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

Labor Certification Process for the Temporary Employment of

Nonimmigrant Aliens in Agriculture in the United States; Administrative

Measures To Improve Program Performance

RIN 1205-AB19

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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

Department of Labor (DOL or Department) is publishing a final rule

amending its regulations relating to the temporary employment of

nonimmigrant agricultural workers (H-2A workers) in the United States.

The final rule makes three substantive changes to the current

regulations. One change reduces the time that an application for

temporary agricultural labor certification must be filed from 60 days

to 45 days before the date the employer needs agricultural workers.

Another change provides employers with the option of having the housing

inspected as late as 20 days before the date of need. The third

substantive change modifies the requirement that employers notify the

local State Employment Security Office, in writing, of the exact date

on which the H-2A workers depart for the employers place of business.

The proposal to provide a limited exception from the requirement to

use certain Farm Labor Contractors as a source of workers has been

narrowed so that it can be implemented in a manner that does not

require a change to the current regulations. A fifth proposed change to

transfer visa petition adjudication authority for workers outside of

the United States from the Immigration and Naturalization Service (INS)

to DOL remains open as it is the subject of parallel notice-and-comment

rulemaking by INS.

DATES: This final rule is effective July 29, 1999. Affected parties do

not have to comply with the information collection and recordkeeping

requirements in Sec. 655.106(e)(1) until the Department publishes in

the Federal Register the control numbers assigned by the Office of

Management and Budget (OMB) to these information collection

requirements. Publication of the control numbers notifies the public

that OMB has approved these information collection requirements under

the Paperwork Reduction Act of 1995.

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) 219-5263 (this is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

I. Introduction

On October 2, 1998, ETA published in the Federal Register a Notice

of Proposed Rulemaking (NPRM) which proposed five amendments to ETA's

regulations at 20 CFR part 655, subpart B, relating to the temporary

employment of nonimmigrant agricultural (H-2A) workers in the United

States. 63 FR 53244 (Oct. 2, 1998). The NPRM proposed five regulatory

changes pertaining to: (1) The time limits for housing inspections; (2)

time limits for filing labor certification applications; (3) a possible

exception from using certain Farm Labor Contractors (FLC's); (4)

elimination of 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 business; and (5) transfer of the responsibility

for approving H-2A visa petitions for workers coming from outside of

the United States (U.S.) to DOL from the INS Commissioner. This

document adopts final regulations involving the time limits for housing

inspection and filing applications, and the requirement that employers

notify the local employment service office of the date the H-2A workers

depart for the employer's place of business. Another proposed change

relating to an exception from using certain FLC's is being adopted, in

part, in a manner that can be implemented under current regulations.

The Department will take appropriate action to finalize the transfer of

petition authority if INS concludes such transfer is appropriate at the

completion of its rulemaking.

II. Statutory Standard and Implementing Regulations

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

import nonimmigrant farm workers to the United States for the purpose

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

designee, the INS Commissioner. The Immigration and Nationality Act

(INA) (8 U.S.C. 1101 et seq.) provides that the Attorney General may

not approve 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 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.

It was noted in the NPRM that some recent H-2A program changes were

made to enhance effectiveness and efficiency while maintaining worker

protections by administrative directives in the form of Field Memoranda

(FM) issued by the ETA national office to its 10 Regional

Administrators (RA's). (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.) These

administrative changes are summarized herein for the convenience of

interested parties.

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;

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,

[[Page 34959]]

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, reaffirmed and clarified 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.

III. Comments on Proposed Rule and the Department's Response

A. Comments on Proposed Rule

Thirty-six comments were received on the proposed rule. The largest

number of comments--15--were received from State agencies. After the

State agencies, the largest number of comments were received from

worker advocates and employer organizations, which submitted 8 and 5

comments, respectively. The Farmworker Justice Fund (FJF) indicated

that its comments were supported by 32 listed organizations. Comments

were received from the American Immigration Lawyers Association (AILA)

and two private attorneys. Comments were also received from Congressman

Howard Berman of California, ETA's Regional Office in Chicago, one

monitor advocate, and one member of the general public.

Many commenters, in addition to commenting on the specific

regulatory proposals contained in the NPRM, offered a number of

additional suggestions for modifying the H-2A program. These

suggestions included, but were not limited to:

Repealing the adverse effect wage rate (AEWR);

Increasing the AEWR by 20 percent;

Eliminating the current definition of ``prevailing

practice'' which is based on the practices of a majority of employers

and employees, and replacing it with one based on either a majority of

employers, or a majority of the employees in the local area and

occupation;

Imposing user fees that recover the true cost of the H-2A

program;

Eliminating the 50 percent rule, which requires employers

to hire any qualified U.S. worker who applies until 50 percent of the

work contract, under which the foreign worker was hired, has elapsed.

Requiring withholding and placing in escrow sufficient

funds from H-2A workers' wages so that they can pay for their return

transportation home if they do not fulfill their contracts.

The above suggestions are outside the scope of the proposed rule.

Consequently, they are not addressed in this document but may be

considered by the Department in a future rulemaking regarding the H-2A

nonimmigrant program. Similarly, comments concerning administrative (

i.e., non-regulatory) changes in the H-2A program are not addressed in

this document, but will be considered by the Department in making

administrative changes that can be implemented without amending the H-

2A regulations at 20 CFR part 656, subpart B.

