[Federal Register Volume 63, Number 191 (Friday, October 2, 1998)]
[Proposed Rules]
[Pages 53244-53249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26320]



[[Page 53243]]

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Part III





Department of Labor





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Employment and Training Administration



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20 CFR Parts 654 and 655



Labor Certification Process for the Temporary Employment of 
Nonimmigrant Aliens in Agriculture in the United States; Administrative 
Measures To Improve Program Performance; Proposed Rule

  Federal Register / Vol. 63, No. 191 / Friday, October 2, 1998 / 
Proposed Rules  

[[Page 53244]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 654 and 655

RIN 1205--AB19


Labor Certification Process for the Temporary Employment of 
Nonimmigrant Aliens in Agriculture in the United States; Administrative 
Measures To Improve Program Performance

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Proposed rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor proposes to amend its regulations relating to the 
temporary employment of nonimmigrant agricultural workers (H-2A 
workers) in the United States. The proposed amendments would reduce the 
period of time from 30 days to 15 days prior to the date worker housing 
will be occupied that employers are required to assure that their 
housing is in full compliance with applicable housing standards, and 
will be available for a pre-occupancy housing inspection; reduce the 
time from 60 to 45 days before the date the employer needs agricultural 
workers that an application for temporary agricultural labor 
certification must be filed; provide an exception to the requirement 
that employers use registered farm labor contractors (FLC) when it is 
the prevailing practice in an area and occupation for non-H-2A 
employers to use such contractors, if a particular FLC has a 
demonstrated history of using undocumented aliens or serious labor 
standard violations; eliminate the requirement that employers notify 
the local Job Service office in writing of the date the H-2A workers 
depart for the employer's place of employment; and transfer the 
responsibility for approving H-2A visa petitions for workers outside of 
the United States, including petition approval for replacement of 
certified H-2A workers upon proof of the H-2A workers' repatriation, to 
the Department of Labor from the Commissioner, Immigration and 
Naturalization Service.
    These proposals represent part of an ongoing effort to streamline 
and improve the operation of the H-2A program. This proposal discusses 
program changes being implemented administratively as well as proposals 
for regulatory changes for public review and comment.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before December 1, 1998.

ADDRESSES: Submit written comments to the Assistant Secretary for 
Employment and Training, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-4456, Washington, DC 20210, Attention: John R. 
Beverly, III, Director, U.S. Employment Service.

FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue NW., Room N-4456, Washington, 
DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Statutory Standard and Implementing Regulations

    The decision whether to grant or deny an employer's petition to 
import a nonimmigrant farm worker to the United States for the purpose 
of temporary employment is the responsibility of the Attorney General's 
designee, the Commissioner of the Immigration and Naturalization 
Service (INS). The Immigration and Nationality Act (INA) (8 U.S.C. 1101 
et seq.) provides that the Attorney General may not approve such a 
petition from an employer for employment of nonimmigrant farm workers 
(H-2A visa holders) for temporary or seasonal services or labor in 
agriculture unless the petitioner has applied to the Secretary of Labor 
(Secretary) for a labor certification showing that:
    (A) There are not sufficient U.S. workers who are able, willing, 
and qualified and who will be available at the time and place needed to 
perform the labor or services involved in the petition; and
    (B) The employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.

[8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.]
    The Department of Labor has published regulations at 20 CFR part 
655, subpart B, and 29 CFR part 501 to implement its responsibilities 
under the H-2A program. Regulations affecting employer-provided 
agricultural worker housing are in 20 CFR part 654, subpart E, and 29 
CFR 1910.42.

