What Adam Curry is reading

Herkenning, Romans algemeen - Romans & Literatuur | TenPages.com
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  Thu, 28 Feb 2013 14:45
  Stel een manuscript verkoopt 2.000 aandelen, maar niet verspreid over minstens 100 aandeelhouders. Wat dan? De verkoop van aandelen loopt in dat geval gewoon door. Tot er door 100 aandeelhouders aandelen gekocht zijn. Het extra geld dat is bijeengebracht, wordt dan uitgekeerd aan alle aandeelhouders. Voorbeeld: er worden uiteindelijk 2.180 aandelen verkocht. Dan wordt er 900 euro (180 * 5) naar rato aan de aandeelhouders uitgekeerd.
  De opbrengst per aandeel op basis van de boekverkoop wordt dan wel minder. Want de 10% over de netto boekverkoopomzet wordt verdeeld over alle aandeelhouders, dus in dit voorbeeldgeval over 2.180 aandelen. Maar een voordeel bij een manuscript dat meer dan 2.000 aandelen verkoopt is natuurlijk wel dat het breder gedragen wordt. De kans op een verkoopsucces is dus groter!
Anthony Bourdain No Reservations 9x01 - Austin - YouTube
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  Thu, 28 Feb 2013 14:45
Federal Register | Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act
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  Thu, 28 Feb 2013 03:41
  This interim final rule is effective on February 27, 2013. Comments and additional materials must be submitted (post-marked, sent or received) by April 29, 2013.
  You may submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions.
  Fax: If your submissions, including attachments, do not exceed 10 pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
  Mail, hand delivery, express mail, messenger or courier service: You must submit your comments and attachments to the OSHA Docket Office, Docket No. OSHA-2011-0193, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., ET.
  Instructions: All submissions must include the Agency name and the OSHA docket number for this rulemaking (Docket No. OSHA-2011-0193). Submissions, including any personal information provided, are placed in the public docket without change and may be made available online at http://www.regulations.gov. Therefore, OSHA cautions against submitting personal information such as social security numbers and birth dates.
  Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office.
  For Press inquiries: Frank Meilinger, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-1999. This is not a toll-free number. Email: meilinger.francis2@dol.gov.
  For technical inquiries: Katelyn Wendell, Program Analyst, Directorate of Whistleblower Protection Programs, OSHA, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not a toll-free number. Email: Wendell.katelyn.j@dol.gov. This Federal Register publication is available in alternative formats. The alternative formats available are: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System), and audiotape.
  The Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, that was signed into law on March 30, 2010. The terms ''Affordable Care Act'' or ''Act'' are used in this rulemaking to refer to the final, amended version of the law. The Affordable Care Act contains various provisions designed to make health care more affordable and accountable.
  Among the policies to achieve its goals, the Affordable Care Act's section 1558 amended the Fair Labor Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C), which provides protection to employees against retaliation by an employer for engaging in certain protected activities.
  Under section 18C, an employer may not retaliate against an employee for receiving a credit under section 36B of the Internal Revenue Code of 1986 or a cost-sharing reduction (referred to as a ''subsidy'' in section 18C) under section 1402 of Affordable Care Act. These provisions allow employees to receive tax credits or cost-sharing reductions while enrolled in a qualified health plan through an exchange, if their employer does not offer a coverage option that is affordable and provides a basic level of value (i.e.,''minimum value''). Certain large employers who fail to offer affordable plans that meet this minimum value may be assessed a tax penalty if any of their full-time employees receive a premium tax credit through the Exchange. Thus, the relationship between the employee's receipt of a credit and the potential tax penalty imposed on an employer could create an incentive for an employer to retaliate against an employee. Section 18C protects employees against such retaliation.
  Section 18C also protects employees against retaliation because they provided or are about to provide to their employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of or amendment made by title I of the Affordable Care Act; testified or are about to testify in a proceeding concerning such violation; assisted or participated, or are about to assist or participate, in such a proceeding; or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of title I of the Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Act (or amendment). Title I includes a range of insurance company accountability policies such as: The prohibition of lifetime dollar limits on coverage, the requirement for most plans to cover recommended preventive services with no cost sharing, and, starting in 2014, guaranteed availability (also known as guaranteed issue) protections so that individuals and employers will be able to obtain coverage that currently can be denied due to a pre-existing condition, and the prohibition on the use of factors such as health status, medical history, gender, and industry of employment to set premium rates.
  Section 18C became effective on the date the health care law was enacted, March 23, 2010. On January 1, 2014, the scope of coverage of section 18C will be expanded by section 2706(b) of the Public Health Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended by section 1201 of the Affordable Care Act. Section 2706 of the PHSA is titled ''Non-Discrimination in Health Care'' and provides, in relevant part: ''(b) INDIVIDUALS.'--The provisions of section 1558 of the Patient Protection and Affordable Care Act (relating to non-discrimination) shall apply with respect to a group health plan or health insurance issuer offering group or individual health insurance coverage.'' Thus, the protections provided by section 18C will extend in 2014 to cover retaliation with respect to an employee's compensation, terms, conditions or other privileges of employment by health insurance issuers offering group or individual health insurance coverage regardless of whether those issuers are the employer of the person retaliated against. Since the enactment of the Affordable Care Act, a health insurance issuer is prohibited from retaliating against its own employees who engage in activity protected by section 18C. Beginning in 2014, those issuers will also be prohibited from retaliating against persons who are not their employees with respect to those persons' compensation, terms, conditions or other privileges of employment, including their employer-sponsored health insurance. An employee will be protected from retaliation (e.g., having that issuer limit or end health insurance coverage), not only by her employer, but also by the insurance issuer that provides employer-sponsored health insurance coverage to the employee.
  These interim rules establish procedures for the handling of whistleblower complaints under section 18C of the FLSA; these procedures are very similar to those used for whistleblower complaints in other industries.
  Section 18C(b)(1) adopts the procedures, notifications, burdens of proof, remedies, and statutes of limitation in the Consumer Product Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly, a covered employee may file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation. Upon receipt of the complaint, the Secretary must provide written notice to the person or persons named in the complaint alleged to have violated the Act (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation.
  The Secretary may conduct an investigation only if the complainant has made a prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that the respondent would have taken the same adverse action in the absence of that activity.
  After investigating a complaint, the Secretary will issue written findings. If, as a result of the investigation, the Secretary finds there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of those findings, along with a preliminary order that requires the respondent to, where appropriate: Take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.
  The complainant and the respondent then have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an ALJ. The filing of objections under section 18C of the FLSA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.
  If a hearing is held, the statute requires the hearing to be conducted ''expeditiously.'' The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary, where appropriate, will assess against the respondent a sum equal to the total amount of all costs and expenses, including attorney's and expert witness fees, reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the Secretary issued the order. The Secretary also may award a prevailing respondent a reasonable attorney's fee, not exceeding $1,000, if the Secretary finds that the complaint is frivolous or has been brought in bad faith. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation.
  The statute permits the employee to seek de novo review of the complaint by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party.
  Finally, section 18C(b)(2) of the FLSA provides that nothing in section 18C shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement, and the rights and remedies in section 18C may not be waived by any agreement, policy, form, or condition of employment.
  The regulatory provisions in this part have been written and organized to be consistent with other whistleblower regulations promulgated by OSHA to the extent possible within the bounds of the statutory language of section 18C of the FLSA and 15 U.S.C. 2087(b) of CPSIA. Responsibility for receiving and investigating complaints under section 18C has been delegated to the Assistant Secretary for Occupational Safety and Health. Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).
  Subpart A'--Complaints, Investigations, Findings and Preliminary OrdersSection 1984.100Purpose and ScopeThis section describes the purpose of the regulations implementing section 18C of the FLSA and provides an overview of the procedures covered by these regulations.
  Section 1984.101DefinitionsThis section includes general definitions for the Affordable Care Act whistleblower provision codified at section 18C of the FLSA. The definitions of the terms ''employer,'' ''employee,'' and ''person'' from section 3 of the FLSA, 29 U.S.C. 203, apply to these rules and are included here.
  The FLSA defines ''employer'' as including ''any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.'' 29 U.S.C. 203(d). The FLSA defines ''person'' to mean ''an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.'' 29 U.S.C. 203(a).
  The FLSA defines ''employee'' to mean ''any individual employed by an employer.'' 29 U.S.C. 203(e)(1). In the case of an individual employed by a public agency, the term employee means any individual employed by the Government of the United States: As a civilian in the military departments (as defined in section 102 of the U.S. Code at title 5), in any executive agency (as defined in section 105 of such title), in any unit of the judicial branch of the Government which has positions in the competitive service, in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, in the Library of Congress, or in the Government Printing Office. 29 U.S.C. 203(e)(2)(A). An employee generally also includes any individual employed by the United States Postal Service or the Postal Regulatory Commission, 29 U.S.C. 203(e)(2)(b); and any individual employed by a State, political subdivision of a State, or an interstate governmental agency. The definition of ''employee'' under the FLSA does not include an individual who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and who holds a public elective office of that State, political subdivision, or agency, is selected by the holder of such an office to be a member of his personal staff, is appointed by such an officeholder to serve on a policymaking level, is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency. 29 U.S.C. 203(e)(2)(c).
  Consistent with the Secretary's interpretation of the term ''employee'' in the other whistleblower statutes administered by OSHA [1] and with the Secretary's interpretation of the term ''employee'' under the anti-retaliation provision found at section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3), [2] the definition of the term ''employee'' in section 1984.101 also includes former employees and applicants for employment. This interpretation is supported by section 18C's plain language which prohibits retaliation against ''any employee'' and provides that ''[a]n employee who believes that he or she has been discharged or otherwise discriminated against by any employer in violation of this section'' may file a complaint with the Secretary of Labor, (Emphasis added). Section 18C's broad protection of ''any employee'' from discrimination and provision of a cause of action against ''any employer'' for retaliation makes clear that the parties need not have a current employment relationship. Section 18C's broad protections, like the protections in section 15(a)(3), contrast with the narrower protections of sections 6 and 7 of the FLSA. Sections 6 and 7 provide respectively that an employer must pay at least the minimum wage to ''each of his employees'' and must pay overtime to ''any of his employees,'' and thus require a current employment relationship. See29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and (2). Congress chose to use the broad term ''any'' to modify employee and employer in Sections 18C(a) and (b), rather than providing more restrictively that, for example, ''no employer shall discharge or in any manner discriminate against any of his employees'' or ''an employee who believes that he or she has been discharged or otherwise discriminated against by his employer'' may file a complaint with the Secretary of Labor. The Supreme Court has made clear that ''any'' has an expansive meaning that does not limit the word it modifies. See, e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1332 (2011) (noting that the use of ''any'' in the phrase ''filed any complaint'' in section 15(a)(3) of the FLSA ''suggests a broad interpretation that would include an oral complaint''); U.S. v. Gonzales, 520 U.S. 1, 5 (1997) (''any'' has an expansive meaning, that is, ''one or some indiscriminately of whatever kind'') (internal citations omitted). In addition, the explicit inclusion of reinstatement and preliminary reinstatement (both of which can only be awarded to former employees) among the remedies available for whistleblowers under Section 18C confirms that the complainant and the respondent need not have a current employment relationship in order for the complainant to have a claim under section 18C. See Dellinger v. Science Applications Int'l Corp., 649 F.3d at 230 n.2 (section 15(a)(3) of the FLSA protects former employees); cf. Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (term ''employees'' in anti-retaliation provision of Title VII of the Civil Rights Act of 1964 includes former employees).
