[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Rules and Regulations]
[Pages 61660-61831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20506]
Vol. 87
Wednesday,
No. 196
October 12, 2022
Part II
Department of Labor
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Employment and Training Administration
20 CFR Parts 653 and 655
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Wage and Hour Division
29 CFR Part 501
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Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States; Final Rule
Federal Register / Vol. 87 , No. 196 / Wednesday, October 12, 2022 /
Rules and Regulations
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2019-0007]
RIN 1205-AB89
Temporary Agricultural Employment of H-2A Nonimmigrants in the
United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (Department or DOL) is amending its
regulations governing the certification of agricultural labor or
services to be performed by temporary foreign workers in H-2A
nonimmigrant status (H-2A workers) and enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. These
regulations are consistent with the Secretary of Labor's (Secretary)
statutory responsibility to certify that there are not sufficient able,
willing, and qualified workers available to fill the petitioning
employer's job opportunity, and that the employment of H-2A workers in
that job opportunity will not adversely affect the wages and working
conditions of workers in the United States similarly employed. Among
the issues addressed in this final rule are improving the minimum
standards and conditions of employment that employers must offer to
workers; expanding the Department's authority to use enforcement tools,
such as program debarment for substantial violations of program
requirements; modernizing the process by which the Department receives
and processes employers' job orders and applications for temporary
agricultural labor certifications, including the recruitment of United
States workers (U.S. workers); and revising the standards and
procedures for determining the prevailing wage rate. This final rule
will strengthen protections for workers, modernize and simplify the H-
2A application and temporary labor certification process, and ease
regulatory burdens on employers.
DATES: This final rule is effective November 14, 2022.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 653, contact Kimberly Vitelli, Administrator, Office of
Workforce Investment, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210,
telephone: (202) 693-3980 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone numbers
above via Teletypewriter (TTY)/Telecommunications Device for the Deaf
(TDD) by calling the toll-free Federal Information Relay Service at 1
(877) 889-5627.
For further information regarding 20 CFR part 655, contact Brian
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone:
(202) 693-8200 (this is not a toll-free number). Individuals with
hearing or speech impairments may access the telephone numbers above
via TTY/TDD by calling the toll-free Federal Information Relay Service
at 1 (877) 889-5627.
For further information regarding 29 CFR part 501, contact Amy
DeBisschop, Director of the Division of Regulations, Legislation, and
Interpretation, Wage and Hour Division, Department of Labor, Room S-
3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone:
(202) 693-0406 (this is not a toll-free number). Individuals with
hearing or speech impairments may access the telephone number above via
TTY/TDD by calling the toll-free Federal Information Relay Service at 1
(877) 889-5627.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Current Regulatory Framework
D. Summary of Major Provisions of This Final Rule
E. Summary of Costs and Benefits
F. Severability
II. Acronyms and Abbreviations
III. Background and Public Comments Received on the Notice of
Proposed Rulemaking
IV. Discussion of General Comments
V. Section-by-Section Summary of This Final Rule, 20 CFR Part 655,
Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501
A. Introductory Sections
1. Section 655.100, Purpose and Scope of Subpart B
2. Section 655.101, Authority of the Agencies, Offices, and
Divisions of the Department of Labor; and 29 CFR 501.1, Purpose and
Scope
3. Section 655.102, Transition Procedures
4. Section 655.103, Overview of This Subpart and Definition of
Terms; 20 CFR 653.501(c)(2)(i) of the Wagner-Peyser Act Regulations;
and 29 CFR 501.3, Definitions
B. Pre-Filing Procedures
1. Section 655.120, Offered Wage Rate
2. Section 655.121, Job Order Filing Requirements
3. Section 655.122, Contents of Job Offers
4. Section 655.123, Optional Pre-Filing Positive Recruitment of
U.S. Workers
5. Section 655.124, Withdrawal of a Job Order
C. Applications for Temporary Employment Certification Filing
Procedures
1. Section 655.130, Application Filing Requirements
2. Section 655.131, Agricultural Association and Joint Employer
Filing Requirements
3. Section 655.132, H-2A Labor Contractor Filing Requirements;
and 29 CFR 501.9, Enforcement of Surety Bond
4. Section 655.133, Requirements for Agents
5. Section 655.134, Emergency Situations
6. Section 655.135, Assurances and Obligations of H-2A Employers
7. Section 655.136, Withdrawal of an Application for Temporary
Employment Certification and Job Order
D. Processing of Applications for Temporary Employment
Certification
1. Section 655.140, Review of Applications
2. Section 655.141, Notice of Deficiency
3. Section 655.142, Submission of Modified Applications
4. Section 655.143, Notice of Acceptance
5. Section 655.144, Electronic Job Registry
6. Section 655.145, Amendments to Applications for Temporary
Labor Certification
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance of Job Order
2. Section 655.153, Contact With Former U.S. Workers
3. Section 655.154, Additional Positive Recruitment
4. Section 655.155, Referrals of U.S. Workers
5. Section 655.156, Recruitment Report
6. Sections 655.157, Withholding of U.S. Workers Prohibited, and
655.158, Duration of Positive Recruitment
F. Labor Certification Determinations
1. Section 655.161, Criteria for Certification
2. Section 655.162, Approved Certification
3. Section 655.164, Denied Certification
4. Section 655.165, Partial Certification
5. Section 655.166, Requests for Determinations Based on
Nonavailability of U.S. Workers
6. Section 655.167, Document Retention Requirements of H-2A
Employers
G. Post-Certification
1. Section 655.170, Extensions
2. Section 655.171, Appeals
3. Section 655.172, Post-Certification Withdrawals
4. Section 655.173, Setting Meal Charges; Petition for Higher
Meal Charges
5. Section 655.174, Public Disclosure
6. Section 655.175, Post-Certification Amendments
H. Integrity Measures
1. Section 655.180, Audit
2. Section 655.181, Revocation
3. Section 655.182, Debarment; 29 CFR 501.16, Sanctions and
Remedies--General; 29 CFR 501.19, Civil Money Penalty Assessment; 29
CFR 501.20, Debarment and Revocation; 29 CFR 501.21, Failure To
Cooperate With Investigations; 29 CFR 501.41, Decision and Order of
Administrative Law Judge; 29 CFR 501.42, Procedures for Initiating
and Undertaking Review; 29 CFR 501.43, Responsibility of the Office
of Administrative Law Judges; 29 CFR 501.44, Additional Information,
if Required; and 29 CFR 501.45, Decision of the Administrative
Review Board
I. Labor Certification Process for Temporary Agricultural
Employment in Range Sheep Herding, Goat Herding, and Production of
Livestock Operations
1. Modernizing Recruitment Requirements
2. Regulatory Revisions Implemented by This Final Rule
3. Other Comments
J. Labor Certification Process for Temporary Agricultural
Employment in Animal Shearing, Commercial Beekeeping, and Custom
Combining
1. Section 655.300, Scope and Purpose
2. Section 655.301, Definition of Terms
3. Section 655.302, Contents of Job Orders
4. Section 655.303, Procedures for Filing Applications for
Temporary Employment Certification
5. Section 655.304, Standards for Mobile Housing
VI. Discussion of Revisions to 29 CFR Part 501
A. Conforming Changes
B. Section 501.9, Enforcement of Surety Bond
C. Section 501.20, Debarment and Revocation
D. Terminology and Technical Changes
E. Intervening Rulemakings
VII. Administrative Information
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Executive Summary
A. Purpose of the Regulatory Action
This final rule amends the standards and procedures by which the
Department grants certification of agricultural labor or services to be
performed by H-2A workers on a seasonal or temporary basis, and
enforcement of the contractual obligations applicable to employers of
H-2A workers. The major provisions contained in this final rule will
strengthen protections for workers, modernize and simplify the H-2A
application and temporary labor certification process, and ease
regulatory burdens on employers.
It is the policy of the Department to maintain robust protections
for workers and vigorously enforce all laws within its jurisdiction
governing the administration and enforcement of nonimmigrant visa
programs. This includes the coordination of the administration and
enforcement activities of the Employment and Training Administration
(ETA), Wage and Hour Division (WHD), and the Department's Office of the
Solicitor in the promotion of the hiring of U.S. workers and the
safeguarding of wages and working conditions in the United States. In
addition, these agencies make criminal referrals to the Department's
Office of Inspector General to combat visa-related fraud schemes.
The Department is updating its H-2A regulations to ensure that
employers can address temporary labor needs by employing foreign
agricultural workers, without undue cost or administrative burden,
while maintaining the program's strong protections. The changes in this
final rule will enhance WHD's enforcement capabilities, thereby
ensuring that responsible employers are not faced with unfair
competition and allowing for robust enforcement against program fraud
and abuse that undermine the rights and interests of workers.
B. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The
admission of foreign workers under this classification involves a
multi-step process before several Federal agencies. A prospective H-2A
employer must first apply to the Secretary for a certification that:
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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there are not sufficient workers who are able, willing,
and qualified, and who will be available at the time and place needed,
to perform the labor or services involved in the petition, and
the employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in the
United States similarly employed.
8 U.S.C. 1188(a)(1). The INA prohibits the Secretary from issuing this
certification--known as a ``temporary agricultural labor
certification''--unless both of the above-referenced conditions are met
and none of the conditions in 8 U.S.C. 1188(b) apply concerning strikes
or lock-outs, labor certification program debarments, workers'
compensation assurances, and positive recruitment.
The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
ETA's Office of Foreign Labor Certification (OFLC). See Secretary's
Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). In
addition, the Secretary has delegated to the Department's WHD the
responsibility under 8 U.S.C. 1188(g)(2) to assure employer compliance
with the terms and conditions of employment under the H-2A program. See
Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).
Once an employer obtains a temporary agricultural labor
certification from DOL, it may then file a petition for a nonimmigrant
worker with the Secretary of Homeland Security. See 8 U.S.C.
1184(c).\2\ If the employer's petition is approved, the foreign workers
residing outside the United States whom it seeks to employ must,
generally, apply for a nonimmigrant H-2A visa at a U.S. embassy or
consulate abroad, and seek admission to the United States with U.S.
Customs and Border Protection.\3\ If the employer seeks to employ
foreign workers already performing work in the United States in H-2A
status and wishes to petition the workers through an extension of stay
or change of status, the foreign workers are not required to apply for
a visa but should they depart from the United States subsequent to
being granted such H-2A status, must generally obtain an H-2A visa in
order to return to the country.
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\2\ Under sec. 1517 of title XV of the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, reference to the Attorney
General's or other Department of Justice Official's responsibilities
under sec. 1184(c) have been expressly transferred to the Secretary
of Homeland Security. See 6 U.S.C. 202, 271(b).
\3\ See generally 8 U.S.C. 1225; 8 CFR part 235.
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C. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The standards and procedures applicable to the certification and
employment of workers under the H-2A program are found in 20 CFR part
655, subpart B, and 29 CFR part 501. The majority of the Department's
current regulations governing the H-2A program were published in
2010.\4\ In addition, the Department has issued special procedures for
the employment of foreign workers in the herding and production of
livestock on the range as well as animal shearing, commercial
beekeeping, and custom combining occupations.\5\ The Department
incorporated the provisions for employment of workers in the herding
and production of livestock on the range into the H-2A regulations,
with modifications, in 2015.\6\ The provisions governing the employment
of workers in the herding and production of livestock on the range are
now codified at 20 CFR 655.200 through 655.235.\7\
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\4\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); but see Final Rule, Modernizing Recruitment Requirements for
the Temporary Employment of H-2A Foreign Workers in the United
States, 84 FR 49439 (Sept. 20, 2019) (2019 H-2A Recruitment Final
Rule) (rescinding the requirement that an employer advertise its job
opportunity in a print newspaper of general circulation in the area
of intended employment; expanding and enhancing the Department's
electronic job registry; and leveraging the expertise and existing
outreach activities of State Workforce Agencies (SWAs) to promote
agricultural job opportunities); see also Final Rule, Rules
Concerning Discretionary Review by the Secretary, 85 FR 30608 (May
20, 2020) (establishing a system of discretionary secretarial review
over cases pending before or decided by the Board of Alien Labor
Certification Appeals [BALCA] and to make technical changes to
Departmental regulations governing the timing and finality of
decisions of the Administrative Review Board [ARB] and the BALCA).
\5\ See Training and Employment Guidance Letter (TEGL) No. 32-
10, Special Procedures: Labor Certification Process for Employers
Engaged in Sheepherding and Goatherding Occupations under the H-2A
Program (June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042; TEGL No. 15-06, Change 1, Special
Procedures: Labor Certification Process for Occupations Involved in
the Open Range Production of Livestock under the H-2A Program (June
14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044;
TEGL No. 17-06, Change 1, Special Procedures: Labor Certification
Process for Employers in the Itinerant Animal Shearing Industry
under the H-2A Program (June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; TEGL No. 33-10, Special
Procedures: Labor Certification Process for Itinerant Commercial
Beekeeping Employers in the H-2A Program (June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; TEGL No. 16-06,
Change 1, Special Procedures: Labor Certification Process for Multi-
State Custom Combine Owners/Operators under the H-2A Program (June
14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040.
\6\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\7\ Consistent with a court-approved settlement agreement in
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).
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D. Summary of Major Provisions of This Final Rule
After careful consideration of the public comments received, this
final rule adopts much of the regulatory text proposed in the notice of
proposed rulemaking (NPRM or proposed rule) published in the Federal
Register on July 26, 2019, with some significant changes.\8\ In
particular, and as discussed in detail elsewhere in this preamble, this
final rule adopts the following major changes to the Department's H-2A
program regulations:
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\8\ Notice of Proposed Rulemaking, Temporary Agricultural
Employment of H-2A Nonimmigrants in the United States, 84 FR 36168
(July 26, 2019). In late 2020, the Department published a final rule
to revise the methodology by which it determines the hourly AEWR for
non-range agricultural occupations. Final Rule, Adverse Effect Wage
Rate Methodology for the Temporary Employment of H-2A Nonimmigrants
in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5,
2020) (2020 H-2A AEWR Final Rule). The 2020 H-2A AEWR Final Rule
addressed only that aspect of the NPRM. This final rule addresses
the remaining aspects of the NPRM published on July 26, 2019.
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Strengthening Worker Protections and Program Integrity
Revises the standards and procedures by which employers
qualifying as H-2A Labor Contractors (H-2ALCs) obtain temporary labor
certification by permitting the electronic submission of surety bonds,
adjusting the required surety bond amounts based on changes to adverse
effect wage rates (AEWR), adopting a common bond form that includes
standardized bond language, and permitting debarment of H-2ALCs that
fail to provide adequate surety bonds. These provisions are intended to
reduce the likelihood of program abuse by ensuring H-2ALCs are better
able to meet their payroll and other program obligations to workers,
streamline the process for accepting surety bonds, and strengthen the
Department's authority to address noncompliant bonds.
Clarifies the definitions of ``employer'' and ``joint
employment,'' the use of these terms in the filing of Applications for
Temporary Employment Certification, and the responsibilities of joint
employers. Employers that file as joint employers are treated as such
as a matter of law for purposes of compliance and enforcement. In
addition, employers that do not file applications but nonetheless
jointly employ workers under the common law of agency are responsible
as joint employers. These provisions are intended to enhance worker
protections by providing greater clarity regarding the responsibilities
of joint employers, consistent with the statute and the Department's
current policy and practice.
Provides that rental and/or public accommodations secured
to house workers must meet applicable local, State, or Federal
standards addressing certain health or safety concerns (e.g., minimum
square footage per occupant, sanitary food preparation and storage
areas, laundry and washing facilities), and requires employers to
submit written documentation that such housing meets applicable
standards and contains enough bed(s) and room(s) to accommodate all
workers requested. These provisions are intended to better protect the
health and safety of workers without imposing an undue burden on
employers.
Enhances the Department's debarment authority by holding
agents and attorneys, and their successors in interest, accountable for
their own misconduct independent of the employer's violation(s), and
clarifies that Applications for Temporary Employment Certification
filed by debarred entities during the period of debarment will be
denied without review. These provisions are intended to improve program
integrity and promote greater compliance with program requirements.
Modernizing the H-2A Application Process and Prevailing Wage Surveys
Establishes a single point of entry by requiring that
employers, except in limited circumstances, electronically file
Applications for Temporary Employment Certification, job orders, and
all supporting documentation through a centralized electronic system
maintained by the Department, and permits the use of electronic
signatures meeting valid signature standards. These provisions are
intended to reduce costs and burdens for most employers, improve the
quality of applications, reduce the frequency of delays associated with
deficient applications, and better facilitate interagency data-sharing.
Codifies the use of electronic methods for the OFLC
Certifying Officer (CO) to send notices and requests to employers,
circulate approved job orders to appropriate SWAs for
interstate clearance and recruitment of U.S. workers, and issue
temporary labor certification decisions directly to the Department of
Homeland Security (DHS). These provisions are intended to modernize
OFLC's processing of applications to minimize delays, reduce
administrative costs for the employer and the Department, and expedite
the delivery of temporary agricultural labor certifications to DHS,
while maintaining program integrity.
Replaces outdated prevailing wage survey guidelines from
the Department's ETA Handbook 385 (Handbook 385) with modernized
standards that are more effective in producing prevailing wages for
distinct crop or agricultural activities, and expands the universe of
State entities that may conduct prevailing wage surveys, including
SWAs, other State agencies, State colleges, or State universities.
These provisions are intended to refine the minimum standards for
prevailing wage surveys, including providing SWAs with the flexibility
to leverage other State survey resources to expand the number and scope
of surveys conducted based on information that is as reliable and
representative as possible. In addition, while the minimum standards
may not ensure statistically valid estimates for larger categories of
workers, they are designed to provide more options for SWAs to make
decisions about prioritizing precision, accuracy, granularity, or other
quality factors in the data they use to inform prevailing wages.
Expanding Employer Access and Flexibilities To Use the H-2A Program
Establishes new standards that permit individual employers
possessing the same need for agricultural services or labor to file a
single Application for Temporary Employment Certification and job order
to jointly employ workers in full-time employment, consistent with the
statute and the Department's longstanding practice. This provision is
intended to provide small employers who cannot offer full-time work for
their H-2A employees with an opportunity to participate in the H-2A
program and ensure each employer will be held jointly liable for
compliance with all program requirements.
Codifies a unique set of standards and procedures, with
some revisions, for employers that employ workers engaged in animal
shearing, commercial beekeeping, and custom combining according to a
planned itinerary across multiple areas of intended employment (AIE) in
one or more contiguous States. These provisions are intended to provide
appropriate flexibilities for employers engaged in these unique
agricultural activities that are substantially similar to the processes
formerly set out in administrative guidance letters, and greater
certainty in the handling of these applications by the Department under
20 CFR part 655, subpart B.
E. Summary of Costs and Benefits
Executive Order (E.O.) 12866 \9\ and E.O. 13563 \10\ direct
agencies to assess the costs and benefits of available alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rulemaking has been designated a ``significant
regulatory action'' under section (sec.) 3(f)(1) of E.O. 12866.
Accordingly, it has been reviewed by the Office of Management and
Budget (OMB).
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\9\ E.O. 12866, Regulatory Planning and Review, 58 FR 51735
(Oct. 4, 1993).
\10\ E.O. 13563, Improving Regulation and Regulatory Review, 76
FR 3821 (Jan. 21, 2011).
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The Department estimates that this final rule will result in costs,
cost savings, and qualitative benefits. The cost of this final rule is
associated with rule familiarization and recordkeeping requirements for
all H-2A employers, as well as increases in the amount of surety bonds
required for H-2ALCs. This final rule is expected to have an annualized
quantifiable cost of $2.75 million and a total 10-year quantifiable
cost of $19.29 million at a discount rate of seven percent. The cost
savings of this final rule are the electronic submission of
applications and application signatures, including the use of
electronic surety bonds, and the electronic sharing of job orders
submitted to the OFLC National Processing Center (NPC) with the SWAs.
This final rule is estimated to have annualized cost savings of $0.16
million and total 10-year quantifiable cost savings of $1.12 million at
a discount rate of seven percent.
The Department estimates that this final rule will result in an
annualized net quantifiable cost of $2.59 million and a total 10-year
net cost of $18.17 million, both at a discount rate of seven percent
and expressed in 2021 dollars. The Department expects that this final
rule will provide qualitative benefits including: (1) clearer
application of certain housing-related standards when employers choose
to meet their H-2A housing obligations by providing rental and/or
public accommodations, which will bolster worker health and safety
protections; (2) an improved process of submitting and reviewing H-2A
applications, which will reduce workforce instability; and (3) the
adoption of electronic surety bonds and a standardized bond form, which
will help streamline the H-2A application process and reduce delays.
The Department believes that the qualitative benefits outweigh the
quantitative net costs in this rule.
F. Severability
To the extent that any portion of this final rule is declared
invalid by a court, the Department intends for all other parts of this
final rule that can operate in the absence of the specific portion that
has been invalidated to remain in effect. Thus, even if a court
decision invalidating a portion of this final rule results in a partial
reversion to the current regulations or to the statutory language
itself, the Department intends that the rest of this final rule
continue to operate, to the extent possible, in tandem with the
reverted provisions.
II. Acronyms and Abbreviations
AEWR Adverse effect wage rate(s)
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CFR Code of Federal Regulations
CO Certifying Officer(s)
COVID-19 Novel coronavirus disease
CPI Consumer Price Index
DBA Doing Business As
DC District of Columbia
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
ECI Employment Cost Index
E.O. Executive Order
E-SIGN Electronic Signatures in Global and National Commerce Act
ETA Employment and Training Administration
FEIN Federal Employer Identification Number
FICA Federal Insurance Contributions Act
FLAG Foreign Labor Application Gateway
FLC Farm Labor Contractor
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FTC Federal Trade Commission
FY Fiscal Year(s)
GPEA Government Paperwork Elimination Act
H-2ALC(s) H-2A Labor Contractor(s)
HR Human Resources
iCERT iCERT Visa Portal System
ICR Information Collection Request
IFR Interim final rule
INA Immigration and Nationality Act
IRC Internal Revenue Code
IRCA Immigration Reform and Control Act of 1986
IRS Internal Revenue Service
MSA Metropolitan Statistical Area(s)
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NOA Notice(s) of Acceptance
NOD Notice(s) of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
NPWC National Prevailing Wage Center
NW Northwest
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PRA Paperwork Reduction Act
Pub. L. Public Law
PWD Prevailing wage determination(s)
QCEW Quarterly Census of Employment and Wages
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
RV Recreational vehicle
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA(s) State Workforce Agency(-ies)
TDD Telecommunications Device for the Deaf
TEGL Training and Employment Guidance Letter
TTY Teletypewriter
UI Unemployment insurance
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
WHD Wage and Hour Division
III. Background and Public Comments Received on the Notice of Proposed
Rulemaking
On July 26, 2019, the Department published an NPRM requesting
public comments on proposals intended to modernize and simplify the
process by which OFLC reviews employers' job orders and applications
for temporary agricultural labor certifications for use in petitioning
DHS to employ H-2A workers. See 84 FR 36168. The Department also
proposed to amend the regulations for enforcement of contractual
obligations applicable to the employment of H-2A workers and workers in
corresponding employment administered by WHD, and to amend the Wagner-
Peyser Act regulations administered by ETA to provide consistency with
revisions to H-2A program regulations governing the temporary
agricultural labor certification process. Id. The NPRM invited written
comments from the public on all aspects of the proposed amendments to
the regulations. A 60-day comment period allowed for the public to
inspect the proposed rule and provide comments through September 24,
2019.
The Department also received requests for an extension of the
comment period for the NPRM. While the Department appreciated the
issues raised concerning the public's opportunity to examine the rule
and comment, the Department decided not to extend the comment period.
The Department continues to believe that a 60-day comment period was
sufficient to allow the public to inspect the proposed rule and provide
comments, and this conclusion is supported by both the volume of
comments received and by the wide variety of stakeholders that
submitted comments within the 60-day comment period.
The Department received a total of 83,532 public comments in docket
number ETA-2019-007 in response to the NPRM. In addition, the
Department received 128 comments in response to document
WHD_FRDOC_0001-0070 prior to the comment submission deadline. These
comments were incorporated into docket number ETA-2019-007, and each
comment received a note on regulations.gov indicating that it was
timely received. The commenters represented a wide range of
stakeholders from the public, private, and not-for-profit sectors. The
Department received comments from a geographically diverse cross-
section of stakeholders within the agricultural sector, including
farmworkers, workers' rights advocacy organizations, farm owners, trade
associations for agricultural products and services, not-for-profit
organizations representing agricultural issues, and other organizations
with an interest in farming, ranching, and other agricultural
activities. Public sector commenters included Federal elected
officials, State officials, and agencies representing 14 State
governments. Private sector commenters included business owners,
recruiting companies, and law firms. Other commenters included
immigration advocacy groups, public policy organizations, and trade
associations interested in immigration-related issues. The vast
majority of comments specifically addressed proposals and issues
contained in the NPRM. The Department recognizes and appreciates the
value of comments, ideas, and suggestions from all those who commented
on the proposal, and this final rule was developed after review and
consideration of all public comments timely received in response to the
NPRM.11 12
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\11\ As explained elsewhere in this rule, the Department
separately published a final rule--the 2020 H-2A AEWR Final Rule--
that addressed the proposal and public comments concerning the AEWR
methodology and was limited to only that aspect of the NPRM. This
final rule addresses the remaining aspects of the NPRM. Previously,
on January 15, 2021, the Department announced and posted on OFLC's
website an unpublished final rule on these remaining aspects of the
NPRM, explaining that the rule was pending publication in the
Federal Register with a 30-day delayed effective date. See
Announcements, U.S. Department of Labor Withdraws Forthcoming H-2A
Temporary Agricultural Program Rule for Review (Jan. 20, 2021),
https://www.dol.gov/agencies/eta/foreign-labor/news. On January 20,
2021, however, the Department withdrew this document from the Office
of the Federal Register, prior to the document being made available
for public inspection, for the purpose of reviewing issues of law,
fact, and policy raised by the rule. Therefore, the unpublished
draft rule (hereinafter referenced as ``the January 2021 draft final
rule'') never took effect. 5 U.S.C. 552(a)(1), 553; cf. Humane
Society v. U.S. Dep't of Ag., No. 20-5291,--F.4th--, 2022 WL
2898893, at *8 (D.C. Cir. 2022) (holding that ``agencies may repeal
a rule made available for public inspection in the Office of the
Federal Register only after complying with the [Administrative
Procedure Act's] procedural requirements''). The Federal Register
and the Code of Federal Regulations remain the official sources for
regulatory information published by the Department. Id. Any
statements in the January 2021 draft final rule do not represent the
Department's formal policy. Moreover, the January 2021 draft final
rule and any statements contained therein do not, and may not be
relied upon to, create or confer any right or benefit, substantive
or procedural, enforceable at law or equity by any individual or
other party.
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IV. Discussion of General Comments
Following careful consideration of the public comments received,
the Department made a number of modifications to the NPRM's proposed
regulatory text. Section V of this preamble sets out the Department's
interpretation and rationale for the amendments adopted to 20 CFR part
655, subpart B, 20 CFR 653.501(c)(2)(i), and 29 CFR part 501, section
by section. Before setting out the detailed section-by-section analysis
below, however, the Department will first acknowledge and respond to
general comments that did not fit readily into this organizational
scheme.
Of the total public comments received, 82,893 comments were
associated with form letters or letter writing campaigns. One not-for-
profit organization submitted the names of 8,602 community members
expressing general concerns about worker wages,
worker safety, and enforcement of immigration laws. A not-for-profit
foundation and labor union letter writing campaign resulted in the
submission of more than 74,000 form letters and postcards from
individual farmworkers expressing general concerns over issues such as
the growth of the H-2A program, worker wages, costs to workers, working
conditions, housing conditions, job opportunities for U.S. workers, and
enforcement and oversight of program protections. Additional letter
writing campaigns were organized by agricultural associations, trade
associations, local groups of farmers, and private individuals. The
Department recognizes and appreciates the public's interest in this
regulatory action. Where these letters discussed substantive changes
within the scope of the rule, the Department has considered and
addressed these issues, in detail, in the section-by-section analysis
of this preamble.
Many of the comments received expressed general support for or
opposition to the proposed rule, without discussing specific provisions
of the NPRM. The Department received comments from individual business
owners, farmers, and trade associations that expressed general support
for taking action to change the H-2A program, including efforts to
streamline the electronic document filing system, modernizing and
improving the efficiency of the program, making the program more
flexible and responsive to farmer needs, and creating an environment
that fosters a more stable workforce without harming U.S. workers.
Other commenters stressed the importance of protecting and improving
the American farming industry through the proposed regulations. Another
commenter mentioned the growth of the H-2A program in their State as
evidence that the program plays a vital role in the agricultural
sector. The Department values and appreciates these commenters' support
for the proposed rule, as well as their unique and informed
perspectives on the program's strengths and proposed points of
improvement.
In addition to comments expressing general support for the rule,
the Department received several comments supporting other comments that
were submitted in response to the NPRM. Most of these comments were
from individual farmers and ranchers expressing support for a comment
submitted by an agricultural association or trade association. The
Department acknowledges the time and effort undertaken by these
commenters to voice their opinions on this rulemaking and lend their
support for the opinions of others. Where these comments supported
substantive changes within the scope of the rule, the Department has
considered and addressed these issues, in detail, in the section-by-
section analysis of this preamble.
The Department also received several comments in general opposition
to the changes proposed in the NPRM, including from private citizens,
farmworkers, and workers' rights advocacy organizations. These comments
included concerns that changes to the H-2A program could
disproportionately harm small farms. In accordance with the Regulatory
Flexibility Act (RFA), an analysis on the impact on small farms was
performed, and the results were considered in formulating this final
rule. Additional commenters expressed the view that stronger
protections and accountability for worker safety and living conditions
are needed, asserting that the changes proposed in the NPRM would serve
to weaken labor standards and increase instances of abuse within the
immigration system. Some commenters feared that the proposed changes
would disproportionately harm marginalized communities, including
immigrants, individuals with disabilities, and people of color. One
commenter opposed the changes proposed in the NPRM out of a general
concern that such changes, once implemented, would encourage employers
to deny jobs to U.S. farmworkers in order to hire foreign workers for
less pay. Still other commenters stated that the changes proposed in
the NPRM would make working and living conditions worse for farmworkers
both within the H-2A program as well as farmworkers who are already
lawfully present in the United States and employed in that capacity.
These commenters underscored the importance of increasing protections
for both U.S. workers' and H-2A workers' living and working conditions.
Some commenters worried that the proposed changes would increase costs
to workers, decrease their wages, or both. In contrast, one commenter
expressed concern about the proposal increasing costs for employers
through higher wages and labor standards for workers. Other commenters
expressed general concerns about how the changes would impact food
safety and the appeals process. A few commenters criticized the
proposed rule for not including provisions to address recruitment fees
and sectors in agriculture that have year-round needs for labor.
The Department values and appreciates the participation and input
from these commenters and the perspectives they have to offer. The
mission of DOL is to foster, promote, and develop the welfare of the
wage earners, job seekers, and retirees of the United States; improve
working conditions; advance opportunities for profitable employment;
and assure work-related benefits and protection of workers' rights.
Under this charge, the Department continues to be as diligent as
possible in safeguarding worker rights, promoting the welfare of all
workers, and investigating and preventing abuse within the U.S.
agricultural economy, and it shares these commenters' concerns for the
protection of all farmworkers in the United States. Where these
comments supported substantive changes within the scope of the rule,
the Department has considered and addressed these issues, in detail, in
the section-by-section analysis of this preamble.
V. Section-by-Section Summary of This Final Rule, 20 CFR Part 655,
Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501
This section of the preamble provides the Department's responses to
public comments received on the NPRM and rationale for the amendments
adopted to 20 CFR part 655, subpart B, 20 CFR 653.501(c)(2)(i), and 29
CFR part 501, section by section, and generally follows the outline of
the regulations. Within each section of the preamble, the Department
has noted and responded to those public comments that are addressed to
that particular section of this final rule. If a proposed change is not
addressed in the discussion below, it is because the public comments
did not substantively address that specific provision and no changes
have been made to the proposed regulatory text. The Department received
some comments on the NPRM that were outside the scope of the proposed
regulations, and the Department offers no substantive response to such
comments. The Department also has made some nonsubstantive changes to
the regulatory text to correct grammatical and typographical errors, in
order to improve readability and conform the document stylistically,
that generally are not discussed below.
A. Introductory Sections
1. Section 655.100, Purpose and Scope of Subpart B
The NPRM proposed minor amendments to this section to clarify the
purpose of the H-2A program regulations in paragraph (a) and the scope
of those regulations in paragraph
(b). Proposed paragraph (a) reflected the purpose of the final rule as
realizing the Department's statutory authority to establish a process
through which it will make factual determinations regarding the
issuance of a temporary agricultural labor certification and certify
its determination to DHS. See 8 U.S.C. 1188(a). Proposed paragraph (b)
described the scope of the Department's role in receiving, reviewing,
and adjudicating Applications for Temporary Employment Certification,
including establishing standards and obligations with respect to the
terms and conditions of the temporary agricultural labor certification
with which H-2A employers must comply, and the rights and obligations
of H-2A workers and workers in corresponding employment. The Department
received some comments on this provision, but has not made any
substantive changes to the regulatory text in response to these
comments. Therefore, as discussed below, this provision remains
unchanged from the NPRM except for minor technical changes.
Although many commenters generally applauded the Department's
efforts to amend the H-2A regulations through this rulemaking activity,
others stated the proposed regulations were unsatisfactory in
addressing a wide array of immigration and workforce issues impacting
the United States. Some called for an ``overhaul'' of the immigration
system as it relates to agricultural labor through this rule or through
a ``guest'' worker program, and some suggested creation of a system
where the agricultural workforce would have a pathway to citizenship.
Others stated that the changes proposed in this rulemaking would weaken
workers' wages, protections, and U.S. worker recruitment obligations,
and would not incentivize farmers' use of E-Verify administered by DHS
and the Social Security Administration. However, no commenters objected
to the Department's proposed language under Sec. 655.100 stating the
purpose and scope of its H-2A program regulations based on the
Department's statutory authority under the INA.
To the extent commenters urged action beyond the proposed changes
that the Department presented for public comment in the NPRM, their
comments are outside the scope of this rulemaking. To the extent these
commenters commented on the Department's proposals in specific
provisions of the NPRM (e.g., wage requirements or recruitment
obligations), the Department has addressed their specific comments in
the preamble discussion of those particular provisions. Generalized
comments relating to this final rule are addressed in section IV,
Discussion of General Comments. In the absence of objection to the
Department's proposed revisions to this regulatory language describing
the purpose and scope of its H-2A program regulations, the Department
has adopted these provisions as proposed, with minor changes in Sec.
655.100. In this final rule, the Department reversed the order of the
words ``purpose'' and ``scope'' in the section heading in order to
reflect the sequence of topics in paragraphs (a) and (b). The
Department also revised ``temporary agricultural labor or services'' to
now read ``agricultural labor or services of a temporary or seasonal
nature'' and included the word ``temporary'' in front of ``foreign
workers'' to better reflect the determinations made in the Department's
temporary agricultural labor certification.
2. Section 655.101, Authority of the Agencies, Offices, and Divisions
of the Department of Labor; and 29 CFR 501.1, Purpose and Scope
The NPRM proposed minor amendments to this section related to the
delegated authorities of ETA and WHD and the division of
responsibilities between the agencies in administering the H-2A
program. In addition to other statutory responsibilities required by 8
U.S.C. 1188, proposed paragraph (a) addressed ETA's authority to carry
out the Secretary's responsibility to issue temporary agricultural
labor certifications through OFLC, while proposed paragraph (b)
addressed WHD's authority to carry out the Secretary's authority to
investigate and enforce the terms and conditions of H-2A temporary
agricultural labor certifications under 8 U.S.C. 1188, 29 CFR part 501,
and 20 CFR part 655, subpart B (``this subpart'') (collectively, ``the
H-2A program''). Proposed paragraph (c) reminded program users of ETA
and WHD's concurrent authority to impose a debarment remedy, when
appropriate, under ETA regulations at 20 CFR 655.182 or under WHD
regulations at 29 CFR 501.20. The Department received a few comments on
this provision, none of which necessitated substantive changes to the
regulatory text. Therefore, as discussed below, this provision remains
unchanged from the NPRM.
Some commenters raised concerns about potential delays or confusion
related to the manner in which ETA and WHD coordinate enforcement and
share authority, as well as the level of expertise of enforcement
agencies to which ETA and WHD may make referrals. One commenter
expressed concern about the frequency of WHD investigations of H-2A
employers, as compared to non-H-2A employers, and objected to what it
perceived as an expansion of WHD's enforcement authority. Another
commenter suggested that the complementary regulation at 29 CFR
501.1(b) be revised to explicitly reference OFLC's authority to carry
out responsibilities under 20 CFR part 655, subpart B, in addition to
its authority under the statute. As the regulations are promulgated
pursuant to OFLC's statutory authority, the Department considers the
proposed regulations to adequately describe the scope of OFLC's
authority. Further, by adding paragraph (b) to 20 CFR 655.101, the
Department clarifies the role of WHD with regard to 20 CFR part 655,
subpart B, within that subpart rather than solely within the
complementary regulation at 29 CFR 501.1(c) and brings consistency to
20 CFR 655.101 and 29 CFR 501.1; both now address ETA's and WHD's
roles. To the extent commenters raised concerns about the manner in
which ETA and WHD coordinate enforcement and shared authority, in
practice, those specific comments are addressed in connection with the
relevant regulatory provision (e.g., 20 CFR 655.182(g)). As no
commenter raised issues with the proposed revisions to the description
of the authority of the Department's agencies, offices, and divisions
under 20 CFR 655.101 and 29 CFR 501.1 that necessitate changes, the
Department is adopting them in this final rule without change.
3. Section 655.102, Transition Procedures
a. Rescinding the Provision Allowing for the Creation of Special
Procedures
As stated in the NPRM, the Department's H-2A regulations have,
since their creation, provided authority under 20 CFR 655.102 to
``establish, continue, revise, or revoke special procedures for
processing certain H-2A applications,'' and the Department has
exercised a limited degree of flexibility in determining when specific
variations from the normal labor certification processes were necessary
to permit the temporary employment of foreign workers in specific
industries or occupations. However, the Department proposed to rescind
the special procedures provision in its H-2A regulations in light of
the decision in Mendoza v. Perez, 754 F.3d 1002, 1022 (D.C. Cir. 2014),
which found that the
Department's determination to establish special procedures for sheep,
goat, and cattle herding under Sec. 655.102 was subject to the
Administrative Procedure Act, possessed all the hallmarks of a
legislative rule, and could not be issued through sub-regulatory
guidance. The Department underwent notice-and-comment rulemaking to
convert the sub-regulatory guidance for sheep and goat herding and
production of livestock on the range into formal regulations; those
provisions appear in the Department's H-2A regulations at 20 CFR
655.200 through 655.235. 2015 H-2A Herder Final Rule, 80 FR 62958.\13\
Accordingly, the Department proposed in the NPRM new regulatory
provisions under Sec. Sec. 655.300 through 655.304 to incorporate the
remaining special procedures covering the specific occupations of
animal shearing, commercial beekeeping, and custom combining into the
H-2A regulatory framework, effectively rescinding the TEGLs covering
those occupations. The Department received some comments on the
Department's proposal to rescind existing Sec. 655.102, but as
discussed below, none warranted changes to the Department's proposed
rescission. Therefore, the rescission of this provision remains
unchanged from the NPRM.
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\13\ The Department recently rescinded Sec. 655.215(b)(2) in a
separate rulemaking. Final Rule, Adjudication of Temporary and
Seasonal Need for Herding and Production of Livestock on the Range
Applications Under the H-2A Program, 86 FR 71373 (Dec. 16, 2021)
(2021 H-2A Herder Final Rule).
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Some commenters generally supported the proposal to engage in
rulemaking (i.e., through the NPRM and this final rule) to incorporate
the procedures and standards from the TEGLs for itinerant animal
shearing, commercial beekeeping, and custom combining into the H-2A
regulations, with some remarking that it provided an opportunity to
comment on specific aspects of occupational variances. The Department
addresses these specific comments in the preamble sections below that
discuss Sec. Sec. 655.300 through 655.304. Several other commenters
expressed support for this proposal and cited general agreement with
the conclusion that such procedures are substantive and require formal
notice-and-comment rulemaking.
One trade association stated that it ``takes no position'' on the
proposed rule's rescission of the special procedures provision, but
recommended the procedures and standards set forth in TEGLs should
undergo ``appropriate due process'' before attaining the status of
regulations. Although other trade associations and individual
commenters were in favor of eliminating informal special procedures,
they recommended the Department retain the ability to develop formal
special procedures when circumstances arise in the future. These
commenters noted that U.S. agriculture will continue to evolve, and the
Department must have the appropriate tools to implement immediate
changes to assist farmers while protecting workers.
The Department understands the concerns expressed by a few
commenters that consideration of special variances for specific
industries or occupations, other than those addressed in this final
rule at Sec. Sec. 655.200 through 655.235 and Sec. Sec. 655.300
through 655.304, may be appropriate at some point in the future.
However, in light of the court's decision in Mendoza and the similarity
between the special procedures at issue in that case and the current H-
2A special procedure TEGLs, the Department has determined that it
should engage in formal notice-and-comment rulemaking procedures (i.e.,
through the NPRM and this final rule) to incorporate into the
regulations its current H-2A special procedures. Rescission of the
broad authority in Sec. 655.102 to establish special procedures does
not preclude the Department from engaging in future notice-and-comment
rulemaking or issuing guidance; rather, it reassures the public that
the Department will engage in notice-and-comment rulemaking to
establish variances in the future. Accordingly, the Department is
adopting its proposal to rescind from the H-2A regulations the explicit
provision permitting the Department to establish special procedures for
processing certain Applications for Temporary Employment Certification
under Sec. 655.102.
b. Transition Procedures for Implementing Changes Created by This Final
Rule
As stated in the NPRM, the Department proposed to repurpose Sec.
655.102 to clarify which set of regulations--the 2010 H-2A Final Rule
\14\ or this final rule--an employer must satisfy for each Application
for Temporary Employment Certification that it has already submitted or
that it is preparing to submit when this final rule becomes effective.
The Department proposed to rename Sec. 655.102 as ``Transition
procedures,'' and add regulatory language to support an orderly and
seamless transition between the rules.
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\14\ The Department's reference to ``the 2010 H-2A Final Rule''
herein includes the regulatory text adopted through that rulemaking,
75 FR 6884, and in other minor revisions that took effect prior to
the effective date of this final rule. 2019 H-2A Recruitment Final
Rule, 84 FR 49439 (rescinding the requirement that an employer
advertise its job opportunity in a print newspaper of general
circulation in the area of intended employment; expanding and
enhancing the Department's electronic job registry; and leveraging
the expertise and existing outreach activities of SWAs to promote
agricultural job opportunities); see also Final Rule, Rules
Concerning Discretionary Review by the Secretary, 85 FR 30608
(establishing a system of discretionary secretarial review over
cases pending before or decided by the BALCA and to make technical
changes to Departmental regulations governing the timing and
finality of decisions of the ARB and the BALCA); 2021 H-2A Herder
Final Rule, 86 FR 71373 (amending the regulations regarding the
adjudication of temporary need for employers seeking to employ
nonimmigrant workers in job opportunities covering the herding or
production of livestock on the range).
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Paragraph (a) proposed that an Application for Temporary Employment
Certification submitted to the OFLC NPC before the effective date of
the final rule would be processed under the regulations in effect when
it was submitted (i.e., the 2010 H-2A Final Rule). However, an
employer's engagement with H-2A program requirements begins in advance
of its submission of the Application for Temporary Employment
Certification to the NPC, with its submission of a job order to the SWA
for review and clearance. In order to provide similar regulatory
continuity for H-2A program job orders, paragraphs (b) and (c) proposed
a procedure for determining which set of regulations would apply to an
Application for Temporary Employment Certification submitted to the NPC
on or after the effective date of the final rule.
As a result, any Application for Temporary Employment Certification
with a first date of need no later than 90 days after the effective
date of this final rule would be processed under the 2010 H-2A Final
Rule. All other Applications for Temporary Employment Certification
submitted on or after the effective date of this final rule would be
processed under this final rule. The Department received some comments
on this provision, none of which necessitated substantive changes to
the regulatory text. Therefore, as discussed below, this provision
remains unchanged from the NPRM.
The majority of commenters that addressed transition procedures,
including trade associations, an employer, and a SWA, generally
supported the proposal. However, they expressed concern that the
transition period might occur during a busy season or across calendar
years, depending on the timing of the final rule's publication.
These commenters urged the Department to include sufficient time in the
transition period for employers to become familiar with new
requirements and for the Department and SWA to develop and implement
processes associated with the changes in the final rule, ideally
outside of busy filing periods (e.g., September, October, and
November). The Department considered these interests and concluded that
the transition procedures adopted in this final rule ensure that all
job orders and Applications for Temporary Employment Certification
submitted to the SWA and/or NPC before the effective date of this final
rule will continue to be governed by the 2010 H-2A Final Rule. Not only
will this approach ensure that the rule change does not complicate or
disrupt an employer's application process mid-stream, but it will
provide an appropriate period after publication of this final rule
during which the Department, SWAs, and employers can adjust to the new
rule before an employer submits its first job order for processing
under this final rule (i.e., with a first date of need more than 90
days after the effective date of this final rule).
Three commenters remarked on the length of the transition period
proposed. Two trade associations objected to what they viewed as a
delay of the actual effective date of the final rule. They remarked
that the final rule would not be fully in effect on the 30th day after
publication. In contrast, a SWA urged the Department to consider a
longer transition period, such as 180 days after the final rule's
publication date, stating that both SWAs and employers need more than
90 days to adjust to the substantive changes being proposed, e.g.,
survey methodologies and staggered entry.\15\
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\15\ The Department decided not to adopt several major changes
proposed in the NPRM (e.g., staggered entry), as discussed in
relevant preamble sections, which mitigates the SWA's concern to
some degree. In addition, as explained in the preamble discussing
Sec. 655.120, the Department anticipates the modernized prevailing
wage determination (PWD) survey requirements will reduce the burden
on SWAs.
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The Department appreciates both the SWA's suggestion for more time
as well as other commenters' concerns about prompt implementation of
the new rule. The transition period implemented in this final rule
balances these concerns. It allows the Department to implement
necessary changes to program operations, application forms, and
technology systems, and to provide training and technical assistance to
the NPC, SWAs, employers, and other stakeholders in order to
familiarize them with changes required by this rule. However, the
transition period also balances the preparation required to properly
implement the new rule with the importance of promptly implementing the
modernized regulations. It requires employers to prepare job orders in
compliance with the new regulations, and it requires the NPC and SWA to
be prepared to receive those job orders, 46 days after publication of
this final rule. Further, using employers' first date of need after
this final rule's effective date, rather than a job order or
Application for Temporary Employment Certification submission date,
better ensures that workers who perform labor or services during the
same season will be covered by the same set of regulations.
4. Section 655.103, Overview of This Subpart and Definition of Terms;
20 CFR 653.501(c)(2)(i) of the Wagner-Peyser Act Regulations; and 29
CFR 501.3, Definitions
a. AEWR
The NPRM proposed conforming changes to the definition of AEWR to
be consistent with the NPRM's proposal to adjust the methodology used
to establish AEWR in the H-2A program. Subsequently, the Department
issued the 2020 H-2A AEWR Final Rule (85 FR 70445), which revised the
AEWR methodology for non-range agricultural occupations and included a
revised definition of AEWR. On December 23, 2020, in United Farm
Workers v. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. filed Nov. 30,
2020), the U.S. District Court for the Eastern District of California
issued an order preliminarily enjoining the Department from further
implementing the 2020 H-2A AEWR Final Rule.\16\ On April 4, 2022, after
the parties submitted summary judgment briefing, the court vacated the
2020 H-2A AEWR Final Rule and remanded the rule to the agency for
further rulemaking consistent with the court's order.\17\ In this final
rule, the Department is implementing the court's vacatur of the 2020 H-
2A AEWR Final Rule by removing from the CFR the regulatory text that
the Department promulgated through that rulemaking at Sec. 655.103(b)
(the definition of AEWR), thereby restoring the regulatory text to
appear as it did before the effective date of the 2020 H-2A AEWR Final
Rule.
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\16\ Order Granting Plaintiffs' Motion for a Preliminary
Injunction, United Farm Workers v. U.S. Dep't of Labor, No. 20-cv-
1690 (E.D. Cal. Dec. 23, 2020), ECF No. 37. The court's order was
issued two days after the effective date of the 2020 H-2A AEWR Final
Rule.
\17\ Order Granting Plaintiffs' Motion for Summary Judgment,
United Farm Workers v. U.S. Dep't of Labor, No. 20-cv-1690 (E.D.
Cal. Apr. 4, 2022), ECF No. 102; Judgment, United Farm Workers v.
U.S. Dep't of Labor, No. 20-cv-1690 (E.D. Cal. Apr. 4, 2022), ECF
No. 103.
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The Department has good cause to bypass any otherwise applicable
requirements of notice and comment and a delayed effective date for
this portion of the rule because they are unnecessary and would be
contrary to the public interest. See 5 U.S.C. 533(b)(B), (d). First,
the changes made here carry out the ministerial task of effectuating
the court's vacatur order and restores the regulatory text to the
operative regulatory text in place prior to the publication of the now-
vacated rule (the definition of AEWR in effect under the 2010 H-2A
Final Rule). Since the court's vacatur order, no other party has sought
to appeal the court's order or otherwise block it from taking effect.
The Department has therefore concluded that the notice and delayed
effective date requirements are unnecessary.
Second, the Department has concluded that taking comment on this
change would be contrary to the public interest because it could lead
to confusion, particularly among the regulated public, as to the
applicable definition of the AEWR and the AEWR methodology. This is
especially true in light of the Department's December 1, 2021, NPRM
proposing revisions to the reinstated 2010 AEWR methodology. Continuing
to include the vacated methodology in the CFR while simultaneously
proposing to amend the 2010 AEWR methodology in the separate rulemaking
could be unnecessarily confusing to the regulated community. This
change eliminates any possible confusion over the current AEWR
methodology and, more importantly, any confusion over what methodology
the Department has proposed to change in its current AEWR
rulemaking.\18\
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\18\ As noted below, the comment period for the 2021 H-2A AEWR
NPRM closed on January 31, 2022, and the Department will address
comments received in response to that proposal in that separate
rulemaking.
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The Department has concluded that each of these reasons--that
notice and comment and a delayed effective date are unnecessary,
impracticable, and contrary to the public interest--independently
provides good cause to bypass any otherwise applicable requirements of
notice and comment and a delayed effective date.
b. Area of Intended Employment and Place of Employment
The NPRM proposed minor amendments to the definition of AIE by
replacing the terms ``place of the job opportunity'' and ``worksite''
with a newly defined term ``place(s) of employment.'' The Department
received some comments on this provision, none of which necessitated
substantive changes to the regulatory text. Therefore, as discussed
below, these definitions remain unchanged from the NPRM with one minor
revision.
As explained in the NPRM, the CO will continue using the definition
of AIE to assess whether each place of employment--defined as a
worksite or physical location where work under the job order actually
is performed by the H-2A workers and workers in corresponding
employment--is within normal commuting distance from the first place of
employment listed on the job order as a work location or, if
designated, the centralized ``pick-up'' point (e.g., worker housing) to
every other place of employment identified in the application and job
order. After considering comments, as discussed below, the Department
adopts the proposed definitions of AIE and place of employment with one
minor change, to use the term ``place of employment'' in the singular
in the definition of AIE.
Some commenters suggested the Department make substantive revisions
to the proposed definition of ``place of employment,'' given how it is
applied in the proposed definition of AIE at 20 CFR 655.103(b), and the
explicit limitation of an Application for Temporary Employment
Certification to one AIE that the Department proposed to incorporate at
Sec. 655.130(e). Some commenters asserted that travel time from one
point on a farm to another (e.g., from one field to another
noncontiguous field, or from a field to a packing facility) and/or
incidental travel off the farm to places outside of the AIE should not
be considered in the Department's AIE evaluation. Several commenters,
including a trade association, agent, and employers, used job
opportunities involving trucking duties (e.g., delivering an employer's
crops to storage or market) as examples of their concerns. These
commenters objected to listing all of a trucker's delivery and pick-up
locations on the Application for Temporary Employment Certification as
worksites, which the CO would analyze under the definition of AIE at
Sec. 655.103(b) and subject to the geographic limitation at Sec.
655.130(e). Several trade associations, agents, and employers commented
that the Department should adopt the H-1B definition of place of
employment at Sec. 655.715, asserting that the Board of Alien Labor
Certification Appeals (BALCA) has done so in some appeal decisions. One
commenter stated that adopting the H-1B definition would ensure that
certain locations where work is performed for short durations are
excluded from consideration in analysis of the AIE. An employer
supported this approach as flexible and efficient, while other
commenters stated it would provide clarity and certainty to the AIE
evaluation. An agent acknowledged that the H-1B definition might be
``less-than-ideal for the H-2A program for other reasons'' and proposed
a slightly modified version of the H-1B definition.
The Department declines to adopt the H-1B definition of ``place of
employment'' for the H-2A program because doing so would be a major
change that commenters and stakeholders generally could not have
anticipated as an outcome of the rulemaking, thus warranting additional
public notice and opportunity for comment. Additionally, the H-1B
definition of ``place of employment'' is tailored to the specialty
occupations eligible for the H-1B program, and this definition is not
easily retrofitted or modified to apply to agricultural occupations
eligible for the H-2A program.\19\ Finally, such a change is not
necessary to address commenters' concerns.
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\19\ For example, the H-1B regulations provide the following
examples of non-worksites (i.e., locations that do not constitute a
place of employment) for an H-1B worker: ``[a] computer engineer
sent to customer locations to `troubleshoot' complaints regarding
software malfunctions; a sales representative making calls on
prospective customers or established customers within a `home
office' sales territory; a manager monitoring the performance of
out-stationed employees; an auditor providing advice or conducting
reviews at customer facilities; a physical therapist providing
services to patients in their homes within an area of employment; an
individual making a court appearance; an individual lunching with a
customer representative at a restaurant; or an individual conducting
research at a library.'' See Sec. 655.715. These examples have
limited parallels within the agricultural economy.
---------------------------------------------------------------------------
The Department's proposed definition of AIE considers the normal
commuting distance to the place of employment where the workday begins,
not the geographic scope of a worker's route after the workday begins.
Under the proposed definition of ``place of employment,'' a truck
driver's delivery locations, for example, are places of employment, as
they are worksites or other physical locations at which the truck
driver performs work under the job order. However, those delivery
locations are not considered in the AIE analysis of normal commute to
the place of employment because the workday for the job opportunity
begins before a worker travels to those locations. The geographic scope
limitation on such places of employment (i.e., after the workday
begins) are addressed under Sec. 655.130(e), which, as revised,
accommodates work at ``places of employment outside of a single [AIE]
only as is necessary to perform the duties specified in the Application
for Temporary Employment Certification, and provided that the worker
can reasonably return to the worker's residence or the employer-
provided housing within the same workday.''
While not assessed as part of an AIE review, an employer must
identify on the Application for Temporary Employment Certification and
job order all places of employment, including those after the workday
begins, to allow both for the Department to review, and U.S. workers to
be apprised of, the material terms and conditions of the job
opportunity. If specific addresses are unknown, such as in the case of
crop delivery to storage or market, the employer may describe the
places to which deliveries will be made with as much specificity as
possible (e.g., county or city names). To be clear, all worksites and
physical locations where work will be performed under the job order,
both those to which a worker must commute and those to which a worker
must travel after their workday begins, must be disclosed in the
Application for Temporary Employment Certification and job order;
however, those worksites and physical locations to which a worker must
travel after the workday begins to perform work under the job order
will not be analyzed under the definition of AIE. These comments and
the limitation of an Application for Temporary Employment Certification
to one AIE, absent an exception, are discussed further in relation to
the geographic scope provision at Sec. 655.130(e).
A State employment agency expressed concern that the term ``places
of employment'' may result in employer misrepresentation of the actual
worksite, lead to confusion around where the ``actual worksite'' is
located when reviewing a job order, and require the SWAs to identify
more deficiencies in cases where the employer does not specify the
worksite as a place of employment. A forestry employer expressed
concern that the proposed definition would be unworkable because the
employer performs work at places of employment across areas wider than
normal commuting distances, considers employer-provided housing to be
home, and does not expect workers to return home to their permanent
residence each day.
To add clarity, the Department has revised the definition of AIE so
that ``place of employment'' is singular. As discussed above, there may
be a number of places of employment listed on an Application for
Temporary Employment Certification, as an employer must identify each
worksite or physical location where work under the job order will be
performed. However, the CO uses only one place--the first place of
employment identified or, if designated, the centralized ``pick-up''
point (e.g., worker housing)--to determine the normal commuting
distance around that place and whether all of the worksites or physical
locations to which a worker may commute to begin the workday are within
that normal commute. Where an employer's job opportunity involves a
planned itinerary (e.g., animal shearing subject to Sec. 655.300), and
in the event an AIE analysis is required, the normal commute at each
place along the planned itinerary would be analyzed.
Some commenters asserted that a normal-commuting-distance analysis
should focus on the location of the housing or pick-up point employers
provide for workers, rather than the places of employment listed on an
employer's Application for Temporary Employment Certification. A trade
association, with support from other commenters, stated that, because
employers are required to provide transportation to worksites from the
housing the employer provides or a pick-up point, a normal commuting
distance for U.S. workers should be measured from their home to the
housing or pick-up point, not the worksite(s); and thus argued that
worksites have little bearing on the AIE labor market test. Another
trade association similarly remarked that the ``housing or pick-up
point, rather than the worksite'' should be the determining factor,
asserting that this would reflect the commuting patterns of
agricultural workers more accurately. An employer urged adoption of a
standard that would consider a worksite to be within the AIE if the
employer has provided housing at the worksite; as normal commuting
distance would be measured from each of the various locations where the
employer provided housing to workers, employers could file fewer
Applications for Temporary Employment Certification, each application
covering multiple AIEs. Similarly, an agent stated that employers are
required to provide housing within a normal commuting distance, which
``would allow for multiple work/housing locations on a single
application.''
The Department disagrees with commenters who assert that the
location of one or more places of employment is not relevant to
evaluating normal commuting distance whenever an employer provides
transportation from a designated pick-up point, such as the housing it
provides to H-2A workers and those workers in corresponding employment
who are not reasonably able to return to their own residence within the
same day, as provided in Sec. 655.122(d)(1). The Department likewise
disagrees that providing additional housing at the place of employment
negates the need for the AIE analysis. A worker who does not reside at
the pick-up point must commute either to the pick-up point or to the
place of employment directly. Further, if the workday does not begin at
the pick-up point, the commute for a worker who travels to the pick-up
point using their own transportation continues from the pick-up point
to the place of employment using the employer's transportation. To the
extent a commute involves multiple segments, workers in corresponding
employment may not be able to reasonably return to their own residences
within the same day. Although an employer would be required to provide
such workers with housing, the Department noted in the NPRM (and
farmworkers and their advocates agreed in comments) that longer-than-
normal commuting distance, transportation issues, and any requirement
to live away from home and family are all factors that can discourage
U.S. workers from accepting temporary agricultural job opportunities,
impacting recruitment and the Department's ability to assess the labor
market prior to issuing a final determination. Should a worker in
corresponding employment choose not to live in employer-provided
housing to reduce the commute, the Department has health and safety
concerns, such as driver fatigue that can be exacerbated by increased
commute times. In a comment addressing transportation safety under
Sec. 655.122(h), a State employment agency noted that driver fatigue
in agriculture is a ``real and concerning issue,'' stating that it is
not uncommon to see workers at worksites that are hours away from
housing sites. (To the extent these commenters are discussing workers'
movement between various places of employment after the workday begins,
the Department has addressed this issue above and in Sec. 655.130(e).)
Separately, a workers' rights advocacy organization discussed the
use of the definition of AIE for other purposes, for example, to frame
the geographic area for prevailing practice and wage surveys, asserting
that regulatory language at Sec. Sec. 655.122(d)(5) and
653.501(c)(2)(i) limits AIE in those contexts to a single State. Those
comments with regard to prevailing wage surveys are addressed in the
discussion of prevailing wage determinations (PWDs) at Sec.
655.120(c).
In addition to soliciting comments on the proposed definitional
changes, the Department invited input on whether it should further
revise the definition of AIE either to continue making fact-based
determinations on a case-by-case basis, with the consideration of other
objective factors such as commuting or labor market area designation
systems or other comprehensive commuting studies and data, or to
implement a uniform standard, like a maximum commuting distance or time
above which a commute would be considered unreasonable in all cases.
The Department asked that comments address the advantages and
disadvantages of different alternatives and how implementation would
provide greater clarity and ensure the integrity of the labor market
test.
Commenters varyingly expressed general concerns that the current
definition of AIE is too broad, too narrow, or too ambiguous, but
without offering an alternative framework. A trade association stated
that AIE ``varies by the nature of the employer's need and does not fit
neatly into one defined box,'' while an employer expressed concern that
the current definition created such a broad standard that it could
result in subjective review of an application. An agent suggested the
definition of AIE should be expanded to reflect that agricultural
employers now have statewide and interstate production to ``reduce crop
failure risks, expand marketing windows, and improve capital
utilization''; otherwise, the commenter suggested, the definition
failed to accommodate modernization of agricultural operations. Many
farmworkers emphasized that it is important to them to work close
either in distance or time to where they live due to the lack of a
driver's license, post-work obligations like schoolwork, and the need
to care for their children and be available if family emergencies
occur. A workers' rights advocacy organization expressed concern that
the definition of AIE leads to a large AIE and results in fewer U.S.
worker applicants for job opportunities because the regulation does not
require employers to provide transportation to local workers.
Some commenters objected to the use of Metropolitan Statistical
Areas (MSAs) in the H-2A program's definition of AIE as an objective
means of evaluating a
normal commute in particular areas, but did not offer an alternative.
Some trade associations, with support from other commenters, asserted
that MSAs and commuting distance have no correlation with the nature of
agricultural work. For example, one commenter stated that commute times
associated with MSAs ``bear little resemblance to how agricultural
workers get to their jobs.'' A workers' rights advocacy organization
expressed concern that many farmworkers will have difficulty traveling
to and between distant points within large MSAs and cited language from
OMB stating that MSAs ``are not designed as a general-purpose framework
for nonstatistical activities.'' See 2010 Standards for Delineating
Metropolitan and Micropolitan Statistical Areas; Notice, 75 FR 37246
(June 28, 2010). One of the trade associations, with other commenters
echoing its statement, noted that the widely varying commute times
associated with different MSAs will make it difficult for a Farm Labor
Contractor (FLC) to contract with a farmer with certainty about whether
the farm will be determined to be inside or outside an arbitrary
commute time for that specific MSA.
The commenters who addressed whether the Department should impose a
more uniform standard for all employers, such as a maximum commuting
distance or time above which a commute would be considered unreasonable
in all cases, generally did not support a rigid measure of time or
distance applicable in all cases. Several trade associations and an
agent stated that use of a specific metric to determine reasonable
commuting distance would be difficult due to various factors. An agent
commented that employers transport workers to ``wherever the work is
available,'' and the Department should not limit transportation to
commute times that may vary widely based on factors like traffic
patterns. One stated that measuring commutes in miles would be
inappropriate because it would not account for areas in which distance
can be traveled quickly, and measuring in time would penalize those who
travel difficult terrain or encounter heavy traffic during daily
commutes. One trade association stated that there is too much variation
in terrain, weather, population concentration, road quality, and
traffic across the country to apply a rigid definition of normal
commuting distance. Another trade association similarly remarked that
it would be impossible to use a definitive rigid measure of reasonable
commuting distance due to variation in agriculture across the country,
and urged the Department to provide more flexibility. While one agent
suggested that a rigid commuting distance could be consistently
applied, an employer urged the Department to adopt a flexible approach
and not apply a rigid definition of normal commuting distance.
The commenters who suggested a maximum commute distance or commute
time disagreed as to an appropriate limit. Trade associations,
individual employers, and an agent suggested the Department should not
consider a commute time to be unreasonable unless, for example, the
worksite is at least 2 hours from the housing, the pick-up point, or
both. One viewed it as a more easily understood approach that ``would
prevent any misunderstanding of whether a specific farm will fit an
MSA's commute time and better conform to the realities of agricultural
employment.'' An agent commented that a smaller, more restrictive AIE
is not helpful to anyone, neither the small local workforce that is not
large enough for farmers' needs, nor the farmer who will have to
artificially separate parts of its widespread operation to fit into
discrete AIEs. This commenter argued that the Department has ``no
statistics that legal, local or domestic workers would take jobs if
they were just confined to about a 60-mile radius of any one farm.'' By
comparison, a workers' rights advocacy organization urged the
Department to limit the definition of ``normal commuting distance'' to
distances ``considerably shorter than the 60+ mile figure'' requested
by employers and suggested that a more reasonable maximum distance
might be 45 miles. Some commenters who opposed a maximum commuting
distance stated that if the Department were to adopt a maximum distance
standard, it should provide flexibility to account for typical travel
delays.
Upon careful consideration of all comments received, the Department
declines to further modify the definition of AIE. Although using MSAs
as a proxy for commuting area may result in broader geographic areas
than might seem typical for jobs in rural areas, employers are required
to provide housing to any worker in corresponding employment unable to
reasonably return home at the end of the workday, including those who
reside within the broadly identified commuting area. Some commenters
appeared to conflate the concept of ``reasonable commuting distance''
as used in this section with the requirement that the employer provide
housing to workers in corresponding employment who are not reasonably
able to return to their residence within the same day. The Department
notes that reasonable commuting distance as it relates to AIE is a
general concept, whereas a determination as to whether a worker in
corresponding employment is reasonably able to return to their
residence at the end of the day is specific to the worker in question.
Therefore, it is possible that a worker in corresponding employment
could reside within a reasonable commuting distance of the place of
employment, but could not reasonably return to their residence at the
end of the day due to personal circumstances (e.g., lack of a private
vehicle or public transportation). In such a situation, the employer
would be required to offer housing to the worker in corresponding
employment. Therefore, while commenters provided certain arguments that
MSAs might be an imperfect fit in some situations, these comments
neglect to consider the continued value in using MSAs to provide a
level of predictability and adjudicatory consistency for employers
nationwide, which the Department and many commenters both consider
important. As commenters have not identified any clearly superior
alternative, this final rule continues to rely on a case-by-case
approach to assessing AIE given the varying circumstances across areas
that affect travel and commuting times.
c. Average AEWR
The NPRM proposed to define a new term ``average adverse effect
wage rate'' (average AEWR). The term is necessary to effectuate the
Department's proposal to make adjustments to the H-2ALC surety bond
amounts based on changes to a nationwide average AEWR. The Department
proposed to calculate the average AEWR as a simple average of the
published AEWRs applicable to the Standard Occupational Classification
(SOC) 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse)
and publish an updated average AEWR annually to serve as the benchmark
for future adjustments to the required bond amounts.
The Department received only two comments specifically relating to
the proposal to define the average AEWR. Both commenters misunderstood
the nature of this proposal, believing that the Department was
proposing an alternative to the wage sources listed in Sec.
655.120(a), and opposed the proposal for this reason. The Department
reiterates that the average AEWR is only intended to be used as a
benchmark for
making adjustments to the required bond amounts. Under this proposal,
the average AEWR does not change or replace the wage rate required
under Sec. 655.120(a).\20\
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\20\ See 84 FR 36168, 36179 (explaining that the Department
proposes to maintain the current requirement in Sec. 655.120(a)
that an employer must offer, advertise in its recruitment, and pay a
wage that is the highest of the AEWR, the prevailing wage, the
agreed-upon collective bargaining wage, the Federal minimum wage, or
the State minimum wage, with only minor changes).
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Accordingly, the Department adopts the definition of average AEWR
with minor modifications. As defined in this final rule, the average
AEWR is the simple average of the AEWRs applicable to the SOC 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and published
by the OFLC Administrator in accordance with Sec. 655.120.\21\ The
revised definition clarifies that once set, the average AEWR remains in
effect until the OFLC Administrator publishes an adjusted average AEWR
and it becomes effective. Adjustments to the average AEWR will occur
consistent with the schedule for adjusting the relevant AEWRs under
Sec. 655.120.
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\21\ The AEWR methodology proposed in the NPRM would have
resulted in the publication of separate AEWRs specific to the SOC
45-2092 and other occupational classifications for field and
livestock workers. Under the modifications made to the Department's
AEWR methodology in the 2020 H-2A AEWR Final Rule, the OFLC
Administrator would instead publish an AEWR for each State for a
combined field and livestock workers category, which would be
applicable to the SOC 45-2092. However, as discussed above, the 2020
H-2A AEWR Final Rule was preliminarily enjoined in United Farm
Workers v. U.S. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. Dec. 23,
2020). Regardless of the precise AEWR methodology used, the average
AEWR will be based on the AEWRs that apply to the SOC 45-2092,
whether they are SOC-specific or for a combined field and livestock
workers category.
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d. Corresponding Employment
The NPRM did not propose amendments to the definition of
corresponding employment or request comments on any aspect of the
definition. However, the Department received a few comments suggesting
modifications to the definition, none of which necessitated substantive
changes to the regulatory text from the NPRM. Therefore, this final
rule retains the definition of corresponding employment from the
current rule without change.
Several commenters stated that the definition should be modified to
include a de minimis exception, allowing non-H-2A workers to perform a
limited amount of work similar to the duties described in the job order
or performed by the H-2A workers without being considered to be engaged
in corresponding employment. Alternatively, several commenters
indicated that the definition should be more similar to the definition
of corresponding employment under the H-2B program regulations, which
defines corresponding employment to include work that is either
substantially similar to the work included in the job order or
substantially the same work performed by H-2B workers, and excludes
certain full-time, incumbent employees. See 20 CFR 655.5; 29 CFR 503.4.
The Department has carefully considered these comments requesting
that the definition of corresponding employment be revised and narrowed
but declines to alter the definition of corresponding employment at
this time. The Department did not propose any changes to the definition
of corresponding employment or request comments on any aspect of the
definition. Many parties who would be affected by any change in the
definition of corresponding employment therefore had no reason to
anticipate any change in the current definition or to provide input as
to how the definition could be revised. The Department received only a
limited number of comments on this topic, all from employers and their
representatives, with no feedback from other affected parties to enable
the Department to obtain multiple perspectives on this issue. Further,
the regulation provides important protections for workers by requiring
that non-H-2A workers performing the same work as H-2A workers receive
the same wages and working conditions as H-2A workers. Accordingly, the
Department declines to adopt any changes to the definition of
corresponding employment.
e. Employer and Joint Employment
The NPRM proposed amendments to the definitions of ``employer'' and
``joint employment'' to clarify the use of these terms in the filing of
Applications for Temporary Employment Certification and the
responsibilities of joint employers, consistent with the INA and the
Department's longstanding administrative and enforcement practice. The
Department received many comments on these proposed definitions, none
of which necessitated substantive changes to the regulatory text.
Therefore, as discussed below, these definitions remain unchanged from
the NPRM with one minor revision.
Section 218 of the INA recognizes that growers, agricultural
associations, and H-2ALCs that file applications are employers or joint
employers.\22\ In conformity with the statute as well as the
Department's current policy and practice, the NPRM proposed to clarify
the definitions of employer and joint employment with respect to the H-
2A program to include all of those entities the statute deems employers
or joint employers. Specifically, the Department proposed to add
language to the definition of joint employment to clarify that an
agricultural association that files an application as a joint employer
is, at all times, a joint employer of all H-2A workers sponsored under
the application and, if applicable, of corresponding workers. The
Department further proposed to clarify the definition of joint
employment to include an employer-member of an agricultural association
that is filing as a joint employer, but only during the period in which
the employer-member employs H-2A workers sponsored under the
association's joint employer application. The Department proposed to
add language to the definition of joint employment to clarify that
growers that file the joint employer application proposed in Sec.
655.131(b) are joint employers, at all times, with respect to the H-2A
workers sponsored under the application and all workers in
corresponding employment. In light of these proposed changes, the
Department also proposed a slight change to the joint employment
language in the current regulation to clarify that entities that do not
file applications but jointly employ workers under the common law of
agency are also joint employers that may be held liable for violations
under the statute. In other words, entities that file applications as
joint employers are joint employers as a matter of law, regardless of
the common law of agency. The Department will assess the joint employer
status of all other entities based on the nature of the employment
relationship between the putative joint employer and the worker under
the common law of agency, as provided in the existing definition of
employee at Sec. 655.103 and required by Supreme Court precedent. In
addition to the proposed changes to the definition of joint employment,
the Department proposed to add language to the definition of employer
to clarify that a
person who files an application other than as an agent is an employer
and, similarly, that a person on whose behalf an application is filed
is an employer. As the Department noted in the NPRM, these proposed
revisions reflected the Department's longstanding administrative and
enforcement practice that is already familiar to employers.
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\22\ See 8 U.S.C. 1188(c)(2) (``The employer shall be notified
in writing within seven days of the date of filing if the
application does not meet the [relevant] standards''); 8 U.S.C.
1188(c)(3)(A)(i) (``The Secretary of Labor shall make . . . the
certification described in subsection (a)(1) if . . . the employer
has complied with the criteria for certification''); 8 U.S.C.
1188(d)(2) (``If an association is a joint or sole employer of
temporary agricultural workers, . . . [H-2A] workers may be
transferred among its [employer-]members'').
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Joint Employment for Agricultural Associations Filing as a Joint
Employer With Their Employer-Members
The Department received numerous comments related to its proposal
to clarify that an agricultural association that files an application
as a joint employer is, at all times, a joint employer of all H-2A
workers sponsored under the application and, if applicable, of
corresponding workers. Two associations supported the proposed
definition of joint employment. Two other associations submitted
lengthy comments opposing the proposal. The two associations opposing
the proposal each asserted the INA does not permit the Department to
impose joint employer liability on an agricultural association for the
violations of an association member, unless the association committed,
participated in, or had knowledge of the violation. The associations
cited sec. 1188(d)(3)(A) of the INA, which limits the debarment of
joint employer agricultural associations based on violations an
employer-member commits to instances in which the agricultural
association committed, participated in, had knowledge of, or had reason
to know of the violation. The associations submitted that Congress's
specific choice to permit debarment for an employer-member violation
only when an agricultural association meets this standard evinces a
general intent to hold agricultural associations otherwise accountable
for employer-member violations only when they committed, participated
in, or knew of the underlying violation.
The associations explained that Congress conferred a ``special
status'' on agricultural associations ``in order to level the playing
field for small employers'' and that imposing joint employer liability
on agricultural associations that elect to file a joint employer
application would ``frustrate that status'' because associations cannot
afford exposure to such liability. Both assert that exposure to such
liability would result in associations' inability to file joint
employer applications. The associations also stated that the Department
has historically applied the common law of agency to determine whether
an entity employs a worker and oppose the ``proposed radical change to
agency law.''
Two other associations asserted that the Department has never held
an association liable for employer-member violations unless the
association was involved in or directly participated in the violation.
One of these associations also agreed with the two associations
described immediately above that the proposal to hold agricultural
associations accountable for employer-member violations when the
agricultural association elected to file a joint employer application
is inconsistent with the statute. That association also commented that
the proposal will reduce small farmers' access to the program and
potentially threaten the existence and participation of associations in
the program. And finally, various other employer commenters lodged
general objections to holding associations liable for the violations
that their employer-members commit.\23\
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\23\ Another agricultural association that submitted a comment
(generally supported by several other commenters, including trade
associations and individual employers) offered no criticism of the
NPRM's clarification that agricultural associations that file a
joint employer application are liable at all times for violations
committed against H-2A workers sponsored under the applications as
well as any applicable corresponding workers.
---------------------------------------------------------------------------
A workers' rights advocacy organization supported the Department's
proposal to clarify that an agricultural association that elects to
file a joint employer application is at all times a joint employer of
the H-2A workers sponsored under the application as well as any
corresponding workers. The commenter submitted that the clarification
will incentivize associations to monitor employer-member compliance
with program requirements.
After carefully considering the comments it received, the
Department has decided to retain its proposed clarification of the
definition of joint employment to include language specifying that an
agricultural association that files an application as a joint employer
is, at all times, a joint employer of all H-2A workers sponsored under
the application and any corresponding workers. The plain language of
sec. 1188(d) of the INA requires this interpretation. Section
1188(d)(2) only allows an agricultural association to file a single
application on behalf of its employer-members to sponsor H-2A workers
that it may ``transfer'' among its membership ``[i]f [the agricultural]
association is a joint or sole employer of temporary agricultural
workers.'' \24\ Thus, an association attests to joint employer status
when it submits a joint employer application for authorization to
transfer H-2A workers among its membership. In addition to permitting
the association to transfer H-2A workers, filing a single application
rather than individual applications on behalf of each employer-member
of an agricultural association results in significant financial savings
and substantially reduces the efforts and costs associated with the
required recruitment and advertising. The statute requires an
agricultural association to assume joint employer (or sole employer)
status to qualify for these benefits.\25\ Even if the statutory
language did not compel this result, the Department would nevertheless
adopt this interpretation as agricultural associations are uniquely
positioned to be knowledgeable of program requirements, and this
requirement encourages associations that transfer workers among their
employer-members to ensure that their employer-members understand
program rules and regulations, assist their membership in achieving
compliance, and provide accountability for agricultural associations
filing as joint employers.
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\24\ See also the title of sec. 1188(d)(2) (``Treatment of
Associations Acting as Employers.'') (emphasis added).
\25\ See Admin. v. WAFLA, ALJ No. 2018-TAE-00013 (OALJ Aug. 25,
2021), appeal pending, ARB No. 2021-0069 (agricultural association
is a joint employer of workers employed under master application as
a matter of law); Little v. Solis, 297 FRD. 474, 478 (D. Nev. Jan.
27, 2014) (as a joint employer applicant, agricultural association
is a joint employer of H-2A workers for purposes of the H-2A
program); Ruiz v. Fernandez, 949 F. Supp. 2d 1055, 1072 (E.D. Wash.
June 7, 2013) (an agricultural association that submits a joint
employer application is a party to the H-2A workers' work contracts
as a matter of law); Martinez-Bautista v. D & S Produce, 447 F.
Supp. 2d 954, 962 (E.D. Ark. Aug. 25, 2006) (entities that jointly
applied to employ H-2A workers are joint employers of the workers);
cf. WHD v. Native Techs., Inc., ARB No. 98-034, 1999 WL 377285, *6
(ARB May 28, 1999) (filer of a labor condition application under H-
1B provisions of the INA is an ``employer'' by operation of law,
independent of criteria under the common law test of employer); but
see Admin. v. Azzano Farms & WAFLA, ALJ No. 2019-TAE-00002 (OALJ
Oct. 2, 2019), appeal pending, ARB No. 2020-0013.
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Should an agricultural association prefer not to accept the
obligations of joint (or sole) employment, it may choose instead to
file individual applications on behalf of its employer-members as an
agent, thereby limiting its liability, consistent with sec. 1188(d)(1)
(but also foregoing the privileges that apply if it files a Master
Application). The statutory scheme accordingly permits an agricultural
association to choose to assume the
traditional responsibilities of a joint/sole employer, including any
liability to the workers it jointly/solely employs--or file an
application as an agent and generally avoid employer liability.
However, when associations file as agents, H-2A workers cannot be
transferred among their employer-members, pursuant to sec. 1188(d)(2).
The Department notes the contention that it has never sought to
hold an agricultural association liable for employer-member violations
unless the agricultural association was involved in the violations is
inaccurate. Holding an association accountable for employer-member
violations when the association attested to joint employer status is
consistent with WHD's current statutory interpretation and its
enforcement policy. WHD is presently asserting before the ARB that an
association is liable for its employer-member's violations based solely
on its having filed a joint employer application.\26\ WHD has also
previously sought to enforce program requirements against other
associations based solely on their election of joint employer status.
---------------------------------------------------------------------------
\26\ See Azzano Farms, ARB No 2020-0013; WAFLA, ARB No. 2021-
0069.
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Additionally, it is inaccurate to state that sec. 1188(d)(3)(A)
provides that violations committed by an association member are not the
responsibility of an association unless the Secretary determines that
the association participated in, had knowledge of, or had reason to
know of the violations. Rather, this section provides that an
association is not subject to debarment when an employer-member commits
a violation (unless the Secretary determines that the association or
other employer-member participated in, had knowledge of, or had reason
to know of the violations). Read together, sec. 1188(d)(2) and (3)(A)
assign full legal responsibility to agricultural associations for
employer-member violations, with the exception of a release from
program debarment for an agricultural association when the Department
cannot satisfy sec. 1188(d)(3)(A)'s more exacting standard.
The debarment standard provides a meaningful limitation on the
Department's authority to debar an agricultural association for its
employer-member's violations. Consistent with the provision, the
Department's implementing regulations do not permit the Department to
debar an association merely because its employer-member committed a
substantial violation that subjects the employer-member to debarment.
See 29 CFR 501.20(f).
When an association is not subject to debarment, civil money
penalty assessments against the agricultural association for employer-
member violations may be lower than those assessed for association
members. As the Department noted in the NPRM, it will continue to apply
its longstanding policy with respect to imposing liability among
culpable joint employers. This policy includes consideration of the
factors at Sec. 501.19(b) when the Department assesses civil money
penalties. The Department applies these factors to joint employers on a
case-by-case basis. Thus, for example, if the Department determines an
agricultural association achieved no financial gain from an employer-
member's failure to pay the required wage to H-2A or corresponding
workers, but that the employer-member achieved significant financial
gain, the civil money penalty, if any, applicable to the association
would likely be less than that applicable to the employer-member for
this violation.
Joint Employment for Employers Filing Joint Employer Applications Under
Sec. 655.131(b)
The Department received various comments concerning its proposal to
add language to the definition of joint employment clarifying that
growers that file the joint employer application proposed in Sec.
655.131(b) are joint employers, at all times, with respect to the H-2A
workers sponsored under the application and any corresponding workers.
Five organizations representing growers' interests expressed
appreciation that the Department was proposing to permit ``small
growers to jointly apply'' for H-2A workers and to permit such growers
to share H-2A workers. However, these commenters, as well as a sixth
organization, all opposed the Department's proposal to treat each
grower as a joint employer at all times for purposes of liability. The
five organizations representing growers' interests requested that the
Department only hold employer(s) that commit a program violation
accountable. They asserted that co-applicants that do not commit the
violations are ``innocent'' and should not be held liable ``for another
employer's violation(s).'' The sixth organization similarly submitted
that ``[o]nly the employer [that] is guilty for violating the terms of
the program should be penalized.'' Another organization representing
growers' interests likewise contended ``there is no basis for extending
liability to any entity that did not have knowledge of or participate
in any violation . . . .''
A workers' rights advocacy organization suggested that the job
order that joint employers file in connection with a Sec. 655.131(b)
joint employer application should include language specifying that all
named employers are agreeing to joint employment liability for the
entire period of employment listed on the order. Otherwise, the
commenter asserted, joint employers might contend liability extends
solely to the dates on which H-2A workers complete work at the property
owned or operated by the particular employer. The commenter
specifically submitted this addition is necessary to prevent joint
employer applicants from ``disputing joint employment should something
go wrong.''
The Department has reviewed closely the comments it received on
this subject. It has decided to retain its proposed clarification of
the definition of joint employment to include language specifying that
the joint employers that file an application under Sec. 655.131(b)
are, at all times, joint employers of all H-2A workers sponsored under
the application and, if applicable, of corresponding workers. The
purpose of the Department's proposal to add Sec. 655.131(b) to its
implementing regulations was to permit a small grower that has a need
for H-2A workers but cannot, alone, guarantee full-time employment to
use the H-2A program by joining with another (or other) small grower(s)
in the same area to obtain H-2A workers to perform the same work. Full-
time employment under the program is 35 hours per workweek. See Sec.
655.135(f). The proposal accordingly permits co-applicants that cannot,
alone, employ a worker for 35 hours per workweek to file an application
together to employ H-2A workers and to move sponsored H-2A workers from
one employer to another to satisfy the 35 hours per workweek
requirement.
The statute specifically contemplates that all filers (other than
agents) are employers and only expressly permits an entity (i.e., an
agricultural association) to move H-2A workers from one employer to
another when the entity agrees to retain program responsibility and
liability with respect to the workers it moves. See 8 U.S.C.
1188(d)(2). Therefore, as the Department stated in the NPRM and
reaffirms here, the statute requires entities that jointly apply for H-
2A workers whom they intend to move among themselves to retain program
responsibility with respect to the H-2A workers and, if applicable, any
corresponding workers. Because the statute provides that an entity
permitted to move H-2A workers from one employer to another must
retain program responsibility with respect to the workers, and because
the retention of such responsibility will aid the Department's
enforcement of the program and enable corresponding workers and H-2A
workers to obtain the wages they are owed consistent with joint
employment principles, the Department is not adopting the commenters'
request to release co-applicants from liability for the violations that
another co-applicant commits. Thus, if the Department determines any
employer named in the Application for Temporary Employment
Certification under Sec. 655.131(b) has committed a violation, either
one or all of the employers named in the Application for Temporary
Employment Certification can be found responsible for remedying the
violation(s) and for attendant penalties. For example, if employer C
and employer D file a joint employer application under proposed Sec.
655.131(b) and employer C fails to pay the H-2A workers the required
wage, employer D will be jointly liable for employer C's violations.
This approach not only conforms to the statute, it is consistent with
judicial authority.\27\ Further, even if the statutory language did not
require this interpretation, the Department would adopt it. The
Department believes this policy will encourage employer compliance
while helping to ensure that any back wages owed by joint employers
will be paid. As an enforcement matter, it can be difficult to
determine exactly where workers employed by joint employers are
employed in a given workweek. The focus on the joint nature of the
employment rather than the individual employer will assist in obtaining
the wages owed to workers in the event they are underpaid and provide
an incentive for all joint employers to maintain and monitor
compliance.
---------------------------------------------------------------------------
\27\ Martinez-Bautista v. D & S Produce, 447 F. Supp. 2d 954,
960-62 (E.D. Ark. 2006) (ruling entities that jointly applied to
employ H-2A workers are joint employers of the workers and rejecting
application of agricultural association liability principles when
the joint employers had not filed through an association).
---------------------------------------------------------------------------
However, the Department retains discretion to impose lower civil
money penalties against the joint employers that did not commit the
underlying violation. If it determines any such penalties are
appropriate, such penalties may be less than those it imposes against
the joint employer that committed the violation. As the Department
noted above, it will continue to apply its longstanding policy with
respect to imposing liability among culpable joint employers. This
policy includes consideration of the factors at 29 CFR 501.19(b) when
the Department assesses civil money penalties. The Department applies
these factors to joint employers on a case-by-case basis. Thus, for
example, if the Department determines a joint employer had no previous
history of violations, but that the other joint employer had a previous
history of violations, the civil money penalty, if any, applicable to
the joint employer with no previous history of violations would likely
be less than that applicable to the joint employer that committed the
violation.
Furthermore, as with agricultural associations that filed a joint
employer application with their employer-members, the Department will
not debar a joint employer that filed a joint employer application
under 20 CFR 655.131(b) merely because another joint employer committed
a substantial violation that subjects that other joint employer to
debarment. Thus, for instance, if employer D in the example above did
not participate in employer C's violation, the Department will not seek
to debar employer D, even if employer C's underlying violation is
substantial and subjects employer C to a debarment remedy. The
Department has edited 20 CFR 655.182(h) and 29 CFR 501.20(f) to confirm
this approach.
Joint Employment Period for Employer-Members Employing H-2A Workers
Under an Agricultural Association Filing as a Joint Employer With the
Employer-Members
The Department proposed to clarify the definition of joint
employment to include an employer-member of an agricultural association
that is filing as a joint employer during the time the employer-member
employs H-2A workers sponsored under the association's joint employer
application. Therefore, an employer that employs H-2A workers sponsored
under an agricultural association joint employer application is jointly
employing the H-2A workers with the agricultural association and,
accordingly, is liable for any violations committed during the period
it employs such workers. The proposed rule additionally clarified that
an employer that is a member of an agricultural association that filed
a joint employer application is only in joint employment with the
agricultural association when it is employing the pertinent H-2A
workers. Thus, if employer-member A commits program violations at a
time when it is the only employer-member jointly employing the
pertinent H-2A workers with the agricultural association, other
employer-members within the association are not liable for such
violations (provided the other employer-members did not participate in
the violations, which were substantial, and thereby subject themselves
to debarment). See 8 U.S.C. 1188(d)(3)(A); 29 CFR 501.20(f). The
Department received no comments that caused it to reconsider this
proposal. The Department has accordingly implemented the provision
unchanged from the NPRM in this final rule.
The Department notes that the arrangement described above under
Sec. 655.103(b) is different from employers filing joint employer
applications under Sec. 655.131(b) that are, at all times, liable for
any violation that another joint employer commits. As discussed
previously, each Sec. 655.131(b) joint employer is permitted to move
H-2A workers to its co-applicants, whereas it is the agricultural
association, not the employer-member, that may transfer workers when
the agricultural association files as a joint or sole employer. The
statute expressly permits an association to move H-2A workers from one
entity to another only when the association agrees to retain program
responsibility with respect to the moved H-2A workers by filing as a
joint or sole employer. The Department has accordingly concluded that
to permit Sec. 655.131(b) joint employers to move workers, it must
require the joint employers, like an agricultural association permitted
to transfer H-2A workers, to retain program responsibility with respect
to the H-2A workers. In short, the legally relevant analog to Sec.
655.131(b) joint employers for purposes of determining whether to
require such employers to retain program responsibility at all times is
an agricultural association that files a joint or sole employer
application (not an employer-member of such an association). As a
matter of policy, providing joint employers joint responsibility also
serves to better ensure compliance with statutory and regulatory
requirements in the same way that shared responsibility between
associations and their membership incentivizes compliance.
The Joint Employment Language More Expressly Codifies That the Common
Law of Agency Determines Joint Employer Status for Non-Filers
In the NPRM, the Department proposed a slight change to the joint
employment language in the current regulation to make clear that an
entity that meets the definition of employer under the common law of
agency but did not file an H-2A application is a joint employer. As the
Department explained in the NPRM, controlling judicial and
administrative decisions provide that to the extent a Federal
statute does not define the term employer, the common law of agency
governs whether an entity is an employer.\28\ Accordingly, the proposal
continued to use the common law of agency, as provided by current Sec.
655.103 in the definition of employee, to define the term joint
employment for associations and growers that have not filed
applications (as well as to define the term employer when an entity has
not filed an application). Thus, for example, under the Department's
current and continuing enforcement policy--with which employers are
already familiar--a grower is a joint employer with an H-2ALC with
which it contracts to provide H-2A workers if the grower is jointly
employing the H-2A workers under the common law of agency. The
Department received no comments that caused it to reconsider this
proposal. It has accordingly implemented the proposal unchanged from
the NPRM in this final rule.\29\
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\28\ See Nationwide Mutual Insurance v. Darden, 503 U.S. 318,
322-24 (1992); Garcia-Celestino v. Ruiz Harvesting, 843 F.3d 1276,
1288 (11th Cir. 2016); Admin. v. Seasonal Ag. Services, Inc., ARB
Case No. 15-023, 2016 WL 5887688, at *6 (ARB Sept. 30, 2016). The
focus of the common law standard is the ``hiring entity's `right to
control the manner and means by which the product is accomplished.'
'' Ruiz Harvesting, 843 F.3d at 1292-93 (quoting Darden, 503 U.S. at
323). Application of the standard typically entails consideration of
a variety of factors. See id. at 1293 (citing Darden, 503 U.S. at
323-24).
\29\ The Department additionally notes, as it did in the NPRM,
that the current H-2A program definitions of employer and joint
employment, as well as those the Department is implementing herein,
are different from the definitions of ``employer,'' ``employee,''
and ``employ'' in the Fair Labor Standards Act, 29 U.S.C. 201 et
seq. (FLSA) and the definition of ``employ'' in the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq.
(MSPA).
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The Department Is Adopting Clarifications to the Definition of Employer
Proposed in the NPRM
In the NPRM, the Department proposed to add language to the
definition of employer to clarify both that a person who files an
application other than as an agent is an employer and that a person on
whose behalf an application is filed is an employer. An employer
association opposed the proposed clarification. Its comment appeared to
say that the definition of employer should be no broader than an entity
that employs H-2A workers under the common law of agency. Two other
associations asserted the proposed clarifications to the definition of
employer are inconsistent with the INA. These two associations
specifically asserted the statute does not permit the Department to
hold agricultural associations accountable as an ``employer'' when they
have filed a joint employer application on behalf of their employer-
members. The Department addressed above why the statute not only
permits but also requires it to treat an agricultural association that
files a Master Application as a joint employer of the pertinent
workers. Because a joint employer is simply an employer of workers that
another entity also employs, the statute requires the Department to
treat an agricultural association that files an application as a joint
employer as an ``employer.'' The Department's clarification of the
definition of employer to include those that file an application (other
than as an agent) is not only consistent with the INA; the INA compels
it. Further, even if the INA did not compel this conclusion, the
Department would nonetheless adopt these clarifications as a matter of
good policy. The Department believes this policy will encourage
employer compliance by providing an incentive for associations to
disseminate information, make additional inquiries regarding their
employer-members' responsibilities to workers under certified H-2A
applications, and help to assure that any back wages owed by joint
employers will be paid in full.
The Department also received a comment that the current definition
of employer does not adequately contemplate complex business
organizations. It is beyond the scope of this rulemaking for the
Department to determine all the ways that a business seeking to use the
H-2A program might organize itself. The Department hopes the following
general guidance will be useful to entities that use complex business
structures. The Department will treat the entity that files an
application as an employer unless the filer identifies itself as an
agent. If the filer identifies itself as an agent, the Department will
treat as an employer the entity the agent identifies as its principal.
The Department will also treat any other entity that actually employs
the pertinent H-2A workers under the common law of agency as an
employer. For example, if one entity within a complex business
organization files an application as an employer and another entity
within the same complex business organization employs the workers under
the common law of agency, the Department will treat each entity as an
employer (whether or not the filer jointly employs the workers under
the common law). Other tests that may pertain to the employment
relationship under Federal common law such as the integrated employer
or the successor in interest tests may also be applicable depending on
the facts of the individual case. This paragraph is intended to provide
general guidance, however, and as mentioned above, it is beyond the
scope of this rulemaking to determine all the ways that a business
seeking to participate in the program might organize itself.
A commenter also brought to the Department's attention a minor
grammatical error in the regulatory text's definition of employer at
paragraph (iii). The Department agrees with the commenter and has made
a minor technical change to the language to address the grammatical
error.
Employer-Member Responsibility for Violations Committed Under a Joint
Employer Application Filed by an Agricultural Association
Consistent with existing practice, the Department observed in the
NPRM that when an agricultural association files a joint employer
application, an employer-member of that association is an employer of
the H-2A workers during the time the employer-member employs the
workers. The Department further noted that when only one employer-
member is employing the H-2A workers at the time of a program
violation, only that employer-member and its agricultural association
are fiscally responsible for program violations. The Department
received no comments opposing this approach and is accordingly
implementing it unchanged from the NPRM.
Department's Approach To Imposing Liability Among Culpable Joint
Employers
In the NPRM, the Department proposed to continue to apply its
longstanding policy with respect to imposing liability among culpable
joint employers. This policy, as noted previously, includes
consideration of the factors at 29 CFR 501.19(b) when the Department
assesses civil money penalties. The Department applies these factors to
joint employers on a case-by-case basis. For example, if the Department
determines an agricultural association achieved no financial gain from
an employer-member's failure to pay the required wage to H-2A or
corresponding workers, but that the employer-member achieved
significant financial gain, the civil money penalty, if any, applicable
to the association would likely be less than that applicable to the
employer-member for this violation.
The Department received multiple comments supporting this approach.
For example, a grower association specifically voiced its support for
the
case-by-case approach. The Department also received a comment from
another grower association opposing this approach, however, arguing
that only the culpable party or parties should be assessed a civil
money penalty. As noted above, the Department will apply the relevant
factors on a case-by-case basis to joint employers and thus
appropriately consider culpability. The Department accordingly intends
to continue to assess civil money penalties against joint employers in
this manner.
Proposal To Move Certain Requirements in the Definition of Employer
The current definition of employer in the H-2A program requires an
employer to have a place of business in the United States and a means
of contact for employment as well as a Federal Employer Identification
Number (FEIN). The Department proposed to move these requirements to
Sec. Sec. 655.121(a)(1) and 655.130(a). The proposal required a
prospective employer to include its FEIN, its place of business in the
United States, and a means of contact for employment in both its job
order submission to the NPC and its Application for Temporary
Employment Certification. The Department is implementing its proposal
to move these requirements unchanged from the NPRM in this final rule.
f. First Date of Need and Period of Employment
The NPRM proposed to add definitions of the terms ``first date of
need'' and ``period of employment.'' The Department received many
comments on the definition of ``first date of need'' and has revised
the proposed definition after consideration of these comments, as
discussed below. The Department received no comments on the proposed
definition of ``period of employment'' and has adopted the definition
without change from the NPRM.
The Department explained in the NPRM that an employer indicates the
period of employment on its job order and Application for Temporary
Employment Certification by identifying the first and last dates on
which it requires the temporary agricultural labor or services for
which it seeks a temporary agricultural labor certification. The first
date the employer identifies on the job order and Application for
Temporary Employment Certification is used as the date on which work
will start for purposes of recruitment and for calculating program
requirements (e.g., the positive recruitment period under Sec.
655.158). However, as actual start dates may vary due to such factors
as travel delays or crop conditions at the time the employer expected
work to begin, the Department proposed to define the term ``first date
of need'' as the first date on which the employer ``anticipates''
requiring the temporary agricultural labor or services sought. The
Department explained that the inclusion of the word ``anticipates'' in
the definition would provide a limited degree of flexibility--up to 14
calendar days after the first date of need listed on the temporary
agricultural labor certification--for the actual start date of work for
some or all of the temporary workers hired to occur.
Commenters who supported the proposed definition and the inclusion
of the word ``anticipates,'' included employers, agents, trade
associations, two State government commenters, and a State elected
official. These commenters asserted that some flexibility to adjust
actual start dates would simplify the program and facilitate both
compliance and administration, while ensuring workers still receive the
benefits promised.
Commenters who opposed the definition, including a workers' rights
advocacy organization and farmworkers, focused their opposition on the
potential for actual start date variability underlying the word
``anticipates.'' These commenters asserted that delayed start dates are
harmful to workers, who value predictability and certainty in
employment start dates, particularly where they turn down other work or
have to travel far to make themselves available to work at the time and
place needed. In addition, these commenters stated that farmworkers
have expenses beyond housing and meals and cannot afford to lose
expected pay for up to 2 weeks, should the actual start date be later
than the first date of need offered. Similarly, one State government
commenter recommended the Department further clarify employer
obligations to provide subsistence and/or meals to workers when work
does not start on the anticipated start date to ensure that employers
understand and satisfy those obligations.
The workers' rights advocacy organization urged the Department to
strengthen protections in the employment service regulations at Sec.
653.501(c)(5) if the Department retains the proposal, by requiring the
employer to pay workers the hourly rate for the hours listed on the job
order on each day work is delayed (not only the workdays in the first
workweek), unless the employer notifies both the SWA and worker (not
only the SWA) at least 10 days before the anticipated start date, and
setting the three-fourths guarantee calculation to the anticipated
start date, rather than the actual start date. Amending the regulations
at Sec. 653.501(c)(5) as suggested would be a major change to that
regulation that commenters and stakeholders could not have anticipated
as an outcome of the proposed definitions, thus warranting additional
public notice and opportunity for comment. As such, the Department
declines to adopt the suggestion at this time.
A number of commenters expressed concern about the proposal. One
employer thought workers might misuse the definition to arrive ``late''
and, as a result, employers would not have workers in place when
needed. However, the Department did not intend for this definition to
provide a flexible window for workers' arrival at the place of
employment without the employer's consent. During recruitment, workers
agree to make themselves available at the time and place needed. Should
a worker not report for work for 5 consecutive working days without the
employer's consent, the employer may exercise the abandonment provision
at Sec. 655.122(n). In addition, a workers' rights advocacy
organization expressed concern about the definition's application in
master applications (i.e., applications agricultural associations may
file in joint employment with their employer-members). The commenter
thought that the actual start date flexibility, when combined with the
Department's proposal to allow employer-members' actual start dates to
vary by up to 14 days, could result in workers employed under a master
application having actual start dates that vary by up to 28 days. This
commenter asserted that this combination would increase the complexity
of master applications and uncertainty for workers, which could
discourage U.S. workers from applying. However, the proposed definition
was intended to anchor the 14-day actual start date flexibility
applicable to all employer-members on the master application to the
earliest anticipated start date of any employer-member included in the
application. As a result, all employer-members included in the master
application would have been limited to the same 14-day ``anticipated''
start date flexibility window as any other H-2A application, calculated
from the earliest employer-member start date included in the
application.
One commenter supported the definition and the 14-day flexibility
discussed but stated 30 days of flexibility would be preferable. The
commenter's suggestion would amplify
concerns other commenters have expressed about workers waiting for work
to begin, which is a concern shared by the Department. In addition, the
suggestion is inconsistent with the Department's observation of
existing practice, as discussed above, in which a start date may vary
slightly due to factors beyond an employer's control. Because the
Department intended in the NPRM to clarify, not change, existing
requirements and practice regarding anticipated and actual start dates,
the Department declines to adopt the suggestion by the commenter.
After consideration of the comments and suggestions, the Department
reiterates that the proposed definition, including the word
``anticipates,'' was only intended to make plain the Department's
existing understanding that a projected start date of need is difficult
to set with certainty, given the required time periods for filing, and
the actual start date of agricultural work must be afforded some
flexibility to accommodate environmental and other agricultural
conditions at the time work was projected to begin. For example, the
Wagner-Peyser agriculture clearance system uses the term
``anticipated'' in relation to start dates and provides a process close
to the start date the employer identified in the job order for the
employer, the SWA, and referred farmworkers to communicate regarding
the actual start date of work. See Sec. 653.501(c)(1)(iv)(D),
(c)(3)(i) and (iv), (c)(5), and (d)(4). These regulations require an
employer to notify the SWA of start date changes at least 10 business
days before the originally anticipated start date and require the SWA
to notify farmworkers that they should contact the SWA between 9 and 5
business days before the anticipated start date to verify the actual
start date of work. Sec. 653.501(c)(5) and (d)(4).
The Department also appreciates the opportunity to clarify employer
obligations and worker protections regarding possible changes from the
first date of need disclosed in the H-2A job order to the actual start
date of work. As discussed above, the Wagner-Peyser agriculture
clearance system regulations facilitate communication between employers
and farmworkers before workers who must travel to the place of
employment depart for the place of employment. If an employer fails to
timely notify the SWA of a start date change (i.e., at least 10
business days before the anticipated first date identified in the job
order), beginning on the first date of need, it must offer work hours
and pay hourly wages to each farmworker who followed the procedure to
contact the SWA for updated start date information. See Sec.
653.501(c)(3)(i) and (c)(5). In addition, under the Department's H-2A
regulations at Sec. 655.145(b), if an employer requests a start date
delay after workers have departed for the place of employment, the
employer must assure the CO that it will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If an
employer fails to comply with its obligations, the SWA may notify the
Department's WHD for possible enforcement, as provided in Sec.
653.501(c)(5), or the Department may pursue revocation of the temporary
agricultural labor certification, following the procedures at Sec.
655.181, or debarment of the employer, following the procedures at 20
CFR 655.182 or 29 CFR 501.20.
