Labor Certification Process for the Temporary Employment of Nonimmigrant Aliens in Agriculture in the United States; Administrative Measures To Improve Program Performance

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 654 and 655

RIN 1205--AB19

Labor Certification Process for the Temporary Employment of

Nonimmigrant Aliens in Agriculture in the United States; Administrative

Measures To Improve Program Performance

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Proposed rule.

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SUMMARY: The Employment and Training Administration (ETA) of the

Department of Labor proposes to amend its regulations relating to the

temporary employment of nonimmigrant agricultural workers (H-2A

workers) in the United States. The proposed amendments would reduce the

period of time from 30 days to 15 days prior to the date worker housing

will be occupied that employers are required to assure that their

housing is in full compliance with applicable housing standards, and

will be available for a pre-occupancy housing inspection; reduce the

time from 60 to 45 days before the date the employer needs agricultural

workers that an application for temporary agricultural labor

certification must be filed; provide an exception to the requirement

that employers use registered farm labor contractors (FLC) when it is

the prevailing practice in an area and occupation for non-H-2A

employers to use such contractors, if a particular FLC has a

demonstrated history of using undocumented aliens or serious labor

standard violations; eliminate the requirement that employers notify

the local Job Service office in writing of the date the H-2A workers

depart for the employer's place of employment; and transfer the

responsibility for approving H-2A visa petitions for workers outside of

the United States, including petition approval for replacement of

certified H-2A workers upon proof of the H-2A workers' repatriation, to

the Department of Labor from the Commissioner, Immigration and

Naturalization Service.

These proposals represent part of an ongoing effort to streamline

and improve the operation of the H-2A program. This proposal discusses

program changes being implemented administratively as well as proposals

for regulatory changes for public review and comment.

DATES: Interested persons are invited to submit written comments on the

proposed rule on or before December 1, 1998.

ADDRESSES: Submit written comments to the Assistant Secretary for

Employment and Training, U.S. Department of Labor, 200 Constitution

Avenue, NW., Room N-4456, Washington, DC 20210, Attention: John R.

Beverly, III, Director, U.S. Employment Service.

FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,

Division of Foreign Labor Certifications, Employment and Training

Administration, 200 Constitution Avenue NW., Room N-4456, Washington,

DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Statutory Standard and Implementing Regulations

The decision whether to grant or deny an employer's petition to

import a nonimmigrant farm worker to the United States for the purpose

of temporary employment is the responsibility of the Attorney General's

designee, the Commissioner of the Immigration and Naturalization

Service (INS). The Immigration and Nationality Act (INA) (8 U.S.C. 1101

et seq.) provides that the Attorney General may not approve such a

petition from an employer for employment of nonimmigrant farm workers

(H-2A visa holders) for temporary or seasonal services or labor in

agriculture unless the petitioner has applied to the Secretary of Labor

(Secretary) for a labor certification showing that:

(A) There are not sufficient U.S. workers who are able, willing,

and qualified and who will be available at the time and place needed to

perform the labor or services involved in the petition; and

(B) The employment of the alien in such labor or services will not

adversely affect the wages and working conditions of workers in the

United States similarly employed.

[8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.]

The Department of Labor has published regulations at 20 CFR part

655, subpart B, and 29 CFR part 501 to implement its responsibilities

under the H-2A program. Regulations affecting employer-provided

agricultural worker housing are in 20 CFR part 654, subpart E, and 29

CFR 1910.42.

II. Plan To Improve H-2A Program

The Administration has, for some time, been pursuing a dialogue

among the Departments of State, Justice (INS), Labor and Agriculture

regarding possible changes to the H-2A temporary nonimmigrant program

(H-2A program) that could help streamline the program, improve

operations, and address complaints raised by some users of the program

without weakening worker protections. The General Accounting Office

(GAO) and the Department's Office of Inspector General (OIG) have

recently completed in-depth reviews of the H-2A program, providing

useful analysis and findings and making several recommendations for

program changes, many of which have been accepted by the administering

agencies. This rulemaking represents the first step towards

implementing changes to improve operations of the H-2A program, putting

forward a number of proposals for regulatory changes affecting DOL and

INS activities and requirements. In addition, DOL describes below some

program changes being implemented administratively. DOL is continuing

to explore other ways to further streamline and improve the operation

of the H-2A program and welcomes input and dialogue with the affected

public on other key H-2A issues.

