83 FR 55985 - Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States

DEPARTMENT OF LABOR
Employment and Training Administration

Federal Register Volume 83, Issue 218 (November 9, 2018)

Page Range		55985-55994
FR Document		2018-24497

The Department of Labor (the Department or DOL) is proposing regulatory revisions that would modernize the recruitment an employer seeking H-2A nonimmigrant agricultural workers must conduct when applying for a temporary labor certification. In particular, the Department is proposing to replace the print newspaper advertisements that its regulations currently require with electronic advertisements posted on the internet, which the Department believes will be a more effective and efficient means of disseminating information about job openings to U.S. workers. The Department is proposing to replace, rather than supplement, the newspaper requirements because it believes that exclusive electronic advertisements posted on a website appropriate for the workers likely to apply for the job opportunity in the area of intended employment would best ensure that U.S. workers learn of job opportunities.

Federal Register, Volume 83 Issue 218 (Friday, November 9, 2018)

[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Proposed Rules]
[Pages 55985-55994]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-24497]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[Docket No. ETA-2018-0002]
RIN 1205-AB90

Modernizing Recruitment Requirements for the Temporary Employment
of H-2A Foreign Workers in the United States

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Labor (the Department or DOL) is proposing
regulatory revisions that would

[[Page 55986]]

modernize the recruitment an employer seeking H-2A nonimmigrant
agricultural workers must conduct when applying for a temporary labor
certification. In particular, the Department is proposing to replace
the print newspaper advertisements that its regulations currently
require with electronic advertisements posted on the internet, which
the Department believes will be a more effective and efficient means of
disseminating information about job openings to U.S. workers. The
Department is proposing to replace, rather than supplement, the
newspaper requirements because it believes that exclusive electronic
advertisements posted on a website appropriate for the workers likely
to apply for the job opportunity in the area of intended employment
would best ensure that U.S. workers learn of job opportunities.

DATES: Comments must be submitted, in writing, on or before December
10, 2018.

ADDRESSES: You may send comments, identified by Docket No. ETA-2018-
0002 or Regulatory Information Number (RIN) 1205-AB90, by any of the
following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
website instructions for submitting comments (under ``Help'' > ``How to
use Regulations.gov'').
Mail and Hand Delivery/Courier: Submit written comments and any
additional material to Adele Gagliardi, Administrator, Office of Policy
Development and Research, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with ``RIN 1205-AB90.'' Please
submit your comments by only one method.
Please be advised that the Department will post all comments
received that relate to this notice of proposed rulemaking (NPRM) on
http://www.regulations.gov without making any change to the comments or
redacting any information. The http://www.regulations.gov website is
the Federal e-rulemaking portal, and all comments posted there are
available and accessible to the public. Therefore, the Department
recommends that commenters remove personal information (either about
themselves or others) such as Social Security Numbers, personal
addresses, telephone numbers, and email addresses included in their
comments, as such information may become easily available to the public
via the http://www.regulations.gov website. It is the responsibility of
the commenter to safeguard personal information.
Also, please note that, due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, the Department
encourages the public to submit comments on http://www.regulations.gov.
Docket: To read or download comments or other material in the
electronic docket, go to http://www.regulations.gov website (search
using RIN 1205-AB90 or Docket No. ETA-2018-0002). The Department also
will make all the comments it receives available for public inspection
by appointment during normal business hours at the above address. If
you need assistance to review the comments, the Department will provide
appropriate aids, such as readers or print magnifiers. The Department
will make copies of this proposed rule available, upon request, in
large print and electronic file on computer disk. To schedule an
appointment to review the comments and/or obtain the proposed rule in
an alternative format, contact the Office of Policy Development and
Research at (202) 693-3700 (this is not a toll-free number). You may
also contact Adele Gagliardi, Administrator, Office of Policy
Development and Research, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-5641, Washington, DC 20210.
Comments under the Paperwork Reduction Act (PRA): In addition to
filing comments with ETA, persons wishing to comment on the information
collection (IC) aspects of this rule may send comments to: Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA,
Office of Management and Budget, Room 10235, 725 17th Street NW,
Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free
number), email: OIRA_submission@omb.eop.gov. See Paperwork Reduction
Act section of this proposal for particular areas of interest.

FOR FURTHER INFORMATION CONTACT: William W. Thompson, II,
Administrator, Office of Foreign Labor Certification, Employment and
Training Administration, Department of Labor, Box #12-200, 200
Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350
(this is not a toll-free number). Individuals with hearing or speech
impairments may access the telephone numbers above via TTY by calling
the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/
TDD).

SUPPLEMENTARY INFORMATION:

I. Background

A. Legal Framework

The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes the H-2A
nonimmigrant visa classification for a worker ``having a residence in a
foreign country which he has no intention of abandoning who is coming
temporarily to the United States to perform agricultural labor or
services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ Among
other things, the INA requires the Secretary of Homeland Security to
consult with appropriate agencies of the Government--and in particular,
DOL--before approving a petition to employ H-2A nonimmigrant
agricultural workers. 8 U.S.C. 1184(c)(1). To that end, the Secretary
of Homeland Security may not approve a petition to employ H-2A workers
unless the petitioning employer has applied to the Secretary of Labor
(Secretary) for a certification that:
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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(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. 1188(a)(1); see also 20 CFR 655.100. The Secretary has
delegated his statutory responsibility to make this certification--
known as a ``temporary labor certification''--to the Assistant
Secretary for Employment and Training. Secretary's Order 06-2010
(October 20, 2010). And the Assistant Secretary has, in turn, delegated
the authority to the Office of Foreign Labor Certification (OFLC). 20
CFR 655.101.
The INA specifies a number of conditions under which the Secretary
cannot grant a temporary labor certification. 8 U.S.C. 1188(b). One
such condition is where ``[t]he Secretary determines that the employer
has not made positive recruitment efforts within a multi-state region
of traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified United States workers who,
if recruited, would be willing to make themselves available for work at
the time and place needed.'' 8 U.S.C. 1188(b)(4). The ``positive
recruitment'' that the INA requires ``is

