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ESA Final Rules

Protecting the Privacy of Workers: Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction   [12/19/2008]
[PDF]
FR Doc E8-29886
[Federal Register: December 19, 2008 (Volume 73, Number 245)]
[Rules and Regulations]               
[Page 77504-77512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de08-6]                         


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 3 and 5

RIN 1215-AB67

 
Protecting the Privacy of Workers: Labor Standards Provisions 
Applicable to Contracts Covering Federally Financed and Assisted 
Construction

AGENCY: Wage and Hour Division, Employment Standards Administration, 
Department of Labor.

ACTION: Final rule.

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SUMMARY: In this final rule, the Department of Labor (Department or 
DOL) revises regulations issued pursuant to the Davis-Bacon and Related 
Acts and the Copeland Anti-Kickback Act to better protect the personal 
privacy of laborers and mechanics employed on covered construction 
contracts.

DATES: Effective Date: January 18, 2009, except Sec.  5.5(a)(3)(ii)(A) 
and (a)(3)(ii)(B)(1), which contain information collection requirements 
that have not been approved by OMB. The Wage and Hour Division will 
publish a document in the Federal Register announcing the effective 
date. See Supplementary Information for dates of applicability.

FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Director, Office 
of Interpretations and Regulatory Analysis, Wage and Hour Division, 
Employment Standards Administration, U.S. Department of Labor, Room S-
3506, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: 
(202) 693-0051 (this is not a toll-free number). Copies of this notice 
may be obtained in alternative formats (Large Print, Braille, Audio 
Tape or Disc), upon request, by calling (202) 693-0023 (not a toll-free 
number). TTY/TDD callers may dial toll-free (877) 889-5627 to obtain 
information or request materials in alternative formats.
    Questions of interpretation and/or enforcement of regulations 
issued by this agency or referenced in this notice may be directed to 
the nearest Wage and Hour Division (WHD) District Office. Locate the 
nearest office by calling our toll-free help line at (866) 4USWAGE 
((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or 
log onto the WHD's Web site for a nationwide listing of WHD District 
and Area Offices at: http://www.dol.gov/esa/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department published a Notice of Proposed Rulemaking in the 
Federal Register on October 20, 2008 (73 FR 62229), inviting comments 
until November 19, 2008, on revisions to update certain regulatory 
standards to better protect worker privacy for contracts covering 
federally financed and assisted construction.

II. Summary of Comments

    The Department received 37 total comments on the NPRM from a 
variety of individuals (7), trade and professional associations (6), 
labor unions (12), governmental entities (5), Members of Congress (3 
letters signed by a total of 16 members), law firms (2), and others 
(2).
    Four commenters generally supported the proposed rule. Of the four, 
three cited protecting the employee's privacy as the major factor for 
their support. The fourth comment expressed support for the 
Department's goals of increased privacy and decreased burden through 
electronic reporting but noted that the commenter had business 
interests coextensive with such an initiative. One of these commenters, 
a state government entity, believed the employer is in a better 
position to protect an employee's personal information than government 
agencies enforcing prevailing wage requirements.
    The agency also received from several trade associations and a 
government agency more specific comments in support of protecting 
worker privacy and/or reducing unnecessary burdens, but suggesting 
alternatives to the proposal. One commenter from a trade association 
supported the Department's efforts to protect workers' privacy under 
the proposed rule. The commenter, however, raised concerns that the 
proposed rule could be read to prohibit subcontractors from providing 
addresses and social security numbers in submissions to the prime 
contractors, even though prime contractors continue to have 
responsibility for compliance of subcontractors under the regulations. 
As a result, the commenter recommended that the Department proceed with 
the proposed rule, but clarify that ``prime contractors may continue to 
require subcontractors to provide such information to the prime 
contractors for its own records, without submission to the 
government.'' The commenter also recommended the government expand 
efforts allowing electronic payroll submission systems, to ensure the 
systems are cost-efficient, reliable, and user-friendly.
    One commenter from a federal government agency (United States 
Department of Defense--Department of the Navy) suggested that if 
address and social security information are totally unavailable to 
contracting agencies, there could be an impediment for enforcement. The 
commenter generally endorsed requiring contractors and subcontractors 
to maintain and provide addresses and social security numbers to the 
government upon request and/or that the prime contractor be required to 
compile social security numbers and up-to-date addresses from 
subcontractors even if they are not included in the currently-required 
weekly certified payrolls. The commenter suggested adding explicit 
language to the regulations to make it clear that ``failure to provide 
such information on a timely basis would carry the same regulatory 
consequences as failure to provide timely certified payroll reports.'' 
The commenter also strongly supported the submission of certified 
payroll by electronic means to reduce burden.
    A number of other commenters agreed that there were privacy issues 
with certified payroll requirements, particularly with regard to the 
use of social security numbers, but raised concerns that lack of access 
to addresses and social security numbers might work as a hardship for 
those monitoring compliance. For example, some noted that removing 
addresses from certified payrolls may impact the ability of agencies to 
locate and interview workers for the purposes of auditing prevailing 
wage compliance on contracts or disbursing back wages to employees 
following a finding of their employer's non-compliance. Four of these 
commenters supported the continued need for some level of an individual 
worker identification number and recommended the Department of Labor 
consider alternatives--three suggested using the last four digits of 
the social security number and one suggested creating a unique employee 
identification instead.
    A majority of the comments raised concerns that the proposed 
changes could result in difficulties in enforcing the applicable 
prevailing wage laws because weekly submissions of certified payrolls 
containing social security numbers and addresses for individual workers 
are useful to government investigators and auditors in ensuring 
compliance with the Davis-Bacon and Related Acts and/or Copeland Act. 
Some commenters also noted that contractors and subcontractors do not 
always cooperate with government agencies in prevailing wage compliance

