individuals to SAW status after the beginning of FY 1990, the additional SAWS will be added to the starting number used for FY 1990 and the entire calculation will be redone prior to the end of each fiscal quarter based upon the larger “starting number”), minus (2) the number of SAWS, including RAWs, who performed SAS during FY 1990 as estimated by the Director adjusted to reflect any change in the number of H-2A workers admitted to perform SAS.

(f) For FY 1992 and 1993, the annual numerical limitation is: (1) 90 percent of the number determined in accordance with step 1 for the prior FY (that is, for FY 1992, 90 percent of 90 percent of 95 percent of the starting number, except, in the event that INS continues to adjust individuals to SAW status after the beginning of FY 1991, the additional SAWS will again be added to the original "starting number" and the entire calculation be redone prior to the end of each fiscal quarter. Similarly, for FY 1993, if INS continues to adjust individuals to SAW status after the beginning of FY 1992, the additional SAWS will be added to the "starting number" and the entire calculation redone prior to the end of each fiscal quarter by taking 90 percent of 90 percent of 90 percent of 95 percent of the starting number), minus (2) the number of SAWS, including RAWS, who performed SAS during the prior FY, adjusted to reflect any change in the number of H-2A workers admitted to perform SAS.

(g) The Secretaries will also recalculate the annual numerical limitation pursuant to the procedure set forth in paragraph (e) or (f) of this section, as appropriate, to incorporate the latest available information from INS and the Director, if the Secretaries grant an increase in the shortage number under § 1e.20 of this part and the annual numerical limitation is lower than the resulting shortage number.

(h) Once INS and the Director advise the Secretaries that all applications for SAW status have been finally adjudicated, the annual numerical limitation will be determined once for each subsequent FY, prior to the end

(a) Although under the INA it is the responsibility of the Secretaries to determine the shortage number, that duty requires the cooperation and input of DOL, USDA, INS, and the Director. INS has the data and the authority needed to identify SAWS and RAWS from among all reportable workers for whom data is submitted on the ESA-92 forms, based upon their alien registration numbers. The Director is responsible for determination of the work-day per worker factor, which is the denominator in the overall formula to be used by the Secretaries.

ed supply of labor required by § 1e.6(a) of this part, except that relating to the economic competitiveness of the perishable agricultural industry, which is monitored by USDA. DOL will collect these data through a fouryear series of farmworker surveys (OMB approval number 1225-0044) and surveys among the rural unemployed (OMB approval number 12250048) to develop information for estimating changes in the labor supply. DOL will also use additional information from the ESA-92 forms which employers of reportable workers in SAS must submit to the Committee for Employment Information on Special Agricultural Workers. The surveys will be limited to employment and potential employment within SAS, as defined by the Secretary of Agriculture in regulations located at 7 CFR part 1d.

§ 1e.13 Director, Bureau of the Census, to determine the work-day per worker factor.

(a) For FY 1990, the work-day per worker factor is the average number, as estimated by the Director pursuant to le.7 of this part, of work-days of SAS performed by SAWS in the United States at any time in FY 1989.

(1) However, if the Director determines that the information reported by employers using the ESA-92 form is not adequate to make a reasonable estimate of the average number, and the inadequacy is not due to the refusal or failure of employers to report the required information, the factor for FY 1990 is 90.

(2) If the Director determines that the information is inadequate because employers refused or failed to report the required information, the Director, in consultation with the Secretaries, shall use any information available and set the value of the work-day per worker factor.

(b) For FY 1991, the factor is the average number, as estimated by the Director pursuant to § 1e.7 of this part, of work-days of SAS performed in the United States by RAWs during FY 1990. RAWs are a specific subset of SAWS, who may enter the United States beginning with FY 1990 as RAWS. See § 1e.2 of this part. If no RAWS are admitted or have their

status adjusted during FY 1990, or if so few RAWS are admitted or have their status adjusted as to provide insufficient observations for reliability, or if RAWs are admitted or have their status adjusted so late in a FY as to render their work experience inappropriate as a measure for estimating future work force needs, the Director will use the procedures in paragraph (a)(1) or (a)(2) of this section to determine the factor for FY 1991.

(c) For FY 1992, the factor is the average number, as estimated by the Director pursuant to § 1e.7 of this part, of work-days of SAS performed in the United States in each of the two previous FY's (1990 and 1991) by RAWS who obtained lawful temporary resident alien status during either of those years. If no RAWs are admitted or have their status adjusted during FY 1990 and FY 1991, or if so few RAWS are admitted or have their status adjusted as to provide insufficient observations for reliability, or if RAWS are admitted or have their status adjusted so late in a FY as to render their work experience inappropriate as a measure for estimating future work force needs, the Director will use the procedures in paragraph (a)(1) or (a)(2) of this section to determine the factor for FY 1992.

