[Federal Register Volume 64, Number 124 (Tuesday, June 29, 1999)]
[Rules and Regulations]
[Pages 34958-34966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16444]



[[Page 34957]]

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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; Final Rule

  Federal Register / Vol. 64, No. 124 / Tuesday, June 29, 1999 /Rules 
and Regulations  

[[Page 34958]]


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DEPARTMENT OF LABOR

Employment and Training Administration

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

RIN 1205-AB19
AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (DOL or Department) is publishing a final rule 
amending its regulations relating to the temporary employment of 
nonimmigrant agricultural workers (H-2A workers) in the United States. 
The final rule makes three substantive changes to the current 
regulations. One change reduces the time that an application for 
temporary agricultural labor certification must be filed from 60 days 
to 45 days before the date the employer needs agricultural workers. 
Another change provides employers with the option of having the housing 
inspected as late as 20 days before the date of need. The third 
substantive change modifies the requirement that employers notify the 
local State Employment Security Office, in writing, of the exact date 
on which the H-2A workers depart for the employers place of business.
    The proposal to provide a limited exception from the requirement to 
use certain Farm Labor Contractors as a source of workers has been 
narrowed so that it can be implemented in a manner that does not 
require a change to the current regulations. A fifth proposed change to 
transfer visa petition adjudication authority for workers outside of 
the United States from the Immigration and Naturalization Service (INS) 
to DOL remains open as it is the subject of parallel notice-and-comment 
rulemaking by INS.

DATES: This final rule is effective July 29, 1999. Affected parties do 
not have to comply with the information collection and recordkeeping 
requirements in Sec. 655.106(e)(1) until the Department publishes in 
the Federal Register the control numbers assigned by the Office of 
Management and Budget (OMB) to these information collection 
requirements. Publication of the control numbers notifies the public 
that OMB has approved these information collection requirements under 
the Paperwork Reduction Act of 1995.

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) 219-5263 (this is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

I. Introduction

    On October 2, 1998, ETA published in the Federal Register a Notice 
of Proposed Rulemaking (NPRM) which proposed five amendments to ETA's 
regulations at 20 CFR part 655, subpart B, relating to the temporary 
employment of nonimmigrant agricultural (H-2A) workers in the United 
States. 63 FR 53244 (Oct. 2, 1998). The NPRM proposed five regulatory 
changes pertaining to: (1) The time limits for housing inspections; (2) 
time limits for filing labor certification applications; (3) a possible 
exception from using certain Farm Labor Contractors (FLC's); (4) 
elimination of 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 business; and (5) transfer of the responsibility 
for approving H-2A visa petitions for workers coming from outside of 
the United States (U.S.) to DOL from the INS Commissioner. This 
document adopts final regulations involving the time limits for housing 
inspection and filing applications, and the requirement that employers 
notify the local employment service office of the date the H-2A workers 
depart for the employer's place of business. Another proposed change 
relating to an exception from using certain FLC's is being adopted, in 
part, in a manner that can be implemented under current regulations. 
The Department will take appropriate action to finalize the transfer of 
petition authority if INS concludes such transfer is appropriate at the 
completion of its rulemaking.

II. Statutory Standard and Implementing Regulations

    The decision whether to grant or deny an employer's petition to 
import nonimmigrant farm workers to the United States for the purpose 
of temporary employment is the responsibility of the Attorney General's 
designee, the INS Commissioner. The Immigration and Nationality Act 
(INA) (8 U.S.C. 1101 et seq.) provides that the Attorney General may 
not approve 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 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.
    It was noted in the NPRM that some recent H-2A program changes were 
made to enhance effectiveness and efficiency while maintaining worker 
protections by administrative directives in the form of Field Memoranda 
(FM) issued by the ETA national office to its 10 Regional 
Administrators (RA's). (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.) These 
administrative changes are summarized herein for the convenience of 
interested parties.
    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;
     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,

[[Page 34959]]

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, reaffirmed and clarified 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.