[[Page 77505]]

audits or investigations. Additional concerns raised by the commenters 
include: Prevailing wage enforcement at the state and federal level 
could become more costly; the change could result in increased 
opportunities for fraud by contractors and subcontractors; the rule is 
unnecessary because there are already safeguards in place to protect 
worker privacy; and/or a superior solution would be to require better 
protection (e.g., encryption of data) of the certified payrolls by 
government agencies and the regulated community.
    Most comments in opposition (19) were simply blanket criticisms of 
the proposed changes with little to no analysis. Twelve of these 
comments also argued that, because federal law generally prohibits the 
release of addresses and social security numbers, the proposed rule is 
not needed. Several of these commenters were members of Congress who 
requested that the Department extend the comment period. Notably, 
however, no other stakeholders in the regulated community requested an 
extension of the comment period. A number of other commenters in this 
group, and others below, criticized the length of the comment period, 
but still provided timely comments.
    Several commenters expressed concerns that lack of individual 
identifying information could increase the time and effort necessary 
for government agencies to conduct prevailing wage investigations or 
audits. With regard to the privacy of workers, several commenters 
suggested the alternative of requiring the government and contractors 
to restrict the information to only those who need access. Several 
commenters suggested that government agencies and stakeholders should 
consider increasing electronic submission of certified payroll records 
to improve efficiency, but did not believe that the current process was 
a public burden or endangered worker privacy.
    One commenter referenced the Department of Labor's Office of 
Apprenticeship and the need to have individual information to verify 
apprenticeship status for workers. The commenter was concerned that 
with only a name to compare, and not an address and social security 
number, there could be difficulties in verifying the identity of 
individual workers in apprenticeship programs. The commenter also 
suggested that reducing reporting requirements in general, even to 
protect privacy, may increase the chance unscrupulous contractors and 
subcontractors will be able to hide violations of prevailing wage 
requirements to the detriment of honest contractors and subcontractors. 
Several other commenters also suggested that without the current weekly 
reporting requirements, some contractors and subcontractors could find 
it easier to intentionally not comply with the prevailing wage laws.
    One commenter stated that the proposed change erroneously places 
too much value on personal privacy over the government duty to enforce 
the Davis-Bacon Act. This commenter and others recommended that the 
Department focus on requiring government agencies to better protect 
personal identifying information rather than reduce reporting 
requirements. Several commenters also questioned the Department's 
assertion that this change will reduce public ``reporting burdens.''
    One commenter (International Union of Operating Engineers) opposed 
the proposed rule because of concerns that the change could somehow 
result in ``misclassification of workers, underpayment of wages, fringe 
benefit abuses and illegal kickbacks on federal construction 
projects.'' This commenter also questioned the Department's statement 
that contractors will continue to be required to maintain employee 
addresses and social security numbers, the Department's reliance on 
Building & Construction Trades Department v. Donovan, 712 F.2d 611 
(D.C. Cir, 1983), and whether there was any evidence that government 
agencies and contractors are unable to appropriately protect personal 
information currently.
    One state government agency (Illinois Department of Labor) raised 
concerns that the changes could hinder efforts to enforce applicable 
laws as well as its own use of home addresses and social security 
numbers in state investigations. The agency also recommended the 
Department consider requiring additional privacy protections from 
government agencies on releasing personal identifying information 
rather than reduce weekly reporting requirements.
    One commenter from a state Construction Trades Council noted a 
specific situation in which certified payrolls could have helped to 
verify appropriate payment of prevailing wages, but the payrolls turned 
out to be unhelpful because of contractor errors. In addition, the 
commenter was concerned that the proposed changes could cause budget 
issues as state agencies could have greater difficulty and costs in 
monitoring prevailing wage compliance and conducting investigations. 
Other commenters also suggested that any reduction in reporting burden 
as a result of the proposed rule could be offset by the potential for 
an increase in time spent by contractors and subcontractors in 
responding to subsequent investigations.
    One commenter, on behalf of its building and construction trade 
clients, opposed the proposed rule because of concerns that the comment 
period was too short, questioned whether there was any need to better 
protect worker's privacy, and disagreed that there would be any actual 
reduction in burden. The commenter suggested that the 30-day comment 
period did not provide enough time under the Administrative Procedure 
Act. Finally, the commenter noted the specific characteristics of the 
construction industry could make it more likely workers will not 
receive prevailing wages and/or fringe benefits without government 
having access to personally identifying information on weekly certified 
payrolls.
    The Building and Construction Trade Department, AFL-CIO or ``BCTD'' 
submitted comments on behalf of 13 national and international 
organizations, and more than 300 State and Local Building and 
Construction Trades Councils. In addition to making a number of points 
similar to those discussed above, BCTD suggested that the proposed rule 
did not meet the requirements of a memorandum advising federal agencies 
that significant final regulatory changes should generally be 
implemented before November 2008. BCTD also: (1) Echoed concerns of 
other commenters that the Department misread the Building & 
Construction Trades Department v. Donovan, 712 F.2d 611 (D.C. Cir, 
1983) opinion; (2) stated it did not believe the current requirements 
were ``unnecessarily intrusive and clearly outweigh the privacy 
concerns cited by DOL''; (3) noted the Office of Management and Budget 
did not mandate reductions in the collection of social security numbers 
and home addresses on certified weekly payrolls; (4) suggested the 
changes could ``embolden unscrupulous contractors and subcontractors to 
disregard their obligations;'' and (5) stated it did not believe the 
reasons offered by the Department ``individually or collectively'' 
supported the proposal.

III. Summary of Pertinent Laws

    Section 1 of the Davis-Bacon Act (DBA), as amended, 40 U.S.C. 3141 
requires that each contract over $2,000 to which the United States or 
the District of Columbia is a party for the construction, alteration, 
or repair of public buildings or public works shall contain a clause 
setting forth the minimum wages to be paid to various