II. Plan To Improve H-2A Program

    The Administration has, for some time, been pursuing a dialogue 
among the Departments of State, Justice (INS), Labor and Agriculture 
regarding possible changes to the H-2A temporary nonimmigrant program 
(H-2A program) that could help streamline the program, improve 
operations, and address complaints raised by some users of the program 
without weakening worker protections. The General Accounting Office 
(GAO) and the Department's Office of Inspector General (OIG) have 
recently completed in-depth reviews of the H-2A program, providing 
useful analysis and findings and making several recommendations for 
program changes, many of which have been accepted by the administering 
agencies. This rulemaking represents the first step towards 
implementing changes to improve operations of the H-2A program, putting 
forward a number of proposals for regulatory changes affecting DOL and 
INS activities and requirements. In addition, DOL describes below some 
program changes being implemented administratively. DOL is continuing 
to explore other ways to further streamline and improve the operation 
of the H-2A program and welcomes input and dialogue with the affected 
public on other key H-2A issues.
A. Administrative Changes
    Some H-2A program changes made to enhance effectiveness and 
efficiency while maintaining worker protections were made by 
administrative directives in the form of Field Memoranda (FM) issued by 
the ETA national office to its 10 Regional Administrators (RA). The 
RA's make determinations on H-2A labor certification applications and 
provide functional guidance to the State Employment Security Agencies 
(SESA) which administer the H-2A program under 20 CFR part 655, subpart 
B--Labor Certification Process for Temporary Agricultural Employment in 
the United States. Administrative changes made by FM 17-9, issued 
January 6, 1997, Subject: Improvements in H-2A processing included:
     Clarifying under what conditions U.S. workers are 
considered to be ``available'' and thus may be counted to fully or 
partially deny H-2A positions requested on employers' labor 
certification applications. Only those U.S. workers who are identified 
by name, address, and social security number can be counted to reduce 
the number of H-2A workers requested by an employer.

[[Page 53245]]

     Emphasizing that regional offices should use discretion in 
reducing the number of certified positions requested as a result of 
``last minute'' replacements of recruited U.S. workers where historical 
records of similar last minute referrals, or other information, 
indicate the likelihood that a proportion of the referred workers would 
not make themselves available for work.
     Clarifying positive recruitment requirements of U.S. farm 
workers in areas where there are credible reports of ``a significant 
number of qualified U.S. workers, who, if recruited, would likely be 
willing to make themselves available for work at the time and place 
needed,'' thereby targeting recruitment efforts by employers and SESA's 
to those areas most likely to produce qualified and available U.S. 
workers.
     Encouraging routine posting of approved agricultural job 
orders on America's Job Bank in view of the increased use of this 
resource on the part of employers and U.S. workers.
    FM Number 22-98, issued April 14, 1998, Subject: Clarification of 
Transportation Requirements Home, reaffirms and clarifies the 
regulatory provisions which allow H-2A workers to move from one 
certified employer to another and the requirement placed on the final 
H-2A employer to pay for (or provide) the worker's transportation home.
    The Department is also committed to improving its performance in 
meeting the existing requirement that within 7 days after the initial 
receipt of an employer's application, the employer be notified of 
deficiencies that preclude acceptance of the application, and to meet 
the statutory requirement to issue certification (when such 
certification is warranted) at least 20 days prior to the employer's 
first date of need for agricultural workers.

