E9-8815. Temporary Agricultural Employment of H-2A Aliens in the United States

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Interim Final Rule.

SUMMARY:

The Department of Labor (“Department” or “DOL”) is amending its regulations to extend the transition period of the application filing procedures currently in effect for all H-2A employers with a date of need on or before July 1, 2009, as established in the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. The transition period is extended to include all employers with a date of need on or before January 1, 2010.

DATES:

This Interim Final Rule is effective April 16, 2009. The grounds for making the rule effective upon publication in the Federal Register are set forth in SUPPLEMENTARY INFORMATION below. Interested persons are invited to submit written comments on the Interim Final Rule on or before May 18, 2009.

ADDRESSES:

You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB55, by any one of the following methods:

Federal e-Rulemaking Portal: http://www.regulations.gov: Follow the Web site instructions for submitting comments.

Mail: Please submit all written comments (including disk and CD-ROM submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

Hand Delivery/Courier: Please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.

Please submit your comments by only one method. The Department will post all comments received on http://www.regulations.gov without making any change to the comments, including any personal information provided. The http://www.regulations.gov Web site is the Federal e-Rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security numbers, personal addresses, telephone numbers, and e-mail addresses in their comments as such submitted information will become viewable by the public via the http://www.regulations.gov Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's e-mail address unless the commenter chooses to include that information as part of his or her comment. Postal delivery in Washington, DC, may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above.

Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Department will also make all the comments it receives available for public inspection during normal business hours at the ETA Office of Policy Development and Research at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the rule available, upon request, in large print and as an electronic file on a computer disk. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the rule in an alternate format, contact the Office of Policy Development and Research at [phone] (VOICE) (this is not a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT:

William L. Carlson, PhD, Administrator, Office of Foreign Labor Certification, Employment and Training Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone [phone] (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. The Need for Extending H-2A Transition Procedures

On December 18, 2008, the Department published final regulations revising title 20 of the Code of Federal Regulations (20 CFR), part 655, and title 29 of the Code of Federal Regulations (29 CFR), parts 501, 780, and 788 (the “H-2A Final Rule”). See 73 FR 77110, Dec. 18, 2008. The H-2A Final Rule replaced the previous versions of 20 CFR part 655 subparts B and C (2008), and amended parts of 29 CFR part 501 (2008) that, in large part, were published at 52 FR 20507, June 1, 1987. The H-2A Final Rule became effective on January 17, 2009.

The H-2A Final Rule significantly changes the H-2A labor certification process. The Final Rule provides for a transition period to enable employers to gradually change their process for recruitment and solicitation of workers, both foreign and domestic, and become accustomed to the filing procedures delineated in the new regulations. The transition procedures set out an application process enabling employers to file applications with the Department and then to initiate recruitment following the new procedures. Currently, the transition period procedures apply to employers with a date of need for workers prior to July 1, 2009. The Department estimates that on or about April 17, 2009 employers with a date of need of July 1, 2009 or later will begin to use the regular filing procedures and thus commence the process of recruiting prior to filing as outlined in the December 18 Final Regulations.

On March 17, 2009, the Department published a Notice of Proposed Suspension of the Final Rule to provide the Department with an opportunity to review and reconsider the new requirements, while minimizing the disruption to the Department, State Workforce Agencies, employers, and workers. The Department further proposed to reinstate the rules that were in place on January 16, 2009, on an interim basis. The period for submitting comments on the Department's proposal closed on March 27, 2009. The Department received over 800 unique, substantive comments on its proposal and is currently in the process of considering those comments. Because of the time required to carefully consider all the comments on the proposed suspension, the Department will not be able to complete its analysis of the comments before employers with dates of need beginning July 2, 2009 are expected to commence the process of pre-filing recruitment on April 17, 2009, in accordance with the Final Rule. The full implementation schedule of the regulation requires employers with a date of need for workers on or after July 1, 2009, to engage in full recruitment prior to filing an application for H-2A certification. The regulation calls for such pre-filing recruitment to take place at least 75 days prior to the date of need for workers. Seventy-five days from a date of need of July 1, 2009—the first date anyone with a date of need of July 1, 2009, would actually need to begin pre-filing recruitment—is April 17, 2009.

Accordingly, the Department has determined that an extension of the period in which the transition procedures are available is necessary. This is required for the following reasons. First, absent an extension of the transition procedures, the Department will be unable to designate traditional and expected labor supply States in which positive recruitment must take place, as required by statute. Under the Final Rule, employers must engage in positive recruitment consistent with Section 218(b)(4) of the Immigration and Nationality Act (INA). In particular, the regulation at 655.102(i) requires employers to engage in positive recruitment in traditional or expected labor supply States in which there are a significant number of qualified domestic workers who would be willing and available for work in those States. Under the transition procedures, employers are provided that information as part of their post-filing recruitment instructions. However, employers with dates of need after July 1, 2009 would be subject to the pre-filing recruitment model of the Final Rule and would no longer have access to that information when conducting recruitment. Rather, the Final Rule requires the Department to first solicit information from a broad range of sources and then publish an annual determination for each State, of the States where the sources of traditional or expected labor supply would be (the “Secretary's Annual Determination”). 20 CFR 655.102(i), 73 FR 77215, Dec. 18, 2008. However, that information would have to be solicited through a notice in the Federal Register at least 120 days before the announcement of the Secretary's Annual Determination, allowing the public to provide the Department with information to assist the Secretary in making her determination. Id. In order for the first Annual Determination to have been timely, the Department would have had to publish the solicitation before the Final Rule's effective date, effectively implementing a provision of the Final Rule before the rule itself. Accordingly, the Department is evaluating how best to implement this provision.