The FJF strongly opposed the proposed rule and urged that it be

withdrawn. According to the FJF, the proposal is arbitrary and

capricious because it allegedly ignores numerous studies concluding

that the Department has not adequately implemented worker protections

under the H-2A program, and it ignores recommendations that have been

made by such studies to improve worker protections. The FJF enumerated

a variety of recommendations made and issues identified by the studies

cited in its comments. Moreover, addressing the recommendations and

issues cited by the FJF, as well as the many other recommendations made

by other commenters would require a much more comprehensive assessment

of the H-2A program and extensive consultation with all stakeholders,

which--while such a process has been taking place in other fora--is

outside the scope of this rulemaking.

As indicated in the preamble to the NPRM, the primary purpose of

the proposed regulatory amendments was to implement certain changes

growing out of a dialogue among the Departments of State (DOS), Justice

(INS), Agriculture, and Labor to streamline the H-2A program and

address complaints raised by some users of the program without

weakening worker protections. Such an effort is particularly important

in an environment characterized by program growth and stable or

declining resources. The Department believes, as discussed in greater

detail below, that the amendments adopted are balanced. The amendments

serve to streamline the H-2A program and can help improve operations

without weakening worker protections. Further, as stated in the

preamble, this rulemaking represents one step towards implementing

changes to improve H-2A program operations. The Department will

consider the issues raised by various studies of the H-2A program, as

well as the recommendations made by the commenters on the NPRM, in a

future rulemaking effort to improve the operation of the H-2A program.

B. Comments About the Proposed Regulatory Changes

The comments received on the specific regulatory proposals in the

NPRM and the Department's response to the comments are discussed below.

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

Inspection (Sec. 654.403)

Several comments were received on the proposal to reduce the time

by which housing that will be provided to a worker must be available

for inspection, from 30 to 15 days prior to occupancy. Inspections are

performed by State agencies in most cases. See 20 CFR 653.501(d)(2)(xv)

and 20 CFR 654.400 et seq.

Congressman Howard Berman and several worker advocates objected to

the proposal on several grounds. The major issues raised by those

comments include:

State agencies do not always make timely inspections and

shortening the lead time to conduct housing inspections will inevitably

lead to some needed repairs not being made.

The Office of Inspector General's (OIG) report concluded,

in relevant part, that DOL has certified employers to receive H-2A

workers despite lacking documentary proof that housing inspection had

occurred. The OIG finding is consistent with reports that some H-2A

housing is not inspected in a timely fashion and that H-2A housing does

not comply with basic housing standards.

The untimely inspection and repair of farmworker housing

will worsen as the H-2A program continues to grow, since funding for

inspections will not keep pace with the increased need. The H-2A

program has been expanding to new States and crop areas during the last

three years and is expected to continue its growth.

Employer organizations favored the proposal to reduce the lead time

worker

[[Page 34960]]

housing must be available for inspection prior to occupancy, and

assumed that the proposed shortened deadline for housing inspections

would allow certifications to be issued even if housing inspection was

still pending. The National Council of Agricultural Employers (NCAE)

stated that if certification is delayed while housing inspections are

still pending, the proposed amendment would have little ``real impact

on H-2A users.'' NCAE recommended that the regulations be amended to

clarify that housing inspection is not required prior to certification.

Two large employer organizations--NCAE and the American Farm Bureau

Federation (AFBF)--expressed considerable concern about the increasing

difficulty employers face in obtaining timely housing inspections. The

NCAE indicated that this problem has grown worse in recent years with

growth in the H-2A program and its expansion into States where H-2A

certification has not been sought in recent years. The NCAE further

stated that it appears that many states have an extremely limited

number of personnel who are capable of performing housing inspections.

Although the NCAE supported reducing the application time, it strongly

urged that DOL inventory the housing inspection resources available in

the State agencies to assure that there are qualified inspectors

available to make inspections in a timely manner.

Both the NCAE and AFBF recommended conforming the H-2A housing

inspection requirement to that for all other migrant and seasonal

agricultural workers in the regulations implementing the Migrant and

Seasonal Agricultural Worker Protection Act (MSPA) at 29 CFR 500.135.

They contend such a change would address the problem faced by employers

in obtaining timely housing inspections. The MSPA regulations require

that housing be approved prior to occupancy. They also provide that if

the employer has made a timely request for an inspection, and the

inspection has not been made, the employer may house workers without

inspection, provided that the housing is in full compliance with

applicable regulations.

Nine State agencies objected to the proposal to shorten the lead

time for housing inspections. The major points they made include:

Several States objected to the proposal because it would

allow certification to be issued before the employer's housing was

inspected and approved.

Other states objected to the proposal based on resource

considerations. With the limited resources available, a shorter time

frame would make it more difficult for States to inspect and approve

housing prior to occupancy. Two States pointed out that they only had

one person available to conduct housing inspections; another indicated

that normally only one person is available to conduct 150 housing

inspections.

One State pointed out that inclement weather conditions

during the winter months requires rescheduling of housing inspections

in remote areas. The proposed 15-day time frame would make it difficult

for inspections to be completed in a timely fashion.

Many employers do not request housing inspections in a

timely manner.

Inspection 15-days before occupancy may not provide

adequate time for employers to correct deficiencies in their housing.

