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[Federal Register: September 27, 2001 (Volume 66, Number 188)]
[Proposed Rules]               
[Page 49328-49329]
From the Federal Register Online via GPO Access []

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB24

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 

[[Page 49329]]

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]