III. Comments on Proposed Rule and the Department's Response

A. Comments on Proposed Rule

    Thirty-six comments were received on the proposed rule. The largest 
number of comments--15--were received from State agencies. After the 
State agencies, the largest number of comments were received from 
worker advocates and employer organizations, which submitted 8 and 5 
comments, respectively. The Farmworker Justice Fund (FJF) indicated 
that its comments were supported by 32 listed organizations. Comments 
were received from the American Immigration Lawyers Association (AILA) 
and two private attorneys. Comments were also received from Congressman 
Howard Berman of California, ETA's Regional Office in Chicago, one 
monitor advocate, and one member of the general public.
    Many commenters, in addition to commenting on the specific 
regulatory proposals contained in the NPRM, offered a number of 
additional suggestions for modifying the H-2A program. These 
suggestions included, but were not limited to:
     Repealing the adverse effect wage rate (AEWR);
     Increasing the AEWR by 20 percent;
     Eliminating the current definition of ``prevailing 
practice'' which is based on the practices of a majority of employers 
and employees, and replacing it with one based on either a majority of 
employers, or a majority of the employees in the local area and 
occupation;
     Imposing user fees that recover the true cost of the H-2A 
program;
     Eliminating the 50 percent rule, which requires employers 
to hire any qualified U.S. worker who applies until 50 percent of the 
work contract, under which the foreign worker was hired, has elapsed.
     Requiring withholding and placing in escrow sufficient 
funds from H-2A workers' wages so that they can pay for their return 
transportation home if they do not fulfill their contracts.
    The above suggestions are outside the scope of the proposed rule. 
Consequently, they are not addressed in this document but may be 
considered by the Department in a future rulemaking regarding the H-2A 
nonimmigrant program. Similarly, comments concerning administrative ( 
i.e., non-regulatory) changes in the H-2A program are not addressed in 
this document, but will be considered by the Department in making 
administrative changes that can be implemented without amending the H-
2A regulations at 20 CFR part 656, subpart B.
    The FJF strongly opposed the proposed rule and urged that it be 
withdrawn. According to the FJF, the proposal is arbitrary and 
capricious because it allegedly ignores numerous studies concluding 
that the Department has not adequately implemented worker protections 
under the H-2A program, and it ignores recommendations that have been 
made by such studies to improve worker protections. The FJF enumerated 
a variety of recommendations made and issues identified by the studies 
cited in its comments. Moreover, addressing the recommendations and 
issues cited by the FJF, as well as the many other recommendations made 
by other commenters would require a much more comprehensive assessment 
of the H-2A program and extensive consultation with all stakeholders, 
which--while such a process has been taking place in other fora--is 
outside the scope of this rulemaking.
    As indicated in the preamble to the NPRM, the primary purpose of 
the proposed regulatory amendments was to implement certain changes 
growing out of a dialogue among the Departments of State (DOS), Justice 
(INS), Agriculture, and Labor to streamline the H-2A program and 
address complaints raised by some users of the program without 
weakening worker protections. Such an effort is particularly important 
in an environment characterized by program growth and stable or 
declining resources. The Department believes, as discussed in greater 
detail below, that the amendments adopted are balanced. The amendments 
serve to streamline the H-2A program and can help improve operations 
without weakening worker protections. Further, as stated in the 
preamble, this rulemaking represents one step towards implementing 
changes to improve H-2A program operations. The Department will 
consider the issues raised by various studies of the H-2A program, as 
well as the recommendations made by the commenters on the NPRM, in a 
future rulemaking effort to improve the operation of the H-2A program.

B. Comments About the Proposed Regulatory Changes

    The comments received on the specific regulatory proposals in the 
NPRM and the Department's response to the comments are discussed below.
1. Time Limits for Employer Provided Housing To Be Available for 
Inspection (Sec. 654.403)
    Several comments were received on the proposal to reduce the time 
by which housing that will be provided to a worker must be available 
for inspection, from 30 to 15 days prior to occupancy. Inspections are 
performed by State agencies in most cases. See 20 CFR 653.501(d)(2)(xv) 
and 20 CFR 654.400 et seq.
    Congressman Howard Berman and several worker advocates objected to 
the proposal on several grounds. The major issues raised by those 
comments include:
     State agencies do not always make timely inspections and 
shortening the lead time to conduct housing inspections will inevitably 
lead to some needed repairs not being made.
     The Office of Inspector General's (OIG) report concluded, 
in relevant part, that DOL has certified employers to receive H-2A 
workers despite lacking documentary proof that housing inspection had 
occurred. The OIG finding is consistent with reports that some H-2A 
housing is not inspected in a timely fashion and that H-2A housing does 
not comply with basic housing standards.
     The untimely inspection and repair of farmworker housing 
will worsen as the H-2A program continues to grow, since funding for 
inspections will not keep pace with the increased need. The H-2A 
program has been expanding to new States and crop areas during the last 
three years and is expected to continue its growth.
    Employer organizations favored the proposal to reduce the lead time 
worker

[[Page 34960]]