A. Administrative Changes

Some H-2A program changes made to enhance effectiveness and

efficiency while maintaining worker protections were made by

administrative directives in the form of Field Memoranda (FM) issued by

the ETA national office to its 10 Regional Administrators (RA). The

RA's make determinations on H-2A labor certification applications and

provide functional guidance to the State Employment Security Agencies

(SESA) which administer the H-2A program under 20 CFR part 655, subpart

B--Labor Certification Process for Temporary Agricultural Employment in

the United States. Administrative changes made by FM 17-9, issued

January 6, 1997, Subject: Improvements in H-2A processing included:

Clarifying under what conditions U.S. workers are

considered to be ``available'' and thus may be counted to fully or

partially deny H-2A positions requested on employers' labor

certification applications. Only those U.S. workers who are identified

by name, address, and social security number can be counted to reduce

the number of H-2A workers requested by an employer.

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Emphasizing that regional offices should use discretion in

reducing the number of certified positions requested as a result of

``last minute'' replacements of recruited U.S. workers where historical

records of similar last minute referrals, or other information,

indicate the likelihood that a proportion of the referred workers would

not make themselves available for work.

Clarifying positive recruitment requirements of U.S. farm

workers in areas where there are credible reports of ``a significant

number of qualified U.S. workers, who, if recruited, would likely be

willing to make themselves available for work at the time and place

needed,'' thereby targeting recruitment efforts by employers and SESA's

to those areas most likely to produce qualified and available U.S.

workers.

Encouraging routine posting of approved agricultural job

orders on America's Job Bank in view of the increased use of this

resource on the part of employers and U.S. workers.

FM Number 22-98, issued April 14, 1998, Subject: Clarification of

Transportation Requirements Home, reaffirms and clarifies the

regulatory provisions which allow H-2A workers to move from one

certified employer to another and the requirement placed on the final

H-2A employer to pay for (or provide) the worker's transportation home.

The Department is also committed to improving its performance in

meeting the existing requirement that within 7 days after the initial

receipt of an employer's application, the employer be notified of

deficiencies that preclude acceptance of the application, and to meet

the statutory requirement to issue certification (when such

certification is warranted) at least 20 days prior to the employer's

first date of need for agricultural workers.

B. H-2A Process Improvements Through Regulatory Amendments

The amendments being proposed by ETA are discussed below.

1. Time Limits for Employer Provided Housing To Be Available for

Inspection

Currently Sec. 654.403 of the regulations governing housing for

agricultural workers (20 CFR part 654, subpart E) provides that, for

employers to gain conditional access to the intrastate or interstate

agricultural clearance system, which is used for recruitment of non-

local workers, they must provide assurances that the employer-provided

housing will be in full compliance with the applicable standards 30

days before the housing is to be occupied. This is to allow time for a

pre-occupancy housing inspection by the local Employment Service

office. The housing regulations apply to all non-local agricultural job

opportunities filled through the Employment Service system whether or

not they are H-2A related. Reducing this lead time addresses a

frequently expressed concern of employers that a 1-month lead time for

employer-provided housing to meet applicable standards is not always

realistic. This concern is especially common among employers in

Northern States that need workers in March or April. Additionally,

local employment service staff have had difficulty inspecting employer-

provided housing located in Northern States in late winter or early

spring. To address this problem, the proposed regulation will reduce

the time that worker housing must be available for a pre-occupancy

housing inspection from 30 to 15 days prior to occupancy. ETA is

convinced that the ``30-day assurance'' can be reduced without

lessening protections provided to U.S. and foreign workers.

2. Reduction in Time Limit To File Labor Certification Applications

The regulation at Sec. 655.101(c) requires that employers file an

H-2A labor certification application no less than 60 days before the

first date the employer estimates the H-2A workers will be needed.