Second, without an extension of the transition period, the Department would not be able to meet its statutory obligation under Section 218(b)(4) of the INA to designate traditional or expected labor supply States in which there are a significant number of qualified domestic workers who would be willing and available for work in those States. The absence of such a designation would create a gap in the recruitment process since employers would effectively be excused from engaging in recruitment in such States. The nation's current unemployment rate of 8.5%—the worst that it has been in nearly 25 years—makes it even more compelling for the Department to designate, and employers to conduct recruitment in, traditional or expected labor supply States. Given the current economic conditions, it would be contrary to the public interest and detrimental to the nation's economic well-being to deprive U.S. workers of the opportunity to apply for jobs that they would be willing and available to perform. Additionally, extending the transition period merely continues the longstanding practice of positive multi-state recruitment by employers. Accordingly, an extension of the transition period, with direct notice to employers of their expected recruitment in States of traditional or expected labor supply (and a suitable time frame for its execution), is necessary.

Because it would be impossible to solicit such information and issue the Determination in time for employers with start dates of July 1, 2009, the Department believes it is appropriate to extend the transition period procedures in 20 CFR 655.100(b)(2) to all employers filing H-2A applications with the Department that have a date of need prior to January 1, 2010. This will extend the transition procedures fully until mid-October, 2009, at which time employers will begin to initiate recruitment under the full final regulatory procedures, absent any further Department action. Employers requiring H-2A temporary agricultural workers to start work before January 1, 2010, will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2).

II. Administrative Information

A. Executive Order 12866—Regulatory Planning and Review

Under Executive Order (E.O.) 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O. defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

The Department has determined that this Interim Final Rule is not an “economically significant regulatory action” under Section 3(f)(1) of E.O.12866. The procedures for extending the time during which employers seeking H-2A workers will file pursuant to the transition procedures will not have an economic impact of $100 million or more. The regulation will not adversely affect the economy or any sector thereof, productivity, competition, jobs, the environment, nor public health or safety in a material way. The Department has also determined that this Interim Final Rule is a “significant regulatory action” under Section 3(f)(4) of the E.O., and accordingly OMB has reviewed this Interim Final Rule.

Summary of Impacts

The change in this Interim Final Rule is expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented. Employer costs for newspaper advertising for the conduct of positive recruitment in traditional or expected labor supply states will not increase as a result of this Interim Final Rule.

B. Regulatory Flexibility Analysis

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires that a regulatory flexibility analysis be prepared and made available for public comment. The RFA must describe the impact of the rule on small entities. See 5 U.S.C. 603(a). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have significant economic impact on a substantial number of small entities. The Deputy Assistant Secretary of ETA has notified the Chief Counsel for Advocacy, Small Business Administration (SBA), and certifies under the RFA at 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not substantively change existing obligations for employers who choose to participate in the H-2A temporary agricultural worker program.

The factual basis for such a certification is that even though this rule can and does affect small entities, there are not a substantial number of small entities that will be affected, nor is there a significant economic impact upon those small entities that are affected. Of the total 2,089,790 farms in the United States, 98 percent have sales of less than $750,000 per year and fall within SBA's definition of small entities. In FY 2007, however, only 7,725 employers filed requests for only 80,294 workers. That represents fewer than 1 percent of all farms in the United States. Even if all of the 7,725 employers who filed applications under H-2A in FY2007 were small entities, that is still a relatively small number of employers affected, and this is expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented.

C. Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501 et seq.) directs agencies to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector to determine whether the regulatory action imposes a Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C. 658(5)-(7) to include any provision in a regulation that imposes an enforceable duty upon State, local, or tribal governments, or imposes a duty upon the private sector which is not voluntary. Further, each agency is required to provide a process where State, local, and tribal governments may comment on the regulation as it develops, which further promotes coordination between the Federal and the State, local, and tribal governments.

This Interim Final Rule imposes no enforceable duty upon State, local or tribal governments, nor does it impose a duty upon the private sector that is not voluntary. In fact, the Interim Final Rule imposes no duties whatsoever upon State, local or tribal governments. The duties imposed are completely upon the Federal government—the Chicago National Processing Center of the Office of Foreign Labor Certification—and on the employers who will continue to recruit, but by personalized instruction rather than through compliance with a Notice in the Federal Register.

D. Executive Order 13132—Federalism

Executive Order 13132 addresses the Federalism impact of an agency's regulations on the States' authority. Under E.O. 13132, Federal agencies are required to consult with States prior to and during the implementation of national policies that have a direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Further, an agency is permitted to limit a State's discretion when it has statutory authority and the regulation is a national activity that addresses a problem of national significance.

This Interim Final Rule has no direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The continuation of a procedure by which employers comply with a statutory recruitment requirement has no direct impact on the States.

E. Executive Order 13175—Indian Tribal Governments

Executive Order 13175 requires Federal agencies to develop policies in consultation with tribal officials when those policies have tribal implications. This Interim Final Rule regulates the H-2A visa program and does not have tribal implications. Therefore, the Department has determined that this E.O. does not apply to this rulemaking.

F. Assessment of Federal Regulations and Policies on Families

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Federal regulations and policies on families. The assessment must address whether the regulation strengthens or erodes the stability, integrity, autonomy, or safety of the family.

This Interim Final Rule does not have an impact on the autonomy or integrity of the family as an institution, as it is described under this provision. The Department has determined that there are no costs associated with the Interim Final Rule; even if there were, however, they are not of a magnitude to adversely affect family well-being.

G. Executive Order 12630—Protected Property Rights

Executive Order 12630, Governmental Actions and the Interference with Constitutionally Protected Property Rights, prevents the Federal government from taking private property for public use without compensation. It further institutes an affirmative obligation that agencies evaluate all policies and regulations to ensure there is no impact on constitutionally protected property rights. Such policies include rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. The Department has determined this rule does not have takings implications.

H. Executive Order 12988—Civil Justice Reform

Section 3 of E.O. 12988, Civil Justice Reform, requires Federal agencies to draft regulations in a manner that will reduce needless litigation and will not unduly burden the Federal court system. Therefore, agencies are required to review regulations for drafting errors and ambiguity; to minimize litigation; ensure that it provides a clear legal standard for affected conduct rather than a general standard; and promote simplification and burden reduction.

This Interim Final Rule has been drafted in clear language and with detailed provisions that aim to minimize litigation. The purpose of this rule is to continue the transition procedures to enable employers to continue to comply with their statutory recruitment requirements. Therefore, the Department has determined that the regulation meets the applicable standards set forth in Section 3 of E.O. 12988.

Plain Language

Every Federal agency is required to draft regulations that are written in plain language to better inform the public about policies. The Department has assessed this Interim Final Rule under the plain language requirements and determined that it follows the government's standards requiring documents to be accessible and understandable to the public.

I. Executive Order 13211—Energy Supply

This Interim Final Rule is not subject to E.O. 13211, which assesses whether a regulation is likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, the Department has determined that this rule does not represent a significant energy action and does not warrant a Statement of Energy Effects.

J. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Information collections in this Interim Final Rule have been previously approved under OMB No. 1205-0466. No change in that collection is proposed by this Interim Final Rule.

K. Good Cause Exception

For reasons identified in the preamble, the Department finds good cause to adopt this Interim Final Rule, effective immediately, and without prior notice and comment. See 5 U.S.C. 553(b)(3) and 553(d)(3). DOL has determined that it would be impracticable, unnecessary, and contrary to the public interest to delay the effective date of this rule. The reasons for extending the transition period, discussed above, lead the Department to believe that immediate action must be taken to ensure that the Department and employers are able to meet their statutory obligations and to prevent confusion, ensure program integrity, and maximize the availability of job opportunities for the U.S. workforce during a time of economic crisis. As such, a delay in promulgation of this rule past the date of publication would confuse and potentially disrupt the program to the detriment of the public interest.

List of Subjects in 20 CFR Part 655

• Administrative practice and procedure
• Foreign workers
• Employment
• Employment and training
• Enforcement
• Forest and forest products
• Fraud
• Health professions
• Immigration
• Labor
• Passports and visas
• Penalties
• Reporting and recordkeeping requirements
• Unemployment
• Wages
• Working conditions

For the reasons stated in the preamble, the Department amends 20 CFR part 655 as follows:

PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS 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)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Public Law 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Public Law 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Public Law 103-206, 107 Stat. 2428; sec. 412(e), Public Law 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and 1188; and 8 CFR 214.2(h).

Subparts A and C issued under 8 CFR 214.2(h).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).

Subparts D and E authority repealed.

Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 323(c), Public Law 103-206, 107 Stat. 2428.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Public Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).

Subparts J and K authority repealed.

Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

2. Amend § 655.100 by revising paragraph (b)(1) and the introductory text of paragraph (b)(2) to read as follows:

§ 655.100

Overview of subpart B and definition of terms.

* * * * *

(b) * * *

(1) Compliance with these regulations. Employers with a date of need for H-2A workers for temporary or seasonal agricultural services on or after January 1, 2010 must comply with all of the obligations and assurances required in this subpart.

(2) Transition from former regulations. Employers with a date of need for H-2A workers for temporary or seasonal agricultural services prior to January 1, 2010 will file applications in the following manner:

* * * * *

Signed in Washington, DC, this 14th day of April 2009.

Douglas F. Small,

Deputy Assistant Secretary, Employment and Training Administration.