[[Page 77506]]

classes of laborers and mechanics employed under the contract. The DBA 
requires contractors or their subcontractors to pay workers employed 
directly upon the site of the work no less than the locally prevailing 
wages and fringe benefits paid on projects of a similar character as 
determined by the Secretary of Labor. Regulations in 29 CFR part 5 
contain the Davis-Bacon and Related Acts required contract clauses, and 
descriptions and interpretations of the labor standards requirements.
    The Copeland Anti-Kickback Act, 40 U.S.C. 3145, requires, among 
other things, that contractors and subcontractors performing work on 
most federally financed or assisted construction contracts furnish 
weekly a statement with respect to the wages paid each worker during 
the preceding week. See 29 CFR 3.3(b), 3.4. Under the regulations, 
contractors must submit weekly a copy of all payrolls to the federal 
agency contracting for or financing the construction project, if the 
agency is a party to the contract, but if the agency is not such a 
party, the contractor will submit the payrolls to the applicant, 
sponsor, or owner, as the case may be, for transmission to the 
contracting agency. 29 CFR 5.5(a)(3)(ii)(A). A signed ``Statement of 
Compliance'' indicating the payrolls are correct and complete and that 
each laborer or mechanic has been paid not less than the proper Davis-
Bacon and Related Act prevailing wage rate for the work performed must 
accompany the payroll. Id. 3.3(b), 5.5(a)(3)(ii)(B). Regulations 
implementing the Copeland Act are contained in 29 CFR parts 3 and 5.
    The current regulations for the Davis-Bacon and Related Acts 
(DBRA), 29 CFR part 5, require that certified payrolls be provided to 
the contracting government office for each week of work: ``The payrolls 
submitted shall set out accurately and completely all of the 
information required, including `name, address, and Social Security 
number of each such worker * * *.' '' 29 CFR 5.5(a)(3)(i), (ii). These 
requirements flow down to subcontractors as well. Id. 5.5(a)(6).
    In addition to the statutory authorities above, Reorganization Plan 
No. 14 of 1950 conferred upon the Secretary of Labor the authority to 
coordinate the administration and enforcement of the labor standards 
provisions of the above laws by the federal agencies providing the 
federal funding or assistance for the covered construction activities. 
See 5 U.S.C. Appendix.
    The Secretary delegated her authority under the Davis-Bacon Act, 40 
U.S.C. 3141; the Copeland Act, 40 U.S.C. 3145; Reorganization Plan No. 
14 of 1950; the Tennessee Valley Authority Act, 16 U.S.C. 831; and the 
Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 
3701, et seq. to the Assistant Secretary for Employment Standards 
Administration. See Secretary's Order 01-2008, issued May 30, 2008, and 
published in the Federal Register on June 6, 2008 (73 FR 32424).

IV. Response to Comments and Discussion of Final Rule

    The Department appreciates the many constructive suggestions and 
criticisms of the proposal, and it has carefully considered all of the 
comments, analyses, and arguments made for and against the proposed 
changes.
    The Department has determined that its experience in enforcing the 
requirements of the Davis-Bacon and Related Acts and Copeland Act do 
not require weekly submissions to the government (in the form of 
certified payroll statements) to include complete social security 
numbers and home addresses for individual workers (alongside the 
workers' specific weekly income and benefits amounts as currently 
required). The Department finds that this information is personal to 
the worker and that any unnecessary disclosures and submittal to 
contractors, other entities, and/or the government creates an exposure 
to identity theft and the invasion of privacy for workers. The 
Department believes workers in the construction industry performing 
work on a covered project under the Davis-Bacon and Related Acts are 
entitled to have their personal addresses and social security numbers 
kept as private as possible.
    In fact, the requirements for including complete social security 
numbers and home addresses on certified payrolls does not comport with 
recent efforts to limit the use of personally identifying information 
in government generally. For example, the President recently issued 
revised Executive Order No. 9397 on November 18, 2008, which amended a 
1930s directive mandating the use social security numbers in 
interactions with government to make it permissible instead of 
mandatory: ``It is the policy of the United States that Federal 
agencies should conduct agency activity that involve personal 
identifiers in a manner consistent with protection of such identifiers 
against unlawful use.''
    Moreover, reducing the collection of information on certified 
payrolls is in accord with Office of Management and Budget guidelines. 
As noted in the NPRM, the Office of Management and Budget issued a 
Memorandum in 2007 directing government agencies to reduce ``the volume 
of collected and retained [personal identifying] information to the 
minimum necessary; [and limit] access to only those individuals who 
must have such access.'' OMB Memorandum M-07-16 at 2. Although several 
commenters disagreed, the Department reads the Memorandum as clearly 
both a directive to safeguard information and to reduce collection of 
such information where possible.
    Indeed, other government agencies have adopted privacy protection 
policies and noted the very real dangers of identity theft. As stated 
by the U.S. Social Security Administration: ``Identity theft is one of 
the fastest growing crimes in America. A dishonest person who has your 
Social Security number can use it to get other personal information 
about you. Identity thieves can use your number and your good credit to 
apply for more credit in your name. Then, they use the credit cards and 
do not pay the bills. You may not find out that someone is using your 
number until you are turned down for credit or you begin to get calls 
from unknown creditors demanding payment for items you never bought. 
Someone illegally using your Social Security number and assuming your 
identity can cause a lot of problems.'' See http://www.ssa.gov/pubs/
10064.html.
    As noted in more detail in the NPRM, Congress has also focused on 
protecting the privacy interests of workers (see, e.g., the Privacy 
Act, the Health Insurance Portability and Accountability Act (HIPAA)) 
and courts have specifically noted the privacy issues regarding public 
disclosures of certified payrolls under the Freedom of Information Act. 
See, e.g., Sheet Metal Workers Int'l Ass'n, Local No. 19 v. U.S. 
Veterans Affairs, 135 F.3d 891 (3d Cir. 1998) (disclosure of names, 
social security numbers, or addresses on certified payrolls would 
constitute unwarranted invasion of privacy); Painting Indus. Of Haw. 
Mkt. Recovery Fund v. United States Dep't of Air Force, 26 F.3d 1479 
(9th Cir. 1994) (names and addresses).
    The Department believes that the final rule strikes the appropriate 
balance between the ability to enforce the law and the need to protect 
the privacy interests of workers. Some commenters expressed concern 
that the proposed change may impact enforcement or increase costs. The 
Department, however, did not find the comments submitted compelling nor 
does the Department's enforcement experience suggest that continued 
effective enforcement and protecting the privacy interests of workers 
are mutually exclusive goals. The Department also

