[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Notices]
[Pages 1787-1789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00393]


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DEPARTMENT OF LABOR

Employment and Training Administration


Agency Information Collection Activities for H-2B Foreign Labor 
Certification Program; Comment Request

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Department of Labor's (DOL) Employment and Training 
Administration (ETA) is soliciting comments concerning a proposed 
revision to the information collection request (ICR) titled ``H-2B 
Foreign Labor Certification Program,'' and related information 
collection and retention requirements (OMB Control Number 1205-0509), 
which covers Forms ETA-9142B, ETA-9142B, Appendices A, B, C, and D, 
ETA-9142B, Final Determination, ETA-9165, ETA-9155, H-2B Seafood 
Industry Attestation, and related form instructions. This action seeks 
to revise the Form ETA-9142B and its instructions, revise the Form ETA-
9142B Appendix D, and make a change to the Form ETA-9155 and its 
instructions to conform to changes made to the Form ETA-9142B. This 
action seeks to extend without change to the remaining forms in the 
information collection. This comment request is part of continuing 
Departmental efforts to reduce paperwork and respondent burden in 
accordance with the Paperwork Reduction Act of 1995 (PRA).

DATES: Consideration will be given to all written comments received by 
March 14, 2022.

ADDRESSES: A copy of this ICR with applicable supporting documentation, 
including a description of the likely respondents, proposed frequency 
of response, and estimated total burden, may be obtained for free by 
contacting Brian Pasternak, Administrator, Office of Foreign Labor 
Certification, by telephone at 202-693-8200 (this is not a toll-free 
number), TTY 1-877-889-5627 (this is not a toll-free number), or by 
email at [email protected].
    Submit written comments about, or requests for a copy of, this ICR 
by email at [email protected].

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, by telephone at 202-693-8200 (this is 
not a toll-free number) or by email at [email protected].
    Authority: 44 U.S.C. 3506(c)(2)(A).

SUPPLEMENTARY INFORMATION: 
    DOL, in its continuing efforts to reduce paperwork and respondent 
burden, conducts a pre-clearance consultation program to provide the 
general public and Federal agencies an opportunity to comment on 
proposed and/or continuing collections of information before submitting 
them to the Office of Management and Budget (OMB) for final approval. 
This program ensures the public provides all necessary data in the 
desired format, the reporting burden (time and financial resources) is 
minimized, collection instruments are clearly understood, and the 
impact of collection requirements can be properly assessed.
    This information collection is required by Sections 
101(a)(15)(H)(ii)(b) and 214(c) of the Immigration and Nationality Act 
(INA) (8 U.S.C. 1011(a)(15)(H)(ii)(b) and 1184(c)), as well as 8 CFR 
214.2(h)(6), 20 CFR 655, Subpart A, and 29 CFR 503. The H-2B program 
enables employers to bring nonimmigrant foreign workers to the United 
States to perform non-agricultural work of a temporary nature. See 8 
U.S.C. 1101(a)(15)(H)(ii)(b). The Department of Homeland Security (DHS) 
consults with DOL with respect to the H-2B program, and DOL provides 
advice on whether U.S. workers capable of performing the temporary 
services or labor are available. See 8 U.S.C. 1184(c)(1), INA Section 
214(c)(1) (providing for DHS to consult with ``appropriate agencies of 
the Government''). Under DHS regulations, an H-2B petition for 
temporary employment must be accompanied by an approved temporary labor 
certification from DOL, which serves as DOL's consultative advice to 
DHS regarding whether a qualified U.S. worker is available to fill the 
petitioning H-2B employer's job opportunity and whether a foreign 
worker's employment in the job opportunity will adversely affect the 
wages or working conditions of similarly employed U.S. workers. See 8 
CFR 214.2(h)(6)(iii)(A), (iv)(A). DHS and DOL jointly promulgated 
regulations establishing the processes by which an employer must obtain 
a prevailing wage and temporary labor certification from DOL, and the 
rights and obligations of workers and employers. See 20 CFR 655, 
subpart A; 29 CFR part 503; 8 CFR 214.2(h)(6)(iii)-(iv). The 
information contained in the Form ETA-9142B, H-2B Application for 
Temporary Employment Certification, and corresponding appendices serve 
as the basis for the Secretary's determination that qualified U.S. 
workers are not available to perform the services or labor needed by 
the employer and that the wages and working conditions of similarly 
employed U.S. workers will not be adversely affected by the employment 
of H-2B workers.
    ETA is seeking comments on proposed revisions to the Form ETA-
9142B, H-2B Application for Temporary Employment Certification, its 
instructions, and Form ETA-9142B, Appendix D. The proposed revisions to 
the Form ETA-9142B seek to clarify collection of cap-subject and cap-
exempt data which DOL uses to inform its advice to DHS regarding the H-
2B numerical cap and seek to streamline the collection of overtime wage 
information for all worksites for the application. The proposed 
revisions to the Form ETA-9142B, Appendix D modify the appendix to 
collect joint employer information, as applicable, in addition to job 
contractor information.
    This ICR includes the collection of information related to the use 
of employer-provided surveys for determining prevailing wages and the