B. H-2A Process Improvements Through Regulatory Amendments

    The amendments being proposed by ETA are discussed below.
1. Time Limits for Employer Provided Housing To Be Available for 
Inspection
    Currently Sec. 654.403 of the regulations governing housing for 
agricultural workers (20 CFR part 654, subpart E) provides that, for 
employers to gain conditional access to the intrastate or interstate 
agricultural clearance system, which is used for recruitment of non-
local workers, they must provide assurances that the employer-provided 
housing will be in full compliance with the applicable standards 30 
days before the housing is to be occupied. This is to allow time for a 
pre-occupancy housing inspection by the local Employment Service 
office. The housing regulations apply to all non-local agricultural job 
opportunities filled through the Employment Service system whether or 
not they are H-2A related. Reducing this lead time addresses a 
frequently expressed concern of employers that a 1-month lead time for 
employer-provided housing to meet applicable standards is not always 
realistic. This concern is especially common among employers in 
Northern States that need workers in March or April. Additionally, 
local employment service staff have had difficulty inspecting employer-
provided housing located in Northern States in late winter or early 
spring. To address this problem, the proposed regulation will reduce 
the time that worker housing must be available for a pre-occupancy 
housing inspection from 30 to 15 days prior to occupancy. ETA is 
convinced that the ``30-day assurance'' can be reduced without 
lessening protections provided to U.S. and foreign workers.
2. Reduction in Time Limit To File Labor Certification Applications
    The regulation at Sec. 655.101(c) requires that employers file an 
H-2A labor certification application no less than 60 days before the 
first date the employer estimates the H-2A workers will be needed. 
Based on program experience, little or no productive recruitment of 
U.S. workers occurs within the first 15 days after the application is 
received. The overwhelming majority of qualified U.S. workers do not 
apply for and make a commitment to temporary agricultural employment 
earlier than 45 days before the date their services are required. 
Further, a lead time of 45 days should allow sufficient time for DOL to 
review the application and meet the requirements to notify an employer 
of any deficiencies within 7 days and to issue the labor certification 
not later than 20 days before the first date of need. See 8 U.S.C. 
1188(c)(2)(A) and (c)(3)(A). Consequently, DOL is proposing to amend 
the regulation at Sec. 655.101(c) to provide that H-2A applications 
shall be filed with the Regional Administrator no less than 45 calendar 
days before the first date of need, as was recommended by the GAO.
3. Exception From Using Certain Farm Labor Contractors
    The regulations at Sec. 655.103(f) require that employers applying 
for H-2A labor certification must attempt to secure workers through 
farm labor contractors (FLC), and to compensate FLC's with an override 
for their services when it is the prevailing practice in the area for 
non-H-2A agricultural employers to use FLC's. This requirement 
recognizes that FLC's can be an effective source for recruiting U.S. 
workers for jobs that would otherwise be filled by foreign temporary 
workers. In some instances, FLC's have filled these jobs with 
unauthorized workers and created potential vulnerabilities for growers 
when the unauthorized workers are identified during INS enforcement 
actions. At the same time, the furnishing of unauthorized workers--even 
under the terms and conditions of an H-2A job order--can have an 
adverse impact on U.S. workers. Similarly, when an FLC has a 
demonstrated history of serious labor violations, employers should not 
be compelled to provide an opportunity for recurrence of such 
violations, nor incur a potential liability due to violations by their 
contractor.
    To minimize adverse effects on U.S. workers and to help assure that 
employers do not inadvertently employ unauthorized workers hired and 
supplied by FLC's, or expose themselves to potential liability by using 
an FLC that has a history of serious violations of labor standards, an 
amendment is being proposed to the current regulation to provide an 
exception. The employer need not use an FLC on the Wage and Hour 
Division's list of contractors whose certificates have been revoked or 
on a list of employers who have been sanctioned for violations of 
immigration laws and regulations. The rule also would provide a 
procedure whereby the employer can demonstrate that an FLC has a 
history of furnishing unauthorized workers or a history of serious 
labor standards violations. If so demonstrated, the employer need not 
use that FLC. This procedure is patterned after the existing procedure 
at Sec. 655.106(g), which provides that employers may lodge complaints 
against persons or entities that have willfully and knowingly withheld 
U.S. workers prior to the arrival at the job site of H-2A workers in 
order to force the hiring of U.S. workers under Sec. 655.103(e) (the 50 
percent rule) of this part. That rule requires employers (with certain 
exceptions for small employers) to hire qualified, eligible U.S. 
workers who apply until 50% of the contract period has elapsed. Section 
655.103(f) has been revised to add the complaint procedure at 
Sec. 655.103(f)(3). It should be noted, however, that the structure of 
Sec. 655.103(f) has been revised for clarity. Sections 655.103(f) (1), 
(2), (4) and (5) are merely a redesignation of existing regulatory 
provisions that are carried forward in the amended rule.