  Section 1984.102Obligations and Prohibited ActsThis section describes the activities that are protected under section 18C of the FLSA, and the conduct that is prohibited in response to any protected activities. Section 18C(a)(1) protects any employee from retaliation ''because the employee received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of this Act.'' The reference to ''a subsidy under section 1402 this Act'' in section 18C(a)(1) refers to receipt of a cost-sharing reduction under section 1402 of the Affordable Care Act. 42 U.S.C. 18071.
  Under section 18C(a)(2), an employer may not retaliate against an employee because the employee ''provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of this title (or an amendment made by this title).'' Section 18C also protects employees who testify, assist or participate in proceedings concerning such violations. Sections 18C(a)(3) and (4), 29 U.S.C. 218C(a)(3) and (4). Finally, section 18C(a)(5) prohibits retaliation because an employee ''objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title (or amendment).'' References to ''this title'' in section 18C(a)(2) and (5) refer to Title I of the Affordable Care Act. This includes health insurance reforms such as providing guaranteed availability (also known as guaranteed issue) protections so that individuals and employers will be able to obtain coverage when it currently can be denied, continuing current guaranteed renewability protections, prohibiting the use of factors such as health status, medical history, gender, and industry of employment to set premium rates, limiting age rating, and prohibiting issuers from dividing up their insurance pools within markets.
  In order to have a ''reasonable belief'' under sections 18C(a)(2) and (5), a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violates one of the listed categories of law. See Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the reasonable belief standard under analogous language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 1514A). The requirement that the complainant have a subjective, good faith belief is satisfied so long as the complainant actually believed that the conduct complained of violated the relevant law. See id. The ''reasonableness'' of a complainant's belief is typically determined ''based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.''Id. at *12 (internal quotation marks and citation omitted). However, the complainant need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected where it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred. Id. at *13.
  Section 1984.103Filing of Retaliation ComplaintThis section explains the requirements for filing a retaliation complaint under section 18C. To be timely, a complaint must be filed within 180 days of when the alleged violation occurs. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a complaint may be tolled for reasons warranted by applicable case law. Complaints filed under section 18C of the FLSA need not be in any particular form. They may be either oral or in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf.
  OSHA notes that a complaint of retaliation filed with OSHA under the Affordable Care Act is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts the Agency to the existence of the alleged retaliation and the complainant's desire that the Agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary is to determine whether ''the complaint, supplemented as appropriate by interviews of the complainant'' alleges ''the existence of facts and evidence to make a prima facie showing.'' 29 CFR 1984.104(e). As explained in section 1984.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See15 U.S.C. 2087(b)(2), 29 CFR 1984.104(e).
  Section 1984.104InvestigationThis section describes the procedures that apply to the investigation of complaints under section 18C. Paragraph (a) of this section outlines the procedures for notifying the parties and appropriate Federal agencies of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) specifies that throughout the investigation the Agency will provide to the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of respondent's submissions to the Agency that are responsive to the complainant's whistleblower complaint and the complainant will have an opportunity to respond to those submissions. Before providing such materials to the complainant, the Agency will redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (e) of this section sets forth the applicable burdens of proof. Paragraph (f) describes the procedures the Assistant Secretary will follow prior to the issuance of findings and a preliminary order when the Assistant Secretary has reasonable cause to believe that a violation has occurred.
  Section 18C of the FLSA incorporates the burdens of proof set forth in CPSIA. 15 U.S.C. 2087(b). That statute requires that a complainant make an initial prima facie showing that protected activity was ''a contributing factor'' in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. The complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action.
  If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the Energy Reorganization Act of 1974 (ERA), which is the same framework now applicable to section 18C of the FLSA, serves a ''gatekeeping function'' that ''stem[s] frivolous complaints''). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the respondent demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under section 18C of the FLSA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the adverse action; or (2) the respondent rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity.
  Assuming that an investigation proceeds beyond the gatekeeping phase, the statutory burdens of proof require an employee to prove that the alleged protected activity was a ''contributing factor'' in the alleged adverse action. If the employee proves that the alleged protected activity was a contributing factor in the adverse action, the respondent, to escape liability, must prove by ''clear and convincing evidence'' that it would have taken the same action in the absence of the protected activity. A contributing factor is ''any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.''Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). In proving that protected activity was a contributing factor in the adverse action, '' `a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,' '' because a complainant alternatively can prevail by showing that the respondent's '' `reason, while true, is only one of the reasons for its conduct,' '' and that another reason was the complainant's protected activity. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).
  The statutory burdens of proof do not address the evidentiary standard that applies to a complainant's proof that protected activity was a contributing factor in an adverse action. Rather, they simply provide that the Secretary may find a violation only ''if the complainant demonstrates'' that protected activity was a contributing factor in the alleged adverse action. See15 U.S.C. 2087(b)(2)(B)(iii). It is the Secretary's position that the complainant must prove by a ''preponderance of the evidence'' that his or her protected activity contributed to the adverse action; otherwise the burden never shifts to the respondent to establish its defense by ''clear and convincing evidence.''See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) (''The term `demonstrates' [under identical language in another whistleblower provision] means to prove by a preponderance of the evidence.''). Once the complainant establishes that the protected activity was a contributing factor in the adverse action, the respondent can escape liability only by proving by clear and convincing evidence that it would have taken the same action even in the absence of the prohibited rationale. The ''clear and convincing evidence'' standard is a higher burden of proof than a ''preponderance of the evidence'' standard.
  Section 18C also incorporates the authorities in the FLSA sections 9 and 11, 29 U.S.C. 209 and 211, to issue subpoenas and conduct investigations. Such authorities under section 18C are delegated and assigned to the Assistant Secretary for Occupational Safety and Health. See Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012).
  Section 1984.105Issuance of Findings and Preliminary OrdersThis section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including preliminary reinstatement, affirmative action to abate the violation, back pay with interest, and compensatory damages. The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, preliminary order, also advise the respondent of the right to request an award of attorney's fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that the complaint was frivolous or brought in bad faith. If no objections are filed within 30 days of receipt of the findings, the findings and any preliminary order of the Assistant Secretary become the final decision and order of the Secretary. If objections are timely filed, any order of preliminary reinstatement will take effect, but the remaining provisions of the order will not take effect until administrative proceedings are completed.
  In ordering interest on back pay under section 18C, the Secretary has determined that interest due will be computed by compounding daily the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points. The Secretary believes that daily compounding of interest achieves the make-whole purpose of a back pay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on back pay by the National Labor Relations Board. See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).
  In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his termination, but not actually return to work. Such ''economic reinstatement'' is akin to an order for front pay and frequently is employed in cases arising under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c), which protects miners from retaliation. See, e.g., Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a possible remedy in cases under the whistleblower statutes enforced by OSHA in circumstances where reinstatement would not be appropriate. See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower statutes, ''front pay may be an appropriate substitute when the parties prove the impossibility of a productive and amicable working relationship, or the company no longer has a position for which the complainant is qualified''); Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v. U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where front pay may be available in lieu of reinstatement but ordering reinstatement); Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592, at *6 (ARB Sept. 6, 1996) (under ERA, front pay appropriate where employer had eliminated the employee's position); Michaud v. BSP Transport, Inc., ARB Nos. 97-113, 1997 WL 626849, at *4 (ARB Oct. 9, 1997) (under the Surface Transportation Assistance Act, 49 U.S.C. 31105, front pay appropriate where employee was unable to work due to major depression resulting from the retaliation); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the ''presumptive remedy'' under Sarbanes-Oxley, front pay may be awarded as a substitute when reinstatement is inappropriate). Congress intended that employees be preliminarily reinstated to their positions if OSHA finds reasonable cause to believe that they were discharged in violation of section 18C of the FLSA. When a violation is found, the norm is for OSHA to order immediate preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the employee continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating an employee should the employer ultimately prevail in the whistleblower adjudication.
  Subpart B'--LitigationSection 1984.106Objections to the Findings and the Preliminary Order and Requests for a HearingTo be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
  The timely filing of objections stays all provisions of the preliminary order, except for the portion requiring reinstatement. A respondent may file a motion to stay OSHA's preliminary order of reinstatement with the Office of Administrative Law Judges. However, such a motion will be granted only based on exceptional circumstances. The Secretary believes that a stay of the Assistant Secretary's preliminary order of reinstatement under section 18C of the FLSA would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay. If no timely objection to OSHA's findings and/or preliminary order is filed, then OSHA's findings and/or preliminary order become the final decision of the Secretary not subject to judicial review.
  Section 1984.107HearingsThis section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 29 CFR part 18 subpart A. It specifically provides for hearings to be consolidated if both the complainant and respondent object to the findings and/or order of the Assistant Secretary. This section provides that the hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. As noted in this section, formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
  Section 1984.108Role of Federal AgenciesThe Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under section 18C of the FLSA. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ; petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, large numbers of employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Internal Revenue Service of the United States Department of the Treasury, the United States Department of Health and Human Services, and the Employee Benefits Security Administration of the United States Department of Labor, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings.
  Section 1984.109Decision and Orders of the Administrative Law JudgeThis section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under section 18C. Paragraph (c) of this section further provides that the Assistant Secretary's determination to dismiss the complaint without an investigation or without a complete investigation under section 1984.104 is not subject to review. Thus, section 1984.109(c) clarifies that the Assistant Secretary's determinations on whether to proceed with an investigation under section 18C and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. A full discussion of the burdens of proof used by the Department of Labor to resolve whistleblower cases under this part is described above in the discussion of section 1984.104. Paragraph (d) notes the remedies that the ALJ may order under section 18C and, as discussed under section 1984.105 above, provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review.
  Section 1984.110Decision and Orders of the Administrative Review BoardUpon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt.
  The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard.
  This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under section 18C, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under section 18C would be appropriate only where the respondent can establish the necessary criteria for equitable injunctive relief, i.e., irreparable injury, likelihood of success on the merits, a balancing of possible harms to the parties, and the public interest favors a stay.
  If the ARB concludes that the respondent has violated the law, it will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney's fee, not exceeding $1,000.
  Subpart C'--Miscellaneous Provisions.Section 1984.111Withdrawal of Complaints, Findings, Objections, and Petitions for Review; SettlementThis section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It permits complainants to withdraw their complaints orally and provides that, in such circumstances, OSHA will confirm a complainant's desire to withdraw in writing. It also provides for approval of settlements at the investigative and adjudicative stages of the case.