Although the January 2021 draft final rule would have adopted the
proposed definition of ``first date of need,'' after further
consideration of the comments, the Department has determined that
adopting the definition as proposed--including the term
``anticipates,'' which the Department explained as a 14-day start date
flexibility in the actual start date of work--in this final rule could
increase, rather than decrease, complexity and confusion with regard to
an employer's obligations in the event a start date delay is necessary.
Including the word ``anticipates'' in the definition added ambiguity to
the requirement, which could increase the potential for
miscommunication or misunderstandings about when workers should be
expected to begin work, or from when they should expect to be
compensated. For example, as discussed above, commenters interpreted
the proposal to mean that workers could choose to arrive within a
flexible window of time, or that this would allow a variability of up
to 28 days in master applications. In addition to the potential
confusion this change might cause, the Department agrees that adding
this language without also considering additional worker protections
could be detrimental to workers, and this was not the Department's
intention. As such, the Department has revised the definition of
``first date of need'' in this final rule to remove the term
``anticipates'' and the related 14-day flexibility for the actual start
date of work.
While the Department appreciates the suggestions commenters made
with regard to enhancing existing worker protections related to start
date delays, those suggestions are beyond the scope of this rulemaking
as noted above. The proposal within the scope of this rulemaking was
inclusion of start date flexibility of up to 14 days in the definition
of ``first date of need'' and conforming language. For clarity, the
Department reiterates that revising the proposed definition has no
impact on the employer's obligations in the event of a start date
delay, for example, under the Wagner-Peyser agriculture clearance
system regulations.
g. Job Order
The NPRM proposed minor amendments to the definition of ``job
order'' to conform to the proposed change under Sec. 655.121,
requiring electronic filing of the job order by the employer and
transmittal of the approved job order by the CO to the SWA, and
updating the job order form name and number. The Department received
one comment on the proposed changes to this definition, which did not
necessitate substantive changes to the regulatory text. Therefore, as
discussed below, this definition remains unchanged from the NPRM.
A workers' rights advocacy organization expressed support for the
proposal, explaining that electronic filing would streamline processing
times and reduce burden, but commented that the SWA, in addition to the
NPC, should receive immediate notice of the filing of the job order and
proposed that the words ``and SWA'' be added to the end of the proposed
definition. The Department appreciates the comment but respectfully
declines. As explained in addressing comments on Sec. 655.121, the
changes to the job order filing process, under this final rule, avoid
duplication of processes and will create significant savings and
efficiencies for employers, SWAs, and the Department. Furthermore,
transmission of the job order to the SWA will be virtually
instantaneous upon submission in OFLC's Foreign Labor Application
Gateway (FLAG) system.
h. Prevailing Wage
Proposed Definition in 20 CFR 655.103(b)
The NPRM defined prevailing wage as the wage rate established by
the OFLC Administrator for a crop activity or agricultural activity and
geographic area based on a survey conducted by a State that meets the
requirements in Sec. 655.120(c). The Department received no comments
on this change. This final rule therefore adopts the language of the
NPRM with a minor revision to account for a prevailing wage for a
distinct work task or tasks performed within a crop or
agricultural activity, as applicable. This modification conforms the
definition of prevailing wage with current practice and language in ETA
Handbook 385, as well as changes made to other portions of Sec.
655.120(c) in this final rule, discussed below.
Proposal in 20 CFR 653.501(c)(2)(i)
The current H-2A regulation defines ``prevailing wage'' as the
``[w]age established pursuant to Sec. 653.501(d)(4),'' the Wagner-
Peyser Act regulation that covers clearance of both H-2A and non-H-2A
interstate and intrastate agricultural job orders. Due to regulatory
revisions to part 653, Sec. 653.501(d)(4) no longer addresses
prevailing wages but rather discusses the referral of workers.\30\ The
current version of Sec. 653.501(c)(2)(i), in turn, requires SWAs to
ensure the employer has offered no less than the higher of prevailing
wages or the applicable Federal or State minimum wage for H-2A and non-
H-2A agricultural job orders, but it does not address how prevailing
wages are established.
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\30\ The Department revised 20 CFR part 653 in 2016 in response
to the enactment of the Workforce Innovation and Opportunity Act in
2014, which amended the Wagner-Peyser Act. See Final Rule, Workforce
Innovation and Opportunity Act, 81 FR 56072 (Aug. 19, 2016). The
contents in Sec. 653.501(d)(4) are now located, with changes not
relevant here, in Sec. 653.501(c)(2)(i).
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In the NPRM, the Department proposed to use the same methodology to
establish the prevailing wage for both H-2A and non-H-2A agricultural
job orders. As a result, it proposed to amend Sec. 653.501(c)(2)(i) to
define ``prevailing wage'' for the agricultural recruitment system in
the same manner as the Department proposed to define ``prevailing
wage'' for the H-2A program in Sec. 655.103(b). Section 655.103(b), as
proposed, defined ``prevailing wage'' as ``[a] wage rate established by
the OFLC Administrator for a crop activity or agricultural activity and
geographic area based on a survey conducted by a [S]tate that meets the
requirements in Sec. 655.120(c).'' As discussed below, this final rule
adopts the proposed amendment to Sec. 653.501(c)(2)(i) with minor
clarifying changes.
A workers' rights advocacy organization opposed the Department's
proposed change to Sec. 653.501(c)(2)(i) on the basis that it only
referred to prevailing wage surveys, thus establishing such surveys as
the ``sole mechanism'' to determine whether the prevailing wage rate is
the highest rate of pay. This commenter expressed concern that the
proposal would reduce the SWA's role in determining prevailing wages.
The commenter explained the current regulation at Sec.
653.501(c)(2)(i) allows an ``active role'' by SWAs to ``independently
determine'' that prevailing wages in some areas of a State are higher
than the AEWR, the minimum wage, or the prevailing wage in other areas.
By codifying a survey methodology, the commenter believed, the
Department would restrict the SWAs' ability to use other methods to
determine whether the job order is offering an ``adequate'' wage.
According to the commenter, the current regulation protects U.S.
workers, especially piece rate workers, who receive a higher wage rate
than their peers in other parts of the State, as a result of collective
bargaining or market conditions.
After careful consideration of the commenter's concerns, the
Department has decided to retain the NPRM proposal with minor
clarifying changes. Specifically, this final rule adopts the NPRM's
proposal to amend Sec. 653.501(c)(2)(i) so that it incorporates the
Department's revised prevailing wage survey methodology in Sec.
655.120(c) and revised definition of ``prevailing wage'' in Sec.
655.103(b). In addition, this final rule revises Sec. 653.501(c)(2)(i)
to more clearly distinguish the minimum requirements for wages and
working conditions. The existing regulation addresses the minimum
requirements for working conditions within the minimum requirements for
wages, which may cause confusion as to the standards that apply to each
requirement. Accordingly, this final rule separates these requirements
into two different sentences to clarify that agricultural positions
subject to 20 CFR part 653, subpart F, must, at a minimum, offer (1)
the applicable prevailing wage or the applicable Federal or State
minimum wage, whichever is higher, and (2) working conditions that are
not less than the prevailing working conditions among similarly
employed workers in the AIE. The standards governing the prevailing
wage methodology are set forth in revised Sec. Sec. 655.103(b) and
655.120(c), and addressed in the preamble to Sec. 655.120(c). The
standards governing the wage rate an H-2A employer must offer,
advertise in its recruitment, and pay are set forth in revised
Sec. Sec. 655.120(a) and 655.122(l).
The Department disagrees with the commenter that the above-
referenced revisions to Sec. 653.501(c)(2)(i) will diminish the SWA's
role in determining prevailing wages under the H-2A program. Under this
final rule, SWAs will continue to follow the Department's criteria for
prevailing wage surveys, either to conduct a survey itself or to select
a survey conducted by another State agency to submit to the Department.
Prior to this rule, the SWAs used ETA Handbook 385, which was last
updated in 1981, and other sub-regulatory guidance to conduct such
surveys and submit prevailing wage findings, when available, to the
Department for review. In this sense, the Department has directed SWAs
to use prevailing wage surveys to determine prevailing wage rates for
agricultural job orders since at least 1981. The NPRM simply proposed
to amend Sec. Sec. 655.103(b) and 653.501(c)(2)(i) to reflect the new
proposed survey methodology at Sec. 655.120(c).
Under the revised methodology, SWAs continue to play an active role
in determining prevailing wages. They retain the discretion to develop,
administer, and report the results of prevailing wage surveys to the
Department, including the discretion to determine where to conduct
surveys for particular crop or agricultural activities and, if
applicable, distinct work task(s) within those activities, subject to
the methodological requirements of this final rule. For example, SWAs
may conduct prevailing wage surveys of State, sub-State, and regional
geographic areas based on the factors listed in Sec.
655.120(c)(1)(vi). In instances where a non-SWA State entity conducts
the prevailing wage survey, the SWA will review the survey and submit,
if appropriate and as before, the applicable information to the
Department.
Moreover, prevailing wage surveys are but one method used to
determine whether the wage offer in a job order for temporary
agricultural work is ``adequate.'' Employers applying for H-2A
temporary labor certification must generally offer in their job order
and pay the highest of five wage sources (i.e., the AEWR, the
prevailing wage, the agreed-upon collective bargaining wage, the
Federal minimum wage, or the State minimum wage). See Sec. 655.120(a)
(excluding certain employment). All other (non-H-2A) employers seeking
to place interstate or intrastate job orders for temporary agricultural
work must still pay the highest of the applicable prevailing wage or
the applicable Federal or State minimum wage, as specified under this
section.
The commenter's assertion that the current regulation protects U.S.
workers who enjoy a higher wage rate as a result of collective
bargaining conflates the prevailing wage and the required wage for
purposes of the H-2A program. As explained above, prevailing wage
surveys are but one of the distinct wage sources the Department
compares to
determine which wage source is the highest and therefore the wage that
an H-2A employer must offer and pay. If an employer files an H-2A
application for job opportunities subject to the agreed-upon collective
bargaining wage, the collective bargaining wage would be evaluated as
one of the applicable wage sources under Sec. 655.120(a). If the
collective bargaining wage is the highest of available wage sources
applicable to the H-2A application, the employer must offer and pay
that wage to its H-2A workers and non-H-2A workers in corresponding
employment. Similar principles hold for a non-H-2A interstate or
intrastate agricultural job order, in which the prevailing wage may
differ from the required wage a particular employer may be legally
obligated to offer and pay. Section 653.501(c)(2)(i) provides a floor,
rather than a ceiling, for the wage that must be offered in an
interstate or intrastate job order for a temporary agricultural
position. Employers may always offer wages that exceed the minimum
required under this section, and in some instances, such as where an
applicable collective bargaining agreement (CBA) requires a higher wage
offer, they may be obligated to do so. However, the Department reminds
H-2A employers that any job offer to U.S. workers must offer no less
than the same benefits, wages, and working conditions that the employer
is offering, intends to offer, or will provide to H-2A workers. Sec.
655.122(a).
i. Successor in Interest
The Department proposed conforming changes to the definition of
``successor in interest'' consistent with proposed changes to 20 CFR
655.182 and 29 CFR 501.20, which clarify that the Department may take
action against an employer, agent, attorney, or combination thereof,
for debarrable violations described under those sections. As discussed
below, this provision remains unchanged from the NPRM. A workers'
rights advocacy organization supported the conforming changes to the
definition without further comment. An agent further proposed that the
Department should modify the definition of successor in interest to
formally adopt guidance issued under the 2010 H-2A Final Rule where the
Department determined that the regulation could be reasonably
interpreted to allow a temporary agricultural labor certification to be
assumed by a successor employer. The commenter also thought the
definition should be more generalized, rather than framed from an
enforcement perspective. Although the Department appreciates this
comment, further modification to the definition is unnecessary. The
Department added agents and attorneys to the definition to clarify that
successor in interest to agents and attorneys may be subject to
enforcement actions, consistent with 20 CFR 655.182 and 29 CFR 501.20.
In doing so, the Department made no change to the definition with
regard to employers. The Department maintains its position, established
in the supporting guidance, that a successor in interest entity may use
a temporary agricultural labor certification issued, provided that it
assumes all obligations, liabilities, and undertakings arising under
the temporary agricultural labor certification. Therefore, this final
rule adopts the proposed definition from the NPRM without change.
j. Additional Definitions Adopted in This Final Rule
The NPRM proposed minor amendments to the definition of Temporary
Agricultural Labor Certification and proposed adding definitions of the
following terms to provide greater clarity throughout the regulations:
Act, Administrator, applicant, Application for Temporary Employment
Certification, BALCA, Chief Administrative Law Judge (ALJ), DHS, ETA,
H-2A Petition, MSA, OFLC Administrator, piece rate, place of
employment, Secretary of Labor, Secretary of Homeland Security, U.S.
Citizenship and Immigration Services (USCIS), WHD, and WHD
Administrator. The Department received no comments on the proposed
definitions of these terms. Therefore, this final rule adopts the
definitions of these terms from the NPRM, with two minor changes. In
this final rule, the Department simplifies the definition of ``USCIS''
to mean U.S. Citizenship and Immigration Services, an operational
component of DHS, while defining ``DHS'' as the Department of Homeland
Security as established by sec. 111 of title 6, U.S. Code. The
respective authorities and functions of DHS and USCIS, as an
operational component of DHS, are set forth in their authorizing
statutes, implementing regulations, and delegation of authorities.
k. 20 CFR 655.103(c) and 29 CFR 501.3(b), Definition of Agricultural
Labor or Services
The NPRM proposed amendments to expand the regulatory definition of
agricultural labor or services pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a) to include reforestation and pine straw
activities. The Department received many comments on this section and,
for the reasons explained below, has decided to rescind the proposal to
incorporate reforestation and pine straw activities into the definition
of agricultural labor or services at Sec. 655.103(c). However, in
proposing the occupational definitions for itinerant employment in
animal shearing, commercial beekeeping, and custom combining at Sec.
655.301, subject to the proposed procedural variances contained in
Sec. Sec. 655.300 through 655.304, the Department has made a
technical, conforming revision to this section to clarify that the job
duties under Sec. 655.301 qualify for certification under the H-2A
program.
The Department proposed to define reforestation activities as
predominantly manual forestry operations associated with developing,
maintaining, or protecting forested areas, including, but not limited
to, planting tree seedlings in specified patterns using manual tools,
and felling, pruning, pre-commercial thinning, and removing trees and
brush from forested areas. The proposed definition of reforestation
activities would have included some forest fire prevention or
suppression duties, when incidental to other reforestation activities,
and would have excluded vegetation management activities in and around
utility, highway, railroad, and other rights-of-way because these
activities involve the destruction of vegetation, not cultivation. The
NPRM proposed to define pine straw activities as operations associated
with clearing the ground of underlying vegetation, pine cones, and
debris; and raking, lifting, gathering, harvesting, baling, grading,
and loading of pine straw for transport from pine forests, woodlands,
pine stands, or plantations.
In the NPRM, the Department reasoned that reforestation and pine
straw activities share fundamental similarities with traditional
agricultural industries, both in terms of activities performed and
working conditions. These similarities had previously prompted the
Department to consider similar proposals to include reforestation and
pine straw activities within the H-2A program in the 2008 and 2009-2010
rulemakings, but ultimately the Department rejected these proposals due
to lack of stakeholder support. 2010 H-2A Final Rule, 75 FR 6884; 2008
H-2A NPRM, 73 FR 8538, 8555 (Feb. 13, 2008). The NPRM posited that many
of the comments that led the Department to opt against expanding the
definition of agriculture in the 2009-2010 rulemaking were no longer
applicable due to recent regulatory changes in the H-2B program--
specifically the publication of the 2015 H-2B Interim Final Rule (IFR)
(80 FR
24042, Apr. 29, 2015), which implemented cost-related requirements in
the H-2B program similar to those currently found in H-2A.
Comments Related to the Inclusion of Reforestation and Pine Straw
Gathering Activities in the H-2A Program
Comments attributable to the reforestation industry or its
representatives either opposed the change or did so absent significant
changes to the proposal. Some industry commenters simply stated that
the H-2A program, particularly with the changes proposed in the NPRM,
was a less attractive, more costly, and more burdensome alternative to
the H-2B program. Other commenters rejected the assertion that
reforestation shared similar characteristics to traditional
agricultural industries and stated that these differences resulted in
the H-2A program, or certain key H-2A provisions, being essentially
unworkable for the reforestation industry.
Many industry commenters stated that the unpredictable nature of
reforestation work precluded compliance with the H-2A program. Some
commenters posited that the H-2A program was designed for workers
returning to the same fields each year, whereas reforestation occurs on
a rotating cycle of up to 30 years and is heavily weather-dependent.
Industry commenters stated that the flexibility required for
reforestation work presents difficulties in obtaining pre-inspected
housing that complies with H-2A housing standards, and that it would be
impossible at the time of the application to determine whether each
potential motel along an itinerary would meet these standards. Another
industry commenter stated that it would be impossible to make hotel
reservations in advance as schedules are constantly changing. Some
commenters also indicated that remote worksites require additional
housing flexibility, such as tents or mobile housing.
Industry commenters further stated that the unpredictable and
transient nature of reforestation work would not allow employers to
submit itineraries to the Department when applying for temporary labor
certification, and that the requirement of a separate application per
itinerary was unworkable and would dramatically increase filing costs.
One commenter stated that some reforestation employers have more than
30 crews working on 30 separate itineraries, and another commenter with
35 crews on separate itineraries stated that its filing costs would
increase from $8,500 for one application to $297,500 for 35
applications.
Similarly, many industry commenters stated that the reforestation
industry would be unable to comply with the H-2A requirement to provide
meals or kitchen facilities to workers. Commenters stated that motel
accommodations for reforestation workers frequently lack kitchen
facilities, and that the unpredictable nature of reforestation work
means that arranging catering is logistically difficult. Some
commenters stated that the workers cook for themselves at the
worksites. One commenter may have misunderstood the H-2A meals
requirement and stated that it could not provide meals and kitchen
facilities (whereas only one or the other is required).
Further, industry commenters opposed the proposed exclusion of
utility right-of-way maintenance activities from the definition of
reforestation activities. These commenters asserted that utility right-
of-way maintenance cannot be divorced from other reforestation
activities because the same companies necessarily engage in both, and
the activities are nearly identical. Commenters stated that a large
number of forestry employers--including three of the top five H-2B
employers overall--also perform utility right-of-way spraying, and
these activities are included in the same contracts and have the same
job duties as reforestation work. Another commenter stated that the
exclusion of utility right-of-way work would bifurcate a successful
business model historically used by the industry, and another stated
that the two industries rely on the same workforce and separating them
between visa classifications would harm both industries.
The Department received significantly fewer comments from the pine
straw industry. Three comments from the pine straw industry supported
the proposal to include pine straw in the definition of agricultural
labor or services for the reasons offered in the NPRM, one of which
represented a letter-writing campaign with 100 identical comments.
These comments emphasized that the pine straw industry is agricultural
in nature and should be regulated as such under agricultural rules.
Additionally, one commenter pointed out that many pine straw companies
already use the H-2A program.
Worker advocates opposed the proposal, primarily because the
inclusion of the pine straw and reforestation industries in the H-2A
program would remove nonimmigrant reforestation and pine straw workers'
access to MSPA protections. These commenters identified access to the
MSPA right to private action as an essential worker protection for H-2B
workers engaged in reforestation and pine straw activities. Employee
advocates also expressed concern that reforestation and pine straw
employers would stop paying overtime to reforestation and pine straw
workers due to a misunderstanding (as explained below) (either from the
commenter itself or on the part of the employer) that H-2A employees
are exempt from the FLSA overtime requirements simply by virtue of
holding an H-2A visa. Some commenters also stated that the inclusion of
reforestation within the uncapped H-2A program removes the numerical
limitation on one of the largest users of the capped H-2B program and
presents a substantial benefit to all H-2B employers by essentially
providing H-2B cap relief.
Commenters raised other concerns and objections to the inclusion of
reforestation and pine straw activities in the H-2A program. Two
commenters stated that the Department's rationale for the proposal was
not justified and does not overcome objections raised in prior
rulemakings to similar proposals. One commenter stated that costs for
reforestation employers would increase because they would not be
permitted to house four employees in the same hotel room under the H-2A
standards. This same commenter also stated that reforestation employers
would be unable to comply with the three-fourths guarantee due to the
uncertainty inherent in reforestation work, that the Department is
unable to enforce the H-2B inbound transportation standards in some
States, and that the Department risked violating the permanent
injunction entered under Bresgal v. Brock, 843 F.2d 1163 (9th Cir.
1987).\31\ Two commenters representing State governments posited that
inclusion of these industries in the H-2A program would increase work
for SWAs and asked if additional funding would be provided. Another
commenter advised that the Department and the Department of State (DOS)
must be fully funded, particularly given any potential expansions to
the H-2A program.
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\31\ In Bresgal v. Brock, the Ninth Circuit Court of Appeals
enjoined the Department to cease refusing to enforce MSPA as to
recruiting, soliciting, hiring, employing, furnishing, or
transporting any migrant or seasonal agricultural worker for all
predominantly manual forestry work, including but not limited to
tree planting, brush clearing, pre-commercial tree thinning, and
forest firefighting.
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Comments from non-industry specific sources, including agents,
State
governments, State farm bureaus and trade associations, tended to favor
the proposal, albeit mostly in a generic and unsubstantiated way. Some
comments expressed their support for any expansion of the H-2A program.
One commenter representing the landscaping industry expressed support
for the proposal because it would relieve pressure on the H-2B visa
cap, and an insurance association supported the proposal because this
expansion of H-2A would require more employers to obtain surety bonds.
One State farm bureau, however, supported the proposal because the
forest industry adds $6.4 billion annually in value to Arkansas'
economy, and expanding the scope of the H-2A program would allow this
industry to address labor shortages.
Upon careful consideration of the comments submitted, the
Department declines to adopt the proposal to include reforestation and
pine straw activities within the H-2A program. As noted above, the
Department had hypothesized in the NPRM that objections to similar
proposals in previous rulemakings would no longer be considered
relevant; however, this hypothesis was disproved by the multitude of
comments in opposition. As was found in the 2009-2010 rulemaking,
comments from or on behalf of those that would be most affected by the
reforestation proposal (i.e., from the reforestation industry and
employee advocates) overwhelmingly opposed the proposal, citing, in
part, additional burdens due to the differences between the programs.
While the pine straw industry submitted some comments supporting its
inclusion in the H-2A program, the Department finds persuasive the
concerns raised by employee advocates and accordingly declines to adopt
the proposal with respect to pine straw as well. Additionally, as many
commenters identified, pine straw employers are currently permitted use
of the H-2A program (pursuant to the FLSA definition of agriculture and
if the other requirements of the program are met) if the pine straw
activities are performed by a farmer or on a farm as an incident to or
in conjunction with such farming activities. For example, employees
engaged in the gathering of pine straw on a Christmas tree farm are
engaged in H-2A agriculture if the Christmas trees are produced using
extensive agricultural and horticultural techniques.\32\ Declining to
adopt the proposal has no impact on employers seeking workers to
perform pine straw gathering under these circumstances, and such
employers may continue to use the H-2A program. On the other hand, pine
straw gathering that is not performed by a farmer or on a farm (e.g.,
that occurs in wild or uncultivated forests, in forest tree nurseries,
or on timber tracts, or that is performed in conjunction with
commercial landscaping activities) does not constitute agricultural
labor or services; employers seeking temporary foreign workers to
perform pine straw activities under these circumstances may continue to
use the H-2B program.
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\32\ These techniques include activities such as planting
seedlings in a nursery; ongoing treatment with fertilizer,
herbicides, and pesticides as necessary; replanting in line-out beds
or in cultivated soil; yearly pruning or shearing; and harvesting
for ornamental use. See 29 CFR 780.216(b).
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Though not within the scope of this rulemaking, the Department also
wants to take this opportunity to address comments raising concerns
about the current state of working conditions for H-2B reforestation
workers. When commenters indicate that they cannot reasonably provide
meals or kitchen facilities to reforestation workers because the
worksites are too remote and conditions too uncertain, the Department
cannot ignore the implication that some reforestation workers may not
currently have access to sufficient food and/or facilities to prepare
food. Itinerant workers constitute a vulnerable population; these
workers are frequently wholly dependent on their employer for housing
and transportation, work in remote areas far removed from services, and
may not be fully aware of their geographic location. The Department
reminds employers of itinerant workers not using the H-2A program that
they should, at the very least, facilitate access to food and/or
kitchen facilities by ensuring that workers have sufficient time and
available transportation options to access grocery stores/cooking
facilities, and/or prepared meals.
In response to concerns expressed by commenters that some
reforestation employers using the H-2B program may not provide full-
time job opportunities and may not pay for inbound transportation, the
Department reminds the public that such legal requirements are already
in place. An H-2B job opportunity must be for full-time work, defined
as 35 hours of work per week, and the FLSA applies independently of the
H-2B program's requirements. Specifically, the Fifth Circuit's decision
in Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir.
2010), affects an employer's responsibility for inbound transportation
costs under the FLSA in that Circuit, but does not affect an employer's
inbound transportation obligations pursuant to the H-2B program
regulations, nor does it affect the Department's ability to enforce
those obligations. See 20 CFR 655.20(d); 20 CFR 655.5; 29 CFR
503.16(d); 29 CFR 503.4; 20 CFR 655.20(j)(1)(i); and 29 CFR
503.16(j)(1)(i).
Other Comments Requesting the Inclusion or Exclusion of Certain
Agricultural Activities or Industries in the H-2A Program
The Department received many comments in this section that did not
address the specific proposal relating to reforestation and pine straw,
but rather suggested modifications to the scope of the H-2A program to
include or exclude other activities or industries. As discussed below,
the Department is not adopting these suggested modifications to the
definition of agricultural labor or services.
These commenters sought to expand the H-2A program to include all
employment in packing houses or processing facilities that pack,
process, or handle agricultural or horticultural commodities, even if,
for example, more than half of the commodities are produced by other
growers. Commenters stated that this division between packing houses
based solely on the producer of the commodity is outdated and
inequitable, because some packing houses have access to the H-2A
program whereas others conducting identical activities do not.
Commenters stated that all packing houses experience the same shortage
of labor, regardless of the producer of the products, and the nature of
the H-2B program is inadequate to address the packing house's needs,
both in terms of the number of workers available under the program and
certification processing timelines. Multiple commenters suggested an
expansive definition of agricultural labor or services encompassing
packing houses and processing facilities.
Many commenters stated that the H-2A program should encompass all
transporting of an agricultural commodity to a facility for preparation
to market, regardless of who produced the commodity or where the
transportation occurs. Several commenters stated that harvesting is not
complete until the product arrives at the packing facility or place of
first processing, and the transportation to the place of first
processing is an essential component of harvesting. Others stated that
a contractor transporting agricultural or horticultural products is
essentially working for, or acting in the place of, the grower that
produced those products, and thus is engaged in agricultural work. Many
commenters referenced a critical shortage of truck drivers willing,
qualified, and available to transport crops (particularly within the
shorter season inherent in agriculture), and noted that many growers do
not have the means to perform these transportation services themselves.
The expansive definition submitted by multiple commenters similarly
addressed this issue by suggesting inclusion of the following: the
transportation of any agricultural or horticultural product in its
unmanufactured state by any person from the farm to a storage facility,
to market, or to any place of handling, planting, drying, packing,
packaging, processing, freezing, or grading such as a packing house, a
processing establishment, a gin, a seed conditioning facility, a mill,
or a grain elevator; and the handling, planting, drying, packing,
packaging, processing, freezing, or grading by any person of any
agricultural or horticultural commodity in its unmanufactured state.
Some commenters sought the explicit inclusion of specific
industries in the definition of agriculture or more generally in the H-
2A program. Some commenters requested that the H-2A program encompass
work in seafood cultivation, harvesting, and processing due to the
industry's connection to food production and its difficulty in meeting
its labor needs using a domestic workforce and the capped H-2B program.
One commenter requested that the definition explicitly incorporate
activities related to the care and feeding of horses and suggested it
should incorporate grooms, stable-hands, exercise riders, and general
caretakers, regardless of where the work is performed. A different
commenter sought the inclusion of all agribusinesses, including
agricultural retailers, in the program. Some commenters stated that all
aspects of the ginning of cotton, including the related transportation
from the field to the gin, are agricultural. A trade association
representing the landscaping industry suggested the reclassification of
several other industries currently within the H-2B program to reduce
pressure on the H-2B visa cap.
Some commenters stated that specific industries, or employers in
general, should have the flexibility to use either the H-2A or H-2B
program depending on their specific needs. Some commenters opined that
employers have the expertise to know which program best meets their
needs, whereas others stated that their industry was sufficiently
diverse to require participation in both the H-2A and H-2B programs.
One commenter sought to exclude activities from the program that
are currently performed by H-2A workers. Specifically, this commenter
suggested that work in constructing livestock buildings on farms, when
the worker is not employed by the farmer, should not be permitted in
the H-2A program because the work is, generally, non-agricultural.
To the extent that commenters suggested amendments to the
definitions of agricultural labor under sec. 3121(g) of the Internal
Revenue Code (IRC) and agriculture under sec. 3(f) of the FLSA, these
suggestions are outside the scope of this rulemaking as well as beyond
the Department's statutory authority under the H-2A program. Congress
defined these terms in their respective statutes and expressly
incorporated these definitions into sec. 101(a)(15)(H)(ii)(a) of the
INA. Any ability to amend these definitions, or their incorporation in
the INA, also lies with Congress. Similarly, the Department is unable
to reinterpret these statutory definitions solely within the context of
the INA; the Department is constrained by pre-existing interpretations
of these definitions within their respective statutes, including their
implementing regulations, sub-regulatory guidance, and resulting case
law. As a result, the Department cannot edit or limit these definitions
in this rulemaking, such as by removing the 50-percent threshold from
the IRC definition of agricultural labor; reinterpreting the phrase
``in the employ of the operator of a farm''; or excluding all
construction occupations from the H-2A program because, in specific
circumstances, construction work may constitute agricultural labor or
services within one of the statutory definitions. In addition, the
Department notes that it defers to the Department of the Treasury's
Internal Revenue Service (IRS) for interpretation of the IRC.
The Department has carefully considered all comments requesting
that the Secretary use his statutory authority to define additional
activities and/or industries as agricultural labor or services, and
respectfully declines to make further revisions to this definition
beyond the technical or conforming revisions discussed above. These
comments did not respond to proposals made in the NPRM, nor did the
Department propose or invite comment on possible additions to the
definition of agricultural labor or services beyond the proposal to add
reforestation and pine straw activities. All affected parties could not
reasonably expect that the Department was contemplating and seeking
comment on potential additions other than reforestation and pine straw
activities, and thus, the public has not been fully afforded the
opportunity to consider and respond to the potential inclusion of these
activities and/or industries in the H-2A program.
Many comments received in response to the NPRM, as well as in
previous rulemakings, illustrate that some employers perceive
significant advantages in participating in the H-2B program as opposed
to the H-2A program, and vice versa, depending on the labor demands of
the specific industries who commented. Additionally, nearly all
comments regarding additional expansions to the H-2A program originated
from employers and their representatives, with minimal input from other
affected parties, further suggesting that all parties could not
reasonably have thought to comment on the proposals to expand the
definition beyond the additions proposed in the NPRM. Consequently, the
Department is disinclined to further expand the definition of
agricultural labor or services in this rulemaking.
The Department also declines to adopt the suggestion that employers
be afforded the discretion to choose participation in either the H-2A
or H-2B program. As previously explained in the preamble to the 2010 H-
2A Final Rule, Congress clearly intended to create two separate
programs: H-2A for agricultural work and H-2B for other, non-
agricultural work. Compare 8 U.S.C. 1101(a)(15)(H)(ii)(a) with 8 U.S.C.
1101(a)(15)(H)(ii)(b). 2010 H-2A Final Rule, 75 FR 6884, 6888. Allowing
employers the discretion to use either program based on their
individual preferences erases any meaningful distinction between the
two programs and is inconsistent with congressional intent. However, as
some commenters identified, certain industries necessarily will use
both the H-2A and H-2B programs depending on the specific activities
being performed. For example, the grooming and exercise riding of
horses at a racetrack in connection with commercial racing is non-
agricultural, whereas the care and feeding of those horses on a farm is
agricultural work.\33\
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\33\ Employees engaged in the breeding, raising, and training of
horses on farms for racing purposes are agricultural employees as
defined by the FLSA. On the other hand, employees engaged in the
racing, training, and care of horses and other activities performed
off the farm in connection with commercial racing are not employed
in agriculture. For these purposes, a training track at a racetrack
is not a farm. See 29 CFR 780.122.
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Other Comments Requesting Expansion of the H-2A Program for Year-Round
Employment in Agriculture
Many commenters requested that the scope of the H-2A program be
expanded to include all job opportunities in certain industries,
regardless of whether the opportunity is seasonal or temporary,
including dairy, mushroom, poultry, livestock, aquaculture, and indoor
nursery/greenhouse farming. Commenters emphasized that these industries
encounter the same labor shortages as other agricultural industries,
and that the limitation of the H-2A program to seasonal and temporary
agricultural work is fundamentally inequitable and ignores the
realities faced by year-round agriculture. Of the industries submitting
comments, commenters representing the dairy industry noted particular
concerns with difficulties in obtaining and retaining a sufficient
workforce, and proposed solutions such as allowing for year-round visas
and cycling different short-term H-2A workers through employment in a
given year so that a series of workers on temporary visas could satisfy
the employer's permanent need. Other commenters stated that there was
no statutory basis for allowing herders to be employed for 364 days in
a year while not allowing the same for other industries.
The Department received nearly identical comments in response to
the 2008 and 2009-2010 rulemakings. In response to current comments,
the Department reiterates that it must consider each employer's
specific job opportunity on a case-by-case basis and its program
experience has consistently shown that the majority of activities in
these industries are year-round and therefore cannot be classified as
either temporary or seasonal as required under the H-2A regulations and
the INA, and not because they are non-agricultural. While the
Department recognizes the workforce challenges encountered by various
agricultural industries, it is limited by the INA to certifying H-2A
applications for jobs of a temporary or seasonal nature. As stated in
the preamble to the 2010 H-2A Final Rule, the determination as to
whether a particular activity is eligible for H-2A certification rests
on a finding that the duration of the activity or the need for that
activity is temporary or seasonal. Permanent job opportunities cannot
be classified as temporary or seasonal. 2010 H-2A Final Rule, 75 FR
6884, 6890-6891. Instead, employers that cannot find U.S. workers to
fill permanent rather than temporary or seasonal jobs may wish to
petition for workers under employment-based immigrant visa programs.
See, e.g., 8 U.S.C. 1153(b)(3); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(INA permits only ``agricultural labor or services . . . of a temporary
or seasonal nature'' to be performed under the H-2A visa category).
Finally, with regard to comments above related to the period of need
for herders, the Department recently rescinded, in the separate 2021 H-
2A Herder Final Rule, the 364-day provision that governed the
adjudication of temporary need for employers of sheep and goat herders
(Sec. 655.215(b)(2)) to ensure the Department's adjudication of
temporary or seasonal need is conducted in the same manner for all H-2A
applications.
Other Comments Related to the Requirements for Overtime Pay Under the
FLSA
Some commenters expressed concerns about or requested clarification
of the requirement for overtime pay under the FLSA to H-2A workers. One
commenter said that some employers incorrectly assume that H-2A workers
are always exempt from the FLSA overtime requirement, and another
commenter made this same incorrect assumption in its comment. Other
commenters stated that the classification of certain industries and
activities as agricultural under one Act and non-agricultural under
another was confusing, and that the reclassification of pine straw
activities as agricultural under the INA would simplify compliance.
Another commenter suggested a regulatory clarification that
construction labor performed on a farm for an independent contractor,
as opposed to for the farm operator, is not agricultural employment for
the purposes of the FLSA, and that employees providing such services
are entitled to overtime pay.
In light of these comments, the Department reiterates that the FLSA
applies independently of the H-2A program. H-2A workers are not exempt
from overtime pay under the FLSA simply by virtue of holding an H-2A
visa, nor are workers engaged in corresponding employment with H-2A
workers exempt from FLSA overtime pay simply because they are so
engaged. The FLSA exempts employees employed in agriculture, as defined
in sec. 3(f) of that same Act, from overtime pay (and, in more limited
circumstances, from the Federal minimum wage) in any workweek that the
worker is employed solely in agriculture. See FLSA sec. 13(a)(6) and
(b)(12), 29 U.S.C. 213(b)(6) and (12). However, the INA defines
agriculture more broadly than the FLSA and, consequently, some H-2A
workers are employed in activities that do not constitute FLSA
agriculture and thus are entitled to FLSA overtime pay. For example, H-
2A workers employed by a farmer are exempt from FLSA overtime in any
workweek in which they are engaged in packing fruit grown exclusively
by that same farmer. However, if during a given workweek these same H-
2A workers, in addition to packing fruit grown by their employer also
pack fruit grown by another farmer, they are entitled to FLSA overtime
pay in that workweek.\34\ Because the H-2A program's definition of
agricultural labor or services is broader than the FLSA definition of
agriculture (i.e., it encompasses activities that constitute
agricultural labor under the IRC, as well as logging and pressing of
apples for cider on a farm), workers may be engaged in agricultural
labor for H-2A program purposes but exempt or nonexempt from FLSA
overtime in any particular workweek depending on their activities
during that period. The Department encourages employers to consult the
FLSA regulations at 29 CFR part 780 to determine if employees are
entitled to FLSA overtime, and to consult applicable State and local
laws, which may impose overtime or other wage requirements.
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\34\ As defined by the FLSA, packing, processing, and
transporting agricultural or horticultural commodities do not
constitute agricultural employment unless these activities are
performed by a farmer or on a farm as incident to or in conjunction
with such farming activities (i.e., the farming activities of the
farm or farmer). The packing, processing, or transporting of fruit
produced by a different grower is performed as incident to or in
conjunction with the farming activities of the farmer that produced
the fruit, not the employer, and thus is outside the scope of the
exemption from FLSA overtime pay. See generally 29 CFR part 780,
subparts A, B, and C; Sec. Sec. 780.137 and 780.138. FLSA
exemptions are determined on a workweek basis, and an employee
performing exempt work (i.e., packing, processing, and transporting
the employer's own fruit) and nonexempt work (i.e., packing,
processing, and transporting the fruit produced by a different
grower) in the same workweek is entitled to overtime pay in that
particular workweek. See Sec. Sec. 780.10 and 780.11.
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Reforestation and pine straw activities, as defined in the NPRM,
similarly do not constitute FLSA agriculture unless performed by a
farmer or on a farm as incident to or in conjunction with such farming
activities, and employees engaged in these activities are frequently
entitled to FLSA overtime pay.
One commenter opined that construction labor performed by an
independent contractor on a farm never
constitutes FLSA agriculture. The Department notes that construction
labor may constitute FLSA agriculture when performed by a farmer or on
a farm as incident to or in conjunction with such farming activities.
Minor Revisions Incorporating Occupational Definitions for Animal
Shearing, Commercial Beekeeping, and Custom Combining in the H-2A
Program
In proposing the occupational definitions for itinerant employment
in animal shearing, commercial beekeeping, and custom combining at 20
CFR 655.301, the Department acknowledged in the NPRM that some of the
listed activities may not otherwise constitute agricultural work under
the current definition of agricultural labor or services in Sec.
655.103(c), but are a necessary part of performing this work on an
itinerary. See 84 FR 36168, 36222. Accordingly, and solely for the
purposes of the proposed variances in Sec. Sec. 655.300 through
655.304, the Department explained that it would include these
activities in the occupational definitions. Id. The Department did not
receive any comments on this aspect of its proposal. However, because
only duties that fall within the definition of agricultural labor or
services under Sec. 655.103(c) may be certified under the H-2A
program, and to clarify that the activities set forth under the
definitions for animal shearing, commercial beekeeping, and custom
combining in Sec. 655.301 qualify for certification under the H-2A
program, the Department is making a technical, conforming revision to
Sec. 655.103(c). Under new Sec. 655.103(c)(5), the Department
expressly states that, for the purposes of Sec. 655.103(c),
agricultural labor or services includes animal shearing, commercial
beekeeping, and custom combining activities as defined and specified in
Sec. Sec. 655.300 through 655.304. Additionally, this final rule
incorporates the minor technical changes to correct the internal
citations from paragraphs (c)(1)(iv) and (v) to now read paragraphs
(c)(1)(i)(D) and (E), respectively, in Sec. 655.103(c)(1)(i)(E) and
(F).
l. 20 CFR 655.103(d) and 29 CFR 501.3(c), Definition of a Temporary or
Seasonal Nature
The NPRM sought public comments to inform a decision whether to
retain the current, two-arbiter model in which both the Department and
DHS evaluate temporary or seasonal need during their sequential review
processes, or to move the adjudication of an employer's temporary or
seasonal need either exclusively to DHS or exclusively to DOL. The
Department solicited input from the public on this idea as a way to
eliminate duplication of agency reviews. The Department received many
comments on this idea and, for the reasons explained below, has decided
to retain at present the current two-arbiter model of DHS and DOL
sequentially adjudicating an employer's temporary or seasonal need.
The INA grants DHS broad authority to determine whether to admit
temporary workers as H-2A nonimmigrants based on an employer's
petition, in consultation with appropriate Federal agencies, and
further defines an H-2A nonimmigrant as an individual coming
temporarily to the United States to perform agricultural labor or
services ``of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188. Pursuant to the INA and
implementing regulations promulgated by the Department and DHS, the
Department evaluates an employer's need for agricultural labor or
services to determine whether it is seasonal or temporary during the
review of an Application for Temporary Employment Certification. 20 CFR
655.161(a); 8 CFR 214.2(h)(5)(i)(A) and (h)(5)(iv). In order to promote
greater consistency and reduce stakeholder confusion concerning the
definition of temporary or seasonal need, the Department adopted the
DHS definition in the 2010 H-2A Final Rule. See 75 FR 6884, 6890.
Compare 20 CFR 655.103(d) with 8 CFR 214.2(h)(5)(iv)(A).
Through its longstanding review of the nature of an employer's need
as part of its review of an Application for Temporary Employment
Certification, such as examining the period of employment identified on
the H-2A application and the nature of the employer's need for
agricultural labor or services, inclusive of the job duties,
qualifications and requirements, and geographic locations where work
will be performed, the Department has developed expertise and a process
for determining temporary or seasonal need to which H-2A employers have
become accustomed. In addition, DHS regulations state that an H-2A
petition must establish, among other things, that the ``employment
proposed in the certification is of a temporary or seasonal nature''
and that the Department's finding that employment is of a temporary or
seasonal nature during review of the Application for Temporary
Employment Certification is ``normally sufficient'' for the purpose of
an H-2A Petition. 8 CFR 214.2(h)(5)(iv). Under current practice, if the
Department issues a temporary agricultural labor certification and the
employer files an H-2A Petition, DHS may reevaluate and adjudicate the
employer's temporary or seasonal need using the same definition or may
defer to the Department's finding.
Many commenters supported eliminating the two-arbiter model, with
most identifying the Department as the preferred sole arbiter. These
commenters argued that retaining both arbiters creates uncertainty,
inconsistency, and redundancy with harm to farmers, including crop loss
as a result of the time lost should DHS reach a different, adverse
decision later in the process than the Department. Most of the
commenters who favored a single-arbiter model supported the Department
as the sole arbiter. Some commenters urged the Department to consider a
new arbiter of temporary or seasonal need, namely the U.S. Department
of Agriculture (USDA). Included among these commenters who suggested
USDA were several trade associations, a couple of agents, and a State
government agency who named the Department as their second choice after
USDA. Two other commenters, a trade association, and a State government
agency suggested that the Department perform the role over DHS but with
increased consultation with USDA. However, in the NPRM, the Department
only sought public comment on the potential for only DHS, or only DOL,
to serve as a sole arbiter. The Department did not propose or seek
comment for an agency other than the Department or DHS to perform this
role.
Those commenters who favored the Department as the adjudicating
authority for temporary or seasonal need, as opposed to DHS, noted the
Department's expertise and greater comparative familiarity with the H-
2A program. Commenters also valued the Department's position in the
petition process relative to DHS, as employers are able to make
adjustments earlier should questions regarding temporary or seasonal
need arise and before incurring additional expenses associated with
filing an H-2A Petition with DHS.
Several commenters, including an agent, an employer, and a trade
association, did not express a position regarding whether the
Department or DHS should be the sole arbiter but instead noted the
importance of the Department and DHS having congruent definitions of
whether employment is of a temporary or seasonal nature. Similarly,
another agent did not clearly express an opinion about whether there
should be a sole arbiter of temporary or seasonal need but stated that
DHS should continue to hold decision-
making authority with respect to the temporary and seasonal
requirements.
The Department appreciates the variety of public comment on this
proposal. After careful consideration of the comments received, the
Department has determined, that it will not at this time be making such
a substantial change to the program.\35\ Therefore, this final rule
retains the current two-arbiter model of DHS and DOL both sequentially
evaluating an employer's temporary or seasonal need.
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\35\ The January 2021 draft final rule indicated the
Departments' intent for DOL to serve as the sole arbiter of
temporary or seasonal need through a prospective delegation of
authority from DHS as well as a separate regulatory action to amend
DHS's related regulations. However, the January 2021 draft final
rule was not published and never took effect. Accordingly, any
statements contained therein do not represent the Department's
formal policy; and, similarly, they do not, and may not be relied
upon to, create or confer any right or benefit, substantive or
procedural, enforceable at law or equity by any individual or other
party. As explained elsewhere in this rule, the Federal Register and
the Code of Federal Regulations remain the official sources for
regulatory information published by the Department.
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The Department received additional comments regarding the
definition of a temporary or seasonal nature at 20 CFR 655.103(d) and
29 CFR 501.3(c). Many of these commenters urged the Department to
include year-round work, particularly in the dairy industry. As the
Department only sought public comment on determining whether the
Department or DHS should act as the sole arbiter of temporary or
seasonal need, such comments are outside the scope of this rulemaking.
B. Pre-Filing Procedures
1. Section 655.120, Offered Wage Rate
The statute provides that an H-2A worker is admissible only if the
Secretary determines that ``there are not sufficient workers who are
able, willing, and qualified, and who will be available at the time and
place needed, to perform the labor or services involved in the
petition, and the employment of the alien in such labor or services
will not adversely affect the wages and working conditions of workers
in the United States similarly employed.'' See 8 U.S.C. 1188(a)(1). In
20 CFR 655.120(a), the Department currently meets this statutory
requirement, in part, by requiring an employer to offer, advertise in
its recruitment, and pay a wage that is the highest of the AEWR, the
prevailing wage, the agreed-upon collective bargaining wage, the
Federal minimum wage, or the State minimum wage. The Department
proposed in the NPRM to maintain this wage-setting structure with only
minor revisions and modify the methodologies by which the Department
establishes the AEWR and prevailing wages.
Prior to this final rule, the Department engaged in rulemaking to
revise the methodology for establishing the AEWR that addressed the
Department's proposals at paragraphs (b)(1), (2), and (5) of the NPRM,
as well as the definition of AEWR in Sec. 655.103(b). See 85 FR 70445.
Most recently, the Department issued an NPRM on December 1, 2021, which
proposed to revise the methodology for establishing the AEWR. 86 FR
68174. The comment period for the 2021 H-2A AEWR NPRM closed on January
31, 2022, and the Department will address those comments in a separate
rulemaking. This final rule addresses all other aspects of the
Department's proposals at Sec. 655.120--specifically, paragraphs (a),
(b)(3) and (4), (c), and (d). In addition, the Department reinstates
the 2010 H-2A Final Rule's method and schedule for updating the AEWR at
paragraph (b)(2), which is necessary due to vacatur of the 2020 H-2A
AEWR Final Rule, as discussed in the preamble to the definition of AEWR
at Sec. 655.103(b).
The Department received many general comments related to H-2A labor
costs and wage requirements, some claiming that wage requirements are
too high and others stating that wage requirements are too low. To the
extent those comments raised specific concerns or suggestions, they are
discussed below.
a. The Department Retains the Requirement That the Offered Wage Rate
Must Be the Highest of the Available Wage Sources
The Department protects against adverse effect on the wages of
workers in the United States similarly employed by requiring, at Sec.
655.120(a), that an employer must offer, advertise in its recruitment,
and pay a wage that is the highest of the AEWR, the prevailing wage,
the agreed-upon collective bargaining wage, the Federal minimum wage,
or the State minimum wage, unless the occupation is subject to an
alternative wage rate structure. The Department proposed three minor
changes to paragraph (a). As discussed below, this final rule adopts
the proposed language from the NPRM with minor conforming changes.
First, the Department proposed to replace the current regulatory
provision that provides an exception for separate wage rates set by
``special procedures'' (i.e., sub-regulatory variances from the
regulation) and instead include a specific reference to the regulatory
provisions covering job opportunities in the herding and production of
livestock on the range under Sec. Sec. 655.200 through 655.235.
Applications to obtain labor certifications to hire temporary
agricultural foreign workers to perform herding or production of
livestock on the range, as defined in Sec. 655.201, are subject to the
wage rate structure at Sec. 655.211 and are the only exception to the
wage methodology set forth in this final rule at Sec. 655.120.
Further, as discussed above, the Department has removed the authority
in Sec. 655.102 to establish, continue, revise, or revoke ``special
procedures'' for H-2A occupations. The Department received comments
requesting that it address herder wages, including a State law
involving overtime pay for herders; however, these comments are outside
the scope of this rulemaking. The Department explicitly stated in the
NPRM that it was not reconsidering the herder wage rate methodology. 84
FR 36168, 36220-36221.
Second, the Department proposed to replace the ``prevailing hourly
wage or piece rate'' with ``prevailing wage rate'' in recognition of
the fact that the Department has issued prevailing wage rates that are
not in the form of an ``hourly'' or ``piece'' rate wages, including,
for example, ``monthly'' prevailing wage rates.\36\ An employer
suggested the Department, instead, replace ``prevailing hourly rate or
piece rate'' with ``prevailing guaranteed hourly rate'' and use the
hourly guarantee alone to protect against adverse effect on the
domestic workforce. The commenter explained that such an approach would
protect wages without limiting employers' flexibility to reward
productive workers through a piece rate or another incentive-based
system. The Department declines to adopt the suggested language. To the
extent the commenter seeks an hourly guarantee protection for workers
in the event an employer uses incentive pay or piece rate, the
regulation already provides hourly rate protection at Sec.
655.122(l)(1) and (2); and, to the extent the commenter seeks to
eliminate piece rate PWDs, such a suggestion is beyond the scope of
this rulemaking. Further, the Department does not limit an employer's
flexibility to offer wages exceeding the minimum required wage.
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\36\ The Department also makes corresponding changes throughout
the regulation, replacing ``the prevailing hourly wage or piece
rate'' with ``prevailing wage'' or ``prevailing wage rate,'' except
where a given provision specifically applies only to prevailing
piece rates.
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Third, the Department proposed to clarify that the requirement to
offer and pay at least the prevailing wage rate applies only ``if the
OFLC Administrator
has approved a prevailing wage survey for the applicable crop activity
or agricultural activity meeting the requirements of paragraph (c)'' of
Sec. 655.120.\37\ In the event there is no prevailing wage finding
applicable to an employer's job opportunity, the employer's wage
obligation is the highest of the other four applicable wage sources
listed in paragraph (a). An employer that supported this proposal asked
the Department to clarify that the OFLC Administrator must review the
survey for compliance with prevailing wage methodology requirements,
asserting that underlying documentation may have been lacking in the
past. The Department appreciates this concern and notes that survey
documentation demonstrating compliance with methodological requirements
must be attached to the updated prevailing wage survey collection
(i.e., Form ETA-232) at the time of submission to the OFLC
Administrator. See Sec. 655.120(c)(1)(i).
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\37\ The Department also makes a corresponding change to Sec.
655.122(l).
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The Department received many comments from workers' rights advocacy
organizations that asserted the Department is required to determine a
prevailing wage in all cases. These commenters expressed concern that
the Department proposed to eliminate this ``requirement,'' and, by
doing so, would permit employers to offer below-market wage rates in
areas where a survey, if conducted, would produce a higher rate than
the other wage sources. The Department reiterates that this final rule
does not eliminate an existing requirement; rather, the revised
language clarifies existing policy and practice. State-conducted
prevailing wage surveys are another source of information that can
provide protections for workers who are engaged in specific crop or
agricultural activities offering piece rate pay or higher hourly rates
of pay than the applicable AEWR in a geographic area. However, where
the crop or agricultural activities in a geographic area are paid at
hourly rates lower than the AEWR, a State-conducted prevailing wage
survey would not protect wages from adverse effect; the AEWR does. The
AEWR will continue to serve as a wage floor that prevents localized
wage stagnation or depression in areas and occupations in which
employers desire to employ H-2A workers. Neither the statute nor the
Department's H-2A program regulations require the Department to
determine a prevailing wage rate in all cases, and the Department's
regulations and guidance have contemplated that there are situations in
which the wage sources listed in Sec. 655.120(a) may be unavailable or
inapplicable, as reflected in past practice.\38\ As explained in the
NPRM, the Department primarily meets its obligation to protect against
adverse effect on the wages of workers in the United States similarly
employed by requiring employers to offer, advertise, and pay at least
the AEWR. 84 FR 36168, 36179. As such, requiring SWAs to conduct
prevailing wage surveys for every crop and agricultural activity in
every area within their jurisdiction is unnecessary to prevent adverse
effect. However, the Department agrees that prevailing wage rates,
under the PWD methodology adopted in this final rule at Sec.
655.120(c), can provide additional safeguards. The Department will
continue to issue PWDs based on information that is as reliable and
representative as possible concerning the average wages of U.S. workers
in a crop or agricultural activity and distinct work task(s) within
that activity, if applicable, for a particular geographic region. As
explained below, this final rule modernizes the PWD methodology and
empowers States to produce a greater number of reliable prevailing wage
rates, which the OFLC Administrator may approve under the requirements
of Sec. 655.120(c).
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\38\ See, e.g., AFL-CIO, et al, v. Dole, et al., 923 F.2d 182,
185 (D.C. Cir. 1991) (noting Congress did not ``define adverse
effect and left it in the Department's discretion how to ensure that
the importation of farmworkers met the statutory requirements'' and
that the Department's chosen methodology to prevent adverse effect
is ``a policy decision taken within the bounds of a rather broad
congressional delegation''); Sec. 655.122(l)(1) (``any agreed-upon
collective bargaining rate''); 1987 H-2A IFR, 52 FR 20496, 20502
(June 1, 1987) (noting H-2A workers ``must be paid at the highest of
the applicable wage rates''); 2008 H-2A Final Rule, 73 FR 77110,
77115 (Dec. 18, 2008) (``the highest of the AEWR, prevailing wage,
or minimum wage, as applicable''); 2010 H-2A Final Rule, 75 FR 6884,
6947 (``some [S]tates do not perform prevailing wage surveys''); ETA
Handbook 385 at I-115 (``Should a survey not result in a prevailing
wage rate finding, another survey should be made at the earliest
appropriate time.'').
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The Department also received comments that suggested the Department
should stop requiring H-2A employers to offer and pay the highest of
the sources listed in paragraph (a) and use a different wage-setting
standard instead. Two employers recommended the Department set the H-2A
wage rate at the current Federal minimum wage of $7.25 per hour, while
a trade association suggested the Department use the minimum wage
adjusted annually using the Consumer Price Index (CPI). A trade
association recommended the PWD, if available, should be used to set
the H-2A wage requirement, even if that wage rate is lower than the
AEWR, as it is the most accurate measure of the prevailing wage for
that specific crop activity in that specific area. A public policy
organization recommended the Department allow employers to pay H-2A
workers less than the AEWR and prevailing wage rate, provided that U.S.
workers receive five percent more than the highest of those two rates.
These comments are outside the scope of the Department's proposed
modifications to paragraph (a).
After consideration of the comments, the Department adopts the
proposed language with two minor revisions. First, the Department has
revised Sec. 655.120(a) to clarify that an employer must offer and
pay, at a minimum, the highest of the enumerated wage sources, but may
choose to offer and pay a higher rate. Second, the Department has
revised Sec. 655.120(a)(2) to align with language regarding prevailing
wages at Sec. 655.120(c). As discussed further in the preamble to
Sec. 655.120(c)(1)(iii), the revised language in this paragraph
recognizes that there may be a prevailing wage for a distinct work task
or tasks within a crop or agricultural activity in certain situations.
b. AEWR Determinations
This final rule covers the Department's proposals at paragraphs
(b)(3) and (4) of Sec. 655.120, which the Department reserved when
addressing paragraphs (b)(1), (2), and (5) in a separate rulemaking
(i.e., the 2020 H-2A AEWR Final Rule). As explained above in the
preamble to the definition of AEWR at Sec. 655.103(b), the 2020 H-2A
AEWR Final Rule was vacated, leaving the 2010 H-2A Final Rule in its
place. For the same reasons as noted in the preamble to the AEWR
definition, the Department is implementing the court's vacatur of the
2020 H-2A AEWR Final Rule in this final rule by removing from the CFR
the regulatory text that the Department promulgated through that
rulemaking at Sec. 655.120(b)(1), (2), and (5), thereby restoring the
regulatory text to appear as it did before the effective date of the
2020 H-2A AEWR Final Rule, subject to the changes noted in this
section. The Department has good cause to bypass otherwise applicable
requirements of notice and comment and a delayed effective date because
these are unnecessary for the implementation of the court's vacatur
order and would be impracticable and contrary to public interest in
light of the agency's need to implement the final judgment. See 5
U.S.C. 533(b)(B), (d). Delaying the ministerial task of restoring the
regulatory text also would be contrary to the public interest because
it could lead to confusion, particularly
among the regulated public, as to the applicable AEWR methodology. With
regard to changes in this section, the Department issued the 2021 H-2A
AEWR NPRM, which proposed new paragraphs (b)(1) and (5). Accordingly,
the Department retains the 2010 H-2A Final Rule's paragraph (c) that
provides for annual AEWR updates to be published in the Federal
Register, redesignated as paragraph (b)(2) in this final rule, and will
address paragraphs (b)(1) and (5) in a separate rulemaking.
i. Must Pay Any Higher AEWR on the Published Effective Date of the New
Wage Rate
The text adopted in the 2010 H-2A Final Rule specified the
employer's obligation to pay the wage rate ``in effect at the time work
is performed.'' \39\ In the event the OFLC Administrator publishes an
updated AEWR that is higher than the previous AEWR, a prevailing wage
for the crop activity or agricultural activity or task(s) and
geographic area, the agreed-upon collective bargaining wage, the
Federal minimum wage, or the State minimum wage, the employer must
start paying the higher wage on the effective date of the new rate. In
the Federal Register notice publishing the updated AEWRs, the OFLC
Administrator identifies the effective date of the new AEWRs. Proposed
Sec. 655.120(b)(3) was intended to more clearly articulate the timing
of the wage adjustment by codifying the current practice of providing
employers a short period of time (i.e., up to 14 days) to update their
payroll systems, such that an employer would not be required to adjust
a worker's pay in the middle of a pay period, but would be required to
promptly implement the adjustment.\40\ See 84 FR 36168, 36188. Although
the January 2021 draft final rule would have accepted the proposal to
codify an adjustment period of up to 14 calendar days after the
Department's publication of updated AEWRs in the Federal Register,
after further consideration of the comments and as explained below, the
Department has decided not to adopt this proposal, but it otherwise
adopts the proposed language from the NPRM with minor conforming
changes.
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\39\ Under 44 U.S.C. 1507, publication in the Federal Register
provides legal notice of the new wage rates. Section 655.122(l) of
the 2010 H-2A Final Rule required employers to pay the wage rate
``in effect at the time work is performed.''
\40\ See, e.g., Notice, Labor Certification Process for the
Temporary Employment of Aliens in Agriculture in the United States:
2020 Adverse Effect Wage Rates for Non-Range Occupations, 84 FR
69774 (Dec. 19, 2019) (announcing AEWRs for 2020 on December 19,
2019, to be effective January 2, 2020).
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The Department received comments from associations, farm bureaus,
employers, agents, individual commenters, an agricultural financial
services business, and a national business advocacy organization
opposing the requirement that employers must increase the wage rate
during the employment period if the Department publishes a higher rate.
Many of these commenters expressed concern this provision would make it
more difficult for employers to conduct advance operational and budget
planning because, at the time of filing, they would lack knowledge of
the required wage rate(s) throughout the entire period of employment.
An association asserted the wage rate required in the work contract
should prevail throughout the employment period because ``the
determination of no adverse impact to domestic workers has been
satisfied for the contract period'' once the work contract is approved.
These commenters, however, generally supported the Department's
proposal to include a period of time for employers to adjust to the new
wage rate after publication, rather than imposing an obligation to
immediately implement, with an employer asserting immediate
implementation would have been ``unrealistic at best'' due to the
employer's need to update pay structures and a business advocacy
organization asserting 14 days is insufficient. Another commenter urged
the Department to set a ``date certain'' on which the updated wage
rates would be effective.
The wage adjustment provision will affect only those employers
whose OFLC-approved offered wage rate falls below the permissible
minimum wage floor once the Department issues the new wage rates. The
duty to pay an updated AEWR if it is higher than the other wage sources
is not a new requirement, as employers participating in the H-2A
program historically have been required to offer and pay the highest of
the AEWR, the prevailing wage, or the Federal or State minimum wage at
the time the work is performed.\41\ As explained in the 2010 H-2A Final
Rule, ``[t]he Department recognizes that these wage adjustments may
alter employer budgets for the season'' and, therefore, ``employers are
encouraged to include into their contingency planning certain
flexibility to account for any possible wage adjustments.'' 2010 H-2A
Final Rule, 75 FR 6884, 6901. This is especially true given that
employers have been required to make these adjustments for many years
and neither program experience nor comments on the NPRM demonstrated
that a longer adjustment period would be necessary to avoid significant
operational burdens on employers or the layoffs and crop deterioration
cited by some commenters. For similar reasons, the Department believes
concerns about significant mid-contract increases in the AEWR are
overstated.
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\41\ See, e.g., 1987 H-2A IFR, 52 FR 20496, 20521; Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture in the United States; H-2A Program Handbook, 53 FR
22076, 22095 (June 13, 1988) (``[c]ertified H-2A employers must
agree, as a condition for receiving certification, to pay a higher
AEWR than the one in effect at the time an application is submitted
in the event publication of the [higher] AEWR coincides with the
period of employment'').
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A SWA urged the Department to require immediate implementation of
increased wage rates, asserting that a delay of up to 14 days would
deprive workers of up to 2 weeks of pay at the AEWR and, therefore,
would produce the type of adverse effect the Department is required to
prevent. This commenter believed that if the Department permitted a 14-
day adjustment period, it should require the employer to ``pay any
increases retroactively, perhaps in the pay period after the new wage
rate becomes effective,'' which the commenter stated was consistent
with the Department's FLSA regulations at 29 CFR 778.303. The
Department is sensitive both to the worker protection concerns the SWA
raised and to adopting an approach that could add complexity, which is
inconsistent with the Department's goals in this rulemaking to enhance
worker protections while simplifying the program to facilitate
compliance and administration.
Therefore, in this final rule, the Department has not adopted the
proposal that would have codified an adjustment period of up to 14
calendar days after the Department's announcement of the new AEWRs in
the Federal Register; instead, the Department will continue current
practice of stating the effective date of the new AEWRs in the Federal
Register announcement of the new AEWRs, which may be immediate and will
not be more than 14 calendar days after publication of that notice,
consistent with historical and current practice. In addition, the
Department has made a minor revision to align with language regarding
prevailing wages at Sec. 655.120(c). As discussed further in the
preamble to Sec. 655.120(c)(1)(iii), the revised language at Sec.
655.120(b)(3) recognizes that there may be a prevailing wage for a
distinct work task or tasks within a crop or agricultural
activity in certain situations. Additionally, the Department has made a
minor revision to clarify that if an updated AEWR is higher than the
other wage sources, the employer must pay at least the updated AEWR,
but may choose to offer and pay a higher rate.
ii. Must Not Lower Wage Rate After Publication of a Lower AEWR
In Sec. 655.120(b)(4), the Department proposed to prohibit
employers from lowering the wage rate during the certified employment
period in the event the OFLC Administrator publishes an updated AEWR
that is lower than the rate guaranteed on the job order. In order to
avoid potential confusion regarding the requirement to continue to pay
the previously offered wage if a lower rate is published during the
employment period, the Department also proposed to remove language in
Sec. Sec. 655.120(b) and 655.122(l) regarding the wage rate ``in
effect at the time work is performed.'' This approach ensures the wage
rate does not fall below the rate that was offered to workers and
agreed to in the work contract and prevents employers from including a
clause in the job order to allow such a reduction within contract
terms. As discussed below, this final rule adopts the proposed language
from the NPRM unchanged.
Employer, association, agent, and business advocacy group
commenters opposed the Department's proposal to prohibit employers from
reducing the wage rate during the employment period, in the event the
AEWR decreases. Several commenters, including associations, believed
the proposal would unfairly undermine mutually agreed-upon contract
terms. Some of these commenters asserted that the Department's proposal
infringed upon the employers' and workers' contract rights by
permitting the Department to ``void'' or ``abrogate'' the wage rate
offered and agreed to in the employment contract and prohibiting the
employer from including wage reduction clauses in the contract. An
agent asserted the prohibition against wage reductions mid-contract
would disadvantage employers with start dates before an AEWR adjustment
because they would be required to pay a higher rate throughout the
period of employment, while an employer with a start date after the new
AEWR rates are published could pay the lower rate. Two employers and a
trade association stated that the employer should be permitted to pay a
lower AEWR if one is published because the AEWR is the ``exact wage''
necessary to protect U.S. workers, and the commenters asserted ``there
is no valid basis to require payment of a higher wage when that wage is
no longer determined to be the AEWR.''
With respect to commenters' concern that these provisions infringe
on employers' and workers' freedom to contract, H-2A employers are free
to include any terms and conditions in employment contracts that comply
with all laws and regulations governing the H-2A program and employment
generally. However, the Department holds the view that agricultural
workers ``generally comprise an especially vulnerable population whose
low educational attainment, . . . low rates of unionization and high
rates of unemployment leave them with few alternatives in the non-farm
labor market,'' and, as a result, these workers' ``ability to negotiate
wages and working conditions with farm operators or agriculture service
employers is quite limited'' (2009 H-2A NPRM, 74 FR 45906, 45911 (Sept.
4, 2009)), and this ``limited bargaining power . . . exacerbates the
problem of stagnating [wages]'' (2010 H-2A Final Rule, 75 FR 6884,
6894). Prohibiting contract terms that would lower wages paid below the
offered and agreed-to rates aligns with these concerns and is
consistent with the Department's broad discretion to determine the most
effective method of ensuring the employment of H-2A workers does not
have an adverse effect on the wages of workers in the United States
similarly employed.
The Department believes that prohibiting downward adjustments of
wage rates during the period of certified employment is necessary to
provide stability and predictability for workers who have limited
ability to negotiate their wages and working conditions. Accordingly,
this will help protect against potential adverse effects on the
workers' wages and working conditions, without increasing the
employer's wage costs above those in effect at the time of
certification.
After consideration of the comments, the Department is adopting the
proposal to prohibit the employer from reducing the offered wage, even
in cases where the Department publishes a lower AEWR. Because the
employer advertised and offered the higher rate on its job order, the
employer cannot reduce the wage rate below the rate already guaranteed
in the work contract. The Department has made a minor revision to
clarify that if an updated AEWR is lower than the rate guaranteed on
the job order, the employer must pay at least the rate guaranteed on
the job order, but may choose to offer and pay a higher rate.
c. Section 655.120(c) Prevailing Wage Determinations
i. Background
The Department proposed to modernize the methodology used to
conduct prevailing wage surveys that applies to both H-2A and other
agricultural job orders placed in the Wagner-Peyser Act agricultural
recruitment system. The Department previously relied on ETA Handbook
385, which was last updated in 1981, and other sub-regulatory guidance
to set the standards that govern the prevailing wage surveys SWAs
conduct to establish prevailing wage rates. The NPRM proposed to
modernize these standards in order to establish reliable prevailing
wage rates for employers and workers, and allow SWAs and other State
agencies to conduct surveys using standards that are more realistic in
a modern budget environment. Under the proposed methodology, the OFLC
Administrator would issue a prevailing wage for a given crop activity
or agricultural activity only if all of the requirements in proposed
Sec. 655.120(c)(1) are met.
In particular, the NPRM proposed the following methodological
standards: (1) the SWA must submit a standardized form providing the
methodology of the survey; (2) the survey must be independently
conducted by the SWA or another State entity; (3) the survey must cover
a distinct work task or tasks performed in a single crop activity or
agricultural activity; (4) the surveyor must make a reasonable, good
faith effort to contact all employers who employ workers in the crop or
agricultural activity within the geographic area surveyed or conduct a
randomized sampling of such employers; (5) the survey must be limited
to the wages of U.S. workers, report an average wage, and be based on a
single unit of pay used to compensate at least 50 percent of the U.S.
workers included in the survey; (6) the survey must cover an
appropriate geographic area based on several factors; and (7) the
survey must report the wages of at least 30 U.S. workers and five
employers and the wages paid by a single employer must represent no
more than 25 percent of the sampled wages included in the survey.
SWAs that seek to prioritize precision of their estimates for the
purpose of statistical validity for numerically large categories of
workers may wish to consider employing statistical sampling methods
that exceed the minimum standards contained in this final rule, such as
those used by the National Agricultural Statistical Service in the
Agricultural Labor Survey.\42\ However, as explained below, the
Department is not requiring enhanced sampling methods.
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\42\ This detailed information on the statistical methodology of
the Farm Labor Survey (FLS) is publicly available by searching
reginfo.gov for Information Collection Requests (ICRs) with the key
words ``agricultural labor survey,'' opening the most recent
``Agricultural Labor'' ICR package, then selecting ``View Supporting
Statement and Other Documents'' and opening the Supporting Statement
B (SSB) document.
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In addition to these standards, the NPRM proposed to establish (1)
a 1-year validity period for prevailing wage rates; (2) a 14-day window
in which employers must implement newly required higher prevailing wage
rates; and (3) the requirement that employers continue to pay at least
the rate guaranteed on the job order if a prevailing wage rate is
adjusted during a work contract. The Department received comments both
in support of and in opposition to these proposals, which are discussed
in greater detail below. These comments raised a variety of concerns,
some general and some pertaining to specific provisions identified in
the NPRM. The Department will first respond to the general comments
before turning to the proposals in Sec. 655.120(c) and the specific
comments related to these proposals. As discussed below, the Department
is adopting paragraphs (c)(1)(ii) and (vi) unchanged from the NPRM and
is adopting paragraphs (c)(1) introductory text and (c)(1)(i), (iii)
through (v), and (vii) through (ix) with some changes.
ii. General Comments on Prevailing Wage Determinations
The Department received general comments regarding the need for
PWDs. Several commenters including employers and trade associations
encouraged the Department to remove PWDs from the H-2A regulations
entirely. Commenters explained agricultural wages involved too many
factors, which prevent the government from establishing an accurate
wage rate that is generally applicable and protects the domestic
workforce from adverse effect. As an example of this ``inaccuracy,'' a
few commenters observed that employers who respond to the survey in
some regions or States pay higher rates to compete with employers who
use the H-2A program in those areas. According to the commenters, the
inclusion of these higher rates distorts survey results.
To the extent these comments recommend eliminating prevailing wages
as a wage source under Sec. 655.120(a), they are outside the scope of
this rulemaking. With respect to comments on setting accurate wages
when different factors affect agricultural workers' pay, the Department
acknowledges it cannot delay or forgo its delegated duties because the
available data may be less than perfect.\43\ The Department disagrees
with the commenters' suggestion that the inclusion of responses from
employers paying higher rates to compete with H-2A employers
necessarily distorts survey results. The commenters did not provide
evidence that the inclusion of such rates ``distorts'' survey findings
or offer examples of survey inaccuracies, beyond mentioning surveys
challenged in two cases that have since been dismissed in favor of the
Department and SWA.\44\ Moreover, the prevailing wage rate is intended
to reflect the average wage of U.S. workers in a geographic area for a
crop or agricultural activity and, if applicable, distinct work task(s)
within that activity. If employers are paying a certain average rate
and the Department validates such a finding, then that is the
prevailing wage employers must pay to applicable workers when it is the
highest of available wages sources in Sec. 655.120(a).
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\43\ See Zirkle Fruit Co. v. U.S. Dep't of Labor, et al., 442 F.
Supp. 3d 1366, 1383 (E.D. Wash. 2020) (``Agency action is not
arbitrary or capricious simply because it is imperfect. Nor are
agencies required to delay or forego their delegated duties simply
because they lack a perfect dataset from which to undertake
them.'').
\44\ Zirkle Fruit Co., 442 F.Supp.3d at 1383; Order Dismissing
Case, Evans Fruit Co., et al. v. U.S. Dep't of Labor, et al., No.
19-cv-3202 (E.D. Wash. Nov. 7, 2019); see also Order Denying
Plaintiffs' Motion for Preliminary Injunction, Evans Fruit Co., Inc.
v. U.S. Dep't of Labor, et al., No. 19-cv-3202 (E.D. Wash. Oct. 11,
2019) (agency's actions are not arbitrary simply because they rely
on ``imperfect data or used an imperfect approach'').
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iii. General Comments on the Prevailing Wage Survey Methodology
Several SWAs, employers, agents, and trade associations supported
modernizing the prevailing wage methodology and revising the
regulations to provide concrete guidance and criteria. A SWA as well as
some employers and trade associations believed the proposed standards
were not rigorous enough to produce accurate PWDs. In contrast,
workers' rights advocacy organizations claimed the standards were too
rigorous and would result in too few PWDs. Similarly, two U.S. Senators
asserted the proposed methodology ``is overly complex'' and raises
concerns, including ``whether SWAs will be adequately equipped to
undertake the wage surveys.'' The Senators did not provide additional
explanation on why they believed the proposal was too complex. Some
associations expressed concern there was no ``third party . . . peer
review'' to show the standards would result in accurate prevailing
wages. One association stated, without additional explanation, that
changes to the survey methodology should only be attempted in a stand-
alone rule, if at all. The Department appreciates and values the
commenters' general input on the prevailing wage survey methodology
proposed in the NPRM. Because of the general nature of these comments,
the Department is unable to address them in further detail. Beyond
these general comments, the Department received comments on the
specific proposals in Sec. 655.120(c), which are addressed in the
sections that follow.
iv. Section 655.120(c)(1) Introductory Text and (c)(1)(i)
The Department proposed in Sec. 655.120(c)(1) that the OFLC
Administrator will issue a prevailing wage for a crop activity or
agricultural activity if all of the requirements in Sec.
655.120(c)(1)(i) through (ix) are met. The Department did not receive
comments on this specific proposal, and therefore adopts the language
in the NPRM with a minor revision to account for a prevailing wage for
``a distinct work task or tasks performed'' within a crop or
agricultural activity, if applicable. As discussed further in the
preamble to Sec. 655.120(c)(1)(iii), the revised language recognizes
there may be a prevailing wage for a distinct work task or tasks within
a crop or agricultural activity in certain situations, and conforms to
similar changes made to portions of Sec. 655.120(c) in this final
rule.
In Sec. 655.120(c)(1)(i), the Department proposed to maintain the
current requirement that the SWA submit a Form ETA-232 to explain the
methodology used to conduct the prevailing wage survey. An employer and
trade association supported the proposal, while several workers' rights
advocacy organizations expressed concern that the Department would only
require consideration of a prevailing wage rate if it is approved by
the Department, and OFLC in particular, because this could lead to the
potential rejection of a prevailing wage survey finding submitted by a
SWA. Commenters, including two other trade associations, added that the
Department should sanction SWAs that submit noncompliant or invalid
surveys.
After considering the comments received in response to Sec.
655.120(c)(1)(i), the Department has
decided to retain the NPRM language with the same minor revision
related to distinct work task(s) discussed above.\45\ The Department
has reviewed and approved SWA prevailing wage findings for decades and
paragraph (c)(1)(i) reflects a continuation of this longstanding review
and approval process, not a new requirement. See, e.g., 1987 H-2A IFR,
52 FR 20496, 20521; ETA Handbook 385 at I-135. The Department disagrees
that a sanction is needed, especially when the Department has and will
continue to review prevailing wage findings submitted by SWAs to ensure
they satisfy the Department's methodological requirements.
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\45\ The Department has updated Form ETA-232 to align with the
prevailing wage methodology in this final rule.
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v. Section 655.120(c)(1)(ii)
The Department proposed to allow State entities other than the SWA,
including a State agency, State college, or State university, to
independently conduct prevailing wage surveys. This proposal sought to
encourage more surveys conducted by reliable sources, independent of
employer or worker influence. As the NPRM explained, SWAs have limited
capacity to conduct surveys given other legal requirements, including
the statutory requirement to conduct housing inspections. Other State
entities, however, may have resources and expertise to conduct
prevailing wage surveys for purposes of the H-2A program. Under the
proposal, a State entity other than the SWA could choose to conduct a
prevailing wage survey using State resources without any foreign labor
certification program funding. Alternatively, the SWA could elect to
wholly or partially fund a survey conducted by another State entity
using funds provided by the Department for foreign labor certification
programs.
The Department proposed to continue to require the SWA to submit
the Form ETA-232 for any prevailing wage survey, even if the survey was
conducted by another State entity. This process is designed to ensure
the Department will not adjudicate conflicting surveys in the event the
SWA identifies more than one State prevailing wage survey that might be
used for purposes of the H-2A program. The NPRM solicited comments on
alternate methods to address concerns with possible conflicting
surveys, and whether there are additional neutral sources of prevailing
wage information that the Department should use in the H-2A program to
further its effort to modernize State-conducted prevailing wage
surveys. The Department received several comments on this proposal.
Following full consideration of these comments, the Department has
decided to retain the proposal in this final rule without change. The
Department's responses to these comments are provided below.
Use of Alternative Data Sources
A workers' rights advocacy organization recommended the Department
permit SWAs to determine prevailing wages based on information like
employers' job service listings for similar positions and information
in a State unemployment insurance (UI) database. The commenter
explained that a ``wage survey is merely one of the ways'' to determine
a prevailing wage and ``SWAs have a variety of real time data available
to them that is provided by employers.'' The commenter added that job
service staff funded by Migrant and Seasonal Farmworker funds are
``uniquely qualified'' to assess if an hourly or piece rate wage is
consistent with the prevailing practice in their region. The commenter
also urged the Department to use the local wage from the Occupational
Employment and Wage Statistics (OEWS) survey,\46\ formerly the
Occupational Employment Statistics survey prior to March 31, 2021, to
establish prevailing wages for crop activities paid on an hourly basis
when the SWA does not produce a prevailing wage finding or if the
Department determines the finding submitted does not satisfy
methodological requirements.
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\46\ OEWS collects wage data from all 50 States as well as the
District of Columbia (DC), Puerto Rico, Guam, and the Virgin
Islands. See Bureau of Labor Statistics (BLS), Occupational
Employment and Wage Statistics Overview, https://www.bls.gov/oes/oes_emp.htm (last modified Mar. 31, 2021) (``The OEWS survey is a
federal-state cooperative program between [BLS] and [SWAs]. BLS
provides the procedures and technical support, draws the sample, and
produces the survey materials, while the SWAs collect the data. SWAs
from all [50 States], plus [DC], Puerto Rico, Guam, and the Virgin
Islands participate in the survey. Occupational employment and wage
rate estimates at the national level are produced by BLS using data
from the [50 States] and [DC].'').
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The Department appreciates the suggestions from the commenter. The
Department agrees that SWAs and other State entities may draw on UI
data, job service listings, and other sources of State-generated
information to formulate prevailing wage surveys. For example, SWAs may
use information in their State's UI database as one source to help
identify the general universe of employers to contact, so long as there
is a 20 CFR part 603 compliant agreement for the transfer of the data.
SWAs may also refer to job orders and similar information to help
identify the pay structures for certain crop or agricultural activities
to determine if there are distinct work task(s) within those activities
before conducting a survey. As explained in the NPRM, prevailing wage
surveys are specific to crop and agricultural activities and distinct
tasks performed within these activities in particular geographic areas,
as determined by SWAs. 84 FR 36168, 36185-36187. The Department has
relied on SWAs to determine prevailing wages in the H-2A program for
decades because they are uniquely positioned to determine the crops and
activities to be surveyed, the ideal times to conduct surveys for
various seasonal activities, the universe of employers to be surveyed,
and the areas in which employers operate, based on their knowledge of
prevailing local practices and conditions, differing pay structures for
specific activities and crops, and the movement of migratory farm labor
within the State. Based on this knowledge of local conditions, SWAs and
other State entities can draw on alternative sources of information as
they craft prevailing wage surveys in accordance with the
methodological requirements in this rule.
To the extent the commenter is suggesting that sources such as
employers' job service listings or information in a State UI database
be used to solely determine prevailing wages, the Department is not
able to adopt this suggestion in this rulemaking. Although these may be
neutral sources of wage information, these sources are not surveys or
data collections designed to facilitate identification of wages paid to
workers engaged in a particular activity in a particular geographic
area. As noted in the NPRM, the Department proposed to ``modernize the
methodology used by the SWAs to conduct prevailing wage surveys'' and
``allow the SWAs and other State agencies to conduct surveys using
standards that are more realistic.'' 84 FR 36168, 36178, 36179.\47\ The
use of these alternative data sources in lieu of a State-conducted
survey of wages in
a crop or agricultural activity and geographic area to determine
prevailing wages would require further consideration, in part,
regarding the appropriate criteria such data sources must meet to
produce prevailing wages in the H-2A program. Such a change to the
proposal--adding both a method of determining prevailing wages other
than State-conducted surveys of employers as well as the criteria for
the SWA to use in evaluating and using non-survey data sources to
determine prevailing wages--cannot be adopted without further
consideration, including notice-and-comment rulemaking.
---------------------------------------------------------------------------
\47\ See also e.g., 84 FR 36168, 36179 (``Accordingly, the
Department proposes to make the changes discussed below to modernize
the prevailing wage methodology and empower States to produce a
greater number of reliable prevailing wage surveys results.''); 84
FR 36168, 36263 (prevailing wage defined as a wage rate established,
inter alia, ``based on a survey conducted by a state that meets the
requirements in Sec. 655.120(c)''); 84 FR 36168, 36176 (proposing a
corresponding change to the Wagner-Peyser Act regulation at 20 CFR
653.501(c)(2)(i) to define ``prevailing wage'' in the same manner
for the agricultural recruitment system as the Department proposes
to define ``prevailing wage'' for the H-2A program).
---------------------------------------------------------------------------
Similarly, the Department did not propose to rely on an alternative
non-State survey, such as the OEWS survey, in the event a SWA or other
State entity conducts a survey but the survey does not yield a PWD.
Rather, the Department proposed using the OEWS survey to establish the
AEWR in certain circumstances. 84 FR 36168, 36183-36184. Moreover, the
NPRM explained that the Department meets its obligation to protect
against adverse effect on the wages of workers in the United States
similarly employed primarily by requiring employers to offer,
advertise, and pay the AEWR, which is a form of prevailing wage and
under the current wage methodology is the required wage rate in
approximately 95 percent of H-2A applications. Id. at 36179. The NPRM
therefore clarified that the Department is not obligated to establish a
prevailing wage separate from the AEWR for every occupation and
agricultural activity in every State. Id. Instead, the Department
proposed to modernize the methodology used by the SWAs to conduct
prevailing wage surveys to serve as an additional wage protection for
workers in specific crops and activities. Id. Adopting the suggestion
to use the OEWS survey when there is no PWD from a State-conducted
survey would be a change that commenters and stakeholders generally
could not have anticipated as an outcome of the rulemaking, thus
warranting additional public notice and opportunity for comment.
Finally, to the extent the commenter is referring to SWA staff
funded by Wagner-Peyser Act funds when it refers to ``job service staff
funded by Migrant and Seasonal Farmworker funds,'' the Department
agrees that SWAs are ``uniquely'' positioned to assess differing pay
structures based on their knowledge of prevailing local practices and
conditions, as discussed above.
Private and Other Third-Party Surveys
An individual commenter mistakenly believed the Department proposed
to eliminate employer-provided prevailing wage surveys, but there are
no such surveys under the H-2A program and, as such, the NPRM did not
propose their elimination. Several trade associations, agents, and a
public policy organization asked the Department to permit the use of
wage surveys conducted by other third parties, including employer-
provided surveys. One of these commenters explained statistically valid
employer-provided surveys would save Federal resources and allow for
``more accurate'' surveys tailored to particular areas and occupations.
The commenter stated it was irrational for the Department to permit
such surveys in the H-2B program, but not the H-2A program.
The Department declines to adopt the request to allow private or
employer-provided surveys. As a preliminary matter, the Department
notes that the comment mischaracterizes the Department's position on
the use of employer-provided surveys in the H-2B program. The 2015 H-2B
Final Rule permits employer-provided surveys only in limited
circumstances: (1) those conducted by a State or State agency, State
college, or State university; (2) those submitted for a geographic area
where the OEWS does not collect data, or in a geographic area where the
OEWS provides an arithmetic mean only at a national level for workers
employed in the SOC occupation; or (3) where the job opportunity is not
included in an occupational classification of the SOC system, or is
included within a SOC occupation designated as ``all other.'' \48\
Further, only in the latter two scenarios (i.e., (2) and (3)) would the
Department permit an employer to submit a private wage survey for
consideration. Subsequently, Congress required the Department to expand
the types of surveys permitted in the H-2B program through
Appropriations Act legislation first enacted in 2015 and every year
since.\49\
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\48\ See 2015 H-2B Final Rule, 80 FR 24146, 24165-24171 (Apr.
29, 2015) (discussing at length the reasons the Department does not
permit general use of employer-provided private wage surveys); Sec.
655.10(f); see also Comite de Apoyo a los Trabajadores Agricolas
(CATA) v. Perez, 774 F.3d 173, 191 (3d Cir. 2014) (directing ``that
private surveys no longer be used in determining the mean rate of
wage for occupations except where an otherwise applicable [OEWS]
survey does not provide any data for an occupation in a specific
geographical location, or where the [OEWS] survey does not
accurately represent the relevant job classification'').
\49\ See, e.g., Consolidated Appropriations Act, 2021, Public
Law 116-260, div. H, tit. 1, sec. 110 (2020); Consolidated
Appropriations Act, 2020, Public Law 116-94, div. A, tit. I, sec.
110 (2019); Consolidated Appropriations Act, 2016, Public Law 114-
113, div. H, tit. I, sec. 112 (2015); see also Effects of the 2016
Department of Labor Appropriations Act (Dec. 29, 2015) at p. 4,
https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
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Moreover, due to regulatory differences between the H-2A and H-2B
programs, the Department believes it is reasonable to exclude employer-
provided surveys in the H-2A program but allow them in limited
circumstances in the H-2B program. First, there is no AEWR under the H-
2B program. Instead, the employer must offer a wage that is at least
equal to the prevailing wage or the Federal, State, or local minimum
wage, whichever is highest. Second, the PWD processes in the H-2A and
H-2B programs are distinct. In the H-2B program, the prevailing wage is
determined on a case-by-case basis, in advance of the employer's
application filing with the OFLC NPC.\50\ In contrast, prevailing wages
under the H-2A program are historically determined using one method--
SWA surveys submitted to the OFLC Administrator--and are applicable to
all H-2A applications for the crop or agricultural activity in the area
surveyed.\51\ There is no mechanism in the H-2A program for OFLC to
evaluate wage surveys for specific job opportunities or from sources
other than the SWA. Instead, the SWA must submit prevailing wage survey
results to OFLC on the Form ETA-232. This final rule continues this
requirement, even if the survey submitted with the SWA's Form ETA-232
was conducted by another State entity. Finally, given that employers
are required to pay the highest of the wage sources listed in Sec.
655.120(a), it seems unlikely that an employer would submit an
alternate wage survey because the wage finding from that survey would
impact the employer's wage offer requirement only if it is the highest
among the sources in Sec. 655.120(a).
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\50\ H-2B employers must obtain a PWD from the National
Prevailing Wage Center (NPWC) before filing an H-2B application with
the NPC. The NPWC engages in a case-by-case analysis of the
employer's job opportunity and several wage sources.
\51\ During application review, the NPC compares the prevailing
wage for the crop or agricultural activity and area, if available,
to the other applicable wage sources (i.e., AEWR; CBA; and Federal
and State minimum wages) to determine the highest wage.
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Surveys Conducted by Non-SWA State Entities
An employer asserted that only State agriculture agencies should
conduct surveys because SWAs and others lack industry expertise. A
trade association opposed allowing SWAs to use surveys conducted by
other State entities because this could create uncertainty
and may produce wages that ``fluctuate wildly.'' A public policy
organization stated the NPRM does not offer a methodology to resolve
conflicting surveys or address whether State universities may accept
money from grower associations to conduct prevailing wage surveys. In
contrast, a commenter from academia and another association supported
the proposal in the NPRM, with the association noting that surveys
conducted by non-SWA State entities would ``alleviate concerns'' over
the reliability of OEWS data for agricultural occupations and provide a
``reasonable alternative'' to the FLS.
The Department declines to adopt the suggestion to limit surveys to
State agriculture agencies or SWAs. The Department seeks to increase,
rather than limit, the number of State entities that can conduct
surveys in order to encourage more prevailing wage findings. The
commenters' suggestion would conflict with this goal. Moreover, the
Department is retaining the SWA as the entry point for other State
entity surveys in order to leverage the SWA's expertise in the
selection of surveys to submit for OFLC approval. In response to the
comment that the NPRM did not offer a ``methodology'' to resolve
conflicting surveys, this final rule clarifies that the SWA will
evaluate conflicting State surveys and submit to the Department only
one survey for a crop or agricultural activity and distinct work
task(s) in that activity, if applicable, for a particular area.
With regard to the comment on whether State universities could
accept money from grower associations to conduct a survey, the
Department understands this comment to be concerned with the
impartiality of State-conducted surveys. As noted in the 2015 H-2B
Final Rule, the Department has a long history of partnering with States
to collect wage data and determine prevailing wage rates. See 80 FR
24146, 24170. The Department accepts surveys conducted by State
entities, such as State agriculture agencies and universities, because
these sources are considered reliable and independent of employer
influence. Id. The requirement that the State must independently
conduct the survey means that the State must design and implement the
survey without regard to the interest of any employer in the outcome of
the wage reported from the survey. Id. In addition, the Department does
not believe wages will vary significantly depending on the State entity
that conducts the survey. This is because entities will be held to the
same methodological standards, and OFLC will review prevailing wage
findings prior to the issuance of any prevailing wage rate to ensure
the survey meets methodological requirements.
vi. Section 655.120(c)(1)(iii)
The Department proposed that a prevailing wage survey must cover a
distinct work task or tasks performed in a single crop activity or
agricultural activity. The Department explained the concept of distinct
work tasks is continued from ETA Handbook 385, which provides:
Some crop activities involve a number of separate and distinct
operations. Thus, in harvesting tomatoes, some workers pick the
tomatoes and place them in containers while others load the
containers into trucks or other conveyances. Separate wage rates are
usually paid for individual operations or combinations of
operations. For the purposes of this report, each operation or job
related to a specific crop activity for which a separate wage rate
is paid should be identified and listed separately.
ETA Handbook 385 at I-113 (emphasis in original). The NPRM stated
``[t]he distinct task requirement means that even within a single crop,
distinct work tasks that are compensated differently (e.g., picking and
packing) would be required to be surveyed in a manner that produces
separate wage results.'' 84 FR 36168, 36186.
The Department received several comments on this proposal. Some
trade associations asked the Department to clarify what constitutes a
distinct work task within a crop or agricultural activity so employers
can provide more accurate and reliable wage data. A workers' rights
advocacy organization stated that it would be difficult for SWAs to
determine which activities are paid differently until after the survey
is complete. One trade association opposed the determination of wage
rates by tasks because it believed doing so could negatively affect
smaller operations and expose employers to liability.
After careful consideration of the comments, the Department has
decided to retain the proposal in this final rule with clarification in
this section of the preamble and a minor change to the regulatory text.
In particular, the Department clarifies that if the SWA or surveyor
knows before the administration of a survey that separate wage rates
are paid to a distinct work task or tasks within a crop or agricultural
activity, then the survey must be designed to capture that unique
task(s) and wage rate(s). This knowledge could come from different
sources, including prior experience or stakeholder engagement during
the survey development phase.
The Department also clarifies that a SWA or surveyor may determine
that a task or tasks within a crop or agricultural activity is paid
differently during or after the survey administration period. For
example, a survey form could ask employers to list the crop activity--
including distinct work task(s) within each activity--associated with
each unique wage rate. The survey could also provide a space for
employers to furnish additional information on factors that may affect
wage rates. Depending on the responses from employers (if any), the SWA
or surveyor may determine there are distinct work task(s) within an
activity and that it therefore must calculate a separate wage rate for
this task or tasks. The Department's above clarifications allow SWAs to
retain discretion over which crop and agricultural activities to survey
and the methods for collecting data from employers--as is the case
under current standard practice--while fulfilling the requirements of
this provision. Finally, consistent with current practice and language
in the Handbook, the Department has revised the regulatory text for
this provision to clarify that the survey must cover work performed in
a single crop or agricultural activity and, if applicable, a distinct
work task(s) performed in that activity. This change recognizes that
not every crop activity or agricultural activity will have a distinct
work task or tasks and thus not every survey will cover such task or
tasks.\52\
---------------------------------------------------------------------------
\52\ See ETA Handbook 385 at I-113 (``Some crop activities
involve a number of separate and distinct operations.'') (emphasis
added).
---------------------------------------------------------------------------
In response to the trade associations' request for clarification,
the concept of distinct work tasks is not new, but rather a
continuation from ETA Handbook 385. As noted in the Handbook, the
hallmark of a distinct work task performed in a crop or agricultural
activity is a separate wage rate that is paid for that operation or
job. Given the factors that may affect wage rates, the Department is
unable to provide an exhaustive list of tasks for all crop or
agricultural activities in all geographic areas. Instead, what
constitutes a distinct work task must be determined in each case,
depending on the information before the SWA or other State surveyor.
The Department acknowledges the workers' rights advocacy
organization's comment that SWAs may not know if activities are paid
differently until after the completion of a survey. As clarified above,
a SWA or surveyor may
determine a distinct work task or tasks performed within a crop or
agricultural activity is paid differently during or after the survey
administration period. The Department believes this clarification
addresses the workers' rights advocacy organization's comment and notes
SWA commenters did not express concern that determining the distinct
work tasks to be covered by a survey has been challenging under the
Handbook or will be challenging under the similar provision proposed in
the NPRM. Finally, the trade association did not explain how the
proposal would adversely affect smaller operations, though it claimed
that smaller operations rely on fewer workers to perform a more diverse
array of tasks. As explained above, the concept of a distinct work task
is a continuation from ETA Handbook 385. The Department is not aware of
instances where employers have been exposed to liability related to
this concept in the decades that prevailing wage surveys have been
conducted using the Handbook and related guidance. In addition, because
a separate wage rate is the hallmark of a distinct work task, an
applicable employer--regardless of size--must pay this rate if it is
approved by OFLC as the prevailing wage and is the highest of the
applicable wage sources in Sec. 655.120(a).
vii. Section 655.120(c)(1)(iv)
The Department proposed that the surveyor must make a reasonable,
good faith effort to contact all employers who employ workers in the
crop or agricultural activity and geographic area surveyed or conduct a
randomized sampling of such employers. The NPRM explained this
requirement is based on general statistical principles and consistent
with ETA Handbook 385. 84 FR 36168, 36186 (citing ETA Handbook 385 at
I-114). The NPRM proposed to continue the use of a random sample and
clarified that a random sample or survey of the entire population is a
requirement, not a recommendation. It noted this requirement is
consistent with the H-2B prevailing wage regulation at Sec. 655.10 and
current H-2B prevailing wage guidance interpreting the H-2B
appropriations riders. The Department received two general sets of
comments on this proposal. Having carefully considered these comments,
the Department has decided to adopt the regulatory text proposed in the
NPRM, with some revisions.
The first set of comments addressed the requirement to contact all
employers in the area or a random sample of such employers. A workers'
rights advocacy organization asserted that contacting all employers of
workers in a particular crop or agricultural activity would be
impossible for States operating with limited resources because no ready
database of this information exists. The commenter asked the Department
to clarify what would constitute a ``reasonable'' attempt to contact
all employers in the universe and stated it would be clearer to ask the
States to perform a random sample of employers of which they have
knowledge, rather than a sample of all ``such employers.'' The
commenter also suggested the regulations allow States to propose an
alternative sampling method that aligns with the conditions and
resources in that State. An agent claimed that allowing a reasonable,
good faith attempt to contact all employers to substitute for
statistically valid sampling ``severely limits'' the validity of
resulting wages. A trade association stated it did not oppose the use
of random samples if the survey produces reliable, statistically valid
data and wages are not separated by task or otherwise discriminates
against smaller operations.
The Department agrees with the workers' rights advocacy
organization that the surveyor may not know the universe of all
relevant employers at the beginning of a survey. This final rule
therefore clarifies that the surveyor may estimate the universe of
relevant employers and make a reasonable, good faith effort to contact
these employers based on the estimated universe. This final rule also
clarifies that under the random sample option, the surveyor must, at a
minimum, estimate the universe of relevant employers and workers and
then randomly select a sufficient number of employers from the
estimated universe to contact in order to satisfy the minimum employer
and worker sample size requirements. These minimum requirements or
``baseline standards'' are discussed in the preamble to Sec.
655.120(c)(1)(vii) through (ix). The Department's interpretation of the
random sample option is consistent with its interpretation of a similar
requirement for employer-provided surveys in the H-2B program.\53\
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\53\ See, e.g., 2015 H-2B Final Rule, 80 FR 24146, 24173
(``Proper randomization requires the surveyor to determine the
appropriate `universe' of employers to be surveyed before beginning
the survey and to select randomly a sufficient number of employers
to survey to meet the minimum criteria on the number of employers
and workers who must be sampled.'').
---------------------------------------------------------------------------
The NPRM proposed that a survey must include the wages of U.S.
workers employed by at least five employers, among other baseline
standards. As explained in the preamble discussing Sec.
655.120(c)(1)(vii) through (ix), it is the Department's understanding
that some crop or agricultural activities and distinct work task(s) in
a geographic region may have a smaller number of employers. The
Department made changes to Sec. 655.120(c)(1)(vii) through (ix) so
that States may still determine a prevailing wage in such a situation.
Consistent with those changes, the Department amends this provision to
clarify that if the estimated universe of employers is fewer than five,
the surveyor must contact all employers in the estimated universe,
instead of contacting a random sample or making a reasonable, good
faith attempt to contact such employers. This final rule adds two
clarifying edits: first, to replace ``conducted'' with ``contacted'' in
regard to a randomized sample for consistency with the language in
other parts of the provision, namely the ``contact all relevant
employers'' option, and with the purpose of this provision, which is to
set forth how the surveyor should contact employers in the estimated
universe. Second, this final rule amends the regulatory text to clarify
that the estimated universe is for a crop activity or agricultural
activity and, if applicable, a distinct work task or tasks within that
activity. This clarification recognizes there may be a PWD for a
distinct work task or tasks within a crop activity or agricultural
activity in certain situations, and is consistent with changes to other
portions of Sec. 655.120(c) in this final rule.
Consistent with SWAs' current practice, the surveyor may estimate
the universe of relevant employers from information obtained from
sources such as UI databases, open and closed job orders, State labor
market information, and information provided by State agricultural
extension offices. The surveyor has the option to conduct a
statistically valid sampling or stratified random sampling by employer
size. However, the Department is not requiring enhanced sampling
methods. Though the minimum standards in this final rule may not return
statistically valid results in all cases due to the reduced sample size
requirements,\54\ the Department believes that the requirements in this
provision, along with other safeguards in Sec. 655.120(c), will allow
for the increased availability of State-specific data and crop/task
categorical granularity, and are aimed at ensuring surveys that are
sufficiently
representative and do not rely on selective sampling or other
techniques that may produce wage estimates that are not representative
of wages paid to workers in the United States similarly employed. In
addition, these minimum standards are intended to provide more options
for SWAs to make decisions about whether to prioritize precision,
accuracy, granularity, or other quality factors in the data they use to
inform prevailing wages. The Department will provide technical
assistance to the SWAs, as needed.
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\54\ As noted further below, the sample size requirements in
this final rule are consistent with or exceed the OEWS survey
requirements as well as the ``safety zone'' standards used by the
DOJ and Federal Trade Commission (FTC) in the anti-trust context.
---------------------------------------------------------------------------
In response to the suggestion to allow an alternative sampling
method, the Department concludes that this final rule balances the need
to provide the surveyor with the flexibility to determine the type of
survey to conduct with the need to ensure the results of the survey are
as reliable as possible. The Department does not believe there is a
reasonable alternative sampling method that consistently balances these
goals, and the commenter did not suggest any.
With regard to requests for clarification on what constitutes a
``reasonable'' attempt to contact relevant employers, the NPRM
explained that a reasonable, good faith effort might mean the surveyor
sends the survey through the mail or other appropriate means to all
employers in the geographic area and then follows up by telephone with
all non-respondents. 84 FR 36168, 36186; see also 2015 H-2B Final Rule,
80 FR 24146, 24173. However, a surveyor can make a ``reasonable, good
faith'' attempt to contact relevant employers in other ways and the
Department believes an assessment of reasonable contact methods will be
determined most effectively on a case-by-case basis, depending on the
facts before the OFLC Administrator. The Department disagrees with the
agent's comment that allowing a reasonable, good faith attempt to
contact all employers ``severely limits'' the validity of the resulting
wage. Surveys often are based on samples from a population and are not
``severely limited'' merely because the surveyor did not contact the
entire population. Rather, the validity of a survey will depend on
factors such as the number of responses received. As mentioned above,
the minimum standards in Sec. 655.120(c) are aimed at ensuring surveys
that are sufficiently representative and do not rely on selecting
sampling or other techniques that result in biased prevailing wages.
The second set of comments addressed the perceived elimination of
the in-person interview requirement. Specifically, commenters,
including two trade associations, claimed that in-person interviews of
employers and employees are needed to obtain and verify accurate wage
data. A workers' rights advocacy organization stated in-person
interviews of workers are likely necessary for reforestation and pine
straw work. In contrast, another workers' rights advocacy organization
and a commenter from academia agreed that in-person interviews are no
longer practical.
In response to comments that in-person employer and employee
interviews are necessary, the Department notes, as it explained in the
NPRM, that in-person interviews are unnecessarily burdensome and
inconsistent with modern survey methods. 84 FR 36168, 36179, 36185.
Neither the FLS nor OEWS survey requires in-person interviews of
employers as the primary collection method. Both the FLS and OEWS
survey, moreover, rely solely on employer-reported data and do not
canvass workers directly. The Department's current standard practice
for conducting prevailing wage surveys does not require SWAs to
interview employers in person.\55\ The commenters did not explain why
telephone, mail, or electronic methods of contacting employers are
insufficient to collect verifiably accurate results. The Department's
current standard practice also does not require SWAs to conduct worker
interviews.\56\ Therefore under this final rule, SWAs are not obligated
to conduct in-person interviews of employers or worker interviews.
Finally, because reforestation and pine straw workers are not covered
in the H-2A program under this final rule, the workers' rights advocacy
organization's comment that in-person interviews may be required for
these industries is no longer applicable.
---------------------------------------------------------------------------
\55\ This practice is based on public guidance issued by the
Department to SWAs that amended the guidance in ETA Handbook 385.
See, e.g., TEGL No. 21-20, Fiscal Year (FY) 2021 Foreign Labor
Certification Grant Planning Guidance (May 10, 2021).
\56\ See id.
