Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations 5481

authorized to perform a particular

function. ATF also believes these

multiple delegation instruments

exacerbate the administrative burden

associated with maintaining up-to-date

delegations, resulting in an undue delay

in reflecting current authorities.

Accordingly, this final rule rescinds

all authorities of the Director in part 30

that were previously delegated and

places those authorities with the

‘‘appropriate ATF officer.’’ Most of the

authorities of the Director that were not

previously delegated are also placed

with the ‘‘appropriate ATF officer.’’

Along with this final rule, ATF is

publishing ATF Order 1130.17,

Delegation Order—Delegation of the

Director’s Authorities in part 30,

Gauging Manual, which delegates

certain of these authorities to the

appropriate organizational level.

The effect of these changes is to

consolidate all delegations of authority

in part 30 into one delegation

instrument. This action both simplifies

the process for determining what ATF

officer is authorized to perform a

particular function and facilitates the

updating of delegations in the future. As

a result, delegations of authority will be

reflected in a more timely and userfriendly manner.

Paperwork Reduction Act

The provisions of the Paperwork

Reduction Act of 1995, Public Law 104–

13, 44 U.S.C. Chapter 35, and its

implementing regulations, 5 CFR part

1320, do not apply to this final rule

because there are no new or revised

recordkeeping or reporting

requirements.

Regulatory Flexibility Act

Because no notice of proposed

rulemaking is required for this rule, the

provisions of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) do not apply.

A copy of this final rule was submitted

to the Chief Counsel for Advocacy of the

Small Business Administration in

accordance with 26 U.S.C. 7805(f). No

comments were received.

Executive Order 12866

It has been determined that this rule

is not a significant regulatory action

because it will not: (1) have an annual

effect on the economy of $100 million

or more or adversely affect in a material

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

Materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in Executive

Order 12866.

Administrative Procedure Act

Because this final rule merely makes

technical amendments and conforming

changes to improve the clarity of the

regulations, it is unnecessary to issue

this final rule with notice and public

procedure under 5 U.S.C. 553(b).

Similarly it is unnecessary to subject

this final rule to the effective date

limitation of 5 U.S.C. 553(d).

Drafting Information

The principal author of this document

is Lisa Gesser, Regulations Division,

Bureau of Alcohol, Tobacco and

Firearms.

List of Subjects in 27 CFR Part 30

Alcohol and alcoholic beverages,

Measurement standards, Scientific

equipment.

Authority and Issuance

Title 27, Code of Federal Regulations

is amended as follows:

PART 30—GAUGING MANUAL

Paragraph 1. The authority citation

for part 30 continues to read as follows:

Authority: 26 U.S.C. 7805.

Par. 2. Section 30.11 is amended by

removing the definitions of ‘‘ATF

officer’’ and ‘‘Regional director’’ and by

adding a new definition of ‘‘Appropriate

ATF officer’’ to read as follows:

§ 30.11 Meaning of terms.

* * * * *

Appropriate ATF Officer. An officer

or employee of the Bureau of Alcohol,

Tobacco and Firearms (ATF) authorized

to perform any functions relating to the

administration or enforcement of this

part by ATF Order 1130.17, Delegation

Order—Delegation of the Director’s

Authorities in 27 CFR Part 30—Gauging

Manual.

* * * * *

§§ 30.11, 30.31, 30.36, 30.43, and 30.51

[Amended]

Par. 3. Part 30 is further amended by

removing the words ‘‘Director’’ each

place it appears and adding, in

substitution, the words ‘‘appropriate

ATF officer’’ in the following places:

(a) The definition of ‘‘Bulk

conveyance’’ in § 30.11;

(b) Section 30.31(b);

(c) Section 30.36;

(d) The last sentence of § 30.43; and

(e) The first sentence of § 30.51.

Par. 4. Section 30.21(c) is revised to

read as follows:

§ 30.21 Requirements.

* * * * *

(c) Appropriate ATF Officers.

Appropriate ATF officers shall use only

hydrometers and thermometers

furnished by the Government. However,

where this part requires the use of a

specific gravity hydrometer, ATF

officers shall use precision grade

specific gravity hydrometers conforming

to the provisions of § 30.24, furnished

by the proprietor. However, the

appropriate ATF officer may authorize

the use of other instruments approved

by the appropriate ATF officer as being

equally satisfactory for determination of

specific gravity and for gauging. From

time to time appropriate ATF officers

shall verify the accuracy of hydrometers

and thermometers used by proprietors.

* * * * *

Par. 5. Section 30.24(a) is amended by

adding the word ‘‘appropriate’’ before

the words ‘‘ATF officers.’’

Par. 6. Section 30.24(b) is amended by

adding the word ‘‘appropriate’’ before

the words ‘‘ATF officer.’’

Bradley A. Buckles,

Director.

Approved: August 11, 2001.

John P. Simpson,

Deputy Assistant Secretary (Regulatory, Tariff

and Trade Enforcement).

[FR Doc. 01–1165 Filed 1–18–01; 8:45 am]

BILLING CODE 4810–31–P

DEPARTMENT OF LABOR

Employment Standards

Administration, Wage and Hour

Division

29 CFR Part 552

RIN 1215–AA82

Application of the Fair Labor

Standards Act to Domestic Service

AGENCY: Wage and Hour Division,

Employment Standards Administration,

Labor.

ACTION: Notice of proposed rulemaking

and request for comments.

SUMMARY: The Department of Labor is

proposing to amend several of the

existing regulations under the Fair

Labor Standards Act (FLSA) pertaining

to the exemption for companionship

5482 Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations

services. Section 13(a)(15) exempts from

the minimum wage and overtime

provisions of the FLSA domestic service

employees employed ‘‘to provide

companionship services for individuals

who (because of age or infirmity) are

unable to care for themselves (as such

terms are defined and delimited by

regulations of the Secretary).’’ This

exemption was enacted in 1974 at the

same time that Congress amended the

FLSA to cover domestic service

employees generally. The pertinent

regulations governing this exemption

have been unchanged since they were

promulgated in 1975. Due to significant

changes in the home care industry over

the last 25 years, workers who today

provide in-home care to individuals

needing assistance with activities of

daily living are performing types of

duties and working in situations that

were not envisioned when the

companionship services regulations

were promulgated. The number of

workers providing these services has

also greatly increased, and most of these

workers are being excluded from the

FLSA under the companionship

services exemption. The Department has

reevaluated the regulations and

determined that—as currently written—

they exempt types of employees far

beyond those whom Congress intended

to exempt when it enacted section

13(a)(15). Therefore, the Department

proposes to amend the regulations to

revise the definition of ‘‘companionship

services,’’ which sets out the duties that

a companion must be employed to

perform in order to qualify for the

exemption, to more closely mirror

Congressional intent. The Department

also proposes to amend the regulations

to clarify the criteria used to judge

whether employees qualify as trained

personnel, who are not recognized as

exempt companions. Finally, the

Department proposes to amend the

regulations pertaining to employment

by a third party. This change would

deny the companionship services

exemption if the worker is employed by

someone other than a member of the

family in whose home he or she works.

