[Federal Register Volume 72, Number 127 (Tuesday, July 3, 2007)]
[Notices]
[Pages 36504-36507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12766]


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DEPARTMENT OF LABOR

Employment and Training Administration


Special Guidelines for Processing H-2B Temporary Labor 
Certification in Tree Planting and Related Reforestation Occupations

AGENCY: Employment & Training Administration, Department Of Labor.

ACTION: Notice.

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SUMMARY: This notice updates procedures for State Workforce Agencies 
and ETA National Processing Centers to process H-2B labor certification 
applications in tree planting and related reforestation occupations.

SUPPLEMENTARY INFORMATION: 

I. References

    Immigration and Nationality Act (INA) section 101(a)(15)(H)(ii)(b); 
20 Code of Federal Regulations (CFR) Parts 652 and 655; 8 CFR 
214.2(h)(6); Federal Register Notice, Vol. 70, No. 137, pps. 41430-
41438; Migrant and Seasonal Agricultural Worker Protection Act, 29 
U.S.C. 1801, et seq.; 29 CFR part 500; and Training and Employment 
Guidance Letter (TEGL) 21-06, Procedures for H-2B Temporary Labor 
Certification in Non-Agricultural Occupations.

II. Background

    The H-2B nonimmigrant program permits employers to hire foreign 
workers to come to the United States (U.S.) and perform temporary non-
agricultural services or labor on a one-time, seasonal, peakload, or 
intermittent basis. The H-2B visa classification requires the Secretary 
of Homeland Security to consult with appropriate agencies before 
admitting H-2B nonimmigrants. Homeland Security regulations require the 
intending employer first to apply for a temporary labor certification 
from the Secretary of Labor advising the Department of Homeland 
Security's United States Citizenship and Immigration Services (USCIS) 
as to whether qualified U.S. workers are available and whether the 
alien's employment will adversely affect the wages and working 
conditions of similarly employed U.S. workers, or a notice that such 
certification cannot be made, prior to filing an H-2B visa petition 
with USCIS.
    However, in December 2004, the Department opened two new National 
Processing Centers (NPCs), one each located in Atlanta and Chicago. 
These Centers have been designated to process

[[Page 36505]]

applications to employ foreign workers for temporary positions under 
the H-2B program. The Department published a notice in the Federal 
Register (Vol. 70, No. 137, pages 41430-41438) on July 19, 2005, 
clarifying that employers must file two (2) originals of the ETA Form 
750, Part A, directly with the State Workforce Agency (SWA) serving the 
area of intended employment and, once reviewed, the SWA will send the 
complete application to the appropriate NPC. That process does not 
apply to employer applications for emergency boilermakers, 
entertainers, logging, and professional team sports, which were given 
special filing instructions in the notice. The guidelines outlined in 
this memorandum work in conjunction with this centralized filing 
process, and ensure greater consistency in the processing of these H-2B 
applications through the Centers.

III. Procedures for H-2B Applications in Tree Planting and Related 
Reforestation Occupations

    Due to a number of complexities, special guidelines for processing 
H-2B applications for tree planting and related reforestation 
occupations are required. For example, although the occupations of Tree 
Planter, Forest Worker and Laborer, and Brush Clearer have many 
similarities to agriculture, they are not so classified under either 
the Internal Revenue Code or the Fair Labor Standards Act (FLSA). 
Therefore, under the Immigration and Nationality Act (INA) they are not 
authorized for the H-2A visa and must be processed as H-2B occupations. 
However, two court decisions (Bresgal v. Brock, 833 F. 2d 763 (9th Cir. 
1987), and Bracamantes v. Weyerhauser Co., 840 F.2d 271 (5th Cir. 
1988)) directed the Department to cover migrant and seasonal forestry 
workers under the Migrant and Seasonal Agricultural Worker Protection 
Act (MSPA). In addition, because forestry occupations may have elements 
of both agricultural and non-agricultural occupations or involve multi-
state itineraries, these applications cannot be solely processed 
according to the general procedures for H-2B in TEGL 21-06.
    Attachment A outlines special guidelines for processing labor 
certification applications submitted by employers for occupations 
involved in tree planting and related reforestation activities under 
the H-2B program, subject to these special provisions. Unless otherwise 
specified in Attachment A, applications submitted for these occupations 
must comply with the requirements for H-2B applications contained in 
TEGL 21-06.