---------------------------------------------------------------------------
viii. Section 655.120(c)(1)(v)
The NPRM proposed to limit prevailing wage surveys to the wages of
U.S. workers. It also proposed to require the SWA or other State entity
to determine prevailing wages based on the unit of pay used to
compensate at least 50 percent of the U.S. workers included in the
survey and that the rate of pay must be based on the average wage of
all the U.S. workers within the selected unit of pay. This final rule
adopts these provisions with changes, explained below.
Limiting the Survey to the Wages of U.S. Workers
Limiting prevailing wage surveys to the wages of U.S. workers
applies to both determining the universe of workers' wages to be
sampled and the universe of workers' wages reported. The NPRM explained
that this limitation is consistent with current policy \57\ and
reflects the Department's longstanding concern that including the wages
of non-U.S. workers may depress wages.
---------------------------------------------------------------------------
\57\ The NPRM noted that ETA Handbook 385 uses the terms
``domestic workers'' and ``U.S. workers'' in describing the sample
to be conducted, and the previous version of the Form ETA-232
similarly limits the survey to U.S. workers. 84 FR 36168, 36186 n.
50.
---------------------------------------------------------------------------
Several trade associations and an agent urged the Department not to
limit survey responses to the wages of U.S. workers because of the
potential legal implications for employers, including that employers
may not know whether workers are undocumented. These commenters and
others also opposed the proposal on the basis that the Department does
not similarly exclude from survey responses the wages paid to H-2A
workers and workers in corresponding employment, which the commenters
claim may inflate or skew the prevailing wage. Another trade
association suggested the inclusion of non-U.S. workers would allow the
Department to determine whether foreign workers are adversely affecting
the wages of U.S. workers. An employer and trade association requested
the Department add a provision that would make H-2A workers part of the
prevailing wage survey if more than 10 percent of the agricultural
workforce in a State is composed of H-2A workers or workers in
corresponding employment. After careful consideration of the comments,
the Department has decided to adopt the proposal to limit the survey to
U.S. workers. This final rule clarifies that ``determining the universe
of workers' wages to be sampled'' means the survey instrument must ask
employers to report the wages of U.S. workers only.
As explained above and in the NPRM, this survey limitation is a
continuation of the Department's current policy. Employers already have
experience verifying worker eligibility prior to employment, and they
have the obligation to continue to do so. Moreover, the Department is
not aware of cases where employers have been exposed to liability based
on the wages they have provided in response to SWA survey requests.
Survey results should exclude the wages of H-2A workers, but
should include the wages of U.S. workers in the crop activity or
agricultural activity and distinct work task(s), if applicable, and
geographic area. As noted above, the prevailing wage rate is intended
to reflect the average wage of U.S. workers in a geographic area and a
given crop or agricultural activity and, if applicable, distinct work
task(s) within that activity. If prevailing wage surveys determine
employers are paying a certain average rate for an activity or distinct
task(s) in an area and the Department validates this finding, then that
rate is the prevailing wage rate and must be paid to applicable workers
when it is the highest of available wages sources listed in Sec.
655.120(a).
The Department declines to adopt the suggestion to include the
wages of non-U.S. workers in a survey, or include the wages of H-2A
workers in surveys when they are concentrated in an area, because it is
contrary to the purpose of prevailing wage rates, which are intended to
reflect the wage paid to U.S. workers in a given crop or agricultural
activity and geographic area. As explained in the NPRM, limiting the
survey to U.S. workers reflects the Department's longstanding concern
that including the wages of non-U.S. workers in a prevailing wage
finding may depress wages. 84 FR 36168, 36186. To the extent U.S.
workers in corresponding employment are covered by a prevailing wage
survey, the Department concludes that the survey will sufficiently
represent the wages paid by that employer to its H-2A workers as well.
This is because H-2A employers must offer to U.S. workers no less than
the same benefits, wages, and working conditions the employer is
offering, intends to offer, or will provide to their H-2A workers. See
Sec. 655.122(a).
Unit of Pay Determinations
The NPRM proposed that a prevailing wage be issued only if a single
unit of pay is used to compensate at least 50 percent of the U.S.
workers included in the survey, similar to the current requirement in
ETA Handbook 385.\58\ The Department proposed this requirement both to
verify that the rate structure reflected in the survey is actually
prevailing and to allow the wages included in the survey to be
averaged, as it would not be possible to average wages using different
units of measurement.
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\58\ ETA Handbook 385 at I-117 (noting that, if a survey
includes more than one unit of pay, a prevailing wage rate is issued
based on the unit of pay that represents the largest number of
workers).
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A trade association expressed support for this proposal. A workers'
rights advocacy organization requested the Department revise the
regulatory text to clarify that the survey must report the unit of pay
used to compensate at least 50 percent of the workers represented in
the survey responses, not 50 percent of all workers in the estimated
survey universe.
This final rule adopts the NPRM proposal with changes to the
regulatory text in response to the above comments and after the
Department's own further consideration. First, the Department has
revised the provision to require the PWD to be based on the unit of pay
used to compensate the largest number of workers, rather than ``at
least 50 percent of the workers,'' which is consistent with the current
unit of pay provision in the Handbook. The Department made this change
in this final rule because the proposed ``50 percent of U.S. workers''
would impose a requirement that is more stringent than the language in
the Handbook for crop or agricultural activities involving several
units of pay (e.g., per hour, per pound with no bonus, per pound with a
bonus). While uncommon, the Department acknowledges there are instances
where the survey results reflect more than two units of pay for a crop
or agricultural activity and distinct work task(s) in that activity, if
applicable. In such situations, there will be at least one unit of pay
that is paid to the ``largest number of workers'' whose wages are
reported in the survey, but it is possible that no single unit of pay
will account for ``at least 50 percent'' of such workers. Because the
unit of pay that is paid to the largest number of workers in the survey
can be considered prevailing, the Department believes this proposed
change better aligns with its goal of encouraging more prevailing wage
surveys through the adoption of standards that are as reliable as
possible, while also accounting for the realities of a modern budget
environment.
The Department made some minor revisions to the regulatory text for
clarity and conformity with other provisions. The Department added
``U.S.'' before ``workers'' in the regulatory text for clarification
and consistency with the requirement that prevailing wage surveys
include only wages of U.S. workers. The Department also changed the
phrase from ``whose wages are surveyed'' to ``whose wages are reported
in the survey,'' to address the workers' rights advocacy organization's
request that the Department clarify that this language refers to survey
responses received. Finally, the Department added the language ``and
distinct work task(s), if applicable'' after ``crop activity or
agricultural activity,'' for clarity and consistency with other changes
to the regulatory text in Sec. 655.120(c). As applied to this
provision, this change clarifies that if the surveyor determines that a
task (or tasks) within a crop or agricultural activity is paid
differently (i.e., there is a distinct work task or tasks within the
activity), then the survey should report the average wage of U.S.
workers in that distinct work task(s).
Rate of Pay Determinations
The NPRM proposed that the survey must report the average wage of
all workers within the prevailing unit of pay, which departed from the
current requirement in ETA Handbook 385 to use a ``40 percent rule''
and a ``51 percent rule'' to determine the prevailing rate of pay. The
NPRM proposed using the average wage because it is consistent with the
method the Department proposed to determine the AEWR, as well as the
current methodology for determining prevailing wage rates in the H-2B
program. The NPRM solicited comments on the proposal, as well as
possible alternatives, including whether the Department should retain
the ``40 percent rule'' or ``51 percent rule'' from the Handbook or
whether the Department should, instead, establish the prevailing wage
at the median wage based on wages in the prevailing unit of pay.
An employer, a SWA, and several trade associations urged the
Department to use the median wage rather than the average wage on the
basis that the former lessens the impact of outliers. A trade
association recommended retaining the 40 percent and 51 percent rules
without additional explanation. A SWA supported replacing the 40 and 51
percent rules with this proposal as a way to simplify the methodology
for determining the prevailing wage rate and potentially reduce
confusion among stakeholders regarding how the prevailing wage is
determined, but it asked for clarification on whether the SWA must
collect ``piece rate dimensions (i.e., specific linear dimensions of
apple bins).''
After consideration of these comments, the Department has decided
to adopt the NPRM proposal to use the average or mean wage. As
explained in the 2015 H-2B Final Rule, the mean is the appropriate wage
to use to avoid immigration-induced labor market distortions.\59\ The
mean is the arithmetic
average of all wages surveyed in a crop or agricultural activity--and
distinct work task(s) within that activity, if applicable--in the
geographic area. If the applicable prevailing wage is set below the
mean, it could result in a depressive effect on U.S. workers' wages
overall because the average wage of U.S. workers in the relevant
activity or task(s) would be drawn down. See 2015 H-2B Final Rule, 80
FR 24146, 24159-24160. Use of the mean is also consistent with the
Department's determination of prevailing wages for other foreign worker
programs. See 20 CFR 655.10(b)(2), (f)(2) (setting the prevailing wage
in the H-2B program at the mean for the OEWS and employer-provided
surveys); see also 20 CFR 656.40(b)(2) (similar for PERM); 20 CFR
655.731(a)(2)(ii) (similar for H-1B); 20 CFR 655.410(b)(1) (similar for
CW-1).
---------------------------------------------------------------------------
\59\ See 80 FR 24146, 24159-24160; see also Interim Final Rule,
Wage Methodology for the Temporary Non-Agricultural Employment H-2B
Program, Part 2, 78 FR 24047, 24058 (Apr. 24, 2013).
---------------------------------------------------------------------------
Finally, this final rule clarifies that it may be appropriate to
collect piece rate dimensions in some situations, such as when the unit
of measurement of a piece is not standardized and can have differing
dimensions. However, these determinations should be made on a case-by-
case basis by the SWA or State entity conducting the survey. If
necessary, the Department will provide technical assistance to the
SWAs.
Other Comments on Sec. 655.120(c)(1)(v)
Several trade associations and an agent opposed the ``50 percent of
U.S. workers'' proposal because they believed it would impose an
unrealistic wage level on employers as piece rate work may be converted
to hourly compensation. They urged the Department, without additional
explanation, to establish piece rate and hourly wages separately to
avoid piece rate compensation for those who are most productive from
inflating hourly wages. An employer and another trade association
claimed that piece rates are effectively ``double counted'' when they
are incorporated into the calculations of both the AEWR hourly rate and
prevailing piece rates.
The commenters' specific concern regarding the conversion of units
of pay is unclear. Under the Department's approach, a prevailing wage
is issued when a unit of pay is used to compensate the largest number
of U.S. workers in the survey, assuming the survey meets other
applicable requirements. For example, if 75 percent of U.S. workers
included in the survey results are paid hourly, OFLC would issue an
hourly prevailing wage rate for that activity. If those workers were
paid, instead, by the piece based on the same unit of measurement
(e.g., bushel), OFLC would issue a prevailing wage based on a piece
rate. As such, in calculating a prevailing wage, OFLC would not convert
one unit of pay to another (e.g., converting piece rates to hourly
rates) because the ``largest number of workers'' standard must be for
the same unit of pay.
The Department declines to adopt the suggestion to establish
separate piece rate and hourly wages because a wage rate based on one
unit of pay can be prevailing for a crop or agricultural activity and
distinct work task(s), if applicable, in the relevant geographic area
even if there are other units of pay.\60\ Establishing both a
prevailing hourly rate and piece rate for an activity or task(s) in
every instance would be at odds with the Department's current
regulations and guidance under ETA Handbook 385. However, there could
be a situation in which there are different units of pay, each one
accounting for an equal number of U.S. workers whose wages are reported
in the survey. Should this rare situation occur and the survey meets
other applicable requirements, a separate prevailing rate would be
determined for each unit of payment. This clarification is consistent
with the guidance in ETA Handbook 385. See ETA Handbook 385 at I-117.
---------------------------------------------------------------------------
\60\ See ETA Handbook 385 at I-117 (guidance on determining the
prevailing wage rate when there is more than one unit of payment).
Moreover, Sec. 653.501(c)(2)(i) of the Wagner-Peyser Act regulation
states that ``[i]f the wages offered are expressed as piece rates .
. . [the Employment Service staff] must check if the employer's
calculation of the estimated hourly wage rate is . . . not less than
the prevailing wage rate.'' This provision covers clearance of both
H-2A and non-H-2A agricultural job orders and requires the SWA to
ensure that wages offered by an employer are not less than the
higher of several wage sources, as applicable. By explicitly
referencing different units of pay, this regulation recognizes that
the prevailing wage rate may not be in the unit of payment that the
employer offers in its job order.
---------------------------------------------------------------------------
To the extent commenters are suggesting that piece rates, as
incentive pay, not be included in the calculations of the AEWR, the
Department declined to adopt this suggestion in the 2020 H-2A AEWR
Final Rule. As that rule explains, some agricultural jobs guarantee
only the State or Federal minimum wage and otherwise pay based on a
piece rate; advertising an hourly wage that does not include
``incentive pay'' is not a reasonable ``base rate'' for H-2A employers
to advertise to U.S. workers.\61\
---------------------------------------------------------------------------
\61\ 2020 H-2A AEWR Final Rule, 85 FR 70445, 70463; see also
2021 H-2A AEWR NPRM, 86 FR 68174, 68182.
---------------------------------------------------------------------------
Finally, some comments stated prevailing wage surveys should
account for the fact that H-2A employers pay expenses not borne by non-
H-2A employers, such as housing, transportation, visa costs, and
subsistence. The Department does not agree. Prevailing wage surveys
measure the wage rates paid to U.S. workers, not wage rates paid to H-
2A workers or total labor costs employers may incur to ensure workers
are available when and where needed to perform the labor or services an
employer requires. As such, adopting the commenters' suggestion would
be inconsistent with the purpose of the prevailing wage and may,
instead, depress the wages of workers in the United States similarly
employed.
ix. Section 655.120(c)(1)(vi)
The Department proposed that a prevailing wage survey cover an
appropriate geographic area based on (1) available resources to conduct
the survey; (2) the size of the agricultural population covered by the
survey; and (3) any different wage structures in the crop or
agricultural activity within the State. The Department stated in the
NPRM that it intended to codify existing practice in which OFLC
receives prevailing wage surveys of State, sub-State, and regional
geographic areas based on the factors listed above. The NPRM solicited
comments on whether the Department should consider other factors in
determining the appropriate geographic area for prevailing wage
surveys.
A workers' rights advocacy organization requested the Department
clarify what would constitute an appropriate area to survey, including
an explanation of the relevance of the ``size of the agricultural
population'' and how it factors in these determinations. The commenter
claimed that, in practice, prevailing wages are calculated by SWAs
within the boundaries of their respective States because they do not
have the capacity or authority to survey across State lines. The
commenter also asserted that SWAs appear to rely on agricultural
reporting areas, as the term is used in ETA Handbook 385, and suggested
the Department codify the asserted reliance on agricultural reporting
areas rather than the AIE. An agent expressed concern that the
provision would permit SWAs to survey ``truncated'' areas based on
resource constraints alone.
After careful consideration of the above comments, the Department
has decided to retain the provision as proposed. As noted in the NPRM,
the Department intends for this provision to codify existing practice,
which allows for surveys based on State, sub-State, and, in some cases,
regional areas.
SWAs currently rely on modernized agricultural wage reporting areas
that are consistent with principles in ETA Handbook 385. This
geographic area does not necessarily coincide with the AIE.\62\
---------------------------------------------------------------------------
\62\ See 84 FR 36168, 36187 (NPRM noting that while prevailing
wages in the H-2B program are generally set based on the AIE, H-2A
prevailing wage rates are generally set based on a larger geographic
area).
---------------------------------------------------------------------------
In completing the updated Form ETA-232, the SWA must explain how
the surveyor determined the geographic area to survey. This final rule
lists factors that guide this selection, namely available resources,
the size of the agricultural population covered by the survey, and
different wage structures in the crop or agricultural activity within
the State. To use the ``size of the agricultural population'' as an
example, this factor may affect the scope of the surveyed area because
of the need for sufficient survey responses. A surveyor may undertake a
survey in one selected area that yields an insufficient response. In
such cases, the surveyor can decide to increase the survey area and
either make a reasonable, good faith effort to contact all employers
employing workers in the crop or agricultural activity in the expanded
area, or contact a new, randomly selected sample of such employers in
the expanded area.
In response to the agent's comment, the Department disagrees that
this provision would permit SWAs to survey ``truncated'' areas based
only on available resources. First, the commenter did not explain what
constitutes a ``truncated'' area. Current practice, as noted above,
permits a SWA to survey areas of different sizes based on
considerations such as available resources.\63\ Second, this provision
does not permit a surveyor to base its selection of the geographic area
on only one factor. Instead, the surveyor must consider all three
factors enumerated in the provision. Third, the Department will
continue to review and approve SWA survey plans under this final rule,
and the Department can work with SWAs to accommodate resource
considerations while ensuring planned surveys are as reliable as
possible.
---------------------------------------------------------------------------
\63\ See also TEGL No. 21-20, Fiscal Year (FY) 2021 Foreign
Labor Certification Grant Planning Guidance, at III-10 (May 10,
2021).
---------------------------------------------------------------------------
x. Section 655.120(c)(1)(vii) Through (ix)
The Department proposed that the survey must include the wages of
at least 30 U.S. workers and five employers, and the wages paid by a
single employer must represent no more than 25 percent of the wages
included in the survey. The NPRM stated the 30-worker standard is
consistent with minimum reporting numbers for the OEWS and requirements
for H-2B PWDs.\64\ The requirement to include wage data from at least
five employers is a change from ETA Handbook 385, which does not have a
minimum number of employers that must be included in the survey. The
five-employer standard also exceeds the number of employers (three)
required to establish prevailing wage rates under the H-2B program. As
explained in the NPRM, prevailing wages in the H-2B program based on
the OEWS are generally set based on the local AIE, but H-2A prevailing
wages are typically determined based on a larger geographic area, and
this difference in geographic area makes a higher number of employer
responses appropriate for the H-2A program. Id.
---------------------------------------------------------------------------
\64\ 84 FR 36168, 36187 (noting BLS requires wage information
from a minimum of 30 workers before it deems data of sufficient
quality to publish on its website); Sec. 655.10(f)(4)(ii)
(employer-provided surveys for the H-2B program must include wage
data from at least 30 workers and three employers).
---------------------------------------------------------------------------
The Department also proposed that the wages paid by a single
employer represent no more than 25 percent of the sampled wages so that
the prevailing wage is not unduly impacted by the wages of a dominant
employer. The NPRM stated the five-employer and 25 percent dominance
standards are consistent with the ``safety zone'' standards for
exchanges of employer wage information established by the Department of
Justice (DOJ) and Federal Trade Commission (FTC) in the antitrust
context. Specifically, absent extraordinary circumstances, DOJ or FTC
will not challenge as a violation of antitrust law the exchange of
information regarding employer wages that meet the requirements for the
safety zone. Although created for a different purpose, the safety zone
standards establish levels at which the DOJ and FTC determined an
exchange of wage information is sufficiently anonymized to prevent the
wages of a single employer from being identified because the reported
wage results too closely track the wages paid by that employer. The
NPRM explained it is the Department's preliminary conclusion that
safety zone standards are consistent with the Department's aim of
requiring that the wages reported from a prevailing wage survey be
sufficiently representative and that the wages of a single employer not
drive the wage result. The Department solicited comments on the
proposed requirements in Sec. 655.120(c)(1)(vii) through (ix),
including whether the proposed sample size requirements, and any
recommended alternative requirements, should apply to the survey,
overall, or to the prevailing unit of pay. The Department also sought
comment on the proposed statistical standards and any alternate
standards that might be used to meet the Department's goals of
establishing prevailing wage rates that are as reliable as possible but
still consistent with the realities of a modern budget environment.
After full consideration of the comments, the Department is adopting
the proposals in Sec. 655.120(c)(1)(vii) through (ix) with amendments
to the regulatory text, as explained below.
Several commenters representing employers, agents, and trade
associations expressed concern that the sample size requirements were
too small to be representative. For example, a trade association said
30 workers from five employers could set the prevailing wage for
``possibly thousands of workers and hundreds of employers'' and urged
the Department to expand the thresholds to ``a reasonable percentage of
workers and employers,'' without explanation of what might constitute a
reasonable percentage. Similarly, an agent urged the Department to
consider a broader sample size while another association recommended
the use of a statistically valid sample size, claiming the ``breadth
and scope of agricultural employment'' exceeds the scope of PWDs under
the H-2B program. In contrast, a commenter from academia and a SWA
supported smaller sample sizes as a way to produce more PWDs. The SWA
also believed it would eliminate the SWA's responsibility to estimate
the universe of employers and workers. A State agency association
asserted, without additional explanation, that requiring specific
minimum response rates should increase the validity of surveys.
The Department does not agree with comments that claimed larger
minimum sample sizes are necessary to produce accurate and
representative PWDs. No commenter asserted that the Handbook's much
larger sample sizes were necessary, and no commenter proposed an
alternative required worker or employer sample size that would be
necessary to produce a reliable survey. The NPRM explained that the
proposed sample size requirements were consistent with the OEWS survey
requirements, as well as the ``safety zone'' standards used by the DOJ
and FTC in the anti-trust context, points that no commenter
specifically refuted. As stated in the NPRM, the Department has used a
baseline of three employers and
30 workers for employer-provided wage surveys in the H-2B program since
the 2015 H-2B Final Rule (80 FR 24146). In recognition that H-2A
prevailing wage rates are generally set based on a larger geographic
area than prevailing wages in the H-2B program, the Department proposed
to increase the number of employer responses from three under the H-2B
program to five under the H-2A program. The Department also proposed
the 25 percent standard as an additional safeguard to ensure prevailing
wages are as reliable as possible. With regard to the SWA's comment,
the surveyor must still estimate the universe of relevant employers and
workers under this final rule, as discussed in the preamble to Sec.
655.120(c)(1)(iv).
A workers' rights advocacy organization stated it may be difficult
for SWAs to meet the minimum thresholds for survey areas that are
smaller than the State level due to high employer non-response rates.
Another workers' rights advocacy organization said random sampling of
reforestation and pine straw workers may be difficult because such
workers are hard to reach, lists of relevant employers or contractors
are likely unavailable, and employers are often reluctant to respond to
surveys. As explained elsewhere in the preamble, the Department has
declined to adopt the proposal to expand the definition of
``agricultural labor or services'' under Sec. 655.103(c) to include
reforestation and pine straw activities. The comment related to surveys
of forestry worker wages is therefore no longer applicable. Moreover,
the area surveyed may need to be expanded if the surveyor is not able
to obtain wage results for at least five employers and 30 workers. If
the estimated universe is less than five employers or 30 workers, a
surveyor may use the alternative option described below or expand the
area surveyed as needed.
The Department solicited, but did not receive, comments on whether
the baseline standards should apply to responses received for the
survey overall or the prevailing unit of pay. However, after due
consideration, the Department has decided to clarify that the baseline
standards apply to survey responses received for the unit of pay that
is used to compensate the largest number of workers whose wages are
reported in the survey. Because the prevailing wage is determined based
only on wage data within the prevailing unit of pay, the baseline
standards should also apply to that unit of pay to increase the
reliability of the survey findings as much as possible. Especially when
there are multiple units of pay and a small number of employers or
workers in the universe, this approach could require surveyors to
increase the overall sample size and may result in fewer survey
findings than if the baseline standards applied to the survey overall.
However, the Department believes this approach best achieves its goal
of establishing prevailing wage rates that are as reliable and accurate
as possible, while still encouraging more prevailing wage surveys than
under the Handbook.
Based on the above comments and the Department's further assessment
of past prevailing wage surveys, the Department recognizes the
estimated universe of employers or workers may be very small for some
crop or agricultural activities and distinct work task(s) in a
geographic area. For example, some distinct work tasks or activities in
a particular area may have one or two employers in the estimated
universe. In such a situation, applying the 25 percent or 5-employer
standard would mean there can never be a prevailing wage finding for
this task or activity, unless the number of employers in the estimated
universe increases. Similarly, the estimated universe of workers
employed to perform particular distinct work tasks or activities may be
less than 30 in some cases. Applying the 30-worker standard would not
result in a wage determination, unless the number of workers in the
estimated universe increased.
As such, the Department has decided to revise the regulatory text
to address the limited situations where the estimated universe of
employers or workers is less than the baseline standards, while leaving
the baseline standards unchanged in other situations. For example,
where the estimated universe of U.S. workers is at least 30, the survey
must include the wages of at least 30 U.S. workers in the unit of pay
used to compensate the largest number of U.S. workers whose wages are
reported in the survey. In situations where the estimated universe of
U.S. workers is less than 30, the survey must include the wages of all
such U.S. workers. Similarly, where the estimated universe of employers
is fewer than five, this final rule requires the survey to include wage
data from all employers in the estimated universe. Finally, the 25
percent standard will apply where the estimated universe of employers
is four or more, but will not apply when the estimated number of
employers in the universe is less than four. These revised requirements
encourage additional prevailing wage findings and are consistent with
the Department's goal of producing prevailing wage survey results that
are as representative as possible by requiring the PWD to be based on
data from all workers or employers where the universe of workers or
employers is limited.
xi. Other Comments on Sec. 655.120(c)(1)
Special Procedures for Sheep Shearing and Reforestation Employers
Commenters including a trade association urged the Department to
promulgate a provision allowing regional or national prevailing wage
surveys for the sheep shearing industry because ``there are not enough
shearers in any one area'' to establish a piece rate wage through a
valid survey. According to the association, the survey instrument used
should be able to account for differing types of shearing services in
different regions, which result in separate wage rates. The association
stated some regions have a larger number of ``small flock'' or ``farm
flock'' sheep producers whose operations typically have smaller numbers
of sheep than commercial producers, resulting in a higher ``per head''
price and wage than for a commercial producer.
The Department declines to adopt the commenters' suggestion because
it does not believe that a variance in the form of a separate provision
is needed for prevailing wage surveys for the sheep shearing industry.
This is because the commenters' concerns can be addressed through other
requirements in this final rule. As discussed in the preamble to Sec.
655.120(c)(1)(iii) and (vi), this final rule allows for regional
prevailing wage surveys that are able to capture distinct work tasks as
applicable. It is also possible to obtain a prevailing wage for
activities with a small number of estimated workers under circumstances
explained in the preamble to Sec. 655.120(c)(1)(vii) through (ix).
Lastly, as noted in the preamble to Sec. 655.120(c)(1)(iv), the
surveyor has the option to conduct a statistically valid sampling or
stratified random sampling by employer size, though these enhanced
sampling methods are not required.
A workers' rights advocacy organization recommended the Department
use the QCEW to set prevailing wages for reforestation workers in the
short term on the basis that this data source counts reforestation
workers more accurately than the OEWS surveys. Because reforestation is
not covered in the H-2A program under this final rule, the workers'
rights advocacy
organization's comment is no longer applicable.\65\
---------------------------------------------------------------------------
\65\ Moreover, the Department has addressed the use of the QCEW
as a wage source for the H-2A program above and in prior rulemaking.
See 2020 H-2A AEWR Final Rule, 85 FR 70445, 70446 n.6.
---------------------------------------------------------------------------
Rescission of ETA Handbook 385
An agent and a trade association supported what they believed to be
the Department's proposal to ``rescind'' ETA Handbook 385. A State
agency urged DOL to update ETA Handbook 385 to conform to the new
regulations or provide supplemental guidance. Two other State agencies
and a State agency association supported replacing the Handbook.
This final rule does not formally rescind ETA Handbook 385, but
SWAs and other surveyors must follow the methodological requirements in
Sec. 655.120(c) when conducting prevailing wage surveys. In this way,
the survey standards in Sec. 655.120(c) replace the standards in ETA
Handbook 385 for H-2A prevailing wage surveys. This final rule
clarifies, however, that SWAs and other surveyors may refer to the
Handbook and other applicable authorities for additional guidance on
issues related to the prevailing wage survey methodology not explicitly
addressed in the Department's regulations at 20 CFR part 655, subpart
B, and 29 CFR part 501.
Data Collection Period
The NPRM did not propose a required wage data collection period. In
particular, the Department did not propose requiring or prohibiting
SWAs from capturing the wages paid to workers during the ``peak''
period of a crop or agricultural activity, rather than the wages paid
over a season or a year. Several employers and trade associations urged
the Department to require surveys cover a longer period than a peak
week. According to the commenters, surveying a peak period ``spike[s]''
the results and does not produce prevailing wage findings that measure
wages paid over a season or a year.
After consideration of the comments, the Department declines to
adopt the commenters' suggestion. There is no requirement that surveys
cover a longer time period to measure the wages paid over a season or a
year. While ETA Handbook 385 directs SWAs to estimate the beginning and
end of the harvest for each crop and the ``period of peak activity''
for State grant plans, SWAs need not include that information in
reporting prevailing wage rate results. Recent guidance no longer
direct SWAs to identify the period of ``peak activity,'' nor even the
anticipated start and end dates for the harvest of each crop, but
simply request SWAs provide an anticipated timeframe for the prevailing
wage survey.\66\ The requirement suggested by the commenters could
further deter employers from responding to the survey, given the length
of a season or a year and the possible number of unique wage rates paid
during that time that an employer would have to report. It would also
likely increase the cost of survey administration for SWAs or other
State surveyors, without a corresponding compelling justification for
such an increase.
---------------------------------------------------------------------------
\66\ See, e.g., TEGL No. 21-20, Fiscal Year (FY) 2021 Foreign
Labor Certification Grant Planning Guidance, at III-10 (May 10,
2021).
---------------------------------------------------------------------------
In response to the comments received, this final rule clarifies
that SWAs continue to have discretion over when to conduct wage surveys
and the data collection period. This is because SWAs or other State
entities are best positioned to determine the most effective data
collection period. To the extent it is helpful, the Department
recommends the use of a peak week or peak period. A peak week is
generally defined as the week where a commodity activity is the
busiest. For harvesting, it would be when an agricultural employer is
doing the most harvesting for a given commodity. Some surveys may
gather data from a peak period of time that is longer than a week. The
use of a peak week or period can afford several advantages. It allows,
for example, the collection of data when the most workers are working
in order to obtain the most robust amount of data. However, the use of
a peak period is not required and may not be appropriate in all cases.
For instance, some activities such as irrigation do not have a clearly
defined peak week.
Presumption of Validity
A workers' rights advocacy organization suggested that as long as
SWAs follow the defined procedures to carry out a prevailing wage
survey, the findings should enjoy a presumption of validity. After
consideration, the Department declines to adopt the commenter's
suggestion. OFLC will review the prevailing wage survey documentation
submitted by a SWA to ensure that the survey satisfies the enumerated
requirements in Sec. 655.120(c). If these requirements are met, OFLC
will issue a prevailing wage for the crop or agricultural activity or
distinct work task(s) in question. Based on this regulatory scheme--
which continues the Department's current practice--a presumption of
validity is not needed and would instead cut against the comprehensive
review requested by other commenters.
Timelines for Prevailing Wage Determinations
A SWA suggested adding a requirement that OFLC issue a PWD within
10 days of the SWA's submission of a survey to the Department. The SWA
also requested the Department add a regulatory provision requiring OFLC
to notify the SWA of any irregularities or deficiencies in the survey
within the same 10-day period so the SWA may make corrections
expeditiously. After consideration of the SWA's comments, the
Department declines to adopt these recommendations. The Department did
not propose to set timeframes or solicit comments on setting timeframes
for the prevailing wage survey review and approval process and,
therefore, the SWA's recommendations are beyond the scope of this
rulemaking. The Department understands the importance of timely review
and communication and it strives to review the surveys it receives in
an expeditious manner. Imposition of a maximum period to review
prevailing wage surveys, however, would undermine the Department's
ability to conduct a thorough review without a corresponding compelling
justification. In particular, the SWA's suggested timeframe would
create an impediment to the type of comprehensive review needed to
ensure prevailing wage surveys satisfy all methodological requirements,
especially in cases where OFLC requests additional information from
SWAs in order to complete its review.
Piece Rate and Wage Enforcement Suggestions
Because Sec. 655.120(c) discusses the use of piece rates, some
commenters took the opportunity to suggest changes to how piece rates
are treated within the H-2A program. A workers' rights advocacy
organization recommended the Department make explicit that the employer
must pay workers by the piece, rather than by the hour or using another
method, if the prevailing wage is a piece rate and payment of the
prevailing piece rate would yield a higher average hourly rate than the
AEWR. A trade association stated the Department does not include hourly
guarantees when reporting prevailing wages by piece rates and asserted
this is contrary to standards in ETA Handbook 385. The association
added that the Department does not recognize that a piece rate with an
AEWR hourly
guarantee (e.g., $25 bin rate with a $16.34 per hour guarantee) differs
from a piece rate with a State minimum wage hourly guarantee (e.g., $25
bin rate with a $13.69 per hour guarantee).
The Department's proposed changes to the prevailing wage
methodology under revised Sec. 655.120(c) did not intend to change the
prior application of the offered wage provision at Sec. 655.120(a) or
the longstanding procedures for the regulation of piece rates. As such,
the workers' rights advocacy organization's suggestion that the
Department make explicit that an employer must pay workers by the
piece, rather than by the hour or using another method, if the
prevailing wage is a piece rate and payment of the prevailing piece
rate would yield a higher average hourly rate than the AEWR, is beyond
the scope of the Department's proposal. The trade association's comment
does not specify if the reporting it references is the Department's
posting of prevailing wages to the Agricultural Online Wage Library
(AOWL). To the extent the comment is referring to the posting of
prevailing wages on AOWL, the Department reports piece rates that
contain an hourly guarantee for a crop or agricultural activity or a
distinct work task(s) within this activity when such a rate is reported
by a SWA and validated by the Department. These piece rates with an
hourly guarantee can represent different units of pay under certain
circumstances, as discussed below.
Moreover, as relevant to both comments, the Department posts
prevailing wage rates on AOWL, not wage information from all applicable
sources an H-2A employer must consider when evaluating whether its wage
offer meets H-2A requirements under Sec. Sec. 655.120(a) and
655.122(l). When the prevailing wage rate is hourly, an H-2A employer
must compare this hourly rate to the other wage sources listed in Sec.
655.120(a) to determine which is the highest and ensure that its wage
offer is at least equal to the highest applicable hourly rate.
Similarly, in limited situations where a prevailing wage rate is a
piece rate in combination with an hourly guarantee (e.g., $25 bin rate
with a $16 per hour guarantee), the H-2A employer must still engage in
the comparison of other wage sources and ensure that it offers an
hourly wage guarantee that is at least equal to the highest applicable
hourly rate. As a result, an H-2A employer may be required to offer at
least the prevailing piece rate (e.g., $25 bin rate) and an hourly wage
guarantee (e.g., $16.34 per hour guarantee, the applicable AEWR) that
is higher than the hourly guarantee listed in the PWD. To the extent
either commenter is suggesting the Department add all or some other
wage sources to the AOWL, the Department declines to adopt this
suggestion, as it could increase, rather than decrease, confusion.
The same workers' rights advocacy organization proposed requiring
the employer to attest that neither U.S. nor H-2A workers will be paid
at a piece or hourly wage that is less than the rate that was paid for
comparable work performed at that location in the prior season, or that
is being offered by other employers in the AIE. The organization also
requested that the regulations clarify the Department will review and
require a change to the rate of pay after certification if presented
with worker complaints or ``clear, persuasive evidence'' that the H-2A
employer is paying less than the prevailing wage based on information
such as UI data and job service listings.
The Department declines to adopt these recommended changes. The
Department did not propose or solicit comments on requiring an
attestation that wages are not less than those paid for comparable work
in the prior season. In addition, the commenter's suggestion would add
a wage source to those listed in Sec. 655.120(a), which is a change
the Department similarly did not propose in the NPRM. This suggestion
is therefore outside the scope of the Department's rulemaking. This
final rule requires that H-2A employers pay H-2A workers and workers in
corresponding employment the highest of wage sources listed in Sec.
655.120(a)--in particular, the higher of the AEWR and the prevailing
wage rate approved by OFLC, as applicable--and thus already includes a
prevailing wage concept intended to ensure that H-2A employers pay at
least those wages found to be prevailing in the area, where applicable.
While the specific change requested by the commenter's second
suggestion is unclear, the Department notes that its program integrity
measures provide for review and enforcement of H-2A wage requirements.
In the event of an audit, OFLC reviews an employer's payroll
information. When WHD conducts its investigations, it will enforce the
appropriate wage rate for the work performed even when an employer
misrepresented the duties on its application or employed workers in
classifications not listed on its application. In the event an audit or
investigation discovers substantial violations, OFLC or WHD may pursue
debarment of the employer.
xii. Section 655.120(c)(2)
The Department proposed that a prevailing wage rate remain valid
for 1 year after the wage is posted on the OFLC website or until
replaced with an adjusted prevailing wage, whichever comes first,
except that if a prevailing wage that was guaranteed on the job order
expires during the contract period, the employer must continue to
guarantee at least the expired prevailing wage rate. As the Department
explained in the NPRM, this proposal is generally consistent with
OFLC's current practice. See 84 FR 36168, 36188. The NPRM solicited
comments on this proposal, including whether an alternate duration for
the validity of prevailing wage surveys would better meet the
Department's goals of basing prevailing wage rates on the most recent
data and making prevailing wage findings available where the prevailing
wage rate would be higher than the AEWR. The NPRM also sought comment
on whether the Department should index prevailing wage rates based on
either the CPI or Employment Cost Index (ECI) when the OFLC
Administrator issued a prevailing wage rate in one year for a crop or
agricultural activity but a prevailing wage finding is not available in
a subsequent year, and whether the Department should set limits on the
age of the survey data. As discussed below, paragraph (c)(2) is adopted
without change from the NPRM.
Commenters generally supported the proposed 1-year validity period.
A few commenters including trade associations recommended that a
prevailing wage ``expire on its anniversary,'' without clarifying if
``anniversary'' referred to the date the wage was posted by OFLC.
Another trade association stated, without additional explanation, that
the Department should not use surveys that include data older than 12
months. Citing the current ``dynamic'' business environment, other
commenters suggested the Department should not use surveys that include
data collected more than 6 months prior to the wage determination. One
of these commenters claimed, without additional explanation, that such
data should be excluded due to a limited pool of workers and variations
in commodity markets, weather changes, and other variables.
Several of these commenters also provided general suggestions
regarding indexing prevailing wage rates between determinations. Some
commenters recommended that prevailing wage rates not be indexed based
on the CPI or ECI when the prevailing wage finding is not
available, without explaining why prevailing wages should not be
indexed based on these sources. Other commenters suggested that if the
Department is considering indexing the prevailing wage rate to any
metric, it should consider metrics that ``reflect the agricultural
economy such as wholesale or retail fruit and vegetable prices.'' None
of these commenters provided additional explanation.
After consideration of these comments, the Department has decided
to adopt the validity period provision as proposed. Under this final
rule, a prevailing wage will expire either 1 year after OFLC posts the
wage or on the date an adjusted prevailing wage is issued, whichever is
earliest. This change is consistent with the specific comments on the
1-year validity period, based on the information provided in those
comments. The Department declines to adopt the suggestion to exclude
data older than 6 months from prevailing wage findings. The commenters
did not explain why survey findings must exclude such data, beyond a
general reference to the ``dynamic'' business environment and broad
variables in that environment. Nor did the commenters provide evidence
suggesting the exclusion of data older than 6 months is necessary for a
survey to yield more accurate results or otherwise be an efficient use
of a SWA's limited resources. Instead, the commenters' suggestion could
elevate form over function--for example, excluding data that are 6\1/2\
months old--and may unnecessarily preclude States from producing a
valid PWD. The commenters' suggestion is also at odds with the
Department's intent to establish survey results that are as reliable as
possible using standards that are realistic for SWAs in a modern budget
environment. If adopted, the commenters' suggestion would impose more
onerous data requirements on SWAs than those mandated by OFLC's prior
guidance on prevailing wage surveys and OFLC's current requirements for
employer-provided surveys under the H-2B program.\67\
---------------------------------------------------------------------------
\67\ See 2015 H-2B Final Rule, 80 FR 24146, 24175 (requiring the
wages reported in employer-provided surveys in the H-2B program be
no more than 24 months old).
---------------------------------------------------------------------------
The Department has decided not to adopt the suggestion to index the
prevailing wage rate to address subsequent years in which a prevailing
wage finding is not available. The commenters either did not provide
any recommendation for index sources or did not address why a
particular index would be sufficient to accurately reflect the
prevailing wages of similarly employed workers. Without additional
information, it is not clear what existing metric, if any, would
reflect the information the commenters believed should be considered,
and it is therefore difficult to evaluate the feasibility or
desirability of this type of indexing for SWA prevailing wage survey
findings.
xiii. Section 655.120(c)(3)
The current regulation at Sec. 655.120(b) requires the employer to
pay a higher prevailing wage upon notice to the employer by the
Department.\68\ The Department's current practice is to publish
prevailing wage rates on its website and directly contact employers
covered by a higher prevailing wage. In the NPRM, the Department
proposed to continue this current practice of notifying employers
directly. The Department also proposed that new higher prevailing wage
rates would become effective 14 days after notification, which
paralleled the Department's proposal to codify current practice of
providing an adjustment period of up to 14 days to start paying a newly
issued higher AEWR. Although the January 2021 draft final rule would
have adopted the 14-day proposal for prevailing wages, this final rule
does not adopt the proposal for the reasons discussed below, but it
otherwise adopts the proposed language from the NPRM with minor
conforming changes.
---------------------------------------------------------------------------
\68\ This provision, codified at Sec. 655.120(b) under the 2010
H-2A Final Rule, was redesignated as paragraph (c) in the 2020 H-2A
AEWR Final Rule. See 85 FR 70445, 70477.
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An employer and trade association stated a 14-day effective date is
an improvement over the current requirement for prevailing wages. An
agent and another trade association commented that 14 days do not allow
employers adequate time to plan for costs, especially if there is a
``significant increase'' in wages. A SWA opposed the 14-day proposal on
the basis that workers can be deprived of up to 2 weeks of pay to which
they are entitled. Instead, the SWA suggested that employers should pay
any increases retroactively, such as in the pay period after the new
wage becomes effective, to alleviate potential burdens associated with
adjusting wages mid-pay period.
In response to comments that even 14 days is not enough time for
employers to plan for costs, the H-2A regulations already require the
employer to pay a higher wage if the prevailing wage rate is adjusted
during the work contract and the new adjusted wage is higher than the
required wage at the time of certification. The NPRM retained this
underlying requirement, which employers have been able to follow since
2010, while proposing to provide employers a brief period to adjust to
a higher wage. When the Department added the provision to account for
an increase in prevailing wages during a contract period, it recognized
these wage adjustments may alter employer budgets for the season. See
2010 H-2A Final Rule, 75 FR 6884, 6901. As the Department explained at
that time, the change is intended to ensure workers are paid throughout
the life of their contracts at an appropriate wage, and the Department
encouraged employers to include into their contingency planning certain
flexibility to account for any possible wage adjustments. Id.
After further consideration of the comments and in conformity with
its decision not to adopt a 14-day adjustment period in connection with
the AEWR, the Department declines to adopt the proposed delayed
implementation of a prevailing wage update to workers' pay. The 14-day
grace period proposal was intended to help ensure workers are paid at
an appropriate wage throughout the life of their contracts while giving
employers a brief window for updating their payroll systems and to
simplify the program through the adoption of consistent adjustment
periods for wage-related updates. The Department is sensitive both to
the worker protection concerns the SWA raised and to adopting an
approach that could add complexity, which is inconsistent with the
Department's goals in this rulemaking to enhance worker protections
while simplifying the program to facilitate compliance and
administration. As such, the Department has decided against adopting
the proposed adjustment period for prevailing wage updates in this
final rule. Not adopting the proposal maintains current prevailing wage
adjustment requirements, which help ensure workers are paid at an
appropriate wage upon notification of a new, higher wage obligation.
xiv. Section 655.120(c)(4)
The NPRM proposed that if the prevailing wage is adjusted during
the contract period and is higher than the previous certified offered
wage rate, the employer must pay the higher wage rate, but may not
lower the wage rate if OFLC issues a prevailing wage that is lower than
the offered wage rate. This proposed change discontinues the current
practice permitting employers to include a clause in the job order
stating that it may reduce the offered wage rate if an adjustment
during the contract
period reduces the highest wage rate among all applicable wage sources.
The NPRM also proposed to remove language from Sec. 655.120(b) that
requires an employer to pay the wage ``in effect at the time work is
performed'' because the presence of that reference may create confusion
about the existing requirement to continue to pay a previously offered
wage if the new ``effective'' wage is lower. As discussed below, this
final rule adopts paragraph (c)(4) as proposed in the NPRM except for a
minor conforming change.
The Department received comments from various entities, including
employers, trade associations, and agents, in response to this
provision. Many employer and trade associations opposed the
Department's current requirement mandating mid-contract wage
adjustments if a new prevailing wage rate is higher than the required
wage at the time of certification. Commenters explained, for example,
that mid-season increases make planning impossible, are not fair to
employers, and the government should not require employers to change a
contract after it has been ``approved.'' A trade association stated it
may not be possible to verify the sources of the wage data with no
ability to challenge these data under the final rule. An agent and
another trade association commented there is no valid basis to require
payment of a higher wage that is not the AEWR if the AEWR is supposed
to represent the exact wage that protects U.S. workers at that time.
Other commenters offered four alternatives to the Department's
proposal, including (1) allowing employers to pay the rate(s) listed in
a certified application for the duration of the employment period
(i.e., a fixed wage with no upward adjustments); (2) authorizing
downward wage adjustments; (3) permitting an annual adjustment of
prevailing wage rates on a date certain; and (4) placing limitations on
in-season prevailing wage increases, including a 10-percent cap. One of
these commenters recommended the notice provided by the Department to
the employer regarding ``changes in wages be adequate to hand out to
workers to meet the disclosure requirement.''
Having carefully considered the comments received, the Department
has decided to retain this provision with a minor change to the
regulatory text to recognize that there may be a prevailing wage for a
distinct work task or tasks within a crop or agricultural activity in
certain situations. This modification is a technical, conforming change
with other portions of Sec. 655.120(c). Under this provision, because
the employer advertised and offered the higher wage rate, the wage
cannot be reduced below the wage already offered and agreed to in the
work contract. Accordingly, if a prevailing wage for a geographic area
and crop activity or agricultural activity and, if applicable, distinct
work task(s) is adjusted during the work contract, and the new
prevailing wage is lower than the rate guaranteed on the job order, the
employer must continue to pay at least the offered wage rate. Employers
who disagree with a wage adjustment after their applications have been
certified can continue to challenge the adjustment in Federal court.
The Department does not agree with the comment claiming there is no
valid basis to require payment of a higher wage when that wage is not
the AEWR. Employers participating in the H-2A program must offer and
pay the highest of the AEWR, the prevailing wage, the Federal or State
minimum wage, or the agreed-upon collectively bargained wage rate, as
applicable, for every hour or portion worked during a pay period. See
Sec. Sec. 655.120(a) (excluding certain employment), 655.122(l). The
wage adjustment provisions are intended to ensure that workers in the
program consistently receive at least the highest of these applicable
wages, whether that wage be the AEWR, the prevailing wage, or another
wage source listed in Sec. 655.120(a). Moreover, PWDs determined by
State-conducted prevailing wage surveys for a particular geographic
area can serve as an important additional protection for workers in the
United States in crop and agricultural activities with piece rates or
higher hourly rates of pay than the AEWR. In such instances, the wage
adjustment provisions ensure the wages received by applicable workers
reflect the wage paid to similarly employed workers in that area.
The Department declines to adopt the suggested alternatives, as
they are not sufficient to ensure workers are paid at an appropriate
wage commensurate with the baseline market value of their services
throughout the life of their contracts. In addition, an annual
adjustment of prevailing wage rates on a certain date each year is not
in line with current practice. States do not conduct prevailing wage
surveys at the same time each year in all cases, and consequently, OFLC
validates PWDs throughout the year. The NPRM did not propose to change
this practice. The Department also declines to adopt proposals to
impose a 10-percent cap and similar limitations on PWDs. The Department
establishes wages based on data representing actual wages paid to
workers, including prevailing wages based on wages paid to U.S. workers
in a particular geographic area and crop or agricultural activity and
if applicable, distinct work task(s). The commenter did not provide a
sufficient economic rationale to impose a cap that is unrelated to
employer costs or wages paid and such a cap would produce wage
stagnation, most significantly in years when the wages of U.S. workers
are rising faster due to strong economic and labor market
circumstances.
The agent's comment regarding the use of notice(s) of wage
adjustment to satisfy ``the disclosure requirement'' did not specify
the disclosure requirement to which the comment referred. To the extent
the comment refers to the MSPA disclosure requirements under 29 U.S.C.
1821 and 1831 and 29 CFR 500.75 and 500.76, OFLC's notice to the
employer of prevailing wage rate adjustment(s) may be sufficient to
satisfy the required disclosure of wage rates under MSPA (provided
that, if multiple wage adjustments are included in the notice, it is
clear which applies to the specific worker), but will not satisfy the
required disclosure of other information, such as the place or period
of employment. See 29 U.S.C. 1821, 1831; 29 CFR 500.75, 500.76. Without
additional information, however, the Department cannot assess the
agent's recommendation and, therefore, is unable to adopt the
recommendation.
d. Section 655.120(d) Appeals
Although the Department employs the same Notice of Deficiency (NOD)
and appeal framework regardless of the deficiency noted in an
Application for Temporary Employment Certification, the NPRM proposed
to include an appeal provision at paragraph (d) for clarity.
Specifically, if an employer does not include an appropriate offered
wage on the H-2A application, the CO will issue a NOD requiring the
employer to correct the wage offer. Such a situation may occur, for
example, when the employer offers less than the highest of the sources
applicable to the job opportunity under Sec. 655.120(a) because it
selected an incorrect SOC code for the job opportunity. If the employer
disagrees with the wage rate associated with the SOC required by the CO
and does not correct the wage offer in its response to the NOD, the
application will be denied, and the employer may appeal the denial of
its application on this basis (and other bases noted in the denial, as
applicable) by following the appeal procedures at Sec. 655.171. As
discussed below, this provision remains unchanged from the NPRM.
The Department received several comments on this proposal. An
employer expressed concern that an employer who disagrees with the
required wage rate cannot appeal unless its application is denied. A
trade association expressed concern that the proposal adds
inefficiencies to the program and affects employers' due process
rights, and it claimed that applications would have to be denied based
on a factor other than the wage in order to be appealed.
As the Department explains below in the preamble to Sec. 655.141,
the removal of the ability to appeal a NOD better conforms with the
statutory requirements under the INA. This change also helps to promote
efficiency by providing that all possible grounds for denial are
appealed at once, rather than allowing for separate appeals of multiple
issues. The appeal process continues to include an expedited
administrative review procedure, or an expedited de novo hearing at the
employer's request, in recognition of the INA's concern for prompt
processing of H-2A applications. Further, it is not true that an
employer's application has to be denied based on a factor other than
the wage in order for the employer to challenge a wage rate required by
the CO. An employer that does not correct a wage deficiency--or any
other deficiency--noted in a NOD, may appeal a denial on that basis
(and any other bases noted in the denial, as applicable).
A workers' rights advocacy organization noted SOC codes will be
critical to determining the AEWR and the Department should allow the
SWA to determine the appropriate code because SWAs, according to the
organization, are the most knowledgeable about the different work in a
certain agricultural industry in a geographic region. The organization
requested that Sec. 655.120(d)(1) be revised so that either the SWA or
the CO can issue a NOD requiring the employer to correct the offered
wage rate on its application. This concern is misplaced. The NPRM did
not propose to change the SWA's role in reviewing the offered wage rate
and other information in an employer's job order for compliance with 20
CFR part 653, subpart F, and 20 CFR part 655, subpart B. Compare Sec.
655.121(b)(1) (2010 H-2A Final Rule) with Sec. 655.121(e)(2).
Specifically, if the SWA notes any deficiencies with the job order,
including with the offered wage rate or SOC code, it must notify the
employer and offer the employer an opportunity to respond. See id. Upon
receipt of a response, the SWA will review the response and notify the
employer of its acceptance or denial of the job order. See id. After
the employer files its Application for Temporary Employment
Certification, whether under the emergency filing procedures at Sec.
655.134 or the normal filing procedures at Sec. 655.130, the CO will
review the employer's application. If the CO determines the application
contains an incorrect offered wage rate, the CO will issue a NOD under
Sec. 655.141 noting the incorrect rate, SOC code, and any other
deficiencies that prevent certification, as applicable. See id.; Sec.
655.120(d)(1). As such, the commenter's concern is addressed through
the SWA's authority to review and respond to deficiencies in the job
order, which this final rule retains in Sec. Sec. 655.121(e)(2) and
655.134(c)(1).
An agent proposed ``an appeal process in connection with the
prevailing wages,'' without additional explanation. To the extent the
commenter intended to address an employer's disagreement with, and
appeal of, the CO's application of a particular PWD to an employer's
job opportunity, such appeals are available in this final rule. See
Sec. Sec. 655.120(d), 655.142(c). To the extent the commenter intended
to suggest the Department implement an appeals procedure for PWDs set
or adjusted in accordance with paragraph (c), the Department
respectfully declines, as employers can continue to challenge PWDs and
post-certification adjustments in Federal court.
After consideration of these comments, the Department has retained
the provision as proposed. This provision provides a process to appeal
the required offered wage rate for an employer's job opportunity, both
the CO's application of the wage sources in paragraph (a) and
determination of which is highest. This process is consistent with
other provisions in this final rule that add express authority for the
CO to issue multiple NODs and to eliminate appeals of NODs. See
Sec. Sec. 655.142(a), 655.141.
2. Section 655.121, Job Order Filing Requirements
In the NPRM, the Department proposed amendments to this section to
modernize the process by which employers submit job orders to the SWA
for review and clearance in order to test the local labor market and
determine the availability of U.S. workers before filing an Application
for Temporary Employment Certification. Specifically, the Department
proposed new standards and procedures requiring employers, unless a
specific exemption applies, to electronically submit job orders to the
NPC for processing; minor revisions to the timeframes and procedures
under which the SWA reviews and circulates approved job orders for
intrastate and interstate clearance; and reorganization of several
existing provisions to provide clarity and conform to other changes
proposed in the NPRM. The Department received several comments on this
section, none of which necessitated substantive changes to the
regulatory text. However, the Department's decision not to adopt the
proposed optional pre-filing positive recruitment provision at Sec.
655.123 necessitated the removal of the proposed pre-filing interstate
job order circulation language from paragraph (f). Therefore, as
discussed in detail below, the provisions of Sec. 655.121 remain
unchanged from the NPRM, except for paragraph (f). The Department will
retain the parameters of pre-filing job order circulation from the 2010
H-2A Final Rule in paragraph (f), with minor revisions to conform to
the electronic submission and transmission procedures adopted in this
final rule, as discussed below.
a. Submission and Transmission of the Job Order
The INA requires employers to engage in the recruitment of U.S.
workers through the employment service job clearance system
administered by the SWAs. See 8 U.S.C. 1188(b)(4); see also 29 U.S.C.
49 et seq. and 20 CFR part 653, subpart F. The Department proposed to
modernize and streamline the process by which employers submit job
orders, H-2A Agricultural Clearance Order (Form ETA-790/790A), to the
SWA for review and clearance to place job orders into intrastate and
interstate clearance. Job orders are a required component of testing
the labor market for the availability of U.S. workers before filing an
Application for Temporary Employment Certification. The Department
proposed to require all job orders, Form ETA-790/790A, be signed with
an electronic signature (i.e., an electronic (scanned) copy of the
original signature or a verifiable electronic signature method, as
directed by the OFLC Administrator) and submitted electronically to the
NPC, using the electronic method(s) designated by the OFLC
Administrator.
Currently, the Department's FLAG system, available at https://flag.dol.gov, is the OFLC Administrator's designated electronic filing
method. Only employers the OFLC Administrator authorizes to file by
mail due to lack of internet access or using a reasonable accommodation
due to a disability under the proposed procedures in Sec. 655.130(c)
would be permitted to file
using those other means. Upon receipt in the electronic filing system,
the NPC would transmit Form ETA-790/790A to the SWA serving the AIE for
review. If the job opportunity is located in more than one State within
the same AIE, the NPC would transmit a copy of the electronic job
order, on behalf of the employer, to one of the SWAs with jurisdiction
over the place(s) of employment for review.
For job orders submitted to the NPC in connection with a future
master application to be submitted under Sec. 655.131(a), the
Department proposed the agricultural association would continue to
submit a single Form ETA-790/790A in the name of the agricultural
association as a joint employer. In the Form ETA-790A, as well as in
the future Application for Temporary Employment Certification, the
agricultural association would identify all employer-members by name.
Where two or more employers are seeking to employ a worker or
workers jointly, as permitted by Sec. 655.131(b) (i.e., joint
employers other than an agricultural association and its employer-
members filing a master application under Sec. 655.131(a)), the
Department proposed that any one of the employers may continue to
submit the Form ETA-790/790A as long as all joint employers are named
on the Form ETA-790A and the future Application for Temporary
Employment Certification.
Commenters generally expressed strong support for the proposals to
modernize the job order filing process by requiring job orders to be
signed electronically and submitted through the Department's electronic
filing system, absent authorization to file by mail due to lack of
internet access or using a reasonable accommodation due to a disability
under the proposed procedures in Sec. 655.130(c). A SWA viewed the
proposal as a way to improve program efficiency, eliminate paper
applications, reduce errors, and streamline the job posting process,
and a workers' rights advocacy organization agreed it may streamline
the process and reduce paperwork burdens. The workers' rights advocacy
organization and a trade association recognized it as a way to improve
communication between agencies involved in H-2A processing and improve
response times. Several associations stated the ability to submit the
job order electronically and to pre-populate certain information for
future job orders will help streamline the application process, while
the utilization of standardized terms and conditions of employment on
the form and electronic data checks will enhance the efficiency of the
program for users.
However, some commenters opposed the Department's proposal to
require employers submit the Form ETA-790/790A to the NPC, rather than
to the SWA directly. Some comments urged the Department to maintain the
existing filing procedures and expressed concern the proposed change
would strain OFLC resources, hinder the employer's ability to
communicate directly with the SWAs, and transfer primary responsibility
for job order review to the CO or otherwise diminish the role of the
SWAs. Some commenters also asserted the Department failed to explain
why this change was necessary and how it would improve the program.
As explained in the NPRM, the Department determined the proposed
changes, including submission to the NPC in the Department's electronic
filing system, will modernize the job order filing process resulting in
more efficient use of SWA and Department resources. The SWAs generally
do not have adequate capacity to provide for the full electronic
submission and management of agricultural job orders in the OMB-
approved format, which may create uncertainty for employers that need
to submit job orders within regulatory timeframes. Further, given that
an employer must provide a copy of the same job order to the NPC at the
time of filing the Application for Temporary Employment Certification,
the current job order filing process requires duplication of effort for
employers, especially those with business operations covering large
geographic areas that need to coordinate job order submissions with
multiple SWAs; a single electronic submission location simplifies the
application process. For the Department and SWAs, electronic submission
of job orders to the NPC will decrease data entry, improve the speed
with which job order information can be retrieved and shared, reduce
staff time and storage costs, and improve storage security. Since the
new Form ETA-790/790A will be stored electronically, it also eliminates
the need for manual corrections of errors and other deficiencies and
improves the efficiency of posting and maintaining approved job orders
on the Department's electronic job registry. The Department therefore
determined that this process will result in more efficient use of
Department and SWA staff time.
The most common concern among commenters with respect to the
requirement to submit job orders to the NPC through the Department's
electronic filing system, rather than to the SWA directly, related to
potential delay in the SWA's receipt of the job order. Commenters
expressed concern the proposal might not streamline the job order
filing and distribution processes; rather, it might add a ``layer of
bureaucracy,'' with the NPC serving as an unnecessary intermediary
between employers and the SWAs and causing delays between NPC's receipt
of a job order and its transmission of the job order to the SWAs.
Commenters noted the NPRM did not impose deadlines by which the CO
would be required to transmit the job orders to the SWAs, and an agent
and workers' rights advocacy organization stressed the need for the SWA
to receive the job order immediately. A few commenters specifically
asked the Department to clarify whether the SWA will receive immediate
notification and receipt of the job order submission and whether the
employer will receive confirmation when the SWA receives the job order.
One commenter urged the Department to create a shared platform for
electronic submission of the job order that ensures the SWAs have
access to the job order without requiring the NPC to provide the SWA
notice of the submission. Several commenters also urged the Department
to ensure the FLAG electronic filing and application processing system
provide notice to employers when the SWA takes action on a job order. A
workers' rights advocacy organization requested the Department provide
an objectively measurable deadline by when the NPC must transmit job
orders to SWAs, rather than the term ``promptly.'' \69\
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\69\ This comment expressed concern with the term ``promptly''
in relation to the Department's proposal in paragraph (f) to begin
interstate clearance after the SWA's approval of the job order,
which the Department has not adopted, as discussed below. Both the
commenter's underlying concern with the term ``promptly'' and the
Department's response apply to the NPC's transmission of a job order
to a SWA, regardless of whether the transmission is for initial
review or related to interstate clearance, and regardless of whether
the transmission occurs pre-filing under paragraph Sec. 655.121(f)
or post-filing under Sec. 655.150(a); therefore, the Department
acknowledges the comment here.
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Under this final rule, there will be no duplication of processes
and no delay between an employer's submission of a job order to the NPC
and the SWA's access to the job order. As noted in the NPRM, the
Department already provides the SWAs with access to OFLC's FLAG system
to electronically communicate any deficiencies with job orders
associated with employer-filed H-2A and H-2B applications and uploading
inspection reports of employer housing. That access has been enhanced
so the SWA has access to the job order in the FLAG system upon
submission. As a
result, ``transmission'' of the job order from the NPC to the SWA in
FLAG is automatic and virtually instantaneous. Once the employer
submits the Form ETA-790/790A in the FLAG system, the FLAG system will
notify the SWA of the new job order available for its review and will
send the employer a confirmation email that includes a generated case
number the employer can use to track the submitted job order. The SWA
may also send email correspondence to the filer as needed. When the SWA
issues a decision on the job order, the case status in the filer's
queue will change to reflect that decision (e.g., NOD Issued, Job Order
Approved, or Job Order Denied). In addition, if a job order is modified
during processing of the Application for Temporary Employment
Certification, the CO will add a case note directed to the SWA,
advising the SWA an amendment has been made to the job order that both
the NPC and SWA may access.
The Department also received several comments about Sec.
655.121(e)(1) that suggested a mistaken belief the Department intended
for the NPC to choose which SWA would receive the job order in cases
where more than one SWA has jurisdiction over the AIE, rather than
continuing to allow the employer to make that selection. Agents and
agricultural associations urged the Department to continue to permit
employers to choose the SWA, while a workers' rights advocacy
organization urged the Department to provide specific criteria that the
CO and employer must use to determine the SWA to receive the job order
to guard against employers using their freedom of choice to avoid SWAs
that have identified deficiencies in their past filings. The commenter
recommended the Department require the CO to send the job order to the
SWA with jurisdiction over the first work location under the contract,
which it stated was important because positive recruitment is most
likely to be effective in the State where work begins.
Under this final rule, the employer will continue to identify the
SWA to which its job order will be submitted for review under Sec.
655.121. When an employer prepares and submits a job order in the FLAG
system, the employer will be asked to identify the SWA to receive the
job order by selecting a SWA from a drop-down list of SWAs with
jurisdiction over that job order. The drop-down list will be consistent
with the parameters at Sec. 655.121(e)(1): Where only one SWA has
jurisdiction over the AIE, the drop-down list will include only one
option; where more than one SWA has jurisdiction over the AIE (i.e.,
the AIE crosses State lines), the drop-down list will include more than
one option. For employers permitted to file by mail, the employer may
identify the SWA to receive the job order, consistent with the
parameters at Sec. 655.121(e)(1), in a cover letter attached to that
job order. Upon submission in the FLAG system, the job order will be
electronically transmitted to the SWA the employer identified.
The Department declines to revise Sec. 655.121(e)(1) to restrict
an employer's choice among the SWAs sharing jurisdiction in an AIE that
crosses State lines by requiring the employer to select the SWA with
jurisdiction over the place where work is expected to begin. As a
preliminary matter, these job orders may not involve work that begins
in one State or another; work may begin simultaneously throughout the
AIE and across State lines. Further, an employer's choice in this
scenario is limited; the employer has the option to choose only among
those SWAs that share State lines in the AIE. In addition, the
difference in recruitment exposure in each of the States involved is
minimal. As soon as the employer-selected SWA approves the job order
and begins intrastate recruitment, it will notify the NPC through the
FLAG system to transmit the job order in the FLAG system to the other
SWAs with jurisdiction over the AIE, in accordance with Sec.
655.121(f). Adding the suggested restriction to Sec. 655.121(e)(1)
would increase the complexity of filings without adding significant
value. However, the Department has clarified the SWA selection criteria
applicable to a job opportunity that involves work in multiple AIEs
along a planned itinerary, where there is a true beginning location for
the work to be performed under the contract, in Sec. 655.302.
b. SWA Review of the Job Order
The Department proposed minor revisions to the timeframes and
procedures under which the SWA performs a review of the employer's job
order. Specifically, the Department proposed that where the SWA issues
a notification of deficiencies, the notification the SWA issues must
state the reason(s) the job order fails to meet the applicable
requirements and state the modifications needed for the SWA to accept
the job order. In addition, the Department proposed that the job order
be deemed abandoned if the employer's response to the SWA's
notification is not received within 12 calendar days after the SWA
issues the notification. Finally, the Department proposed that any
notice sent by the SWA to an employer must be sent using a method
guaranteeing next-day delivery, including email or other electronic
methods, and must include a copy to the employer's representative, if
applicable.
Two commenters expressed concern that the Department was
diminishing the role of the SWAs in the job order review process. One
commenter believed the Department intended to transfer authority for
job order review from the SWAs to OFLC, which the commenter asserted
would set a ``dangerous precedent'' that would undermine the SWA's role
by influencing how and when a SWA receives the job order. Similarly, a
workers' rights advocacy organization believed the proposed changes
would diminish the SWA's ability to promptly recruit and advise U.S.
workers of job opportunities and compromise the SWA's ability to issue
a notification of deficiencies when the job order violates State law or
fails to conform to local prevailing wages and practices. The commenter
emphasized the importance of the SWAs in conducting review of job
orders, noting the SWAs have greater knowledge than the CO of actual
labor needs, crop needs, and local practice and, therefore, are more
likely to identify flaws or fraud in job orders. This commenter further
urged SWAs not to accept job orders, and OFLC to deny Applications for
Temporary Employment Certification, that do not list use of crew
leaders as a prevailing practice or that do list qualifications or
requirements (e.g., experience requirements, background checks, or
productivity standards), unless there has been a determination as to
``whether or not these requirements are, in fact, the prevailing
practices of non-H-2A employers in the industry and area.''
Contrary to the concerns of the commenters, the Department is not
changing the roles or responsibilities of the SWAs with respect to
review and approval of job orders in this rulemaking. The SWAs will
continue their traditional role in the recruitment process and work
with employers on the specifics of the job order. Section 655.121(e)(2)
in the NPRM and this final rule retains the language from the 2010 H-2A
Final Rule that explains the SWA will review the contents of the job
order for compliance with the requirements set forth in 20 CFR part 653
and this subpart. As the Department has noted in prior rulemaking,
processing job orders has been an essential function of the SWAs since
the inception of the H-2A program, and posting job orders in the
employment service system and referring individuals to those jobs is a
core function of the SWAs that remains at the State level in this rule.
The Department agrees the SWAs are especially effective arbiters of the
acceptability of job orders due to their experience in providing
services to farmworkers and their unique expertise in assisting
employers in preparing job orders and making determinations regarding
their sufficiency. The Department will continue to rely on the SWAs to
apply their broad, historical experience in administering our nation's
public workforce system and understanding of the practical application
of program requirements to the process of clearing job orders.
Further, this final rule continues the CO's existing authority and
responsibility with respect to review of job orders after the
Application for Temporary Employment Certification has been filed.
Section 655.121(h) in this final rule is substantively the same as
Sec. 655.121(e) in the 2010 H-2A Final Rule. As was the case under the
2010 H-2A Final Rule, Sec. 655.121(h) of this final rule explains that
H-2A job orders continue to be subject to CO review and that the CO may
require the employer to make modifications to the job order prior to
certification. As the Department explained in the 2010 H-2A Final Rule,
it has the ultimate authority to ensure that a job order submitted in
connection with an Application for Temporary Employment Certification
satisfies applicable requirements. COs have always had the authority to
review job orders; SWA acceptance of a job order has never obligated a
CO to overlook any apparent violations or deficiencies the SWA may not
have identified. However, in the overwhelming majority of cases, CO
determinations about job orders will be consistent with those of the
SWA, as is true of these determinations under the 2010 H-2A Final Rule.
Two commenters also asserted some SWAs add an ever-growing and
unnecessary list of attestations and assurances. One of the commenters
believed this is inconsistent with the Department's goal to streamline
the program and expressed concern that the additional attestations may
be incompatible with the new streamlined Forms ETA-790/790A and ETA-
9142A. The commenters did not cite specific unduly burdensome
requirements or state specifically which attestation requirements they
consider inappropriate or burdensome.
In the Department's experience, some disagreements about job order
content are attributable to differences in experience with the local
industries and labor markets, and the resulting content requirements
are legitimate outgrowths of those differences. The Department will
continue to provide training and ongoing guidance for the SWAs, as
necessary, to foster a clear understanding of program and other
regulatory requirements and ensure uniformity in the job order review
and determination processes. With the newly designed Form ETA-790/790A,
the Department anticipates fewer inconsistencies between SWA
determinations in various States. However, should a disagreement
between the SWA and employer arise regarding attestations, assurances,
or other job order content, which the SWA and employer are unable to
resolve, the Department reminds employers that they can submit an
Application for Temporary Employment Certification pursuant to
emergency filing procedures contained in Sec. 655.134. See Sec.
655.121(e)(3).
Under this final rule, the SWA will provide written notification to
the employer of any deficiencies within 7 calendar days from the date
the NPC transmitted the job order to the SWA. The notification issued
by the SWA, which will be sent using a method ensuring next-day
delivery, including email or other electronic methods, will state the
reasons the job order fails to meet the applicable requirements and
state the modifications needed for the SWA to accept the job order. The
employer will continue to have an opportunity to respond to the
deficiencies within 5 calendar days from the date the SWA issues the
notification, and the SWA will issue a final notification to accept or
deny the job order within 3 calendar days from the date the SWA
receives the employer's response. To ensure a timely disposition of all
job orders, a job order will be deemed abandoned if the employer's
response to the notification of deficiencies is not received within 12
calendar days after the SWA issues the notification. In this situation,
the SWA will provide written notification and direct the employer to
submit a new job order to the NPC that satisfies all the requirements
of this section. The 12-calendar-day period provides an employer a
reasonable maximum period within which to respond, given the
Department's concern for timely processing of the employer's job order.
If the SWA does not respond to the employer's job order submission
within the stated timelines, or if after providing responses to the
deficiencies noted by the SWA, the employer is not able to resolve the
deficiencies with the SWA, the Department will continue to permit the
employer to file its Application for Temporary Employment Certification
and job order to the NPC using the emergency filing procedures
contained in Sec. 655.134. The Department continues to encourage
employers to work with the SWAs early in the process to ensure their
job orders meet applicable State-specific laws and regulations and are
accepted in a timely manner for intrastate and interstate clearance.
c. Clearance of Approved Job Orders
The 2010 H-2A Final Rule provided for the SWA to review a job order
and, after determining the job order was acceptable, to begin
intrastate clearance and, in multi-State AIEs, circulate the job order
to the SWAs in other States with jurisdiction over the place of
employment. Under the 2010 H-2A Final Rule, however, the SWA does not
begin interstate clearance until the CO instructs it to do so through
the Notice of Acceptance (NOA). Upon receipt of the NOA, the SWA
transmits the job order to SWAs in other States, following the CO's
instructions.
In the NPRM, the Department proposed changes to the job order
circulation process, in part, to bolster the optional pre-filing
recruitment procedures proposed at Sec. 655.123. The Department
proposed to expand job order circulation to interstate clearance upon
SWA approval, rather than upon CO issuance of the NOA. In addition,
consistent with the proposed electronic transmission of job orders, the
Department proposed that the SWA would notify the CO of the SWA's
approval, after which the CO would electronically transmit the job
order to other SWAs for interstate clearance.
Although the January 2021 draft final rule would have adopted the
pre-filing interstate circulation of job orders, after further
consideration of comments that addressed the Department's pre-filing
recruitment proposal and the Department's resulting decision not to
adopt that proposal, as discussed in the preamble regarding Sec.
655.123, the Department has determined not to revise the timing of job
order clearance in this final rule. In particular, and consistent with
the Department's reasoning for not adopting the proposed optional pre-
filing recruitment provision, the Department has determined that the
potential benefits of pre-filing interstate circulation of the job
order are outweighed by the potential for confusion regarding job offer
details and additional communication (e.g., between the CO and SWA or
SWA and farmworker) if the job order is modified before the CO issues a
NOA. Retaining the 2010 H-2A Final Rule's timing is consistent with the
Department's goal of
simplifying the program and is responsive to comments indicating the
importance of clear, accurate, and fixed job offer information for
recruitment of U.S. workers. As a result, this final rule retains the
2010 H-2A Final Rule's timing for intrastate and interstate clearance,
with procedural modifications to conform to the electronic job order
submission and transmission proposals adopted in this final rule. As
revised, paragraph (f) provides that the SWA will review a job order
and, if approved, will place the job order in intrastate clearance to
commence recruitment of U.S. workers within its jurisdiction. In
addition, if appropriate, the SWA will notify the NPC that the job
order must be transmitted to other SWAs with jurisdiction over the
place of employment (i.e., a place of employment located in a multi-
State AIE) for intrastate clearance. Subsequently, upon the CO's review
and acceptance of the Application for Temporary Employment
Certification, as provided in Sec. 655.143, interstate circulation of
the job order will begin, in accordance with Sec. 655.150.
d. Other Comments Related to Sec. 655.121
To clarify procedures, and as a result of other proposed changes,
the Department proposed reorganization of several components of Sec.
655.121. In addition, the Department proposed a technical correction in
paragraph (g) of this section, changing ``Application for Temporary
Employment Certification'' to ``application'' to reflect that the term
``application'' refers to a U.S. worker's application for the
employer's job opportunity during recruitment, not the Application for
Temporary Employment Certification.
The Department received a comment from an agent suggesting an
amendment to Sec. 655.121(h)(2) to allow employers to request a
modification of the job order to the NPC after filing an Application
for Temporary Employment Certification and prior to receiving a NOA,
rather than limiting employer-requested modifications to the period
prior to filing the Application for Temporary Employment Certification.
The commenter believed its suggestion would be consistent with the fact
the NPC may require the employer to modify the job order during the
review process through a deficiency notice. However, the Department did
not propose changes to this provision, which appeared in the 2010 H-2A
Final Rule at paragraph (e)(2) of this section; therefore, the
suggestion is beyond the scope of this rulemaking. Further, unlike CO-
ordered modifications, employer-requested modifications would confuse
and complicate the CO's analysis and ability to identify deficiencies
within 7 business days of receipt or, alternatively, issue a NOA as the
first action.
Another individual commenter suggested the Department allow
employers ``to file 120 days from the date of need,'' which presumably
refers to the filing timeframe for submitting a job order in Sec.
655.121(b). As the Department proposed no changes to the filing
timeframe, this suggestion is outside the scope of this rulemaking.
3. Section 655.122, Contents of Job Offers
a. Paragraph (a), Prohibition Against Preferential Treatment of H-2A
Workers
The Department's current regulation at Sec. 655.122(a) prohibits
the preferential treatment of H-2A workers and requires that an
employer's job offer must offer to U.S. workers no less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. Section 655.122(a)
further prohibits job offers from imposing on U.S. workers any
restrictions or obligations that will not be imposed on the employer's
H-2A workers. The Department did not propose any changes to or request
comments on Sec. 655.122(a) in the NPRM, but the Department received
one comment on this section. An agent requested that the Department
``clarify'' that the U.S. workers referenced in this section are those
U.S. workers engaged in corresponding employment because, it asserted,
``U.S. workers not in corresponding employment are not, in fact,
entitled to the same H-2A wage rate as this provision appears to
suggest.'' The commenter, however, is incorrect because the
requirements of this section are not limited to U.S. workers in
corresponding employment. Under this section, for example, an H-2A
employer may not impose on prospective U.S. workers applying for the H-
2A job opportunity a minimum weight-lifting requirement that it will
not and does not impose on H-2A workers. Therefore, this final rule
retains the current regulatory language without change.
b. Paragraph (d), Housing
Pursuant to the statute and the Department's regulations, an
employer must provide housing at no cost to all H-2A workers and to
those non-H-2A workers in corresponding employment who are not
reasonably able to return to their residences within the same day. See
8 U.S.C. 1188(c)(4); Sec. 655.122(d)(1). Generally, an employer may
meet its housing obligations either by providing its own housing that
meets the applicable Federal health and safety standards, or by
providing rental and/or public accommodations that meet the applicable
local, State, or Federal standards.\70\ The statute further requires
that the determination whether the housing meets the applicable
standards must be made not later than 30 days before the first date of
need. See 8 U.S.C. 1188(c)(3)(A) and (4).
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\70\ Housing for workers principally engaged in the range
production of livestock must meet the minimum standards required by
Sec. 655.122(d)(2).
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The NPRM proposed several amendments to this section governing
housing inspections and certifications. Specifically, the Department
proposed to reinforce the statutory requirement that housing
certification must be made not later than 30 days prior to the first
date of need; clarify that other appropriate local, State, or Federal
agencies may conduct inspections of employer-provided housing on behalf
of the SWAs; and authorize the SWAs (or other appropriate authorities)
to inspect and certify employer-provided housing for a period of up to
24 months. The Department received many comments on the proposed
amendments to these sections. After carefully considering these
comments, the Department has adopted with minor revisions some of the
regulatory text proposed in the NPRM and decided not to adopt the
proposals that would have permitted a 24-month housing certification
period and employer self-certification of housing, as discussed below.
Employer-Provided Housing
Preoccupancy inspections are a vital step in determining whether
employer-provided housing actually meets applicable health and safety
standards, allowing the Department to ensure that the housing is safe
and sufficient for the number of workers to be housed prior to their
arrival for the work contract period. Under the current regulation,
employers are required to obtain preoccupancy inspections of their
housing for every temporary agricultural labor certification without
exception. This requirement can lead to delays in the labor
certification process, given the high demand for preoccupancy
inspections and the SWAs' finite resources.
To address such delays, the Department proposed to allow the SWAs
to inspect and certify employer-provided housing for a period of time
up to a maximum period of 24 months. Under this proposal, the SWAs
would
be required to provide prior notice to the Department of their
intention to certify employer-provided housing for extended periods of
time, up to 24 months, and develop their own criteria for determining
when such certifications are appropriate. Although the Department
proposed to allow the SWAs to develop their own criteria, in
recognition of their longstanding expertise in conducting housing
inspections, the Department also requested comments as to whether a
final rule should include specific criteria that the SWAs must consider
in determining whether to certify employer-provided housing for longer
time periods. The proposal also stated that when an employer files a
subsequent Application for Temporary Employment Certification during
the validity period of the official housing certification previously
received from the SWA (or other appropriate authority), the employer
would have been required to conduct its own inspection of the housing
and provide the SWA and CO with a copy of the still-valid housing
certification, which must be valid for the entire work contract period,
and a signed and dated statement that the employer has inspected the
housing, that the housing is available and sufficient to accommodate
the number of workers requested, and that the housing meets all
applicable health and safety standards. Additionally, the NPRM proposed
to add language reiterating the statutory requirement that
determinations with respect to housing must be made no later than 30
days prior to the first date of need. The NPRM also proposed to clarify
that other appropriate local, State, or Federal agencies may conduct
inspections of employer-provided housing on behalf of the SWAs, in
accordance with the regulatory provisions at Sec. 653.501(b). As
discussed below, the Department has decided to adopt with minor
revisions some of the regulatory provisions proposed in the NPRM.
The Department received comments from a range of stakeholders
regarding the proposed changes to the employer-provided housing
inspection requirements. Employers and employer representatives
expressed broad support for the proposal to allow certifications of
employer-provided housing for a period of up to 24 months with
employers self-inspecting their housing for further applications during
this period. They indicated that this proposed revision would reduce
delays in the application and certification process that they say harm
agricultural businesses and create uncertainty for employers and
workers. Some State agencies also expressed support for this proposal,
indicating that it would improve their ability to allocate their
resources for housing inspections. However, many of these commenters
expressed concern that the SWAs would have discretion to determine the
criteria for determining when such housing certification periods would
be appropriate, indicating that the SWAs should be precluded from
continuing inspections on an annual basis. Several commenters indicated
that the final rule should require the SWAs to allow agricultural
employers to have their housing certified for a period of 24 months, or
at least provide incentives to the SWAs to encourage them to certify
employer-provided housing for a 24-month period as often as possible.
Other commenters stated that the Department should require the SWAs to
certify employer-provided housing for a 24-month period when previous
inspections of housing provided by that employer had found that the
housing complied with all applicable standards.
Employers and their representatives were more divided in their
comments regarding the proposed clarification that other appropriate
local, State, or Federal agencies may conduct inspections of employer-
provided housing on behalf of the SWAs. Several commenters stated that
allowing agencies other than the SWAs to conduct housing inspections,
as is already done in some States, reduces the logistical burden on the
SWAs. They also noted that in some States, employer-provided housing is
already inspected by other agencies due to State laws regarding migrant
worker housing. If those agencies also conducted housing inspections
for H-2A housing certifications, it would reduce the burden on
employers for the same agency to conduct both inspections. Other
employer associations expressed concern over the proposed language,
particularly the possibility that Federal agencies might conduct
housing inspections, as they felt such inspections were more
appropriately conducted at the State or local level.
In contrast, workers and workers' rights advocacy organizations
generally opposed the proposal to allow the SWAs to certify employer-
provided housing for a period of up to 24 months, with employers
conducting self-inspections of the housing for any subsequent
Applications for Temporary Employment Certification filed during that
timeframe. Workers, workers' rights advocacy organizations, and some
government agencies stated that employer-provided housing frequently
fails to meet applicable health and safety standards even when
inspected annually under the current rule, and that moving to a 24-
month certification period would thus increase the risk that workers
would be exposed to unsafe housing conditions. Several commenters also
noted that housing conditions can deteriorate significantly over the
course of a year, citing examples of housing that passed inspection but
was found to have health or safety violations when subsequently
investigated during the certification period, making it even less
appropriate to certify housing for a longer time period. Workers'
rights advocacy organizations also questioned whether the employers'
self-inspection of their housing during the 24-month certification
period would motivate employers to ensure that their housing continues
to meet applicable health and safety standards, given the high rate of
violations even when employers know that their housing will be
inspected by a government agency annually. Some commenters stated that
if the Department allows the SWAs to certify employer-provided housing
for a 24-month period, the regulation should include criteria that must
be met for employers to receive a longer certification period, such as
compliance with Federal, State, or local housing laws, age of the
housing, and whether the housing is in a populated, easily accessible
area. Two other commenters suggested that if the SWAs were unable to
certify housing in a timely manner, the Department itself should
inspect the housing.
After consideration of the comments received, the Department has
decided not to adopt the proposal to permit certifications of employer-
provided housing for a period of up to 24 months, with employers self-
inspecting their housing for further applications during this period.
Although the Department recognizes that preoccupancy housing
inspections must be conducted in a timely manner, the Department
concludes that achieving greater expediency in the certification
process must not come at the cost of reduced housing compliance
monitoring and increased risk to worker health and safety. As several
commenters noted, the Department frequently encounters post-
certification violations of the housing safety and health requirements
even under the current rule; reducing the frequency of housing
inspections would likely further exacerbate the frequency and severity
of such violations. To do so would be inconsistent with the statute's
requirement that worker housing meet applicable safety and health
standards. And while the January 2021 draft final rule would have
accepted the proposal, after further consideration of the comments, and
for the reasons discussed above, the Department has declined to do so.
The Department has also considered the comments regarding the
proposed clarification that other appropriate local, State, or Federal
agencies may conduct inspections of employer-provided housing on behalf
of the SWAs. As stated above, the proposed language merely reflected
the existing regulatory provisions of Sec. 653.501(b)(3), which
already allow other appropriate agencies to conduct preoccupancy
housing inspections on the SWAs' behalf, and are included with the
other housing provisions at Sec. 655.122(d) for clarity and
convenience. Indeed, as several commenters noted, preoccupancy
inspections are already carried out by agencies other than the SWA in
several States. As the proposed language merely reiterated the current
regulatory position that preoccupancy inspections may be conducted by
any appropriate public agency, the Department did not find that any
change to this language was warranted and therefore has adopted the
proposed language without change in this final rule. Similarly, the
Department is adopting without change the proposed language in
paragraph (6)(i) of this section, reiterating the statutory requirement
that the determination as to whether housing provided to workers meets
the applicable standards must be made not later than 30 calendar days
before the first date of need identified in the Application for
Temporary Employment Certification.
Rental and/or Public Accommodations
Where employers choose to meet their H-2A housing obligations by
providing rental and/or public accommodations, the statute explicitly
states that the accommodations must meet local standards for rental
and/or public accommodations. In the absence of applicable local
standards, State standards for rental or public accommodations must be
met, and in the absence of applicable local or State standards, Federal
temporary labor camp standards must be met. See 8 U.S.C.
1188(c)(4).\71\ The current regulations at 20 CFR 655.122(d)(1)(ii)
reflect the statutory language, incorporating the Occupational Safety
and Health Administration's (OSHA) temporary labor camp standards at 29
CFR 1910.142, and additionally state that ``[t]he employer must
document to the satisfaction of the CO that the housing complies with
the local, State, or Federal housing standards.'' Currently, employers
may meet that requirement by several methods, including, but not
limited to, providing a copy of a housing inspection report or
certification by the SWA, or another local, State, or Federal agency,
where such an inspection is required by applicable rental or public
accommodation standards, or by providing a signed and dated written
statement confirming that the accommodation complies with applicable
local, State, and/or Federal standards.\72\
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\71\ ``The employer shall be permitted at the employer's option
. . . to secure housing which meets the local standards for rental
and/or public accommodations or other substantially similar class of
habitation: Provided, That in the absence of applicable local
standards, State standards for rental and/or public accommodations
or other substantially similar class of habitation shall be met:
Provided further, That in the absence of applicable local or State
standards, Federal temporary labor camp standards shall apply.''
\72\ See OFLC FAQ, What do I need to submit to demonstrate the
[rental and/or public accommodations] complies with applicable
housing standards? (June 2017), https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!917.
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This patchwork of applicable standards creates several challenges
to protecting the health and safety of H-2A and corresponding workers
housed in rental and/or public accommodations, such as hotels, motels,
and other public accommodations that are available to the general
public to rent for relatively short-term stays. Under the current
regulations, in the absence of any local or State standards applicable
to rental and/or public accommodations, the full set of OSHA temporary
labor camp standards at Sec. 1910.142 apply. However, several of these
standards address health and safety concerns that generally do not
arise in rental and/or public accommodations and thus are impractical
or infeasible to apply in this context (for example, Sec.
1910.142(a)(1), which addresses drainage of camp sites), leading to
inconsistent application and enforcement of the standards overall.
Conversely, where any local or State standards applicable to rental
and/or public accommodations do exist, those standards apply to the
complete exclusion of the OSHA temporary labor camp standards. Even
where local and State standards for rental and/or public accommodations
exist and address basic health and safety concerns for the general
population, such as maximum occupancy, these standards are often silent
on health and safety concerns unique to agricultural worker housing
that are otherwise addressed in the OSHA temporary labor camp standards
at Sec. 1910.142.
These gaps in protection can lead to significant health and safety
concerns. In particular, overcrowding is one of the most common
problems the Department encounters when inspecting hotels or motels
used to house H-2A and corresponding workers. Workers have been found
to be required to share a bed, sleep on the floor in a sleeping bag,
share a single room where as many as eight people may be sleeping, or
sleep on mattresses on the ground in laundry rooms or living rooms. In
addition, where workers have to cook their own meals, hotels and motels
may not have sanitary facilities or adequate cooking equipment, which
can lead to worker health issues, rodent or pest infestations, and fire
hazards. Workers housed in hotels and motels also may not have access
to laundry facilities, a serious concern for workers whose clothing
regularly comes into contact with pesticides or herbicides. These
issues are all addressed in the OSHA temporary labor camp standards but
are not frequently covered in local or State standards for rental and/
or public accommodations.\73\
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\73\ Beginning on March 13, 2020, continued on February 24,
2021, and again on February 18, 2022, the President has declared a
national emergency concerning the novel coronavirus disease (COVID-
19) pandemic. The Department encourages H-2A employers to regularly
consult Federal, State, and local guidance on the COVID-19. At the
time of this publication, OSHA's regulations and guidance relevant
to COVID-19 are available at https://www.osha.gov/coronavirus.
OFLC's guidance on COVID-19 for H-2A employers is available at
https://www.dol.gov/agencies/eta/foreign-labor.
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To address these concerns, the Department proposed certain changes
to its regulations interpreting the statutory requirements for rental
and/or public accommodations standards. The Department identified
specific OSHA temporary labor camp standards that are applicable to
rental or public accommodations, specifically: Sec. 1910.142(b)(2)
(``[e]ach room used for sleeping purposes shall contain at least 50
square feet of floor space for each occupant''), (b)(3) (``[b]eds . . .
shall be provided in every room used for sleeping purposes''), (b)(9)
(``In a room where workers cook, live, and sleep a minimum of 100
square feet per person shall be provided. Sanitary facilities shall be
provided for storing and preparing food.''), (b)(11) (heating, cooking,
and water heating equipment installed properly), (c) (water supply);
(f) (laundry, handwashing, and bathing facilities), and (j) (insect and
rodent control). Where local health and safety standards for rental
and/or public
accommodations exist, the local standards apply in their entirety.
However, if the local standards do not address one or more of the
issues addressed in the OSHA health and safety standards listed in the
regulation, the relevant State standards on those issues will apply. If
both the local and State standards are silent on one or more of the
issues addressed in the OSHA health and safety standards listed in the
regulation, the relevant OSHA health and safety standards will apply.
If there are no applicable local or State standards at all, only the
OSHA health and safety standards listed in the regulation will apply.
OSHA temporary labor camp standards that are not specifically mentioned
in 20 CFR 655.122(d)(1)(ii) will not be applicable to rental or public
accommodations.
The following is an example of how local, State, and OSHA health
and safety standards would be applied to a specific rental or public
accommodation under the regulation. An employer provides housing for
workers in a motel located in a county with a local code that includes
health and safety standards for public accommodations that address all
but one of the health and safety standards in the listed OSHA
standards, i.e., a requirement for a minimum number of square feet per
occupant for sleeping rooms, one of the applicable OSHA health and
safety standards listed in the regulation. The existing local code
applies in its entirety to the motel, but since the local code has no
applicable standard for a minimum number of square feet per occupant
for sleeping rooms, the State standard for the minimum number of square
feet per occupant for sleeping rooms, if any, would be applicable to
the housing as well. If the State has no standard for the minimum
number of square feet per occupant for sleeping rooms that is
applicable to public accommodations, then the OSHA standard at 29 CFR
1910.142(b)(2), which states that sleeping rooms must contain at least
50 square feet per occupant, will apply (or, where cooking facilities
are present, Sec. 1910.142(b)(9), which requires 100 square feet per
occupant in rooms where occupants live, sleep, and cook, would apply),
in addition to other requirements of the local code. However, if the
local standard (or State standard, in the absence of any local
standard) contains a standard for the minimum number of square feet per
occupant for sleeping rooms (or, where cooking facilities are present,
a standard for the minimum feet per occupant for rooms where occupants
live, sleep, and cook) that is applicable to public accommodations,
that standard would apply, regardless of whether that local standard
was more or less stringent than the applicable OSHA standard, because
the listed OSHA standards apply only in the absence of local or State
standards addressing those health and safety issues. Similarly, a local
or State standard need not explicitly provide for a minimum number of
square feet per occupant, provided the standard addresses the relevant
area required for a given number of people. For example, a local
standard that provides a maximum occupancy of three persons to a room
that measures 100 square feet would constitute an applicable local
standard, as it provides for a minimum area for each occupant.
Alternatively, if there were no local or State health and safety codes
applicable to the motel, only the OSHA standards listed in 20 CFR
655.122(d)(1)(ii) would apply. Any other OSHA standards listed at 29
CFR 1910.142 would not be applicable to the motel, because only the
OSHA standards specifically listed in 20 CFR 655.122(d)(1)(ii) are
applicable to rental or public accommodations, and then only when
neither the locality nor the State have applicable standards addressing
those issues.
The Department also proposed to modify the current regulatory
language, which states that ``[t]he employer must document to the
satisfaction of the CO that the housing complies with the local, State,
or Federal housing standards'' (Sec. 655.122(d)(1)(ii)), to specify
how an employer must document that the rental or public accommodations
meet local, State, or Federal standards. The proposed language states
that an employer must submit to the CO a signed, dated, written
statement, attesting that the rental and/or public accommodations meet
all applicable standards and are sufficient to accommodate the number
of workers requested. This statement must include the number of beds
and rooms that the employer will secure for the worker(s). The proposal
language further required that, where the applicable local or State
standards under Sec. 655.122(d)(1)(ii) require an inspection, the
employer also must submit a copy of the inspection report or other
official documentation from the relevant authority. Where no inspection
is required, the employer's written statement must confirm that no
inspection is required. The proposed language generally reflects
current OFLC guidance as to how the employer may document that
applicable health and safety standards have been met,\74\ with the
additional requirements that employers submit a written statement even
if they are also submitting a copy of an inspection report, where
required, and that the written statement must contain the number of
beds and rooms that will be provided in the rental or public
accommodations. As discussed below, the Department has decided to adopt
the regulatory provisions as proposed in the NPRM, with a few
modifications.
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\74\ See OFLC FAQ, What do I need to submit to demonstrate the
[rental and/or public accommodations] complies with applicable
housing standards? (June 2017), https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!917.
---------------------------------------------------------------------------
Several employers and employer associations opposed the proposed
changes. These commenters generally stated that there is no basis for
requiring employers to ensure that rental or public housing complies
with any of the OSHA temporary labor camp health and safety standards,
because standards designed for temporary labor camps are inappropriate
for rental or public accommodations. They commented that requiring
employers to find rental or public accommodations that meet the listed
OSHA standards (in the absence of local or State standards addressing
those issues) would be very difficult, possibly even preventing H-2A
employers from using rental or public accommodations. These employers
requested that the regulations no longer require the application of
OSHA temporary labor camp standards. At least one commenter stated that
the option to provide rental or public accommodations was made
available to employers to give them the flexibility to provide housing
that does not comply with OSHA health and safety standards in areas
where compliant housing may be scarce. Some commenters expressed
further concern that employers should be expected to attest to the
compliance of rental or public housing accommodations provided to their
workers, as it would be too confusing for them to determine which set
of standards should apply. One employer association, while generally
supportive of the proposed changes, indicated that employers are
frequently unable to use public accommodations because the
accommodations fail required inspections for minor issues, such as lack
of window screens, and urged that employers should have greater access
to public accommodation options.
In contrast, workers, workers' rights advocacy organizations, and
at least one State agency expressed support for the proposed changes,
indicating that specifically requiring the application of
Federal OSHA health and safety standards addressing important issues
such as overcrowding, or inadequate sleeping, bathing, or laundry
facilities, in the absence of such local or State standards, would
result in modest improvements to worker health and safety. However,
these commenters also stated that these improvements would not be
sufficient without a strong commitment to inspections and enforcement
of housing violations, with one workers' rights advocacy organization
further urging that Federal OSHA should be required to inspect rental
or public accommodations in areas where local or State laws do not
require such inspections. Another workers' rights advocacy organization
stated that the regulations should require the employer to at least use
a more detailed self-inspection form, such as Form ETA-338, and
identify the applicable standards for DOL or the SWA to review prior to
issuing a temporary agricultural labor certification. In addition, most
of these commenters expressed general support for additional
protections or standards to be included in the regulations, but did not
identify specific standards for inclusion. As addressed further below,
only one commenter suggested specific additional standards for
inclusion in the regulation.
Having reviewed the comments on these issues, the Department adopts
the proposals on rental and/or public accommodations at Sec.
655.122(d)(1)(ii) and (d)(6)(iii), with a few modifications. With
respect to the concerns raised by employers and employers' associations
that requiring compliance with applicable OSHA temporary labor camp
health and safety standards may reduce the number of acceptable rental
or public housing options, particularly in more rural areas, the
Department notes that the statute requires that rental or public
accommodations comply with applicable Federal temporary labor camp
standards in the absence of applicable local or State standards. Thus,
even under the Department's current regulations, in many instances,
rental and public accommodations must comply with applicable OSHA
temporary labor camp standards if used to satisfy an H-2A employer's
housing obligations. The Department therefore cannot, through
regulation, remove employers' statutory obligations to comply with
applicable Federal temporary labor camp standards in the absence of
applicable local or State standards. The Department can, however,
identify which OSHA temporary labor camp health and safety standards
are applicable to rental or public accommodations. Rental and public
accommodations are different structures than temporary labor camps, and
some temporary labor camp standards are not applicable to such
accommodations. However, rental and public accommodations generally are
not designed to house groups of unrelated adult agricultural workers
for an extended period of time, especially not in only one or two
rooms. Accordingly, local or State standards governing rental or public
accommodations may not address serious health and safety issues that
arise in such worker housing. The regulation thus identifies which OSHA
standards employers must meet in the absence of applicable local or
State standards on those issues, to prevent serious health and safety
issues more likely to occur where rental or public housing is used to
house H-2A and corresponding workers, while eliminating confusion about
whether such rental or public housing must comply with other OSHA
temporary labor camp standards that are not feasibly applied to hotels
and motels and other rental or public accommodations.
Similarly, the Department notes that it cannot ``simply require
that regardless of local and state standards applicable to public
accommodations, the housing must meet the basic minimum standards'' set
forth in OSHA's temporary labor camp standards, as one workers' rights
advocacy organization suggested, because the statute permits employers
to secure housing that meets applicable local or State standards for
rental and/or public accommodations. As noted above, the Department
also asked for comment specifically as to whether the regulation should
identify any additional health and safety standards addressed in the
DOL OSHA standards at 29 CFR 1910.142 as applicable to rental or public
accommodations. Only one commenter, a workers' rights advocacy
organization, provided examples of additional OSHA temporary labor camp
standards for inclusion in the regulations. Specifically, the commenter
advocated for the addition of Sec. 1910.142(b)(7) (``[a]ll living
quarters shall be provided with windows''), (b)(10) (``stoves (in ratio
of one stove to 10 persons or one stove to two families) shall be
provided''), (d) (toilet facilities), (g) (lighting), (h) (refuse
disposal), and (i) (construction and operation of kitchens, dining, and
feeding facilities).
The Department appreciates the suggestions set forth in this
comment. The Department has decided to include some, but not all, of
the suggested OSHA standards in the list of applicable OSHA temporary
labor camp standards. First, the commenter argued for the inclusion of
Sec. 1910.142(b)(10), which states that ``[i]n camps where cooking
facilities are used in common, stoves (in ratio of one stove to 10
persons or one stove to two families) shall be provided in an enclosed
and screened shelter. Sanitary facilities shall be provided for storing
and preparing food.'' The commenter argued that the inclusion of this
standard was necessary when employers claim that they are providing
cooking and kitchen facilities to workers housed in rental or public
accommodations, as rental or public accommodations frequently have
inadequate cooking facilities that are either lacking in stoves or have
an insufficient number for all workers to have sufficient access to
cook their own food. The commenter further pointed out that without
sufficient access to stoves, workers often must use microwaves or hot
plates for all of their cooking needs, resulting in potential fire
hazards. The Department agrees. Where employers choose to meet their
meal obligations by providing kitchen and cooking facilities to
workers, the facilities must include, among other things, working
cooking appliances, an obligation that is not met merely by the
provision of one or more electric hot plates, microwaves, or outdoor
community grills. The failure to provide adequate cooking appliances
when attempting to meet meal obligations through the provision of
cooking and kitchen facilities would in itself be a violation of 20 CFR
655.122(g), as was discussed in the preamble to the NPRM and is
addressed further below. Including this standard as an applicable OSHA
temporary labor camp standard may help employers determine whether
rental or public accommodations have adequate kitchen and cooking
facilities to enable employers to meet their meal obligations.
Moreover, local and State codes applicable to rental or public
accommodations are not likely to address this issue, since, in most
instances, this type of housing is not generally intended to house
groups of people over an extended period of time who need to be able to
cook their own meals. This standard has therefore been included in the
regulation as one of the applicable OSHA temporary labor camp
standards, although it will be applicable only where an employer has
chosen to meet its meal obligations by providing kitchen and cooking
facilities to workers rather than by providing three meals per day to
workers.
The commenter also advocated for the inclusion of Sec.
1910.142(g), ``Lighting,'' which provides that where electric service
is available:
Each habitable room in a camp shall be provided with at
least one ceiling-type light fixture and at least one separate floor-
or wall-type convenience outlet.
Laundry and toilet rooms and rooms where people congregate
shall contain at least one ceiling- or wall-type fixture.
Light levels in toilet and storage rooms shall be at least
20 foot-candles 30 inches from the floor.
Other rooms, including kitchens and living quarters, shall
be at least 30 foot-candles 30 inches from the floor.
The commenter stated that worker health and safety requires at
least one light fixture and outlet in each sleeping room, as well as
adequate lighting in other rooms. It is likely that this issue will be
addressed in applicable local or State codes, as various building codes
published by the International Code Council, including the
International Property Management Code, have standards regarding the
number of electrical outlets and light fixtures required in sleeping
rooms and other rooms, and these codes have been adopted by most States
and/or localities.\75\ However, as this standard does address a basic
health and safety need, and employers can fairly easily determine
whether the rental or public accommodations they intend to use meet
this standard, the Department has included Sec. 1910.142(g) in the
regulation as one of the applicable OSHA temporary labor camp standards
that will apply in the absence of any applicable local or State
standard addressing this issue.
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\75\ See https://www.iccsafe.org/wp-content/uploads/Master-I-Code-Adoption-Chart-DEC-2021.pdf (last visited Dec. 14, 2021).
---------------------------------------------------------------------------
The commenter also recommended that the entirety of Sec.
1910.142(d), containing various standards for toilet facilities, should
be included in the regulation as one of the applicable OSHA temporary
labor camp standards, arguing that requirements for a minimum ratio of
toilets per person, as well as provisions for lighting, a supply of
toilet paper, and cleanliness, are essential for workers' health. The
Department agrees that having adequate and sanitary toilet facilities
is clearly necessary for workers' health, but several of the standards
included in this section are impractical or less necessary for many
types of rental or public accommodations, as the standards were
designed for temporary labor camp facilities. For example, in hotels or
motels, it may not be practical or necessary to require that toilet
rooms be accessible without passing through sleeping rooms, as
bathrooms in hotels and motels tend to be accessed directly off of the
lone sleeping area and thus there is no other way to access the
bathroom. Similarly, it may be impractical to require that there be a
minimum of two toilets for every shared facility, since one shared
hotel room is likely to have only one toilet. In addition, some of the
issues addressed by this standard are covered by other OSHA temporary
labor camp standards that are already specified in the regulation. For
instance, Sec. 1910.142(d)(8), which requires that each toilet room
have natural or artificial light available at all hours, is not
necessary when Sec. 1910.142(g), which is included in the regulation
as discussed above, requires all toilet rooms to have at least one
ceiling or wall-type light fixture. However, some of the standards in
this section are more feasibly implemented in rental or public
accommodations, are more within the employer's ability to control, and
are key to maintaining a sanitary bathroom environment. Section
1910.142(d)(1), which states that ``[t]oilet facilities adequate for
the capacity of the camp shall be provided,'' would be sufficient to
require employers to ensure that the rental or public accommodation has
sufficient toilets for the number of workers housed, without specifying
a layout that may be impractical for rental or public accommodations.