Four States were in favor of the proposal to shorten the lead time

for conducting housing inspections. One State maintained that the

shorter time frame would allow more flexibility for its field staff to

work with employers and that the ``relaxing'' of the regulation ``still

provides the same level of protection for U.S. workers.''

The ETA Chicago Regional Office expressed great concern about

reducing the time limit for inspection prior to occupancy, because

there would be no way to guarantee that housing will be in full

compliance with requirements before certification is granted.

The Department indicated in the NPRM that one reason for reducing

the lead time for conducting housing inspections was the commonly

expressed concern among employers in Northern States that a 1-month

lead time was unrealistic for employers that need workers in March or

April. It was also stated in the NPRM that local employment security

agency staff have had difficulty inspecting employer-provided housing

in Northern States. 63 FR at 53245. Only two comments directly

addressed these issues. Massachusetts indicated that it does not have a

problem in inspecting housing in late winter or early spring. The

State's records show that employers with employment needs during late

winter or early spring normally maintain their housing facilities in

conformity with the required standards and have always been inspected

in a timely manner. As noted above, another state, pointed out that

inclement weather frequently causes housing inspections to be

rescheduled and opined that reducing the lead time the employer has to

assure that housing will be in full compliance before it is occupied

will make it more difficult for State agencies to perform timely

housing inspections.

Lastly, one commenter questioned what would happen if--with a

shortened lead time--the employer's housing is found deficient after

certification, and called upon the Department to spell out what happens

in such circumstances. The commenter urged that the employer simply be

given an opportunity to correct and cure any deficiency before the date

of need.

After carefully reviewing all the comments, the Department

continues to be of the view that employers should have the option of

having the housing inspected at a date considerably later than under

the current regulations. At the same time, however, the Department has

given careful consideration to the interrelationship between housing

inspection and the certification process, and has concluded that

housing must pass inspection before certification can be granted. See 8

U.S.C. 1188(c)(4). Therefore the Department has concluded that the

latest date by which employers must assure that the housing will be in

full compliance with applicable standards pursuant to

Sec. 655.403(a)(3) can be no later than 20 days before the date of

need--i.e., the date on which certification must ordinarily be granted.

An employer whose housing fails to pass an inspection conducted on or

before the 20th day prior to the date of need will have the 5 days

provided for in Sec. 655.403 (e) to correct the deficiency and the

certification will be delayed for that period, if necessary. If, on the

other hand, the state agency did not timely inspect the housing (i.e.,

by 20 days before the date of need), at no fault of the employer, the

Department will delay certification until the housing has been

inspected and the employer has had an opportunity to remediate any

deficiencies discovered.

The Department notes that the employer must notify the SESA

ordering office at least 10 working days before the date of need,

pursuant to 20 CFR 653.501(d)(2)(v)(D), if workers are no longer needed

or if the date of need has changed or else face liability to U.S.

workers for housing and the first week's pay. U.S. workers in turn are

required pursuant to 20 CFR 653.510(d)(2)(v)(B) to contact a local job

service office 5 to 9 working days before the date of need to determine

if the employer's needs have changed. This allows workers to commence

travel to the jobsite, or to find alternative employment if the work is

no longer available. It therefore is important that the housing be

timely

[[Page 34961]]

inspected so that the local office is able to advise workers if it

becomes necessary to deny the certification because the housing is not

in compliance with the applicable standards.

The Department is of the view that rather than allow State agencies

less time in which to schedule inspections, this modification actually

provides a longer window. The Department anticipates that in areas

where housing inspections take longer to schedule, employers will

continue to provide early notice to State agencies to ensure that

inspections are conducted timely.

Accordingly, the Department has modified Sec. 654.403 to require

that employers assure housing will be in full compliance no later than

20 calendar days before the date of need. The Department intends to

issue administrative guidance concerning the operation of this

modification.

2. Reduction in Lead Time To File Labor Certification Applications

(Sec. 655.101(c))

The proposal in the NPRM to reduce the deadline for filing

applications from 60 to 45 days before the date of need was strongly

opposed by the FJF, other worker advocates, and Congressman Howard

Berman. Their major reasons for objecting to the proposal include:

There has been no showing that a change in the lead time

to file applications is justified. Agricultural growers know well in

advance their planting and harvesting schedules. Indeed, for decades,

growers throughout the eastern United States were able to estimate

these needs a full 80 days in advance.

The time available for interstate and positive recruitment

of U.S. workers would be unreasonably shortened if the proposal is

implemented. Interstate recruitment does not begin until the

application is accepted for consideration by DOL. It can take 7 days

for the DOL's regional office to review the employer's application, and

the employer has another 5 days to correct deficiencies. With a

shortened lead time, this would place the beginning of the interstate

recruitment at the 33rd day prior to the date of need and just 13 days

before the date for labor certification. If DOL does not review

applications in a timely manner, as is often the case, there could be

10 days or less of interstate recruitment of migrant workers prior to

the date of certification.

Congress insisted that H-2A labor certification be based

on proof that there is an actual labor shortage, following a meaningful

test of the labor market. Accordingly, it is not sufficient to rebut

that the regulations provide that recruitment must continue until the

date the foreign (H-2A) workers depart for the employer's place of

work.

Employers do not always hire workers referred to them

pursuant to the 50-percent rule.