Based on program experience, little or no productive recruitment of

U.S. workers occurs within the first 15 days after the application is

received. The overwhelming majority of qualified U.S. workers do not

apply for and make a commitment to temporary agricultural employment

earlier than 45 days before the date their services are required.

Further, a lead time of 45 days should allow sufficient time for DOL to

review the application and meet the requirements to notify an employer

of any deficiencies within 7 days and to issue the labor certification

not later than 20 days before the first date of need. See 8 U.S.C.

1188(c)(2)(A) and (c)(3)(A). Consequently, DOL is proposing to amend

the regulation at Sec. 655.101(c) to provide that H-2A applications

shall be filed with the Regional Administrator no less than 45 calendar

days before the first date of need, as was recommended by the GAO.

3. Exception From Using Certain Farm Labor Contractors

The regulations at Sec. 655.103(f) require that employers applying

for H-2A labor certification must attempt to secure workers through

farm labor contractors (FLC), and to compensate FLC's with an override

for their services when it is the prevailing practice in the area for

non-H-2A agricultural employers to use FLC's. This requirement

recognizes that FLC's can be an effective source for recruiting U.S.

workers for jobs that would otherwise be filled by foreign temporary

workers. In some instances, FLC's have filled these jobs with

unauthorized workers and created potential vulnerabilities for growers

when the unauthorized workers are identified during INS enforcement

actions. At the same time, the furnishing of unauthorized workers--even

under the terms and conditions of an H-2A job order--can have an

adverse impact on U.S. workers. Similarly, when an FLC has a

demonstrated history of serious labor violations, employers should not

be compelled to provide an opportunity for recurrence of such

violations, nor incur a potential liability due to violations by their

contractor.

To minimize adverse effects on U.S. workers and to help assure that

employers do not inadvertently employ unauthorized workers hired and

supplied by FLC's, or expose themselves to potential liability by using

an FLC that has a history of serious violations of labor standards, an

amendment is being proposed to the current regulation to provide an

exception. The employer need not use an FLC on the Wage and Hour

Division's list of contractors whose certificates have been revoked or

on a list of employers who have been sanctioned for violations of

immigration laws and regulations. The rule also would provide a

procedure whereby the employer can demonstrate that an FLC has a

history of furnishing unauthorized workers or a history of serious

labor standards violations. If so demonstrated, the employer need not

use that FLC. This procedure is patterned after the existing procedure

at Sec. 655.106(g), which provides that employers may lodge complaints

against persons or entities that have willfully and knowingly withheld

U.S. workers prior to the arrival at the job site of H-2A workers in

order to force the hiring of U.S. workers under Sec. 655.103(e) (the 50

percent rule) of this part. That rule requires employers (with certain

exceptions for small employers) to hire qualified, eligible U.S.

workers who apply until 50% of the contract period has elapsed. Section

655.103(f) has been revised to add the complaint procedure at

Sec. 655.103(f)(3). It should be noted, however, that the structure of

Sec. 655.103(f) has been revised for clarity. Sections 655.103(f) (1),

(2), (4) and (5) are merely a redesignation of existing regulatory

provisions that are carried forward in the amended rule.

[[Page 53246]]

4. Elimination of Requirement to Provide Notice of H-2A Worker's

Departure Date

Pursuant to Sec. 655.106 (e)(1), an employer is required to recruit

for U.S. workers through the date the H-2A workers depart for the

employer's place of employment (the departure date); this marks the

beginning of the contract period for administering the ``50 percent

rule.'' Employers are required to notify the local employment service

office, in writing, of the exact departure date. Program experience

indicates that the H-2A workers usually depart for the employer's place

of business the day before the date they are needed. In the interest of

streamlining H-2A procedures and to relieve employers of the

administrative burden of notifying the local office of the departure

date, it is proposed that this requirement be removed from the

regulations and the H-2A workers will be deemed to have departed for

the employer's place of business on the date immediately preceding the

first date of need for the foreign workers.

