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40584 Federal Register / Vol. 66, No.

150 / Friday, August 3, 2001 / Rules and Regulations

(1) Prior to, or concurrently with, the existing firewall with one new firewall on series airplanes). If the service bulletin
accomplishment of the tasks required by each of the left and right wing inboard specifies to contact the manufacturer for
paragraph (b)(2) of this AD, reinforce the pylons, in accordance with Airbus Service appropriate action: Prior to further flight,
wing structure at the inboard pylon rear Bulletin A340–54–4003, Revision 01, dated repair in accordance with a method approved
pickup area of both wings (including April 26, 2000. by either the Manager, International Branch,
performing high-frequency eddy current (c) If any discrepancy is found during any ANM–116, FAA, Transport Airplane
rototests, corrective actions if necessary, and inspection or rototest required by paragraphs Directorate; or the Direction Générale de
installing a larger reinforcing plate and (a)(2) or (b)(1) of this AD, prior to further l’Aviation Civile (or its delegated agent).
packer plate) in accordance with Airbus flight, accomplish applicable repairs in Note 2: Accomplishment of the
Service Bulletin A340–57–4025, Revision 02, accordance with Airbus Service Bulletin modifications required by paragraphs (a)(1)
including Appendices 01 and 02, dated A330–57–3021, Revision 03, including and (a)(2) or paragraphs (b)(1) and (b)(2) of
November 5, 1999. Appendices 01 and 02, dated November 5, this AD, prior to the effective date of this AD
(2) Concurrently with, or subsequent to, 1999 (for Model A330 series airplanes); or in accordance with the service bulletins
the accomplishment of the tasks required by Airbus Service Bulletin A340–57–4025, listed in Table 1 of this AD, as follows, is
paragraph (b)(1) of this AD, replace five Revision 02, including Appendices 01 and considered acceptable for compliance with
existing fillets with five new fillets and one 02, dated November 5, 1999 (for Model A340 the applicable actions this AD:

TABLE 1.—PRIOR SERVICE BULLETINS CONSIDERED ACCEPTABLE FOR COMPLIANCE


Model Service bulletin Revision level Date

A330 ...................................................... A330–54–3005 Original ................................................. March 25, 1996.


A330 ...................................................... A330–57–3021 Original ................................................. March 25, 1996.
A330–57–3021 01 ......................................................... September 1, 1998.
A330–57–3021 02 ......................................................... April 9, 1999.
A340 ...................................................... A340–57–4025 Original ................................................. March 25, 1996.
A340–57–4025 01 ......................................................... September 1, 1998.
A340 ...................................................... A340–54–4003 Original ................................................. March 25, 1996.

Alternative Methods of Compliance Transport Airplane Directorate, 1601 Lind Department of Labor (Department or
(d) An alternative method of compliance or Avenue, SW., Renton, Washington; or at the DOL) is amending its regulations
adjustment of the compliance time that Office of the Federal Register, 800 North relating to the permanent employment
provides an acceptable level of safety may be Capitol Street, NW., suite 700, Washington, of aliens in the United States. This final
