Temporary Employment of Foreign Workers in the United States, 16000-16001 [2010-7380]
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Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
adverse economic impacts, the
Commission will, as appropriate, also
follow its Small Business Enforcement
Policy set forth at § 1020.5.
(b) Other factors as appropriate. In
determining the amount of any civil
penalty to be sought for a violation of
the CPSA, FHSA, or FFA, the
Commission may consider, as
appropriate, such other factors in
addition to those listed in the statutes.
Both the Commission and a person may
raise any factors they believe are
relevant in determining an appropriate
penalty amount. A person will be
notified of any factors beyond those
enumerated in the statutes that the
Commission relies on as aggravating
factors for purposes of determining a
civil penalty amount. Additional factors
that may be considered in a case
include, but are not limited to, the
following:
(1) Safety/compliance program and/or
system relating to a violation. The
Commission may consider, when a
safety/compliance program and/or
system as established is relevant to a
violation, whether a person had at the
time of the violation a reasonable and
effective program or system for
collecting and analyzing information
related to safety issues. Examples of
such information would include
incident reports, lawsuits, warranty
claims, and safety-related issues related
to repairs or returns. The Commission
may also consider whether a person
conducted adequate and relevant
premarket and production testing of the
product at issue; had a program in place
for continued compliance with all
relevant mandatory and voluntary safety
standards; and other factors as the
Commission deems appropriate. The
burden to present clear, reliable,
relevant, and sufficient evidence of such
program, system, or testing rests on the
person seeking consideration of this
factor.
(2) History of noncompliance. The
Commission may consider whether or
not a person’s history of noncompliance
with the CPSA, FHSA, FFA, and other
laws that the CPSC enforces, and the
regulations thereunder, should increase
the amount of the penalty. A person’s
history of noncompliance may be
indicated by, for example, multiple
violations of one or more laws or
regulations that the CPSC enforces,
including repeated violations of the
same law or regulation. History of
noncompliance may include the number
of previous violations or how recently a
previous violation occurred.
(3) Economic gain from
noncompliance. The Commission may
consider whether a person benefitted
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economically from a failure to comply,
including a delay in complying, with
the CPSA, FHSA, FFA, and other laws
that the CPSC enforces, and the
regulations thereunder.
(4) Failure to respond in a timely and
complete fashion to the Commission’s
requests for information or remedial
action. The Commission may consider
whether a person’s failure to respond in
a timely and complete fashion to
requests from the Commission for
information or for remedial action
should increase a penalty. This factor is
intended to address a person’s dilatory
and egregious conduct in responding to
written requests for information or
remedial action sought by the
Commission, but not to impede any
person’s lawful rights.
§ 1119.5
Enforcement notification.
A person will be informed in writing
if it is believed that the person has
violated the law and if the Commission
intends to seek a civil penalty. Any
person who receives such a writing will
have an opportunity to submit evidence
and arguments that it should not pay a
penalty or should not pay a penalty in
the amount sought by the Commission.
Dated: March 24, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–6940 Filed 3–30–10; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
Temporary Employment of Foreign
Workers in the United States
CFR Correction
In Title 20 of the Code of Federal
Regulations, Part 500 to End, revised as
of April 1, 2009, on page 466, remove
§ 655.0 and correctly reinstate it to read
as follows:
§ 655.0
Scope and purpose of part.
(a) Subparts A, B, and C—(1) General.
Subparts A, B, and C of this part set out
the procedures adopted by the Secretary
to secure information sufficient to make
factual determinations of: (i) Whether
U.S. workers are available to perform
temporary employment in the United
States, for which an employer desires to
employ nonimmigrant foreign workers,
and (ii) whether the employment of
aliens for such temporary work will
adversely affect the wages or working
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conditions of similarly employed U.S.
workers. These factual determinations
(or a determination that there are not
sufficient facts to make one or both of
these determinations) are required to
carry out the policies of the Immigration
and Nationality Act (INA), that a
nonimmigrant alien worker not be
admitted to fill a particular temporary
job opportunity unless no qualifed U.S.
worker is available to fill the job
opportunity, and unless the
employment of the foreign worker in the
job opportunity will not adversely affect
the wages or working conditions of
similarly employed U.S. workers.
(2) The Secretary’s determinations.
Before any factual determination can be
made concerning the availability of U.S.
workers to perform particular job
opportunities, two steps must be taken.