Section 1910.142(d)(9), requiring that an adequate supply of toilet
paper be provided for each toilet, clearly serves a critical sanitary
purpose. Section 1910.142(d)(10), requiring toilet rooms to be kept in
a clean and sanitary condition and cleaned daily, also ensures that
toilet facilities are maintained in a manner adequate for worker health
and safety, and employers can ensure that this standard is followed in
almost all types of rental or public accommodations. Accordingly, the
Department has incorporated Sec. 1910.142(d)(1), (9), and (10) into
this final rule as applicable OSHA temporary labor camp standards.
However, the Department declines to include in this final rule all
of the other OSHA temporary labor camp standards recommended by the
workers' rights advocacy organization (Sec. 1910.142(b)(7)
(ventilation), (h) (refuse disposal), and (i) (kitchens, dining halls,
and feeding facilities)). First, Sec. 1910.142(b)(7) states that
``[a]ll living quarters shall be provided with windows the total of
which shall be not less than one-tenth of the floor area. At least one-
half of each window shall be so constructed that it can be opened for
purposes of ventilation.'' The commenter claimed that this standard
should be incorporated because rental and public accommodations may
otherwise not have sufficient ventilation to combat a damp indoor
environment, which can lead to serious health and safety issues such as
mold, cockroach infestations, and rodent infestations. Although the
Department certainly acknowledges the importance of ventilation in
housing, this standard may be too restrictive for rental and public
accommodations. In many instances, rental or public accommodations will
have mechanical ventilation through a heating, ventilation, and air
conditioning system or by other mechanical ventilation, which can
provide ventilation at least as adequate as the ventilation provided by
windows. An employer is unlikely to be able to require that hotels and
motels additionally provide for windows that open. The U.S.
Environmental Protection Agency has stated that mechanical ventilation
is preferable to ventilation through windows or other openings,\76\
making it even less appropriate to require windows that can be opened
when the rental or public facility has other adequate means of
ventilation. In addition, because windows (natural light) and
ventilation are addressed by the various model building, residential,
and maintenance codes published by the International Code Council,
which have been incorporated by the majority of States,\77\ State and
local codes are likely to have provisions addressing this standard.
Moreover, if a lack of adequate ventilation leads to damp conditions
that foster pest infestations or similar unhealthy conditions, the
rental or public accommodations would not meet the requirement of Sec.
1910.142(j), already included in this final rule, which states that
effective measures shall be taken to prevent infestation by and
harborage of animal or insect vectors or pests.
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\76\ See Mechanical Ventilation: Breathe Easy with Fresh Air in
the Home, https://www.energystar.gov/ia/new_homes/features/MechVent_062906.pdf (last visited Dec. 14, 2021).
\77\ See https://www.iccsafe.org/wp-content/uploads/Master-I-Code-Adoption-Chart-DEC-2021.pdf (last visited Dec. 14, 2021).
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Second, Sec. 1910.142(h)(1) requires fly- and rodent-tight
containers for the storage of garbage, and that at least one container
be provided within 100 feet of each ``family shelter.'' Section
1910.142(h)(2) requires that garbage containers be kept clean, and
Sec. 1910.142(h)(3) requires that garbage be
emptied when full, but at least twice a week. The workers' rights
advocacy organization argued that this standard should be included to
prevent rodents and insect infestation, stating that the inclusion of
Sec. 1910.142(j) regarding rodent and insect control is undercut by
the failure to incorporate this standard. While adequate facilities for
containing and disposing of garbage are important to maintaining a
healthy living environment, the Department does not believe that the
requirements of this standard are always practical in the context of
rental or public accommodation, where refuse collection for the worker
housing may be conducted very differently than for a temporary labor
camp but in a safe and sanitary manner. For example, where workers are
housed in several rooms in a hotel, trash may be collected from their
rooms along with trash from other rooms and placed into the hotel
dumpsters. Although there might not be at least one dumpster for each
worker shelter and the dumpster may not be within 100 feet of the
shelter, such a system could nevertheless adequately deal with the
garbage in a safe and sanitary manner. Moreover, the Department does
not agree that the inclusion of Sec. 1910.142(j) regarding rodent and
insect control is undercut by the failure to incorporate all elements
of this standard, particularly in the context of rental and public
accommodations. On the contrary, if accumulating garbage encourages
rodents or insects, the employer would not be ensuring that
``[e]ffective measures shall be taken to prevent infestation by and
harborage of animal or insect vectors or pests,'' and would be in
violation of Sec. 1910.142(j). However, upon further consideration,
the Department concludes that certain aspects of Sec. 1910.142(h),
specifically paragraphs (h)(2) and (3) requiring that garbage cans be
kept clean and be emptied regularly, address significant safety and
health concerns aside from the potential for rodent of insect
infestation, and that these standards are easily implemented even in
the context of hotels and motels, and are within an employer's control
to ensure compliance. Accordingly, the Department has included Sec.
1910.142(h)(2) and (3) in the regulation as two of the applicable OSHA
temporary labor camp standards that will apply in the absence of any
applicable local or State standard addressing these issues. Though the
Department did not include this standard in the January 2021 draft
final rule, upon further consideration of the rulemaking record and for
the reasons stated above, the Department has concluded it is
appropriate to do so here.
Finally, Sec. 1910.142(i) establishes certain standards for
central dining halls or multiple family feeding operations and food
handling facilities in temporary labor camps. The workers' rights
advocacy organization commented that this standard should be applicable
to public and rental accommodations because these accommodations often
do not have adequate cooking and kitchen facilities. Moreover, even
where rental or public accommodations have cooking and kitchen
facilities, the commenter alleged that the facilities often have
improper refrigerator temperatures, pest infestations, or contaminated
water. However, the Department does not agree that the inclusion of
Sec. 1910.142(i) as an applicable OSHA temporary labor camp standard
is necessary to ensure that workers have adequate and safe cooking
facilities when housed in rental or public accommodations. As explained
in the preamble discussion of 20 CFR 655.122(g) the Department has
addressed the issues that arise when kitchen and cooking facilities in
rental or public accommodations are insufficient. The inclusion of
Sec. 1910.142(i) would incorporate standards that were designed
primarily for larger centralized cooking and dining facilities, such as
a large labor camp where an employer has a centralized dining hall and
employs people to cook for the workers, and are therefore not
appropriate for many rental or public accommodation situations. For
example, even when a hotel room or suite has adequate kitchen or
cooking facilities, it would not be practical to require that there be
no opening from the kitchen into the living or sleeping quarters, as
would be required by Sec. 1910.142(i)(2). Moreover, several of the
potential harmful conditions mentioned by the commenter are either
sufficiently addressed in the context of rental or public
accommodations by other standards that were already included in the
proposed provisions, such as Sec. 1910.142(b)(9) (``[s]anitary
facilities shall be provided for storing and preparing food'' in rooms
where workers cook), (c) (``[a]n adequate and convenient water supply,
approved by the appropriate health authority, shall be provided in each
camp for drinking, cooking, bathing, and laundry purposes''), or (j)
(``[e]ffective measures shall be taken to prevent infestation by and
harborage of animal or insect vectors or pests''), or would be further
addressed by the additional incorporation of Sec. 1910.142(b)(10), as
discussed above.
The Department has made additional minor, nonsubstantive revisions
to 20 CFR 655.122(d)(1)(ii) to better describe the applicable OSHA
temporary labor camp standards.
With respect to employers' concerns regarding self-attestation
under Sec. 655.122(d)(6)(iii) that the rental or public accommodations
they furnish to workers comply with applicable local, State, or OSHA
standards,\78\ the Department notes that under both the statute and the
current regulations, employers are responsible for ensuring that if
they choose to use rental or public accommodations to meet their
housing obligations, those rental or public accommodations must meet
applicable standards, and for documenting to the CO that these
standards have been met during the application process. By requiring
employers to provide a signed and dated statement attesting that the
rental and/or public accommodations meet all applicable standards and
are sufficient to accommodate the number of workers requested,
specifically noting the number of rooms and beds to be provided for the
workers, along with any required inspection reports, the proposed
changes merely attempt to ensure that employers have considered the
applicable standards and verified that the rental or public
accommodations comply with the standards prior to workers' arrival.
However, the Department will not require that employers use a
particular self-inspection form in providing the required statement
because doing so would be impracticable. The applicable standards will
vary depending upon the locality or State in which the rental or public
accommodations are located.
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\78\ To the extent that commenters had concerns related to
inspections of rental or public housing by SWAs or other agencies,
it should be noted that those inspections are not required by these
regulations, but by State or local laws, with their own
requirements.
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Housing for Workers Covered by 20 CFR 655.200 Through 655.235
The Department is making clarifying edits to paragraph (d)(2) to
reflect that Sec. Sec. 655.230 and 655.235 establish the housing
requirements for workers employed in herding and range production of
livestock occupations under Sec. Sec. 655.200 through 655.235. The
Department has established separate requirements for these workers due
to the unique nature of the work performed. The Department is also
making a technical, conforming edit to paragraph (d)(2) to reflect that
Sec. 655.304
establishes the housing standards applicable to mobile housing for
workers engaged in itinerant animal shearing or custom combining, as
defined and specified under Sec. Sec. 655.300 through 655.304.
c. Paragraph (g), Meals
The Department did not propose any changes to the current
regulation at Sec. 655.122(g), which requires an employer to provide
each worker three meals a day or furnish free and convenient cooking
and kitchen facilities so that the worker can prepare meals, and
further states that where an employer provides the meals, the job offer
must state the charge, if any, to the worker for such meals. However,
due to the high incidence of violations of this provision, the
Department provided additional clarification of these requirements in
the preamble to the NPRM. The Department adopts that guidance in the
preamble to this final rule, with some additional clarifications in
response to comments received. In addition, as explained below, the
Department has revised Sec. 655.122(g) in this final rule to reiterate
certain requirements in Sec. 655.173 regarding meal charges.
Specifically, the NPRM clarified that kitchen facilities provided
in lieu of meals must include clean space for food preparation, working
cooking and refrigeration appliances, and dishwashing facilities.
Although no specific cooking appliances are required, the appliances
provided must be sufficient to allow workers to safely prepare three
meals per day, a requirement that is not met if the employer merely
provides an electric hot plate, a microwave, or an outdoor community
grill, or if workers are required to purchase cooking appliances or
accessories, such as portable burners, charcoal, propane, or lighter
fluid. The Department adopts that guidance here.
In addition, the Department noted that public accommodations such
as hotels or motels frequently do not have adequate cooking facilities
to satisfy an employer's obligations under this section, and, in those
instances, employers must provide three meals a day to workers to meet
their obligations under Sec. 655.122(g). The Department further
explained that, where workers are housed in rental or public
accommodations that provide meals, the provision of such meals may be
sufficient to satisfy part of the employer's obligations under Sec.
655.122(g). However, upon further consideration of the fact that such
meals are unlikely to be sufficient to satisfy the employer's
obligations under Sec. 655.122(g), the Department is further
clarifying this guidance. Some public accommodations may provide
complimentary breakfast (e.g., continental breakfast, buffet, etc.)
during a specific allotted time, such as 6 a.m. to 10 a.m. Such
complimentary breakfast will generally not satisfy one of the three
required daily meals since the daily start time for the workday will
frequently preclude the workers from having meaningful access to the
meal prior to departing the public accommodation for the place of
employment. In addition, and as noted below, the employer should
consider whether the meal is nutritionally and calorically adequate
given the work performed and the weather conditions. For example,
simply providing a muffin or cold cereal for breakfast would not be
sufficient to meet an employer's obligation to provide a nutritionally
adequate meal. Therefore, the employer may only consider such
complimentary breakfast to meet its obligation to provide meals when
the breakfast is readily accessible to the workers and is nutritionally
adequate.
The Department further explained in the NPRM that where an employer
elects to provide meals, the meals must be provided in a timely and
sanitary fashion. For example, prepared meals requiring refrigeration
that are delivered hours before an anticipated mealtime would not meet
the employer's meal obligation. In addition, providing access to third-
party vendors but not paying the vendors directly for the workers'
meals does not constitute compliance with the requirement to provide
meals or facilities, even if the employer provides a meal stipend.\79\
An employer who wishes to use a third-party vendor to provide meals may
instead arrange for a third-party vendor and pay for the workers' meals
or use a voucher or ticket system where the employer initially
purchases the meals and distributes vouchers or tickets to workers to
obtain the meals from the third-party vendor. For such arrangements,
the employer may deduct the corresponding allowable meal charge only if
previously disclosed and in compliance with the procedures described
under proposed Sec. 655.173. The Department further emphasized that an
employer may only deduct meal charges actually incurred up to the
amount permitted under Sec. 655.173. The Department adopts that
guidance here.
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\79\ See Wickstrum Harvesting, LLC, 2018-TLC-00018 (May 3, 2018)
(affirming an ETA determination denying temporary agricultural labor
certifications based on the employer's practice of providing workers
with a stipend for meals instead of providing meals or furnishing
free and convenient cooking facilities).
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As the Department did not propose any changes to this section, it
received comparatively few comments. Several workers' rights advocacy
organizations and one State government agency pointed out that
employers frequently provide insufficient meals or overcharge workers
for those meals. In response to these concerns, the State agency
suggested that the Department adopt additional standards to ensure that
meals provide adequate nutrition and caloric intake. One workers'
rights advocacy organization also suggested that the Department amend
Sec. 655.122(g) to include a statement that meal charges remain
subject to limitations imposed by the FLSA and to require employers to
retain records demonstrating the actual cost of providing meals. One
agent \80\ commented that employers should be permitted to provide a
meal stipend for workers to purchase their own meals, in lieu of
providing the meals themselves, particularly if that is the workers'
own preference.
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\80\ The Department received many comments from employers in the
reforestation industry noting that the remote, mobile nature of the
work makes it difficult to access kitchen facilities or caterers,
and that this was one reason why they felt it was inappropriate to
include reforestation in the H-2A program. Those comments were
reviewed earlier in this document, in the section discussing
reforestation.
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After further reviewing these comments, the Department agrees with
the workers' rights advocacy organization that the job order should
explicitly state the existing requirements in Sec. 655.173 that any
meal charges remain subject to limitations and recordkeeping
obligations imposed by the FLSA. Although these substantive
requirements are not new, as Sec. 655.173 already includes language
explaining that meal charges are subject to the FLSA and incorporates
the recordkeeping requirements at 29 CFR 516.27, the Department
concludes that explicitly reiterating these requirements in the job
order will better inform workers of the full terms and conditions of
any meal plan offered by the employer. Accordingly, this final rule
revises Sec. 655.122(g) to reiterate Sec. 655.173's requirement that
when a charge or deduction for the cost of meals would bring the
employee's wage below the minimum wage set by the FLSA at 29 U.S.C.
206, the charge or deduction must meet the requirements of the FLSA at
29 U.S.C. 203(m), including the recordkeeping requirements found at 29
CFR 516.27.
In addition, the Department agrees that where an employer chooses
to meet
its meal obligations by providing three meals per day to workers, those
meals must be calorically and nutritionally adequate. An employer's
determination as to the adequacy of the meals must be reasonable--
merely providing snacks such as chips or crackers, for example, would
not meet an employer's meal obligations. The Department has declined to
adopt any particular standard for nutritional balance and caloric
sufficiency at this time but encourages employers to consult the USDA,
National Institutes of Health, or other credible sources of nutrition
and caloric intake guidelines.
In addition, the Department believes that providing employers with
examples of established guidelines for ensuring that meals are
calorically and nutritionally adequate will offer employers greater
certainty when developing meal plans that such plans comply with the
requirements of Sec. 655.122(g). For example, the USDA's Dietary
Guidelines for Americans 2020-2025 provide estimated calorie needs per
day by age, sex, and physical activity level. They also suggest daily
and weekly amounts of food groups, subgroups, and components, which may
assist employers in the development of an adequate meal plan. Since the
provision of adequate meals is essential to workers' health, employers
must exercise care in preparing meal plans. The Department encourages
employers to consult workers, when practical, about their own
preferences for such plans. The Department further notes that sanctions
and remedies for an employer's failure to provide sufficient meals may
include, as appropriate, the recovery of back wages, the assessment of
civil money penalties, and where warranted, debarment and/or
revocation.
Finally, in response to the comments received regarding meal
stipends, the Department notes that, as stated above, the provision of
a meal stipend is not sufficient to meet an employer's meal
obligations. The meal requirement is intended to ensure that workers
receive adequate meals and contemplates the cost-effective preparation
of such meals by the worker in their own kitchen or by an employer
cooking or providing for a group. Workers who receive a stipend rather
than three meals per day and do not have kitchen and cooking facilities
will generally not be able to obtain equivalent meals, as they will not
be able to purchase their individual meals with similar cost-
effectiveness, exacerbating the problem of inadequate meals. This
problem is even more acute when workers are working or living in more
remote or rural locations, as is frequently the case, particularly
where they are without transportation to procure their own meals, or
where they do not have time during the workday to easily reach shops or
restaurants from their worksite.
The Department notes that the January 2021 draft final rule would
have left Sec. 655.122(g) unchanged. However, after further
consideration of the comments received, and for the reasons discussed
above, the Department has revised Sec. 655.122(g) to reiterate certain
requirements of Sec. 655.173 regarding meal charges.
d. Paragraph (h), Transportation; Daily Subsistence
i. Paragraph (h)(1), Transportation to Place of Employment
The Department's current regulation at Sec. 655.122(h)(1)
requires, in part, that if the employer has not previously advanced
transportation and subsistence costs to the worker or otherwise
provided such transportation or subsistence directly to the worker by
other means, and if the worker completes 50 percent of the work
contract period, the employer must reimburse the worker for the
reasonable transportation and subsistence costs incurred from the
``place from which the worker has come to work for the employer'' to
the place of employment.\81\ The Department currently interprets the
``place from which the worker has come to work for the employer'' to
mean the ``place of recruitment.'' This is frequently the worker's
home,\82\ but as H-2A workers are often referred and recruited
informally, the place of recruitment varies. Additionally, for a worker
who completes the work contract period or is terminated without cause,
and who does not have immediate subsequent H-2A employment, Sec.
655.122(h)(2) requires the employer to provide or pay for return
transportation and subsistence costs to the place of departure (i.e.,
recruitment).\83\
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\81\ Section 655.122(h)(1) further requires that, when it is the
prevailing practice among non-H-2A employers in the area to do so,
or when offered to H-2A workers, the employer must advance
transportation and subsistence costs to workers in corresponding
employment. Section 655.122(h)(1) also places employers on notice
that they may be subject to the FLSA, which operates independently
of the H-2A program and imposes independent requirements relating to
deductions from wages. See also Sec. 655.122(p). The Department did
not propose any changes to these requirements and this final rule
does not affect an FLSA-covered employer's obligations under the
FLSA.
\82\ See, e.g., 2009 H-2A NPRM, 74 FR 45906, 45915 (``[T]his
Proposed Rule requires the employer to pay the costs of
transportation and subsistence from the worker's home to and from
the place of employment.''); OFLC FAQ (Sept. 15, 2010) (subsistence
costs must be paid for costs incurred ``during the worker's inbound
trip from the point of recruitment to the employer's worksite . . .
and during the worker's outbound trip from the employer's worksite
to the worker's home or subsequent employment'').
\83\ Section 655.122(h)(2) further provides that, for those
workers who do have immediate subsequent H-2A employment, the
initial or subsequent employer must provide or cover the costs of
transportation and subsistence for the travel between the initial
and subsequent worksites. The obligation to provide or pay for such
costs remains with the initial H-2A employer if the subsequent H-2A
employer has not contractually agreed to provide or pay for such
travel. This section also places employers on notice that they are
not relieved of their obligation to provide or pay for return
transportation and subsistence if an H-2A worker is displaced as a
result of an employer's compliance with the recruitment period
described in Sec. 655.135(d). The Department did not propose any
changes to these requirements.
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The NPRM generally kept the requirements of Sec. 655.122(h)(1) and
(2) without change. However, the Department sought to promote the
efficiency of the H-2A program by establishing a consistent location
and method for calculating a worker's travel and subsistence costs from
and to the place of employment. Specifically, the Department proposed
to revise Sec. 655.122(h)(1) and (2) to require an employer to provide
or pay for inbound and return transportation and subsistence costs
(where otherwise required by the regulation) from and to the place from
which the worker departed to the employer's place of employment. For an
H-2A worker departing from a location outside of the United States who
must obtain a visa, the Department proposed that the place from which
the worker ``departed'' would mean the ``appropriate'' U.S. embassy or
consulate. The Department proposed to define the ``appropriate'' U.S.
embassy or consulate as the U.S. embassy or consulate that issued the
visa but sought comment on other definitions of ``appropriate'' U.S.
embassy or consulate, given the differences in visa processing
procedures among overseas posts. The Department further sought comment
on the place of ``departure'' for those H-2A workers who do not require
a visa to obtain H-2A status.\84\ See 8 CFR 212.1(a); 22 CFR 41.2. The
Department did not propose any changes to the place of departure (i.e.,
the place of recruitment) for corresponding workers and those H-2A
workers departing from locations inside the United States.
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\84\ Pursuant to DHS regulations, H-2A workers from certain
localities need not obtain a visa to be admitted to the United
States, including citizens of Bermuda and Canada, Bahamian
nationals, and British subjects residing in certain islands. See 8
CFR 212.1(a).
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The Department received significant comments on this proposal.
Employers,
associations, and their representatives largely supported the proposal,
stating that it would greatly simplify reimbursement calculations to be
able to use a single, consistent place of departure. Several employers
also commented that it is more logical to calculate transportation and
subsistence from the U.S. embassy or consulate that issues the worker's
visa, because only at that point is the worker's travel for the
employer's benefit, since workers who are not able to obtain a visa
cannot be employed by the H-2A employer. In addition, some employers
mentioned that the FLSA requires reimbursement of travel expenses (to
the extent that those travel expenses bring employees below the
applicable minimum wage) in the employee's first pay period, and stated
that the Department should require that the requisite travel
reimbursement be made at 50 percent of the work contract period, to
reduce the likelihood that a worker would take advantage of travel
reimbursement at an earlier point to come into the country and then
abandon the H-2A employment. Some employers also suggested that the
Department consider revising the regulation to allow the employer to
share the transportation costs with the employee, as the work in the
United States is mutually beneficial to both the employee and employer.
In contrast, workers, workers' rights advocacy organizations, and
other government agencies generally opposed this change, arguing that
the cost of workers' transportation from their home to/from the
embassy/consulate should be borne by the employer. They stated that
transferring this cost to workers would place an undue burden on
workers who frequently incur costs to obtain these job opportunities,
thus increasing their vulnerability to debt and trafficking. Several
commenters also noted that this change would disproportionately affect
indigenous workers in rural communities, who live far from any U.S.
embassy or consulate. Similarly, a couple of commenters pointed out
that this change would encourage employers to either hire workers from
countries with embassies that are comparatively close to the United
States, such as Mexico, or to require workers to obtain their visas
from U.S. consulates or embassies that are closer to the U.S. border.
Some workers' rights advocacy organizations and government entities
also commented that shifting this cost to workers will disadvantage and
thus adversely affect U.S. workers by artificially reducing the cost of
employing H-2A workers. A couple of commenters also stated that the
proposed change would cause confusion, as employers would still be
liable to reimburse workers for the cost of transportation from their
home to the U.S. embassy or consulate under the FLSA. However, one
workers' rights advocacy organization commented favorably on the
Department's clarification that the employer is required to reimburse
employees for all reasonable subsistence costs (including lodging) that
arise from the time at which the worker first arrives in the embassy/
consulate city, while workers are following the necessary procedures to
obtain their visas.
The Department did not receive any comments on how to define the
``appropriate'' consulate for those workers who must obtain a visa, nor
did it receive any comments on the place of departure for those H-2A
workers who need not obtain a visa, despite its requests for comments
on both points.
After carefully considering all of the comments received, the
Department has decided to retain the requirements of the 2010 H-2A
Final Rule requiring employers to provide, pay, or reimburse employees
for their travel and subsistence to and from the place of recruitment,
which in many cases will be the worker's home. See Sec. 655.122(h)(1),
(2). Both commenters who supported the proposed change and those who
opposed it recognized that the resulting cost allocation change would
be significant to both workers and employers. The Department agrees
with the several commenters that noted implementation of the proposed
changes in the NPRM would impose an undue burden on workers, many of
whom are already vulnerable to exploitation, and many of whom live in
remote rural areas and incur considerable expenses traveling to the
embassy/consulate city. The cost of the worker's inbound and outbound
travel and subsistence is the employer's obligation, as such travel is
primarily for the benefit and convenience of the employer, who would
not have sufficient workers to perform necessary work without this
travel due to the lack of willing and qualified local workers. The use
of an administratively consistent and efficient point of departure to
calculate the extent of such obligations, as proposed in the NPRM, did
not alter this analysis. The Department concludes that the proposed
changes in the NPRM would improperly shift to workers a significant
portion of this obligation that must instead be borne fully by the
employer.
The Department also believes that the Department and employers
should be able to ascertain a worker's place of recruitment without
significant difficulty; indeed, such a standard has now been in place,
with only a brief interruption, for more than 34 years. The recruitment
information needed for the current rule generally is not difficult to
obtain, and the employer has ready access to its own employees and to
the recruiter it hired to acquire this information. To the extent it is
difficult in any instance to ascertain the place of recruitment, the
Department believes that any such difficulty cannot outweigh the
significant burden that would be imposed on the worker by shifting the
costs of transportation and subsistence from the place of recruitment
to the embassy/consulate city. Moreover, the Department notes that the
Department of State (DOS) has, at least temporarily, waived consular
interviews for many nonimmigrant visa applicants, thus making it more
difficult to determine the appropriate embassy or consulate under the
proposal and thereby undermining the desired efficiencies of that
proposed standard.\85\ In addition, the Department believes it is
unlikely that any administrative efficiencies would be achieved through
the changes proposed in the NPRM, as the changes would constitute a
break with longstanding procedures that are well understood by
employers. And even if any such efficiencies might be achieved, the
Department believes that they would be minimal in comparison to the
additional financial burden shifted onto H-2A workers. In sum, the
Department has now determined that, as a matter of policy, any benefits
of the proposal set forth in the NPRM are outweighed by the substantial
costs imposed upon workers.
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\85\ See https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/.
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Finally, in response to comments regarding the timing of
reimbursement for inbound travel costs, the Department notes that the
current H-2A regulation requires that inbound transportation and daily
subsistence costs must be reimbursed when the worker has completed 50
percent of the work contract period, if reimbursement has not already
been made. This requirement remains unchanged. However, the Department
reiterates that the FLSA applies independently of the H-2A program's
requirements and thus the Department cannot relieve employers of their
obligations under the FLSA in this rulemaking. Where an employer has
obligations under multiple laws, the employer must comply with the more
worker-protective of those obligations. Accordingly, to the
extent that a worker's transportation and subsistence costs bring the
worker's pay below the applicable minimum wage during the first pay
period of employment, employers will remain responsible under the FLSA
for reimbursing workers to that extent during the first pay period.
However, relatedly, the Department does not agree with commenters who
stated that the proposed regulation would cause greater confusion for
employers regarding their FLSA obligations because even under the
current regulation, H-2A employers that are also subject to the FLSA
must comply with both laws, despite any differences in the amount or
timing of any required reimbursements.\86\
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\86\ The Department notes that the January 2021 draft final rule
would have accepted the NPRM proposal, with some modifications.
However, after further consideration of the comments received, and
for the reasons discussed above, the Department declines to adopt
the proposed changes.
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ii. Paragraph (h)(4), Employer-Provided Transportation
The Department proposed to clarify the minimum safety standards
required for employer-provided transportation in the H-2A program. The
Department's current regulation at 20 CFR 655.122(h)(4) provides that
employer-provided transportation must comply with applicable Federal,
State, or local laws and regulations and must provide, at a minimum,
the same transportation safety standards, driver licensure, and vehicle
insurance required under MSPA at 29 U.S.C. 1841, 29 CFR 500.105, and 29
CFR 500.120 through 500.128. However, sec. 1841 of MSPA provides that
employers must comply with transportation safety regulations
promulgated by the Secretary, which include not only 29 CFR 500.105,
providing transportation safety standards for vehicles other than
passenger automobiles and station wagons used to transport workers over
75 miles or in day-haul operations, but also 29 CFR 500.104, which
provides transportation safety standards applicable to passenger
automobiles or station wagons, or other vehicles, for trips of 75 miles
or less, not including day-haul operations. The proposed rule therefore
slightly modified the language of current 20 CFR 655.122(h)(4) by
adding a citation to 29 CFR 500.104, to clarify that either Sec.
500.104 or Sec. 500.105 is applicable, depending upon the type of
vehicle that is being used to transport workers, the distance of the
trip, and whether the vehicle is being used for a day-haul operation.
The Department also sought comments about additional provisions that
might help prevent driver fatigue and other unsafe driving conditions
in order to improve safety in the transportation of H-2A and
corresponding workers. As discussed below, this final rule adopts
paragraph (h)(4) from the NPRM with minor clarifying changes.
Several commenters indicated that they supported the clarification
that both Sec. Sec. 500.104 and 500.105 are applicable to employer-
provided transportation, depending on the type of vehicle being used to
transport workers. One commenter asked for additional clarification
that both standards would not apply simultaneously, but that only the
appropriate standard would apply depending on the type of vehicle used
to provide worker transportation, i.e., either Sec. 500.104 or Sec.
500.105. This commenter also requested that the language at 20 CFR
655.122(h)(3), which requires the employer to ``provide transportation
between housing provided or secured by the employer and the employer's
worksite at no cost to the worker'' (and to which the Department did
not propose any changes), be revised to state that employers are
required to provide transportation to and from the job site only to
those workers for whom the employer must provide housing. One commenter
stated that it would be better to have 29 CFR 500.105 apply to all
types of vehicles used to provide transportation to workers, rather
than having Sec. Sec. 500.104 and 500.105 apply depending upon the
type of vehicle used, indicating that this would be less confusing for
employers and more beneficial to workers, as Sec. 500.105 incorporates
additional safety standards. Another commenter opposed the application
of Sec. 500.104, stating that transportation safety is the concern of
the Federal Motor Carrier Safety Administration, and also expressing
concern that employers would be responsible for ensuring that these
safety standards are met by workers' personal vehicles, when workers
choose to use their own vehicles in lieu of employer-provided
transportation.
Some commenters also provided feedback on the Department's request
for comments about additional provisions that might help prevent driver
fatigue and other unsafe driving conditions. Although one commenter
indicated that driver fatigue was not a common or serious problem, most
commenters acknowledged that driver fatigue and associated accidents
can be a serious problem. However, several of these commenters stated
that education and outreach would be more helpful than additional
regulations on transportation safety. One commenter suggested that H-2A
drivers have rest period requirements similar to bus drivers and other
commercial driver's license drivers. Another commenter did not address
fatigue specifically but recommended that the regulation require
vehicles used to transport H-2A workers to be equipped with seatbelts,
as well as certain changes to prevent gaps in insurance coverage where
employers rely on workers' compensation policies to meet the
regulation's vehicle insurance requirements. Specifically, this
commenter recommended employers be required to identify during the
application process the types of transportation that will be provided
to the H-2A workers (such as inbound transportation from abroad to the
U.S. job site, daily transportation between the lodging and worksite,
transportation to allow the workers to perform personal errands,
transportation between different job sites in different States, and
outbound transportation at the conclusion of the contract period). In
addition, the commenter recommended that if the employer proposes to
satisfy the insurance requirements through a workers' compensation
policy, it must provide evidence that the policy covers all of the
kinds of transportation identified. If the employer cannot do so, the
commenter stated that the employer should be required to purchase
liability insurance or provide a liability bond in the amount specified
by the MSPA regulations.
After a careful review of the comments, the Department is adopting
the regulatory text as proposed, with two minor changes for
clarification, as suggested by commenters. The proposed regulatory text
stated that all employer-provided transportation ``must provide, at a
minimum, the same transportation safety standards, driver licensure,
and vehicle insurance as required under 29 U.S.C. 1841, 29 CFR 500.104
through 500.105, and 29 CFR 500.120 through 500.128.'' (Emphasis
added.) At least one commenter was concerned that this language could
be read as requiring both Sec. Sec. 500.104 and 500.105 to apply to
all vehicles, as discussed above. However, pursuant to Sec. 500.102,
Sec. 500.105 applies to ``[a]ny vehicle, other than a passenger
automobile or station wagon'' used for any trip of a distance greater
than 75 miles, or pursuant to a day-haul operation, or in any manner
not otherwise specified in Sec. 500.102(a), (b), or (c), while Sec.
500.104 applies to ``[a]ny passenger automobile or station wagon'' used
to transport workers. Therefore, to clarify that Sec. Sec. 500.104 and
500.105 do
not both apply simultaneously to all vehicles, but apply alternatively
depending upon the type of vehicle used, the distance of the trip, and
whether the vehicle is being used for a day-haul operation, this final
rule provides that all employer-provided transportation ``must provide,
at a minimum, the same transportation safety standards, driver
licensure, and vehicle insurance as required under 29 U.S.C. 1841, 29
CFR 500.104 or 500.105, and 29 CFR 500.120 through 500.128.'' (Emphasis
added.) The Department has also made a conforming change to 20 CFR
655.132(e)(2), with respect to the requirements for H-2ALCs.
In addition, the prior H-2A job order form (i.e., Form ETA-790A)
provided text fields in which employers must describe the employer's
transportation plans for workers: (a) to the place of employment from
the place from which the worker has come to work for the employer
(i.e., inbound); (b) from the place of employment to the place from
which the worker has come to work for the employer (i.e., outbound);
and (c) daily, between the employer-provided housing and the places
where work is performed. In response to a commenter's suggestion, the
Department has added a clarification to 20 CFR 655.122(h)(4) to reflect
the requirement that employers identify in the job order the mode(s) of
transportation (e.g., vans, buses) that will be used for daily
transportation and, if known, for inbound and outbound transportation.
The Department has also added language to this section of the
regulation to require an employer to identify in the job order the
mode(s) of transportation that will be used, if any and if known, for
other purposes, such as to allow the workers to run personal errands.
In addition to apprising workers of the transportation the employer
will provide, the Department concludes that this information will
improve compliance with applicable transportation safety standards,
including those related to vehicle insurance requirements.
In response to a commenter's concern that these standards would
apply to workers' personal vehicles when workers choose to use their
own vehicles in lieu of employer-provided transportation, the
Department notes that the regulation specifically states that all
employer-provided transportation must meet these transportation safety
standards. Sec. 655.122(h)(4). If the employer provides transportation
that meets all of the requirements, and one or more employees
voluntarily choose to use an employee's personal vehicle instead,
without being directed or requested to do so by the employer, the
employer would not be responsible for ensuring that the employee's
personal vehicle meets the transportation safety standards. Therefore,
no revision to the regulatory language is necessary to clarify this
issue. Similarly, the Department declines to adopt another commenter's
suggestion to modify the regulatory language at Sec. 655.122(h)(3) to
state that employers are only required to provide transportation to and
from the employer-provided housing and the job site to those workers
for whom the employer must provide housing and clarifies here that the
transportation to and from the employer-provided or secured housing and
job site need only be provided to workers who actually live in the
housing.
The Department has chosen not to adopt any additional regulatory
provisions to address driver fatigue or other safety conditions at this
time. Although one commenter suggested that the Department apply to H-
2A drivers rest period requirements similar to those applicable to bus
drivers and other commercial driver's license drivers, such
requirements do not adequately address the broad variety of
circumstances in which H-2A drivers transport workers, as many trips
are short in both duration and distance. Moreover, the Department did
not receive any specific suggestions or information concerning ways in
which a rest period requirement could be tailored to address the varied
circumstances in which H-2A drivers transport workers, and the public
has not had an opportunity to comment on a proposal tailored to H-2A
drivers. While the Department did not receive many comments on the
issue of driver fatigue, several commenters indicated that additional
education and outreach could help address driver fatigue, as discussed
above. Accordingly, the Department recently published a farmworker
transportation safety web page that includes tips and best practices
from the U.S. Department of Transportation's Federal Motor Carrier
Safety Administration related to driver fatigue, unsafe driving
practices, and driver distractions, available at https://www.dol.gov/agencies/whd/agriculture/transportation-safety, and will further
consider how it can address this issue.
Although the Department has carefully considered the suggestion
that seatbelt requirements should be specifically added to the
transportation safety standards, the Department notes that the issue is
generally addressed by applicable State and local laws and regulations.
The Department reminds employers that the current transportation safety
standards already require compliance with all applicable Federal,
State, or local laws and regulations, including applicable State or
local seatbelt requirements. Currently, every State except one (New
Hampshire) has an applicable seatbelt law, and the majority of States
require adults to wear seatbelts in all seats, subject to certain
exceptions. See Governors Highway Safety Association, State Laws by
Issue: Seat Belts (last visited Dec. 14, 2021), https://www.ghsa.org/state-laws/issues/seat%20belts. Accordingly, seatbelt regulations will
not be issued at this time. The Department also appreciates the
insightful analysis of the potential problems that can arise when
employers rely on workers' compensation policies to meet their
liability insurance obligations, and the possible regulatory revisions
that might address those problems. However, the Department did not
propose any changes to the regulation regarding the sufficiency of
workers' compensation to cover vehicle transportation in lieu of
vehicle insurance. Many parties who would be affected by any change in
these longstanding requirements therefore had no reason to anticipate
any such changes or to provide comment or propose alternatives.
Accordingly, the Department declines to adopt any regulatory changes to
these provisions in this rulemaking.
However, the Department reminds employers that workers'
compensation insurance provides specific coverage that varies from
State to State and may not cover all circumstances in which the workers
are transported. For instance, transportation for a non-work-related
purpose, such as a visit to the grocery store or laundromat, may not be
covered under the State policy. Additionally, State workers'
compensation coverage may not apply to travel outside the State, or in
some States, it may not apply to travel to and from work. If using a
State workers' compensation policy to meet the insurance requirements,
it is important to be aware of precisely what type of travel is covered
by the State policy and, if necessary, procure additional coverage
through a liability insurance policy or liability bond for
transportation not covered by the State law. An employer's failure to
maintain required insurance coverage for vehicles used to transport H-
2A workers or workers in corresponding employment may result in the
assessment of civil money penalties. A violation of the transportation
safety requirements may
also serve as the basis for debarment or for revocation of the
temporary agricultural labor certification.
e. Paragraph (i), Three-Fourths Guarantee
Although the Department did not propose, and in this final rule
does not adopt, any revisions to Sec. 655.122(i), a few employers and
employer representatives provided feedback regarding changes that they
would like to see incorporated into this section. Three commenters
stated that due to the variability inherent in agriculture based on
factors beyond the employer's control, which can make it difficult to
predict the amount of work that will need to be performed in a given
season, the three-fourths guarantee should be based on the 35-hour per
workweek required minimum rather than on the number of hours in a
workday as stated in the job order. Another commenter requested the
removal of the language in Sec. 655.122(i)(1)(iv) stating that the
worker cannot be required to work for more than the number of hours
specified in the job order for a workday, or on the worker's Sabbath or
on Federal holidays.
The Department has carefully considered these comments. However,
the Department did not propose any changes to this section in the NPRM
and did not ask for comments regarding any possible modifications of
the three-fourths guarantee. Accordingly, many affected parties did not
provide any comments on the topic of the three-fourths guarantee, and
the Department declines to make any significant changes to this
provision in the absence of input from the regulated community as a
whole.
f. Paragraph (j), Earning Records
The NPRM proposed minor amendments to this provision to clarify
current regulatory requirements at Sec. 655.122(j)(1), requiring an
employer to maintain a worker's home address, among other information.
The Department proposed that an employer maintain the worker's actual
permanent home address, which is usually in the worker's country of
origin. Having the worker's permanent addresses would permit the
Department to contact a worker in the case of an investigation or
litigation, or to distribute back wages. In its effort to enhance
enforcement and modernize the H-2A program, the Department also
requested comments on whether to require an employer to maintain
records of a worker's email address and phone number(s) in the worker's
home country, when available. As discussed below, the Department is
adopting the proposed changes to paragraph (j)(1), as well as a
requirement that the employer maintain records of a worker's email
address and phone number(s) in the worker's home country, when
available.
The Department received very few comments in response to its
proposal and request for comments on this section. Three commenters
opposed the proposal, expressing concern about an employer's ability to
verify the accuracy of the workers' permanent addresses, phone numbers,
or email addresses, with one commenter also noting that many H-2A
workers may consider that information to be private. Another commenter
noted that DHS should already have H-2A workers' permanent addresses
and suggested that the Department obtain that information from them.
Conversely, another commenter supported the Department's proposal,
commenting that it was a useful clarification and suggesting that an
employer maintain records of its H-2A workers' landlines if a cellphone
number is not available.
Other commenters requested that employers no longer be required to
maintain a record of hours offered (as opposed to merely hours worked),
as such information is difficult to track and not needed unless the
employer wishes to use it towards the three-fourths guarantee. These
comments are outside the scope of the Department's proposal and, as
such, were not considered at this time.
After consideration of the comments, the Department adopts
paragraph (j)(1) as proposed with two modifications. Specifically,
paragraph (j)(1) in this final rule requires employers to maintain
records of a worker's permanent home address and, when available, the
worker's permanent email address and phone number(s). As with the
worker's permanent home address, the worker's permanent email address
and phone number(s) will usually mean the worker's contact information,
usually in the worker's country of origin. Based on its enforcement
experience, the Department concludes that maintaining this information,
when available, will further enhance the efficiency of the Department's
enforcement efforts by providing multiple points of contact for workers
once the workers have left the employer's place of employment. And
while the Department acknowledges that employers may not have the
ability to verify the accuracy of all contact information provided by
their workers, which may occasionally result in the Department
attempting to contact a worker at an incorrect address, or that some
workers may decline to share this information with an employer, the
benefits of maintaining this information outweigh these potential
concerns. Finally, the Department notes that the January 2021 draft
final rule would have left the regulatory text unchanged from the 2010
H-2A Final Rule. However, upon further consideration of the comments
and in light of the substantial benefit that the collection of this
information would confer to the Department in its enforcement efforts,
the Department adopts the above-described changes in this final rule.
g. Paragraph (l), Rates of Pay
In the NPRM, the Department proposed to remove the statement ``[i]f
the worker is paid by the hour'' and replace it with ``[e]xcept for
occupations covered by Sec. Sec. 655.200 through 655.235.'' As
explained in the NPRM, this revision clarifies that the highest
applicable wage requirement applies, regardless of the unit of pay, for
all employers except those employing workers primarily engaged in the
herding or production of livestock on the range (i.e., occupations
covered by Sec. Sec. 655.200 through 655.235), which are the only
occupations subject to a different wage methodology. If an employer is
certified for a monthly salary because, for example, the prevailing
wage rate is a monthly rate, the requirement to pay the highest
applicable wage means that the employer must pay the hourly AEWR for
all hours worked in a given month, if paying the hourly AEWR for all
hours worked in that month would result in a higher wage than the
certified monthly salary. The Department did not receive comments on
this specific proposal, and therefore adopts the language as proposed.
Additionally, the Department proposed to make corresponding changes
to align this paragraph with the proposed changes to Sec. 655.120(a).
Those changes, as well as related comments, are discussed in more
detail in the preamble to Sec. 655.120(a). For the reasons stated in
that section, the Department adopts the language in the NPRM with minor
revisions to align with language regarding prevailing wages at Sec.
655.120(c). As discussed further in the preamble to Sec.
655.120(c)(1)(iii), the revised language in this paragraph recognizes
that there may be a prevailing wage for a distinct work task or tasks
within a crop or agricultural activity in certain situations.
The Department also received comments urging the Department to
revise productivity standards for workers paid by the piece. One of
these
commenters suggested the Department exercise more flexibility in its
review of productivity standards, while another commenter suggested a
more rigorous review. Because the Department did not propose changes to
productivity standards, these comments are beyond the scope of this
rulemaking.
h. Paragraph (n), Abandonment of Employment or Termination for Cause
The Department's current regulation at Sec. 655.122(n) states that
if a worker voluntarily abandons employment or is terminated for cause,
and the employer notifies the NPC (and DHS if the worker is an H-2A
worker), then the employer is not responsible for paying or providing
for the worker's subsequent transportation and subsistence expenses,
and that worker is not entitled to the three-fourths guarantee
described in Sec. 655.122(i). Under the Department's changes related
to Sec. 655.153, discussed below, timely notice to the NPC of such
abandonment or termination will also relieve the employer from its
otherwise applicable obligation to contact those U.S. workers it
employed in the previous year who abandoned or were terminated for
cause to solicit their return to the job. As discussed below, current
Sec. 655.153 does not require the employer to have provided the NPC
with such notice in order to be relieved of the duty to contact former
U.S. workers who abandoned the worksite or were dismissed for cause.
The Department also proposed to revise Sec. 655.122(n) to require an
employer to maintain records of the notification to the NPC detailed in
the same section, including records related to U.S. workers'
abandonment of employment or termination for cause during the previous
year, for not less than 3 years from the date of the temporary
agricultural labor certification. As discussed below, this final rule
adopts paragraph (n) from the NPRM with minor clarifying changes.
The Department received comments from employers, agents, and trade
associations addressing this section. Most of these comments suggested
that employers should not be required to notify the NPC of the
abandonment or termination of U.S. workers. These commenters stated
that, although it may be important to notify DHS that H-2A workers are
out-of-status, DOL does not similarly need to know the status of U.S.
workers, making it unfair to penalize employers for not making such a
report, particularly as it is not required under other programs.
Commenters also suggested that if the notification requirement for U.S.
workers was maintained in the final rule, employers should not be
required to maintain a record of that notification, as that additional
recordkeeping burden is an inefficient use of the employer's resources,
particularly as the employer will generally have other records of some
kind demonstrating that the workers abandoned their employment or were
terminated for cause. One commenter also asked the Department to
clarify that these notification and recordkeeping requirements apply
only to U.S. workers in corresponding employment and suggested that the
requirement be even further limited to full-time workers hired during
the recruitment period pursuant to the job order, due to the fluid and
migratory nature of the agricultural workforce. Another commenter
suggested that abandonment, which under the current regulation is
deemed to begin after a worker fails to report for work at the
regularly scheduled time for 5 consecutive working days without the
consent of the employer, instead be deemed to begin after a worker
fails to report for work at the regularly scheduled time for 3
consecutive working days without the consent of the employer, as
workers may need to be replaced quickly due to the perishable nature of
agricultural goods.
The Department has reviewed the comments suggesting that employers
not be required to notify the NPC of the abandonment or termination for
cause of U.S. workers. As an initial matter, the Department notes the
requirement to notify the NPC of such U.S. worker abandonment or
termination for cause is not new; the current regulations require
employers to provide such notice in order to be relieved of the
otherwise applicable contractual obligations relating to outbound
transportation and the three-fourths guarantee. The Department proposed
no changes to the notification requirements currently in place to
relieve employers of their transportation and three-fourths guarantee
contractual obligations and, accordingly, declines to adopt any changes
to those existing requirements as beyond the scope of this rulemaking.
As discussed further below, the Department has adopted its proposal
providing that such notification to the NPC is required to relieve the
employer from its obligation to contact these U.S. workers in the
subsequent year under Sec. 655.153. Accordingly, the Department has
revised proposed Sec. 655.122(n) in this final rule to clarify such
relief by explicitly referencing the employer's obligations under Sec.
655.153. Providing notification to the NPC of the abandonment or
termination of U.S. workers is not a penalty for the employer. On the
contrary, it is an opportunity for the employer to cancel its existing
obligations to pay for outbound travel and subsistence; ensure that the
employer has met the three-fourths guarantee; and to contact former
U.S. workers during recruitment, as discussed in reference to Sec.
655.153 below. Requiring notification to the NPC also ensures that the
Department is on notice that the employer considers these obligations
to be inapplicable to specific workers. This notification also helps
the employer establish that a worker abandoned the job or was
terminated for cause.
Similarly, the Department has also decided to retain the proposed
requirement that the employer must maintain a record of its
notification of abandonment or termination for cause to the NPC to be
relieved of their further contractual obligations to such U.S. workers.
Once the employer has provided the required notification to the NPC for
these workers, maintaining a record of such notifications with the
employer's other records relating to the workers' abandonment or
termination for cause will not substantially increase the employer's
recordkeeping burden. In contrast, maintaining these records could
greatly assist employers and the Department in establishing that the
employer is no longer required to provide outbound travel and
subsistence, the three-fourths guarantee, or recruitment contact for
such workers. In response to one commenter's request for clarification,
the Department confirms that the requirements for notification of
abandonment or termination for cause of U.S. workers, including the
recordkeeping requirement, are applicable only when the employer wishes
to be relieved of further contractual obligations toward those workers;
if the employer does not have any contractual obligation to provide
outbound travel and subsistence, pay the three-fourths guarantee, or
contact that worker for recruitment, the employer need not make such a
notification for that worker.
The Department has considered the comment suggesting that the
abandonment be deemed to have occurred after a worker fails to report
for work at the regularly scheduled time for 3 consecutive working days
without the consent of the employer, as opposed to 5 consecutive
working days, but has decided to retain the current regulatory
language. As the Department did not propose any changes to, or request
comments on, the length of time that a worker must fail to report to
work before the worker is deemed to have
abandoned their employment, the affected parties had no reason to
anticipate that the Department contemplated a change to this provision,
or to provide their input as to the appropriate length of time that
should elapse before an absence should be considered abandonment and
what factors should be considered. Therefore, the Department finds it
is not appropriate to adopt such a change at this time.
i. Paragraph (o), Contract Impossibility
The NPRM proposed to retain the contract impossibility provision at
paragraph (o) without change. Although the Department did not propose
changes to, or invite comments regarding, this paragraph, the
Department received comments from agents, trade associations, and a
State government agency that addressed the contract impossibility
provision. As discussed below, this provision remains unchanged from
the NPRM. All of the commenters supported inclusion of the contract
impossibility provision in the final rule. Three commenters suggested
that the Department modify the provision. One of the commenters
requested the Department add a specified timeframe for the CO's
determination, such as within 48 hours of receipt. The second commenter
requested the Department remove the employer's obligation to make
efforts to transfer H-2A workers to comparable work and retain the
obligation for U.S. workers only. The third commenter requested the
Department revise this provision to clarify that an employer's request
for a contract impossibility determination may involve some, but not
all, of its workers, depending on the nature of the Act of God
involved.
Revisions to paragraph (o) are beyond the scope of this rulemaking
and are therefore not being made. A revision to paragraph (o) is not
necessary, however, to address the commenter's concern about Acts of
God that reduce, but do not eliminate, an employer's need for temporary
workers. This provision involves permissible termination of the work
contract between the employer and individual workers in the event that
an Act of God renders the planned contract inviable. In the interest of
striking an appropriate balance between ensuring fairness to workers
and minimizing work contract disruptions, the Department does not
require that requests for relief under the contract impossibility
provision end the contracts with the entirety of an employer's
workforce. Rather, employers are encouraged to request reductions in
the quantity of workers needed as best fits their particular
circumstances.
j. Paragraph (p), Deductions
The Department's current regulation at Sec. 655.122(p) prohibits
unauthorized deductions. An employer must disclose any deductions not
required by law in the job offer. The Department noted, however, that
employers often fail to disclose deductions by improperly withholding
Federal Insurance Contributions Act (FICA) taxes. Alternatively,
employers sometimes properly disclose and withhold Federal income tax
at the worker's request but fail to remit the withholding to the proper
agencies. These actions, even if inadvertent, constitute violations of
the H-2A statute and regulations.
The Department did not propose any change to the regulation at
Sec. 655.122(p), but clarified in the preamble to the NPRM that
according to the IRS, an employer may not withhold FICA taxes from an
H-2A worker's paycheck, and that an employer generally is not required
to withhold Federal income tax from an H-2A worker's paycheck. In some
situations, employers may even be prohibited from withholding Federal
income tax under the H-2A program. The Department received no comments
in response to this section of the NPRM and has made no changes to the
regulation in this final rule.
k. Paragraph (q), Disclosure of Work Contract
The Department's current regulation at Sec. 655.122(q) requires an
employer to disclose a copy of the work contract between the employer
and the worker in a language understood by the worker as necessary or
reasonable. At a minimum, the work contract must contain all of the
provisions required by Sec. 655.122. In the absence of a separate,
written work contract entered into between the employer and the worker,
the required terms of the job order and the certified Application for
Temporary Employment Certification will be the work contract. The time
by which the work contract must be provided depends on whether the
worker is entering the United States to commence employment or is
already present in the United States; however, for most H-2A workers,
this must occur by the time the worker applies for a visa. The
Department proposed to retain the current disclosure requirements with
one minor revision to specify that the work contract must be disclosed
to those H-2A workers who do not require a visa to enter the United
States under 8 CFR 212.1(a)(1) not later than the time of an offer of
employment. This is the same point at which H-2A workers who are
already in the United States because they are moving between H-2A
employers receive the work contract. The Department did not receive any
comments on this proposed change and therefore retains the language as
proposed.
4. Section 655.123, Optional Pre-Filing Positive Recruitment of U.S.
Workers
In the NPRM, the Department proposed to add a new provision at
Sec. 655.123 to permit an employer to begin to conduct its positive
recruitment efforts earlier in the H-2A application process.\87\
Specifically, the Department proposed new standards and procedures
establishing a ``pre-filing'' positive recruitment option that would
allow an employer to either begin positive recruitment activities after
the SWA's acceptance of the job order for clearance under Sec. 655.121
and before submission of the Application for Temporary Employment
Certification to the NPC (i.e., pre-filing), or wait for the CO's NOA,
consistent with current practice. After considering the comments
received in response to the NPRM, and the subsequent impact of the
Department's decisions in the 2019 H-2A Recruitment Final Rule
(effective October 21, 2019) on the proposed optional pre-filing
positive recruitment provision, the Department has decided not to adopt
Sec. 655.123 in this final rule for the reasons discussed below.
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\87\ At the time the NPRM was published, an employer's positive
recruitment requirements included the activities set forth in
Sec. Sec. 655.151 through 655.154 of the 2010 H-2A Final Rule.
Subsequently, the Department rescinded Sec. Sec. 655.151 and
655.152 via the 2019 H-2A Recruitment Final Rule to modernize the
method(s) used to advertise H-2A job opportunities. 84 FR 49439.
---------------------------------------------------------------------------
The INA requires the Secretary to deny a temporary agricultural
labor certification if ``the employer has not made positive recruitment
efforts within a multi-state region of traditional or expected labor
supply where the Secretary finds that there are a significant number of
qualified United States workers who, if recruited, would be willing to
make themselves available for work at the time and place needed.'' See
8 U.S.C. 1188(b)(4). The requirement for employers to engage in
positive recruitment is in addition to, and occurs within the same time
period as, the circulation of the job order through the interstate
clearance system maintained by the SWAs. Id. Under the 2010 H-2A Final
Rule, employers begin to conduct required positive recruitment steps
after the CO reviews an H-2A application and issues a NOA authorizing
such recruitment of U.S. workers to commence.
As explained in the NPRM, the Department engaged in the 2019 H-2A
Recruitment Final Rule contemporaneously with this rulemaking to
modernize the method(s) used to advertise H-2A job opportunities for
compliance with the positive recruitment requirements of the 2010 H-2A
Final Rule. On September 20, 2019, shortly before the public comment
period for this NPRM closed on September 24, 2019, the Department
published the 2019 H-2A Recruitment Final Rule, which became effective
October 21, 2019. The 2019 H-2A Recruitment Final Rule rescinded
Sec. Sec. 655.151 and 655.152; in lieu of employer-placed print
advertisements in a newspaper of general circulation in the AIE, the
Department leverages its enhanced electronic job registry,
SeasonalJobs.dol.gov, to advertise H-2A job opportunities
electronically on the employer's behalf. This change in the recruitment
process reduced the employer's mandatory positive recruitment
activities, while increasing post-acceptance job order exposure through
the Department's electronic job registry. Moving forward, an employer's
mandatory positive recruitment activities include contacting former
U.S. workers, as required under Sec. 655.153, and following the CO's
instructions regarding additional positive recruitment activities for
the job opportunity, as applicable under Sec. 655.154. However, the
2019 H-2A Recruitment Final Rule did not change the existing timeframe
for an employer's positive recruitment activities. As a result,
effective October 21, 2019, the CO instructs employers in the NOA to
begin positive recruitment of U.S. workers under Sec. Sec. 655.153 and
655.154 and, contemporaneously, the CO posts the job opportunity on the
Department's electronic job registry.
Applying the changes implemented in the 2019 H-2A Recruitment Final
Rule to the optional pre-filing positive recruitment procedures
proposed in the NPRM at Sec. 655.123, an employer would have begun
positive recruitment activities contained in Sec. Sec. 655.153
(contact with former employees) and 655.154 (statutorily required
recruitment in a multi-State region of traditional or expected labor
supply, as designated by the Secretary), as applicable, within 7 days
of SWA job order acceptance. Then, no more than 50 calendar days before
its first date of need, the employer would have submitted an initial
recruitment report to the CO with its H-2A application. If the employer
complied with the procedures described in Sec. 655.123 and its H-2A
application met all requirements for certification at the time of
submission, the CO would have been able to issue the temporary labor
certification as the CO's first action after review. An employer
choosing not to begin positive recruitment early, following the
proposed procedures at Sec. 655.123, would have waited for the CO to
issue the NOA and then begun positive recruitment in compliance with
Sec. Sec. 655.153 and 655.154.
Proposed Sec. 655.123 would not have changed an employer's
obligation to consider and hire able, willing, and qualified U.S.
workers who will be available at the time and place needed to perform
the labor or services involved in the application. Likewise, the
proposed provision would not have changed the methods of contacting or
recruiting U.S. workers an employer must use before hiring H-2A
workers, or the duration of the recruitment period specified in Sec.
655.135(d). Rather, Sec. 655.123 would have allowed the employer to
start compliance with its positive recruitment obligations earlier in
the labor certification process and to engage in active recruitment of
U.S. workers over a longer period of time before certification. In
addition, Sec. 655.123 would have streamlined the certification
process for employers who demonstrated compliance with pre-filing
recruitment obligations and met all other conditions of certification
by permitting the CO to issue a certification determination as the
first action.
The Department received several comments from employers, employer
associations, agents, and trade associations that generally supported
the optional pre-filing positive recruitment concept proposed. They
viewed the option to begin positive recruitment activities earlier than
current procedures allow, and thereby potentially receive a temporary
labor certification as the CO's first action, as a way to reduce
paperwork and burdens associated with this step, increase efficiency,
and help prevent delays in workers' arrival, without undermining the
program's integrity. A few also believed that the Department's
certification determination would be better informed. A farm owner, for
example, opined that beginning the recruitment period earlier would
improve notice and access to these job opportunities for U.S. workers.
Commenters employed as farmworkers generally noted the importance of
notice and access to job opportunities, both in advance for planning
purposes and after the work may have begun.
Two workers' rights advocacy organizations opposed the adoption of
the proposed Sec. 655.123. One asserted the proposal would weaken the
requirement that employers first try to diligently recruit and hire
U.S. workers before hiring H-2A workers. The other expressed concern
that positive recruitment activities too far in advance (e.g., 50 days)
would waste employer resources and be ineffective because workers are
engaged in other work, in other places; if the employer's positive
recruitment activities occur earlier than the current regulatory
timeline, the intended audience of the recruitment will not ``[be]
around to hear it.'' The commenter urged the Department to retain the
``traditional systems of recruitment already in place.''
Within the proposed pre-filing recruitment provision, two agents, a
farm owner, and a workers' rights advocacy organization objected to the
proposed timing requirement for submission of the initial pre-filing
recruitment report. The agents considered the proposed timeframe
requirement artificial and unnecessary due to the requirements that
employers continue hiring throughout the recruitment period, update the
recruitment report as necessary, and retain a final recruitment report
with an account of all applicants and referrals received. In addition,
one saw the timeframe requirement as potentially creating delays, for
example, if the CO questioned discrepancies between the SWA referral
database and the employer's initial recruitment report. The farm owner
asserted that in ``most years'' there are no applicants or referrals.
The workers' rights advocacy organization objected on the grounds
insufficient recruitment would have taken place before the employer
submitted the initial pre-filing recruitment report to the CO.
At least one commenter found the combination of optional procedures
and mandatory obligations in proposed Sec. 655.123 confusing and
concerning. For example, the commenter feared employers might
incorrectly interpret paragraphs (d) and (e) of proposed Sec. 655.123,
relating to interviews and consideration and hiring of U.S. workers, as
applicable only to pre-filing recruitment, not to all H-2A program
recruitment. The commenter urged the Department to return the interview
requirements provision to Sec. 655.152(j); however, the Department
rescinded Sec. 655.152 in the 2019 H-2A Recruitment Final Rule.
Another commenter urged the Department to integrate regulatory changes
implemented through the 2019 H-2A Recruitment Final Rule when
considering comments under this rulemaking process.
The January 2021 draft final rule would have adopted the
Department's pre-filing recruitment proposal at Sec. 655.123, with
clarifying modifications. For example, in that draft final rule the
Department recognized the necessity of clarifying that the proposed
pre-filing recruitment was an optional process. In addition, in the
January 2021 draft final rule, the Department sought to clarify that
those employers who opted to use the process remained subject to the
program's recruitment obligations. After further considering the
comments received and the Department's changes to the recruitment
process in the 2019 H-2A Recruitment Final Rule, the Department has
decided not to adopt the pre-filing recruitment provision and will not
include proposed Sec. 655.123 in this final rule. However, the
Department has decided to retain but relocate to Sec. 655.135(c) the
mandatory recruitment obligation provisions proposed at paragraphs (d)
and (e) of Sec. 655.123. The Department recognizes the comments that
highlighted potential benefits of the proposed provision but is
sensitive to the potential confusion that could result from adoption of
the proposed provision. In light of the concerns raised, the Department
considers retaining the current system beneficial, as explained below.
Therefore, this final rule retains the positive recruitment process and
timing of the 2010 H-2A Final Rule, as modified by the 2019 H-2A
Recruitment Final Rule. As the Department is not adopting the proposed
optional pre-filing recruitment provision, this final rule does not
include minor revisions to other sections, like Sec. Sec. 655.144 and
655.150, that were included in the January 2021 draft final rule to
conform those sections to the optional pre-filing recruitment process.
Comments on both this proposal and the proposed recruitment period
changes at Sec. 655.135(d) expressed the importance of aligning the
timing of the employer's recruitment activities, such as contact with
former U.S. workers, with the time periods during which U.S. workers
are accustomed to such contact and most likely to be looking for
agricultural job opportunities (e.g., close to or after the start date
of work). In addition, employers may not be certain whether a potential
pool of workers the OFLC Administrator identified through the labor
supply State designation process proposed at Sec. 655.154(d), and the
related information posted regarding recruitment of that pool of
workers, applies to its Application for Temporary Employment
Certification. Furthermore, specific information about reaching the
workers (e.g., organization point of contact information) may change
between the OFLC Administrator's annual posting of traditional or
expected labor supply State determinations, which would hinder
employers' pre-filing recruitment efforts. In contrast, in a case-
specific NOA, the CO can provide current, accurate information
regarding additional positive recruitment required to recruit a pool of
workers relevant to the employer's job opportunity.
The Department believes that retaining the longstanding requirement
that employers contact former U.S. workers and conduct additional
positive recruitment activities, as applicable, following the CO's
instructions in the NOA, in combination with the Department's decision
to retain the requirement that employers continue to hire qualified
U.S. workers through 50 percent of the contract period (as discussed in
the preamble to Sec. 655.135(d) below) will more effectively ensure
U.S. worker access to H-2A job opportunities advertised through
positive recruitment activities than the optional pre-filing
recruitment proposed in the NPRM. This will also avoid the potential
for confusion among U.S. job seekers or employers cited above.
Specifically, the Department believes that this final rule will ensure
that: (1) recruitment of U.S. workers occurs for a sufficient period of
time before and after the first date of need; (2) active employer
recruitment occurs during a period of time that is most consistent with
the common job seeking practices of U.S. agricultural workers; and, (3)
where appropriate, employers receive specific instructions in the NOA
regarding the additional positive recruitment activity required and the
documentation to retain as evidence of compliance. As discussed above
and based on the Department's past experience administering the
existing positive recruitment procedures and requirements, the
Department believes these provisions effectively provide notice of
available job opportunities to U.S. workers.
As a result, through this final rule, the Department retains the
positive recruitment timing required in the 2010 H-2A Final Rule. An
employer will continue to file a job order no fewer than 60 calendar
days before the employer's first date of need, except where the
employer files the application under the emergency situations provision
at Sec. 655.134, and, upon SWA approval of the job order, intrastate
recruitment will begin. Recruitment through the active job order will
expand to interstate clearance with the CO's issuance of a NOA and
continue throughout the 50 percent period. When issuing the NOA, the CO
will post the job opportunity on the Department's electronic job
registry, which will broadcast the job offer information through the
Department's enhanced electronic job registry at SeasonalJobs.dol.gov
and ensure the job opportunity posting is continuously accessible to
prospective applicants, regardless of their location, until the
recruitment period at Sec. 655.135(d) ends. In addition, upon receipt
of the NOA, the employer will follow the CO's instructions and begin to
conduct positive recruitment activities by contacting former employees
to determine their willingness to accept the employer's job
opportunity, as discussed further in the preamble to Sec. 655.153
below, and conducting additional positive recruitment based on the OFLC
Administrator's determination that there are a significant number of
qualified U.S. workers who, if recruited, would be willing to make
themselves available for work at the time and place needed, as
discussed in the preamble to Sec. Sec. 655.143 and 655.154.
In addition to the comments addressed above, some commenters
offered opinions about matters that had been open for public notice and
comment through the 2019 H-2A Recruitment Final Rule; those comments
are outside the scope of this rulemaking. Other commenters expressed
general concerns about employers' methods of contact, interview
procedures, consideration of applicants or referrals, and documentation
retention, which are matters that are also outside the scope of the
optional pre-filing positive recruitment timing proposed in the NPRM.
5. Section 655.124, Withdrawal of a Job Order
The NPRM proposed to reorganize all withdrawal provisions so that,
for example, the procedure for withdrawing the Application for
Temporary Employment Certification and job order is located in the
section of the rule where an employer at that stage of the labor
certification process would look for such a provision. Accordingly, the
NPRM proposed revisions to move the job order withdrawal provisions at
Sec. 655.172(a) of the 2010 H-2A Final Rule to this new section, and
to conform with other proposed changes in the NPRM. The Department
received a few comments on this provision, none of which necessitated
substantive changes to the regulatory text. Therefore, as
discussed below, this provision remains unchanged from the NPRM.
In the 2010 H-2A Final Rule, all withdrawal provisions were found
at Sec. 655.172, in the ``Post-Certification'' section of the
regulations, regardless of the stage of processing to which they
applied. For example, at Sec. 655.172(a), the 2010 H-2A Final Rule
addressed the conditions under which an employer could withdraw a job
order before it submitted the related Application for Temporary
Employment Certification. To make the rule better organized and more
user-friendly, the Department proposed to reorganize the withdrawal
provisions, in part, by moving the content of Sec. 655.172(a) of the
2010 H-2A Final Rule to the ``Pre-Filing Procedures'' section of the
regulations, in a new proposed Sec. 655.124. This change would place
the job order withdrawal provision in a more logical location within
the regulations--in the ``Pre-Filing Procedures'' section with the job
order filing and review procedures, and before the ``Application for
Temporary Employment Certification Filing Procedures'' section that
begins at Sec. 655.130.
In addition to the proposal to relocate the job order withdrawal
provision to Sec. 655.124, the Department proposed minor revisions for
both clarity and consistency with other proposed changes. In proposed
Sec. 655.124(a), the Department continued the 2010 H-2A Final Rule's
reminder in Sec. 655.172(a) that ``withdrawal of a job order does not
nullify existing obligations to those workers recruited in connection
with the placement of a job order pursuant to this subpart'' with
greater simplicity. In proposed Sec. 655.124(b), consistent with the
proposal employers submit their job orders to the NPC, the Department
proposed to establish the NPC as the recipient of job order withdrawal
requests.
The Department received no comments objecting to the proposed
reorganization of the job order withdrawal provision from Sec.
655.172(a) to Sec. 655.124. However, an agent voiced concerns about
establishing the NPC as the recipient of job order withdrawal requests,
and that agent and a few other commenters remarked on an employer's
continuing obligations after the job order's withdrawal.
Regarding the Department's proposal to establish the NPC as the
recipient of job order withdrawal requests, the commenter argued that
the Department did not consider the costs and benefits of this
particular change, particularly that it would result in undue delays in
processing, and also that it lacks the authority to perform what the
commenter considers an inherently State function. The Department
respectfully disagrees. The costs and benefits of establishing the NPC
as the conduit through which job orders are received and transmitted to
the SWAs, including technological efficiencies gained in the processing
of job orders through the Department's electronic filing system, are
addressed in connection with Sec. 655.121. Those costs and benefits
encompass receipt and transmission of job order withdrawal requests. In
addition, the Department addressed similar concerns about possible
delays in the preamble to Sec. 655.121. The NPC will transmit an
employer's request for withdrawal of a job order within the FLAG system
to all SWAs actively recruiting under the job order. The SWAs that
received the job order in accordance with Sec. 655.121(e)(1) and, if
applicable, Sec. 655.121(f) will receive notice simultaneously and
without delay. Further, the SWAs, not the NPC, will initiate procedures
to close withdrawn job orders in the clearance system, as appropriate.
As with its transmission of the initial job order submission to the SWA
for review under Sec. 655.121(e)(1) and transmission of the approved
job order to other SWAs for clearance under Sec. 655.121(f), the
procedural role proposed in Sec. 655.124 does not exceed the NPC's
authority.
The same agent and a few other commenters objected to employers
being ``obligated to comply with the terms and conditions of employment
contained in the job order with respect to all workers recruited in
connection with that job order'' after withdrawal of the job order. Two
suggested an employer should be required to honor the terms of a job
order only if the employer has filed an Application for Temporary
Employment Certification with the NPC, with one citing emergency
circumstances beyond an employer's control that may prevent the
employer from continuing with the H-2A process. The other two
commenters objected to continuing obligations beyond withdrawal of the
job order, apparently without regard to when the job order is
withdrawn. However, these comments overstate the Department's proposed
changes and conflict with the underlying obligation that was continued
from Sec. 655.172 of the 2010 H-2A Final Rule.
Although the Department proposed clearer language to express an
employer's continuing obligations to a worker recruited in connection
with the job order it seeks to withdraw, the Department proposed no
change to the underlying requirement. If an employer successfully
recruits workers through SWA referrals, the employer is bound by the
terms and conditions of employment offered in the job order with
respect to those workers, including but not limited to wages, housing,
and transportation. See Sec. 653.501(c)(3)(viii). As stated in the
NPRM, and the 2010 H-2A Final Rule, these obligations attach at
recruitment and continue after withdrawal. As a result, these comments
recommend changes that are beyond the scope of this rulemaking.
C. Applications for Temporary Employment Certification Filing
Procedures
1. Section 655.130, Application Filing Requirements
a. Paragraphs (a), What To File; (c), Location and Method of Filing;
and (d), Original Signature
The NPRM proposed minor amendments to these sections to clarify the
minimum content requirements of a complete Application for Temporary
Employment Certification; modernize the application process by
requiring that employers, unless a specific exemption applies,
electronically submit the Application for Temporary Employment
Certification and all required supporting documentation; and permit the
use of electronic signatures by the employer and, if applicable, the
employer's authorized attorney, agent, or surety. The Department
received many comments on the proposed amendments to these sections,
none of which necessitated substantive changes to the regulatory text.
Therefore, as discussed below, this provision remains unchanged from
the NPRM.
The Department proposed language under paragraph (a) to clarify
that the content of a complete Application for Temporary Employment
Certification for submission to the Department must include a completed
Application for Temporary Employment Certification; all supporting
documentation and information required at the time of filing under
Sec. Sec. 655.131 through 655.135; and, unless a specific exemption
applies, a copy of Form ETA-790/790A, submitted as set forth in Sec.
655.121(a). The employer's valid FEIN, a valid place of business
(physical location) in the United States, and a means by which the
employer may be contacted for employment must be included in the
employer's submission.
As discussed in the NPRM, OFLC's FLAG system will assist employers
and their representatives in preparing complete submissions, as it will
not permit an employer to submit an Application for Temporary
Employment Certification until the employer
completes all required fields on the forms and uploads and saves to the
pending application an electronic copy of all documentation and
information required at the time of filing, including a copy of the job
order submitted in accordance with Sec. 655.121. For applications
permitted to be filed by mail pursuant to the procedures discussed
below, if an employer submits an application that is incomplete or
contains errors, the Department will issue a NOD identifying any
deficiencies, and the employer will be required to mail back a revised
application, thus requiring a timely back-and-forth to complete the
application.
The Department proposed language under paragraph (c) to require an
employer to submit the Application for Temporary Employment
Certification and all required supporting documentation using an
electronic method(s) designated by the OFLC Administrator. The
Department also proposed procedures that would permit employers lacking
adequate access to e-filing to file by mail and would permit employers
that are unable or limited in their ability to use or access the
electronic application due to a disability to request an accommodation
to allow them to access and file the application through other means.
Under proposed paragraph (c)(2), employers could request an
accommodation if they are limited in their ability to use, or are
unable to access, electronic forms or communication due to a
disability. Unless the employer requested an accommodation due to a
disability or inadequate access to e-filing, the NPC would return,
without review, any Application for Temporary Employment Certification
submitted using a method other than the electronic method(s) designated
by the OFLC Administrator. Finally, proposed paragraph (d) of this
section adopted the use of electronic signatures as a valid form of the
employer's original signature and, if applicable, the original
signature of the employer's authorized attorney, agent, or surety.
The Department received many comments expressing strong support for
the e-filing proposals as a way to improve the quality and accuracy of
documents the Department receives and reduce processing times and
paperwork burdens for employers, the Department, and SWAs. Some of
these commenters noted employers in rural and remote areas may not have
access to the means to file electronically, and they urged the
Department to retain in the final rule proposed paragraphs (c)(2) and
(3) of this section that permit filing by mail, provided the employer
submits, in writing, a request for reasonable accommodation. In
response to these comments, the Department agrees and has retained
these provisions in this final rule.
Commenters also generally supported the proposal to require
electronic signatures for all electronically filed applications, though
several commenters stated they would not support any provision
requiring the filer to electronically sign documents within the FLAG
system or prohibiting the filer from using copies of a ``wet''
signature. One commenter also expressed concern DHS might not accept
the electronic signatures required under this final rule.
This final rule does not require employers to sign documents within
the FLAG system, and it does not prohibit handwritten ``wet''
signatures, which filers electronically copy (scan) and upload into the
electronic filing system, while retaining the original in the
employer's document retention file. Under this provision, in addition
to accepting electronic (scanned) copies of ``wet'' signatures, the
OFLC Administrator will permit an employer, agent, or attorney to sign
or certify a document required under this subpart using a valid
electronic signature method. Consistent with the Government Paperwork
Elimination Act (GPEA) \88\ and Electronic Signatures in Global and
National Commerce Act (E-SIGN Act),\89\ the Department is adopting a
``technology neutral'' policy with respect to the requirements for
electronic signatures. That is, the employer, agent, or attorney can
apply a required electronic signature on a document using any available
technology that can meet the five signing requirements in OMB
guidelines: (1) the signer must use an acceptable electronic form of
signature; (2) the electronic form of signature must be executed or
adopted by the signer with the intent to sign the electronic record;
(3) the electronic form of signature must be attached to or associated
with the electronic record being signed; (4) there must be a means to
identify and authenticate a particular person as the signer; and (5)
there must be a means to preserve the integrity of the signed
record.\90\ The OFLC Administrator will accept electronic signatures
affixed to required documents using any available technology that meets
the five signing requirements above. DHS will accept electronic
signatures that have been accepted by the Department. As noted in the
NPRM, the GPEA specifically states electronic records and their related
electronic signatures are not to be denied legal effect, validity, or
enforceability merely because they are in electronic form, and
encourages Federal Government use of a range of electronic signature
alternatives. See secs. 1704 and 1707 of the GPEA. In addition, this
approach is consistent with the Department's conclusion in an earlier
rulemaking that these standards for accepting electronic signatures are
reasonable and accepted by Federal agencies.\91\
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\88\ Public Law 105-277, Title XVII (Secs. 1701-1710), 112 Stat.
2681-749 (Oct. 21, 1998), 44 U.S.C. 3504.
\89\ Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15
U.S.C. 7001 et seq.
\90\ Federal Chief Information Council, Use of Electronic
Signatures in Federal Organization Transactions, Version 1.0 (Jan.
25, 2013).
\91\ See Interim Final Rule, Labor Certification Process for
Temporary Employment in the Commonwealth of the Northern Mariana
Islands (CW-1 Workers), 84 FR 12380, 12393 (Apr. 1, 2019).
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Finally, one SWA that supported the e-filing proposal also urged
the Department to use the e-filing process to collect demographic
information, including information identifying areas with a high
concentration of certified workers and a detailed breakdown of the
number of workers certified by occupation. The commenter stated this
information is often requested of SWAs and enhanced collection of the
information would allow SWAs to better assess farm labor trends and
address regional employment needs. The Department agrees it is
important to collect H-2A program information and make it available to
the public. The Department will continue to collect detailed program
information, including information about work locations and
certification numbers by occupation, and publish this information on
the OFLC website and in periodic reports produced by the agency.
b. Paragraph (e), Scope of Applications
The NPRM proposed amendments to this section to clarify the
geographic scope of all Applications for Temporary Employment
Certification submitted by employers to the NPC and permit the filing
of only one Application for Temporary Employment Certification for
place(s) of employment covering the same geographic scope, period of
employment, and occupation or comparable work. The Department received
many comments on the proposed amendments to these sections. After
carefully considering these comments, the Department has decided to
largely adopt the regulatory text proposed in the NPRM, with several
revisions discussed below.
The Department proposed a new paragraph (e) to clarify that each
Application for Temporary Employment Certification must be limited to
places of employment within a single AIE, except where otherwise
permitted by the subpart (e.g., under Sec. 655.131(a)(2)), a master
application may include places of employment within two contiguous
States). This proposal addressed the overall lack of clarity in the
2010 H-2A Final Rule regarding whether an application could include
places of employment that span more than one AIE, and ambiguity created
by its revisions to Sec. 655.132(a), which specifically limited only
H-2ALC applications to places of employment within a single AIE. As
stated in the NPRM, limiting the geographic scope of H-2A program job
opportunities is an essential component of the labor market test
necessary to determine both the availability of U.S. workers for the
job opportunity and to ensure that U.S. workers in the local or
regional area have an opportunity to apply for those job opportunities
located within normal commuting distance of their permanent residences.
The Department noted that qualified U.S. workers may be discouraged
from applying for these job opportunities if required to perform work
at places of employment both within and outside the normal commuting
area or where assignment to places of employment outside normal
commuting distance was possible, despite the availability of closer
work. Furthermore, the Department stated that monitoring program
compliance becomes more difficult and the potential for violations
increases when workers employed under a single Application for
Temporary Employment Certification are dispersed across more than one
AIE.
After considering the comments received, the Department has decided
to adopt this provision, with two modifications. First, the Department
split this section into two parts; paragraph (e)(1) addresses the
geographic scope limitation, while paragraph (e)(2) maintains the
administrative limitation that an employer may file only one
Application for Temporary Employment Certification covering the same
AIE, period of employment, and occupation or comparable work to be
performed. Second, as discussed below, the Department modified
paragraph (e)(1) to address job opportunities that involve mobility
within the workday, after the workday begins.
Employers, agents, and trade associations generally objected to a
single AIE limit on fixed-site employer applications. Two commenters
viewed it as a limit on the size of farm that can be included on an
Application for Temporary Employment Certification, explaining that it
is not uncommon for a farm to consist of multiple locations (e.g.,
fields or packing facilities) that may be in close proximity or may be
located more broadly throughout a particular growing region of the
State. These commenters argued that incidental travel during the
regular paid workday in employer-provided vehicles, for example to pick
up or deliver crops, move workers between farm locations, etc., should
not be a factor in determining the geographic scope of an Application
for Temporary Employment Certification. In addition, one commenter
added that there should be no limit to distances on travel ``as the
first worksite location or the employer's pick-up location are clearly
defined and transportation between worksites is provided and paid by
the employer.'' Other commenters explained that restricting an H-2ALC
Application for Temporary Employment Certification to one AIE may be
justified for monitoring purposes, as such employers provide labor
services to various fixed-site growers in different areas according to
contracts, unlike a fixed-site grower, which has a known fixed location
where the Department can go to perform its monitoring process. One of
them objected to what it viewed as a significant change that would
apply a restriction reasonable for H-2ALCs but not for fixed-site
growers. The commenter urged the Department, without explanation, to
retain the single AIE restriction for H-2ALCs only.
Farmworkers and interested private citizens emphasized the
importance of local work for farmworkers and generally agreed with the
Department's concern that job opportunities with worksites outside the
local commuting area discourage U.S. applicants. These commenters
provided examples of the difficulties in getting to job opportunities
that are not local, whether due to challenges in arranging rides to
work or problems with work-life balance when the commute is too long. A
workers' rights advocacy organization explained that broad
determinations of AIE (i.e., ``normal commute'' to the job) are misused
to refuse housing--and related transportation to worksites--to U.S.
workers who reside within large AIE.\92\
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\92\ The Department also addressed these comments in connection
with the definition of AIE at Sec. 655.103(b).
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The Department sought to strike an appropriate balance between the
domestic labor market interests served by a single AIE geographic
limitation on an Application for Temporary Employment Certification and
the geographic flexibility growers need within a particular workday for
certain job opportunities (e.g., truck drivers who deliver crops to
market), which do not impact workers' commute time or distance. To that
end, in this final rule, the Department revised proposed paragraph
(e)(1) to clarify that where a job opportunity involves work at
multiple places of employment after the workday begins, the Application
for Temporary Employment Certification may include places of employment
outside a single AIE. First, this language ensures that any travel
outside the AIE occurs during the workday and thus is compensable
time.\93\ Second, the revised language limits such within-workday
mobility to only those job opportunities where it is necessary to
perform the duties specified in the Application for Temporary
Employment Certification. Last, the revised language specifies that
this expanded geographic area (i.e., places of employment beyond the
AIE after the workday begins) is permitted only if workers can
reasonably return to their residence or employer-provided housing
within the same workday. This parameter ensures that Applications for
Temporary Employment Certification, subject to paragraph (e), include
places of employment outside a single AIE only where there is no impact
to the reasonable, normal, and safe daily commute for all of the
employer's workers who reside within the AIE, whether at their own
residence or in employer-provided housing.
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\93\ As the INA does not define ``hours worked,'' the Department
has concluded that it is beneficial for workers, employers, agents,
and WHD to ground enforcement of INA program obligations in its
decades of experience enforcing the FLSA, which applies to H-2A
workers. See 2015 H-2B IFR, 80 FR 24042, 24062. The FLSA clarifies
that, unlike normal home-to-work travel, which need not be
compensated, time spent by an employee in travel as part of their
principal activity, such as travel from job site to job site during
the workday, must be counted as hours worked. See 29 CFR 785.38. The
Department also discusses the relationship between the INA and FLSA
hours worked principles in its response to public comments on 20 CFR
655.300.
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Accordingly, the additional language in paragraph (e)(1)
accommodates the types of job opportunities commenters described (e.g.,
truck drivers delivering their employer's crop to market or storage) as
unreasonably limited by a single AIE limitation, without negative
impact to workers or the underlying labor market test. This text is
consistent with the definitions of AIE and place of employment in Sec.
655.103(b), and with
the comments discussed in the preamble for those definitions.
Regarding paragraph (e)(2), as explained in the NPRM, this
provision prevents the Department from receiving and processing
duplicate applications and reduces duplicative efforts by preventing an
employer from filing a new application for the same job opportunity
while an appeal is pending. Paragraph (e)(2) also clarifies that filing
more than one Application for Temporary Employment Certification is
necessary only when an employer needs workers to perform full-time job
opportunities that do not involve the same occupation or comparable
work, or when workers perform the same full-time work but in a
different AIE or with different starting and ending dates (e.g.,
staggered start dates while ramping up). With respect to this
provision, the Department did not receive any comments; accordingly,
the Department is adopting this portion of the proposed regulatory text
into clause (e)(2) without further change.
c. Paragraph (f), Staggered Entry of H-2A Workers
Current regulations require an employer to file separate
Applications for Temporary Employment Certification for each sequential
start date of work for each group of job opportunities. The NPRM
proposed to add a new paragraph (f) at Sec. 655.130 to allow an
employer with an H-2A certification and an approved H-2A Petition to
bring H-2A workers into the United States at any time during the 120-
day period that follows the first date of need identified on the
certified Application for Temporary Employment Certification (i.e.,
staggered entry of H-2A workers for up to 120 days), under certain
conditions.
The Department received various comments on the proposed staggered
entry provision. Many commenters--including trade associations,
employers, agents, individual commenters, two State government
agencies, and a State elected official--expressed general support for
the Department's proposal to allow the staggered entry of H-2A workers
under a single Application for Temporary Employment Certification. The
Department also received multiple comments on this proposal from public
policy organizations, workers' rights advocacy organizations,
immigration advocacy organizations, trade associations, individual
commenters, a commenter from academia, two State government agencies,
and two U.S. Senators. These comments highlighted a need for
substantial revision of the proposal, both for clarification and to
better maintain program integrity. After considering these comments,
the Department has decided not to adopt the proposed staggered entry
provision in this final rule, for the reasons discussed below.
Commenters who expressed support for the staggered entry proposal
generally viewed it as a beneficial simplification of the H-2A program,
particularly where an employer has labor-need phases within a season or
growing cycle and currently files multiple, separate Applications for
Temporary Employment Certification for each sequential start date. A
few commenters explained, for example, that farmers rarely need their
entire workforce at the beginning of a season, but instead need a
steadily increasing number of workers as the harvest intensifies. An
agent asserted that there is no law or regulation that prohibits
staggered entry and urged the Department to retain this option in the
final rule to enable employers to account for gradual changes to their
labor needs through a single H-2A certification. Other commenters
viewed staggered entry as a practical method of accommodating
unpredictable factors, such as weather, that may change the exact
timing of an employer's labor need within the season. A State elected
official said staggered entry would help producers remain in compliance
with regulations, while adapting to changing needs and conditions. Some
commenters stated that the proposal would support efficient use of farm
resources, reduce costs and paperwork burdens, both at the border and
on the farm, and create efficiencies for the Department by reducing
application processing workload. Some commenters remarked that the
proposal would also benefit U.S. workers, who could apply for job
opportunities during the extended staggered entry recruitment period.
Some of the commenters that supported the proposal urged the
Department to provide additional flexibility for employers within the
proposed staggered entry provision. For instance, some employers, trade
associations, and agents urged the Department to add the word
``anticipated'' before ``latest date on which such workers will enter''
in paragraph (f), explaining employers may not know the exact dates
when filing requests because of the unpredictable influence of weather
on agricultural employers' labor needs. Another commenter urged the
Department to extend the staggered entry provision beyond the proposed
120 days to accommodate potential delays while recruiting workers
abroad, without suggesting an alternative end date. As the Department
is not adopting the proposed staggered entry provision in this final
rule, these suggestions are moot.
Among commenters opposed to the proposal, the primary concern was
that permitting staggered entry of H-2A workers at any time up to 120
days after the advertised date of need would undermine the labor market
test and negatively impact U.S. worker access to job opportunities. In
addition to concerns about a reduced recruitment period, these
commenters expressed concern that U.S. workers would lack clear,
accurate information about job opportunities, such as start dates and
when jobs are available. Two U.S. Senators stated the staggered entry
proposal would introduce instability into domestic and foreign labor
markets due to the lack of notification around reliable dates of
employment. Workers' rights advocacy organizations expressed concern
that U.S. workers would be disadvantaged because staggering would make
it more difficult for them to learn of and apply for job opportunities.
One of these commenters explained that having accurate, fixed
information on dates, locations, and numbers of workers is essential to
the labor market test, and staggered entry of H-2A workers would
invalidate labor market determinations because the key information on
which those determinations are based would change. One of the comment
submissions consolidated many comments from agricultural workers who
described the importance of knowing when seasonal work will begin and
expressed concern over the staggered entry provision. A State agency
expressed concern the proposal would complicate the recruitment efforts
of SWAs. The two U.S. Senators and three State government agencies
recognized the benefits of staggered entry for employers, but did not
see benefits for workers, other than, perhaps, for those workers who
could not commit to the full duration of employment but could commit to
a later start date. The Senators and one of the State agencies asserted
that extending the recruitment period for employers who chose to
stagger entry of H-2A workers would not sufficiently remedy the harm
resulting from the provision.
Another commenter urged the Department to continue to require a
separate application if an employer decides to bring in more H-2A
workers at a later date in a particular harvesting season, asserting
that this is an important safeguard for U.S. workers, as
it provides U.S. workers a new, distinct opportunity to apply when H-2A
recruitment activity for each subsequent start date commences,
particularly in situations where a U.S. worker is not aware of the
recruitment for the first start date of need, or is not available on
the employer's first date of need. This commenter questioned how a U.S.
worker would know whether the employer is still accepting applications
for the job opportunity. A commenter from academia suggested that, if
the Department were to adopt a staggered entry provision, then the
Department should consider imposing additional recruitment requirements
on employers, such as requiring employers to provide additional notice
to SWAs that coincides with each phase of staggered entry.
Some commenters who opposed the staggered entry provision expressed
concern about the potential for misuse. A workers' rights advocacy
organization asserted the staggered entry proposal would provide a
disincentive for employers to hire U.S. workers for the gradual start
of the season and would make it easier for employers to fire workers
(both U.S. and H-2A workers) who are not working up to productivity
requirements and replace them with new H-2A workers throughout the
staggering period. This commenter also envisioned employers
establishing early start dates as a method of thwarting the recruitment
of domestic workers. Another workers' rights advocacy organization
noted many agricultural workers ``alter their migration patterns
depending on the terms and conditions of employment'' and expressed
concern that the staggered entry option would allow employers to
``manipulate traditional labor and recruitment patterns through massive
applications covering multiple start dates and areas of employment''
and refuse employment to U.S. workers after the recruitment period
ends. One of the State government commenters expressed concern that
employers would use the ability to update the terms of employment to
bring in foreign workers according to evolving need, which it asserted
would violate MSPA's disclosure requirements and limit the ability of
U.S. workers to obtain agricultural jobs. Another State government
commenter expressed concern about the potential for the unlawful
movement of workers, thinking that staggered entry could increase the
difficulty in tracking and identifying such movement.
A few State agencies suggested that aspects of the proposed
provision could be revised for clarity and efficiency. Specifically,
one State agency noted the proposal did not set a limit on the number
of times an employer may notify the NPC of its intent to stagger entry
of H-2A workers and expressed the concern that an employer could submit
multiple notices identifying different staffing plans. The commenter
was concerned that multiple notices would result in increased
communication between the Department, the SWA, and field staff, and
would offset any efficiencies potentially gained by the staggered entry
provision. Another State agency expressed the concern that allowing
employers to opt into using the staggered entry up to 14 days after the
first date of need could complicate the process of obtaining an H-2A
visa, which could lead to unreimbursed travel and subsistence costs
between the workers' home and the U.S. embassy or consulate.
In addition, the Department received other comments indicating a
need for clarification of the proposal to permit staggered entry, if
the Department were to adopt such a provision in this final rule. For
instance, a few commenters sought confirmation that employers would not
be prohibited from filing multiple, separate applications for
sequential needs, rather than opting to use staggered entry. An
association mistakenly understood that the proposed language indicated
associations filing joint master applications would not be permitted to
stagger the entry of H-2A workers or would have less flexibility than
other joint employers. Another commenter mistakenly believed that the
staggered entry option could be used by livestock employers to have
workers arrive whenever needed; for example, to gather livestock in
advance of a major storm event, which may occur outside the employer's
seasonal need period or more than 120 days after its first date of
need. Two U.S. Senators expressed concern that the staggered entry
proposal could complicate compliance with the three-fourths guarantee
that dictates the minimum number of hours an employer must offer to
workers. Two State government agencies and a State elected official
thought the proposal would increase SWA burdens and complicate their
provision of services to workers, without an increase in funding, while
another State government agency and an individual commenter requested
guidance on how the staggered entry provision would affect completed
certified housing inspections. One of the commenters explained that in
some States, such as Oregon, SWA staff conduct site visits at the
beginning of each H-2A contract, in part, to provide information to
arriving workers about its services and workers' rights. The commenter
believed that if workers were to arrive on multiple start dates, the
SWA would be required to conduct multiple site visits per contract to
provide the same services, rather than one per contract. Further, the
commenter expressed concern that some arriving workers might not
receive information through a site visit, as the SWA may not be
informed when new workers arrive during the staggering period.
Commenters disagreed as to when the employer's obligation to hire
U.S. workers should end (i.e., how long the recruitment period under
Sec. 655.135(d)(2) should be) if the employer opted to use staggered
entry. Some agreed with the Department's proposal to require the
employer to hire U.S. workers through the employer's identified last
date for staggering, or 30 days after the first start date, whichever
is later. Some commenters clarified that they did not support attempts
to extend the proposed hiring period beyond those proposed parameters.
One argued that anything beyond 30 days after the last H-2A worker has
entered the United States is overregulation, asserting there is no
statutory prohibition against staggered entry. However, other
commenters generally objected to any reduction in the period during
which an employer is required to hire U.S. workers. A workers' rights
advocacy organization objected to not including any recruitment
obligations past the last date of staggered entry and two commenters
suggested the employer's hiring obligation should be tied to the last
entry of staggered workers. They urged the Department, for example, to
extend an employer's obligation to hire U.S. workers to 30 days after
the last H-2A foreign worker enters the United States or 30 days after
each sequential staggered start date. In addition, some commenters
expressed concern that the combination of proposals in this rulemaking,
including staggered entry, would undermine the legitimacy of the labor
market test, including the commenter from academia, who asserted the
Department failed to evaluate the impact of the provision on the labor
market test and urged the Department to evaluate the impact.
The Department also received a few comments addressing issues
beyond the scope of the staggered entry proposal. A trade association
and an employer involved in the apple production industry discussed the
impact of
weather on predicting end dates for employers, and suggested the
proposal should allow employers the flexibility to retain workers for
an additional period after the anticipated end date of the work order
without needing to file an extension. However, the staggered entry
proposal involved only start date variability. End date flexibility, as
the commenter noted, is already addressed through the extension
provision at Sec. 655.170. In addition, a workers' rights advocacy
organization suggested the Department should revise the regulations to
require a minimum training period in which workers may not be fired for
failing to comply with productivity standards, so that employers would
not terminate workers who do not initially meet productivity
requirements and replace them with staggered workers. However, this
suggestion is beyond the scope of this rulemaking.
The Department appreciates the many comments it received on the
proposed staggered entry provision. The Department recognizes that in
administering the H-2A program, it must strike an appropriate balance
between the need to provide U.S. workers notice of available
agricultural job opportunities, including clarity regarding the terms
and conditions offered, and the opportunity to apply for those job
opportunities, and, where insufficient U.S. workers are available to
satisfy an employer's temporary agricultural labor need, the need to
provide employers access to a pool of foreign labor through effective
administration of the H-2A program. The Department is sensitive to
comments indicating that the staggered entry provision proposed in the
NPRM did not successfully strike this balance and, if adopted without
revision, would have weakened the integrity of the labor market test
and effective compliance monitoring and enforcement of program
obligations, which was not the Department's intent. The Department
recognizes that concerns expressed by commenters would require
substantial revisions to address the significant limitations of the
staggered entry proposal set forth in the NPRM: to address confusing
aspects of the proposal; to ensure effective recruitment of U.S.
workers for job opportunities, particularly where multiple or mid-
season start dates are available; and to include parameters that
balance flexibility, efficiency, and notice to prospective applicants,
such as a single pre-certification opportunity to submit notice of
intent to stagger entry. The Department agrees that additional guidance
would be necessary to clarify how the provision would effectively
operate in practice and to clarify the standards for enforcing program
compliance.
The Department appreciates the concerns of workers' rights and
immigration advocacy organizations, U.S. Senators, agricultural
workers, and others that the proposed provision could make it more
difficult for U.S. workers to learn of available H-2A job
opportunities. For example, the Department is sensitive to commenters'
concerns regarding the information provided to U.S. workers during the
recruitment period and agrees that substantial revisions to the
proposed provision would be required to ensure that sufficient
information is collected and made available to prospective U.S. worker
applicants in the job order and other recruitment. The provision of
such information is critical so that U.S. workers may, for example,
apply for their preferred start date within the employer's staggered
entry plan. Additional disclosure requirements could better apprise
U.S. workers of available job opportunities and start date options,
which would, in turn, address concerns about agricultural workers'
ability to plan their migration routes.
The Department also is sensitive to the concerns of commenters,
including State agencies, that applications with multiple start dates
of need may raise administrative challenges that merit further
consideration and may increase, rather than reduce, administrative
burdens and complicate SWA recruitment efforts. For example,
applications with multiple start dates of need may require additional
communication between the CO and SWA related to modifications to job
orders that are active in the SWA clearance system and the Department's
electronic job registry, as necessary to ensure prospective applicants
receive clear information about available start dates. Additional
parameters on the number and timing of such modifications could
minimize the administrative impact of such modifications, while
simultaneously supporting clearer information disclosure to prospective
applicants.
Although the Department believes that a staggered entry provision
may provide beneficial employer flexibilities and program
administration efficiencies, the commenters correctly identified many
areas in which the proposal would need to be substantially changed in
order to properly balance employer and U.S. worker interests. At this
time, the Department declines to adopt the proposed staggered entry
provision, even with substantial revisions considered in the January
2021 draft final rule, as it may present significant drawbacks and
unintended consequences.\94\ If the Department determines it is
appropriate to propose a similar provision in the future that better
strikes a balance between the need to provide U.S. workers notice of
available agricultural job opportunities--including clarity regarding
the terms and conditions offered, and the opportunity to apply for
those job opportunities--and the need to provide employers access to a
pool of foreign labor through effective administration of the H-2A
program, it will do so via the notice and comment rulemaking process,
providing the public an opportunity to comment on any such proposal.
Accordingly, under this final rule, an employer who anticipates a need
for different groups of workers to begin work on sequential start dates
must continue to file separate Applications for Temporary Employment
Certification, each reflecting a distinct start date within the
employer's temporary or seasonal need for labor, and engage in
recruitment tied to each of those start dates, as provided in the 2010
H-2A Final Rule.
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\94\ In the January 2021 draft final rule, the Department
considered adopting the proposal with significant revisions to
address the many commenter concerns, such as administrative and
enforcement challenges, including revisions clarifying limits on the
number of notifications an employer might submit to the CO regarding
its staggered entry plan, revising the timeframe in which an
employer could submit its single notification of intent to stagger
entry, expanding the collection of information regarding the
employer's staggered entry plan and corresponding start dates
offered to prospective applicants, and bolstering disclosure of
information to farmworkers regarding start date options. However,
even with these changes, the Department believes the January 2021
draft final rule did not sufficiently address confusing aspects of
the proposal; ensure effective recruitment of U.S. workers for job
opportunities, particularly where multiple or mid-season start dates
are available; and balance flexibility, efficiency, and notice to
prospective applicants, such as a single pre-certification
opportunity to submit notice of intent to stagger entry.
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d. Paragraph (f), Information Dissemination
The Department proposed minor amendments to newly designated
paragraph (f) (formerly paragraph (e)) in the 2010 H-2A Final Rule and
proposed at paragraph (g) in the NPRM) to clarify that OFLC may provide
information received in the course of processing Applications for
Temporary Employment Certification, or in the course of conducting
program integrity measures, not only to the WHD, but to any other
Federal agency with authority
to enforce compliance with program requirements and combat fraud and
abuse. The Department received one comment on this provision, which did
not necessitate substantive changes to the regulatory text. Therefore,
this provision remains unchanged from the NPRM.
An agent objected to OFLC sharing information with ``any other
Federal agency'' if the information sharing could lead to adverse
action, as it could have a ``significant chilling effect on workers''
and could exceed the Department's statutory authority. The Department
appreciates these concerns; however the administration of the H-2A visa
program involves multiple agencies. Information sharing between the
agencies is used only as necessary to ensure the integrity of the
program. As explained in the 2010 H-2A Final Rule, in this regard, the
Department affirmatively shares information with DHS and other
agencies, within defined limits, when necessary for those agencies to
take action within their jurisdiction. For example, the Department may
refer certain discrimination complaints to DOJ, under Sec. 655.185, or
refer information related to debarred employers or to employers'
fraudulent or willful misrepresentations to DHS, under Sec. Sec.
655.182 and 655.184. Further, this provision aligns with current
language in WHD regulations at 29 CFR 501.2, which provides
``[i]nformation received in the course of processing applications,
program integrity measures, or enforcement actions may be shared
between OFLC and WHD or, where applicable to employer enforcement under
the H-2A program, other agencies as appropriate, including the
Department of State (DOS) and DHS.'' Therefore, under Sec. 655.130(g)
in this final rule, the Department will share information when it is
necessary and appropriate to do so. In all cases, the Department shares
only the specific information the agency requires and ensures that all
information sharing complies with the Privacy Act of 1974, Public Law
93-579, 88 Stat. 1896 (5 U.S.C. 552a et seq.) (Dec. 31, 1974).
2. Section 655.131, Agricultural Association and Joint Employer Filing
Requirements
The NPRM proposed amendments to this section to: (1) retain current
requirements governing the submission of Applications for Temporary
Employment Certification by an agricultural association on behalf of
its employer-members; and (2) codify current standards and procedures
governing the submission of Applications for Temporary Employment
Certification by two or more individual employers seeking to jointly
employ workers to perform agricultural labor or services. The
Department received many comments on the proposed amendments to this
section. After carefully considering these comments, the Department has
decided to largely adopt the regulatory text proposed in the NPRM, with
several revisions, as discussed below.
a. Paragraph (a), Agricultural Association Filing Requirements
The Department proposed minor revisions to paragraph (a) to clarify
the application filing procedures for agricultural associations and to
conform with other proposed changes in the NPRM, such as the definition
of master application in Sec. 655.103 and the modernization provisions
that revise the procedures for issuance of temporary agricultural labor
certifications in Sec. 655.162. The Department also proposed to
reorganize the procedural provisions applicable to agricultural
associations that file Applications for Temporary Employment
Certification so that paragraph (a)(1) addresses the requirement for an
agricultural association to identify the nature of its role in each
application it files and retain documentation of its role. Paragraph
(a)(2) addresses master application filings; paragraph (a)(3) addresses
employer signatures on applications that an agricultural association
files; and paragraph (a)(4) addresses certification issuance. As
discussed below, the Department is adopting paragraph (a) without
change from the NPRM.
An association expressed concern about the interaction of the
proposed staggered entry provision at Sec. 655.130(f) and master
application filing procedures at Sec. 655.131(a)(2), thinking that
agricultural associations that file master applications could not
stagger entry of H-2A workers or would have less flexibility than other
joint employers. As the Department has decided not to adopt the
proposed staggered entry provision, for the reasons discussed in the
preamble to Sec. 655.130(f), the concern is moot.
A workers' rights advocacy organization supported the Department's
proposal to add explicit language in paragraph (a)(3) regarding
signature requirements in applications filed by agricultural
associations, while a State agency expressed support for electronic
signatures, including those required under this section. Other
commenters raised liability concerns related to master applications and
joint employment, rather than the procedural provisions in paragraph
(a); these comments are discussed in relation to the definitions at
Sec. 655.103(b).