It should be noted, however, that the proposed amendment regarding

the departure date does not affect the employer's ability, provided for

by Sec. 653.501(d)(2)(v)(D), when using the interstate clearance

system, to notify the order-holding office of changes in the date of

need at least 10 days prior to the original date of need specified in

the job order. Such notification changes the date which starts the

employer's obligation to pay eligible U.S. workers for the first week

of work.

5. Transfer of Adjudication of Visa Petitions to the Department of

Labor

The H-2A labor certification process--from the filing of an

application with the Department of Labor to the issuance of a visa by

the Department of State, and the arrival of the H-2A workers at the

employer's place of work--has been criticized by some employers as

complicated, hard to understand, and too time consuming. In some

instances, the result is that foreign workers have not arrived by the

first date of the employer's need. In an effort to reduce the number of

steps, paperwork, and the time necessary to obtain foreign workers

necessary to perform critical agricultural functions, the Department of

Labor and the INS are proposing that the function of adjudicating visa

petitions be transferred to the Department of Labor, including petition

approval for replacement of a certified H-2A worker upon proof of the

worker's repatriation. (INS is proposing the transfer by a separate

proposed rule, soon to be published in the Federal Register.)

Accordingly, a new Sec. 655.114 is proposed to be added to the H-2A

regulations to authorize the proposed transfer of the INS visa

petitioning and adjudication function to the Department of Labor. This

change is expected to eliminate what can be a 2-to 3-week step in the

current pre-entry process. The Department of Labor is considering

adapting into the final rule the actual regulatory text currently found

in 8 CFR 214.2(h) within the text of 20 CFR 655.114. This would provide

the regulated community a single source for regulations governing the

H-2A petition process. The Department welcomes comments on this

rulemaking issue.

The INS has initiated steps in the development of a Notice of

Proposed Rulemaking to delegate to the Secretary of Labor certain

authorities conferred on the Attorney General under 8 U.S.C. 1184(c)

involving the petition by employers for H-2A workers.

Pursuant to section 103 of the INA, the INS Commissioner will

delegate to the Secretary of Labor the authority to determine on any

specific case whether an employer may import temporary agricultural

workers to the United States under section 101(a)(15)(H)(ii)(a) of the

INA. The INS will propose any changes in form or content of the

importing employer's petition which will be filed directly with the

Secretary of Labor. The Secretary of Labor will approve the petition

before a visa may be issued to an agricultural worker. The proposed

rule states broadly that such authority will be delegated. The final

rule will delineate DOL's functions with specificity.

Removing the INS adjudication will result in a streamlined process

through which an importing employer needs to file only with one Federal

agency. The Federal Government will ensure that the employer's petition

moves through the remainder of the process, eliminating the need for

the employer to interact with various different agencies. The Secretary

of State will receive petition approval information for purposes of

initiating the visa issuance process. This transfer does not affect the

procedures whereby the alien beneficiaries obtain visas or other entry

documents from the State Department or INS, as appropriate.

Further, the INS will propose streamlined processing for employers

seeking to replace one certified H-2A worker with another worker based

on proof that the first worker has repatriated.

It is estimated that, initially, it will take employers

approximately the same amount of time as it does currently to furnish

the information necessary to file a completed visa petition with an ETA

Regional Office since no change is contemplated in the information

requested from the current INS visa petition. The Department, however,

is planning to consolidate the labor certification application form and

the visa petition into one form that will support both labor

certification and visa petitioning requirements. Design and approval of

the new form may take up to 1 year from the time the responsibility for

visa approval is transferred to the Department. This consolidation of

forms will ultimately result in a substantial reduction of the

paperwork burden now placed on employers.

Executive Order 12866

The Department has determined that this proposed rule is a

``significant regulatory action'' within the meaning of Executive Order

12866 because of the novel legal and policy issues raised by the

rulemaking. However, this rule is not an ``economically significant

regulatory action'' because it will not have an economic effect on the

economy of $100 million or more or adversely affect in a material way

the economy, a sector of the economy, productivity, competition, jobs,

the environment, public health or safety, or State, local, or tribal

governments or communities.