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4. Elimination of Requirement to Provide Notice of H-2A Worker's 
Departure Date
    Pursuant to Sec. 655.106 (e)(1), an employer is required to recruit 
for U.S. workers through the date the H-2A workers depart for the 
employer's place of employment (the departure date); this marks the 
beginning of the contract period for administering the ``50 percent 
rule.'' Employers are required to notify the local employment service 
office, in writing, of the exact departure date. Program experience 
indicates that the H-2A workers usually depart for the employer's place 
of business the day before the date they are needed. In the interest of 
streamlining H-2A procedures and to relieve employers of the 
administrative burden of notifying the local office of the departure 
date, it is proposed that this requirement be removed from the 
regulations and the H-2A workers will be deemed to have departed for 
the employer's place of business on the date immediately preceding the 
first date of need for the foreign workers.
    It should be noted, however, that the proposed amendment regarding 
the departure date does not affect the employer's ability, provided for 
by Sec. 653.501(d)(2)(v)(D), when using the interstate clearance 
system, to notify the order-holding office of changes in the date of 
need at least 10 days prior to the original date of need specified in 
the job order. Such notification changes the date which starts the 
employer's obligation to pay eligible U.S. workers for the first week 
of work.
5. Transfer of Adjudication of Visa Petitions to the Department of 
Labor
    The H-2A labor certification process--from the filing of an 
application with the Department of Labor to the issuance of a visa by 
the Department of State, and the arrival of the H-2A workers at the 
employer's place of work--has been criticized by some employers as 
complicated, hard to understand, and too time consuming. In some 
instances, the result is that foreign workers have not arrived by the 
first date of the employer's need. In an effort to reduce the number of 
steps, paperwork, and the time necessary to obtain foreign workers 
necessary to perform critical agricultural functions, the Department of 
Labor and the INS are proposing that the function of adjudicating visa 
petitions be transferred to the Department of Labor, including petition 
approval for replacement of a certified H-2A worker upon proof of the 
worker's repatriation. (INS is proposing the transfer by a separate 
proposed rule, soon to be published in the Federal Register.) 
Accordingly, a new Sec. 655.114 is proposed to be added to the H-2A 
regulations to authorize the proposed transfer of the INS visa 
petitioning and adjudication function to the Department of Labor. This 
change is expected to eliminate what can be a 2-to 3-week step in the 
current pre-entry process. The Department of Labor is considering 
adapting into the final rule the actual regulatory text currently found 
in 8 CFR 214.2(h) within the text of 20 CFR 655.114. This would provide 
the regulated community a single source for regulations governing the 
H-2A petition process. The Department welcomes comments on this 
rulemaking issue.
    The INS has initiated steps in the development of a Notice of 
Proposed Rulemaking to delegate to the Secretary of Labor certain 
authorities conferred on the Attorney General under 8 U.S.C. 1184(c) 
involving the petition by employers for H-2A workers.
    Pursuant to section 103 of the INA, the INS Commissioner will 
delegate to the Secretary of Labor the authority to determine on any 
specific case whether an employer may import temporary agricultural 
workers to the United States under section 101(a)(15)(H)(ii)(a) of the 
INA. The INS will propose any changes in form or content of the 
importing employer's petition which will be filed directly with the 
Secretary of Labor. The Secretary of Labor will approve the petition 
before a visa may be issued to an agricultural worker. The proposed 
rule states broadly that such authority will be delegated. The final 
rule will delineate DOL's functions with specificity.
    Removing the INS adjudication will result in a streamlined process 
through which an importing employer needs to file only with one Federal 
agency. The Federal Government will ensure that the employer's petition 
moves through the remainder of the process, eliminating the need for 
the employer to interact with various different agencies. The Secretary 
of State will receive petition approval information for purposes of 
initiating the visa issuance process. This transfer does not affect the 
procedures whereby the alien beneficiaries obtain visas or other entry 
documents from the State Department or INS, as appropriate.
    Further, the INS will propose streamlined processing for employers 
seeking to replace one certified H-2A worker with another worker based 
on proof that the first worker has repatriated.
    It is estimated that, initially, it will take employers 
approximately the same amount of time as it does currently to furnish 
the information necessary to file a completed visa petition with an ETA 
Regional Office since no change is contemplated in the information 
requested from the current INS visa petition. The Department, however, 
is planning to consolidate the labor certification application form and 
the visa petition into one form that will support both labor 
certification and visa petitioning requirements. Design and approval of 
the new form may take up to 1 year from the time the responsibility for 
visa approval is transferred to the Department. This consolidation of 
forms will ultimately result in a substantial reduction of the 
paperwork burden now placed on employers.