The proposal is inconsistent with the recommendations of

the General Accounting Office (GAO). Although the GAO report suggested

that the Department could reduce from 60 to 45 days the time

applications have to be submitted prior to the date of need, it also

stated that such a reduction should only be made if the statutory

requirement that certifications be issued 20 days before the date of

need is reduced to 7 days.

The proposal is inconsistent with the regulatory

requirement at Sec. 655.105 (a)(2), which requires that H-2A employers

engage, at a minimum, in the kind and degree of recruitment efforts to

secure U.S. workers that they made to obtain H-2A workers.

Employer organizations supported the reduction in the required lead

time to file applications. However, they recommended that the lead time

to file applications be reduced by more than suggested by DOL.

The NCAE, for example, maintained that it is the experience of H-2A

users that most U.S. workers make themselves available shortly before,

or after, the certification date. Furthermore, since under current

regulations all qualified U.S. workers who apply to the employer must

be hired until 50 percent of the anticipated period of work (the

contract period) has elapsed, no qualified U.S. worker would be denied

a job even if the deadline for applications were reduced to 40 or even

30 days before the date of need. The New England Apple Council (NEAC)

maintained that the ``lag time'' between recruitment and start of work

produces more ``no shows'' of workers than any other reason.

The Florida Fruit and Vegetable Association (FFVA) stated that for

several vegetable crops which are greatly influenced by weather and

other production uncertainties, a 45-day lead time may still be too far

out to determine a crop's maturity rate.

Comments submitted by State agencies regarding the proposal to

shorten the lead time for filing applications were mixed. Four States

supported the proposal, indicating that the proposed change would not

have an adverse impact on U.S. workers. Two of these States indicated

that the deadline for filing applications should be reduced to less

than 45 days. The California State agency recommended that the deadline

for filing applications be reduced to 30 days prior to the date of

need. According to the California State Agency, the shorter lead time

would increase the possibility of locating U.S. workers who can commit

to the job and it also would be beneficial to employers ``who may not

know their exact staffing needs or start date until closer to the time

the work needs to be done.'' The Kentucky State agency commented that

``(s)uccessfully recruiting any U.S. workers can be achieved through

the Agriculture Recruitment System in 30 days if supply states and

demand states coordinate specific efforts towards identified

populations.''

Two states were against reducing the lead time for filing and

processing applications. The Idaho State agency noted that the full 60

days is needed because applications are not filled out properly when

received. The Massachusetts State agency indicated that the shorter

time frame will adversely impact on State agencies' ability to conduct

effective recruitment, especially in regions where master orders are

used.

Two other states also commented. The New Jersey State agency

indicated that the reduction in time to process applications should not

be a problem if there are adequate staff at DOL to respond to the

applications when they are received. The Nevada State agency noted that

the proposal provides employers with more flexibility in recruitment of

agricultural labor, particularly with regard to crops that are more

sensitive to weather conditions. At the same time, the proposal may

allow employers to be less organized in the planning and execution of

their application. The Nevada State agency concluded by stating that

because of the way applications are prioritized and processed in

Nevada, processing times would remain relatively constant regardless of

filing deadlines.

A monitor advocate who commented opined that the lead time to file

and process applications should be expanded. This time should not be

less than 60 days to enable employers to access all local resources in

attracting and identifying a ``sufficiently large labor force.''

The ETA Chicago Regional Office commented that reducing the time

limit to file labor certifications did not leave enough time for the

State agencies to recruit adequately in view of all the administrative

steps that must be completed before States can conduct recruitment.

Some commenters also indicated that the employers should still be

able to file labor certification applications more than 45-days prior

to the date of need

[[Page 34962]]

for H-2A agricultural workers. One commenter assumed that first-time

users of the program would be able to file less than 45-days prior to

the date of need if necessary.

With respect to the time limit for filing applications, the

Department has decided, after reviewing all of the diverse comments, to

implement the proposal to reduce the lead time for filing H-2A labor

certification applications from 60 to 45 days before the first date the

employer estimates that H-2A workers are needed. The regulation will

provide growers with increased ability to more precisely estimate the

need for workers. The Department has concluded, for the reasons

discussed below, that reducing the lead time for filing H-2A labor

certification applications will not have a significant adverse impact

on the recruitment of U.S. workers. The final rule, at

Sec. 655.101(c)(3), continues to encourage employers to file in advance

of the required filing date, and no change is made in the regulation

for emergency applications at Sec. 655.101(f)(2), which refers to

agricultural employers who have not made use of H-2A agricultural

workers for the prior year's agricultural season.

As noted in the preamble to the NPRM, the overwhelming majority of

qualified U.S. workers do not apply and make a commitment to temporary

agricultural employment earlier than 45 days before their services are

required. The Department does not believe that this is generally

attributable to the fact, as some commenters indicated, that DOL

regional offices may spend 12 days, or more, in processing applications

before they are accepted for consideration and placed into interstate

clearance. Furthermore, the majority of applications filed on behalf of

H-2A agricultural workers are by repeat users of the H-2A program. Most

such employers are well versed in program requirements, policies, and

procedures; consequently, their applications can be accepted for

consideration and placed into the Agricultural Recruitment System with

minimal review.

H-2A labor certification applications are filed simultaneously with

the local employment service office and the ETA regional office. The

local office begins to conduct local recruitment when it receives the

application from the employer whether or not it has been accepted for

consideration by ETA's regional office. 20 CFR 655.101(c)(2).