Regulatory Flexibility Act

The Department of Labor has notified the Chief Counsel for

Advocacy, Small Business Administration, and made the certification

pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the

rule does not have a significant economic impact on a substantial

number of small entities. All of the proposed amendments would

alleviate the administrative burden on employers seeking H-2A workers

and, at the same time, they would not singly or together have a

significant economic impact on any employer. Furthermore, the total

number of employers utilizing H-2A workers is only approximately 6,000.

Therefore, the proposed amendments would not have a significant

economic impact on a substantial number of small entities.

Paperwork Reduction Act

The proposed rule contains collections of information that are

subject to review by the Office of Management and Budget (OMB) under

the Paperwork Reduction Act of 1995 (PRA'95), 44 U.S.C. 3501 et seq.,

and the regulation at 5 CFR 1320. PRA'95 defines collection of

information to mean, ``the obtaining, causing to be

[[Page 53247]]

obtained, soliciting, or requiring the disclosure to third parties or

the public of facts or opinions by or for an agency regardless of form

or format.'' (44 U.S.C. 3502 (3)(A)).

The title, description of the need for and proposed use of the

information, summary of the collections of information, description of

respondents, and frequency of response of the information collection

are described below with an estimate of the annual cost and reporting

burden, as required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2).

Included in the estimate is the time for reviewing instructions,

gathering and maintaining the data needed, and completing and reviewing

the collection of information.

ETA invites comments on whether the proposed collection of

information:

(1) Ensures that the collection of information is necessary for

the proper performance of the functions of the agency, including

whether the information will have practical utility;

(2) Estimates the projected burden accurately, including whether

the methodology and assumptions are valid;

(3) Enhances the quality, utility, and clarity of the

information to be collected; and

(4) Minimizes 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.

Title: A Voluntary Procedure to Obtain an Exception to a

Requirement that Employers Must Use Registered Farm Labor Contractors

(FLC) in Applying for Temporary Agricultural H-2A Workers.

OMB Number: 1205-0NEW.

Frequency: On Occasion.

Affected Public: Business or other for-profit; Farms; Ranches.

Number of Respondents: 600 (estimated 10% of 6,000 H-2A employers).

Total Responses: 600.

Estimated Time per Respondent: It is estimated that it will take

those few employers who chose to avail themselves of the option of

filing complaints about an FLC not on a list maintained by ESA or INS

that has a demonstrated history of employing or providing a substantial

number of unauthorized workers, or a history of serious labor standard

violations, about 1 hour to assemble the necessary information to

support a credible complaint.

Total Burden Hours: 600 hours.

Total annualized capital/startup costs: 0.

Total annual costs: (operating/maintaining systems or purchasing

services): 0.

Description: The proposal will provide an exception to the

requirement that employers use registered farm labor contractors (FLCs)

when it is the prevailing practice in an area and occupation for non-H-

2A employers to use such contractors, if a particular FLC has a

demonstrated history of using undocumented aliens or serious labor

standard violations.

The Agency has submitted a copy of the information collection

request to OMB for its review and approval. Interested parties are

requested to send comments regarding this information collection to the

Office of Information and Regulatory Affairs, Attn: ETA Desk Officer,

OMB, New Executive Office Building, 725 17th Street NW, Room 10235,

Washington, D.C. 20503.

Comments submitted in response to this notice will be summarized

and/or included in the request for Office of Management and Budget

approval of the final information collection request; they will also

become a matter of public record.

Copies of the referenced information collection request may be

obtained by contacting Dennis M. Gruskin, Senior Specialist, Division

of Foreign Labor Certifications, Employment and Training

Administration, 200 Constitution Avenue NW., Room N-4456, Washington,

DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).

With respect to the transfer of the visa adjudication function to

DOL, it is estimated that, initially, it will take employers about the

same amount of time to furnish the information necessary to file a

completed visa petition with an ETA Regional Office since no change is

contemplated in the information requested from the current INS visa

petition. The Department, however, is planning to consolidate the labor

certification application form and the visa petition form into one form

to obtain information that will support both labor certification and

visa petitioning requirements. This planned consolidation of forms will

ultimately result in a substantial reduction of the paperwork burden

now placed on employers.

