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[Federal Register: September 24, 2002 (Volume 67, Number 185)]
[Rules and Regulations]               
[Page 59779-59780]
From the Federal Register Online via GPO Access []



Employment and Training Administration

20 CFR Part 655

RIN 1205-AB30

Labor Certification and Petition Process for the Temporary 
Employment of Nonimmigrant Aliens in Agriculture in the United States; 
Delegation of Authority To Adjudicate Petitions; Withdrawal of Final 

AGENCY: Employment and Training Administration, Labor.

ACTION: Withdrawal of final rule.


SUMMARY: The Department of Labor (Department or DOL) is withdrawing its 
Final Rule published in the Federal Register at 65 FR 43538 (July 13, 
2000) pertaining to the delegation of authority from the Immigration 
and Naturalization Service (INS) to the Department of Labor (Department 
or DOL) to adjudicate petitions for the temporary employment of 
nonimmigrant aliens in agriculture in the United States.

DATES: The final rule amending 20 CFR part 655, published at 65 FR 
43538 (July 13, 2000) and deferred at 65 FR 67628 (November 13, 2000) 
and 66 FR 49275 (September 27, 2001), is withdrawn as of September 24, 

Sections H-2A and H-2B, Division of Foreign Labor Certification, 
Employment and Training Administration, U.S. Department of Labor, Room 
C-4318, 200 Constitution Avenue NW, Washington, DC 20210. Telephone 
(202) 693-2950 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: In 2000, the INS published a Final Rule 
transferring to the Secretary of Labor the authority to adjudicate 
petitions for temporary agricultural workers and the authority to 
decide appeals on these decisions and to make determinations for 
revocation of petition approvals. 65 FR 43528 (July 13, 2000). It had 
an effective date of November 13, 2000. The Department of Labor 
published a Final Rule implementing and accepting that delegation. 65 
FR 43538 (July 13, 2000). It also had an effective date of November 13, 
    Subsequently, the INS deferred through October 1, 2001, the 
effective date of the delegation. 65 FR 67616 (November 13, 2000). DOL 
also deferred through October 1, 2001, its acceptance of the 
delegation. 65 FR 67628 (November 13, 2000). The Department invited 
comments on the deferral of the effective date, but no comments were 
received in response to the invitation.
    When the delegation originally was made, the Department had 
published a companion Notice of Proposed Rulemaking (NPRM) setting 
forth implementation measures necessary for the successful 
implementation of the delegation of authority to adjudicate petitions. 
65 FR 43545 (July 13, 2000). Among the implementation measures was a 
new form, Form ETA 9079, Application for Alien Employment Certification 
and H-2A Petition, which consolidated two current forms, Form ETA 750 
(Application for Alien Employment Certification) and INS I-129 
(Petition for Nonimmigrant Workers). The NPRM also set forth the 
implementation of a new fee schedule to collect a combined fee for 
processing the petition and labor certification application. It was 
contemplated that under the administrative procedures arrived at by INS 
and the Department's Employment and Training Administration (ETA) to 
implement the delegation of the petition authority from INS to DOL, 
that DOL would collect the petition fee on behalf of INS and would have 
been reimbursed by INS for the

[[Page 59780]]