housing must be available for inspection prior to occupancy, and 
assumed that the proposed shortened deadline for housing inspections 
would allow certifications to be issued even if housing inspection was 
still pending. The National Council of Agricultural Employers (NCAE) 
stated that if certification is delayed while housing inspections are 
still pending, the proposed amendment would have little ``real impact 
on H-2A users.'' NCAE recommended that the regulations be amended to 
clarify that housing inspection is not required prior to certification.
    Two large employer organizations--NCAE and the American Farm Bureau 
Federation (AFBF)--expressed considerable concern about the increasing 
difficulty employers face in obtaining timely housing inspections. The 
NCAE indicated that this problem has grown worse in recent years with 
growth in the H-2A program and its expansion into States where H-2A 
certification has not been sought in recent years. The NCAE further 
stated that it appears that many states have an extremely limited 
number of personnel who are capable of performing housing inspections. 
Although the NCAE supported reducing the application time, it strongly 
urged that DOL inventory the housing inspection resources available in 
the State agencies to assure that there are qualified inspectors 
available to make inspections in a timely manner.
    Both the NCAE and AFBF recommended conforming the H-2A housing 
inspection requirement to that for all other migrant and seasonal 
agricultural workers in the regulations implementing the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA) at 29 CFR 500.135. 
They contend such a change would address the problem faced by employers 
in obtaining timely housing inspections. The MSPA regulations require 
that housing be approved prior to occupancy. They also provide that if 
the employer has made a timely request for an inspection, and the 
inspection has not been made, the employer may house workers without 
inspection, provided that the housing is in full compliance with 
applicable regulations.
    Nine State agencies objected to the proposal to shorten the lead 
time for housing inspections. The major points they made include:
     Several States objected to the proposal because it would 
allow certification to be issued before the employer's housing was 
inspected and approved.
     Other states objected to the proposal based on resource 
considerations. With the limited resources available, a shorter time 
frame would make it more difficult for States to inspect and approve 
housing prior to occupancy. Two States pointed out that they only had 
one person available to conduct housing inspections; another indicated 
that normally only one person is available to conduct 150 housing 
inspections.
     One State pointed out that inclement weather conditions 
during the winter months requires rescheduling of housing inspections 
in remote areas. The proposed 15-day time frame would make it difficult 
for inspections to be completed in a timely fashion.
     Many employers do not request housing inspections in a 
timely manner.
     Inspection 15-days before occupancy may not provide 
adequate time for employers to correct deficiencies in their housing.
    Four States were in favor of the proposal to shorten the lead time 
for conducting housing inspections. One State maintained that the 
shorter time frame would allow more flexibility for its field staff to 
work with employers and that the ``relaxing'' of the regulation ``still 
provides the same level of protection for U.S. workers.''
    The ETA Chicago Regional Office expressed great concern about 
reducing the time limit for inspection prior to occupancy, because 
there would be no way to guarantee that housing will be in full 
compliance with requirements before certification is granted.
    The Department indicated in the NPRM that one reason for reducing 
the lead time for conducting housing inspections was the commonly 
expressed concern among employers in Northern States that a 1-month 
lead time was unrealistic for employers that need workers in March or 
April. It was also stated in the NPRM that local employment security 
agency staff have had difficulty inspecting employer-provided housing 
in Northern States. 63 FR at 53245. Only two comments directly 
addressed these issues. Massachusetts indicated that it does not have a 
problem in inspecting housing in late winter or early spring. The 
State's records show that employers with employment needs during late 
winter or early spring normally maintain their housing facilities in 
conformity with the required standards and have always been inspected 
in a timely manner. As noted above, another state, pointed out that 
inclement weather frequently causes housing inspections to be 
rescheduled and opined that reducing the lead time the employer has to 
assure that housing will be in full compliance before it is occupied 
will make it more difficult for State agencies to perform timely 
housing inspections.
    Lastly, one commenter questioned what would happen if--with a 
shortened lead time--the employer's housing is found deficient after 
certification, and called upon the Department to spell out what happens 
in such circumstances. The commenter urged that the employer simply be 
given an opportunity to correct and cure any deficiency before the date 
of need.
    After carefully reviewing all the comments, the Department 
continues to be of the view that employers should have the option of 
having the housing inspected at a date considerably later than under 
the current regulations. At the same time, however, the Department has 
given careful consideration to the interrelationship between housing 
inspection and the certification process, and has concluded that 
housing must pass inspection before certification can be granted. See 8 
U.S.C. 1188(c)(4). Therefore the Department has concluded that the 
latest date by which employers must assure that the housing will be in 
full compliance with applicable standards pursuant to 
Sec. 655.403(a)(3) can be no later than 20 days before the date of 
need--i.e., the date on which certification must ordinarily be granted. 
An employer whose housing fails to pass an inspection conducted on or 
before the 20th day prior to the date of need will have the 5 days 
provided for in Sec. 655.403 (e) to correct the deficiency and the 
certification will be delayed for that period, if necessary. If, on the 
other hand, the state agency did not timely inspect the housing (i.e., 
by 20 days before the date of need), at no fault of the employer, the 
Department will delay certification until the housing has been 
inspected and the employer has had an opportunity to remediate any 
deficiencies discovered.
    The Department notes that the employer must notify the SESA 
ordering office at least 10 working days before the date of need, 
pursuant to 20 CFR 653.501(d)(2)(v)(D), if workers are no longer needed 
or if the date of need has changed or else face liability to U.S. 
workers for housing and the first week's pay. U.S. workers in turn are 
required pursuant to 20 CFR 653.510(d)(2)(v)(B) to contact a local job 
service office 5 to 9 working days before the date of need to determine 
if the employer's needs have changed. This allows workers to commence 
travel to the jobsite, or to find alternative employment if the work is 
no longer available. It therefore is important that the housing be 
timely

[[Page 34961]]