[[Page 77507]]

has determined that the added benefits of reducing burdens to the 
regulated community and government agencies and providing appropriate 
flexibility to Federal agencies, State agencies, and covered 
contractors and subcontractors argue in favor of the change.
    In reviewing the comments, however, the Department has decided to 
make several modifications to the proposal. In order to address the 
concern that eliminating access to social security numbers could work 
as a hardship for those monitoring compliance in circumstances where 
there are multiple employees with the same names, the Department will 
continue to require an individual identifying number on certified 
payrolls. The Department will require that, in accord with suggestions 
received from the public, that certified payrolls continue to include a 
line item for contractors and subcontractors to include an individual 
identifying number for tracking purposes, which in virtually all cases, 
should be the last four digits of the workers' social security number. 
This will substantially limit the possibility of identity theft while 
still ensuring workers can be separately identified effectively by 
auditors and investigators.
    In addition, contractors and subcontractors will be required to 
maintain and provide data to investigators demonstrating the 
appropriate payment of prevailing wages, including complete social 
security numbers and current home addresses for laborers and mechanics 
employed on covered contracts. This obligation is identified in the 
current regulations and will remain unchanged. Thus, government 
agencies and the Department of Labor remain entitled to request or 
review all relevant payroll information, including the addresses and 
social security numbers of individual workers, from contractors or 
subcontractors. In addition, prime contractors will continue to have an 
obligation to assist the government in auditing or investigating 
compliance, including assisting the government in obtaining records 
from subcontractors if necessary. In order to better delineate the 
obligations and responsibilities of contractors and subcontractors to 
cooperate and assist in audits or investigations regarding prevailing 
wage requirements, the Department has adopted the suggestion of one of 
the commenters to make this more explicit in the regulations as part of 
the final rule.
    With regard to the suggestion that the Department instead require 
better safeguards of the information, the Department believes 
contractors, subcontractors and government agencies (as well as 
applicants, sponsors, and owners where they are involved in a covered 
project) have a general obligation to safeguard the personally 
identifying information of workers. The Department, however, does not 
believe it would be appropriate to require that certified payrolls be 
subject to some sort of one-size-fits-all protection such as encryption 
or restriction to use or review by specific persons only. Each 
government agency, contractor, and subcontractor may have different 
methods of safeguarding information, and the Department does not 
believe it is in a position to mandate any particular method that will 
be appropriate to all situations. In general, the Department believes 
the best way to prevent the misuse or loss of personally identifying 
information is not to require contractors, applicants, sponsors, 
owners, or government agencies to disseminate it unless necessary for a 
compelling government interest. To the extent information must be 
gathered to ensure prevailing wage law compliance, the individual 
government agencies and regulated community are in the best position to 
decide how to manage the information received and request additional 
information so personally identifying information is not lost or 
misused. As such, the Department has declined to add or substitute 
language mandating any particular type of security for certified 
payrolls.
    With regard to concerns that any reduction in reporting will lead 
to fraud or less compliance or added costs, the Department does not 
believe the comments provide any concrete basis to support this 
allegation. Certified payrolls will continue to include all required 
wage and hour data, names and a personal identification number. Under 
the revised regulations, contractors and subcontractors will certify 
that they are maintaining the remaining information. The revised 
regulations require contractors and subcontractors to provide such 
information on request. Thus, the revised regulations do not limit the 
ability of investigators or auditors to get the appropriate 
information; rather, the revised regulations simply prevent the 
indiscriminate free-flow of personally identifiable information when 
the government has no need for it. In addition, most contractors and 
subcontractors on DBRA-covered projects make good faith efforts to 
abide by the law; violations often derive from a misunderstanding 
rather than intent. The Department does not believe this will change 
simply because the regulated community is no longer required to report 
their employees' home addresses and full social security numbers every 
week on certified payrolls. Moreover, contractors and subcontractors 
that falsify certify required certifications will continue to be 
subject to possible civil and criminal prosecution. See 29 CFR 
5.5(a)(ii)(D).
    With regard to suggestions that there is no evidence this change is 
necessary, the Department disagrees. Although the Department is unaware 
of any organized identity theft activity utilizing certified payrolls, 
there are daily examples of accidental disclosures of personally 
identifying information or intentional theft of such information. For 
example, on December 5, 2008, the Wall Street Journal reported that a 
state-level agency accidentally put the Social Security numbers of 
about 250,000 job seekers on the Internet for 19 days before a separate 
state agency noticed the security breach. The federal government has 
also lost computers or data containing significant amounts of 
personally identifying information (PII), including social security 
numbers and personal addresses. See, e.g., http://www.usa.gov/
veteransinfo.shtml (discussing 2006 PII data breaches/ computer 
thefts). Similarly, cities and labor unions have had identity theft 
occur in circumstances where personally identifying information is 
required to be disclosed to labor unions by the government. See, e.g., 
Bell v. Michigan Council 25, No. 246684, 2005 WL 356306 (Mich. App. 
Feb. 15, 2005) (City of Detroit employees and members of AFSCME Local 
1023 sued union local and union treasurer for negligence when they 
suffered identity theft at hands of union treasurer's daughter). While 
it is unquestionable that government uses PII for legitimate purposes 
in many instances, there is certainly an interest in reducing the 
gathering and storing of PII to prevent the opportunity for identity 
theft and invasion of privacy. Moreover, the burden reduction 
identified below for the regulated community suggests there are added 
benefits that outweigh any alleged costs.
    Several commenters questioned the Department's interpretation of 
Building & Const. Trades' Dept., AFL-CIO v. Donovan, 712 F.2d 611 (D.C. 
Cir. 1983). The court in that case held that the Copeland Act required 
covered contractors and subcontractors performing work on most 
federally financed or assisted construction contracts to furnish weekly 
a statement with respect to the wages paid each worker during the 
preceding week. Importantly, however, the court noted that there was no 
specific requirement