used if approved by the Manager, DC.
rule permits employers to request, in
International Branch, ANM–116, Transport Note 4: The subject of this AD is addressed certain circumstances, that any labor
Airplane Directorate, FAA. Operators shall in French airworthiness directives 2000–
submit their requests through an appropriate 178–121(B) and 2000–179–147(B), both dated
certification application for permanent
FAA Principal Maintenance Inspector, who May 3, 2000. employment in the United States that is
may add comments and send it to the filed on or before August 3, 2001, be
manager, International Branch ANM–116. Effective Date processed as a reduction in recruitment
Note 3: Information concerning the (g) This amendment becomes effective on request. ETA anticipates that the
existence of approved alternative methods of August 20, 2001. amendment will reduce the backlog of
compliance with this AD, if any, may be labor certification applications for
Issued in Renton, Washington, on July 25,
obtained from the international Branch, permanent employment in State
2001.
ANM–116. Employment Security Agencies
Vi L. Lipski,
Special Flight Permits Manager, Transport Airplane Directorate,
(SESA’s). ETA believes this measure to
(e) Special flight permits may be issued in Aircraft Certification Service. reduce backlogs will result in a variety
accordance with sections 21.197 and 21.199 [FR Doc. 01–19259 Filed 8–2–01; 8:45 am]
of desirable benefits, such as a reduction
of the Federal Aviation Regulations (14 CFR in processing time for both new
BILLING CODE 4910–13–P
21.197 and 21.199) to operate the airplane to applications and those applications
a location where the requirements of this AD currently in the queue, and will
can be accomplished. facilitate the development and
DEPARTMENT OF LABOR implementation of a new, more
Incorporation by Reference
efficient, system for processing labor
(f) Except as provided by paragraph (c) of Employment and Training
this AD, the actions must be done in certification applications for permanent
Administration employment in the United States.
accordance with Airbus Service Bulletin
A330–57–3021, Revision 03, including EFFECTIVE DATE: The amendments
20 CFR Part 656
Appendices 01 and 02, dated November 5,
contained in this final rule will take
1999; Airbus Service Bulletin A340–57–4025, RIN 1205–AB25
Revision 02, including Appendices 01 and effect on September 4, 2001.
02, dated November 5, 1999; Airbus Service Labor Certification Process for the FOR FURTHER INFORMATION CONTACT:
Bulletin A330–54–3005, Revision 01, dated Permanent Employment of Aliens in Contact Dale M. Ziegler, Chief, Division
October 19, 1999; and Airbus Service of Foreign Labor Certifications,
Bulletin A340–54–4003, Revision 01, dated
the United States; Refiling of
April 26, 2000; as applicable. This Applications Employment and Training
incorporation by reference was approved Administration, 200 Constitution
AGENCY: Employment and Training Avenue, NW., Room C–4318,
previously by the Director of the Federal
Register as of May 14, 2001 (66 FR 21074, Administration, Labor. Washington, DC 20210. Telephone:
April 27, 2001). Copies may be obtained from ACTION: Final rule. (202) 693–3010 (this is not a toll-free
Airbus Industrie, 1 Rond Point Maurice number).
Bellonte, 31707 Blagnac Cedex, France. SUMMARY: The Employment and
Copies may be inspected at the FAA, Training Administration (ETA) of the SUPPLEMENTARY INFORMATION:

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Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations 40585

I. Background findings for one or more reasons, number of measures to increase


Backlogs of applications for including, but not limited to: efficiency which were achievable under
(a) The employer has not adequately current regulations. One of the measures
permanent alien employment
recruited U.S. workers for the job to increase efficiency was to encourage
certification have been a growing
offered to the alien, or has not followed employers to file requests for a
problem in ETA regional and SESA
the proper procedural steps in 20 CFR reduction in recruitment (RIR) under
offices. These increasing backlogs have
part 656. § 656.21(i) of the permanent labor
resulted in an increase in the time it (b) The employer has not met its certification regulations. Requests for
takes to obtain a determination on an burden of proof under section 291 of the RIR processing are given expedited
application for permanent employment Immigration and Nationality Act (INA processing at ETA’s regional offices. The
in the United States. or Act.) (8 U.S.C. 1361), that is, the RIR provision allows certifying officers
Recent measures to reduce backlogs in employer has not submitted sufficient to reduce partially or completely the
ETA’s regional offices have met with evidence of its attempts to obtain employer’s recruitment efforts through
considerable success. Consequently, available U.S. workers, and/or the the SESA’s, for example, by decreasing
ETA is now turning its attention to employer has not submitted sufficient or eliminating the number of days
reducing the number of backlogged evidence that the wages and working which the job order and/or ad must be
cases in SESA’s. Instituting measures to conditions which the employer is run. The notice requirement at
reduce backlogs in SESA’s without first offering will not adversely affect the § 656.20(g) can be reduced partially, but
reducing backlogs in regional offices wages and working conditions of it cannot be eliminated, since it is based
would not have resulted in a reduction similarly employed U.S. workers. on a statutory requirement. See
in mean processing time, because it Immigration Act of 1990, Pub. L. 101–
would have merely resulted in transfers III. Department of Labor Regulations
649, sec. 122 (b) (Nov. 29 1990).
of backlogged applications from the The Department of Labor has The RIR provision may be utilized by
SESA’s to ETA’s regional offices. promulgated regulations, at 20 CFR part certifying officers when the labor market
On July 26, 2000, the Department 656, governing the labor certification has been adequately tested within 6
published a Proposed Rule in the process described above for the months prior to the filing of the
Federal Register soliciting comment on permanent employment of immigrant application and there is no expectation
the proposed amendment to the aliens in the United States. Part 656 was that full or partial compliance with the
permanent labor certification promulgated pursuant to section prescribed recruitment measures will
regulations. 212(a)(14) of the INA (now at section produce qualified and willing
II. Statutory Standard and 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A). applicants.
Implementing Regulations The regulations at 20 CFR part 656 set The emphasis on the use of RIR has
forth the fact-finding process designed worked well and has contributed
Before the Immigration and to develop information sufficient to significantly to ETA being able to
Naturalization Service (INS) may support the granting of a permanent manage its increasing case load with
approve petition requests and the labor certification. These regulations limited staff resources. Backlogs in both
Department of State may issue visas and describe the nationwide system of the regional offices and SESA’s would
admit certain immigrant aliens to work public employment service offices undoubtedly be substantially larger if
permanently in the United States, the available to assist employers in finding the use of RIR had not been encouraged
Secretary of Labor must first certify to available U.S. workers and how the fact- by GAL 1–97.
the Secretary of State and to the finding process is utilized by DOL as the ETA has concluded that backlogs in
Attorney General that: basis of information for the certification SESA’s could be substantially reduced if
(a) There are not sufficient United determination. See also 20 CFR parts employers are allowed to have
States workers, who are able, willing, 651 through 658, and the Wagner-Peyser applications that were not originally
qualified, and available at the time of Act (29 U.S.C. Chapter 4B). filed as RIR cases and which meet the
the application for a visa and admission Part 656 also sets forth the appropriate criteria removed from the
into the United States and at the place responsibilities of employers who desire SESA’s processing queues and
where the alien is to perform the work; to employ immigrant aliens processed as RIR cases. Furthermore,
and permanently in the United States. Such reducing or eliminating the backlogs
(b) The employment of the alien will employers are required to demonstrate would facilitate the implementation of a
not adversely affect the wages and that they have attempted to recruit U.S. new permanent employment
working conditions of similarly workers through advertising, through certification system that ETA has been
employed United States workers. [8 the Federal-State Employment Service developing.
U.S.C. 1182(a)(5)(A)]. System, and by other specified means. This regulatory change does not
If the Secretary, through ETA, The purpose is to assure that there is an change any of the substantive
determines that there are no able, adequate test of the availability of U.S. requirements for getting an RIR
willing, qualified, and available U.S. workers to perform the work, and to application certified nor does it
workers and that employment of the ensure that aliens are not employed materially diminish any of the
alien will not adversely affect the wages under conditions that would adversely protections afforded U.S. workers. It
and working conditions of similarly affect the wages and working conditions merely permits employers to request
employed U.S. workers, DOL so certifies of similarly employed U.S. workers. that applications filed under the basic
to the INS and to the Department of labor certification process be converted
State, by issuing a permanent alien labor IV. Reduction in Recruitment Requests to RIR processing without losing their
certification. On October 1, 1996, because of the original filing date. As explained in the
If DOL cannot make one or both of the increasing workloads, ETA issued Proposed Rule, the filing date is
above findings, the application for General Administrative Letter No. 1–97, important to employers because,
permanent alien employment Measures for Increasing Efficiency in the according to INS regulations, ‘‘[t]he
certification is denied. DOL may be Permanent Labor Certification Process priority date of any petition for
unable to make the two required (GAL 1–97). The GAL instituted a classification under section 203(b) of the

