[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Proposed Rules]
[Pages 53244-53249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26320]
[[Page 53243]]
_______________________________________________________________________
Part III
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; Proposed Rule
Federal Register / Vol. 63, No. 191 / Friday, October 2, 1998 /
Proposed Rules
[[Page 53244]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 654 and 655
RIN 1205--AB19
Labor Certification Process for the Temporary Employment of
Nonimmigrant Aliens in Agriculture in the United States; Administrative
Measures To Improve Program Performance
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Proposed rule.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor proposes to amend its regulations relating to the
temporary employment of nonimmigrant agricultural workers (H-2A
workers) in the United States. The proposed amendments would reduce the
period of time from 30 days to 15 days prior to the date worker housing
will be occupied that employers are required to assure that their
housing is in full compliance with applicable housing standards, and
will be available for a pre-occupancy housing inspection; reduce the
time from 60 to 45 days before the date the employer needs agricultural
workers that an application for temporary agricultural labor
certification must be filed; provide an exception to the requirement
that employers use registered farm labor contractors (FLC) when it is
the prevailing practice in an area and occupation for non-H-2A
employers to use such contractors, if a particular FLC has a
demonstrated history of using undocumented aliens or serious labor
standard violations; eliminate 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 employment; and transfer the
responsibility for approving H-2A visa petitions for workers outside of
the United States, including petition approval for replacement of
certified H-2A workers upon proof of the H-2A workers' repatriation, to
the Department of Labor from the Commissioner, Immigration and
Naturalization Service.
These proposals represent part of an ongoing effort to streamline
and improve the operation of the H-2A program. This proposal discusses
program changes being implemented administratively as well as proposals
for regulatory changes for public review and comment.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before December 1, 1998.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-4456, Washington, DC 20210, Attention: John R.
Beverly, III, Director, U.S. Employment Service.
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) 219-4369 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Statutory Standard and Implementing Regulations
The decision whether to grant or deny an employer's petition to
import a nonimmigrant farm worker to the United States for the purpose
of temporary employment is the responsibility of the Attorney General's
designee, the Commissioner of the Immigration and Naturalization
Service (INS). The Immigration and Nationality Act (INA) (8 U.S.C. 1101
et seq.) provides that the Attorney General may not approve such 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
(Secretary) 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.
II. Plan To Improve H-2A Program
The Administration has, for some time, been pursuing a dialogue
among the Departments of State, Justice (INS), Labor and Agriculture
regarding possible changes to the H-2A temporary nonimmigrant program
(H-2A program) that could help streamline the program, improve
operations, and address complaints raised by some users of the program
without weakening worker protections. The General Accounting Office
(GAO) and the Department's Office of Inspector General (OIG) have
recently completed in-depth reviews of the H-2A program, providing
useful analysis and findings and making several recommendations for
program changes, many of which have been accepted by the administering
agencies. This rulemaking represents the first step towards
implementing changes to improve operations of the H-2A program, putting
forward a number of proposals for regulatory changes affecting DOL and
INS activities and requirements. In addition, DOL describes below some
program changes being implemented administratively. DOL is continuing
to explore other ways to further streamline and improve the operation
of the H-2A program and welcomes input and dialogue with the affected
public on other key H-2A issues.
A. Administrative Changes
Some H-2A program changes made to enhance effectiveness and
efficiency while maintaining worker protections were made by
administrative directives in the form of Field Memoranda (FM) issued by
the ETA national office to its 10 Regional Administrators (RA). 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. 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.
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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,
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, reaffirms and clarifies 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.
The Department is also committed to improving its performance in
meeting the existing requirement that within 7 days after the initial
receipt of an employer's application, the employer be notified of
deficiencies that preclude acceptance of the application, and to meet
the statutory requirement to issue certification (when such
certification is warranted) at least 20 days prior to the employer's
first date of need for agricultural workers.
B. H-2A Process Improvements Through Regulatory Amendments
The amendments being proposed by ETA are discussed below.