Accordingly, this final rule adopts paragraph (a) without change
and, as such, continues to permit an agricultural association to file
an application as a sole employer, joint employer, or agent, as
contemplated in the INA. See 8 U.S.C. 1188(c)(3)(B)(iv) and (d).
b. Paragraph (b), Joint Employer Filing Requirements
The Department proposed a new paragraph (b) to codify its
longstanding practice of permitting two or more individual employers to
file a single Application for Temporary Employment Certification as
joint employers. These filing requirements would apply when two or more
individual employers operating in the same AIE have a shared need for
workers to perform the same agricultural labor or services during the
same period of employment, but each employer cannot guarantee full-time
employment for the workers during each workweek. This provision is
intended to allow smaller employers that do not have full-time work for
an H-2A worker and lack access to an employer association to use the H-
2A program. In these situations, small employers have established an
arrangement to share or interchange the services of the workers to
provide full-time employment during each workweek and guarantee all the
terms and conditions of employment under the job order or work
contract.
The application filing procedures for two or more employers under
proposed Sec. 655.131(b) are different from the procedures for a
master application filed by an agricultural association as a joint
employer in several ways. First, unlike the master application
provision, the employers filing a single Application for Temporary
Employment Certification under proposed paragraph (b) would not be
joint employers with an agricultural association of which they may be
employer-members. Thus, if an agricultural association assists one or
more of its employer-members in filing an Application for Temporary
Employment Certification under proposed paragraph (b), the agricultural
association would be filing as an agent for its employer-members.
Second, all employers filing an Application for Temporary Employment
Certification under proposed paragraph (b) must have the same first
date of need and require the agricultural labor or services of the
workers requested during the same period of employment in order to
offer
and provide full-time employment during each workweek. In contrast, in
a master application filed by an agricultural association, each
employer-member would offer and provide full-time employment to a
distinct number of workers during a period of employment that may have
first dates of need differing by up to 14 calendar days. Unlike a
master application where the places of employment for the employer-
members could cover multiple AIEs within no more than two contiguous
States, the employers filing a single application as joint employers
under proposed paragraph (b) would have to identify places of
employment within a single AIE. Finally, under proposed paragraph (b)
all joint employers would be jointly and severally liable for
violations by any joint employer for the entire period of need. As
previously explained, and codified in Sec. 655.103, while an
agricultural association that files a master application is always an
employer, a grower that is an employer-member of the agricultural
association that filed a master application is only in joint employment
with the agricultural association when it is employing the pertinent H-
2A workers.
Under proposed paragraph (b)(1)(i), any one of the employers could
file the Application for Temporary Employment Certification with the
NPC, so long as the names, addresses, and the crops and agricultural
labor or services to be performed are identified for each employer
seeking to jointly employ the workers. Consistent with longstanding
practice, any applications filed by two or more employers would
continue to be limited to places of employment within a single AIE
covering the same occupation or comparable work during the same period
of employment for all joint employers, as required by Sec. 655.130(e).
As the NPRM noted, the proposal would typically allow neighboring
farmers with similar needs to use the program, though they do not, by
themselves, have a need for a full-time worker under Sec. 655.135(f).
Per proposed paragraph (b)(1)(ii), each joint employer would be
required to employ each H-2A worker the equivalent of at least 1
workday (i.e., a 7-hour day) each workweek. This proposed requirement
aimed to fulfill the purpose of the filing model, which is to allow
smaller employers in the same area and in need of part-time workers
performing the same work under the job order to join together on a
single application, making the H-2A program accessible to these
employers. The proposed requirement also provided an additional
limiting principle intended to ensure that individual employers with
full-time needs would use the established application process for
individual employers, that association members would use the statutory
process provided for associations, and that joint applications would be
restricted to small employers with a simultaneous need for workers that
cannot support the full-time employment of an H-2A worker. In this way,
the Department could carry out the statutory requirements applicable to
individual employers and to associations. The Department invited
comments on the 1-workday requirement in the NPRM, and also sought
comments on how to best effectuate the purposes of joint employer
applications.
The NPRM additionally noted that each employer seeking to employ
the workers jointly under the Application for Temporary Employment
Certification would have to comply with all the assurances, guarantees,
and other requirements contained in this subpart and in part 653,
subpart F. Therefore, proposed Sec. 655.131(b)(1)(iii) would require
each joint employer to sign and date the Application for Temporary
Employment Certification. By signing the application, each joint
employer would attest to the conditions of employment required of an
employer participating in the H-2A program and would assume full
responsibility for the accuracy of the representations made in the
application and job order, and for all of the assurances, guarantees,
and requirements of an employer in the H-2A program. The Department
noted in the NPRM that, in the event of a violation, all of the
employers named in the Application for Temporary Employment
Certification are liable for the violation and may be held jointly or
individually responsible for remedying the violation(s) and for
attendant penalties.
Finally, the NPRM observed that where the CO grants temporary
agricultural labor certification to joint employers, proposed Sec.
655.131(b)(2) would provide that the joint employer that filed the
Application for Temporary Employment Certification would receive the
Final Determination correspondence on behalf of the other joint
employers in accordance with the procedures proposed in Sec. 655.162.
As discussed below, the Department is adopting paragraph (b) from the
NPRM with some changes.
The Department received many comments related to its proposal to
include Sec. 655.131(b) in its implementing regulations. The employer
comments related to Sec. 655.131(b) all supported the proposal to
permit joint employer applications. However, those employers that
commented on Sec. 655.131(b) uniformly criticized the provision's
requirement that all joint employers employ the pertinent H-2A workers
at least 1 day per workweek. At least four commenters noted that the
proposal would unduly complicate joint employer arrangements in which
sponsored H-2A workers move from full-time employment at one
applicant's farm to full-time employment at another applicant's farm
based on growing conditions at the respective farms. Various commenters
noted that the proposal would preclude joint applications by growers
that need distinct numbers of H-2A workers by compelling a grower that
has a lesser need to employ all the workers needed by a grower with a
greater need. Some commenters asserted that the requirement would
unduly reduce the ``flexibility'' of farms that wish to use the joint
employer application process. Still other commenters asserted that the
proposal is unduly restrictive, unworkable, or serves no discernible
policy objective.
Four commenters each offered what would amount to a ``less
stringent restriction'' than the 1-day-per-week requirement. Three of
the commenters specifically suggested the Department might use other
``metrics[,] includ[ing] percentage of hours or days per contract,'' in
lieu of the 1-day-per-week requirement. Another commenter similarly
suggested that the Department might ``establish a `minimum' amount of
time'' that each joint employer must employ the pertinent H-2A workers
during the entire period of employment.
A workers' rights advocacy organization supported holding all
entities that file a joint employer application under Sec. 655.131(b)
accountable for any violation committed by one. It suggested that the
Department provide greater clarity that all named employers are
accountable as joint employers for any violations committed by one
during the period of employment listed on the job order, ``not just the
dates in which H-2A workers completed work owned or operated by a
particular employer.'' As explained above, the liability of named joint
employers is not dependent on the dates on which H-2A workers complete
work for a particular named joint employer.
The Department declines to adopt some commenters' recommendation to
place no limits on the number of hours each joint employer filing an
application under Sec. 655.131(b) may employ H-2A workers sponsored
under such an application. The purpose of the
Department's proposal in Sec. 655.131(b), which it is electing to
retain in this final rule, is to permit small growers that have a need
for H-2A workers but cannot guarantee full-time employment on their own
to join together to meet the full-time-job requirement for hiring H-2A
workers. Placing no limits on the number of hours each joint employer
filing an application under Sec. 655.131(b) may employ H-2A workers
sponsored under such an application would undercut this purpose by
permitting employers that, individually, can guarantee full-time
employment to use Sec. 655.131(b).
Some commenters specifically requested that the Department modify
Sec. 655.131(b) to expressly allow use of the provision by joint
employers that would provide sequential full-time employment to H-2A
workers. As the Department noted in the NPRM, individual employers that
can provide full-time employment to H-2A workers can file an individual
application under Sec. 655.130 for the individual employer's period of
need. In such a case, a joint employment relationship is unnecessary
because the employer may file an application for the period of time for
which full-time employment is offered. The Department accordingly has
concluded that it is appropriate to limit applications under Sec.
655.131(b) to those instances in which no co-applicant can provide
full-time employment to H-2A workers. Therefore, the Department
declines to adopt the commenters' recommendation to place no limits on
the number of hours each joint employer filing an application under
Sec. 655.131(b) may employ H-2A workers sponsored under such an
application.
While the Department has decided to place numerical limits on the
number of hours H-2A workers under a Sec. 655.131(b) application can
work for a joint employer, it has closely considered many commenters'
suggestion that the proposed 1 day per workweek requirement unduly
restricts employer flexibility. It has accordingly sought to determine
if there is another less rigid metric that would provide employers
greater flexibility and at the same time preserve Sec. 655.131(b)'s
purpose to accommodate small growers that cannot alone guarantee full-
time employment but wish to use the program. With that dual purpose in
mind, the Department has modified Sec. 655.131(b), as proposed in the
NPRM, to eliminate the requirement that all H-2A workers must work for
each employer for at least 7 hours in each workweek. This final rule
allows employers to schedule H-2A workers at their discretion, so long
as no single joint employer obtains more than a total of 34 hours of
work in any workweek from all of the H-2A employees it employs. This
provision provides maximum flexibility to joint employers in assigning
H-2A employees under the rule, while helping to ensure that only
employers that cannot provide full-time employment, defined in Sec.
655.135(f) as 35 hours a week, will file under this provision. By
limiting the total number of hours of employment of all H-2A workers to
no more than 34 hours of work per week for each joint employer, the
rule limits the use of this provision to those employers that have a
need for part-time work. Employers with a need for 35 hours of work a
week or more will be able to guarantee full-time work and will be able
to file under the standard process. Those employers that are able to
guarantee full-time work will have no need to use this provision,
which, as noted above, is designed for applicants that are unable to
provide full-time work, and without this provision would be ineligible
for the H-2A program.
Finally, the Department notes that the January 2021 draft final
rule would have adopted Sec. 655.131(b) as proposed in the NPRM, with
the addition of a new Sec. 655.131(b)(1)(ii) and (iii), which would
have provided that no employer would employ any H-2A worker for fewer
than 7 hours in a pay period and more than 28 hours in any workweek.
The January 2021 draft final rule also would have adopted a new Sec.
655.131(b)(1)(iv), which would have provided that the employer,
together with its co-applicants, would employ each H-2A worker for at
least 70 hours in each 2-week pay period. However, those provisions
would have added unnecessary restrictions on the scheduling of H-2A
workers while failing to limit joint employment under this provision to
employers with a part-time need. Accordingly, and for the reasons
discussed above, those provisions were not adopted in this final rule.
3. Section 655.132, H-2A Labor Contractor Filing Requirements; and 29
CFR 501.9, Enforcement of Surety Bond
The NPRM proposed amendments to these sections to clarify and
enhance requirements governing the submission of Applications for
Temporary Employment Certification by employers operating as H-2ALCs,
including substantive revisions to the standards by which these
employers must demonstrate proof of their ability to discharge their
financial obligations in the form of a surety bond. The Department
received many comments on the proposed amendments to this section.
After carefully considering these comments, the Department has decided
to largely adopt the regulatory text proposed in the NPRM, with several
revisions, as discussed below.
Because the Department added a provision at Sec. 655.130(e) to
address the geographic scope of Applications for Temporary Employment
Certification, generally, language addressing that topic was no longer
necessary in Sec. 655.132 and retaining it in this section could
create confusion. An H-2ALC application and job order continue to be
limited to places of employment within a single AIE, except as
otherwise permitted by this subpart (e.g., Sec. 655.215(b)(1)).
However, by moving the language to Sec. 655.130(e), the Department's
proposal clarified that this same limitation applies to all
applications and job orders, absent an explicit exception in this
subpart. As a result, the Department proposed to eliminate paragraph
(a) and redesignate the contents of paragraph (b) of the 2010 H-2A
Final Rule, which list the enhanced documentation requirements for H-
2ALCs, as paragraphs (a) through (e).
As explained in the NPRM, the Department has determined the
enhanced documentation requirements for H-2ALCs continue to be
necessary in order to protect the safety and security of workers and
ensure basic program requirements are met, particularly given the
increased use of the H-2A program by H-2ALCs and the relatively complex
and transient nature of their business operations.\95\ In proposed
paragraph (e)(1), the Department maintained the current rule's
requirement that an H-2ALC provide proof that any housing used by
workers and owned, operated, or secured by the fixed-site agricultural
business complies with the applicable standards as set forth in Sec.
655.122(d) and is certified by the SWA. In proposed paragraph (e)(2),
the Department proposed to replace the term ``the worksite'' with ``all
place(s) of employment'' to clarify that transportation provided by the
fixed-site agricultural business between the workers' living quarters
and all
locations where work is performed must comply with the requirements of
this section. Additionally, the Department corrected the reference for
workers' compensation coverage of transportation from Sec. 655.125(h)
to Sec. 655.122(h).
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\95\ Based on an analysis of Applications for Temporary
Employment Certification processed for FY 2014 and 2017, the number
of applications filed by H-2ALCs more than doubled from 660 (FY
2014) to 1,410 (FY 2017), and the number of worker positions
certified for H-2ALCs nearly tripled from approximately 24,900 (FY
2014) to 72,400 (FY 2017). Between FY 2014 and 2017, the average
annual increase in H-2ALC applications requesting temporary labor
certification was 29 percent, compared to only 18 percent for
agricultural associations and 11 percent for individual farms and
ranches.
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The Department has adopted paragraphs (e)(1) and (2) as proposed,
with minor changes to paragraph (e)(2) for clarification. As discussed
above in the preamble to Sec. 655.122(h), the Department has made a
minor revision to Sec. 655.132(e)(2) to clarify that 29 CFR 500.104
and 500.105 do not both apply simultaneously to all vehicles. Instead,
29 CFR 500.104 and 500.105 apply alternatively depending upon the type
of vehicle used, the distance of the trip, and whether the vehicle is
being used for a day-haul operation. Accordingly, under this paragraph,
H-2ALCs will continue to include in or with their Applications for
Temporary Employment Certification, at the time of filing, the
information and documentation listed in redesignated paragraphs (a)
through (e) to demonstrate compliance with regulatory requirements.
Many commenters addressed the presence of H-2ALCs in the H-2A
program, rather than the Department's proposed amendments to Sec.
655.132. Immigration, public policy, and workers' rights advocacy
organizations, trade associations, and an international recruiter
raised concerns about H-2ALCs' lack of transparency and about farmers
using H-2ALCs as a shield to escape responsibility and maintain lower
wages. A workers' rights advocacy organization and numerous farmworkers
asserted H-2ALCs offer lower wages, provide reduced or nonexistent
benefits, more frequently present challenging or unsafe working
conditions, make travel difficult, and provide less certainty regarding
work start dates. One farm owner pointed out there is a critical need
for H-2ALCs, especially when a crop's harvest or hauling season is very
short. These comments provide context for suggestions in this section
and others. In addition, the Department will continue to examine the
role of H-2ALCs in the H-2A program to determine whether further
regulation of H-2ALCs beyond these filing requirements and surety bond
requirement (discussed below) is necessary to protect H-2A and U.S.
farmworkers.
One commenter mistakenly thought the Department proposed to remove
paragraph (a) of the 2010 H-2A Final Rule from this subpart; the
commenter expressed concern H-2ALCs would no longer be limited to
places of employment within one AIE on a single Application for
Temporary Labor Certification, in most cases. The Department repeats
that this requirement was moved to Sec. 655.130(e), not removed from
the subpart entirely.
A workers' rights advocacy organization expressed support for the
revisions to paragraph (e)(2), and it agreed that the changes proposed
by the Department are helpful and clarify regulatory requirements.
Although the Department did not propose changes to any of the H-
2ALC documentation requirements listed in this section except the
surety bond requirement, which is addressed below, a few commenters
suggested revisions to the MSPA FLC registration paragraph and process,
content requirements for an H-2ALC's work contracts with fixed-site
growers, and other additional documentation requirements. An agent
requested the Department incorporate the enumerated exceptions to MSPA
registration listed at 29 CFR 500.0 through 500.271 in paragraph (b) of
this section, a revision the commenter asserted would clarify who
qualifies for an exception under MSPA and would ensure proper
application of the MSPA registration requirement. Also related to MSPA
and FLC registration, an employer recommended that the Department
create an online system for employers. The Department respectfully
declines. Repetition of MSPA registration exceptions is not warranted
and could create confusion, as these exceptions, and any clarification
of these exceptions, fall outside this subpart. Similarly, creation of
a MSPA registration online system is outside the scope of this
rulemaking.
A workers' rights advocacy organization suggested the Department
require fixed-site growers to acknowledge their understanding of
program and legal requirements when signing work contracts with an H-
2ALC, while a trade association suggested the Department require H-
2ALCs to provide a signed joint liability agreement for every farm to
which they will supply labor. The Department appreciates these
suggestions but declines to add these documentation requirements at
Sec. 655.132. Except when an agricultural association signs on behalf
of its employer-members that are named in a master Application for
Temporary Employment Certification, each employer of the workers sought
must review and sign declarations attesting to the accuracy of the job
information and compliance with applicable laws and regulations. To the
extent these suggestions raise issues of joint employment and joint
liability, those issues are addressed in the Department's discussion of
proposed revisions to the definition of joint employment at Sec.
655.103. Finally, such additional documentation requirements were not
presented for public notice and comment and, therefore, are beyond the
scope of this rulemaking.
However, with regard to the information H-2ALCs provide on the Form
ETA-790A to identify their clients (i.e., the growers who contract with
the H-2ALC to provide labor or services for their agricultural
operations), the Department clarifies that an H-2ALC must identify each
fixed-site agricultural business to which it will provide labor or
services, as provided in Sec. 655.132(a) of this final rule and
collected in an addendum to the Form ETA-790A, by providing the
agricultural business's full legal name and full trade names or ``Doing
Business As'' names (DBAs) (if applicable). Full disclosure of legal
and trade names or DBAs is consistent with the Department's
requirements for employer and agricultural association names on the
Form ETA-790A. In addition, full disclosure of business names both
apprises prospective applicants of the work to be performed and
supports the Department's efforts to protect workers.
The workers' rights advocacy organization also suggested the
Department require additional recruitment-related documentation of H-
2ALCs, such as evidence the H-2ALC recruited all U.S. workers, FLCs,
and crew leaders employed directly by the fixed-site grower in the
prior year. In response to the comment, the Department addressed this
issue in the discussion of an employer's contact with former U.S.
workers under Sec. 655.153, and in relation to the definition of joint
employment at Sec. 655.103.
In proposed paragraph (c), the Department retained the requirement
that an H-2ALC submit with its Application for Temporary Employment
Certification proof of its ability to discharge its financial
obligations in the form of a surety bond. This bonding requirement,
which became effective in 2009, was created because the Department's
experience indicated that H-2ALCs can be transient and
undercapitalized, thus making it difficult to recover the wages and
benefits owed to their workers when violations are found.\96\ By
ensuring that
these employers can meet their payroll and other program obligations,
the Department is better able to prevent program abuse and limit any
adverse effect on U.S. workers. See 20 CFR 655.132(b)(3); 29 CFR 501.9.
Following a final finding of violation, the WHD Administrator may make
a claim to the surety for payment of wages and benefits owed to H-2A
workers, workers in corresponding employment, and U.S. workers
improperly rejected from employment, laid off, or displaced, up to the
face amount of the bond. 29 CFR 501.9(b).
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\96\ See 2008 H-2A Final Rule, 73 FR 77110, 77163; see also 2010
H-2A Final Rule, 75 FR 6884, 6941 (``The Department's enforcement
experience has found that agricultural labor contractors are more
often in violation of applicable labor standards than fixed-site
employers. They are also less likely to meet their obligations to
their workers than fixed-site employers.'').
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Based on its experience implementing the bonding requirement and
enforcement experience with H-2ALCs, the Department proposed revisions
intended to clarify and streamline the existing requirements and
strengthen the Department's ability to collect on such bonds. To
address the large proportion of the surety bonds submitted by H-2ALCs
that do not meet the requirements of 29 CFR 501.9, the Department
proposed moving the substantive requirements governing the content of
H-2ALC surety bonds to 20 CFR 655.132(c) so that these requirements can
be found in the same section as other requirements for the Application
for Temporary Employment Certification. The Department also proposed to
expand the capabilities of the online application system (historically
the iCERT Visa Portal System (iCERT) and now the FLAG system) to permit
electronic execution and delivery of surety bonds both as a means to
address the issue of noncompliant bonds and to streamline its review of
bond submissions. Under this proposal, electronic surety bonds will
eventually be required for all H-2ALCs subject to the Department's
mandatory e-filing requirement. However, until such time as the
Department's proposed process for accepting electronic surety bonds is
operational, the Department will accept the submission of an electronic
(i.e., scanned) copy of the surety bond with the application, provided
that the original bond is received within 30 days of the date that the
temporary agricultural labor certification is issued. To ensure that
the original bond is received during this time period, the Department
proposed to revise Sec. 655.182 to specify that failure to timely
submit a compliant, original surety bond constitutes a substantial
violation, providing grounds for debarment or revocation of the
temporary agricultural labor certification.
To further improve compliance with the bonding requirement and
streamline its review, the Department proposed to adopt a bond form
with standardized language. Currently, the bonds received by the
Department vary in wording and form, making it difficult to ensure that
the bonds are sufficient and resulting in confusion regarding the legal
requirements. The language used in the Department's proposed bond form,
ETA-9142A--Appendix B, which was included in the Paperwork Reduction
Act (PRA) package of the NPRM, largely incorporated the existing bond
requirements with certain clarifications for the regulated community
and minor changes. For example, the proposed bond language clarified
that the wages and benefits owed to workers may include the assessment
of interest. Similarly, the proposal clarified the time period during
which liability on the bond accrues (``liability period''), as
distinguished from the time period in which the Department may seek
payment from the surety under the bond (``claims period''). The
Department proposed changing the bond requirement to cover not only
liability incurred during the period of the temporary agricultural
labor certification, but also liability incurred during any extension
of the temporary agricultural labor certification, thus eliminating the
need for H-2ALCs to amend the applicable bond or seek an additional
bond (i.e., automatically extending the liability period to reflect any
extension of the temporary agricultural labor certification).
Additionally, the Department proposed extending and simplifying the
claims period from ``no less than 2 years'' to 3 years. Because this
standardized language provides more specificity as to the length of the
claims period, the Department proposed omitting language permitting the
cancellation or termination of the claims period with 45 days' written
notice. The Department explained that some sureties have mistakenly
interpreted this language as permitting the early termination of bonds
during the period in which liability accrues.
Additionally, the Department proposed adjustments to the required
bond amounts because current bond amounts, which range from $5,000 to
$75,000 depending on the number of H-2A workers to be employed under
the applicable temporary agricultural labor certification, often are
insufficient to cover the wages and benefits owed by labor contractors.
The Department proposed two distinct changes to the required bond
amount computation.
First, it proposed adjusting the required bond amounts annually to
account for wage growth as measured by increases in the AEWR.
Specifically, the Department proposed adjusting the existing required
bond amounts proportionally on an annual basis to the degree that a
nationwide average AEWR exceeds $9.25, the wage rate used to establish
new bond amounts in the Department's 2009-2010 rulemaking. 2009 H-2A
NPRM, 74 FR 45906, 45925; 2010 H-2A Final Rule, 75 FR 6884, 6941. The
``average AEWR'' used in this adjustment would be calculated and
published when the Department calculates and publishes the AEWR by
State in accordance with Sec. 655.120(b).
Second, in response to dramatic increases in the crew sizes
certified in the last decade, the Department proposed increasing the
required bond amounts for temporary agricultural labor certifications
covering a significant number of H-2A workers. Currently, the highest
bond amount, $75,000, applies to temporary agricultural labor
certifications covering 100 or more H-2A workers. Under the proposal,
the bond amount applicable to temporary agricultural labor
certifications covering 100 or more H-2A workers (determined by
adjusting $75,000 to account for wage growth, as discussed above) is
used as a starting point and is increased for each additional set of 50
H-2A workers. The interval by which the bond amount increases is based
on an approximation of wages earned by 50 workers over a 2-week period,
also updated annually to reflect increases in the AEWR. The NPRM
included examples demonstrating this calculation. 84 FR 36168, 36204-
36205.\97\
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\97\ In addition, the Department noted that under its proposal
to expand the definition of agriculture in Sec. 655.103 to include
reforestation and pine straw activities, employers in these
industries may have qualified as H-2ALCs and been required to comply
with the surety bond requirements. Because the Department declines
to adopt this proposal, as discussed supra, comments addressing the
application of the bonding requirement to the reforestation and pine
straw industries are not discussed herein.
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The Department received only one comment addressing its proposal to
move the substantive requirements governing the content of H-2ALC
surety bonds to Sec. 655.132(c). A coalition of workers' rights
advocacy organizations supported this proposal characterizing it as ``a
helpful, clarifying change.'' Likewise, those who commented on the
Department's proposal to permit the electronic execution and delivery
of surety bonds supported this proposal.
The Department hereby adopts these two proposals without modification.
As the Department is in the process of developing a functional
capability for accepting electronic surety bonds, it reminds the
regulated community that until such time as the OFLC Administrator
directs the use of electronic surety bonds, employers may, pursuant to
Sec. 655.132(c)(3)(ii), submit an electronic (i.e., scanned) copy of
the surety bond with the application, provided that the original bond
is received within 30 days of the date that the temporary agricultural
labor certification is issued. Failure to timely submit a compliant,
original surety bond has been added to Sec. 655.182(d) and will
constitute a violation that may provide grounds for debarment or
revocation of the temporary agricultural labor certification. Further,
the Department clarifies that it will generally consider such a failure
as demonstrating a lack of good faith under Sec. 655.182(e)(4), making
such a violation, by itself, a substantial violation meriting debarment
or revocation.
With respect to the Department's proposal to require the use of a
bond form with standardized language, namely the proposed Form ETA-
9142A--Appendix B, a coalition of workers' rights advocacy
organizations supported the proposal, explaining that it would
``promote efficiency during the review process and greater compliance
with surety bond requirements.'' An employers' agent similarly
supported this proposal. This agent, as well as a trade association
representing the surety industry, noted that insurers and sureties
should have the opportunity to review the Department's proposed
standardized bond language. However, another employers' agent opposed
the ``one size fits all approach'' of using standardized bond language,
arguing that ``parties to the instrument, as private parties engaging
in an arm's length transaction, should have the contractual freedom to
include additional protections, in amount or subject matter than called
for under the regulations within one instrument.'' This commenter did
not express specific concerns relating to the provisions of proposed
Form ETA-9142A--Appendix B.
After considering these comments, the Department adopts its
proposal to require the use of a standardized bond form. The Department
notes that the language in the Department's proposed bond form, Form
ETA-9142A--Appendix B, was included in the PRA package of the NPRM.
Further, to the extent that this proposed language differs in substance
from the current bond requirements at 29 CFR 501.9, these differences
were detailed in the NPRM. See 84 FR 36168, 36203-36205. An H-2ALC
surety bond is a contract governed by Federal regulation between three
parties: the H-2ALC, the surety, and the Department. As such, private
parties to such a contract should not expect unfettered contractual
freedom. The use of standardized bond language is necessary for the
Department to ensure that the bonds submitted by H-2ALCs comply with
the regulatory requirements and will facilitate processing efficiency
as the Department will not be required to review bonds that vary
considerably in wording and form. This is no different from the
Department's use of other standardized forms that make up the
Application for Temporary Employment Certification and which become
binding on the H-2A employer. Further, the use of a standard bond form
does not prevent the H-2ALC and surety from entering into a separate
contract, provided, of course, that such contract does not alter the
parties' obligations vis-[agrave]-vis the Department, limit in any way
the Department's ability to collect on a bond, or undermine the
purposes of the bonding requirement and/or H-2A requirements generally.
The Department also received comments addressing the specific
language and/or requirements proposed in the NPRM and incorporated into
the proposed Form ETA-9142A--Appendix B. For example, the Department's
proposed bond language retained the requirement that a surety pay sums
for wages and benefits owed to H-2A workers, workers in corresponding
employment, and U.S. workers improperly rejected from employment, laid
off, or displaced based on a final decision finding a violation or
violations of 20 CFR part 655, subpart B, or 29 CFR part 501, but
clarified that the wages and benefits owed may include the assessment
of interest. In response, an employers' agent stated that it
``disagreed with interest being attached to the scope of coverage
without quantification.'' The Department notes that an assessment of
interest may be required to make an employee whole, and both WHD and
the Department's administrative tribunals permit, and in some cases
require, the assessment of interest on back wages. The required rate of
interest is determined by law and is specified in WHD's determination
letters and final orders, as well as administrative case law.\98\
Further, a surety's liability on any particular bond is capped at the
face value of that bond; thus, any assessment of interest included for
wages and benefits will not increase the potential liability of the
surety. Accordingly, the Department adopts this proposed language as
written.
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\98\ Interest assessed by WHD is governed by 31 U.S.C. 3717.
Interest assessed by the Department's administrative tribunals is
governed by Doyle v. Hydro Nuclear Servs., Nos. 99-041, 99-042, and
00-012, 2000 WL 694384, at *16-17 (ARB May 17, 2000).
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The Department received several comments addressing its proposals
to clarify the time period during which liability on the bond accrues
(``liability period''), as distinguished from the time in which the
Department may bring a claim (``claims period''); to automatically
include in the liability period any extensions of the applicable
temporary agricultural labor certification; to extend the claims period
for filing a claim; and to omit the provision permitting a surety to
cancel a bond with 45 days' written notice. A coalition of workers'
rights advocacy organizations supported the proposals noting that these
would promote efficiency. Two trade associations and one employer
opposed the proposal to extend and simplify the time period in which a
claim can be filed against a surety from the current claims period of
``no less than 2 years'' to 3 years, based on the mistaken
understanding that this will increase a surety's total liability to
three times the face value of the bond.
This confusion articulated in the comments is precisely why the
Department sought to clarify and further distinguish the time period in
which liability on the bond accrues from the time period in which the
Department may bring a claim. As explained in the NPRM, extending the
claims period to 3 years (tolled by the commencement of any enforcement
action) does not extend the accrual of liability. 84 FR 36168, 36204.
Instead, it merely allows the Department more time to complete its
investigations while retaining the ability to seek recovery from the
surety. The surety's liability for a particular bond is still limited
to the face value of that bond.
A trade association representing the surety industry opposed the
proposal to eliminate language permitting sureties to cancel a bond
with 45 days' written notice, stating that this will increase the
surety's risk in writing the bond and make it more difficult for
employers to qualify for such a bond. It explained that ``[i]t is
critically important for a surety to maintain the ability to cancel
bond coverage if the bonded employer is found to be in violation of the
terms of its agreement with the surety or if the
bonded employer's ability to perform the bonded obligations has
materially changed and the surety is no longer able to offer
security.''
The Department appreciates this concern; however, as explained in
the NPRM, this provision was never intended to permit a surety to
cancel the bond during the liability period while the temporary
agricultural labor certification is still in effect. Instead, it was
intended as a means of ending the open-ended period in which claims
could be filed by the Department. 84 FR 36168, 36204. Because the
Department now extends and simplifies the claims period from ``no less
than 2 years'' to 3 years (tolled by any enforcement action), there is
no longer a need for this provision. Consistent with Sec. 501.9(d),
currently, WHD does not permit the cancellation of bonds prior to 2
years from the expiration of the temporary agricultural labor
certification (tolled by any enforcement action). Moreover, during the
tenure of this requirement, the Department has received few, if any,
requests from sureties seeking to cancel a bond while the temporary
agricultural labor certification was still in effect. The surety bond
is an essential component of an H-2ALC's Application for Temporary
Employment Certification, necessary to demonstrate an applicant's
ability to discharge its financial obligations under the H-2A program.
Accordingly, the Department believes that it is appropriate for the
bond submitted with the Application for Temporary Employment
Certification to cover liability accrued during the entirety of the
temporary agricultural labor certification and declines to add a
mechanism by which sureties can terminate the accrual of liability
during this period.
After carefully considering these comments, the Department adopts
its proposals to clarify and distinguish the liability and claims
periods, to automatically include in the liability period any
extensions of the applicable temporary agricultural labor
certification, to extend the claims limitations period to 3 years, and
to omit as unnecessary the provision permitting a surety to cancel a
bond with 45 days' written notice, as proposed in the NPRM.
Numerous comments from workers' rights advocacy organizations noted
that improvements are needed to help victimized workers access surety
bond funds. Specifically, a joint comment of 42 workers' rights
advocacy organizations suggested that the Department revise the
language of proposed Sec. 655.132(c) to make bonds payable either to
the WHD Administrator or to workers who have received a judgment
against the H-2ALC for violations of the temporary agricultural labor
certification and job order, either through private litigation or State
agency action, on the grounds that WHD does not have adequate resources
to enforce all actions against H-2A employers. The Department declines
to adopt this suggestion in this final rule. Permitting individual
claimants to make demands on the bonds could lead to circumstances in
which bond funds are depleted before the WHD Administrator completes an
investigation and are not distributed proportionally among affected
workers.
The vast majority of bond-related comments focused on the
Department's proposed adjustments to the required bond amounts to
account for wage growth, as measured by increases in the AEWR, and to
reflect dramatic increases in the crew sizes being certified. In
general, workers' rights advocacy organizations supported the proposed
adjustments, characterizing the proposal as a ``modest improvement[,] .
. . important because H-2ALCs are often undercapitalized and unable to
pay back workers for labor violations.'' Numerous workers' rights
advocacy organizations supported the proposal but described the
increases as insufficient. A coalition of 42 workers' rights advocacy
organizations submitted a joint comment explaining that surety bond
amounts are often insufficient to cover even unreimbursed inbound
transportation expenses, let alone unpaid wages and other costs
impermissibly borne by workers, and cited as support several prominent
investigations in which WHD found that workers were entitled to wages
and benefits exceeding the required surety bond amounts. This coalition
supported increases to account for wage growth and increasingly large
temporary agricultural labor certifications, but stated that, at a
minimum, bond amounts should be sufficient to cover the costs of
inbound and outbound transportation. Similarly, a commenter from
academia supported these increases.
In contrast, employers, employers' agents, and trade associations
typically opposed these increases to the required bond amounts. For
instance, an employers' agent urged the Department to maintain the
existing bond amounts stating that these amounts are sufficient to
ensure that H-2ALCs are able to discharge their financial obligations.
A trade association stated that the proposed increases are
``unnecessary and punitive'' and would have the effect of harming the
larger and better-capitalized labor contractors. These commenters also
stated that the Department failed to demonstrate the insufficiency of
current bond amounts through data. Rather than adjust required bond
amounts based on increases in the average AEWR and to account for
temporary agricultural labor certifications covering 150 or more
workers, this commenter suggested making across-the-board increases of
30 percent to the required bond amounts. Two trade associations and an
employer stated that the surety bonds are more akin to bail bonds than
insurance policies because bonding companies do not rely on the
reinsurance market to mitigate losses and instead scrutinize an
applicant's assets when evaluating the potential risk associated with a
bond; they recommended proceeding with caution until a market emerges
in which a surety can better mitigate its risk. Several commenters
stated that increases in bond amounts may make it impossible for some
H-2ALCs to obtain bonds. Others stated that the methodology for
calculating the required bond amounts is ``unnecessarily complex.'' A
public policy organization recommended that the Department reduce the
bond amounts required of H-2ALCs for which the Department has not
submitted a surety bond claim in the previous 5 years.
Commenters with ties to the shearing industry, including a State
agency, trade associations, several employers, and an agent, stated
that the increased bond amounts would prove difficult for the industry
as it tends to operate with very small crew sizes. For example, several
commenters explained employers in this industry may employ fewer than
25 H-2A workers in a given year, but because these workers are employed
under multiple temporary agricultural labor certifications, these
employers are required to obtain significantly more in total bonds than
those who employ the same number of workers under a single temporary
agricultural labor certification. These commenters also stated that
some sureties are hesitant to issue multiple bonds for the same
employer and suggested allowing employers to maintain a single bond for
multiple temporary agricultural labor certifications filed over the
course of a year.
A trade association representing the surety industry concurred in
the Department's proposal to increase bond amounts as needed to
accurately reflect the risk associated with wage requirements but noted
that this may make it difficult for certain employers to obtain these
bonds. This commenter
explained that employers may need to provide more detailed financial
disclosures, tax returns, and/or credit scores to qualify for higher
bond amounts and, in some cases, collateral may be required.
Finally, an insurance provider and an employer both noted that the
Department's proposed methodology does not account for differences in
the length of time H-2A workers will be employed and proposed that
required bond amounts be set at five percent of an employer's estimated
gross payroll for its H-2A workers. As an alternative, the insurance
provider suggested that back wages could be paid from an employer-
funded trust administered by the Department.
After carefully considering comments pertaining to the appropriate
amount of surety to be required of H-2ALCs, the Department adopts the
methodology for determining required bond amounts detailed in the NPRM,
with one modification. Under the proposal in the NPRM, to calculate the
required bond amount for a temporary agricultural labor certification,
the Department would start with a base bond amount (equal to the amount
of the bond required under the 2010 H-2A Final Rule) and adjust
proportionally on an annual basis to the degree that a nationwide
average AEWR exceeds $9.25, i.e., by multiplying the base by the
average AEWR and dividing that number by $9.25. The Department stated
that, until the Department published an average AEWR, it would use a
simple average of the 2018 AEWRs, which it calculated to be $12.20.
However, given the increase in the AEWR since the publication of the
NPRM, the Department has concluded that, until the Department publishes
a different average AEWR, bond amounts will initially be calculated
using an average AEWR of $14.28, based on the simple average of the
2021 AEWRs. The average AEWR will be adjusted when the underlying AEWRs
are adjusted. Thus, for a temporary agricultural labor certification
covering 100 H-2A workers, the Department will calculate the required
bond amount according to the following formula:
$75,000 (base amount) x $14.28 / $9.25 = $115,784 (updated bond
amount).
The Department has determined that further modification of the
NPRM's methodology for determining required bond amounts is unwarranted
at this time. The Department declines to adopt a commenter's suggestion
that it use an across-the-board increase, rather than requiring
additional incremental surety amounts for temporary agricultural labor
certifications covering 150 or more H-2A workers, as an across-the-
board increase would not fairly account for the proportionally greater
back wage liability associated with larger crew sizes. As the
Department noted in the NPRM, the current bond framework, which the
commenter's suggestion would perpetuate, ``disproportionately
advantages larger H-2ALCs while providing diminishing levels of
protection for employees of such contractors.'' See 84 FR 36168, 36205.
Likewise, the Department disagrees with commenters arguing that
bond amounts should not be increased. Based on the Department's
enforcement experience, bond amounts are often insufficient to cover
the amount of wages and benefits owed by H-2ALCs, limiting the
Department's ability to seek back wages for workers. Id. at 36204.
Indeed, as bond amounts have remained the same since 2010, these
amounts do not reflect subsequent wage growth or the dramatic increase
in the number of workers covered by temporary agricultural labor
certifications. Id. at 36204-36205. The Department believes that
requiring additional surety for such temporary agricultural labor
certifications is not punitive but rather necessary to ensure fairness
among labor contractors and for workers. The Department recognizes that
some H-2ALCs may not have sufficient financial resources and/or
creditworthiness to obtain the higher required surety bond amounts and,
as a result, will be unable to employ 150 or more H-2A workers under a
single temporary agricultural labor certification. The Department notes
that the purpose of the surety bond requirement is to ensure that labor
contractors will be able to discharge their financial responsibilities,
including meeting their payroll and other program obligations. To the
extent that some labor contractors lack the financial resources and/or
creditworthiness to obtain the requisite bonds, it may be appropriate
for these contractors to hire fewer workers.\99\ Accordingly, this
final rule adopts the Department's proposal under which the bond amount
applicable to temporary agricultural labor certifications covering 100
or more H-2A workers is used as a starting point and is increased for
each additional set of 50 H-2A workers. The interval by which the bond
amount increases will be based on the amount of wages earned by 50
workers over a 2-week period and, in its initial implementation, will
be calculated using an average AEWR of $14.28 as demonstrated:
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\99\ Several commenters, though not those from the surety or
insurance industries, stated that bonding companies do not rely on
the reinsurance market and thus have no way in which to mitigate
losses. While some sureties may choose not to rely on reinsurance,
the Department notes this is by no means uniform in the industry.
$14.28 (Average AEWR) x 80 hours x 50 workers = $57,120 in additional
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bond for each additional 50 H-2A workers over 100.
Thus, under this final rule, a temporary agricultural labor
certification covering a crew of 275 H-2A workers will require
additional surety of $171,360. This amount is calculated by determining
the number of additional full sets of 50 workers beyond the first 100
workers covered by the temporary agricultural labor certification and
then multiplying this number by the amount of additional surety
required per each set of additional 50 workers (275-100 = 175; 175/50 =
3.5; this is three additional sets of 50 workers; 3 x $57,120 =
$171,360). This additional surety will be added to the bond amount
required for temporary agricultural labor certifications of 100 or more
H-2A workers resulting in a required bond amount of $287,144 ($115,784
required for temporary agricultural labor certifications of 100 or more
H-2A workers + $171,360 in additional surety).
The Department declines proposals to consider additional variables,
such as the costs of inbound and outbound transportation or estimated
gross payroll, or to replace the average AEWR with another measure of
wages in its methodology for determining required bond amounts. While
these proposals may in some instances permit the required bond amounts
to more closely account for the potential back wage liability for
particular temporary agricultural labor certifications, these would
unduly complicate the calculation and review of the required bond
amounts and slow the Department's processing of H-2A applications. The
Department believes at this time that the methodology included in the
final rule is sufficient to address most monetary violations, including
those stemming from a failure to provide inbound and outbound
transportation, and thus to limit program abuse and any resulting
adverse effect on U.S. workers. The Department will continue to monitor
the efficacy of the surety bond requirements and will propose revisions
to these requirements as needed to assure that bond amounts are
sufficient.
Likewise, the Department declines the proposal from commenters with
ties to the shearing industry to allow such
employers to maintain a single bond covering all temporary agricultural
labor certifications in a given year, as doing so would require the
Department, when reviewing applications from H-2ALCs, to check all
prior applications filed during the year to ensure that the bond is
sufficient to cover both the current application and prior
applications, potentially slowing down the approval of such
applications.\100\
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\100\ While the January 2021 draft final rule would have
responded to these concerns by creating a lower tier of bonds with a
proportionally lower bond amount for temporary agricultural labor
certifications covering fewer than 10 workers, after further review,
the Department has decided against creating a separate bond tier for
temporary agricultural labor certifications covering fewer than 10
H-2A workers because doing so would create a risk that workers
employed under such temporary agricultural labor certifications will
be left without sufficient recompense in the event that their H-2ALC
employers fail to satisfy their financial obligations.
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The Department also declines to replace the surety bond requirement
with an employer-funded trust. Unlike the bonding requirement, which
helps to ensure that an H-2ALC is in compliance with its program
obligations, see 2008 H-2A Final Rule, 73 FR 77110, 77163 (citing 8
U.S.C. 1188(g)(2)), the payment of back wages from an employer-funded
trust would distribute responsibility for an H-2ALC's noncompliance
among all contributing employers, including those who meet their
program obligations, and may not provide as robust a deterrent against
individual noncompliance as surety bonds. Further, the creation of such
a trust would require considerable initial funding, as well as
Department resources, which could undermine the recovery of back wages
in the short-term.
Finally, the Department declines to offer discounted bond amounts
for those H-2ALCs for which the Department has not submitted surety
bond claims in the previous 5-year period. Because WHD investigates
only a fraction of the H-2ALCs that operate in a given year, the fact
that WHD has not pursued an H-2ALC's surety for the collection of
unpaid back wages or found violations in the previous 5 years is not an
indication of compliance or decreased potential liability. The length
of the Department's administrative appeals process and any ensuing
Federal court litigation means that a noncompliant employer could
litigate a back wage award for years to avoid losing such a discount,
potentially incentivizing appeals. Further, the surety may consider an
H-2ALC's record of compliance when determining the premiums to be
charged.
4. Section 655.133, Requirements for Agents
The NPRM did not propose changes to the requirements for agents to
provide, at the time of filing, a copy of the agent agreement or other
document demonstrating the agent's authority to represent the employer
as well as a copy of the agent's MSPA FLC Certificate of Registration,
if required under MSPA at 29 U.S.C. 1801 et seq., that identifies the
specific farm labor contracting activities the agent is authorized to
perform. Therefore, this final rule retains the current requirements
without change.
5. Section 655.134, Emergency Situations
The NPRM proposed minor amendments to this section to clarify
procedures for accepting an emergency Application for Temporary
Employment Certification filed by employers and to conform with other
procedural changes proposed in the NPRM and adopted in this final rule.
The Department received some comments on this provision, none of which
necessitated substantive changes to the regulatory text. Therefore, as
discussed below, this provision remains unchanged from the NPRM, except
for technical corrections for clarity.
Paragraph (a) of Sec. 655.134 addresses the function of the
emergency situations provision, while paragraph (b) addresses what an
employer must submit to the NPC when filing an Application for
Temporary Employment Certification and requesting a waiver of the
filing timeframe due to an emergency situation. To better focus
paragraphs (a) and (b) by topic, the Department proposed to move a
parenthetical example of ``good and substantial cause'' from paragraph
(a) to paragraph (b), where the regulation provides a nonexclusive list
of factors that may constitute good and substantial cause. In addition,
the Department proposed to expand the nonexclusive list of factors to
include additional examples, such as the substantial loss of U.S.
workers due to Acts of God or a similar unforeseeable man-made
catastrophic event (such as a hazardous materials emergency or
government-controlled flooding).
One commenter noted the list of required documents in paragraph (b)
was unclear and suggested the Department revise the wording or
punctuation to avoid confusion about whether the Department meant to
exclude only the first item in the list after the word ``except''
(i.e., evidence of a job order submitted pursuant to Sec. 655.121) or
all of the items after the word ``except.'' The Department appreciates
this suggestion and has revised the punctuation of this list of
required documents to clarify that the only evidence excepted is a job
order submitted pursuant to Sec. 655.121. Under most circumstances, an
employer using the emergency situations procedures would not need to
submit a job order in advance of its Application for Temporary
Employment Certification; therefore, there would not be evidence of a
pre-filing job order. However, all other documentation required at the
time of filing under Sec. 655.130(a) is required at the time of filing
under Sec. 655.134. In addition, an employer's emergency waiver
request submission must include a completed job order on the Form ETA-
790/790A, including all required addenda, and a statement justifying
the request for a waiver of the normal filing timeframe requirement.
In paragraph (c), the Department also proposed changes to simplify
the emergency application filing process for employers, provide greater
clarity with respect to the procedures for handling such applications,
and conform to other changes proposed in this rulemaking. For example,
the Department proposed to eliminate the language referring to
concurrent submission of the emergency situations filing to the NPC and
SWA, as under this final rule employers submit job orders to the NPC
and the NPC electronically transmits them to the SWA; the same process
applies to emergency situations job orders.
Further, the Department proposed language to clarify the
transmittal and review procedures. The CO will promptly transmit a copy
of the job order to the SWA serving the AIE for review. The SWA will
review the job order for compliance with the requirements set forth in
20 CFR part 653, subpart F,\101\ and Sec. 655.122, and, within 5
calendar days of receiving the job order from the CO, the SWA will
inform the CO of any deficiencies found. Based on the information
provided by the SWA and the CO's own concurrent review, the CO will
make a decision to issue a NOD under Sec. 655.141 or a NOA under Sec.
655.143; and, then, the CO will make a final determination
in accordance with Sec. Sec. 655.160 through 655.167.
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\101\ In the proposed regulatory text, the Department
inadvertently referenced only the job order content review at Sec.
653.501(c), rather than 20 CFR part 653, subpart F, in its entirety.
To ensure SWA review of job orders submitted through the emergency
situations provision is complete (e.g., includes a nondiscrimination
content check under Sec. 653.501(d)(3)) and consistent with review
of job orders under Sec. 655.121, as intended, paragraph (c)(1) has
been revised to conform with Sec. 655.121(c)(3). See 84 FR 36168,
36205 (NPRM noting proposed change to paragraph (c) ``makes the
process for filing job orders in emergency situations consistent
with the process for filing job orders under proposed Sec.
655.121'').
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Finally, if the employer's submission did not justify waiver of the
filing timeframe and/or the CO determined there is not sufficient time
to undertake an expedited test of the labor market, the CO's NOD would
include the reason(s) why the waiver request cannot be granted and
provide the employer with an opportunity to submit a modified job order
that brings the requested workers' start date into compliance with the
non-emergency filing timeframe requirement at Sec. 655.121(b) (i.e.,
first date of need must be no less than 60 days from the submission
date).
A workers' rights advocacy organization objected to the existence
of the emergency situations waiver, on principle, and to the extent it
is continued in this final rule, urged the Department to limit its use.
The workers' rights advocacy organization expressed concern the
emergency situations waiver request process undermines the SWA's
ability to evaluate job orders and assess U.S. worker availability,
thereby undermining the Department's statutory obligation. The
Department appreciates the commenter's concern and recognizes that a
correction to paragraph (c)(1) is necessary to ensure SWA review of job
orders submitted through the emergency situations provision is complete
(e.g., includes a nondiscrimination content check under Sec.
653.501(d)(3)) and consistent with review of job orders under Sec.
655.121, as intended. Therefore, paragraph (c)(1) has been revised in
this final rule to clarify that the SWA's review encompasses 20 CFR
part 653, subpart F, in its entirety, rather than only the job order
content requirements at Sec. 653.501(c). The revisions adopted in this
final rule make the SWA's involvement in reviewing the job order clear.
See Sec. 655.134(c)(1). Further, even where an employer justifies its
request as a qualifying emergency situation, if the CO determines there
is insufficient time to appropriately test the domestic labor market on
an expedited basis and satisfy the Department's statutory obligation,
the CO will not approve the employer's emergency situations waiver
request.
Commenters, including trade associations and agents, generally
supported the proposed revisions to Sec. 655.134. A trade association
expressed appreciation for the Department's simplification and
clarification of emergency situations waiver request procedures, noting
that time is critical in emergency situations. This commenter
specifically expressed support for the inclusion of an opportunity for
the employer to modify its application or job order to bring it into
compliance with non-emergency timeframe requirements in lieu of denial.
Among commenters who generally supported the proposed revisions to
Sec. 655.134, a couple objected to replacement of the term
``unforeseen'' with ``unforeseeable,'' which they viewed as a possible
change in the standard of review and a higher threshold for employers
to meet. However, the Department did not intend to create any material
change in the regulatory standard though the use of the term
``unforeseeable.'' Rather, the revision is necessary to establish
greater consistency--and avoid potential misunderstanding--between the
H-2A standard for emergency situation waivers and a similar provision
contained in the 2015 H-2B IFR at Sec. 655.17; the Department does not
have a different foreseeability standard in H-2A than H-2B and using
different terms could suggest that possibility.\102\
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\102\ Pursuant to Sec. 655.17(b), the employer may request a
waiver of the required time period(s) for filing an H-2B Application
for Temporary Employment Certification based on good and substantial
cause that ``may include, but is not limited to, the substantial
loss of U.S. workers due to Acts of God, or a similar unforeseeable
man-made catastrophic event (such as an oil spill or controlled
flooding) that is wholly outside of the employer's control,
unforeseeable changes in market conditions, or pandemic health
issues.'' 2015 H-2B IFR, 80 FR 24042, 24116-24117.
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A workers' rights advocacy organization expressed concern
``unforeseeable changes in market conditions'' and ``similar conditions
that are wholly outside of the employer's control'' are terms that are
``too broad and too vague and might encompass situations which would
not warrant . . . a waiver'' of the normal timeframe and the resulting
abbreviated U.S. worker recruitment period. For example, this commenter
worried that normal but unpredictable market fluctuations could qualify
as an emergency situation. However, normal market fluctuations, despite
being individually unpredictable, are a foreseeable aspect of
conducting business. As demonstrated in the nonexclusive list of
situations that might justify an emergency situations waiver, the
Department envisions circumstances which are unforeseeable and wholly
outside of the employer's control.
6. Section 655.135, Assurances and Obligations of H-2A Employers
a. Paragraph (c), Recruitment Requirements
Although the Department proposed no changes to paragraph (c) in the
NPRM, the Department is revising it in this final rule, as necessary,
to reorganize the mandatory recruitment obligation provisions. As
previously discussed in this preamble, commenters expressed concern
about the placement of mandatory recruitment obligations in the
proposed optional pre-filing recruitment provision at Sec. 655.123. In
addition, after considering comments, the Department decided not to
adopt the proposed pre-filing recruitment provision, as explained
above. To retain the mandatory recruitment obligation provisions and
clarify their applicability to all employers engaged in recruitment
under this subpart, the Department relocated the mandatory recruitment
obligations paragraphs proposed at Sec. 655.123(d) and (e) to Sec.
655.135(c). In this final rule, proposed paragraph (c) of Sec. 655.135
is now paragraph (c)(1), and proposed paragraphs Sec. 655.123(d) and
(e) are now paragraphs Sec. 655.135(c)(2) and (3). This reorganization
retains the requirement that an employer, in all cases, must accept and
hire all qualified, available U.S. worker applicants through the end of
the recruitment period set forth in Sec. 655.135(d) and, if an
employer requires interviews, the employer must conduct those
interviews in a way that imposes little or no cost on U.S. worker
applicants and ensures no less favorable treatment than that offered to
H-2A workers.
b. Paragraph (d), 30-Day Rule
Under the 2010 H-2A Final Rule, employers of H-2A workers are
required to hire any qualified, eligible U.S. worker who applies for
the employer's job opportunities during the first 50 percent of the
work contract period (``50 percent rule''), unless an exemption for
certain small employers applies. In the NPRM, the Department proposed
to replace the 50 percent rule with a 30-day rule. The proposed 30-day
rule would have required employers to provide employment to any
qualified, eligible U.S. worker who applied for the job opportunity
until 30 calendar days from the employer's first date of need on the
certified Application for Temporary Employment Certification, including
any approved modifications. For those employers who would have chosen
to stagger the entry of H-2A workers into the United States under
proposed Sec. 655.130(f), the Department proposed to extend the
mandatory hiring period
through the last date on which the employer expected a foreign worker
to enter the country, or apply the 30-day period, if longer. The
proposed change to the mandatory hiring period was intended to strike
an appropriate balance between the need to ensure U.S. workers' access
to H-2A job opportunities and employer burdens and operational
disruptions caused by hiring U.S. workers mid-season. As explained in
the NPRM, the 30-day rule proposal was based on the Department's
analysis of hiring practices indicating relatively few U.S. workers
applied or were referred for job opportunities after the initial 30-day
period. The Department determined that this finding, in conjunction
with other proposed changes, such as the proposed staggered entry
provision and related mandatory hiring period, justified a change from
the 50 percent rule to reduce administrative and employer burdens. See
84 FR 36168, 36207. The Department invited stakeholders to comment with
data illustrating the costs and benefits of the 50 percent rule,
particularly by providing comprehensive studies of the frequency with
which H-2A employers hire U.S. workers pursuant to the 50 percent rule.
However, the comments received, both in support of and in opposition to
the proposal, were largely anecdotal.
After consideration of all comments, the Department has decided,
for the reasons explained below, not to adopt the proposed 30-day rule
and, instead, will retain the 50 percent rule from the 2010 H-2A Final
Rule, as discussed below.
The Department received several comments strongly opposing the
proposed 30-day rule and elimination of the 50 percent rule, including
comments from many workers' rights and immigration advocacy
organizations, several State employment agencies, two U.S. Senators, a
U.S. Representative, a public policy organization, a labor union, a
trade association, an international recruiting company, and a commenter
from academia. The commenters' primary concern was that the proposal
would reduce employers' obligations to recruit and hire U.S. workers,
thus reducing U.S. workers' access to these jobs. A U.S. Representative
asserted the proposal would ``undermine[ ] long-standing protections
that help ensure employers are not incentivized to hire guest workers,
who are vulnerable to exploitation and abuse due to their temporary
immigration status, over domestic workers.'' Quoting a district court
decision, a workers' rights advocacy organization opposed to the
proposal noted that the 50 percent rule is a vital ``safety net to
protect the jobs of citizens'' that ensures protections for ``small
groups of available domestic employees who might not be known to [the
Department] at the time of the initial certification . . . .''
Several commenters emphasized the importance of the 50 percent rule
to U.S. agricultural workers who seek employment in a job opportunity
more than 30 days after the start date for various reasons related to
unexpected events, migratory labor patterns, differing dates of
seasonal need, and interest in improved pay and benefits. A workers'
rights advocacy organization noted that ``uncertainty of agriculture
caused by unexpected severe weather conditions'' causes hardships for
agricultural workers and asserted that under the proposed shortened
recruitment period, workers displaced by crop loss would ``have fewer
alternative options,'' and workers displaced after a natural disaster
would have greater difficulty finding substitute employment. Another
workers' rights advocacy organization stated that the 50 percent rule
would protect U.S. worker job opportunities in the event an employer's
worker(s) leaves the job early, but after 30 days have elapsed, ``due
to being injured, getting ill, having a family emergency, or any other
eventuality.'' A third workers' rights advocacy organization stated
that elimination of the 50 percent rule ``would make it difficult for
[workers] . . . to change places of employment in cases of employer
abuse.'' A workers' rights advocacy organization stated that the
presence of U.S. workers at a worksite forces an H-2A employer to
compete with other employers and makes it more likely that abusive H-2A
employers will be exposed. Another advocacy organization expressed
concern that the shortened recruitment period would reduce the period
of time during which a U.S. worker may leave current employment to
accept an H-2A job that pays a ``higher wage and provides free
transportation and housing if applicable . . . instead of settling for
a non-H-2A job that may have lower pay and no legal requirement to
provide transportation, housing, or other protections such as workers
compensation.'' One commenter asserted the proposal would make it
easier for agricultural employers to avoid their obligations to U.S.
farmworkers, including unionized farmworkers, by engaging in
intentionally ``ineffective recruitment'' and ``refus[ing] to hire
qualified U.S. workers.'' Other commenters stated that the proposal
would increase recruitment efforts within a reduced window for Migrant
Services Outreach Workers and asserted the longer recruitment period
allows workers to overcome employer attempts to discourage domestic
farmworkers from applying or shut them out entirely.
Several workers' rights and immigration advocacy organizations and
a labor union noted that ``[o]n many farms, hiring continues beyond the
first day of work before the peak of the harvest season.'' One of these
commenters stated that ``[s]ome U.S. workers work in agricultural jobs
for part of the year, work in other industries such as construction and
retail for a certain period of the year, and then return to
agricultural jobs.'' The commenter added that ``[s]ome local areas of
employment and migrant streams involve contiguous states'' and
agricultural workers ``alter their migration patterns depending on the
terms and conditions of employment.'' A State employment agency
asserted that ``limiting the availability of the job order to 30 days
after the Date of Need (DON) will effectively limit the ability of U.S.
workers to follow the crops as in the past.'' A workers' rights
advocacy organization noted that ``[i]n areas where migration is
typical, crews are called to work in stages,'' with the number of crews
``increas[ing] at peak season,'' and reduction in the post-
certification recruitment period would displace ``[w]orkers who have
reported for and worked in these jobs for years'' by permitting
employers ``to reject U.S. workers who report to work on the exact date
they had begun work the year before, which could be after the 30-day
deadline.''
Some commenters who opposed the proposal took issue with the hiring
practices data the Department cited in the NPRM. A workers' rights
advocacy organization also commented that the Department's data assume
that the SWAs are properly implementing the 50 percent rule, but there
are multiple instances where the SWAs miscalculate the 50 percent rule
period and shorten the recruitment period. Other commenters generally
emphasized the continuing importance of the SWA referral process. One
of these commenters cited a 2018 monitor advocate report indicating
SWAs referred more than 35,000 U.S. workers for H-2A job opportunities
in 2015. A State employment agency asserted the data on which the
Department relied were insufficient to justify elimination of the 50
percent rule because it examined ``only 20 percent of the selected H-2A
applications audited.'' A
workers' rights advocacy organization asserted the decision to
eliminate the 50 percent rule was arbitrary and capricious because the
Department failed ``to present any evidence of disruption caused by the
50 [percent] rule'' and failed to account for employers discouraging
U.S. workers from applying for jobs. Two U.S. Senators expressed
concern that the ``lack of any data in the NPRM reflecting the lengths
of work contracts'' prevented the public from ``sufficiently
respond[ing] to the potential effects of the Department's proposal''
and ``exacerbates the concern . . . that eliminating the 50 percent
rule will harm U.S. workers.''
The Senators also asserted ``the Department fail[ed] to provide any
quantitative analysis and offer[ed] generalized assertions to support
its claim that the employer costs of compliance with the 50 percent
rule outweigh the benefit to U.S. workers.'' Similarly, a State agency
that urged the Department to maintain the 50 percent rule noted the
requirement is longstanding and ``the data shows there have been
minimal disruptions to agricultural employers.'' Some commenters said
that the rationale for eliminating the 50 percent rule was faulty
because if the number of workers applying during the 50 percent rule
period are low, then the cost to employers is negligible. Many workers'
rights advocacy organizations agreed and cited to the early
congressional study indicating the 50 percent rule not only provides an
important protection for U.S. workers but does so with minimal burden
to employers. Several of these commenters noted the report's conclusion
that ``[i]n comparing the tangible benefits and costs alone, the
benefits of the 50 Percent Rule outweigh the costs'' and that ``the
costs of the 50 Percent Rule have been minimal and that the Rule has
not had any particular negative impacts on either growers or U.S.
workers.'' Other commenters pointed to the Department's 2010 H-2A Final
Rule, which concluded that the 50 percent rule's benefits to workers
outweighed the costs to employers, and that there was a lack of
definitive data cutting in either direction.
In contrast, many commenters, including trade associations,
employers, agents, individual commenters, a State agency, and a public
policy organization, expressed support for the proposal. Some stated
that few workers apply beyond the first 30 days, so the impact on U.S.
workers would be minimal. Others stated that the proposal also would
provide employers with more certainty and reduced costs. Another stated
that it was difficult to train workers who are hired months after the
season starts, and others said the proposal would reduce workplace
disruptions caused by hiring new workers later in the contract period.
Some stated that it was very difficult for agricultural employers to
find domestic workers for these jobs. A State agency commented that the
proposal would allow States to conduct concentrated recruitment of
domestic workers at the beginning of the period of need. Some
commenters added that the proposal provides a clear, bright-line rule
as to employers' hiring obligations. An employer commented that once
harvest begins, workers change location every 30 to 45 days, and most
U.S. workers hired under the rule refuse to travel, so their employment
is short term. Another commenter said that the proposal would be
beneficial to H-2A workers who may be displaced by domestic workers
well into the contract.
Some commenters who expressed support for the proposal to replace
the 50 percent rule also suggested that the Department should further
reduce the period during which employers must hire U.S. workers.
Commenters suggested that the Department require employers to hire U.S.
workers during a set period, pre-season, ending no later than when the
H-2A workers depart from their home country to travel to the United
States (i.e., coinciding with the end of the employer's positive
recruitment period under Sec. 655.143(b)(3)). Other commenters
suggested that the Department adopt the H-2B rule that requires
recruitment until 21 days before the first date of the need (Sec.
655.40(c)). Alternatively, one commenter suggested that, given the
shorter time period involved in the H-2A filing process, the Department
could adopt a modified version of the H-2B rule's recruitment period by
reducing the recruitment period to as little as 7 to 10 days before the
first date of need. An agent commented that the job order should stay
open for the entire recruitment period unless the employer notifies the
Department that all jobs have been filled, at which time, the job order
should be closed. The commenter also suggested that the job order
should be reopened if workers are needed at any time during the
contract period.
An agent also objected to the proposal insofar as it eliminated the
``small employer exemption'' to the rule, which excused certain small
businesses from any hiring obligation after the end of the positive
recruitment period and encouraged the Department to retain the existing
small employer exemption framework with the proposed 30-day rule. The
commenter stated that it was unreasonable to require a small employer
to continue recruiting U.S. workers even 30 days into the season,
because smaller operations do not enjoy the same margins for error and
cannot easily absorb workforce disruptions during the season.
Additionally, the commenter stated that the Department failed to
explain why the exemption should be removed from the regulations.
Another commenter stated that the small employer exemption was
important to maintain.
The Department takes seriously its obligation to protect workers in
the United States from potential adverse impact resulting from the
employment of H-2A workers and appreciates the many comments it
received on the proposed change to the post-certification mandatory
hiring period. After careful consideration of all comments, and in
light of the substantial concerns expressed by immigration and workers'
rights advocacy organizations, U.S. Senators and Representatives, State
employment agencies, and others, the Department has decided not to
adopt the proposed 30-day rule. Instead, the Department will retain the
50 percent rule it has applied nearly continuously for decades.
The Department notes, first, that in reaching its decision to
retain the longstanding 50 percent rule, it was not persuaded by the
congressionally required study to which several commenters referred, as
that study was commissioned by the Secretary of Labor in 1990 and
focused on the impact of the 50 percent rule in only two States--
Virginia and Idaho. See 2008 H-2A NPRM, 73 FR 8538, 8553. The research
firm that produced the study interviewed only 66 growers, constituting
only 0.1 percent of Virginia and Idaho's 64,346 farms at the time of
the study. The study's age and small size render it an unreliable
measure of the current impact of the 50 percent rule. The reasoning in
the 2010 H-2A Final Rule also was similarly not determinative here--in
that rule, the Department reinstated the 50 percent rule because of a
lack of definitive data. 2010 H-2A Final Rule, 75 FR 6884, 6922.
Since then, the Department has conducted its own analysis of hiring
practices, as noted in the NPRM. Based on a small set of recruitment
reports obtained through the audit examination process, the hiring
practices data cited in the NPRM demonstrate that most U.S. workers who
apply for agricultural jobs do so before the start of the work
contract. Based on these data, the
Department considered adopting the reduced recruitment period in the
January 2021 draft final rule but acknowledged that some U.S. workers
apply for these jobs after the employer's first date of need.
Specifically, the Department's analysis of certified H-2A applications
covering more than 33,510 jobs indicated that 3,392 U.S. workers
applied for the available job opportunities at some point from the
beginning of the employer's H-2A recruitment efforts through 50 percent
of the work contract period and 16 percent of these U.S. workers
applied and/or were hired more than 30 days after the start date of
work.
Although the vast majority of workers who apply after the start
date of work apply during the first 30 days of a work contract, the
Department acknowledges that the analysis is based on a limited set of
data available from employer recruitment reports selected for audit
examination. After further consideration of comments and the available
data, the Department agrees with commenters who note the burden the 50
percent rule imposes on employers in those limited cases where U.S
workers apply beyond the proposed 30-day period is minimal and
outweighed by the interests of the hundreds or potentially thousands of
domestic migrant and seasonal farmworkers who may want to apply for the
job opportunity more than 30 days after the first date of need. The 50
percent rule was initially a creation of the INA and designed to
enhance domestic worker access to job opportunities for which H-2A
workers were recruited. The Department believes any burden on employers
as a result of the 50 percent rule is outweighed by the interests of
the Department in ensuring U.S. workers are provided fair notice of H-
2A job opportunities and are not denied employment if they are
qualified and available within an adequate period of time after the
employer's start date.
Additionally, the Department shares the concerns of commenters that
changing the hiring period through this final rule could reduce U.S.
workers' ability to access temporary and seasonal job opportunities and
would raise the prospect of adverse impact resulting from the
employment of H-2A workers. Furthermore, as several commenters pointed
out, due to the nature of agricultural work, U.S. workers may need to
seek new employment because of crop loss, or may need flexibility to
follow crops as one work contract ends and another begins. These
comments are consistent with comments from employers and associations
that noted agricultural employers rarely need their entire workforce at
the beginning of the season, but instead need a steadily increasing
number of workers as the harvest intensifies. Both the proposed 30-day
rule and the longstanding 50 percent rule weigh the same factors: on
the one hand, ensuring U.S. worker applicants have a fair opportunity
to apply for job opportunities so that they are not displaced by
foreign workers; and on the other, recognizing the practical realities
of agricultural work and the need to administer the INA in a way that
is fair and reasonable for all affected parties, including employers.
After considering the merits of the proposal and the significant number
of comments expressing substantial concerns with a shorter hiring
period, the Department has concluded that retaining the 50 percent rule
best balances the objectives of ensuring the H-2A program operates in a
way that is fair to all parties and provides adequate protections for
U.S. workers, consistent with the Department's statutory mandate.
The Department is sensitive to the concerns regarding the impact on
small businesses and appreciates the agent's comment regarding the
small employer exemption. In light of the Department's decision to
retain the 50 percent rule, and further consideration of the regulatory
history, the Department has decided to retain the small employer
exemption in this final rule.\103\ In 1986, the IRCA added the 50
percent rule to the INA as a temporary 3-year statutory requirement,
which included an exemption for employers who, among other
requirements, ``did not, during any calendar quarter during the
preceding calendar year, use more than 500 man-days of agricultural
labor, as defined in section 203(u) of title 29.'' 8 U.S.C.
1188(c)(3)(B)(iii). That exemption was included in the Department's
1987 H-2A IFR. 52 FR 20496, 20520. Although the statutory 50 percent
rule and exemption were temporary, the corresponding requirements in
the 1987 regulations had no expiration date. See 55 FR 29356, 29357
(July 19, 1990). In 1990, ETA published an IFR to continue the 50
percent rule, and included the small employer exemption. Id. at 29358.
In 2008, the Department eliminated the 50 percent rule and created a 5-
year transitional period during which employers were required to hire
U.S. workers for 30 days after the employer's first date of need. 2008
H-2A Final Rule, 73 FR 77110, 77128. The 30-day requirement did not
include an exemption for small businesses, and the final rule offered
no explanation for the omission. In 2010, the Department reinstated the
50 percent rule, including the small employer exemption, stating that
the exemption ``minimize[s] the adverse effect on those operations
least able to absorb additional workers.'' 2009 H-2A NPRM, 74 FR 45906,
45917. In light of the Department's decision to retain the longstanding
50 percent rule, the Department also is retaining the small employer
exemption in this final rule.
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\103\ The January 2021 draft final rule would have eliminated
the small employer exemption because the mandatory hiring period
under the 30-day rule would have been shorter than under the 50
percent rule.
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In addition to the comments addressed above, the Department also
received a few comments addressing issues beyond the scope of the
proposal to replace the 50 percent rule with the 30-day rule. One
commenter said that worker referrals preceding the date of need should
not automatically reduce the number of H-2A workers certified in the
application, and the employer should have the discretion to either
reduce the number of H-2A positions or hire both domestic referrals and
H-2A workers. Another commenter suggested that to mitigate the
inconvenience of hiring U.S. workers after the start of the contract,
the Department should facilitate the placement of displaced H-2A
workers in immediate, subsequent H-2A employment elsewhere. Another
suggested treating H-2A workers in the country the same as U.S. workers
for purposes of recruitment, which would require employers to prove
that no H-2A workers already in the country are available to fill the
positions. However, these suggestions are beyond the scope of this
rulemaking.
The Department also invited comments on the proposed recruitment
period for employers who chose to stagger the entry of H-2A workers.
However, as the Department has decided not to adopt the proposed
staggered entry provision, the issue of the related recruitment period
is moot.
Accordingly, under this final rule, unless the small employer
exemption applies, an employer granted temporary agricultural labor
certification must continue to provide employment to any qualified,
eligible U.S. worker who applies until 50 percent of the period of the
work contract has elapsed, and an employer must update the recruitment
report for each U.S. worker who applies through the entire recruitment
period.
c. Paragraph (k), Contracts With Third Parties Comply With Prohibitions
The Department received a few comments regarding this provision of
the NPRM, which the Department considered. The Department now adopts
the language proposed without change. The current regulation requires
employers to contractually forbid any engaged foreign labor contractor
or recruiter (or their agents) from seeking or receiving payments or
other compensation from prospective workers; the employer must provide
documentation of the prohibition upon request. In the NPRM, the
Department proposed to amend Sec. 655.135(k) to clarify that employers
engaging any foreign labor contractor or recruiter ``must contractually
prohibit in writing'' the foreign labor contractor or recruiter, or any
agent of such contractor or recruiter, from seeking or receiving
payments from prospective employees. As explained in the NPRM, the
Department has specified the contractual language that employers must
use to satisfy this requirement for employers' convenience and to
facilitate consistent and uniform compliance. 84 FR 36168, 36208.
The revision makes it clear that foreign labor contractors or
recruiters and their agents are not to receive remuneration from
prospective employees recruited in exchange for access to a job
opportunity or any activity related to obtaining H-2A labor
certification. To help monitor compliance with this prohibition, the
Department has retained the requirement that employers make these
written contracts or agreements available upon request by the CO or
another Federal party.
A farmer and agent opposed the proposal because they believed the
existing regulation was sufficient and that employers should be able to
draft their own language prohibiting fees. The agent argued further
that requiring specific contractual language could expose employers to
a nonsubstantive violation, and furthermore that the Department had not
provided a reason that the existing regulation was problematic. The
Department understands employers' interest in drafting their own
contractual language. However, the Department nonetheless has
determined that it is necessary to require the specific language set
forth in this provision to facilitate uniform application and
compliance with the regulatory requirement. The previous regulatory
requirement left room for employers to write language that may not have
been clear or may not have conveyed the prohibition correctly. The
language adopted in Sec. 655.135(k) should serve to remove any doubt
concerning contractual parties' obligations under Sec. 655.135(k), and
it makes it easier for employers to comply with the regulation.
An international recruitment company, trade associations, and
advocacy organizations explained that the Department has failed to
prevent recruitment fees from being charged to foreign workers in the
past, and that this has caused such foreign workers to be vulnerable to
unlawful conduct and debts. One of the advocacy organizations opposed
any changes that would lower wages or reduce worker protections or
reduce Department oversight. The Department, in requiring the addition
of this specific language under Sec. 655.135(k) clarifies the existing
legal requirements. The Department acknowledges that, while
organizations or people have nonetheless collected recruitment fees in
violation of existing law, the change adopted in this final rule
relates only to the addition of specific language in order to
facilitate consistent and uniform compliance. Furthermore, the
Department's processes and procedures meant to enforce this requirement
are still in place.
While noting that it approved of the additional contractual
language proposed, one of the workers' rights advocacy organizations
went on to explain that this prohibition for third parties causes
employers to intentionally remain ignorant of the recruitment process.
It argued that workers are discouraged from coming forward for fear
they will be denied a visa and fear of retaliation or blacklisting from
recruiters and employers. The organization explained that unlawful
conduct surrounding recruitment leads to debt for workers and human
trafficking, and then detailed numerous examples from case law to
support the assertion that recruiters are not abiding by the current
regulations and are abusing foreign workers. The organization put forth
numerous suggestions relating to increased enforcement and transparency
regarding the recruitment process and increased worker protections. The
Department appreciates the concerns the workers' rights advocacy
organization has raised regarding the treatment of workers. Although
several of the suggestions are beyond the scope of this rulemaking, the
Department has addressed related concerns in other relevant sections of
this final rule. For example, the Department has retained the current
regulations' anti-retaliation provision and has added debarment of
agents and attorneys for their own misconduct in this final rule. See
20 CFR 655.135(h) and 655.182; 29 CFR 501.20. The Department also
believes the addition of the required contractual language is an
important step toward ensuring that employers do not remain ignorant of
the prohibitions and that any agreement with a third party clearly
articulates the prohibitions.
An agent suggested the regulation be revised further and argued
that the employer's inclusion of this contractual language should be a
``legal safe harbor'' to any claim brought against it to recover
recruitment fees unless there is clear and convincing evidence that the
employer knew or participated in the prohibited fees being requested.
Through the proposed language in Sec. 655.135(k), the Department did
not propose such a ``legal safe harbor,'' and was not attempting to
affect the legal rights parties may have in any private civil claims.
To the contrary, as the Department has previously made clear in both
the 2008 and 2010 prior rulemakings, these contractual terms must be
bona fide. 75 FR 6926. Creating a ``legal safe harbor'' could
potentially undermine an employer's incentive to assure the bona fides
of the contractual provisions, thereby undermining these important
worker protections. Accordingly, the Department declines to incorporate
such a provision.
7. Section 655.136, Withdrawal of an Application for Temporary
Employment Certification and Job Order
As discussed earlier in this preamble under Sec. 655.124, the
Department proposed to reorganize all withdrawal provisions so that,
for example, the procedure for withdrawing the Application for
Temporary Employment Certification and job order is located in the
section of the rule where an employer at that stage of the labor
certification process would look for such a provision. Accordingly, the
NPRM proposed revisions to move the withdrawal provisions at Sec.
655.172(b) of the 2010 H-2A Final Rule to this new section, and to
clarify the timeframe and procedures by which an employer may request
withdrawal. The Department received a few comments on this provision,
none of which necessitated substantive changes to the regulatory text.
Therefore, as discussed below, this provision remains unchanged from
the NPRM.
The Department proposed to move the content of Sec. 655.172(b) of
the 2010 H-2A Final Rule to a new provision at Sec. 655.136 located in
the ``Application for Temporary Employment Certification Filing
Procedures'' portion of the regulation, which begins at Sec. 655.130.
As a result of this relocation, the withdrawal provisions relating to
an Application for Temporary Employment Certification that is in
process at the
NPC and the associated job order would be located in a section of the
rule where the regulated community would be more readily able to locate
and understand the actions required for withdrawal at that stage of
processing.
In addition, the Department proposed to remove language limiting
withdrawal to the period after formal acceptance and expand this period
to any time before the CO makes a final determination. This revision
would allow employers to notify the NPC at any time after submitting an
Application for Temporary Employment Certification of their desire to
end processing of the application and job order. Finally, the
Department proposed under Sec. 655.136(b) to clarify that employers
must submit withdrawal requests in writing to the NPC, identifying the
Application for Temporary Employment Certification and job order to be
withdrawn and stating the reason(s) for requesting withdrawal; however,
the Department did not change the employer's obligations to workers
recruited in connection with the Application for Temporary Employment
Certification and associated job order, as these obligations attach at
recruitment and continue after withdrawal.
The Department received no comments objecting to the proposed
reorganization of the job order withdrawal provision from Sec.
655.172(b) to Sec. 655.136. One trade association supported a proposal
to permit withdrawal any time after submission and up to the point of
the CO's final determination. Two commenters objected to requiring
employers to comply with their obligations under the Application for
Temporary Employment Certification and related job order after
withdrawal, apparently without regard to the timing of withdrawal.
Consistent with discussion in the preamble for Sec. 655.124, these
comments objecting to an employer's continuing obligations after
withdrawal are outside of the scope of the proposed change at Sec.
655.136. The Department's proposal was limited only to reorganizing the
existing withdrawal provision from Sec. 655.172(b) to Sec. 655.136
and minor clarifying edits, such as adding ``and job order'' to the
statement of the employer's continuing obligation to comply with the
terms and conditions of employment after withdrawal with respect to all
workers recruited in connection with that Application for Temporary
Employment Certification, which includes the related job order.
Accordingly, the Department is adopting Sec. 655.136, as proposed,
without change.
D. Processing of Applications for Temporary Employment Certification
1. Section 655.140, Review of Applications
The NPRM proposed minor amendments to this section to conform
existing procedures to other proposed changes, such as changes
involving electronic filing and expansion of the first actions
available to the CO after initial review of the Application for
Temporary Employment Certification, job order, and any supplementary
documentation necessary to issuance of a Final Determination. The
Department received a few comments on this provision. After reviewing
these comments, the Department has decided to adopt this provision as
proposed in the NPRM, although first actions available to the CO will
not include certification, as a result of the Department's decision not
to adopt the pre-filing positive recruitment proposal at Sec. 655.123,
as discussed below.
In paragraph (a), the Department proposed to expand the first
actions available to the CO after initial review of the Application for
Temporary Employment Certification, job order, and any necessary
supplementary documentation for compliance with all requirements under
the subpart. In addition to the two first action options available to
the CO under the 2010 H-2A Final Rule (i.e., issuance of a NOA under
Sec. 655.143, if the application meets acceptance requirements, or
issuance of a NOD under Sec. 655.141, if the application contained
deficiencies), the Department proposed that the CO could issue a Final
Determination under Sec. 655.160 as the first action. As explained in
the NPRM, in combination with the pre-filing positive recruitment
proposal at Sec. 655.123, the proposed revision to Sec. 655.140(a)
would permit the CO to either certify or deny an Application for
Temporary Employment Certification as the first action. The CO could
issue a temporary agricultural labor certification as the first action
if the employer satisfied all criteria for certification at the time of
the CO's initial review, which could be possible for an employer who
engaged in the proposed pre-filing recruitment option at Sec. 655.123.
Or, the CO could issue a denial as the first action if an application
was incurably deficient at the time of filing, such as an application
filed by a debarred employer.
The Department received a comment from a trade association that
expressed support for the proposal, stating the ability to issue a
Final Determination would expedite the application process in certain
situations. An employer made a general comment expressing concern about
the Department's requirement that employers cure deficiencies through
the NOD process before the CO accepts an application for further
processing, asserting that inconsistent identification of deficiencies
could create processing delays for some applications. The Department
appreciates the commenter's concern; however, the Department did not
propose to change the criteria for the CO's decision to issue a NOD.
The CO makes every effort to identify and address deficiencies
consistently across applications and cannot accept an application for
further processing and recruitment until all deficiencies related to
effective recruitment of U.S. workers are resolved. The Department
intended to expand the range of actions available to a CO by adding the
option to issue a Final Determination under Sec. 655.160 as the first
action; the criteria for the CO's decision to issue a NOD remains
unchanged.
This final rule adopts proposed paragraph (a) without change.
Although the Department's decision not to adopt optional pre-filing
recruitment removes certification as a possible first action, a Final
Determination remains an available option for the CO's first action
because the CO may deny an Application for Temporary Employment
Certification as the first action if the application is incurably
deficient. Alternatively, the CO may issue a NOD that provides the
employer with an opportunity to cure deficiencies in the application or
a NOA that accepts the application for further processing and
recruitment.
The Department also proposed minor revisions to paragraph (b)
explicitly addressing electronic communication, both to permit the CO
to send electronic notices and requests to the employer and to permit
the employer to send electronic responses to these notices and
requests. The Department proposed to retain the option to use
traditional methods that ensure next-day delivery because these methods
will remain necessary in limited cases, such as when the employer is
unable to file or communicate electronically. The same trade
association expressed support for this proposed revision, stating that
electronic submissions are more efficient. Therefore, this final rule
adopts proposed paragraph (b) without change.
2. Section 655.141, Notice of Deficiency
The NPRM proposed amendments to this section to remove the option
for employers to request expedited administrative review or a de novo
hearing of a NOD, and to clarify that an employer may submit a modified
job order in response to a NOD and may appeal a denial issued by the CO
of a modified application. The Department received some comments on
this provision. After carefully reviewing these comments, the
Department has decided not to make any changes to the proposed
regulatory text. Therefore, as discussed below, this provision remains
unchanged from the NPRM.
The Department proposed removing language from paragraph (b) to
conform to the language of the INA, which requires expedited
administrative review, or a de novo hearing at the employer's request,
only for a denial of certification or a revocation of such
certification. See 8 U.S.C. 1188(e)(1). Because a NOD is not a denial
or revocation of certification and is, instead, an opportunity for
employers to provide information or cure deficiencies before the CO
makes a final determination, the Department's proposal better aligns
with the statutory requirements under the INA. 84 FR 36168, 36209.
Some commenters expressed general opposition to the proposed
changes to paragraph (b) without further explanation. A commenter
stated the proposal would complicate the program and make it more
costly but did not explain why this would be the case. The Department
disagrees with these assertions. As noted below, the Department
believes that this change will simplify and streamline the temporary
agricultural labor certification process. One commenter mistakenly
believed the Department had justified this proposal on the basis of
consistency with the H-2B program, but this was not a stated reason for
the proposal. Other commenters believed they would not be able to fix
errors in their filings or alert the CO to an addendum mistakenly not
included in their original filing without the ability to appeal a NOD.
However, the ability to appeal a NOD to BALCA is not required to
address these issues. The employer can instead respond to the NOD with
the necessary modification(s), correction(s), or omitted document(s).
Specifically, under Sec. 655.141, the employer retains the opportunity
to respond to the NOD with additional information or documentation,
including an amended job order, to address the identified deficiency or
deficiencies in its application.
Another set of commenters claimed removing the option to appeal a
NOD to BALCA could delay the temporary agricultural labor certification
process. Many commenters did not explain why they believed that delays
would occur as a result of the Department's proposed change. Two
employers, however, provided more specific information. One employer
stated the failure to include a document listing their proposed
worksites as an attachment to a prior application delayed the arrival
of their workers under the Department's subsequent certification. The
other employer noted that their agent quickly resolved previous NODs
and asserted that losing the ability to request NOD review would slow
the process because they would have to produce a ``new and amended''
job order. Neither commenter explained how the ability to appeal a NOD
to BALCA would prevent delay, especially when the opportunity to
correct deficient applications continues to be available pursuant to
Sec. 655.141 and employers still must produce documentation, such as
job orders, that meet all regulatory requirements.
Some commenters stated they would be unable to expeditiously defend
their application when a NOD is issued and would have to comply with
the NOD or wait to appeal after a denial, risking extra expenses or a
potential delay in worker arrivals. One of these commenters suggested
the ability to appeal both NODs and denials is a more efficient use of
the employer's and the Department's time. However, employers do not
need to appeal a NOD in order to submit additional documents or
otherwise address the identified deficiencies. As explained above,
employers can provide these documents in their response to the NOD. In
fact, the Department anticipates that the changes in this final rule
will expedite resolution of the majority of applications and decrease
expenses by providing one clear, singular route for resolving
information and documentation issues that prevent acceptance and
certification of Applications for Temporary Employment Certification or
job orders. Based on OFLC's experience administering the H-2A program,
the appeal of a NOD to BALCA tends to add more time to case processing
than a CO's efforts to resolve remaining issues in a NOD response
through mechanisms such as subsequent NODs or other communication that
this final rule explicitly authorizes in Sec. 655.142(a). Under this
final rule, the Department preserves the enhanced need for timeliness
in agriculture by simplifying the steps in the adjudication of H-2A
applications. Rather than allowing an appeal of a NOD to BALCA, which,
even if successful, could lead to subsequent NODs, appeal of those
NODs, and then a CO's denial and an appeal of that denial (i.e.,
separate appeals of multiple issues), this final rule consolidates
consideration of remaining issues or deficiencies into one appeal of
the CO's determination. Notably, as explained in the NPRM, this
approach provides the CO and employer more opportunities to resolve
deficiencies that prevent acceptance or certification of Applications
for Temporary Employment Certification or job orders and better ensures
that only those issues that the CO and employer cannot resolve are
subject to appeal before BALCA. See 84 FR 36168, 36209. The appeal
process continues to include an expedited administrative review
procedure, or an expedited de novo hearing at the employer's request,
of the denial in recognition of the INA's concern for prompt processing
of H-2A applications.
An agent stated no data were provided on the rate of certifications
following appeals of NODs that underwent BALCA review and suggested
these data be used to determine whether to adopt the proposal. OFLC
does not produce data on this rate. Moreover, the Department does not
believe these data would be instructive of whether to adopt its
proposal. Regardless of whether an application receives a NOA after an
appeal of a NOD or after resolution with the CO, the post-NOA
requirements that must be met for certification, such as recruitment
requirements, are the same. These post-NOA requirements for
certification do not typically relate to the deficiencies that would be
raised in a NOD, thus the rate at which an application is certified
following the appeal of a NOD is irrelevant. Another commenter claimed
that, based on the small number of BALCA decisions out of the total
number of H-2A applications filed each year, the current process should
be preserved. This comment is unclear because the figures provided by
the commenter do not distinguish between appeals from a NOD versus
appeals from a denial of an application. To the extent the commenter is
asserting an appeal of a NOD should be preserved because of the limited
number of BALCA rulings related to these appeals, there could be
several reasons for this number that are unrelated to the ability to
appeal a NOD, including that many employers receive a NOA in the first
instance or choose to respond to the NOD instead of appealing.
Some commenters suggested the change may eliminate an opportunity
for dialogue between the Department and the employer prior to a final
determination. However, as explained above, the appeal of a NOD is not
the only opportunity for the employer to engage in dialogue with the
Department prior to a final determination. Employers have the option of
responding to the NOD and working with the CO to resolve the
deficiencies identified in the NOD. Several commenters believed the
proposal would limit employers' due process or result in undesired
outcomes due to errors by the agency. The Department believes the
proposed change continues to guard against the latter because employers
can still request review before an administrative tribunal of a CO's
denial of an application. Employers also continue to decide whether
they wish to seek review in the form of administrative review or a de
novo hearing. In this way, the proposed change retains the due process
protections afforded employers under sec. 218(e)(1) of the INA and
better conforms with these statutory requirements. See 8 U.S.C.
1188(e)(1) (noting the regulations must provide for expedited
administrative review, or, at the employer's request, a de novo
hearing, of a denial of certification or a revocation of such
certification). And, as is the case now, employers may appeal this
administrative decision or seek other appropriate relief in Federal
court.
An agent suggested that, in cases where the CO believes the
employer will likely agree to the modification requirements, the NOD
should provide the employer the option to accept the proposed changes
by checking a box in iCERT or its successor (FLAG) instead of filing a
formal NOD response. While there are circumstances when OFLC may
address certain minor issues without the issuance of a formal NOD and
response, the Department declines to adopt the agent's suggestion to
create this separate procedure for two reasons. First, it would
necessitate judgment calls on whether the employer is likely to consent
to the required modifications. Second, the Department's electronic
filing system is designed to prevent submission of obviously deficient,
incomplete applications, which should reduce the need for the CO to
issue nonsubstantive NODs.\104\
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\104\ See 84 FR 36168, 36198 (noting OFLC's technology system
will not permit electronic submissions where required fields and
documentation have not been completed or uploaded and saved).
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The NPRM also proposed adding language to Sec. 655.141(b)(3) to
clarify that the employer may submit a modified job order in response
to a NOD. This proposal conforms paragraph (b)(3) with other paragraphs
in Sec. 655.141, which allow the CO to issue a NOD for job order
deficiencies and provide the employer an opportunity to submit a
modified job order to cure these deficiencies. A commenter suggested
that where the CO is unable to make a determination at least 30 days
before an employer's date of need, paragraph (b)(3) should include
language requiring the Department to notify the employer or agent of
the reason. However, this comment is beyond the scope of the
Department's proposal and cannot be implemented through this
rulemaking. Because no commenter raised issues with the proposed
language in paragraph (b)(3), the Department adopts this paragraph
without change.
Lastly, the NPRM proposed to remove language in Sec. 655.141(b)(5)
that purports to prohibit the employer from appealing the denial of a
modified application.\105\ This clarification aligns Sec. 655.141 with
Sec. 655.142(c), which permits the appeal from a denial of a modified
application. The Department received two comments, both supporting the
proposal. This final rule therefore adopts paragraph (b)(5) as
proposed.
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\105\ The purpose of Sec. 655.141(b)(5) in the current
regulations is to address situations where the employer fails to
respond to the NOD or appeal and, accordingly, ``abandons'' the
application. The Department has retained the relevant language in
what will now be Sec. 655.141(b)(4): ``if the employer does not
comply with the requirements of Sec. 655.142, the CO will deny the
Application for Temporary Employment Certification.'' 84 FR 36168,
36276.
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3. Section 655.142, Submission of Modified Applications
The NPRM proposed to amend this section to clarify the standards
and procedures that govern the employer's submission of a modified
Application for Temporary Employment Certification or job order. The
Department received one comment on this provision; after reviewing this
comment, the Department has decided not to make any changes to the
regulatory text. Therefore, as discussed below, this provision remains
unchanged from the NPRM.
The provisions in this section govern the employer's response to a
NOD issued pursuant to Sec. 655.141. The Department proposed revisions
to paragraph (a) to clarify that an employer may submit a modified job
order in response to a NOD, not only a modified Application for
Temporary Employment Certification. This change conforms this section
to the provisions at Sec. 655.141 that permit the CO to issue a NOD
for Application for Temporary Employment Certification and/or job order
deficiencies. In addition, the Department proposed to revise paragraph
(a) to explicitly authorize the CO to issue multiple NODs, if
necessary, to provide the CO with additional flexibility to resolve
deficiencies that would otherwise prevent acceptance of an Application
for Temporary Employment Certification and job order.\106\ For example,
this may be necessary if the CO discovers a deficiency while reviewing
submissions by the employer, such as an employer's response to a NOD
that raises other issues that require the CO to request additional
modifications.
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\106\ The Department also explained that this revision mirrors
language included at Sec. 655.32(a) of the 2015 H-2B IFR. See 80 FR
24042, 24122.
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In paragraph (b), the Department proposed clarifying revisions to
explain the circumstances under which the CO will deny an Application
for Temporary Employment Certification after reviewing an employer's
NOD response(s). If the modified Application for Temporary Employment
Certification or job order does not cure the deficiencies the CO
identified or otherwise fails to satisfy the criteria required for
certification, the CO will issue a denial following the procedure
outlined in Sec. 655.164.
Otherwise, the Department retained without change the provisions in
paragraph (a) that allowed the CO to postpone issuing a final
determination for 1 calendar day (up to a maximum of 5 calendar days)
for each day an employer fails to submit a timely response to a NOD
and, if the employer fails to submit a response within 12 calendar days
after the NOD was issued, to deem the Application for Temporary
Employment Certification abandoned. The Department also retained
without change the provisions in paragraph (c) describing the
opportunity to appeal the CO's denial of a modified Application for
Temporary Employment Certification.
The Department did not receive comments opposed to the proposed
changes in this section. One trade association expressed support for
the changes, stating that they would reduce the burden on employers to
resolve problems with the job order and would expedite application
processing once problems are resolved. Therefore, the Department has
adopted Sec. 655.142 as proposed, without change.
4. Section 655.143, Notice of Acceptance
The NPRM proposed to amend this section to clarify current policy
and ensure the NOA content requirements and timeline for issuance
conforms to
other changed proposed in the NPRM, such as labor supply State
determinations and requiring the CO to transmit the job order to the
SWAs for interstate circulation. The Department received some comments
on the changes proposed to this provision. As discussed below, in this
final rule, the Department has made additional revisions to further
clarify the NOA content requirements and conform this section both to
regulatory changes adopted in the 2019 H-2A Recruitment Final Rule and
the Department's decision not to adopt the pre-filing positive
recruitment options proposed at Sec. 655.123.
The Department proposed no substantive changes to the notification
timeline in paragraph (a). The proposed regulatory language included a
technical revision to remove ``are complete and'' for clarity and to
conform the language with the Department's proposal in paragraph (b) to
codify the current practice under which the CO issues a NOA when an
Application for Temporary Employment Certification and job order is
complete and compliant for recruitment purposes, even though
requirements for certification that are unrelated to recruitment (e.g.,
final housing approval) may not have been completed yet. In addition,
the Department proposed to revise the list of NOA content requirements
to conform to other proposed changes in the NPRM. After considering
comments on the Department's proposals, and to conform this section to
changes made through the 2019 H-2A Recruitment Final Rule, the
Department has retained paragraph (a) without change but further
revised paragraph (b) of this section, as discussed below.
To avoid making unnecessary changes from the 2010 H-2A Final Rule,
the Department has further reorganized the content of paragraph (b).
Paragraphs (b)(1) through (3) now correspond to topics addressed in
those paragraphs in the 2010 H-2A Final Rule: paragraph (b)(1)
addresses interstate clearance of the job order, with revisions to
conform with the NPC's electronic transmission of the job order to the
SWAs; paragraph (b)(2) addresses the employer's positive recruitment
and recruitment report obligations, with revisions to conform with the
Department's decisions discussed in Sec. Sec. 655.123 and 655.154 of
this preamble (i.e., not to adopt the proposed optional positive pre-
filing recruitment provision and to require the NOA to provide
instructions to the employer regarding additional positive recruitment
requirements, if any, and related documentation retention requirements)
and changes implemented through the 2019 H-2A Recruitment Final Rule;
and paragraph (b)(3) addresses the positive recruitment period, with a
proposed technical revision to cite to Sec. 655.158 rather than repeat
its content. In addition, the Department has redesignated the remaining
paragraphs listed under paragraph (b). Paragraph (b)(4), which appeared
as paragraph (b)(3) in the NPRM, requires the NOA to list outstanding
documents and assurances required for certification. Paragraph (b)(5),
which appeared as proposed paragraph (b)(4) in the NPRM, requires the
NOA to notify the employer of the timeline for the CO's final
determination and adopts the proposed allowance for the CO to hold
final determination inside the 30 days before the employer's start date
if the application is not certifiable by the 30-day mark but is
expected to be certified before the employer's first date of need.
Finally, this final rule adds a new paragraph (b)(6) to accommodate
a new provision added by the 2019 H-2A Recruitment Final Rule at
paragraph (b)(5), effective October 21, 2019. Under paragraph (b)(6),
the NOA will direct the SWA to provide written notice of the job
opportunity to organizations that provide employment and training
services to workers likely to apply for the job and/or to place written
notice of the job opportunity in other physical locations where such
workers are likely to gather, when appropriate to the job opportunity
and AIE.
A workers' rights advocacy organization expressed concern about the
CO issuing a NOA where the employer's application is complete and
compliant for recruitment purposes but the employer has not submitted
all documentation required for certification. The Department believes
the commenter may have misunderstood the provision and thought the CO's
issuance of a NOA in such circumstances would result in a temporary
agricultural labor certification despite the employer's failure to
submit all required documentation. In fact, what was proposed is
effectively how the current process works. The CO's issuance of a NOA
does not guarantee the employer will receive labor certification and
does not absolve the employer of any recruitment requirements or
documentation requirements in these cases. However, issuance of a NOA
allows positive recruitment of U.S. workers to begin as early as
possible--as soon as the application is complete and compliant for
recruitment purposes. For example, positive recruitment may begin while
the employer is making a housing repair the SWA identified during
inspection. The employer can only receive certification after it has
submitted all documentation and assurances necessary for certification,
including the SWA's housing certification. Therefore, in this final
rule, paragraph (b)(4) allows the CO to issue a NOA listing any
documentation or assurances that the CO has not yet received and
without which certification will not be issued.
An employer and a trade association generally supported the
Department's proposal to include an allowance for the CO not to issue a
final determination 30 days before the employer's first date of need
under one additional circumstance--when an Application for Temporary
Employment Certification does not meet the requirements for
certification on the 30th day before the first date of need but is
expected to meet such requirements before the first date of need. The
commenters asked the Department to clearly indicate this exception is
limited to circumstances where CO must place a hold on an application
that otherwise would be denied in order to afford the employer
additional time to satisfy certification requirements. The Department
appreciates the comment, which reflects the Department's intent as
discussed in the NPRM, but does not believe it is necessary to revise
this section further. The proposed language, which is adopted in this
final rule at paragraph (b)(5), clearly limits the CO's authority to
issue a Final Determination within 30 days of an employer's first date
of need to the two scenarios specified: an employer's untimely
modification under Sec. 655.142 and when the CO holds an application
that cannot be certified at the 30-day mark but is expected to be
certifiable before the employer's first date of need.
5. Section 655.144, Electronic Job Registry
The NPRM proposed minor amendments to this section to ensure the
standards and procedures for posting the approved job order on the
electronic job registry conforms with other changes proposed in the
NPRM and is consistent with the Department's current practices. The
Department received a few comments on this provision; after reviewing
these comments, the Department has decided not to make any substantive
changes to the regulatory text proposed in the NPRM. Therefore, as
discussed below, the Department is adopting this provision as proposed
in the NPRM.
In paragraph (a), the Department is deleting an obsolete sentence
that stated job orders would be posted on the
electronic job registry after the Department initiated operation of the
electronic job registry; as the electronic job registry is now fully
operational, this sentence is no longer necessary. The Department is
making two minor revisions to paragraph (b). First, rather than
retaining both a detailed description of the period during which a job
order will be posted on the electronic job registry and a reference to
the regulatory provision where the primary description of that
recruitment period is found (Sec. 655.135(d)), the Department is
retaining only the reference to Sec. 655.135(d). This approach is
consistent with other similar revisions to simplify the regulation as a
whole. Second, the Department proposed to add the phrase ``in active
status'' to clarify job orders must remain in active status on the
electronic job registry until the end of the recruitment period set
forth in Sec. 655.135(d). As discussed in the preamble to the NPRM as
well as in the preamble to the 2019 H-2A Recruitment Final Rule, after
the job order has served as an electronic recruitment tool on the
electronic job registry during the recruitment period at Sec.
655.135(d), the job order's status on the electronic job registry will
change to ``inactive'' so that the information on the job order will
still be available for public research and access. See 84 FR 36168,
36210; 2019 H-2A Recruitment Final Rule, 84 FR 49439, 49444.
The Department received two comments on this section regarding the
collection and public availability of information related to H-2A job
opportunities. A State government agency suggested the Department
leverage the electronic job registry to collect additional demographic
information, including the work location of foreign workers and the
concentration of certified applications and workers. A workers' rights
advocacy organization urged the Department to expand and enhance
publicly available information for a variety of purposes, including
increasing transparency and effective monitoring and enforcement. The
commenter asked the Department to make all job and employer
information, across all forms and in supporting documentation, publicly
available and accessible, in particular, to potential workers and their
advocates. The commenter expressed concern about the speed with which
the Department would post job orders to the electronic job registry and
potential difficulties with public access to older job orders, in
particular, as the result of the Department's transition between
electronic systems.
The Department agrees it is important to collect H-2A program
information and make it available to the public, which it currently
accomplishes through the Disclosure Data section of the OFLC website.
The Department will continue to collect detailed program information,
including information about work locations and certification statistics
sortable by occupation, and publish this information on the OFLC
website. In early 2020, the Department significantly expanded the scope
of labor certification decision data available to the public through
the Disclosure Data section of the OFLC website. However, the
Department declines to collect additional demographic information
beyond that already required for program purposes because the labor
certification stage of the immigration process involves the prospective
recruitment of unnamed U.S. or foreign workers by an employer for often
large numbers of job vacancies. Further, the intended use of the
information published on the Department's electronic job registry
differs from the intended use of OFLC's Disclosure Data. The electronic
job registry is a recruitment tool designed for broad dissemination of
available temporary or seasonal job opportunities to U.S. workers. As
such, the electronic job registry provides information for job seekers,
including work locations, duties to be performed, qualifications
required, and dates of employment.
As of December 27, 2019, the Department has transitioned the
electronic job registry to a new web-based platform,
SeasonalJobs.dol.gov. SeasonalJobs.dol.gov is a mobile-friendly online
portal that leverages the latest technologies to automate the
electronic advertising of H-2A job opportunities and ensures copies of
H-2A job orders are promptly available for public examination. The
portal is designed to help U.S. workers identify and apply for open
seasonal and temporary job opportunities using robust and personalized
search capabilities. In addition, the portal makes it easier to
integrate employment postings with third-party job search websites to
make the posted job order information more accessible to job seekers.
As a publicly available resource, any interested party may search and
review posted job opportunities.
6. Section 655.145, Amendments to Applications for Temporary Labor
Certification
The NPRM proposed minor amendments to this section that contains
the standards and procedures by which an employer may submit a written
request to the CO to amend its Application for Temporary Employment
Certification in order to increase the number of workers or make minor
changes to the period of employment. Specifically, paragraph (b)
contained technical corrections to replace references to the terms
``job site'' or ``place of work'' with the proposed term ``place of
employment'' as defined under proposed revisions to Sec. 655.103. The
Department received a few comments on this provision, none of which
necessitated changes to the regulatory text. Therefore, as discussed
below, this provision remains unchanged from the NPRM.
The Department received a few comments that presented situations in
which an employer might want to correct typographical errors or make
other changes to its application to respond to changes in market
conditions after submission. As discussed in the preamble for Sec.