[[Page 77508]]

for what individualized wage information for each covered worker was 
necessary on the certified payroll submissions. See id. at 633. As 
noted in the NPRM, the Department does not believe there is any 
statutory requirement that the Department require social security 
numbers or addresses on certified payroll and a clear reading of the 
statutory law and the decision is that the Department has discretion 
for the specific requirements of weekly disclosures as long as the 
disclosures provide an appropriate amount of information. The 
Department therefore disagrees with the commenters' alternative 
characterization of the court's decision.
    Similarly, one commenter's suggestion that there is some 
impropriety to the proposal based on the 30-day comment period under 
the Administrative Procedure Act is mistaken. The APA does not specify 
a particular comment period. For the very minor nature of the proposal 
in this case, 30 days is not overly short. Moreover, only a few 
commenters (all of whom were members of Congress) requested an 
extension at all, so there is no evidence the short period limited the 
public in their attempts to provide meaningful comments.
    The Department also does not find that a May 2008 Memorandum from 
the White House Chief of Staff limits its right to finalize this rule 
as commenters suggested. The Memorandum specifically states that it was 
not intended to alter or impede government agencies in performing their 
responsibilities and that part of its purpose is to ensure agencies 
design regulations to minimize costs and maximize benefits. Therefore, 
the Department notes the May 2008 Memorandum does not preempt the 2007 
OMB Memorandum M-07-16 discussed above nor the President's revised 
Executive Order No. 9397 of November 18, 2008--both of which promote 
agency compliance with limiting the collection and use generally of 
personally identifying information.
    With regard to addresses of covered construction workers, it should 
be noted that this is not a substantial change to the current certified 
payroll requirements. The instructions to WHD's optional Form WH-347, 
which is a model for certified payroll submissions, currently specifies 
that addresses are only required for the first time the laborer or 
mechanic performs work on the contract and whenever there is a change 
of address. The final rule further limits that disclosure slightly by 
bringing the regulatory provisions in line with information collection 
needs--requiring contractors and subcontractors to make addresses and/
or social security numbers of covered workers available to DOL or other 
government agency investigators and auditors upon request but not in 
weekly reports that are disseminated to a wider audience.
    Accordingly, after a detailed review of the comments provided and 
consideration of the regulation in accordance with statutory 
requirements, the Department has determined that the requirement to 
furnish weekly a detailed payroll with respect to the wages paid each 
employee during the preceding week can be satisfied by a weekly 
submission of a payroll without home addresses and complete social 
security numbers. The regulatory changes merely remove the requirement 
to include a complete social security number and home address of each 
individual worker from documents that are provided weekly to the 
workers' non-employing government agencies, contractors, 
subcontractors, applicants, sponsors, and/or owners.
    This change is in keeping with the Administration's overall 
objective of protecting the privacy interests of this nation's workers 
and reducing reporting burdens imposed on the public. Also, the 
Department believes the current requirement creates a burden on 
contractors and the government to safeguard copies of certified 
payrolls containing this type of personally identifying information 
regarding each week of every covered project. For example, one 
commenter noted a frequent need to redact just this sort of information 
in response to Freedom of Information Act (FOIA) requests. By removing 
this information from certified payrolls, the government will have less 
information to redact in responding to entities requesting copies of 
certified payrolls under the FOIA, which will save the government time 
and costs as well as improve speed in responding to such requests from 
the public.
    Importantly, the final regulation does not change the requirement 
that the addresses and social security numbers of covered workers be 
maintained and made available to government agencies upon request to 
permit government agencies to investigate compliance with the 
requirements of the Davis-Bacon and Related Acts and/or Copeland Act, 
29 CFR 5.5(a)(3)(i), (iii). In response to commenters noting some 
difficulty with retrieving this type of information upon occasion, 
however, the Department is providing explicitly in the revised text of 
the regulatory provisions (which is incorporated into covered 
construction contracts) that contractors and subcontractors must 
maintain this information and make it available upon request to 
government investigators and auditors.
    Two implementing changes are needed to other aspects of the 
regulations to bring them in line with the final rule. WHD's optional 
Form WH-347, which is a model for certified payroll submissions, is to 
be amended to reflect these requirements and was the subject of a 
Paperwork Reduction Act notice as discussed more fully below. A 
conforming change to the certification required for certified payrolls 
is also included in the final rule regulatory text (changing the 
certification to that required to be provided by the final rule).
    The Department received no comments on two issues noted in the 
proposal and so is implementing the two ministerial changes to reflect 
current practices. The first of these eliminates references in the 
regulations to Form WH-348, as the agency no longer sponsors the form. 
See 29 CFR 3.3(b). The information previously presented on Form WH-348 
appears on Form WH-347 and was duplicative. In addition, the rule 
revises how interested parties may obtain Form WH-347, as the form is 
no longer available for purchase through the Government Printing 
Office. See 29 CFR 3.3(b) and 5.5(a)(3)(ii)(A).
    Also, because the changes being made are minor and result in a net 
reduction in burden, the Department has determined that a 30-day 
effective date is appropriate. See section XVI below.

V. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has assigned control 
number 1215-0149 to the Davis-Bacon Certified Payroll information 
collection. In accordance with the Paperwork Reduction Act of 1995 
(PRA), the October 20, 2008, NPRM solicited comments on the proposed 
revisions to this information collection. 44 U.S.C. 3506(c)(2). The 
Department also submitted a contemporaneous request for OMB review of 
the proposed revisions, in accordance with 44 U.S.C. 3507(d). On 
October 28, 2008, the OMB issued a notice that continued the current 
authority for existing information collection requirements. The OMB 
also asked the Department to resubmit the information collection 
request upon promulgation of a final rule and after considering public 
comments on the NPRM. While the Department received comments regarding 
substantive aspects of the information collection, no comments directly 
addressed the methodology for