1. Time Limits for Employer Provided Housing To Be Available for
Inspection
Currently Sec. 654.403 of the regulations governing housing for
agricultural workers (20 CFR part 654, subpart E) provides that, for
employers to gain conditional access to the intrastate or interstate
agricultural clearance system, which is used for recruitment of non-
local workers, they must provide assurances that the employer-provided
housing will be in full compliance with the applicable standards 30
days before the housing is to be occupied. This is to allow time for a
pre-occupancy housing inspection by the local Employment Service
office. The housing regulations apply to all non-local agricultural job
opportunities filled through the Employment Service system whether or
not they are H-2A related. Reducing this lead time addresses a
frequently expressed concern of employers that a 1-month lead time for
employer-provided housing to meet applicable standards is not always
realistic. This concern is especially common among employers in
Northern States that need workers in March or April. Additionally,
local employment service staff have had difficulty inspecting employer-
provided housing located in Northern States in late winter or early
spring. To address this problem, the proposed regulation will reduce
the time that worker housing must be available for a pre-occupancy
housing inspection from 30 to 15 days prior to occupancy. ETA is
convinced that the ``30-day assurance'' can be reduced without
lessening protections provided to U.S. and foreign workers.
2. Reduction in Time Limit To File Labor Certification Applications
The regulation at Sec. 655.101(c) requires that employers file an
H-2A labor certification application no less than 60 days before the
first date the employer estimates the H-2A workers will be needed.
Based on program experience, little or no productive recruitment of
U.S. workers occurs within the first 15 days after the application is
received. The overwhelming majority of qualified U.S. workers do not
apply for and make a commitment to temporary agricultural employment
earlier than 45 days before the date their services are required.
Further, a lead time of 45 days should allow sufficient time for DOL to
review the application and meet the requirements to notify an employer
of any deficiencies within 7 days and to issue the labor certification
not later than 20 days before the first date of need. See 8 U.S.C.
1188(c)(2)(A) and (c)(3)(A). Consequently, DOL is proposing to amend
the regulation at Sec. 655.101(c) to provide that H-2A applications
shall be filed with the Regional Administrator no less than 45 calendar
days before the first date of need, as was recommended by the GAO.
3. Exception From Using Certain Farm Labor Contractors
The regulations at Sec. 655.103(f) require that employers applying
for H-2A labor certification must attempt to secure workers through
farm labor contractors (FLC), and to compensate FLC's 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. This requirement
recognizes that FLC's can be an effective source for recruiting U.S.
workers for jobs that would otherwise be filled by foreign temporary
workers. In some instances, FLC's have filled these jobs with
unauthorized workers and created potential vulnerabilities for growers
when the unauthorized workers are identified during INS enforcement
actions. At the same time, the furnishing of unauthorized workers--even
under the terms and conditions of an H-2A job order--can have an
adverse impact on U.S. workers. Similarly, when an FLC has a
demonstrated history of serious labor violations, employers should not
be compelled to provide an opportunity for recurrence of such
violations, nor incur a potential liability due to violations by their
contractor.
To minimize adverse effects on U.S. workers and to help assure that
employers do not inadvertently employ unauthorized workers hired and
supplied by FLC's, or expose themselves to potential liability by using
an FLC that has a history of serious violations of labor standards, an
amendment is being proposed to the current regulation to provide an
exception. The employer need not use an FLC on the Wage and Hour
Division's list of contractors whose certificates have been revoked or
on a list of employers who have been sanctioned for violations of
immigration laws and regulations. The rule also would provide a
procedure whereby the employer can demonstrate that an FLC has a
history of furnishing unauthorized workers or a history of serious
labor standards violations. If so demonstrated, the employer need not
use that FLC. This procedure is patterned after the existing procedure
at Sec. 655.106(g), which provides that employers may lodge complaints
against persons or entities that have willfully and knowingly withheld
U.S. workers prior to the arrival at the job site of H-2A workers in
order to force the hiring of U.S. workers under Sec. 655.103(e) (the 50
percent rule) of this part. That rule requires employers (with certain
exceptions for small employers) to hire qualified, eligible U.S.
workers who apply until 50% of the contract period has elapsed. Section
655.103(f) has been revised to add the complaint procedure at
Sec. 655.103(f)(3). It should be noted, however, that the structure of
Sec. 655.103(f) has been revised for clarity. Sections 655.103(f) (1),
(2), (4) and (5) are merely a redesignation of existing regulatory
provisions that are carried forward in the amended rule.
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4. Elimination of Requirement to Provide Notice of H-2A Worker's
Departure Date
Pursuant to Sec. 655.106 (e)(1), an employer is required to recruit
for U.S. workers through the date the H-2A workers depart for the
employer's place of employment (the departure date); this marks the
beginning of the contract period for administering the ``50 percent
rule.'' Employers are required to notify the local employment service
office, in writing, of the exact departure date. Program experience
indicates that the H-2A workers usually depart for the employer's place
of business the day before the date they are needed. In the interest of
streamlining H-2A procedures and to relieve employers of the
administrative burden of notifying the local office of the departure
date, it is proposed that this requirement be removed from the
regulations and the H-2A workers will be deemed to have departed for
the employer's place of business on the date immediately preceding the
first date of need for the foreign workers.