[[Page 55987]]

in addition to, and shall be conducted within the same time period as,
the circulation through the interstate employment service system of the
employer's job offer.'' 8 U.S.C. 1188(b)(4). An employer's obligation
to engage in this recruitment terminates ``on the date the H-2A workers
depart for the employer's place of employment.'' Id.
Since 1987, the Department has relied on regulations promulgated
under the authority of the INA to review and evaluate an application
for a temporary labor certification under the H-2A visa classification.
20 CFR part 655, subpart B. The last significant revisions to these
regulations, which are published in 20 CFR part 655, subpart B, took
effect in 2010, following notice and comment rulemaking. 75 FR 6884
(Feb. 12, 2010) (2010 Final Rule). Pursuant to these regulations, the
``positive recruitment'' mandated by the INA is defined as ``[t]he
active participation of an employer or its authorized hiring agent,
performed under the auspices and direction of the OFLC, in recruiting
and interviewing individuals in the area where the employer's job
opportunity is located and any other State designated by the Secretary
as an area of traditional or expected labor supply with respect to the
area where the employer's job opportunity is located, in an effort to
fill specific job openings with U.S. workers.'' 20 CFR 655.103.
The standards and procedures governing the positive recruitment of
U.S. workers are set forth in sections 655.151-655.154. These
regulations generally require, among other things, that an employer
seeking H-2A temporary labor certification (1) place two print
advertisements in a newspaper of general circulation serving the area
of intended employment, Sec. 655.151(a); (2) contact former U.S.
workers who were employed in the previous year, Sec. 655.153; and (3)
recruit U.S. workers in up to three additional states designated by the
Secretary as states of traditional or expected labor supply, Sec.
655.154.
As relevant here, section 655.151(a) requires an employer seeking
an H-2A temporary labor certification to place a print advertisement on
two separate days, one of which must be a Sunday, in a newspaper of
general circulation serving the area of intended employment and
appropriate to the occupation and workers likely to apply for the job
opportunity. Section 655.151(b) provides that if the employer's job
opportunity is located in a rural area that does not have a newspaper
with a Sunday edition, OFLC may direct the employer, in place of a
Sunday edition, to place a print advertisement in the regularly
published daily edition with the widest circulation in the area of
intended employment. Both advertisements must meet the minimum content
requirements set forth in section 655.152, and the employer is required
to maintain documentation of the actual newspaper advertisements in the
event of an audit or other review, as required by section
655.167(c)(1)(ii).
In addition, under section 655.154, an employer must conduct
positive recruitment within a multistate region of traditional or
expected labor supply where an OFLC Certifying Officer (CO) finds that
there are a significant number of qualified U.S. workers who, if
recruited, would be willing to make themselves available for work at
the time and place needed. Paragraph (c) of this section leaves the
precise nature of the additional positive recruitment that an employer
must conduct to the discretion of the CO. In practice, however, the
Department has generally directed employers to place print
advertisements in newspapers with the largest circulations in the
states identified by the CO as traditional or expected labor supply
states.

B. Need for New Rulemaking

The Department is proposing to modernize the recruitment that an
employer must conduct under its regulations by replacing print
newspaper advertisements with electronic advertisements posted on the
internet. After due consideration, the Department believes that
advertisements posted on the types of websites described below will
reduce burden on employers and applicants, and be a more effective and
efficient means of recruiting U.S. workers than the print newspaper
advertisements that section 655.151 currently requires.
The Department is basing this proposal on several considerations.
First, available data indicates that farmworkers in the United States
very rarely, if ever, learn about job opportunities or obtain
employment through print newspaper advertisements. According to recent
data available from the National Agricultural Workers Survey (NAWS),
farmworkers did not identify print newspaper advertisements as a source
for obtaining their current job.\2\ This data is consistent with the
Department's experience conducting audit examinations of labor
certifications approved under the current rule, as well as anecdotal
evidence that the Department has received from stakeholders, who report
that print newspaper advertisements are not an effective method of
recruiting prospective U.S. workers for agricultural job opportunities.
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\2\ See U.S. Department of Labor, Employment and Training
Administration, Findings from the National Agricultural Workers
Survey (NAWS) 2013-2014: A Demographic and Employment Profile of
United States Farmworkers (Research Report No. 12, Dec. 2016),
available at https://www.doleta.gov/naws (last visited June 9,
2018).
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Second, available data also suggests that U.S. workers are now much
more likely to turn to the internet to search for work than classified
advertisements in print newspapers. For instance, a recent survey
conducted by the Pew Research Center indicated that 79 percent of
Americans research jobs online, whereas only 32 percent use ``ads in
print publications,'' and only four percent found ads in print
publications to be the most useful tool in obtaining their recent
employment.\3\ This trend is likely to continue as U.S. workers gain
increased and more convenient access to the internet via smartphones
and other digital devices,\4\ and print newspaper circulation continues
to decline.\5\ Consequently, classified advertisements in print
editions are becoming a less effective means of notifying U.S. workers
about available job opportunities.\6\ In

[[Page 55988]]

recognition of this fact, many newspapers now offer online classified
employment listings using multi-platform content providers, and popular
online job search websites power the job boards of thousands of
newspaper sites, providing a lower cost recruiting option for employers
and job seekers alike.\7\
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\3\ Aaron Smith, Searching for Work in the Digital Era, Pew
Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/.
See also R. Jason Faberman & Marianna Kudlyak, What Does Online
Job Search Tell Us About The Labor Market?, Economic Perspectives,
Jan. 2016, https://www.chicagofed.org/~/media/publications/economic-
perspectives/2016/ep2016-1-pdf.pdf (observing that the online job
search has become the preferred method of search for nearly all
types of job seekers and recent research suggests that it is the new
norm for how job seekers find work); Richard Hernandez, Online Job
Search: The New Normal, Monthly Labor Review (Bureau of Labor
Statistics, U.S. Dept. of Labor, Wash. DC), Jan. 2017, https://www.bls.gov/opub/mlr/2017/beyond-bls/pdf/online-job-search-the-new-normal.pdf (reporting that the online job search is now the most
popular method of job hunting).
\4\ In 2018, 89 percent of American adults used the internet,
and 77 percent of American adults owned a smartphone, up from just
35 percent in 2011. See Internet/Broadband Fact Sheet, Pew Research
Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/internet-broadband/; Mobile Fact Sheet, Pew Research Center, Feb. 5,
2018, http://www.pewinternet.org/fact-sheet/mobile/.
\5\ By 2014, fewer than 15 percent of Americans received a daily
newspaper. See Elaine C. Kamarck and Ashley Gabriele, The News
Today: 7 Trends in Old and New Media, The Brookings Institution,
Nov. 10, 2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.
\6\ According to the Pew Research Center, the total circulation
of U.S. daily newspapers (print and digital combined) in 2017 was
approximately 31 million, down 38 percent from more than 50 million
in 2007. Pew Research Center, June 13, 2018, http://www.journalism.org/fact-sheet/newspapers/ Newspapers Fact Sheet.
Conversely, job search websites today are attracting a far larger
pool of potential applicants to find jobs. For example, the top 15
job search websites alone attract nearly 200 million unique visitors
each month to search for employment.
\7\ See Christine Del Castillo, Does Anyone Advertise Jobs in
Newspapers Anymore?, Workable, May 19, 2016, https://resources.workable.com/blog/newspaper-job-ads.
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Finally, electronic advertisements offer employers a less
expensive, more convenient means of broadly disseminating information
about their job opportunities to potential U.S. workers. Many job
search websites offer standard advertising packages for free or at
significantly lower marginal costs than the standard print newspaper
advertisement, and advertisements can be posted on these sites for
longer periods than a typical print newspaper advertisement remains in
circulation, providing greater exposure of the employer's job
opportunity to U.S. workers at no additional cost to the employer.
Moreover, unlike print advertisements, which are subject to publishing
deadlines that can delay exposure of the job opportunity to U.S.
workers, an electronic advertisement can be posted within minutes or
hours of submission to the website.
In light of the foregoing, the Department is proposing to revise
the recruitment that an employer must conduct under section 655.151 to
replace print newspaper advertisements with the electronic
advertisements posted on the internet described below. The Department
is also proposing minor amendments to sections 655.167 and 655.225 to
conform those sections to the proposed elimination of print newspaper
advertisements.