IV. Effective Date

    This guidance applies to all temporary labor certification 
applications for occupations involved in tree planting and related 
reforestation activities received by the SWAs on or after July 1, 2007.

V. Action Required

    NPC Directors and SWA Administrators are requested to provide 
Center and SWA staff involved in the processing of H-2B applications 
with a copy of these procedures.

VI. Inquiries

    Questions from State Workforce Agency staff should be directed to 
the appropriate NPC Certifying Officer.

    Signed at Washington, DC, this 27 day of June 2007.
Emily Stover DeRocco,
Assistant Secretary, Employment & Training Administration, Labor.

Attachment A: Special Guidelines for Occupations Involving Tree 
Planting and Related Reforestation Activities Under the H-2B Program

    This section outlines special guidelines for employer applications 
involving tree planting and related reforestation occupations under the 
H-2B program. Unless otherwise specified in this attachment, 
applications submitted for these occupations must comply with the 
requirements for H-2B applications contained in TEGL 21-06.

I. Application of Temporary Need Standards Involving Tree Planting and 
Related Reforestation Occupations

    A. The employer's need for temporary non-agricultural services or 
labor in tree planting and related reforestation occupations must be 
justified to the NPC Certifying Officer under one of the following 
standards: (1) A one-time occurrence, (2) a seasonal need, (3) a 
peakload need, or (4) an intermittent need.
    B. Tree planting and reforestation are predominantly seasonal 
activities determined by climatic conditions occurring once, or in some 
locations, twice a year. Although some applications for relatively 
short itineraries can be justified under the peakload standard, the 
employer's need for the services or labor to be performed may be more 
appropriately justified under the seasonal standard.
    Employers will typically bid on a sequence of work contracts 
linking each seasonal activity into an itinerary covering, in some 
instances, a major portion of the year. Since tree planting and related 
reforestation activities are covered by the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA), the MSPA definition of ``on 
a seasonal or other temporary basis'' cited at 29 CFR 500.20 provides 
guidance for determining whether the job offer is for temporary 
employment. Under MSPA, ``seasonal'' basis means the following:
    ``Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, may 
not be continuous or carried on throughout the year. A worker, who 
moves from one seasonal activity to another, while employed in 
agriculture or performing agricultural labor, is employed on a seasonal 
basis even though he may continue to be employed during a major portion 
of the year.''
    The term ``other temporary basis'' refers to employment where a 
worker is employed for a limited time only or where performance is 
contemplated for a particular piece of work, usually of short duration. 
Generally, employment which is contemplated to continue indefinitely is 
not temporary.
    C. Whether the work to be performed, as described in a tree 
planting application, is temporary or permanent in nature will be 
determined by examining the employer's need for such workers for the 
duration of the itinerary. As with every request for H-2B labor 
certification, an employer's seasonal need of longer than 10 months, 
which is of a recurring nature, must be supported by compelling 
evidence to the NPC Certifying Officer that the employer's need for 
such work and the job opportunity itself are not ongoing or otherwise 
permanent. A peakload need longer than 10 months will not be certified.