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40586 Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations

Act which is accompanied by an A. Timing of RIR Conversion Requests rewarded for some cases with
individual labor certification from the Eight commenters addressed issues permission to process the case as an RIR
Department of Labor shall be the date concerning the timing of an employer’s and considered grounds for inactivating
the request for certification was request for an RIR conversion and when other cases because the employer didn’t
accepted for processing by any office an application becomes ineligible for ask for an RIR conversion. Lastly, two
within the employment service system.’’ such a conversion. Of these eight other members of the general public
See 8 CFR 204.5(d). Currently, commenters, some simply requested stated their belief that RIR conversions
employers with cases in the queue clarification of the Department’s should be permitted even if recruitment
which could qualify for RIR processing position while several others under the basic process has been
are reluctant to make such requests recommended specific outcomes. The completed.
since, under current regulations, that proposed rule stated that: The Department has carefully
would result in a loss of their original considered the various options
filing date which, in turn, would result [The] amendment to the RIR regulation at 20
CFR 656.21(i) would allow an employer to
suggested by commenters and has
in a loss of the alien’s visa priority date. file a request to have an application filed on determined that the best result would be
This is a serious disincentive for many or before July 26, 2000, which has not been to adopt a bright-line test for a cutoff
employers where the alien beneficiary sent to the regional office, processed as a RIR date for RIR eligibility. The Department
comes from a country where the visa request under § 656.21(i), provided that believes that the use of such a standard
numbers are backlogged. Therefore, the recruitment has not been conducted pursuant will clear up the confusion that has
Department is taking this action to to §§ 656.21(f) and/or (g). been expressed by commenters.
permit qualified applications to be ACIP recommended that the rule Towards that end, this Final Rule
converted to RIR processing with no should be modified to permit provides that an employer may request
loss of filing date. conversion at any time prior to the time an RIR conversion up until the point
V. Analysis of Comments on the July 26, that results of recruitment must be that the SESA has placed the job order
2000 Proposed Rule submitted to the SESA and provided pursuant to § 656.21(f)(1). The date of
specific regulatory text as part of its the job order’s placement shall be
To obtain public input to assist in the comments that it asserts would achieve determinative in evaluating whether an
development of final regulations, the that result. Several commenters RIR conversion request may be granted
Department published a proposed rule questioned whether the RIR conversion by the certifying officer.
in the Federal Register on July 26, 2000, procedures will be available to As noted in the Proposed Rule, since
and invited public comment. In the employers that initially filed RIR the RIR procedures were designed to
development of this final rule the applications that were subsequently expedite processing by permitting
Department has carefully considered the remanded back to the State agency for employers to substitute recruiting
comments received in response to the lack of adequate advertising in order to conducted prior to filing the application
proposed rule. engage in the recruitment efforts for the recruiting required by § 656.21,
The proposed rule elicited 12 required under the basic labor it would be incongruous to entertain an
comments, including one from the certification process. Others questioned RIR request from an employer who had
American Immigration Lawyers whether applications that have been already commenced the mandated
Association (AILA), one from the forwarded to the Regional office prior to recruiting. The Department simply
American Council on International recruitment to resolve issues such as a cannot ignore any potential availability
Personnel, Inc. (ACIP), one from the challenge to the SESA prevailing wage of U.S. applicants and believes such
Federation for American Immigration determination are eligible for RIR applications should be approved or
Reform (FAIR), one from a SESA, and conversion. Two members of the general denied based upon those recruitment
eight from members of the general public requested clarification as to efforts.
public. AILA and ACIP generally whether the proposed amendment’s In response to commenters who
supported the Department’s proposal language limiting RIR conversion questioned whether RIR is still
and submitted comments that are eligibility to those applications for permitted where corrections are needed,
primarily procedural in nature. FAIR which ‘‘recruitment has not yet been the Department believes that
opposes implementation of the proposal conducted pursuant to paragraphs (f) applications may still be converted to
unless such implementation were to be and/or (g) of [§ 656.21]’’ refers to both RIR processing if changes are needed
coupled with what FAIR describes as the paragraph in section (f) concerning and the SESA so notifies the employer.
adequate worker protections. The SESA SESA requests for employers to make Consistent with GAL 1–97, the SESA
supports the Department’s efforts to corrections to applications prior to the should resolve any items that need to be
reduce case backlogs in SESA commencement of recruitment corrected prior to transmitting the
processing queues but does not believe activities, and the paragraph in section application to the certifying officer. GAL
that the proposal will have any (g) concerning print advertisements. 1–97 further provides that where there
significant effect towards that end. Of One member of the general public are deficiencies that would have
the eight members of the general public suggested that applications should be affected the recruitment, the SESA
submitting comments, two took a eligible for RIR conversion provided should advise the employer that it is
neutral position on the proposal but that they are submitted with adequate unlikely that the certifying officer will
recommended further clarification evidence of advertising prior to any approve the RIR and suggest that the
concerning precisely when an ‘‘significant correspondence’’ having employer continue to pursue its
application becomes ineligible for been sent by the SESA to the employer. application under the basic labor
conversion, and the other six were Another requested that, at the very least, certification process. However, the
generally supportive of the proposal but the regulation should say that RIR SESA should not use the fact that
requested that it be broadened to allow conversion is only permitted where corrections are necessary as a means to
an even larger number of applications to recruitment has not yet been requested thwart an employer’s legitimate efforts
qualify. These comments are discussed by the SESA, so that a failure to place to convert an application to the RIR
in further detail below. a timely advertisement would not be process.