It would similarly deny the exemption

for live-in domestics, who are exempt

from the FLSA’s overtime requirements

pursuant to section 13(b)(21), if they are

employed by someone other than a

member of the family in whose home

they reside and work.

DATES: Comments are due on or before

March 20, 2001.

ADDRESSES: Submit written comments

to T. Michael Kerr, Administrator, Wage

and Hour Division, Employment

Standards Administration, U.S.

Department of Labor, Attention: Fair

Labor Standards Team, Room S–3516,

200 Constitution Avenue NW.,

Washington, DC 20210. Commenters

who wish to receive notification of

receipt of comments are requested to

include a self-addressed, stamped

postcard, or to submit comments by

certified mail, return receipt requested.

As a convenience, commenters may

transmit comments by facsimile

(‘‘FAX’’) machine to (202) 693–1432.

This is not a toll free number. If

comments are transmitted by FAX and

a hard copy is also submitted by mail,

please indicate on the hard copy that it

is a duplicate copy of the FAX

transmission.

FOR FURTHER INFORMATION CONTACT:

Richard M. Brennan, Deputy Director,

Office of Enforcement Policy, Wage and

Hour Division, Employment Standards

Administration, U.S. Department of

Labor, Room S–3510, 200 Constitution

Avenue, NW., Washington, DC 20210;

telephone: (202) 693–0745. This is not

a toll free number. Copies of this

proposed rulemaking may be obtained

in alternative formats by calling (202)

693–0745 or (202) 693–1461 (TTY). The

alternative formats available are large

print electronic file on computer disk

(Word Perfect, ASCII, Mates with

Duxbury Braille System) and audiotape.

SUPPLEMENTARY INFORMATION

I. Background

Congress expressly extended coverage

to ‘‘domestic service’’ workers under the

FLSA in 1974, amending the law to

apply to employees performing services

of a household nature in or about the

private home of the person by whom

they are employed. 29 U.S.C. 202(a),

206(f), 207(l). Domestic service workers

were made subject to the FLSA even

though they worked for a private

household and not for a covered

enterprise. Domestic service workers

include, for example, employees

working as cooks, butlers, valets, maids,

housekeepers, governesses, janitors,

laundresses, caretakers, handymen,

gardeners, and family chauffeurs. Senate

Report No. 93–690, 93d Cong., 2d Sess.

(1974), p. 20. Simultaneously with

extending coverage under the FLSA to

domestic service workers, Congress

created a complete exemption from both

the minimum wage and overtime

requirements for casual babysitters and

persons ‘‘employed in domestic service

employment to provide companionship

services for individuals who (because of

age or infirmity) are unable to care for

themselves (as such terms are defined

and delimited by regulations of the

Secretary [of Labor]).’’ 29 U.S.C.

213(a)(15). Congress also created a more

limited exemption from the overtime

requirements for domestic service

employees in a household who reside in

that household. 29 U.S.C. 213(b)(21).

Congressional committee reports

describe the reasons for extending the

minimum wage protections to domestics

as ‘‘so compelling and generally

recognized as to make it hardly

necessary to cite them.’’ Senate Report

No. 93–690, p. 18. Private household

work had been one of the least attractive

fields of employment. Wages were low,

work hours were highly irregular, and

non-wage benefits were few. Senate

Report No. 93–690, p. 18.

The U.S. House of Representatives,

Committee on Education and Labor

stated its expectation ‘‘that extending

minimum wage and overtime protection

to domestic workers will not only raise

the wages of these workers but will

improve the sorry image of household

employment. * * * Including domestic

workers under the protection of the Act

should help to raise the status and

dignity of this work.’’ House Report No.

93–913, 93d Cong., 2d Sess., (1974), pp.

33–34. The legislative history states that

the 1974 Amendments were intended to

include all employees whose vocation

was domestic service, but to exempt

from coverage babysitters and

companions who were not regular

bread-winners or responsible for their

families’ support. It was not intended

that the statute exclude trained

personnel such as nurses, whether

registered or practical, from the

protections of the Act. Senate Report

No. 93–690, p. 20. Senator Williams,

Chairman of the Senate Subcommittee

on Labor and the Senate floor manager

of the 1974 FLSA Amendments,

described companions as ‘‘elder sitters’’

whose main purpose of employment is

to watch over an elderly or infirm

person in the same manner that a

babysitter watches over children. All

other work (such as occasionally making

a meal or washing clothes for the

person) must be incidental to that main

purpose. 119 Cong. Rec. 24773, 24801

(1973).

The Department promulgated

implementing regulations in 1975 that

define ‘‘companionship services’’ as

including ‘‘fellowship, care, and

protection’’ provided to a person who,

because of advanced age or physical or

mental infirmity, could not care for his

or her own needs. The regulation

defined such exempt services as

including household work related to the

person’s care (such as meal preparation,

bed making, washing of clothes, and

other similar services). A companion

could also perform additional general

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations 5483

household work without losing the

exemption if it was incidental and

comprised not more than 20 percent of

the total weekly hours worked. Finally,

a companion could be exempt even if

employed solely by a third-party

employer or agency, rather than by an

individual or family directly. 29 CFR

552.6; 552.109(a). Similarly, live-in

domestic service workers could be

exempt even if employed solely by a

third-party employer or agency, rather

than by the individual or family in

whose home they resided and worked.

29 CFR 552.109(c).

The home care industry has changed

dramatically since the Department

published the 1975 regulations

implementing the exemption for

companionship services. There has been

a growing demand for long-term inhome care for persons of all ages, in part

because of the rising cost of and

increasing dissatisfaction with

traditional institutional care, and

because of the availability of public

funding assistance for in-home care

under Medicare and Medicaid.