It should be noted, however, that the proposed amendment regarding
the departure date does not affect the employer's ability, provided for
by Sec. 653.501(d)(2)(v)(D), when using the interstate clearance
system, to notify the order-holding office of changes in the date of
need at least 10 days prior to the original date of need specified in
the job order. Such notification changes the date which starts the
employer's obligation to pay eligible U.S. workers for the first week
of work.
5. Transfer of Adjudication of Visa Petitions to the Department of
Labor
The H-2A labor certification process--from the filing of an
application with the Department of Labor to the issuance of a visa by
the Department of State, and the arrival of the H-2A workers at the
employer's place of work--has been criticized by some employers as
complicated, hard to understand, and too time consuming. In some
instances, the result is that foreign workers have not arrived by the
first date of the employer's need. In an effort to reduce the number of
steps, paperwork, and the time necessary to obtain foreign workers
necessary to perform critical agricultural functions, the Department of
Labor and the INS are proposing that the function of adjudicating visa
petitions be transferred to the Department of Labor, including petition
approval for replacement of a certified H-2A worker upon proof of the
worker's repatriation. (INS is proposing the transfer by a separate
proposed rule, soon to be published in the Federal Register.)
Accordingly, a new Sec. 655.114 is proposed to be added to the H-2A
regulations to authorize the proposed transfer of the INS visa
petitioning and adjudication function to the Department of Labor. This
change is expected to eliminate what can be a 2-to 3-week step in the
current pre-entry process. The Department of Labor is considering
adapting into the final rule the actual regulatory text currently found
in 8 CFR 214.2(h) within the text of 20 CFR 655.114. This would provide
the regulated community a single source for regulations governing the
H-2A petition process. The Department welcomes comments on this
rulemaking issue.
The INS has initiated steps in the development of a Notice of
Proposed Rulemaking to delegate to the Secretary of Labor certain
authorities conferred on the Attorney General under 8 U.S.C. 1184(c)
involving the petition by employers for H-2A workers.
Pursuant to section 103 of the INA, the INS Commissioner will
delegate to the Secretary of Labor the authority to determine on any
specific case whether an employer may import temporary agricultural
workers to the United States under section 101(a)(15)(H)(ii)(a) of the
INA. The INS will propose any changes in form or content of the
importing employer's petition which will be filed directly with the
Secretary of Labor. The Secretary of Labor will approve the petition
before a visa may be issued to an agricultural worker. The proposed
rule states broadly that such authority will be delegated. The final
rule will delineate DOL's functions with specificity.
Removing the INS adjudication will result in a streamlined process
through which an importing employer needs to file only with one Federal
agency. The Federal Government will ensure that the employer's petition
moves through the remainder of the process, eliminating the need for
the employer to interact with various different agencies. The Secretary
of State will receive petition approval information for purposes of
initiating the visa issuance process. This transfer does not affect the
procedures whereby the alien beneficiaries obtain visas or other entry
documents from the State Department or INS, as appropriate.
Further, the INS will propose streamlined processing for employers
seeking to replace one certified H-2A worker with another worker based
on proof that the first worker has repatriated.
It is estimated that, initially, it will take employers
approximately the same amount of time as it does currently to furnish
the information necessary to file a completed visa petition with an ETA
Regional Office since no change is contemplated in the information
requested from the current INS visa petition. The Department, however,
is planning to consolidate the labor certification application form and
the visa petition into one form that will support both labor
certification and visa petitioning requirements. Design and approval of
the new form may take up to 1 year from the time the responsibility for
visa approval is transferred to the Department. This consolidation of
forms will ultimately result in a substantial reduction of the
paperwork burden now placed on employers.
Executive Order 12866
The Department has determined that this proposed rule is a
``significant regulatory action'' within the meaning of Executive Order
12866 because of the novel legal and policy issues raised by the
rulemaking. However, this rule is not an ``economically significant
regulatory action'' 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
The Department of Labor has 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 does not have a significant economic impact on a substantial
number of small entities. All of the proposed amendments would
alleviate the administrative burden on employers seeking H-2A workers
and, at the same time, they would not singly or together have a
significant economic impact on any employer. Furthermore, the total
number of employers utilizing H-2A workers is only approximately 6,000.
Therefore, the proposed amendments would not have a significant
economic impact on a substantial number of small entities.