  Section 1984.112Judicial ReviewThis section describes the statutory provisions of CPSIA, incorporated into section 18C of the FLSA, for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ARB to submit the record of proceedings to the appropriate court pursuant to the rules of such court.
  Section 1984.113Judicial EnforcementThis section describes the Secretary's authority under section 18C to obtain judicial enforcement of orders and the terms of settlement agreements. Section 18C incorporates the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary. See15 U.S.C. 2087(b)(6) (''Whenever any person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order.''). Specifically, reinstatement orders issued at the close of OSHA's investigation are immediately enforceable in district court pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA provides, through CPSIA, that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position. See15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the FLSA also provides, through CPSIA, that the Secretary shall accompany any reasonable cause finding that a violation occurred with a preliminary order containing the relief prescribed by subsection (b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and that any preliminary order of reinstatement shall not be stayed upon the filing of objections. See15 U.S.C. 2087(b)(2)(A) (''The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.''). Thus, under section 18C of the FLSA enforceable orders include preliminary orders that contain the relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This statutory interpretation is consistent with the Secretary's interpretation of similar language in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century and Sarbanes-Oxley. See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). Also through application of CPSIA, section 18C of the FLSA permits the person on whose behalf the order was issued to obtain judicial enforcement of the order. See15 U.S.C. 2087(b)(7).
  Section 1984.114District Court Jurisdiction of Retaliation ComplaintsThis section sets forth provisions that allow a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, under certain circumstances. By incorporating the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), section 18C permits a complainant to file an action for de novo review in the appropriate district court if there has been no final decision of the Secretary within 210 days of the filing of the complaint, or within 90 days after receiving a written determination. ''Written determination'' refers to the Assistant Secretary's written findings issued at the close of OSHA's investigation under section 1984.105(a). 15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the decision of the ARB issued under section 1984.110. In other words, a complainant may file an action for de novo review in the appropriate district court in either of the following two circumstances: (1) A complainant may file a de novo action in district court within 90 days of receiving the Assistant Secretary's written findings issued under section 1984.105(a), or (2) a complainant may file a de novo action in district court if more than 210 days have passed since the filing of the complaint and the Secretary has not issued a final decision. The plain language of 15 U.S.C. 2087(b)(4), by distinguishing between actions that can be brought if the Secretary has not issued a ''final decision'' within 210 days and actions that can be brought within 90 days after a ''written determination,'' supports allowing de novo actions in district court under either of the circumstances described above. However, it is the Secretary's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint or within 90 days of the complainant's receipt of the Assistant Secretary's written findings. The purpose of the ''kick-out'' provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. See15 U.S.C. 2087(b)(5)(B) (providing that an order with respect to which review could have been obtained in [the court of appeals] shall not be subject to judicial review in any criminal or other civil proceeding).
  Under section 18C of the FLSA, the Assistant Secretary's written findings become the final order of the Secretary, not subject to judicial review, if no objection is filed within 30 days. See15 U.S.C. 2087(b)(2). Thus, a complainant may need to file timely objections to the Assistant Secretary's findings in order to preserve the right to file an action in district court.
  This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. This provision is necessary to notify the Agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed. The section also incorporates the statutory provisions which allow for a jury trial at the request of either party in a district court action, and which specify the remedies and burdens of proof in a district court action.
  Section 1984.115Special Circumstances; Waiver of RulesThis section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and notice to the parties, waive any rule as justice or the administration of section 18C of the FLSA requires.
  begin regulatory text
  Authority:29 U.S.C. 218C; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).
  § 1984.100 Purpose and scope.(a) This part implements procedures under section 1558 of the Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, which was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms ''Affordable Care Act'' or ''the Act'' are used in this part to refer to the final, amended version of the law. Section 1558 of the Act amended the Fair Labor Standards Act, 29 U.S.C. 201et seq. (FLSA) by adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA provides protection for an employee from retaliation because the employee has received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction (referred to as a ''subsidy'' in section 18C) under the Affordable Care Act section 1402, 42 U.S.C. 18071, or because the employee has engaged in protected activity pertaining to title I of the Affordable Care Act or any amendment made by title I of the Affordable Care Act.
  (b) This part establishes procedures under section 18C of the FLSA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. These rules, together with those codified at 29 CFR part 18, set forth the procedures under section 18C of the FLSA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements.
  § 1984.101 Definitions.As used in this part:
  (a) Affordable Care Act or ''the Act'' means The Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23, 2010), as amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152.
  (b) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under section 18C of the FLSA.
  (c) Business days means days other than Saturdays, Sundays, and Federal holidays.
  (d) Complainant means the employee who filed an FLSA section 18C complaint or on whose behalf a complaint was filed.
  (e)(1) Employee means any individual employed by an employer. In the case of an individual employed by a public agency, the term employee means any individual employed by the Government of the United States: As a civilian in the military departments (as defined in 5 U.S.C. 102), in any executive agency (as defined in 5 U.S.C. 105), in any unit of the judicial branch of the Government which has positions in the competitive service, in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, in the Library of Congress, or in the Government Printing Office. The term employee also means any individual employed by the United States Postal Service or the Postal Regulatory Commission; and any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than an individual who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and who holds a public elective office of that State, political subdivision, or agency, is selected by the holder of such an office to be a member of his personal staff, is appointed by such an officeholder to serve on a policymaking level, is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.
  (2) The term employee does not include:
  (i) Any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered'--and such services are not the same type of services which the individual is employed to perform for such public agency;
  (ii) Any employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency that volunteers to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement; or
  (iii) Any individual who volunteers their services solely for humanitarian purposes to private non-profit food banks and who receive groceries from the food banks.
  (3) The term employee includes former employees and applicants for employment.
  (f) Employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
  (g) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
  (h) Person means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.
  (i) Respondent means the employer named in the complaint who is alleged to have violated the Act.
  (j) Secretary means the Secretary of Labor or person to whom authority under the Affordable Care Act has been delegated.
  (k) Any future statutory amendments that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.
  § 1984.102 Obligations and prohibited acts.(a) No employer may discharge or otherwise retaliate against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or an individual acting at the request of the employee), has engaged in any of the activities specified in paragraphs (b)(1) through (5) of this section.
  (b) An employee is protected against retaliation because the employee (or an individual acting at the request of the employee) has:
  (1) Received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a subsidy under section 1402 of the Affordable Care Act, 42 U.S.C. 18071;
  (2) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of title I of the Affordable Care Act (or an amendment made by title I of the Affordable Care Act);
  (3) Testified or is about to testify in a proceeding concerning such violation;
  (4) Assisted or participated, or is about to assist or participate, in such a proceeding; or
  (5) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of title I of the Affordable Care Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Affordable Care Act (or amendment).
  § 1984.103 Filing of retaliation complaint.(a) Who may file. An employee who believes that he or she has been retaliated against in violation of section 18C of the FLSA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation.
  (b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language.
  (c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov.
  (d) Time for filing. Within 180 days after an alleged violation of section 18C of the FLSA occurs, any employee who believes that he or she has been retaliated against in violation of that section may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law.
  § 1984.104 Investigation.(a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent of its rights under paragraphs (b) and (f) of this section and paragraph (e) of § 1984.110. The Assistant Secretary will provide an unredacted copy of these same materials to the complainant (or complainant's legal counsel if complainant is represented by counsel) and to the appropriate office of the Federal agency charged with the administration of the general provisions of the Affordable Care Act under which the complaint is filed: Either the Internal Revenue Service of the United States Department of the Treasury (IRS), the United States Department of Health and Human Services (HHS), or the Employee Benefits Security Administration of the United States Department of Labor (EBSA).
  (b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with the Assistant Secretary to present its position.
  (c) Throughout the investigation, the Agency will provide to the complainant (or the complainant's legal counsel if complainant is represented by counsel) a copy of all of respondent's submissions to the Agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the Agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Agency will also provide the complainant with an opportunity to respond to such submissions.
  (d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title.
  (e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint.
  (2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:
  (i) The employee engaged in a protected activity;
  (ii) The respondent knew or suspected that the employee engaged in the protected activity;
  (iii) The employee suffered an adverse action; and
  (iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.
  (3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse action took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel, if complainant is represented by counsel) will be so notified and the investigation will not commence.
  (4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted or will be discontinued if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.
  (5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in the prior paragraph, the Assistant Secretary will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.
  (f) Prior to the issuance of findings and a preliminary order as provided for in § 1984.105, if the Assistant Secretary has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated section 18C of the FLSA and that preliminary reinstatement is warranted, the Assistant Secretary will again contact the respondent (or the respondent's legal counsel if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials to the complainant, the Agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigators, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of the Assistant Secretary's notification pursuant to this paragraph, or as soon thereafter as the Assistant Secretary and the respondent can agree, if the interests of justice so require.
  § 1984.105 Issuance of findings and preliminary orders.(a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings as to whether or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of section 18C of the FLSA.
  (1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.
  (2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.
  (b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and of the right of the respondent to request an award of attorney's fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if respondent alleges that the complaint was frivolous or brought in bad faith. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order.
  (c) The findings and any preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and/or a request for hearing has been timely filed as provided at § 1984.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and the preliminary order, regardless of any objections to the findings and/or the order.
  § 1984.106 Objections to the findings and the preliminary order and requests for a hearing.(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney's fees under section 18C of the FLSA, must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1984.105. The objections, request for a hearing, and/or request for attorney's fees must be in writing and state whether the objections are to the findings, the preliminary order, and/or whether there should be an award of attorney's fees. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record, the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
  (b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based on exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or the preliminary order will become the final decision of the Secretary, not subject to judicial review.
  § 1984.107 Hearings.(a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title.
  (b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. ALJs have broad discretion to limit discovery in order to expedite the hearing.
  (c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted.
  (d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
  § 1984.108 Role of Federal agencies.(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. At the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or as amicus curiae at any time at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.
  (2) Copies of documents must be sent to the Assistant Secretary, and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of the Assistant Secretary, or where the Assistant Secretary is participating in the proceeding, or where service on the Assistant Secretary and the Associate Solicitor is otherwise required by these rules.
  (b) The IRS, HHS, and EBSA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at those agencies' discretion. At the request of the interested Federal agency, copies of all documents in a case must be sent to the Federal agency, whether or not the agency is participating in the proceeding.
  § 1984.109 Decision and orders of the administrative law judge.(a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.
  (b) If the complainant has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity.
  (c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1984.104(e) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant.
  (d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.
  (2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ALJ determines that a complaint was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney's fee, not exceeding $1,000.
  (e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
  § 1984.110 Decision and orders of the Administrative Review Board.(a) Any party desiring to seek review, including judicial review, of a decision of the ALJ, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney's fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review must be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
  (b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that any order of reinstatement will be effective while review is conducted by the ARB, unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review.
  (c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision will also be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
  (d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to the complainant's former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney's and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.
