary level for affected EAP workers who work overtime. Employers may respond by: (1) Paying the required overtime premium to affected workers for the same number of overtime hours at the same implicit regular rate of pay; (2) reducing the regular rate of pay for workers working overtime; (3) eliminating overtime hours and potentially transferring some of these hours to other workers; (4) increasing workers' salary to the proposed salary level; or (5) using some combination of these responses. How employers will respond depends on the relative costs of each of these alternatives; in turn, the relative costs of each of these alternatives are a function of workers' earnings and hours worked.
The simplest approach to estimating these transfer payments would be to multiply an employee's regular rate of pay (after compliance with the minimum wage) by 1.5 for all overtime hours; this is referred to as the “full overtime premium” model.
This section focuses on evaluating employers' responses to affected EAP workers who work regular overtime (usually work more than 40 hours in a week). The requirement that employers pay newly nonexempt employees in accordance with minimum wage and overtime requirements may result in changes in employment conditions; requiring an overtime premium increases the marginal cost of labor, which employers will likely try to offset by adjusting wages or hours. How employers respond to a new salary level and the ensuing changes in employment conditions will depend on the demand for labor, current wages, employer and employee bargaining power, and other factors. To model employer responses, the Department used a method that reflects the average response among all employers for all affected workers. However, individual employer responses will vary.
Two conceptual models are useful for thinking about how employers may respond to reclassifying certain employees as overtime eligible: The “full overtime premium” model and the “employment contract” model.
The full overtime premium model is based on the traditional “labor demand” model of determining wage and hour conditions. In the labor demand model, employers and employees negotiate fixed hourly wages and then subsequently negotiate hours worked, rather than determining both hours and pay simultaneously. This model assumes employees are aware of the hourly wage rate they negotiated and may be more reluctant to accept downward adjustments. The labor demand model would apply if employees had a contract to be paid at an hourly rate, meaning that employers could not reduce the regular rate of pay in response to the requirement to pay a 50 percent premium on hours worked beyond 40 in a week. However, the increase in the cost of labor would lead to a reduction in the hours of labor demanded as long as labor demand is not completely inelastic. The full overtime premium model is a particular scenario of the labor demand model in which the demand for labor is completely inelastic, that is employers will demand the same number of hours worked regardless of the cost.
In the employment contract model, employers and employees negotiate total pay and hours simultaneously, rather than negotiating a fixed hourly wage and then determining hours. Under this model, when employers are required to pay employees an overtime premium, they adjust the employees' implicit hourly rate of pay downward so that when the overtime premium is paid total employee earnings (and thus total employer cost) remain constant, along with the employees' hours. The employer does not experience a change in cost and the employee does not experience a change in earnings or hours. The employment contract model would hold if the workers who are reclassified as overtime protected had an employment agreement specifying set total earnings and hours of work.
The employment contract model tends to be more applicable to salaried workers while the labor demand model is generally more applicable to workers paid hourly. Since all affected EAP workers in this analysis are salaried, the Department believes the employment contract model may be more appropriate for estimating employer response to the proposed salary increase. However, the employment contract model may not always hold true due to market constraints, employer incentives, or workers' bargaining power. Four examples are provided.
• Employers are constrained because they cannot reduce an employee's implicit hourly rate of pay below the minimum wage. If the employee's implicit hourly rate of pay before the change is at or below the minimum wage, then employers will not be able to reduce the rate of pay to offset the cost of paying the overtime premium.
• Employees generally have some, albeit limited, bargaining power which may prevent employers from reducing the employee's implicit hourly rate of pay to fully offset increased costs.
• Employers may be hesitant to reduce the employee's implicit hourly rate of pay by the entire amount predicted by the employment contract model because it may hurt employee morale and consequently productivity.
• Employers are often limited in their ability to pay different regular rates of pay to different employees who perform the same work and have the same qualifications. In order to keep wages constant across employees and reduce wages for overtime workers, employers would need to reduce the implicit hourly rate of pay for employees who do not work overtime as well as those who do work overtime. This would reduce total earnings for these non-overtime employees (potentially causing retention problems, productivity losses, and morale concerns).
Therefore, the likely outcome will fall somewhere between the conditions predicted by the full overtime premium and employment contract models. For
Barkume (2010) and Trejo (1991) empirically tested for evidence of these two competing models by measuring labor market responses to the application of FLSA overtime pay regulations.
In practice, employers do not seem to adjust wages of regular overtime workers to the full extent indicated by the employment contract model, and thus employees appear to get a small but significant increase in weekly earnings due to coverage by overtime pay regulations. Barkume and Trejo found evidence partially supporting both the employment contract model and the full overtime premium model in response to a 50 percent overtime premium requirement: A decrease in the regular rate of pay for workers with overtime (but not the full decrease to the employment contract model level) and a decrease in the probability of working overtime. Therefore, when modeling employer responses with respect to the adjustment to the regular rate of pay, the Department used a method that falls somewhere between the employment contract model and the full overtime premium model (
Barkume reported two methods to estimate this partial employment contract wage, depending on the amount of overtime pay assumed to be paid in the absence of regulation. As noted above, the Department believes both the model assuming a voluntary 28 percent overtime premium and the model assuming no voluntary overtime premium are unrealistic for the affected population. Therefore, lacking more information, the Department determined that an appropriate estimate of the impact on the implicit hourly rate of pay for regular overtime workers after the proposed rule should be determined using the average of Barkume's two estimates of partial employment contract model adjustments: A wage change that is 40 percent of the wage change assuming an initial zero overtime pay premium, and a wage change that is 80 percent of the wage change assuming an initial 28 percent overtime pay premium.
How employers adjust workers' wages and hours depends on employment conditions. The discussion begins with a description of how employment conditions affect employers' wage adjustments depending on the differing work characteristics of their employees. However, changing employees' earnings is also likely to result in adjustments to hours worked. Thus, after estimating wage adjustments the Department calculated the adjustments to hours worked as a function of the new wage. Finally, transfers from employers to employees were estimated as a function of the changes in wages and the changes in hours.
The Department identified four types of workers whose work characteristics impact how employers were modeled to respond to the proposed changes in both the standard and HCE salary levels:
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Type 1 affected EAP workers will become overtime eligible, but since they do not work overtime, they will see no change in their weekly earnings. Type 2 and Type 3 affected EAP workers will become overtime eligible and must be paid the overtime premium for any overtime hours worked and may see changes in their regular rate of pay, and/or hours, and thus weekly earnings. As explained in more detail below, Type 2 and Type 3 affected workers were modeled differently due to the difference in the nature of the overtime hours worked. Type 3 workers receive wages adjusted for partial compliance with the employment contract model and their hours adjust in response. Type 4 workers are those who regularly work overtime, but will remain exempt because their weekly earnings will be raised to the proposed EAP salary level (either the standard salary level or HCE compensation level depending on which test the worker passed). How employers respond to workers who work overtime hours is described in more detail in the following paragraphs for Type 2 and Type 3 workers.
The Department distinguishes those who regularly work overtime (Type 3 workers) from those who occasionally, or irregularly, work overtime (Type 2 workers) because employer adjustment to the proposed rule may differ accordingly. The Department believes that employers are more likely to adjust hours worked and wages for regular overtime workers because their hours are predictable. Conversely, it may be more difficult to adjust hours and wages for occasional overtime workers because employers may be responding to a transient, perhaps unpredicted, shift in market demand for the good or service they provide. In this case it is likely advantageous for the employer to pay for this occasional overtime rather than to adjust permanent staffing. Additionally, the transient and possibly unpredicted nature of the change may make it difficult to adjust wages for these workers.
The Department treats Type 2 affected workers in two ways due to the uncertainty of the nature of these occasional overtime hours worked. If these workers work extra hours on an unforeseen, short-term, as-needed basis (
Our estimate for how Type 2 workers are affected is based on the assumption that 50 percent of these workers who worked occasional overtime worked
Since affected Type 2 and Type 3 EAP workers work more than 40 hours per week, whether routinely or occasionally, they will now be overtime protected. These workers will receive an overtime premium based on their implicit hourly wage adjusted as described above. Because employers must now pay more for the same number of labor hours, they will seek to reduce those hours; in economics, this is described as a decrease in the quantity of labor hours demanded (a movement to the left along the labor demand curve). It is the net effect of these two changes that will determine the final weekly earnings for affected EAP workers. Next we describe how these workers' hours adjust in response to the change in their implicit hourly wage and the requirement to pay an overtime premium on that wage for each hour worked in excess of 40 hours per week.
The reduction in hours is calculated using the elasticity of labor demand with respect to wages. The Department used a short-run demand elasticity of
The Department calculates the percent increase in hourly wages since it must be used with the elasticity of labor demand to determine the change in hours. This is equal to workers' new average hourly wage (including overtime pay) divided by their original implicit hourly wage. For Type 3 affected workers, and the 50 percent of Type 2 affected workers who worked
Figure 4 is a flow chart summarizing the four types of affected EAP workers. Also shown are the impacts on exempt status, weekly earnings, and hours worked for each type of affected worker.
The Department projects 4.7 million workers will be affected by either (1) an increase in the standard salary level to the 40th earnings percentile because they earn salaries between $455 per week and $921 per week or (2) an increase in the HCE compensation level to the 90th earnings percentile, $122,148 annually. These workers are categorized into the four “types” identified previously. There are 3.5
The proposed rulemaking will likely impact affected workers' wages, hours, and earnings. How these will change depends on the type of worker. Predicted changes in implicit wage rates are outlined in Table 21; changes in hours in Table 22; and changes in weekly earnings in Table 23. Type 1 workers will have no change in wages, hours, or earnings.
Estimating changes in the regular rate of pay for Type 3 workers and the 50 percent of Type 2 workers who regularly work occasional overtime requires application of the partial employment contract model, which predicts a decrease in their average regular rates of pay. The Department estimates that employers would decrease these workers' regular hourly rates of pay to the amount predicted by the partial employment contract model adjustment. Employers would not be able to adjust the regular rate of pay for the occasional overtime workers whose overtime is irregularly scheduled and unpredictable (the remaining 50 percent of Type 2 workers). As a group, Type 2 workers currently exempt under the standard test would see a decrease in their average regular hourly wage (
Type 3 workers will also receive decreases in their regular hourly wage as predicted by the partial employment contract model. Type 3 affected workers paid below the proposed standard salary level would have their regular hourly rate of pay decrease on average from $14.71 to $13.93 per hour, a decrease of 5.3 percent. Type 3 workers paid between $100,000 and the proposed HCE compensation level would have their regular rate of pay decrease on average from $39.23 to $36.66 per hour, a decrease of 6.5 percent. Again, although regular hourly rates decline, weekly earnings will increase on average because these workers are now eligible for the overtime premium.