As stated above, some commentators noted that it can take longer

than the allotted 7 days for regional offices to review H-2A labor

certification applications, and that employers may take longer than 5

days to resubmit an amended application in response to any deficiencies

found in the application by the regional office, resulting in a

reduction in the time allowed for interstate recruitment, since the

application has to be certified 20 days before the day the employer

first needs agricultural workers. With respect to meeting the 7-day

deadline for reviewing applications, ETA intends to increase its

monitoring of regional offices to improve its performance in meeting

this statutory and regulatory requirement. See 20 CFR 655.101(c)(1);

and 8 U.S.C. 1188(c)(2).

With respect to the 5 days allotted for employers to submit amended

applications in response to deficiencies noted by the regional office,

ETA intends to strictly enforce the regulatory requirement at

Sec. 655.101(c)(2). This provides, in relevant part, that when ETA has

formally notified an applicant of any deficiencies, any time needed to

obtain an application acceptable for consideration after the 5-calendar

period allowed for an amended application will postpone the

certification decision day-for-day beyond the 20 calendar days before

the date of need. This will lessen considerably the possibility that

the period of interstate recruitment prior to the date the application

is certified will be unduly abbreviated.

Most importantly, notwithstanding comments to the contrary, it is

important to recognize that recruitment continues considerably past the

date a labor certification application is certified. Positive

recruitment conducted by the employer must continue until the time the

H-2A workers depart for the employer's place of employment, and

recruitment through the interstate clearance system continues until 50

percent of the work contract under which the H-2A workers were hired

has elapsed. Under the ``50-percent rule,'' which refers to half the

time accounted for by the total period of the contract, the employer

must continue to provide employment to any qualified, eligible U.S.

worker who may apply. In addition, the employer must offer to provide

the U.S. workers with housing and the other benefits, wages, and

working conditions provided to H-2A workers. See 8 U.S.C. 1188(b)(4),

and 20 CFR 655.102, 655.103(d), 655.105(a), and 655.106(e).

As noted above, some commenters indicated that employers do not

always hire U.S. workers referred to them pursuant to the ``50-percent

rule.'' See 20 CFR 655.103(e). However, no evidence to support these

claims was submitted to the Department. Additionally, the Department is

not aware of any evidence suggesting that such occurrences are numerous

or widespread. Nevertheless, ETA intends to be vigilant of employers'

compliance with the ``50-percent rule'', with violations addressed

through the imposition of appropriate sanctions.

3. Exception From Using Farm Labor Contractors (Sec. 655.103(f))

The majority of comments opposed the proposal to provide a limited

exception from the requirement to use farm labor contractors (FLC's)

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

2A employers to use such contractors as a recruitment source for U.S.

workers and to compensate them with an override. This exception would

have applied if a particular FLC has a demonstrated history of using

undocumented aliens or serious labor standard violations.

Congressman Berman and worker advocacy organizations were strongly

opposed to the proposal. They indicated that such an exception would

reduce the use of FLC's which are an important recruitment source for

U.S. farmworkers. The FJF maintained that recent studies show that an

increasing percentage of U.S. farmworkers and most guest workers are

hired through labor contractors. Both Congressman Berman and the FJF

maintained that in California it is estimated that between one-half and

two-thirds of seasonal farmworkers are hired through crewleaders--many

of whom also transport, house, pay, and supervise workers in the

fields.

Objections to the proposal by worker advocates include:

The provision that employers need not use an FLC on the

Wage and Hour Division's (WHD's) list of contractors whose certificates

have been revoked is redundant with current law under MSPA and

unnecessary. Employers are prohibited by law from contracting with an

FLC whose licenses has been revoked and not reinstated.

The complaint provision proposed provides no due process

rights permitting FLC's to challenge the evidence submitted by State

agencies.

The proposed rule could put some FLC's out of business and

deny jobs to U.S. workers who are associated with contractors who have

been ``sanctioned'' by the INS for hiring unauthorized immigrants or

who have violated labor laws. The Department should not use this

rulemaking process to impose additional ``punishment'' on businesses

because affected U.S. workers would be unduly harmed.

[[Page 34963]]

The proposal may lead to workers being ``doubly punished''

and discouraged from filing complaints. If a worker complains about

abusive practices of an FLC, such as nonpayment of wages, the worker

may see wages go unpaid and then lose future work because of the

secondary consequences of the complaint.

An H-2A grower which may have hired unauthorized workers

and violated labor laws would still receive Government approval to hire

H-2A workers; yet, an FLC could be barred, at the grower's initiation,

from supplying lawful U.S. workers to that same U.S. employer.

The proposal is particularly troubling in that it allows

an FLC who is barred as a contractor supplying U.S. workers to apply

for H-2A labor certifications.

The proposal could be subject to manipulation and harmful

to workers. An employer could bring a complaint against an FLC who has

a large number of available U.S. workers to avoid hiring U.S. workers.

The employer organizations also objected to the proposal to provide

an exception from using certain FLC's. The NCAE pointed out, as did the

worker advocates, that the provision in the proposal permitting H-2A

applicants to refuse to engage FLC's who are on WHD's list of

contractors whose certificates have been revoked adds no new

protections for H-2A employers. Under the MSPA regulations at 20 CFR

500.71, employers are already prohibited from engaging such

contractors.