According to the National Association

of Home Care (NAHC) publication,

Basic Statistics About Home Care

(March 2000), data from the Department

of Health and Human Services’ Health

Care Financing Administration (HCFA)

show that the number of Medicarecertified home care agencies increased

over three-fold from 2,242 in 1975 to

7,747 in 1999. The number of for-profit

agencies not associated with a hospital,

rehabilitation facility, or skilled nursing

facility, i.e., freestanding agencies,

increased more than any other category

of agency from 47 in 1975 to 3,129 in

1999. These for-profit agencies grew

from 2 percent of total Medicarecertified agencies to over 40 percent by

1999, and now represent the greatest

percentage of certified agencies. Public

health agencies, which constituted over

half of the certified agencies in 1975,

now represent only 12 percent.

The Federal Government pays for

much of the cost of providing home care

services to care recipients. Medicare

provides a notable portion of the

industry’s total revenues; other payment

sources include Medicaid, insurance

plans, and direct pay. Based on data

from ‘‘A Profile of Medicare Home

Health’’—a HCFA publication—

Medicare and Medicaid together

account for more than half of the

revenues paid to freestanding agencies

(40 and 15 percent, respectively). Other

private funds (philanthropy) account for

12 percent, while private health

insurance accounts for 11 percent. Outof-pocket funds account for 22 percent

of agency revenues.

There has been a similarly dramatic

increase in the employment of home

health aides and personal and home

care aides in the private homes of

individuals who need assistance with

basic daily living or health maintenance

activities. Bureau of Labor Statistics’

(BLS) national occupational

employment and wage estimates from

the Occupational Employment Statistics

(OES) survey show that the number of

workers in these jobs tripled during the

decade between 1988 and 1998, and by

1998 there were 430,440 people working

as home health aides and 255,960

people working as personal and home

care aides. The combined occupations

of personal care and home health aides

constitute the seventh most rapidly

growing occupational group, and BLS

estimates that their number will

increase by another 150 percent from

1998 to 2008. The earnings of both

categories of employees remain among

the lowest in the service industry—a

1998 mean annual wage of $16,250 for

home health aides and $14,920 for

personal and home care aides according

to the OES data. Based on the same data

source, ten percent of home health aides

and personal and home care aides earn

below $12,300 a year—lower than the

1999 poverty threshold level of $13,880

for a family of three.

Home health aides generally received

more than personal and home care

aides—$7.51 per hour (mean hourly

wage) for personal and home care aides,

and $8.17 per hour for home health

aides. However, 10 percent of home

health aides were paid less than $5.87

an hour, while 10 percent of personal

and home care aides received less than

$5.60 per hour. Although 90 percent of

home health aides and personal and

home care aides received hourly wages

at or above $5.87 or $5.60, nearly 70,000

of these workers received hourly wages

at or below such rates, and possibly

below the minimum wage.

According to the BLS National

Industry-Occupation Employment

Matrix (1998), the largest percentage (38

percent) of personal care and home

health care aides are employed in the

home health care services industry.

Others are employed by miscellaneous

social service agencies, residential care

facilities, personnel supply service

agencies, nursing homes and hospitals.

Only about two percent were selfemployed and another two percent were

employed in private households.

Current data suggest that many

workers in the home care industry are

now employed in their primary

occupation. BLS National Current

Employment Statistics for 1999 show an

average weekly number of hours worked

among non-supervisory employees in

the home health care services industry

(SIC 808) of 29.1 hours. Workers in the

individual and family social services

industry (SIC 832) averaged 31.2 hours

per week. In the residential care

industry (SIC 836), workers averaged

32.4 weekly hours worked. To the

extent that time spent traveling from

one client to the next has not been

considered hours worked and thus

captured in the above data, home care

workers may actually be working longer

than revealed by the BLS statistics. As

indicated earlier, it clearly was

Congress’ intent under the 1974 FLSA

Amendments to cover all workers who

performed domestic services as a

vocation, excluding casual babysitters

and providers of companionship

services who were not regular bread

winners or responsible for their

families’ support.

These workers perform a variety of

housekeeping, personal care, and

medical duties for individuals who need

assistance with activities of daily living

to enable them to remain in their homes.

Home health aides perform duties such

as preparing meals, dressing patients,

administering medication and

performing medical procedures under a

doctor’s or nurse’s direction. Personal

and home care aides perform a variety

of tasks in the home, including

household work and assistance with

nutrition and cleanliness. Employers

have generally treated workers

employed as home health aides and

personal and home care aides as exempt

companions, based upon the

Department’s current regulations. To the

extent that the current regulations allow

for the exemption of an employee who

provides very little fellowship, and

whose duties involve almost exclusively

the performance of household chores or

medical services, they do not

appropriately implement Congress’

limited exemption for employees who

provide companionship services. As a

result, the Department believes it is

necessary to amend the regulations to

focus them on the fellowship and

protection duties that Congress

originally intended the companion

exemption to cover.

II. Proposed Regulatory Revisions

A. Duties of a Companion (29 CFR

552.6)

The Department proposes to amend

the definition of ‘‘companionship

services’’ in section 552.6 to clarify the

focus on the element of fellowship, to

align the regulation more closely with

Congressional intent. The dictionary

definition of ‘‘companionship’’ is

5484 Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations

instructive in revising the regulation to

conform to the concept of a companion

as originally intended in the legislative

history: someone in the home primarily

to watch over and care for the elderly

or infirm person, much as a neighbor or

babysitter would. The dictionary defines

companionship as the ‘‘relationship of

companions; fellowship.’’ And the term

‘‘companion’’ is defined as a ‘‘person

who accompanies or associates with

another; comrade’’ and as a person

‘‘employed to assist, live with, or travel

with another.’’ It further defines

‘‘fellowship’’ as including ‘‘the

condition of being together,’’

‘‘friendship’’ and coming together ‘‘in a

congenial atmosphere.’’ The American

Heritage Dictionary of the English

Language, 1976 Edition. Thus, we

propose a revision of the regulation that

requires that fellowship be a significant,

important and fundamental aspect of

the job under the companionship

services exemption. Only where the

worker and the person being served or

assisted interact on a close personal

basis, for a significant percentage of the

time, would the companionship services

exemption be applicable. Of course, the

precise nature of what activities

constitute fellowship will vary,

depending upon the needs, capabilities,

and interests of the care recipient. For

example, fellowship might involve

reading a book or a newspaper to the

person, chatting with him or her about

family or other events, playing cards,

watching television, or going for a walk.

Whatever the specific activity, it must

involve personal interaction between

the in-home care provider and the care

recipient in order for the proposed

companionship services exemption to

apply.