Type 4 workers' implicit hourly rates of pay would increase in order for their earnings to meet the proposed standard salary level ($921 per week) or the proposed HCE annual compensation level (122,148 annually). The implicit hourly rate for Type 4 affected EAP workers who had earned between $455 and $921 per week would
Type 1 and Type 4 workers would have no change in hours. Type 1 workers' hours would not change because they do not work overtime and thus the requirement to pay an overtime premium does not affect them. Type 4 workers' hours would not change because they continue to be exempt, and therefore are not paid a premium for overtime hours. Type 2 and Type 3 workers would see a small decrease in their hours of overtime worked. This reduction in hours is relatively small and is due to the effect on labor demand of the increase in the average hourly base wage as predicted by the employment contract model.
Type 2 workers who would be newly overtime eligible would see a decrease in average weekly hours in weeks where occasional overtime is worked, from 48.0 to 47.9 hours (0.3 percent) (Table 22).
Type 3 workers affected by the increase in the standard salary level would see a decrease in hours worked from 50.7 to 50.3 hours per week (0.8 percent). Type 3 workers affected by the increase in the HCE compensation level would see an average decrease from 53.7 to 53.3 hours per week (0.8 percent).
Because Type 1 workers do not experience a change in their regular rate of pay or hours they would have no change in earnings due to the proposed rule (Table 23). While their hours are not expected to change, Type 4 workers' salaries would increase to the proposed standard salary level or HCE compensation level (depending on which test they pass). Thus, Type 4 workers' average weekly earnings would increase by $20.47 (2.3 percent) for those affected by the change in the standard salary level and by $27.36 per week (1.2 percent) for those affected by the HCE compensation level.
Although both Type 2 and Type 3 workers on average experience a decrease in both their regular rate of pay and hours worked, their weekly earnings are expected to increase as a result of the overtime premium. Based on a standard salary level of $921 per week, Type 2 workers' average weekly earnings increase from $879.35 to $925.33, a 5.2 percent increase.
Average weekly earnings of Type 3 workers also increase. For Type 3 workers affected by the standard salary level, average weekly earnings would increase from $731.54 to $751.13, an increase of 2.7 percent. Type 3 workers affected by the change in the HCE compensation level have an increase in average weekly earnings from $2,057.41 to $2,117.56, an increase of 2.9 percent.
Weekly earnings after an increase to the proposed standard salary level were estimated using the new wage (
At the proposed standard salary level, multiplying the average change of $5.96 by the 4.6 million affected standard EAP workers equals an increase in earnings of $27.7 million per week or $1,441 million in the first year (Table 24). Of the weekly total, $897,000 is due to the minimum wage provision and $26.8 million stems from the overtime pay provision. For workers affected by the change in the HCE compensation level, average weekly earnings increase by $22.16 ($51.91 if Type 1 workers, who do not work overtime, are excluded). When multiplied by 36,000 affected workers, the national increase in weekly earnings will be $801,000 per week, or $41.7 million in the first year. Thus, Year 1 transfer payments attributable to this proposed rule total $1,482.5 million. If the Department assumed Type 2 workers received no additional pay for occasional overtime hours prior to the rulemaking (as discussed above), then Year 1 transfers would instead be $1,499.1 million.
There may be additional transfers attributable to this proposed rulemaking; however, the magnitude of these other transfers could not be quantified. These transfers are discussed in this section, as well as in section VII.D.vii, below.
Changing the EAP salary and HCE compensation level tests may impact whether a worker is classified as overtime ineligible or overtime eligible. Some evidence suggests that it is more costly for an employer to employ a salaried worker than an hourly worker. If true, employers may choose to accompany the change in exemption status with a change to the employee's method of pay, from salary to an hourly basis, since there is no longer an incentive to classify the worker as salaried.
If the worker prefers to be salaried rather than hourly, then this change may impact the worker. The likelihood of this impact occurring depends on the costs to employers and benefits to employees of being salaried. Research has shown that salaried workers (who are not synonymous with exempt workers, but whose status is correlated with exempt status) are more likely than hourly workers to receive benefits such as paid vacation time and health insurance
Additionally, even if a worker's salaried status is not officially changed, a salaried worker may effectively become an hourly worker if managers have to monitor hours more closely, so the worker may have less flexibility in work schedule.
Holding regular rate of pay and work hours constant, payment of an overtime premium will increase weekly earnings for workers who work overtime. However, as discussed previously, employers may try to mitigate cost increases by reducing the number of overtime hours worked, either by transferring these hours to other workers or monitoring hours more closely. Depending on how hours are adjusted, a specific worker may earn less pay after this proposed rulemaking. For example, assume an exempt worker is paid for overtime hours at his regular rate of pay (not paid the overtime premium but still acquires a benefit from each additional hour worked over 40 in a week). If the employer does not raise the worker's salary to the new level, requiring the overtime premium may cause the employer to reduce the worker's hours to 40 per week. If the worker's regular rate of pay does not increase, the worker will earn less due to the lost hours of work.
Deadweight loss (DWL) occurs when a market operates at less than optimal equilibrium output. This typically results from an intervention that sets, in the case of a labor market, wages above their equilibrium level. While the higher wage results in transfers from employers to workers, it also causes a decrease in the total number of labor hours that are being purchased on the market. DWL is a function of the difference between the wage the employers were willing to pay for the hours lost and the wage workers were willing to take for those hours. In other words, DWL represents the total loss in economic surplus resulting from a “wedge” between the employer's willingness to pay and the worker's willingness to accept work arising from the proposed change. DWL may vary in magnitude depending on market parameters, but is typically small when wage changes are small or when labor supply and labor demand are relatively price (wage) inelastic.
The DWL resulting from this proposed rulemaking was estimated based on the average decrease in hours worked and increase in hourly wages calculated in section VII.D.v. As the cost of labor rises due to the requirement to pay the overtime premium, the demand for overtime hours decreases, which results in fewer hours of overtime worked. To calculate the DWL, the following values must be estimated:
• The increase in average hourly wages for affected EAP workers,
• the decrease in average hours per worker, and
• the number of affected EAP workers.
Only 50 percent of Type 2 workers (those who work regular or predictable occasional overtime) and Type 3 workers are included in the DWL calculation because the other workers either do not work overtime (Type 1), continue to work the same number of overtime hours (Type 4), or their employers are unable to adjust their hourly wage because their overtime hours worked are unpredictable (the other 50 percent of Type 2 workers). As described above, after taking into account a variety of potential responses by employers, the Department estimated the average wage change for EAP affected workers whose hours change. Workers impacted by the change in the standard salary level are considered separately from workers impacted by the change in the HCE compensation level.
For workers affected by the revised standard salary level, and who experience a change in hours, average wages (including overtime) will increase by $0.68 per hour. Average hours will fall by 0.40 per week. These changes result in an average DWL of $0.14 per week per Type 2 (the 50 percent who work foreseeable overtime) and Type 3 worker. An estimated 1.01 million workers will be eligible for the overtime premium on some of their hours worked after employer adjustments are taken into account. Multiplying the $0.14 per worker estimate by the number of affected workers results in a total DWL of $7.2 million in the first year of this proposed rulemaking attributable to the revised standard salary level (1.01 million workers in DWL analysis x $0.14 per worker per week x 52 weeks).
For workers affected by the revised HCE compensation level and who experience a change in hours, the average hourly wage will increase by $2.14 and average hours worked will fall by 0.41 per week. This results in an average DWL of $0.44 per week for each of the estimated 12,000 workers affected by the compensation level who will see their hours fall. Multiplying this per worker estimate by the number of affected workers results in a DWL of $273,000 in the first year attributable to the HCE component of this proposed rulemaking (12,000 workers in DWL analysis x $0.44 per worker x 52 weeks). Thus, total DWL attributed to the proposed rulemaking is estimated to be $7.4 million in Year 1, which is small in comparison to the size of the costs and transfers associated with this proposal.
In addition to the 4.7 million affected EAP workers who will be newly eligible for overtime protection (absent employer response to increase the salary level to retain the exemption), overtime protection will be strengthened for an additional 10.0 million salaried workers who earn between the current salary level of $455 per week and the proposed salary level of $921 per week. These workers, who were previously vulnerable to misclassification through misapplication of the duties test, will now be automatically overtime protected because their salary falls below the new salary level and therefore they will not be subject to the duties test. These 10.0 million workers include:
• 6.3 million salaried white collar workers who are at particular risk of being misclassified because they currently pass the salary level test but do not satisfy the duties test; and
• 3.7 million salaried workers in blue collar occupations whose overtime protection will be strengthened because their salary will fall below the proposed salary threshold.
Although these workers are currently entitled to minimum wage and overtime protection, their protection is better assured with the proposed salary level. The salary level test is considered a bright-line test because it is clear to employers and employees alike whether or not a worker passes. The duties test (which is the reason employers cannot claim the EAP exemption for the above workers) is more discretionary and therefore harder to apply. An outdated salary level reduces the effectiveness of this bright-line test. At the proposed salary level, the number of overtime-eligible white collar workers earning at or above the salary level will decrease by 6 million, and an estimated 806,562 (13.5 percent) of these workers are currently misclassified as exempt. Therefore, increasing the salary level is expected to result in less worker misclassification. Employers will be able to more readily determine their legal obligations and comply with the law, thus leading to benefits, costs and transfers that are qualitatively similar to the impacts discussed elsewhere in this analysis but the magnitudes of which have not been estimated.
Reducing the number of white collar employees for whom a duties analysis must be performed in order to
Setting an appropriate salary level for the standard duties test and maintaining the salary level with automatic updates will restore the test's effectiveness as a bright-line method for determining exempt status, and in turn decrease the litigation risk created when employers must apply the duties test to employees who generally are not performing bona fide EAP work. This will eliminate legal challenges regarding the duties test involving employees earning between the current salary level ($455) and the proposed level ($921).
The proposed rule may have an impact on employees who are not currently working any overtime, but will now be entitled to minimum wage and overtime pay protections. These workers may face a lower risk of being asked to work overtime in the future, because they are now entitled to an overtime premium, which could reduce their uncertainty and improve their welfare if they do not desire to work overtime. Additionally, if they are asked to work overtime, they are compensated for the inconvenience with an overtime premium.
Economic theory suggests that workers tend to assign monetary values to risk or undesirable job characteristics, as evidenced by the presence of compensating wage differentials for undesirable jobs, relative to other jobs the worker can perform in the marketplace. To the extent a compensating wage differential exists, compensation may decrease with the reduction in uncertainty.
Due to the increase in marginal cost for overtime hours, employers will demand fewer hours from some of the workers affected by this rule.
Empirical evidence shows that workers in the United States typically work more than workers in other comparatively wealthy countries.
Well-Being after an Hours Reduction. IZA DP No. 8077.