II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B

A. Revise Section 655.151 To Replace Newspaper Advertisements With
Electronic Advertisements

The Department is proposing to revise section 655.151(a) to replace
the requirement that an employer place print newspaper advertisements
with a requirement that the employer advertise its job opportunity on a
website that is widely viewed and appropriate for use by workers who
are likely to apply for the job opportunity in the area of intended
employment. The Department proposes to remove the word ``occupation''
from the text in order to address a possible redundancy in the
language. This proposed drafting change is stylistic only, and the
Department intends to effect no substantive change by it.
The proposed rule would not mandate that an employer post its
advertisement on a specific website. Rather, proposed section
655.151(a) would allow an employer to place an advertisement on any of
a variety of websites that are widely viewed and appropriate for use by
workers who are likely to apply for the job opportunity in the area of
intended employment, including websites operated by state or local
agricultural associations, job search websites that advertise
agricultural job opportunities, and other classified advertisement
websites with sections focused on local jobs.
The Department anticipates that advertisements posted on the types
of websites described above will provide greater exposure of
agricultural job opportunities to U.S. workers than the print newspaper
advertisements that section 655.151 currently requires, because they
can be more easily accessed by U.S. workers across a much larger
geographic area and for a longer period. The Department included
websites operated by state or local agricultural associations as an
example of an appropriate website because some state farm bureaus,
commissions, and cooperatives provide services that help agricultural
employers recruit farm labor for seasonal work, and the Department
believes these organizations can be a valuable asset in advertising and
coordinating farm labor demands across employers and leveraging social
media to connect employers with potential workers in the state or local
area.
The Department invites comments on whether it should establish
qualifying criteria (e.g., minimum number of unique visitors per month)
or more specifically define the types of websites that would fulfill
the requirement in proposed section 655.151, and whether the regulation
should explicitly exclude advertisements placed on websites of
agricultural associations that serve as agents or sole or joint
employers of H-2A workers, as defined in section 655.103. The
Department also solicits comments on whether, instead of eliminating
print newspaper advertisements, it should instead offer electronic
advertisements as an alternative means of satisfying the existing
advertising requirement in section 655.151. The Department is not
proposing this option, given the data and trends discussed in Section
I.B., which suggest that electronic advertisements will be more
effective in disseminating information about available job
opportunities to the American workforce. The Department invites
comments on whether there are agricultural employers that lack the
technology or internet access necessary to place the electronic
advertisements described in the proposed rule, and if so, how the
Department should determine whether such employers have met their
obligation to engage in positive recruitment of U.S. workers. For
instance, the Department could leave current recruitment requirements
in place as an option for such employers. The Department solicits
comments on whether there are alternative methods that would more
broadly and effectively disseminate information about available job
opportunities to U.S. agricultural workers.
Proposed section 655.151(b) specifies that an employer's
advertisement must be clearly visible on the website's homepage or be
easily retrievable using the search tools on the website. Any
advertisement that is not clearly visible on the website's homepage
must be easily retrievable. The Department will consider an
advertisement to be easily retrievable if it can be quickly accessed
using a prominently displayed link on the website's homepage or the
search tools and filters that are prominently displayed on the
website's homepage. Each navigation choice or interaction that a job
seeker has with the website should take him or her closer to the job
opportunity being advertised, and applicants should be able to quickly
locate job vacancies using a number of search criteria, such as
occupation, job or position title, geographic location, pay range, and
keywords in the job description. The employer must use commonly
understood terms and keywords to describe its job opportunity when
placing the advertisement, so that U.S. workers who are likely to apply
for the position will retrieve the advertisement when using the
website's search function.
Proposed section 655.151(b) would also require an employer to post
the electronic advertisement for a period of no less than 14
consecutive calendar days. Unlike the print newspaper advertisements
that an employer must place under the current rule, which are typically
published once, many websites offer standard advertising packages that
allow an employer to place an advertisement for a weekly period or up
to 30 calendar days for free or at a significantly lower marginal cost