The NCAE also maintained that the provision that H-2A employers

would not be required to employ farm labor contractors on a list of

contractors sanctioned by INS is meaningless, because INS does not

maintain such a list. NCAE contends that although INS district or

regional offices may have such lists, all offices may not have such

lists, and to the extent such lists exist, they would include all

employers sanctioned by that INS district and would not be limited to

FLC's. The lists are not aggregated in one spot and the lists that do

exist are not routinely disseminated to the public as is the DOL FLC

list. NCAE contended that the only apparent way an employer could avail

itself of this regulatory provision is to contact each INS district

office and request its list of employers which have been sanctioned for

violations of immigration laws and search each list for the names of

contractors.

According to the NCAE, the provision in the proposal to permit

employers not to use FLC's not on the WHD or INS lists if the employer

can document that the FLC ``has a history of employing or providing a

substantial number of workers who do not have the authorization to work

in the U.S. or a substantial history of labor violations'' is

impractical on several grounds. These grounds include:

It is unlikely that growers would be able to assemble the

documentation on the FLC required to support a credible complaint;

There is no protection for the employer from retaliation

by the FLC; DOL would be creating a procedure in which the employer

could incur legal liability by making the complaint; and

The complaint procedure is flawed, convoluted and ignores

the reality of the hiring procedure.

The NCAE recommended that, if the Department is truly concerned

about helping employers avoid hiring persons not authorized to work in

the United States, it should take appropriate measures to assure that

the workers the State agencies refer are authorized to work before

referring them. It is the experience of users of the H-2A program that

a substantial and growing number of the persons referred as ``U.S.

workers'' to H-2A applicant employers are, in fact, workers with

fraudulent documents or, in some cases, no documents at all.

The comments submitted by State agencies on the proposal to provide

an exception to permit employers not to use certain FLC's were mixed.

The thrust of the comments submitted by three States appeared to be

that the current regulation pertaining to FLC's as a recruitment source

should be eliminated. On balance the State agencies of Arizona and Ohio

appeared to be against the proposal. The Kentucky state agency stated

that the proposal is a common-sense approach to a growing concern on

the part of employer's and the State employment security staff and

should be implemented.

The one monitor advocate who submitted comments supported the

proposed amendment that provided an exception to using certain FLC's as

a recruitment source.

After reviewing all the comments received on the proposed amendment

to provide an exception to using certain FLC's, the Department has

concluded that there are indeed serious due process concerns about

potentially stigmatizing FLC's who have not had an opportunity to

challenge allegations of wrongdoing in an adjudicatory proceeding.

Further, the Department has legal authority to revoke the licence of an

FLC who has violated immigrations laws or to refuse to register such an

FLC (29 CFR 500.51(g)). The Department intends to obtain from the INS

the list of those FLC's who have been found in violation of Section

274A(a) of the INA, either by hiring, recruiting, or referring an

alien, knowing the alien was unauthorized to work; or by employing a

person without first verifying the person's identity and employment

authorization. Therefore, the final rule needs to make no change to the

regulation at Sec. 655.103(f). The Department is not implementing its

proposal to provide a new means for employers to challenge the

requirement to use an FLC the employer believes may have violated

immigration or labor laws. Employers must attempt to secure workers

through registered FLC's and to compensate them 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. However, no H-2A grower-

applicant may or will be required to use any FLC included on WHD's list

of contractors whose certificates have been revoked, including those

certificates which are revoked because of violations of the immigration

laws. The Wage and Hour Division publishes a list of ineligible FLC's,

which is also available at its web site at: http://www.dol.gov/dol/esa/

public/regs/statutes/whd/mspa__debar0399.html. Thus, the Department's

proposal is being narrowed and can be implemented under existing

regulatory authority.

4. Elimination of Requirement To Provide Notice of the H-2A Workers'

Departure Date (Sec. 655.106(e)(1))

Diverse comments were received on the proposal to eliminate the

requirement that employers notify the local employment service office,

in writing, of the exact date the H-2A workers depart for the

employer's place of employment, and substitute a provision deeming that

the workers departed on the day immediately preceding the date of need.

The Department stated in the preamble to the NPRM that program

experience indicates that the H-2A workers usually depart for the

employer's place of business the day before they are needed.

Worker advocates objected to eliminating the requirement that

employers notify the local office of the H-2A workers departure dates

because:

There is no evidence that the current regulation imposes

an excessive burden on growers utilizing the H-2A program;

Such change should not occur until DOL addresses workers'

needs; and

[[Page 34964]]

Although the proposed change appears innocuous, it is

likely to harm U.S. workers. For example, a nursery that was certified

for H-2A workers to begin employment on October 15, 1998, did not start

employing its H-2A workers until November 15, a full month later. The

required notification enabled the local office to determine the

appropriate dates for administering the 50-percent rule and advise job

applicants accordingly.

The NCAE supported eliminating notice of the departure date, but

disagreed that workers typically depart the day before the employer's

date of need. The NCAE maintained that typically for workers to obtain

their visas, travel to the employer's place of employment, and be

settled and ready for work on the date of need, they must depart at

least 3 days before the date of need. NCAE recommended that DOL deem 3

days before the date of need as the departure date. Furthermore, since

workers' departure dates may be even earlier, depending on where they

are coming from, it recommended that DOL continue to allow employers to

notify the Department of the date on which their workers depart if it

is more than 3 days before the date of need.