II. Special Application Filing Procedures

    A. An employer requesting temporary labor certification who meets 
the MSPA definition of a Farm Labor Contractor (FLC) (see item II(C)(1) 
below) must register as a FLC with the Department of Labor's Employment 
Standards Administration (ESA) before filing a H-2B application for 
workers who will be performing predominantly manual work, which 
includes, but is not limited to, tree planting, brush clearing, and 
precommercial tree thinning. The employer must also provide proof of 
current registration, including proof of the registration of any Farm 
Labor Contractor Employees (FLCE--see item II(C)(1) below) at the time 
of filing.
    The FLC and FLCE certificate(s) of registration must be valid for 
the entire

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period of need. If the expiration date of the FLC or FLCE 
certificate(s) falls at any point during the period of need, the 
employer must submit a signed written assurance that an application for 
renewing FLC and FLCE certificate(s) will be submitted timely to ESA in 
order to attempt to ensure that the certificate(s) are valid during the 
entire period of need.
    B. In situations where the employer is not properly registered as a 
FLC, the SWA must promptly return the application with a notification 
that the SWA cannot accept a job opportunity for a reforestation 
related occupation when the employer is not registered as a FLC.
C. Important FLC Terms and Information
    1. A Farm Labor Contractor means any person, other than an 
agricultural employer, an agricultural association, or an employee of 
an agricultural employer or agricultural association, who, for any 
money or other valuable consideration paid or promised to be paid, 
performs any farm labor contracting activity. Farm labor contracting 
activities include recruiting, soliciting, hiring, employing, 
furnishing, and/or transporting workers. ``Agricultural employer'' 
includes any person who owns or operates a farm, ranch, processing 
establishment, cannery, gin, packing shed, or nursery, or who produces 
or conditions seed. ``Agricultural association'' means any nonprofit or 
cooperative association of farmers, growers, or ranchers incorporated 
or qualified under applicable State law. A farm labor contractor 
employee is a person who performs a farm labor contracting activity 
solely on behalf of a farm labor contractor holding a valid Certificate 
of Registration and who is not an independent farm labor contractor who 
would be required to register under the Act in his own right.
    2. For information on how to apply as a FLC or FLCE or to obtain a 
listing of persons and companies currently registered, please contact 
the nearest office of the Employment Standards Administration (ESA), 
Wage and Hour Division. A current listing of the ESA District Offices 
can be obtained at the following Web site: http://www.dol.gov/esa/contacts/whd/america2.htm.
    3. For information on individuals or companies who are not eligible 
to register as a FLC and may not engage in any activity as a FLC or as 
a Farm Labor Contractor Employee (FLCE) as defined by the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA), please visit the 
ESA Web site at the following address: http://www.dol.gov/esa/regs/statutes/whd/mspa_debar.htm.
    4. Each facility or real property used to house and each vehicle 
used to transport workers must be described in the application. Housing 
and transport vehicles for MSPA-covered workers must be authorized for 
use on the FLC's certificate of registration prior to use. Each driver 
of a vehicle transporting MSPA-covered workers must have an FLC or FLCE 
(Farm Labor Contractor Employee) certificate of registration that 
specifically authorizes driving (see II(A) above concerning expiration 
dates of FLC or FLCE certificates).
    5. Prior to granting approval on a temporary labor certification 
application, the employer must submit a signed, written assurance that 
all registrations, permits, and/or other required licenses for 
vehicles, housing, or drivers will remain valid during the entire 
period of use.
    D. Employers have the option of filing a single master application 
covering multiple itineraries or separate applications for each 
itinerary where the tree planting or related reforestation work will 
begin. Alaska, Hawaii, and the U.S. territories may not be included in 
multi-state itineraries.
    1. Employers are permitted to develop and file an itinerary under 
the following conditions:
    a. If the itinerary includes worksite locations covering multiple 
SWAs, the employer may submit a single application to the SWA where the 
itinerant employment will begin. In those instances where the start 
dates for each worksite location in the itinerary are exactly the same, 
the employer may submit a single application to any one of the SWAs 
covered by the itinerary. If the employment crosses NPC jurisdictions 
as well, the NPC that has jurisdiction over the SWA where the 
employment will begin shall process the application.
    b. In situations where the worksite locations cover multiple SWAs, 
the states listed in the itinerary must be contiguous or located within 
close geographic proximity to one another. Itineraries where the 
worksite locations cover multiple states over widely separated 
geographic areas (e.g., Texas, Arkansas, and Idaho, or Georgia, 
Alabama, and Maine) are not normal to reforestation occupations and 
will not be permitted. Such itineraries make it extremely difficult for 
the Department to satisfy its statutory mandate for determining the 
availability of domestic workers as a predicate to temporary labor 
certification. An employer who seeks H-2B workers for job opportunities 
in one or more remote ``downstream'' states must file separate 
applications and job orders for those locations.
    c. The employer must submit a signed and dated itinerary to the SWA 
with its application and include the following information:
     The names, physical addresses, telephone numbers, and 
wages offered in each worksite location. If no physical address and/or 
telephone number is available, the employer must provide as much 
geographic detail as possible (e.g., county/city/township/state 
corresponding to the itinerary time-frame) regarding the location of 
the crews performing the work;
     The total number of crews' and total number of workers in 
each crew; and
     The estimated start and end dates of work in each worksite 
location. Since the work of tree planting and related reforestation 
occupations are dependent on climatic conditions, the precise ending 
dates and subsequent contracts may not be defined at the time of 
placing a job order.
    2. Employers are permitted to file a single master application for 
multiple itineraries under the following conditions:
    a. When examining the starting locations of each itinerary, the 
master application must be filed with the SWA where the largest number 
of job opportunities is being requested on the itineraries included in 
the master application. If the employment crosses NPC jurisdictions as 
well, the NPC that has jurisdiction over the SWA where the employment 
will begin shall process the application.
    b. The application must consist only of crews working for a single 
employer.
    c. The total range of the crews start dates cannot be more than 14 
calendar days apart.