[[Page 1788]]

temporary labor certification process in the H-2B program. The Form 
ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B 
Prevailing Wage Determination Request Based on a Non-OES Survey, is 
used to collect information that permits ETA to determine whether an 
employer-provided survey can be used to establish a prevailing wage in 
the occupational classification in lieu of a prevailing wage determined 
using the Bureau of Labor Statistics Occupational Employment Wage 
Statistics (OEWS) program. ETA seeks approval of extension of this form 
and its instructions without change.
    Additionally, ETA is seeking comments on the Form ETA-9155, H-2B 
Registration, which allows ETA to determine whether the nature and 
duration of the employer's need for H-2B workers is temporary. Where 
ETA has not operationalized the registration process through a separate 
notice in the Federal Register, H-2B applications are exempt from the 
registration requirements under 20 CFR 655.11, and the adjudication of 
the employer's temporary need will continue to occur based on 
information collected on the Form ETA-9142B. A change was made to the 
Form ETA-9155 to conform the registration form to the proposed changes 
to the Form ETA-9142B.
    ETA is also seeking comments on its extension of Appendices A, B, 
and C to the Form ETA-9142B, and revision to Appendix D of the Form 
ETA-9142B. Appendix A requires an employer to use a standard format to 
disclose additional place(s) of employment and, if applicable, multiple 
wage offers for the job opportunity. Employers use Appendix B of the 
Form ETA-9142B to attest that they will comply with all of the terms, 
conditions, and obligations of the H-2B program. Appendix C requires an 
employer to use a standard format to disclose the identity and location 
of all foreign labor recruiters. In order to recruit prospective 
foreign workers for the job opportunities offered by the employer under 
the Form ETA-9142B, the employer, and its attorney or agent (as 
applicable), must provide the identity and location of all persons and 
entities hired by or working for the recruiter or agent and any of the 
agent(s) or employee(s) of those person and entities. See 20 CFR 
655.9(b). Collection of this information in a standard format will also 
permit ETA to more effectively comply with 20 CFR 655.9(c), which 
requires the maintenance of a publicly available list of foreign labor 
recruiters and the location(s) in which they are operating. The 
proposed revisions to Appendix D would require joint employers, whether 
filing as job contractors or not, to disclose the name and contact 
information of the employer-client or other joint employer.
    The ICR contains a one-page Form ETA-9142B, Final Determination: H-
2B Temporary Labor Certification Approval, which is issued 
electronically to employers granted temporary labor certification by 
DOL. In circumstances where the employer or, if applicable, its 
authorized attorney or agent, is not able to receive the temporary 
labor certification documents electronically, ETA sends the 
certification documents printed on standard paper in a manner that 
ensures overnight delivery. DOL seeks to extend the Final 
Determination.
    Finally, ETA is requesting a three-year extension, without change, 
of the Form ETA-9142B, Seafood Industry Attestation. Employers in the 
seafood industry who wish to stagger the entry of H-2B workers into the 
United States between 90 and 120 days after the certified start date of 
need will need to complete the Form ETA-9142B, Seafood Industry 
Attestation, and provide a copy to each H-2B worker to present, upon 
request by DHS, when seeking entry into the United States.
    This information collection is subject to the PRA. A Federal agency 
generally cannot conduct or sponsor a collection of information, and 
the public is generally not required to respond to an information 
collection, unless it is approved by the OMB under the PRA and displays 
a currently valid OMB Control Number. In addition, notwithstanding any 
other provisions of law, no person shall generally be subject to 
penalty for failing to comply with a collection of information that 
does not display a valid Control Number. See 5 CFR 1320.5(a) and 
1320.6. The DOL obtains OMB approval for this information collection 
under Control Number 1205-0509. The DOL notes that existing information 
collection requirements submitted to the OMB receive a month-to-month 
extension while they undergo review. New requirements would only take 
effect upon OMB approval.
    This information collection is subject to the PRA. A Federal agency 
generally cannot conduct or sponsor a collection of information, and 
the public is generally not required to respond to an information 
collection unless OMB, under the PRA, approves it and the collection 
tool displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6.
    Interested parties are encouraged to provide comments to the 
contact shown in the ADDRESSES section. Comments must be written to 
receive consideration, and they will be summarized and included in the 
request for OMB approval of the final ICR. In order to help ensure 
appropriate consideration, comments should mention OMB control number 
1205-0509.
    Submitted comments will also be a matter of public record for this 
ICR and posted on the internet, without redaction. DOL encourages 
commenters not to include personally identifiable information, 
confidential business data, or other sensitive statements/information 
in any comments.
    DOL is particularly interested in comments that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize 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 submission of responses).
    Agency: DOL-ETA.
    Action: Revision.
    Title of Collection: H-2B Foreign Labor Certification Program.
    OMB Control Number: 1205-0509.
    Affected Public: Private Sector.
    Form(s): ETA-9142B, ETA-9142B General Instructions, ETA-9142B, 
Appendices A, B, C, and D, ETA-9165, ETA-9165, Instructions, Seafood 
Industry Attestation, ETA-9155, ETA-9155, Instructions.
    Total Estimated Number of Annual Respondents: 88,193.
    Frequency: On occasion.
    Total Estimated Annual Responses: 299,551.
    Average Time per Response: 3 hours and 45 minutes.
    Total Estimated Annual Time Burden: 86,585.91 hours.
    Total Estimated Annual Other Costs Burden: $998,310.

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    Authority: 44 U.S.C. 3507(a)(1)(D).

Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2022-00393 Filed 1-11-22; 8:45 am]
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