One attorney supported eliminating notice of the departure date

because it is extremely burdensome to employers, especially when the

employer has many H-2A workers who do not always depart for the

employer's place of business at the same time.

Divergent comments were submitted by State agencies on this

proposal. Three States commented that the requirement for notification

of the departure date should not be eliminated. One of these States

maintained that the change will harm U.S. workers, as on numerous

occasions H-2A workers have departed up to 15 days after the date of

need. Another State also pointed out that the contract period must also

be determined for the purpose of determining whether the employer must

provide or pay for the worker's transportation and daily subsistence

from the place of employment to the place from which the worker came to

work for the employer. A third State indicated that notification of the

departure date is helpful in scheduling field checks, which is

important to ensure that information is collected timely and for each

employer, each crop and for each activity of those crops.

Four State agencies supported eliminating the requirement of

notification of the H-2A workers' departure date. One State noted that

the requirement is currently being ignored. Two States indicated that

eliminating notice of the departure date would have no adverse impact

on U.S. workers. A fourth State viewed the proposal as positive, since

it does not affect the employer's requirement of notifying the order-

holding office of changes in the date of need. This State also noted

that it has had problems with H-2A employers notifying it of departure

dates, but it can still meet with the H-2A workers after the date of

need to review the job order and the employment service complaint

system.

In light of the above comments regarding departure date

notification, ETA has concluded that its original proposal to eliminate

the requirement to notify of the departure date at Sec. 655.106(e)

should be modified to provide that ETA and the SESA shall deem the date

of departure to be the third day before the first date of need. If the

workers depart on or before the date of need, no notice to the SESA

will be necessary. However, employers will have the option of advising

the SESA if workers depart earlier. In all cases, an employer's

obligation to positively recruit continues until the actual date of

departure.

If the workers do not depart by the date of need, the employer must

notify the SESA. Such notice shall be in writing, or orally, confirmed

in writing, and must be made as soon as the employer knows that the

workers will not depart by the first date of need, but in no event

later than the date of need. At the same time the employer shall notify

the SESA of the workers' expected departure date, if known. No

additional notification will be necessary unless the employer either

did not inform the local office of the expected departure date or the

workers in fact did not depart by the expected date.

This modification should address the concerns of employers that

workers more commonly depart three days before the date of need, while

allowing flexibility if they do not depart on exactly that day or if

employers wish to advise of an earlier departure date. In addition,

this modification should address the concern expressed by worker

advocates groups that on occasion workers depart long after the stated

date of need, as well as the concern of States regarding their need to

know the date of departure.

5. Transfer of Adjudication of Visa Petitions

Worker advocates indicated that there should be no transfer of

adjudication of H-2A visa petitions from INS to DOL, absent a

comprehensive approach to improving administration of the program.

AILA and two attorneys opposed the proposal to transfer the

adjudication of visa petitions to the Department. They cited the lack

of DOL's experience in adjudicating visa petitions, that training DOL

personnel in visa petitioning issues and procedures would be

duplicative of the training INS adjudicators already receive on these

issues, that DOL does not have the resources or personnel to adjudicate

visa petitions, and that they believe it is doubtful that DOL could be

any more efficient than INS in processing H-2A visa petitions--in fact,

because of the lack of personnel familiar with the issues, as well as

the budgetary problems experienced by ETA in immigration-related

processing, they contend it is likely to be worse.

Further, AILA and one attorney pointed out that it is impossible to

know how delegation will work without seeing specifics of a rule

implementing the proposed delegation. The AILA suggested that, if the

proposed transfer of adjudication of visa petitions to DOL goes

forward, it should be published in the Federal Register for comment.

The NCAE expressed ``grave'' concerns about any interim procedures

that might be established to process H-2A visa petitions. It noted the

interim procedures were not described in sufficient detail to permit an

analysis of whether they, in fact, will be more streamlined and save

time, or whether they might have the opposite effect. It also opined

that the bottleneck in the current system is not the INS but the DOL.

The only way to save time and increase the probability of timely

arrival of workers is if the employer is permitted to include a

completed visa petition in the same submission as the labor

certification application, and if the issuance of the labor

certification and approval of the visa petition are done in one action.

The NCAE concluded its comments by stating it strongly supported

efforts to streamline the H-2A paperwork process. Combining the

temporary labor certification application and visa petition into a

single document, which is acted upon at the time of certification and

immediately transmitted to the consulate or port of entry, could result

in a significant improvement. Before undertaking this change, however,

DOL should propose the precise regulations and procedures under which

it intends to operate, and, at the same time, the INS should propose

its regulations so both proposals can be evaluated together. Until this

can be done, NCAE stated that it strongly objects to the proposed

change and recommended that

[[Page 34965]]

the proposal to transfer adjudication of visa petitions be withdrawn

from the rulemaking effort at this time.

The NEAC and the AFBF also expressed concerns similar to the NCAE

regarding the transfer of the adjudication of the visa petition

function to DOL; only the FFVA approved of this proposal.