[[Page 55989]]

than a standard print newspaper advertisement. Accordingly, the
Department anticipates that the consecutive fourteen-day posting period
in proposed section 655.151(b) will attract more U.S. workers to job
opportunities than the print newspaper advertisements that section
655.151 currently requires, because an employer's job opportunity will
be easily accessible to U.S. workers for a longer period than a print
newspaper advertisement, at no additional cost to the employer.
Further, in order to ensure that the job opportunity described in
the advertisement is readily available to U.S. workers, proposed
section 655.151(b) would also require that the advertisement be
publicly accessible at no cost to an applicant. To meet this
requirement, the website on which the advertisement is placed cannot
require U.S. workers to establish personal accounts or make payments of
any kind to view the advertisement. The website must also be
functionally compatible with the latest commercial web browser
platforms and easily viewable on mobile smartphones and similar
portable devices. Moreover, like the current rule, proposed section
655.42(b) would require that the advertisement comply with the minimum
content requirements set forth in section 655.41.
In order to ensure that an employer retains the evidence necessary
to demonstrate compliance with proposed section 655.151(a) and (b),
proposed section 655.151(c) would require an employer to print and
retain screen shots of the web pages on which its advertisement appears
and screen shots of the web pages establishing the path used to access
the advertisement. Although the proposed rule does not require
employers to submit this documentation to the CO with their recruitment
reports, an employer must nevertheless retain this documentation in
accordance with section 655.167 and provide it to the Department in the
event of an audit or other review.
The proposed section 655.151(d) includes a transition provision
that would permit an employer submitting an Application for Temporary
Employment Certification with a date of need prior to October 1, 2019
to elect between placing (a) an electronic advertisement in accordance
with the requirements in the proposed rule, or (b) two newspaper
advertisements in accordance with existing requirements. Because the
Department is proposing to have this rule take effect immediately upon
publication of the final rule, the Department is including this
transition period to provide flexibility to employers that seek
additional time to understand and comply with the proposed regulatory
revisions, while simultaneously permitting employers that wish to place
electronic advertisements immediately upon the effective date of the
final rule the ability to do so. The transition provision is intended
to better ensure, among other things, that employers who have purchased
newspaper advertising space in advance do not lose the benefit of such
purchase.
However, the option to elect between the placement of newspaper and
electronic advertisements would apply only to those applications with a
start date of need prior to October 1, 2019. All employers submitting
an Application for Temporary Employment Certification with a start date
of need after the transition period ends (i.e., employers with dates of
need beginning on or after October 1, 2019) would be required to place
an advertisement in accordance with the proposed revisions to section
655.151(a)-(c).

B. Retain Section 655.154's Requirement for Positive Recruitment

As previously discussed, employers seeking H-2A temporary labor
certification are statutorily required to engage in positive
recruitment of U.S. workers in multistate regions of traditional or
expected labor supply. Under section 655.154(c), when a job opportunity
is located in an area served by traditional or expected labor supply
states, the CO will designate no more than three states for each area
of intended employment listed on the employer's application and
describe the additional positive recruitment steps that the employer
must conduct. In determining the specific recruitment steps that an
employer must conduct, the CO must consider ``the normal recruitment
efforts of non H-2A agricultural employers of comparable or smaller
size in the area of intended employment, and the kind and degree of
recruitment efforts which the potential H-2A employer made to obtain
foreign workers.'' Section 655.154(b). The Department's standard
practice has been to require an employer to place print advertisements
in newspapers serving the traditional or expected labor supply states
designated by the CO, see 75 FR at 6930; however, given the data and
trends discussed in Section I.B., the Department does not intend to
continue this practice. While the Department continues to believe that
the CO must evaluate the appropriate locations and methods of
recruiting U.S. workers in traditional or expected labor supply states
on a case-by-case basis, where the CO determines that an electronic
advertisement placed under proposed section 655.151 is a sufficient
means of recruiting U.S. workers in the traditional or expected labor
supply states identified for the employer's job opportunity, this
advertisement will likely fulfill the positive recruitment required by
section 655.154.

C. DOL-Assisted Advertising

The Department has taken initial steps toward creating an online
platform to assist employers in complying with the requirements for
electronic advertising under this proposed rule. Pending the outcome of
this rulemaking, the Department intends to leverage the latest
advertising technologies by establishing a mechanism to make
advertising data available to popular job-search websites.
Specifically, the Department is evaluating the development of a
centralized platform to automate the electronic advertising of approved
H-2A job opportunities. The Department anticipates that, once fully
developed and implemented, this electronic advertising platform would
maintain a standard set of data on each job opportunity that can be
integrated with a wide array of job search website technologies.
Through this platform, DOL would make available to job-search websites
real-time access to the information that employers provide about their
job opportunities subject to agreement to abide by terms of service.
The companies that operate job-search websites would execute standard
protocols to pull new H-2A jobs from the online platform in real time
for advertising to U.S. workers. DOL is not proposing to mandate the
use of the new electronic advertising platform but instead would make
participation voluntary for H-2A employers.
If developed as currently envisioned, the Department expects that
employers would provide information about their job opportunities, as
part of their H-2A applications for temporary labor certifications, and
indicate their intention to use the electronic advertising platform.
Employers that elect to use this platform would have information about
their job opportunities transmitted by the Department to companies
offering to provide advertising services, which in turn would advertise
these jobs on the companies' job-search websites.
The Department believes that facilitating employers' use of
technology is in the best interest of employers and U.S. workers.
Because information about the job opportunity would already be provided
at the time of filing the H-2A application for a temporary labor

[[Page 55990]]

certification and transmitted by the Department to companies operating
these job search websites, the burden associated with placing separate
electronic advertisements would be significantly reduced. The goal is
to reduce burdens on the regulated community, while ensuring that the
maximum number of U.S. workers learn about job opportunities. Having
DOL maintain a publicly available list of the companies offering this
advertising service, would give U.S. workers and other organizations
that provide employment placement services a greater degree of
certainty regarding where these temporary or seasonal jobs will be
advertised and available for U.S. workers to apply. Employers that
elect to use the new platform would satisfy the advertising requirement
in Sec. 655.151. Finally, offering this platform to employers would
ensure more uniform compliance with advertising requirements.
The Department is not soliciting comments on this electronic
advertising platform at this time, but will inform the public about the
advertising platform's completion through notices in the Federal
Register.

D. Other Minor Changes for Conformity

The Department is proposing minor revisions to two other sections
to conform with the proposed changes to section 655.151. First, the
Department is proposing to make a technical amendment to section
655.167(c)(1)(ii), which specifies document retention requirements, to
delete a reference to print advertisements in professional, trade, or
ethnic publications, and to correct the text's cross-reference to
another regulatory provision. Currently, the regulation directs
employers to retain ``advertising as specified in Sec. 655.152.'' But
the reference to ``655.152'' is incorrect, as that provision provides
the content requirements. The advertising requirement is specified in
Sec. 655.151. Accordingly, the text should properly read ``advertising
as specified in Sec. 655.151.''
Second, the Department is proposing to amend 655.225(d), which
specifies the post-acceptance requirements for positions engaged in the
herding or production of livestock on the range, to delete the
reference to ``a newspaper of general circulation serving the area of
intended employment,'' in order to conform with the proposed change to
the advertisements required by section 655.151.

