[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Proposed Rules]
[Pages 30419-30423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14785]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1769-96]
RIN 1115-AE-38


Petitioning Requirements for the H Nonimmigrant Classification

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service's (Service) regulations to accommodate the needs of certain 
United States employers with respect to the filing of new and amended 
petitions for H-1B nonimmigrant workers. This rule was written in 
response to a number of complaints received from certain industries 
which asserted that the current H regulations contain requirements with 
which some U.S. employers cannot comply. In addition, the current 
regulations contain certain procedures which are burdensome to both the 
Service and to the public. Specifically, this rule proposes to amend 
the Service's regulation with regard to the submission of itineraries 
with certain H-1B petitions and to amend the Service's regulations 
regarding the H-1B classification by allowing petitioners to obtain and 
submit the required certified labor condition application after the 
petition is initially filed with the Service, but before the petition 
is adjudicated. Finally, this rule proposes to amend the Service's 
regulation regarding the revocation of approved H petitions where the 
beneficiary is no longer employed by the petitioner. This rule will 
make the H-1B nonimmigrant classification easier for certain U.S. 
employers to use and will make the requirements for the H-1B 
nonimmigrant classification more consistent with the practices of the 
business world.

DATES: Written comments must be submitted on or before August 3, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure 
proper handling, please reference the INS number 1769-96 on your 
correspondence. Comments are available for public inspection at the 
above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:
John W. Brown, Adjudications Officer, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street, NW., Room 3214, 
Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: The current regulation at 8 CFR 
214.2(h)(2)(i)(B) provides that an H petition which requires an alien 
beneficiary to perform services in more than one location must include 
an itinerary with dates and locations of the services or training to be 
performed. This regulatory provision was promulgated primarily to 
address certain practices in the entertainment industry, which, prior 
to the passage of the Immigration Act of 1990, was one of the largest 
users of the H-1B classification. (Entertainers now typically enter the 
United States in the O and P nonimmigrant classifications.) 
Specifically, this regulation was intended to preclude foreign 
entertainers who were admitted in H classification for the purpose of 
performing at a specific engagement from engaging in freelance work in 
this country subsequent to their admission. The regulation was designed 
to ensure that aliens seeking H nonimmigrant status have an actual job 
offer and are not coming to the United States for the purpose of 
seeking employment following arrival in this country.
    Since promulgation of this regulation, however, many industries in 
the United States, such as the health care and computer consulting 
industries, have begun to rely more frequently on the use of contract 
workers. It has been the experience of the Service that many bona fide 
businesses which provide contract workers to certain industries under 
the H-1B classification have experienced difficulty in providing 
complete and detailed itineraries due to the unique employment 
practices of such industries. For example, companies which are in the 
business of contracting out physical therapists or computer 
professionals often get requests from customers to fill a position with 
as little as 1 day advance notice. Clearly an H-1B petitioner in this 
situation could not know of all particular contract jobs at the time 
that it first files the H-1B petition with the Service. As a result, 
many such bona fide employment contractors do not know all of the 
locations where a contract worker will be employed at the time the Form 
I-129, Petition for a Nonimmigrant Worker, is initially filed.
    Moreover, some employers who use the H-1B classification may have a 
legitimate, but unforeseeable, need to transfer their employees on 
short notice from one work site to another within the organization, 
such as from the employer's Los Angeles office to its New York office. 
Under the current regulation, however, such an employer is required to 
submit with its petition a complete itinerary listing all of the 
locations where the contract workers will be employed. The regulation 
as now written, therefore, does not fully reflect current legitimate 
business practices.
    In response to these problems, the Service now proposes to amend 
its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR 
214.2(h)(2)(i)(F) to allow certain petitioners to submit a general 
statement describing the locations where the alien is to be employed, 
thereby eliminating the necessity of submitting a complete itinerary. A 
complete itinerary must be submitted only in those instances where the 
employer is aware of the actual itinerary or where the petitioner is an 
agent that does not actually employ the beneficiary but merely 
represents the alien and the alien's employer.
    In those instances where the employer does not yet know the alien's 
complete itinerary at the time the petition is filed, the employer must 
submit, in lieu of a complete itinerary, a list of the places where it 
knows the beneficiary will definitely be employed, together with a 
description of the alien's job duties at those locations. In addition, 
the employer must submit, to the extent possible, a list describing the 
alien's possible places of employment and the duties which the alien 
would perform at such locations. The employer may also be asked to 
submit a letter with the petition describing its past hiring practices, 
including a list of past places where it has employed similarly 
situated persons. The letter must describe the employer's tentative 
plans to use the beneficiary in an H-1B capacity in the future. 
However, the absence of a past hiring practice is not a bar to the 
approval of the petition. Petitions filed without any itinerary may not 
be approved since this type of petition involves purely speculative 
employment. Of course, the petitioner