Executive Order 12866

    The Department has determined that this proposed rule is a 
``significant regulatory action'' within the meaning of Executive Order 
12866 because of the novel legal and policy issues raised by the 
rulemaking. However, this rule is not an ``economically significant 
regulatory action'' because it will 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.

Regulatory Flexibility Act

    The Department of Labor has 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 
rule does not have a significant economic impact on a substantial 
number of small entities. All of the proposed amendments would 
alleviate the administrative burden on employers seeking H-2A workers 
and, at the same time, they would not singly or together have a 
significant economic impact on any employer. Furthermore, the total 
number of employers utilizing H-2A workers is only approximately 6,000. 
Therefore, the proposed amendments would not have a significant 
economic impact on a substantial number of small entities.

Paperwork Reduction Act

    The proposed rule contains collections of information that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA'95), 44 U.S.C. 3501 et seq., 
and the regulation at 5 CFR 1320. PRA'95 defines collection of 
information to mean, ``the obtaining, causing to be

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obtained, soliciting, or requiring the disclosure to third parties or 
the public of facts or opinions by or for an agency regardless of form 
or format.'' (44 U.S.C. 3502 (3)(A)).
    The title, description of the need for and proposed use of the 
information, summary of the collections of information, description of 
respondents, and frequency of response of the information collection 
are described below with an estimate of the annual cost and reporting 
burden, as required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2). 
Included in the estimate is the time for reviewing instructions, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    ETA invites comments on whether the proposed collection of 
information:

    (1) Ensures that the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Estimates the projected burden accurately, including whether 
the methodology and assumptions are valid;
    (3) Enhances the quality, utility, and clarity of the 
information to be collected; and
    (4) Minimizes the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical or other technological collection 
techniques or other forms of information technology, e.g., 
permitting electronic submissions of responses.

    Title: A Voluntary Procedure to Obtain an Exception to a 
Requirement that Employers Must Use Registered Farm Labor Contractors 
(FLC) in Applying for Temporary Agricultural H-2A Workers.
    OMB Number: 1205-0NEW.
    Frequency: On Occasion.
    Affected Public: Business or other for-profit; Farms; Ranches.
    Number of Respondents: 600 (estimated 10% of 6,000 H-2A employers).
    Total Responses: 600.
    Estimated Time per Respondent: It is estimated that it will take 
those few employers who chose to avail themselves of the option of 
filing complaints about an FLC not on a list maintained by ESA or INS 
that has a demonstrated history of employing or providing a substantial 
number of unauthorized workers, or a history of serious labor standard 
violations, about 1 hour to assemble the necessary information to 
support a credible complaint.
    Total Burden Hours: 600 hours.
    Total annualized capital/startup costs: 0.
    Total annual costs: (operating/maintaining systems or purchasing 
services): 0.
    Description: The proposal will provide an exception to the 
requirement that employers use registered farm labor contractors (FLCs) 
when it is the prevailing practice in an area and occupation for non-H-
2A employers to use such contractors, if a particular FLC has a 
demonstrated history of using undocumented aliens or serious labor 
standard violations.
    The Agency has submitted a copy of the information collection 
request to OMB for its review and approval. Interested parties are 
requested to send comments regarding this information collection to the 
Office of Information and Regulatory Affairs, Attn: ETA Desk Officer, 
OMB, New Executive Office Building, 725 17th Street NW, Room 10235, 
Washington, D.C. 20503.
    Comments submitted in response to this notice will be summarized 
and/or included in the request for Office of Management and Budget 
approval of the final information collection request; they will also 
become a matter of public record.
    Copies of the referenced information collection request may be 
obtained by contacting Dennis M. Gruskin, Senior Specialist, Division 
of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue NW., Room N-4456, Washington, 
DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).
    With respect to the transfer of the visa adjudication function to 
DOL, it is estimated that, initially, it will take employers about the 
same amount of time to furnish the information necessary to file a 
completed visa petition with an ETA Regional Office since no change is 
contemplated in the information requested from the current INS visa 
petition. The Department, however, is planning to consolidate the labor 
certification application form and the visa petition form into one form 
to obtain information that will support both labor certification and 
visa petitioning requirements. This planned consolidation of forms will 
ultimately result in a substantial reduction of the paperwork burden 
now placed on employers.

