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OCR Page 1 of 12Site of work
LAW OFFICES
Davis Bacon
SHERMAN, DUNN, COHEN, LEIFER & YELLIG, P.C.
1125 FIFTEENTH street, N.W.
SUITE 801
LAURENCE J. COHEN
ELIHU 1. LEIFER
WASHINGTON, D.C. 20005
LOUIS SHERMAN
TERRY R. YELLIG
(1912-1996)
RICHARD M. RESNICK
THOMAS X. DUNN
ROBERT D. KURNICK
(1911-1991)
VICTORIA L. BOR
NORA H. LEYLAND
June 19, 2000
MARTIN J. CRANE
AREA CODE 202
sue D. GUNTER
785-9300
JONATHAN D. NEWMAN
JAMES E. RUBIN
FACSIMILE
(202) 775-1950
MEMORANDUM
TO:
Edward C. Sullivan, BCTD President
FROM:
Terry R. Yellig TRY
RE:
Use of Interim Final Rulemaking by DOL to Change the Definition
of "Site of the Work" in Its Davis-Bacon Regulations, 29 C.F.R.
§5.2(I).
I understand that Karen Tramontano, Deputy Chief of Staff to the President, has asked the
BCTD to provide a detailed analysis of why promulgation as an interim final rule of a new definition
of the "site of the work," without first giving the public notice in the Federal Register and an
opportunity to submit comments on the regulation, can withstand a challenge in court by the ABC
and/or some other organization such as the AGC or the Chamber of Commerce.
APPLICABLE LAW
Section 553 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§551-559, generally
requires federal agencies to provide notice of a rule thirty days before it becomes effective and to
give the public an opportunity to comment on it. See 5 U.S.C. §553(b)-(d). The following "good
cause" exception to these notice and comment requirements provides that they can be bypassed:
(B) when the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.
5 U.S.C. §553(b)(B). Consequently, when the "good cause" exception applies, an agency need not
provide notice of proposed rulemaking and/or consider comments received in response to the notice
before implementing a new regulation, as 5 U.S.C. §553(c) would otherwise require.
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