Golden, L., & Gebreselassie, T. (2007). Overemployment mismatches: the preference for fewer work hours.
Hamermesh, D.S. (2014). “Not enough time?”
This is likely an overestimate to the extent that not all workers would prefer to work fewer hours and thus some of these workers might experience an adverse impact. In addition, the estimated work loss represents an average over all affected workers, and some workers may experience a larger reduction in hours.
The largest benefit to workers from the proposed rule is the transfer of income from employers (as discussed in the transfer section of the analysis); but, to the extent that the benefits to workers outweigh the costs to employers, there may be a societal welfare increase due to this transfer. The channels through which societal welfare may increase and other secondary benefits may occur are discussed below and include increased productivity and improved worker outcomes, such as improved health. The discussion references the potential magnitude of these benefits where possible; however, due to data limitations and mixed evidence on the significance of such effects, the Department was not able to quantify the size of these potential benefits.
Working long hours is correlated with an increased risk of injury or health problems.
This proposed rule is expected to increase the marginal cost of some workers' labor, predominately due to the overtime pay requirement since almost all affected EAP workers already earn the federal minimum wage. However, some of the cost to employers of paying the overtime premium may be offset by increased worker productivity. This may occur through a variety of channels, including: increased marginal productivity as fewer hours are worked, reduction in turnover, efficiency wages, and worker health.
Reduction in turnover: Research demonstrates a positive correlation between earnings and employee turnover: as earnings increase, employee turnover decreases.
Shaw, J. D. (2011). Turnover Rates and Organizational Performance: Review, Critique, and Research Agenda.
It is difficult to estimate the impact of reduced turnover on worker productivity and firm hiring costs. The potential reduction in turnover is a function of several variables: the current wage, hours worked, turnover rate, industry, and occupation. Additionally, estimates of the cost of replacing a worker who quits vary significantly. Therefore, quantifying the potential benefit associated with a decrease in turnover attributed to this proposed rule is difficult.
Efficiency wages: By increasing earnings this proposed rulemaking may increase a worker's productivity by incentivizing the worker to work harder. Thus the additional cost to firms may be partially offset by higher productivity. In particular, the estimated managerial costs associated with greater monitoring effort may be offset due to this effect. A strand of economic research, commonly referred to as “efficiency wages,” considers how an increase in wages may be met with greater productivity.
Conversely, there are channels through which mandating overtime pay may reduce productivity. For example, some overtime hours may be spread to other workers. If the work requires significant project-specific knowledge or skills, then the new worker receiving these transferred hours may be less productive than the first worker, especially if there is a steep learning curve. Additionally, having an additional worker versed in the project may be beneficial to the firm if the first worker leaves the firm or is temporarily away (
The transfer of income resulting from this proposed rule may result in reduced need for social assistance (and by extension reduced social assistance expenditures by the government). A worker earning the current salary level of $455 per week earns $23,660 annually. If this worker resides in a family of four and is the sole earner, then the family will be considered impoverished. This makes the family eligible for many social assistance programs. Thus, transferring income to these workers may reduce eligibility for government social assistance programs and government expenditures. A social welfare improvement will result from the reduced resource needs for making those transfer payments.
Benefits for which currently EAP exempt workers may qualify include Medicaid, the Supplemental Nutrition Assistance Program (SNAP), the Temporary Assistance for Needy Families (TANF) program, the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and school breakfasts and lunches. Quantifying the impact of this proposed rulemaking on government expenditures
Because the Department cannot predict the precise reaction of employers to the proposed rule, the Department also calculated bounds to the size of the estimated transfers from employers to workers using a variety of assumptions. Since transfer payments are the largest component of this proposed rulemaking the scenarios considered here are bounds around the transfer estimate. Based on the assumptions made, these bounds do not generate bounded estimates for costs or DWL.
The maximum potential upper limit occurs with the assumption that the demand for labor is completely inelastic, and therefore neither the implicit regular hourly rate of pay nor hours worked adjust in response to the changes in the EAP standard salary level and HCE annual compensation level test. Employers then pay workers one and a half times their current implicit hourly rate of pay for all overtime hours currently worked (
For a more realistic upper bound on transfer payments, the Department assumed that all occasional overtime workers and half of regular overtime workers would receive the full overtime premium, as it was computed in the maximum upper bound methodology (
The plausible lower transfer bound also depends on whether employees work regular overtime or occasional overtime. For those who regularly work overtime hours and half of those who work occasional overtime, the Department assumes the employees' wages will fully adjust as predicted by the employment contract model, whenever possible (in the preferred method their wages adjust based on the partial employment contract model).
The cost and transfer payment estimates associated with the bounds are presented in Table 27. Regulatory familiarization costs and adjustment costs do not vary across the scenarios. These employer costs are a function of the number of affected firms or affected workers, human resource personnel hourly wages, and time estimates. None of these vary based on the assumptions made above. Conversely, managerial costs are lower under these alternative employer response assumptions because fewer workers' hours are adjusted by employers and thus managerial costs, which depend on the number of workers whose hours change, will be smaller. Managerial costs vary according to employers' response to the proposed rule.
Depending on how employers adjust the implicit regular hourly wage, the estimated transfer may range from $543.7 million to $2,851.2 million, with the preferred estimate equal to $1,482.5 million. The DWL associated with the preferred estimate is $7.4 million. The
The Department proposes in this NPRM to update the standard salary level to the 40th percentile of weekly earnings for all full-time salaried workers ($921 per week). The Department considered a range of alternatives before deciding on this level. Seven alternatives are presented here. Two of these (alternatives 1 and 7) inflate the value of earlier salary levels to take into account inflation in the intervening years. Three others (alternatives 2, 3, and 5) adapt the 2004 method or the Kantor method to set the salary level. Alternatives 4 and 6 set the salary level to the median weekly salary for either all full-time hourly and salaried workers or full-time salaried workers, respectively. Table 28 presents the alternative salary levels considered and the number of workers estimated to be affected under these salary levels.
Alternative 1 increases the 2004 salary level of $455 per week by the rate of inflation between 2004 and 2013 as measured by the CPI-U. This results in a salary level of $561 per week. At this salary level 576,000 workers would be affected in Year 1, imposing direct adjustment and managerial costs of $36.1 million, transferring $127.9 million in earnings from employers to employees, and resulting in DWL of $0.5 million.
Alternative 2 sets the salary level using the 2004 method resulting in a salary level of $577 per week. At this salary level 734,000 workers would be affected, Year 1 adjustment and managerial costs would equal $44.5 million, with transfers of $151.5 million, while DWL would equal $0.7 million.
Alternative 3 sets the salary level using the Kantor method. This results in a salary level of $657 per week. At this salary level, 1.4 million workers are affected, Year 1 adjustment and managerial costs are $91.8 million, Year 1 transfers are $318.6 million, and Year 1 DWL is $1.7 million.
Alternative 4 sets the salary level equal to the 50th percentile, or median, of weekly earnings for full-time hourly and salaried workers. This results in a salary level of $776 per week. At this salary level, 2.7 million workers would be affected in Year 1, employer costs would total $179.8 million with transfers of $686.6 million, and DWL would be $3.6 million.
Alternative 5 is based on the Kantor method but, whereas alternative 3 generates the salary level associated with the long duties test, alternative 5 generates a level more appropriate to the short duties test (as explained in section VII.C) and results in a salary level of $979 per week. At this salary level, 5.6 million workers would be affected in Year 1, with adjustment and managerial costs of $404.2 million, transfers of $1.8 billion, and DWL equal to $10.3 million. As previously noted, while this alternative uses the average difference between the Kantor long and short tests, the ratio of the short to long salary tests ranged between approximately 130 percent and 180, which would result in a salary between $854 and $1,183.
Alternative 6 sets the standard salary equal to the 50th percentile, or median, of weekly earnings for full-time salaried workers. This approach is similar to the proposed method but uses a higher weekly earnings percentile: 50th instead of the 40th. This results in a salary level of $1,065 per week. At this salary level, 6.9 million workers would be affected in Year 1, employer costs would total $522.1 million with transfers of $2.5 billion, and DWL would be $14.8 million.
Alternative 7 increases the 1975 short test salary level of $250 per week by the rate of inflation from 1975 to 2013. This results in a salary level of $1,083 per week. At this salary level, 7.1 million workers would be affected in Year 1, employer costs would total $543.0 million with transfers of $2.7 billion, and DWL would be $15.5 million.
The Department also examined alternatives to the proposed HCE compensation level. HCE alternative 1 left the current $100,000 annual compensation level unchanged. Therefore, no employer costs, transfers, or DWL are associated with this alternative.
HCE alternative 2 sets the HCE annual compensation level at $150,000 per year. This compensation level would affect 52,000 workers in Year 1 (compared to 36,000 at the proposed compensation level), impose adjustment and managerial costs on employers of $5.5 million, transfer $71.2 million in earnings from employers to employees, and generate $600,000 in DWL. Because regulatory familiarization costs cannot realistically be differentiated into those relevant to the standard salary level, and those relevant to the HCE compensation level, the Department does not separately estimate those costs for the HCE alternatives.
In addition to estimating Year 1 costs and transfers, the Department projected costs and transfers forward for ten years. To project costs and transfers, the Department used several pieces of data, specifically the median wage growth rate and the employment growth rate. These calculations are described below, after which the ten-year projected costs and transfers are presented.
The projections presented in this section assume the proposed salary level remains constant over ten years. Thus, the number and percent of affected EAP workers decline over time as real earnings increase.
In order to identify workers whose projected salaries fall between the current salary level ($455 per week) and the proposed salary level based on the 40th earnings percentile ($921 per week), a wage growth rate must be applied to current earnings. The Department applied an annual real growth rate based on the average annual growth rate in median wages from 2005 to 2012.
An alternative method would be to use the time series of median wage data to estimate the linear trend in the values and continue this to project future median wages. This method may be preferred if either or both of the endpoint years are outliers, since the trend will be less influenced by them. The linear trend may be flawed if there are outliers in the interim years (because these have no impact on the geometric mean but will influence the estimate of a linear trend). The Department chose to use the geometric mean because individual year fluctuations are difficult to predict and applying the geometric growth rate to each year provides a better estimate of the long-term growth in wages. Using this method is also consistent with the estimation of the employment growth rate as described below.
The geometric wage growth rate was also calculated from the BLS' Occupational Employment Statistics (OES) and used as a validity check.
The Department calculated projected earnings for each worker in the sample by applying the annual projected wage growth rate to current earnings for each projected year. In each projected year, affected EAP workers were identified as those who are exempt in the current year (prior to the rule change) but have projected earnings in the projected year that are less than the proposed salary level.