III. Administrative Information

A. Administrative Procedure Act

The Department proposes to claim an exception under 5 U.S.C.
553(d)(1) from the 30-day delayed effective date requirement on the
basis that this rule relieves the restriction against online
advertising of jobs for which an employer seeks to hire H-2A workers.
The final rule would relieve regulated parties of the requirement that
they only place paper advertisements in newspapers of general
circulation in the area of intended employment. During the transition
period, which would apply to all employers who file an Application for
Temporary Employment Certification with a date of need prior to October
1, 2019, the rule would allow employers to select between placing two
paper newspaper advertisements or placing an online advertisement.
After the transition period ends, the rule would altogether replace the
newspaper advertising requirement with online advertising, which is
anticipated to be more cost-effective and flexible for employers, as
well as a more effective way of reaching U.S. workers who may be able,
willing, and qualified for the employers' job opportunities. The online
advertising would also provide flexibility for U.S. workers who are job
seekers to identify and apply for the job opportunities for which
employers seek to hire H-2A workers. The Department anticipates that
allowing employers additional time to transition away from advertising
by newspaper over an approximately six-month period after the rule's
publication would provide needed flexibility, and thus provide
employers with notice and time to conform their business practices to
the new rule. Therefore, this rule would take effect immediately upon
publication of the final rule.

B. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)

Under Executive Order (E.O.) 12866, the Office of Management and
Budget (OMB)'s Office of Information and Regulatory Affairs determines
whether a regulatory action is significant and, therefore, subject to
the requirements of the E.O. and review by OMB. 58 FR 51735. Sec. 3(f)
of E.O. 12866 defines a ``significant regulatory action'' as an action
that is likely to result in a rule that (1) has an annual effect on the
economy of $100 million or more, or adversely affects in a material way
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local or tribal
governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. Id. OMB
has determined that this proposed rule is a significant, but not
economically significant, regulatory action under Sec. 3(f) of E.O.
12866. Consequently, OMB has reviewed this rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
E.O. 13771, titled Reducing Regulation and Controlling Regulatory
Costs, was issued on January 30, 2017. This proposed rule is expected
to be an E.O. 13771 deregulatory action because the cost savings to H-
2A employers associated with the rule are larger than the costs. The
estimated cost savings associated with this regulatory action are
derived from the proposed revision to section 655.151(a), which would
replace print newspaper advertisements with electronic advertisements
posted on the internet.
1. Subject-by-Subject Analysis
The Department's analysis below considers the expected impacts of
the following aspects of the proposed rule against the baseline (i.e.,
the 2010 Final Rule): (a) The replacement of newspaper advertisements
with electronic advertisements, and (b) the time it takes the regulated
community to read and review the rule.
a. Electronic Advertisements
The Department is proposing to modernize the positive recruitment
that an employer must conduct under its regulations by eliminating the
use of

[[Page 55991]]

print newspaper advertisements and replacing it with electronic
advertisements posted on the internet, which will make the job
opportunity more broadly available to U.S. workers. Specifically, the
Department is proposing to revise section 655.151(a) to replace print
newspaper advertisements requirements with a requirement for an
electronic advertisement posted on a website that is widely viewed and
appropriate for use by workers who are likely to apply for the job
opportunity in the area of intended employment. As discussed in section
I.B. of this NPRM, the basis for this proposal is rooted in the
Department's determination that electronic advertisements will be a
more effective and efficient means of recruiting U.S. workers than the
print newspaper advertisements that its regulations currently require.
i. Cost Savings
To estimate the cost savings to employers that would result from
the proposed rule, the Department first calculated the average number
of H-2A temporary labor certifications approved in Fiscal Year (FY)
based on data from FY 2015-2017, which yielded an annual average of
9,796.\8\ Next, the Department identified the top five states in which
prospective H-2A employers received temporary labor certifications, and
it researched the cost of placing a newspaper advertisement in the most
populous city in each of these states (for several newspapers,
including large and local papers) that would satisfy the content
requirements set forth in section 655.152.\9\ The Department then
averaged the data it obtained to estimate the average cost of complying
with section 655.151. Based on these data, the Department determined
that the average cost of placing the newspaper advertisements required
by section 655.151 is $672 (or $336 for each advertisement).
---------------------------------------------------------------------------

\8\ The average is based on 8,721 H-2A temporary labor
certifications in FY 2015; 9,751 temporary labor certifications in
FY 2016; and 10,917 temporary labor certifications in FY 2017. See
https://www.foreignlaborcert.doleta.gov/performancedata.cfm.
\9\ The top 5 states in which employers seek to place H-2A
workers are California, Florida, Georgia, North Carolina, and
Washington.
---------------------------------------------------------------------------

As mentioned above, the Department believes, based on preliminary
research, employers can choose to advertise using online job search
websites free of charge, so removing the requirement to advertise in a
print newspaper would result in a cost savings equal to the cost of
complying with the current regulation.\10\ Although section 655.151
currently requires employers to advertise on two consecutive days, one
of which must be a Sunday, the Department did not identify a
significant difference in cost between advertisements placed on Sundays
and weekdays, so the Department did not distinguish between these two
costs when calculating total advertising cost savings. To estimate the
annual cost savings of newspaper advertising costs that employers will
avoid under the proposed rule, the Department multiplied the average
annual number of approved H-2A temporary labor certifications (9,796)
by the average newspaper advertising cost of $672. This yielded an
average annual cost savings of $6.58 million.
---------------------------------------------------------------------------

\10\ The Department has data on three commonly used job-search
websites that allow employers to advertise free of charge.
---------------------------------------------------------------------------

b. Time To Understand Rule
During the first year that this rule would be in effect, employers
seeking H-2A workers would need time to learn about the new
requirements. The Department assumes that many employers participating
in the H-2A program would learn about the requirements of the new rule
from an industry newsletter or bulletin. The Department assumes that
the amount of time required to understand the rule change to be 10
minutes. The proposed rule addresses only the job advertising
requirements for employers seeking H-2A workers.
i. Costs
This requirement represents a cost to employers participating in
the H-2A program in the first year of the rule. The Department
estimates this cost by multiplying the time required to read and review
the new rule (10 minutes) by the median hourly wage of a human
resources manager at an agricultural business ($31.84),\11\ multiplied
by a factor of two (2) to account for fringe benefits and overhead,
which yields a cost of $10.61 per employer. The Department estimates
the total cost of reading and reviewing the rule by multiplying $10.61
by the average number of employers participating in the H-2A program
over FY 2015-2017 (6,676). This calculation results in a cost of
$70,855 in the first year.
---------------------------------------------------------------------------