655.121(e)(2), allowing applicants to request corrections to
applications without restrictions would run counter to the Department's
efforts to modernize the temporary agricultural labor certification
process. The 2010 H-2A Final Rule at Sec. 655.145, to which changes
have not been proposed, allows an applicant to request amendments to
increase the number of workers or to make minor changes to the period
of employment, which could be due to changes in market conditions or
for other reasons. In addition, an employer may request modifications
to its job order under Sec. 655.121(e)(2) before submitting its
Application for Temporary Employment Certification. Should an employer
want to make changes to its application other than those permitted
under these amendment provisions, the employer will need to file a new
Application for Temporary Employment Certification to accommodate the
changes needed. Depending on the circumstances, the new application may
qualify as an emergency situation filing under Sec. 655.134, which
allows for waiver of the normal filing timeframe requirements for
reasons including ``good and substantial cause (which may include
unforeseen changes in market conditions).''
As for typographical errors, the Department reminds applicants to
thoroughly review each application prior to submission, as they alone
are responsible for ensuring an application is complete and accurate at
the time of submission; the CO is not responsible for correcting an
employer's typographical errors. While some typographical errors may
not impact the
CO's final determination, if a typographical error creates a
substantive issue that is apparent to the CO (e.g., an offered wage
that is lower than required), the CO will issue a NOD requiring the
employer to modify the application to address the deficiency. In
situations where a typographical error mischaracterizes or
misrepresents the job opportunity available in a way that does not
create a regulatory deficiency that would trigger a NOD and the
deficiency cannot be corrected during processing, the employer would be
required to file a new Application for Temporary Employment
Certification to accurately reflect the job opportunity for which it
requests temporary labor certification to employ H-2A workers.
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance of Job Order
The Department proposed to retain this section authorizing the
interstate clearance of an employer's approved job order with three
minor amendments to conform with changes proposed to other provisions
in the NPRM. After considering the comments it received in connection
with this provision, the Department has adopted as final the proposed
revised Sec. 655.150 with one technical amendment, which is discussed
below. Related comments, such as those regarding the NPC's role in
transmitting job orders to SWAs and electronic transmission of those
job orders, are addressed in the preamble discussion of Sec. 655.121.
Similarly, comments regarding the Department's proposal to revise the
recruitment period at Sec. 655.135(d) are addressed in the preamble
discussion of Sec. 655.135(d), and comments regarding the Department's
proposed process through which the OFLC Administrator will designate
labor supply States or suggested additional changes to positive
recruitment obligations are discussed in the preamble to Sec. 655.154.
As established under the 2010 H-2A Final Rule, after receiving the
CO's NOA under Sec. 655.143, the SWA transmits the job order beyond
the AIE and intrastate clearance, as directed in the NOA, at minimum,
to all other States listed in the job order as anticipated worksites.
Each SWA that receives the job order must keep the job order on its
active file until the end of the recruitment period at Sec. 655.135(d)
and refer each qualified U.S. worker who applied during that period to
the employer.
In the NPRM, the Department first proposed that the NPC, rather
than the SWA, would transmit the employer's job order to each
additional SWA under Sec. 655.150, consistent with the Department's
proposed revisions to Sec. 655.121. Second, the Department proposed to
add language specifying that the NPC will transmit the approved job
order to each State that the OFLC Administrator designates as labor
supply State(s), if applicable, consistent with the Department's
proposal at Sec. 655.154(d). Finally, consistent with proposed
revisions to other sections of the regulatory text, the Department
proposed to simplify the language in paragraph Sec. 655.150(b) by
including a citation to the recruitment period at Sec. 655.135(d),
rather than restating the language in the regulatory text under this
paragraph.
Two State government commenters suggested that the Department
require employers to input job order information into SWAs' online
labor exchanges and/or other online recruitment tools, which they
viewed as consistent with the Department's adoption of electronic
filing and sensitive to State resources and system investments. One of
these commenters further asked the Department to clarify that employer
identity information is not suppressed (i.e., withheld) in H-2A job
orders, unlike non-H-2A job orders subject to Sec. 653.501; the
commenter thought such clarification would relieve SWAs of the task of
manually entering that information in job order postings in the State
labor exchange system.
The Department is sensitive to SWA resource concerns, but the
Department declines to impose a duplicative job order data entry
requirement on employers. Such a requirement is inconsistent with the
Department's goals stated in the NPRM to eliminate redundancies, reduce
or avoid duplication of burden on employers, and ensure a single point
of entry for employers to access the H-2A program. Under this final
rule, the employer will enter the job order information into the
Department's centralized electronic system, to which the SWAs have
access and from which the SWAs can retrieve the entirety of the job
order data--including employer identity information--for use in
processing the job order and posting on their State labor exchange
systems for intrastate clearance. To the extent these comments suggest
the Department should require employers to conduct additional positive
recruitment or post jobs electronically in SWA recruitment tools beyond
the State labor exchange system, the Department respectfully declines
to make any changes in response. The topic of employers' electronic
advertising obligations was addressed in the Department's 2019 H-2A
Recruitment Final Rule and is outside the scope of this rulemaking. As
explained in the 2019 H-2A Recruitment Final Rule, the Department
intended for the NPC's posting of the job order in the Department's
enhanced electronic job registry system, as required under Sec.
655.144, to facilitate broad electronic dissemination of the approved
job opportunity. The electronic job registry system makes a standard
set of job data available to third-party job search websites, which
could include SWA online resources, allowing those job listing websites
``to execute web-scraping protocols that extract new H-2A job
opportunities from SeasonalJobs.dol.gov and index them for advertising
to U.S. workers.'' 2019 H-2A Recruitment Final Rule, 84 FR 49439,
49445.
After consideration of these comments, the Department is adopting
the proposed revisions to Sec. 655.150, with one correction. The
Department decided to revise paragraph (a) in this final rule to retain
the phrase ``at minimum'' from the 2010 H-2A Final Rule's paragraph
(a). This phrase was inadvertently removed in the proposed paragraph.
Reinserting this phrase is necessary to avoid an unintended and
inappropriate gap in job order circulation. For example, a job
opportunity may be located in an AIE that crosses State lines; however,
all places of employment the employer listed are located in only one of
the States in the AIE. To appropriately test the domestic labor market,
the job order must be circulated to all SWAs with jurisdiction over the
AIE, not only the one SWA with jurisdiction over the places of
employment listed. Retaining ``at minimum'' provides clarity and the
necessary flexibility for the NPC and SWAs to ensure appropriate
recruitment through the labor exchange system and does so without added
burden to the employer. As a result, under this final rule, ``at
minimum,'' the CO will transmit the job order for interstate clearance
to the SWA in each State listed in the job order as an anticipated
place of employment and the SWA in each State designated by the OFLC
Administrator as a State of traditional or expected labor supply for
job opportunity under Sec. 655.154(d).
2. Section 655.153, Contact With Former U.S. Workers
The NPRM proposed minor amendments to this section containing the
standards and procedures by which employers contact U.S. workers they
employed in the occupation at the place of employment during the
previous year to solicit their return to the job. See
2010 H-2A Final Rule, 75 FR 6884, 6929. This obligation aims to ensure
that these U.S. workers, who likely have an interest in these job
opportunities, receive notice of the job opportunities. The obligation
also aims to prevent the employer from effectively displacing qualified
and available U.S. workers by seeking H-2A workers. An employer,
however, need not contact those U.S. workers it dismissed for cause or
those who abandoned the worksite. The Department received some comments
on this provision, none of which necessitated substantive changes to
the regulatory text from the NPRM. Therefore, this final rule retains
this section from the NPRM without change.
Section 655.153 requires an employer to contact, by mail or other
effective means (e.g., phone or email), U.S. workers it employed in the
occupation at the place of employment during the previous year to
solicit their return to the job. See 2010 H-2A Final Rule, 75 FR 6884,
6929. This obligation aims to ensure that these U.S. workers, who
likely have an interest in these job opportunities, receive notice of
the job opportunities. It additionally aims to prevent the employer
from effectively displacing qualified and available U.S. workers by
seeking H-2A workers. An employer, however, need not contact those U.S.
workers it dismissed for cause or those who abandoned the worksite.
The Department proposed in the NPRM to add language to Sec.
655.153 requiring an employer to provide the notice described in Sec.
655.122(n) \107\ to the NPC with respect to a U.S. worker who abandoned
employment or was terminated for cause in the previous year. The
proposal also required an employer to provide the notice in a manner
consistent with the NPC Federal Register notice issued under Sec.
655.122(n).\108\ The Department intended the proposal to ensure that
there would be virtually contemporaneous documentation to support an
employer asserting that a U.S. worker abandoned employment or that it
terminated the U.S. worker for cause. Under the proposal, the employer
would have to contact former U.S. workers who abandoned employment or
were terminated for cause if, while subject to H-2A program
requirements, it failed to provide notice in the required manner.
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\107\ Under Sec. 655.122(n), a worker's abandonment of
employment or termination for cause relieves an employer of
responsibility for subsequent transportation and subsistence costs
and the obligation to meet the three-fourths guarantee for that
worker, and, in the case of a U.S. worker, to contact that worker
under Sec. 655.153, if the employer provides notice to the ETA NPC
of the abandonment or termination. In the case of an H-2A worker,
notification to DHS is also required pursuant to 8 CFR
214.2(h)(5)(vi)(B)(1).
\108\ See Notice, Information about the DOL Notification Process
for Worker Abandonment, or Termination for Cause for H-2A Temporary
Agricultural Labor Certifications, 76 FR 21041 (Apr. 14, 2011).
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The Department may not certify an application unless the
prospective employer has engaged in positive recruitment efforts of
able, willing, and qualified U.S. workers available to perform the
work. See 8 U.S.C. 1188(b)(4). The prospective employer's positive
recruitment obligation is distinct from, and in addition to, its
obligation to circulate the job through the SWA system. Id. E.O. 13788
requires the Department, consistent with applicable law, to protect the
economic interests of U.S. workers. See 82 FR 18837 (Apr. 21, 2017),
secs. 2(b) and 5. The requirement to notify the Department of
abandonment and termination for cause protects the interests of able,
willing, and qualified U.S. workers who might be available to perform
the agricultural work, consistent with the INA. In addition, the notice
could assist growers in the event U.S. workers who have abandoned
employment or been terminated for cause later assert the employer
failed to contact them as required by Sec. 655.153.
As the Department provided in the NPRM, the notice obligation
should not increase the existing regulatory burden. Section 655.122(n)
currently permits an employer to avoid the responsibility to satisfy
the three-fourths guarantee as well as its return transportation and
subsistence payment obligations when a U.S. worker voluntarily abandons
employment or the employer terminates the worker for cause if the
employer notifies the NPC not later than 2 working days after the
abandonment or termination. Employers already have a strong financial
incentive to submit this notice to avoid responsibility for the three-
fourths guarantee and return transportation and subsistence costs. The
requirement to submit the notice to avoid Sec. 655.153's contact
obligation is thus unlikely to change the current regulatory burden on
employers.
As noted above, Sec. 655.153 currently permits employers to
contact U.S. workers by mail or other effective means. In the NPRM, the
Department reaffirmed that phone and email contact continue to be
effective means to contact U.S. workers. The Department received no
comments that suggested that permitting employers to contact U.S.
workers by phone or email would be inconsistent with program
requirements or undermine the interests of U.S. workers. Thus, the
Department again reaffirms that contact by phone or email is
permissible.
In the NPRM, the Department observed that employers that are new to
the program have employed U.S. workers in the occupation at the place
of employment during the previous year. Further, there may be instances
in which a regular user of the H-2A program might employ U.S. workers
in the pertinent occupation at the place of employment to provide
agricultural services and use the H-2A program again in the succeeding
year.
The NPRM clarified that in each of these instances, Sec. 655.153
requires these employers to contact the U.S. workers employed in the
previous year. This obligation applies to entities that employed U.S.
workers in the previous year under the common law definition of
employer incorporated in Sec. 655.103(b). The NPRM included the
following example to demonstrate an instance in which a grower that
employed U.S. workers under the common law in the previous year would
assume an obligation to contact those U.S. workers under Sec. 655.153
in the current year. Assume a grower used FLCs to provide U.S. workers
during the previous year and then applied to employ H-2A workers in the
following year. If the grower employed the U.S. workers under the
common law of agency as a joint employer with a FLC in the previous
year, then Sec. 655.153 would require the employer to contact those
U.S. workers in the following year.
The Department received numerous comments concerning this
clarification, particularly related to a possible employer's obligation
to contact workers that an H-2ALC or FLC employed in the previous year.
Multiple institutional commenters, as well as individual commenters,
opposed the application of Sec. 655.153's contact obligation to U.S.
workers an H-2ALC or FLC employed in the previous year. It appears,
however, that these commenters misunderstood the scope of the
Department's clarification. These commenters thought the clarification
included an obligation to contact the U.S. workers who an H-2ALC or FLC
employed at a grower's worksite in the previous year even when the
grower did not (jointly) employ such U.S. workers under the common law
definition of employer. The Department hereby reaffirms, consistent
with the language of the existing regulation and the preamble in the
NPRM, that its proposal in the NPRM did not require U.S. worker contact
when the grower had no employment relationship under the common law
definition of employer
with the U.S. worker in the previous year. Thus, if the H-2ALC or FLC
with whom the grower contracted in the previous year was the only
employer of the U.S. workers that worked at the grower's farm, the
grower has no contact obligation under Sec. 655.153 in the subsequent
year. The Department's proposal merely clarified that when the grower
jointly employed the U.S. workers in the previous year, it must contact
those U.S. workers it jointly employed.
These commenters also contended that the contracts between growers
and H-2ALCs/FLCs regularly contain provisions prohibiting growers from
``poaching'' the labor contractors' workers. They accordingly submitted
that the clarification will disrupt the parties' contractual relations.
One commenter submitted that farmers ``will increasingly be unable to
find FLCs willing to work for them because the [FLC] will want to avoid
having his workers poached by his clients,'' and that growers will not
use labor contractors because ``they will be concerned about breach of
contract liability resulting from their required attempts to poach the
[FLCs'] employees.'' Another commenter remarked that the proposed
requirement should be clarified such that contact with former workers
must only occur in situations when a written agreement exists between a
farmer and a contractor that specifies joint employment status, to
avoid the perception of ``poaching.''
A few commenters that opposed the clarification appear to evince a
clearer understanding that its scope only includes growers that
employed U.S. workers in the previous year. A joint comment contended
that the clarification ``appears to be the first instance'' in which
the Department is applying Sec. 655.153 to workers employed by labor
contractors. The commenters interpreted the provision to apply only to
``former [workers]'' and not to ``joint [workers employed by] the H-2A
applicant and [FLCs]. If the Agency intended for joint employees to be
contacted, it would have included specific language identifying joint
[workers] within the regulation'' (emphasis in original). Another
comment provided that Sec. 655.153 does not reference workers employed
jointly by a grower and FLC, adding that the clarification would
``require applicants to do more than is required by statute and
regulations.''
Similar to the other commenters, the joint comment also explained
that the proposal would seriously disrupt the relationship between
growers and FLCs, particularly the requirement that growers seek, in
the joint comment's words, to ``steal'' labor contractors' workers.
Finally, one commenter reiterated the concerns of the commenters
described above, adding that application of the proposal is likely to
result in labor contractors relying more frequently on H-2A workers
rather than U.S. workers. The commenter also proposed ``at a minimum''
that the regulatory language be ``revise[d] . . . to state explicitly
that the obligation to contact former employees only extends to the
employer's own employees, not the employees of an FLC utilized by the
employer, unless the FLC operates as a joint employer with the
employer.''
This commenter's description captures precisely what the Department
proposed in the NPRM. An employer's obligation to contact U.S. workers
employed in the previous year extends solely to U.S. workers the
employer itself employed in the previous year. Thus, if the employer
jointly employed the U.S. workers on its farm in the same occupation
with an FLC in the previous year, then Sec. 655.153, as currently
written, requires the employer to contact the U.S workers. However, the
contact obligation does not apply to U.S. workers an FLC alone employed
in the previous year, using the common law definition of employer, even
if the FLC employed the U.S. workers to perform services on the
grower's farm. The Department does not believe, as a commenter has
suggested, that it is necessary to add language to Sec. 655.153
specifying that an employer must contact U.S. workers it jointly
employed in the previous year. An entity that jointly employs workers
is the ``employer'' of such workers. The current language of Sec.
655.153 accordingly compels an H-2A employer that jointly employed U.S.
workers in the occupation at the place of employment in the previous
year to contact such workers.
The Department is therefore not adopting the broader request of
some commenters to exempt entirely an employer from Sec. 655.153's
contact obligation when the employer jointly employed the pertinent
U.S. workers with an FLC/H-2ALC in the previous year. Adoption of the
commenters' request would be inconsistent with the current language of
Sec. 655.153, which ensures that a prospective H-2A employer must
contact all U.S. workers it employed in the job in the previous year
before hiring H-2A workers to perform such work in the current year.
Requiring employers to contact their own U.S. workers effectuates the
statutory obligation of prospective H-2A employers to engage in
``positive recruitment efforts'' for qualified U.S. workers (8 U.S.C.
1188(b)(4)), provides job opportunities to specific U.S. workers who
have recently performed the job at the pertinent location for the
employer, and helps fulfill the Department's obligation to certify an
application only when there are not sufficient qualified workers to
perform the agricultural work. See 8 U.S.C. 1188(a)(1)(A).
As mentioned above, multiple commenters objected to the proposal
based on the potential for interference with the contractual obligation
growers have historically assumed to refrain from hiring workers
employed by their FLCs/H-2ALCs. However, as noted below, this is not a
new requirement and the Department's prior enforcement has not resulted
in the kinds of problems envisioned by the commenters. This is likely
because, as previously stated, the Department's clarification does not
require prospective H-2A employers to contact workers the employers did
not employ in the previous year. Moreover, Congress clearly intended to
ensure prospective employers recruit qualified, available U.S workers
to perform the work prior to the employment of H-2A workers. This
clarification helps to fulfill that intent.
The commenters that suggested that this is the first time the
Department is seeking to hold a grower responsible to contact U.S.
workers it jointly employed in the previous year with a labor
contractor are incorrect. The Department has pursued this approach
successfully in Federal litigation.\109\
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\109\ See Scalia v. Munger Bros., Case No. 2:19-cv-02320
(E.D.CA. Nov. 19, 2019) (Consent Judgment and Order in which
Defendants agreed to ``contact and offer employment to all U.S.
workers that worked for Defendants the previous year, including
those hired through FLCs'').
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As the Department noted in the NPRM, in the event that the grower
has not kept payroll records for such U.S. workers, the regulations
implementing MSPA require FLCs to furnish the grower with a copy of all
payroll records, including the workers' names and permanent addresses.
Growers must maintain these records for 3 years. See 29 CFR 500.80(a)
and (c). These records should provide the employer with contact
information for the pertinent U.S. workers.
The Department noted in the NPRM that it would not require
employers that did not participate in the H-2A program in the previous
year to provide the NPC the notice described in Sec. 655.122(n) (in
order to avoid the obligation to contact U.S. workers the employer
terminated
for cause in the previous year or who abandoned the employment in the
previous year). The Department received no comments warranting the
reversal of this position. The Department accordingly adopts it.
Another commenter suggested that the threshold for determining
abandonment based on failure to report should be a ``more reasonable''
3 days, not the ``excessive'' 5 days proposed, because 3 days is ``a
standard in the agricultural industry'' and a longer period without a
replacement worker could put perishable commodities at risk. The
Department, however, did not propose and thus declines to make any
change to its longstanding standard for determining whether a worker
has abandoned employment.
Finally, the proposed rule clarified that the employer's contact
with former U.S. workers must occur during the positive recruitment
period (i.e., while the employer's job order is circulating with the
SWAs in the interstate clearance system and terminating on the date
workers depart for the place of employment, as determined under Sec.
655.158) by including a reference to Sec. 655.158. The Department
received no comments warranting the reversal of this proposal. The
Department accordingly adopts it.
3. Section 655.154, Additional Positive Recruitment
In the NPRM, the Department proposed amendments to this section to
clarify the standards and procedures by which the Department identifies
States of traditional or expected labor supply for recruiting U.S.
workers. The Department received some comments on this section, a few
of which necessitated additional revisions in this final rule to
clearly describe the traditional or expected labor supply State
determination process and the recruitment required, both on the
employer's behalf and through employer action, as well as a minor
change to paragraph (a), consistent with changes to recruitment methods
in the 2019 H-2A Recruitment Final Rule that impacted this section.
These revisions are discussed below.
The INA requires employers to engage in positive recruitment of
U.S. workers within a multi-State region of traditional or expected
labor supply where the Secretary finds that there are a significant
number of qualified U.S. workers who, if recruited, would be willing to
make themselves available for work at the time and place needed. See 8
U.S.C. 1188(b)(4). The Department satisfies this statutory requirement
and the broader statutory obligation regarding U.S. worker availability
through a combination of recruitment activities, including posting the
job opportunity on an electronic job registry (Sec. 655.144),
interstate clearance of the job order through the SWAs (Sec. 655.150),
employer contact with former U.S. workers (Sec. 655.153), and
additional positive recruitment (Sec. 655.154). The additional
positive recruitment required of the employer under Sec. 655.154 is
discrete from, but occurs concurrently with, the multi-State
recruitment the Department and SWAs conduct on behalf of the employer
(i.e., electronic recruitment under Sec. 655.144 and interstate
employment service system recruitment under Sec. 655.150).
At the NPRM stage of this rulemaking, the Department was separately
engaged in rulemaking that sought to modernize positive recruitment
requirements, which culminated in the 2019 H-2A Recruitment Final Rule
that became effective after the NPRM was published. That rulemaking
addressed an employer's statutory requirement to engage in positive
recruitment of U.S. workers, generally, and resulted in the rescission
of Sec. Sec. 655.151 and 655.152, which involved print newspaper
advertisements, and the enhancement of the Department's electronic job
registry and related electronic recruitment on the employer's behalf.
As explained in the 2019 H-2A Recruitment Final Rule, the Department
determined that advertisement of the employer's job opportunity through
the Department's electronic job registry under Sec. 655.144 will be
sufficient, in most cases, to satisfy the employer's multi-State
recruitment obligations under Sec. 655.154. However, in that
rulemaking, the Department did not revise the additional positive
recruitment obligations provision at Sec. 655.154 or propose to codify
the underlying process for designating labor supply States where the
job order must be circulated and, within designated labor supply
States, areas in which additional employer-conducted positive
recruitment would be appropriate for the CO to order, as a means of
reaching qualified U.S. workers who would make themselves available for
job opportunities like the employer's.
The NPRM proposed amendments to this section to clarify the
standards and procedures by which the Department identifies States of
traditional or expected labor supply for recruiting U.S. workers. By
proposing to add a new paragraph (d), the Department sought to provide
more public transparency in the process for designating traditional or
expected labor supply States and for determining whether and what
additional positive recruitment should be required in those States as a
condition of granting temporary agricultural labor certification.
Specifically, the Department proposed to shift the responsibility for
designating traditional or expected labor supply States and determining
the particular methods of positive recruitment required within those
States, if any, from the CO to the OFLC Administrator. Further, the
OFLC Administrator would base traditional or expected labor supply
State determinations primarily on information received from SWAs within
the preceding 120 days and provide public notice by posting the
determinations annually on OFLC's public website. In addition to
providing more public transparency, advance notice of labor supply
State designations provides greater predictability for employers in
advance of receiving instructions from the CO in the NOA.
Given both the 2019 H-2A Recruitment Final Rule's changes to
positive recruitment requirements and the Department's consideration of
comments submitted in response to the NPRM, the Department has further
revised Sec. 655.154 in this final rule to clearly describe the
traditional or expected labor supply State determination process and
the recruitment required--both on the employer's behalf and through
employer action--to ensure an adequate test of the domestic labor
market for the job opportunity. For example, the Department removed
redundant language in paragraph (a) that described the nature of
traditional or expected labor supply States and added a reference in
that paragraph to the labor supply State determination process
provision at paragraph (d). The resulting language clarifies that an
employer's positive recruitment obligations under Sec. 655.154 will be
satisfied, in most cases, through the Department's broad dissemination
of job information through the Department's electronic job registry. In
addition, the Department revised paragraphs (c) and (d) to clarify the
information included in the labor supply State determination that the
OFLC Administrator will post on OFLC's website and its use. The
Department has considered whether OFLC Administrator's annual
determination should provide advance, public notice of additional
positive recruitment requirements on OFLC's website, including
instructions on the precise nature of the additional recruitment, in
order to accommodate employers that chose to begin
recruitment prior to receiving the NOA under proposed Sec. 655.123.
After careful consideration, this final rule provides that the OFLC
Administrator's annual determination under revised paragraph (d)
identifies both designated labor supply State(s) where the job order
must be transmitted under Sec. 655.150(a) for interstate clearance and
area(s) of labor supply within a designated State, if any, where an
employer may be required to conduct additional positive recruitment to
reach qualified U.S. workers who would make themselves available for
the job opportunity. Consistent with the Department's decision not to
adopt the proposed optional pre-filing recruitment provision, this
final rule does not require the Administrator's annual determination to
specify the precise nature of additional positive recruitment and the
documentation or other supporting evidence that must be maintained by
the employer. Instead, revised paragraph (c) of this final rule
clarifies that the employer will receive instructions in the CO's NOA
regarding any additional positive recruitment requirements applicable
to its job opportunity, which conforms with revisions at Sec.
655.143(b)(2) and is consistent with the process in the 2010 H-2A Final
Rule.
Several commenters supported the proposal as a means of enhancing
the transparency and consistency of traditional or expected labor
supply State determinations. Other commenters expressed concern
regarding particular aspects of the proposal, as discussed below. One
commenter urged the Department to eliminate the traditional or expected
labor supply State designation process and related recruitment
requirements entirely or use the State determination approach in the
2008 H-2A Final Rule. The Department appreciates the comments but is
unable to eliminate a requirement that is mandated by statute.
Regarding the comment to adopt the determination approach in the 2008
H-2A Final Rule, the commenter did not fully explain their
understanding of that labor supply State designation process and the
reasoning for re-instituting those recruitment requirements; however,
in the preamble to the 2008 H-2A Final Rule, the Department discussed
requiring affirmative employer action in labor supply States only where
the Department had made a factual determination that information it
received justified a particular type of additional recruitment in a
particular area. See 2008 H-2A Final Rule, 73 FR 77110, 77132. The
Department believes the commenter's suggestion is addressed in this
final rule, which requires affirmative action by the employer only
where the OFLC Administrator identifies a particular area within a
State based on specific, credible information about the availability of
qualified U.S. workers and appropriate means of recruiting those
workers. In addition, as discussed in the 2019 H-2A Recruitment Final
Rule, ``[Sec. ] 655.154 does not afford the CO unlimited discretion;
rather, it authorizes the CO to order the recruitment necessary to
ensure an adequate test of the domestic labor market for the employer's
job opportunity, after taking into account the location and
characteristics of the position.'' 84 FR 49439, 49450.
Two workers' rights advocacy organizations noted that the
Department's proposal placing the labor supply State determination
process at paragraph (d) effectively replaced the Proof of Recruitment
provision at Sec. 655.154(d) in the 2010 H-2A Final Rule and expressed
concern the Department had not retained the Proof of Recruitment
provision in a different location. The commenters believed removing
this provision would hinder the Department's ability to enforce the H-
2A regulations because it would eliminate the CO's authority to specify
the documentation or supporting evidence an employer must retain to
prove compliance with the additional positive recruitment requirements.
Although the document retention provision at Sec. 655.167 already
requires employers to retain evidence of compliance with Sec. 655.154,
the Department agrees with the commenters that the rule should address
the type of evidence an employer is required to retain to show
compliance with particular recruitment efforts required in designated
traditional or expected labor supply States. The Department has
determined that including such a provision provides greater clarity and
predictability to employers, who want to properly document compliance,
and facilitates its effective and consistent enforcement of this
regulatory requirement. Therefore, the Department has revised paragraph
Sec. 655.143(b)(2) in this final rule to provide that the CO's NOA
will specify the documentation or other supporting evidence to be
maintained by the employer to demonstrate compliance with positive
recruitment requirements.
One workers' rights advocacy organization expressed concern and
opposed the proposed traditional or expected labor supply State
designation process because it would diminish the role of the SWAs
because assigning the responsibility of making these State
determinations to the OFLC Administrator would allow the OFLC
Administrator to consider information from sources other than the SWA.
The commenter was also concerned the proposed regulatory language would
reduce the period of labor market information considered from 6 months
to 120 days, and also expressed the language was vague and did not
specify the sources of information the OFLC Administrator may consider
or the weight given to the information from sources other than the SWA.
The Department believes the commenter's concerns are unwarranted.
As is the case under the 2010 H-2A Final Rule, the Department
anticipates the SWAs will continue to be the primary source of
information regarding traditional or expected labor supply States based
on their knowledge and expertise in local labor markets. The proposed
determination process was not intended to diminish the role of the SWAs
or substantively change the nature of information upon which
traditional or expected labor supply designations will be based. Under
the 2010 H-2A Final Rule, the CO's determination is based primarily on
information about labor supply trends and information regarding
interstate referral activities observed by the SWAs. The Department
intended to formalize the existing communication between SWAs and OFLC,
while making the process more transparent and predictable to employers
seeking to employ H-2A workers.
In the 2010 H-2A Final Rule, the Department also explained that it
continues to welcome information on labor supply from SWAs, employers,
and workers' rights advocacy organizations to assist in its decisions
on the best sources of labor and related recruitment activities to be
required of employers. See 75 FR 6884, 6930; see also 2019 H-2A
Recruitment Final Rule, 84 FR 49439, 49450 (explaining the Department
most often obtains information from the SWAs, but ``continues . . . to
invite stakeholders to submit information on areas of traditional or
expected labor supply and effective means of recruiting U.S. workers in
those areas''). The NPRM and this final rule merely reiterate the
Department's longstanding policy to consider reliable information from
appropriate sources that may be helpful in determining States of
traditional or expected labor supply. Appropriate sources may include,
for example, information from other State or Federal agencies or
information the Department receives from other relevant stakeholders,
such as organizations that
provide employment and training services to workers who are likely to
apply for agricultural job opportunities. Similarly, the proposal in
the NPRM stated the OFLC Administrator's determination would be based
primarily upon information provided within 120 calendar days preceding
the determination.
The Department's decision to base traditional or expected labor
supply State determinations primarily on information provided within
120 calendar days preceding the determination reflects that although,
based on the Department's experience, these designations have not
changed significantly from year to year because the information the
Department receives does not change significantly from year to year,
the designations should be informed by the most current information
available. Notably, this provision does not limit the collection of
information to the 120-day period preceding the OFLC Administrator's
determination. For example, information gathered over a 6- or 9-month
period and submitted to the OFLC Administrator within the 120-day
period before the OFLC Administrator's determination can reflect
current labor market activities across a wide range of seasonal
agricultural production cycles and appropriately inform the annual
determination process. This process prioritizes current information,
without excluding older information that is relevant to the
determination.
The Department anticipates the majority of the information
published in the OFLC Administrator's annual determination will inform
the CO's transmission of the job order for interstate clearance under
Sec. 655.150, rather than impose additional employer-conducted
recruitment requirements under Sec. 655.154. For example, if the
Georgia SWA informs the OFLC Administrator that it receives interstate
referrals, generally, from the Florida SWA, the OFLC Administrator
would designate Florida as a labor supply State for Georgia in the
labor supply State determination posted on OFLC's website; however,
this information, alone, would not support additional employer-
conducted recruitment requirements in Florida without greater
specificity from either SWA regarding the appropriate and effective
means of recruiting qualified U.S. workers. Accordingly, when applying
the posted labor supply State determination during application
processing, the CO would transmit all job orders involving places of
employment in Georgia to the Florida SWA for posting on its intrastate
public job listing system; the CO would not instruct the employer to
conduct additional positive recruitment activities in Florida. However,
if the OFLC Administrator received more specific, credible information
about effective recruitment methods, such as information specific as to
the type of qualified workers available (e.g., tomato harvest workers),
the area within the State where the workers may be found (e.g.,
Immokalee, Florida), and the methods for apprising the workers of a job
opportunity (e.g., posting with a particular community organization
engaged with those workers), the OFLC Administrator's annual
determination of labor supply States would identify this area and type
of worker for additional recruitment and the CO's NOA would include
specific recruitment instructions and document retention information
applicable to employers in Georgia that are seeking tomato harvest
workers.
The additional positive recruitment requirement will be effective
on the date of publication for any employer that has not yet commenced
positive recruitment. As the Department decided not to adopt the
proposed optional pre-filing positive recruitment provision, discussed
in the preamble to Sec. 655.123, this means that, once published, the
additional positive recruitment requirements posted are in effect for
any employer to whom the NPC has not yet issued a NOA in accordance
with Sec. 655.143. One commenter remarked on the provision retained
from the 2010 H-2A Final Rule at paragraph (b) that requires an
employer's additional positive recruitment efforts be no less than the
kind and degree of recruitment efforts the employer ``made'' to obtain
foreign workers. The commenter recommended the Department change the
word ``made'' to the future tense ``makes'' to avoid suggesting that
foreign labor recruitment precedes U.S. worker recruitment. The
Department has revised this provision to ``may make'' to clarify that
the nature of the employer's foreign worker recruitment efforts, not
the timing of those efforts, is the subject of this provision.
One workers' rights advocacy organization reiterated its comment,
submitted in connection with an H-2B program rulemaking, in which it
urged the Department to require employers to conduct positive
recruitment in labor surplus areas designated by the Department. As
with comments discussed in Sec. Sec. 655.151 and 655.152, this comment
relates to a topic addressed in the 2019 H-2A Recruitment Final Rule
and, therefore, it is outside the scope of the current rulemaking.
However, as discussed in the 2019 H-2A Recruitment Final Rule, by
requiring the CO to post H-2A job orders on the Department's electronic
job registry at SeasonalJobs.dol.gov, each H-2A job opportunity will be
advertised broadly and disseminated to U.S. workers, including those in
labor surplus areas. Further, to the extent a labor surplus in a
particular State results in a trend of labor referrals to other States
or submission of specific information provided to the OFLC
Administrator regarding workers in a particular area who, if apprised,
would make themselves available for work elsewhere, the labor supply
State designation process will provide for additional recruitment in
that State.
The Department also received comments from a State governor and an
individual commenter suggesting the Department expand H-2A program
recruitment requirements to include an H-2ALC's clients (i.e., the
growers who contract with the H-2ALC to provide labor or services for
their agricultural operations). One of these commenters explained that
local workers would respond to recruitment for employment with a local
grower but not for employment with an unfamiliar H-2ALC. The other
commenter expressed concern with growers contracting with out-of-State
H-2ALCs, who will bring H-2A workers into the State, rather than in-
State FLCs, who employ local workers. These commenters urged the
Department to expand an H-2ALC's recruitment obligations to include
recruitment requirements for its client growers. One suggested the
Department require an H-2ALC to demonstrate that its client grower
unsuccessfully solicited bids from contractors that do not use H-2A
workers before contracting with an H-2ALC seeking a temporary labor
certification, while the other suggested the Department require both
the client grower and the H-2ALC to satisfy H-2A recruitment
requirements.
The Department declines to expand H-2A recruitment requirements to
parties other than an employer filing an Application for Temporary
Employment Certification or impose additional positive recruitment
requirements on out-of-State H-2ALCs generally. The Department believes
that an employer's satisfaction of the several methods of recruitment
required in the H-2A regulations will ensure an effective test of the
labor market. The Department requires all employers to conduct
recruitment through SWA circulation of job orders, a process that
encompasses various SWA recruitment activities, and through
advertisements posted on the Department's electronic job registry,
which broadly disseminates job opportunity information on the internet.
In addition, the H-2A regulations permit the CO to order specific
additional positive recruitment activities, on a case-by-case basis, if
the Department receives information that indicates these activities are
necessary to effectively disseminate information about the job
opportunity to U.S. workers.
4. Section 655.155, Referrals of U.S. Workers
The NPRM did not propose amendments to this section containing the
standards by which SWAs refer qualified, able, willing, and available
U.S. workers for employment in the H-2A program. The Department
received some comments on this provision, none of which necessitated
substantive changes to the regulatory text from the NPRM. Therefore,
this final rule retains this section from the NPRM without change.
The comments received on this section generally urged the
Department to require additional SWA screening of the workers referred
to employers through the employment services system. They suggested,
for example, SWAs ``vet'' self-referring applicants and refer only U.S.
workers who specifically request agricultural work. One stated that few
referred workers are actually interested in the jobs to which they have
been referred and considering uninterested workers is time consuming
and costly for employers. In addition, these commenters suggested that
SWAs verify the employment eligibility of each worker and confirm the
worker is available for the entire period of employment before
referring the worker to the employer.
The Department respectfully declines to revise this section. Not
only are these suggestions outside the scope of this rulemaking, but
the Department discussed suggestions like these at length in the
preamble to the 2010 H-2A Final Rule when declining to adopt them in
that rulemaking. See 75 FR 6884, 6905-6906. The Department's position
in this rulemaking remains the same as in 2010. Accordingly, the
Department has decided to maintain Sec. 655.155 in this final rule
without change.
5. Section 655.156, Recruitment Report
The NPRM proposed amendments to this section to simplify the
regulatory text related to an employer's obligation to report on its
efforts to recruit U.S. workers, conform the regulatory text to other
changes proposed in the NPRM, and clarify the content requirements for
the recruitment report. The Department received a few comments on this
provision, none of which necessitated substantive changes to the
regulatory text from the NPRM. However, in response to a comment
related to paragraph (b) of this section, the Department has made
revisions to clarify that an employer must produce its updated
recruitment report to the Department and not to any other Federal
agency that might request it without independent investigative or other
authority to do so. The Department also made clarifying edits to
paragraph (a), as discussed below. Finally, the Department also revised
this section to conform to the Department's decision not to adopt the
proposed staggered entry and optional pre-filing recruitment provisions
in this final rule, and made minor technical edits to conform to the
terminology used in Sec. 655.153. Otherwise, this final rule adopts
the proposed changes from the NPRM.
In the NPRM, the Department proposed to remove language in
paragraph (a) related to the timing of the employer's initial
recruitment report submission, as this timing requirement was addressed
at proposed Sec. 655.123(d) for those employers who engage in optional
pre-filing positive recruitment and at Sec. 655.143(b)(2) for those
employers who receive a NOA, which will contain instructions regarding
pre-certification recruitment report submission. Consistent with the
Department's decision not to adopt proposed Sec. 655.123, as discussed
above, paragraph (a) in this final rule retains the 2010 H-2A Final
Rule language requiring employers to submit the recruitment report on a
date specified by the CO in the NOA. In addition, the Department has
made a technical correction to paragraph (a) so that this paragraph
refers to the NOA provisions at Sec. 655.143, rather than the NOD
provisions at Sec. 655.141.
In addition, the Department proposed to add language in paragraphs
(a)(1) and (3) to make explicit the required content of a recruitment
report. A recruitment report describes a particular recruitment
activity clearly when it identifies the specific, proper name of the
recruitment source--rather than only the general type of recruitment
source (e.g., ``web page'' or ``online job board'')--and provides the
date(s) of advertisement for that recruitment source. In addition, a
recruitment report clearly describes the employer's satisfaction of its
obligation under Sec. 655.153 to contact former U.S. workers when it
either (1) affirmatively states the employer has no former U.S. workers
to contact; or (2) states that, before submitting the recruitment
report, the employer contacted former U.S. workers and describes the
means the employer used to make that contact. In this final rule, the
Department has made clarifying revisions to paragraphs (a)(1) and (3).
In paragraph (a)(1), the Department revised ``date'' to ``date(s),'' to
clarify that the recruitment report must identify the date--or range of
dates--of each recruitment activity, which may be different for each
recruitment activity. In addition, the Department revised paragraph
(a)(3) to clarify that an employer's statement in its recruitment
report about contacting former U.S. workers must identify the date(s)
of contact, as well as the means of contact, when describing the
employer's contact with such workers.
Two workers' rights advocacy organizations suggested the Department
add to the recruitment report content requirements in paragraph (a).
One suggested the Department align the H-2A and H-2B regulations by
requiring H-2A recruitment reports to confirm (1) community-based
organization(s) designated by the CO were contacted, if applicable; (2)
additional recruitment was conducted, as directed by the CO; and (3)
the bargaining representative was contacted, if applicable, and by what
means, or that the employer posted the availability of the job
opportunity to all employees in the job classification and area in
which the work will be performed by the foreign workers. The other
commenter thought the recruitment report should include a description
of the employer's recruitment of H-2A workers, including the resources
expended in such efforts; a description of the recruitment activities
of non-H-2A employers in the AIE for the occupation; and information
about how the employer checks worker qualifications, if applicable.
Paragraph (a)(1) already requires the employer to identify in the
recruitment report each recruitment source used and the date(s) of
recruitment using that source. This recruitment report content
requirement encompasses all recruitment activities the CO identifies in
the NOA. The Department appreciates the opportunity to clarify that
paragraph (a)(1) requires an employer's recruitment report to confirm
contact with a community-based organization or any other additional
recruitment activity directed in the NOA, if applicable. However, the
Department declines to revise paragraph (a)(1) further at this time.
The Department declines to add in this rulemaking the suggested H-
2B recruitment and recruitment report content requirements, or the
additional content related to recruitment efforts
outside of the employer's own efforts to recruit and hire U.S. workers.
Neither adopting the H-2B program's general requirement to contact a
bargaining representative or post notice at the place of employment,
nor including content in the recruitment report beyond the employer's
own efforts to recruit and hire U.S. workers during the H-2A
recruitment period were proposed for public comment. As such, expanding
the recruitment report content requirements in the manner suggested is
outside the scope of this rulemaking.
One of these commenters also urged the Department to make
significant additional changes to the recruitment requirements and
recruitment report procedures, beyond those the Department proposed for
public comment. For example, the commenter suggested the Department
require employers to submit a recruitment report before certification
is granted and, again, on the first date of need. In addition, the
commenter suggested that the Department transmit the recruitment report
to the SWA to solicit the case-by-case analysis of the employer's
recruitment efforts, as compared with those of non-H-2A employers in
the area, and the location of historical and/or current labor supply
patterns to inform additional positive recruitment activities under
Sec. 655.154(b). This commenter also suggested the Department ask the
SWA to provide a list of all U.S. worker referrals to each job so the
Department can review both the SWA's list and the employer's list and
contact all listed workers to verify the accuracy of the employer's
report. The commenter further suggested a website portal be created to
allow workers to report unlawful rejections. These suggestions also are
beyond the scope of this rulemaking and would require public notice and
solicitation of comments. However, the Department reminds concerned
parties that workers may call WHD's hotline at (466) 487-9243 (this is
not a toll-free number) or 1 (866) 4US-WAGE (toll-free number) and/or
contact their local district WHD office to file a complaint if they
believe they have been unlawfully rejected. In addition, workers may
call other federal agencies that enforce anti-discrimination laws if
they believe an H-2A employer has unlawfully rejected them. For
example, workers can call the Immigrant and Employee Rights Section of
DOJ's Civil Rights Division at 1 (800) 255-7688 if they believe an H-2A
employer rejected them or fired them because of their citizenship,
immigration status, or national origin.
The Department also proposed revisions to paragraph (b), the
provision addressing the employer's obligation to update its
recruitment report throughout the positive recruitment period at Sec.
655.135(d) and submit it for review, if requested. An agent remarked on
the revised language that would expand an employer's obligation to
produce its recruitment report, beyond the Department, to ``any other
Federal agency.'' The commenter expressed concern such information
sharing could have a ``significant chilling effect on workers'' and is
beyond the Department's statutory authority. The Department has
determined that further revision to paragraph (b) is necessary to more
clearly reflect the Department's intent. The Department intended to
retain the requirement for an employer to produce its recruitment
report to the Department, upon the Department's request, not to any
Federal agency that might request it without independent authority to
do so. In addition, the Department's intention was to clarify that the
information sharing provision at Sec. 655.130(f) in this final rule
applies to recruitment reports the Department may share with other
Federal agencies with authority to enforce compliance with program
requirements as appropriate for investigative and enforcement purposes.
The Department agrees the proposed language in paragraph (b) was
overbroad and could be misunderstood or misused, resulting in the
sharing of an employer's recruitment report with a Federal agency not
involved in H-2A program enforcement and integrity activities or for
purposes other than program-related investigative or enforcement
purposes. The Department's rationale for revising both Sec. Sec.
655.130(f) and 655.156(b) to more clearly address intergovernmental
information sharing, and the parameters for such sharing, along with
this commenter's related concerns, are discussed in the preamble to
Sec. 655.130(f). Accordingly, the Department has revised paragraph (b)
to require employers to produce recruitment reports only to the
Department (e.g., OFLC or WHD) and only upon the Department's request,
and to clarify that the same scope of information sharing applies to
recruitment reports as applies to information received in the course of
processing Applications for Temporary Employment Certification or in
the course of conducting program integrity measures such as audits.
Otherwise, the Department has adopted this section as proposed in the
NPRM, without change.
6. Sections 655.157, Withholding of U.S. Workers Prohibited, and
655.158, Duration of Positive Recruitment
The NPRM proposed minor amendments to these sections in the form of
technical corrections for conformity within the subpart. The Department
received no comments related to the prohibition of withholding U.S.
workers at Sec. 655.157 and only one comment expressing general
support regarding the duration of positive recruitment at Sec.
655.158, which the Department had retained from the 2010 H-2A Final
Rule. Therefore, this final rule adopts the proposed changes to these
sections from the NPRM without change.
F. Labor Certification Determinations
1. Section 655.161, Criteria for Certification
The NPRM proposed minor amendments to this section to clarify
existing rules and procedures. In paragraph (a), the Department
proposed to use a clear statement that the employer must comply with
all applicable requirements of 20 CFR parts 653 and 654 and all
requirements of 20 CFR part 655, subpart B, that are necessary for
certification, without the nonexclusive list of those requirements that
appeared in the 2010 H-2A Final Rule. Similarly, the Department's
proposed revisions to paragraph (b) simplified regulatory language to
more clearly state that the CO will count as available any U.S. worker
whom the employer must consider and whom the employer has not rejected
for a lawful, job-related reason. The Department received no comments
on the proposed amendments to the regulatory text. Therefore, this
final rule adopts the proposed changes from the NPRM without change.
2. Section 655.162, Approved Certification
The NPRM proposed minor amendments to this section to modernize and
simplify the Department's issuance of temporary agricultural labor
certifications to employers and the delivery of those certifications to
USCIS, while maintaining program integrity. The Department received a
few supportive comments on this provision, none of which necessitated
changes to the regulatory text. Therefore, as discussed below, this
provision remains unchanged from the NPRM.
Under this final rule, the Department will issue temporary
agricultural labor certifications electronically using a Final
Determination notice that
confirms certification and contains succinct, essential information
about the certified application. The CO will send the Final
Determination notice, as well as a copy of the certified Application
for Temporary Employment Certification and job order, both to the
employer and USCIS using an electronic method designated by the OFLC
Administrator.\110\ In cases where an employer is permitted to file by
mail as set forth in Sec. 655.130(c), the Department will deliver
certification documentation to the employer using a method that
normally assures next-day delivery. The Department will send the same
information to USCIS, using the same electronic method used to transmit
the temporary agricultural labor certification to the employer,
regardless of the employer's method of filing. Finally, consistent with
current practice, the Department will send a copy of the certification
documentation to the employer and, if applicable, to the employer's
agent or attorney.
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\110\ When an employer submits the petition to USCIS, it must
comply with DHS regulations and USCIS petition form instructions,
which may include printing and submitting a copy of the temporary
agricultural labor certification.
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3. Section 655.164, Denied Certification
The NPRM proposed minor amendments to this section to modernize the
Department's issuance of Final Determination notices that deny
temporary agricultural labor certifications and to simplify the
regulatory text by replacing details about the procedure for appealing
a Final Determination with references to Sec. 655.171, the section of
the regulation containing the standards and procedures for appeals. The
Department received a few supportive comments on this provision, none
of which necessitated changes to the regulatory text. Therefore, this
provision remains unchanged from the NPRM.
4. Section 655.165, Partial Certification
The NPRM proposed minor amendments to this section to modernize the
Department's issuance of partial temporary agricultural labor
certifications to employers and the delivery of those certifications to
USCIS, in addition to other amendments conforming to proposed changes
in other sections of the regulation. The Department received a few
comments on this provision, none of which necessitated changes to the
regulatory text. Therefore, as discussed below, this provision remains
unchanged from the NPRM.
The Department received no comments expressing opposition to the
proposed changes, but it did receive comments from two employers and an
agent expressing opposition to the general practice of issuing partial
temporary agricultural labor certifications. Two of these commenters
stated that the Department should not reduce a temporary agricultural
labor certification by the number of U.S. workers hired if the employer
attests that it still has a need for the full number of requested H-2A
workers, notwithstanding the hiring of any U.S. workers. The commenters
believed this approach would be helpful to employers where conditions
change and would not adversely affect the wages or working conditions
of U.S. workers, as the employer's obligation to hire qualified and
available U.S. workers and displace an H-2A worker to accommodate the
hiring of a U.S. worker, if necessary, would continue throughout the
recruitment period. One of these commenters acknowledged that Sec.
655.166 permits a redetermination based on unavailability of U.S.
workers but asserted that process is time consuming and costs the
employer additional filing fees to submit amended petitions with USCIS.
This commenter suggested that it would be more effective and efficient
to discontinue issuing partial temporary agricultural labor
certifications and rely on the employer's attestation to continue
hiring any qualified and available U.S. workers.
The Department appreciates the commenter's suggestion, but the
Department did not propose such a change, nor suggest it was open to
considering comments on this issue in the NPRM. Therefore, this comment
is beyond the scope of this rulemaking and the Department has adopted
the proposed changes to Sec. 655.165 without amendment.
5. Section 655.166, Requests for Determinations Based on
Nonavailability of U.S. Workers
The NPRM proposed minor amendments to this section to modernize the
Department's receipt and issuance of redetermination decisions,
consistent with the electronic filing and certification procedures
proposed in Sec. Sec. 655.130 and 655.162, in addition to other
technical amendments to simplify the provision generally. The
Department received no comments on the proposed amendments to the
regulatory text. Therefore, this final rule adopts the proposed changes
from the NPRM without change.
6. Section 655.167, Document Retention Requirements of H-2A Employers
The NPRM proposed minor amendments to this section to clarify under
paragraph (c)(1) that employers must document compliance with each
recruitment step applicable to the Application for Temporary Employment
Certification. The Department also proposed to add a new paragraph at
(c)(7) clarifying that if a worker voluntarily abandons employment
before the end of the contract period, or is terminated for cause, as
set forth in Sec. 655.122(n), employers must retain records
demonstrating they notified the NPC and DHS. The Department received a
few comments on this provision, none of which necessitated changes to
the regulatory text. However, as discussed below, the Department
believes it is necessary to make minor conforming amendments due to
prior revisions currently in effect based on the Department's 2019 H-2A
Recruitment Final Rule and one technical revision.
The Department received two comments objecting to the requirement
that employers retain records associated with notifying the NPC and DHS
of workers who abandon employment or are terminated for cause. These
commenters asserted such a requirement created an unnecessary burden
because the three-fourths guarantee and return transportation
obligations already provide an adequate incentive for employers to
provide timely notice to the Department. One of the commenters also
asserted the Department lacked authority to impose the requirement, as
proposed, and that USCIS must engage in its own rulemaking if it wishes
to require employers to retain this documentation.
The Department appreciates the comments received, but respectfully
disagrees. As explained below and in the preamble for Sec. Sec.
655.122(n), 655.141, and 655.153, the requirement to retain
documentation demonstrating the employer provided notice of abandonment
or termination is necessary for the Department's administration and
enforcement of the temporary agricultural labor certification program;
thus, the imposition of such recordkeeping obligations is within the
Department's authority under the INA. As stated in the NPRM, the
Department encounters H-2A employers that claim to have properly
notified the NPC regarding workers who have abandoned employment or
have been terminated for cause, but the employers frequently cannot
produce records of such notification when requested. Requiring
each employer to maintain records of the notification to the NPC, and
to DHS in the case of a worker in H-2A nonimmigrant status, supports
the Department's enforcement policy of investigating claims of
abandonment or termination. Further, retention of these records also
may benefit the employer. For example, in the event a U.S. worker who
abandoned employment or whom the employer terminated for cause later
claims the employer failed to make contact to solicit their return to
work, the employer's retained record of its contemporaneous notice to
the NPC could demonstrate that the employer was not required to contact
that particular U.S. worker under Sec. 655.153. In addition, the
Department is not imposing a record retention requirement on behalf of
DHS; DHS already has a record retention obligation in this context.
See, 8 CFR 214.2(h)(5)(vi)(B)(2).
In addition, the Department does not believe the requirement will
impose a significant burden on employers. As the commenters noted, many
employers already provide the Department notice of abandonment or
termination to take advantage of incentives provided in Sec. Sec.
655.122(n) and 655.153; for these employers, the only change is a
requirement to add a copy of the notice to the employer's document
retention file. In the NPRM, the Department assessed the proposed
burden of this recordkeeping requirement and determined the total
annual cost, among just over 4,900 employers, would range from $10,890
in 2020 to $15,988 in 2029. The Department believes the minimal burden
imposed on employers by this recordkeeping requirement is outweighed by
the Department's interest in ensuring program integrity.
Therefore, the Department has adopted the proposed changes to Sec.
655.167, with additional revisions necessary to conform to a change
adopted in Sec. 655.175 of this final rule and the current provisions
in effect, which were revised as a result of the 2019 H-2A Recruitment
Final Rule, and to remove an unnecessary parenthesis. Accordingly, this
final rule reflects the elimination of paragraph (c)(1)(ii) of the 2010
H-2A Final Rule--the document retention requirements associated with
print newspaper advertisements--and the redesignation of paragraphs
(c)(1)(iii) and (iv) as paragraphs (c)(1)(ii) and (iii), which the 2019
H-2A Recruitment Final Rule made effective October 21, 2019.
G. Post-Certification
1. Section 655.170, Extensions
The NPRM did not propose changes to the standards and procedures by
which an employer may apply to the CO for a short- or long-term
extension to its certified Application for Temporary Employment
Certification. However, the Department is making one minor technical
amendment under paragraph (b) to replace the term ``12 months'' with
``1 year'' as the maximum period for a long-term extension, except in
extraordinary circumstances, to ensure greater consistency with the use
of that same term adopted under Sec. 655.103(d) of this final rule
2. Section 655.171, Appeals
The NPRM proposed substantive amendments to this section containing
the standards and procedures by which an employer may request an
administrative review or a de novo hearing before an ALJ regarding a
decision issued by the CO, where authorized under this subpart. As
discussed in detail below, the Department received numerous comments
opposing all or some of the proposed changes to Sec. 655.171. After
carefully considering these comments, the Department has decided to
largely adopt the regulatory text proposed in the NPRM, with several
minor revisions, as discussed below. Such revisions include the
addition of regulatory language the Department adopted in a different
final rule, Rules Concerning Discretionary Review by the Secretary (85
FR 30608), and other modifications that either respond to concerns
raised by commenters or provide further clarity. Some comments simply
opposed all changes regarding the appeals section without explanation,
and do not necessitate changes to the regulatory text. Other comments
referenced Sec. 655.171 but appear to address changes related to Sec.
655.141; the Department has already addressed those comments in the
section of the preamble addressing Sec. 655.141.
a. Discretionary Review by the Secretary
Between the publication of the proposed rule at 84 FR 36168 (July
26, 2019) and this final rule, the Department published Rules
Concerning Discretionary Review by the Secretary (85 FR 30608), which
affected the language of this section. The current iteration of Sec.
655.171, with the changes effectuated by the Rules Concerning
Discretionary Review by the Secretary, is different from the iteration
of Sec. 655.171 that was in effect when the proposed rule was
published. Specifically, the Rules Concerning Discretionary Review by
the Secretary removed the language in paragraphs (a) and (b)(2) that
stated the decision of the ALJ was the final decision of the Secretary,
and it added language, pursuant to 29 CFR 18.95 stating that the
Secretary could assume jurisdiction over a ``case for which a de novo
hearing is sought or handled under 20 CFR 655.171(b),'' after the BALCA
had issued a decision. 29 CFR 18.95(b)(2).
In the NPRM, the Department had already proposed removing language
from the prior regulations that stated the ALJ's decision is the final
decision of the Secretary. This language was thought to be unnecessary
in light of the Office of Administrative Law Judge's (OALJ) Rules of
Practice and Procedure for Administrative Hearings, which state that
the ALJ's decision is the final agency action for purposes of judicial
review when the applicable statute or regulation does not provide for a
review procedure, as here. See 29 CFR 18.95; 20 CFR 655.171. The
removal of the ``final decision'' language was consistent with the H-2B
regulations, which lack similar language, and does not affect the issue
of whether the parties may appeal to the ARB, which is governed by
other authorities issued by the Department. See 20 CFR 655.61;
Secretary's Order 02-2012, Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board, 77 FR 69378 (Nov.
16, 2012). However, because the aforementioned Rules Concerning
Discretionary Review by the Secretary removed this language from the
regulations, the issue of the removal of the language is now moot.
The Department has merged the language added to this subsection by
the issuance of Rules Concerning Discretionary Review by the Secretary
with the originally proposed text.
b. Request for Review
The prior text of Sec. 655.171 outlined the procedure by which an
employer may request administrative review, the timeline for doing so,
and how the ALJ must make a decision. General information on the
request for review was previously located in sections of the H-2A
regulations that discussed the CO's authority and procedure for issuing
a specific decision (e.g., denied certification). See, e.g., Sec.
655.164. As proposed in the NPRM, the Department has amended the
regulations so that the language regarding the requests for review are
located in one location. The language conforms with the corresponding
appeals section in the H-2B regulations to the extent possible to
provide consistency across the programs.
To clarify an employer's existing administrative exhaustion
obligations, the NPRM specified in paragraph (a) that when a hearing or
administrative review of a CO's decision is authorized in this subpart,
an employer must request such review in accordance with Sec. 655.171
in order to exhaust its administrative remedies. No comments were
received on the text regarding the administrative remedies, and the
Department has adopted this language unchanged from the NPRM.
The newly added paragraph (a) describes the content of the request
for review and the procedures for its submission. This language was
drawn from the H-2B procedures at Sec. 655.61 as well as the already
existing text in the H-2A regulations. In paragraph (a)(1), the
Department proposed to extend the time in which an employer may file a
request for review from 7 calendar days to within 10 business days of
the date of the CO's decision to more closely align with the timeframe
to request review under the H-2B regulations. It also proposed that the
request for review must be received by--rather than sent to--the Chief
ALJ and the CO within 10 business days of the CO's decision. The
Department believes that specifying a time for receipt of the request
for review is reasonable because it enables the Department to more
easily determine if a request was filed in a timely manner. The longer
period of time provided to file a request for review allows the
employer more time to develop a robust request, which, in the case of a
request for administrative review, will also serve as the employer's
brief to the OALJ. To this end, the Department has included in the
regulations that the request must include the specific factual issues
the employer seeks to have examined as part of its appeal. Having this
information allows for the prompt and fair processing of appeals by
providing the ALJ and the CO adequate notice regarding the nature of
the appeal. One commenter supported the proposal to determine
timeliness based on the receipt of the request for review. The
Department received no comments that opposed the changes in paragraph
(a)(1), and therefore the Department has adopted the proposed language
unchanged from the NPRM.
In paragraph (a)(1), the Department has also added the phrase
``[e]xcept as provided in Sec. 655.181(b)(3).'' Upon review of the
proposed Sec. Sec. 655.171 and 655.181, it became apparent that the
regulatory text, as drafted, contained confusing information regarding
the timelines for submitting appeal requests. This added phrase makes
clear that Sec. 655.181(b)(3), while referencing Sec. 655.171, does
not change the existing timelines to file appeal requests under Sec.
655.181.
In paragraph (a)(4), the Department proposed including language
that the request for review clearly state whether the employer is
requesting administrative review or a de novo hearing. The Department
has found that in the past, some requests did not identify the type of
review sought by the employer, which would result in delays (as the ALJ
asked for clarification) or a type of review not desired by the
employer (as the ALJ presumed the employer requested a hearing). The
Department also proposed that the case will proceed as a request for
administrative review if the request does not clearly state the
employer is seeking a hearing. See 8 U.S.C. 1188(e)(1) (noting the
regulations must provide for expedited administrative review or, at the
employer's request, for a de novo hearing).
The Department received a few comments regarding this proposal. One
commenter supported the change and stated that this will expedite the
appeals process by avoiding ambiguity. Another commenter opposed the
proposal and characterized it as placing a burden on the employer to
identify the type of review requested. Another commenter asked for
clarification on whether an employer had to go through administrative
review before it could ask for a de novo hearing. The Department
disagrees with the characterization that articulating which type of
appeal an employer desires is a burden. The INA requires the
regulations provide for an expedited procedure for review, ``or, at the
applicant's request,'' a de novo hearing. 8 U.S.C. 1188(e)(1). The
employer may request whichever it prefers. The Department agrees with
the comment that the proposed change will improve judicial efficiency
and provide for more orderly and consistent administration of appeal
proceedings, and therefore has adopted the proposed language. Finally,
in response to the commenter seeking clarification, an employer does
not need to go through administrative review before asking for a
hearing. Therefore, the Department has adopted the proposed language
unchanged from the NPRM.
In paragraph (a)(7), the Department proposed to clarify that where
the request is for administrative review, the request may only contain
evidence that was before the CO at the time of their decision. This
language has been adopted unchanged from the NPRM. The Department
included this language in paragraph (a), which tracks language in the
administrative review section (paragraph (d)), so that employers or
their representative(s) can prepare their requests accordingly. The
Department has also included language that an employer may submit new
evidence with its request for a de novo hearing, which will be
considered by the ALJ if the new evidence is introduced during the
hearing. The Department included this language in paragraph (a), which
tracks language in the de novo hearing section (paragraph (e)), so that
employers or their representative(s) can assemble their requests and
prepare their cases accordingly. Comments regarding evidence submission
are discussed in the administrative review and de novo hearing sections
below.
c. Administrative File
Proposed paragraphs (b) and (c) drew on existing language in the H-
2A regulations and language from the H-2B appeals procedures to
reorganize information on the administrative file and the assignment of
the case into separate sections. Though not proposed in the NPRM, the
Department has decided to change how it refers to the ``administrative
file'' or ``appeal file.'' Both terms have been used. To be consistent,
the Department will simply refer to the document that OFLC compiles and
transmits as the ``administrative file.'' This is a nonsubstantive
change that is made only to provide clarity in the regulation.
The Department proposed paragraph (b) to specify that the CO would
send a copy of the OFLC administrative file to the Chief ALJ as soon as
practicable. One commenter approved of this additional language but
suggested that the regulations go further and require that the
administrative file be transmitted within a specific timeframe. This
commenter also suggested that because applications are filed
electronically, a 48- or 72-hour deadline for transmittal should be
feasible. Another commenter suggested that compiling the administrative
file was simply a matter of printing it. The Department understands the
concern for expediency and the sensitive timing of these cases, but
compiling the administrative file is not as simple as suggested. As
with any type of government or court record, the administrative file
must be assembled and reviewed for accuracy and completeness. Because
the length of this process is dependent on a variety of factors,
including the length of the record, the Department has determined
that a specific timeframe is not practicable. The Department believes
adding the language that the CO will send the administrative file as
soon as practicable balances expediency with the realities of agency
resources and therefore has adopted the proposed language that the file
must be sent as soon as practicable.
A number of commenters believed that the administrative file would
not be transmitted to the employer. This is not the case. The current
regulations do not explicitly state that the administrative file will
be sent to the employer and the NPRM mirrored that same language.
However, in response to these concerns, the text of paragraph (b) has
been amended to state that the CO will transmit the administrative file
to the Chief ALJ as well as to the employer, the employer's attorney or
agent (if applicable), and the Associate Solicitor for Employment and
Training Legal Services, Office of the Solicitor, U.S. DOL (counsel).
d. Assignment
In paragraph (c), the Department proposed language to clarify that
the ALJ assigned to the case may be a single member or a three-member
panel of the BALCA. The proposed amendments to paragraphs (b) and (c)
mirror the wording and organization of the appeals section in the H-2B
regulations. See Sec. 655.61(b) and (d). The Department did not
receive any comments regarding paragraph (c) and has adopted the
paragraph as proposed.
e. Administrative Review
The prior regulations regarding administrative review give only a
brief overview of the process. In the NPRM, the Department proposed
adding a specific briefing schedule, explaining the standard and scope
of review, and providing a revised timeline for decisions in cases of
administrative review. The Department received numerous comments on
these changes. After carefully considering these comments, the
Department has decided to substantially adopt the proposed language.
The changes made, and the reasons for making those changes, are
discussed below.
In paragraph (d)(1), the Department outlined a briefing schedule;
numerous commenters opposed the proposed change. Some argued that the
counsel for the CO would have an advantage in the appeal process. One
commenter suggested that this was because counsel would be able to
respond item-by-item to the arguments made by the employers. One
commenter was concerned that because the counsel for the CO has 7 days
after receiving the administrative file to submit a brief, and because
there is no set deadline for when the administrative file must be
transmitted to the counsel for the CO, the counsel for the CO would
have significantly more time to write a brief than the employer. Some
commenters expressed opposition on the grounds that employers would not
have the administrative file with them when writing their briefs, as
the brief must be submitted with the request for review. While many of
those commenters who expressed opposition on this ground believed they
would never receive the administrative file, which is not the case, the
concern that they would have to write a brief without the
administrative file is noted. Some suggested that not having concurrent
briefing would slow down the process of review.
The Department understands the commenters' concerns about timing
and fairness. As noted in the NPRM, because there was no regulatory
briefing schedule, concurrent or otherwise, there was often
inconsistency among cases, and neither party knew when briefs would be
due until an ALJ issued an order. Also, it was not uncommon that, due
to the practice of simultaneous briefing, issues raised by the employer
were not addressed by the counsel for the CO. A set briefing schedule
will ensure consistency of deadlines between cases and thus efficiency
in the appeals process. The CO filing a brief in response to the
employer's brief allows for a complete set of arguments, as
appropriate, which, in turn, more effectively assists the ALJ's
decision-making process. Through this updated rule, the employer has
been given 10 business days, instead of 7 calendar days, to file its
request for review. This provides the employer with ample time to write
a brief in support of its case and provides the employer as much, if
not more, time than the CO to draft and file its brief.
The Department does not agree that the counsel for the CO will have
an advantage over the employer with respect to the briefing schedule.
The administrative file contains documents the employer has submitted
to OFLC with its applications, and it contains communication back and
forth between OFLC and the employer. The employer should therefore have
the vast majority, if not all, of the documents contained in the
administrative file at the time it files its request for review.
Furthermore, the administrative file must be assembled and transmitted
to the parties ``as soon as practicable.'' A nonconcurrent briefing
structure may extend the timeline for adjudication of an appeal, but
the Department nonetheless believes that the benefit of a set time
schedule for briefing, and the benefits of having a complete set of
arguments, ultimately provide a more efficient and reliable process.
The Department invited the public to comment on other ways it could
address a briefing procedure while still ensuring expedited review. The
public submitted no such proposals, except to argue that no change
should be made and that the Department should keep concurrent briefing.
However, as stated, the regulations did not establish a briefing
schedule. To the extent that the argument to ``keep'' concurrent
briefing is a proposal, the Department explained in the proposal and
above why it has decided to adopt the proposed approach.
In paragraph (d)(2), the Department has set out clearly the
standard of review for administrative review cases. The Department did
not receive comments on the proposed paragraph (d)(2) and the
Department has adopted this section as proposed. The Department has
incorporated the arbitrary and capricious standard of review into
requests for administrative review, codifying a well-established and
longstanding interpretation of the standard of review for such
requests. See, e.g., J and V Farms, LLC, 2016-TLC-00022, at 3 & n.2
(Mar. 7, 2016).
In paragraph (d)(3), the Department has included language providing
that the scope of administrative review is limited to evidence in the
OFLC administrative file that was before the CO when the CO made their
decision. The Department included this language because the
administrative file may contain new evidence submitted by the employer
to the CO after the CO has issued their decision, such as when the
employer submits a request for review with new evidence, or a corrected
recruitment report with new information, after the CO has denied
certification. Although such evidence is in the administrative file,
this change was proposed to clarify that the ALJ may not consider this
new evidence because it was not before the CO at the time of the CO's
decision. Despite some commenters' assertion that the Department is
removing the ability to submit new evidence on administrative review,
this amendment incorporates legal principles already in existence for
H-2A cases, namely, that administrative review is limited to the
written record and written submissions, ``which may not include new
evidence.'' Sec. 655.171(a). A de novo hearing is the
only avenue by which an employer may introduce new evidence.
The Department has adopted the substance of paragraph (d)(3) but
has reorganized the wording of this paragraph for clarity. The language
now mirrors more closely the similar language in paragraph (e)(2). The
Department has also added for clarity the fact that the ALJ must
affirm, reverse, or modify the CO's decision, or remand to the CO for
further action, ``except in cases over which the Secretary has assumed
jurisdiction pursuant to 29 CFR 18.95.'' This concluding phrase was not
in the NPRM, nor was it in the amended language of Sec. 655.171 in the
Rules Concerning Discretionary Review by the Secretary (85 FR 30608).
However, the principle that the Secretary may assume jurisdiction over
cases in which administrative review was requested is contained within
the Rules Concerning Discretionary Review by the Secretary and is now a
part of the current regulations. 29 CFR 18.95(b)(1) states that a
decision by the BALCA constitutes the final administrative decision
except in cases over which the Secretary has assumed jurisdiction,
which include ``any case for which administrative review is sought or
handled in accordance with 20 CFR 655.171(a).'' The addition of the
language in paragraph (d)(3) codifies the principle of 29 CFR
18.95(b)(1) in this section of the regulations. This also makes the
language more consistent with similar language located in paragraph
(e)(2).
In proposed paragraph (d)(4), the Department has modified the
timeline in which the ALJ should issue a decision from 5 business days
to 10 business days after receipt of the OFLC administrative file, or
within 7 business days of the submission of the CO's brief, whichever
is later. This schedule conforms to the timeline in the H-2B appeals
procedures while continuing to provide for an expedited review
procedure. See Sec. 655.61(f). No comments were received on paragraph
(d)(4). The Department has made one change to proposed paragraph (d)(4)
for clarity. The paragraph had modified the individuals and entities
that receive the ALJ's decision to align with the recipients of ALJ
decisions under the H-2B regulations, namely, the employer, the CO, and
counsel for the CO. See Sec. 655.61(f). In this final rule, the
Department has added text to clarify that the employer's attorney or
agent (if applicable) will also receive the decision.
f. De Novo Hearing
The Department proposed changes related to the de novo hearing
process. After carefully considering the comments it received on this
proposal, the Department has decided to adopt the proposed language,
with minimal changes, as discussed below.
In paragraph (e)(1)(ii), the Department proposed changing the time
in which an expedited hearing must occur from 5 to 14 business days
after the ALJ's receipt of the OFLC administrative file. This proposed
change was based on the Department's administrative experience, and it
was intended to allow the parties reasonable time to adequately prepare
for a hearing while effectuating the INA's concern for prompt
processing of H-2A applications.
Some commenters opposed the proposal that the hearing must occur
within 14 business days of the ALJ's receipt of the administrative file
rather than within 5 business days. One explained that because there
was no time certain for the CO to send the administrative file to the
Chief ALJ and related parties, extending the time for a hearing could
cause ``irreparable harm'' to employers while they wait. The commenter
further argued that this time extension combined with the 10 calendar
days in which the ALJ may issue an opinion, along with alleged delays
by DHS and DOS, means that it is unlikely an employer will have its
workers by its start date of need.
The Department understands the concerns regarding timing and
expediency but has adopted the language as proposed. As stated in the
NPRM, the experience of the Department is that scheduling a hearing
within 5 business days is very difficult for not only the parties, but
also the ALJ. The extension of time is meant to provide more
preparation time, flexibility, and time for the parties to potentially
settle the case. The Department believes that holding a hearing within
14 business days is still working within an expedited timeline. To the
extent commenters suggested late arrival of workers is caused by
alleged delays from DHS or DOS, those comments cannot be resolved by
this regulatory process and are not within the Department's purview.
In paragraph (e)(1)(iii), the Department had proposed to provide
the ALJ broad discretion to limit discovery and the filing of pre-
hearing motions in a way that contributes to a fair hearing while not
unduly burdening the parties. As is the case with the 2010 H-2A Final
Rule, 29 CFR part 18 governs rules of procedure during the hearing
process, subject to certain exceptions discussed in this section and
part 18. Although 29 CFR 18.50 through 18.65. permits an ALJ to
exercise discretion in matters of discovery, the Department's language
makes explicit the ALJ's broad discretion to limit discovery and the
filing of pre-hearing motions in the circumstances of a hearing under
the H-2A program. The Department has included this language because in
the H-2A program, the time to hold a hearing and to issue a decision
following that hearing are expedited. This expedited timeline makes the
need for limits on requests for discovery and the filing of pre-hearing
motions is particularly pronounced. The administrative procedures in 29
CFR part 18, and particularly the sections on discovery and motions,
were not specifically designed for the H-2A program, nor for situations
that require an accelerated adjudication process, as is required by the
H-2A program. As such, the Department has provided the ALJ with broad
discretion to restrict discovery and the filing of pre-hearing motions
to situations where they are needed to ensure fundamental fairness and
expeditious proceedings. One commenter sought clarification regarding
the ALJ's discretion and asked if this text was a change to current
practice. The proposed regulation was not a change to current practice,
but rather a codification of the same. No other comments were received
in relation to this subsection and the Department has adopted it as
proposed.
In paragraph (e)(1)(iv), the Department proposed a 10-calendar-day
timeframe in which an ALJ must issue a decision after a hearing. The
Department invited the public to comment on whether this time period
should be modified, but no proposals were received. The Department has
adopted the language as proposed.
In paragraph (e)(1)(v), the Department clarified that for cases in
which the employer waives its right to a hearing, the proper standard
and scope of review is the standard and scope used for administrative
review. Under the INA, the regulations must provide for expedited
administrative review or, at the employer's request, a de novo hearing.
See 8 U.S.C. 1188(e)(1). If the employer requests a de novo hearing but
then waives its right to such a hearing, the case reverts to
administrative review. In that circumstance, the standard and scope of
review for administrative review applies. Similarly, should an ALJ
determine that a case does not contain disputed material facts to
warrant a hearing, review must proceed under the standard
and scope used in cases of administrative review. As no comments were
received on this clarification, the Department has adopted the language
as proposed.
In paragraph (e)(2), the Department has articulated the standard
and scope of review for de novo hearings. The Department has clarified
that the ALJ will review the evidence presented during the hearing and
the CO's decision de novo. This standard of review recognizes that new
evidence may be introduced during the hearing and allows the ALJ, as
permitted under sec. 218(e)(1) of the INA, to review such evidence and
other evidence introduced during the hearing de novo. See 8 U.S.C.
1188(e)(1) (noting regulations shall provide for a de novo
administrative hearing at the applicant's request). Similarly, the INA
permits the ALJ to review the CO's decision de novo when the employer
requests a de novo administrative hearing. See id. This is the standard
of review under the INA, and the Department has codified it in the
regulations so that the standard is clearly and consistently applied.
As no comments were received regarding the standard of review, the
Department has adopted the language as proposed.
The Department has recognized that there may be instances when the
issues to be resolved are purely legal, or when only limited factual
matters are necessary to resolve the issues in the case. Paragraph
(e)(2) has been revised to address this possibility and provide that
the ALJ may resolve the issues following a hearing based only on the
disputed factual issues, if any. Two commenters suggested that the
proposed language would limit the issues an ALJ could review and
adjudicate. This was not the intention, and the language in this rule
simply codifies an already existing practice. Currently, the OALJ
already relies on mechanisms, including, but not limited to, status
conferences and pre-hearing exchanges, to determine which issues raised
in the request for review can be resolved as a matter of law and which
issues involve disputed material facts requiring the introduction of
new evidence during a hearing. Should an ALJ determine that an issue is
purely legal and does not contain disputed material facts to warrant a
hearing, review must proceed under the standard and scope used in cases
of administrative review. The wording of this language has been
slightly revised in this final rule for clarity, but the substance
remains the same as it was in the NPRM.
The Department proposed and subsequently adopted language that
states that if new evidence is submitted with a request for de novo
hearing, and the ALJ determines that a hearing is warranted, the new
evidence submitted with the request for review must be introduced
during the hearing to be considered by the ALJ. This allows for the
introduction of new evidence, and for the de novo review of that
evidence by the ALJ, while ensuring new evidence submitted with a
request for review is subject to the same procedures that apply to new
evidence introduced during a hearing, such as the opportunity for
cross-examination and rebuttal.
Finally, as part of its efforts to conform this section with the
appeals section in the H-2B regulations, the Department has moved the
language that the ALJ must affirm, reverse, or modify the CO's
decision, or remand to the CO for further action, except in cases over
which the Secretary has assumed jurisdiction pursuant to 29 CFR 18.95,
from proposed paragraph (e)(3) to proposed paragraph (e)(2), which
addresses the standard and scope of review.
In paragraph (e)(3), the Department has adopted changes regarding
the issuance of the decision for a de novo hearing as proposed with
only the one minor change. Paragraph (e)(3) had modified the
individuals and entities that receive the ALJ's decision to align with
the recipients of ALJ decisions under the H-2B regulations, namely, the
employer, the CO, and counsel for the CO. See 20 CFR 655.61(f). In this
final rule, the Department, in paragraph (e)(3), has added that
employer's attorney or agent (if applicable) will also receive the
decision.
g. Other Comments
Finally, there were some general comments, which the Department
addresses here. As discussed below, the Department has not made any
changes in response to these comments. One commenter proposed that the
CO be prohibited from denying applications that are similar to
previously approved applications unless the CO provides notice to
employers that, as the commenter characterized it, those previously
approved temporary agricultural labor certifications could no longer be
``relied upon'' for future applications. The Department declines to
adopt this suggestion. The Department rejects the suggestion that
previously approved applications mandate approval in the future. Each
application for a temporary agricultural labor certification must be
processed on its own merits, and each must be processed according to
the time and place for which the job opportunity will take place. See 8
U.S.C. 1188(a) and (b) (noting that a temporary agricultural labor
certification certifies, among other things, that there are ``not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed, to perform the labor or
services involved in the petition''). The regulatory appeals process
provides an adequate opportunity for employers to seek review of the
CO's decisions, as is required by statute. 8 U.S.C. 1188(e)(1). To the
extent that this commenter alleged that previous applications may have
been processed or adjudicated outside a regulatory timeline, such an
allegation falls outside the scope of this rule to address specific
prior applications or appeals.
One commenter expressed concern that the Department would eliminate
the opportunity to appeal from an ALJ's temporary agricultural labor
certification decision to the Department's ARB. However, employers did
not previously have the ability to appeal a temporary agricultural
labor certification decision to the ARB, nor was such an option
proposed in the NPRM.
One commenter suggested that the Department establish a system by
which employers could seek out advisory opinions, which could be
adjudicated through the appellate system, and which would clarify the
Department's interpretation of the regulations. This submitted comment
is beyond the scope of the proposed rule and cannot be implemented
through this regulatory rulemaking.
3. Section 655.172, Post-Certification Withdrawals
The NPRM proposed technical amendments to this section to relocate
the job order withdrawal provision from Sec. 655.172(a) to Sec.
655.124, in addition to amendments to relocate the Application for
Temporary Employment Certification withdrawal provision from Sec.
655.172(b) to Sec. 655.136, as discussed above in the preamble for
those sections. The Department proposed to reorganize these withdrawal
provisions so that, for example, the procedure for withdrawing the
Application for Temporary Employment Certification is located in the
section of the rule where an employer at that stage of the temporary
agricultural labor certification process would look for such a
provision. The Department also proposed language in this section
reiterating current requirements that withdrawal does not nullify an
employer's obligation to comply with all the terms and conditions of
employment
under the certified Application for Temporary Employment Certification.
The Department received no comments on the proposed amendments to
reorganize the withdrawal provisions in the regulatory text. Therefore,
this final rule adopts the proposed changes from the NPRM without
change. Accordingly, an employer seeking withdrawal of a certified
Application for Temporary Employment Certification must submit a
withdrawal request, in writing, to the NPC. In the withdrawal request,
the employer must identify the temporary agricultural labor
certification to be withdrawn and state the reason(s) for the
employer's request. Similar to the withdrawal provisions at Sec. Sec.
655.124 and 655.136, this section adopts the proposed language to
reiterate that the withdrawal of a temporary agricultural labor
certification does not nullify an employer's obligations to comply with
the terms and conditions of employment under the certification with
respect to all workers recruited in connection with the application and
job order.
The Department received two comments stating that employers should
not be bound to comply with obligations under the Application for
Temporary Employment Certification and related job order after
withdrawal, apparently without regard to the timing of withdrawal.
These comments have already been addressed above in the section of the
preamble related to Sec. 655.124.
4. Section 655.173, Setting Meal Charges; Petition for Higher Meal
Charges
The NPRM proposed minor amendments to this section that contains
the methodology for setting the annual rates at which an employer may
charge workers for meals and the procedures by which an employer may
request approval from the CO for a higher meal charge amount. The
Department received a few comments related only to the proposal to
establish a ceiling on the meal charge amount the CO may approve. As
discussed in detail below and after carefully considering these
comments, the Department has decided to largely adopt the regulatory
text proposed in the NPRM, with revisions to remove language related to
establishing a maximum higher meal charge amount.
As provided in Sec. 655.122(g), employers must provide each worker
three meals a day or furnish free and convenient cooking and kitchen
facilities so that the worker can prepare meals. If an employer
provides workers with three meals per day, rather than providing them
with free and convenient cooking and kitchen facilities, the employer
may not charge workers more than the allowable meal charge set by the
Department's regulations at Sec. 655.173(a) for providing those meals,
unless and until the CO authorizes the employer to charge a higher
amount pursuant to Sec. 655.173(b).
The Department proposed no changes to the existing methodology used
to annually adjust the standard amount an employer may charge workers
for providing them with three meals per day. The Department proposed to
update the amount stated in paragraph (a) to reflect the current
standard meal charge amount in effect (i.e., $14.00 per day) and to
more clearly characterize it as the starting point for future annual
updates. 85 FR 16133 (Mar. 20, 2020). In addition, the Department
proposed to make the annual adjustments effective on a date no more
than 14 calendar days after publication in the Federal Register, to
provide employers a brief period for adjustment to the updated rate,
consistent with the Department's proposed approach to wage rate
updates. See, e.g., Sec. 655.120(b)(3). The Department did not receive
comments on these revisions to paragraph (a). However, consistent with
the Department's reasoning and decision not to adopt an adjustment
period of up to 14 calendar days for both AEWR updates and prevailing
wage updates, the Department has not adopted the proposed adjustment
period for meal charge updates. Therefore, apart from a grammatical
edit and removal of the proposed 14-day adjustment period, the
Department has adopted paragraph (a) without change in this final rule.
In paragraph (b), the Department proposed to retain the basic
process an employer may follow to petition the CO for authorization to
charge workers more than the standard meal charge set under paragraph
(a), with revisions for clarity and to address situations in which an
employer's higher meal charge petition is based on its use of a third
party to provide meals to workers (e.g., hiring a food truck to prepare
and deliver meals or engaging restaurants near the housing or place of
employment to provide meals). In paragraph (b)(1), the Department
clarified that the CO will deny the employer's petition, in whole or in
part, if the documentation the employer submits to the CO does not
justify the higher meal charge requested, with paragraph (c) retaining
the employer's option to appeal.
In paragraph (b)(1)(i), the Department retained the 2010 H-2A Final
Rule's documentation requirements for employers that directly provide
meals to workers (i.e., through its own kitchen facilities and cooks),
with clarification that the employer's documentation must include only
permitted costs. The Department proposed a new paragraph (b)(1)(ii) to
address documentation requirements applicable to employers that provide
meals to workers through a third party. Specifically, the employer's
documentation must identify each third party engaged to prepare meals,
describe how the employer's agreement with each third party will
fulfill the employer's obligation to provide three meals a day to
workers, and document each third party's charges to the employer for
the meals to be provided. The employer must retain records of payments
to the third party and deductions from a worker's pay, as provided in
Sec. 655.167(b). Finally, the employer, or anyone affiliated with the
employer, is prohibited from receiving a direct or indirect benefit
from a higher meal charge to a worker. The Department did not receive
comments on these proposals and is adopting them without change in this
final rule.
In paragraph (b)(2), the Department clarified the effective date
and scope of validity of an approved higher meal charge petition. In
addition to waiting for the CO's approval, which may specify a later
effective date, an employer must disclose to workers any change in the
meal charge or deduction before it may begin charging the higher rate.
Further, the Department clarified that the CO's approval of a higher
meal charge is valid only for the meal provision arrangement presented
in the higher meal charge petition and only for the meal charge amount
the CO approved. If the approved meal provision arrangement changes,
the employer would not be permitted to charge workers more than the
standard meal charge set under paragraph (a) until the employer
repeated the higher meal charge petition process for the new meal
provision arrangement and received the CO's authorization to charge a
higher amount. The Department did not receive comments on these
revisions and is adopting them without change in this final rule.
Finally, the Department also proposed to reintroduce an objective
ceiling on meal charges through a maximum higher meal charge amount. In
part, the Department thought an upper limit on meal charges could help
to ensure that an employer's choice to engage a third party to provide
three meals a day to workers would not unreasonably reduce workers'
wages. The maximum higher meal charge amount the Department proposed
was derived from the last
maximum allowable higher meal charge amount published in the Federal
Register and effective in 2008, updated using the same methodology as
in paragraph (a). The Department invited comments on methods for
processing and evaluating higher meal charge requests involving third
party prepared meals, including alternative methods for determining and
updating a higher meal charge ceiling that would not inhibit the
provision of sufficient, adequate meals and will not reduce workers'
wages without justification.
The Department received several comments from trade associations,
agents, and an employer that expressed strong opposition to the
proposal to impose a ceiling for higher meal charge petitions. The
commenters generally viewed the ceiling as ``artificial.'' Some
expressed concern that the maximum rate proposed would often be below
actual meal costs, with one asserting that such a limitation would
result in some employers providing smaller and lower quality meals to
their workers to stay within budget. Another agent saw no added benefit
from a maximum amount because higher meal charge requests are subject
to the CO's approval, so there is no need to place an arbitrary limit
on the CO's discretion. The Department did not receive comments
suggesting alternative methods to determine an appropriate higher meal
charge limitation.
After consideration of the comments received, the Department has
decided not to adopt the proposed ceiling on the meal charge amount the
CO may approve and, therefore, has revised paragraphs (b) introductory
text and (b)(1) to remove language related to a maximum higher meal
charge amount. The Department appreciates and shares commenters'
concerns that the proposal would not adequately account for various
factors that could influence the costs of employer-provided meals, such
as the variance of food costs across localities or the need to
accommodate a worker's dietary restrictions, and could result in
employers providing smaller and lower quality meals to their workers to
stay within budget in certain circumstances. The Department also agrees
the proposal would have placed an unnecessarily rigid limitation on the
CO's discretion and might have prevented the CO from approving higher
meal charge requests even in cases where the employer provides ample
documentation of actual costs, compelling justification for the higher
meal charge, and solid evidence the employer could not have provided
adequate meals at a lower cost.
The Department has therefore determined that the reasonable
approach, at this time, is to allow the CO to determine whether to
approve higher meal charge petitions, on a case-by-case basis, based on
the CO's evaluation of the employer's documentation. Particularly in
meal arrangements involving third-party preparers, the CO will consider
whether the employer has demonstrated it cannot provide the required
meals for the standard costs permitted by paragraph (a) and the higher
meal charge requested, based on the meal provision arrangements
presented in the petition, is necessary, not merely convenient or a
means of reducing an employer's housing costs (e.g., when motel rooms
with kitchenettes are available at a higher rate). In administering
this final rule, the Department will continue to consider ways to best
protect workers from improper deductions, while also providing
sufficient discretion to the CO and adequately accounting for the
various factors that may influence the cost of employer-provided meals.
One State government commenter reiterated a comment submitted in
connection with the meal provision obligation at Sec. 655.122, stating
that even where an employer provides three meals per day that satisfy
minimum Federal standards, a worker may need to supplement those meals
through individually purchased and stored food to satisfy nutritional
and caloric needs and urging the Department to allow this practice. A
pattern of workers finding it necessary to supplement employer-provided
meals might suggest that the employer's meals are insufficient and its
meal provision arrangement should be reevaluated. However, where an
employer is providing sufficient meals and workers wish to supplement
those meals with additional food (e.g., snacks), the Department notes
that nothing in the regulations prohibits or prevents workers from
purchasing, storing, and eating food not provided by the employer.
5. Section 655.174, Public Disclosure
The NPRM did not propose changes to the longstanding practice of
providing publicly accessible information about users of the H-2A
program on the OFLC website. Therefore, this final rule retains the
current requirements.
6. Section 655.175, Post-Certification Amendments
The 2010 H-2A Final Rule does not permit amendments to an
application after the CO issues a Final Determination. Thus an employer
that experiences changed circumstances after certification is required
to submit a new and substantially similar Application for Temporary
Employment Certification and job order. The NPRM proposed to add a new
provision permitting an employer to request minor amendments to the
places of employment listed in the certified Application for Temporary
Employment Certification and job order under limited circumstances and
subject to certain conditions. The proposal was intended to recognize
that an employer may experience changed circumstances, wholly outside
of their control, after certification, necessitating adjustments to
certain aspects of the anticipated work plan. The Department's proposed
provision would have allowed for narrowly tailored post-certification
amendments to alleviate the burdens with filing and processing a new
Application for Temporary Employment Certification and provide
employers with a certain degree of flexibility to more quickly respond
to changing needs, without compromising the H-2A program's integrity or
changing the terms and conditions of employment to which the employer
already attested. The Department received a significant number of
comments on this provision. After careful consideration of comments,
the Department has decided not to adopt the proposed post-certification
amendments provision at Sec. 655.175, as discussed in detail below.
The majority of comments from employers, associations, and agents
that addressed the proposed post-certification amendment provision
expressed general support and viewed this provision as a practical,
reasonable administrative improvement that would simplify the H-2A
program, reduce burdens on employers by providing flexibility to
accommodate changed circumstances after certification within limits
appropriate to protect program integrity, and improve the accuracy of
information available to the Department regarding worker location,
especially in the case of workers that travel from site to site when
employed by FLCs or itinerant employers. An agent explained that
requiring an employer to file a new application to add a place of
employment within the certified AIE is burdensome and restrictive
because the employer has already completed a labor market test for that
area and the period of need. Several of the comments provided examples
of the types of circumstances in which a post-certification amendment
would help producers stay in compliance with the
rule while adapting to on-the-ground conditions. For example,
situations like late snow, drought, or excessive rain may prevent
access to rangeland, or wildfire or drought may alter or eliminate
vegetation on the rangeland, such that ranchers must relocate herds, on
short notice, to other rangeland with vegetation of sufficient quality
and quantity available for grazing. Other examples commenters cited
included severe adverse weather, changes in vegetative growing
conditions, sudden presence of predators, disaster situations, and
unanticipated planting to replace lost crops. An agent requested the
Department include examples, unrelated to weather, constituting good
and substantial cause. Commenters provided non-weather examples
including wildfires, predators, and inability to access certain
locations due to route conditions, which are discussed above.
The Department also received a significant number of comments from
workers' rights advocacy organizations, labor unions, State agencies,
and elected officials expressing concerns about the proposed post-
certification amendments provision. Commenters expressed concern that
this provision would provide employers with unilateral ability to make
mid-season changes to the terms and conditions of employment, which
they asserted is unfair to workers who are not able to negotiate or
appeal changes made after the job begins. These commenters also
expressed concerns that the proposal might jeopardize the labor market
test, create occupational instability, complicate wage determinations,
hinder the work of workers' rights advocacy organizations, lead to
worker exploitation, disadvantage employers that do not employ H-2A
workers, and result in employer abuse of the attestation-based process.
In response to the Department's request for comments on ways to
balance employers' need to adapt quickly to changed circumstances with
the Department's need to protect program integrity, a workers' rights
advocacy organization asserted that the timeline for processing an
Application for Temporary Employment Certification is already short
enough to accommodate an employer's need to adapt to changing
circumstances. The commenter asserted the proposal would violate the
Department's statutory obligation by relying on employer assurances
that they met all program requirements, including those vital to
workers' rights (e.g., workers' compensation and wage rate for a new
State). Two U.S. Senators requested the Department abandon the
proposal, asserting the Department can balance its goals within the
current regulatory framework, specifically the pre-certification
amendment provision at Sec. 655.145 and the emergency situations
waiver provision at Sec. 655.134. In contrast, a few trade
associations thought the proposal was sufficiently limited to allow
employers to react quickly to unforeseen circumstances without
compromising the integrity of the temporary agricultural labor
certification.
A workers' rights advocacy organization asserted that the
Department had not provided sufficient data or rationale to explain how
this proposal furthers regulatory or statutory goals. This commenter
also stated that even if the employer provides a copy of the amended
temporary agricultural labor certification to workers, H-2A workers who
are told to work at different worksites, possibly in different States,
may not be certain that the work is permitted under their H-2A visa.
This commenter also believed the proposed post-certification amendment
process would be abused by H-2ALCs and would permit employers to use
the process as a ``tool to further their illegal preference for H-2A
workers.''
Some commenters asserted the proposal conflicted with workers' need
to know the job terms before accepting an H-2A job opportunity, which
could negatively affect U.S. workers' access to jobs and deter them
from applying. Two U.S. Senators and one of the workers' rights
advocacy organizations asserted the employment of foreign workers at
worksites not disclosed to U.S. workers would not only disadvantage
U.S. workers, but may increase the risk of exploitation, trafficking,
and labor abuses. The senators further asserted that, in conjunction
with the Department's proposal to determine the AEWR for specific
occupations, post-certification amendments to worksites would
unnecessarily complicate wages for employers and workers, greatly
increasing the risk of workers being paid an incorrect wage. The
senators also believed the proposal unnecessarily increased the
administrative burden on employers and defeated the Department's
objective of simplifying the H-2A program.
Some commenters viewed post-certification changes to worksites as
compounding their general concerns about the labor market test, the
proposed option for staggered start dates, and the proposed 30-day
period replacing the 50 percent rule. Two workers' rights advocacy
organizations expressed concern the proposal did not require additional
recruitment. One of the commenters asserted workers must know where
they will be required to work in order to assess housing,
transportation, terrain, facilities, quality of crops, and other
factors that affect workers' interest in potential employment. This
commenter expressed particular concern about situations in which the
certified AIE crosses State lines because the proposal would not
require the employer to conduct additional positive recruitment in the
new State or allow the SWA in the new State to evaluate the job order
and availability of workers, which it feared would result in lost job
opportunities for U.S. workers.
A State governor expressed concern the proposal could create
hardships for U.S. workers who have to find their way to the new
worksite or risk being fired, which they believed would be a particular
concern in a situation where the employer has a ``no rehire policy''
and might invoke the policy to refuse to hire those workers who had to
quit or were fired for refusing to report to an additional work
location. One of the workers' rights advocacy organization commenters
expressed concern about U.S. workers who might lose jobs at the added
place of employment, such as former workers with seniority at that
worksite who might not be contacted to determine whether they are
available for the job. The commenter expressed particular concern about
situations in which an H-2ALC adds a place of employment where workers
were directly hired by the farmer in prior years.
A State governor and one of the workers' rights advocacy
organizations feared that the proposal would permit misuse of the
program by employers, such as reforestation contractors, employing
workers in many locations, because these employers might test the labor
market in one AIE, but actually employ workers in another area. The
governor further expressed concern the proposal would not provide the
SWA sufficient time to test the labor market for domestic workers in
the new locations because amendments to worksites after certification
would require changes to the job order in the SWA system, as well as
changes to recruitment posters and advertising that the SWA creates to
notify the community of the jobs available. The governor also noted
domestic workers at the new locations will need to be made aware of the
change in order to know if they are in corresponding employment under
the H-2A certification.
In addition to comments expressing support or opposition to the
proposed
post-certification amendments, the Department received several comments
requesting specific changes to the proposal or suggesting alternatives
to one or more aspects of the proposal. Comments from employers,
associations, and agents generally urged the Department to expand the
scope of post-certification amendments, ease the proposed restrictions
on the amendments, and clarify requirements for approval of amendment
requests. Some commenters mistakenly believed the provision would
permit employers to increase the number of workers and add work
locations after certification as they acquire additional work (e.g.,
new contracts or fields) in the normal course of business. Several
commenters also urged the Department to provide additional guidance and
clarity regarding various aspects of the proposed provision. An
international recruitment company asked the Department to define more
clearly the terms ``minor changes,'' ``good and substantial cause,''
``circumstance(s) underlying the request,'' ``reasonably foreseen,''
``wholly outside the employer's control,'' and ``material terms and
conditions.'' An agent and two farm owners urged the Department to be
flexible in evaluating ``good and substantial cause,'' expressing
concern that if an employer's burden of proof is too high it could
render post-certification amendments unworkable. One of these
commenters believed the Department should apply a more flexible
definition of ``good and substantial cause'' than it applies to
emergency situation requests under Sec. 655.134.
Regarding the time provided for the CO to review these requests,
several commenters simply stated post-certification amendment requests
should be processed as quickly as possible or otherwise without delay.
An international recruiting company suggested employers submit real-
time updates regarding the workers' location to the NPC, rather than
submitting individual requests and waiting up to 3 days for CO
approval. In contrast, a workers' rights advocacy organization opposed
the proposed 3-business-day review period, asserting this would not
provide sufficient time to review the request and assess the effect on
the labor market test.
The Department also received comments addressing time limitations
on post-certification amendment requests. A workers' rights advocacy
organization argued if the Department adopts a post-certification
amendment provision, the amendments must be limited to a post-
certification time period shorter than 30 days after certification, the
shortest period the Department mentioned as an option in the NPRM. An
individual commenter suggested the Department either permit post-
certification amendments until 50 percent of the work contract period
has elapsed or extend the employer's hiring obligation to 30 days after
any amendment to the temporary agricultural labor certification. In
contrast, a few trade associations urged the Department to permit
employers ``ample'' time to submit post-certification amendments
requests because the circumstances necessitating these amendments are
not bound by any regulatory limit and can happen at any time.
After careful consideration of all comments, as stated above, the
Department has decided not to adopt the post-certification amendment
provision in this final rule. Although the Department did not intend
for the proposed provision to have permitted post-certification
amendments that changed the terms and conditions of employment (e.g.,
adding places of employment in a different AIE than certified), the
Department recognizes commenters' concerns. The Department is sensitive
to the concerns about the potential for changed terms and conditions of
employment and ensuring U.S. workers' access to job opportunities. The
Department agrees that permitting employers to add places of employment
beyond the AIE and the States certified would change the terms and
conditions of employment without CO review, could permit employers to
use the post-certification amendment process in a way that undermines
the Department's underlying finding regarding U.S. worker availability,
and could require the employer to secure additional documentation of
the type that would have been subject to the CO's review during
application processing (e.g., evidence of workers' compensation
compliance in the new State and, potentially, housing). These types of
changes are beyond the scope of what the Department believes is
appropriate to permit under a post-certification, expedited review
process. The Department appreciates the concerns of a workers' rights
advocacy organization and State governor regarding potential job losses
for workers with seniority at that worksite who might not be contacted
to determine whether they are available for the job and workers who may
be unable or unwilling to report to a new worksite. The Department
agrees an effective post-certification amendment provision should
require the employer to contact former U.S. workers for each added
place of employment and solicit their return to the job opportunity and
that the post-certification amendment process may require a carefully
tailored expedited process to guarantee employers engage in such
contact. The Department also appreciates and agrees with commenters'
concern about the necessity of providing sufficient time to assess the
effect of the amendment on the labor market test. Finally, the
Department appreciates the State governor's comment expressing concern
regarding the process for apprising corresponding workers at new
worksites of their rights and protections and the Department agrees
that an effective post-certification amendment provision must more
clearly address employers' obligation to reevaluate whether its workers
are engaged in corresponding employment and timely disclose to workers
approved amendments to the work contract, in compliance with Sec.
655.122(q).
While the Department understands the importance of providing
flexibilities that permit employers and associations to quickly respond
to exigent circumstances requiring minor amendments to places of
employment after their applications are certified, the Department has
determined that the proposal would require significant revisions to
provide greater clarity to employers and ensure post-certification
amendments do not adversely affect workers similarly employed in the
AIE and those U.S. workers seeking employment. In light of the
substantial and numerous commenter concerns, the Department does not
believe the proposal, even with significant revisions, will satisfy the
policy considerations underlying this final rule. Notwithstanding, as
noted by the U.S. Senators and workers' rights advocacy organization
commenters, the Department agrees that the existing regulations already
provide a limited degree of flexibility to employers to react to
exigencies and changing circumstances. Accordingly, the Department
declines to adopt the proposal in the NPRM at this time. Under this
final rule, as under the 2010 H-2A Final Rule, the employer may request
certain amendments under the provisions set forth at Sec. 655.145, in
situations where the employer could foresee the need for amendment
after filing, but prior to the CO issuing a Final Determination, and,
if necessary, may file a new Application for Temporary Employment
Certification, using the emergency situations procedures at
Sec. 655.134 to address changes not permitted under Sec. 655.145. For
example, if unusually heavy storms and rains occur after the employer
submits its Application for Temporary Employment Certification, the
employer can assess impacts on crop conditions and its temporary need
and may determine it is appropriate to reduce staffing levels for the
job opportunity described on the pending Application for Temporary
Employment Certification and file an emergency situation Application
for Temporary Employment Certification to address its need for labor or
services under the new circumstances at other place(s) of employment or
with adjusted duties.
The Department will continue to consider how best to accommodate
the needs of employers to make minor post-certification amendments to
places of employment due to unforeseen circumstances over which the
employer has no control, while also sufficiently limiting the scope of
these amendments to ensure employers provide effective notice of job
opportunities to non-H-2A workers--both former U.S. workers and workers
in corresponding employment at each place of employment added to the
temporary agricultural labor certification--and guarantee changes to
specific work locations are minimal for workers, terms and conditions
of employment remain unchanged, and the underlying labor market test
for the AIE remains valid for the certification.
H. Integrity Measures
1. Section 655.180, Audit
The NPRM proposed minor amendments to this section to clarify the
procedures by which OFLC conducts audits of applications for which
temporary agricultural labor certifications have been granted. The
Department received a few comments on this provision, none of which
necessitated changes to the regulatory text. Therefore, as discussed
below, this provision remains unchanged from the NPRM.
The Department proposed five revisions to this section in the NPRM.
First, the Department proposed revisions to paragraphs (b)(1) and (2)
to clarify that audit letters will specify the documentation that
employers must submit to the NPC, and that such documentation must be
sent to the NPC not later than the due date specified in the audit
letter, which will be no more than 30 calendar days from the date the
audit letter is issued. Second, in paragraph (b)(2), the Department
proposed to revise the timeliness measure from the date the NPC
receives the employer's audit response to the date the employer submits
its audit response. This change is more consistent with other filing
requirements contained in this final rule and better ensures employers'
ability to timely submit their responses. Third, the Department
proposed to revise paragraph (b)(3) to clarify that partial audit
compliance does not prevent revocation or debarment. Rather, employers
must fully comply with the audit process in order to avoid revocation
under Sec. 655.181(a)(3) or debarment under Sec. 655.182(d)(1)(vi)
based on a finding that the employer impeded the audit. Fourth, the
Department proposed to add language to paragraph (c) to codify the
current practice of a CO issuing more than one request, and sometimes
multiple requests, for supplemental information if the circumstances
warrant. This practice ensures that employers have every opportunity to
comply fully with audit requests and that the CO's audit findings are
based on the best record possible. Finally, the Department proposed
revisions in paragraph (d) to clarify the referrals a CO may make as a
result of audit, including updating the name of the office within the
DOJ, Civil Rights Division, Immigrant and Employee Rights Section, that
will receive referrals related to discrimination against eligible U.S.
workers.