inspected so that the local office is able to advise workers if it 
becomes necessary to deny the certification because the housing is not 
in compliance with the applicable standards.
    The Department is of the view that rather than allow State agencies 
less time in which to schedule inspections, this modification actually 
provides a longer window. The Department anticipates that in areas 
where housing inspections take longer to schedule, employers will 
continue to provide early notice to State agencies to ensure that 
inspections are conducted timely.
    Accordingly, the Department has modified Sec. 654.403 to require 
that employers assure housing will be in full compliance no later than 
20 calendar days before the date of need. The Department intends to 
issue administrative guidance concerning the operation of this 
modification.
2. Reduction in Lead Time To File Labor Certification Applications 
(Sec. 655.101(c))
    The proposal in the NPRM to reduce the deadline for filing 
applications from 60 to 45 days before the date of need was strongly 
opposed by the FJF, other worker advocates, and Congressman Howard 
Berman. Their major reasons for objecting to the proposal include:
     There has been no showing that a change in the lead time 
to file applications is justified. Agricultural growers know well in 
advance their planting and harvesting schedules. Indeed, for decades, 
growers throughout the eastern United States were able to estimate 
these needs a full 80 days in advance.
     The time available for interstate and positive recruitment 
of U.S. workers would be unreasonably shortened if the proposal is 
implemented. Interstate recruitment does not begin until the 
application is accepted for consideration by DOL. It can take 7 days 
for the DOL's regional office to review the employer's application, and 
the employer has another 5 days to correct deficiencies. With a 
shortened lead time, this would place the beginning of the interstate 
recruitment at the 33rd day prior to the date of need and just 13 days 
before the date for labor certification. If DOL does not review 
applications in a timely manner, as is often the case, there could be 
10 days or less of interstate recruitment of migrant workers prior to 
the date of certification.
     Congress insisted that H-2A labor certification be based 
on proof that there is an actual labor shortage, following a meaningful 
test of the labor market. Accordingly, it is not sufficient to rebut 
that the regulations provide that recruitment must continue until the 
date the foreign (H-2A) workers depart for the employer's place of 
work.
     Employers do not always hire workers referred to them 
pursuant to the 50-percent rule.
     The proposal is inconsistent with the recommendations of 
the General Accounting Office (GAO). Although the GAO report suggested 
that the Department could reduce from 60 to 45 days the time 
applications have to be submitted prior to the date of need, it also 
stated that such a reduction should only be made if the statutory 
requirement that certifications be issued 20 days before the date of 
need is reduced to 7 days.
     The proposal is inconsistent with the regulatory 
requirement at Sec. 655.105 (a)(2), which requires that H-2A employers 
engage, at a minimum, in the kind and degree of recruitment efforts to 
secure U.S. workers that they made to obtain H-2A workers.
    Employer organizations supported the reduction in the required lead 
time to file applications. However, they recommended that the lead time 
to file applications be reduced by more than suggested by DOL.
    The NCAE, for example, maintained that it is the experience of H-2A 
users that most U.S. workers make themselves available shortly before, 
or after, the certification date. Furthermore, since under current 
regulations all qualified U.S. workers who apply to the employer must 
be hired until 50 percent of the anticipated period of work (the 
contract period) has elapsed, no qualified U.S. worker would be denied 
a job even if the deadline for applications were reduced to 40 or even 
30 days before the date of need. The New England Apple Council (NEAC) 
maintained that the ``lag time'' between recruitment and start of work 
produces more ``no shows'' of workers than any other reason.
    The Florida Fruit and Vegetable Association (FFVA) stated that for 
several vegetable crops which are greatly influenced by weather and 
other production uncertainties, a 45-day lead time may still be too far 
out to determine a crop's maturity rate.
    Comments submitted by State agencies regarding the proposal to 
shorten the lead time for filing applications were mixed. Four States 
supported the proposal, indicating that the proposed change would not 
have an adverse impact on U.S. workers. Two of these States indicated 
that the deadline for filing applications should be reduced to less 
than 45 days. The California State agency recommended that the deadline 
for filing applications be reduced to 30 days prior to the date of 
need. According to the California State Agency, the shorter lead time 
would increase the possibility of locating U.S. workers who can commit 
to the job and it also would be beneficial to employers ``who may not 
know their exact staffing needs or start date until closer to the time 
the work needs to be done.'' The Kentucky State agency commented that 
``(s)uccessfully recruiting any U.S. workers can be achieved through 
the Agriculture Recruitment System in 30 days if supply states and 
demand states coordinate specific efforts towards identified 
populations.''
    Two states were against reducing the lead time for filing and 
processing applications. The Idaho State agency noted that the full 60 
days is needed because applications are not filled out properly when 
received. The Massachusetts State agency indicated that the shorter 
time frame will adversely impact on State agencies' ability to conduct 
effective recruitment, especially in regions where master orders are 
used.
    Two other states also commented. The New Jersey State agency 
indicated that the reduction in time to process applications should not 
be a problem if there are adequate staff at DOL to respond to the 
applications when they are received. The Nevada State agency noted that 
the proposal provides employers with more flexibility in recruitment of 
agricultural labor, particularly with regard to crops that are more 
sensitive to weather conditions. At the same time, the proposal may 
allow employers to be less organized in the planning and execution of 
their application. The Nevada State agency concluded by stating that 
because of the way applications are prioritized and processed in 
Nevada, processing times would remain relatively constant regardless of 
filing deadlines.
    A monitor advocate who commented opined that the lead time to file 
and process applications should be expanded. This time should not be 
less than 60 days to enable employers to access all local resources in 
attracting and identifying a ``sufficiently large labor force.''
    The ETA Chicago Regional Office commented that reducing the time 
limit to file labor certifications did not leave enough time for the 
State agencies to recruit adequately in view of all the administrative 
steps that must be completed before States can conduct recruitment.
    Some commenters also indicated that the employers should still be 
able to file labor certification applications more than 45-days prior 
to the date of need

[[Page 34962]]