[[Page 77509]]

estimating the public burden under the PRA.
    Under the final rule, the contractor's staff must still perform a 
search/research function to pull each employee's social security number 
from its records to encode the last four digits as an identifier, and 
the burden computation for the final rule must include all the time 
involved in searching for and compiling the required data. Thus, there 
will be less of a reduction in burden for omitting portions of the 
Social Security numbers that are not put onto the weekly certified 
payroll report forms. DOL therefore is amending the burden reduction in 
the estimate from the original two minutes to a one minute reduction 
(per response). Accordingly, the Department has revised its estimate 
that each response to this information collection takes approximately 
54 minutes to 55 minutes. In order to facilitate a full understanding 
of all the issues involved and avoid unnecessary duplicative 
statements, public comments addressing the information collection 
requirements imposed by this final rule are discussed in the comment 
summary portion of this preamble.
    Interested parties may obtain a prototype Davis-Bacon Certified 
Payroll, Form WH-347, via the Wage and Hour Division's Forms Web site 
at http://www.dol.gov/esa/whd/forms/wh347instr.htm, by contacting the 
Wage and Hour Division at 1-866-4US-WAGE (1-866-487-9243), or by 
visiting a Wage and Hour Division District Office. A list of District 
Office addresses is available on the Internet at http://www.dol.gov/
esa/whd/america2.htm. Form WH-347 is also available through the 
forms.gov Web site. While use of Form WH-347 is optional, it is 
mandatory for contractors performing on covered projects to provide the 
information specified in 29 CFR 3.3, 5.5(a)(3). Responses are not 
confidential; however, FOIA exemptions may allow for the redaction of 
certain information that respondents submit. In addition, the 
Department as well as contracting agencies use the information provided 
in administering the labor standards provisions of covered Federally 
financed or assisted construction projects. The information also may be 
used in administrative and legal proceedings.
    Generally, an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. 5 CFR 1320.8(b)(3)(vi). 
The Department has resubmitted the revised Davis-Bacon Certified 
Payroll information collection to the OMB for approval, and the 
Department intends to publish a notice announcing the OMB's decision 
regarding this information collection request. A copy of the 
information collection request can be obtained at http://
www.RegInfo.gov or by contacting the Wage and Hour Division as shown in 
the FOR FURTHER INFORMATION CONTACT section of this preamble. The terms 
of the existing information collection authorization will remain in 
effect until the OMB finally approves the new information collection 
request or this final rule takes effect on January 18, 2009, whichever 
date is later.
    Purpose and Use: The Copeland Act requires contractors and 
subcontractors performing work on most federally financed or assisted 
construction contracts to furnish weekly a statement with respect to 
the wages paid each worker during the preceding week. See 40 U.S.C. 
3145; 29 CFR 3.3(b), 3.4. Contractors must submit weekly a copy of all 
payrolls to the federal agency contracting for or financing the 
construction project, if the agency is a party to the contract, but if 
the agency is not such a party, the contractor will submit the payrolls 
to the applicant, sponsor, or owner, as the case may be, for 
transmission to the contracting agency. 29 CFR 5.5(a)(3)(ii)(A). A 
signed ``Statement of Compliance'' indicating the payrolls are correct 
and complete and that each laborer or mechanic has been paid not less 
than the proper Davis-Bacon Act prevailing wage rate for the work 
performed must accompany the payroll. Id. 3.3(b), 5.5(a)(3)(ii)(B). 
Contractors must also maintain these records for three years after 
completion of the work. Id. 3.4(b), 5.5(a)(3)(i).
    More specifically, the current regulations require contractors 
performing work on projects subject to Davis-Bacon Act provisions to 
retain the name, address, social security number, correct 
classification, hourly rates of wages paid (including rates of 
contributions or costs anticipated for bona fide fringe benefits or 
cash equivalents thereof of the types described in Davis-Bacon Act 
section 1(b)(2)(B)), daily and weekly number of hours worked, 
deductions made, and actual wages paid to each worker on the contract. 
Id. 5.5(a)(3)(i). Whenever the Secretary of Labor has found under 29 
CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the 
amount of any costs reasonably anticipated in providing benefits under 
a plan or program described in Davis-Bacon Act section 1(b)(2)(B), the 
contractor must maintain records showing that the commitment to provide 
such benefits is enforceable, that the plan or program is financially 
responsible, that the plan or program has been communicated in writing 
to the laborers or mechanics affected, and the anticipated or actual 
costs incurred in providing such benefits. Id. Contractors employing 
apprentices or trainees under approved programs must maintain written 
evidence of the registration of apprenticeship programs and 
certification of trainee programs, the registration of the apprentices 
and trainees, and the ratios and wage rates prescribed in the 
applicable programs. Id.
    Under this final rule, the Department is only removing the 
regulatory requirement that the weekly payroll submitted to the 
contracting agency contain each worker's entire social security number 
and address. The proposal does not remove the requirement for worker 
addresses and social security numbers to be retained in records 
maintained by the contractor or subcontractor. Id. 5.5(a)(3)(i). See 
also id. 5.5(a)(6). Government contracting officials and WHD staff may 
use the records maintained by contractors and subcontractors as well as 
the weekly certified payrolls to verify payment of the required wages 
for the work performed.
    The Department has developed optional use Form WH-347, Payroll 
Form, which contractors may use to meet the payroll reporting 
requirements. Id. 3.3(b), 5.5(a)(3)(ii)(A). The form contains the basic 
payroll information that contractors must furnish each week they 
perform any work subject to Davis-Bacon Act provisions. The contractor 
also completes, dates, and signs a statement on the reverse side of the 
form to meet the certification requirement. The contractor submits the 
completed form weekly to the contracting agency. 29 CFR 
5.5(a)(3)(ii)(A).
    Information Technology: In accordance with the Government Paperwork 
Elimination Act (GPEA), 44 U.S.C. 3504, the WHD has posted Form WH-347 
on the Internet (http://www.dol.gov/esa/whd/forms/wh347.pdf) in a 
printable and fillable format that automatically performs some 
mathematical calculations. Individual contracting agencies determine 
any electronic submission options, because contractors submit the 
information directly to each contracting agency, not to the Department. 
29 CFR 5.5(a)(3)(ii)(A).
    In 2004, WHD issued a letter to the U.S. Army Corps of Engineers 
and the Federal Highway Administration advising that the submission of 
electronic signatures satisfied the