Catalogue of Federal Domestic Assistance Number

This program is listed in the Catalogue of Federal Domestic

Assistance as Number 17.202, ``Certification of Foreign Workers for

Agricultural and Logging Employment.''

List of Subjects

20 CFR Part 654

Agriculture, Employment, Government procurement, Housing standards,

Labor, Migrant labor, Unemployment.

20 CFR Part 655

Administrative practice and procedure, Agriculture, Aliens,

Crewmembers, Employment, Enforcement, Forests and forest products,

Guam, Health professions, Immigration, Labor, Longshore and harbor

workers, Migrant labor, Nurse, Penalties, Registered nurse, Reporting

and recordkeeping requirements, Specialty occupation, Students, Wages.

Proposed Rule

Accordingly, parts 654 and 655 of chapter V of title 20, Code of

Federal Regulations, are proposed to be amended as follows:

PART 654--SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM

Subpart E--Housing for Agricultural Workers

1. The authority citation for part 654, subpart E is revised to

read as follows:

Authority: 29 U.S.C. 49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406

(1959).

Sec. 654.403 [Amended]

2. Section 654.403 is amended as follows:

a. In paragraph (a)(1) the phrase ``30 calendar days'' is removed

and the phrase ``15 calendar days'' is added in lieu thereof.

b. In paragraph (a)(3) remove the phrase ``30 calendar days'' and

add in lieu thereof the phrase ``15 calendar days''.

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

3. The authority citation for part 655 continues to read as

follows:

Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i)

and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29

U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099,

2103 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat.

4978, 5027 (8 U.S.C. 1184 note); P.L. 103-206, 107 Stat. 2419; and 8

CFR 214.2(h)(4)(i).

Section 665.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184,

and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and

1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

[[Page 53248]]

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and

1188; and 29 U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a),

1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.

101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).

Subparts F and G issued under 8 U.S.C. 1184 and 1288 (c) and

(d); and 29 U.S.C. 49 et seq.; and P.L. 103-206, 107 Stat 2419.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b),

1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L.

102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).

Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.

221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).

Sec. 655.100 [Amended]

4. In Sec. 655.100, paragraph (a)(1) is amended by removing the

phrases ``60 calendar days'' and ``60-calendar-day period'' and adding

in lieu thereof the phrases ``45 calendar days'' and ``45-calendar-day

period'', respectively.

Sec. 655.101 [Amended]

5. In Sec. 655.101, paragraph (c) is amended as follows:

a. In the introductory text of paragraph (c), the phrase ``60

calendar days'' is removed and the phrase ``45 calendar days'' is added

in lieu thereof.

b. In paragraph (c)(1), the phrase ``60 calendar days'' is removed

in the two places it appears and the phrase ``45 calendar days'' is

added in lieu thereof.

c. In paragraph (c)(2), the phrase ``60-calendar-day filing

requirement'' is removed and the phrase ``45-calendar-day filing

requirement'' is added in lieu thereof.

d. In paragraph (c)(3), the unit modifier ``60-calendar-day'' is

removed in the two places it appears and the compound modifier ``45-

calendar-day'' is added in lieu thereof.

6. Section 655.103 is amended by revising paragraph (f) to read as

follows:

Sec. 655.103 Assurances.

* * * * *

(f) Other recruitment--(1) RA required recruitment. The employer

shall perform the other specific recruitment and reporting activities

specified in the notice from the RA required by Sec. 655.105(a) of this

part, and shall engage in positive recruitment of U.S. workers to an

extent (with respect to both effort and location) no less than that of

non-H-2A agricultural employers of comparable or smaller size in the

area of employment.

(2) Farm labor contractors. When it is the prevailing practice in

the area of employment and for the occupation for non-H-2A agricultural

employers to secure U.S. workers through farm labor contractors (FLC)

and to compensate FLC's with an override for their services, the

employer shall make the same level of effort as non-H-2A agricultural

employers and shall provide an override which is no less than that

being provided by non-H-2A agricultural employers.