First, the minimum level of wages,
terms, benefits, and conditions for the
particular job opportunities, below
which similarly employed U.S. workers
would be adversely affected, must be
established. (The regulations in this part
establish such minimum levels for
wages, terms, benefits, and conditions of
employment.) Second, the wages, terms,
benefits, and conditions offered and
afforded to the aliens must be compared
to the established minimum levels. If it
is concluded that adverse effect would
result, the ultimate determination of
availability within the meaning of the
INA cannot be made since U.S. workers
cannot be expected to accept
employment under conditions below
the established minimum levels. Florida
Sugar Cane League, Inc. v. Usery, 531 F.
2d 299 (5th Cir. 1976).
Once a determination of no adverse
effect has been made, the availability of
U.S. workers can be tested only if U.S.
workers are actively recruited through
the offer of wages, terms, benefits, and
conditions at least at the minimum level
or the level offered to the aliens,
whichever is higher. The regulations in
this part set forth requirements for
recruiting U.S. workers in accordance
with this principle.
(3) Construction. This part and its
subparts shall be construed to effectuate
the purpose of the INA that U.S.
workers rather than aliens be employed
wherever possible. Elton Orchards, Inc.
v. Brennan, 508 F. 2d 493, 500 (1st Cir.
1974), Flecha v. Quiros, 567 F. 2d 1154
(1st Cir. 1977). Where temporary alien
workers are admitted, the terms and
conditions of their employment must
not result in a lowering of the terms and
conditions of domestic workers
similarly employed, Williams v. Usery,
531 F. 2d 305 (5th Cir. 1976); Florida
Sugar Cane League, Inc. v. Usery, 531 F.
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Federal Register / Vol. 75, No. 61 / Wednesday, March 31, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES
2d 299 (5th Cir. 1976), and the job
benefits extended to any U.S. workers
shall be at least those extended to the
alien workers.
(b) Subparts D and E. Subparts D and
E of this part set forth the process by
which health care facilities can file
attestations with the Department of
Labor for the purpose of employing or
otherwise using nonimmigrant
registered nurses under H–1A visas.
(c) Subparts F and G. Subparts F and
G of this part set forth the process by
which employers can file attestations
with the Department of Labor for the
purpose of employing alien
crewmembers in longshore work under
D-visas and enforcement provisions
relating thereto.
(d) Subparts H and I of this part.
Subpart H of this part sets forth the
process by which employers can file
labor condition applications (LCAs)
with, and the requirements for obtaining
approval from, the Department of Labor
to temporarily employ the following
three categories of nonimmigrants in the
United States: (1) H–1B visas for
temporary employment in specialty
occupations or as fashion models of
distinguished merit and ability; (2) H–
1B1 visas for temporary employment in
specialty occupations of nonimmigrant
professionals from countries with which
the United States has entered into
certain agreements identified in section
214(g)(8)(A) of the INA; and (3) E–3
visas for nationals of the
Commonwealth of Australia for
temporary employment in specialty
occupations. Subpart I of this part
establishes the enforcement provisions
that apply to the H–1B, H–1B1, and E–
3 visa programs.
(e) Subparts J and K of this part.
Subparts J and K of this part set forth
the process by which employers can file
attestations with the Department of
Labor for the purpose of employing
nonimmigrant alien students on F-visas
in off-campus employment and
enforcement provisions relating thereto.
[43 FR 10312, Mar. 10, 1978, as amended at
52 FR 20507, June 1, 1987; 55 FR 50510, Dec.
6, 1990; 56 FR 24667, May 30, 1991; 56 FR
54738, Oct. 22, 1991; 56 FR 56875, Nov. 6,
1991; 57 FR 1337, Jan. 13, 1992; 57 FR 40989,
Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004;
73 FR 19947, Apr. 11, 2008]
[FR Doc. 2010–7380 Filed 3–30–10; 8:45 am]
BILLING CODE 1505–01–D
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 558
[Docket No. FDA–2003–N–0446] (formerly
Docket No. 2003N–0324)
New Animal Drugs; Removal of
Obsolete and Redundant Regulations
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is removing
portions of a regulation that required
sponsors to submit data regarding the
subtherapeutic use of certain antibiotic,
nitrofuran, and sulfonamide drugs
administered in animal feed as these
regulations have been determined to be
obsolete or redundant. The portions of
the regulation being removed are
provisions listing certain feed use
combinations for oxytetracycline and
neomycin in the tables contained in that
regulation. This rule does not finalize
the provisions of the proposed rule
regarding removing the remainder of the
regulation.