[[Page 77510]]

requirements of the Copeland Act and its regulations. Similarly, the 
submission of photocopies or other automated duplication of the 
contractor's regular payrolls containing all of the required 
information pertinent to the government construction project(s) is 
sufficient to satisfy the payroll data requirements. 29 CFR 
5.5(a)(3)(ii)(A).
    A number of commenters on the proposed rule noted that there were 
additional applications and methods to improve efficiency in satisfying 
regulatory requirements and all commenters who discussed the issue 
endorsed additional use of technology, including electronic filing of 
certified payrolls. It is the Department's understanding that Web-based 
certified payroll compliance solutions exist and that some agencies and 
contractors have set up systems to comply electronically already. While 
a number of commenters suggested that the Department further study and 
endorse these initiatives, the Department of Labor has determined that 
specific methods of implementing cost savings and efficiencies through 
more effective use of technology are best left to the contracting 
community and individual government agencies. DOL encourages all 
government agencies to review proposals to allow contractors to submit 
information electronically or through allowing access to an appropriate 
agency approved limited-access Web-based portal providing the required 
information and certification. The Department believes these efforts, 
if properly reviewed and implemented in accord with this final rule and 
data privacy requirements, will decrease burden, increase the efficient 
use of resources and better ensure timely submission of certified 
payrolls to improve compliance. The Department therefore supports 
agencies in exploring and implementing any additional methods to 
improve efficient compliance with the certified payroll requirements.
    Public Burden Estimates: This final rule introduces no new 
information collection requirements nor proposes any substantive or 
material changes to the existing information collection requirements 
noted above. The Department, however, is removing the requirement to 
report an employee's entire social security number and home address 
weekly, which the Department estimates will reduce the average 
reporting time from an average of 56 minutes per response to 55 minutes 
per response.
    The Department bases the following burden estimates for this 
information collection on agency experience, except as otherwise noted. 
F.W. Dodge Report data for the period June 1, 2007, through May 31, 
2008, indicate there were 109,323 State and local construction projects 
and 3032 federal construction projects. The Department estimates that 
approximately 33 percent of State and local construction projects 
utilize federal funds, resulting in an estimated 36,077 State and local 
construction projects being subject to Davis-Bacon labor standards 
(109,323 projects x 33 percent). Added to the 3032 federal projects, 
this would be an estimated 39,109 annual projects subject to Davis-
Bacon labor standards.
    The Department estimates these projects have an average of 8 
contractors or subcontractors, resulting in 312,872 individual 
contractor and subcontractor projects (39,109 projects x 8 contractors 
and subcontractors per project = 312,872 individual projects).
    To yield the estimated number of respondents, the Department 
estimates that, on a per capita basis, each covered construction 
contractor annually works on an average of four projects subject to 
Davis-Bacon Act provisions. Thus, 312,872 individual projects divided 
by 4 Davis-Bacon projects per contractor equals 78,218 respondents.
    The Department also estimates that a typical contractor or 
subcontractor on average submits 23 certified payrolls per individual 
project. Thus, 312,872 individual projects multiplied by 23 weekly 
responses equal 7,196,056 total annual responses.
    The 7,196,056 responses multiplied by 55 minutes (estimated time to 
complete Form WH-347 or its equivalent) equal 395,783,080 minutes or 
6,596,385 hours (rounded).
    An agency may not conduct an information collection unless it has a 
currently valid OMB approval and the Department has submitted the 
identified information collections contained in the rule to the OMB for 
review under the PRA. See 44 U.S.C. 3507(d); 5 CFR 1320.11. Please note 
that the current authorization for the Davis-Bacon Certified Payroll 
information collection expires April 30, 2009. On December 1, 2008, the 
Department's routine Paperwork Reduction Act notice for extension of 
the existing Davis-Bacon information collection requirements that are 
also the subject of this final rule closed. 73 FR 57153. No comments 
were received.

VI. Executive Order 12866; Small Business Regulatory Enforcement 
Fairness Act; Regulatory Flexibility

    This rule is not economically significant within the meaning of 
Executive Order 12866, or a ``major rule'' under the Unfunded Mandates 
Reform Act or Section 801 of the Small Business Regulatory Enforcement 
Fairness Act.
    The Department believes that a reduction in the amount of 
information required on certified payrolls provided weekly under Davis-
Bacon is a reduction in regulatory compliance costs. While some 
contractors may have to slightly reconfigure their systems to produce 
the revised version, most have access to computerized systems that can 
easily be revised to remove data. Those contractors who currently use 
the optional WH Form will actually have an overall decrease of total 
administrative costs.
    Conclusion: The Department concludes that incorporating these 
changes into the Davis-Bacon regulations will not impose any measurable 
costs on any private or public sector entity.
    Furthermore, because the rule will not impose any measurable costs 
on employers, the Department certifies that it would not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, the Department need not prepare a regulatory flexibility 
analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Department has certified this conclusion to the Chief Counsel for 
Advocacy of the Small Business Administration.

VII. Unfunded Mandates Reform Act

    This rule has been reviewed in accordance with the Unfunded 
Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501 et seq. For the 
purposes of the UMRA, the Department certifies that this rule does not 
impose any federal mandate that may result in increased expenditures by 
State, local, or tribal governments, or increased expenditures by the 
private sector, of more than $100 million in any year.

VIII. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, Aug. 
10, 1999). This rule does not have federalism implications as outlined 
in E.O. 13132. The rule does not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government.

[[Page 77511]]

IX. Executive Order 13175, Indian Tribal Governments

    The Department has reviewed this rule under the terms of Executive 
Order 13175 and determined it did not have ``tribal implications.'' The 
rule does not have ``substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the federal government and Indian tribes.'' As a result, no tribal 
summary impact statement has been prepared.

X. Effects on Families

    The Department certifies that this rule will not adversely affect 
the well-being of families, as discussed under section 654 of the 
Treasury and General Government Appropriations Act, 1999.

XI. Executive Order 13045, Protection of Children

    The Department has reviewed this rule under the terms of Executive 
Order 13045 and determined this action is not subject to E.O. 13045 
because it is not economically significant as defined in E.O. 12866 and 
it does not impact the environmental health or safety risks of 
children.

XII. Environmental Impact Assessment

    The Department has reviewed this rule in accordance with the 
requirements of the National Environmental Policy Act of 1969 (NEPA), 
42 U.S.C. 4321 et seq., the regulations of the Council of Environmental 
Quality, 40 CFR part 1500 et seq., and the Departmental NEPA 
procedures, 29 CFR part 11, and determined that this rule will not have 
a significant impact on the quality of the human environment. There is, 
thus, no corresponding environmental assessment or an environmental 
impact statement.