\11\ Wage derived from Bureau of Labor Statistics median hourly
wage for HR Specialists (occupation code 13-1071), May 2017.
---------------------------------------------------------------------------

DOL acknowledges, however, that there are some potentially limited
situations--particularly in rural communities--where the upfront costs
associated with accessing the internet and learning how to post such
advertisements may result in notable opportunity costs for employers.
DOL believes that very few employers do not have access to the
internet. For those employers that do not currently have internet
access, DOL estimates that it will take two hours to access the
internet (which may include transportation to the nearest library),
research the websites and pick one to use, establish an account on that
website, learn how to post a job on the website, and establish an email
account. In addition, employers would need to make additional trips to
check for responses from U.S. workers. For employers with access to the
internet who are not familiar with posting such advertisements online,
there will be some up-front costs associated with the time it takes to
research job advertisement sites, establish an account, and learn how
to post a job on the website.
Because of the uncertainties, we are unable to provide an estimate
of the number of employers who do not have access to the internet, or
those who have access to the internet but are unfamiliar with posting
jobs online, and would incur these additional costs to post
advertisements online. DOL seeks comment from the public on the likely
magnitude and incidence of these costs. However, online advertisements
for H-2A employment would increase the visibility of job openings to
potential U.S. workers and increase the number of workers that would be
able to access these jobs. This benefit would significantly outweigh
any cost potentially incurred by the negligible number of employers
that might be affected by the transition from print newspaper
advertisements to online job postings. The Department therefore
believes that the net societal benefit of implementing this rule would
be maximized if all H-2A employers are required to utilize online
advertisements. As such this rule constitutes as a deregulatory action.
2. Summary of Impacts
The Department estimates the total first-year costs of the proposed
rule to be $70,855. This cost results from the time required to read
and review the proposed rule. This cost is incurred by employers
seeking H-2A workers subject to proposed 655.151(a). The Department
estimates first-year cost savings of $6.58 million. This cost savings
results from replacing the requirement that employers place print
newspaper advertisements with a requirement that employers place
internet advertisements. Net first-year

[[Page 55992]]

cost savings amount to $6.51 million. This estimated cost savings
excludes any increase in costs to employers without current access to
the internet and any up-front costs incurred by those unfamiliar with
posting job advertisements online who need to establish accounts, and
invest time in learning how to post online.
Generally, annual cost savings are expected to be $6.58 million in
all years following the first year due to the lack of monetized costs
regarding the time required to read and review the proposed rule. The
10-year discounted net cost savings of the proposed rule range from
$46.15 million to $56.06 million (with 7- and 3-percent discount rates,
respectively). The annualized net cost savings of the proposed rule is
$6.57 million (with 3- and 7-percent discount rates). When the
Department uses a perpetual time horizon to allow for cost comparisons
under E.O. 13771, the annualized cost savings of this proposed rule are
$6.57 million at a discount rate of 7 percent (excluding any up-front
familiarization costs or increased costs to employers without access to
the internet).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C. 603
and 604.
This proposed rule may impact small businesses that request H-2A
temporary labor certifications. The Department assumed that the average
number of H-2A temporary labor certifications requested by any small
business per year would be one. The Department estimates that small
businesses would incur a one-time cost of $10.61 to familiarize
themselves with the rule and would incur annual cost savings of $672
associated with advertising online rather than in print newspapers.
Over a 10-year period, the net annualized cost savings for a small
business would be $672 at a 7-percent discount rate.
The Department reviewed the impacts of the proposed rule for two
North American Industry Classification System (NAICS) Codes that
frequently request H-2A temporary labor certifications--NAICS 115115:
Farm Labor Contractors & Crew Leaders, and NAICS 111998: All Other
Miscellaneous Crop Farming. The Small Business Administration (SBA)
estimates that revenue for a small business with NAICS Code 115115 is
$15 million and for NAICS Code 111998 is $750,000.\12\ The impact of
the proposed rule would be less than 1 percent of annual revenue for
the small businesses in these industries with the employment size fewer
than 5 ($710,717 for NAICS 115115 and $430,835 for NAICS 11).\13\ Based
on this determination, the Department certifies that the proposed rule
would not have a significant economic impact on a substantial number of
small entities.
---------------------------------------------------------------------------

\12\ U.S. Small Business Administration. (2017). Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes. Retrieved from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
\13\ U.S. Census, 2012 SUSB Annual Data Tables by Establishment
Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
---------------------------------------------------------------------------

D. Paperwork Reduction Act

The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that 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 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. DOL has submitted the Information Collection
Request (ICR) contained in this rule to OMB and obtained approval using
emergency clearance procedures outlined at 5 CFR 1320.13.
More specifically, this rule proposes to replace print newspaper
advertisements with an advertisement posted on a website that is widely
viewed and appropriate for use by U.S. workers who are likely to apply
for the job opportunity in the area of intended employment. The
proposed rule would require that this advertisement be clearly visible
on the website's homepage or be easily retrievable through the website,
posted for a period of no less than 14 consecutive calendar days,
publicly accessible to U.S. workers at no cost using the latest browser
technologies and mobile devices, and satisfy the advertising content
requirements set forth in Sec. 655.152. Under the proposed rule and in
accordance with 20 CFR 655.167(c)(1)(ii), an employer would be required
to retain documentation demonstrating that it posted an electronic
advertisement in compliance with the requirements in the proposed rule,
including screen shots of the web page on which the advertisement
appears and screen shots of the web pages establishing the path that
U.S. workers must follow to access the advertisement. The employer must
be prepared to produce all information and records contained in this
information collection for the Department or other federal agencies in
the event of an audit examination, investigation, or other enforcement
proceedings in the H-2A program. The Department is using technology to
reduce burden by replacing newspaper advertisements with electronic
advertisements. The information collection requirements associated with
this rule are summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New.
Title of the Collection: Advertising Requirements for Employers
Seeking to Employ H-2A Nonimmigrant Workers.
Agency Form Number: None.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 9,796.
Average Responses per Year per Respondent: 2.
Total Estimated Number of Responses: 19,592.
Average Time per Response: 7 minutes per application.
Total Estimated Annual Time Burden: 1,142 hours.
Total Estimated Other Costs Burden: $0.