The regulatory definition of

companionship services cannot be so

broad as to include someone who

essentially is serving as a maid or

household worker. In 1974, Congress

amended the FLSA specifically to

include domestic service workers (such

as maids, cooks, valets and laundresses)

among those intended to be covered by

the Act. Congress simultaneously

created a narrowly-tailored exemption

for casual babysitters and those

providing companionship services to

the elderly and infirm. The regulations

implementing the exemption should

strike a balance that implements

Congress’ twin goals by recognizing that

the fellowship and protection provided

by a companion are very different from

the household chores performed by a

maid or cook or laundress. Furthermore,

the regulations should also reflect that

coverage under the FLSA is construed

broadly and exemptions narrowly to

effectuate the Act’s remedial purposes.

The Department recognizes that it is

possible to define companionship

services in several different ways, with

the options arrayed along a spectrum.

The definitions may vary in the degree

to which they require the provision of

fellowship only, or allow the provision

of fellowship in conjunction with

hands-on care. The percentage of time

that must be spent in fellowship as

compared to other care duties also may

vary. The Department proposes three

alternatives for defining companionship

services and seeks comments on all

three alternatives. The three possible

definitions involve variations in the

specific types of duties the employee

may perform and the amount of time the

employee may spend in performing

such duties. All of the alternatives

increase the emphasis on fellowship as

a critical component of a companion’s

duties, and narrow or eliminate the type

of care that may comprise a

companion’s duties. In all three

alternatives, we also propose to

eliminate the current regulatory

provision that allows the exemption to

apply when the worker spends up to 20

percent of his or her time performing

general household work which is

unrelated to the care of the person, such

as general vacuuming and dusting. Such

general household work is precisely the

sort of work that Congress sought to

cover when it amended the Act in 1974

to reach domestic service workers, and

therefore would be precluded.

The first proposal requires that

fellowship be a significant part of the

person’s duties for the companionship

services exemption to apply, but does

not require fellowship duties to occupy

a set percentage of the worker’s time.

This proposal anticipates that

fellowship would occur in conjunction

with the performance of other intimate

personal care chores, such as bathing,

grooming, and dressing, which also

would constitute exempt duties. The

first proposal also would allow the

exemption if the worker performs a

limited amount (up to 20 percent of the

hours worked per week) of work of a

household nature that is directly related

to the client’s personal care, such as

cooking the person’s meal, making the

person’s bed, or washing the dishes for

that person.

The second proposal focuses on

fellowship and protection as the

primary duties in order for the

companionship services exemption to

apply. Thus, an employee must spend

more than 50 percent of his or her time

engaging in fellowship or protection

duties to be exempt. Such fellowship

and protection duties would include

activities providing only fellowship or

protection as well as activities in which

fellowship or protection is provided

concurrently with the performance of

other intimate personal care chores,

such as bathing, grooming, and toileting.

However, only one-half the time spent

providing fellowship or protection

simultaneously with such other intimate

personal care chores would count when

determining if the employee’s primary

duty was providing fellowship or

protection. The second proposal also

would allow the exemption if the

worker performs a limited amount (up

to 20 percent of the weekly hours) of

work of a household nature that is

directly related to the person’s care.

The third proposal would require that

fellowship and protection be the sole

core duties in order for the exemption

to apply. To qualify for the exemption,

the individual would have to spend at

least 80 percent of his or her time in

activities that provide fellowship or

protection, not in conjunction with

other personal care duties. The 20

percent tolerance for other types of work

would apply to other intimate care and

related chores. Thus, under this

proposal, time spent on intimate

personal care chores (such as grooming,

toileting, and feeding) and on directly

related work for the person (such as

cooking the person’s meal) may not

exceed 20 percent of the weekly hours

worked for the companionship services

exemption to apply.

B. Trained Personnel (29 CFR 552.6)

There has also been a dramatic change

since the enactment of the 1974 FLSA

Amendments in the nature of the duties

performed by many employees

classified as exempt under the

companionship services exemption.

Because many individuals who were

formerly institutionalized or moved to

nursing homes are able, with assistance,

to stay in their homes, home care

providers have taken on a broader range

of medically-related duties. For

example, individuals treated as exempt

in providing companionship services

may now perform duties such as

medication management, taking vital

signs (pulse, temperature, respiration),

routine skin and back care, and

assistance with exercise and the

performance of simple procedures as an

extension of physical therapy service.

The training necessary for an

employee to perform such duties, while

less than the training of a physician or

nurse, means that such individuals are

not acting simply as elder sitters or as

babysitters watching over their charge.

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations 5485

Some courts, interpreting the current

regulations, have allowed employees to

qualify for exemption under the present

regulatory definition of companionship

services despite the fact that they had

extensive training, on the theory that

they did not have the two or more years

of training generally required for LPNs

and RNs. For example, in McCune v.

Oregon Senior Services Division, 894

F.2d 1107 (9th Cir. 1990), the court

found that certified nursing assistants

who had to pass a 60-hour training class

were exempt despite their extensive

medical training. Similarly, in Cox v.

Acme Health Services, Inc., 55 F.3d

1304 (7th Cir. 1995), the court held that

certified home health aides with 75

hours of state-required training were

exempt. The court in Terwilliger v.

Home of Hope, Inc., 21 F. Supp. 2d 1294

(N.D. Okla. 1998), also found that

employees with 160 hours of training,

who had to obtain 40 additional hours

of training each year, were exempt.

The Department believes that

Congress did not intend for the

companionship services exemption to

apply to employees with the level of

training necessary to perform medicallyrelated duties such as medication

management and assistance with

physical therapy. Duties being

performed that require such extensive

training are beyond what Congress

envisioned when it stated that persons

providing companionship services are

present in the home, as a neighbor

might be, to watch over an elderly

person the way a babysitter watches

over a child. Thus, the Department

proposes to clarify the regulatory

definition of companionship services in

section 552.6 to exclude personnel

trained in the performance of such

medically related duties from the

companion exemption.

C. Third Party Employment (29 CFR

552.109)

The Department also proposes to

amend section 552.109, the regulation

pertaining to employment by a third

party. People providing in-home care

and assistance to individuals with

activities of daily living may be

employed, or jointly employed, by

various parties such as the family or

household using the companionship

services, State or local governments,

private for-profit agencies, and hospitalrelated and not-for-profit agencies.

Under the existing regulation,

employees who are employed by an

employer or agency other than the

family or household using the

companionship services may still

qualify for the exemption. Similarly,

under the current regulation live-in

workers who are employed by a third

party, rather than by the family in

whose household they work and reside,

nevertheless may qualify for an

overtime exemption under section

13(b)(21) of the FLSA.

