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Secretary of Labor Thomas E. Perez
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ETA Final Rules

Temporary Agricultural Employment of H-2A Aliens in the United States   [4/16/2009]
[PDF]
FR Doc E9-8815
[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Rules and Regulations]               
[Page 17597-17601]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-5]                         

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB55

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

AGENCY: Employment and Training Administration, Labor.

ACTION: Interim Final Rule.

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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.

[[Page 17598]]

    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 (202) 693-3700 (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 
(202) 693-3010 (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

[[Page 17599]]

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

[[Page 17600]]

(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

[[Page 17601]]

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.


0
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

0
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).


0
2. Amend Sec.  655.100 by revising paragraph (b)(1) and the 
introductory text of paragraph (b)(2) to read as follows:


Sec.  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.
[FR Doc. E9-8815 Filed 4-15-09; 8:45 am]

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