The Department received two comments expressing general support for
the proposed changes and one comment suggesting that only WHD conduct
audit examinations of certified Applications for Temporary Employment
Certification. Although the Department appreciates the suggestion, the
NPRM did not propose changes related to which agency would conduct
audit examinations. Therefore, this suggestion is outside the scope of
this rulemaking.
2. Section 655.181, Revocation
The NPRM proposed minor amendments to paragraph (b)(2) of this
section to clarify that if an employer does not appeal a Final
Determination to revoke a temporary agricultural labor certification
according to the procedures in proposed Sec. 655.171, that
determination will become the final agency action. The Department
proposed to remove language referring to the timeline for filing an
appeal, as that information was provided in proposed Sec. 655.171. The
Department received some comments generally supporting these proposals,
and no comments in opposition. However, as explained below, the
Department has decided not to adopt the proposed revisions in this
final rule.
The proposed deletion of paragraph (b)(2)'s current 10-calendar-day
timeline for appealing, combined with the proposed retention of
paragraph (b)(2)'s reference to the appeal procedures of Sec. 655.171,
would have resulted in an unintended change in paragraph (b)(2)'s
appeal timeline. The Department did not intend to change any of the
current timelines in paragraph (b). This final rule therefore retains
the timelines stated in current paragraphs (b)(1) and (2), both of
which now reference paragraph (b)(3). Paragraph (b)(3), in turn,
retains a reference to the appeal procedures of Sec. 655.171, but now
clarifies that while the appeal procedures of Sec. 655.171 apply to
any appeals filed under paragraph (b)(1) or (2), the timelines to file
an appeal, as stated in paragraphs (b)(1) and (2), continue to apply.
Additionally, the Department has removed language from the proposed
paragraph (b)(3), stating that the ALJ's decision is the final agency
action, in light of an intervening change to the current paragraph
(b)(3). As discussed elsewhere, between the publication of the 2019
proposed rule at 84 FR 36168 and this final rule, the Department
published Rules Concerning Discretionary Review by the Secretary (85 FR
30608), which affected the language of this section. The current
iteration of Sec. 655.181(b)(3), with the changes made by the Rules
Concerning Discretionary Review by the Secretary, is different than the
iteration of Sec. 655.181(b)(3) that was in effect when the NPRM was
published. Specifically, the Rules Concerning Discretionary Review by
the Secretary removed the language in paragraph (b)(3) that stated the
decision of the ALJ was the final decision of the Secretary, consistent
with the principle that the Secretary could assume jurisdiction over a
de novo appeal pursuant to 29 CFR 18.95. Section 655.171 of this final
rule contains language implementing that principle, which Sec.
655.181(b)(3), in turn, incorporates by stating that the appeal
procedures of Sec. 655.171 apply.
3. Section 655.182, Debarment; 29 CFR 501.16, Sanctions and Remedies--
General; 29 CFR 501.19, Civil Money Penalty Assessment; 29 CFR 501.20,
Debarment and Revocation; 29 CFR 501.21, Failure To Cooperate With
Investigations; 29 CFR 501.41, Decision and Order of Administrative Law
Judge; 29 CFR 501.42, Procedures for Initiating and Undertaking Review;
29 CFR 501.43, Responsibility of the Office of Administrative Law
Judges; 29 CFR 501.44, Additional Information, if Required; and 29 CFR
501.45, Decision of the Administrative Review Board
The NPRM proposed amendments to the debarment provision in Sec.
655.182 to improve integrity and compliance with program requirements,
and to establish consistency in holding program violators accountable
among the H-2A regulations and the other labor certification programs
administered by the Department. The NPRM also proposed amendments to
WHD's debarment provision at 29 CFR 501.20 to conform with the proposed
changes to 20 CFR 655.182(a) regarding the ability to debar an agent or
attorney, and their successors in interest, based on the agent's or
attorney's own substantial violations. The Department received some
comments on these provisions, none of which necessitated substantive
changes to the regulatory text. As noted above, the Department has
revised Sec. 655.182(h) to confirm its approach to debarment of
associations, employer-members of associations, and joint employers.
Therefore, as discussed below, these provisions remain substantively
unchanged from the NPRM.
The Department proposed to revise Sec. 655.182 to clarify that if
an employer, agent, or attorney is debarred from participation in the
H-2A program, the employer, agent, or attorney, or their successors in
interest, may not file future Applications for Temporary Employment
Certification during the period of debarment. Under the proposal, if
such an application is filed, the Department will deny the application
without review, rather than issuing a NOD before denying the
application, as it does under the current regulations.
The Department also proposed to revise Sec. 655.182 to allow for
the debarment of agents or attorneys, and their successors in interest,
based on their own misconduct. Since the 2008 H-2A Final Rule, the H-2A
regulations have allowed the Department to debar an agent or attorney
based on its participation in the employer's substantial violation. See
Sec. 655.182(b); 2010 H-2A Final Rule, 75 FR 6884, 6936-6937; 2008 H-
2A Final Rule, 73 FR 77110, 77188. As explained in the NPRM, the
proposed revisions would allow the Department to hold agents and
attorneys of the employer accountable for their own substantial
violation(s), as well as for their participation in the employer's
substantial violation(s), as that term is defined in Sec. 655.182(d).
The Department also proposed conforming revisions to the definition of
``successor in interest'' in Sec. 655.103(b) to reflect that a
debarred agent's or attorney's successor in interest may be held liable
for the debarred agent's or attorney's violation. The Department has
adopted these changes as proposed. However, the Department has made one
additional, minor revision to Sec. 655.182(b), consistent with
revisions to Sec. 655.103(b), to clarify that neither a debarred
employer, agent or attorney, nor a successor in interest to a debarred
employer, agent or attorney may file an H-2A application.
The Department received one comment expressing support for the
first proposal and several comments expressing general support for the
second. Some commenters expressed concern, however, that the Department
would not seek to debar the employer where the Department is pursuing
debarment of an agent or attorney based on the agent's or attorney's
own misconduct. The Department believes these concerns are misplaced.
Under the changes adopted in this final rule, the Department may pursue
debarment against the agent or attorney for their own misconduct in
those rare instances where the Department determines the agent or
attorney commits a substantial violation that the Department finds it
cannot or, in its discretion, should not, attribute to the employer.
The Department anticipates that, in most instances, it would be
appropriate to debar the employer as well as the agent or attorney,
because the ultimate responsibility for ensuring compliance with the
program rests with the participating employer.
Some agent commenters objected to statements in the NPRM that
expressed the Department's concern with the role of agents in the H-2A
program. The Department's intent was simply to note that, in its
experience, the participation of agents in the program can, but
certainly does not always, undermine program compliance.
The Department received several other comments about the debarment
provisions that were unrelated to the changes the NPRM proposed, and
therefore are beyond the scope of the current rulemaking. For instance,
some employer and employer association commenters requested changes to
ease the standard for debarment, such as requesting a de minimis
exception from the kinds of violations that would lead to debarment
from the H-2A program. Save for the addition of an H-2ALC's failure to
submit an original surety bond at Sec. 655.182(d)(2) (discussed in the
surety bond section above), the Department proposed no changes to the
kinds of violations that are sufficient to warrant debarment, and thus
the Department cannot consider this recommendation in the current
rulemaking. The Department notes, however, that the Department
considers debarment only in the case of substantial violations, as
required by the statute. See 8 U.S.C. 1188(b)(2)(A).
Another commenter opposed shared debarment authority between WHD
and OFLC. This comment is outside the scope of the current rulemaking,
as the NPRM did not propose changes to the Department's longstanding
practice, reflected in the associated regulations, that both WHD and
OFLC have debarment authority.
A workers' rights advocacy organization commented that the proposed
changes were insufficient to address perceived shortcomings to the H-2A
debarment procedures. Specifically, the commenter noted a need to
improve the debarment procedures' treatment of successors in interest
and cited specific enforcement efforts as demonstrative of the
limitations of the regulation's current provision. The commenter also
advocated that the Department's debarment procedures should promote
employee participation in WHD investigations. The Department
appreciates these comments but notes that the suggestions are not
within the scope of the current rulemaking, as the Department did not
propose any changes to the debarment procedures generally. As noted
above, however, the Department proposed and is adopting as final
conforming revisions to the definition of ``successors in interest'' in
Sec. 655.103(b) to reflect the changes detailed above.
I. Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Operations
The NPRM proposed amendments to certain provisions in this section
largely to conform the labor certification process for temporary
agricultural employment in range sheep herding, goat herding, and
production of livestock operations to other changes proposed in the
NPRM. The Department
received many comments on this section; the vast majority of which were
outside the scope of this rulemaking and none of which necessitated
substantive changes to the regulatory text. Therefore, as discussed in
detail below, the provisions contained in this section remain unchanged
from the NPRM except for minor technical or clarifying changes.
1. Modernizing Recruitment Requirements
Between the publication of the 2019 proposed rule at 84 FR 36168
and this final rule, the Department published the 2019 H-2A Recruitment
Final Rule that amended Sec. 655.225 by removing paragraph (d) and
redesignating paragraph (e) as paragraph (d). This final rule
incorporates those changes.
2. Regulatory Revisions Implemented by This Final Rule
As proposed in the NPRM, the Department has revised Sec. Sec.
655.200 through 655.235 to conform to the other revisions in this final
rule. Minor changes include replacing a dash between two sections with
the word ``through'' (e.g., replacing ``Sec. Sec. 655.200-655.235''
with ``Sec. Sec. 655.200 through 655.235'') for technical consistency
with other sections of this final rule. The Department received no
comments regarding these minor changes, or the substantive changes
discussed below, and therefore has adopted all proposed revisions in
Sec. Sec. 655.200 through 655.235. Aside from technical changes, the
Department has made one minor change to the proposed text in Sec.
655.215(b)(1), which is discussed further below.
The Department has revised Sec. 655.205 to reflect revisions to
the normal job order filing procedures in Sec. 655.121 and to clarify
variances from Sec. 655.121 that remain for job opportunities
involving herding or production of livestock on the range.
In addition, consistent with the Department's reasoning and
decision not to adopt the transition period for an employer to
implement a new higher AEWR proposed in Sec. 655.120(b), the
Department did not adopt similar transition period language proposed in
Sec. 655.211(a)(2). The final rule requires an employer to start
paying the higher rate on the effective date published in the Federal
Register. The Department has also added the phrase ``at least'' to
Sec. 655.211 to clarify that employers must pay at least the rate
required by the regulations, but as the regulations are meant to
provide a minimum, employers may of course choose to offer and pay a
higher rate. The phrase also provides consistency with Sec. Sec.
655.120 and 655.210(g).
The Department has also simplified and revised Sec. 655.215(b)
introductory text and (b)(1) to conform to other revisions in this
final rule. In paragraph (b) introductory text, detailed language about
additional required information is obsolete, as the job order Form ETA-
790/790A addenda include data fields for employers to provide detailed
information about the job opportunity. The obsolete language was
removed.
As the language promulgated in the Department's 2015 H-2A Herder
Final Rule could have been interpreted to permit an Application for
Temporary Employment Certification for herding or production of
livestock on the range to cover multiple AIEs in more than two
contiguous States but not a smaller geographic area, such as multiple
AIEs within one State, the Department has included one minor change to
language in paragraph (b)(1) for clarity. See 2015 H-2A Herder Final
Rule, 80 FR 62958, 62998, 63068. Specifically, an Application for
Temporary Employment Certification may cover multiple AIEs in one
State, or multiple AIEs in two or more contiguous States. Accordingly,
the text in this final rule has been revised to make clear that an
``Application For Temporary Employment Certification and job order may
cover multiple [AIEs] in one or more contiguous States,'' as opposed to
saying ``and one or more contiguous [S]tates'' as originally proposed
(emphasis added).
Trade associations, an agent, and individual employers suggested
removing the ``contiguous State'' restriction, stating that this
limitation hinders access to job opportunities. However, the
Department's proposed revisions for this subpart were meant to serve as
clarification only, and the Department did not propose substantive
changes to the regulatory requirements. Therefore, the comments
requesting that the Department remove the ``contiguous State''
restriction are outside the scope of this rulemaking.
In addition to minor revisions to Sec. 655.220(b) and (c) for
consistency within this final rule, the Department has revised
paragraph (b) to reflect the centralization of job order dissemination
from the NPC to the SWAs as set forth in Sec. 655.121. Consistent with
Sec. 655.121, after the content of a job order for herding or
production of livestock on the range has been approved, the NPC will
transmit the job order to all applicable SWAs to begin recruitment. The
Department also recently rescinded, in the separate 2021 H-2A Herder
Final Rule, the 364-day provision that governed the adjudication of
temporary need for employers of sheep and goat herders (Sec.
655.215(b)(2)) to ensure the Department's adjudication of temporary or
seasonal need is conducted in the same manner for all H-2A
applications. The text at Sec. 655.215(b)(2) in this rule has been
updated to reflect this recission.
Finally, the Department has made minor revisions in Sec.
655.225(b) and (d) to simplify the language and reflect procedural
changes made elsewhere in this final rule, such as revisions to the
duration of the recruitment period at Sec. 655.135(d).
3. Other Comments
A significant number of comments from a trade association,
individual employers, and other commenters urged the Department to
reconsider the wage rate methodology for herding and range livestock
opportunities. However, the Department explicitly stated in the NPRM
that it was not reconsidering, and therefore not seeking public comment
on, this wage rate methodology. 84 FR 36168, 36220-36221. As a result,
the comments regarding the wage rate methodology for herding and range
livestock job opportunities are outside the scope of this rulemaking
and will not be addressed further.
An immigration advocacy group, trade associations, and individual
employers and other commenters expressed concerns and suggested changes
regarding housing, the frequency of record keeping, the frequency of
pay for employees, and the cost and profitability of business. A trade
association and individual employers offered a number of suggested
changes, which included the Department putting all forms and procedures
online, providing for reimbursement for in-bound travel, allowing for a
wage credit, and removing overtime pay statutes for sheepherders.
However, the Department did not propose changes regarding these
substantive issues and, thus, the comments are outside the scope of
this rulemaking. With regard to removing or exempting specific
occupations from statutory requirements, the suggestion would require a
legislative change.
Other comments from a trade association, a State agricultural
department, and individual employers and other commenters were general
in nature and discussed the industry overall and expressed concern
about the viability of their businesses moving forward. The Department
understands the industry has concerns; however, these aforementioned
comments and
suggestions are not within the scope of this rulemaking.
J. Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, and Custom Combining
1. Section 655.300, Scope and Purpose
The NPRM proposed to establish certain variances to the procedures
for temporary agricultural labor certification for employers who seek
to hire H-2A workers in animal shearing, commercial beekeeping, and
custom combining to address the unique occupational characteristics of
these occupations. To date, the Department has processed Applications
for Temporary Employment Certification in these occupations using TEGLs
specific to each of these occupations, which specify applicable
variances from H-2A program requirements.\111\
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\111\ See TEGL No. 17-06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program (June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; TEGL No. 33-10,
Special Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H-2A Program (June 14, 2011),
https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; TEGL No.
16-06, Change 1, Special Procedures: Labor Certification Process for
Multi-State Custom Combine Owners/Operators under the H-2A Program
(June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040. The NPRM also proposed to incorporate
reforestation and pine straw activities into the H-2A program. Those
activities have been considered under the H-2B program, and
variances for the unique characteristics of those activities are
provided for in TEGL No. 27-06, Special Guidelines for Processing H-
2B Temporary Labor Certification in Tree Planting and Related
Reforestation Occupations (June 12, 2007), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2446. However, following a
consideration of the public submissions, and as discussed in the
preamble to Sec. 655.103(c), above, this final rule does not
incorporate reforestation and pine straw activities into the H-2A
program, and thus no specific variances are included for these
activities.
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In order to employ H-2A workers under these procedures, an
employer's job opportunity must be in one of the covered occupations
and must involve agricultural work to be performed on a scheduled
itinerary covering multiple AIEs, including in multiple contiguous
States. Unless otherwise specified in these variances, set forth in new
Sec. Sec. 655.300 through 655.304, employers must also comply with all
H-2A requirements in Sec. Sec. 655.100 through 655.185, including
payment of at least the highest applicable wage rate, determined in
accordance with Sec. 655.122(l) for all hours worked.\112\
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\112\ Compliance with Sec. 655.122(l), as revised by this rule,
requires an employer to ``pay the worker at least the AEWR; a
prevailing wage, if the OFLC Administrator has approved a prevailing
wage survey for the applicable crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed
in that activity, meeting the requirements of Sec. 655.120(c); the
agreed-upon collective bargaining rate; the Federal minimum wage; or
the State minimum wage rate, whichever is highest, for every hour or
portion thereof worked during a pay period.''
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The Department is adopting the variances proposed in the NPRM with
minor revisions and technical changes. The Department received many
comments on the proposed procedures in Sec. Sec. 655.300 through
655.304. All of the commenters supported the proposed incorporation of
variances for the commercial beekeeping, animal shearing, and custom
combining occupations in the Department's H-2A regulations.
Some commenters requested additional variances not proposed in the
NPRM. Several employer commenters requested a variance from the H-2A
wage requirements in the case of job opportunities that involve animal
shearing. The commenters stated that employers of animal shearers
generally pay per piece or head, not hourly, and need a regional or
national piece rate prevailing wage for shearers. The Department notes
that the H-2A program does not prohibit the payment of a piece rate to
covered workers, so long as the piece rate is accurately disclosed and
the worker's average hourly earnings for the pay period equal at least
the highest of the AEWR, prevailing hourly wage, agreed-upon collective
bargaining rate, or the Federal or State minimum wage. Indeed,
historical prevailing wage rates for animal shearing have often been
published as piece rates. Additionally, the Department believes that
the prevailing wage methodology adopted in this final rule at Sec.
655.120(c)(1) adequately addresses the needs of animal shearing
employers and removes the need for the prevailing wage variance
specified in the TEGL. The TEGL permitted use of a prevailing piece
rate finding from an adjoining or proximate State or based on
aggregated survey data for the occupation in a region to address
situations such as inadequate sample sizes that would otherwise prevent
a prevailing piece rate finding in a particular State.\113\ Under this
final rule, a prevailing wage survey may cover a regional area, where
appropriate, based on the factors at Sec. 655.120(c)(1)(vi).\114\
Because the prevailing wage methodology adopted in this final rule
accommodates the potential for a regional survey, a specific variance
is no longer required to address situations in which a statewide survey
fails to generate a prevailing piece rate wage result for this
occupation. In addition, as a prevailing wage survey may set a
prevailing wage by the piece rate based on employer responses, a
specific variance is not required to accommodate piece rates.
Regardless, the Department notes that this final rule does not require
employers to change their existing payment practices, as the obligation
to pay at least the amount required by Sec. 655.122(l) continues
unchanged.
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\113\ See TEGL No. 17-06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program, Attachment A, Section I.A (June 14,
2011).
\114\ In the NPRM, the Department expressed its intent to codify
existing practice, including regional surveys where appropriate,
through Sec. 655.120(c)(1)(vi). 84 FR 36168, 36187.
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A workers' rights advocacy organization submitted a comment that
mentions reports of violations regarding the adequate payment for
compensable time for workers employed as animal shearers and custom
combining workers for travel time. In response, the Department
reiterates that employers must account for all hours worked by the
employee in meeting their wage obligations in Sec. 655.122(l). As
previously noted, in determining compensable hours worked under the H-
2A Program, the Department applies FLSA hours worked principles. The
principles applied in determining compensable hours worked are
explained in more detail in 29 CFR part 785. As such, the Department
reminds employers that any employee performing work while traveling
(e.g., driving a combine or employer housing between locations, or
transporting other workers along an itinerary) constitutes hours
worked. See Sec. 785.41. Additionally, certain transportation time may
constitute hours worked for passengers. See Sec. Sec. 785.33 through
785.41.
Some commenters requested a meal allowance credit towards the wage
rate for workers in herding and range livestock production occupations.
As explained in the preamble to the NPRM, however, the Department is
not reconsidering and thus did not seek comment on the wage rate
methodology for herding and range livestock production job
opportunities. These comments are outside the scope of this rulemaking.
2. Section 655.301, Definition of Terms
The NPRM proposed definitions for the occupations subject to the
procedures in Sec. Sec. 655.300 through 655.304. As discussed below,
the Department is adopting Sec. 655.301 from
the NPRM with clarifying and conforming changes. Commenters generally
supported the proposed definitions. A workers' rights advocacy
organization recommended adding a sentence to the definition of
commercial beekeeping stating that the definition includes work
performed under the supervision of either a fixed-site farmer/rancher
or an itinerant beekeeping employer providing services to a fixed-site
farmer/rancher, purportedly to ``ensure accurate coverage of all
applicable job opportunities.'' However, the commenter did not provide
any explanation as to why the identity of the supervisor of an
itinerant beekeeping worker is relevant to coverage of applicable job
opportunities. The Department declines to adopt the commenter's
proposal. Some commenters argued that itinerant beekeepers have been
erroneously subject to the MSPA FLC registration requirements. The
Department disagrees. Beekeepers providing pollination services on land
that they do not own or operate are subject to MSPA FLC registration
requirements. Moreover, the Department did not propose any substantive
changes to Sec. 655.132's requirement that H-2ALCs submit a copy of
their MSPA registration certificate ``if required by MSPA.'' These
comments are therefore outside the scope of this rulemaking.
A workers' rights advocacy organization proposed expanding the
definition of ``custom combining''--though it did not provide a
rationale for doing so--to cover additional types of equipment beyond
that used in combining, and additional worksites beyond those covered
by the definition of agriculture. The Department rejects the proposal.
To avoid the possibility that readers will construe the definition more
broadly than intended, the Department has deleted the following terms
from the proposed definition of ``custom combining'' ``associated
with'' and ``including.'' The Department also has made other minor
revisions for clarity, such as specifying that the type of equipment
involved in the covered activities is combine equipment.
Several trade associations suggested that the NPRM inadvertently
omitted certain aspects of custom combining, such as custom harvesters
that harvest not only grain but also silage for livestock feed. The
omission was not inadvertent. Harvesting silage does not require a
combine, but rather a chopper or mower, and therefore falls outside the
definition of custom combining. The TEGL was intended to cover only
custom combining harvesters, as evidenced by the regulation authorizing
promulgation of the TEGLs (i.e., Sec. 655.102, which authorized
special procedures for processing H-2A applications for, among other
things, ``custom combine harvesting crews'').\115\ The definition
adopted in this final rule clarifies that intent.
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\115\ In light of this final rule's promulgation of specific
variances to the procedures for H-2A temporary labor certification
as necessary to address the unique occupational characteristics of
animal shearing, commercial beekeeping, and custom combining for
employers who seek to hire temporary agricultural foreign workers in
these occupations, the rule also repeals Sec. 655.102's
authorization of the TEGLs, and it replaces it with a new Sec.
655.102 that provides a transitional period for the orderly and
seamless implementation of these variances in lieu of the TEGLs.
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In proposing the occupational definitions at Sec. 655.301, the
Department acknowledged that some of the listed activities may not
otherwise constitute agricultural work under the current definition of
agricultural labor or services in Sec. 655.103(c) but are a necessary
part of performing this work on an itinerary (e.g., transporting
equipment from one field to another). See 84 FR 36168, 36222.
Accordingly, and solely for the purposes of the proposed variances in
Sec. Sec. 655.300 through 655.304, the Department explained that it
would include these activities in the occupational definitions. Id. The
Department did not receive any comments opposing the inclusion of
specific activities listed in the proposed definitions. However, the
Department acknowledges that only duties that fall within the
definition of agricultural labor or services under Sec. 655.103(c) may
be certified under the H-2A program. Additionally, an application for a
job opportunity that contains non-agricultural duties, or a combination
of agricultural and non-agricultural duties, could not otherwise be
certified. See generally Sec. 655.161(a); 2010 H-2A Final Rule, 75 FR
6884, 6888. Accordingly, the Department clarifies in this final rule
that, under the variances adopted in Sec. Sec. 655.300 through
655.304, the activities included in the occupational definitions at
Sec. 655.301 are eligible for certification under the H-2A program.
The Department therefore has made a technical, conforming revision to
add new paragraph Sec. 655.103(c)(5), which expressly provides that,
for the purposes of Sec. 655.103(c), agricultural labor or services
includes animal shearing, commercial beekeeping, and custom combining
activities as defined and specified in Sec. Sec. 655.300 through
655.304.
3. Section 655.302, Contents of Job Orders
a. Paragraph (a), Content of Job Offers
A workers' rights advocacy organization expressed general support
for proposed Sec. 655.302, but they recommended that job orders be
required to include additional information about workers' compensation,
rates of pay, the offered wage, and productivity standards for each
State in which work will be performed. No change is required to address
this comment. Unless a specific variance under Sec. 655.302 is
applicable and provides otherwise, an employer's job order must still
comply with each of the content requirements at Sec. 655.122. See
Sec. 655.302(a). For example, in order to satisfy its obligation to
provide workers' compensation insurance coverage for injury and disease
``arising out of and in the course of the worker's employment'' and
``for the entire period of employment'' under Sec. 655.122(e), an
employer requiring work in multiple States (including a single AIE that
crosses State lines) must satisfy this obligation in each State in
which work will be performed. Similarly, Sec. 655.122(c) and (l)
require the employer to disclose the wage rate(s) offered and
productivity standards in the job order. The Department's modernized
job order form, Form ETA-790A, facilitates full disclosure of job offer
information.
b. Paragraph (b), Job Qualifications and Requirements
A workers' rights advocacy organization opposed the Department's
proposal to allow a job offer for the animal shearing and custom
combining occupations to include a statement that applicants must
possess up to 6 months of experience in similar occupations, and for
the commercial beekeeping occupation to include a statement that
applicants must possess up to 3 months of experience in similar
occupations. The Department is retaining the NPRM proposal. The
proposal was consistent with the TEGLs for these occupations. This
final rule does not mandate that employers seeking workers for these
occupations require such experience; rather, this final rule recognizes
that such experience is consistent with the experience employers
normally choose to require for these occupations, as has been observed
in filings with OFLC. These occupations typically involve specialized
skills (e.g., operating heavy equipment; using shearing tools quickly
and close to an animal's skin without injury; or detecting and
addressing bee health issues). The regulatory text specifies the
maximum amount of
experience that an employer may require absent an affirmative
demonstration that such experience is a normal and accepted
requirement. This provision does not mean an employer must require the
maximum amount of experience in the job order--it simply sets a ceiling
for what are considered to be normal requirements. Further, in the
event that a SWA or OFLC CO obtains information indicating that the
amount of experience required by the employer is not usual for a given
State, AIE, or job opportunity, nothing in this rule precludes the SWA
and/or OFLC from assessing the normalcy of the experience requirement
under Sec. 655.122(b).
The same commenter also requested that Sec. 655.302(b) be revised
to remove the verifiable experience requirement because such
requirements are used as a barrier to exclude U.S. workers, but they
are rarely applied to foreign workers. The Department does not believe
that this change is necessary. The Department's regulations have long
prohibited the preferential treatment of H-2A workers over other
workers, including by prohibiting the imposition on U.S. workers of any
restrictions or obligations that will not be imposed on the employer's
H-2A workers. See Sec. 655.122(a)(1). These protections continue to
apply under this final rule. Employers should therefore ensure that any
restrictions or obligations imposed on U.S. applicants are also imposed
on H-2A workers, and the employer retains records of the imposition of
these restrictions or obligations in the event of an audit by OFLC or
enforcement by WHD.
An employer commenter opposed the provision in Sec. 655.302(b)
permitting beekeeping employers to specify in the job order that
applicants must possess a valid driver's license or be able to obtain
such a license no later than 30 days after the worker's arrival to the
place of employment. The commenter noted that beekeeping employers do
not require all workers to drive and when they do, it is often not
possible to obtain a license within 30 days. This comment seemed to
misunderstand the nature of the provision in Sec. 655.302(b). Nothing
in the regulation would require an employer to impose a driver's
license requirement or to require workers to obtain a license within 30
days for every job order. On the contrary, only to the extent
beekeeping employers choose to require that workers possess a driver's
license, Sec. 655.302(b) provides that the job offer may require that
applicants either possess a driver's license or be able to obtain one
within 30 days. However, nothing in Sec. 655.302(b) would prevent an
employer from allowing applicants more than 30 days to obtain a
driver's license.
c. Paragraph (c), Communication Devices
Pursuant to Sec. 655.122(f), employers must provide each worker,
without charge or deposit charge, all tools, supplies, and equipment
required to perform the duties assigned. Due to the potentially remote,
isolated, and unique nature of the work to be performed by workers in
animal shearing and custom combining occupations, the NPRM proposed to
require the employer to provide each worker, without charge or deposit
charge, effective means of communicating with persons capable of
responding to the worker's needs in case of an emergency. The proposed
requirement is consistent with that same requirement in place for
workers primarily engaged in the herding and production of livestock on
the range under the H-2A program, see Sec. 655.210(d)(2), as well as
those currently in place in the TEGLs for these occupations. Therefore,
as discussed below, the Department is adopting paragraph (c) from the
NPRM with a change for flexibility.
Several employer and association commenters opposed the requirement
to provide communication devices for each worker in an animal shearing
and custom combining crew. The commenters argued that crews in these
occupations do not generally perform work in areas that are as remote
and isolated as workers engaged in herding and production of livestock
on the range. They also noted that workers generally have their own
communication devices, so there is no need for the employer to bear the
cost of providing a device to each worker. A workers' rights advocacy
organization, on the other hand, argued that communication devices
should be provided for all workers in those occupations, as well as for
workers in commercial beekeeping occupations.
In light of the comments, the Department has decided to modify the
NPRM proposal. This final rule requires the employer to provide at
least one communication device to each animal shearing and custom
combining crew (i.e., group of workers working together as a unit). The
Department's intent is to ensure that each worker have a meaningful way
to seek assistance in case of emergencies. The Department's interest in
ensuring meaningful access to communication devices may be accomplished
by requiring one communication device per crew. Each worker in the crew
must have meaningful access to that device in the case of an emergency.
To have meaningful access, each worker in the crew must be notified as
to the location of the communication device at all times (e.g., stored
in a particular vehicle or equipment), trained in operation of the
device (e.g., informed of any passcodes), and be free to use the device
to contact first responders or other emergency responders directly,
without first contacting the employer or crew leader. Employers must
have the ability to address language barriers in the event of an
emergency. Employers can address language barriers by having on-call
staff or otherwise making available (e.g., through a conference call),
a person capable of speaking the worker's language and communicating
the worker's needs, or by using translation technology (e.g., computer
software, translation devices). This modification strikes a balance
between the need to ensure that workers have access to a communication
device for emergencies, while heeding the employer commenters'
arguments that workers in the animal shearing and custom combining
occupations usually work as a crew, and therefore individual devices
are not necessary. Additionally, the Department agrees that, in
contrast to herding and livestock workers on the range, these
occupations are more likely to be working on farms and ranches, rather
than in remote areas. However, the relatively less remote nature of the
worksites characterizing these occupations (when compared to range
herding and production of livestock) does not obviate the need for
communication devices; this work can be dangerous and may occur in
remote areas, thus necessitating that workers have the ability to call
for help in case of an emergency.
The Department does not believe communication devices should be
mandated for commercial beekeepers, contrary to the suggestion by a
workers' rights advocacy organization. The TEGL for that occupation
does not currently include such a requirement because workers in that
occupation generally work in less remote locations where phones are
more easily accessible.
The NPRM also posed questions about whether the regulation should
identify other specific tools the employer must provide to each worker
in the covered occupations. A workers' rights advocacy organization
requested that the Department modify the proposed Sec. 655.302(c) to
include an explicit, nonexclusive list of such items that are typically
required by the nature of the work under this subpart, to ensure
employers provide the tools, supplies,
and equipment necessary for workers to do the job. Employer association
commenters opposed the requirement that employers provide all tools,
but they provided little detail regarding the tools that employers
should not be required to provide to workers in commercial beekeeping
and custom combining occupations.
This final rule retains the proposal in the NPRM, which does not
identify the specific tools the employer must provide to workers in the
covered occupations. There is much variability in the tools necessary
to perform the work in these occupations, and they may vary by
employer, region, and type of work.
Employer association commenters in the animal shearing occupations
opposed the requirement that the employer provide all tools to shearing
workers, arguing that shearing workers generally have their own set of
shears and that requiring the employer to provide them would be
burdensome and unnecessary. The requirement to provide all necessary
tools to workers is not unique to animal shearing employers, as all H-
2A employers must provide to the worker, without charge or deposit
charge, all tools, supplies, and equipment required to perform the
duties assigned. See Sec. 655.122(f). In addition, the Department's
regulation at Sec. 655.122(p) prohibits an employer from making an
unlawful deduction that is primarily for the benefit or convenience of
the employer. Because all tools, supplies, and equipment required to
perform the duties assigned are primarily for the benefit of the
employer, these tools must be provided to the worker free of charge.
See 29 CFR 531.3(d)(2). While employers must provide tools free of
charge to workers, workers may choose to use their own tools if that is
their preference.
d. Paragraph (d), Housing
The NPRM proposed that for job opportunities involving animal
shearing and custom combining, the employer must specify in the job
order that housing will be provided as set forth in Sec. 655.304. This
final rule retains the requirement in this section. The specific
housing requirements for these occupations are discussed below in the
preamble to Sec. 655.304.
4. Section 655.303, Procedures for Filing Applications for Temporary
Employment Certification
The NPRM proposed that employers in the covered occupations
continue to satisfy the regular requirements for filing an Application
for Temporary Employment Certification under Sec. Sec. 655.130 through
655.132, and that, consistent with the TEGLs, employers seeking workers
in the covered occupations continue to provide the specific locations,
estimated start and end dates, and, if applicable, names for each farm
or ranch for which work will be performed. The NPRM, however, proposed
an exception to the geographic limitations in Sec. Sec. 655.130
through 655.132 for applications subject to the procedures in
Sec. Sec. 655.300 through 655.304. This exception allows such
agricultural work to be performed on a scheduled itinerary covering
multiple AIEs, including in multiple contiguous States. Further, the
NPRM proposed an additional exception for applications in the
commercial beekeeping occupation. Consistent with the current TEGL for
that occupation, the NPRM proposed allowing such applications to
include one noncontiguous State at the beginning and end of the period
of employment for retrieving bee colonies from and returning them to
their overwintering location. Commenters expressed general support for
the procedures in Sec. 655.303. Therefore, as discussed below, this
final rule retains the proposal in the NPRM with minor technical
revisions.
Several employers and employer associations and agent commenters
opposed the NPRM's proposal that applications for the covered
occupations limit itineraries to contiguous States. Some of the
employer and association commenters opposed the proposal on the basis
that it would be a change from the geographic scope permitted under
current practice and that the change would not permit them to continue
performing the job duties associated with these occupations. Other
commenters expressed concern that the proposal was limited to a
starting State and its contiguous States only, which was not the intent
of the proposal. The Department's use of the term ``contiguous'' was
not intended to anchor all States on the itinerary to the starting
State. Rather, the proposal was intended to permit covered employers to
file applications with an itinerary spanning multiple States so long as
each of the States included in the itinerary shared a border with
another State on the itinerary. In other words, the Department intended
to describe an itinerary covering a contiguous grouping of States akin,
but not limited, to recognized regional groupings of States (e.g., USDA
farm production regions). For example, an animal shearing application
could include an itinerary with work to be performed in California,
Oregon, Idaho, and Utah; but not California, Oregon, Idaho, and
Colorado, as Colorado is not contiguous to any of the other States on
the itinerary. A beekeeping application could include an itinerary with
work in Texas, North Dakota, and South Dakota; or Texas, California,
and Oregon; but not Texas, North Dakota, and California. Where an
employer has planned work in groups of States that are not contiguous,
or for beekeeping employers that are not contiguous apart from the
overwintering State, the employer must file more than one Application
for Temporary Employment Certification, where each satisfies the
contiguous State itinerary requirement.
In adopting the NPRM proposal regarding contiguous States, the
Department expects that most participating employers will be able to
continue filing applications with minimal or no changes to current
practice. Employers generally limit the time and distances between work
locations on the itinerary, both for their own profitability and to
satisfy wage and hour guarantees to workers. Further, the distances
that can be covered within one itinerary are limited by the seasonality
of the need for the duties to be performed. Therefore, employers
typically file applications in which work will be performed along a
contiguous-State route, involving a grouping of States.
Contrary to some commenters' suggestion, the limitation serves to
advance legitimate Departmental goals while recognizing the need for
employers in the covered occupations to have ample flexibility to
follow an itinerary over a large geographic area. This final rule
serves to ensure that applications reflect bona fide job opportunities
for full-time, temporary work through the employer's asserted period of
need. An employer must have sufficient evidence of the work it expects
to perform across the itinerary at the time it submits its Application
for Temporary Employment Certification. Long distances between places
of employment on an itinerary suggest a lack of full-time work
throughout the work contract. Although the three-fourths guarantee
provides an assurance to workers of the minimum hours and wages they
can expect under the work contract, that guarantee is intended to
address the normal variability of weather, crop readiness, and other
circumstances in agricultural work. The three-fourths guarantee is not
intended to allow an employer to include periods without work, as would
be the case during travel between distant places of employment. The
Department further notes that the limitation in Sec. 655.303 is
consistent with the requirement in Sec. 655.215(b)(1) for herding and
range livestock applications.
In addition, under the applicable hours worked principles, only
certain time spent traveling between worksites constitutes compensable
hours worked. See 29 CFR part 785. Because it is possible that time
spent traveling between worksites would not constitute compensable
hours worked for many H-2A and corresponding workers, permitting
itineraries to include noncontiguous States (apart from those necessary
for overwintering bees) could result in several non-compensable hours
worked for these workers during longer trips.
Employer and employer association commenters expressed concern that
the proposed Sec. 655.303 would change current practice under the
TEGLs by requiring an employer to file one H-2A application for each
crew of itinerant workers. Those commenters noted that under current
practice, employers with multiple crews sometimes operate along a
single itinerary, traveling to separate locations when needed, and
requested additional flexibility in the number of itineraries that may
be filed under a single application. They stated that switching workers
between crews sometimes becomes necessary--for example, if a worker is
sick and another worker is needed to fill in to complete a job.
The NPRM proposal was intended to be consistent with the procedures
and policy established in the TEGLs. In the TEGLs, the Department
permitted a variance from Sec. 655.132(a) to allow, for example, an
itinerant animal shearing employer ``who desires to employ one or more
nonimmigrant workers on an itinerary'' to submit ``a planned itinerary
of work in multiple [S]tates.'' \116\ The NPRM inadvertently introduced
confusion by using the term ``crew,'' rather than ``itinerary,'' though
no distinction from current practice was intended. The Department
understands that employers may divide workers into various crews, with
all of the crews performing work along the same planned route, with
different crews working at different farms or ranches within the same
area or some crews moving ahead of others to the next location on the
planned route. Depending on agricultural needs (e.g., farm size and/or
crop conditions) at each farm or ranch, the number of workers or crews
needed at each worksite may vary. As long as all of the workers covered
by the application were performing labor or services along the same
planned route, the Department would consider the employer to have one
itinerary, even if the workers might be assigned to different
particular contracts along that route. This understanding is consistent
with a non-itinerant H-2ALC employing workers performing work at
different locations within a single AIE.
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\116\ See TEGL No. 17-06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program, Attachment B, Sections I.B. and
II.B (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf.
---------------------------------------------------------------------------
To the extent employers in the covered occupations present work
itineraries that contain different planned routes for some of the
workers, they would be required to file more than one Application for
Temporary Employment Certification. However, to the extent employers
present an itinerary that contains one planned route for all of the
workers, in which some workers are briefly assigned to different farm
contracts, they will be able to file one Application for Temporary
Employment Certification. For example, where an employer assigns some
workers to farm contracts along one travel route and other workers to
farm contracts along a different travel route, and the two groups of
workers travel and work separately throughout the period of employment
(or during all but a few occasions, such as for a particularly large
job or at the beginning or end of the employer's period of need), the
employer has two distinct itineraries that cannot be combined on a
single Application for Temporary Employment Certification. In contrast,
an employer has a single itinerary and can file one Application for
Temporary Employment Certification where its planned route involves all
of the workers traveling together or along the same path and working in
the same general areas at approximately the same times. The fact that
some workers are assigned to one client farm and other workers are
assigned to a different client farm in the same AIE does not create a
separate itinerary. Likewise, and absent some countervailing
information suggesting truly distinct itineraries, an employer has one
itinerary and can file one Application for Temporary Employment
Certification in situations where some workers remain longer in one
location on the employer's planned route performing their assigned farm
contracts than other workers and some workers travel ahead to begin to
work on other farm contracts at the next location on the employer's
planned route.
In light of the above clarification regarding the intended meaning,
this final rule retains the proposal in the NPRM with minor technical
revisions.
Employer association commenters also asked that DOL make available
the application procedure in Sec. 655.205 to applications that involve
animal shearing. This change is unnecessary as an animal shearing
employer--or any other employer--with an emergency situation justifying
waiver of the normal filing timeframes can file its application under
Sec. 655.134.
5. Section 655.304, Standards for Mobile Housing
As discussed below, the Department is adopting Sec. 655.304 from
the NPRM with some changes. Due to the unique nature of animal shearing
and custom combining occupations, the NPRM proposed to permit employers
to provide mobile housing for workers engaged in these occupations. The
Department chose not to permit commercial beekeeping employers to
provide mobile housing for workers engaged in that occupation. This
approach is consistent with the relevant TEGLs.\117\ The NPRM included
proposed standards for mobile housing for workers engaged in the animal
shearing and custom combining occupations, which largely incorporated
the housing standards in the TEGLs, with two key exceptions.
---------------------------------------------------------------------------
\117\ See TEGL No. 17-06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program, Attachment B (June 14, 2011),
https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf;
TEGL No. 16-06, Change 1, Special Procedures: Labor Certification
Process for Multi-State Custom Combine Owners/Operators under the H-
2A Program, Attachment A (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf; TEGL No. 33-10, Special
Procedures: Labor Certification Process for Itinerant Commercial
Beekeeping Employers in the H-2A Program, Attachment A (June 14,
2011), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043.
---------------------------------------------------------------------------
First, the TEGL for workers engaged in animal shearing occupations
expressly provides that an animal shearing contractor may lease a
mobile unit owned by a crew member or other person or make some other
type of ``allowance'' to the unit owner. Under the proposed rule, such
an arrangement with a crew member (e.g., employee) is not permitted.
Employer and employer association commenters opposed this proposal,
opining that it appeared the Department is attempting to require
employees to live in employer-furnished housing and forbidding workers
from living and traveling in their own lodging, if so preferred. The
Department is not prohibiting workers from choosing to live and travel
in their own mobile housing unit, if so preferred. As
commenters noted, all workers are free to decline employer-provided
housing; however, WHD's enforcement experience indicates that most
workers tend not to reject this housing, and any investigation will
closely review whether the worker's rejection of the housing was truly
voluntary. However, the INA requires every H-2A employer to furnish
housing at no cost to workers. See 8 U.S.C. 1188(c)(4). Consistent with
this statutory requirement, it is the employer's obligation to offer
and furnish such housing at no cost to the worker; permitting an
employer to rely on the workers to provide their own such housing,
including through a lease agreement, is inconsistent with this
statutory requirement.
Second, the proposed standards deviated from the TEGLs' approach of
permitting employers of animal shearing and custom combining workers to
provide housing that met the range housing standards (Sec. 655.235) at
all times. In contrast, the NPRM proposed to allow such employers to
comply with the range housing standards only when the housing is
located on the range and proposed mobile housing standards to be used
when the housing is not on the range. A workers' rights advocacy
organization commenter stated that, with a small modification, the
proposed mobile housing standards would be sufficient to meet the
mobile housing needs of workers employed in animal shearing and custom
combining occupations even when the housing is located on the range.
Some commenters also expressed concern that it might not be clear which
housing standards would apply in certain situations.
Upon further consideration, the Department has decided to modify
Sec. 655.304 to require employers seeking workers in the animal
shearing and custom combining occupations to provide housing that
complies with the mobile housing standards in Sec. 655.304 regardless
of where the housing is located, except as provided below. Thus,
employers seeking workers in the covered occupations will generally not
be permitted to comply with the range housing standards (Sec. 655.235)
even when the housing is located on the range. For the most part,
employers seeking workers in the animal shearing and custom combining
occupations will be able to provide housing consistent with the mobile
housing standards.
To account for the occasional instances where employers in the
covered occupations provide housing located on the range in locations
where compliance with all of the mobile housing standards is not
feasible, this final rule establishes a procedure to permit employers
to request a variance from the mobile housing standards that would
allow them to instead comply with a specific range housing standard for
the limited time the housing is in that particular location on the
range. There are minor distinctions between the mobile housing
standards in Sec. 655.304 and the range housing standards in Sec.
655.235. Those distinctions are only appropriately invoked in a small
subset of instances where the work is so remote that the mobile housing
standard is not feasible for the covered occupations. Similar to the
procedure in Sec. 655.235(b)(4) and (l), employers may request a
variance from the CO at the time of the application by:
Identifying the particular mobile housing standard(s) in
Sec. 655.304, and attesting that compliance with the standard(s) is
not feasible;
Identifying the range location(s) where it is unable to
meet the particular mobile housing standard(s) in Sec. 655.304;
Identifying the anticipated dates when the mobile unit(s)
will be in those locations;
Identifying the corresponding range housing standard(s) in
Sec. 655.235, and attesting that it will comply with such standard(s);
and,
Attesting to the reason(s) why the particular mobile
housing standard(s) in Sec. 655.304 cannot be met.
If the CO approves one or more variances to the mobile housing
standards at Sec. 655.304, the approval will specify the locations,
dates, and specific variances approved. The variance procedure in Sec.
655.304(a)(1) therefore eliminates any potential confusion about which
housing standards would apply in any given situation. Further, this
final rule will allow the Department to monitor the use of mobile
housing, while maintaining employer flexibility where necessary.
Accordingly, this final rule also does not adopt the NPRM's
proposal at Sec. 655.304(a)(1) (consistent with animal shearing TEGL)
to apply the range housing inspection procedures to mobile housing
units used on the range. Instead, the inspection procedures at Sec.
655.122(d)(6) apply to all mobile units used to house workers engaged
in occupations subject to the procedures in Sec. Sec. 655.300 through
655.304, except those covered by the exception at Sec. 655.304(a)(2).
Before issuing any temporary labor certification for workers engaged in
custom combining or animal shearing work covered by the procedures at
Sec. Sec. 655.300 through 655.304, and who will be housed in mobile
units, the CO must receive a housing certification based on an
inspection conducted by the SWA or that of another local, State, or
Federal authority acting on behalf of the SWA--or, under the exception
at Sec. 655.304(a)(2), an authorized representative of the Federal or
provincial government of Canada--reflecting the certifying authority's
knowledge of the employer's planned use of the housing, confirming that
all of the employer's mobile units have been inspected, consistent with
the requirements of Sec. 655.122(d)(6), and certified as meeting
applicable housing standards.\118\ The Department has made conforming
revisions to Sec. 655.122(d)(2), as discussed above.
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\118\ One workers' rights advocacy organization commented that
because it is ``possible that worksites of intended employment may
include provincial land owned or operated by Canadian employers,''
this final rule should be extended to cover such worksites. This
comment appears to be based on an inaccurate reading of the custom
combine TEGL. TEGL No. 16-06, Change 1, Special Procedures: Labor
Certification Process for Multi-State Custom Combine Owners/
Operators under the H-2A Program (June 14, 2011), https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040. That TEGL
acknowledges that worksites located in the United States may be
owned or operated by Canadian employers, and therefore states that
if such employers provide mobile housing units or other similar
vehicles, those employers must submit an inspection report of such
vehicles conducted by an authorized representative of the Canadian
Federal or provincial government. Nothing in this final rule permits
worksites of intended employment to be located in Canada.
---------------------------------------------------------------------------
If a mobile unit does not satisfy the housing standards at Sec.
655.304(c) through (p) as a self-contained unit, the employer may
satisfy those standards by providing supplemental facilities at each
location on the itinerary to ensure that the housing standards at Sec.
655.304(c) through (p) are satisfied throughout the work contract
period. See Sec. 655.304(b).
Some employer and employer association commenters, who generally
opposed the obligation to provide housing at no cost to H-2A workers
and workers in corresponding employment, also opposed specific aspects
of the mobile housing standards, such as an employer's responsibility
for the cost of laundering workers' clothes. The Department notes that
an employer's obligation to provide housing at no cost to the workers
extends to all required amenities within the housing, regardless of the
housing standards applicable. For example, an employer cannot charge
the worker for a bed or for a window because the housing standards
require these basic amenities. Similarly, the employer cannot charge
the worker for the laundry facilities provided, because housing
standards require laundry facilities. When the housing provided does
not have laundry facilities, and the
employer meets the obligation to provide laundry facilities by
providing transportation to a laundromat, the employer must pay for
laundering expenses. On the other hand, where an employer has provided
functional laundry facilities but the employee chooses to go to a
laundromat, the employer has complied with its obligation and is not
responsible for laundering expenses.
A commenter also raised a concern regarding the impact that use and
transportation of heating equipment may have on wilderness areas and
proposed revisions to Sec. 655.304 to note compliance with the
Wilderness Act is required. Because the employer is already required to
comply with all applicable laws, a provision specifying that compliance
with a particular law is not necessary.
VI. Discussion of Revisions to 29 CFR Part 501
In the NPRM, the Department proposed revisions to its regulations
at 29 CFR part 501, which sets forth the responsibilities of WHD to
enforce the legal, contractual, and regulatory obligations of employers
under the H-2A program. The Department proposed these amendments
concurrent with and in order to complement the changes that ETA
proposed to its certification procedures in 20 CFR part 655, subpart B.
Where the Department has adopted changes to 20 CFR part 655, subpart B,
as discussed in the above section-by-section analysis of that subpart,
the Department has adopted the relevant complementary and conforming
revisions to this part.
In addition, since publication of the NPRM and through other
rulemakings, the Department has revised the regulations in 29 CFR part
501 addressing the amounts and methods of payment of civil money
penalties, and the timing and finality of decisions of the ARB. This
final rule reflects these intervening rulemakings, as discussed below.
A. Conforming Changes
As discussed in the NPRM, the Department proposed various revisions
to 29 CFR part 501 that conformed to proposed revisions to 20 CFR part
655, subpart B. Where the Department has adopted proposed changes to 20
CFR part 655, subpart B, as discussed in the above section-by-section
analysis of that subpart, the Department has adopted the appropriate
complementary and conforming revisions to this part. These conforming
revisions include, among others, clarification of the delegated
authority of, and division of responsibilities between, ETA and WHD
under the H-2A program in Sec. 501.1, and the addition or revision of
certain definitions of terms in Sec. 501.3. Any comments received on
these proposed revisions, and any changes adopted in this final rule,
are discussed above in the section-by-section analysis of 20 CFR part
655, subpart B.
B. Section 501.9, Enforcement of Surety Bond
The Department proposed revisions to WHD's surety bond provision at
29 CFR 501.9 as described fully in the discussion of 20 CFR 655.132
above. As detailed above, the Department has adopted its proposed
changes to 20 CFR 655.132, with certain revisions. Those revisions,
however, do not necessitate changes to proposed 29 CFR 501.9.
Accordingly, this final rule adopts 29 CFR 501.9 as proposed in the
NPRM, without substantive change.
C. Section 501.20, Debarment and Revocation
The Department proposed revisions to WHD's debarment provisions at
29 CFR 501.20 to maintain consistency with the proposed changes to 20
CFR 655.182(a), which would permit the Department to debar an agent or
employer for substantially violating a term or condition of the
temporary agricultural labor certification. The section also has been
revised to make clear that joint employers under 20 CFR 655.131(b) are
subject to debarment only for participation in a debarrable violation.
The Department has responded to the comments received on these proposed
changes in the above discussion of 20 CFR 655.182(a) and 655.131(b).
Accordingly, this final rule adopts proposed 29 CFR 501.20 without
substantive change.
D. Terminology and Technical Changes
In addition to proposed revisions to conform to the terminology and
technical changes proposed to 20 CFR part 655, subpart B, the
Department proposed minor changes throughout this part to correct
typographical errors and improve clarity and readability. Such changes
are nonsubstantive and do not change the meaning of the current text.
For example, the Department proposed throughout part 501 to replace the
phrase ``the regulations in this part'' with the phrase ``this part.''
The Department received no comments on these proposed revisions and
accordingly adopts them without change in this final rule. The
Department has made additional technical, nonsubstantive changes
throughout this part and 20 CFR part 655, subpart B, for accuracy and
clarity. For example, the Department has replaced the phrase
``hereunder'' in Sec. 501.5 with a specific reference to the relevant
authority and made technical changes to the cross-references in Sec.
655.135(h).
E. Intervening Rulemakings
Since publication of the NPRM, the Department has revised the
regulations in 29 CFR part 501 on three occasions. First, on November
7, 2019, the Department published a final rule revising certain of its
regulations governing the payment and collection of civil money
penalties, including those under the H-2A program at Sec. 501.22, by
allowing for the payment of civil money penalties through an electronic
payment alternative, and otherwise amending the regulations to ensure
uniform payment instructions. See Authorizing Electronic Payments of
Civil Money Penalties, 84 FR 59928 (Nov. 7, 2019). These revisions are
reflected in this final rule at Sec. 501.22.
Next, on January 15, 2020, the Department published a final rule to
adjust for inflation the civil money penalties assessed or enforced by
the Department, including the H-2A civil money penalties listed in
Sec. 501.19, pursuant to and as required by the Federal Civil
Penalties Inflation Adjustment Act of 1990, as amended by the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015
(Inflation Adjustment Act). See Department of Labor Federal Civil
Penalties Inflation Adjustment Act Annual Adjustments for 2020, 85 FR
2293 (Jan. 15, 2020).
Relatedly, the Department received three comments on the NPRM
opposing what these commenters perceived to be discretionary changes in
the civil money penalty amounts currently reflected in Sec. 501.19(b).
As noted above, however, the Department issued its annual inflation
adjustment to civil money penalty amounts for 2020, as required by the
Inflation Adjustment Act, after publication of the NPRM. This final
rule reflects the current, appropriate civil money penalty amounts at
Sec. 501.19. The Department will continue to annually adjust these
amounts for inflation, as required by the Inflation Adjustment Act.
Finally, on May 20, 2020, the Department published a final rule to,
among other changes and together with Secretary's Order 01-2020,
establish a new discretionary review process and make technical changes
to Departmental regulations governing the timing and finality of
decisions of the ARB, including those under the H-2A
program at Sec. 501.45. See Rules Concerning Discretionary Review by
the Secretary, 85 FR 30608. These technical revisions are reflected in
this final rule at Sec. 501.45.
VII. Administrative Information
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Under E.O. 12866, the OMB's Office of Information and Regulatory
Affairs (OIRA) determines whether a regulatory action is significant
and, therefore, subject to the requirements of the E.O. and review by
OMB. Section 3(f) of E.O. 12866 defines a ``significant regulatory
action'' as an action that is likely to result in a rule that: (1) has
an annual effect on the economy of $100 million or more, or adversely
affects in a material way a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities (also referred to as
economically significant); (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another agency;
(3) materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O. The OMB's OIRA has determined that this final rule is a
significant regulatory action, although it is not an economically
significant action, under E.O. 12866 sec 3(f)(4) and, accordingly, OMB
has reviewed this final rule. Pursuant to the Congressional Review Act
(5 U.S.C. 801 et seq.), OIRA has designated this rule as not a ``major
rule,'' as defined by 5 U.S.C. 804(2).
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
Public Comments
One commenter stated they no longer understood the rationale behind
the move to e-filing and did not identify an analysis of the costs and
benefits associated with the proposed changes to e-filing in the NPRM.
The NPRM stated that mandating e-filing would reduce costs and
burdens for most employers (and the Department), reduce the frequency
of delays related to filing applications and supporting documentation
by mail, improve the consistency and quality of information collected,
and promote administrative efficiency and accountability. The costs of
e-filing were determined to be non-quantifiable due to a lack of
information to determine whether the six percent of employers who
currently choose not to e-file are doing so as a matter of preference
or because they are incapable of doing so due to a lack of equipment or
ability. The cost savings portion of the e-filing requirement is
quantifiable and is presented in the regulatory impact analysis below.
One commenter said that the proposal seeks to shift costs from
employers to H-2A workers by requiring employers to reimburse travel
costs only from the U.S. consulate, rather than from the workers' home
communities.
Under the NPRM, the provision to define ``the place from which the
worker departed'' as the U.S. embassy or consulate for certain H-2A
workers was intended to provide workers, employers, and the Department
with a consistent point from where costs can be calculated. In this
final rule there is no longer a change to how travel costs are
reimbursed. Travel costs will continue to be reimbursed from the place
of worker recruitment which may or may not be the worker's home
community. Consequently, there is no shift in cost burdens from
employers to H-2A workers because the Department has decided to retain
the current regulatory requirement.
Outline of the Analysis
Section VII.A.1 describes the need for this final rule, and section
VII.A.2 describes the process used to estimate the costs and cost
savings of the rule and the general inputs used, such as wages and
number of affected entities. Section VII.A.3 explains how the
provisions of this final rule will result in quantifiable costs and
cost savings and presents the calculations the Department used to
estimate them. In addition, section VII.A.3 describes the qualitative
costs, cost savings, and benefits of this final rule. Section VII.A.4
summarizes the estimated first-year and 10-year total and annualized
costs, cost savings, and net costs of this final rule. Finally, section
VII.A.5 describes the regulatory alternatives that were considered
during the development of this final rule.
Summary of the Analysis
The Department estimates that this final rule will result in costs
and cost savings. As shown in Exhibit 1, this final rule is expected to
have an annualized quantifiable cost of $2.75 million and a total 10-
year quantifiable cost of $19.29 million at a discount rate of seven
percent.\119\ This final rule is estimated to have annualized
quantifiable cost savings of $0.16 million and total 10-year
quantifiable cost savings of $1.12 million at a discount rate of seven
percent.\120\ The Department estimates that this final rule would
result in an annualized net quantifiable cost of $2.59 million and a
total 10-year net cost of $18.17 million, both at a discount rate of
seven percent and expressed in 2021 dollars.\121\
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\119\ This final rule will have an annualized cost of $2.69
million and a total 10-year cost of $22.96 million at a discount
rate of three percent in 2021 dollars.
\120\ This final rule will have an annualized cost savings of
$0.15 million and a total 10-year cost savings of $1.32 million at a
discount rate of three percent in 2021 dollars.
\121\ This final rule will have an annualized net cost of $2.54
million and a total 10-year cost of $21.64 million at a discount
rate of three percent in 2021 dollars.
Exhibit 1--Estimated Monetized Costs and Cost Savings of This Final Rule
[2021 $millions]
----------------------------------------------------------------------------------------------------------------
Net costs
Costs Cost savings \122\
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total...................................... $26.51 $1.51 $25.00
10-Year Total with a Discount Rate of 3%........................ 22.96 1.32 21.64
10-Year Total with a Discount Rate of 7%........................ 19.29 1.12 18.17
10-Year Average................................................. 2.65 0.15 2.50
Annualized at a Discount Rate of 3%............................. 2.69 0.15 2.54
Annualized with at a Discount Rate of 7%........................ 2.75 0.16 2.59
----------------------------------------------------------------------------------------------------------------
The total cost of this final rule is associated with rule
familiarization and recordkeeping requirements for all H-2A
employers,\123\ as well as increases in the amount of surety bonds
required for H-2ALCs. The two largest contributors to the cost savings
of this final rule are the electronic submission of applications and
application signatures, including the use of electronic surety bonds,
and the electronic sharing of job orders submitted to the NPC with the
SWAs. See the costs and cost savings subsections of section VII.A.3
(Subject-by-Subject Analysis) below for a detailed explanation.
---------------------------------------------------------------------------
\122\ Net Costs = [Total Costs]--[Total Cost Savings]
\123\ The Department does not consider the cost of H-2A
employers learning how to e-file. Based on H-2A certification data
from FY 2019, 94.1 percent of applications are submitted
electronically. Almost of all the remaining 5.9 percent of H-2A
applicants have access to email, so very few applicants will need to
learn how to e-file.
---------------------------------------------------------------------------
The Department was unable to quantify some cost, cost savings, and
benefits of this final rule. The Department describes them
qualitatively in section VII.A.3 (Subject-by-Subject Analysis).
1. Need for Regulation
The Department has determined that new rulemaking is necessary to
modernize the H-2A program. The Department is updating its regulations
to ensure that employers can access agricultural labor while
maintaining the program's strong protections for the workforce. The
changes adopted in this final rule will streamline the Department's
review of H-2A applications and enhance WHD's enforcement capabilities,
thereby reducing workforce instability that can hinder the growth and
productivity of our nation's farms, while allowing aggressive
enforcement against program fraud and abuse that undermine the
interests of workers. Among other changes to achieve these goals, the
Department has decided to (1) require mandatory e-filing and accept
electronic signatures; (2) update surety bond requirements and clarify
recordkeeping requirements; and (3) revise the debarment language to
allow the Department to debar agents and attorneys, and their
successors in interest, based on their own substantial violations.
2. Analysis Considerations
The Department estimated the costs and cost savings of this final
rule relative to the existing baseline (i.e., the current practices for
complying, at a minimum, with the H-2A program as currently codified at
20 CFR part 655, subpart B, and 29 CFR part 501). This existing
baseline is consistent with the 2010 H-2A Final Rule.
In accordance with the regulatory analysis guidance articulated in
OMB's Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences of this final rule (i.e., costs and cost savings that
accrue to entities affected). The analysis covers 10 years (from 2022
through 2031) to ensure it captures major costs and cost savings that
accrue over time. The Department expresses all quantifiable impacts in
2021 dollars and uses discount rates of three and seven percent,
pursuant to Circular A-4.
Exhibit 2 presents the number of affected entities that are
expected to be affected by this final rule. The number of affected
entities is calculated using OFLC certification data from Fiscal Year
(FY) 2016 through 2020.\124\ The Department provides these estimates
and uses them throughout this analysis to estimate the costs and cost
savings of this final rule.
---------------------------------------------------------------------------
\124\ Only three quarters of FY 2021 data were available at the
time of analysis. To the extent that the COVID-19 pandemic impacted
H-2A applications or workers, the inclusion of FY 2020 data allows
for some impacts to be captured. However, in FY 2020 Q1-Q3, there
were 223,263 certified workers, and in FY 2021 Q1-Q3, there were
247,969 certified workers, indicating that FY 2021 is continuing the
historical trend of year-over-year increases in workers certified
and that the pandemic may have minimal impacts on program trends.
Exhibit 2--Average Annual Number of Affected Entities by Type
[FY 2016-2020]
------------------------------------------------------------------------
Entity type Number
------------------------------------------------------------------------
H-2A Applications Processed............................. 11,527
Unique H-2A Applicants.................................. 8,204
Certified H-2A Employers................................ 7,596
Certified H-2A Workers.................................. 184,323
------------------------------------------------------------------------
a. Growth Rate
The Department estimated growth rates for applications processed
and applications certified, and workers certified based on FY 2012-2020
H-2A program data, presented in Exhibit 3. Estimation of the growth
rates for labor contractors is limited to FY 2013-2020 data.
Exhibit 3--Historical H-2A Program Data
----------------------------------------------------------------------------------------------------------------
Applications Applications Workers Labor
FY processed certified certified contractors
----------------------------------------------------------------------------------------------------------------
2012............................................ 5,459 5,278 85,248 ..............
2013............................................ 5,973 5,706 98,814 284
2014............................................ 6,726 6,476 116,689 340
2015............................................ 7,567 7,194 139,725 388
2016............................................ 8,684 8,297 165,741 415
2017............................................ 10,097 9,797 199,924 483
2018............................................ 11,698 11,319 242,853 566
2019............................................ 13,095 12,626 258,446 588
2020............................................ 14,063 13,552 275,430 715
----------------------------------------------------------------------------------------------------------------
The geometric growth rate for certified H-2A workers using the
program data in Exhibit 3 is calculated as 17.2 percent. This growth
rate, applied to the analysis timeframe of 2022 to 2031, would result
in more H-2A certified workers than projected BLS workers in the
relevant H-2A SOC codes.\125\ Therefore, to estimate realistic growth
rates for the analysis, the Department applied an autoregressive
integrated moving average (ARIMA) model to the FY 2012-2020 H-2A
program data to forecast workers, applications, and labor contractors
estimate geometric growth rates based on the forecasted data. The
Department ran multiple ARIMA models on each set of data and used
common goodness of fit measures to determine how well each ARIMA model
fit the data.\126\ Multiple models yielded indistinctive measures of
goodness of fit. Therefore, each model was used to project workers and
applications through 2031. Then, a geometric growth rate was calculated
using the forecasted data from each model and an average was taken
across each model.
---------------------------------------------------------------------------
\125\ Comparing BLS 2029 projections for combined agricultural
workers with a 15.8 percent growth rate of H-2A workers yields
estimated H-2A workers that are about 107 percent greater than BLS
2029 projections. The projected workers for the agricultural sector
were obtained from BLS's Occupational Projections and Worker
Characteristics, which may be accessed at https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm.
\126\ The Department estimated models with different lags for
autoregressive and moving averages, and orders of integration:
ARIMA(0,2,0); (0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each
model we used the Akaike Information Criteria (AIC) goodness of fit
measure.
---------------------------------------------------------------------------
The growth rate in certified employers was estimated by calculating
the geometric growth rate using data from the analysis period (FY 2016-
FY 2020).
The resulting growth rates used in the analysis are presented in
Exhibit 4. The estimated growth rates were applied to the estimated
costs and cost savings of this final rule to forecast participation in
the H-2A program.
Exhibit 4--Estimated H-2A Growth Rates
------------------------------------------------------------------------
Value
Growth Rate (percent)
------------------------------------------------------------------------
H-2A applications processed growth rate................. 3.1
H-2A applications certified growth rate................. 4.5
H-2A workers certified growth rate...................... 5.6
H-2A certified labor contractor employer growth rate.... 7.3
H-2A certified employer growth rate..................... 3.8
------------------------------------------------------------------------
b. Estimated Number of Workers and Change in Hours
The Department presents the estimated average number of workers and
the change in hours required to comply with this final rule for each
activity in section VII.A.3 (Subject-by-Subject Analysis). For some
activities, such as rule familiarization and application submission,
all applicants will experience a change. For other activities, this
final rule will affect only certified H-2A employers or H-2A certified
labor contractors. These numbers are derived from OFLC certification
data for the years 2016 through 2020 and represent an average of the
fiscal years.\127\ To calculate these estimates, the Department
estimated the average amount of time (in hours) needed for each
activity to meet the new requirements relative to the baseline.
---------------------------------------------------------------------------
\127\ The total unique H-2A applicants in 2016, 2017, 2018,
2019, and 2020 were 7,446, 7,798. 8,580, 9,382, and 7,815,
respectively. The total certified H-2A employers in 2016, 2017,
2018, 2019, and 2020 were 6,713, 7,187, 7,902, 8,391, and 7,785,
respectively.
---------------------------------------------------------------------------
c. Compensation Rates
In section VII.A.3 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the implementation
of the provisions of this final rule. Exhibit 5 presents the hourly
compensation rates for the occupational categories expected to
experience a change in the number of hours necessary to comply with
this final rule. The Department used the mean hourly wage rate for
private sector human resources specialists \128\ \129\ and the wage
rate for Federal employees at the NPC (Grade 12, Step 5).\130\ Wage
rates are adjusted to reflect total compensation, which includes
nonwage factors such as overhead and fringe benefits (e.g., health and
retirement benefits). For all labor groups (i.e., private sector, and
Federal Government), we use an overhead rate of 17 percent \131\ and a
fringe benefits rate based on the ratio of average total compensation
to average wages and salaries in June 2021. For the private sector
employees, we use a fringe benefits rate of 42 percent.\132\ For the
Federal Government, we use a fringe benefits rate of 63 percent.\133\
We then multiply the loaded wage factor by the corresponding
occupational category wage rate to calculate an hourly compensation
rate. The Department used the hourly compensation rates presented in
Exhibit 5 throughout this analysis to estimate the labor costs for each
provision.
---------------------------------------------------------------------------
\128\ BLS, Occupational Employment and Wage Estimates, May 2020:
13-1071 Human Resources Specialists, https://www.bls.gov/oes/current/oes131071.htm (last modified Mar. 31, 2021).
\129\ Because the Occupational Employment Statistics wage rate
is in 2020 dollars, the Department inflated it to 2021 dollars using
the ECI to be consistent with the rest of the analysis, which is in
2021 dollars.
\130\ Office of Personnel Management, Salary Table 2020-CHI:
Incorporating the 1% General Schedule Increase and a Locality
Payment of 28.59% for the Locality Pay Area of Chicago-Naperville,
IL-IN-WI (Jan. 2021), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/CHI_h.pdf.
\131\ Cody Rice, U.S. Environmental Protection Agency, Wage
Rates for Economic Analyses of the Toxics Release Inventory Program
(June 10, 2002), https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
\132\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/news.release/ecec.toc.htm (last modified Sept. 16, 2021)
(ratio of total compensation to wages and salaries for all private
industry workers).
\133\ DOL, DOL-Only Performance Accountability, Information, and
Reporting System; OMB Control No. 1205-0521 (2018), https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201802-1205-003.
Exhibit 5--Compensation Rates
[2021 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base hourly Hourly
Position Grade level wage rate Loaded wage factor Overhead costs compensation rate
.............. (a) (b) (c) d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Sector Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Human Resources (HR) Specialist.......... N/A $34.33 $14.25 ($34.33 x 0.42) $5.84 ($34.33 x 0.17) $54.42
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Government Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
NPC Staff................................ 12 $46.67 $29.40 ($46.67 x 0.63) $7.93 ($46.67 x 0.17) $84.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Subject-by-Subject Analysis
The Department's analysis below covers the estimated costs and cost
savings of this final rule. The Department emphasizes that many of the
provisions in this final rule are existing requirements in the statute,
regulations, or regulatory guidance. This final rule codifies these
practices under one set of rules; therefore, they are not considered
``new'' burdens resulting from this final rule. Accordingly, the
regulatory analysis focuses on the costs and cost savings that can be
attributed exclusively to the new requirements in this final rule.
a. Costs
The following sections describe the costs of this final rule.
Quantifiable Costs
i. Rule Familiarization
When this final rule takes effect, H-2A employers will need to
familiarize themselves with the new regulations. Consequently, this
will impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization, the
Department applied the growth rate of H-2A applications processed (3.1
percent) to the number of unique H-2A applications (8,204) to determine
the annual number H-2A applications impacted in the first year. The
number of H-2A applications (8,462) was multiplied by the estimated
amount of time required to review the rule (1 hour).134 135
This number was then multiplied by the hourly compensation rate of
Human Resources Specialists ($54.42 per hour). This calculation results
in a one-time undiscounted cost of $460,502 in the first year after
this final rule takes effect. This one-time cost yields a total average
annual undiscounted cost of $46,050. The annualized cost over the 10-
year period is $53,985 and $65,565 at discount rates of three and seven
percent, respectively.
---------------------------------------------------------------------------
\134\ This estimate reflects the nature of this final rule. As a
rulemaking to amend to parts of an existing regulation, rather than
to create a new rule, the 1-hour estimate assumes a high number of
readers familiar with the existing regulation.
\135\ Differences in the calculation of applications may occur
due to the rounding of growth rate figures.
---------------------------------------------------------------------------
ii. Surety Bond Amounts
An H-2ALC is required to submit with its Application for Temporary
Employment Certification proof of its ability to discharge its
financial obligations under the H-2A program in the form of a surety
bond. See 20 CFR 655.132(b)(3); 29 CFR 501.9. Based on the Department's
experience implementing the bonding requirement and its enforcement
experience with H-2ALCs, the Department is updating its regulations.
These updates are intended to clarify and streamline the existing
requirement while strengthening the Department's ability to collect on
such bonds. Further, the Department is adjusting the required bond
amounts to reflect updates to the AEWR and to address the increasing
number of temporary agricultural labor certifications that cover a
significant number of workers under a single application and surety
bond.
Currently, the required bond amounts range from $5,000 to $75,000,
depending on the number of H-2A workers employed by the H-2ALC under
the temporary agricultural labor certification. For temporary
agricultural labor certifications covering fewer than 25 workers, the
required bond amount is currently $5,000. For temporary agricultural
labor certifications covering 25-49 workers, 50-74 workers, 75-99
workers, and 100 or more workers, the required bond amounts are
$10,000, $20,000, $50,000, and $75,000, respectively. Under this final
rule, the Department will adjust the required bond amounts
proportionally to the degree that a national average AEWR exceeds $9.25
using the current bond amounts as the base amounts for this adjustment.
The Department will calculate and publish an average AEWR when it
calculates and publishes AEWR in accordance with Sec. 655.120. The
average AEWR will be calculated as a simple average of the AEWR
applicable to the SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery,
and Greenhouse) and, until the Department publishes a different average
AEWR, bond amounts will be calculated using an average AEWR of $14.28.
To calculate the updated bond amounts, the Department will multiply the
base amounts by the average AEWR and divide that number by $9.25. For
instance, for a temporary agricultural labor certification covering 100
workers, the required bond amount would be calculated by the Department
using the following formula:
$75,000 (base amount) x ($14.28 / $9.25) = $115,784 (updated bond
amount).
When the Department publishes a different average AEWR, that amount
would replace $14.28 in this calculation and the calculations that
follow.
The Department also is increasing the required bond amounts for
temporary agricultural labor certifications covering 150 or more
workers. For such temporary agricultural labor certifications, the bond
amount applicable to certifications covering 100 or more workers is
used as a starting point and is increased for each additional set of 50
workers. The interval by which the bond amount increases will be based
on the amount of wages earned by 50 workers over a 2-week period and,
in its initial implementation, would be calculated using an average
AEWR of $14.28 as demonstrated:
$14.28 (Average AEWR) x 80 hours x 50 workers = $57,120 in additional
bond for each additional 50 workers over 100.
For a crew of 275 workers, additional surety of $171,360 would be
required. This amount is calculated by determining the number of
additional full sets of 50 workers beyond the first 100 workers covered
by the temporary agricultural labor certification and then multiplying
this number by the amount of additional surety required per each set of
additional 50 workers (275-100 = 175; 175 / 50 = 3.5; this is 3
additional sets of 50 workers; 3 x $57,120 = $171,360). As explained
above, this additional surety is added to the bond
amount required for temporary agricultural labor certifications of 100
or more workers, resulting in a required bond amount of $287,144
($115,784) for certifications of 100 or more workers + $171,360 in
additional surety).
While this may represent a significant increase in the face value
of the required bond, the Department understands that employer premiums
for FLC surety bonds generally range from one to four percent on the
standard bonding market (i.e., contractors with fair/average credit or
better).\136\
---------------------------------------------------------------------------
\136\ The Department reviewed premium rates on the websites of
companies that offer FLC bonds and, as noted in the NPRM, found that
employer premiums generally range from one to four percent on the
standard bonding market (i.e., contractors with fair/average credit
or better). 84 FR 36168, 36205, 36233. The Department assumed
contractors would have fair/average credit and so used a premium of
four percent to approximate the rate on the high side for premiums
on the standard bond market. Id.
---------------------------------------------------------------------------
For this analysis, the Department assumes that the bond premium
faced by H-2ALCs will be four percent. To calculate the costs of the
increase in the required bond amounts, the Department first calculated
the average number of H-2ALCs in FY 2016 to 2020 and the current
required bond amounts. Also, the Department calculated the average
number of additional sets of 50 workers in FY 2016 to 2020. Next, the
Department calculated the required bond amounts for each category of
number of workers using the average AEWR of $14.28, as well as the bond
amount for each set of additional 50 workers per H-2ALC. Exhibit 6
presents these calculations.
Exhibit 6--Cost Increases Due to Changes in Required Bond Amounts
----------------------------------------------------------------------------------------------------------------
Existing Average number Proposed Change in
Number of workers required bond of H-2ALCs in required bond required bond Cost increase
amount FY 16-20 amount amount (or decrease)
----------------------------------------------------------------------------------------------------------------
1-24............................ $5,000 315 $7,718.92 $2,718.92 $108.76
25-49........................... 10,000 71 15,437.84 5,437.84 217.51
50-74........................... 20,000 51 30,875.68 10,875.68 435.03
75-100.......................... 50,000 32 77,189.19 27,189.19 1,087.57
More than 100................... 75,000 135 115,783.78 40,783.78 1,631.35
Each Additional Set of 50 N/A \a\ 607 57,120.00 57,120.00 2,284.80
Workers Greater than 100.......
----------------------------------------------------------------------------------------------------------------
\a\ This value represents the total number of additional sets of 50 for H-2ALCs with more than 100 workers.
For H-2ALCs with temporary agricultural labor certifications
covering 1 to 24 workers the Department calculated the first-year cost
by multiplying the average number of H-2ALCs in FY 2016 to 2020 with
certifications covering 1 and 24 workers (315 H-2ALCs) by the change in
the required bond amount ($2,718.92) and the assumed bond premium (four
percent). The Department calculated this for each additional category
of number of workers. Additionally, the Department calculated the total
cost due to the required bond amounts for additional sets of 50 workers
by multiplying the average additional sets of 50 workers (607 sets) in
the FY 2016 to 2020 by the required bond amount ($57,120) and the
assumed bond premium (four percent). To project the costs of this final
rule these calculations were repeated in each year from 2022 through
2031.
After calculating annual total costs, the geometric growth rate of
H-2ALCs (7.3 percent) was applied to account for anticipated increased
H-2A applicants. The increased costs for each size category were summed
to obtain the total annual costs resulting from the change in bond
premiums. This calculation yields an average annual undiscounted cost
of $2.58 million.
The estimated total cost from the required bond amounts over the
10-year period is $25.76 million undiscounted, or $22.25 million and
$18.62 million at discount rates of three and seven percent,
respectively. The annualized cost over the 10-year period is $2.61
million and $2.65 million at discount rates of three and seven percent,
respectively.
iii. Recordkeeping
Earnings Records
This final rule requires an H-2A employer to maintain a worker's
actual permanent home address, email address, and phone number(s),
which are usually in the worker's country of origin. This information
will greatly assist the Department in contacting an H-2A worker in the
worker's home country, should the Department need to do so to conduct
employee interviews as part of an investigation, to secure employee
testimony during litigation, or to distribute back wages.
To calculate the estimated recordkeeping costs associated with
collecting and maintaining this information, the Department first
multiplied the number of certified H-2A employers (7,596 employers) by
the 3.8 percent annual growth rate of certified H-2A employers to
determine the annual impacted population of H-2A employers. The
impacted number was then multiplied by the estimated time required to
collect and maintain this information (2 minutes) to obtain the total
amount of recordkeeping time required. The Department then multiplied
this estimate by the hourly compensation rate for Human Resources
Specialists ($54.42 per hour). This yields an annual cost ranging from
$14,298 in 2022 to $19,955 in 2031.
Abandonment of Employment or Termination for Cause
This final rule revises Sec. 655.122(n) to require an employer to
maintain records of notification detailed in the same section for not
less than 3 years from the date of the temporary agricultural labor
certification. An employer is relieved from the requirements relating
to return transportation and subsistence costs and three-fourths
guarantee when the employer notifies the NPC (and the DHS in case of an
H-2A worker), in a timely manner, if a worker voluntarily abandons
employment before the end of the contract period or is terminated for
cause. Additionally, the employer is not required to contact its former
U.S. workers, who abandoned employment or were terminated for cause, to
solicit their return to the job.
To estimate the recordkeeping costs associated with maintaining
records of these notifications, the Department first multiplied the
number of certified H-2A employers (7,596) by the 3.8 percent annual
growth rate of certified H-2A employers to determine the annual
impacted population of H-2A employers. The impacted number was then
multiplied by the assumed percentage of employers per year that
will have 1 or more workers abandon employment or be terminated for
cause (70 percent). This amount was then multiplied by the estimated
time required to maintain these records (2 minutes) to estimate the
total amount of recordkeeping time required. This total time was then
multiplied by the hourly compensation rate for Human Resources
Specialists ($54.42 per hour). This yields an annual cost ranging from
$10,009 in 2022 to $13,968 in 2031.
Total Recordkeeping Costs
The total cost from the recordkeeping requirements over the 10-year
period is estimated at $288,778 undiscounted, or $251,445 and $212,599
at discount rates of three and seven percent, respectively. The
annualized cost of the 10-year period is $29,477 and $30,269 at
discount rates of three and seven percent, respectively.
Non-Quantifiable Costs
i. Housing
This final rule implements changes to the standards applicable to
employers who choose to meet their H-2A housing obligations by
providing rental and/or public accommodations. Under this final rule,
the Department identified specific OSHA temporary labor camp standards
that are applicable to rental or public accommodations. Where local
health and safety standards for rental and/or public accommodations
exist, the local standards apply in their entirety. However, if the
local standards do not address one or more of the issues addressed in
the OSHA health and safety standards listed in the regulation, the
relevant State standards on those issues will apply. If both the local
and State standards are silent on one or more of the issues addressed
in the OSHA health and safety standards listed in the regulation, the
relevant OSHA health and safety standards will apply. If there are no
applicable local or State standards at all, only the OSHA health and
safety standards listed in the regulation will apply. OSHA temporary
labor camp standards that are not specifically mentioned in Sec.
655.122(d)(1)(ii) will not be applicable to rental or public
accommodations.
Generally, under the 2010 H-2A Final Rule, only certain rental and/
or public accommodations are subject to the OSHA housing standards. As
such, employers who are not currently subject to the OSHA standards are
likely to experience costs related to ensuring their chosen rental and/
or public accommodations comply with those standards. For example,
employers that currently require workers to share beds will be required
to provide each worker with a separate bed. To comply with this final
rule, such employers may be required to book additional rooms or
provide different housing. The Department is unable to quantify an
estimated cost due to a lack of data as to the number of employers that
would be required to change current practices under this final rule.
The Department invited comment on this analysis for relevant data or
information that would allow for a quantitative analysis of possible
costs in this final rule and received none.
ii. Requirement To File Electronically
During FY 2019, about six percent of employers choose not to file
electronically. Under this final rule, employers will have two
options--to file electronically or to file a request for accommodation
because they are unable or limited in their ability to use or access
electronic forms as result of a disability or lack of access to e-
filing. Despite the vast majority of employers choosing to currently
file electronically, the Department has not estimated costs for
employers' time and travel to file electronically when they otherwise
would not have. The Department believes these costs will be very small.
The Department also has not estimated any costs for accommodation
requests. The Department expects to receive very few, if any, mailed-in
accommodation requests. In its H-1B program, which has mandatory e-
filing--albeit from a very different set of industry--the Department
has not received any requests for accommodation due to a disability. Of
the handful of internet access requests received annually, none were
approved, as the requestors had public access nearby. For those
requesting an accommodation in H-2A, the Department estimates that the
cost to apply would be de minimis, consisting of the time and cost of a
letter, printing out, and completing the forms.
b. Cost Savings
The following sections describe the cost savings of this final
rule.
Quantifiable Cost Savings
i. Electronic Processing and Process Streamlining
The Department is modernizing and clarifying the procedures by
which an employer files a job order and an Application for Temporary
Employment Certification for H-2A workers under Sec. Sec. 655.121 and
655.130 through 655.132. The NPC will electronically share job orders
with SWAs, which will result in both a material cost and a time cost
savings for employers.
To ensure the most efficient processing of all applications, the
Department must receive a complete application for review. Based on the
Department's experience administering the H-2A program under the
current rule, a common reason for issuing a NOD on an employer's
application includes failure to complete all required fields on a form,
failure to submit one or more supporting documents required by the
regulation at the time of filing, or both. These incomplete
applications create unnecessary processing delays for both the NPC and
employers. In order to address this concern, this final rule requires
an employer to submit the Application for Temporary Employment
Certification and all required supporting documentation using an
electronic method(s) designated by the OFLC Administrator, unless the
employer cannot file electronically due to disability or lack of
internet access. The FLAG system used by the OFLC will not permit an
employer to submit an application until the employer completes all
required fields on the forms and uploads and saves to the pending
application an electronic copy of all required documentation, including
a copy of the job order submitted in accordance with Sec. 655.121. The
Department estimates that 94 percent of applications are currently
filed electronically and that this final rule would significantly
increase the number of employers who submit electronic applications.
This would result in material and time cost savings for employers.
Electronic processing would also result in a time cost savings for the
NPC. This final rule also provides that employers may file only one
Application for Temporary Employment Certification for place(s) of
employment contained within a single AIE covering the same occupation
or comparable work by an employer for each period of employment, which
will reduce the number of overall applications submitted. Finally, this
final rule permits the use of electronic signatures as a valid form of
the employer's original signature and, if applicable, the original
signature of the employer's authorized attorney or agent.
To estimate the material cost savings to employers due to
electronic processing, the Department assumed that this final rule
would result in six percent of H-2A employers switching to electronic
processing of applications. The Department applied the growth rate of
H-2A applications (3.1 percent) to the number of H-2A applications
processed (11,527) to determine the
annual impacted number of applications. The Department then multiplied
the percentage estimated to switch to electronic processing of
applications (six percent) by the annual number of impacted H-2A
applications to obtain the number of employers who would no longer be
submitting by mail. For each application, a material cost was
calculated by summing the price of a stamp ($0.58), the price of an
envelope ($0.04), and the total cost of paper ($0.61). The total cost
of paper was calculated by multiplying the cost of a sheet of paper
($0.01) by the number of pages in the application (100 pages). The per-
application costs were then multiplied by the number of applications
who would no longer be submitting by mail. This yields average annual
undiscounted cost savings of $993.
The total material cost savings from electronic processing over the
10-year period is estimated at $9,933 undiscounted, or $8,662 and
$7,338 at discount rates of three and seven percent, respectively. The
annualized cost savings over the 10-year period is $1,015 and $1,045 at
discount rates of three and seven percent, respectively.
To estimate the time cost savings to employers due to electronic
processing, the Department again estimated the number of affected
applications by multiplying the assumed percentage of employers that
would switch to electronic applications (six percent) by the total
number of annually impacted H-2A applications. The Department assumed
that the time savings due to electronic submission (rather than sealing
and mailing an envelope) would be 5 minutes. The time cost savings were
calculated by multiplying 5 minutes (0.083 hours) by the hourly
compensation rate for Human Resources Specialists ($54.42 per hour).
This time cost savings was then multiplied by the estimated number of
applications expected to switch to electronic submission. This yields
average annual undiscounted cost savings of $3,657.
The total time cost savings from electronic processing over the 10-
year period is estimated at $36,566 undiscounted, or $31,886 and
$27,011 at discount rates of three and seven percent, respectively. The
annualized cost savings over the 10-year period is $3,738 and $3,846 at
discount rates of three and seven percent, respectively.
To estimate the material cost savings to employers due to the NPC
sharing job orders with the SWAs electronically, the Department assumed
that 100 percent of unique H-2A applicants would be affected. For each
annually impacted H-2A application, a material cost was calculated by
summing the price of a stamp ($0.58), the price of an envelope ($0.04),
and the total cost of paper ($0.61). The total cost of paper was
calculated by multiplying the cost of a sheet of paper ($0.01) by the
number of pages in the application (100 pages). The per-application
costs were then multiplied by the number of applications who would no
longer be submitting by mail. This yields average annual undiscounted
cost savings of $16,836.
The total material cost savings over the 10-year period is
estimated at $168,361 undiscounted, or $146,812 and $124,368 at
discount rates of three and seven percent, respectively. The annualized
cost savings over the 10-year period is $17,211 and $17,707 at discount
rates of three and seven percent, respectively.
To estimate the time cost savings to employers resulting from the
NPC electronically sharing job orders with the SWAs, the Department
again assumed that 100 percent of unique H-2A applicants would be
affected. For each annually impacted H-2A application, the Department
assumed that the time savings due to electronic submission (rather than
sealing and mailing an envelope) would be 5 minutes. The time cost
savings were calculated by multiplying 5 minutes in hours (0.083 hours)
by the hourly compensation rate for Human Resources Specialists ($54.42
per hour). This cost savings was then multiplied by the estimated
number of applications switching to electronic submission. This yields
average annual undiscounted cost savings of $61,976.
The total time cost savings over the 10-year period is estimated at
$619,762 undiscounted, or $540,438 and $457,818 at discount rates of
three and seven percent, respectively. The annualized cost savings over
the 10-year period is $63,356 and $65,183 at discount rates of three
and seven percent, respectively.
The Department assumes that the DOL staff will save approximately 1
hour for each application that is now submitted electronically. To
calculate the time cost savings to the Federal Government due to
electronic processing, the Department first calculated the number of
employers that would now submit electronically by multiplying the
assumed percentage (six percent) by the total number of annually
impacted H-2A applications. This cost savings was then multiplied by
the per-application time cost savings, calculated by multiplying the
time savings (1 hour) by the hourly compensation rate for DOL staff
($84.01 per hour). This yields average annual undiscounted cost savings
of $68,008.
The total time cost savings over the 10-year period is estimated at
$680,079 undiscounted, or $593,034 and $502,374 at discount rates of
three and seven percent, respectively. The annualized cost savings over
the 10-year period is $69,522 and $71,527 at discount rates of three
and seven percent, respectively.
Non-Quantifiable Cost Savings
i. Cost Savings From Efficiencies Associated With Receiving More
Complete and Accurate Applications
The Department is modernizing the process by which H-2A employers
submit job orders to the SWAs and applications to the Department
through e-filing and requiring the designation of a valid email address
for sending and receiving official correspondence during application
processing, except where the employer has limited ability to use or
access electronic forms as result of a disability or lacks access to e-
filing.
The Department believes that transitioning to electronic
submissions would result in additional cost savings to employers and to
the NPC from the cost savings described above. Currently, submissions
that are incomplete or obviously inaccurate upon their receipt result
in a NOD on the employer's application. As a result, employers who
submit incomplete applications must start the submission process from
the beginning. This can lead to costly delays for employers, as well as
costly processing time for the NPC.
The requirement for electronic submissions would reduce the number
of instances where incomplete applications are submitted because
employers have not fully completed the form prior to submitting it. E-
filing permits automatic notification that an application is incomplete
or obviously inaccurate and provides employers with an immediate
opportunity to correct the errors or upload missing documentation.
Additionally, the adoption of electronic submissions should reduce the
amount of time it takes to correct errors because entries can simply be
deleted, rather than requiring the production of new copies of the form
after an error is detected.
For the NPC, electronic filing and communications will improve the
quality of information collected from employers, reduce administrative
costs of communicating with employers to resolve obvious errors or
receive complete information, and reduce the frequency of delays
related to application processing.
ii. Cost Savings From Efficiencies Created by Acceptance of Electronic
Signatures
The Department will enable employers, agents, and attorneys to use
electronic methods to sign or certify any document required under this
subpart using a valid electronic signature method. The current practice
of accepting electronic (scanned) copies of original signatures on
documents has generated efficiencies in the application process, and
the Department believes leveraging modern technologies to accept
electronic signature methods can achieve even greater efficiencies and
result in cost savings to employers and the NPC.
Accepting electronic signature methods as a means of complying with
original signature requirements for the H-2A program will reduce the
costs for employers associated with printing, mailing, or delivering
original signed paper documents or scanned copies of original
signatures on documents to the NPC. Additionally, electronic signature
methods give employers and their authorized attorneys or agents greater
flexibility to conduct business with the Department--at any time and at
any location with an internet connection--rather than needing to be
located in a physical office. This frees valuable time for conducting
other business tasks.
The NPC anticipates additional cost savings from use of electronic
signature methods. The acceptance of documents containing electronic
signatures will facilitate the NPC's use of a more centralized document
storage capability to access documents more efficiently during
application processing, saving time and expense.
iii. Cost Savings From Efficiencies Created by the Use of Electronic
Surety Bonds
The Department also is developing a process for accepting
electronic surety bonds through the FLAG system and is requiring the
use of a standardized bond form. The Department believes that these
changes will result in a cost savings to H-2ALCs and the NPC. Currently
all H-2ALCs, even the majority that submit other components of their
applications electronically, must submit original paper surety bonds
before the temporary agricultural labor certifications can be issued.
Accepting original electronic surety bonds will reduce the costs
associated with mailing or delivering the original surety bonds to the
NPC and the costs for NPC to transfer these bonds to WHD for
enforcement purposes. Additionally, using a standardized bond form will
reduce the likelihood of errors and the amount of time required for the
NPC to review the bonds for compliance.
c. Qualitative Benefits Discussion
i. Surety Bonds
The changes to the surety bond requirement, including the use of
electronic surety bonds and a standardized bond form, will also result
in unquantifiable benefits to the H-2ALCs in the form of a more
streamlined application process with fewer delays. Accepting electronic
surety bonds will mean that the NPC receives the required original bond
with the rest of the application, and it will no longer be necessary to
wait for the bond to arrive by mail or other delivery before issuing
the temporary agricultural labor certification.
Further, these changes and the changes to the required bond amounts
will enhance WHD's enforcement capabilities by making it more certain
that there will be a sufficient, compliant bond available to redress
potential violations. This will advance the Department's goal of
aggressively enforcing against program fraud and abuse that undermine
the interests of U.S. workers.
4. Summary of the Analysis
Exhibit 8 summarizes the estimated total costs and cost savings of
this final rule over the 10-year analysis period. The change in the
surety bond amounts has the largest effect as a cost.
Exhibit 8--Estimated 10-Year Monetized Costs and Cost Savings of This
Final Rule by Provision
[2021 $Millions]
------------------------------------------------------------------------
Total cost
Provision Total cost savings
------------------------------------------------------------------------
Surety Bond............................. $25.76 ..............
Record Keeping.......................... 0.29 ..............
Rule Familiarization.................... 0.46 ..............
Electronic Processing and Process .............. $1.51
Streamlining Cost......................
Undiscounted 10-Year Total.............. 26.51 1.51
10-Year Total with a Discount Rate of 3% 22.96 1.32
10-Year Total with a Discount Rate of 7% 19.29 1.12
------------------------------------------------------------------------
Exhibit 9 summarizes the estimated total costs and cost savings of
this final rule over the 10-year analysis period.
The Department estimates the annualized costs of this final rule at
$2.75 million and the annualized cost savings at $0.16 million, at a
discount rate of seven percent. The Department estimates that this
final rule would result in annualized net quantifiable costs of $2.59
million and total 10-year net costs of $18.17 million, both at a
discount rate of seven percent and expressed in 2021 dollars. The
Department believes that the qualitative benefits outweigh the
quantified net costs of this rule.
Exhibit 9--Estimated Monetized Costs, Cost Savings, and Net Costs of This Final Rule
[2021 $Millions]
----------------------------------------------------------------------------------------------------------------
Costs Costs savings Net costs
----------------------------------------------------------------------------------------------------------------
2022............................................................ $2.32 $0.13 $2.19
2023............................................................ 2.00 0.14 1.86
2024............................................................ 2.14 0.14 2.00
2025............................................................ 2.30 0.14 2.15
2026............................................................ 2.46 0.15 2.32
2027............................................................ 2.64 0.15 2.49
2028............................................................ 2.84 0.16 2.68
2029............................................................ 3.04 0.16 2.88
2030............................................................ 3.26 0.17 3.09
2031............................................................ 3.50 0.17 3.33
Undiscounted 10-Year Total...................................... 26.51 1.51 25.00
10-Year Total with a Discount Rate of 3%........................ 22.96 1.32 21.64
10-Year Total with a Discount Rate of 7%........................ 19.29 1.12 18.17
10-Year Average................................................. 2.65 0.15 2.50
Annualized with a Discount Rate of 3%........................... 2.69 0.15 2.54
Annualized with a Discount Rate of 7%........................... 2.75 0.16 2.59
----------------------------------------------------------------------------------------------------------------
5. Regulatory Alternatives
The Department considered two alternatives to the chosen approach
for surety bonds. First the Department considered, as the first
alternative, starting with the current (2010) bond amounts and then
adjusting for wage growth as estimated by change in the average AEWR
and for very large crew sizes by requiring additional surety for each
additional 50 workers sought. This is the same approach as this final
rule's surety bond structure except this alternative would replace the
category for H-2ALCs requesting fewer than 25 workers with two
categories: one with a lower required bond amount for H-2ALCs
requesting fewer than 10 workers and another with the same required
bond amount as this final rule for H-2ALCs requesting 10 to 24 workers.
This would provide some relief to H-2ALCs who use between one and nine
workers. It would have the same remaining categories as in this final
rule. The Department estimated the cost of this alternative using the
same method as in this final rule. Exhibit 10 summarizes the cost
increases for this alternative.
Exhibit 10--Cost Increases Due to Changes in Required Bond Amounts
----------------------------------------------------------------------------------------------------------------
Existing Average number Proposed Change in
Number of workers required bond of H-2ALCs in required bond required bond Cost increase
amount FY 16-19 amount amount
----------------------------------------------------------------------------------------------------------------
1-9............................. $5,000 196 $3,087.57 -$1,912.43 -$76.50
10-24........................... 5,000 120 7,718.92 2,718.92 108.76
25-49........................... 10,000 71 15,437.84 5,437.84 217.51
50-74........................... 20,000 51 30,875.68 10,875.68 435.03
75-100.......................... 50,000 32 77,189.19 27,189.19 1,087.57
More than 100................... 75,000 135 115,783.78 40,783.78 1,631.35
Each Additional Set of 50 N/A \a\ 607 57,120.00 57,120.00 2,284.80
Workers Greater than 100.......
----------------------------------------------------------------------------------------------------------------
The total estimated cost of the first alternative over the 10-year
period is $25.22 million undiscounted, or $21.78 million and $18.23
million at discount rates of three and seven percent, respectively. The
annualized cost of the 10-year period is $2.55 million and $2.60
million at discount rates of three and seven percent, respectively. The
Department prefers the approach used in this final rule because it
maintains a high proportion of sufficient bonds.
Under the second regulatory alternative the Department considered,
the Department would base required bond amounts on estimated gross
payroll based on the number of workers, applicable wage rates, and
length of certification; then require a surety bond equaling five
percent of this value. Under this alternative, the bond computation
would account for more factors that potentially impact an H-2ALC's back
wage liability and would thus be application-specific.
The Department calculates the cost of this second alternative by
first estimating gross payroll (i.e., number of workers x applicable
wage rate x number of weekly hours x number of weeks in season) for
each temporary agricultural labor certification and then taking the
applicable percentage--five percent. The difference in bond amounts
required under this alternative, then, is for each temporary
agricultural labor certification the difference between the bond an H-
2ALC would pay under the 2010 H-2A Final Rule (between $5,000 and
$75,000 based on number of workers) and the calculated alternative
surety bond. Then, the assumed bond premium (four percent) is applied
to calculate the cost for each temporary agricultural labor
certification from FY 2016 to FY 2020 and the cost across
certifications is summed for an annual total cost. To project the
annual cost of this second alternative, the growth rate of H-2ALCs (7.3
percent) is applied to the average annual total cost from FY 2016 to FY
2020.
The estimated total cost of the second alternative over the 10-year
period is $6.46 million undiscounted, or $5.58 million and $4.67
million at discount rates of three and seven percent, respectively. The
annualized cost of the 10-year period is $654,196 and $664,778 at
discount rates of three and seven percent, respectively. The Department
prefers the chosen surety bond approach because it is expected to
result in a higher proportion of sufficient bonds, thus providing
greater protection for workers, while being easier to understand and
administer because the bond amounts do not need to be calculated for
every temporary agricultural labor certification.
Exhibit 11 summarizes the estimated costs associated with the three
considered surety bond approaches.
Exhibit 11--Estimated Monetized Costs of this Final Rule and Regulatory Alternatives
[2021 $Millions]
----------------------------------------------------------------------------------------------------------------
Regulatory Regulatory
Final rule alternative 1 alternative 2
----------------------------------------------------------------------------------------------------------------
Total 10-Year Cost.............................................. $25.76 $25.21 $6.46
Total with 3% Discount.......................................... 22.25 21.78 5.58
Total with 7% Discount.......................................... 18.62 18.22 4.67
Annualized Cost with 3% Discount................................ 2.61 2.55 0.65
Annualized Cost with 7% Discount................................ 2.65 2.59 0.66
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act, and Executive Order 13272 (Proper Consideration of Small
Entities in Agency Rulemaking)
The RFA, 5 U.S.C. 601 et seq., as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (Mar.
29, 1996), hereafter jointly referred to as the RFA, requires Federal
agencies engaged in rulemaking to assess the impact of regulations that
will have a significant economic impact on a substantial number of
small entities.
The Department believes that this final rule will not have a
significant economic impact on a substantial number of small entities.
Based on this determination, the Department certifies that this final
rule does not have a significant economic impact on a substantial
number of small entities. Therefore, a final regulatory flexibility
analysis updating the initial regulatory flexibility analysis included
in the NPRM is not required. The factual basis for this certification
is set forth below and is based on the Department's analysis of each
actual individual small entity impacted by this final rule.
1. Description of the Number of Small Entities to Which This Final Rule
Will Apply
a. Definition of Small Entity
The RFA defines a ``small entity'' as a (1) small not-for-profit
organization, (2) small governmental jurisdiction, or (3) small
business. The Department used the entity size standards defined by the
Small Business Administration (SBA), in effect as of August 19, 2019,
to classify entities as small.\137\ SBA establishes separate standards
for individual 6-digit North American Industry Classification System
(NAICS) industry codes, and standard cutoffs are typically based on
either the average number of employees, or the average annual receipts.
For example, small businesses are generally defined as having fewer
than 500, 1,000, or 1,250 employees in manufacturing industries and
less than $7.5 million in average annual receipts for nonmanufacturing
industries. However, some exceptions do exist, the most notable being
that depository institutions (including credit unions, commercial
banks, and noncommercial banks) are classified by total assets (small
defined as less than $550 million in assets). Small governmental
jurisdictions are another noteworthy exception. They are defined as the
governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations of less than 50,000
people.\138\
---------------------------------------------------------------------------
\137\ SBA, Table of Small Business Size Standards Matched to
North American Industry Classification System Codes (Aug. 2019),
https://www.sba.gov/document/support--table-size-standards.
\138\ See https://advocacy.sba.gov/resources/the-regulatory-flexibility-act for details.
---------------------------------------------------------------------------
b. Number of Small Entities
The Department collected NAICS code, employment, and annual revenue
data for unique entities in the certification data, from the business
information provider Data Axle, and merged those data into the H-2A
disclosure data for FY 2020 and FY 2021. This process allowed the
Department to identify the number and type of small entities in the H-
2A disclosure data as well as their annual revenues.
The Department identified 9,927 unique employers (excluding labor
contractors). Of those 9,927 employers, the Department was able to
obtain data matches of revenue and employees for 2,615 H-2A employers
in the FY 2020 and FY 2021 certification data. Of those 2,615
employers, the Department determined that 2,105 were small (80.5
percent). These unique small entities had an average of 11 employees
and average annual revenue of approximately $3.62 million. Of these
small unique entities, 2,085 of them had revenue data available from
Data Axle.
The Department identified 1,344 unique employers that are labor
contractors. Of those 1,344 labor contractors, the Department was able
to obtain data matches of revenue and employees for 152 H-2ALCs in the
FY 2020 and FY 2021 certification data. Of those 152 labor contractors,
the Department determined that 137 were small (90.1 percent). These
unique small labor contractors had an average of 15 employees and
average annual revenue of approximately $3.81 million. Of these small
unique labor contractors, 134 of them had revenue data available from
Data Axle.