Catalogue of Federal Domestic Assistance Number

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

List of Subjects

20 CFR Part 654

    Agriculture, Employment, Government procurement, Housing standards, 
Labor, Migrant labor, Unemployment.

20 CFR Part 655

    Administrative practice and procedure, Agriculture, Aliens, 
Crewmembers, Employment, Enforcement, Forests and forest products, 
Guam, Health professions, Immigration, Labor, Longshore and harbor 
workers, Migrant labor, Nurse, Penalties, Registered nurse, Reporting 
and recordkeeping requirements, Specialty occupation, Students, Wages.

Proposed Rule

    Accordingly, parts 654 and 655 of chapter V of title 20, Code of 
Federal Regulations, are proposed to be amended as follows:

PART 654--SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM

Subpart E--Housing for Agricultural Workers

    1. The authority citation for part 654, subpart E is revised to 
read as follows:

    Authority: 29 U.S.C. 49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406 
(1959).


Sec. 654.403  [Amended]

    2. Section 654.403 is amended as follows:
    a. In paragraph (a)(1) the phrase ``30 calendar days'' is removed 
and the phrase ``15 calendar days'' is added in lieu thereof.
    b. In paragraph (a)(3) remove the phrase ``30 calendar days'' and 
add in lieu thereof the phrase ``15 calendar days''.

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

    3. The authority citation for part 655 continues to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2103 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); P.L. 103-206, 107 Stat. 2419; and 8 
CFR 214.2(h)(4)(i).
    Section 665.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).

[[Page 53248]]

    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288 (c) and 
(d); and 29 U.S.C. 49 et seq.; and P.L. 103-206, 107 Stat 2419.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184; 29 U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L. 
102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note).
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).


Sec. 655.100  [Amended]

    4. In Sec. 655.100, paragraph (a)(1) is amended by removing the 
phrases ``60 calendar days'' and ``60-calendar-day period'' and adding 
in lieu thereof the phrases ``45 calendar days'' and ``45-calendar-day 
period'', respectively.


Sec. 655.101  [Amended]

    5. In Sec. 655.101, paragraph (c) is amended as follows:
    a. In the introductory text of paragraph (c), the phrase ``60 
calendar days'' is removed and the phrase ``45 calendar days'' is added 
in lieu thereof.
    b. In paragraph (c)(1), the phrase ``60 calendar days'' is removed 
in the two places it appears and the phrase ``45 calendar days'' is 
added in lieu thereof.
    c. In paragraph (c)(2), the phrase ``60-calendar-day filing 
requirement'' is removed and the phrase ``45-calendar-day filing 
requirement'' is added in lieu thereof.
    d. In paragraph (c)(3), the unit modifier ``60-calendar-day'' is 
removed in the two places it appears and the compound modifier ``45-
calendar-day'' is added in lieu thereof.
    6. Section 655.103 is amended by revising paragraph (f) to read as 
follows:


Sec. 655.103  Assurances.