The Department believes that

employment by a party other than the

family or household using the

companionship services is inconsistent

with the status of a companion, because

the exemption for companionship

services in section 13(a)(15) of the FLSA

is limited to employees who are

domestic service employees. The

overtime exemption in section 13(b)(21)

for live-in employees who reside in the

household is similarly limited to

domestic service employees. While

domestic service was not defined by

Congress in the Act, the Senate report

reflects Congress’ view that ‘‘the

generally accepted meaning of domestic

service relates to service of a household

nature performed by an employee in or

about a private home of the person by

whom he or she is employed.’’ Senate

Report No. 93–690, p. 20 (emphasis

added). The regulations mirror

Congressional intent in defining

domestic service employment as

services of a household nature

performed by an ‘‘employee in or about

a private home (permanent or

temporary) of the person by whom he or

she is employed.’’ 29 CFR 552.3. Thus,

the current regulations contain an

internal inconsistency, because they

allow the companion and live-in

domestic exemptions to be applied to an

employee employed by someone other

than the person in whose private home

the work is being performed.

In 1993, the Department published a

proposal to amend this regulation in

light of the statutory requirement that

the exemptions for companionship

services and live-ins only applied to

domestic service employees. The

proposal provided that the

companionship services exemption

would not apply unless the person

receiving the companionship services

acted, alone or jointly, as an employer.

58 FR 69310, December 30, 1993. The

subsection pertaining to live-in

employees was similarly proposed for

amendment. In 1995 the rule was

reproposed, suggesting that the

exemption might apply if either the

person receiving the services or a family

member or state agency acted as an

employer of the person providing

companionship services, if the care

recipient was unable to act on his or her

own behalf. 60 FR 46797, September 8,

1995. The Department received very few

comments on either of those proposals,

and many of the comments indicated

that there was confusion about the

impact and effect of the proposals.

The Department continues to believe

that the current regulation

impermissibly extends the exemption

for companionship services and for livein workers to employees who do not

qualify as domestic service employees,

because they are not working in the

home of their employer, i.e., the third

party employer. In addition, as

discussed above, changes in the

industry and in the nature of the duties

being performed in peoples’ homes by

this segment of the work force have

resulted in increasing numbers of

employees working for third-party

employers. Under the 1974

Amendments, Congress extended

coverage of the FLSA to domestic

service employees who were not

previously covered, i.e., those who

worked only for a private family and not

for a covered enterprise. Anyone who

prior to 1974 had worked for a covered

placement agency, for example, but who

was assigned to work in someone’s

home, would have been covered

previously by the FLSA. The

Department believes that Congress did

not intend the 1974 amendments to

change the status of workers already

covered by the FLSA, but only intended

to exclude casual babysitters and

companions from those newly covered

by the law, that is, those exclusively

employed by the homeowner or family

member.

Accordingly, we propose to amend

section 552.109 (a) and (c) to make the

exemptions in sections 13(a)(15) and

13(b)(21) of the FLSA applicable only

with respect to the family or household

using the worker’s services. For

employees who are employed, whether

solely or jointly, by an employer other

than the family or household, such

workers would not be engaged in

‘‘domestic service employment’’ with

respect to those third party employers,

and those third party employers,

therefore, would not be able to avail

themselves of the exemptions. A

corresponding revision is made to the

definition of domestic service

employment in section 552.103.

III. Paperwork Reduction Act

This proposed regulation does not

contain any information collection

requirements that require the approval

of the Office of Management and Budget

under the Paperwork Reduction Act.

IV. Executive Order 12866

The proposed rule is not an

‘‘economically significant’’ regulatory

action within the meaning of section

3(f)(1) of Executive Order 12866 on

5486 Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations

‘‘Regulatory Planning and Review.’’ The

rule is not likely to: (1) Have an annual

effect on the economy of $100 million

or more or adversely affect in a material

way the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; or (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof. As a result, the

Department concluded that a full

economic impact and cost/benefit

analysis was not required for the rule

under Section 6(a)(3) of the Order.

However, because of its importance to

the public and to the Administration’s

priorities, the rule was treated as a

significant regulatory action and it was,

therefore, reviewed by the Office of

Management and Budget.

Based on our preliminary analysis of

the data, it is our conclusion that the

proposals to change how the

companionship services exemption is

applied under the FLSA will not

produce a significant economic or

budgetary impact on affected entities.

The data indicate that more than 90

percent of the workers employed in the

potentially affected occupational

categories already receive the current

federal minimum wage of $5.15 an hour

or higher, and changing their status

under the FLSA from exempt to nonexempt would not impose any new

wage costs to meet minimum wage

requirements. Similarly, because it

appears that most of the workers in

these occupational categories do not

regularly work overtime (i.e., more than

40 hours per week), there would be little

impact from overtime wage costs if their

status were changed from exempt to

non-exempt. Our analysis suggests that

most of the likely impact, although

small, will be limited to the less than 10

percent of workers who do not receive

at least $5.15 an hour and to those

workers who may be entitled to

additional compensation (minimum

wage or overtime) for time spent

traveling between multiple client work

sites during the day. Some employers

may not now pay for such travel time.

For those few workers who may be paid

at or near the $5.15 minimum wage or

who work overtime hours once the

travel time is included, some employers

could incur minor additional wage costs

to meet FLSA’s minimum wage or

overtime requirements. However, there

are many scheduling options available

to employers to enable them in that

event to limit the total hours worked by

an employee to 40 or fewer hours per

week to ensure that overtime costs are

not incurred if paying overtime wages is

not in their own economic self-interests.

The Department of Health and Human

Services’ Health Care Finance

Administration informally estimates

that the proposal will have a negligible

effect on Medicare costs as the types of

services at issue are not a significant

component of the Medicare program.

Annual Medicaid program expenditures

may increase somewhere within a $30

to $40 million range, of which 57

percent would be the Federal share. An

equivalent percent increase in private

expenditures for home health services

would suggest the possibility of a

maximum additional increase of $35

million in total private expenditures.

The combined private and public total

would likely be no greater than $75

million.

Accordingly, it is our conclusion that

this rulemaking is not an economically

significant regulatory action for

purposes of Executive Order 12866.

V. Small Business Regulatory

Enforcement Fairness Act

For similar reasons as noted above,

the Department has concluded that this

proposed rule is not a ‘‘major’’ rule

requiring approval by the Congress

under the Small Business Regulatory

Enforcement Fairness Act of 1996 (5

U.S.C. 801 et seq.). It will not likely

result in (1) an annual effect on the

economy of $100 million or more; (2) a

major increase in costs or prices for

consumers, individual industries,

Federal, State or local government

agencies, or geographic regions; or (3)

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

enterprises to compete with foreignbased enterprises in domestic or export

markets.