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Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations 40587

Questions were also raised with responsible for administering the labor While the Department agrees with the
respect to applications that have been certification program. general thrust of AILA’s suggestions
forwarded to the regional office prior to regarding the procedures to be followed,
B. RIR Conversion Procedures
recruitment and whether they may also we do not believe it is prudent to put
be eligible for RIR conversion. As far as Eight commenters stressed a need for such explicit guidance in the
the Department can determine there is very clear guidelines that will specify regulations. Rather, this preamble will
a relatively small number of cases that the procedures to be followed with serve to clarify the Department’s intent.
are now in regional office queues for respect to RIR conversion requests by When a written request for conversion
which no recruiting has yet to occur. If employers, SESA’s, and regional offices. is received by the SESA, the request
the certifying officer remands such AILA suggested two potential letter and supporting documentation
procedures; one for situations in which will be added to the case file and the
applications back to State agencies for
amendments to the application are application will be removed from the
further processing, the final rule permits
necessary, and one for applications for regular labor certification application
RIR conversion requests provided that
which no amendments are required. queue and placed in the RIR queue. If
the application was initially filed prior ACIP suggested similar procedures that
to August 3, 2001. The Department, operating experience indicates that
differ only to the extent that they further guidance is needed ETA will
however, rejects AILA’s suggestion that presuppose the need for a new part A issue to the SESA’s and regional offices
the regulation be revised to allow RIR to of Form ETA 750. FAIR offered its view a policy directive outlining in further
be requested in these cases by filing that employers who convert detail the procedures to be followed in
conversion requests directly with the applications to RIR status should not be adjudicating such requests.
regional certifying officer. Section allowed to make any changes in the job In dealing with applications that do
656.21(i)(1) provides that the employer duties or requirements and suggested not require amendments, ETA envisions
shall file its written request for RIR that to do so would present yet another that the procedures will operate
processing at the appropriate Job opportunity to ‘‘game the system.’’ Four consistent with the preamble to the
Service office. The Proposed Rule did members of the general public requested proposed rule which stated:
not contemplate changing the basic that the Department process converted The proposed regulation also provides that
structure of the RIR processing RIR applications expeditiously since the for the request to have a previously filed
procedures which require that the priority dates of such cases are much application processed as an RIR request it
employer request for RIR processing be older than RIR applications currently must be accompanied by documentary
submitted to the SESA having being processed. evidence of good faith recruitment conducted
jurisdiction over the area of intended The Department agrees with the within the 6 months immediately preceding
employment. We believe that orderly majority of commenters that ETA must the date of the request.
processing dictates that all such offer clear guidelines to SESA’s and With respect to applications for which
requests be filed with the SESA, regional offices on how RIR conversion amendments are required, such as an
whether the request is submitted with requests are to be processed. The increase in the rate of pay offered or a
the application initially, or when Department does not, however, accept change of address, ETA has concluded
submitted to the SESA under the RIR ACIP’s blanket assumption that a new that amendments can be handled in the
conversion procedures set forth in this part A of Form ETA 750 will be required same fashion as they are currently
final rule. Lastly, the Department does in all situations where applications are handled by employers making the
not believe that there are a large enough converted to RIR processing as a result amendments directly on the form and
number of pre-recruitment cases in of this regulatory change. We also reject initialing the changes. To the extent
regional office queues for the FAIR’s suggestion that no amendments employers currently make their
amendment to have much of a beneficial to such applications be permitted. Many amendments by letter or by submitting
effect on State agency backlogs. There of these applications, especially those in a new application form, those
appears to be such a small number of high-volume SESA’s, have been in the procedures will continue to be followed.
applications that could conceivably queue for extended periods of time. In response to comments suggesting
benefit from the suggested amendment Therefore, it is to be expected that there that converted RIR applications be
that the Department does not believe may be a need to make changes to the processed expeditiously since the
such changes to the regulations job opportunity and/or increase the rate priority dates are older than RIR
governing RIR processing are warranted. of pay offered due to an increased applications currently being processed,
prevailing wage rate applicable to the GAL 1–97 provides that RIR
A member of the general public occupation and area or, in many cases, applications are to be given expedited
asserted that once the RIR conversion an increase in the employer’s own pay processing unless they contain
procedures have been implemented scale. With respect to changes in the deficiencies. However, converted RIR
there will be employers requesting State content of labor certification applications will not be processed any
agencies to hold up advertising on an applications, the Department did not differently than applications that were
application until the employer has had intend in offering the proposed initially filed under the RIR provisions
adequate time to conduct the amendment to change the long standing of the regulations. Such applications
recruitment activities and/or to gather procedures for handling such requests. will continue to be processed by
evidence that will support a future RIR If the duties and requirements of the job regional offices along with other RIR
conversion request. We are mindful of offer are changed to such an extent that requests in the order in which they are
this possibility. We are also concerned it becomes a new job opportunity, the received.
about the administrative complexities of application would need to be refiled Finally, ACIP recommended that the
keeping track of such cases. On the with the State agency as a new final rule include a requirement that the
other hand, it is our objective to use RIR application. However, minor changes agency notify the petitioner within a
processing to the maximum extent such as an increased wage offer or reasonable period of time after filing for
possible. Therefore, the Department slightly different job duties are conversion on whether the labor
intends to explore this issue with the permitted as long as it remains certification application has, in fact,
regional certifying officers and SESA’s essentially the same job opportunity. been converted to RIR processing. The

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40588 Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations

Department does not believe it is that adopting the date of publication of end, FAIR suggests that, should the
appropriate that any special rules be this final rule as the cutoff date, as Department decide that the RIR
implemented regarding notification opposed to the date the proposed rule conversion proposal must go forward
with respect to RIR conversion was published, will better serve the despite its opposition, it should include
determinations. Furthermore, generally interests of the regulated community by seven specific U.S. worker protections
all requests for conversion to RIR expanding the pool of eligible that it recommended in its comments on
processing will be granted. Only where applications without materially the proposed amendment.
the occupation listed in the application diminishing significant protections The Department views the majority of
is on Schedule B, or the request is not afforded U.S. workers. Moreover, as FAIR’s comments and suggestions as
timely, would the employer request for noted by AILA, adopting as the cutoff general objections to the operation of
conversion to RIR processing be denied. the date of publication of this final rule the RIR provisions contained in the
The Department agrees that notification will just as readily prevent the filing of regulations governing the permanent
of action on a particular application large numbers of inadequately prepared labor certification program. Neither the
should be provided in the normal applications. Accordingly, this final rule proposed rule nor this final rule are or
course of business but we reject the provides that the option to request that were designed to alter the general
suggestion to place a time limit in the a permanent labor certification procedures applicable to the
regulation. Processing cases under the application be converted to RIR adjudication of RIR applications. At this
RIR procedures is virtually always processing applies only to applications time, the Department is not entertaining
accomplished in considerably less time that were initially filed on or before comments that apply to RIR processing
than processing cases under the non-RIR August 3, 2001. generally as such comments are not
basic process. within the scope of this rulemaking.
D. Justification for Regulatory Change The Department also does not believe
C. Initial Filing Date Eligibility One commenter, FAIR, strongly the proposed amendment in any way
AILA suggested that the cutoff date asserted that the Department did not conflicts with the statutory provisions
for RIR conversion eligibility should be have the authority to rely on ‘‘efficiency governing the permanent labor
revised to occur on the date a final or in processing’’ as a permissible basis to certification program. The RIR
interim final rule is published. In the impose what it calls ‘‘sweeping changes provisions have been in the
Proposed Rule, the Department stated to the permanent alien labor Department’s regulations in one form or
that the proposed regulation would certification program implicit in the another since 1977, and in their present
allow employers to request that a proposed regulation.’’ FAIR states that form since 1981. The proposed
permanent labor certification the changes conflict with the plain amendment is simply a housekeeping
application be processed as an RIR meaning of 8 U.S.C. 1182(a)(5)(A), the rule to permit otherwise eligible
request only if the initial application statutory provisions that form the basis applications to be processed as RIR
was filed on or before July 26, 2000, the for the permanent labor certification applications even though they do not
date of publication. As stated in the program. Further, FAIR avers that past meet the current procedural
proposed rule, ETA’s operating cutbacks in federal funding for requirement that the recruitment must
experience indicates that without such administration of the alien labor have been conducted prior to filing the
a limitation, employers may be certification program are not a rational application. Every application for which
motivated to file large numbers of cases, basis for the proposed regulation and RIR conversion will occur as a result of
many of which may be inadequately that pending labor certification this rule could always have been
prepared, simply to obtain a filing date applications are already at acceptable withdrawn by the employer and re-filed
and then convert such cases to RIR levels and continue to decline. FAIR as an RIR application. This rule merely
processing. This outcome would also contended that reports of an permits such employers to convert their
undermine the primary purposes of the increased incidence of suspect cases to RIR processing without the
proposed regulatory revision to reduce applications support a limitation of RIR need to withdraw the existing
backlogs of existing cases in State and RIR conversion to routine, fully- application filed under the basic
agency processing queues and to compliant, applications, and that process. In so doing, the proposed
facilitate the orderly transition to a new applications filed under the provisions amendment would permit an employer
streamlined labor certification system. of § 245(i) 1 of the INA are inherently to convert to RIR processing while at the
In its comments, AILA said that, suspect and should not benefit from same time allowing them to retain their
while it understood the Department’s relaxed scrutiny under RIR processing. original filing date. After converting an
desire to avoid an onslaught of filings in FAIR generally opposes the conversion application to RIR processing as a result
anticipation of the regulation, it felt that of alien labor certification applications of this final rule, the employer will still
the problem could as readily be avoided to RIR status unless adequate worker have to meet all of the long-standing
by using the publication date of the final protections are included. Toward that regulatory criteria applicable to RIR
or interim final regulation. AILA further requests and ETA policy directives
asserted that the later date would 1 Section 245(i) of the Immigration and
issued thereunder, such as GAL 1–97.
provide no lead time to file applications Nationality Act allowed individuals who entered With respect to FAIR’s comments that
the United States legally, and otherwise qualified
under old procedures to take advantage for permanent resident status, to complete
pending alien labor certification
of new procedures, but would enable processing for their green cards in the United applications are already at acceptable
the Department to consider as many States, whether or not they violated their status or levels and continue to decline, the
cases as possible in this new, efficiency- overstayed a temporary visa, by paying a fee of Department simply cannot agree. The
$1,000. After months of debate over whether to
improving, procedure. extend or terminate Section 245(i), Congress
number of labor certification
The Department agrees with AILA’s compromised on a provision that allowed applications in State agency processing
comments. While we continue to individuals to apply for permanent residence queues still remains unacceptably high
believe that the regulation must contain within the United States under the section so long and the time it takes to process them
as an application for an alien labor certification was
some time limitation with respect to filed on the individual’s behalf by January 14, 1998.
remains unacceptably long. Any backlog
which applications are eligible for This provision was recently reenacted to extend of applications, regardless of the level,
conversion to RIR processing, we agree through April 30, 2001. stands to hinder the smooth transition

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Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations 40589

