2024-29026. Agency Information Collection Activities; Comment Request; Criteria and Non-Criteria Agricultural Clearance Order Forms and H-2A Application for Temporary Employment Certification in States and by Employers Covered by Injunction of the ...

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Department of Labor

Employment and Training Administration

ACTION:

Notice.

SUMMARY:

The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “Criteria and Non-Criteria Agricultural Clearance Order Forms and H-2A Application for Temporary Employment Certification in States and by Employers Covered by Injunction of the Farmworker Protection Rule” and the related information collection and retention requirements (Office of Management and Budget (OMB) Control Number 1205-0562), which covers Forms ETA-9142A, Application for H-2A Temporary Employment Certification; ETA-9142A, Appendix A, Assurances and Obligations; ETA-9142A, Final Determination: H-2A Temporary Labor Certification Approval; ETA-790, Agricultural Clearance Order; ETA-790A, H-2A Agricultural Clearance Order; ETA-790/790A, Addendum A, Additional Crops or Agricultural Activities; ETA-790/790A, Addendum B, Additional Worksite and/or Housing Information; ETA-790B, (Non-Criteria) Agricultural Clearance Order; and related form instructions. This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).

DATES:

Consideration will be given to all written comments received by February 10, 2025.

ADDRESSES:

A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained for free by contacting Brian Pasternak, Administrator, Office of Foreign Labor Certification, by telephone at 202-693-8200 (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number), or by email at [e-mail].

Instructions: Submit written comments about, or requests for a copy of, this ICR by email at [e-mail]. To ensure proper consideration, include the OMB Control number 1205-0562.

FOR FURTHER INFORMATION CONTACT:

Patrice Gibson, by telephone at 202-693-8200 (this is not a toll-free number) or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.

The information collection is required by secs. 101(a)(15)(H)(ii)(a), 214(c), and 218 of the Immigration and Nationality Act (INA) (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188), as well as 8 CFR 214.2(h)(5) and 20 CFR part 655, subpart B, and 20 CFR part 653, subpart F, and 29 CFR part 501. The H-2A visa program enables employers to bring nonimmigrant foreign workers to the United States to perform agricultural work of a seasonal or temporary nature as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(a). Before an employer can file a petition with the Department of Homeland Security (DHS) to import temporary workers as H-2A nonimmigrants, the INA and DHS regulations require an employer to first obtain a determination from DOL certifying whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary agricultural worker and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed workers in the U.S. 8 U.S.C. 1188, INA sec. 218; 8 CFR 214.2(h)(5)(i), (ii), and (iv)(B). DOL's regulations establish the processes by which an employer must obtain a temporary labor certification from DOL and the rights and obligations of workers and employers. 20 CFR part 655, subpart B; 29 CFR part 501.

This ICR, OMB Control No. 1205-0562, includes the collection of information related to the temporary labor certification process and agricultural clearance order process, which may or may not be connected to the H-2A program. The information contained in the application Form ETA-9142A, H-2A Application for Temporary Employment Certification, and job order Form ETA-790/790A, H-2A Agricultural Clearance Order, together serve as the basis for the Secretary of Labor's determination that qualified U.S. workers are not available to perform the services or labor needed by the employer and that the wages and working conditions of similarly employed workers in the U.S. will not be adversely affected by the employment of H-2A workers. Employers use Appendix A of Form ETA-9142A to attest that they will comply with all of the terms, conditions, and obligations of the H-2A program. ETA is seeking a three-year extension, without change, for each of these forms.

DOL uses Form ETA-9142A and Forms ETA 790/790A to meet its statutory and regulatory responsibilities for administering the H-2A program. Similarly, DOL uses Forms ETA 790/790B to administer the Agricultural Recruitment System (ARS). Employers seeking to use the H-2A program to employ nonimmigrant workers to perform agricultural services or labor on ( print page 99909) a temporary or seasonal basis must submit a completed agricultural clearance order (Forms ETA790/790A) and Application for Temporary Employment Certification (Form ETA 9142A) electronically through the Office of Foreign Labor Certification's Foreign Labor Application Gateway (FLAG) system. Employers seeking to employ U.S. workers through the ARS intrastate and interstate job clearance system, without also intending to use the H-2A visa program, must submit a completed agricultural clearance order (Forms ETA 790/790B) to the applicable State Workforce Agency.

DOL published an emergency PRA Federal Register Notice that would allow the Department to retain the current H-2A and ARS forms for use by the parties subject to the Kansas v. DOL litigation, while also providing DOL the authority to simultaneously proceed with implementation of the new H-2A forms under OMB number 1205-0466 that went into effect under the Farmworker Protection Rule on September 12, 2024, and the new ARS forms under OMB number 1205-0134 that went into effect on July 11, 2024. The emergency PRA clearance would allow DOL to utilize prior approved Forms ETA 790, 790A, 790B, and 9142A, which are necessary to ensure continuity in administering the H-2A program and the ARS nationwide. See 89 FR 73725. On September 12, 2024, OMB approved and granted DOL emergency approval of this new OMB Control number through February 28, 2025, and provided a new OMB Control Number of 1205-0562 for this new ICR.

This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See5 CFR 1320.5(a) and 1320.6.

Interested parties are encouraged to provide comments to the contact shown in the ADDRESSES section. Comments must be written to receive consideration, and they will be summarized and included in the request for OMB approval of the final ICR. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1205-0562.

Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.

DOL is particularly interested in comments that:

• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize 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 submission of responses).

Agency: DOL-ETA.

Type of Review: Extension Without Changes.

Title of Collection: Criteria and Non-Criteria Agricultural Clearance Order Forms and H-2A Application for Temporary Employment Certification in States and by Employers Covered by Injunction of the Farmworker Protection Rule.

Forms: ETA-9142A, H-2A Application for Temporary Employment Certification; ETA-9142A— Appendix A; ETA-9142A— Final Determination: H-2A Temporary Labor Certification Approval; ETA-790, Agricultural Clearance Order; ETA-790A, H-2A Agricultural Clearance Order; ETA-790/790A— Addendum A; ETA-790/790A— Addendum B; ETA-790B (Non-Criteria) Agricultural Clearance Order.

OMB Control Number: 1205-0562.

Affected Public: Individuals or Households, Private Sector—businesses or other for-profits, Government, State, Local and Tribal Governments.

Estimated Number of Respondents: 11,905.

Frequency: On Occasion.

Total Estimated Annual Responses: 141,472.

Estimated Average Time per Response: Varies.

Estimated Total Annual Burden Hours: 63,906.94 hours.

Total Estimated Annual Other Cost Burden: $0.

Authority:44 U.S.C. 3506(c)(2)(A).

José Javier Rodríguez,

Assistant Secretary for Employment and Training, Labor.