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more expenditure (adjusted annually
for inflation) in any one year by State, local, and tribal governments,
in the aggregate, or by the private sector.

[[Page 55993]]

This NPRM, if finalized, does not exceed the $100 million
expenditure in any 1 year when adjusted for inflation, and this
rulemaking does not contain such a mandate. The requirements of Title
II of the Act, therefore, do not apply, and the Department has not
prepared a statement under the Act.

F. Small Business Regulatory Enforcement Fairness Act of 1996

This NPRM, if finalized, is not a major rule as defined by section
804 of the Small Business Regulatory Enforcement Act of 1996, Public
Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This
proposed rule has not been found to result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic or export
markets.

G. Executive Order 13132: Federalism

This NPRM, if finalized, does not have federalism implications
because it does not have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Accordingly, Executive Order 13132, Federalism, requires
no further agency action or analysis.

H. Executive Order 13175, Indian Tribal Governments

This NPRM, if finalized, does not have ``tribal implications''
because it does not have substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. Accordingly,
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, requires no further agency action or analysis.

I. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families

This NPRM, if finalized, will have no effect on family well-being
or stability, marital commitment, parental rights or authority, or
income or poverty of families and children. Accordingly, section 654 of
the Treasury and General Government Appropriations Act of 1999 (5
U.S.C. 601 note) requires no further agency action, analysis, or
assessment.

J. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

This NPRM, if finalized, will have no adverse impact on children.
Accordingly, Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks, as amended by Executive
Orders 13229 and 13296, requires no further agency action or analysis.

K. Environmental Impact Assessment

This action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This action is therefore categorically excluded from
further review under the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321-4375.

L. Executive Order 13211, Energy Supply

This NPRM, if finalized, has not been identified to have impacts on
energy supply. Accordingly, Executive Order 13211 requires no further
Agency action or analysis.

M. Executive Order 12630, Constitutionally Protected Property Rights

This NPRM, if finalized, will not implement a policy with takings
implications. Accordingly, Executive Order 12630, Governmental Actions
and Interference with Constitutionally Protected Property Rights,
requires no further agency action or analysis.

N. Executive Order 12988, Civil Justice Reform Analysis

This NPRM, if finalized, was drafted and reviewed in accordance
with Executive Order 12988, Civil Justice Reform. This proposed rule
was written to provide a clear legal standard for affected conduct and
was carefully reviewed to eliminate drafting errors and ambiguities, so
as to minimize litigation and undue burden on the Federal court system.
The Department has determined that this proposed rule meets the
applicable standards provided in section 3 of Executive Order 12988.

List of Subjects in 20 CFR Part 655

Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.

0
For the reasons stated in this document, 20 CFR part 655 is proposed to
be amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES

0
1. The authority citation for part 655 is revised to read as follows:

Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 205 of
division M, Pub. L. 115-141, 132 Stat. 348; 8 CFR 2.1,
214.2(h)(4)(i), and 214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0
2. Revise Sec. 655.151 to read as follows:

Sec. 655.151 Advertising in the area of intended employment.

(a) Where to conduct recruitment. The employer must place an
advertisement for the job opportunity on at least one website that is
widely viewed and appropriate for use by U.S. workers who are likely to
apply for the job opportunity in the area of intended employment.
(b) Nature of the recruitment. The advertisement must be clearly
visible on the website's homepage or be easily retrievable through the
website, posted for a period of no less than 14 consecutive calendar
days, publicly accessible to U.S. workers at no cost using the latest
browser technologies and mobile devices, and satisfy the requirements
set forth in Sec. 655.152.

[[Page 55994]]

(c) Proof of recruitment. An employer must retain documentation in
accordance with Sec. 655.167(c)(1)(ii) that demonstrates compliance
with paragraphs (a) and (b) of this section. Such documentation must
include screen shots of the web page on which the advertisement appears
and screen shots of the web pages establishing the path that U.S.
workers must follow to access the advertisement.
(d) Transition period for applications with dates of need prior to
October 1, 2019. (1) All employers submitting an Application for
Temporary Employment Certification with a date of need on or after
October 1, 2019 must place and retain documentation of an electronic
advertisement in accordance with paragraphs (a) through (c) of this
section.
(2) An employer submitting an Application for Temporary Employment
Certification with a date of need prior to October 1, 2019 may elect to
place two newspaper advertisements in compliance with the requirements
in paragraphs (d)(2)(i) and (ii) of this section, in lieu of placing
and retaining documentation of the electronic advertisement required by
paragraphs (a) through (c) of this section.
(i) The employer must place an advertisement (in a language other
than English, where the CO determines appropriate) on 2 separate days,
which may be consecutive, one of which must be a Sunday (except as
provided in paragraph (d)(2)(ii) of this section), in a newspaper of
general circulation serving the area of intended employment and is
appropriate to the occupation and the workers likely to apply for the
job opportunity. Newspaper advertisements must satisfy the requirements
set forth in Sec. 655.152.
(ii) If the job opportunity is located in a rural area that does
not have a newspaper with a Sunday edition, the CO may direct the
employer, in place of a Sunday edition, to advertise in the regularly
published daily edition with the widest circulation in the area of
intended employment.
0
3. Amend Sec. 655.167 by revising paragraph (c)(1)(ii) to read as
follows:

Sec. 655.167 Document retention requirements.

* * * * *
(c) * * *
(1) * * *
(ii) Advertising as specified in Sec. 655.151;
* * * * *
0
4. Amend Sec. 655.225 by revising paragraph (d) to read as follows:

Sec. 655.225 Post-acceptance requirements for herding and range
livestock.

