02-25031. Delegating the Secretary of Labor the Authority To Adjudicate Certain Temporary Agricultural Worker (H-2A) Petitions

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Withdrawal of final rule.

SUMMARY:

On July 13, 2000, the Immigration and Naturalization Service (Service) published a final rule in the Federal Register, delegating the adjudication of certain petitions for agricultural workers (H-2A) to the United States Department of Labor (DOL). Subsequently, the effective date for that final rule was delayed until October 1, 2002. On November 8 and 16, 2001, the DOL held public briefings concerning the delegations. Based on the public response at these briefings the DOL has determined that the delegation of authority for adjudicating H-2A petitions would not benefit the public as initially contemplated. In consideration of DOL's actions and subsequent events, the delegation of authority does not appear to be appropriate at this time. Accordingly the Attorney General is withdrawing the July 13, 2000, final rule delegating authority to the DOL.

DATES:

The final rule amending 8 CFR parts 103 and 214 published in the Federal Register at 65 FR 43528 (July 13, 2000) and deferred at 65 FR 67616 (November 13, 2000) and 66 FR 49514 (September 28, 2001) is withdrawn as of October 1, 2002.

FOR FURTHER INFORMATION CONTACT:

Mari F. Johnson, Adjudications Officer, Business and Trade Services Branch, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone [phone].

SUPPLEMENTARY INFORMATION:

Purpose of Delegating Adjudication of Certain H-2A Petitions to the DOL

In an attempt to streamline the processing of petitions filed for agricultural workers, the Department of Justice in consultation with the DOL, decided that the Attorney General's authority to adjudicate certain H-2A petitions should be delegated to the DOL. It was estimated that the delegation of authority would shorten the processing time of H-2A petitions by as much as 10 days.

Regulations Delegating H-2A Authority to DOL and Extensions of the Effective Date

On July 13, 2000, the Attorney General published a final rule in the Federal Register at 65 FR 43528-43534 delegating the authority to adjudicate certain H-2A petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States to the DOL. The final rule, which amended 8 CFR parts 103 and 214, was to take effect on November 13, 2000.

Also on July 13, 2000, the DOL published a final rule at 65 FR 43538 with an effective date of November 13, 2000, implementing the above-mentioned delegation of authority from the Service to the DOL.

On November 13, 2000, the Service published a final rule at 65 FR 67616, and DOL published an interim final rule at 65 FR 67628, each delaying the effective date of their respective July 13, 2000, H-2A rules until October 1, 2001.

On September 28, 2001, the Service at 66 FR 49514 published a subsequent final rule, and on September 27, 2001, DOL at 66 FR 49275 published another interim final rule with requests for comments, further delaying the effective date of the H-2A final rule until October 1, 2002. DOL also published a proposed rule at 66 FR 49329 on September 27, 2001 in conjunction with its interim rule of the same date announcing that it was holding two public briefings in order to obtain additional comments concerning the delegation of authority.

Proposed Regulations Regarding Procedures for Processing H-2A Petitions

On July 13, 2000, and concurrently with the H-2A final delegation of authority rule, the Service at 65 FR 43535 published a companion notice of proposed rulemaking (NPRM) for public comment, proposing among other things that all petition requests, extensions of stay, and change of status petitions would be filed with DOL and that the current Service petition fee would be collected by DOL as part of the combined fee.

Concurrently with publication of the Service's proposed rule, the DOL published at 65 FR 43545 a companion NPRM setting forth implementation measures necessary for the successful implementation of the delegation of authority to adjudicate petitions.

On August 17, 2000, at 65 FR 50166, the Service reopened and extended the comment period for the proposed rule. Also on August 17, 2000, at 65 FR 50170, the DOL reopened and extended the comment period on its NPRM. This action was taken in order to obtain additional information from the public relating to the delegation such as the consolidation of forms and the appropriate fees as well as other issues.

Events Necessitating the Withdrawal of the Final Rule

The DOL held two public briefings to obtain additional information regarding the delegation of authority. The briefings were held at Washington, DC on November 8, 2001, and in Monterrey, California on November 16, 2001. After considering the comments received from the public at these two briefings, the DOL determined that the delegation of authority would not be a benefit to the public as initially contemplated. The attendees at these two briefings overwhelmingly disapproved of the transfer of authority between the two agencies, arguing that it would complicate the labor certification process rather than streamline it. Further, the attendees at the briefings expressed reservations about DOL's plans to consolidate the Service's Form I-129, Petition for Nonimmigrant Worker, with DOL's Form ETA-750A, Application for Alien Labor Certification.

In addition, subsequent to the initial proposal to delegate authority to DOL, the Service has changed its procedures and now requires that security checks be performed prior to the adjudication of any type of application and petition. The Service is more suited to perform these checks rather than the DOL.

Finally, the Administration has proposed that the nation's immigration function be reorganized within the newly established Department of Homeland Security. As a result, it does not appear that the delegation is appropriate at this time.

In consideration of these factors, the final rule published on July 13, 2000, at 65 FR 43528-45534 is being withdrawn in this final rule. In addition, in a document published elsewhere in this issue of the Federal Register, the Service is withdrawing the proposed rule that was published in the Federal Register on July 13, 2000, at 65 FR 43535.

The final rule published on July 13, 2000, can be withdrawn without further notice and comment because the delegation of authority to adjudicate petitions from the Attorney General to the Secretary of Labor constitutes a rule of agency practice or procedure within the meaning of section 5 U.S.C. 533(b)(A), and accordingly is exempt from the Administrative Procedure Act's notice and comment procedures. These procedural rules would not have made a substantive change in the rules, but instead would have transferred an existing procedural function from the one agency to another permitting employers to omit one step in the process of importing foreign agricultural workers. This rule nullifies that planned transfer, maintaining the status quo.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule is administrative in nature and merely withdraws a final rule published in the Federal Register.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely effect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States based companies to compete with foreign based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, relating to Civil Justice Reform.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Freedom of information
• Privacy
• Reporting and recordkeeping requirements
• Surety bonds

8 CFR Part 214

• Administrative practice and procedure
• Aliens
• Employment
• Foreign officials
• Health professions
• Reporting and recordkeeping requirements
• Students

Accordingly, the final rule amending 8 CFR parts 103 and 214 published in the Federal Register at 65 FR 43528 (July 13, 2000) is withdrawn.

Dated: September 27, 2002.

John Ashcroft,

Attorney General.