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[Federal Register: October 1, 2002 (Volume 67, Number 190)]
[Rules and Regulations]               
[Page 61474-61476]
From the Federal Register Online via GPO Access []



Immigration and Naturalization Service

8 CFR Parts 103 and 214

[INS No. 1946-98; AG Order No. 2617-2002]
RIN 1115-AF29

Delegating the Secretary of Labor the Authority To Adjudicate 
Certain Temporary Agricultural Worker (H-2A) Petitions

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Withdrawal of final rule.


SUMMARY: On July 13, 2000, the Immigration and Naturalization Service 
(Service) published a final rule in the Federal Register, delegating 
the adjudication of certain petitions for agricultural workers (H-2A) 
to the United States Department of Labor (DOL). Subsequently, the 
effective date for that final rule was delayed until October 1, 2002. 
On November 8 and 16, 2001, the DOL held public briefings concerning 
the delegations. Based on the public response at these briefings the 
DOL has determined that the delegation of authority for adjudicating H-
2A petitions would not benefit the public as initially contemplated. In 
consideration of DOL's actions and subsequent events, the delegation of 
authority does not appear to be appropriate at this time. Accordingly 
the Attorney General is withdrawing the July 13, 2000, final rule 
delegating authority to the DOL.

DATES: The final rule amending 8 CFR parts 103 and 214 published in the 
Federal Register at 65 FR 43528 (July 13, 2000) and deferred at 65 FR 
67616 (November 13, 2000) and 66 FR 49514 (September 28, 2001) is 
withdrawn as of October 1, 2002.

FOR FURTHER INFORMATION CONTACT: Mari F. Johnson, Adjudications 
Officer, Business and Trade Services Branch, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street NW., Room 3214, 
Washington, DC 20536, telephone (202) 353-8177.


[[Page 61475]]

Purpose of Delegating Adjudication of Certain H-2A Petitions to the DOL

    In an attempt to streamline the processing of petitions filed for 
agricultural workers, the Department of Justice in consultation with 
the DOL, decided that the Attorney General's authority to adjudicate 
certain H-2A petitions should be delegated to the DOL. It was estimated 
that the delegation of authority would shorten the processing time of 
H-2A petitions by as much as 10 days.

Regulations Delegating H-2A Authority to DOL and Extensions of the 
Effective Date

    On July 13, 2000, the Attorney General published a final rule in 
the Federal Register at 65 FR 43528-43534 delegating the authority to 
adjudicate certain H-2A petitions for the temporary employment of 
nonimmigrant aliens in agriculture in the United States to the DOL. The 
final rule, which amended 8 CFR parts 103 and 214, was to take effect 
on November 13, 2000.
    Also on July 13, 2000, the DOL published a final rule at 65 FR 
43538 with an effective date of November 13, 2000, implementing the 
above-mentioned delegation of authority from the Service to the DOL.
    On November 13, 2000, the Service published a final rule at 65 FR 
67616, and DOL published an interim final rule at 65 FR 67628, each 
delaying the effective date of their respective July 13, 2000, H-2A 
rules until October 1, 2001.
    On September 28, 2001, the Service at 66 FR 49514 published a 
subsequent final rule, and on September 27, 2001, DOL at 66 FR 49275 
published another interim final rule with requests for comments, 
further delaying the effective date of the H-2A final rule until 
October 1, 2002. DOL also published a proposed rule at 66 FR 49329 on 
September 27, 2001 in conjunction with its interim rule of the same 
date announcing that it was holding two public briefings in order to 
obtain additional comments concerning the delegation of authority.

Proposed Regulations Regarding Procedures for Processing H-2A Petitions

    On July 13, 2000, and concurrently with the H-2A final delegation 
of authority rule, the Service at 65 FR 43535 published a companion 
notice of proposed rulemaking (NPRM) for public comment, proposing 
among other things that all petition requests, extensions of stay, and 
change of status petitions would be filed with DOL and that the current 
Service petition fee would be collected by DOL as part of the combined 
    Concurrently with publication of the Service's proposed rule, the 
DOL published at 65 FR 43545 a companion NPRM setting forth 
implementation measures necessary for the successful implementation of 
the delegation of authority to adjudicate petitions.
    On August 17, 2000, at 65 FR 50166, the Service reopened and 
extended the comment period for the proposed rule. Also on August 17, 
2000, at 65 FR 50170, the DOL reopened and extended the comment period 
on its NPRM. This action was taken in order to obtain additional 
information from the public relating to the delegation such as the 
consolidation of forms and the appropriate fees as well as other 

Events Necessitating the Withdrawal of the Final Rule

    The DOL held two public briefings to obtain additional information 
regarding the delegation of authority. The briefings were held at 
Washington, DC on November 8, 2001, and in Monterrey, California on 
November 16, 2001. After considering the comments received from the 
public at these two briefings, the DOL determined that the delegation 
of authority would not be a benefit to the public as initially 
contemplated. The attendees at these two briefings overwhelmingly 
disapproved of the transfer of authority between the two agencies, 
arguing that it would complicate the labor certification process rather 
than streamline it. Further, the attendees at the briefings expressed 
reservations about DOL's plans to consolidate the Service's Form I-129, 
Petition for Nonimmigrant Worker, with DOL's Form ETA-750A, Application 
for Alien Labor Certification.
    In addition, subsequent to the initial proposal to delegate 
authority to DOL, the Service has changed its procedures and now 
requires that security checks be performed prior to the adjudication of 
any type of application and petition. The Service is more suited to 
perform these checks rather than the DOL.
    Finally, the Administration has proposed that the nation's 
immigration function be reorganized within the newly established 
Department of Homeland Security. As a result, it does not appear that 
the delegation is appropriate at this time.
    In consideration of these factors, the final rule published on July 
13, 2000, at 65 FR 43528-45534 is being withdrawn in this final rule. 
In addition, in a document published elsewhere in this issue of the 
Federal Register, the Service is withdrawing the proposed rule that was 
published in the Federal Register on July 13, 2000, at 65 FR 43535.
    The final rule published on July 13, 2000, can be withdrawn without 
further notice and comment because the delegation of authority to 
adjudicate petitions from the Attorney General to the Secretary of 
Labor constitutes a rule of agency practice or procedure within the 
meaning of section 5 U.S.C. 533(b)(A), and accordingly is exempt from 
the Administrative Procedure Act's notice and comment procedures. These 
procedural rules would not have made a substantive change in the rules, 
but instead would have transferred an existing procedural function from 
the one agency to another permitting employers to omit one step in the 
process of importing foreign agricultural workers. This rule nullifies 
that planned transfer, maintaining the status quo.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. This rule is 
administrative in nature and merely withdraws a final rule published in 
the Federal Register.

Unfunded Mandates Reform Act of 1995

    This 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 effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States based 
companies to compete with foreign based companies in domestic and 
export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, to be a

[[Page 61476]]

``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 13132

    This 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, relating to Civil Justice Reform.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a final rule. This rule does not impose any new reporting 
or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.
    Accordingly, the final rule amending 8 CFR parts 103 and 214 
published in the Federal Register at 65 FR 43528 (July 13, 2000) is 

    Dated: September 27, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-25031 Filed 9-27-02; 1:00 pm]