01-25598. Miscellaneous: Irish Peace Process Cultural and Training: Second Interim Rule

AGENCY:

Bureau of European and Eurasian Affairs, Department of State.

ACTION:

Interim rule.

SUMMARY:

The Department issued an interim rule dated March 17, 2000, establishing a training and employment program in the United States for certain residents of Northern Ireland and designated counties of the Republic of Ireland. This program was mandated by Public Law 105-319. The Department has received a number of public comments on the interim rule and has implemented the initial phase of the program. This second interim rule reflects consideration of the comments received and incorporates several amendments based upon that experience.

DATES:

Effective Date: This interim rule takes effect on October 16, 2001.

Comment Date: The Department will consider written comments upon the rule that are received no later than December 17, 2001.

ADDRESSES:

Submit written comments, in duplicate, to the Director, Office of United Kingdom, Benelux and Ireland Affairs, Bureau of European and Eurasian Affairs, Room 4513, Department of State, Washington, DC 20520.

FOR FURTHER INFORMATION CONTACT:

Frank Kerber, Officer for Ireland and Northern Ireland Affairs, Bureau of European and Eurasian Affairs, Room 4513, Department of State, Washington, DC 20520.

SUPPLEMENTARY INFORMATION:

Irish Peace Process Cultural and Training Program. The Department of State published in the Federal Register on March 17, 2000 (65 FR 14764), an interim regulation to implement Public Law 105-319, 112 Stat. 3013, and requested comments. Several comments were received from one organization and will be addressed in this revised rule. Some of these comments also were addressed to companion regulations issued by the Immigration and Naturalization Service (hereafter INS) published concurrently in the Federal Register on March 17, 2000. This rule also addresses other issues arising out of experience under the initial interim rule.

What Is the Department's Response to Comments Received?

One comment recommended that employment changes should be considered as the rule rather than exceptional. While recognizing that more flexibility needs to be built into the regulations, the Department believes that, for a program limited in numbers and duration, the basic expectation is that each participant will stay with one employer for the duration of his or her participation. However, this interim rule will make clear that, while a participant may be expected to remain with an approved employer for up to 3 years (the duration of the program), it will allow shorter periods of participation, for example, to accept employment at home and permit one change of approved employment for the duration of stay.

Along the same lines, the comments recommended that the proposed employers of participants “self-certify” themselves to facilitate job changes. The Department considers that it continues to be necessary to concentrate jobs for participants in certain locations where cultural and community support is available and to make sure that majority of employers are in the sectors identified by authorities of Northern Ireland or the Republic of Ireland, and that individual certification of employers is the best way to carry out that policy.

Another comment suggested that the regulations did not provide for adequate oversight of the Program Administrator. The Department believes that such oversight of the contractor is properly a responsibility and authority of the agency procurement officers; however, the Department is proposing some changes from the interim rule to spell out in more detail what is expected of the Program Administrator. One such requirement will be to provide training to participants in personal and professional development, including conflict resolution, as well as to encourage participants to undertake such training.

A specific comment addressed to the INS regulations was to change the point at which the maximum age of 35 is applied from time of admission to time of issuance of a visa. This would affect Department of State regulations as well, and we believe that the recommendation must be rejected because the statutory numerical limitation is based upon admissions, and the interval between visa issuance and admission depends upon so many factors that compliance with the ceiling would be problematic.

As indicated earlier, the basic expectation is that participants will stay with one employer for the duration of the program for each individual. Job opportunities in other sectors (when need for such skills has been identified by FAS or T & EA) or locations may be identified as eligible for participation in the program, and the Department proposes to expand the eligible sectors and locations from time to time by public notice in the Federal Register. For participants coming from employment in Ireland or Northern Ireland for whom definite post-program employment opportunities back home have been identified, jobs with different employers or outside the current locations or sectors may be authorized by the Program Administrator. What other changes are being proposed in the Department of State regulations?

Experience suggests that there has been some misunderstanding about the consequences of termination of approved employment, and the Department proposes to amend the interim regulation to make clear that termination of employment for cause results in termination of participation in the program and the participant is expected to leave the United States within 10 days after employment has terminated and the Administrator determines that employment was properly ended; however, employers will be required to consult with the Program Administrator prior to terminating employment for cause (such as failure to report to work or refusal to observe work-place safety as opposed to such events as employer downsizing). The Program Administrator will be expected to counsel the employer and the participant during this period, but the the Program Administrator's decision (normally to be made within two business days after termination of employment) as to whether separation for cause is justified will not be subject to appeal. For termination of employment other than for cause, the participant will have a period of 30 days to obtain alternative employment from another approved employer or reasonable prospect of such employment; failing that, the participant again is expected to leave the United States immediately.