Paperwork Reduction Act
The proposed rule contains collections of information that are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA'95), 44 U.S.C. 3501 et seq.,
and the regulation at 5 CFR 1320. PRA'95 defines collection of
information to mean, ``the obtaining, causing to be
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obtained, soliciting, or requiring the disclosure to third parties or
the public of facts or opinions by or for an agency regardless of form
or format.'' (44 U.S.C. 3502 (3)(A)).
The title, description of the need for and proposed use of the
information, summary of the collections of information, description of
respondents, and frequency of response of the information collection
are described below with an estimate of the annual cost and reporting
burden, as required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2).
Included in the estimate is the time for reviewing instructions,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
ETA invites comments on whether the proposed collection of
information:
(1) Ensures that the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Estimates the projected burden accurately, including whether
the methodology and assumptions are valid;
(3) Enhances the quality, utility, and clarity of the
information to be collected; and
(4) Minimizes 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 submissions of responses.
Title: A Voluntary Procedure to Obtain an Exception to a
Requirement that Employers Must Use Registered Farm Labor Contractors
(FLC) in Applying for Temporary Agricultural H-2A Workers.
OMB Number: 1205-0NEW.
Frequency: On Occasion.
Affected Public: Business or other for-profit; Farms; Ranches.
Number of Respondents: 600 (estimated 10% of 6,000 H-2A employers).
Total Responses: 600.
Estimated Time per Respondent: It is estimated that it will take
those few employers who chose to avail themselves of the option of
filing complaints about an FLC not on a list maintained by ESA or INS
that has a demonstrated history of employing or providing a substantial
number of unauthorized workers, or a history of serious labor standard
violations, about 1 hour to assemble the necessary information to
support a credible complaint.
Total Burden Hours: 600 hours.
Total annualized capital/startup costs: 0.
Total annual costs: (operating/maintaining systems or purchasing
services): 0.
Description: The proposal will provide an exception to the
requirement that employers use registered farm labor contractors (FLCs)
when it is the prevailing practice in an area and occupation for non-H-
2A employers to use such contractors, if a particular FLC has a
demonstrated history of using undocumented aliens or serious labor
standard violations.
The Agency has submitted a copy of the information collection
request to OMB for its review and approval. Interested parties are
requested to send comments regarding this information collection to the
Office of Information and Regulatory Affairs, Attn: ETA Desk Officer,
OMB, New Executive Office Building, 725 17th Street NW, Room 10235,
Washington, D.C. 20503.
Comments submitted in response to this notice will be summarized
and/or included in the request for Office of Management and Budget
approval of the final information collection request; they will also
become a matter of public record.
Copies of the referenced information collection request may be
obtained by contacting Dennis 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) 219-4369 (this is not a toll-free number).
With respect to the transfer of the visa adjudication function to
DOL, it is estimated that, initially, it will take employers about the
same amount of time to furnish the information necessary to file a
completed visa petition with an ETA Regional Office since no change is
contemplated in the information requested from the current INS visa
petition. The Department, however, is planning to consolidate the labor
certification application form and the visa petition form into one form
to obtain information that will support both labor certification and
visa petitioning requirements. This planned consolidation of forms will
ultimately result in a substantial reduction of the paperwork burden
now placed on employers.
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, Forests and forest products,
Guam, Health professions, Immigration, Labor, Longshore and harbor
workers, Migrant labor, Nurse, Penalties, Registered nurse, Reporting
and recordkeeping requirements, Specialty occupation, Students, Wages.
Proposed Rule
Accordingly, parts 654 and 655 of chapter V of title 20, Code of
Federal Regulations, are proposed to be 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 ``15 calendar days'' is added in lieu thereof.
b. In paragraph (a)(3) remove the phrase ``30 calendar days'' and
add in lieu thereof the phrase ``15 calendar days''.
PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
3. 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).
[[Page 53248]]
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.
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]
4. 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]
5. 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 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 unit modifier ``60-calendar-day'' is
removed in the two places it appears and the compound modifier ``45-
calendar-day'' is added in lieu thereof.
6. Section 655.103 is amended by revising paragraph (f) to read as
follows:
Sec. 655.103 Assurances.
* * * * *
(f) Other recruitment--(1) RA required recruitment. The employer
shall perform the other specific recruitment and reporting activities
specified in the notice from the RA required by Sec. 655.105(a) of this
part, and shall engage in positive recruitment of U.S. workers to an
extent (with respect to both effort and location) no less than that of
non-H-2A agricultural employers of comparable or smaller size in the
area of employment.