DATES: This rule is effective April 30,
2010.
FOR FURTHER INFORMATION CONTACT:
William T. Flynn, Center for Veterinary
Medicine (HFV–50), 7519 Standish Pl.,
Rockville, MD 20855, 240–276–9090, email: william.flynn@fda.hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of August 8,
2003 (68 FR 47272), FDA published a
notice of proposed rulemaking to
remove 21 CFR 558.15 Antibiotic,
nitrofuran, and sulfonamide drugs in
the feed of animals (§ 558.15 (21 CFR
558.15)) on the grounds that these
regulations were obsolete or redundant.
The proposed rule explained the nature
and purpose of § 558.15, and noted that
most of the products and use
combinations subject to the listings in
that section had approvals that were
already codified in part 558, subpart B
(21 CFR part 558, subpart B).
In the same issue of the Federal
Register as the proposed rule, FDA’s
Center for Veterinary Medicine (CVM)
published a Notice of Opportunity for
Hearing (NOOH), which announced
CVM’s findings of effectiveness for nine
products and use combinations that
were listed in § 558.15, but which were
subject to the Drug Efficacy Study
Implementation (DESI) program (68 FR
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16001
47332). CVM proposed to withdraw the
new animal drug applications (NADAs)
for those nine products and use
combinations lacking substantial
evidence of effectiveness, following an
opportunity to supplement the NADAs
with labeling conforming to the relevant
findings of effectiveness. For
applications proposed to be withdrawn,
the agency provided an opportunity for
hearing.
FDA received hearing requests
regarding two products owned by
Pennfield Oil Co. (Pennfield). One is a
bacitracin methylene disalicylate (BMD)
Type A medicated article, NADA 141–
137, that is listed in the table in
§ 558.15(g)(1). This listing is under
Fermenta Animal Health Co., which is
a predecessor in interest to Pennfield.
The other is a two-way, fixedcombination Type A medicated article
containing oxytetracycline and
neomycin sulfate, NADA 138–939, that
is listed in the table in § 558.15(g)(2).
The agency received only one set of
comments on the 2003 proposed rule,
from Pennfield. The comment objected
to the removal of § 558.15 until the
issues in the NOOH are addressed. It
argued that the BMD listing in § 558.15
provides evidence of Pennfield’s
approval, and that removal of that
section, without updating the BMD
listing in part 558, subpart B, would
result in a lack of recognition in the
regulations of the approval that
Pennfield currently has.
In 2006, FDA finalized portions of the
2003 proposed rule. In that final rule (71
FR 16219, March 31, 2006), FDA
removed from the tables in § 558.15(g)
products and use combinations that
were not approved, and products and
use combinations whose approval was
reflected in part 558, subpart B. FDA
retained only the listings for NADA
141–137 and NADA 138–939 in those
tables. In addition, FDA retained
§ 558.15(a) through (f). FDA stated it
intended to finalize the proposed rule to
remove all of § 558.15 once, as part of
the DESI program, either the approvals
for NADA 141–137 and NADA 138–939
have been withdrawn or part 558,
subpart B has been amended to reflect
their approvals.
Subsequently, Pennfield filed a
supplement to NADA 138–939 for its
fixed-combination oxytetracycline/
neomycin Type A medicated articles.
The supplemental NADA, which
provided labeling conforming to the
relevant findings of effectiveness
announced in the NOOH, was approved
on July 2, 2009, and the regulations
were amended in § 558.455 of subpart B
to reflect that approval (74 FR 40723,
August 13, 2009).
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]]>Agencies
[Federal Register Volume 75, Number 61 (Wednesday, March 31, 2010)]
[Rules and Regulations]
[Pages 16000-16001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7380]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Temporary Employment of Foreign Workers in the United States
CFR Correction
In Title 20 of the Code of Federal Regulations, Part 500 to End,
revised as of April 1, 2009, on page 466, remove Sec. 655.0 and
correctly reinstate it to read as follows:
Sec. 655.0 Scope and purpose of part.