(d) For FY 1993, the factor is the average number, as estimated by the Director pursuant to § 1e.7 of this part, of work-days of SAS performed in the United States in each of the two previous FY's (1991 and 1992) by RAWS who obtained lawful temporary resident alien status during either of those years. If no RAWS are admitted or have their status adjusted during FY 1991 and 1992, or if so few RAWS are admitted or have their status adjusted as to provide insufficient observations for reliability, or if RAWS are admitted or have their status adjusted so late in a FY as to render their work experience inappropriate as a measure for estimating future work force needs, the average number of workdays worked by RAWS who obtained lawful temporary resident alien status during FY 1990 will be the factor. If no RAWS are admitted during FY 1990, FY 1991, and FY 1992, the Director will use the procedures in para

graph (a)(1) or (a)(2) of this section to determine the factor for FY 1993.

§ 1e.14 Secretaries of Agriculture and Labor, joint determination of the shortage number.

(a) Section 210(A) of the INA requires that before the beginning of each FY, starting with FY 1990 and ending with FY 1993, the Secretaries shall determine jointly the shortage number. The shortage number is the number (if any) of additional aliens (RAWS) who should be admitted to the United States or should otherwise acquire the status of aliens lawfully admitted for temporary residence under section 210A of the INA to meet a shortage of workers to perform SAS in a given FY. The Secretaries will announce their determination by the publication of a notice in the FEDERAL REGISTER.

(b) No later than September 1, prior to the FY under consideration, the Director shall provide the Secretaries with the estimate of the Director of the number of SAWS who performed SAS during the FY, and the determination of the Director of the work-day per worker factor.

(c) No later than September 1, prior to the FY under consideration, staff from the USDA and DOL offices identified in § 1e.20(d) of this part shall exchange estimates prepared in accordance with §§ 1e.5 and 1e.6 of this part, to facilitate review and determination of the shortage number.

(d) In order to meet the statutory deadline for issuing the shortage number determination and the annual numerical limitation, the Departments will, where appropriate, collect and use data through the third fiscal quarter of each FY, then add to it data received from the fourth quarter of the prior FY. However, certain data will not be available for the fourth quarter of FY 1988, because the reporting systems were not in effect. As a result, data from the first three quarters of FY 1989 may, if appropriate, be used in the initial determination for FY 1990. Also, information concerning the number of aliens adjusted to SAW status will be the most up-to-date numbers provided by INS and the Di

rector prior to the issuance of the annual numerical limitation.

(e) There shall be no administrative appeal of the determination of the Secretaries of the shortage number, except as set forth in §§ le.20 and 1e.30 of this part.

Subpart C-Emergency Procedure for Increase in Shortage Number

§ 1e.20 Request by group or association representing employers.

(a) After the beginning of a FY in which RAWs may be admitted (1990 through 1993), a group or association of employers, or potential employers, of individuals who perform SAS may request the Secretaries to increase the shortage number for the FY. This may mean that the Secretaries set a shortage number in the event that they initially determined that the shortage number was zero for the FY under consideration. It is anticipated that this provision would apply in cases of an unanticipated bumper crop, a significant change in weather conditions or cropping patterns, or other significant changes that could not have been reasonably predicted or accounted for in the original determination of the shortage number for a FY.

(b) The request must show that extraordinary, unusual, and unforeseen circumstances have resulted in a significant shortage of workers to perform SAS due to

(1) A significant increase in the need for SAWS in the FY, or

(2) A significant decrease in the availability of able, willing, and qualified workers to perform SAS, or

(3) A significant decrease, below the work-day per worker factor applicable to the FY, in the number of work-days as SAS performed by recently admitted or adjusted RAWS (meaning those RAWS admitted or adjusted during the last 5 fiscal quarters or such longer period as the Director determines is necessary to include sufficient numbers of RAWS for a statistically reliable estimate, for whom there exist at least 2 full fiscal quarters of reported work-days).

(c) To meet their initial burden, the requesters must demonstrate that as a result of extraordinary, unusual, and unforeseen circumstances, there is a significant shortage in the region of the requesters, of the labor needed to avoid crop damage or other loss, and that there is an insufficient supply of able, willing, and qualified workers in the region(s) of traditional and expected labor supply for the location and crop(s) of the requesters who are available to work in the region of the requesters. They must show that the labor needed to avoid crop damage or other loss is significantly greater than the availability in those regions of able, willing, qualified, and unemployed SAWS, rural low skill or manual laborers, and domestic agricultural workers. Requesters also must show any recruitment efforts they have undertaken, including information as to whether they recruited in the region or regions of traditional and expected labor supply for the location and crop(s) of the requesters, offering wages, working conditions, and other terms of employment, including, but not limited to, housing, transportation, meals, and subsistence, comparable to or better than those provided generally in the same or comparable occupations and crops in the labor market area, and that the normal qualifications for such occupations and crops were applied. Requesters may also show the recruitment efforts undertaken by others.

(d) The request must be in writing and must be submitted to either the Secretary of Labor, Attention: Assistant Secretary for Policy, 200 Constitution Ave., NW., Washington, DC 20210, or the Secretary of Agriculture, Attention: Assistant Secretary for Economics, Fourteenth St. and Independence Ave., SW., Washington, DC 20250-0100. For purposes of the time periods specified below, the date the request is received by either Secretary will mark the beginning of the time periods.