The employment growth rate is the geometric annual growth rate based on the ten-year employment projection from BLS' National Employment Matrix (NEM) within an occupation-industry category. This is the constant annual growth rate that when compounded yields the NEM ten-year projection. An alternative method is to spread the total change in the level of employment over the ten years evenly across years (constant change in the number employed). The Department believes that on average employment is more likely to grow at a constant percentage rate rather than by a constant level (a decreasing percentage rate). To account for population growth, the Department applied the growth rates to the sample weights of the workers. This is because the Department cannot introduce new observations to the CPS MORG data to represent the newly employed.
Affected EAP workers may experience a reduction in hours since the wage they receive for overtime hours is higher after the proposed rulemaking. The reduction in hours is calculated as described in section VII.D.v. The only difference is that for projections the long-run elasticity of labor demand is used instead of the short-run elasticity. The Department used a long-run elasticity of −0.4.
Projected costs and transfers both depend on the projected number of affected EAP workers. The Department estimated that in Year 1 4.7 million EAP workers will be affected, with about 36,000 of these attributable to the revised HCE compensation level. In Year 10, if the salary levels are not updated, the number of affected EAP workers was estimated to equal 2.7 million, with fewer than 8,000 attributed to the HCE exemption. The projected number of affected EAP workers accounts for projected employment growth by increasing the number of workers represented by the affected EAP workers (
The projected number of affected workers only includes workers who were originally determined to be exempt in 2013. However, additional workers may be affected in future years who were not EAP exempt in the base year but would have become exempt in the absence of this proposed rule. For example, a worker may earn less than $455 in 2013 but at least $455 (and less than the proposed salary level) in subsequent years; such a worker would not be counted as an affected worker in the projections above. In the absence of this proposed rule he or she would likely have become exempt at some point in the 10-year projections period; however, as a result of the proposed rule, this worker remains nonexempt, and is thus affected by the proposed rule.
Therefore, the Department estimated the number of workers who were: Paid on a salary basis, pass the duties test, and earn less than $455 per week in 2013, but are projected to earn at least $455 (but less than the proposed salary level) per week at some point in the following nine years. The Department found that in Year 10, an additional 398,000 workers meet these criteria and therefore are also affected workers. Similarly, the Department estimated the number of workers who are paid on a salary basis, meet the HCE duties test, and currently earn less than $100,000 annually but are projected to earn more than $100,000 per year at some point in the following nine years. The Department estimated that, in Year 10, an additional 115,000 workers meet these criteria and therefore are also affected workers. The Department did not estimate costs, transfers, or DWL for these workers because it would be necessary to make additional assumptions such as how employers respond by adjusting workers' wages and hours.
The Department quantified three types of direct employer costs in the ten-year projections: (1) Regulatory familiarization costs; (2) adjustment costs; and (3) managerial costs. Regulatory familiarization costs are one-time costs and only occur in Year 1. Although start-up firms must still become familiar with the FLSA following Year 1, the difference between the time necessary for familiarization with the current part 541 exemptions and those exemptions as modified by the proposed rule is essentially zero. Therefore, projected regulatory familiarization costs over the next nine years are zero. Similarly, adjustment costs are only incurred when workers' status changes from exempt to nonexempt, so adjustment costs are incurred predominately in Year 1 (some very minor adjustment costs may exist in projected years because some workers' earnings decrease and thus these workers may transition from exempt to nonexempt).
However, managerial costs recur for all affected EAP workers whose hours are adjusted and were projected through Year 10. The Department estimated that Year 1 managerial costs would be $178.1 million (section VII.D.iv.4.); by Year 10 these costs would fall to $93.1 million (Table 29). Over 97 percent of this amount ($176.0 million) in Year 1, and roughly 99 percent ($92.6 million) in Year 10 is attributable to the revised standard salary level. The projected reduction in managerial costs over the years is due to the reduction in the number of affected EAP workers over time as workers' earnings increase relative to the constant salary and compensation levels.
The Department also projected two transfers associated with workers affected by the proposed regulation: (1) Transfers to workers from employers due to the minimum wage provision and (2) transfers to workers from employers due to the overtime pay provision. Transfers to workers from employers due to the minimum wage provision, estimated to be $46.7 million in Year 1, are projected to decline to $9.9 million in Year 10 as increased earnings over time move workers' regular rate of pay above the minimum wage.
Table 29 also summarizes average annualized costs and transfers over the ten-year projection period, using 3
The average annualized value of total transfers was estimated to equal $872.9 million. The largest component of this was the average annualized transfer from employers to workers due to overtime pay, which was $843.6 million per year, while average annualized transfers due to the minimum wage totaled $29.3 million per year. None of the transfer associated with the minimum wage was attributed to the revised HCE compensation level. Although composing less than one percent of affected workers, those receiving overtime due to the revised HCE compensation level account for 2.2 percent of total average annualized transfers ($19.5 of $872.9 million) because of their high implicit regular hourly rate of pay. The remaining $853.4 million in transfers accrue to those affected by the revised standard salary level.
The cost to society of lower employment expressed as DWL was estimated to be $7.4 million in Year 1. After year 2, DWL falls over time; in Year 10 it is projected to equal $4.3 million. DWL increases sharply between Year 1 and Year 2 because the Department assumes the market has had time to fully adjust to the revised standard salary and HCE annual compensation levels by Year 2. In Year 1 employers may not be able to fully adjust wages and hours in response to the rulemaking, so the Department used a short run wage elasticity of labor demand to reflect this constrained response; in Year 2 employers have sufficient time to fully adjust, and a long run wage elasticity is used. Therefore, the decrease in hours worked is larger in Year 2 than Year 1, and the DWL is also larger. Finally, the Department estimated that average annualized DWL was $7.2 million per year; about $200,000 of DWL (2.7 percent) was attributed to affected HCE workers, and the remaining $7.0 million was attributed to workers affected by the revised standard salary level.
A summary of the estimates used in calculating DWL for years 1, 2 and 10 is presented in Table 30. The size of the DWL depends on the change in average hourly wages, the change in average hours, and the number of affected EAP workers. While the change in average hourly wages generally tends to increase over time in the projected years, the number of affected EAP workers decreases over time; because the relative decrease in workers is larger than the relative increase in wages after Year 2, there is a net decrease in annual DWL over time.
In conclusion, because the number of affected EAP workers and consequently all costs and transfers diminish over time, the economic impact of the regulation will decrease over time as the real value of the salary levels fall. This occurs because real wages increase over time while the proposed salary levels would remain constant without automatic updating. However, if the salary levels are annually updated, the projected costs and transfers would increase over time. Cost and transfer projections based on the proposed standard salary level with annual updates are examined in section VII.E.iii.
Between periodic updates to the salary level, nominal wages typically increase, resulting in an increase in the number of workers qualifying for the EAP exemption even if there has been no change in their duties or real earnings. Thus, workers whom Congress intended to be covered by the minimum wage and overtime pay provisions of the FLSA lose that protection. Automatically updating the salary level would allow the level to keep pace with changes in either prices or earnings, keeping the real value of the salary level constant over time.
The Department proposes to include in the regulations a mechanism for automatically updating the proposed standard salary level and proposed HCE annual compensation level annually either by maintaining a fixed percentile of earnings (40th and 90th percentile of weekly wages for full-time salaried workers, respectively) or by updating the salary and compensation levels based on changes in the CPI-U. Automatically updating the EAP standard salary level and HCE compensation level would allow these levels to continue to serve as an effective dividing line between potentially exempt and nonexempt workers.
Furthermore, automatically updating the standard salary level and HCE compensation level would provide employers more certainty in knowing that the salary and compensation levels would change by a small amount each year, rather than the more disruptive increases caused by much larger changes after longer, uncertain increments of time. This would allow firms to better predict short- and long-term costs and employment needs.
There are many indices that could be used to adjust the salary levels. In general, these indices are classified into two groups: Price indices and earnings indices.
Price indices are normalized averages of prices used to measure the change in the average level of prices in an economy over time. The general growth rate of prices, also known as the inflation rate, is calculated as the annual percentage increase in the average price level. A price index is intended to measure the cost of achieving a given level of economic well-being or utility.
An alternative to indexing the salary level to a price level is to update the salary level based upon an earnings measure. Price indices are intended to keep a consumer's utility constant by adjusting for changes in the cost of living due to inflation. However, while price indices account for changes to the price of products in the market basket, they may not reflect the real growth in
This section details the price and earnings indices that were considered as methods to update the salary levels. The Department assessed each method's strengths, weaknesses, and current use. The methods considered include:
• Consumer Price Index for all urban consumers (CPI-U)
• Chained CPI (C-CPI-U)
• Earnings percentiles (fixed percentiles of the distribution of weekly earnings for full-time salaried workers)
The CPI-U is the most commonly used price index in the U.S. and is calculated monthly by BLS. The CPI-U holds quantities constant at base levels while allowing prices to change. The quantities are fixed to represent a “basket of goods and services” bought by the average consumer. However, most economists believe that the CPI-U overestimates the rate of inflation, although there are a broad range of views as to the sources and size of the overestimate. CPI-U estimates are generally not subject to revision.
The CPI-U is the primary index used by the government to index benefit payments, program eligibility levels, and tax payments, including:
• Federal income tax brackets, personal exemptions, and standard deductions.
• Both eligibility for and benefits under the Earned Income Tax Credit (EITC).
• Funding allocated to some government grants, such as funding to the Nutrition Education and Obesity Prevention Grant Program.
• Treasury inflation-indexed debt securities' interest rates.
• Many government programs' income eligibility requirements, including school meal programs.
• Federal poverty levels, which determine eligibility for many government social assistance programs.
The C-CPI-U is a variation of the CPI-U. The C-CPI-U is an index that accounts for changes in the market basket of goods from one year to the next. The C-CPI-U results in inflation estimates roughly 0.3 percentage points lower than the CPI-U.
Although the C-CPI-U is viewed by some as a more accurate measure of inflation than the CPI-U, it has shortcomings as an indexation method. “The C-CPI-U requires data on changes in consumers' spending patterns. Since those data are not available for several years the BLS releases preliminary estimates of the C-CPI-U and revises them over the following two years.”
Updating the salary levels based upon the growth rate of earnings at a specified percentile of the earnings distribution is consistent with the Department's historical practice of using salary level as a key criterion for the exemption. The growth rate of earnings reflecting labor market conditions is an appropriate measure of the relative status, responsibility, and independence that characterize exempt workers.
While earnings and prices generally mirror one another over time, they do not change in tandem. A price index maintains a constant level of utility or economic well-being; an earnings index reflects real gains in the standard of living. Accordingly, if earnings grow more quickly than prices an earnings index will increase the salary levels by more than a price index. Conversely, if prices grow more quickly than earnings a price index will increase the salary levels more than an earnings index.