[[Page 30420]]

must also submit all other documentary evidence required by the 
regulation for H-1B classification.
    It is important to note that this proposed rule affects only those 
entities which are the actual employer of the alien, such as employment 
contractors and direct employers. In this regard, an employment 
contractor is one which employs the alien but assigns the alien to work 
at a different location than the contractor's place of business, based 
on the terms of a contract with a person or entity seeking the 
employer's services. A direct employer is one which hires the alien and 
assigns the alien to work at the employer's place of business. In both 
instances, the petitioner is the employer of the alien and retains the 
ability to hire and fire the alien.
    An agent who represents both the alien and the alien's employer is 
not the alien's employer and is required under this proposed rule to 
submit a complete itinerary. A typical example of this type of agency 
is the sports agent who has a contract with a sports star and who 
solicits potential employers in order to obtain the best deal for the 
alien. Recruitment agencies and entities which merely locate an alien 
for employers are not the actual employer of the alien and do not fit 
the Service's definition of an agent. As a result they may not file an 
H-1B petition.
    Historically, the Service has not granted H-1B classification on 
the basis of speculative, or undetermined, prospective employment. The 
H-1B classification is not intended as a vehicle for an alien to engage 
in a job search within the United States, or for employers to bring in 
temporary foreign workers to meet possible workforce needs arising from 
potential business expansions or the expectation of potential new 
customers or contracts. To determine whether an alien is properly 
classifiable as an H-1B nonimmigrant under the statute, the Service 
must first examine the duties of the position to be occupied to 
ascertain whether the duties of the position require the attainment of 
a specific bachelor's degree. See section 214(i) of the Immigration and 
Nationality Act (the ``Act''). The Service must then determine whether 
the alien has the appropriate degree for the occupation. In the case of 
speculative employment, the Service is unable to perform either part of 
this two-prong analysis and, therefore, is unable to adjudicate 
properly a request for H-1B classification. Moreover, there is no 
assurance that the alien will engage in a specialty occupation upon 
arrival in this country.
    To ensure that petitioners will not use the H-1B classification for 
speculative employment, this proposed regulation would require 
petitioners to establish that they, in fact, have employment in a 
specialty occupation available for the alien at the time that the 
petition is initially filed. Under this proposed rule, the petitioner 
would be required to establish, both through the submission of evidence 
relating to its past employment practices and through the submission of 
evidence relating to its employment plans for the beneficiary, that the 
alien will, in fact, commence work in a speciality occupation 
immediately upon admission in H classification. The petitioner must be 
able to demonstrate its need for the alien's services within the 
specialty occupation described in the petition when the petition is 
filed. It should be noted that this proposed regulation would not 
relieve the petitioner of its responsibility to file an amended 
petition when required, for example, when the beneficiary's transfer to 
a new work site necessitates the filing of a new labor condition 
application or when the beneficiary is required to obtain a new state 
license in order to commence employment at the new location. In light 
of the existing statutory requirements for H-1B classification and the 
Department of Labor's regulations regarding labor condition 
applications, the Service is confident that the proposed regulation 
would ensure that U.S. workers continue to receive protection from 
employers who might attempt to abuse the H-1B nonimmigrant 
classification.
    Finally, as previously indicated, the regulatory requirement 
relating to the submission of a complete itinerary was geared primarily 
for the entertainment industry, which, in light of changes under the 
Immigration Act of 1990, generally no longer uses the H-1B nonimmigrant 
classification. While it is preferable that all H-1B petitions be 
accompanied by complete itineraries listing the dates and places of the 
alien's employment, the Service recognizes such an across-the-board 
requirement is no longer practical in today's business environment.
    It should be noted that a petition filed by an agent who is not the 
actual employer of the alien, as described in 8 CFR 
214.2(h)(2)(i)(F)(1), must be accompanied by an itinerary. The Service 
wishes to retain strict control over petitions filed under these 
circumstances since, as noted above, this type of agent, unlike an 
employment contractor, is not the actual employer of the alien. In such 
a case, unless the agent submits a complete itinerary, the Service 
cannot be assured that the alien will be employed continuously as a 
specialty worker following admission to this country. Moreover, in such 
a situation, the Service cannot approve the H classification since 
there would not exist a valid labor condition application for each 
location where the alien will be employed.
    The Service recognizes that implementation of this rule would 
remove some of the controls which it currently has over prospective H-
1B employers at the time they initially file their petitions. To ensure 
that employers have complied with the terms of the initial petition and 
supporting labor condition application, the Service proposes to amend 
its regulations at 8 CFR 214.2(h)(15)(ii)(B)(1) relating to extensions 
of H-1B petitions to include clear language providing Service directors 
with the authority to require petitioners to submit evidence regarding 
the alien beneficiary's employment activities under the initial or 
prior approved petition or petitions.
    The Service also proposes to revise 8 CFR 214.2(h)(2)(i)(E) to 
provide concrete examples of certain common situations where an amended 
H-1B petition need or need not be filed. While the examples are by no 
means intended to be exhaustive, the Service believes that such 
clarification is in the public interest. It should be noted that the 
Service has previously provided guidance to the public on this issue 
through a policy memorandum dated October 22, 1992, signed by James J. 
Hogan, Executive Associate Commissioner, Operations. Hence, the 
examples described in the proposed regulation merely codify 
longstanding Service policy and practice.
    The proposed rule addresses the following situations. First, where 
an employer is required, under relevant Department of Labor 
regulations, to file a new labor condition application, such as 
following certain temporary or permanent transfers, the employer will 
also be required to file an amended petition. On the other hand, when 
an H-1B nonimmigrant is transferred by an employer to another work site 
within the area covered by the supporting labor condition application, 
and there are no other changes in the nature or terms of the H-1B 
nonimmigrant's employment, the employer need not file an amended 
petition. Second, an employer will be required to file an amended 
petition where the alien's duties change from one specialty occupation 
to another. An employer need not file an amended petition, however, 
where there is a mere