* * * * *
(d) The employer will not be required to place an advertisement as
required in Sec. 655.151.
* * * * *

Molly E. Conway,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2018-24497 Filed 11-8-18; 8:45 am]
BILLING CODE 4510-FP-P

55994 Federal Register / Vol. 83, No. 218 / Friday, November 9, 2018 / Proposed Rules

(c) Proof of recruitment. An employer § 655.225 Post-acceptance requirements or other information whose disclosure is
must retain documentation in for herding and range livestock. restricted by statute. Multimedia
accordance with § 655.167(c)(1)(ii) that * * * * * submissions (audio, video, etc.) must be
demonstrates compliance with (d) The employer will not be required accompanied by a written comment.
paragraphs (a) and (b) of this section. to place an advertisement as required in The written comment is considered the
Such documentation must include § 655.151. official comment and should include
screen shots of the web page on which * * * * * discussion of all points you wish to
the advertisement appears and screen make. The EPA will generally not
shots of the web pages establishing the Molly E. Conway, consider comments or comment
path that U.S. workers must follow to Acting Assistant Secretary for Employment contents located outside of the primary
access the advertisement. and Training, Labor. submission (i.e., on the Web, cloud, or
(d) Transition period for applications [FR Doc. 2018–24497 Filed 11–8–18; 8:45 am] other file sharing system). For
with dates of need prior to October 1, BILLING CODE 4510–FP–P additional submission methods, please
2019. (1) All employers submitting an contact the person identified in the FOR
Application for Temporary Employment FURTHER INFORMATION CONTACT section.
Certification with a date of need on or ENVIRONMENTAL PROTECTION For the EPA’s full public comment
after October 1, 2019 must place and AGENCY policy, information about CBI or
retain documentation of an electronic multimedia submissions, and general
advertisement in accordance with 40 CFR Parts 49 and 52 guidance on making effective
paragraphs (a) through (c) of this comments, please visit http://
[EPA–R09–OAR–2018–0590; FRL–9986–21–
section. www2.epa.gov/dockets/commenting-
Region 9]
epa-dockets.
(2) An employer submitting an
Revisions to the Source-Specific FOR FURTHER INFORMATION CONTACT:
Application for Temporary Employment
Certification with a date of need prior to Federal Implementation Plan for Anita Lee, EPA Region IX, (415) 972–
October 1, 2019 may elect to place two Navajo Generating Station, Navajo 3958, lee.anita@epa.gov.
newspaper advertisements in Nation SUPPLEMENTARY INFORMATION:
compliance with the requirements in Throughout this document, ‘‘we,’’ ‘‘us’’
AGENCY: Environmental Protection and ‘‘our’’ refer to the EPA.
paragraphs (d)(2)(i) and (ii) of this Agency (EPA).
section, in lieu of placing and retaining Table of Contents
ACTION: Proposed rule.
documentation of the electronic
I. Background
advertisement required by paragraphs SUMMARY: The Environmental Protection A. Action
(a) through (c) of this section. Agency (EPA) is proposing limited B. Facility
(i) The employer must place an revisions to the source-specific federal C. Attainment Status
advertisement (in a language other than implementation plan (FIP) that regulates D. The EPA’s Authority To Promulgate a
English, where the CO determines emissions from the Navajo Generating FIP in Indian Country
appropriate) on 2 separate days, which E. Historical Overview of NGS FIP Actions
Station (NGS), a coal-fired power plant II. Basis for Proposed Action
may be consecutive, one of which must located on the reservation lands of the III. Summary of FIP Provisions
be a Sunday (except as provided in Navajo Nation near Page, Arizona. We A. Proposed FIP Revisions
paragraph (d)(2)(ii) of this section), in a are proposing to lower the emission B. Justification for Proposed FIP Revisions
newspaper of general circulation serving limitation for particulate matter (PM) to IV. Solicitation of Comments
the area of intended employment and is conform to the most stringent emission V. Environmental Justice Considerations
appropriate to the occupation and the limitation currently applicable to NGS VI. Statutory and Executive Order Reviews
workers likely to apply for the job under another EPA regulation, and to I. Background
opportunity. Newspaper advertisements replace the opacity limitation and
must satisfy the requirements set forth annual PM source testing requirement A. Action
in § 655.152. with a requirement to demonstrate In this action, the EPA is proposing
(ii) If the job opportunity is located in compliance with the lower PM emission limited revisions to the FIP for NGS that
a rural area that does not have a limitation using a continuous emission we promulgated on October 3, 1991
newspaper with a Sunday edition, the monitoring system for particulate (‘‘1991 FIP’’), March 5, 2010 (‘‘2010
CO may direct the employer, in place of matter. FIP’’), and August 8, 2014 (‘‘2014
a Sunday edition, to advertise in the FIP’’).1 The provisions of the 1991
DATES: Any comments on this proposal
regularly published daily edition with action are codified in the Code of
must arrive by December 10, 2018.
the widest circulation in the area of Federal Regulations (CFR) at 40 CFR
ADDRESSES: Submit your comments, 52.145(d), and the 2010 and 2014
intended employment.
identified by Docket ID number EPA– regulations are codified at 40 CFR
■ 3. Amend § 655.167 by revising
R09–OAR–2018–0590, at http:// 49.5513. We refer collectively to the
paragraph (c)(1)(ii) to read as follows:
www.regulations.gov, or via email to provisions from the 1991, 2010, and
§ 655.167 Document retention lee.anita@epa.gov. For comments 2014 actions as the ‘‘FIP’’ or the ‘‘NGS
requirements. submitted at Regulations.gov, follow the FIP.’’ The NGS FIP includes federally
* * * * * online instructions for submitting enforceable emission limitations for PM,
khammond on DSK30JT082PROD with PROPOSAL

(c) * * * comments. Once submitted, comments opacity, sulfur dioxide (SO2), and
cannot be edited or removed from oxides of nitrogen (NOX).
(1) * * *
Regulations.gov. For either manner of Generally, the EPA is proposing to
(ii) Advertising as specified in submission, the EPA may publish any
§ 655.151; move provisions from the 1991 FIP to a
comment received to its public docket. different section of the CFR and to
* * * * * Do not submit electronically any
■ 4. Amend § 655.225 by revising information you consider to be 1 See 56 FR 50172 (October 3, 1991), 75 FR 10174

paragraph (d) to read as follows: Confidential Business Information (CBI) (March 5, 2010), and 79 FR 46552 (August 8, 2014).

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Document Created: 2018-11-09 03:33:47
Document Modified: 2018-11-09 03:33:47

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be submitted, in writing, on or before December 10, 2018.
Contact		William W. Thompson, II, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/ TDD).
FR Citation		83 FR 55985
RIN Number		1205-AB90
CFR Associated		Administrative Practice and Procedure; Employment; Employment and Training; Enforcement; Foreign Workers; Forest and Forest Products; Fraud; Health Professions; Immigration; Labor; Longshore and Harbor Work; Migrant Workers; Nonimmigrant Workers; Passports and Visas; Penalties; Reporting and Recordkeeping Requirements; Unemployment; Wages and Working Conditions

83 FR 55985 - Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States

DEPARTMENT OF LABOREmployment and Training Administration

Federal Register Volume 83, Issue 218 (November 9, 2018)

DEPARTMENT OF LABOR
Employment and Training Administration