The Department proposes to automatically update the standard salary level and the HCE annual compensation level annually either by maintaining them at a fixed percentile of earnings (the 40th and 90th percentiles of weekly wages for full-time salaried workers, respectively) or by updating the levels based on changes in the CPI-U. Updating salary and compensation levels based on earnings would keep the share of workers who are exempt fairly constant over time, while updating based on prices will keep the earnings power of the levels constant over time.
The Department is seeking detailed comments on both methods of updating the standard salary and HCE compensation levels. The CPI-U is based on a tremendous amount of data that represents average prices paid by a majority of Americans and is by far the best-known and most widely-used index. While earnings percentiles are less familiar, BLS publishes the deciles of weekly earnings for full-time salaried workers on a quarterly basis. In recent years the CPI-U has grown at a rate very closely aligned with the 40th percentile of earnings for full-time salaried workers; between 2003 and 2013 the average annual growth rates for the 40th percentile and CPI-U have been: 2.6 percent and 2.4 percent respectively. The Department therefore expects that both methods would produce similar standard salary levels in future years. Growth in CPI-U in recent years has been smaller than growth at the 90th percentile of earnings, however, so the HCE total annual compensation levels generated by these two methods may vary in the future.
In section VII.D.x. the Department projected ten years of costs and transfers due to a one-time increase in the standard salary and HCE compensation levels. Updating these salary levels annually will increase the number of affected workers because more workers will earn below the higher indexed salary levels than the fixed salary levels. Consequently, the projected costs and transfers of the proposed rule will increase with indexation.
In this section, the Department describes and quantifies the annual costs and transfer payments associated with automatically updating the salary levels under both methods (fixed percentile and CPI-U). To predict the salary and compensation levels in 2014 through 2022 using the fixed percentile method, the Department estimated the salary levels using data from 2003 through 2013, calculated the geometric average annual growth rate, and applied it to the future years. For example, between 2003 and 2013 the 40th percentile of earnings for full-time salaried workers increased by an average of 2.6 percent annually; therefore, the projected salary level for Year 2 is $945 ($921 × 1.026). For the
As the required salary levels are updated in Year 2 through Year 10 of the analysis, more workers will potentially be affected with automatic updating than without. With automatic updating of the salary levels, the number of affected EAP workers is projected to increase from 4.7 million to between 5.1 and 5.6 million over 10 years, depending on the updating methodology used. Conversely, in the absence of automatic updating, the number of affected EAP workers is projected to decline from 4.7 to 2.7 million (Table 31). The relatively constant number of affected workers over the years with updating validates the choice of indexing methods. Starting in Year 1 and running through Year 10 the population of affected workers as a percent of potentially affected workers (defined using the current salary level) increases modestly from 21.9 to 23.4 percent using the fixed percentile method, but declines modestly to 21.2 percent using the CPI-U method.
The three costs to employers previously considered are (1) regulatory familiarization costs, (2) adjustment costs, and (3) managerial costs. Regulatory familiarization costs only occur in Year 1 and thus do not vary with automatic updating. Adjustment costs and managerial costs are a function of the number of affected EAP workers and so will be higher with automatic updating. Adjustment costs will occur in projected years when workers are newly affected (which—while relatively rare—will be more common with automatic updating than without). Management costs recur each year for all affected EAP workers whose hours are adjusted. Therefore, managerial costs fall significantly over time without updating (since the number of affected EAP workers decreases over time) but increase modestly over time with annual updating (where the number of affected EAP workers increases over time because of the higher salary level). Similarly, transfers and DWL will both be higher with automatic updating than without because the number of affected workers will increase, rather than decrease, over time.
Table 31 presents the projected estimated costs, transfer payments, and DWL with and without automatic updating. Total direct costs were projected to decrease from $592.7 million in Year 1 to $225.3 million in Year 10 with fixed percentile updating and to $198.6 million in Year 10 with CPI-U updating. In the absence of automatic updating, costs were projected to decrease to $93.1 million in Year 10. Transfers from employers to employees were projected to decrease from $1,482.5 million to $1,339.6 million using the fixed percentile method, and to $1,191.4 million using the CPI-U method. Without updating, transfers were projected to decrease to $500.1 million in Year 10. DWL increases over time with automatic updating, but decreases over time without it. With updating, DWL was estimated to increase from $7.4 million to $11.2 million (fixed percentile method) or to $9.7 million (CPI-U method), but decline from $7.4 million to $4.3 million without updating.
In Years 1 through 10, using a 7 percent real discount rate, total annualized adjustment and managerial costs were estimated to average between $205.7 and $221.4 million per year with automatic updating (using CPI-U or fixed percentile, respectively) and $160.3 million without updating (Table 32). Therefore, the incremental average annualized direct employer costs of automatic updating is between $45.4 and $61.1 million per year. Average annualized total transfers were estimated to be between $1,178.0 and $1,271.4 million with automatic updating (using CPI-U or fixed percentile, respectively) and $872.9 million without updating, resulting in incremental transfers of between $305.2 and $398.5 million per year. Projected average annualized DWL totals between $9.5 and $10.5 million per year with automatic updating (using CPI-U or fixed percentile, respectively) and $7.2 million per year without updating. Thus, automatic updating increases DWL by between $2.3 and $3.3 million per year on average. Benefits were not monetized for either Year 1 or Years 2 through 10; therefore this section does not repeat the previous discussion on potential benefits.
The above table demonstrates that the two updating methods yield similar costs and transfers estimates. However, this does not imply these indices will necessarily result in similar salary levels over time. The Department compared the standard salary levels that would have resulted from 1998 to 2013 if (1) the standard salary level was set each year to the 40th percentile of weekly earnings for full-time salaried workers, and (2) the standard salary level was set using the growth in the CPI-U (and setting the level in 2013 to match the 40th percentile earnings level,
The Department has not proposed specific revisions to the standard duties tests; however, as mentioned in section III., we received significant input regarding this issue from both employer and employee representatives during the Department's stakeholder listening sessions. If changes were made to the standard duties tests, the Department would need to consider whether any of the probabilities of exemption for specific occupations used in the analysis would need to be revised since the new duties test would potentially result in workers in some occupations being more or less likely to meet the duties tests.
The Department has begun to consider whether O*NET can be used to identify any occupations for which the Department may need to adjust its assumptions of the likelihood of exemption should the Department revise the duties test. The O*NET database contains information on hundreds of standardized and occupation-specific descriptors. The database, which is available to the public, is continually updated by surveying a broad range of workers from each occupation. The database of occupational requirements and worker attributes describes occupations in terms of the skills and knowledge required, how the work is performed, and typical work settings.
For each occupation, O*NET includes a list of tasks performed, and rates the tasks' frequency, importance, relevance, and whether it is a core or supplemental task. O*NET also includes data on work activities, including the importance, relevancy, and frequency of specified tasks performed in each occupation. This information could inform the Department in determining whether the task is indicative of exempt duties.
The Department believes it could use O*NET data to construct a model to identify occupations for which the probability of exemption would be impacted by any changes to the duties tests. The Department also could look to O*NET data to determine changes to the probability codes for those identified occupations. Therefore, if there are any changes to the duties test, the Department would likely update its estimate of the impact of the rule based on its analysis of the O*NET data for any occupations for which the probability codes were modified.
The Department invites detailed comments on this proposed methodology and alternative data sources for determining the impact of any changes to the standard duties tests.
The number of workers exempt under the FLSA's part 541 regulations is unknown. It is neither reported by employers to any central agency nor asked in either an employee or establishment survey. The Department estimated the number of exempt workers using the following methodology. This methodology is based largely on the approach used during the 2004 revisions.
The CPS MORG data do not include information about job duties. To determine whether a worker meets the duties test the Department again employs the methodology it used in the 2004 Final Rule. Each occupation is assigned a probability representing the odds that a worker in that occupation would pass the duties test. For the EAP duties test, the five probability intervals are:
• Category 0: Occupations not likely to include any workers eligible for the EAP exemptions.
• Category 1: Occupations with probabilities between 90 and 100 percent.
• Category 2: Occupations with probabilities between 50 and 90 percent.
• Category 3: Occupations with probabilities between 10 and 50 percent.
• Category 4: Occupations with probabilities between 0 and 10 percent.
The occupations identified in this classification system represent an earlier occupational classification scheme (the 1990 Census Codes). Therefore, an occupational crosswalk was used to map the previous occupational codes to
Next, the Department must determine which workers to classify as exempt.
The 2004 Final Rule assigned probabilities for whether workers in each occupation would pass the HCE abbreviated duties test if they earned $100,000 or more in total annual compensation; these probabilities are:
• Category 0: Occupations not likely to include any workers eligible for the HCE exemption.
• Category 1: Occupations with a probability of 100 percent.
• Category 2: Occupations with probabilities between 94 and 96 percent.
• Category 3: Occupations with probabilities between 58.4 and 60 percent.
• Category 4: Occupations with a probability 15 percent.
Like under the standard test, there is a positive relationship between earnings and exemption status; however, unlike the standard test, the relationship for the HCE analysis can be represented well with a linear function. Once individual probabilities are determined, workers are randomly assigned to exemption status.
There are many other exemptions to the minimum wage and overtime pay provisions of the FLSA. Accordingly, in the 2004 Final Rule, the Department excluded workers in agriculture and certain transportation occupations from the analysis. The Department now is, in addition, estimating those workers who fall under one of the other exemptions in section 13(a) of the FLSA, because such workers are exempt from both minimum wage and overtime pay under the relevant section and would remain exempt regardless of any changes to the EAP exemption. In fact, many of the workers estimated below as falling within one of the section 13(a) exemptions will already have been excluded from the analysis because they are paid on an hourly basis or are in a blue collar occupation. The methodology for identifying the workers who fall under the section 13(a) exemptions is explained here and is based generally on the methodology the Department used in 1998 when it issued its last report under section 4(d) of the FLSA. Section 4(d) previously required the Department to submit a report to Congress every two years regarding coverage under the FLSA.
Outside sales workers are a subset of the section 13(a)(1) exemptions, but since they are not affected by the salary regulations they are not discussed in detail in the preamble. Outside sales workers are included in occupational category “door-to-door sales workers, news and street vendors, and related workers” (Census code 4950). This category is composed of workers who both would and would not qualify for the outside sales worker exemption; for
Similar to the 2004 analysis, the Department excluded agricultural workers from the universe of affected employees. Agricultural workers were identified by occupational-industry combination. However, in the 2004 Final Rule all workers in agricultural industries were excluded; here only workers also in select occupations were excluded since not all workers in agricultural industries qualify for the agricultural overtime pay exemptions. This method better approximates the true number of exempt agricultural workers and provides a more conservative estimate of the number of affected workers. Industry categories include: “crop production” (0170), “animal production” (0180), and “support activities for agriculture and forestry” (0290). Occupational categories include all blue collar occupations (identified with the probability codes), “farm, ranch, and other agricultural managers” (0200), “general and operations managers” (0020), and “first-line supervisors/managers of farming, fishing, and forestry workers” (6000).
