[Federal Register: August 4, 2011 (Volume 76, Number 150)]
[Notices]
[Page 47241-47243]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au11-103]
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DEPARTMENT OF LABOR
Employment and Training Administration
Training and Employment Guidance (TEGL) Letter No. 33-10: Special
Procedures: Labor Certification Process for Itinerant Commercial
Beekeeping Employers in the H-2A Program
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice.
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SUMMARY: The Employment and Training Administration (ETA) of the United
States. Department of Labor (Department) is publishing, for public
information, notice of the issuance and availability of TEGL 33-10
entitled, Special Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H-2A Program, signed on June 14,
2011, by Jane Oates, Assistant Secretary for Employment and Training
Administration.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD,
Administrator, Office of Foreign Labor Certification, ETA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free
number). Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Special Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H-2A Program
1. Purpose. To establish special procedures for itinerant
commercial beekeeper employers who apply to the Department to obtain
labor certifications to hire temporary agricultural foreign workers to
perform work in the United States (U.S.)
2. References.
20 CFR part 655, subpart B;
20 CFR part 653, subparts B and F;
20 CFR part 654, subpart E.
3. Background. In 1986, Congress passed the Immigration Reform and
Control Act of 1986 (IRCA) which amended the Immigration and
Nationality Act (INA), 8 U.S.C. 1101 et seq. and established the H-2A
Program. In 1987, the Department issued an Interim Final Rule,
promulgating the first H-2A regulations (the 1987 regulations) in
accordance with IRCA. 54 FR 20496, Jun. 1, 1987. The 1987 regulations
provided for the administration of the H-2A Program by ETA Regional
Administrators, and instituted procedures to offset the adverse effects
of immigration on U.S. workers. Additionally, the 1987 regulations also
established special procedures for certain occupations, as long as they
did not deviate from the Secretary's statutory responsibility to
determine U.S. worker availability and the adverse effect of foreign
workers on
[[Page 47242]]
the wages and working conditions of U.S. workers.
The 1987 regulations remained in effect, largely unchanged, until
the Department promulgated new H-2A regulations on December 18, 2008.
73 FR 77110, Dec. 18, 2008 (the 2008 Final Rule). The 2008 Final Rule
implemented an attestation-based application process and made several
substantive changes to the program, but retained the special procedures
concept. After the Department determined that the 2008 Final Rule did
not meet policy objectives of the H-2A Program, the Department
commenced another rulemaking process culminating in the publication of
new H-2A regulations on February 12, 2010. 75 FR 6884, Feb. 12, 2010
(the 2010 Final Rule). Section 20 CFR 655.102 provides the
Administrator of the Office of Foreign Labor Certification (OFLC) with
authority to establish, continue, revise or revoke special procedures
for processing certain H-2A applications, as long as those procedures
do not deviate from statutory requirements under the INA.
After receiving a request from the American Beekeeping Federation
and in consideration of the unique characteristics of itinerant
commercial beekeeping operations, the Department is exercising its
authority to establish certain special procedures for processing H-2A
applications for itinerant commercial beekeeping occupations. The
Department recognizes that an industry-wide standard exists among
commercial beekeeping employers to transport honey bee colonies to
farms and orchards throughout the U.S. Itinerant commercial beekeepers
typically transport their honey bee colonies north in the summer and
south in the winter, stopping as needed to pollinate crops in bloom.
For both commercial beekeepers and farmers, the need to move bees from
one State to another throughout the growing season has intensified as
the number of bees and beekeepers decline and agricultural methods
evolve.
Large farms and orchards require a large concentration of healthy,
active pollinators during specific periods when crops are in flower. In
addition, beekeepers have determined that they can maintain stronger,
healthier honey bee colonies by transporting their colonies to warmer,
southern States during the cold months. Providing flexibility in the H-
2A Program for itinerant commercial beekeepers to move honey bee
colonies to various parts of the U.S. will enable this industry to
maintain strong, healthy honey bee colonies and provide the pollination
services which are vital to successful crop production. Accordingly,
the Department is establishing special procedures enabling itinerant
commercial beekeeper employers to use the H-2A Program while moving
their beekeeping activities among farms and orchards located in
multiple areas of intended employment throughout the U.S.