for H-2A agricultural workers. One commenter assumed that first-time 
users of the program would be able to file less than 45-days prior to 
the date of need if necessary.
    With respect to the time limit for filing applications, the 
Department has decided, after reviewing all of the diverse comments, to 
implement the proposal to reduce the lead time for filing H-2A labor 
certification applications from 60 to 45 days before the first date the 
employer estimates that H-2A workers are needed. The regulation will 
provide growers with increased ability to more precisely estimate the 
need for workers. The Department has concluded, for the reasons 
discussed below, that reducing the lead time for filing H-2A labor 
certification applications will not have a significant adverse impact 
on the recruitment of U.S. workers. The final rule, at 
Sec. 655.101(c)(3), continues to encourage employers to file in advance 
of the required filing date, and no change is made in the regulation 
for emergency applications at Sec. 655.101(f)(2), which refers to 
agricultural employers who have not made use of H-2A agricultural 
workers for the prior year's agricultural season.
    As noted in the preamble to the NPRM, the overwhelming majority of 
qualified U.S. workers do not apply and make a commitment to temporary 
agricultural employment earlier than 45 days before their services are 
required. The Department does not believe that this is generally 
attributable to the fact, as some commenters indicated, that DOL 
regional offices may spend 12 days, or more, in processing applications 
before they are accepted for consideration and placed into interstate 
clearance. Furthermore, the majority of applications filed on behalf of 
H-2A agricultural workers are by repeat users of the H-2A program. Most 
such employers are well versed in program requirements, policies, and 
procedures; consequently, their applications can be accepted for 
consideration and placed into the Agricultural Recruitment System with 
minimal review.
    H-2A labor certification applications are filed simultaneously with 
the local employment service office and the ETA regional office. The 
local office begins to conduct local recruitment when it receives the 
application from the employer whether or not it has been accepted for 
consideration by ETA's regional office. 20 CFR 655.101(c)(2).
    As stated above, some commentators noted that it can take longer 
than the allotted 7 days for regional offices to review H-2A labor 
certification applications, and that employers may take longer than 5 
days to resubmit an amended application in response to any deficiencies 
found in the application by the regional office, resulting in a 
reduction in the time allowed for interstate recruitment, since the 
application has to be certified 20 days before the day the employer 
first needs agricultural workers. With respect to meeting the 7-day 
deadline for reviewing applications, ETA intends to increase its 
monitoring of regional offices to improve its performance in meeting 
this statutory and regulatory requirement. See 20 CFR 655.101(c)(1); 
and 8 U.S.C. 1188(c)(2).
    With respect to the 5 days allotted for employers to submit amended 
applications in response to deficiencies noted by the regional office, 
ETA intends to strictly enforce the regulatory requirement at 
Sec. 655.101(c)(2). This provides, in relevant part, that when ETA has 
formally notified an applicant of any deficiencies, any time needed to 
obtain an application acceptable for consideration after the 5-calendar 
period allowed for an amended application will postpone the 
certification decision day-for-day beyond the 20 calendar days before 
the date of need. This will lessen considerably the possibility that 
the period of interstate recruitment prior to the date the application 
is certified will be unduly abbreviated.
    Most importantly, notwithstanding comments to the contrary, it is 
important to recognize that recruitment continues considerably past the 
date a labor certification application is certified. Positive 
recruitment conducted by the employer must continue until the time the 
H-2A workers depart for the employer's place of employment, and 
recruitment through the interstate clearance system continues until 50 
percent of the work contract under which the H-2A workers were hired 
has elapsed. Under the ``50-percent rule,'' which refers to half the 
time accounted for by the total period of the contract, the employer 
must continue to provide employment to any qualified, eligible U.S. 
worker who may apply. In addition, the employer must offer to provide 
the U.S. workers with housing and the other benefits, wages, and 
working conditions provided to H-2A workers. See 8 U.S.C. 1188(b)(4), 
and 20 CFR 655.102, 655.103(d), 655.105(a), and 655.106(e).
    As noted above, some commenters indicated that employers do not 
always hire U.S. workers referred to them pursuant to the ``50-percent 
rule.'' See 20 CFR 655.103(e). However, no evidence to support these 
claims was submitted to the Department. Additionally, the Department is 
not aware of any evidence suggesting that such occurrences are numerous 
or widespread. Nevertheless, ETA intends to be vigilant of employers' 
compliance with the ``50-percent rule'', with violations addressed 
through the imposition of appropriate sanctions.
3. Exception From Using Farm Labor Contractors (Sec. 655.103(f))
    The majority of comments opposed the proposal to provide a limited 
exception from the requirement to use farm labor contractors (FLC's) 
when it is the prevailing practice in an area and occupation for non-H-
2A employers to use such contractors as a recruitment source for U.S. 
workers and to compensate them with an override. This exception would 
have applied if a particular FLC has a demonstrated history of using 
undocumented aliens or serious labor standard violations.
    Congressman Berman and worker advocacy organizations were strongly 
opposed to the proposal. They indicated that such an exception would 
reduce the use of FLC's which are an important recruitment source for 
U.S. farmworkers. The FJF maintained that recent studies show that an 
increasing percentage of U.S. farmworkers and most guest workers are 
hired through labor contractors. Both Congressman Berman and the FJF 
maintained that in California it is estimated that between one-half and 
two-thirds of seasonal farmworkers are hired through crewleaders--many 
of whom also transport, house, pay, and supervise workers in the 
fields.
    Objections to the proposal by worker advocates include:
     The provision that employers need not use an FLC on the 
Wage and Hour Division's (WHD's) list of contractors whose certificates 
have been revoked is redundant with current law under MSPA and 
unnecessary. Employers are prohibited by law from contracting with an 
FLC whose licenses has been revoked and not reinstated.
     The complaint provision proposed provides no due process 
rights permitting FLC's to challenge the evidence submitted by State 
agencies.
     The proposed rule could put some FLC's out of business and 
deny jobs to U.S. workers who are associated with contractors who have 
been ``sanctioned'' by the INS for hiring unauthorized immigrants or 
who have violated labor laws. The Department should not use this 
rulemaking process to impose additional ``punishment'' on businesses 
because affected U.S. workers would be unduly harmed.

[[Page 34963]]