The following methodology relies mainly on CPS MORG data but also incorporates alternative data sources when necessary.
Any employee of an amusement or recreational establishment may be exempt from minimum wage and overtime pay if the establishment meets either of the following tests: (a) It operates for seven months or less during any calendar year, or (b) its revenue for the six lowest months of the year is less than one-third of the other six months of such year. Amusement and recreational establishments are defined as “establishments frequented by the public for its amusement or recreation,” and “typical examples of such are the concessionaires at amusement parks and beaches.”
• “independent artists, performing arts, spectator sports, and related industries” (8560),
• “museums, art galleries, historical sites, and similar institutions” (8570),
• “bowling centers” (8580),
• “other amusement, gambling, and recreation industries” (8590), and
• “recreational vehicle parks and camps, and rooming and boarding houses” (8670).
The CPS MORG data does not provide information on employers' operating information or revenue. Using Business Employment Dynamics (BED) data, the Department estimated the share of leisure and hospitality employees working for establishments that are closed for at least one quarter a year.
The 1998 section 4(d) report estimated the number of exempt workers by applying an estimate determined in 1987 by a detailed report from the Employment Standards Administration. The Department chose not to use this estimate because it is outdated.
Section 13(a)(3) also exempts employees of seasonal religious or non-profit educational centers, but many of these workers have already been excluded from the analysis either as religious workers (not covered by the FLSA) or as teachers (professional exemption) and so are not estimated.
Any employee, such as a fisherman, employed in the catching, harvesting, or farming of fish or other aquatic life forms, is exempt from minimum wage and overtime pay. Fishermen are identified in occupational categories “fishers and related fishing workers” (6100) and “ship and boat captains and operators” (9310) and the industry category “fishing, hunting, and trapping” (0280). Workers identified in both these occupational and industry categories are considered exempt.
This exemption from minimum wage and overtime pay applies to any employee employed by a newspaper with circulation of less than 4,000 and circulated mainly within the county where published. Newspaper employees are identified in the following occupational categories:
• “news analysts, reporters and correspondents” (2810),
• “editors” (2830),
• “technical writers” (2840),
• “writers and authors” (2850), and
• “miscellaneous media and communication workers” (2860).
The exemption is limited to the industry category “newspaper publishers” (6470). To limit the exemption to small, local papers, the Department limits the exemption to employees in rural areas. Although employment in a rural area is not synonymous with employment at a small newspaper, this is the best approach currently available. Alternatively, the Department could use data from Dun and Bradstreet (D&B) as was done in the 1998 section 4(d) report. This data would provide information on which establishments are in rural areas; from this the Department could estimate the share of employment in rural areas. This approach would be much more time intensive but would not necessarily provide a better result.
An independently owned public telephone company that has not more than 750 stations may claim the minimum wage and overtime pay exemption for its switchboard operators. “Switchboard operators, including answering service”, are exempt under occupation code 5010 and industry classifications “wired telecommunications carriers” (6680) and “other telecommunications carriers” (6690). Using the 2007 Economic Census, the Department
According to the 1998 section 4(d) report, fewer than 10,000 workers were exempt in 1987 and so the Department did not develop a methodology for estimating the number exempt.
Any employee employed as a seaman on a vessel other than an American vessel is exempt from minimum wage and overtime pay. Seamen are identified by occupational categories:
• “sailors and marine oilers” (9300),
• “ship and boat captains and operators” (9310), and
• “ship engineers” (9330).
The CPS MORG data does not identify whether the vessel is foreign or domestic. The best approach the Department has devised is to assume that the number of workers in the occupation “deep sea foreign transportation of freight” (SIC 441) in 2000 is roughly equivalent to the number of workers on foreign vessels. The 2000 Occupational Employment Statistics estimates there were 14,210 workers in this occupation and thus that number of seamen are assigned exempt status on a random basis.
Domestic service workers employed to provide “companionship services” for an elderly person or a person with an illness, injury, or disability are not required to be paid the minimum wage or overtime pay. Companions are classified under occupational categories:
• “nursing, psychiatric, and home health aides” (3600) and
• “personal and home care aides” (4610).
• “home health care services” (8170),
• “individual and family services” (8370), and
• “private households” (9290).
The criminal investigator must be employed by the federal government and paid “availability pay.”
• “detectives and criminal investigators” (3820),
• “fish and game wardens” (3830), and
• “private detectives and investigators” (3910).
This exemption was not mentioned in the 1998 section 4(d) report. The Department exempts all workers in the occupations identified above and employed by the federal government.
Computer workers who meet the duties test are exempt under two sections of the FLSA. Salaried computer workers who earn a weekly salary of not less than $455 are exempt under section 13(a)(1) and computer workers who are paid hourly are exempt under section 13(a)(17) if they earn at least $27.63 an hour.
Occupations that may be considered exempt include: “computer and information systems managers” (110), “computer scientists and systems analysts” (1000), “computer programmers” (1010), “computer software engineers” (1020), “computer support specialists” (1040), “database administrators” (1060), “network and computer systems administrators” (1100), “network systems and data communications analysts” (1110), “computer operators” (5800), and “computer control programmers and operators” (7900).
To identify computer workers exempt under section 13(a)(17), we restrict the population to workers who are paid on an hourly basis and who earn at least $27.63 per hour. To determine which of these workers pass the computer duties test, we use the probabilities of exemption assigned to these occupations by the Department and assume a linear relationship between earnings and exemption status.
This exemption eliminated overtime pay for “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 31502 of Title 49[.]” In essence, these are motor carrier workers,
To be exempt, these workers must engage in “safety affecting activities”. Examples of exempt occupations include: “driver, driver's helper, loader, or mechanic”.
• “electronic equipment installers and repairers, motor vehicles” (7110),
• “automotive service technicians and mechanics” (7200),
• “bus and truck mechanics and diesel engine specialists” (7210),
• “heavy vehicle and mobile equipment service technicians and mechanics” (7220), and
• “driver/sales workers and truck drivers” (9130).
Section 13(b)(2) exempts “any employee of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of Title 49.”
• “locomotive engineers and operators” (9200),
• “railroad brake, signal, and switch operators” (9230),
• “railroad conductors and yardmasters” (9240), and
• “subway, streetcar, and other rail transportation workers” (9260).
This section exempts employees subject to the “provisions of title II of the Railway Labor Act.”
Occupational categories include “sailors and marine oilers” (9300), “ship and boat captains and operators” (9310), and “ship engineers” (9330).
The Department limited this exemption to workers employed in a “nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.” Industry classifications include: “automobile dealers” (4670) and “other motor vehicle dealers” (4680). In the 2004 Final Rule, the industry was limited to 1990 Census code 612 which became Census code “automobile dealers” (4670). Category 4680 (“other motor vehicle dealers”) is also included here in keeping with the 1998 section 4(d) report methodology.
The 1998 methodology did not include an occupational restriction; however, the 2004 methodology limited the exemption to automobiles, trucks, or farm implement sales workers and mechanics.
• “parts salespersons” (4750), and
• “retail salespersons” (4760).
• “electronic equipment installers and repairers, motor vehicles” (7110),
• “automotive body and related repairers” (7150),
• “automotive glass installers and repairers” (7160),
• “automotive service technicians and mechanics” (7200),
• “bus and truck mechanics and diesel engine specialists” (7210),
• “heavy vehicle and mobile equipment service technicians and mechanics” (7220),
• “small engine mechanics” (7240), and
• “miscellaneous vehicle and mobile equipment mechanics, installers, and repairers” (7260).
The Regulatory Flexibility Act of 1980 (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), hereafter jointly referred to as the RFA, requires agencies to prepare regulatory flexibility analyses and make them available for public comment, when proposing regulations that will have a significant economic impact on a substantial number of small entities.
The Department specifically invites comment on the impacts of the proposed rule on small businesses, including whether alternatives exist that will reduce burden on small entities while still meeting the objectives of the FLSA. The Chief Counsel for Advocacy of the Small Business Administration (SBA) was notified of a draft of this rule upon submission of the rule to OMB under E.O. 12866.
The EAP exemption salary level test that is the focus of this proposed rulemaking has been updated seven times since the FLSA was originally enacted in 1938. These updates were necessary in order for the required salary level to keep pace with increases in earnings in the economy so that it could continue to serve as an effective bright-line test that separates workers who Congress intended to remain entitled to minimum wage and overtime protection and those who may qualify as bona fide EAP exempt workers.
The standard salary level and HCE total compensation levels have not been updated since 2004 and, as described in detail in section VII.A.ii., the standard salary level has declined considerably in real terms relative to both its 2004 and 1975 values. As a result, the exemption removes workers from overtime protection who were not intended to be within the exemption. Similarly, the HCE annual compensation requirement is out of date; more than twice as many workers earn at least $100,000 annually compared to when it was adopted in 2004. Therefore, the Department believes that rulemaking is necessary in order to restore the effectiveness of these levels.
Section 13(a)(1) creates a minimum wage and overtime pay exemption for
The Department's primary objective in this rulemaking is to ensure that the revised salary levels will continue to provide a useful and effective test for exemption. The salary levels were designed to operate as a ready guide to assist employers in deciding which employees were more likely to meet the duties tests for the exemptions. If left unchanged, however, the effectiveness of the salary level test as a means of determining exempt status diminishes as nonexempt employee wages increase over time.
The Department last updated the salary levels in the 2004 Final Rule, setting the standard test threshold at $455 per week for EAP employees. The 2004 Final Rule also created a new “highly compensated” test for exemption. Under the HCE exemption, employees who are paid total annual compensation of at least $100,000 (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA's overtime requirements if they customarily and regularly perform at least one of the duties or responsibilities of an exempt EAP employee identified in the standard tests for exemption. § 541.601.
Employees who meet the requirements of part 541 are excluded from the Act's minimum wage and overtime pay protections. As a result, employees may work any number of hours in the workweek and not be subject to the FLSA's overtime pay requirements. Some State laws have stricter exemption standards than those described above. The FLSA does not preempt any such stricter State standards. If a State law establishes a higher standard than the provisions of the FLSA, the higher standard applies in that specific state.
In order to restore the ability of the standard salary level and the HCE compensation requirement to serve as appropriate bright-line tests between overtime-protected employees and employees who may be EAP exempt, the Department proposes to increase the minimum salary level test from $455 to the 40th percentile of the weekly wages of all full-time salaried employees ($921 per week), and the level for the HCE test from $100,000 to the annual equivalent of the 90th percentile of weekly earnings for full-time salaried employees ($122,148 in annual earnings). The Department reached the proposed salary levels after considering available data on actual salary levels currently being paid in the economy. In order to ensure that these levels continue to function appropriately in the future, the Department also proposes to automatically update them annually either by maintaining the respective earnings percentile or updating the levels based on changes in the CPI-U.
