Thursday, November 19, 2009

DHS interim rule deficient for many reasons-Willens

DHS interim rule deficient for many reasons-Willens

Friday, November 20, 2009
By Ferdie de la Torre

The U.S. Department of Homeland Security should not implement the interim rule on the CNMI-Transitional Worker Classification on Nov. 28, 2009, as it is deficient for many reasons, according to Gov. Benigno R. Fitial's special legal counsel, Howard P. Willens.

In the CNMI's comments on the interim rule, Willens said the rule fails to implement the statutory requirement that the DHS Secretary establish and enforce a transitional work permit system in the CNMI that provides for allocation and a reduction in the number of foreign workers to zero by Dec. 31, 2014.

Willens said DHS failed to conduct an economic impact analysis of the proposed regulations, as required by Executive Order 12866 and the Regulatory Flexibility Act of 1980.

He added that the rule fails to implement the statutory goals of minimizing harm to the CNMI, protecting and increasing job opportunities for U.S. citizens; and fostering the expansion of tourism and economic development.

“We believe that DHS has an obligation under the Administrative Procedure Act to review all the comments submitted in this rule-making proceeding and amend its proposed regulations so that they comply with the requirements of Public Law 110-229 (federalization law) and will not cause the serious injury to the Commonwealth people and economy that will otherwise result,” he said.

Willens said the rule describes no system for how the permits are to be divided among employers.

“In view of the law's mandated reduction in the number of permits to zero within five years, there can be no question but that DHS will be required to confront the need to allocate permits among CNMI employers whose collective demand for foreign workers is greater than the available number of permits during the next year,” he said.

The proposed regulations, he noted, do not even identify the criteria that might be used in making critical distinctions among employers competing for foreign workers.

Second, Willens said, the proposed rules do not identify any procedure for reducing the number of the permits to zero by the end of the transition period.

Based on data supplied by the Commonwealth in August 2008, Willens said, the rule indicates that 19,083 foreign workers are in the CNMI and concludes that about 14,543 of these workers (13,543 in-status and 1,000 out-of-status) “will be granted CW status in 2009.”

“With these figures at hand, DHS certainly had sufficient data to consider the alternative means of reducing the number of foreign workers during the transition period as required by the law,” he said.

The counsel said DHS' failure to comply with the law imposes additional burdens and uncertainty on CNMI citizens.

He said the CNMI economy is composed almost entirely of small businesses, many with less than five employees and only a handful with more than 50 employees.

“Without some clear indication of DHS' intentions with respect to the allocation and reduction of the available permits for foreign workers, all participants in the economy suffer,” Willens said.

He said the proposed rule will also hurt the Commonwealth's “very successful efforts” to stop human trafficking under its 2007 labor reform law.

“The federal rule lacks safeguards to ensure that women coming to the Commonwealth possess the necessary skills in their intended occupation; it has no procedures for checking credentials or an orientation at the airport before entry; and provides no available employment history records that could flag likely abuses and previous infractions by employers before a permit is granted,” he said.

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