VI. Unfunded Mandates Reform Act

For similar reasons for purposes of the

Unfunded Mandates Reform Act of

1995, this rule does not include a

Federal mandate that may result in

increased expenditures by State, local,

and tribal governments in the aggregate

of more than $100 million, or increased

expenditures by the private sector of

more than $100 million.

VII. Executive Order 13132

(Federalism)

The Department has reviewed this

rule under the terms of Executive Order

13132 regarding federalism and has

determined that it does not have

federalism implications. Because the

economic effects under the rule will not

be substantial for the reasons noted

above, the rule does 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.’’

VIII. Effects on Families

The Department has assessed this rule

under section 654 of the Treasury and

General Government Appropriations

Act, 1999, for its effect on family wellbeing and hereby certifies that it will

not adversely affect the well-being of

families.

IX. Regulatory Flexibility Act

The Department has determined for

similar reasons that this proposed

regulation will not have a significant

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act, and the Department has so certified

to the Chief Counsel for Advocacy of the

Small Business Administration. As

discussed above in the analysis under

Executive Order 12866, more than 90

percent of the workers employed in

occupational categories addressed by

this rulemaking already receive wages at

rates above the current federal

minimum wage, and they typically work

fewer than 40 hours per week.

Furthermore, employers are reimbursed

by the Federal government or insurance

companies for most of the cost of

providing these benefits. Thus, even

assuming that the alternative covering

the most additional (and therefore

exempting the fewest) workers is

adopted, the rule will not have a

significant economic impact. The

following regulatory flexibility analysis

supports this determination.

(1) Reasons Why Action is Being

Considered

Section 13(a)(15) of the Fair Labor

Standards Act (29 U.S.C. 213(a)(15))

contains an exemption from both the

minimum wage and overtime pay

requirements for ‘‘3 any employee

employed in domestic service

employment to provide companionship

services for individuals who (because of

age or infirmity) are unable to care for

themselves (as such terms are defined

and delimited by regulations of the

Secretary)’’ (emphasis added). Due to

considerable growth in home care and

the home health care industry since the

implementing regulations were

promulgated in 1975, the Department’s

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations 5487

more recent experience indicates that

the ‘‘companionship services’’

exemption is being asserted in an

expansive way for many more workers

than we believe the Congress originally

intended based on a careful analysis of

the background and legislative history

to the exemption. Vast numbers of

workers employed in regular vocations

to provide domestic services and care

for individuals in their private homes

are being excluded from FLSA coverage

as a result of this misapplication of this

exemption, which we believe is contrary

to the intent and specific purposes of

the 1974 FLSA Amendments. The

Department is therefore issuing this

proposal to invite public comments on

possible clarifications to the definitional

terms describing the companionship

services exemption to bring it more in

line with original Congressional intent.

(2) Objectives of and Legal Basis for

Rule

This proposed rule is issued under

the authority provided by section

13(a)(15) of the FLSA (29 U.S.C.

213(a)(15)), which grants the Secretary

of Labor legislative rulemaking

authority to define and delimit the

terms ‘‘employee employed in domestic

service employment to provide

companionship services’’ for purposes

of exempting such workers from the

minimum wage and overtime pay

requirements of the FLSA.

(3) Number of Small Entities Covered

Under the Rule

A small business profile obtained

from the U.S. Small Business

Administration’s Office of Advocacy

web site indicates that the health

services industry is among the top small

business industries in the United States

according to employment figures. The

SBA small business size standard for

Home Health Care Services, NAICS

6216, applies a $10 million threshold in

annual receipts for defining a small

business. Based on data from the U.S.

Census Bureau’s 1997 Economic

Census, there were 16,895 home health

care establishments (both exempt from

and subject to federal income tax) in

1997 that operated for the entire year. Of

that number, 16,486 (or 98%) had

revenues (in the case of tax exempt

firms) or receipts (in the case of nonexempt firms) of less than $10,000,000.

For purposes of this analysis, we have

assumed that most of the entities

potentially affected by this proposal

would likely meet the applicable criteria

defining a small business in the home

health care industry.

(4) Reporting, Recordkeeping, and Other

Compliance Requirements of the Rule

The rule contains no reporting,

recordkeeping or other compliance

requirements. All employers covered by

the FLSA must comply with its

minimum wage, overtime pay, child

labor, and generally applicable

recordkeeping requirements with

respect to each employee who is not

otherwise exempt from the FLSA’s

requirements.

(5) Relevant Federal Rules Duplicating,

Overlapping, or Conflicting With the

Rule

There are no Federal rules that

duplicate, overlap, or conflict with this

rule governing the scope of the

companionship services exemption

under the FLSA. Regulations issued

under the Medicare and Medicaid

programs govern qualifying

reimbursements for eligible expenses

under those programs.

(6) Differing Compliance or Reporting

Requirements for Small Entities

This proposed rule contains no

reporting, recordkeeping, or other

compliance requirements specifically

applicable to small entities or that differ

from FLSA requirements generally

applicable to all employers subject to

the FLSA. Furthermore, since this is a

question of application of the basic

minimum wage and overtime

requirements of the Act, and most

affected employers would be small, no

special treatment would be appropriate

for small entities. However, the

Department has prepared three

alternative definitions of the scope of

exempt duties and requested comments

on all three.

(7) Clarification, Consolidation, and

Simplification of Compliance and

Reporting Requirements

There is continuing confusion, among

both employees and employers, over the

scope of the companionship services

exemption as it relates to the home

health care industry. This proposal is

intended to delimit how the exemption

applies in a manner that conforms more

fully with Congressional intent.

Compliance requirements—i.e.,

payment of not less than the minimum

wage for all hours worked and overtime

pay, computed at time-and-one-half the

regular rate for hours worked over 40

per week to all covered employees—are

imposed by statute but are also

relatively simple and easy to comply

with. Under the recordkeeping

requirements generally applicable to all

FLSA-covered employers, no particular

order or form of records is prescribed by

regulation and employers are free to use

any format that assures the essential

records are kept that meets compliance

needs.

(8) Use of Other Standards

This proposed regulation addresses

only statutory coverage and definitional

terms used in applying the

‘‘companionship services’’ exemption.

Different standards for a statutory

exemption are not appropriate for small

businesses. It should be noted, however,

that the proposed modification to the

exemption to exclude from the

exemption those workers who are

employed by an employer or agency

other than the family or household

using their services would have the

effect of excluding all large employers

(as well as small employers other than

the family or household).