The RFA defines a “small entity” as a (1) small not-for-profit organization, (2) small governmental jurisdiction, or (3) small business. The Department used the entity size standards defined by SBA to classify entities as small for the purpose of this analysis. SBA establishes separate standards for individual 6-digit NAICS industry codes, and standard cutoffs are typically based on either the average annual number of employees, or the average annual receipts. For example, the SBA has two widely used size standards: 500 employees for manufacturing, and $7 million in annual receipts for nonmanufacturing services. However, some exceptions do exist, the most notable being that depository institutions (including credit unions, commercial banks, and non-commercial banks) are classified by total assets. Small governmental jurisdictions are another noteworthy exception; they are defined as the governments of cities, counties, towns, townships, villages, school districts, or special districts with population of less than 50,000 people.
The Department obtained data from several different sources to determine employment in small entities for each industry. Categorical tabulations from the Statistics of U.S. Businesses (SUSB, 2007 and 2011) were used for most industries. Industries that used data from alternative sources include Credit Unions (National Credit Union Association, 2010), Commercial and Non-Commercial Banks (Federal Depository Insurance Corporation, 2013), and Public Administration, where employees were classified based on employment estimates from the Census of Governments (2012), and local population estimates from the Census of Population and Housing (2012). The Department used the latest available data in each case, so data years differ between sources.
For each industry, the total number of employees is organized in categories based on different characteristics of the employing entity. The categories are defined using employment, annual revenue, and assets. The Department combined these categories with the corresponding SBA standards to estimate the proportion of workers in each industry who are employed by a small entity.
The general methodological approach was to classify all employees in categories below the SBA cutoff as in “small entity” employment. If a cutoff fell in the middle of a defined category, a uniform distribution of employees across that bracket was assumed in order to determine what proportion should be classified as in small entity employment. The Department assumed that the small entity distribution across revenue categories for Other Depository Institutions, which was not separately represented in FDIC asset data, was similar to that of Credit Unions.
It is difficult to estimate precisely the number of small entities that will be impacted by the proposed rule. The employee, payroll, and receipts data in SUSB are tabulated by “enterprise size,” where the definition of “enterprise” is equivalent to “entity” for the purposes of the current discussion. However, this data does not directly report the number of enterprises, but instead provides data on “establishments” (individual plants, regardless of ownership), and “firms” (a collection of all plants with a single owner within a given state and industry). Therefore, an enterprise may consist of multiple firms, depending on the number of states and industries it operates in. Using the SUSB number of small firms as a proxy may thus overestimate the number of small entities nationally. However, this effect is unlikely to be large, because most small entities would probably operate on smaller scales (
The estimated probability that an EAP exempt worker is employed by a small entity is set equal to the calculated proportion of workers employed in the corresponding industry. For example, if an industry has 50 percent of workers employed in small entities, then on average one out of every two EAP exempt workers in this industry is expected to be small-entity employed. The Department applied these probabilities to the population of EAP exempt workers in order to find the number of workers (total and affected by the rule) employed by small entities, their payroll under the current and the proposed salary levels, and the number of small entities employing affected workers. The Department also tabulated the total number of affected entities and employees by industry group.
With these limitations, the Department estimates that the proposed rule will affect 4.7 million workers in an estimated 290,800 establishments (Table 33).
• Education and health services with 336,800 affected workers (3.5 percent of employees) in 26,800 establishments;
• Professional and business services with 319,200 affected workers (5.0 percent of employees) in 56,100 establishments; and
• Wholesale and retail trade with 241,700 affected workers (3.7 percent of employees) in 38,000 establishments.
The financial activities industry has the largest percent of affected small entity employees; 7 percent are affected.
The FLSA sets minimum wage, overtime pay, and recordkeeping requirements for employment subject to its provisions. Unless exempt, covered employees must be paid at least the minimum wage and not less than one and one-half times their regular rates of pay for overtime hours worked.
Every covered employer must keep certain records for each nonexempt worker. The regulations at part 516 require employers to maintain records for employees subject to the minimum wage and overtime pay provisions of the FLSA. Thus, the recordkeeping requirements are not new requirements; however, employers would need to keep some additional records for additional affected employees if the NPRM were to be made final without change. As indicated in this analysis, the NPRM would expand minimum wage and overtime pay coverage to 4.6 million affected EAP workers (including HCE workers and excluding Type 4 workers who remain exempt). This would result in an increase in employer burden and was estimated in the PRA portion (section VI.) of this NPRM. Note that the burdens reported for the PRA section of this NPRM include the entire information collection and not merely the additional burden estimated as a result of this NPRM.
As detailed in section VII.D.iv., three direct costs to employers are quantified in this analysis: (1) Regulatory familiarization costs; (2) adjustment costs; and (3) managerial costs. Regulatory familiarization costs are the costs incurred to read and become familiar with the requirements of the rule. Adjustment costs are the costs accrued to determine workers' new exemption statuses, notify employees of policy changes, and update payroll systems. Managerial costs associated with this proposed rulemaking occur because hours of workers who are newly entitled to overtime may be more closely scheduled and monitored to minimize or avoid paying the overtime premium. Regardless of business size, the Department estimates that each establishment will spend one hour of time for regulatory familiarization; one hour per each affected worker in adjustment costs; and five minutes per week scheduling and monitoring each affected worker expected to be reclassified as overtime eligible as a result of this proposed rule.
For small entities, the Department projected annual regulatory familiarization, adjustment, and managerial costs, and payments to employees in terms of extra wages paid. The Department believes that the minimum and maximum per-establishment costs are the most accurate possible estimates for the range of impact of the proposed rule on individual employers.
As a direct result of this proposed rule, the Department expects total direct employer costs (regulatory familiarization, adjustment, and managerial costs) of $134.5 to 186.6 million will be incurred by small entities in the first year after the promulgation of the proposed rule (Table 35). The three industries with the most affected small entity employees (educational and health services, professional and business services, and wholesale and retail trade) account for more than 50 percent of direct costs.
Average weekly earnings for affected EAP workers in small entities are expected to increase by $6.16 per week per affected worker due to both the standard salary level and HCE total annual compensation level proposed increases. This results in costs to employer of $561.5 million in wage increases to employees, which compose 0.1 to 0.8 percent of aggregate affected entity payroll (Table 36).
The Department evaluated the impacts to small entities employing affected workers using a range to represent minimum and maximum costs incurred by an average establishment. To define the average establishment, the Department divided the total number of employees and payroll among small establishments by the total number of small establishments on an industry-specific basis. The minimum level of impacts is defined by assuming only one worker employed by the average establishment is affected by the revised salary level. The maximum level is defined by assuming 100 percent of workers employed by the average establishment are affected by the revised salary level.
This NPRM provides no differing compliance requirements and reporting requirements for small entities. The Department has strived to minimize respondent recordkeeping burden by requiring no specific form or order of records under the FLSA and its corresponding regulations. Moreover, employers would normally maintain the records under usual or customary business practices.
The Department believes it has chosen the most effective option that updates and clarifies the rule and which results in the least burden. Among the options considered by the Department, the least restrictive option was taking no regulatory action and the most restrictive was updating the 1975 short test salary level for inflation based upon the CPI-U (which would result in a standard salary level of $1,083 per week). Taking no regulatory action does not address the Department's concerns discussed above under Need for Regulation. The Department found the most restrictive option to be overly burdensome on business in general and
Pursuant to section 603(c) of the RFA, the following alternatives are to be addressed:
i. Differing compliance or reporting requirements that take into account the resources available to small entities. The FLSA creates a level playing field for businesses by setting a floor below which employers may not pay their employees. To establish differing compliance or reporting requirements for small businesses would undermine this important purpose of the FLSA and appears to not be necessary given the small annualized cost of the rule. The Year 1 cost of the proposed rule for the average employer that qualifies as small was estimated to range from a minimum of $400 to a maximum of $3,300. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance. Therefore the Department has not proposed differing compliance or reporting requirements for small businesses.
ii. The clarification, consolidation, or simplification of compliance and reporting requirements for small entities. The proposed rule imposes no new reporting requirements. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance.
iii. The use of performance rather than design standards. Under the proposed rule, employers may achieve compliance through a variety of means. Employers may elect to continue to claim the EAP exemption for affected employees by adjusting salary levels, hiring additional workers or spreading overtime hours to other employees, or compensating employees for overtime hours worked. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance.
iv. An exemption from coverage of the rule, or any part thereof, for such small entities. Creating an exemption from coverage of this rule for businesses with as many as 500 employees, those defined as small businesses under SBA's size standards, is inconsistent with Congressional intent in the enactment of the FLSA, which applies to all employers that satisfy the enterprise coverage threshold or employ individually covered employees.
The Department is not aware of any federal rules that duplicate, overlap, or conflict with this NPRM.
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501, requires agencies to prepare a written statement for rules for which a general notice of proposed rulemaking was published and that include any federal mandate that may result in increased expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $156 million ($100 million in 1995 dollars adjusted for inflation) or more in any one year. This statement must: (1) Identify the authorizing legislation; (2) present the estimated costs and benefits of the rule and, to the extent that such estimates are feasible and relevant, its estimated effects on the national economy; (3) summarize and evaluate state, local, and tribal government input; and (4) identify reasonable alternatives and select, or explain the non-selection, of the least costly, most cost-effective, or least burdensome alternative.
This proposed rule is issued pursuant to section 13(a)(1) of the Fair Labor Standards Act, 29 U.S.C. 213(a)(1). The section exempts from the FLSA's minimum wage and overtime pay requirements “any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of [the Administrative Procedure Act]. . .).” 29 U.S.C. 213(a)(1). The requirements of the exemption provided by this section of the Act are contained in part 541 of the Department's regulations. Section 3(e) of the FLSA, 29 U.S.C. 203(e), defines “employee” to include most individuals employed by a state, political subdivision of a state, or interstate governmental agency. Section 3(x) of the FLSA, 29 U.S.C. 203(x), also defines public agencies to include the government of a state or political subdivision thereof, or any interstate governmental agency.
For purposes of the UMRA, this rule includes a Federal mandate that is expected to result in increased expenditures by the private sector of more than $156 million in at least one year, but the rule will not result in increased expenditures by state, local and tribal governments, in the aggregate, of $156 million or more in any one year.
Costs to state and local governments: Based on the RIA, the Department determined that the proposed rule will result in Year 1 costs for state and local governments totaling $111.5 million; of which $28.3 million are direct employer costs and $83.2 million are transfers (Table 37). Additionally, the proposed rule will lead to $0.3 million in DWL. In subsequent years, the Department estimated that state and local governments may experience payroll increases of as much as $79.1 million in any one year when the salary level is automatically updated (with automatic updating using the fixed percentile method).