III. Special SWA Processing Instructions

    A. SWAs should accept agent designations on the ETA Form 750, which 
is similar to filing procedures under the H-2A program. The employer's 
application to the SWA must include a copy of the ``Agent Agreement'' 
or similar document to substantiate that specific authority has been 
granted to the agent. (Note: As under the H-2A program, an ``agent'' 
who meets the definition of an FLC under MSPA (see II(A) and II(C)(1) 
above) must be registered as an FLC with ESA prior to engaging in any 
farm labor contracting activity. ``Recruiting'' and ``soliciting'' are 
farm labor contracting activities. If the employer is represented by an 
attorney, the attorney

[[Page 36507]]

must file a Notice of Appearance (G-28) with the application package.
    B. SWAs must review all itineraries to ensure each is normal to 
tree planting and related reforestation occupations (i.e., it is 
prevailing practice to start in a particular area; what type of 
itineraries are normal for contracts and the H-2B program), and contact 
the appropriate NPC Certifying Officer when they receive an itinerary 
that may not reflect prevailing practice.
    C. Employers can require tree planter workers to perform minor 
related reforestation job activities such as tree seedling pulling, 
thinning, seed cone gathering, and pine straw gathering. These 
activities must be stipulated in the application and job order to 
apprise workers of the full scope of possible job duties.
    D. A job opportunity containing a wage offer below the prevailing 
wage will not be accepted. In accordance with TEGL 21-06, the SWA shall 
determine the prevailing wage, guided by the regulations at 20 CFR 
656.40 and in accordance with Employment and Training Administration, 
Prevailing Wage Determination Policy Guidance, Non-Agricultural 
Immigration Programs, Revised May 9, 2005.
    E. A job opportunity specifying that workers are to be paid on a 
piece rate basis must also guarantee the required hourly wage rate per 
pay period. The required hourly wage rate will be the prevailing wage 
rate determined by the SWA. If the piece rate does not result in 
average hourly piece rate earnings during the pay period at least equal 
to the amount the worker would have earned had the worker been paid at 
the hourly rate, the worker's pay must be supplemented to increase the 
earnings to the equivalent hourly level. In situations where workers 
will be paid on a piece rate basis, the job offer must identify the 
piece rate, the length of the pay period and the ending day of the week 
of the payroll period and date, and the minimum productivity required 
for job retention.
    F. When commencing recruitment, the SWA shall prepare a job order, 
using the information on the application, and place it into the SWA job 
bank system for 10 calendar days. During this period, the SWA should 
refer qualified applicants who contact the local offices and those in 
its active job files. If the application indicates that work will be 
performed in other states in the itinerary, the SWA shall clear the job 
order for 10 calendar days with the appropriate State(s) where the work 
is to be performed and accept for referral to the employer qualified 
applicants from the State(s).
    G. During the 10-day posting of the job order, the employer shall 
advertise the job opportunity in a newspaper of general circulation for 
3 consecutive calendar days or in a readily available professional, 
trade or ethnic publication, whichever the SWA determines is most 
appropriate for the occupation and most likely to bring responses from 
U.S. workers. If the job opportunity is located in a rural area that 
does not have a newspaper with a daily edition, the employer shall use 
a daily edition with the widest circulation in the nearest urban area 
or such other publication as determined by the SWA.