4. Special Procedures. Attachment A outlines special procedures for
applications submitted by itinerant commercial beekeeping employers
under the H-2A Program. Unless otherwise specified in Attachment A,
applications submitted by itinerant commercial beekeeper employers must
comply with the requirements for H-2A applications contained at 20 CFR
part 655, subpart B. Similarly, unless otherwise specified, job orders
submitted for these occupations must comply with the requirements of 20
CFR parts 655, subpart B, 653 subparts B and F, and 654.
5. Effective Date. This guidance applies to all temporary labor
certification applications for occupations in itinerant commercial
beekeeping in the H-2A Program with a start date of need on or after
October 1, 2011.
6. Action. The Chicago National Processing Center (Chicago NPC)
Program Director and State Workforce Agency (SWA) Administrators are
directed to immediately provide copies of these special procedures to
all staff involved in processing H-2A labor certification applications
from itinerant commercial beekeeping employers.
7. Inquiries. Questions from SWA staff should be directed to the
Chicago NPC. Questions from the Chicago NPC staff should be directed to
the OFLC National Office.
8. Attachment.
Attachment A: Special Procedures: Labor Certification Process for
Itinerant Commercial Beekeeping Employers under the H-2A. See full text
below.
Attachment A: Special Procedures: Labor Certification Process for
Applications in the Itinerant Commercial Beekeeping Industry Under the
H-2A Program
This document outlines special procedures for applications
submitted by employers in the itinerant commercial beekeeping industry
under the H-2A Program. Unless otherwise specified in this attachment,
applications submitted for itinerant commercial beekeeping occupations
must comply with the requirements for processing H-2A applications
outlined in 20 CFR part 655, subpart B. Similarly, unless otherwise
specified, job orders submitted for itinerant commercial beekeeping
occupations must comply with the requirements of 20 CFR parts 655,
subpart B, 653, subparts B and F, and 654.
I. Prefiling Procedures
A. Job Orders and SWA Review (20 CFR 655.121). An employer engaged
in commercial beekeeping activities is allowed to submit a single
Agricultural and Food Processing Clearance Order, ETA Form 790 (job
order), Office of Management and Budget (OMB) 1205-0134, and all
appropriate attachments covering a planned itinerary of work in
multiple States. If the job opportunity is located in more than one
State, either within the same area of intended employment or multiple
areas of intended employment, the employer must submit the job order
and all attachments (including a detailed itinerary) to the SWA having
jurisdiction over the anticipated worksite(s) where the work is
expected to begin. The employer must submit the job order no more than
75 calendar days and no less than 60 calendar days before the
employer's first date of need.
Unless otherwise specified in these special procedures, the job
order submitted to the SWA must satisfy the requirements for
agricultural clearance orders outlined in 20 CFR part 653, subpart F
and the requirements set forth in 20 CFR 655.122. The SWA will review
the job order for regulatory compliance and will work with the employer
to address any noted deficiencies. Upon its clearance of the job order,
the SWA must promptly place the job order in intrastate clearance and
commence recruitment of U.S. workers.
The job order shall remain active until 50 percent of the work
contract period has elapsed for all SWAs in possession of the
employer's job order (including those receiving in interstate clearance
under 20 CFR 655.150), unless otherwise advised by the Chicago NPC.
B. Contents of Job Offers (20 CFR 655.122). Unless otherwise
specified in this section, the content of job offers submitted to the
SWAs and the Chicago NPC for itinerant beekeeping activities must
comply with all of the requirements of 20 CFR parts 655, subpart B,
653, subparts B and F, and 654.
1. Job qualifications and requirements.
Experience. Due to the unique nature of the work to be performed,
the job offer may specify that applicants possess up to 3 months of
experience as a beekeeper and may require reference(s) to verify the
applicant's experience performing such activities.
[[Page 47243]]
Applicants must provide the name, address, and telephone number of any
previous employer used as a reference. The appropriateness of any other
experience requirements must be substantiated by the employer and
approved by the Chicago NPC.
Completion of Itinerary. An itinerant beekeeping employer may
require in its job offer that an applicant for the job must be
available to work for the entire itinerary. An applicant referred to
the employer after the labor certification has been granted, but before
50 percent of the work contract period for the entire itinerary has
elapsed, must be available and willing to join the employer at whatever
place the employer is located at the time and remain with the employer
for the duration of the beekeeping itinerary. An employer's rejection
of an applicant who is unable or unwilling to accept such a requirement
is considered a lawful job-related rejection.