     The proposal may lead to workers being ``doubly punished'' 
and discouraged from filing complaints. If a worker complains about 
abusive practices of an FLC, such as nonpayment of wages, the worker 
may see wages go unpaid and then lose future work because of the 
secondary consequences of the complaint.
     An H-2A grower which may have hired unauthorized workers 
and violated labor laws would still receive Government approval to hire 
H-2A workers; yet, an FLC could be barred, at the grower's initiation, 
from supplying lawful U.S. workers to that same U.S. employer.
     The proposal is particularly troubling in that it allows 
an FLC who is barred as a contractor supplying U.S. workers to apply 
for H-2A labor certifications.
     The proposal could be subject to manipulation and harmful 
to workers. An employer could bring a complaint against an FLC who has 
a large number of available U.S. workers to avoid hiring U.S. workers.
    The employer organizations also objected to the proposal to provide 
an exception from using certain FLC's. The NCAE pointed out, as did the 
worker advocates, that the provision in the proposal permitting H-2A 
applicants to refuse to engage FLC's who are on WHD's list of 
contractors whose certificates have been revoked adds no new 
protections for H-2A employers. Under the MSPA regulations at 20 CFR 
500.71, employers are already prohibited from engaging such 
contractors.
    The NCAE also maintained that the provision that H-2A employers 
would not be required to employ farm labor contractors on a list of 
contractors sanctioned by INS is meaningless, because INS does not 
maintain such a list. NCAE contends that although INS district or 
regional offices may have such lists, all offices may not have such 
lists, and to the extent such lists exist, they would include all 
employers sanctioned by that INS district and would not be limited to 
FLC's. The lists are not aggregated in one spot and the lists that do 
exist are not routinely disseminated to the public as is the DOL FLC 
list. NCAE contended that the only apparent way an employer could avail 
itself of this regulatory provision is to contact each INS district 
office and request its list of employers which have been sanctioned for 
violations of immigration laws and search each list for the names of 
contractors.
    According to the NCAE, the provision in the proposal to permit 
employers not to use FLC's not on the WHD or INS lists if the employer 
can document that the FLC ``has a history of employing or providing a 
substantial number of workers who do not have the authorization to work 
in the U.S. or a substantial history of labor violations'' is 
impractical on several grounds. These grounds include:
     It is unlikely that growers would be able to assemble the 
documentation on the FLC required to support a credible complaint;
     There is no protection for the employer from retaliation 
by the FLC; DOL would be creating a procedure in which the employer 
could incur legal liability by making the complaint; and
     The complaint procedure is flawed, convoluted and ignores 
the reality of the hiring procedure.
    The NCAE recommended that, if the Department is truly concerned 
about helping employers avoid hiring persons not authorized to work in 
the United States, it should take appropriate measures to assure that 
the workers the State agencies refer are authorized to work before 
referring them. It is the experience of users of the H-2A program that 
a substantial and growing number of the persons referred as ``U.S. 
workers'' to H-2A applicant employers are, in fact, workers with 
fraudulent documents or, in some cases, no documents at all.
    The comments submitted by State agencies on the proposal to provide 
an exception to permit employers not to use certain FLC's were mixed. 
The thrust of the comments submitted by three States appeared to be 
that the current regulation pertaining to FLC's as a recruitment source 
should be eliminated. On balance the State agencies of Arizona and Ohio 
appeared to be against the proposal. The Kentucky state agency stated 
that the proposal is a common-sense approach to a growing concern on 
the part of employer's and the State employment security staff and 
should be implemented.
    The one monitor advocate who submitted comments supported the 
proposed amendment that provided an exception to using certain FLC's as 
a recruitment source.
    After reviewing all the comments received on the proposed amendment 
to provide an exception to using certain FLC's, the Department has 
concluded that there are indeed serious due process concerns about 
potentially stigmatizing FLC's who have not had an opportunity to 
challenge allegations of wrongdoing in an adjudicatory proceeding. 
Further, the Department has legal authority to revoke the licence of an 
FLC who has violated immigrations laws or to refuse to register such an 
FLC (29 CFR 500.51(g)). The Department intends to obtain from the INS 
the list of those FLC's who have been found in violation of Section 
274A(a) of the INA, either by hiring, recruiting, or referring an 
alien, knowing the alien was unauthorized to work; or by employing a 
person without first verifying the person's identity and employment 
authorization. Therefore, the final rule needs to make no change to the 
regulation at Sec. 655.103(f). The Department is not implementing its 
proposal to provide a new means for employers to challenge the 
requirement to use an FLC the employer believes may have violated 
immigration or labor laws. Employers must attempt to secure workers 
through registered FLC's and to compensate them 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. However, no H-2A grower-
applicant may or will be required to use any FLC included on WHD's list 
of contractors whose certificates have been revoked, including those 
certificates which are revoked because of violations of the immigration 
laws. The Wage and Hour Division publishes a list of ineligible FLC's, 
which is also available at its web site at: http://www.dol.gov/dol/esa/
public/regs/statutes/whd/mspa__debar0399.html. Thus, the Department's 
proposal is being narrowed and can be implemented under existing 
regulatory authority.
4. Elimination of Requirement To Provide Notice of the H-2A Workers' 
Departure Date (Sec. 655.106(e)(1))
    Diverse comments were received on the proposal to eliminate the 
requirement that employers notify the local employment service office, 
in writing, of the exact date the H-2A workers depart for the 
employer's place of employment, and substitute a provision deeming that 
the workers departed on the day immediately preceding the date of need. 
The Department stated in the preamble to the NPRM that program 
experience indicates that the H-2A workers usually depart for the 
employer's place of business the day before they are needed.
    Worker advocates objected to eliminating the requirement that 
employers notify the local office of the H-2A workers departure dates 
because:
     There is no evidence that the current regulation imposes 
an excessive burden on growers utilizing the H-2A program;
     Such change should not occur until DOL addresses workers' 
needs; and

[[Page 34964]]