    H. The SWA intrastate and interstate job postings and employer 
advertisements must include the following information:
    1. Identify the employer's name and direct applicants to report or 
send resumes to the SWA for referral to the employer.
    2. Address of the SWA local office and job order number.
    3. Description of the job opportunity with particularity, including 
a summary of the itinerary, duties to be performed, work hours and 
days, and, if applicable, benefits (e.g., housing and free 
transportation) and incentive wages (e.g., piece rates).
    4. Starting locations and wages at each crew's starting location.
    5. Notice if employees must purchase or rent tools.
    6. Offer wages, terms, and conditions of employment which are not 
less favorable than those offered to the alien and are prevailing for 
the occupation, activity, and industry.
    7. State the total number of job openings the employer intends to 
fill.
    8. Notice that the job opportunity is temporary.
    I. SWAs should examine all deductions (including housing, 
transportation, meals, tools, safety equipment, etc.) to determine if 
they are allowable in accordance with the Fair Labor Standards Act. To 
obtain more information on the propriety of the deduction(s), SWAs 
should contact the appropriate office of the ESA Wage and Hour 
Division. Consultation with the Wage and Hour Division is extremely 
important for those deductions which are for tools of the trade and 
other materials and services incidental to carrying on the employer's 
business. SWAs should contact the appropriate NPC if deductions are not 
in accordance with the prevailing practice for the area. SWA and ETA 
decisions regarding allowable deductions are not binding on the ESA 
Wage and Hour Division.

IV. Special Instructions for Completing the ETA Form 750, Part A

    A. To ensure consistency in completing applications, employers and 
SWAs should use the following annotations:
    a. Item 7--Employers should write ``See Attached 
Itinerary'' and follow the instructions for itineraries under section 
II.D.
    b. Item 10b--Employer should note the maximum number of 
hours required for overtime.
    c. Item 12b--Employer should note ``rate of pay'' which 
shall be time and a half.
    d. Item 13--Production standards must be disclosed, and 
the employer must provide documentation to the SWA substantiating any 
standard higher than the prevailing practice in the industry. Most 
reforestation employers have been in the reforestation business for a 
sufficient number of years so as to have records/documents on file. 
Such records/documents can include, but are not limited to, past 
production records, improved equipment, statement of how terrain will 
impact production rate. SWAs should use their best judgment, based on 
prevailing practice, to accept or deny the employer's justification.
    e. Item 15--Specific requirements such as requiring 
employees to purchase tools or housing accommodations should be noted. 
In accordance with the MSPA, transportation, housing, and any other 
employee benefits to be provided and any costs to be charged for each 
of them must be disclosed to the workers. Further, if there is a 
relationship between the employer and the store to which employees are 
directed to purchase or rent tools, it must be disclosed to the 
employee. This information should also be stated in the job order.
    B. In accordance with procedures established under TEGL 21-06, the 
SWA shall advise the employer to correct any deficiencies in the 
application before commencing recruitment. SWAs are authorized to close 
cases in circumstances where the employer fails to address all 
deficiencies in the application (correction letter) or respond in a 
timely manner to a recruitment letter.

 [FR Doc. E7-12766 Filed 7-2-07; 8:45 am]
BILLING CODE 4510-FP-P