  (e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent a reasonable attorney's fee, not exceeding $1,000.
  § 1984.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement.(a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying the Assistant Secretary, orally or in writing, of his or her withdrawal. The Assistant Secretary then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. The Assistant Secretary will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.
  (b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1984.106, provided that no objection has been filed yet, and substitute new findings and/or a new preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.
  (c) At any time before the Assistant Secretary's findings and/or order become final, a party may withdraw objections to the Assistant Secretary's findings and/or order by filing a written withdrawal with the ALJ. If the case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.
  (d)(1) Investigative settlements. At any time after the filing of a complaint, and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates the Assistant Secretary's consent and achieves the consent of all three parties.
  (2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as the case may be.
  (e) Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1984.113.
  § 1984.112 Judicial review.(a) Within 60 days after the issuance of a final order under §§ 1984.109 and 1984.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation.
  (b) A final order is not subject to judicial review in any criminal or other civil proceeding.
  (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
  § 1984.113 Judicial enforcement.Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under section 18C of the FLSA, the Secretary or a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. The Secretary also may file a civil action seeking enforcement of the order in the United States district court for the District of Columbia.
  § 1984.114 District court jurisdiction of retaliation complaints.(a) The complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy, either:
  (1) Within 90 days after receiving a written determination under § 1984.105(a) provided that there has been no final decision of the Secretary; or
  (2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint.
  (3) At the request of either party, the action shall be tried by the court with a jury.
  (b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in section 1984.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including:
  (1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination;
  (2) The amount of back pay, with interest; and
  (3) Compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.
  (c) Within seven days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. A copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
  § 1984.115 Special circumstances; waiver of rules.In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the ALJ or the ARB on review may, upon application, after three- days notice to all parties, waive any rule or issue such orders that justice or the administration of section 18C of the FLSA requires.
  end regulatory text
Should An Asteroid Watch Program Be Part Of National Defense?
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  Thu, 28 Feb 2013 14:24
Federal Register | Information Collection Request: Technical Resource for Incident Prevention (TRIPwire) User Registration
  Link to Article
  Thu, 28 Feb 2013 03:43
  60 Day Notice And Request For Comments; New Information Collection Request: 1670 New.
  The Department of Homeland Security (DHS), National Protection and Programs Directorate, (NPPD), Protective Security Coordination Division (PSCD), Office for Bombing Prevention (OBP) will submit the following Information Collection Request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
  Comments are encouraged and will be accepted until April 29, 2013. This process is conducted in accordance with 5 CFR 1320.1.
  Written comments and questions about this Information Collection Request should be forwarded to Department of Homeland Security (Attn: NPPD/PSCD/OBP) 245 Murray Lane SW., Mail Stop 0612, Arlington, VA 20598-0612. Emailed requests should go to William.Cooper@hq.dhs.gov. Written comments should reach the contact person listed no later than April 29, 2013. Comments must be identified by ''DHS-2012-0022''and may be submitted by one of the following methods:
  Instructions: All submissions received must include the words ''Department of Homeland Security'' and the docket number for this action. Comments received will be posted without alteration at http://www.regulations.gov, including any personal information provided.
  OMB is particularly interested in comments that:
  1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
  2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
  3. Enhance the quality, utility, and clarity of the information to be collected; or
  4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
  The Technical Resource for Incident Prevention (TRIPwire) is OBP's online, collaborative, information-sharing network for bomb squad, law enforcement, and other emergency services personnel to learn about current terrorist improvised explosive device (IED) tactics, techniques, and procedures, including design and emplacement considerations. TRIPwire was established as an IED information-sharing resource under Homeland Security Presidential Directive 19 (HSPD-19), which calls for a unified national policy for the prevention and detection of, protection against, and response to terrorist use of explosives in the United States. Users from Federal, state, local, and tribal government entities, as well as business and for-profit industries can register through the TRIPwire Secure Portal. The TRIPwire portal contains sensitive information related to terrorist use of explosives and therefore user information is needed to verify eligibility and access to the system. TRIPwire applicants must provide their full name, assignment, citizenship, job title, employer name, professional address and contact information, as well as an Employment Verification Contact and their contact information. The system does not store sensitive personally identifiable information (PII) such as social security numbers. The collection of PII by TRIPwire to establish user accounts occurs in accordance with the DHS Privacy Impact Assessment PIA-015, ''DHS Web Portals,'' DHS/ALL-004'--General Information Technology Access Account Records System (GITAARS) September 29, 2009, 74 FR 49882, and DHS/ALL-002'--Department of Homeland Security Mailing and Other Lists System November 25, 2008, 73 FR 71659. The TRIPwire User Registration is a voluntary registration designed to measure users' suitability to access the secure environment.
  The information collected during the TRIPwire user registration process is reviewed electronically by the project team to vet the user's ''need to know,'' which determines their eligibility for and access to TRIPwire. Memberships are re-verified annually based on the information users provide upon registration or communication with the TRIPwire help desk analysts. The information collected is for internal TRIPwire and OBP use only.
  Agency: Department of Homeland Security, National Protection and Programs Directorate, Office of Infrastructure Protection, Protective Security Coordination Division, Office for Bombing Prevention.
  Title: Technical Resource for Incident Prevention (TRIPwire) User Registration.
  OMB Number: 1670-NEW.
  Frequency: Once.
  Affected Public: Federal, state, local, and tribal government entities, and business or other for-profit.
  Number of Respondents: 3,500 respondents (estimate).
  Estimated Time per Respondent: 10 minutes.
  Total Burden Hours: 583 burden hours.
  Total Burden Cost (capital/startup):$0.
  Total Recordkeeping Burden:$0.
  Total Burden Cost (operating/maintaining):$11,803.19.
  Dated: February 13, 2013.
  Michael Butcher,
  Acting Chief Information Officer, National Protection and Programs Directorate, Department of Homeland Security.
  [FR Doc. 2013-04476 Filed 2-26-13; 8:45 am]
  BILLING CODE P
Federal Register | TRICARE: Smoking Cessation Program
  Link to Article
  Thu, 28 Feb 2013 04:07
  Effective Date: This final rule is effective March 29, 2013.
  Ms. Ginnean Quisenberry, Population Health, Medical Management, and Patient Centered Medical Home Division, Office of the Chief Medical Officer, TRICARE Management Activity, telephone (703) 681-6717.
  A. Purpose of the Final RuleThe purpose of this final rule is to implement the provisions of the Duncan Hunter NDAA for FY 2009 (Pub. L. 110-417) that establishes a smoking cessation program under the TRICARE program. Establishment of the TRICARE smoking cessation program attempts to reduce the number of TRICARE beneficiaries who are nicotine dependent, thereby improving the health of the TRICARE beneficiary population and reducing Department of Defense costs, in particular those related to the adverse effects of smoking. The legal authority for the Final Rule is Section 713 of the Duncan Hunter NDAA FY09 (Pub. L. 110-417).
  B. Summary of the Major Provisions of the Final RuleSection 713 of the Duncan Hunter NDAA for FY 2009 stipulates the following key features for inclusion in the TRICARE smoking cessation program:
  1. The availability, at no cost to the beneficiary, of pharmaceuticals used for smoking cessation, with a limitation on the availability of such pharmaceuticals to the national mail-order pharmacy program under the TRICARE program if appropriate.
  Smoking cessation medications will be covered by TRICARE through the Mail Order Pharmacy program, as well as at Military Treatment Facilities at no cost, including no co-pay. The type of smoking cessation medications available, which may include over-the-counter medications, will be determined by the TRICARE Pharmacy and Therapeutics Committee based on clinical and cost effectiveness considerations.
  2. Counseling.
  In person smoking cessation counseling from a TRICARE authorized provider as detailed in the TRICARE Policy Manual for is a covered TRICARE benefit for those beneficiaries that are not eligible for Medicare.
  3. Access to a toll-free quit line that is available 24 hours a day, 7 days a week.
  Beneficiaries will have access to a toll-free smoking cessation quit line that will be available 24 hours a day, 7 days a week.
  4. Access to print and Internet web-based tobacco cessation material.
  TRICARE will provide access to both print and web-based tobacco cessation materials for any beneficiary who is interested in quitting using tobacco products.
  5. Chain of command involvement by officers in the chain of command of participants in the program who are on active duty.
  All of those in the chain of command are expected to provide their support to the program and to any member who wishes to quit smoking. There is no intent for any reporting requirements to the chain of command related to any member's participation.
  C. Costs and Benefits of this Regulatory ActionThe cost for these changes is estimated to be 24 million dollars for a one year period. The benefits are that TRICARE will be in compliance with its statutory provisions and health of beneficiaries who quit smoking will be improved.
  The Duncan Hunter NDAA for FY 2009 (Pub. L. 110-417) provides authority for establishment of a smoking cessation program under the TRICARE program. Prior to enactment of Section 713 of the Duncan Hunter NDAA FY09 (Pub. L. 110-417), all supplies and services related to ''stop smoking'' programs were excluded from TRICARE coverage per the regulation, 32 CFR 199.4(g)(65).
  Smoking is the number one cause of preventable illness and disease in the United States and yet, the prevalence of smoking among TRICARE beneficiaries exceeds that of the general population. According to the Centers for Disease Control and Prevention (CDC), adverse health effects from smoking account for an estimated 443,000 deaths in the United States each year.
  Smoking causes respiratory diseases such as emphysema, bronchitis, and chronic airway obstruction. It also causes several types of cancers including, but not limited to, esophageal, oral cavity, uterine, and lung cancer. In fact, the CDC estimates that 90 percent of lung cancer deaths in men and 80 percent in women are caused by smoking.
  Smoking also puts individuals at increased risk for several other types of diseases and adverse health outcomes such as coronary artery disease, chronic obstructive lung diseases, peripheral vascular disease, heart attack, and stroke. In addition, it increases the risk of infertility, preterm delivery, stillbirth, low birth weight, and sudden infant death syndrome.
  Smoking and its related adverse effects pose a significant challenge for many TRICARE beneficiaries. Establishment of the TRICARE smoking cessation program attempts to reduce the number of TRICARE beneficiaries who are nicotine dependent, thereby improving the health of the TRICARE beneficiary population and reducing Department of Defense costs, in particular those related to the adverse effects of smoking. For further information on TRICARE and the benefits provided under the TRICARE program, please visit www.tricare.mil.
  III. Section 713 of the Duncan Hunter NDAA for FY 2009 Back to TopThis final rule implements Section 713 of the Duncan Hunter NDAA for FY 2009. Section 713 stipulates the following key features for inclusion in the TRICARE smoking cessation program:
  (1) The availability, at no cost to the beneficiary, of pharmaceuticals used for smoking cessation, with a limitation on the availability of such pharmaceuticals to the national mail-order pharmacy program under the TRICARE program if appropriate.
  (2) Counseling.
  (3) Access to a toll-free quit line that is available 24 hours a day, 7 days a week.
  (4) Access to print and Internet web-based tobacco cessation material.