[[Page 30421]]

change in the petitioner's name, without a change in the underlying 
nature or terms of the H-1B employment. In such a situation, the 
petitioner may simply notify the Service of its name change when and if 
it files an application to extend the alien's nonimmigrant stay. The 
Service is amenable to considering additional suggestions from the 
public for streamlining the amended petition process.
    The Service proposes to amend 8 CFR 214.2(h)(11) (i), (ii), and 
(iii) to indicate that a petition for an H nonimmigrant alien will be 
automatically revoked if the petitioner notifies the Service that the 
beneficiary is no longer employed by the petitioning entity. Under the 
current regulation, when the petitioner notifies the Service that the 
beneficiary is no longer employed by it in the capacity specified in 
the petition, the Service is required to send the petitioner a notice 
of intent to revoke the petition. (See 8 CFR 214.2(h)(11)(iii)(A)(1).) 
This process requires the petitioner to respond to the notice of 
intent, and then for the Service to take action based on the 
petitioner's subsequent response. Since the petitioner is the entity 
which supplied the Service with the information concerning the alien's 
employment, the current procedure creates unnecessary burdens on both 
the petitioner and the Service and, therefore, appears to be 
inappropriate. Moreover, this proposed change will bring the H 
regulation into conformity with the O and P regulations in this regard.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. This regulation eases certain requirements which some 
businesses find burdensome by allowing various petitioners the option 
of submitting a general statement describing the locations where the 
beneficiary is to be employed, along with other supporting 
documentation, in lieu of submitting a complete itinerary when filing 
an H-1B petition.
    In addition, the proposed rule also eases other filing requirements 
associated with the submittal of an H-1B petition by allowing a 
petitioner the option of submitting a required labor condition 
application from the Department of Labor after the petition has been 
filed with the Service. Finally, the regulation also eliminates the 
requirement that a petitioner respond to a notice of intent to revoke a 
petition in instances where the petitioner initiated the revocation 
process by notifying the Service that the beneficiary is no longer 
employed by the petitioner.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
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 and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review.

