[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Temporary Agricultural Employment of H-2A Aliens in the United
AGENCY: Employment and Training Administration, Labor.
ACTION: Interim Final Rule.
SUMMARY: The Department of Labor (``Department'' or ``DOL'') is
amending its regulations to extend the transition period of the
application filing procedures currently in effect for all H-2A
employers with a date of need on or before July 1, 2009, as established
in the H-2A Final Rule published on December 18, 2008 and in effect as
of January 17, 2009. The transition period is extended to include all
employers with a date of need on or before January 1, 2010.
DATES: This Interim Final Rule is effective April 16, 2009. The grounds
for making the rule effective upon publication in the Federal Register
are set forth in SUPPLEMENTARY INFORMATION below. Interested persons
are invited to submit written comments on the Interim Final Rule on or
before May 18, 2009.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB55, by any one of the following
Federal e-Rulemaking Portal: http://www.regulations.gov: Follow the
Web site instructions for submitting comments.
Mail: Please submit all written comments (including disk and CD-ROM
submissions) to Thomas Dowd, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210.
Hand Delivery/Courier: Please submit all comments to Thomas Dowd,
Administrator, Office of Policy Development and Research, Employment
and Training Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-5641, Washington, DC 20210.
Please submit your comments by only one method. The Department will
post all comments received on http://www.regulations.gov without making
any change to the comments, including any personal information
provided. The http://www.regulations.gov Web site is the Federal e-
Rulemaking portal and all comments posted there are available and
accessible to the public. The Department cautions commenters not to
include their personal information such as Social Security numbers,
personal addresses, telephone numbers, and e-mail addresses in their
comments as such submitted information will become viewable by the
public via the http://www.regulations.gov Web site. It is the
responsibility of the commenter to safeguard his or her information.
Comments submitted through http://www.regulations.gov will not include
the commenter's e-mail address unless the commenter chooses to include
that information as part of his or her comment. Postal delivery in
Washington, DC, may be delayed due to security concerns. Therefore, the
Department encourages the public to submit comments via the Web site
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-
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
On March 17, 2009, the Department published a Notice of Proposed
Suspension of the Final Rule to provide the Department with an
opportunity to review and reconsider the new requirements, while
minimizing the disruption to the Department, State Workforce Agencies,
employers, and workers. The Department further proposed to reinstate
the rules that were in place on January 16, 2009, on an interim basis.
The period for submitting comments on the Department's proposal closed
on March 27, 2009. The Department received over 800 unique, substantive
comments on its proposal and is currently in the process of considering
those comments. Because of the time required to carefully consider all
the comments on the proposed suspension, the Department will not be
able to complete its analysis of the comments before employers with
dates of need beginning July 2, 2009 are expected to commence the
process of pre-filing recruitment on April 17, 2009, in accordance with
the Final Rule. The full implementation schedule of the regulation
requires employers with a date of need for workers on or after July 1,
2009, to engage in full recruitment prior to filing an application for
H-2A certification. The regulation calls for such pre-filing
recruitment to take place at least 75 days prior to the date of need
for workers. Seventy-five days from a date of need of July 1, 2009--the
first date anyone with a date of need of July 1, 2009, would actually
need to begin pre-filing recruitment--is April 17, 2009.
Accordingly, the Department has determined that an extension of the
period in which the transition procedures are available is necessary.
This is required for the following reasons. First, absent an extension
of the transition procedures, the Department will be unable to
designate traditional and expected labor supply States in which
positive recruitment must take place, as required by statute. Under the
Final Rule, employers must engage in positive recruitment consistent
with Section 218(b)(4) of the Immigration and Nationality Act (INA). In
particular, the regulation at 655.102(i) requires employers to engage
in positive recruitment in traditional or expected labor supply States
in which there are a significant number of qualified domestic workers
who would be willing and available for work in those States. Under the
transition procedures, employers are provided that information as part
of their post-filing recruitment instructions. However, employers with
dates of need after July 1, 2009 would be subject to the pre-filing
recruitment model of the Final Rule and would no longer have access to
that information when conducting recruitment. Rather, the Final Rule
requires the Department
to first solicit information from a broad range of sources and then
publish an annual determination for each State, of the States where the
sources of traditional or expected labor supply would be (the
``Secretary's Annual Determination''). 20 CFR 655.102(i), 73 FR 77215,
Dec. 18, 2008. However, that information would have to be solicited
through a notice in the Federal Register at least 120 days before the
announcement of the Secretary's Annual Determination, allowing the
public to provide the Department with information to assist the
Secretary in making her determination. Id. In order for the first
Annual Determination to have been timely, the Department would have had
to publish the solicitation before the Final Rule's effective date,
effectively implementing a provision of the Final Rule before the rule
itself. Accordingly, the Department is evaluating how best to implement
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
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
The factual basis for such a certification is that even though this
rule can and does affect small entities, there are not a substantial
number of small entities that will be affected, nor is there a
significant economic impact upon those small entities that are
affected. Of the total 2,089,790 farms in the United States, 98 percent
have sales of less than $750,000 per year and fall within SBA's
definition of small entities. In FY 2007, however, only 7,725 employers
filed requests for only 80,294 workers. That represents fewer than 1
percent of all farms in the United States. Even if all of the 7,725
employers who filed applications under H-2A in FY2007 were small
entities, that is still a relatively small number of employers
affected, and this is expected to have little net direct cost impact on
employers, above and beyond the baseline of the current costs required
by the program as it is currently implemented.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995
(2 U.S.C. 1501 et seq.) directs agencies to assess the effects of a
Federal regulatory action on State, local, and tribal governments, and
the private sector to determine whether the regulatory action imposes a
Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C.
658(5)-(7) to include any provision in a regulation that imposes an
enforceable duty upon State, local, or tribal governments, or imposes a
duty upon the private sector which is not voluntary. Further, each
agency is required to provide a process where State, local, and tribal
governments may comment on the regulation as it develops, which further
promotes coordination between the Federal and the State, local, and
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
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
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
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.
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
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
J. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR
part 1320) requires that the Office of Management and Budget (OMB)
approve all collections of information by a Federal agency from the
public before they can be implemented. Respondents are not required to
respond to any collection of information unless it displays a current
valid OMB control number. Information collections in this Interim Final
Rule have been previously approved under OMB No. 1205-0466. No change
in that collection is proposed by this Interim Final Rule.
K. Good Cause Exception
For reasons identified in the preamble, the Department finds good
cause to adopt this Interim Final Rule, effective immediately, and
without prior notice and comment. See 5 U.S.C. 553(b)(3) and 553(d)(3).
DOL has determined that it would be impracticable, unnecessary, and
contrary to the public interest to delay the effective date of this
rule. The reasons for extending the transition period, discussed above,
lead the Department to believe that immediate action must be taken to
ensure that the Department and employers are able to meet their
statutory obligations and to prevent confusion, ensure program
integrity, and maximize the availability of job opportunities for the
U.S. workforce during a time of economic crisis. As such, a delay in
promulgation of this rule past the date of publication would confuse
and potentially disrupt the program to the detriment of the public
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons stated in the preamble, the Department amends 20 CFR
part 655 as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
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
Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii),
1184(c), and 1188; and 8 CFR 214.2(h).
Subparts A and C issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts D and E authority repealed.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec.
323(c), Public Law 103-206, 107 Stat. 2428.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Public
Law 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Public Law 105-277, 112 Stat. 2681; and 8 CFR 214.2(h).
Subparts J and K authority repealed.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
2. Amend 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
* * * * *
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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