  (5) Chain of command involvement by officers in the chain of command of participants in the program who are on active duty.
  Additionally, Section 713 of NDAA FY 2009 stated the TRICARE smoking cessation program shall not be made available to Medicare-eligible beneficiaries. The statutory language further stated that refunds of copayments paid by Medicare-eligible beneficiaries are available during fiscal year 2009, subject to the specific availability of appropriations for this purpose. However, this authority was not extended beyond FY 2009; consequently, no action is required by TRICARE regarding this provision.
  This final rule establishes a smoking cessation program under the TRICARE program. The TRICARE smoking cessation program will be available to all TRICARE beneficiaries who reside in one of the 50 United States or the District of Columbia who are not eligible for Medicare benefits authorized under Title XVIII of the Social Security Act. In general, the TRICARE smoking cessation program will not be available to TRICARE beneficiaries who reside overseas except that under authority of 32 CFR 199.17, active duty service members and active duty dependents residing overseas including the U.S. territories of Guam, Puerto Rico, and the Virgin Islands who are enrolled in TRICARE Prime at a military treatment facility may have access to those services that the ASD(HA) has determined may be reasonably provided overseas.
  It is the intent of the Department to provide access to smoking cessation pharmaceuticals and web based smoking cessation materials overseas where feasible. However, beneficiaries residing in certain areas overseas may not have easy access to the mail services, equipment or technology needed to receive these smoking cessation benefits and in those areas there is no requirement to make them available. For example, there is no intent by the Department to make the web based services available in areas where there are no web based carriers to provide such a service. Additionally, the laws and our treaties with various countries restrict the mailing of pharmaceuticals into the country. If such laws or treaties do not allow the delivery of the pharmaceuticals through the TRICARE Mail Order Pharmacy (TMOP), it is not the intent of the Secretary to provide the pharmaceutical benefit in those areas through this mechanism.
  At this time, it is not the intent of the Department to provide access to the toll free quit line overseas due to the technological barriers and cost involved in providing this service. In addition, it is not the intent of the Department at this time to make face-to-face smoking cessation counseling available overseas through the local economy. However, in accordance with 32 CFR 199.17 should the ASD(HA) determine that it is technologically, economically, or otherwise feasible to provide additional benefits or it becomes impractical to continue the benefits and services overseas, the ASD(HA) may use this authority to add or modify any benefit or service. Notice of the use of this authority shall be published in the Federal Register.
  There will be no requirement for an eligible beneficiary to be diagnosed with a smoking related illness in order to access benefits under the TRICARE smoking cessation program. Benefits under this program will include, at no cost to the beneficiary, pharmaceuticals used for smoking cessation available through the TRICARE mail-order pharmacy program and at Military Treatment Facilities. The program will include smoking cessation counseling; access to a toll-free quit line 24 hours a day, 7 days a week; and access to printed and Internet web-based tobacco cessation material. Like other pharmaceuticals, smoking cessation pharmaceuticals may also be available at no cost to the beneficiary at an MTF; however, smoking cessation pharmaceuticals are not a covered benefit under the TRICARE Retail Pharmacy program.
  The proposed rule was published in the Federal Register (76 FR 58199) dated September 20, 2011, for a 60-day public comment period. We received sixteen comments from different respondents on the proposed rule.
  All but one of the public comments was positive and supported the provisions of the proposed rule. Fifteen of the respondents approved of the new coverage of smoking cessation medications with no copay, however there were two comments questioning the limitation of availability to the Mail Order Pharmacy Program. There was concern that TRICARE had not explained the reasoning for this decision and some were concerned that this limitation would be a barrier to those seeking treatment. We appreciate the comments and acknowledge the concern. However, we do not believe that limiting availability of smoking cessation pharmaceuticals to the mail order pharmacy will be a barrier to seeking care by the majority of beneficiaries. Mail order is a more cost effective venue than retail pharmacy and this limitation is a way of controlling the cost of providing these pharmaceuticals at no cost to the beneficiary. We believe that providing these pharmaceuticals at no cost has a greater influence on a beneficiary's decision to seek care than the fact that the care is limited to a specific venue. We believe this to be a prudent, fair, and reasonable approach to providing the pharmaceutical component of the benefit.
  Additionally, one respondent, representing the National Community Pharmacists Association felt that since some retail pharmacists provide smoking cessation counseling, it would be more convenient for beneficiaries to be able to get their medications at the retail pharmacy where they might possibly be going for smoking cessation counseling, so that both activities could occur in one location. We appreciate the respondent's comment and the suggestion that would seemingly offer greater convenience to TRICARE beneficiaries; however, consistent with Center for Medicare and Medicaid Services (CMS), pharmacists are not recognized as authorized TRICARE independent providers. Although TRICARE currently recognizes pharmacies as providers for purposes of the pharmacy benefits program under 32 CFR 199.21, which includes providing immunizations to our beneficiaries, the individual pharmacist is not recognized as an independent provider. Therefore, pharmacist counseling services are not currently a covered benefit under TRICARE and pharmacists cannot be reimbursed for this service. Therefore, beneficiaries who obtain smoking cessation products in a retail pharmacy may not receive counseling from the pharmacist as a covered benefit. In addition, as mentioned above, providing these products in the retail venue would significantly increase the cost of this program. The respondents were also concerned that if medications for smoking cessation are mailed to a patient's home, they will not have the opportunity to ask questions of a pharmacist before taking them. Unlike the majority of retail pharmacies, the mail order pharmacy program provides access to pharmacists 24/7 via a toll free number. Consistent with most pharmacy services, the mail order program provides complete written information including instructions for use, side effects, adverse effects, doses, warnings, and telephone numbers for questions.
  Five respondents expressed concern that these new benefits were only available CONUS and not OCONUS. One respondent suggested a change to the language that deals with OCONUS availability. The commentor would prefer that it say that TRICARE is required to make the smoking cessation program available overseas unless the ASD(HA) determines it is not possible to provide the program in specific overseas locations or situations, instead of stating that the benefits are not available overseas unless the Assistant Secretary of Defense for Health Affairs [ASD(HA)] determines they can be reasonably provided. We appreciate the respondent's comments and acknowledge the respondent's suggestion, however during the implementation of this benefit the ability to provide the benefit overseas was extensively explored. The Department found significant barriers and elected not to implement at this time. The language gives the Assistant Secretary the ability to expand the benefit as technology and other innovations make the delivery of these benefits feasible. Additionally the current federal regulations relating to the implementation of TRICARE overseas states that the program is not implemented overseas without affirmative action by the Department, thus the language used is consistent with our current regulatory framework.
  One person commented that the smoking cessation program should include provisions to assist with tobacco cessation as well. We appreciate the comment; however, the language in section 713 of the NDAA 2009 limits us to providing a smoking cessation program with one exception. That exception allows the Department to provide printed and Internet web-based tobacco cessation materials.
  One respondent was concerned that the language in the summary statement that says that there is a ''limitation on the availability of such pharmaceuticals to the mail-order pharmacy'' will cause the beneficiaries to believe that they cannot get these medications at the MTF pharmacies. We appreciate the respondent's comment and concern, and would like to assure the respondent that this was unintentional. To correct this and assure clarity, the language in Section III, the Summary, concerning the availability of smoking cessation pharmaceuticals has been revised to include a reference to the availability of pharmaceuticals at the MTFs. The language in the regulation itself reflects the correct availability of these pharmaceutical agents.
  The statement in the proposed rule that says, ''the Secretary of Defense shall provide for involvement by officers in the chain of command of participants in the program who are on active duty'' caused concern for one responder. This commentor took this statement to mean that those active duty members who took advantage of the program would have to report on their progress to their supervisor, which they felt would be very intimidating for those trying to quit, especially if they were having difficulties. We appreciate the comment, and want to clarify that the intent is not to have supervising officers be directly involved in individual active duty service members quit attempts, but to have them provide their support to the program. That is, it is the intent of the Department for all parts of the chain of command to support any member who wishes to quit smoking. There is no intent for any reporting requirements by a member to his or her command or for any member within the chain of command to report to their superiors relating to any member's participation in a smoking cessation program.
  There were several comments related to the number of quit attempts available to participants in the program. One respondent did not think that a beneficiary should get more than three attempts total. The commenter was opposed to having three possible attempts per year and felt it would be a waste of TRICARE resources to continue to pay for additional attempts for someone who was not successful within a year of trying. We acknowledge the respondent's comments and appreciate the concerns. TRICARE is dedicated to the appropriate and judicious use of taxpayers' money and the decision to allow more than three quit attempts in total was the result of extensive research concerning smoking cessation. This research revealed that, on average, it takes smokers seven attempts to quit. Allowing more than three total attempts will give TRICARE beneficiaries who want to quit smoking the best opportunity to do so. This will result in a healthier beneficiary population; and as this population becomes healthier and more individuals choose to quit, TRICARE health care costs associated with treating diseases that are either caused by or exacerbated by smoking will be reduced.
  Another respondent had the opposite view, believing that since ''tobacco dependence is a chronic disease that often requires repeated intervention and multiple attempts to quit'', patients should not be limited in their attempts and should have access to tobacco cessation services throughout the year. We acknowledge and respect this respondent's point of view; however, believe it would be fiscally irresponsible not to impose a limit on quit attempts. Furthermore, while our research revealed that the average person requires multiple attempts at quitting before they are successful, our research did not support a conclusion that allowing unlimited quit attempts results in improved success rates.
  This respondent also requested that the DoD Pharmacy and Therapeutics Committee, when deciding which specific smoking cessation medications TRICARE will cover, will choose to include all FDA-approved tobacco cessation medications. We appreciate this respondent's comment and suggestion. The Pharmacy and Therapeutics Committee has a mandate to review and recommend drugs based on their clinical and cost effectiveness. After this formal process, these recommendations will then go to the TMA Director, who will make the final decision. At this point, we do not know which of the smoking cessation medications will, or will not be on the formulary.
  Another comment requested that TRICARE providers be made aware of the available cessation benefits and be trained in smoking cessation counseling. We appreciate the respondent's comments and suggestions and want to assure this respondent that once the final rule is published and this becomes a TRICARE benefit, information concerning it will be well publicized. This publicity will include information for TRICARE providers and our beneficiaries. Information concerning this new benefit will also be available on the TRICARE Web site (www.TRICARE.mil), which is accessible to beneficiaries, providers and the general public. In addition, the Managed Care Support Contractors are required to disseminate information to providers affected by implementation of new TRICARE benefits.
  Another comment recommended an expansion of the TRICARE smoking cessation program to include a reduction of tobacco advertising in military literature and increasing the cost of tobacco products on military bases. We appreciate this respondent's comment and suggestions; however, the authority to take the actions suggested is beyond the scope of the requirements of the law that TRICARE was tasked to implement.
  Unrelated to the Proposed Rule on Smoking Cessation, one comment was received from a retiree who was upset that he might be forced to pay more for TRICARE Prime as a part of DoD cutbacks. We appreciate this respondent's comments; however, we cannot address these here as they are outside the scope of the law that implements the TRICARE smoking cessation benefits.