     Although the proposed change appears innocuous, it is 
likely to harm U.S. workers. For example, a nursery that was certified 
for H-2A workers to begin employment on October 15, 1998, did not start 
employing its H-2A workers until November 15, a full month later. The 
required notification enabled the local office to determine the 
appropriate dates for administering the 50-percent rule and advise job 
applicants accordingly.
    The NCAE supported eliminating notice of the departure date, but 
disagreed that workers typically depart the day before the employer's 
date of need. The NCAE maintained that typically for workers to obtain 
their visas, travel to the employer's place of employment, and be 
settled and ready for work on the date of need, they must depart at 
least 3 days before the date of need. NCAE recommended that DOL deem 3 
days before the date of need as the departure date. Furthermore, since 
workers' departure dates may be even earlier, depending on where they 
are coming from, it recommended that DOL continue to allow employers to 
notify the Department of the date on which their workers depart if it 
is more than 3 days before the date of need.
    One attorney supported eliminating notice of the departure date 
because it is extremely burdensome to employers, especially when the 
employer has many H-2A workers who do not always depart for the 
employer's place of business at the same time.
    Divergent comments were submitted by State agencies on this 
proposal. Three States commented that the requirement for notification 
of the departure date should not be eliminated. One of these States 
maintained that the change will harm U.S. workers, as on numerous 
occasions H-2A workers have departed up to 15 days after the date of 
need. Another State also pointed out that the contract period must also 
be determined for the purpose of determining whether the employer must 
provide or pay for the worker's transportation and daily subsistence 
from the place of employment to the place from which the worker came to 
work for the employer. A third State indicated that notification of the 
departure date is helpful in scheduling field checks, which is 
important to ensure that information is collected timely and for each 
employer, each crop and for each activity of those crops.
    Four State agencies supported eliminating the requirement of 
notification of the H-2A workers' departure date. One State noted that 
the requirement is currently being ignored. Two States indicated that 
eliminating notice of the departure date would have no adverse impact 
on U.S. workers. A fourth State viewed the proposal as positive, since 
it does not affect the employer's requirement of notifying the order-
holding office of changes in the date of need. This State also noted 
that it has had problems with H-2A employers notifying it of departure 
dates, but it can still meet with the H-2A workers after the date of 
need to review the job order and the employment service complaint 
system.
    In light of the above comments regarding departure date 
notification, ETA has concluded that its original proposal to eliminate 
the requirement to notify of the departure date at Sec. 655.106(e) 
should be modified to provide that ETA and the SESA shall deem the date 
of departure to be the third day before the first date of need. If the 
workers depart on or before the date of need, no notice to the SESA 
will be necessary. However, employers will have the option of advising 
the SESA if workers depart earlier. In all cases, an employer's 
obligation to positively recruit continues until the actual date of 
departure.
    If the workers do not depart by the date of need, the employer must 
notify the SESA. Such notice shall be in writing, or orally, confirmed 
in writing, and must be made as soon as the employer knows that the 
workers will not depart by the first date of need, but in no event 
later than the date of need. At the same time the employer shall notify 
the SESA of the workers' expected departure date, if known. No 
additional notification will be necessary unless the employer either 
did not inform the local office of the expected departure date or the 
workers in fact did not depart by the expected date.
    This modification should address the concerns of employers that 
workers more commonly depart three days before the date of need, while 
allowing flexibility if they do not depart on exactly that day or if 
employers wish to advise of an earlier departure date. In addition, 
this modification should address the concern expressed by worker 
advocates groups that on occasion workers depart long after the stated 
date of need, as well as the concern of States regarding their need to 
know the date of departure.
5. Transfer of Adjudication of Visa Petitions
    Worker advocates indicated that there should be no transfer of 
adjudication of H-2A visa petitions from INS to DOL, absent a 
comprehensive approach to improving administration of the program.
    AILA and two attorneys opposed the proposal to transfer the 
adjudication of visa petitions to the Department. They cited the lack 
of DOL's experience in adjudicating visa petitions, that training DOL 
personnel in visa petitioning issues and procedures would be 
duplicative of the training INS adjudicators already receive on these 
issues, that DOL does not have the resources or personnel to adjudicate 
visa petitions, and that they believe it is doubtful that DOL could be 
any more efficient than INS in processing H-2A visa petitions--in fact, 
because of the lack of personnel familiar with the issues, as well as 
the budgetary problems experienced by ETA in immigration-related 
processing, they contend it is likely to be worse.
    Further, AILA and one attorney pointed out that it is impossible to 
know how delegation will work without seeing specifics of a rule 
implementing the proposed delegation. The AILA suggested that, if the 
proposed transfer of adjudication of visa petitions to DOL goes 
forward, it should be published in the Federal Register for comment.
    The NCAE expressed ``grave'' concerns about any interim procedures 
that might be established to process H-2A visa petitions. It noted the 
interim procedures were not described in sufficient detail to permit an 
analysis of whether they, in fact, will be more streamlined and save 
time, or whether they might have the opposite effect. It also opined 
that the bottleneck in the current system is not the INS but the DOL. 
The only way to save time and increase the probability of timely 
arrival of workers is if the employer is permitted to include a 
completed visa petition in the same submission as the labor 
certification application, and if the issuance of the labor 
certification and approval of the visa petition are done in one action.
    The NCAE concluded its comments by stating it strongly supported 
efforts to streamline the H-2A paperwork process. Combining the 
temporary labor certification application and visa petition into a 
single document, which is acted upon at the time of certification and 
immediately transmitted to the consulate or port of entry, could result 
in a significant improvement. Before undertaking this change, however, 
DOL should propose the precise regulations and procedures under which 
it intends to operate, and, at the same time, the INS should propose 
its regulations so both proposals can be evaluated together. Until this 
can be done, NCAE stated that it strongly objects to the proposed 
change and recommended that

