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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[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]                         
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 4710-23-P




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