  Executive Order 12866, ''Regulatory Planning and Review'' and Executive Order 13563, ''Improving Regulation and Regulatory Review''Section 801 of title 5, United States Code, and Executive Orders 12866 and 13563 require certain regulatory assessments and procedures for any major rule or significant regulatory action, defined as one that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts. This final rule is not a significant regulatory action.
  96, ''Regulatory Flexibility Act'' (RFA) (5 U.S.C. 601)96, ''Regulatory Flexibility Act'' (RFA) (5 U.S.C. 601), requires that each Federal agency prepare a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This final rule will not have a significant impact on a substantial number of small entities. Therefore, this final rule is not subject to the requirements of the RFA.
  96, ''Paperwork Reduction Act'' (44 U.S.C. Chapter 35)This rule does not contain a ''collection of information'' requirement, and will not impose additional information collection requirements on the public under 96, ''Paperwork Reduction Act'' (44 U.S.C. Chapter 35).
  Public Law 104-4, Section 202, ''Unfunded Mandates Reform Act''Section 202 of Public Law 104-4, ''Unfunded Mandates Reform Act,'' requires that an analysis be performed to determine whether any federal mandate may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million in any one year. This final rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year, and thus this final rule is not subject to this requirement.
  Executive Order 13132, ''Federalism''Executive Order 13132, ''Federalism,'' requires that an impact analysis be performed to determine whether the rule has federalism implications that would 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 final rule does not have federalism implications, as set forth in Executive Order 13132.
  Accordingly, 32 CFR Part 199 is amended as follows:
  begin regulatory text
  1.The authority citation for Part 199 continues to read as follows:
  Authority:5 U.S.C. 301; 10 U.S.C. Chapter 55.
  2.Section 199.4 is amended by:
  a. Revising paragraph (d)(3)(vi) introductory text.
  b. Adding new paragraph (d)(3)(vi)(C).
  c. Adding new paragraph (e)(30).
  d. Revising paragraph (g)(39).
  e. Removing and reserving paragraph (g)(65).
  The revisions and additions read as follows:
  § 199.4 Basic program benefits.* * * * *
  (d) * * *
  (3) * * *
  (vi) Drugs and medicines. Drugs and medicines that by United States law require a prescription are also referred to as ''legend drugs.'' Legend drugs are covered when prescribed by a physician or other authorized individual professional provider acting within the scope of the provider's license and ordered or prescribed in connection with an otherwise covered condition or treatment, and not otherwise excluded by TRICARE. This includes Rh immune globulin.
  * * * * *
  (C) Over-the-counter (OTC) drugs (drugs that by United States law do not require a prescription), in general, are not covered. However, insulin is covered for a known diabetic even in states that do not require a prescription for its purchase. In addition, OTC drugs used for smoking cessation are covered when all requirements under the TRICARE smoking cessation program are met as provided in paragraph (e)(30) of this section.
  * * * * *
  (e) * * *
  (30) Smoking cessation program. The TRICARE smoking cessation program is a behavioral modification program to assist eligible beneficiaries who desire to quit smoking. The program consists of a pharmaceutical benefit; smoking cessation counseling; access to a toll-free quit line for non-medical assistance; and, access to print and internet web-based tobacco cessation materials.
  (i) Availability. The TRICARE smoking cessation program is available to all TRICARE beneficiaries who reside in one of the 50 United States or the District of Columbia who are not eligible for Medicare benefits authorized under Title XVIII of the Social Security Act. In addition, pursuant to § 199.17, if authorized by the Assistant Secretary of Defense (Health Affairs), the TRICARE smoking cessation program may be implemented in whole or in part in areas outside the 50 states and the District of Columbia for active duty members and their dependents who are enrolled in TRICARE Prime (overseas Prime beneficiaries). In such cases, the Assistant Secretary of Defense (Health Affairs) may also authorize modifications to the TRICARE smoking cessation program rules and procedures as may be appropriate to the overseas area involved. Notice of the use of this authority, not otherwise mentioned in this paragraph (e)(30), shall be published in the Federal Register.
  (ii) Benefits. There is no requirement for an eligible beneficiary to be diagnosed with a smoking related illness to access benefits under this program. The specific benefits available under the TRICARE smoking cessation program are:
  (A) Pharmaceutical agents. Products available under this program are identified through the DoD Pharmacy and Therapeutics Committee, consistent with the DoD Uniform Formulary in § 199.21. Smoking cessation pharmaceutical agents, including FDA-approved over-the-counter (OTC) pharmaceutical agents, are available through the TRICARE Mail Order Pharmacy (TMOP) or the MTF at no cost to the beneficiary. Smoking cessation pharmaceuticals through the TRICARE program will not be available at any retail pharmacies. A prescription from a TRICARE-authorized provider is required to obtain any pharmaceutical agent used for smoking cessation, including OTC agents. For overseas Prime beneficiaries, pharmaceutical agents may be provided either in the MTF or through the TMOP where such facility or service is available.
  (B) Face-to-face smoking cessation counseling. Both individual and group smoking cessation counseling are covered. The number and mix of face-to-face counseling sessions covered under this program shall be determined by the Director, TMA; however, shall not exceed the limits established in paragraph (e)(30)(iii) of this section. A TRICARE-authorized provider listed in § 199.6 must render all counseling sessions.
  (C) Toll-free quit line. Access to a non-medical toll-free quit line 7 days a week, 24 hours a day will be available. The quit line will be staffed with smoking cessation counselors trained to assess a beneficiary's readiness to quit, identify barriers to quitting, and provide specific suggested actions and motivational counseling to enhance the chances of a successful quit attempt. When appropriate, quit line counselors will refer beneficiaries to a TRICARE-authorized provider for medical intervention. The quit line may, at the discretion of the Director, TMA, include the opportunity for the beneficiary to request individual follow-up contact initiated by quit line personnel; however, the beneficiary is not required to participate in the quit line initiated follow-up. Printed educational materials on the effects of tobacco use will be provided to the beneficiary upon request. This benefit may be made available to overseas Prime beneficiaries should the ASD(HA) exercise his authority to do so and provide appropriate notice in the Federal Register.
  (D) Web-based resources. Downloadable educational materials on the effects of tobacco use will be available through the internet or other electronic media. This service may be made available to overseas Prime beneficiaries in all locations where web based resources are available. There shall be no requirement to create web based resources in any geographic area in order to make this service available.
  (iii) Limitations of smoking cessation program. Eligible beneficiaries are entitled to two quit attempts per year (consecutive 12 month period). A third quit attempt may be covered per year with physician justification and pre-authorization. A quit attempt is defined as up to eighteen face-to-face counseling sessions over a 120 consecutive day period and/or 120 days of pharmacologic intervention for the purpose of smoking cessation. Counseling and pharmacological treatment periods that overlap by at least 60-days are considered a single quit attempt.
  * * * * *
  (g) * * *
  (39) Counseling. Educational, vocational, and nutritional counseling and counseling for socioeconomic purposes, stress management, and/or lifestyle modification purposes, except that the following are not excluded:
  (i) Services provided by a certified marriage and family therapist, pastoral or mental health counselor in the treatment of a mental disorder as specifically provided in paragraph (c)(3)(ix) of this section and in § 199.6.
  (ii) Diabetes self-management training (DSMT) as specifically provided in paragraph (d)(3)(ix) of this section.
  (iii) Smoking cessation counseling and education as specifically provided in paragraph (e)(30) of this section.
  (iv) Services provided by alcoholism rehabilitation counselors only when rendered in a CHAMPUS-authorized treatment setting and only when the cost of those services is included in the facility's CHAMPUS-determined allowable cost rate.
  * * * * *
  (65) [Reserved]
  * * * * *
  3.Section 199.21 is amended by:
  a. Revising paragraph (a)(2);
  b. Revising paragraph (h)(2)(i);
  c. Adding a new paragraph (h)(2)(iii); and
  d. Adding a new (i)(2)(v)(D).
  The additions and revisions read as follows:
  § 199.21 Pharmacy benefits program.(a) * * *
  (2) Pharmacy benefits program. (i) Applicability. The pharmacy benefits program, which includes the uniform formulary and its associated tiered co-payment structure, is applicable to all of the uniformed services. Geographically, except as specifically provided in paragraph (a)(2)(ii) of this section, this program is applicable to all 50 states and the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In addition, if authorized by the Assistant Secretary of Defense (Health Affairs) (ASD(HA)), the TRICARE pharmacy benefits program may be implemented in areas outside the 50 states and the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In such case, the ASD (HA) may also authorize modifications to the pharmacy benefits program rules and procedures as may be appropriate to the area involved.
  (ii) Applicability exception. The pharmaceutical benefit under the TRICARE smoking cessation program under § 199.4(e)(30) is available to TRICARE beneficiaries who are not entitled to Medicare benefits authorized under Title XVIII of the Social Security Act. Except as noted in § 199.4(e)(30), the smoking cessation program, including the pharmaceutical benefit, is not applicable or available to beneficiaries who reside overseas, including the U. S. territories of Guam, Puerto Rico, and the Virgin Islands, except that under the authority of § 199.17 active duty service members and active duty dependents enrolled in TRICARE Prime residing overseas, including the U. S. territories of Guam, Puerto Rico, and the Virgin Islands, shall have access to smoking cessation pharmaceuticals through either an MTF or the TMOP program where available.
  * * * * *
  (h) * * *
  (2) Availability of formulary pharmaceutical agents. (i) General. Subject to paragraphs (h)(2)(ii) and (h)(2)(iii) of this section, formulary pharmaceutical agents are available under the Pharmacy Benefits Program from all points of service identified in paragraph (h)(1) of this section.
  * * * * *
  (iii) Pharmaceutical agents prescribed for smoking cessation are not available for coverage when obtained through a retail pharmacy. This includes network and non-network retail pharmacies.
  * * * * *
  (i) * * *
  (2) * * *
  (v) * * *
  (D) $0.00 co-payment for smoking cessation pharmaceutical agents covered under the smoking cessation program.
  * * * * *
  end regulatory text
  Dated: February 1, 2013.
  Patricia L. Toppings,
  OSD Federal Register Liaison Officer, Department of Defense.
  [FR Doc. 2013-03417 Filed 2-26-13; 8:45 am]
  BILLING CODE 5001-06-P
Pangea LNG B.V.
  Link to Article
  Thu, 28 Feb 2013 14:21
  Latest NewsLevant LNG signs Breakthrough Floating LNG Agreement with Gazprom Marketing and Trading Switzerland AG
  February 26, 2013 | admin
  SEOUL, South Korea ''Levant LNG, a subsidiary of Pangea LNG...
  US Department of Energy Grants Pangea LNG Project Permission to Export LNG
  February 04, 2013 | admin
  THE WOODLANDS, Texas '' The U.S. Department of Energy has...