[[Page 34965]]

the proposal to transfer adjudication of visa petitions be withdrawn 
from the rulemaking effort at this time.
    The NEAC and the AFBF also expressed concerns similar to the NCAE 
regarding the transfer of the adjudication of the visa petition 
function to DOL; only the FFVA approved of this proposal.
    Three State agencies supported transferring adjudication of H-2A 
visa petitions to DOL from the INS as it would result in reducing the 
time needed for employers to obtain foreign workers. Four States 
indicated that visa petitioning authority should not be transferred to 
DOL, unless additional funding is made available to the regional 
offices to adjudicate the visa petitions. The Ohio State agency 
``guardedly'' agreed with the change based on a concern that work may 
be delegated to the States which are already underfunded to complete 
existing duties.
    The Department believes that transferring the visa adjudication 
function to the Department would save substantial government resources 
and would eliminate one administrative step employers would have to 
complete under the program. Reducing the number of steps and paperwork 
involved in the process of obtaining H-2A workers--from the filing of 
an application with the Department of Labor to the issuance of a visa 
by the Department of State--should reduce both the paperwork burden and 
the number of instances that foreign workers do not arrive by the first 
date of the employer's need. The Department anticipates that the 
streamlined process would involve the development of a single 
consolidated labor certification application and visa petition form 
that will eliminate otherwise redundant information and support both 
labor certification and visa petitioning requirements. This would 
eliminate the necessity of employers filing visa petitions with INS for 
H-2A workers who are outside of the United States. The Department is 
committed to completing the necessary rulemaking and associated 
procedural changes as soon as possible, if INS delegates to DOL the 
authority to adjudicate H-2A visa petitions. INS has begun rulemaking 
to implement the transfer and the comment period on its proposed rule 
concluded on February 5, 1999.

Executive Order 12866

    The Department has treated this rule as a ``significant regulatory 
action'' within the meaning of Executive Order 12866 because of the 
great interest in the H-2A program and the legal and policy issues 
raised by the rulemaking. However, this rule is not an ``economically 
significant regulatory action'' which requires an economic analysis 
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

    When the proposed rule was published, the Department 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 would not have a significant impact on a small 
number of entities. The Chief Counsel did not submit a comment.

Paperwork Reduction Act

    Section 655.106(e)(1), pertaining to departure-date notification, 
contains information collection recordkeeping requirements. As required 
by the Paperwork Reduction Act of 1995, the U.S. Department of Labor 
has submitted a copy of these sections to OMB for its review. (44 
U.S.C. 3504(h)).
    The public reporting burden for information collection requirements 
contained in these regulations is estimated to average as follows:
    15 minutes per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Comments from the public and substantive changes are discussed in 
the preamble section dealing with this regulatory provision.
    As discussed in the preamble, the Department anticipates further 
rulemaking to transfer the adjudication of H-2A visa petitions from the 
INS to DOL. Although this requirement would create a new collection of 
information requirement for DOL, we expect a net reduction in 
requirements for employers. This rulemaking will be subject to review 
by the Office of Management and Budget under the Paperwork Reduction 
Act of 1995.

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, Forest and forest products, Guam, 
Health professions, Immigration, Labor, Longshore work, Migrant labor, 
Nurse, Penalties, Registered nurse, Reporting and record keeping 
requirements, Specialty occupation, Students, Wages.

Final Rule

    Accordingly, parts 654 and 655 of chapter V of title 20, Code of 
Federal Regulations, are 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 ``20 calendar days'' is added in lieu thereof.
    b. In paragraph (a)(3) the phrase ``30 calendar days'' is removed 
and the phrase ``20 calendar days'' is added in lieu thereof.

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

    1. 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).
    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.

[[Page 34966]]

    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]

    2. 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]

    3. 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 each place 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 term ``60-calendar-day'' is removed in 
the two places it appears and the term ``45-calendar-day'' is added in 
each place in lieu thereof.


Sec. 655.106  [Amended]

    4. Section 655.106 is amended by revising paragraph (e) to read as 
follows:


Sec. 655.106  Referral of U.S. workers; determinations based on U.S. 
worker availability and adverse effect; activities after receipt of the 
temporary alien agricultural labor certification.

* * * * *
    (e) Approvals of applications--(1) Continued recruitment of U.S. 
workers. After a temporary agricultural labor certification has been 
granted, the employer shall continue its efforts to recruit U.S. 
workers until the actual date the H-2A workers depart for the 
employer's place of employment.
    (i) Unless the local employment office is informed in writing of a 
different date, the local office shall deem the third day immediately 
preceding the employer's first date of need to be the date the H-2A 
workers depart for the employer's place of employment. The employer may 
notify the local office in writing if the workers depart prior to that 
date.
    (ii)(A) If the H-2A workers do not depart for the place of 
employment on or before the first date of need (or by the stated date 
of departure, if the local office has been advised of a different 
date), the employer shall notify the local employment office in writing 
(or orally, confirmed in writing) as soon as the employer knows that 
the workers will not depart by the first date of need, and in no event 
later than such date of need. At the same time, the employer shall 
notify the local office of the workers' expected departure date, if 
known. No further notice is necessary if the workers depart by the 
stated date of departure.
    (B) If the employer did not notify the local office of the expected 
departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or 
if the H-2A workers do not leave for the place of employment on or 
before the stated date of departure, the employer shall notify the 
local employment office in writing (or orally, confirmed in writing) as 
soon as the employer becomes aware of the expected departure date, or 
that the workers did not depart by the stated date and the new expected 
departure date, as appropriate.
    (2) Requirement for Active Job Order. The employer shall keep an 
active job order on file until the ``50-percent rule'' assurance at 
Sec. 655.103(e) of this part is met, except as provided by paragraph 
(f) of this section.
    (3) Referrals by ES System. The ES system shall continue to refer 
to the employer U.S. workers who apply as long as there is an active 
job order on file.
* * * * *
    Signed at Washington, DC, this 22nd day of June, 1999.
Raymond L. Bramucci,
Assistant Secretary for Employment and Training.
[FR Doc. 99-16444 Filed 6-28-99; 8:45 am]
BILLING CODE 4510-30-U