(3) Exception to Using Certain FLC's. Employers are not required to

use a FLC who is on the Wage and Hour Division's (WHD's) list of

contractors whose certificates have been revoked, or on a list of

employers that have been sanctioned for violations of immigration laws

and regulations maintained by the Immigration and Naturalization

Service (INS).

(i) Complaints. Any employer who has reason to believe it can

document that an FLC, although not on the lists maintained by WHD or

INS, has a history of employing or providing a substantial number of

workers who do not have authorization to work in the U.S., or a history

of serious labor standard violations, may submit a written complaint to

the local office before or during the recruitment period. The complaint

shall clearly identify the FLC who the employer believes has a

demonstrated history of furnishing unauthorized workers, or a history

of serious labor standard violations, and shall specify sufficient

facts to support the allegation (e.g., dates, places, numbers of

unauthorized workers involved) and any available supporting

documentation (e.g., newspaper articles, notice of INS or DOL

enforcement action) which will permit an investigation to be conducted

by the local office.

(ii) Investigations. The local office shall inform the RA by

telephone that a complaint under the provisions of paragraph (f)(3)(i)

of this section has been filed and shall immediately investigate the

complaint. Such investigation shall, to the extent feasible, include

interviews with the employer who has submitted the complaint, the FLC,

and any available INS or DOL officials who may have knowledge of any

enforcement action conducted against the FLC named. In the event the

local office fails to conduct such an interview, the RA, to the extent

feasible, shall do so.

(iii) Reports of findings. Within 10 working days after receipt of

the complaint, the local office shall prepare a report of its findings,

and shall submit such report (including recommendations) and the

original copy of the employer's complaint to the RA.

(iv) Written findings. The RA shall immediately review the

employer's complaint and the report of findings submitted by the local

office, and shall conduct any additional investigation the RA deems

appropriate. No later than 5 working days after receipt of the

employer's complaint and the local office's report, the RA shall issue

written findings to the local office and the employer. Where the RA

determines that the employer's complaint is valid and justified, the RA

shall immediately suspend the application of paragraph (f)(2) of this

section with respect to the FLC named in the employer's complaint. Such

suspension shall not take place, however, until the interviews required

by paragraph (f)(3)(ii) of this section have been conducted. The RA's

determination under the provisions of this paragraph (f)(3)(iv) shall

be the final decision of the Secretary, and there shall be no further

review by any DOL official.

(4) Centralized cooking facilities. Where the employer has

centralized cooking and eating facilities designed to feed workers, the

employer shall not be required to provide meals through an override.

(5) Housing. The employer shall not be required to provide for

housing through an override.

* * * * *

Sec. 655.106 [Amended]

7. Section 655.106(e)(1) is amended by removing from the first

sentence the phrase ``and shall notify the local office, in writing, of

the exact date on which the H-2A workers depart for the employer's

place of employment'', and by adding in lieu thereof the phrase ``which

shall be deemed for the purposes of this subpart to be the day

immediately preceding the employer's first date of need''.

8. Immediately following Sec. 655.113, a new undesignated heading

is added to read as follows:

Visa Petitioning

9. Immediately following the newly-added undesignated heading

``VISA PETITIONING'', a new Sec. 655.114 is added to read as follows:

Sec. 655.114 H-2A Visa Petitions.

The Commissioner of the Immigration and Naturalization Service has

delegated to the Secretary of Labor the functions performed by INS

under 8 CFR 214.2(h)(5), ``Petition for alien to perform agricultural

labor or services of a temporary or seasonal nature (H-2A),'' with

respect to approving visa petitions for workers outside the United

States, including petition approval for replacement of certified

workers upon proof of the workers' repatriation. Within the Department

of Labor, the

[[Page 53249]]

functions are delegated to the Regional Administrators. The Regional

Administrators shall perform these functions consistently with 8 CFR

214.2(h) and such instructions as the Director, U.S. Employment

Service, shall prescribe.

Signed at Washington, DC, this 25th day of September, 1998.

Alexis M. Herman,

Secretary of Labor.

[FR Doc. 98-26320 Filed 10-1-98; 8:45 am]

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