  Pangea LNG Submits Non-FTA Export Application to DOE for South Texas LNG Project
  December 20, 2012 | admin
  THE WOODLANDS, Texas '' Pangea LNG B.V. announced today that...
  Pangea LNG B.V. is an investment company and a developer of LNG floating liquefaction '' designed to accelerate and support the monetization of gas reserves and stranded gas reserves. Owned by Daewoo Shipbuilding and Marine Engineering (DSME), NextDecade International and D&H Solutions AS, Pangea LNG B.V. will connect gas suppliers to the world's most important LNG demand markets with a focus on reserves of 2 '' 20 TCF.
  The Pangea companies believe that one size does not fit all. That is why we are developing solutions that can be duplicated and geared towards more specific gas qualities and environments. By designing for a tighter range of parameters, we are able to eliminate unnecessary capital costs. Our modular design concept can be fully utilized on a vessel, be efficiently divided between land-based and floating, or even be totally land-based.
  Pangea LNG embraces a holistic approach, encompassing the entire value chain from the upstream to the final off-taker to monetize gas into LNG. Owners of the hydrocarbon as well as the off-taker of LNG are invited to participate in the value-creation and position their risk and reward profile accordingly. This holistic approach helps mitigate risk positions for small and medium sized gas owners through the sharing of a larger portion of the value chain, and helps NOC's and final off-takers secure access to technology and operations together with a long-term supply of LNG.
  Pangea LNG's consortium offers vast LNG industry experience and has invested in FLNG technology, FEED studies, and complex financial models and solutions. In addition, Pangea LNG is well positioned with the off-takers of LNG throughout the world. One of our strengths is our ability to safely and economically fast track the entire development process resulting in earlier revenue streams. For every month a project comes on-line early, that is a month of revenue that otherwise will not be realized until 20 years from then, the increase in NPV value for gas owners and tax revenue for NOC's can be astounding.
  Pangea LNG B.V. is organized regionally with initial interests in:
  ' Eastern Mediterranean '' Levant LNG Holdings Corporation' North America '' Pangea LNG (North America) Holdings, LLC' East Africa '' Pangea LNG B.V.
  Pangea LNG is positioned to become the preeminent Floating Liquefaction developer worldwide.
Federal Register | Pangea LNG (North America) Holdings, LLC; Application for Long-Term Authorization To Export Liquefied Natural Gas Produced From Domestic Natural Gas Resources to Non-Free Trade Agreement Countries for a 25-Year Period
  Link to Article
  Thu, 28 Feb 2013 04:14
  The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application) filed on December 19, 2012, by Pangea LNG (North America) Holdings, LLC (Pangea), requesting long-term, multi-contract authorization to export domestically produced liquefied natural gas (LNG) in an amount up to the equivalent of 398.5 billion cubic feet (Bcf) per year (Bcf/y) of natural gas (equal to 1.09 Bcf/day of natural gas), the equivalent of 8 million metric tons per annum (mtpa), from its proposed South Texas LNG Export Project (ST LNG Project) located at the Port of Corpus Christi in Ingleside, Texas. Pangea requests this authorization for a 25-year term commencing on the earlier of the date of first export or seven years from the date the requested authorization is granted. The LNG would be exported to any country (1) with which the United States does not have a free trade agreement (FTA) requiring national treatment for trade in natural gas, (2) that has developed or in the future develops the capacity to import LNG via ocean-going carrier, and (3) with which trade is not prohibited by U.S. law or policy. Pangea is requesting this authorization to export LNG both on its own behalf and as agent for other parties who hold title to the LNG at the point of export. The Application was filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.
  Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., eastern time, April 29, 2013.
  Electronic Filing by email: fergas@hq.doe.gov.
  Regular Mail:U.S. Department of Energy (FE-34),Office of Natural Gas Regulatory Activities,Office of Fossil Energy,P.O. Box 44375,Washington, DC 20026-4375.
  Hand Delivery or Private Delivery Services (e.g.,FedEx, UPS, etc.):U.S. Department of Energy (FE-34),Office of Natural Gas Regulatory Activities,Office of Fossil Energy,Forrestal Building, Room 3E-042,1000 Independence Avenue SW.,Washington, DC 20585.
  Larine Moore or Marc Talbert,U.S. Department of Energy (FE-34),Office of Natural Gas Regulatory Activities,Office of Fossil Energy,Forrestal Building, Room 3E-042,1000 Independence Avenue SW.,Washington, DC 20585,(202) 586-9478; (202) 586-7991.
  Edward Myers,U.S. Department of Energy,Office of the Assistant General Counsel forElectricity and Fossil Energy,Forrestal Building, Room 6B-256,1000 Independence Avenue SW.,Washington, DC 20585,(202) 586-3397.
  Pangea is a Delaware limited liability company with its principal place of business in The Woodlands, Texas. Pangea is a wholly owned subsidiary of Pangea LNG B.V. (Pangea LNG), a Netherlands-based company that is developing floating LNG liquefaction and storage solutions around the globe. Pangea LNG's ordinary shares are owned by Daewoo Shipbuilding & Marine Engineering Co., Ltd. (DSME) (70%), D&H Solutions AS (20%), and NextDecade International Co¶peratief U.A. (NextDecade International) (10%).
  DSME is a South Korea-based company whose major shareholders consist of Korea Development Bank (31.27%) and Korea Asset Management Corporation (19.11%), with the remaining shares being widely-held (with no individual entities holding five (5) percent or more of DSME's shares). [1] D&H Solutions AS is a Norwegian-based joint venture company that is owned by Hemla II AS (50%) and DSME (50%). NextDecade International is a Netherlands-based cooperative and has six (6) individual investors from the United States, Spain, and The Netherlands.
  Pangea states that consistent with an executed Letter of Intent, it is working with Statoil North America, Inc. on the development of the ST LNG Project. Statoil North America, Inc. is a subsidiary of Statoil ASA (Statoil), a Norwegian upstream oil and gas company listed on the Oslo and New York stock exchanges. Pangea states that headquartered in Stavanger, Norway, Statoil is an international energy company with 40 years of offshore oil and gas production experience on the Norwegian Continental Shelf and currently has operations in 36 countries. Pangea states that Statoil's LNG activities include being the operator of the Sn¸hvit, and LNG export facility in Norway; exercising its capacity holder rights with respect to the Cove Point import and regasification terminal (in the U.S.); and producing, transporting and marketing LNG worldwide. Pangea states that Statoil has been active in the U.S. oil and gas industry for 25 years. Pangea states that over the past decade, Statoil has increased its North American business substantially through upstream positions in the Gulf of Mexico, acreages in the Marcellus shale gas play, the Eagle Ford shale gas play, the Bakken shale oil play and oil sands acreages in Alberta, Canada. Pangea further states that it and Statoil are in active negotiations with respect to Statoil procuring up to a 50% equity stake in the ST LNG Project and utilizing up to 50% of the liquefaction and export capacity of the ST LNG Project. [2]
  In the instant Application, Pangea seeks long-term, multi-contract authorization to export domestically produced LNG in an amount up to the equivalent of 398.5 billion cubic feet (Bcf) per year (Bcf/y) of natural gas (equal to 1.09 Bcf/day of natural gas), the equivalent of 8 million metric tons per annum (mtpa), for a period of 25 years beginning on the earlier of the date of first export or seven years from the date the authorization is granted by DOE/FE. Pangea seeks to export this LNG to any nation with which the United States does not have an FTA requiring national treatment for trade in natural gas or LNG with which trade is not prohibited by United States law or policy. Pangea is seeking this export authorization in conjunction with its proposal to construct, own, and operate the ST LNG Project. [3] Pangea states that the ST LNG Project will consist of both land-based and floating components and will include natural gas treatment, compression, liquefaction and storage facilities, as well as ancillary facilities required to receive and liquefy natural gas, and to store and deliver LNG. Pangea states that the ST LNG Project will be capable of processing an average of approximately 398.5 Bcf/y, approximately 1.09 Bcf/d, of pipeline-quality natural gas. Pangea states that such gas will be delivered to the ST LNG Project through an approximately 27-mile-long pipeline, South Texas Pipeline, to be developed by a Pangea affiliate. Pangea intends to interconnect the ST LNG Project with nine interstate and intrastate pipeline systems [4] via the South Texas Pipeline, thereby allowing natural gas to be supplied through displacement or direct access from a wide variety of supply sources.
  Pangea states that the ST LNG Project has been proposed, in part, due to the markedly improved outlook for domestic natural gas reserves and production. Pangea states that improved drilling techniques and extraction technologies have contributed to the rapid growth in new supplies from unconventional gas-bearing formations across the U.S. and have been utilized to enhance production in some conventional fields. Pangea states that such developments have completely changed the complexion of the U.S. natural gas industry and radically expanded the resource base.
  Pangea states that LNG exports via the ST LNG Project represents a market-driven path toward deploying the country's vast energy reserves in a manner that will meaningfully contribute to the public interest through a variety of benefits, including: (1) More jobs [5] and personal income, greater tax revenues, and increased economic activity; (2) Improved U.S. balance of payments (by between $3.7 billion and $6 billion annually) through the exportation of natural gas and the displacement of imports of other petroleum liquids; (3) Enhanced national security, as a result of the U.S.'s larger role in international energy markets, assistance provided to our allies, and reduced U.S. dependency on foreign oil and natural gas production; [6] (4) Better opportunities to market U.S. products and services abroad, as a result of new competitively priced gas supplies introduced into world markets leading to improved economies among the U.S.'s trading partners; (5) Increased economic trade and closer ties with foreign trading partners and hemispheric allies, while displacing environmentally damaging fuels in those countries; (6) Increased production capacity able to better adjust to varying domestic demand scenarios; and (7) Dampened volatility in domestic natural gas prices.
  Pangea submits that these benefits, and others discussed in this Application, demonstrate that Pangea's export proposal is not inconsistent with the public interest. Pangea states that this stance is now buttressed by the independent NERA Report, which key findings related to the macroeconomic impacts of LNG exports are overwhelmingly positive.
  Further discussion of the public interest and analysis of the impact of LNG exports is included in the Application and Appendix A of the Application.
  Pangea states that it will request NGA Section 3 authorization from FERC so that it may site, construct, and operate the ST LNG Project. Pangea states that it intends to commence the FERC's mandatory pre-filing process in Spring 2013 and then file its final application to obtain Section 3 authorization in the Fall 2013. Pangea states that its affiliate developing the ST Pipeline will file an application for NGA Section 7(c) authorization to construct, own, and operate the South Texas Pipeline.
  Pangea states that the potential environmental impacts of the ST LNG Project will be reviewed by FERC under the National Environmental Policy Act (NEPA). Pangea further states that consistent with the NEPA scheme applicable to applications for authorizations under NGA Section 3 delineated by Congress in the Energy Policy Act of 2005, [7] it expects that FERC shall act as the lead agency, with DOE/FE acting as a cooperating agency, in connection with the ST LNG Project.