(e) Not later than 3 business days (days when the Federal offices involved are open for normal business) after the request is received, the Secretaries shall provide for notice in the FEDERAL REGISTER of the substance of

the request and shall provide the opportunity for interested parties to submit information to the Secretaries on a timely basis (received by the Secretaries within 10 calendar days of publication of the notice). The Secretaries shall also provide notice of any designation of an agent to receive information regarding availability of workers pursuant to paragraph (d) of this section, and shall set a date by which information regarding enhanced recruitment efforts must be received.

(f) Not later than 21 calendar days after receipt of the request, and after consideration of any information submitted on a timely basis with respect to the request, the Secretaries shall make their determination on the request and provide for notice in the FEDERAL REGISTER. The request shall be granted and the shortage number for the FY increased if and to the extent that the Secretaries determine that such an increase is justified based upon the showing and circumstances described above in paragraph (b) of this section, taking into account reasonable recruitment efforts having been undertaken in the traditional and expected areas of supply of such workers for the location and crops of the requesters.

(g)(1) Requesters at their option may designate an agent to be notified of the availability of workers within and outside of traditional and expected areas of labor supply. Persons with knowledge of able, willing, and qualified workers available to work in the region of the requesters should provide specific written information regarding such workers to the Secretaries as soon as possible. If such information is received, the Secretaries will advise the designated agent on a daily basis of the reports received so that further recruitment may be conducted. In addition, the Secretaries will consider requests by representatives of other groups of interested persons for notification on the same basis as the designated agent of the requesters, and will provide such notice if the requests are limited to a reasonable number.

(2) Requesters have no obligation to pursue the enhanced recruitment ef

forts set forth above in (g)(1) of this section. However, if such efforts are undertaken, they will be considered to be significant in determining the availability of workers. Thus, to the degree that available workers are located, the number of additional SAS workers needed will be reduced or eliminated. However, if workers fail to respond to such enhanced recruitment efforts, the Secretaries may consider such efforts to be significant evidence that workers are not in fact available in that area. If this enhanced recruitment is not undertaken, the Secretaries will make their determination based upon the available information.

(h) Groups or associations representing employers or potential employers who have reason to believe that they may request an emergency increase in the shortage number may provide the Secretaries with early notification of the potential labor shortages and may designate an agent to receive information regarding the location of available workers. If such advance notice is received, the Secretaries will publish a notice thereof in the FEDERAL REGISTER So that the procedures set forth in paragraph (d) of this section may be undertaken in advance of any request for an emergency increase.

(i) In making the determination under the emergency procedures, the Secretaries have determined that job vacancies that result from strikes, or other labor disputes involving a work stoppage, or a lockout, will not be regarded as labor shortages. The Secretaries will subtract from any determination to increase the shortage number, the specific verified number of jobs that are vacant because of a strike, or other labor dispute involving a work stoppage, or lockout.

(j) In making their determination, the Secretaries may use any available information, including available data from the State Employment Service Agencies and the United States Employment Service, to examine the validity of the information submitted by interested parties.

(k) There shall be no administrative appeal of the decision of the Secretaries regarding a particular request for an increase in the shortage number, which shall be the final agency action.

(Information collection requirements in paragraph (d) were approved by the Office of Management and Budget under control number 1225-0050)

[55 FR 117, Jan. 2, 1990, as amended at 55 FR 14232, Apr. 17, 1990]

Subpart D-Procedure for Decreasing the Work-day Requirement

§ 1e.30 Request by group of special agricultural workers.

(a) After the beginning of a FY in which RAWS may be admitted (FY 1990 through FY 1993) and no later than 90 days after the end of the FY, a group of such workers may request that the Secretaries decrease the number of work-days required under section 210A(d)(5) (A) and (B) of the INA. Subparagraph (A) of section 210A(d)(5) requires that RAWS perform SAS for at least 90 work-days in each of the first three years after the alien obtained the status of an alien lawfully admitted for temporary residence, in order to avoid deportation. Subparagraph (B) of section

210A(d)(5) provides that such an alien may not be naturalized unless that alien has worked at least 90 work-days in SAS in each of five years after obtaining the status of an alien lawfully admitted for temporary residence.

(b) The requester must show that extraordinary, unusual, and unforeseen circumstances have resulted in a significant decrease in the shortage number with respect to that FY due to

(1) A significant decrease in the need for SAWS in the FY, or

(2) A significant increase in the availability of able, willing, and qualified workers to perform SAS, or

(3) A significant increase, above the work-day per worker factor applicable to the FY, in the number of man-days of SAS performed by recently admitted or adjusted RAWs (those RAWS admitted or adjusted during the last 5 fiscal quarters or such longer period, as determined by the Director, necessary to include sufficient numbers of RAWS for a statistically reliable estimate, for whom there exist at least two full fiscal quarters of reported work-days).