In addition to continuation of approved employment, participants will be expected to undertake personal and professional development training, including conflict resolution, and to observe the program's rules of conduct.

The Department therefore proposes to amend the interim rule to require that, before the Program Administrator issues a certification letter to participate in the program, each participant shall read and sign a code of conduct, or, if a certification letter has been delivered to the participant, as soon as possible thereafter. The code explains what conduct is termination for cause and sets forth other actions that could cause termination of participation in the program. The code of conduct has been developed by the Department of State and INS, working with the Training and Employment Agency of the Republic of Ireland (FAS) and the Training and Employment Agency of Northern Ireland (T&EA), and may be modified from time to time in light of experience. Violation of the code of conduct or the Program Administrator's rules may result in termination from the program.

The amended rule will also specify other required components of the certification letter (replacing that presently set forth in 22 CFR 41.57(b)(ii)): name of participant's employer in the U.S., the employment is in an occupation designated by the appropriate training and employment administration of the participant's place of residence as being most beneficial to the local economy (except when employment is by approved nomination under section 139.5(d)(2)), the Program Administrator has registered the participant in the program, and the participant has been physically resident in Northern Ireland or the designated counties of the Republic of Ireland for the prescribed length of time (5 months unless otherwise authorized) prior to the issuance of the certification letter.

The regulations will also be amended to permit a new program for participation by students pursuing university or other further or higher education certificates in Northern Ireland to obtain work experience required for that certification.

What Are the Specific Amendments to the Interim Regulations?

Section 139.3, pertaining to Department of State responsibilities, will be amended to provide that the Department, upon recommendation of the Program Administrator or its own motion, will add or remove employers from the list of approved employers, and may authorize change of sector or, in the case of participants under section 139.5(d)(2), of location. The Department will also announce additions or deletions of target economic sectors and geographic areas for job/training opportunities by publication of notice in the Federal Register.

Section 139.4, pertaining to Program Administrator responsibilities, will be amended in several respects. The Program Administrator will be expected to recommend addition to, or deletion from, established target economic sectors and geographic areas of job/training opportunity. The Program Administrator will be given specific responsibilities with respect to participants, specifically to make available training in personal and professional development; to mediate when notified by an employer of a case of termination for cause; to give written notification to the Department of State and INS when it exercises its authority to terminate a participant from the program, learns that a participant has dropped out, or that there has been a change of employer; and to notify the Department and INS of the departure of participants from the United States. The Program Administrator will be given the following additional guidance: when to terminate a participant from the program; to give appropriate notice of certain actions; for participants already in the United States who have changed employment, to withhold approval to make further changes; to conduct an exit interview of terminated participants and retrieve their certification letters; and to maintain its data base (to which the Department and INS will have access) but transfer it to the Department after termination of the program.

Section 139.5, pertaining to selection of trainees, will be amended to clarify that it contains requirements for continued participation as well as selection. It also will provide for participant agreement to a code of conduct. Participants will be required to have continuous, adequate health insurance for mutual protection against illness or accident. For a local employer in Northern Ireland or Ireland to nominate a participant, the participant must have work experience of not less than 90 days (unless otherwise authorized) with that employer, who is to identify the US employer and the type of training in the U.S. and to justify the length of that training. The nominating employer must set forth the mutual benefits and guarantee a job offer to the participant upon his or her return from the US. Section 135(d)(2) would be amended to include students pursuing university or other further or higher education certificates in Northern Ireland to be sponsored by their educational institution without regard to the otherwise applicable requirements for sponsoring employers—actual employment and offer of employment upon return to Northern Ireland. The rule will also be amended to require that an applicant has been physically present in the eligible areas for at least five months prior to the date of the certification letter. The rule will clarify when a participant will be terminated and state the participant's obligation to depart the US after termination. Finally, the section will be amended to permit reinstatement with the approval of Department, in consultation with INS, in limited circumstances.

Section 139.6, pertaining to requests to participate, will be amended to make clear that neither FAS, T & EA, nor the Program Administrator will consider requests from a former participant. It also provides that an employee sponsored by a current employer in Northern Ireland or Ireland must have experience not less than 90 days (unless otherwise authorized) with that employer.

Section 139.7, pertaining to employer responsibilities, will be amended to make clear that an employer will notify the Program Administrator of intention to terminate a participant for cause, with reasons, and provide a reasonable opportunity for the Program Administrator to mediate any dispute. The compensation requirements will also be made more specific. It will also be amended to permit employment in other employment sectors or geographic areas for participants who have been nominated by a current employer in Ireland or Northern Ireland with whom there is an existing work relationship.