* * * * *
    (f) Other recruitment--(1) RA required recruitment. The employer 
shall perform the other specific recruitment and reporting activities 
specified in the notice from the RA required by Sec. 655.105(a) of this 
part, and shall engage in positive recruitment of U.S. workers to an 
extent (with respect to both effort and location) no less than that of 
non-H-2A agricultural employers of comparable or smaller size in the 
area of employment.
    (2) Farm labor contractors. When it is the prevailing practice in 
the area of employment and for the occupation for non-H-2A agricultural 
employers to secure U.S. workers through farm labor contractors (FLC) 
and to compensate FLC's with an override for their services, the 
employer shall make the same level of effort as non-H-2A agricultural 
employers and shall provide an override which is no less than that 
being provided by non-H-2A agricultural employers.
    (3) Exception to Using Certain FLC's. Employers are not required to 
use a FLC who is on the Wage and Hour Division's (WHD's) list of 
contractors whose certificates have been revoked, or on a list of 
employers that have been sanctioned for violations of immigration laws 
and regulations maintained by the Immigration and Naturalization 
Service (INS).
    (i) Complaints. Any employer who has reason to believe it can 
document that an FLC, although not on the lists maintained by WHD or 
INS, has a history of employing or providing a substantial number of 
workers who do not have authorization to work in the U.S., or a history 
of serious labor standard violations, may submit a written complaint to 
the local office before or during the recruitment period. The complaint 
shall clearly identify the FLC who the employer believes has a 
demonstrated history of furnishing unauthorized workers, or a history 
of serious labor standard violations, and shall specify sufficient 
facts to support the allegation (e.g., dates, places, numbers of 
unauthorized workers involved) and any available supporting 
documentation (e.g., newspaper articles, notice of INS or DOL 
enforcement action) which will permit an investigation to be conducted 
by the local office.
    (ii) Investigations. The local office shall inform the RA by 
telephone that a complaint under the provisions of paragraph (f)(3)(i) 
of this section has been filed and shall immediately investigate the 
complaint. Such investigation shall, to the extent feasible, include 
interviews with the employer who has submitted the complaint, the FLC, 
and any available INS or DOL officials who may have knowledge of any 
enforcement action conducted against the FLC named. In the event the 
local office fails to conduct such an interview, the RA, to the extent 
feasible, shall do so.
    (iii) Reports of findings. Within 10 working days after receipt of 
the complaint, the local office shall prepare a report of its findings, 
and shall submit such report (including recommendations) and the 
original copy of the employer's complaint to the RA.
    (iv) Written findings. The RA shall immediately review the 
employer's complaint and the report of findings submitted by the local 
office, and shall conduct any additional investigation the RA deems 
appropriate. No later than 5 working days after receipt of the 
employer's complaint and the local office's report, the RA shall issue 
written findings to the local office and the employer. Where the RA 
determines that the employer's complaint is valid and justified, the RA 
shall immediately suspend the application of paragraph (f)(2) of this 
section with respect to the FLC named in the employer's complaint. Such 
suspension shall not take place, however, until the interviews required 
by paragraph (f)(3)(ii) of this section have been conducted. The RA's 
determination under the provisions of this paragraph (f)(3)(iv) shall 
be the final decision of the Secretary, and there shall be no further 
review by any DOL official.
    (4) Centralized cooking facilities. Where the employer has 
centralized cooking and eating facilities designed to feed workers, the 
employer shall not be required to provide meals through an override.
    (5) Housing. The employer shall not be required to provide for 
housing through an override.
* * * * *


Sec. 655.106  [Amended]

    7. Section 655.106(e)(1) is amended by removing from the first 
sentence the phrase ``and shall notify the local office, in writing, of 
the exact date on which the H-2A workers depart for the employer's 
place of employment'', and by adding in lieu thereof the phrase ``which 
shall be deemed for the purposes of this subpart to be the day 
immediately preceding the employer's first date of need''.
    8. Immediately following Sec. 655.113, a new undesignated heading 
is added to read as follows:

Visa Petitioning

    9. Immediately following the newly-added undesignated heading 
``VISA PETITIONING'', a new Sec. 655.114 is added to read as follows:


Sec. 655.114  H-2A Visa Petitions.

    The Commissioner of the Immigration and Naturalization Service has 
delegated to the Secretary of Labor the functions performed by INS 
under 8 CFR 214.2(h)(5), ``Petition for alien to perform agricultural 
labor or services of a temporary or seasonal nature (H-2A),'' with 
respect to approving visa petitions for workers outside the United 
States, including petition approval for replacement of certified 
workers upon proof of the workers' repatriation. Within the Department 
of Labor, the

[[Page 53249]]

functions are delegated to the Regional Administrators. The Regional 
Administrators shall perform these functions consistently with 8 CFR 
214.2(h) and such instructions as the Director, U.S. Employment 
Service, shall prescribe.

    Signed at Washington, DC, this 25th day of September, 1998.
Alexis M. Herman,
Secretary of Labor.
[FR Doc. 98-26320 Filed 10-1-98; 8:45 am]
BILLING CODE 4510-30-P