to the new, more streamlined, without any direct bearing on the for permanent employment in the
permanent labor certification program. proposed amendment, and as such, fall United States. The Department of Labor
Further, as we work to transition to the outside the scope of this rulemaking. has notified the Chief Counsel for
new system, SESA’s simply must clear ACIP firmly stated that the final Advocacy, Small Business
up their existing backlog of applications promulgation of this regulation should Administration, and made the
in their entirety for, under the new in no way disrupt or delay processing of certification pursuant to the Regulatory
system, SESA’s will no longer be funded traditionally filed labor certification Flexibility Act at 5 U.S.C. 605(b), that
for processing such applications. applications that are not converted to the rule will not have a significant
FAIR also contends that applications RIR processing. The SESA economic impact on a substantial
initially filed under Section 245(i) of the recommended that to reduce ongoing number of small entities.
INA are inherently suspect and should and future backlogs and speed up the
not benefit from relaxed scrutiny under application process, the Department Unfunded Mandates Reform Act of
the RIR provisions of the regulations. should propose an amendment to the 1995
The Department believes that no list of Schedule A occupations to This rule will not result in the
specific application, nor any specific include others for which there exists a expenditure by State, local and tribal
occupation, is inherently deserving of short supply of U.S. workers. governments, in the aggregate, or by the
favorable treatment on requests to grant Specifically, they suggested that private sector, of $100 million or more
an RIR. Similarly, no application or electrical and electronic engineers, in any 1 year, and it will not
occupation is inherently ineligible, with software engineers, computer significantly or uniquely affect small
the exception of those occupations programmers, systems analysts, and governments. Therefore, no actions are
listed on Schedule B, which are foreign specialty cooks, be added to the deemed necessary under the provisions
specifically precluded from Schedule A list of occupations. of the Unfunded Mandates Reform Act
consideration under RIR processing In response to ACIP’s concerns of 1995.
procedures by § 656.21(i) of the regarding the impact of the proposed
regulations governing the permanent amendment on processing times for Small Business Regulatory Enforcement
labor certification program. Moreover, labor certification applications filed Fairness Act of 1996
there simply is no readily identifiable under the basic process, administrative This final rule is not a major rule as
means to determine those applications decisions as to how resources are defined by section 804 of the Small
that have been filed on behalf of allocated are outside the scope of this Business Regulatory Enforcement Act of
beneficiaries who will seek at some rulemaking. However, ETA anticipates 1996. It will not result in an annual
future date to exercise their grand- that State agencies and regional offices effect on the economy of $100 million
fathered benefits under section 245(i) of will continue to process both RIR and or more; a major increase in costs or
the INA. Just because an application non-RIR cases simultaneously. Backlogs prices; or significant adverse effects on
may have been filed on or before have been declining for both classes of competition, employment, investment,
January 14, 1998, the original cutoff date cases. The SESA’s suggestion to put productivity, innovation, or on the
for eligibility under section 245(i), is by additional occupations on the Schedule ability of United States-based
no means determinative in evaluating A list is also outside the scope of this companies to compete with foreign-
whether a particular alien beneficiary rulemaking. As noted above, the based companies in domestic and
actually intends to exercise their rights proposed amendment is simply a export markets.
under that section. Further, GAL 1–97 housekeeping rule to permit otherwise
makes clear that to be eligible for RIR eligible applications to be processed as Executive Order 13132
processing, the application cannot RIR applications even though they do This final rule will not have a
contain deficiencies such as unduly not meet the current procedural substantial direct effects on the States,
restrictive job requirements. requirement that the recruitment must
One additional comment concerning on the relationship between the
have been conducted prior to filing the National Government and the States, or
the general justification for the application.
regulatory change was submitted by the on the distribution of power and
SESA, in which they observed that Executive Order 12866 responsibilities among the various
reducing the backlog is not simply a levels of government. Therefore, in
The Department has determined that
matter of allowing RIR processing. They accordance with Executive Order 13132,
this Final Rule is not an ‘‘economically
are of the belief that many of the it is determined that this rule does not
significant regulatory action’’ within the
applications in the queue require have sufficient federalism implications
meaning of Executive Order 12866, in
additional handling to resolve issues to warrant the preparation of a summary
that it will not have an economic effect
prior to beginning recruitment or being impact statement.
on the economy of $100 million or more
forwarded to the regional office for or adversely affect in a material way the Assessment of Federal Regulations and
certification. The Department is aware economy, a sector of the economy, Policies on Families
that this regulatory change is not a productivity, competition, jobs, the
panacea and that some level of This final rule does not affect family
environment, public health or safety, or
backlogged applications will continue to well-being.
State, local or tribal governments or
exist. The Department agrees that a communities. Paperwork Reduction Act
number of applications in State agency While it is not economically
processing queues contain deficiencies significant, the Office of Management The rule does not modify the existing
and are thus inappropriate for an RIR and Budget reviewed the final rule collection of information requirements
conversion. because of the novel legal and policy in 20 CFR 656.21.
issues raised by this rulemaking. Catalogue of Federal Domestic
E. Other Issues
Regulatory Flexibility Act Assistance Number
Some commenters addressed other
issues that arise under the permanent This final rule only affects those This program is listed in the Catalogue of
labor certification program in general employers seeking immigrant workers Federal Domestic Assistance at Number

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40590 Federal Register / Vol. 66, No. 150 / Friday, August 3, 2001 / Rules and Regulations

