[Federal Register: October 16, 2001 (Volume 66, Number 200)]
[Rules and Regulations]
[Page 52502-52506]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc01-9]
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DEPARTMENT OF STATE
22 CFR Part 139
[Public Notice 3723]
Miscellaneous: Irish Peace Process Cultural and Training: Second
Interim Rule
AGENCY: Bureau of European and Eurasian Affairs, Department of State.
ACTION: Interim rule.
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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
[[Page 52503]]
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.
[[Page 52504]]
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:
Sec. 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;
[[Page 52505]]
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:
Sec. 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 Sec. 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:
Sec. 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:
[[Page 52506]]
Sec. 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 Sec. 139.5(d)(2)''; and in paragraph
(f) by adding two new sentences at the end of the paragraph to read as
follows:
Sec. 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:
Sec. 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 Sec. 139.3, the list will be published
in the Federal Register, as will additions or deletions. In the case of
participants under Sec. 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.
[FR Doc. 01-25598 Filed 10-15-01; 8:45 am]
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