(9) Exemption of Small Entities From

Coverage of the Rule

An exemption based on the size of the

entity/employer would not be permitted

by the terms of the statute. Coverage and

applicability of the wage and hours

provisions of the FLSA are based on

engagement in interstate commerce,

production of goods for interstate

commerce, employment in domestic

service employment in private

households (per se), and employment by

certain enterprises named in the statute

as subject to its provisions.

X. Document Preparation

This document was prepared under

the direction and control of Thomas M.

Markey, Deputy Administrator for

Operations, Wage and Hour Division,

Employment Standards Administration,

U.S. Department of Labor.

List of Subjects in 29 CFR Part 552

Domestic service workers,

Employment, Labor, Minimum wages,

Overtime pay, Wages.

Signed at Washington, DC on this 12th day

of January, 2001.

T. Michael Kerr,

Administrator, Wage and Hour Division.

For the reasons set forth above, part

552 of title 29 of the Code of Federal

Regulations is proposed to be amended

as follows:

PART 552—APPLICATION OF THE

FAIR LABOR STANDARDS ACT TO

DOMESTIC SERVICE

1. The authority citation for part 552

continues to read as follows:

Authority: Secs. 13(a)(15) and 13(b)(21) of

the Fair Labor Standards Act, as amended (29

U.S.C. 213(a)(15), (b)(21)), 88 Stat. 62; Sec.

29(b) of the Fair Labor Standards

5488 Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations

Amendments of 1974 (Pub. L. 93–259, 88

Stat. 76), unless otherwise noted.

2. § 552.3 is proposed to be revised by

adding a sentence to the end of the

section to read as follows:

§ 552.3 Domestic service employment.

* * * Employees who are employed,

whether solely or jointly, by an

employer or agency other than the

family or household using their services

are not engaged in domestic service

employment within the meaning of this

part with respect to such third-party

employer.

3. § 552.6 is proposed to be revised to

read as follows:

Alternative 1 for § 552.6

§ 552.6 Companionship services for the

aged or infirm.

As used in section 13(a)(15) of the

Act, the term companionship services

shall mean those services which provide

fellowship, care and protection for a

person who, because of advanced age or

physical or mental infirmity, cannot

care for his or her own needs. Although

no specific percentage of time must be

devoted exclusively to fellowship,

fellowship must be a significant

component of a companion’s duties.

Protection generally involves being

present in the home of the individual to

ensure the safety and well being of that

individual. Care generally involves

providing intimate personal care

services to that individual, such as

feeding the person or assisting the

person with bathing, dressing,

grooming, or toileting. A companion

may also perform household work but

only insofar as it is directly related to

the care of the individual, such as

preparing the individual’s meal, making

the individual’s bed, washing the

individual’s clothes and other similar

services for the person, provided,

however, that such work is incidental,

i.e., does not exceed 20 percent of the

total weekly hours worked. The term

‘‘companionship services’’ does not

include services relating to the care and

protection of the individual which

require and are performed by personnel

with training in medical procedures,

including, but not limited to, catheter

and ostomy care, injections, and tube

feeding, regardless of whether the

caregiver is a registered or practical

nurse. While such trained personnel do

not qualify as companions, this fact

does not remove them from the category

of covered domestic service employees

when employed in or about a private

household.

Alternative 2 for § 552.6

§ 552.6 Companionship services for the

aged or infirm.

As used in section 13(a)(15) of the

Act, the term companionship services

shall mean those services which provide

fellowship, care and protection for a

person who, because of advanced age or

physical or mental infirmity, cannot

care for his or her own needs.

Fellowship and protection must be a

companion’s primary duties and the

companion must spend at least 50% of

his or her weekly hours worked

providing fellowship or protection. A

companion’s time may be devoted

exclusively to fellowship or protection,

or fellowship and protection may be

provided in conjunction with and

concurrently with intimate personal

care activities; however, only one-half of

the time spent providing fellowship or

protection in the context of and

concurrently with intimate personal

care activities may count towards the 50

percent requirement. Protection

generally involves being present in the

home of the individual to ensure the

safety and well being of that individual.

Care generally involves providing

intimate personal care services to that

individual, such as feeding the person

or assisting the person with bathing,

dressing, grooming, or toileting. A

companion may also perform household

work but only insofar as it is directly

related to the care of the individual,

such as preparing the individual’s meal,

making the individual’s bed, washing

the individual’s clothes and other

similar services for the person,

provided, however, that such work is

incidental, i.e., does not exceed 20

percent of the total weekly hours

worked. The term ‘‘companionship

services’’ does not include services

relating to the care and protection of the

individual which require and are

performed by personnel with training in

medical procedures, including, but not

limited to, catheter and ostomy care,

injections, and tube feeding, regardless

of whether the caregiver is a registered

or practical nurse. While such trained

personnel do not qualify as companions,

this fact does not remove them from the

category of covered domestic service

employees when employed in or about

a private household.

Alternative 3 for § 552.6

§ 552.6 Companionship services for the

aged or infirm.

As used in section 13(a)(15) of the

Act, the term companionship services

shall mean those services which provide

fellowship and protection for a person

who, because of advanced age or

physical or mental infirmity, cannot

care for his or her own needs.

Fellowship and protection are a

companion’s sole core duties and a

companion must spend at least 80% or

his or her weekly hours worked

exclusively providing fellowship or

protection. Protection generally involves

being present in the home of the

individual to ensure the safety and well

being of that individual. A companion

may also perform duties that provide

care, which generally involves

providing intimate personal care

services to the individual, such as

feeding the person or assisting the

person with bathing, dressing,

grooming, or toileting. A companion

also may perform household work but

only insofar as it is directly related to

the care of the individual, such as

preparing the individual’s meal, making

the individual’s bed, washing the

individual’s clothes and other similar

services for the person. However, all

intimate personal care services and

household work directly related to the

individual must be incidental, i.e., may

not exceed 20 percent of the total

weekly hours worked. The term

‘‘companionship services’’ does not

include services relating to the care and

protection of the individual which

require and are performed by personnel

with training in medical procedures,

including, but not limited to, catheter

and ostomy care, injections, and tube

feeding, regardless of whether the

caregiver is a registered or practical

nurse. While such trained personnel do

not qualify as companions, this fact

does not remove them from the category

of covered domestic service employees

when employed in or about a private

household.

4. In § 552.109, paragraphs (a) and (c)

are proposed to be revised to read as

follows:

§ 552.109 Third party employment.

