[Federal Register: September 27, 2001 (Volume 66, Number 188)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Labor Certification and Petition Process for Temporary
Agricultural Employment of Nonimmigrant Workers in the United States
(H-2A Workers); Modification of Fee Structure; Reopening and Extension
of Comment Period
AGENCY: Employment and Training Administration, Labor.
ACTION: Proposed rule; reopening and extension of comment period.
SUMMARY: This document reopens and extends the period for filing
comments on the proposed rule that would require employers to submit
fees for labor certification and the associated H-2A petition with a
consolidated application form at the time of filing. The proposed rule
also would modify the fee structure for H-2A labor certification
applications. This action is once again being taken to permit
additional comment from interested persons.
DATES: Interested persons are invited to submit written comments on or
before October 29, 2001.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale
Ziegler, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Charlene Giles; telephone 202-693-2950
(this is not a toll-free number).
SUPPLEMENTARY INFORMATION: In the Federal Register of July 13, 2000,
(65 FR 43545) we published a notice requesting comments on a proposed
rule to require employers to submit the fees for temporary alien
agricultural (H-2A) labor certification and the associated non-
immigrant H-2A petition with a consolidated application form at the
time of filing. The proposal also would modify the fee structure for H-
2A labor certification applications. On August 17, 2000, the comment
period was reopened and extended. 65 FR 50170. Because of comments
received during the comment period and continuing interest in the
proposal, it is desirable to reopen the comment period for all
interested persons. Therefore, the comment period for the proposed rule
amending 20 CFR part 655, subpart B (Labor Certification Process for
Temporary Agricultural Employment in the United States (H-2A Workers)
is reopened and extended until October 29, 2001.
What Comments Did the Department Receive on the Proposed Rule?
During the reopened comment period, the Department of Labor
(Department or DOL) received fourteen additional written comments to
the proposed rule. The comments were from agricultural growers and
associations, farmworker advocacy groups, and other interested parties.
The comments generally were divided among four categories, Immigration
and Naturalization Service (INS) Issues, DOL Issues, Fee Structure, and
the proposed ETA-9079 Form. The following is a discussion of the
comments and the Department's responses:
1. Overnight Delivery
Some commenters believe the overnight delivery requirement is not
practical. This is a requirement the Department has placed upon itself
and is not intended to be mandated for employers filing labor
certifications. In order to allow Department staff to review and
process certification requests on a timely basis, it is necessary to
forward application packets to the Employment and Training
Administration (ETA) Regional Offices from the ETA Service Centers on
an overnight basis.
2. Fourteen-Day Grace Period
Some commenters objected to the fourteen-day grace period, (i.e.,
the addition of 14 days of certified employment to the period
requested), stating it may have an effect on the employer's duty to
guarantee three-fourth's of the offered work (\3/4\ guarantee) and the
employer's duty to accept U.S. workers who seek employment through 50
percent of the work contract period (50-percent rule).
In view of the issues raised by commenters concerning the possible
effects of the 14-day grace period on the employer's \3/4\ guarantee
and the administration of the 50-percent rule, the Department is
seeking additional comments on short-term extensions of 14 days or
less. One possible approach would be not to make 14-day extensions
automatic, but to provide that ETA would grant such extensions if an
employer applies for an extension of 14 days or less directly to the
appropriate Regional Administrator.
3. Fee Structure
Some commenters recommended that the fees should be higher to
additional monies to sustain the program. The Department lacks the
statutory authority to retain H-2A labor certification fees ( 20 CFR
4. ETA Form 9079
A number of the comments addressed the proposed consolidated
certification and petition form.
(a) Style and Layout. Some commenters objected to the form for a
variety of reasons, including comments stating that Form 9079 is too
burdensome, time-consuming, and confusing. As a result of these
comments, the Department is developing a more ``user-friendly'' version
of Form 9079, which will be published for public comment. As part of
this revision, as requested by commenters, space will be provided on
the form indicating that the employer is represented by counsel.
(b) Data Collection. Some commenters objected to the amount of
information requested on the new form, comparing it to the existing
Form ETA-750. This is not an accurate comparison, since DOL now is
performing some of the functions previously performed by INS. Thus, in
addition to the ETA-750, the proposed ETA 9079 replaces INS petition
Form I-129, resulting in an overall paperwork reduction for employers.
(c) Circles and Boxes. Some commenters stated that the use of
circles and boxes on the ETA 9079 is inconsistent. This will be
addressed on the newly revised Form 9079.
(d) Redundant Information. Some commenters stated that ETA is
requesting the same information of employers on both the ETA 9079 and
the ETA 790 job order with respect to crop and wage information. The
new Form 9079 will address this concern by not capturing crop and wage
activity on both forms.
(e) Multiple Languages. Some commenters asked that the ETA 9079 be
translated into other languages in addition to English. Since the
application form is prepared by agricultural employers, DOL does not
anticipate that the target population will require language assistance.
To the extent feasible, local ES offices, particularly those with
bilingual (English-Spanish) staff, will do their best to assist those
employers in need of such assistance. Foreign language assistance is
provided to U.S. workers recruited through the Employment Service
(f) Addendum C. Confusion about filing of the ETA From 9079
Addendum C as to whether it should be filed up front or after
acceptance. Instructions on page 43553 which include a chart indicates
Addendum C may be submitted any time after acceptance letter and 5 days
prior to certification. Addendum C refers to Consulate locations from
where the foreign workers will be processed and issued visas to enter
the United States. If workers cannot be located in one consulate
office, the employer needs the option of requesting worker from another
(g) Number of Workers. Some commenters were confused about where on
the ETA 9079 the total number of workers is specified. Worker requested
information is found on page 1, number II and number III, of the ETA
(h) Shared Housing. Some commenters asked where on the ETA 9079 a
sole employer can indicate that it is sharing housing. This information
is not collected using Form ETA 9079. This information is collected on
form ETA 790.
(i) Web-Based Form. Some commenters suggested that the forms for
the program should be accessible on the World Wide Web. A website is
currently under development. which will have a web-accessible on-line
application form, allowing applicants to register demographic and
static information that can be used to pre-fill application forms, thus
reducing applicant's data entry requirements. For those forms that will
require signatures, the applicant will be able to print the completed
form at their local printer. Applicants would be required to sign the
form and then send it in to DOL along with any associated fees.
(j) Worksite Transfers. Some commenters stated that the new form
requires transfers to more than one worksite to be specified before the
actual places are known to employers. This transfer information has
never been tracked by DOL and under the new system the information will
no longer be gathered by Form 9079.
(k) General Comments. The Department is seeking specific comments
regarding Form 9079. Commenters are requested to specifically indicate
what they like or dislike about Form 9079. Specific comments will be
addressed by the Department when Form 9079 is redeveloped. As stated
above, it will be published for public comment.
Signed at Washington, DC, this 24th day of September, 2001.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
[FR Doc. 01-24207 Filed 9-26-01; 8:45 am]
BILLING CODE 4510-30-P
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