As noted above in section 139.3, preferred economic sectors for participants as set forth in section 139.8 will be by public notice published in the Federal Register. It is anticipated that new target areas, such as construction, may be added to those initially authorized or authorized on a case-by-case basis.

Administrative Procedure Act

The Department's implementation of this regulation as an interim rule, with a provision for public comments, is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The Department decided that there was not enough time to issue a proposed rule with request for comments as the Irish Peace Process Cultural and Training Program is limited by law to a period that has already begun (FY 2000 through FY 2005, i.e., October 1, 1999, through September 30, 2005). Publication of this regulation as an interim rule will expedite implementation of Public Law 105-319 that is already in effect and allow eligible aliens to apply for and participate in this program as soon as possible in light of the statutory expiration of the program on October 1, 2005.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. section 605(b)), the Department of State has reviewed this rule and certifies that it will not have a significant economic effect on a substantial number of small entities. Participation in the program is limited to 4000 individuals annually for three consecutive years. The activities of the participants will take place in multiple locations and economic sectors so that no significant economic impact should occur.

Unfunded Mandates Reform Act of 1995

This rule will not include any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more. Therefore, the requirements of the Unfunded Mandates Reform Act of 1995 do not apply here.

Small Business Regulatory Enforcement Fairness Act of 1996.

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996.

Executive Orders 12866 and 13132

Although exempted from Executive Order 12866, this rule has been reviewed to ensure consistency with its principles and is not a “significant regulatory action” under that order. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

Paperwork Reduction Act

This rule involves collection of information subject to the Paperwork Reduction Act of 1995 by means of two information collections that have been approved by the Office of Management and Budget. The first is OMB # 1405-0018, Nonimmigrant Visa Application; the second is OMB # 1405-0124. Irish Peace Process Cultural and Training Program (IPPCTP) Employer Information Collection.

List of Subjects in 22 CFR Part 139

• Aliens
• Passports and visas
• Reporting and recordkeeping requirements

Accordingly, amend 22 CFR Part 139 as follows:

PART 139—[AMENDED]

1. The authority citation for part 139 is revised to read as follows:

Authority: Pub. L. 105-319, 112 Stat. 3013; 22 U.S.C. 2651a.

2. Section 139.3 is amended as follows:

a. Remove “and” at the end of paragraph (d);

b. Remove the period at the end of paragraph (e) and add a semicolon in its place;

c. Add paragraphs (f) and (g) to read as follows:

§ 139.3

Responsibilities of the Department.

* * * * *

(f) Upon recommendation of the Program Administrator or on its own motion, the Department may add or remove employers from the approved list and may authorize change of economic sector and geographic area for participants; and

(g) By public notice in the Federal Register, will add or delete preferred target economic sectors and geographic areas for job/training opportunities.

3. Section 139. 4 is amended as follows:

a. In paragraph (a), by adding a new sentence at the end of the paragraph;

b. In paragraph (c)(2), by adding a new sentence at the end of the paragraph;

c. In paragraph (e), by adding three new sentences at the end of the paragraph;

d. In paragraph (g), by adding a new sentence at the end of the paragraph;

e. In paragraph (h), by adding a new sentence at the end of the paragraph; and

f. By adding new paragraph (i).

The additions read as follows:

§ 139.4

Responsibilities of the Program Administrator.

(a) * * * The Program Administrator, from time to time, will recommend to the Department of State the addition or deletion of, or exceptions to, designated economic sectors and geographic areas for participants.

* * * * *

(c) * * *

(2) * * * Unless otherwise authorized, the Program Administrator may approve only one change of approved employer per participant per period of stay.

* * * * *

(e) * * * Issuing replacement certification documents to participants whose original has been lost, stolen, or mutilated. In addition, making available training in personal and professional development to participants and verifying that such training has been undertaken; arranging with approved employers as a condition of assignment of participants that each such employer: will give the Program Administrator advance notice of intention to discharge a participant for cause and the reasons therefor, will permit the Program Administrator an opportunity to mediate between the employer and the participant; and give the Program Administrator written notice when employment of a participant is terminated and the reason. The Program Administrator, if mediation is not successful and the participant is terminated for cause in the judgment of the employer, will promptly (normally within two business days after termination of employment) reach a decision on validity of the cause for the employer's decision and, if the decision is favorable to the participant, may assist in finding another approved employment.

* * * * *

(g) * * * In particular, promptly (normally within five business days) giving a written report to the Department of State and the Immigration and Naturalization Service upon each occurrence of any of the following: termination or change of approved employment of a participant, withdrawal from participation in the program, results of an exit interview with the participant, and the departure from the United States of any participant upon conclusion of participation in the program.