(a) Employees who are employed,

whether solely or jointly, by an

employer or agency other than the

family or household using their services

are not engaged in ‘‘domestic service

employment’’ within the meaning of

these regulations with respect to such

third party employer. Consequently,

such a third party employer may not

avail itself of the minimum wage and

overtime pay exemption provided by

section 13(a)(15) of the Act for

employees employed in domestic

service employment to provide

companionship services.

(b) * * *

(c) Household workers who are

employed, whether solely or jointly, by

an employer or agency other than the

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules and Regulations 5489

family or household using their services

are not engaged ‘‘in domestic service

employment’’ within the meaning of

these regulations with respect to such

third party employer. Consequently,

such a third party employer may not

avail itself of the overtime pay

exemption provided by section 13(b)(21)

of the Act for employees employed in

domestic service who reside in the

household.

[FR Doc. 01–1590 Filed 1–18–01; 8:45 am]

BILLING CODE 4510–27–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 229

[Docket No. 001128334–0334–01; I.D.

111300E]

RIN 648–AN40

Taking of Marine Mammals Incidental

to Commercial Fishing Operations;

Atlantic Large Whale Take Reduction

Plan Regulations

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Interim final rule; delay of

effective date.

SUMMARY: This interim final rule delays

the effective date of an interim final rule

amending the Atlantic Large Whale

Take Reduction Plan (ALWTRP) from

January 22, 2001, until February 21,

2001. Due to the rough January weather

conditions in the Gulf of Maine, the

affected fishers have not been able to

implement the gear modifications in the

interim final rule in time to meet the

January 22, 2001 effective date. The

intent of this delay of effective date is

to allow fishers 30 additional days to

implement the gear modifications.

DATES: The effective date of the interim

final rule amending 50 CFR part 229

published at 65 FR 80368, December 21,

2000, is delayed until February 21,

2001.

ADDRESSES: Send comments on this

interim final rule to the Chief, Marine

Mammal Division, NMFS, Office of

Protected Resources, 1315 East-West

Highway, Silver Spring, MD 20910.

Copies of the Environmental

Assessment, Atlantic Large Whale Take

Reduction Team (ALWTRT) meeting

summaries, progress reports on

implementation of the ALWTRP, and a

map and table of the changes to the

ALWTRP may be obtained by writing

Douglas Beach, NMFS/Northeast

Region, 1 Blackburn Dr., Gloucester, MA

01930 or Katherine Wang, NMFS/

Southeast Region, 9721 Executive

Center Dr., St. Petersburg, Fl 33702–

2432.

Send comments regarding any

ambiguity or unnecessary complexity

arising from the language used in this

interim final rule to the Marine Mammal

Division Chief at the previously listed

address. See SUPPLEMENTARY

INFORMATION, under the heading

Electronic Access, for Internet addresses

pertaining to this interim final rule.

FOR FURTHER INFORMATION CONTACT:

Douglas Beach, NMFS, Northeast

Region, 978–281–9254; Katherine Wang,

NMFS, Southeast Region, 727–570–

5312; or Patricia Lawson, NMFS, Office

of Protected Resources, 301–713–2322.

SUPPLEMENTARY INFORMATION:

Electronic Access

Several of the background documents

for this interim final rule and the take

reduction planning process can be

downloaded from the ALWTRP web site

at http://www.nero.nmfs.gov/whaletrp/.

Background

The ALWTRP was developed

pursuant to the Marine Mammal

Protection Act (MMPA) to reduce the

level of serious injury/mortality of all

large whale species in East Coast lobster

trap and finfish gillnet fisheries. The

background for the take reduction

planning process and development of

the ALWTRP is set out in the preamble

to the proposed (62 FR 16519, April 7,

1997), interim final (62 FR 39157, July

22, 1997), and final (64 FR 7529,

February 16, 1999) rules implementing

the ALWTRP. Additional information is

available in the report from the

ALWTRT after its recent series of

meetings in 2000. Copies of these

documents and supporting

Environmental Assessments (EAs) are

available from the NMFS/Northeast

Region contact in the ADDRESSES section

of this document.

Because of the status of the right

whale population, there is a need to

further reduce entanglement. The

interim final rule published December

21, 2000, (65 FR 80368), with an

effective date of January 22, 2001,

implemented gear modifications (buoy

line weak links, net panel weak links

with anchoring systems, restrictions on

number of buoy lines, and gear marking)

that were initially discussed in the 1997

proposed and 1999 final rules and

recommended by the TRT after the 2000

meetings. NMFS responded to these

recommendations by promulgating the

gear modifications in the December 21,

2000, interim final rule. It was agreed

that the regulations implementing these

gear modifications should be issued as

soon as practicable. However, due to

rough January weather conditions in the

Gulf of Maine, effected fishers will be

unable to retrieve and modify active

gear by the January 22, 2001 effective

date. This interim final rule delays the

effective date until February 21, 2001, to

allow fishers time to implement the gear

modifications.

NMFS expects that a delay of the rule

to February 21, 2001 will have minimal

impact on the North Atlantic right

whale population. Available sighting

data for the January through February

period suggests that most right whales

in New England are congregated in Cape

Cod Bay. Data reported by the NE Right

Whale Alert System during 1999–2001,

included only two sightings of right

whales in New England waters outside

of Cape Cod Bay. Whales do not begin

to leave the Bay until late March (when

they move to Stellwagen Bank and then

perhaps on to the Great South Channel

Area) by which time gear will have been

modified as per the Interim Final Rule.

Thus, the 30 day delay is not expected

to adversely affect right whales in these

waters.

Classification

An Environmental Assessment (EA)

describing the impacts to the

environment that would result from the

implementation of the ALWTRP was

prepared for the July 22, 1997, interim

final rule (62 FR 39157). Supplemental

EAs were also prepared for the April 9,

1999, final rule (64 FR 17292) and the

December 21, 2000, interim final rule

(65 FR 80368). The conclusion of those

EAs was that the ALWTRP’s actions

would pose no significant adverse

environmental impact. The delay of the

effective date by 30 days does not

change the determination of those EAs.

This action is categorically excluded

from further review because it is an

action of limited size and magnitude

that does not result in a significant

change in the original action.

This interim final rule has been

determined to be not significant for

purposes of Executive Order 12866.

Given the status of the species to be

protected and the fact that

entanglements continue to occur under

the existing regulations, the Assistant

Administrator for Fisheries (AA) NOAA,

for good cause under 5 U.S.C.

553(b)(3)(B), found that extending the

December 21, 2000, interim final rule

(65 FR 80368) to allow for prior notice

and an opportunity for public comment