XIII. Executive Order 13211, Energy Supply

    The Department has determined that this rule is not subject to 
Executive Order 13211. It will not have a significant adverse effect on 
the supply, distribution or use of energy.

XIV. Executive Order 12630, Constitutionally Protected Property Rights

    The Department has determined that this rule is not subject to 
Executive Order 12630 because it does not involve implementation of a 
policy ``that has taking implications'' or that could impose 
limitations on private property use.

XV. Executive Order 12988, Civil Justice Reform Analysis

    The Department drafted and reviewed this final rule in accordance 
with Executive Order 12988 and determined that the rule will not unduly 
burden the federal court system. The rule was: (1) Reviewed to 
eliminate drafting errors and ambiguities; (2) written to minimize 
litigation; and (3) written to provide a clear legal standard for 
affected conduct and to promote burden reduction.

XVI. Dates of Applicability

    The revisions to Sec.  5.5(a)(3)(ii)(A) and (B)(1) of Part 5 shall 
be applicable only as to contracts entered into pursuant to invitations 
for bids issued or negotiations concluded on or after the effective 
date of this rule, which is January 18, 2009.

List of Subjects

29 CFR Part 3

    Government contracts, Labor, Paperwork, Law enforcement.

29 CFR Part 5

    Government contracts, Labor, Paperwork, Law enforcement.

    Signed at Washington, DC, this 11th day of December 2008.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division.

0
For the reasons set forth above, Title 29, Subtitle A of the Code of 
Federal Regulations is amended by amending parts 3 and 5 as follows:

PART 3--CONTRACTORS AND SUBCONTRACTORS ON PUBLIC BUILDING OR PUBLIC 
WORK FINANCED IN WHOLE OR IN PART BY LOANS OR GRANTS FROM THE 
UNITED STATES

0
1. The authority citation for Part 3 is revised to read as follows:

    Authority: R.S. 161, sec. 2, 48 Stat. 848; Reorg. Plan No. 14 of 
1950, 64 Stat. 1267; 5 U.S.C. 301; 40 U.S.C. 3145; Secretary's Order 
01-2008; and Employment Standards Order No. 2001-01.


0
2. Amend Sec.  3.3 by revising paragraph (b) to read as follows:


Sec.  3.3  Weekly statement with respect to payment of wages.

* * * * *
    (b) Each contractor or subcontractor engaged in the construction, 
prosecution, completion, or repair of any public building or public 
work, or building or work financed in whole or in part by loans or 
grants from the United States, shall furnish each week a statement with 
respect to the wages paid each of its employees engaged on work covered 
by this part 3 and part 5 of this title during the preceding weekly 
payroll period. This statement shall be executed by the contractor or 
subcontractor or by an authorized officer or employee of the contractor 
or subcontractor who supervises the payment of wages, and shall be on 
the back of Form WH 347, ``Payroll (For Contractors Optional Use)'' or 
on any form with identical wording. Copies of Form WH 347 may be 
obtained from the Government contracting or sponsoring agency or from 
the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/
forms/wh347instr.htm or its successor site.
* * * * *

PART 5--LABOR STANDARDS PROVISIONS APPLICABLE TO CONTRACTS COVERING 
FEDERALLY FINANCED AND ASSISTED CONSTRUCTION (ALSO LABOR STANDARDS 
PROVISIONS APPLICABLE TO NONCONSTRUCTION CONTRACTS SUBJECT TO THE 
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT)

0
3. The authority citation for part 5 is revised to read as follows:

    Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization 
Plan No. 14 of 1950, 5 U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 
U.S.C. 3145; 40 U.S.C. 3148; 40 U.S.C. 3701 et seq.; and the laws 
listed in 5.1(a) of this part; Secretary's Order 01-2008; and 
Employment Standards Order No. 2001-01.


0
4. Amend Sec.  5.5 paragraphs (a)(3)(ii)(A) and (a)(3)(ii)(B)(1 ) by 
revising to read as follows:


Sec.  5.5  Contract provisions and related matters.

    (a) * * *
    (3) * * * (ii)(A) The contractor shall submit weekly for each week 
in which any contract work is performed a copy of all payrolls to the 
(write in name of appropriate federal agency) if the agency is a party 
to the contract, but if the agency is not such a party, the contractor 
will submit the payrolls to the applicant, sponsor, or owner, as the 
case may be, for transmission to the (write in name of agency). The 
payrolls submitted shall set out accurately and completely all of the 
information required to be maintained under 29 CFR 5.5(a)(3)(i), except 
that full social security numbers and home addresses shall not be 
included on weekly transmittals. Instead the payrolls shall only need 
to include an individually

[[Page 77512]]

identifying number for each employee (e.g., the last four digits of the 
employee's social security number). The required weekly payroll 
information may be submitted in any form desired. Optional Form WH-347 
is available for this purpose from the Wage and Hour Division Web site 
at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor 
site. The prime contractor is responsible for the submission of copies 
of payrolls by all subcontractors. Contractors and subcontractors shall 
maintain the full social security number and current address of each 
covered worker, and shall provide them upon request to the (write in 
name of appropriate federal agency) if the agency is a party to the 
contract, but if the agency is not such a party, the contractor will 
submit them to the applicant, sponsor, or owner, as the case may be, 
for transmission to the (write in name of agency), the contractor, or 
the Wage and Hour Division of the Department of Labor for purposes of 
an investigation or audit of compliance with prevailing wage 
requirements. It is not a violation of this section for a prime 
contractor to require a subcontractor to provide addresses and social 
security numbers to the prime contractor for its own records, without 
weekly submission to the sponsoring government agency (or the 
applicant, sponsor, or owner).
    (B) * * *
    (1) That the payroll for the payroll period contains the 
information required to be provided under Sec.  5.5 (a)(3)(ii) of 
Regulations, 29 CFR part 5, the appropriate information is being 
maintained under Sec.  5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and 
that such information is correct and complete;
* * * * *
 [FR Doc. E8-29886 Filed 12-18-08; 8:45 am]

BILLING CODE 4510-27-P