(2) Farm labor contractors. When it is the prevailing practice in
the area of employment and for the occupation for non-H-2A agricultural
employers to secure U.S. workers through farm labor contractors (FLC)
and to compensate FLC's with an override for their services, the
employer shall make the same level of effort as non-H-2A agricultural
employers and shall provide an override which is no less than that
being provided by non-H-2A agricultural employers.
(3) Exception to Using Certain FLC's. Employers are not required to
use a FLC who is on the Wage and Hour Division's (WHD's) list of
contractors whose certificates have been revoked, or on a list of
employers that have been sanctioned for violations of immigration laws
and regulations maintained by the Immigration and Naturalization
Service (INS).
(i) Complaints. Any employer who has reason to believe it can
document that an FLC, although not on the lists maintained by WHD or
INS, has a history of employing or providing a substantial number of
workers who do not have authorization to work in the U.S., or a history
of serious labor standard violations, may submit a written complaint to
the local office before or during the recruitment period. The complaint
shall clearly identify the FLC who the employer believes has a
demonstrated history of furnishing unauthorized workers, or a history
of serious labor standard violations, and shall specify sufficient
facts to support the allegation (e.g., dates, places, numbers of
unauthorized workers involved) and any available supporting
documentation (e.g., newspaper articles, notice of INS or DOL
enforcement action) which will permit an investigation to be conducted
by the local office.
(ii) Investigations. The local office shall inform the RA by
telephone that a complaint under the provisions of paragraph (f)(3)(i)
of this section has been filed and shall immediately investigate the
complaint. Such investigation shall, to the extent feasible, include
interviews with the employer who has submitted the complaint, the FLC,
and any available INS or DOL officials who may have knowledge of any
enforcement action conducted against the FLC named. In the event the
local office fails to conduct such an interview, the RA, to the extent
feasible, shall do so.
(iii) Reports of findings. Within 10 working days after receipt of
the complaint, the local office shall prepare a report of its findings,
and shall submit such report (including recommendations) and the
original copy of the employer's complaint to the RA.
(iv) Written findings. The RA shall immediately review the
employer's complaint and the report of findings submitted by the local
office, and shall conduct any additional investigation the RA deems
appropriate. No later than 5 working days after receipt of the
employer's complaint and the local office's report, the RA shall issue
written findings to the local office and the employer. Where the RA
determines that the employer's complaint is valid and justified, the RA
shall immediately suspend the application of paragraph (f)(2) of this
section with respect to the FLC named in the employer's complaint. Such
suspension shall not take place, however, until the interviews required
by paragraph (f)(3)(ii) of this section have been conducted. The RA's
determination under the provisions of this paragraph (f)(3)(iv) shall
be the final decision of the Secretary, and there shall be no further
review by any DOL official.
(4) Centralized cooking facilities. Where the employer has
centralized cooking and eating facilities designed to feed workers, the
employer shall not be required to provide meals through an override.
(5) Housing. The employer shall not be required to provide for
housing through an override.
* * * * *
Sec. 655.106 [Amended]
7. Section 655.106(e)(1) is amended by removing from the first
sentence the phrase ``and shall notify the local office, in writing, of
the exact date on which the H-2A workers depart for the employer's
place of employment'', and by adding in lieu thereof the phrase ``which
shall be deemed for the purposes of this subpart to be the day
immediately preceding the employer's first date of need''.
8. Immediately following Sec. 655.113, a new undesignated heading
is added to read as follows:
Visa Petitioning
9. Immediately following the newly-added undesignated heading
``VISA PETITIONING'', a new Sec. 655.114 is added to read as follows:
Sec. 655.114 H-2A Visa Petitions.
The Commissioner of the Immigration and Naturalization Service has
delegated to the Secretary of Labor the functions performed by INS
under 8 CFR 214.2(h)(5), ``Petition for alien to perform agricultural
labor or services of a temporary or seasonal nature (H-2A),'' with
respect to approving visa petitions for workers outside the United
States, including petition approval for replacement of certified
workers upon proof of the workers' repatriation. Within the Department
of Labor, the
[[Page 53249]]
functions are delegated to the Regional Administrators. The Regional
Administrators shall perform these functions consistently with 8 CFR
214.2(h) and such instructions as the Director, U.S. Employment
Service, shall prescribe.
Signed at Washington, DC, this 25th day of September, 1998.
Alexis M. Herman,
Secretary of Labor.
[FR Doc. 98-26320 Filed 10-1-98; 8:45 am]
BILLING CODE 4510-30-P