17.203, ‘‘Certification for Immigrant SUMMARY: This document contains Regulations, except that the temporary
Workers.’’ temporary regulations relating to regulations reserve section 1.355–7(e)(6)
recognition of gain on certain (suspending the running of any time
List of Subjects in 20 CFR 656 distributions of stock or securities of a period prescribed in the Proposed
Administrative practice and controlled corporation in connection Regulations during which there is a
procedure, Aliens, Crewmembers, with an acquisition. Changes to the substantial diminution of risk of loss
Employment, Employment and training, applicable law were made by the under the principles of section
Enforcement, Fraud, Guam, Taxpayer Relief Act of 1997. These 355(d)(6)(B)) and Example 7 of the
Immigration, Labor, Longshore work, temporary regulations affect Proposed Regulations (interpreting the
Unemployment, Wages and working corporations and are necessary to term ‘‘similar acquisition’’ in the
conditions. provide them with guidance needed to context of a situation involving multiple
comply with these changes. acquisitions).
Final Rule
EFFECTIVE DATES: These temporary The IRS and Treasury continue to
Accordingly, part 656 of chapter V of regulations are effective August 3, 2001. study all of the comments received
title 20 of the Code of Federal FOR FURTHER INFORMATION CONTACT: regarding the Proposed Regulations. The
Regulations is amended as follows: Megan R. Fitzsimmons of the Office of IRS and Treasury will continue to
Associate Chief Counsel (Corporate), devote significant resources to analyzing
PART 656—[AMENDED] the comments and, in the near future,
(202) 622–7790 (not a toll-free number).
1. The authority citations for Part 656 expect to issue additional guidance
SUPPLEMENTARY INFORMATION:
is revised to read as follows: regarding the interpretation of the
Background phrase ‘‘plan (or series of related
Authority: 8 U.S.C. 1182(a)(5)(A) and
1182(p); 29 U.S.C. 49 et seq.; sec.122, Pub. L. On January 2, 2001, the IRS and transactions).’’
101–649, 109 Stat. 4978. Treasury published in the Federal Special Analyses
Register (REG–107566–00, 66 FR 66;
§ 656.21 [Amended] (2001–3 I.R.B. 346)) a notice of proposed It has been determined that these
2. Section 656.21 is amended by rulemaking (the Proposed Regulations) temporary regulations are not a
adding a new paragraph (i)(6), to read as under section 355(e) of the Internal significant regulatory action as defined
follows: Revenue Code of 1986. Section 355(e) in Executive Order 12866. Therefore, a
provides that the stock of a controlled regulatory assessment is not required. It
§ 656.21 Basic labor certification process. has also been determined that section
corporation will not be qualified
* * * * * property under section 355(c)(2) or 553(b) of the Administrative Procedure
(i) * * * 361(c)(2) if the stock is distributed as Act (5 U.S.C. chapter 5) does not apply
(6) Notwithstanding the provisions of to these temporary regulations, and,
‘‘part of a plan (or series of related
paragraph (i)(1)(i) of this section, an because the temporary regulations do
transactions) pursuant to which 1 or
employer may file a request with the not impose a collection of information
more persons acquire directly or
SESA to have any application filed on on small entities, the Regulatory
indirectly stock representing a 50-
or before August 3, 2001, processed as Flexibility Act (5 U.S.C. chapter 6) does
percent or greater interest in the
a reduction in recruitment request not apply. Pursuant to section 7805(f) of
distributing corporation or any
under this paragraph (i), provided that the Internal Revenue Code, these
controlled corporation.’’
recruitment efforts have not been The Proposed Regulations provide temporary regulations will be submitted
commenced pursuant to paragraph guidance concerning the interpretation to the Chief Counsel for Advocacy of the
656.21(f)(1) of this section. of the phrase ‘‘plan (or series of related Small Business Administration for
* * * * * transactions).’’ The Proposed comment on its impact on small
Signed at Washington, DC, this 30th day of Regulations generally provide that business.
July, 2001. whether a distribution and an Drafting Information
Raymond J. Uhalde, acquisition are part of a plan is
The principal author of these
Deputy Assistant Secretary. determined based on all the facts and
temporary regulations is Brendan P.
[FR Doc. 01–19465 Filed 8–2–01; 8:45 am] circumstances. They also set forth six
O’Hara, Office of the Associate Chief
BILLING CODE 4510–30–P safe harbors, the satisfaction of which
Counsel (Corporate). However, other
would confirm that a distribution and
personnel from the Department of the
an acquisition are not part of a plan.
A public hearing regarding the Treasury and the IRS participated in
DEPARTMENT OF THE TREASURY their development.
Proposed Regulations was held on May
Internal Revenue Service 15, 2001. In addition, written comments List of Subjects in 26 CFR Part 1
were received. A number of
Income taxes, Reporting and
26 CFR Part 1 commentators have indicated that the
recordkeeping requirements.
lack of guidance under section 355(e) is
[TD 8960] hindering the ability to undertake Adoption of Amendments to the
RIN 1545–BA01 acquisitions and divestitures. These Regulations
commentators have requested that the
Guidance Under Section 355(e); IRS and Treasury provide immediate Accordingly, 26 CFR part 1 is
Recognition of Gain on Certain guidance pending the finalization of amended as follows:
Distributions of Stock or Securities in those regulations. In response to these
Connection With an Acquisition PART 1—INCOME TAXES
requests, the IRS and Treasury are
AGENCY: Internal Revenue Service (IRS), promulgating the Proposed Regulations Paragraph 1. The authority citation
Treasury. as temporary regulations in this for part 1 is amended by adding an entry
Treasury Decision. The temporary in numerical order to read in part as
ACTION: Temporary regulations.
regulations are identical to the Proposed follows:

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