(a) Subparts A, B, and C--(1) General. Subparts A, B, and C of this
part set out the procedures adopted by the Secretary to secure
information sufficient to make factual determinations of: (i) Whether
U.S. workers are available to perform temporary employment in the
United States, for which an employer desires to employ nonimmigrant
foreign workers, and (ii) whether the employment of aliens for such
temporary work will adversely affect the wages or working conditions of
similarly employed U.S. workers. These factual determinations (or a
determination that there are not sufficient facts to make one or both
of these determinations) are required to carry out the policies of the
Immigration and Nationality Act (INA), that a nonimmigrant alien worker
not be admitted to fill a particular temporary job opportunity unless
no qualifed U.S. worker is available to fill the job opportunity, and
unless the employment of the foreign worker in the job opportunity will
not adversely affect the wages or working conditions of similarly
employed U.S. workers.
(2) The Secretary's determinations. Before any factual
determination can be made concerning the availability of U.S. workers
to perform particular job opportunities, two steps must be taken.
First, the minimum level of wages, terms, benefits, and conditions for
the particular job opportunities, below which similarly employed U.S.
workers would be adversely affected, must be established. (The
regulations in this part establish such minimum levels for wages,
terms, benefits, and conditions of employment.) Second, the wages,
terms, benefits, and conditions offered and afforded to the aliens must
be compared to the established minimum levels. If it is concluded that
adverse effect would result, the ultimate determination of availability
within the meaning of the INA cannot be made since U.S. workers cannot
be expected to accept employment under conditions below the established
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299
(5th Cir. 1976).
Once a determination of no adverse effect has been made, the
availability of U.S. workers can be tested only if U.S. workers are
actively recruited through the offer of wages, terms, benefits, and
conditions at least at the minimum level or the level offered to the
aliens, whichever is higher. The regulations in this part set forth
requirements for recruiting U.S. workers in accordance with this
principle.
(3) Construction. This part and its subparts shall be construed to
effectuate the purpose of the INA that U.S. workers rather than aliens
be employed wherever possible. Elton Orchards, Inc. v. Brennan, 508 F.
2d 493, 500 (1st Cir. 1974), Flecha v. Quiros, 567 F. 2d 1154 (1st Cir.
1977). Where temporary alien workers are admitted, the terms and
conditions of their employment must not result in a lowering of the
terms and conditions of domestic workers similarly employed, Williams
v. Usery, 531 F. 2d 305 (5th Cir. 1976); Florida Sugar Cane League,
Inc. v. Usery, 531 F.
[[Page 16001]]
2d 299 (5th Cir. 1976), and the job benefits extended to any U.S.
workers shall be at least those extended to the alien workers.
(b) Subparts D and E. Subparts D and E of this part set forth the
process by which health care facilities can file attestations with the
Department of Labor for the purpose of employing or otherwise using
nonimmigrant registered nurses under H-1A visas.
(c) Subparts F and G. Subparts F and G of this part set forth the
process by which employers can file attestations with the Department of
Labor for the purpose of employing alien crewmembers in longshore work
under D-visas and enforcement provisions relating thereto.
(d) Subparts H and I of this part. Subpart H of this part sets
forth the process by which employers can file labor condition
applications (LCAs) with, and the requirements for obtaining approval
from, the Department of Labor to temporarily employ the following three
categories of nonimmigrants in the United States: (1) H-1B visas for
temporary employment in specialty occupations or as fashion models of
distinguished merit and ability; (2) H-1B1 visas for temporary
employment in specialty occupations of nonimmigrant professionals from
countries with which the United States has entered into certain
agreements identified in section 214(g)(8)(A) of the INA; and (3) E-3
visas for nationals of the Commonwealth of Australia for temporary
employment in specialty occupations. Subpart I of this part establishes
the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa
programs.
(e) Subparts J and K of this part. Subparts J and K of this part
set forth the process by which employers can file attestations with the
Department of Labor for the purpose of employing nonimmigrant alien
students on F-visas in off-campus employment and enforcement provisions
relating thereto.
[43 FR 10312, Mar. 10, 1978, as amended at 52 FR 20507, June 1,
1987; 55 FR 50510, Dec. 6, 1990; 56 FR 24667, May 30, 1991; 56 FR
54738, Oct. 22, 1991; 56 FR 56875, Nov. 6, 1991; 57 FR 1337, Jan.
13, 1992; 57 FR 40989, Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004; 73
FR 19947, Apr. 11, 2008]
[FR Doc. 2010-7380 Filed 3-30-10; 8:45 am]
BILLING CODE 1505-01-D