costs involved in processing the H-2A petition. An INS companion NPRM 
provided, among other things, that all petition requests and extensions 
of stay and change of status petitions must be filed with DOL and the 
current INS petition fee would be collected by DOL as part of a 
combined fee. 65 FR 43535 (July 13, 2000).
    Later in 2000, DOL reopened and extended the comment period on its 
NPRM. 65 FR 50170 (August 17, 2000). The INS also reopened and extended 
the comment period on its NPRM. 65 FR 50166 (August 17, 2000).
    Commenters raised a number of issues about the proposed rules. 
However, the documents received by the Department during the extended 
comment period did not provide sufficient information to permit the 
Department to draft a Final Rule concerning a number of issues, such as 
the design of the new form and the fee structure. For that reason, the 
Department again deferred the effective date of the final rule until 
September 27, 2002 (66 FR 49275, September 27, 2001). The Department 
also held two informal public briefings on November 8, 2001, and 
November 16, 2001, to give agricultural employers and workers, their 
representatives, and other interested parties an opportunity to 
communicate their views directly to the Department regarding the 
proposal to delegate authority from INS to the Department to adjudicate 
petitions for the temporary employment of nonimmigrant aliens in 
agriculture in the United States. 66 FR 49329 (September 27, 2001). The 
attendees at the briefings overwhelmingly disapproved of the proposed 
transfer of authority between the two agencies. They stated that the 
proposed transfer of authority to adjudicate the agricultural petitions 
of the nonimmigrant workers would complicate the certification process, 
rather than streamline it. The agricultural employers and workers, and 
their representatives at the briefings, expressed the view that, even 
if the transfer of authority were made, DOL does not have adequate 
resources to handle the increased workload.
    Agricultural employers and workers and their representatives 
strongly opposed DOL's proposal to replace the existing two forms which 
are used in the certification and petition process (Form ETA 750 and 
Form ETA I-129), with one consolidated form, Form ETA 9079. Both groups 
cited increased difficulties with the new form, such as requiring the 
employer to obtain the foreign agricultural worker's signature as well 
as the requirement to accurately describe the terms and conditions of 
employment of complex agricultural occupations. Other criticisms made 
by both groups was DOL's assumption that all farmers would have access 
to computers which would be necessary to have to complete the new form. 
Agricultural employers also indicated that the proposed fee structure 
would be unfavorable to small farmers, and they wished that no changes 
be made to the fee structure system.
    The Department of Labor reviewed the concerns of the agricultural 
employers and workers, and determined that the concerns expressed by 
both groups have merit. The Department has concluded that it is in the 
best interests of agricultural employers and workers to withdraw the 
Final Rule from the CFR.
    The July 13, 2000, Final Rule can be withdrawn without further 
notice and comment rulemaking, since the delegation of authority to 
adjudicate petitions from the Attorney General to the Secretary of 
Labor constitutes a rule of agency procedure within the subsection 5 
U.S.C. 553(b)(A) exception to the APA's notice and comment procedures. 
While procedural rules which have substantial impact should be 
published for notice and comment all the Final Rule essentially would 
have done is transfer a function from the one agency to another, 
permitting employers to omit one step in the process of importing 
foreign agricultural workers; and this rule nullifies that transfer, 
maintaining the status quo.
    Accordingly, for all of the foregoing reasons the Department 
withdraws the Final Rule published at 65 FR 45358 (July 13, 2000).

Executive Order 12866

    The Department has determined that this Rule should be treated as a 
``significant regulatory action,'' within the meaning of Executive 
Order 12866, because of the inter-agency coordination with INS. 
However, this rule is not an ``economically significant regulatory 
action'' because it would not have an economic effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities.

Unfunded Mandates Reform Act of 1995

    This Final Rule will not result in the expenditure by State, local 
and tribal governments in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this Rule 
(5 U.S.C. 533(b)), the requirements of the Regulatory Flexibility Act, 
5 U.S.C. 601, et seq. pertaining to regulatory flexibility analysis, do 
not apply to this Final Rule. See 5 U.S.C. 603(a).
    However, at the time the proposed rule was published, the 
Department of Labor notified the Chief Counsel for Advocacy, Small 
Business Administration, and made the certification pursuant to the 
Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. The Chief Counsel for Advocacy did not submit a 

Executive Order 13132

    This Final Rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 

Paperwork Reduction Act

    The withdrawal of the Final Rule does not have any implications 
under the Paperwork Reduction Act of 1995.

Catalogue of Federal Domestic Assistant Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance as Number 17.202 ``Certification of Foreign Workers for 
Temporary Agricultural Employment.''

    Signed at Washington, DC, this 18th day of September, 2002.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
[FR Doc. 02-24189 Filed 9-23-02; 8:45 am]