  The Application will be reviewed pursuant to section 3 of the NGA, as amended, and the authority contained in DOE Delegation Order No. 00-002.00L (April 29, 2011) and DOE Redelegation Order No. 00-002.04E (April 29, 2011). In reviewing this LNG export Application, DOE will consider any issues required by law or policy. To the extent determined to be relevant or appropriate, these issues will include the impact of LNG exports associated with this Application, and the cumulative impact of any other application(s) previously approved, on domestic need for the gas proposed for export, adequacy of domestic natural gas supply, U.S. energy security, and any other issues, including the impact on the U.S. economy (GDP), consumers, and industry, job creation, U.S. balance of trade, international considerations, and whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this Application should comment in their responses on these issues, as well as any other issues deemed relevant to the Application.
  NEPA requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its environmental responsibilities.
  Due to the complexity of the issues raised by the Applicants, interested persons will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, notices of intervention, or motions for additional procedures.
  In response to this notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
  Filings may be submitted using one of the following methods: (1) EMailing the filing to fergas@hq.doe.gov with FE Docket No. 12-184-LNG in the title line; (2) mailing an original and three paper copies of the filing to the Office Natural Gas Regulatory Activities at the address listed in ADDRESSES. The filing must include a reference to FE Docket No. 12-184-LNG; or (3) hand delivering an original and three paper copies of the filing to the Office of Natural Gas Regulatory Activities at the address listed in ADDRESSES. The filing must include a reference to FE Docket No. 12-184-LNG.
  A decisional record on the Application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.
  If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
  The Application filed by Pangea is available for inspection and copying in the Office of Natural Gas Regulatory Activities docket room, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address: http://www.fe.doe.gov/programs/gasregulation/index.html.
  Issued in Washington, DC, on February 21, 2013.
  John A. Anderson,
  Manager, Natural Gas Regulatory Activities,Office of Oil and Gas Global Security and Supply,Office of Fossil Energy.
  [FR Doc. 2013-04540 Filed 2-26-13; 8:45 am]
  BILLING CODE 6450-01-P
Rand Paul To CIA: "Can You Kill With Drones In The USA?"
  Link to Article
  Source: BadChad's ThoughtPile
  Thu, 28 Feb 2013 14:18
  Submitted by Michael Krieger of Liberty Blitzkrieg blog,
  Rand Paul's Third Letter to the CIA: Can You Kill with Drones in the USA?
  This letter is a few days old, but is very important for every American to be aware of. Essentially, Rand Paul is threatening to filibuster Barack Obama's nominee for the CIA, John Brennan, due to his refusal to answer a simple question:
  Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?
  This should not be a complicated question to answer, yet it seems Obama, Brennan and pretty much every other little power consumed bureaucrat is incapable of doing so. Below is Rand Paul's letter reprinted in full (my emphasis added).
  February 20, 2013
  John O. Brennan
  Assistant to the President for Homeland Security and Counterterrorism
  The White House
  1600 Pennsylvania Ave., NW
  Washington, DC 20500
  Dear Mr. Brennan,
  In consideration of your nomination to be Director of the Central Intelligence Agency (CIA), I have repeatedly requested that you provide answers to several questions clarifying your role in the approval of lethal force against terrorism suspects, particularly those who are U.S. citizens. Your past actions in this regard, as well as your view of the limitations to which you are subject, are of critical importance in assessing your qualifications to lead the CIA. If it is not clear that you will honor the limits placed upon the Executive Branch by the Constitution, then the Senate should not confirm you to lead the CIA.
  During your confirmation process in the Senate Select Committee on Intelligence (SSCI), committee members have quite appropriately made requests similar to questions I raised in my previous letter to you-that you expound on your views on the limits of executive power in using lethal force against U.S. citizens, especially when operating on U.S. soil. In fact, the Chairman of the SSCI, Sen. Feinstein, specifically asked you in post-hearing questions for the record whether the Administration could carry out drone strikes inside the United States. In your response, you emphasized that the Administration ''has not carried out'' such strikes and ''has no intention of doing so.'' I do not find this response sufficient.
  The question that I and many others have asked is not whether the Administration has or intends to carry out drone strikes inside the United States, but whether it believes it has the authority to do so. This is an important distinction that should not be ignored.
  Just last week, President Obama also avoided this question when posed to him directly. Instead of addressing the question of whether the Administration could kill a U.S. citizen on American soil, he used a similar line that ''there has never been a drone used on an American citizen on American soil.'' The evasive replies to this valid question from the Administration have only confused the issue further without getting us any closer to an actual answer.
  For that reason, I once again request you answer the following question: Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?
  I believe the only acceptable answer to this is no.
  Until you directly and clearly answer, I plan to use every procedural option at my disposal to delay your confirmation and bring added scrutiny to this issue and the Administration's policies on the use of lethal force. The American people are rightfully concerned, and they deserve a frank and open discussion on these policies.
  Sincerely,Rand Paul, M.D.
  United States Senator
  Average:Your rating: NoneAverage: 4.9(53 votes)
VIDEO-02-27-13 FIRE BALL over Texas & Louisiana turns out to be CHINESE ROCKET!!! - YouTube
  Link to Article
  Thu, 28 Feb 2013 14:17
Programming lesson: Don't slog away at the end of the day.
  Link to Article
  Source: Dave Winer
  Thu, 28 Feb 2013 14:14
  Here's one of the fundamental rules of programming.
  You're at the end of your day, you've gotten a lot of stuff done, and you have one more thing to get right before the feature is complete, and you're searching for the answer, trying all kinds of ideas, thoroughly confused, not wanting to get up until it's done, just slogging away and not getting it. Finally, you give up after a couple of hours of spinning your wheels, eat some dinner, watch a little basketball, have a glass of wine, read a little and crash for the night.
  Get up the next morning, make some coffee, read the news, roll up your sleeves and start over with the problem.
  Five minutes later it's done.
  Happens every damned time.
  The problem isn't intractable. It's just as difficult as all the other problems you solved the previous day. It just came after your mind shut down. So you might as well quit work a couple of hours earlier.
  Programming isn't like digging trenches. The amount of work you get done is not directly proportional to the amount of time you work. Also believe it or not your mind is solving problems while you sleep. That's why the answer is apparent first thing in the morning. Even after 30 years of programming, I'm still learning this lesson.
LIBYA - SUCCESS OF THE ARAB SPRING
  Link to Article
  Source: aangirfan
  Thu, 28 Feb 2013 13:39
  Israel is no longer surrounded by 'effective' Moslem states. In Tel Aviv, London and Washington, the planners of the Arab Spring should be holding a celebration party.The Moslem countries which have recently been wrecked include Syria, Iraq, Tunisia, Egypt, and Libya.Iran, Pakistan and Turkey are apparently colonies of the West.According to The Economist:"Jihadist militias... run... checkpoints in Benghazi and in Derna..."Smugglers and bandits are battling each other to control the flow of petrol, arms, drugs and people..."Militias refuse to be integrated into a central security force... "The so-called Libyan Shield, a parallel national force... operates at the request, rather than at the order, of the defence ministry.... "These militias ... reinforce a growing impression of a country of city-states...John Brennan, boss of the Jihadis.
  "If all civil servants who held senior jobs under the previous regime are ousted, the economy may grind even more rapidly to a halt.
  "The central government's impotence is illustrated by a visit to Tripoli's national congress, which has lost physical control of the chamber where it is supposed to sit...
  "The lawmakers opt to hold sessions in a tent on the grounds of a local hotel."Libya: The party and the hangover - Feb 21st 2013
  Throughout Libya "both militias and armed criminal gangs operate with impunity and kidnappings, killings, armed robberies and the destruction of Sufi shrines and Christian graves go completely unpunished.Libya's Nightmarish Winter -CounterPunch
  "Rigid enforcement of religious rules have many people terrified...
  "The combination of government incompetence, the politics of revenge and the Islamist suspicion of any kind of secular governance means that the economy is in a downward spiral as well. "Gaddafi's huge infrastructure projects '' including the largest irrigation project on the planet '' have virtually all ground to a halt...
  "So, if Western governments knew that the ''revolution'' would result in chaos and another Islamist state what could possibly make such a result worthwhile?
  "Was it just oil? The West already had access to Libya's oil but the proceeds went to Libya.
  " What few people in Western countries realize is that it was Gaddafi's African nationalism that really had them worried. Gaddafi '' the so-called lunatic '' was seriously messing with capitalism's international institutions and threatening the US dollar as the global currency."
  Libya's Nightmarish Winter - CounterPunch
A Hint of Horse Meat Has a Nat
  Link to Article
  Thu, 28 Feb 2013 13:17
  LONDON - Seeking literary echoes of current predicaments, Britons can generally rely on Shakespeare. But one line in the national memory has proved curiously inappropriate.
  "A horse, a horse, my kingdom for a horse," cries Richard III, facing defeat at the Battle of Bosworth Field, in 1485. Yet horses seem to be the last thing Britons want these days, at least in food that is labeled as something else altogether.
  For weeks, the land has been seized with a spreading, Europe-wide scandal over discoveries of equine DNA in processed meals sold under household brands packaged as exclusively bovine - spaghetti Bolognese, lasagna and burgers among them. Television documentaries have investigated the phenomenon. Headlines have trumpeted it. Bloggers have blogged. Tweeters have tweeted.
  But no one seems able to fully answer the question of why shoppers and diners in Britain are so much more worried about a hint of horse meat than European neighbors in France, the Netherlands and elsewhere who eat their steeds with equanimity.
  Soul-searching Britons have invoked factors ranging from an age-old taboo on consuming animals seen as pets, companions or heroes of sport and war, to a sense of one more betrayal in a catalog of broken public trust.
  "This is not a horse meat scandal," said the Rev. Alexander Lucie-Smith, a priest writing in The Catholic Herald. "It is a labeling scandal" that has prompted the question, "Can we trust anything we read on a label?"
  Part of the answer lies in recent memory of mad cow and foot-and-mouth disease that shook confidence in the nation's herds. An academic study even traces the equine aversion to the eighth century, when Pope Gregory III sought to press newly Christianized Anglo-Saxons to abandon their horse-eating, pagan ways.
Military helicopters light up Raleigh sky
  Link to Article
  Thu, 28 Feb 2013 12:43
  WRAL Mobile: Military helicopters light up Raleigh skyMilitary helicopters light up Raleigh sky
  Feb 27, 2013 11:10 p.m.
  Raleigh, N.C. -- Strange figures lighting up the north Raleigh sky Wednesday evening were helicopters involved in a military training exercise, according to a spokeswoman for Raleigh-Durham International Airport.
  The odd lights in the area of Six Forks Road and Interstate 540 prompted numerous calls to the WRAL newsroom, as well as to Raleigh 911 dispatchers.
  The low-flying aircraft aren't a threat to the public, an airport spokeswoman said.
  Viewers also reported seeing the helicopters in the Four Oaks area of Johnston County.
  Web Editor: Bridget Whelan
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