Other Requirements. Due to the unique nature of the work to be
performed, the job offer may specify that applicants may not have bee-,
pollen- or honey-related allergies and must have or be able to obtain
within 30 days of employment, a valid U.S. driver's license. Any other
requirements must be normal and accepted for the occupation, and the
SWA and the Chicago NPC have the authority to request supporting
documentation substantiating the appropriateness of the duties prior to
accepting the job order.
2. Workers' compensation. The employer must provide workers'
compensation insurance coverage, as described in 20 CFR 655.122(e), in
all States where commercial migratory beekeeping work will be
performed. Prior to the issuance of the Temporary Labor Certification,
the employer must provide the Certifying Officer (CO) with proof of
workers' compensation coverage, including the name of the insurance
carrier, the insurance policy number, and proof of insurance for the
dates of need, or if appropriate, proof of State law coverage for each
State where the commercial migratory beekeeping work will be performed.
In the event that the current coverage will expire before the end of
the certified work contract period or the insurance statement does not
include all of the information required under the regulations at 20 CFR
655.122(e), the employer will be required to supplement its proof of
workers' compensation for that State before a final determination is
due. Where the employer's coverage will expire before the end of the
certified work contract period, the employer may submit as proof of
renewed coverage a signed and dated statement or letter showing proof
of intent to renew and maintain coverage for the dates of need. The
employer must maintain evidence that its workers' compensation was
renewed, in the event the Department requests it.
3. Housing. The employer must state in its job offer that
sufficient housing will be provided at no cost to H-2A workers and any
workers in corresponding employment who are not reasonably able to
return to their residence within the same day. All employer-provided
housing must comply with requirements set out in 20 CFR 655.122(d) for
the entire period of occupancy. For each anticipated worksite covering
the itinerary, the job offer must disclose the type, location, and
capacity of all housing that will be provided to the workers. Prior to
the issuance of the Temporary Labor Certification, the CO must receive
evidence that all housing complies with the applicable local, State, or
Federal housing standards.
4. Rates of pay. For each State listed in an approved itinerary,
the employer must state in its job offer and agree to pay a wage that
is at least the highest of the Adverse Effect Wage Rate, the prevailing
hourly wage, the agreed-upon collective bargaining wage, or the Federal
or State minimum wage, in effect at the time the work is performed.
II. Application for Temporary Employment Certification Filing
Procedures
A. Application Filing Requirements (20 CFR 655.130). An individual
employer that desires to apply for temporary employment certification
for one or more nonimmigrant workers must file the following
documentation with the Chicago NPC no less than 45 calendar days before
the employer's date of need:
ETA Form 9142 (OMB 1205-0466), Application for Temporary
Employment Certification, and Appendix A.2;
Copy of the ETA Form 790 and all attachments previously
submitted to the SWA;
A planned itinerary listing the names and contact
information of all farmers/ranchers and identifying, with as much
geographic specificity as possible and for each farmer/rancher, all of
the physical locations and estimated start and end dates of need where
work will be performed; and
All other required documentation supporting the
application.
B. H-2A Labor Contractor (H-2ALC) Filing Requirements (20 CFR
655.132). The Department is granting a special variance to the
application filing procedures for H-2ALCs contained at 20 CFR
655.132(a). Specifically, an employer engaged in commercial beekeeping
activities is authorized to file an Application for Temporary
Employment Certification covering one or more areas of intended
employment based on a planned itinerary. An itinerant beekeeping
employer who desires to employ one or more nonimmigrant workers on an
itinerary to provide beekeeping services to fixed-site farmers/ranchers
is, by definition, an H-2ALC. Therefore, the itinerant beekeeping labor
contractor must identify itself as the employer of record on the ETA
Form 9142 by completing Section C and marking item C.17 as ``H-2A Labor
Contractor,'' and submitting, in addition to the documentation required
under 20 CFR 655.130, all other required documentation supporting an H-
2ALC application.
Signed in Washington, DC this 29th day of July 2011.
Jane Oates,
Assistant Secretary for Employment and Training Administration.
[FR Doc. 2011-19751 Filed 8-3-11; 8:45 am]
BILLING CODE 4510-FP-P
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