Three State agencies supported transferring adjudication of H-2A

visa petitions to DOL from the INS as it would result in reducing the

time needed for employers to obtain foreign workers. Four States

indicated that visa petitioning authority should not be transferred to

DOL, unless additional funding is made available to the regional

offices to adjudicate the visa petitions. The Ohio State agency

``guardedly'' agreed with the change based on a concern that work may

be delegated to the States which are already underfunded to complete

existing duties.

The Department believes that transferring the visa adjudication

function to the Department would save substantial government resources

and would eliminate one administrative step employers would have to

complete under the program. Reducing the number of steps and paperwork

involved in the process of obtaining H-2A workers--from the filing of

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

by the Department of State--should reduce both the paperwork burden and

the number of instances that foreign workers do not arrive by the first

date of the employer's need. The Department anticipates that the

streamlined process would involve the development of a single

consolidated labor certification application and visa petition form

that will eliminate otherwise redundant information and support both

labor certification and visa petitioning requirements. This would

eliminate the necessity of employers filing visa petitions with INS for

H-2A workers who are outside of the United States. The Department is

committed to completing the necessary rulemaking and associated

procedural changes as soon as possible, if INS delegates to DOL the

authority to adjudicate H-2A visa petitions. INS has begun rulemaking

to implement the transfer and the comment period on its proposed rule

concluded on February 5, 1999.

Executive Order 12866

The Department has treated this rule as a ``significant regulatory

action'' within the meaning of Executive Order 12866 because of the

great interest in the H-2A program and the legal and policy issues

raised by the rulemaking. However, this rule is not an ``economically

significant regulatory action'' which requires an economic analysis

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

When the proposed rule was published, the Department 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 would not have a significant impact on a small

number of entities. The Chief Counsel did not submit a comment.

Paperwork Reduction Act

Section 655.106(e)(1), pertaining to departure-date notification,

contains information collection recordkeeping requirements. As required

by the Paperwork Reduction Act of 1995, the U.S. Department of Labor

has submitted a copy of these sections to OMB for its review. (44

U.S.C. 3504(h)).

The public reporting burden for information collection requirements

contained in these regulations is estimated to average as follows:

15 minutes per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Comments from the public and substantive changes are discussed in

the preamble section dealing with this regulatory provision.

As discussed in the preamble, the Department anticipates further

rulemaking to transfer the adjudication of H-2A visa petitions from the

INS to DOL. Although this requirement would create a new collection of

information requirement for DOL, we expect a net reduction in

requirements for employers. This rulemaking will be subject to review

by the Office of Management and Budget under the Paperwork Reduction

Act of 1995.

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, Forest and forest products, Guam,

Health professions, Immigration, Labor, Longshore work, Migrant labor,

Nurse, Penalties, Registered nurse, Reporting and record keeping

requirements, Specialty occupation, Students, Wages.

Final Rule

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

Federal Regulations, are 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 ``20 calendar days'' is added in lieu thereof.

b. In paragraph (a)(3) the phrase ``30 calendar days'' is removed

and the phrase ``20 calendar days'' is added in lieu thereof.

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

1. 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).

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.

[[Page 34966]]

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]

2. 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]

3. 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 each place 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 term ``60-calendar-day'' is removed in

the two places it appears and the term ``45-calendar-day'' is added in

each place in lieu thereof.

Sec. 655.106 [Amended]

4. Section 655.106 is amended by revising paragraph (e) to read as

follows:

Sec. 655.106 Referral of U.S. workers; determinations based on U.S.

worker availability and adverse effect; activities after receipt of the

temporary alien agricultural labor certification.

* * * * *

(e) Approvals of applications--(1) Continued recruitment of U.S.

workers. After a temporary agricultural labor certification has been

granted, the employer shall continue its efforts to recruit U.S.

workers until the actual date the H-2A workers depart for the

employer's place of employment.

(i) Unless the local employment office is informed in writing of a

different date, the local office shall deem the third day immediately

preceding the employer's first date of need to be the date the H-2A

workers depart for the employer's place of employment. The employer may

notify the local office in writing if the workers depart prior to that

date.

(ii)(A) If the H-2A workers do not depart for the place of

employment on or before the first date of need (or by the stated date

of departure, if the local office has been advised of a different

date), the employer shall notify the local employment office in writing

(or orally, confirmed in writing) as soon as the employer knows that

the workers will not depart by the first date of need, and in no event

later than such date of need. At the same time, the employer shall

notify the local office of the workers' expected departure date, if

known. No further notice is necessary if the workers depart by the

stated date of departure.

(B) If the employer did not notify the local office of the expected

departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or

if the H-2A workers do not leave for the place of employment on or

before the stated date of departure, the employer shall notify the

local employment office in writing (or orally, confirmed in writing) as

soon as the employer becomes aware of the expected departure date, or

that the workers did not depart by the stated date and the new expected

departure date, as appropriate.

(2) Requirement for Active Job Order. The employer shall keep an

active job order on file until the ``50-percent rule'' assurance at

Sec. 655.103(e) of this part is met, except as provided by paragraph

(f) of this section.

(3) Referrals by ES System. The ES system shall continue to refer

to the employer U.S. workers who apply as long as there is an active

job order on file.

* * * * *

Signed at Washington, DC, this 22nd day of June, 1999.

Raymond L. Bramucci,

Assistant Secretary for Employment and Training.

[FR Doc. 99-16444 Filed 6-28-99; 8:45 am]

BILLING CODE 4510-30-U