Executive Order 12612

    The regulation proposed herein will 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. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act

    The information collection requirement contained in this rule has 
been cleared by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act. The OMB clearance number for 
this collection is 1115-0168.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, 
Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    2. Section 214.2 is amended by:
    a. Revising paragraph (h)(2)(i)(B);
    b. Revising paragraph (h)(2)(i)(E);
    c. Revising paragraph (h)(2)(i)(F);
    d. Revising paragraph (h)(4)(i)(B)(1);
    e. Revising paragraph (h)(4)(iii)(B)(1);
    f. Revising paragraph (h)(11) (i), (ii), and (iii); and by
    h. Revising paragraph (h)(15)(ii)(B)(1) to read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (B) Services or training in more than one location.--(1) H-1B 
petitions. An H-1B petition which require services to be performed or 
training to be received in more than one location must include, to the 
extent possible, a complete itinerary with the dates and locations of 
the services or training to be performed. The petition must be filed 
with the Service Center having jurisdiction over the place where the 
petitioner is located. The address which the petitioner specifies as 
its location on the petition shall be where the petitioner is located 
for purposes of this paragraph. If the petitioner has not yet 
determined all of the locations where the beneficiary might be employed 
at the time of filing, the petitioner must provide an itinerary of all 
definite employment and provide a description of any proposed or 
possible employment for the period of time covered by the petition. 
Petitions filed by an agent must also comport with 8 CFR 
214.2(h)(2)(i)(F).
    (2) Other H petitions. A petition for an H-2A, H-2B, or H-3 
nonimmigrant alien which requires services to be performed or training 
to be received in

[[Page 30422]]

more than one location must include a complete itinerary with the dates 
and locations of the services or training to be performed. The petition 
must be filed with the Service Center having jurisdiction over the area 
where the petitioner is located. The address which the petitioner 
specifies on the petition as its location shall be where the petitioner 
is located for purposes of this paragraph.
* * * * *
    (E) Amended petition--(1) General. A nonimmigrant H petitioner 
which continues to employ the beneficiary shall file an amended 
petition on Form I-129, with fee, with the Service Center where the 
original petition was filed to reflect any material changes in the 
terms and conditions of the H nonimmigrant's employment or training, as 
specified in the original approved petition. An amended H-1B petition 
must be accompanied by a current or new labor condition application 
certified by the Department of Labor. In the case of amended H-2A or H-
2B petitions, the amended petition must be accompanied by the 
appropriate Department of Labor determination.
    (2) H-1B petitions. An amended H-1B petition shall be filed by the 
petitioner in all cases where the petitioner is required, under 20 CFR 
part 655, to obtain a new certification of filing of a labor condition 
application. An amended H-1B petition must also be filed where there is 
a change in the beneficiary's duties from one specialty occupation to 
another specialty occupation. A change in the name of the petitioning 
entity, standing alone, is not a material change and does not require 
the filing of an amended petition. As these examples are not all-
inclusive, it is the responsibility of the petitioner to determine 
whether, in a particular case, these exists a material change in the 
terms and conditions of the H nonimmigrant alien's employment or 
training necessitating the filing of an amended petition.
    (F) Agents as petitioners. A United States agent may file a 
petition in cases involving workers who are traditionally self-employed 
or workers who use agents to arrange short-term employment on their 
behalf with numerous employers, and in cases where a foreign employer 
authorizes the agent to act on its behalf. A United States agent may 
be: the actual employer of the beneficiary, the representative of both 
the employer and the beneficiary, or, a person or entity authorized by 
the employer to act for, or in place of, the employer as its agent. A 
petition filed by a United States agent must also comply with the 
provisions of 8 CFR 214.2(h)(2)(i)(B) and is subject to the following 
conditions:
    (1) An agent performing the function of an employer, such as where 
the agent acts as an employment contractor, should provide an itinerary 
of all definite employment and provide a description of any proposed or 
possible employment for the period of time covered by the petition. 
Such an agent need not submit a complete itinerary. A petition filed by 
such an agent/employer must guarantee the wages and other terms and 
conditions of employment by contractual agreement with the beneficiary 
or beneficiaries of the petition.
    (2) A person or company in business as an agent may file the H 
petition involving multiple employers as the representative of both the 
employers and the beneficiary or beneficiaries if the supporting 
documentation includes a complete itinerary of services or engagements, 
the agent has fully informed both the employers and the beneficiaries 
of his or her dual representation, and the agent fully complies with 
the requirements of 8 CFR part 292. The itinerary shall specify the 
dates of each service or engagement, the names and addresses of the 
actual employers, and the names and addresses of the establishments, 
venues, or locations where the services will be performed. In 
questionable cases, a contract between the employers and the 
beneficiary or beneficiaries may be required. The burden is on the 
agent to explain the terms and conditions of the employment and to 
provide any required documentation.
    (3) A foreign employer who, through a United States agent, files a 
petition for an H nonimmigrant alien is responsible for complying with 
all of the employer sanctions provisions of section 274A of the Act and 
8 CFR part 274a.
* * * * *
    (4) * * * 
    (i) * * * 
    (B) General requirements for petitions involving a specialty 
occupation. (1) Before filing a petition for H-1B classification in a 
specialty occupation, the petitioner should obtain a certification from 
the Department of Labor that it has filed a labor condition application 
in the occupational specialty in which the alien(s) will be employed. 
If the labor condition application is not initially submitted with the 
petition, the petitioner shall be given an opportunity to obtain a 
certified labor condition application from the Secretary of Labor and 
to submit the certified labor condition application to the Service. 
Under no circumstances, however, may the Service approve the petition 
prior to submission of a certified labor condition application. The 
fact that the certification date on the labor condition application may 
be later than the initial filing date of the petition is not a basis on 
which to deny the petition.
* * * * *
    (iii) * * *
    (B) * * *
    (1) A certification from the Department of Labor that the 
petitioner has filed a labor condition application with the Secretary 
of Labor as required under 20 CFR part 655. If the labor condition 
application is not initially submitted with the petition, the 
petitioner shall be given an opportunity to obtain a certified labor 
condition application from the Secretary of Labor and to submit the 
certified labor condition application to the Service. In all cases, a 
certified labor condition application must be submitted to the Service 
before the petition may be adjudicated. The fact that the certification 
date on the labor condition application may be later than the initial 
filing date of the petition does not warrant the denial of the 
petition.
* * * * *
    (11) Revocation of approval of petition (i) General. The director 
may revoke a petition at any time, even after the expiration of the 
petition.
    (ii) Automatic revocation. The approval of any petition is 
automatically revoked if the petitioner goes out of business, files a 
written withdrawal of the petition, or notifies the Service pursuant to 
8 CFR part 214 that the beneficiary is no longer employed by the 
petitioner.
    (iii) Revocation on notice. (A) Grounds for revocation. The 
director shall send to the petitioner a notice of intent to revoke the 
petition in relevant part if he or she finds that:
    (1) Other than through notification in paragraph (h)(11)(ii) of 
this section, the beneficiary is no longer employed by the petitioner 
in the capacity specified in the petition, or if the beneficiary is no 
longer receiving training as specified in the petition;
    (2) The statement of facts contained in the petition was not true 
and correct;
    (3) The petitioner violated terms and conditions of the approved 
petition;
    (4) The petitioner violated requirements of section 101(a)(15)(H) 
of the Act or paragraph (h) of this section; or
    (5) The approval of the petition violated paragraph (h) of this 
section or involved gross error.