Costs to the private sector: The Department determined that the proposed rule will result in Year 1 costs to the private sector of approximately $2.0 billion, of which $563.8 million are direct employer costs and $1,396.2 million are transfers. Additionally, the proposed rule will result in $7.0 million in DWL. In subsequent years, the Department estimated that the private sector may experience a payroll increase of as much as $1,219.1 million per year (with automatic updating using the fixed percentile method).
The largest benefit to workers is the transfer of income from employers; but, to the extent that the benefits to workers outweigh the costs to employers, there may be a societal welfare increase due to this transfer. The channels through which societal welfare may increase, and other secondary benefits may occur, include: Decreased litigation costs due to fewer workers subject to the duties test, the multiplier effect of the transfer, increased productivity, reduced dependence on social assistance, and a potential increase in time off and its associated benefits to the social welfare of workers. Additionally, because of the increased salary level, overtime protection will be strengthened for 6.3 million salaried white collar workers and 3.7 million salaried blue collar workers who do not meet the duties requirements for the EAP exemption, but who earn between the current minimum salary level of $455 per week and the proposed salary level because their right to minimum wage and overtime protection will be clear rather than depend upon an analysis of their duties.
UMRA requires agencies to estimate the effect of a regulation on the national economy if, at its discretion, such estimates are reasonably feasible and the effect is relevant and material. 5 U.S.C. 1532(a)(4). However, OMB guidance on this requirement notes that such macro-economic effects tend to be measurable in nationwide econometric models only if the economic impact of the regulation reaches 0.25 percent to 0.5 percent of GDP, or in the range of $41.9 billion to $83.8 billion (using 2013 GDP). A regulation with smaller aggregate effect is not likely to have a measurable impact in macro-economic terms unless it is highly focused on a particular geographic region or economic sector, which is not the case with this proposed rule.
The Department's RIA estimates that the total first-year costs (direct employer costs, transfers from employers to workers, and deadweight loss) of the proposed rule will be approximately $2.0 billion for private employers and $111.8 million for state and local governments. Given OMB's guidance, the Department has determined that a full macro-economic analysis is not likely to show any measurable impact on the economy. Therefore, these costs are compared to payroll costs and revenue to demonstrate the feasibility of adapting to these new rules.
Total first-year private sector costs compose less than 0.04 percent of private sector payrolls nationwide (2013 payroll costs were estimated to be $5.4 trillion).
Total first-year state and local government costs compose approximately 0.01 percent of state and local government payrolls (2013 payroll costs were estimated to be $864 billion).
As part of the Department's outreach program prior to the issuance of this NPRM, the Department conducted stakeholder listening sessions with representatives of state and local governments and tribal governments. In these sessions the Department asked stakeholders to address, among other issues, three questions: (1) What is the appropriate salary level for exemption; (2) what, if any, changes should be made to the duties tests; and (3) how can the regulations be simplified. The input received from state, local, and tribal government representatives was similar to that provided by representatives of private businesses and is summarized in section III. of this preamble. The discussions in the listening sessions have informed the development of this NPRM. The Department specifically seeks comments from state, local, and tribal governments concerning the ability of these entities to absorb the costs related to the proposed revisions.
The Department's consideration of various options has been described throughout the preamble. The Department believes that it has chosen the least burdensome but still cost-effective mechanism to update the salary level and index future levels that is also consistent with the Department's statutory obligation. Although some alternative options considered would have set the standard salary level at a rate lower than the proposed salary level, which might impose lower direct payroll costs on employers, that outcome may not necessarily be the most cost-effective or least burdensome alternative for employers. A lower salary level—or a degraded stagnant level over time—could result in a less effective bright-line test for separating exempt workers from those nonexempt workers intended to be within the Act's protection. A low salary level will also increase the role of the duties test in determining whether an employee is exempt, which would increase the likelihood of misclassification and, in turn, increase the risk that employees who should receive overtime and minimum wage protections under the FLSA are denied those protections.
Selecting a standard salary level inevitably impacts both the risk and cost of misclassification of overtime-eligible employees earning above the salary level as well as the risk and cost of providing overtime protection to employees performing bona fide EAP duties who are paid below the salary level. An unduly low level risks increasing employer liability from unintentionally misclassifying workers as exempt; but an unduly high standard salary level increases labor costs to employers precluded from claiming the exemption for employees performing bona fide EAP duties. Thus the ultimate cost of the regulation is increased if the standard salary level is set either too low or too high. The Department has determined that setting the standard salary level at the 40th percentile of earnings for full-time salaried workers and automatically updating this level annually either by maintaining that earnings percentile or using the CPI-U best balances the risks and costs of misclassification of exempt status.
The Department has (1) reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism and (2) determined that it does not have federalism implications. The proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The undersigned hereby certifies that the proposed rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
This proposed rule would have no environmental health risk or safety risk that may disproportionately affect children.
A review of this proposed rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This proposed rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution, or use of energy.
This proposed rule is not subject to Executive Order 12630 because it does not involve implementation of a policy that has takings implications or that could impose limitations on private property use.
This proposed rule was drafted and reviewed in accordance with Executive Order 12988 and will not unduly burden the Federal court system. The proposed rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Labor, Minimum wages, Overtime pay, Salaries, Teachers, Wages.
For the reasons set out in the preamble, the Department of Labor proposes to amend title 29 of the Code of Federal Regulations, part 541 as follows:
29 U.S.C. 213; Pub. L. 101-583, 104 Stat. 2871; Reorganization Plan No. 6 of 1950 (3 CFR, 1945-53 Comp., p. 1004); Secretary's Order 01-2014 (Dec. 10, 2014), 79 FR 77527 (Dec. 24, 2014).
(a) * * *
(1) Compensated on a salary basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, compensated on a salary basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
(a) * * *
(1) Compensated on a salary or fee basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, compensated on a salary or fee basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
(a) * * *
(1) Compensated on a salary or fee basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities; or on a salary basis which is at least equal to the entrance salary for teachers in the educational establishment by which employed. As of [DATE TBD] on each subsequent year, compensated on a salary or fee basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
(a) * * *
(1) Compensated on a salary or fee basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, compensated on a salary or fee basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
(b) The section 13(a)(1) exemption applies to any computer employee who, as of [EFFECTIVE DATE OF FINAL RULE] is compensated on a salary or fee basis at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, the section 13(a)(1) exemption applies to any computer employee who is compensated on a salary or fee basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
The additions read as follows:
(a) To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, such employee must be compensated on a salary basis at a rate per week of not less than the updated salary rate published annually by the Secretary in the
(b) The required amount of compensation per week may be translated into equivalent amounts for periods longer than one week. The
The revisions read as follows:
(a) An employee with total annual compensation of at least $122,148 as of [EFFECTIVE DATE OF FINAL RULE] is deemed exempt under section 13(a)(1) of the Act if the employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee identified in subparts B, C, or D of this part. As of [DATE TBD] on each subsequent year, an employee with total annual compensation of at least the updated compensation rate published annually by the Secretary in the
(b)(1) “Total annual compensation” must include at least a weekly amount that is, as of [EFFECTIVE DATE OF FINAL RULE] $921 paid on a salary or fee basis. As of [DATE TBD] of each year, “total annual compensation” must include a weekly amount that is not less than the updated salary rate published annually by the Secretary in the
(2) If an employee's total annual compensation does not total at least the minimum amount established in paragraph (a) of this section by the last pay period of the 52-week period, the employer may, during the last pay period or within one month after the end of the 52-week period, make one final payment sufficient to achieve the required level. For example, if the current annual salary level for a highly compensated employee is $122,148, an employee may earn $100,000 in base salary, and the employer may anticipate based upon past sales that the employee also will earn $25,000 in commissions. However, due to poor sales in the final quarter of the year, the employee actually only earns $10,000 in commissions. In this situation, the employer may within one month after the end of the year make a payment of at least $12,148 to the employee. Any such final payment made after the end of the 52-week period may count only toward the prior year's total annual compensation and not toward the total annual compensation in the year it was paid. If the employer fails to make such a payment, the employee does not qualify as a highly compensated employee, but may still qualify as exempt under subparts B, C, or D of this part.
(a) An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Thus, for example, if the current weekly salary level is $921, an exempt employee guaranteed at least $921 each week paid on a salary basis may also receive additional compensation of a one percent commission on sales. An exempt employee also may receive a percentage of the sales or profits of the employer if the employment arrangement also includes a guarantee of at least $921 each week paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $921 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (
(b) An exempt employee's earnings may be computed on an hourly, a daily or a shift basis, without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount actually earned. The reasonable relationship test will be met if the weekly guarantee is roughly equivalent to the employee's usual earnings at the assigned hourly, daily or shift rate for the employee's normal scheduled workweek. Thus, for example, if the weekly salary level is $921, an exempt employee guaranteed compensation of at least $1,000 for any week in which the employee performs any work, and who normally works four or five shifts each week, may be paid $300 per shift without violating the salary basis requirement. The reasonable relationship requirement applies only if the employee's pay is computed on an hourly, daily or shift basis. It does not apply, for example, to an exempt store manager paid a guaranteed salary per week that exceeds the current salary level who also receives a commission of one-half percent of all sales in the store or five percent of the store's profits, which in some weeks may total as much as, or even more than, the guaranteed salary.
(b) To determine whether the fee payment meets the minimum amount of salary required for exemption under these regulations, the amount paid to the employee will be tested by determining the time worked on the job and whether the fee payment is at a rate that would amount to at least the minimum required salary per week if the employee worked 40 hours. Thus, if the salary level were $921, an artist paid $500 for a picture that took 20 hours to complete meets the minimum salary requirement for exemption since earnings at this rate would yield the artist $1000 if 40 hours were worked.
The requirement that the employee be paid “on a salary basis” does not apply to an employee in the motion picture producing industry who is compensated, as of [EFFECTIVE DATE OF FINAL RULE], at a base rate of at least $1,404 per week (exclusive of board, lodging, or other facilities); and as of [DATE TBD] on each subsequent year, is compensated at a base rate of at least $[MOST RECENTLY EFFECTIVE MOTION PICTURE INDUSTRY BASE RATE INCREASED AT THE SAME RATIO AS THE STANDARD SALARY LEVEL IS INCREASED] (exclusive of board, lodging, or other facilities). Thus, an employee in this industry who is otherwise exempt under subparts B, C, or D of this part, and who is employed at a base rate of at least the applicable current minimum amount a week is
(a) The employee is in a job category for which a weekly base rate is not provided and the daily base rate would yield at least the minimum weekly amount if 6 days were worked; or
(b) The employee is in a job category having the minimum weekly base rate and the daily base rate is at least one-sixth of such weekly base rate.
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |