01-24208. Labor Certification and Petition Process for the Temporary Employment of Nonimmigrant Aliens in Agriculture in the United States; Delegation of Authority To Adjudicate Petitions; Deferral of Effective Date

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Interim final rule with request for comments; deferral of effective date of final rule.

SUMMARY:

The Department of Labor (DOL or Department) is deferring the effective date of its final rule implementing the delegation of authority to adjudicate petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States. The Immigration and Naturalization Service (INS) is also delaying the delegation of INS' authority to the Department to adjudicate petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States. The Department has the need for additional time to effectively implement the delegation of authority, develop new systems and procedures, and to train and brief members of the affected public and the employment and training community in the new systems and procedures. Therefore the Department has determined to defer the effective date of the Final Rule promulgated at 65 FR 43538 (July 13, 2000). Comments are being requested on this action. The rule being deferred amends the Employment and Training Administration (ETA) regulations to implement the delegation of authority to adjudicate petitions for temporary nonimmigrant agricultural workers (H-2A's) from the INS to the Department.

DATES:

The effective date of the final rule in FR Doc. 00-17641, published at 65 FR 43538 (July 13, 2000), was deferred from November 13, 2000, until October 1, 2001, by an interim final rule published in FR Doc. 00-28897, published at 65 FR 67628 (November 13, 2000). This interim final rule defers the effective date of the final rule until September 27, 2002.

Comments: Comments are invited on the deferral of the effective date. Submit comments on or before October 29, 2001.

ADDRESSES:

Send comments to Assistant Secretary of Labor for Employment and Training, Attention: Division of Foreign Labor Certifications, Employment and Training Administration, 200 Constitution Avenue, NW., Room N-4456, Washington, DC 20210.

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 [phone] (this is not a toll-free number)

SUPPLEMENTARY INFORMATION:

The Department of Labor (DOL or Department) published a final rule in this rulemaking in the Federal Register at 65 FR 43538 (July 13, 2000), with an effective date of November 13, 2000, implementing a delegation of authority from the INS to the Department to adjudicate petitions for the temporary employment of nonimmigrant aliens in agriculture in the United States. Concurrently, the INS published a Final Rule at 65 FR 43528 (July 13, 2000) with an effective date of November 13, 2000, transferring to the Secretary of Labor the authority to adjudicate petitions for temporary agricultural workers and the authority to decide appeals on these decisions and to make determinations for revocation of petition approvals.

Subsequently, the INS at 65 FR 67616 (November 13, 2000) published a final rule and DOL at 65 FR 67628 (November 13, 2000) published an interim final rule (IFR) deferring the effective dates of their final rules. The Department in its IFR invited comments on the deferral of the effective date. No comments were received by DOL on the deferral of the effective date.

The Department also reopened and extended the comment period at 65 FR 50170 (August 17, 2000) on a companion notice of proposed rulemaking (NPRM) published at 65 FR 43545 (July 13, 2000) setting forth implementation measures necessary to the successful implementation of the delegation of authority to adjudicate petitions. Among the implementation measures was a new Form ETA 9079, Application for Alien Employment Certification and H-2A Petition, which consolidated two current forms, ETA 750 Application for Alien Employment Certification) and INS I-129 (Petition for Nonimmigrant Workers). The NPRM also set forth the implementation of a new fee schedule to collect a combined fee for processing the petition and labor certification application. It is contemplated that under the administrative procedures arrived at by INS and the Employment and Training Administration to implement the delegation of the petition authority from INS to the Department, DOL will collect the petition fee on behalf of INS and will be reimbursed by INS for the costs involved in processing the H-2A petition.

The INS reopened and extended the comment period at 65 FR 50166 (August 17, 2000) on a proposed rule published concurrently at 65 FR 43535 (July 13, 2000) with its final rule delegating the authority to adjudicate petitions to DOL. The INS proposed rule provided, among other things, that all petition requests and extensions of stay and change of status petitions must be filed with DOL and the current INS petition fee will be collected by DOL as part of a combined fee.

Commenters raised a number of issues about the proposed rules. The comments received by the Department as a result of the August 17, 2000, reopening and extension of the proposed rule did not provide sufficient information to permit the Department to draft a final rule concerning a number of issues, such as the design of the new form and the fee structure. Consequently, the Department intends in the near future to again reopen and extend the comment period on the July 13, 2000, NPRM. In a document published elsewhere in this issue of the Federal Register, the Department is reopening and extending the comment period on the NPRM. In another document, the Department is announcing informal briefings to allow agricultural workers and employers and other interested parties to communicate directly with the Department regarding the proposed rule changes which would require employers to submit fees for temporary labor certification and the associated H-2A petition with a consolidated application form at the time of filing, and as indicated above, sets forth a new fee structure for the labor certification.

Finalizing the proposed rules is essential to the effective implementation of any delegation of authority to DOL to adjudicate petitions for temporary employment of nonimmigrant aliens in the United States. Allowing the Final Rule to become effective without finalizing action on the proposed rule published by the Department would lead to administrative uncertainty and result in confusion on the part of employers, agricultural workers, and other interested parties. Accordingly, the Department has concluded good causes exists to defer the effective date of the July 13, 2000, Final Rule until the rulemaking on the companion proposal is completed. At this time we are extending the effective date of the final rule published at 65 FR 43538 for one year, until October 27, 2002. The regulatory certifications set forth in the July 13, 2000, Final Rule apply to this deferral as well.

Signed at Washington, DC, this 24th day of September 2001.

Emily Stover DeRocco,

Assistant Secretary for Employment and Training.