(h)* * * The Program Administrator will retain this data base for at least five years after termination of the Program, or transfer the data base to the Department of State, and provide the Department of State and the Immigration and Naturalization Service access to that data base while under its control.

(i) The Program Administrator within 5 business days is to terminate a participant from the program when: the participant is terminated from approved employment for cause or fails to obtain another approved employment within 30 days of leaving current employment (not having been separated for cause); the participant, without good cause, fails to comply with program regulations, including rules of the Program Administrator and the code of code of conduct; or the participant engages in employment that has not been authorized under the program or fails to maintain adequate, continuous health coverage (see § 139.5). The Program Administrator shall promptly (normally within five business days) give written notice to the Department of State, the Immigration and Naturalization Service, FAS or T & EA as appropriate, and to the consulate that issued a visa to the participant, that the participant has been terminated and the reason therefor. The Program Administrator shall conduct an exit interview with any participant leaving the program to assess the experience and to obtain return of the participant's certification letter.

4. Section 139.5 is amended as follows:

a. By revising the introductory text;

b. In paragraph (b), by removing “three” and adding, in its place “five”; and by removing “prior to applying to the Program” and adding, in its place “prior to the date of certification”;

c. By revising paragraph (d)(2);

d. By adding new paragraphs (e) and (f).

The revisions and additions read as follows:

§ 139.5

Qualifications required for selection as a trainee.

To be a program participant in the IPPCTP, a person must:

* * * * *

(d) * * *

(2) Be a currently employed person whose employer has at least 90 days (unless otherwise authorized) of employment relationship with that person, whose nomination is in writing and contains the following: the employer in the United States, the length and type of occupational training contemplated, a justification for why the length of stay requested is necessary, and the benefits to the nominee and the nominator, including a job offer for the participant upon return to Northern Ireland or Ireland; provided, however, that the Program Administrator may waive the requirements of at least 90 days of employment and for a job offer upon return from a sponsor that is a Northern Ireland institution of further or higher learning for a student in that institution who needs on the job experience to qualify for a degree or certificate from the institution.

(e) Has read, understood, and signed a “participant code of conduct” prepared by the Program Administrator in consultation with the Department of State and the Immigration and Naturalization Service and with FAS and T & EA; obtains and maintains adequate, continuous health insurance; is expected to remain with his or her original or other approved employer; and is expected to depart the United States promptly upon termination of participation in the program.

(f) A participant who has been terminated from the program may apply to the Program Administrator for reinstatement, except in the following cases: termination of approved employment for cause, knowingly or willfully failed to obtain or maintain the required adequate and continuous health insurance, engaged in unapproved employment, or has been outside the United States in excess of three consecutive months. In any such case the physical residence requirement may be waived for participants who have been admitted to the United States for the program, and personal and professional development training previously completed need not be repeated; however, all other application requirements for a participant do apply, and the Program Administrator, with the approval of the Department of State in consultation with the Immigration and Naturalization Service, and upon being satisfied that reinstatement serves the purpose of the program, may issue a new or amended certification letter.

5. Section 139.6 is amended by adding after “employer” the words “having at least 90 days (unless otherwise authorized) of employment relationship with that participant”; and by adding a new sentence at the end of the section to read as follows:

§ 139.6

Requesting participation in the IPPCTP.

* * * Neither FAS, T & EA, nor the Program Administrator are to consider requests from a former participant.

6. Section 139.7 is amended in paragraph (a)(1) by adding after “Republic of Ireland” the phrase “except as otherwise approved by the Program Administrator under § 139.5(d)(2)”; and in paragraph (f) by adding two new sentences at the end of the paragraph to read as follows:

§ 139.7

Qualifications for participation as an employer in the United States.

* * * * *

(f) * * * As a condition of qualification as an employer, undertakes to provide advance notice to the Program Administrator of intention to terminate a participant for cause, with a written statement of reasons, and to provide the Program Administrator a reasonable opportunity to mediate between the employer and the participant, if possible before actual termination, and to offer employment to any selected participant for at least six months. The employer must also undertake in writing to provide no less than the Federal minimum wage and a 40 hour work week or equivalent.

* * * * *

7. Section 139.8 is revised to read as follows:

§ 139.8

Target economic sectors.

Job/Training under the IPPCTP will be authorized for preferred economic sectors prescribed by the Department of State, upon agreement of FAS and/or T&EA. As noted in § 139.3, the list will be published in the Federal Register, as will additions or deletions. In the case of participants under § 139.5(d)(2), the Program Administrator, with the approval of the Department of State, is authorized to approve different employers in different economic sectors.

Randolph Bell,

Acting Deputy Assistant Secretary, Bureau of European and Eurasian Affairs, Department of State.