[[Page 30423]]

    (B) Notice and decision. The notice of intent to revoke shall 
contain a detailed statement of the grounds for the revocation and the 
time period allowed for the petitioner's rebuttal. The petitioner may 
submit evidence in rebuttal within 30 days of receipt of the notice. 
The director shall consider all relevant evidence presented in deciding 
whether to revoke the petition in whole or in part. If the petition is 
revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the 
revocation notice.
* * * * *
    (15) * * *
    (ii) * * *
    (A) * * *
    (B) H-1B extension of stay--(1) Alien in a specialty occupation or 
an alien of distinguished merit and ability in the field of fashion 
modeling. An extension of stay may be authorized for a period of up to 
3 years for a beneficiary of an H-1B petition in a specialty occupation 
or an alien of distinguished merit and ability. The alien's total 
period of stay may not exceed 6 years. The request for an extension 
must be accompanied by either a new certification from the Department 
of Labor valid for the extension period requested, or a photocopy of 
the prior certification from the Department of Labor indicating that 
the petitioner has on file a labor condition application valid for the 
period of time requested by the petitioner for the particular 
occupation. The director may require the petitioner to submit any 
evidence which in the director's discretion may be necessary to 
establish that the petitioner has employed the alien pursuant to the 
terms of the prior petition(s) and labor condition application(s).
* * * * *
    Dated: May 29, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-14785 Filed 6-3-98; 8:45 am]
BILLING CODE 4410-10-M