The Department's analysis of the impact of this proposed rule on
small entities is based on the number of small unique entities (2,242
small entities with revenue data = 2,085 small non-labor contractor
entities and 134 small labor contractor entities). The remaining
unmatched entities are assumed to have impacts similar to these matched
entities. To provide clarity on the agricultural industries impacted by
this regulation, Exhibit 12 shows the number of unique non-H-2ALC small
entity employers with temporary agricultural labor certifications in FY
2020 to 2021 within the top-10 NAICS code at the 6-digit. Exhibit 13
shows the number of unique H-2ALC small entity employers with temporary
agricultural labor certifications in FY 2020 to 2021 within the top-10
NAICS code at the 6-digit.
Exhibit 12--Number of H-2A Small Non-Labor Contractor Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
Number of
6-Digit NAICS Description employers Percent
----------------------------------------------------------------------------------------------------------------
111998............................... All Other Miscellaneous Crop Farming..... 611 29
444220............................... Nursery, Garden Center, and Farm Supply 162 8
Stores.
561730............................... Landscaping Services..................... 134 6
445230............................... Fruit and Vegetable Markets.............. 127 6
424480............................... Fresh Fruit and Vegetable Merchant 84 4
Wholesalers.
111339............................... Other Noncitrus Fruit Farming............ 78 4
112990............................... All Other Animal Production.............. 57 3
424930............................... Flower, Nursery Stock, and Florists' 51 2
Supplies Merchant Wholesalers.
424910............................... Farm Supplies Merchant Wholesalers....... 41 2
484230............................... Specialized Freight (except Used Goods) 39 2
Trucking, Long-Distance.
Other NAICS.......................... ......................................... 721 34
----------------------------------------------------------------------------------------------------------------
Exhibit 13--Number of H-2A Small Labor Contractor Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
Number of
6-Digit NAICS Description employers Percent
----------------------------------------------------------------------------------------------------------------
484230............................... Specialized Freight (except Used Goods) 11 8
Trucking, Long-Distance.
236115............................... New Single-Family Housing Construction 11 8
(except For-Sale Builders).
111998............................... All Other Miscellaneous Crop Farming..... 10 7
115115............................... FLCs and Crew Leaders.................... 8 6
561311............................... Employment Placement Agencies............ 7 5
115113............................... Crop Harvesting, Primarily by Machine.... 7 5
541110............................... Offices of Lawyers....................... 6 4
445230............................... Fruit and Vegetable Markets.............. 5 4
115112............................... Soil Preparation, Planting, and 5 4
Cultivating.
115116............................... Farm Management Services................. 4 3
Other NAICS.......................... ......................................... 62 46
----------------------------------------------------------------------------------------------------------------
2. Projected Impacts to Affected Small Entities
The Department has estimated the incremental costs for small
businesses from the baseline \139\ of this final rule. We estimated the
costs of (a) new surety bond amounts required for H-2ALCs based on the
number of H-2A employees; (b) recordkeeping costs associated with
maintaining records of employee's home address in their respective home
countries; (c) recordkeeping costs incurred by the abandonment or
dismissal with cause of employees; and (d) time to read and review this
final rule. The cost estimates included in this analysis for the
provisions of this final rule are consistent with those presented in
the E.O. 12866 section.
---------------------------------------------------------------------------
\139\ 2010 H-2A Final Rule, 75 FR 6884; TEGL No. 17-06, Change
1, Special Procedures: Labor Certification Process for Employers in
the Itinerant Animal Shearing Industry under the H-2A Program (June
14, 2011); TEGL No. 33-10, Special Procedures: Labor Certification
Process for Itinerant Commercial Beekeeping Employers in the H-2A
Program (June 14, 2011); TEGL No. 16-06, Change 1, Special
Procedures: Labor Certification Process for Multi-State Custom
Combine Owners/Operators under the H-2A Program (June 14, 2011).
---------------------------------------------------------------------------
The Department estimates that small businesses not classified as H-
2ALCs, 2,085 unique employers, would incur a one-time cost of $54.42 to
familiarize themselves with the rule and an annual cost of $3.59
associated with recordkeeping requirements.\140\ While the Department
estimates that small businesses would also incur annual cost savings
associated with the electronic processing of applications, the
Department is unable to quantify these costs savings due to data
limitations concerning the proportion of small businesses who currently
select to file electronically. However, the Department conservatively
estimates this cost as de minimis by excluding them from the
unquantified cost savings discussed in the previous section. In total,
the Department estimates that small businesses not classified as labor
contractors will incur a total first-year cost of $58.01 (= $54.42 +
$3.59). The Department uses the first-year cost estimate because it is
the highest cost incurred by businesses over the analysis timeframe.
---------------------------------------------------------------------------
\140\ $54.42 = 1 hr x $54.42, where $54.42 is the fully loaded
wage rate for an HR Specialist. Recordkeeping requirements include
the following: $1.80 to collect and maintain records of workers'
email address and phone number(s) home and $1.80 to maintain records
of notification to the NPC (and DHS) of employment abandonment or
termination for cause.
---------------------------------------------------------------------------
This final rule includes the provision pertaining to surety bonds
that applies to only H-2ALCs, so the Department estimates the impact on
those entities separately. See Sec. 655.132(c). To estimate the impact
of this final rule on these entities, the Department used the SBA size
standards to classify 151 H-2ALCs as small employers. These small
entities averaged 15 employees, 48 certified workers, and annual
revenues of approximately $3.81 million.
The Department estimates that the average small H-2ALC would incur
a one-time cost of $54.42 to familiarize itself with the rule, annual
costs of $3.59 associated with recordkeeping requirements, and
calculated the increase in required surety bond amounts based on the
number of certified workers associated with the average temporary
agricultural labor certification for each H-2ALC.\141\ While the
Department estimates that small businesses would also incur annual cost
savings associated with the electronic processing of applications, the
Department ignores those cost savings for purposes of the RFA analysis.
In total, the Department estimates that each small business classified
as an H-2ALC will incur a total first-year cost of $275.52 (= $54.42 +
$3.59 + $217.51).
---------------------------------------------------------------------------
\141\ For example, an H-2ALC with a temporary agricultural labor
certification for 48 workers is estimated to face a cost of $217.51,
the annual incremental cost per H-2ALC with 25 to 49 H-2A workers.
---------------------------------------------------------------------------
The Department determined the proportion of each small entity's
total revenue that would be affected by the costs of this final rule to
determine if this final rule would have a significant and substantial
impact on small business. The cost impacts included the
estimated first-year costs and the wage burden cost introduced by this
final rule. The Department used a total cost estimate of 3 percent of
revenue as the threshold for a significant individual impact and set a
total of 15 percent of small businesses incurring a significant impact
as the threshold for a substantial impact on small business. A
threshold of three percent of revenues has been used in prior
rulemakings for the definition of significant economic impact.\142\
This threshold is also consistent with that sometimes used by other
agencies.\143\ Of the 2,085 unique small non-labor contractor employers
with work occurring in 2020-2021 and revenue data, 100 percent of
employers had less than 3 percent of their total revenue affected. Of
the 134 small labor contractors with work occurring in 2020-2021 and
revenue data, 97 percent of labor contractors had less than 3 percent
of their total revenue affected. Exhibit 14 is a breakdown of small
employers by the proportion of revenue affected by the costs of this
final rule.
---------------------------------------------------------------------------
\142\ See, e.g., NPRM, Increasing the Minimum Wage for Federal
Contractors, 79 FR 60634 (Oct. 7, 2014) (establishing a minimum wage
for contractors); Final Rule, Discrimination on the Basis of Sex, 81
FR 39108 (June 15, 2016).
\143\ See, e.g., Final Rule, Medicare and Medicaid Programs;
Regulatory Provisions to Promote Program Efficiency, Transparency,
and Burden Reduction; Part II, 79 FR 27106 (May 12, 2014)
(Department of Health and Human Services rule stating that under its
agency guidelines for conducting regulatory flexibility analyses,
actions that do not negatively affect costs or revenues by more than
three percent annually are not economically significant).
Exhibit 14--Cost Impacts as a Proportion of Total Revenue for Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-labor contractors by NAICS code
Proportion of revenue impacted -----------------------------------------------------------------------------------------------
111998 444220 561730 445230 All other Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%..................................................... 611 (100.0%) 162 (100.0%) 134 (100.0%) 127 (100.0%) 1051 (100.0%) 2085 (100.0%)
1%-2%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
2%-3%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
3%-4%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
4%-5%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
>5%..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
-----------------------------------------------------------------------------------------------
Total >3%........................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Labor contractors by NAICS code
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%..................................................... 11 (100.0%) 11 (100.0%) 9 (100.0%) 8 (100.0%) 87 (92.6%) 126 (94.7%)
1%-2%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (2.1%) 2 (1.5%)
2%-3%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.1%) 1 (0.8%)
3%-4%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (1.1%) 1 (0.8%)
4%-5%................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%)
>5%..................................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 3 (3.2%) 3 (2.3%)
-----------------------------------------------------------------------------------------------
Total >3%........................................... 0 (0.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (4.3%) 4 (3.0%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
C. Paperwork Reduction Act
In order to meet its statutory responsibilities under the INA, the
Department collects information necessary to render determinations on
requests for temporary agricultural labor certification, which allow
employers to bring foreign labor into the United States on a seasonal
or other temporary basis under the H-2A program. The Department uses
the collected information to determine if employers are meeting their
statutory and regulatory obligations. This information is subject to
the PRA, 44 U.S.C. 3501 et seq. A Federal agency generally cannot
conduct or sponsor a collection of information, and the public is
generally not required to respond to an information collection, unless
it is approved by OMB under the PRA and displays a currently valid OMB
Control Number. In addition, notwithstanding any other provisions of
law, no person shall generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
Control Number. See 5 CFR 1320.5(a) and 1320.6. The Department has OMB
approval for its H-2A program information collection under Control
Number 1205-0466.
In accordance with the PRA, the information collection requirements
that must be implemented as a result of this regulation must receive
approval from OMB. Therefore, the Department submitted a clearance
package in connection with the NPRM that contained proposed revisions
to the information collection pending OMB approval under 1205-
0466.\144\ In this package, the Department proposed changes to the
forms used to collect required information (i.e., Forms ETA-9142A and
appendices; Form ETA-790/790A and addenda; and Form ETA-232 \145\) to
conform to proposed revisions to the Department's H-2A regulations and
introduced a new surety bond form, Form ETA-9142A, Appendix B, H-2A
Labor Contractor Surety Bond, to facilitate satisfaction of an existing
filing requirement for H-2ALC employers. These proposed modifications
reflected the regulatory changes in the NPRM, such as consistent use of
defined terms, revised assurances, elimination of ``no'' check boxes
where such a response equates to a noncompliant filing, and adding
fields to confirm, for example, submission of the new electronic surety
bond form and the employer's participation in optional pre-filing
recruitment, if applicable. In addition, the Department's package
contained proposed revisions to the information collection to reflect
new collections (e.g., notice of intent to stagger entry of H-2A
workers under the option proposed at Sec. 655.130(f)). Although the
information collection requirements in this rulemaking fall under OMB
Control Number 1205-0537, OMB authorized the NPRM Information
Collection Request (ICR) as OMB Control Number 1205-0537, approved on
October 20, 2019, due to the Department's separate pending ICR under
OMB Control Number 1205-0466, which OMB subsequently approved on August
22, 2019.\146\ The public was given 60 days to comment on the
information collection.
---------------------------------------------------------------------------
\144\ The Department had requested OMB's approval of revisions
to the information collection tools to modernize and streamline the
forms and electronic filing process. OMB approved the request under
1205-0466 on August 22, 2019.
\145\ As explained in the NPRM, through this rulemaking, the
Department will revise and consolidate the collection of information
through the Form ETA-232/232A, which is a collection of information
from SWAs, not employers, that is currently authorized under OMB
Control Number 1205-0017, into the agency's primary H-2A information
collection requirements under OMB Control Number 1205-0466. The SWAs
will use the new Form ETA-232, Domestic Agricultural In-Season Wage
Report, to report to OFLC the results of wage surveys in compliance
with the revised PWD methodology in this final rule, which OFLC will
use to establish prevailing wage rates for the H-2A program. This
consolidation and revision will align all data collection for the H-
2A program under a single OMB-approved ICR.
\146\ OMB Control Number 1205-0466 is subsequently up for
renewal again. The ICR expires on August 31, 2022.
---------------------------------------------------------------------------
The Department did not receive comments on the ICR itself; however,
commenters addressed aspects of the information collection while
discussing the proposed regulations. After considering public comments
submitted in response to the NPRM, the Department modified the proposed
regulations, as discussed in the preamble above, and the information
collection in this ICR. The information collection changes to implement
this final rule must be assessed under the PRA. For administrative
purposes only, the Department is submitting this ICR under control
number 1205-0537, the control number OMB assigned to the clearance
package approved in connection with the NPRM. Once all of the
outstanding actions are complete, the Department intends to submit a
nonmaterial change request to transfer the burden from this OMB Control
Number (1205-0537) to the existing OMB control number for the H-2A
Foreign Labor Certification Program (1205-0466) and proceed to
discontinue the use of this OMB Control Number 1205-0537.
In response to comments, the Department made additional
modifications to the forms implemented with this final rule to clarify
requirements, reflect the provisions of this final rule (e.g.,
prevailing wage survey methodology), and conform to similar collections
(e.g., manner of collecting name information). In addition to editing
language on the forms, the Department modified some data collection
fields after considering public comments. Many commenters addressed the
Department's proposal to collect information about an employer's intent
to stagger entry of H-2A workers through a notice submitted to the NPC,
which would require an employer to submit a narrative notice to the NPC
and could be difficult to disclose to prospective U.S. worker
applicants during recruitment. The estimated burden hours for employers
had changed from the estimate provided for the NPRM, reflecting the
Department's decision not to adopt three optional information
collections proposed in the NPRM. First, the Department did not adopt
the proposal to allow an employer the option of staggering the entry of
some of its H-2A workers under a single temporary agricultural labor
certification. Second, the Department did not adopt the proposal to
allow an employer the option of engaging in pre-filing recruitment
activities. Third, the Department did not adopt the proposal to allow
an employer to request post-certification changes to specific worksites
in the AIE where H-2A workers are authorized to work. These decisions
eliminated the related notification and document retention burden that
had been included in the estimated burden hours of the NPRM. In
addition, several comments addressing joint employment scenarios
indicated that a change to the manner in which the Department collects
information about the role of agricultural associations in filing H-2A
applications on behalf of their employer-members and, generally, when
joint employment is involved could increase clarity for filers. The
Department modified this collection on the Form ETA-9142A by separating
one item in Section A into two parts to more clearly collect
information about the type of employer filing (i.e., individual
employer or joint employers) and, if applicable, the role of the
agricultural association in the filing. Further, many comments
addressed the Department's housing inspection and compliance
requirements, in part, expressing concern about the complexity of those
requirements and evidence of compliance with applicable standards. In
response to these comments, the Department revised Form ETA-790A and
ETA-790A, Addendum B, to refocus the fields related to housing type and
compliance.
As a result, the forms implemented with this final rule align
information collection requirements with the Department's regulation
and continue the ongoing efforts to provide greater clarity to
employers on regulatory requirements, standardize and streamline
information collection to reduce employer time and burden preparing
applications, and promote greater efficiency and transparency in the
review and issuance of labor certification decisions under the H-2A
visa program. Overall, these revisions discussed above decrease public
burden to respond to the information collection required under this
final rule from that proposed in connection with the NPRM by 5 minutes.
This final rule adopts more robust information requirements for
requests for administrative review, as explained in the preamble
discussion of Sec. 655.171, which merit increasing the burden estimate
for employers who appeal final determinations. As a result, this final
rule increases the public time burden related to appeal by 40 minutes;
thus, the estimated time burden related to appeals is now estimated at
1 hour (60 minutes). In addition to this final rule, the Department
issued a companion 2020 H-2A AEWR Final Rule governing the methodology
for establishing the AEWR (85 FR 70445), which appeared at paragraphs
(b)(1), (2), and (5) of the NPRM. The revised methodology simplifies
the process of determining the hourly AEWR applicable to an employer's
job opportunity and, therefore, reduces the time burden of determining
the offered wage by 3 minutes, a burden accounted for in this ICR,
although it is not currently a burden felt by employers due to the 2020
H-2A AEWR Final Rule injunction discussed above.
The information collection change in requirements associated with
this final rule are summarized as follows:
Title: H-2A Temporary Agricultural Employment Certification
Program.
Agency: DOL-ETA.
Type of Review: New Information Collection Request.
OMB Control Number: 1205-0537.
Affected Public: Individuals or Households, Private Sector--
businesses or other for-profits, Government, State, Local, and Tribal
Governments.
Form(s): ETA-9142A, H-2A Application for Temporary Employment
Certification; ETA-9142A--Appendix A; ETA-9142A--Appendix B, H-2A Labor
Contractor Surety Bond; ETA-9142A--H-2A Approval Final Determination:
Temporary Agricultural Labor Certification; ETA-790/790A, H-2A
Agricultural Clearance Order; ETA-790/790A--Addendum A; ETA-790/790A--
Addendum B; ETA-790/790A--Addendum C; ETA-232, Domestic Agricultural
In-Season Wage Report.
Total Annual Respondents: 11,702.
Annual Frequency: On Occasion.
Total Annual Responses: 373,176.
Estimated Time per Response (averages):
--Forms ETA-9142A, Appendix A, Appendix B--3.05 hours per response.
--Forms ETA-790/790A--0.70 hours per response.
--Form ETA-232--3.30 hours per response.
Estimated Total Annual Burden Hours: 72,803.
Total Annual Burden Cost for Respondents: $0.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4,
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and tribal governments. UMRA requires Federal agencies to assess
a regulation's effects on State, local, and tribal governments, as well
as on the private sector, except to the extent the regulation
incorporates requirements specifically set forth in law. Title II of
the UMRA requires each Federal agency to prepare a written statement
assessing the effects of any regulation that includes any Federal
mandate in a proposed or final agency rule that may result in $100
million or more expenditure (adjusted annually for inflation) in any
one year by State, local, and tribal governments, in the aggregate, or
by the private sector. A Federal mandate is any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or upon the private sector, except as a condition
of Federal assistance or a duty arising from participation in a
voluntary Federal program.
This final rule does not result in unfunded mandates for the public
or private sector because private employers' participation in the
program is voluntary, and State governments are reimbursed for
performing activities required under the program. The requirements of
title II of the UMRA, therefore, do not apply, and the Department has
not prepared a statement under the UMRA.
E. Executive Order 13132 (Federalism)
This final rule would 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 sec. 6 of
E.O. 13132,\147\ it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
---------------------------------------------------------------------------
\147\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this final rule in accordance with E.O.
13175 \148\ and has determined that it does not have tribal
implications. This final rule does not have substantial direct effects
on one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and tribal governments.
---------------------------------------------------------------------------
\148\ E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------
List of Subjects
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
29 CFR Part 501
Administrative practice and procedure, Agricultural, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the preamble, the Department of Labor
amends 20 CFR parts 653 and 655 and 29 CFR part 501 as follows:
Title 20--Employees' Benefits
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
1. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
0
2. Amend Sec. 653.501 by revising the first sentence and adding a
sentence following the first sentence of paragraph (c)(2)(i) to read as
follows:
Sec. 653.501 Requirements for processing clearance orders.
* * * * *
(c) * * *
(2) * * *
(i) The wages offered are not less than the applicable prevailing
wages, as defined in Sec. 655.103(b) of this chapter, or the
applicable Federal or State minimum wage, whichever is higher. The
working conditions offered are not less than the prevailing working
conditions among similarly employed farmworkers in the area of intended
employment. * * *
* * * * *
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
3. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.100 Purpose and scope of this subpart.
655.101 Authority of the agencies, offices, and divisions in the
Department of Labor.
655.102 Transition procedures.
655.103 Overview of this subpart and definition of terms.
Pre-Filing Procedures
655.120 Offered wage rate.
655.121 Job order filing requirements.
655.122 Contents of job offers.
655.123 [Reserved]
655.124 Withdrawal of a job order.
Application for Temporary Employment Certification Filing Procedures
655.130 Application filing requirements.
655.131 Agricultural association and joint employer filing
requirements.
655.132 H-2A labor contractor filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.
655.136 Withdrawal of an Application for Temporary Employment
Certification and job order.
Processing of Applications for Temporary Employment Certification
655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to Applications for Temporary Employment
Certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151-655.152 [Reserved]
655.153 Contact with former U.S. workers.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.
Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based on nonavailability of U.S.
workers.
655.167 Document retention requirements of H-2A employers.
Post-Certification
655.170 Extensions.
655.171 Appeals.
655.172 Post-certification withdrawals.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.
Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Occupations
655.200 Scope and purpose of herding and range livestock regulations
in this section and Sec. Sec. 655.201 through 655.235.
655.201 Definition of herding and range livestock terms.
655.205 Herding and range livestock job orders.
655.210 Contents of herding and range livestock job orders.
655.211 Herding and range livestock wage rate.
655.215 Procedures for filing herding and range livestock
Applications for Temporary Employment Certification.
655.220 Processing herding and range livestock Applications for
Temporary Employment Certification.
655.225 Post-acceptance requirements for herding and range
livestock.
655.230 Range housing.
655.235 Standards for range housing.
Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, Custom Combining, and
Reforestation Occupations
655.300 Scope and purpose.
655.301 Definition of terms.
655.302 Contents of job orders.
655.303 Procedures for filing Applications for Temporary Employment
Certification.
655.304 Standards for mobile housing.
Sec. 655.100 Purpose and scope of this subpart.
(a) Purpose. (1) A temporary agricultural labor certification
issued under this subpart reflects a determination by the Secretary of
Labor (Secretary), pursuant to 8 U.S.C. 1188(a), that:
(i) There are not sufficient able, willing, and qualified United
States (U.S.) workers available to perform the agricultural labor or
services of a temporary or seasonal nature for which an employer
desires to hire temporary foreign workers (H-2A workers); and
(ii) The employment of the H-2A worker(s) will not adversely affect
the wages and working conditions of workers in the United States
similarly employed.
(2) This subpart describes the process by which the Department of
Labor (Department or DOL) makes such a determination and certifies its
determination to the Department of Homeland Security (DHS).
(b) Scope. This subpart sets forth the procedures governing the
labor certification process for the temporary employment of foreign
workers in the H-2A nonimmigrant classification, as defined in 8 U.S.C.
1101(a)(15)(H)(ii)(a). It also establishes standards and obligations
with respect to the terms and conditions of the temporary agricultural
labor certification with which H-2A employers must comply, as well as
the rights and obligations of H-2A workers and workers in corresponding
employment. Additionally, this subpart sets forth integrity measures
for ensuring employers' continued compliance with the terms and
conditions of the temporary agricultural labor certification.
Sec. 655.101 Authority of the agencies, offices, and divisions in
the Department of Labor.
(a) Authority and role of the Office of Foreign Labor
Certification. The Secretary has delegated authority to the Assistant
Secretary for the Employment and Training Administration (ETA), who in
turn has delegated that authority to the Office of Foreign Labor
Certification (OFLC), to issue certifications and carry out other
statutory responsibilities as required by 8 U.S.C. 1188. Determinations
on an Application for Temporary Employment Certification are made by
the OFLC Administrator who, in turn, may delegate this responsibility
to designated staff, e.g., a Certifying Officer (CO).
(b) Authority of the Wage and Hour Division. The Secretary has
delegated authority to the Wage and Hour Division (WHD) to conduct
certain investigatory and enforcement functions with respect to terms
and conditions of employment under 8 U.S.C. 1188, 29 CFR part 501, and
this subpart (``the H-2A program''), and to carry out other statutory
responsibilities required by 8 U.S.C. 1188. The regulations governing
WHD's investigatory and enforcement functions, including those related
to the enforcement of temporary agricultural labor certifications
issued under this subpart, are in 29 CFR part 501.
(c) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy pursuant to Sec. 655.182 and 29 CFR 501.20.
Sec. 655.102 Transition procedures.
(a) The National Processing Center (NPC) shall continue to process
an Application for Temporary Employment Certification submitted prior
to November 14, 2022, in accordance with 20 CFR part 655, subpart B, in
effect as of November 13, 2022.
(b) The NPC shall process an Application for Temporary Employment
Certification submitted on or after November 14, 2022, and that has a
first date of need no later than February 12, 2023, in accordance with
20 CFR part
655, subpart B, in effect as of November 13, 2022.
(c) The NPC shall process an Application for Temporary Employment
Certification submitted on or after November 14, 2022, and that has a
first date of need later than February 12, 2023, in accordance with all
job order and application filing requirements under this subpart.
Sec. 655.103 Overview of this subpart and definition of terms.
(a) Overview. In order to bring nonimmigrant workers to the United
States to perform agricultural work, an employer must first demonstrate
to the Secretary that there are not sufficient U.S. workers able,
willing, and qualified to perform the work in the area of intended
employment at the time needed and that the employment of foreign
workers will not adversely affect the wages and working conditions of
workers in the United States similarly employed. This subpart describes
a process by which the DOL makes such a determination and certifies its
determination to the DHS.
(b) Definitions. For the purposes of this subpart:
Act. The Immigration and Nationality Act, as amended (INA), 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ). A person within the Department's
Office of Administrative Law Judges appointed pursuant to 5 U.S.C.
3105.
Administrator. See definitions of OFLC Administrator and WHD
Administrator in this paragraph (b).
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage for field and livestock workers (combined) in the States or
regions as published annually by the U.S. Department of Agriculture
(USDA) based on its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(i) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this subpart with respect to a specific application; and
(iii) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, or the Executive Office
for Immigration Review or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including, but not limited to,
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker
subject to 8 U.S.C. 1188.
Applicant. A U.S. worker who is applying for a job opportunity for
which an employer has filed an Application for Temporary Employment
Certification and job order.
Application for Temporary Employment Certification. The Office of
Management and Budget (OMB)-approved Form ETA-9142A and appropriate
appendices submitted by an employer to secure a temporary agricultural
labor certification determination from DOL.
Area of intended employment (AIE). The geographic area within
normal commuting distance of the place of employment for which
temporary agricultural labor certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the place of employment, or quality of the
regional transportation network). If a place of employment is within an
MSA, including a multistate MSA, any place within the MSA is deemed to
be within normal commuting distance of the place of employment. The
borders of MSAs are not controlling in the identification of the normal
commuting area; a place of employment outside of an MSA may be within
normal commuting distance of a place of employment that is inside
(e.g., near the border of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the United States, or the District of Columbia (DC). Such a person
is also permitted to act as an agent under this subpart. No attorney
who is under suspension, debarment, expulsion, or disbarment from
practice before any court, the Department, or the Executive Office for
Immigration Review or DHS under 8 CFR 292.3 or 1003.101, may represent
an employer under this subpart.
Average adverse effect wage rate (average AEWR). The simple average
of the adverse effect wage rates (AEWR) applicable to the SOC 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and published
by the OFLC Administrator in accordance with Sec. 655.120. An average
AEWR remains valid until replaced with an adjusted average AEWR.
Board of Alien Labor Certification Appeals (BALCA or Board). The
permanent Board established by part 656 of this chapter, chaired by the
Chief Administrative Law Judge (Chief ALJ), and consisting of
Administrative Law Judges (ALJs) appointed pursuant to 5 U.S.C. 3105
and designated by the Chief ALJ to be members of Board of Alien Labor
Certification Appeals (BALCA or Board).
Certifying Officer (CO). The person who makes a determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the national CO. Other COs may be
designated by the OFLC Administrator to also make the determinations
required under this subpart.
Chief Administrative Law Judge (Chief ALJ). The chief official of
the Department's Office of Administrative Law Judges or the Chief ALJ's
designee.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary
Employment Certification in any work included in the job order, or in
any agricultural work performed by the H-2A workers. To qualify as
corresponding employment, the work must be performed during the
validity period of the job order, including any approved extension
thereof.
Department of Homeland Security (DHS). The Department of Homeland
Security, as established by 6 U.S.C. 111.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: the hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(i) Has an employment relationship (such as the ability to hire,
pay, fire, supervise, or otherwise control the work of employee) with
respect to an H-2A worker or a worker in corresponding employment; or
(ii) Files an Application for Temporary Employment Certification
other than as an agent; or
(iii) Is a person on whose behalf an Application for Temporary
Employment Certification is filed.
Employment and Training Administration (ETA). The agency within the
Department that includes OFLC and has been delegated authority by the
Secretary to fulfill the Secretary's mandate under the INA and DHS'
implementing regulations in 8 CFR chapter I, subchapter B, for the
administration and adjudication of an Application for Temporary
Employment Certification and related functions.
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
First date of need. The first date the employer requires the labor
or services of H-2A workers as indicated in the Application for
Temporary Employment Certification.
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this
subpart; who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed; and who recruits,
solicits, hires, employs, houses, or transports any worker subject to 8
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A labor contractor (H-2ALC). Any person who meets the definition
of employer under this subpart and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this subpart, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
H-2A Petition. The USCIS Form I-129, Petition for a Nonimmigrant
Worker, with H Supplement or successor form and/or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2A nonimmigrant workers.
H-2A worker. Any temporary foreign worker who is lawfully present
in the United States and authorized by DHS to perform agricultural
labor or services of a temporary or seasonal nature pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the United
States to which U.S. workers can be referred.
Job order. The document containing the material terms and
conditions of employment that is posted by the State Workforce Agency
(SWA) on its interstate and intrastate job clearance systems based on
the employer's Agricultural Clearance Order (Form ETA-790/ETA-790A and
all appropriate addenda), as submitted to the NPC.
Joint employment. (i) Where two or more employers each have
sufficient definitional indicia of being a joint employer of a worker
under the common law of agency, they are, at all times, joint employers
of that worker.
(ii) An agricultural association that files an Application for
Temporary Employment Certification as a joint employer is, at all
times, a joint employer of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment. An employer-member of an agricultural
association that files an Application for Temporary Employment
Certification as a joint employer is a joint employer of the H-2A
workers sponsored under the joint employer Application for Temporary
Employment Certification along with the agricultural association during
the period that the employer-member employs the H-2A workers sponsored
under the Application for Temporary Employment Certification.
(iii) Employers that jointly file a joint employer Application for
Temporary Employment Certification under Sec. 655.131(b) are, at all
times, joint employers of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment.
Master application. An Application for Temporary Employment
Certification filed by an association of agricultural producers as a
joint employer with its employer-members. A master application must
cover the same occupations or comparable agricultural employment; the
first date of need for all employer-members listed on the Application
for Temporary Employment Certification may be separated by no more than
14 calendar days; and may cover multiple areas of intended employment
within a single State but no more than two contiguous States.
Metropolitan Statistical Area (MSA). A geographic entity defined by
OMB for use by Federal statistical agencies in collecting, tabulating,
and publishing Federal statistics. A Metropolitan Statistical Area
contains a core urban area of 50,000 or more population, and a
Micropolitan Statistical Area contains an urban core of at least 10,000
(but fewer than 50,000) population. Each metropolitan or micropolitan
area consists of one or more counties and includes the counties
containing the core urban area, as well as any adjacent counties that
have a high degree of social and economic integration (as measured by
commuting to work) with the urban core.
National Processing Center (NPC). The offices within OFLC in which
the COs operate and which are charged with the adjudication of
Applications for Temporary Employment Certification.
Office of Foreign Labor Certification (OFLC). OFLC means the
organizational component of ETA that provides national leadership and
policy guidance, and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the United States to perform work
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of OFLC, or the OFLC
Administrator's designee.
Period of employment. The time during which the employer requires
the labor or services of H-2A workers as indicated by the first and
last dates of need provided in the Application for Temporary Employment
Certification.
Piece rate. A form of wage compensation based upon a worker's
quantitative output or one unit of work or production for the crop or
agricultural activity.
Place of employment. A worksite or physical location where work
under the job order actually is performed by the H-2A workers and
workers in corresponding employment.
Positive recruitment. The active participation of an employer or
its authorized hiring agent, performed under the auspices and direction
of OFLC, in recruiting and interviewing individuals in the area where
the employer's job opportunity is located, and any other State
designated by the Secretary as an area of traditional or expected labor
supply with respect to
the area where the employer's job opportunity is located, in an effort
to fill specific job openings with U.S. workers.
Prevailing practice. A practice engaged in by employers, that:
(i) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(ii) This 50 percent or more of employers also employs 50 percent
or more of U.S. workers in the occupation and area (including H-2A and
non-H-2A employers) for purposes of determinations concerning the
provision of family housing, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of
advance transportation and the utilization of labor contractors.
Prevailing wage. A wage rate established by the OFLC Administrator
for a crop activity or agricultural activity and, if applicable, a
distinct work task or tasks performed in that activity and geographic
area based on a survey conducted by a State that meets the requirements
in Sec. 655.120(c).
Secretary of Homeland Security. The chief official of DHS, or the
Secretary of Homeland Security's designee.
Secretary of Labor (Secretary). The chief official of the
Department, or the Secretary's designee.
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to
administer the State's public labor exchange activities.
Strike. A concerted stoppage of work by employees as a result of a
labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest. (i) Where an employer, agent, or attorney
has violated 8 U.S.C. 1188, 29 CFR part 501, or this subpart, and has
ceased doing business or cannot be located for purposes of enforcement,
a successor in interest to that employer, agent, or attorney may be
held liable for the duties and obligations of the violating employer,
agent, or attorney in certain circumstances. The following factors, as
used under Title VII of the Civil Rights Act and the Vietnam Era
Veterans' Readjustment Assistance Act, may be considered in determining
whether an employer, agent, or attorney is a successor in interest; no
one factor is dispositive, but all of the circumstances will be
considered as a whole:
(A) Substantial continuity of the same business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working conditions;
(E) Similarity of supervisory personnel;
(F) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(G) Similarity in machinery, equipment, and production methods;
(H) Similarity of products and services; and
(I) The ability of the predecessor to provide relief.
(ii) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator, based on the Application for Temporary
Employment Certification, job order, and all supporting documentation,
with respect to an employer seeking to file an H-2A Petition with DHS
to employ one or more foreign nationals as an H-2A worker, pursuant to
8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188, and this
subpart.
United States. The continental United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services (USCIS). An operational
component of DHS.
U.S. worker. A worker who is:
(i) A citizen or national of the United States;
(ii) An individual who is lawfully admitted for permanent residence
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise
authorized by the INA or DHS to be employed in the United States; or
(iii) An individual who is not an unauthorized alien, as defined in
8 U.S.C. 1324a(h)(3), with respect to the employment in which the
worker is engaging.
Wage and Hour Division (WHD). The agency within the Department with
authority to conduct certain investigatory and enforcement functions,
as delegated by the Secretary, under 8 U.S.C. 1188, 29 CFR part 501,
and this subpart.
Wages. All forms of cash remuneration to a worker by an employer in
payment for labor or services.
WHD Administrator. The primary official of WHD, or the WHD
Administrator's designee.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this
subpart. The contract between the employer and the worker may be in the
form of a separate written document. In the absence of a separate
written work contract incorporating the required terms and conditions
of employment, agreed to by both the employer and the worker, the work
contract at a minimum will be the terms and conditions of the job order
and any obligations required under 8 U.S.C. 1188, 29 CFR part 501, or
this subpart.
(c) Definition of agricultural labor or services. For the purposes
of this subpart, agricultural labor or services, pursuant to 8 U.S.C.
1011(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938, as amended (FLSA), at 29 U.S.C.
203(f); the pressing of apples for cider on a farm; or logging
employment. An occupation included in either statutory definition is
agricultural labor or services, notwithstanding the exclusion of that
occupation from the other statutory definition. For informational
purposes, the statutory provisions are listed in paragraphs (c)(1)
through (3) of this section.
(1) Agricultural labor. (i) For the purpose of paragraph (c) of
this section, agricultural labor means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in sec. 15(g) of the
Agricultural Marketing Act, as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton, or in connection with the
operation or
maintenance of ditches, canals, reservoirs, or waterways, not owned or
operated for profit, used exclusively for supplying and storing water
for farming purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (c)(1)(i)(D) of this section but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph (c)(1)(i)(E), any
unincorporated group of operators shall be deemed a cooperative
organization if the number of operators comprising such group is more
than 20 at any time during the calendar year in which such service is
performed;
(F) The provisions of paragraphs (c)(1)(i)(D) and (E) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses, or other similar
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(2) Agriculture. For purposes of paragraph (c) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities
include, in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: gum spirits of turpentine and gum rosin. In addition, as
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of
turpentine made from gum (oleoresin) from a living tree and gum rosin
means rosin remaining after the distillation of gum spirits of
turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g), or as applied in sec. 3(f)
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
(4) Logging employment. Logging employment is operations associated
with felling and moving trees and logs from the stump to the point of
delivery, such as, but not limited to, marking danger trees, marking
trees or logs to be cut to length, felling, limbing, bucking,
debarking, chipping, yarding, loading, unloading, storing, and
transporting machines, equipment and personnel to, from, and between
logging sites.
(5) Employment as defined and specified in Sec. Sec. 655.300
through 655.304. For the purpose of paragraph (c) of this section,
agricultural labor or services includes animal shearing, commercial
beekeeping, and custom combining activities as defined and specified in
Sec. Sec. 655.300 through 655.304.
(d) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Pre-Filing Procedures
Sec. 655.120 Offered wage rate.
(a) Employer obligation. Except for occupations covered by
Sec. Sec. 655.200 through 655.235, to comply with its obligation under
Sec. 655.122(l), an employer must offer, advertise in its recruitment,
and pay a wage that is at least the highest of:
(1) The AEWR;
(2) A prevailing wage rate, if the OFLC Administrator has approved
a prevailing wage survey for the applicable crop activity or
agricultural activity and, if applicable, a distinct work task or tasks
performed in that activity, meeting the requirements of paragraph (c)
of this section;
(3) The agreed-upon collective bargaining wage;
(4) The Federal minimum wage; or
(5) The State minimum wage.
(b) AEWR determinations.
(1) [Reserved]
(2) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator,
the AEWRs for each State as a notice in the Federal Register.
(3) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is higher than the highest of the
previous AEWR, a prevailing wage for the crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed in
that activity and geographic area, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage,
the employer must pay at least the updated AEWR upon the effective date
of the updated AEWR published in the Federal Register.
(4) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is lower than the rate guaranteed on the
job order, the employer must continue to pay at least the rate
guaranteed on the job order.
(5) [Reserved]
(c) Prevailing wage determinations.
(1) The OFLC Administrator will issue a prevailing wage for a crop
activity or agricultural activity and, if applicable, a distinct work
task or tasks performed in that activity if all of the following
requirements are met:
(i) The SWA submits to the Department a wage survey for the crop
activity or agricultural activity and, if applicable, a distinct work
task or tasks performed in that activity and a Form ETA-232 providing
the methodology of the survey;
(ii) The survey was independently conducted by the State, including
any State agency, State college, or State university;
(iii) The survey covers work performed in a single crop activity or
agricultural activity and, if applicable, a distinct work task or tasks
performed in that activity;
(iv) The surveyor either made a reasonable, good faith attempt to
contact all employers employing workers in the crop activity or
agricultural activity and distinct work task(s), if applicable, and
geographic area surveyed or contacted a randomized sample of such
employers, except where the estimated universe of employers is less
than five. Where the estimated universe of employers is less than five,
the surveyor contacted all employers in the estimated universe;
(v) The survey reports the average wage of U.S. workers in the crop
activity or agricultural activity and distinct work task(s), if
applicable, and geographic area using the unit of pay used to
compensate the largest number of U.S. workers whose wages are reported
in the survey;
(vi) The survey covers an appropriate geographic area based on
available resources to conduct the survey, the size of the agricultural
population covered by the survey, and any different wage structures in
the crop activity or agricultural activity within the State;
(vii) Where the estimated universe of U.S. workers is at least 30,
the survey includes the wages of at least 30 U.S. workers in the unit
of pay used to compensate the largest number of U.S. workers whose
wages are reported in the survey. Where the estimated universe of U.S.
workers is less than 30, the survey includes the wages of all such U.S.
workers;
(viii) Where the estimated universe of employers is at least five,
the survey includes wages of U.S. workers employed by at least five
employers in the unit of pay used to compensate the largest number of
U.S. workers whose wages are reported in the survey. Where the
estimated universe of employers is less than five, the survey includes
wages of U.S. workers employed by all such employers; and
(ix) Where the estimated universe of employers is at least 4, the
wages paid by a single employer represent no more than 25 percent of
the sampled wages in the unit of pay used to compensate the largest
number of U.S. workers whose wages are reported in the survey. This
paragraph (c)(1)(ix) does not apply where the estimated universe of
employers is less than four.
(2) A prevailing wage issued by the OFLC Administrator will remain
valid for 1 year after the wage is posted on the OFLC website or until
replaced with an adjusted prevailing wage, whichever comes first,
except that if a prevailing wage that was guaranteed on the job order
expires during the work contract, the employer must continue to
guarantee at least the expired prevailing wage rate.
(3) If a prevailing wage for the geographic area and crop activity
or agricultural activity and distinct work task(s), if applicable, is
adjusted during a work contract, and is higher than the highest of the
AEWR, a previous prevailing wage for the geographic area and crop
activity or agricultural activity or, if applicable, a distinct work
task or tasks performed in that activity, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage,
the employer must pay at least that higher prevailing wage upon the
Department's notice to the employer of the new prevailing wage.
(4) If a prevailing wage for the geographic area and crop activity
or agricultural activity and distinct work task(s), if applicable, is
adjusted during a work contract, and is lower than the rate guaranteed
on the job order, the employer must continue to pay at least the rate
guaranteed on the job order.
(d) Appeals. (1) If the employer does not include the appropriate
offered wage rate on the Application for Temporary Employment
Certification, the CO will issue a Notice of Deficiency (NOD) requiring
the employer to correct the wage rate.
(2) If the employer disagrees with the wage rate required by the
CO, the employer may appeal only after the Application for Temporary
Employment Certification is denied, and the employer must follow the
procedures in Sec. 655.171.
Sec. 655.121 Job order filing requirements.
(a) What to file. (1) Prior to filing an Application for Temporary
Employment Certification, the employer must submit a completed job
order, Form ETA-790/790A, including all required addenda, to the NPC
designated by the OFLC Administrator, and must identify it as a job
order to be placed in connection with a future Application for
Temporary Employment Certification for H-2A workers. The employer must
include in its submission to the NPC a valid Federal Employer
Identification Number (FEIN) as well as a valid place of business
(physical location) in the United States and a means by which it may be
contacted for employment.
(2) Where the job order is being placed in connection with a future
master application to be filed by an agricultural association as a
joint employer with its employer-members, the agricultural association
may submit a single job order to be placed in the name of the
agricultural association on behalf of all employers named on the job
order and the future Application for Temporary Employment
Certification.
(3) Where the job order is being placed in connection with a future
application to be jointly filed by two or more employers seeking to
jointly employ a worker(s) (but is not a master application), any one
of the employers may submit a single job order to be placed on behalf
of all joint employers named on the job order and the future
Application for Temporary Employment Certification.
(4) The job order must satisfy the requirements for agricultural
clearance orders set forth in 20 CFR part 653, subpart F, and the
requirements set forth in Sec. 655.122.
(b) Timeliness. The employer must submit a completed job order to
the NPC no more than 75 calendar days and no fewer than 60 calendar
days before the employer's first date of need.
(c) Location and method of filing. The employer must submit a
completed job order to the NPC using the electronic method(s)
designated by the OFLC Administrator. The NPC will return without
review any job order submitted using a method other than the designated
electronic method(s), unless the employer submits the job order by mail
as set forth in Sec. 655.130(c)(2) or requests a reasonable
accommodation as set forth in Sec. 655.130(c)(3).
(d) Original signature. The job order must contain an electronic
(scanned) copy of the original signature of the employer or a
verifiable electronic signature method, as directed by the OFLC
Administrator. If submitted by mail, the Application for Temporary
Employment Certification must bear the original signature of the
employer and, if applicable, the employer's authorized agent or
attorney.
(e) SWA review. (1) Upon receipt of the job order, the NPC will
transmit an electronic copy of the job order to the SWA serving the
area of intended employment for intrastate clearance. If the job
opportunity is located in more than one State within the same area of
intended employment, the NPC will transmit the job order to any one of
the SWAs having jurisdiction over the place(s) of employment.
(2) The SWA will review the contents of the job order for
compliance with the requirements set forth in 20 CFR part 653, subpart
F, and this subpart, and will work with the employer to address any
noted deficiencies. The SWA must notify the employer in writing of any
deficiencies in its job order not later than 7 calendar days from the
date the SWA received the job order. The SWA notification will state
the reason(s) the job order fails to meet the applicable
requirements, state the modification(s) needed for the SWA to accept
the job order, and offer the employer an opportunity to respond to the
deficiencies within 5 calendar days from the date the notification was
issued by the SWA. Upon receipt of a response, the SWA will review the
response and notify the employer in writing of its acceptance or denial
of the job order within 3 calendar days from the date the response was
received by the SWA. If the employer's response is not received within
12 calendar days after the notification was issued, the SWA will notify
the employer in writing that the job order is deemed abandoned, and the
employer will be required to submit a new job order to the NPC meeting
the requirements of this section. Any notice sent by the SWA to an
employer that requires a response must be sent using methods to assure
next day delivery, including email or other electronic methods, with a
copy to the employer's representative, as applicable.
(3) If, after providing responses to the deficiencies noted by the
SWA, the employer is not able to resolve the deficiencies with the SWA,
the employer may file an Application for Temporary Employment
Certification pursuant to the emergency filing procedures contained in
Sec. 655.134, with a statement describing the nature of the dispute
and demonstrating compliance with its requirements under this section.
In the event the SWA does not respond within the stated timelines, the
employer may use the emergency filing procedures noted in the preceding
sentence. The CO will process the emergency Application for Temporary
Employment Certification in a manner consistent with the provisions set
forth in Sec. Sec. 655.140 through 655.145 and make a determination on
the Application for Temporary Employment Certification in accordance
with Sec. Sec. 655.160 through 655.167.
(f) Intrastate clearance. Upon its acceptance of the job order, the
SWA must promptly place the job order in intrastate clearance and
commence recruitment of U.S. workers. Where the employer's job order
references an area of intended employment that falls within the
jurisdiction of more than one SWA, the originating SWA will notify the
NPC that a copy of the approved job order must be forwarded to the
other SWAs serving the area of intended employment. Upon receipt of the
SWA notification, the NPC will promptly transmit an electronic copy of
the approved job order to the other SWAs serving the area of intended
employment.
(g) Duration of job order posting. The SWA must keep the job order
on its active file until the end of the recruitment period, as set
forth in Sec. 655.135(d), and must refer each U.S. worker who applies
(or on whose behalf an application is made) for the job opportunity.
(h) Modifications to the job order. (1) Prior to the issuance of a
final determination on an Application for Temporary Employment
Certification, the CO may require modifications to the job order when
the CO determines that the offer of employment does not contain all the
minimum benefits, wages, and working condition provisions. Such
modifications must be made, or certification will be denied pursuant to
Sec. 655.164.
(2) The employer may request a modification of the job order, Form
ETA-790/790A, prior to the submission of an Application for Temporary
Employment Certification. However, the employer may not reject
referrals against the job order based upon a failure on the part of the
applicant to meet the amended criteria, if such referral was made prior
to the amendment of the job order. The employer may not request a
modification of the job order on or after the date of filing an
Application for Temporary Employment Certification.
(3) The employer must provide all workers recruited in connection
with the Application for Temporary Employment Certification with a copy
of the modified job order or work contract which reflects the amended
terms and conditions, on the first day of employment, in accordance
with Sec. 655.122(q), or as soon as practicable, whichever comes
first.
Sec. 655.122 Contents of job offers.
(a) Prohibition against preferential treatment of H-2A workers. The
employer's job offer must offer to U.S. workers no less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. Job offers may not
impose on U.S. workers any restrictions or obligations that will not be
imposed on the employer's H-2A workers. This does not relieve the
employer from providing to H-2A workers at least the same level of
minimum benefits, wages, and working conditions that must be offered to
U.S. workers consistent with this section.
(b) Job qualifications and requirements. Each job qualification and
requirement listed in the job offer must be bona fide and consistent
with the normal and accepted qualifications required by employers that
do not use H-2A workers in the same or comparable occupations and
crops. Either the CO or the SWA may require the employer to submit
documentation to substantiate the appropriateness of any job
qualification specified in the job offer.
(c) Minimum benefits, wages, and working conditions. Every job
order accompanying an Application for Temporary Employment
Certification must include each of the minimum benefit, wage, and
working condition provisions listed in paragraphs (d) through (q) of
this section.
(d) Housing--(1) Obligation to provide housing. The employer must
provide housing at no cost to the H-2A workers and those workers in
corresponding employment who are not reasonably able to return to their
residence within the same day. Housing must be provided through one of
the following means:
(i) Employer-provided housing. Employer-provided housing must meet
the full set of the DOL Occupational Safety and Health Administration
(OSHA) standards set forth at 29 CFR 1910.142, or the full set of
standards at Sec. Sec. 654.404 through 654.417 of this chapter,
whichever are applicable under Sec. 654.401 of this chapter. Requests
by employers whose housing does not meet the applicable standards for
conditional access to the interstate clearance system will be processed
under the procedures set forth at Sec. 654.403 of this chapter; or
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation must
meet local standards for such housing. In the absence of applicable
local standards addressing those health or safety concerns otherwise
addressed by the DOL OSHA standards at 29 CFR 1910.142(b)(2) (minimum
square footage); (b)(3) (beds, cots, or bunks, and suitable storage
facilities); (b)(9) (minimum square footage in a room where workers
cook, live, and sleep); (b)(10) (where the employer chooses to meet its
meal obligations under paragraph (g) of this section by furnishing free
and convenient cooking and kitchen facilities to the workers, the
provision of stoves, sanitary kitchen facilities); (b)(11) (heating,
cooking, and water heating equipment installed properly); (c) (water
supply); (d)(1) (adequate toilet facilities); (d)(9) (adequate toilet
paper); (d)(10) (toilets kept in sanitary condition); (f) (laundry,
handwashing, and bathing facilities); (g) (lighting); (h)(2) (garbage
containers kept clean); (h)(3) (garbage containers emptied when full,
but at least twice a week); and (j) (insect and rodent control), State
standards addressing
such concerns will apply. In the absence of applicable local or State
standards addressing such concerns, the relevant DOL OSHA standards at
29 CFR 1910.142(b)(2), (3), (9), (10), and (11), (c), (d)(1), (9), and
(10), (f), (g), (h)(2) and (3), and (j) will apply. Any charges for
rental housing must be paid directly by the employer to the owner or
operator of the housing.
(2) Standards for range and mobile housing. An employer employing
workers under Sec. Sec. 655.200 through 655.235 must comply with the
housing requirements in Sec. Sec. 655.230 and 655.235. An employer
employing workers under Sec. Sec. 655.300 through 655.304 must comply
with the housing standards in Sec. 655.304.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing by the individual worker(s) found to have been
responsible for damage that is not the result of normal wear and tear
related to habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units directly
to the housing's management.
(5) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing, it
must be provided to workers with families who request it.
(6) Compliance with applicable standards--(i) Timeliness. The
determination as to whether housing provided to workers under this
section meets the applicable standards must be made not later than 30
calendar days before the first date of need identified in the
Application for Temporary Employment Certification.
(ii) Certification of employer-provided housing. The SWA (or
another local, State, or Federal authority acting on behalf of the SWA)
with jurisdiction over the location of the employer-provided housing
must inspect and provide to the employer and CO documentation
certifying that the employer-provided housing is sufficient to
accommodate the number of workers requested and meets all applicable
standards under paragraph (d)(1)(i) of this section.
(iii) Certification of rental and/or public accommodations. The
employer must provide to the CO a written statement, signed and dated,
that attests that the accommodations are compliant with the applicable
standards under paragraph (d)(1)(ii) of this section and are sufficient
to accommodate the number of workers requested. This statement must
include the number of bed(s) and room(s) that the employer will secure
for the worker(s). If applicable local or State rental or public
accommodation standards under paragraph (d)(1)(ii) of this section
require an inspection, the employer also must submit to the CO a copy
of the inspection report or other official documentation from the
relevant authority. If the applicable standards do not require an
inspection, the employer's written statement must confirm that no
inspection is required.
(iv) Certified housing that becomes unavailable. If after a request
to certify housing, such housing becomes unavailable for reasons
outside the employer's control, the employer may substitute other
rental or public accommodation housing that is in compliance with the
local, State, or Federal housing standards applicable under this
section. The employer must promptly notify the SWA in writing of the
change in accommodations and the reason(s) for such change and provide
the SWA evidence of compliance with the applicable local, State, or
Federal safety and health standards, in accordance with the
requirements of this section. If, upon inspection, the SWA determines
the substituted housing does not meet the applicable housing standards,
the SWA must promptly provide written notification to the employer to
cure the deficiencies with a copy to the CO. An employer's failure to
provide housing that complies with the applicable standards will result
in either a denial of a pending Application for Temporary Employment
Certification or revocation of the temporary agricultural labor
certification granted under this subpart.
(e) Workers' compensation. (1) The employer must provide workers'
compensation insurance coverage in compliance with State law covering
injury and disease arising out of and in the course of the worker's
employment. If the type of employment for which the certification is
sought is not covered by or is exempt from the State's workers'
compensation law, the employer must provide, at no cost to the worker,
insurance covering injury and disease arising out of and in the course
of the worker's employment that will provide benefits at least equal to
those provided under the State workers' compensation law for other
comparable employment.
(2) Prior to issuance of the temporary agricultural labor
certification, the employer must provide the CO with proof of workers'
compensation insurance coverage meeting the requirements of this
paragraph (e), including the name of the insurance carrier, the
insurance policy number, and proof of insurance for the entire period
of employment, or, if appropriate, proof of State law coverage.
(f) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(g) Meals. The employer either must provide each worker with three
meals a day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.173. When a charge or deduction
for the cost of meals would bring the employee's wage below the minimum
wage set by the FLSA at 29 U.S.C. 206, the charge or deduction must
meet the requirements of the FLSA at 29 U.S.C. 203(m), including the
recordkeeping requirements found at 29 CFR 516.27.
(h) Transportation; daily subsistence--(1) Transportation to place
of employment. If the employer has not previously advanced such
transportation and subsistence costs to the worker or otherwise
provided such transportation or subsistence directly to the worker by
other means and if the worker completes 50 percent of the work contract
period, the employer must pay the worker for reasonable costs incurred
by the worker for transportation and daily subsistence from the place
from which the worker has come to work for the employer, whether in the
U.S. or abroad to the place of employment. When it is the prevailing
practice of non-H-2A agricultural employers in the occupation in the
area to do so, or when the employer extends such benefits to similarly
situated H-2A workers, the employer must advance the required
transportation and subsistence costs (or otherwise provide them) to
workers in corresponding employment who are traveling to the employer's
worksite. The amount of the transportation payment must be no less (and
is not required to be more) than the most economical and reasonable
common carrier transportation charges for the distances involved. The
amount of the daily subsistence payment must be at least as much as the
employer would
charge the worker for providing the worker with three meals a day
during employment (if applicable), but in no event less than the amount
permitted under Sec. 655.173(a). Note that the FLSA applies
independently of the H-2A requirements and imposes obligations on
employers regarding payment of wages.
(2) Transportation from place of employment. If the worker
completes the work contract period, or if the employee is terminated
without cause, and the worker has no immediate subsequent H-2A
employment, the employer must provide or pay for the worker's
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer who has not agreed in such work contract to provide
or pay for the worker's transportation and daily subsistence expenses
from the employer's worksite to such subsequent employer's worksite,
the employer must provide or pay for such expenses. If the worker has
contracted with a subsequent employer who has agreed in such work
contract to provide or pay for the worker's transportation and daily
subsistence expenses from the employer's worksite to such subsequent
employer's worksite, the subsequent employer must provide or pay for
such expenses. The employer is not relieved of its obligation to
provide or pay for return transportation and subsistence if an H-2A
worker is displaced as a result of the employer's compliance with the
50 percent rule as described in Sec. 655.135(d) with respect to the
referrals made after the employer's date of need.
(3) Transportation between living quarters and place of employment.
The employer must provide transportation between housing provided or
secured by the employer and the employer's place of employment at no
cost to the worker.
(4) Employer-provided transportation. All employer-provided
transportation must comply with all applicable local, State, or Federal
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle
insurance as required under 29 U.S.C. 1841, 29 CFR 500.104 or 500.105,
and 29 CFR 500.120 through 500.128. The job offer must include a
description of the modes of transportation (e.g., type of vehicle) that
will be used for inbound, outbound, daily, and any other
transportation. If workers' compensation is used to cover
transportation in lieu of vehicle insurance, the employer must either
ensure that the workers' compensation covers all travel or that vehicle
insurance exists to provide coverage for travel not covered by workers'
compensation and it must have property damage insurance.
(i) Three-fourths guarantee--(1) Offer to worker. The employer must
guarantee to offer the worker employment for a total number of work
hours equal to at least three-fourths of the workdays of the total
period beginning with the first workday after the arrival of the worker
at the place of employment or the advertised contractual first date of
need, whichever is later, and ending on the expiration date specified
in the work contract or in its extensions, if any.
(i) For purposes of this paragraph (i)(1) a workday means the
number of hours in a workday as stated in the job order and excludes
the worker's Sabbath and Federal holidays. The employer must offer a
total number of hours to ensure the provision of sufficient work to
reach the three-fourths guarantee. The work hours must be offered
during the work period specified in the work contract, or during any
modified work contract period to which the worker and employer have
mutually agreed and that has been approved by the CO.
(ii) The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker
begins working later than the specified beginning date of the contract,
the guarantee period begins with the first workday after the arrival of
the worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in
effect.
(iii) Therefore, if, for example, a work contract is for a 10-week
period, during which a normal workweek is specified as 6 days a week, 8
hours per day, the worker would have to be guaranteed employment for at
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent =
360). If a Federal holiday occurred during the 10-week span, the 8
hours would be deducted from the total hours for the work contract,
before the guarantee is calculated. Continuing with the above example,
the worker would have to be guaranteed employment for 354 hours (10
weeks x 48 hours/week = (480 hours-8 hours (Federal holiday)) x 75
percent = 354 hours).
(iv) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however,
the worker will not be required to work for more than the number of
hours specified in the job order for a workday, or on the worker's
Sabbath or Federal holidays. However, all hours of work actually
performed may be counted by the employer in calculating whether the
period of guaranteed employment has been met. If during the total work
contract period the employer affords the U.S. or H-2A worker less
employment than that required under this paragraph (i)(1), the employer
must pay such worker the amount the worker would have earned had the
worker, in fact, worked for the guaranteed number of days. An employer
will not be considered to have met the work guarantee if the employer
has merely offered work on three-fourths of the workdays if each
workday did not consist of a full number of hours of work time as
specified in the job order.
(2) Guarantee for piece rate paid worker. If the worker is paid on
a piece rate basis, the employer must use the worker's average hourly
piece rate earnings or the required hourly wage rate, whichever is
higher, to calculate the amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a
workday, when the worker has been offered an opportunity to work in
accordance with paragraph (i)(1) of this section, and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or Federal holidays), may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. An employer seeking to calculate whether the number of hours
has been met must maintain the payroll records in accordance with this
subpart.
(4) Displaced H-2A worker. The employer is not liable for payment
of the three-fourths guarantee to an H-2A worker whom the CO certifies
is displaced because of the employer's compliance with its obligation
to hire U.S. workers who apply or are referred after the employer's
date of need described in Sec. 655.135(d) with respect to referrals
made during that period.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and meals in accordance with paragraphs
(d) and (g) of this section for each day of the contract period up
until the day the workers depart for other H-2A employment, depart to
the place outside of the United States from which the worker came, or,
if the worker voluntarily abandons employment or is terminated for
cause, the day of such abandonment or termination.
(j) Earnings records. (1) An employer must keep accurate and
adequate records with respect to each worker's earnings, including, but
not limited to, field tally records, supporting summary payroll
records, and records showing the nature and amount of the work
performed; the number of hours of work offered each day by the employer
(broken out by hours offered both in accordance with and over and above
the three-fourths guarantee at paragraph (i)(3) of this section); the
hours actually worked each day by the worker; the time the worker began
and ended each workday; the rate of pay (both piece rate and hourly, if
applicable); the worker's earnings per pay period; the worker's
permanent address and, when available, the worker's permanent email
address and phone number(s); and the amount of and reasons for any and
all deductions taken from the worker's wages. In the case of H-2A
workers, the permanent address must be the worker's permanent address
in the worker's home country.
(2) Each employer must keep the records required by paragraph (j)
of this section, including field tally records and supporting summary
payroll records, safe and accessible at the place or places of
employment, or at one or more established central recordkeeping offices
where such records are customarily maintained. All records must be
available for inspection and transcription by the Secretary or a duly
authorized and designated representative, and by the worker and
representatives designated by the worker as evidenced by appropriate
documentation (an Entry of Appearance as Attorney or Representative,
Form G-28, signed by the worker, or an affidavit signed by the worker
confirming such representation). Where the records are maintained at a
central recordkeeping office, other than in the place or places of
employment, such records must be made available for inspection and
copying within 72 hours following notice from the Secretary, or a duly
authorized and designated representative, and by the worker and
designated representatives as described in this paragraph (j)(2).
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) of this section has been met, if the number of hours
worked by the worker on a day during the work contract period is less
than the number of hours offered, as specified in the job offer, the
records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the date of the certification.
(k) Hours and earnings statements. The employer must furnish to the
worker on or before each payday in one or more written statements the
following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (showing offers
in accordance with the three-fourths guarantee as determined in
paragraph (i) of this section, separate from any hours offered over and
above the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
(6) If piece rates are used, the units produced daily;
(7) Beginning and ending dates of the pay period; and
(8) The employer's name, address, and FEIN.
(l) Rates of pay. Except for occupations covered by Sec. Sec.
655.200 through 655.235, the employer must pay the worker at least the
AEWR; a prevailing wage if the OFLC Administrator has approved a
prevailing wage survey for the applicable crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed in
that activity, meeting the requirements of Sec. 655.120(c); the
agreed-upon collective bargaining rate; the Federal minimum wage; or
the State minimum wage rate, whichever is highest, for every hour or
portion thereof worked during a pay period.
(1) The offered wage may not be based on commission, bonuses, or
other incentives, unless the employer guarantees a wage paid on a
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR,
prevailing wage rate, the Federal minimum wage, the State minimum wage,
or any agreed-upon collective bargaining rate, whichever is highest; or
(2) If the worker is paid on a piece rate basis and at the end of
the pay period the piece rate does not result in average hourly piece
rate earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the appropriate
hourly rate:
(i) The worker's pay must be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the prevailing piece rate
for the crop activity or agricultural activity and, if applicable, a
distinct work task or tasks performed in that activity in the
geographic area if one has been issued by the OFLC Administrator; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum, or, if the employer first
applied for temporary agricultural labor certification after 1977, such
standards must be no more than those normally required (at the time of
the first Application for Temporary Employment Certification) by other
employers for the activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(n) Abandonment of employment or termination for cause. If a worker
voluntarily abandons employment before the end of the contract period,
or is terminated for cause, and the employer notifies the NPC, and DHS
in the case of an H-2A worker, in writing or by any other method
specified by the Department in a notice published in the Federal
Register or specified by DHS not later than 2 working days after such
abandonment occurs, the employer will not be responsible for providing
or paying for the subsequent transportation and subsistence expenses of
that worker under this section, and that worker is not entitled to the
three-fourths guarantee described in paragraph (i) of this section,
and, in the case of a U.S. worker, the employer will not be obligated
to contact that worker under Sec. 655.153. Abandonment will be deemed
to begin after a worker fails to report to work at the regularly
scheduled time for 5 consecutive working days without the consent of
the employer. The employer is required to maintain records of such
notification to the NPC, and DHS in the case of an H-2A worker, for not
less than 3 years from the date of the certification.
(o) Contract impossibility. If, before the expiration date
specified in the work contract, the services of the worker are no
longer required for reasons beyond the control of the employer due to
fire, weather, or other Act of God that makes the fulfillment of the
contract impossible, the employer may terminate the work contract.
Whether such an
event constitutes a contract impossibility will be determined by the
CO. In the event of such termination of a contract, the employer must
fulfill a three-fourths guarantee for the time that has elapsed from
the start of the work contract to the time of its termination, as
described in paragraph (i)(1) of this section. The employer must make
efforts to transfer the worker to other comparable employment
acceptable to the worker, consistent with existing immigration law, as
applicable. If such transfer is not affected, the employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) came to work for
the employer, or transport the worker to the worker's next certified H-
2A employer, whichever the worker prefers;
(2) Reimburse the worker the full amount of any deductions made
from the worker's pay by the employer for transportation and
subsistence expenses to the place of employment; and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence must be computed as set forth in
paragraph (h) of this section. The amount of the transportation payment
must not be less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved.
(p) Deductions. (1) The employer must make all deductions from the
worker's paycheck required by law. The job offer must specify all
deductions not required by law which the employer will make from the
worker's paycheck. All deductions must be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer. In such circumstances, the job offer must state that the
worker will be reimbursed the full amount of such deduction upon the
worker's completion of 50 percent of the work contract period. However,
an employer subject to the FLSA may not make deductions that would
violate the FLSA.
(2) A deduction is not reasonable if it includes a profit to the
employer or to any affiliated person. A deduction that is primarily for
the benefit or convenience of the employer will not be recognized as
reasonable and therefore the cost of such an item may not be included
in computing wages. The wage requirements of Sec. 655.120 will not be
met where undisclosed or unauthorized deductions, rebates, or refunds
reduce the wage payment made to the employee below the minimum amounts
required under this subpart, or where the employee fails to receive
such amounts free and clear because the employee kicks back directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wage delivered to the employee. The
principles applied in determining whether deductions are reasonable and
payments are received free and clear, and the permissibility of
deductions for payments to third persons are explained in more detail
in 29 CFR part 531.
(q) Disclosure of work contract. The employer must provide to an H-
2A worker not later than the time at which the worker applies for the
visa, or to a worker in corresponding employment not later than on the
day work commences, a copy of the work contract between the employer
and the worker in a language understood by the worker as necessary or
reasonable. For an H-2A worker going from an H-2A employer to a
subsequent H-2A employer, the copy must be provided not later than the
time an offer of employment is made by the subsequent H-2A employer.
For an H-2A worker that does not require a visa for entry, the copy
must be provided not later than the time of an offer of employment. At
a minimum, the work contract must contain all of the provisions
required by this section. In the absence of a separate, written work
contract entered into between the employer and the worker, the work
contract at a minimum will be the terms of the job order and any
obligations required under 8 U.S.C. 1188, 29 CFR part 501, or this
subpart.
Sec. 655.123 [Reserved]
Sec. 655.124 Withdrawal of a job order.
(a) The employer may withdraw a job order if the employer no longer
plans to file an Application for Temporary Employment Certification.
However, the employer is still obligated to comply with the terms and
conditions of employment contained in the job order with respect to all
workers recruited in connection with that job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the job order and stating the reason(s)
for the withdrawal.
Application for Temporary Employment Certification Filing Procedures
Sec. 655.130 Application filing requirements.
All employers who desire to hire H-2A foreign agricultural workers
must apply for a certification from the Secretary by filing an
Application for Temporary Employment Certification with the NPC
designated by the OFLC Administrator. This section provides the
procedures employers must follow when filing.
(a) What to file. An employer that desires to apply for temporary
agricultural labor certification of one or more nonimmigrant workers
must file a completed Application for Temporary Employment
Certification, all supporting documentation and information required at
the time of filing under Sec. Sec. 655.131 through 655.135, and,
unless a specific exemption applies, a copy of Form ETA-790/790A,
submitted as set forth in Sec. 655.121(a). The Application for
Temporary Employment Certification must include a valid FEIN as well as
a valid place of business (physical location) in the United States and
a means by which it may be contacted for employment.
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before the
employer's first date of need.
(c) Location and method of filing--(1) Electronic filing. The
employer must file the Application for Temporary Employment
Certification and all required supporting documentation with the NPC
using the electronic method(s) designated by the OFLC Administrator.
The NPC will return without review any application submitted using a
method other than the designated electronic method(s), unless the
employer submits the application in accordance with paragraph (c)(2) or
(3) of this section.
(2) Filing by mail. Employers that lack adequate access to
electronic filing may file the application by mail. The employer must
indicate that it is filing by mail due to lack of adequate access to
electronic filing. The OFLC Administrator will identify the address to
which such filing must be mailed by public notice(s) and by
instructions on DOL's website.
(3) Reasonable accommodation. Employers who are unable or limited
in their ability to use and/or access the electronic Application for
Temporary Employment Certification, or any other form or documentation
required under this subpart, as a result of a disability may request a
reasonable
accommodation to enable them to participate in the H-2A program. An
employer in need of such an accommodation may contact the NPC in
writing to the address designated in a notice published in the Federal
Register or 202-513-7350 (this is not a toll-free number), or for
individuals with hearing or speech impairments, 1-877-889-5627 (this is
the TTY toll-free Federal Information Relay Service number) for
assistance in using, accessing, or filing any form or documentation
required under this subpart, including the Application for Temporary
Employment Certification. All requests for an accommodation should
include the employer's name, a detailed description of the
accommodation needed, and the preferred method of contact. The NPC will
respond to the request for a reasonable accommodation within 10
business days of the date of receipt.
(d) Original signature. The Application for Temporary Employment
Certification must contain an electronic (scanned) copy of the original
signature of the employer (and that of the employer's authorized
attorney or agent if the employer is represented by an attorney or
agent) or a verifiable electronic signature method, as directed by the
OFLC Administrator. If submitted by mail, the Application for Temporary
Employment Certification must bear the original signature of the
employer and, if applicable, the employer's authorized attorney or
agent.
(e) Scope of applications. (1) Except as otherwise permitted by
this subpart, all places of employment on an Application for Temporary
Employment Certification must be within a single area of intended
employment. Where a job opportunity involves work at multiple places of
employment after the workday begins, the Application for Temporary
Employment Certification may include places of employment outside of a
single area of intended employment only as is necessary to perform the
duties specified in the Application for Temporary Employment
Certification, and provided that the worker can reasonably return to
the worker's residence or the employer-provided housing within the same
workday.
(2) An employer may file only one Application for Temporary
Employment Certification covering the same area of intended employment,
period of employment, and occupation or comparable work to be
performed.
(f) Information dissemination. Information received in the course
of processing Applications for Temporary Employment Certification or in
the course of conducting program integrity measures such as audits may
be forwarded from OFLC to WHD or any other Federal agency, as
appropriate, for investigative or enforcement purposes.
Sec. 655.131 Agricultural association and joint employer filing
requirements.
(a) Agricultural association filing requirements. If an
agricultural association files an Application for Temporary Employment
Certification, in addition to complying with all the assurances,
guarantees, and other requirements contained in this subpart and in
part 653, subpart F, of this chapter, the following requirements also
apply.
(1) The agricultural association must identify in the Application
for Temporary Employment Certification for H-2A workers whether it is
filing as a sole employer, a joint employer, or an agent. The
agricultural association must retain documentation substantiating the
employer or agency status of the agricultural association and be
prepared to submit such documentation in response to a NOD from the CO
prior to issuing a Final Determination, or in the event of an audit or
investigation.
(2) The agricultural association may file a master application on
behalf of its employer-members. The master application is available
only when the agricultural association is filing as a joint employer.
An agricultural association may submit a master application covering
the same occupation or comparable work available with a number of its
employer-members in multiple areas of intended employment, as long as
the first dates of need for each employer-member named in the
Application for Temporary Employment Certification are separated by no
more than 14 calendar days and all places of employment are located in
no more than two contiguous States. The agricultural association must
identify in the Application for Temporary Employment Certification by
name, address, total number of workers needed, period of employment,
first date of need, and the crops and agricultural work to be
performed, each employer-member that will employ H-2A workers.
(3) An agricultural association filing a master application as a
joint employer may sign the Application for Temporary Employment
Certification on behalf of its employer-members. An agricultural
association filing as an agent may not sign on behalf of its employer-
members but must obtain each employer-member's signature on the
Application for Temporary Employment Certification prior to filing.
(4) If the application is approved, the agricultural association,
as appropriate, will receive a Final Determination certifying the
Application for Temporary Employment Certification in accordance with
the procedures contained in Sec. 655.162.
(b) Joint employer filing requirements. (1) If an employer files an
Application for Temporary Employment Certification on behalf of one or
more other employers seeking to jointly employ H-2A workers in the same
area of intended employment, in addition to complying with all the
assurances, guarantees, and other requirements contained in this
subpart and in part 653, subpart F, of this chapter, the following
requirements also apply:
(i) The Application for Temporary Employment Certification must
identify the name, address, and the crop(s) and agricultural work to be
performed for each employer seeking to jointly employ the H-2A workers;
(ii) No single joint employer may employ an H-2A worker, or any
combination of H-2A workers, for more than a total of 34 hours in any
workweek; and
(iii) The Application for Temporary Employment Certification must
be signed and dated by each joint employer named in the application, in
accordance with the procedures contained in Sec. 655.130(e). By
signing the Application for Temporary Employment Certification, each
joint employer named in the application attests to the conditions of
employment required of an employer participating in the H-2A program,
and assumes full responsibility for the accuracy of the representations
made in the Application for Temporary Employment Certification and for
compliance with all of the assurances and obligations of an employer in
the H-2A program at all times during the period the Application for
Temporary Employment Certification is valid; and
(2) If the application is approved, the joint employer who submits
the Application for Temporary Employment Certification will receive, on
behalf of the other joint employers, a Final Determination certifying
the Application for Temporary Employment Certification in accordance
with the procedures contained in Sec. 655.162.
Sec. 655.132 H-2A labor contractor filing requirements.
An H-2A labor contractor (H-2ALC) must meet all of the requirements
of the definition of employer in Sec. 655.103(b) and comply with all
the assurances, guarantees, and other requirements contained in this
part, including
Sec. 655.135, and in part 653, subpart F, of this chapter. The H-2ALC
must include in or with its Application for Temporary Employment
Certification at the time of filing the following:
(a) The name and location of each fixed-site agricultural business
to which the H-2ALC expects to provide H-2A workers, the expected
beginning and ending dates when the H-2ALC will be providing the
workers to each fixed site, and a description of the crops and
activities the workers are expected to perform at such fixed site.
(b) A copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of
Registration, if required under MSPA at 29 U.S.C. 1801 et seq.,
identifying the specific farm labor contracting activities the H-2ALC
is authorized to perform as an FLC.
(c) Proof of its ability to discharge financial obligations under
the H-2A program by including with the Application for Temporary
Employment Certification an original surety bond meeting the following
requirements.
(1) Requirements for the bond. The bond must be payable to the
Administrator, Wage and Hour Division, United States Department of
Labor, 200 Constitution Avenue NW, Room S-3502, Washington, DC 20210.
Consistent with the enforcement procedure set forth at 29 CFR 501.9(b),
the bond must obligate the surety to pay any sums to the WHD
Administrator for wages and benefits, including any assessment of
interest, owed to an H-2A worker or to a worker engaged in
corresponding employment, or to a U.S. worker improperly rejected or
improperly laid off or displaced, based on a final decision finding a
violation or violations of this part or 29 CFR part 501 relating to the
labor certification the bond is intended to cover. The aggregate
liability of the surety shall not exceed the face amount of the bond.
The bond must remain in full force and effect for all liabilities
incurred during the period of the labor certification, including any
extension thereof. The bond may not be cancelled absent a finding by
the WHD Administrator that the labor certification has been revoked.
(2) Amount of the bond. Unless a higher amount is sought by the WHD
Administrator pursuant to 29 CFR 501.9(a), the required bond amount is
the base amount adjusted to reflect the average AEWR, as defined in
Sec. 655.103, and further adjusted if the labor certification will be
used for the employment of 150 or more workers.
(i) The base amounts are $5,000 for a labor certification for which
an H-2ALC employs fewer than 25 workers; $10,000 for a labor
certification for which an H-2ALC employs 25 to 49 workers; $20,000 for
a labor certification for which an H-2ALC employs 50 to 74 workers;
$50,000 for a labor certification for which an H-2ALC employs 75 to 99
workers; and $75,000 for a labor certification for which an H-2ALC
employs 100 or more workers.
(ii) The bond amount is calculated by multiplying the base amount
by the average AEWR in effect at the time of bond submission, as
provided in paragraph (c)(3) of this section, and dividing by $9.25.
Thus, the required bond amounts will vary based on changes in the
average AEWR.
(iii) For a labor certification for which an H-2ALC employs 150 or
more workers, the bond amount applicable to the certification of 100 or
more workers is further adjusted for each additional 50 workers as
follows: the bond amount is increased by a value which represents 2
weeks of wages for 50 workers, calculated using the average AEWR (i.e.,
80 hours x 50 workers x Average AEWR); this increase is applied to the
bond amount for each additional group of 50 workers.
(iv) The required bond amounts shall be calculated and published in
the Federal Register after the OFLC Administrator has calculated the
average AEWR or any adjustment thereto.
(3) Form of the bond and method of filing. The bond shall consist
of an executed Form ETA-9142A--Appendix B, and must contain the name,
address, phone number, and contact person for the surety, and valid
documentation of power of attorney. The bond must be filed using the
method directed by the OFLC Administrator at the time of filing:
(i) Electronic surety bonds. When the OFLC Administrator directs
the use of electronic surety bonds, this will be the required method of
filing bonds for all applications subject to mandatory electronic
filing. Consistent with the application filing requirements of Sec.
655.130(c) and (d), the bond must be completed, signed by the employer
and the surety using a verifiable electronic signature method, and
submitted electronically with the Application for Temporary Employment
Certification and supporting materials unless the employer is permitted
to file by mail or a different accommodation under Sec. 655.130(c)(2)
or (3).
(ii) Electronic submission of copy. Until such time as the OFLC
Administrator directs the use of electronic surety bonds, employers may
submit an electronic (scanned) copy of the surety bond with the
application, provided that the original bond is received within 30 days
of the date that the labor certification is issued.
(iii) Mailing original bond with application. For applications not
subject to mandatory electronic filing due under Sec. 655.130(c)(2) or
(3), employers may submit the original bond as part of its mailed,
paper application package, or consistent with the accommodation
provided.
(d) Copies of the fully-executed work contracts with each fixed-
site agricultural business identified under paragraph (a) of this
section.
(e) Where the fixed-site agricultural business will provide housing
or transportation to the workers, proof that:
(1) All housing used by workers and owned, operated, or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA;
and
(2) All transportation between all places of employment and the
workers' living quarters that is provided by the fixed-site
agricultural business complies with all applicable local, State, or
Federal laws and regulations and must provide, at a minimum, the same
vehicle safety standards, driver licensure, and vehicle insurance as
required under 29 U.S.C. 1841 and 29 CFR 500.104 or 500.105 and 500.120
through 500.128, except where workers' compensation is used to cover
such transportation as described in Sec. 655.122(h).
Sec. 655.133 Requirements for agents.
(a) An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide a copy of the agent
agreement or other document demonstrating the agent's authority to
represent the employer.
(b) In addition the agent must provide a copy of the MSPA FLC
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801
et seq., identifying the specific farm labor contracting activities the
agent is authorized to perform.
Sec. 655.134 Emergency situations.
(a) Waiver of time period. The CO may waive the time period for
filing for employers who did not make use of temporary foreign
agricultural workers during the prior year's agricultural season or for
any employer that has other good and substantial cause, provided the CO
has sufficient time to test the domestic labor market on an expedited
basis to make the determinations required by Sec. 655.100.
(b) Employer requirements. The employer requesting a waiver of the
required time period must submit to the
NPC: all documentation required at the time of filing by Sec.
655.130(a), except evidence of a job order submitted pursuant to Sec.
655.121; a completed job order on the Form ETA-790/790A and all
required addenda; and a statement justifying the request for a waiver
of the time period requirement. The statement must indicate whether the
waiver request is due to the fact that the employer did not use H-2A
workers during the prior year's agricultural season or whether the
request is for good and substantial cause. If the waiver is requested
for good and substantial cause, the employer's statement must also
include detailed information describing the good and substantial cause
that has necessitated the waiver request. Good and substantial cause
may include, but is not limited to, the substantial loss of U.S.
workers due to Acts of God or similar unforeseeable man-made
catastrophic events (e.g., a hazardous materials emergency or
government-controlled flooding), unforeseeable changes in market
conditions, pandemic health issues, or similar conditions that are
wholly outside of the employer's control.
(c) Processing of emergency applications. (1) Upon receipt of a
complete emergency situation(s) waiver request, the CO promptly will
transmit a copy of the job order to the SWA serving the area of
intended employment. The SWA will review the contents of the job order
for compliance with the requirements set forth in 20 CFR part 653,
subpart F, and Sec. 655.122. If the SWA determines that the job order
does not comply with the applicable criteria, the SWA must inform the
CO of the noted deficiencies within 5 calendar days of the date the job
order is received by the SWA.
(2) The CO will process emergency Applications for Temporary
Employment Certification in a manner consistent with the provisions set
forth in Sec. Sec. 655.140 through 655.145 and make a determination on
the Application for Temporary Employment Certification in accordance
with Sec. Sec. 655.160 through 655.167. The CO may notify the
employer, in accordance with the procedures contained in Sec. 655.141,
that the application cannot be accepted because, pursuant to paragraph
(a) of this section, the request for emergency filing was not justified
and/or there is not sufficient time to test the availability of U.S.
workers such that the CO can make a determination on the Application
for Temporary Employment Certification in accordance with Sec.
655.161. Such notification will so inform the employer of the
opportunity to submit a modified Application for Temporary Employment
Certification and/or job order in accordance with the procedures
contained in Sec. 655.142.
Sec. 655.135 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must agree as part of
the Application for Temporary Employment Certification and job offer
that it will abide by the requirements of this subpart and make each of
the following additional assurances:
(a) Non-discriminatory hiring practices. The job opportunity is,
and through the period set forth in paragraph (d) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, handicap, or citizenship
status. Rejections of any U.S. workers who applied or apply for the job
must be only for lawful, job-related reasons, and those not rejected on
this basis have been or will be hired. In addition, the employer has
and will continue to retain records of all hires and rejections as
required by Sec. 655.167.
(b) No strike or lockout. The place(s) of employment for which the
employer is requesting a temporary agricultural labor certification
does not currently have employees on strike or being locked out in the
course of a labor dispute.
(c) Recruitment requirements--(1) General requirements. The
employer has and will continue to cooperate with the SWA by accepting
referrals of all eligible U.S. workers who apply (or on whose behalf an
application is made) for the job opportunity until the end of the
period as specified in paragraph (d) of this section and must
independently conduct the positive recruitment activities, as specified
in Sec. 655.154, until the date on which the H-2A workers depart for
the place of employment. Unless the SWA is informed in writing of a
different date, the date that is the third day preceding the employer's
first date of need will be determined to be the date the H-2A workers
departed for the employer's place of employment.
(2) Interviewing U.S. workers. Employers that wish to require
interviews must conduct those interviews by phone or provide a
procedure for the interviews to be conducted in the location where the
U.S. worker is being recruited so that the worker incurs little or no
cost due to the interview. Employers cannot provide potential H-2A
workers with more favorable treatment than U.S. workers with respect to
the requirement for, and conduct of, interviews.
(3) Qualified and available U.S. workers. The employer must
consider all U.S. applicants for the job opportunity until the end of
the recruitment period, as set forth in Sec. 655.135(d). The employer
must accept and hire all applicants who are qualified and who will be
available for the job opportunity. U.S. applicants can be rejected only
for lawful, job-related reasons, and those not rejected on this basis
will be hired.
(d) Fifty percent rule. From the time the foreign workers depart
for the employer's place of employment, the employer must provide
employment to any qualified, eligible U.S. worker who applies to the
employer until 50 percent of the period of the work contract has
elapsed. Start of the work contract timeline is calculated from the
first date of need stated on the Application for Temporary Employment
Certification, under which the foreign worker who is in the job was
hired. This paragraph (d) will not apply to any employer who certifies
to in the Application for Temporary Employment Certification that the
employer:
(1) Did not, during any calendar quarter during the preceding
calendar year, use more than 500 man-days of agricultural labor, as
defined in 29 U.S.C. 203(u);
(2) Is not an employer-member of an association that has petitioned
for certification under this subpart for its employer-members; and
(3) Has not otherwise associated with other employers who are
petitioning for temporary foreign workers under this subpart.
(e) Compliance with applicable laws. During the period of
employment that is the subject of the Application for Temporary
Employment Certification, the employer must comply with all applicable
Federal, State, and local laws and regulations, including health and
safety laws. In compliance with such laws, including the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. 110-457, 18 U.S.C. 1592(a), the employer may not hold or
confiscate workers' passports, visas, or other immigration documents.
H-2A employers may also be subject to the FLSA. The FLSA operates
independently of the H-2A program and has specific requirements that
address payment of wages, including deductions from wages, the payment
of Federal minimum wage and payment of overtime.
(f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per
workweek.
(g) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment except for lawful,
job-related reasons within 60 days of the first date of need, or if the
employer has laid off such workers, it has offered the job opportunity
that is the subject of the Application for Temporary Employment
Certification to those laid-off U.S. worker(s) and the U.S. worker(s)
refused the job opportunity, was rejected for the job opportunity for
lawful, job-related reasons, or was hired. A layoff for lawful, job-
related reasons such as lack of work or the end of the growing season
is permissible if all H-2A workers are laid off before any U.S. worker
in corresponding employment.
(h) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188 or this
subpart or any Department regulation in this chapter or 29 CFR part 501
promulgated under 8 U.S.C. 1188;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any Department regulation
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any Department regulation
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188 or this subpart or any
Department regulation in this chapter or 29 CFR part 501 promulgated
under 8 U.S.C. 1188; or
(5) Exercised or asserted on behalf of themself or others any right
or protection afforded by 8 U.S.C. 1188 or this subpart or any
Department regulation in this chapter or 29 CFR part 501 promulgated
under 8 U.S.C. 1188.
(i) Notify workers of duty to leave United States. (1) The employer
must inform H-2A workers of the requirement that they leave the United
States at the end of the period certified by the Department or
separation from the employer, whichever is earlier, as required under
paragraph (i)(2) of this section, unless the H-2A worker is being
sponsored by another subsequent H-2A employer.
(2) As explained further in the DHS regulations, a temporary
agricultural labor certification limits the validity period of an H-2A
Petition. See 8 CFR 214.2(h)(5)(vii). A foreign worker may not remain
beyond their authorized period of stay, as determined by DHS, nor
beyond separation from employment prior to completion of the H-2A
contract, absent an extension or change of such worker's status under
the DHS regulations. See 8 CFR 214.2(h)(5)(viii)(B).
(j) Comply with the prohibition against employees paying fees. The
employer and its agents have not sought or received payment of any kind
from any employee subject to 8 U.S.C. 1188 for any activity related to
obtaining H-2A labor certification, including payment of the employer's
attorney fees, application fees, or recruitment costs. For purposes of
this paragraph (j), payment includes, but is not limited to, monetary
payments, wage concessions (including deductions from wages, salary, or
benefits), kickbacks, bribes, tributes, in kind payments, and free
labor. The provision in this paragraph (j) does not prohibit employers
or their agents from receiving reimbursement for costs that are the
responsibility and primarily for the benefit of the worker, such as
government-required passport fees.
(k) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any foreign labor
contractor or recruiter (or any agent of such foreign labor contractor
or recruiter) whom the employer engages, either directly or indirectly,
in international recruitment of H-2A workers to seek or receive
payments or other compensation from prospective employees. The contract
must include the following statement: ``Under this agreement, [name of
foreign labor contractor or recruiter] and any agent or employee of
[name of foreign labor contractor or recruiter] are prohibited from
seeking or receiving payments from any prospective employee of
[employer name] at any time, including before or after the worker
obtains employment. Payments include but are not limited to any direct
or indirect fees paid by such employees for recruitment, job placement,
processing, maintenance, attorney fees, agent fees, application fees,
or any fees related to obtaining H-2A labor certification.'' This
documentation is to be made available upon request by the CO or another
Federal party.
(l) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment, a poster provided by
the Secretary in English, and, to the extent necessary, any language
common to a significant portion of the workers if they are not fluent
in English, which sets out the rights and protections for workers
employed pursuant to 8 U.S.C. 1188.
Sec. 655.136 Withdrawal of an Application for Temporary Employment
Certification and job order.
(a) The employer may withdraw an Application for Temporary
Employment Certification and the related job order at any time before
the CO makes a determination under Sec. 655.160. However, the employer
is still obligated to comply with the terms and conditions of
employment contained in the Application for Temporary Employment
Certification and job order with respect to all workers recruited in
connection with that application and job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the Application for Temporary Employment
Certification and job order and stating the reason(s) for the
withdrawal.
Processing of Applications for Temporary Employment Certification
Sec. 655.140 Review of applications.
(a) NPC review. The CO will promptly review the Application for
Temporary Employment Certification and job order for compliance with
all applicable program requirements, including compliance with the
requirements set forth in this subpart, and make a decision to issue a
NOD under Sec. 655.141, a Notice of Acceptance (NOA) under Sec.
655.143, or a Final Determination under Sec. 655.160.
(b) Mailing and postmark requirements. Any notice or request sent
by the CO(s) to an employer requiring a response will be sent
electronically or via traditional methods to assure next day delivery
using the address, including electronic mail address, provided on the
Application for Temporary Employment Certification. The employer's
response to such a notice or request must be filed electronically or
via traditional methods to assure next day delivery. The employer's
response must be sent by the date due or the next business day if the
due date falls on a Sunday or Federal holiday.
Sec. 655.141 Notice of deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification or job order is incomplete, contains
errors or inaccuracies, or does not meet the requirements set forth in
this subpart, the CO will notify the employer within 7 calendar days of
the CO's receipt of the Application for Temporary Employment
Certification. A copy of this notification will be sent to the SWA
serving the area of intended employment.
(b) Notice content. The notice will:
(1) State the reason(s) the Application for Temporary Employment
Certification or job order fails to meet the criteria for acceptance;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within
5 business days from date of receipt stating the modification that is
needed for the CO to issue the NOA;
(3) State that the CO's determination on whether to grant or deny
the Application for Temporary Employment Certification will be made not
later than 30 calendar days before the first date of need, provided
that the employer submits the requested modification to the Application
for Temporary Employment Certification or job order within 5 business
days and in a manner specified by the CO; and
(4) State that if the employer does not comply with the
requirements of Sec. 655.142, the CO will deny the Application for
Temporary Employment Certification.
Sec. 655.142 Submission of modified applications.
(a) Submission requirements and certification delays. If in
response to a NOD the employer chooses to submit a modified Application
for Temporary Employment Certification or job order, the CO's Final
Determination will be postponed by 1 calendar day for each day that
passes beyond the 5 business-day period allowed under Sec. 655.141(b)
to submit a modified Application for Temporary Employment Certification
or job order, up to a maximum of 5 calendar days. The CO may issue one
or more additional NODs before issuing a Final Determination. The
Application for Temporary Employment Certification will be deemed
abandoned if the employer does not submit a modified Application for
Temporary Employment Certification or job order within 12 calendar days
after the NOD was issued.
(b) Provisions for denial of modified Application for Temporary
Employment Certification. If the modified Application for Temporary
Employment Certification or job order does not cure the deficiencies
cited in the NOD(s) or otherwise fails to satisfy the criteria required
for certification, the CO will deny the Application for Temporary
Employment Certification in accordance with the labor certification
determination provisions in Sec. 655.164.
(c) Appeal from denial of modified Application for Temporary
Employment Certification. The procedures for appealing a denial of a
modified Application for Temporary Employment Certification are the
same as for a non-modified Application for Temporary Employment
Certification as long as the employer timely requests an expedited
administrative review or de novo hearing before an ALJ by following the
procedures set forth in Sec. 655.171.
Sec. 655.143 Notice of acceptance.
(a) Notification timeline. When the CO determines the Application
for Temporary Employment Certification and job order meet the
requirements set forth in this subpart, the CO will notify the employer
within 7 calendar days of the CO's receipt of the Application for
Temporary Employment Certification. A copy of the notice will be sent
to the SWA serving the area of intended employment.
(b) Notice content. The notice must:
(1) Authorize conditional access to the interstate clearance system
and direct each SWA receiving a copy of the job order to commence
recruitment of U.S. workers as specified in Sec. 655.150;
(2) Direct the employer to engage in positive recruitment of U.S.
workers under Sec. Sec. 655.153 and 655.154 and to submit a report of
its positive recruitment efforts meeting the requirements of Sec.
655.156. If the OFLC Administrator's annual determination of labor
supply States under Sec. 655.154 requires the employer to engage in a
specific additional positive recruitment activity in a labor supply
State, the NOA will describe the precise nature of the additional
positive recruitment required and will specify the documentation or
other supporting evidence that must be maintained by the employer as
proof that positive recruitment requirements were met;
(3) State that positive recruitment is in addition to and will
occur during the period of time that the job order is being circulated
by the SWA(s) for interstate clearance under Sec. 655.150 and will
terminate on the date specified in Sec. 655.158;
(4) State any other documentation or assurances needed for the
Application for Temporary Employment Certification to meet the
requirements for certification under this subpart;
(5) State that the CO will make a determination either to grant or
deny the Application for Temporary Employment Certification not later
than 30 calendar days before the first date of need, except as provided
for under Sec. 655.142 for modified Applications for Temporary
Employment Certification or when the Application for Temporary
Employment Certification does not meet the requirements for
certification but is expected to before the first date of need; and
(6) Where appropriate to the job opportunity and area of intended
employment, direct the SWA to provide written notice of the job
opportunity to organizations that provide employment and training
services to workers likely to apply for the job and/or to place written
notice of the job opportunity in other physical locations where such
workers are likely to gather.
Sec. 655.144 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.143, the CO will promptly place for public examination
a copy of the job order on an electronic job registry maintained by the
Department, including any required modifications approved by the CO, as
specified in Sec. 655.142.
(b) Length of posting on electronic job registry. Unless otherwise
provided, the Department will keep the job order posted on the
electronic job registry in active status until the end of the
recruitment period, as set forth in Sec. 655.135(d).
Sec. 655.145 Amendments to Applications for Temporary Employment
Certification.
(a) Increases in number of workers. The Application for Temporary
Employment Certification may be amended at any time before the CO's
certification determination to increase the number of workers requested
in the initial Application for Temporary Employment Certification by
not more than 20 percent (50 percent for employers requesting less than
10 workers) without requiring an additional recruitment period for U.S.
workers. Requests for increases above the percent prescribed, without
additional recruitment, may be approved by the CO only when the
employer demonstrates that the need for additional workers could not
have been foreseen, and the crops or commodities will be in jeopardy
prior to the expiration of an additional recruitment period. All
requests for increasing the
number of workers must be made in writing.
(b) Minor changes to the period of employment. The Application for
Temporary Employment Certification may be amended to make minor changes
in the total period of employment. Changes will not be effective until
submitted in writing and approved by the CO. In considering whether to
approve the request, the CO will review the reason(s) for the request,
determine whether the reason(s) are on the whole justified, and take
into account the effect any change(s) would have on the adequacy of the
underlying test of the domestic labor market for the job opportunity.
An employer must demonstrate that the change to the period of
employment could not have been foreseen, and the crops or commodities
will be in jeopardy prior to the expiration of an additional
recruitment period. If the request is for a delay in the first date of
need and is made after workers have departed for the employer's place
of employment, the CO may only approve the change if the employer
includes with the request a written assurance signed and dated by the
employer that all workers who are already traveling to the place of
employment will be provided housing and subsistence, without cost to
the workers, until work commences. Upon acceptance of an amendment, the
CO will submit to the SWA any necessary modification to the job order.
Post-Acceptance Requirements
Sec. 655.150 Interstate clearance of job order.
(a) CO approves for interstate clearance. The CO will promptly
transmit a copy of the approved job order for interstate clearance, at
minimum, to all States listed in the job order as anticipated place(s)
of employment and all other States designated by the OFLC Administrator
as States of traditional or expected labor supply for the anticipated
place(s) of employment under Sec. 655.154(d).
(b) Duration of posting. Each of the SWAs to which the CO transmits
the job order must keep the job order on its active file until the end
of the recruitment period, as set forth in Sec. 655.135(d), and must
refer each qualified U.S. worker who applies (or on whose behalf an
application is made) for the job opportunity.
Sec. Sec. 655.151-655.152 [Reserved]
Sec. 655.153 Contact with former U.S. workers.
The employer must contact, by mail or other effective means, U.S.
workers employed by the employer in the occupation at the place of
employment during the previous year and solicit their return to the
job. This contact must occur during the period of time that the job
order is being circulated by the SWA(s) for interstate clearance under
Sec. 655.150 and before the date specified in Sec. 655.158.
Documentation sufficient to prove contact must be maintained in the
event of an audit or investigation. An employer has no obligation to
contact U.S. workers it terminated for cause or who abandoned
employment at any time during the previous year if the employer
provided timely notice to the NPC of the termination or abandonment in
the manner described in Sec. 655.122(n).
Sec. 655.154 Additional positive recruitment.
(a) Where to conduct additional positive recruitment. In addition
to the CO's posting of the job opportunity on an electronic job
registry in accordance with Sec. 655.144, the employer must conduct
positive recruitment as required by the OFLC Administrator's
determination of traditional or expected labor supply States, which is
published annually in accordance with paragraph (d) of this section.
(b) Additional requirements should be comparable to non-H-2A
employers in the area. The location(s) and method(s) of the positive
recruitment required of the employer must be no less than the normal
recruitment efforts of non-H-2A agricultural employers of comparable or
smaller size in the area of intended employment, taking into
consideration the kind and degree of recruitment efforts which the
employer may make to obtain foreign workers.
(c) Nature of the additional positive recruitment. The OFLC
Administrator's labor supply State determination will identify areas of
labor supply within a State, and the NOA issued under Sec. 655.143
will describe the precise nature of the additional positive recruitment
required of the employer, if any. The employer will not be required to
conduct positive recruitment in more than three States for each area of
intended employment listed on the employer's Application for Temporary
Employment Certification and job order.
(d) Determination of labor supply States. (1) The OFLC
Administrator will make an annual determination with respect to each
State whether there are other traditional or expected labor supply
States and, within a traditional or expected labor supply State, areas
in which there are a significant number of qualified U.S. workers who,
if recruited, would be willing to make themselves available for work in
that State. The OFLC Administrator will publish the determination
annually on OFLC's website.
(2) The determination will become effective on the date of
publication on OFLC's website for employers who have not commenced
positive recruitment under this subpart and will remain valid until the
OFLC Administrator publishes a new determination.
(3) The determination as to whether any State is a source of
traditional or expected labor supply to another State will be based
primarily upon information provided by the SWAs to the OFLC
Administrator within 120 calendar days preceding the determination.
Sec. 655.155 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and
have indicated, by accepting referral to the job opportunity, that they
are qualified, able, willing, and available for employment.
Sec. 655.156 Recruitment report.
(a) Requirements of a recruitment report. The employer must
prepare, sign, and date a written recruitment report. The recruitment
report must be submitted on a date specified by the CO in the NOA set
forth in Sec. 655.143 and contain the following information:
(1) Identify the name of each recruitment source and date(s) of
advertisement;
(2) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker;
(3) Confirm that former U.S. workers were contacted, with a
description by what means they were contacted and the date(s) of such
contact, or state there are no former U.S. workers to contact; and
(4) If applicable, for each U.S. worker who applied for the
position but was not hired, explain the lawful job-related reason(s)
for not hiring the U.S. worker.
(b) Duty to update recruitment report. The employer must continue
to update the recruitment report until the end of the recruitment
period, as set forth in Sec. 655.135(d). The updated report must be
made available in the event of a post-certification audit or upon
request by the Department. The Department may share recruitment report
information with any other Federal agency, as set forth in Sec.
655.130(f).
Sec. 655.157 Withholding of U.S. workers prohibited.
(a) Filing a complaint. Any employer who has reason to believe that
a person
or entity has willfully and knowingly withheld U.S. workers prior to
the arrival at the place of employment of H-2A workers in order to
force the hiring of U.S. workers during the recruitment period, as set
forth in Sec. 655.135(d), may submit a written complaint to the CO.
The complaint must clearly identify the person or entity who the
employer believes has withheld the U.S. workers, and must specify
sufficient facts to support the allegation (e.g., dates, places,
numbers and names of U.S. workers) which will permit an investigation
to be conducted by the CO.
(b) Duty to investigate. Upon receipt, the CO must immediately
investigate the complaint. The investigation must include interviews
with the employer who has submitted the complaint, the person or entity
named as responsible for withholding the U.S. workers, and the
individual U.S. workers whose availability has purportedly been
withheld.
(c) Duty to suspend the recruitment period. Where the CO
determines, after conducting the interviews required by paragraph (b)
of this section, that the employer's complaint is valid and justified,
the CO will immediately suspend the applicable recruitment period, as
set forth in Sec. 655.135(d), to the employer. The CO's determination
is the final decision of the Secretary.
Sec. 655.158 Duration of positive recruitment.
Except as otherwise noted, the obligation to engage in positive
recruitment described in Sec. Sec. 655.150 through 655.154 will
terminate on the date H-2A workers depart for the employer's place of
employment. Unless the SWA is informed in writing of a different date,
the date that is the third day preceding the employer's first date of
need will be determined to be the date the H-2A workers departed for
the employer's place of employment.
Labor Certification Determinations
Sec. 655.160 Determinations.
Except as otherwise noted in this section, the CO will make a
determination either to grant or deny the Application for Temporary
Employment Certification not later than 30 calendar days before the
first date of need identified in the Application for Temporary
Employment Certification. An Application for Temporary Employment
Certification that is modified under Sec. 655.142 or that otherwise
does not meet the requirements for certification in this subpart is not
subject to the 30-day timeframe for certification.
Sec. 655.161 Criteria for certification.
(a) The criteria for certification include whether the employer has
complied with the applicable requirements of parts 653 and 654 of this
chapter, and all requirements of this subpart, which are necessary to
grant the labor certification.
(b) In making a determination as to whether there are insufficient
U.S. workers to fill the employer's job opportunity, the CO will count
as available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an application is made) directly to the
employer, whom the employer has not rejected for a lawful, job-related
reason.
Sec. 655.162 Approved certification.
If temporary agricultural labor certification is granted, the CO
will send a Final Determination notice and a copy of the certified
Application for Temporary Employment Certification and job order to the
employer and a copy, if applicable, to the employer's agent or attorney
using an electronic method(s) designated by the OFLC Administrator. For
employers permitted to file by mail as set forth in Sec. 655.130(c),
the CO will send the Final Determination notice and a copy of the
certified Application for Temporary Employment Certification and job
order by means normally assuring next day delivery. The CO will send
the certified Application for Temporary Employment Certification and
job order, including any approved modifications, directly to USCIS
using an electronic method(s) designated by the OFLC Administrator.
Sec. 655.163 Certification fee.
A determination by the CO to grant an Application for Temporary
Employment Certification in whole or in part will include a bill for
the required certification fees. Each employer of H-2A workers under
the Application for Temporary Employment Certification (except joint
employer agricultural associations, which may not be assessed a fee in
addition to the fees assessed to the employer-members of the
agricultural association) must pay in a timely manner a non-refundable
fee upon issuance of the certification granting the Application for
Temporary Employment Certification (in whole or in part), as follows:
(a) Amount. The Application for Temporary Employment Certification
fee for each employer receiving a temporary agricultural labor
certification is $100 plus $10 for each H-2A worker certified under the
Application for Temporary Employment Certification, provided that the
fee to an employer for each temporary agricultural labor certification
received will be no greater than $1,000. There is no additional fee to
the association filing the Application for Temporary Employment
Certification. The fees must be paid by check or money order made
payable to United States Department of Labor. In the case of an
agricultural association acting as a joint employer applying on behalf
of its H-2A employer-members, the aggregate fees for all employers of
H-2A workers under the Application for Temporary Employment
Certification must be paid by one check or money order.
(b) Timeliness. Fees must be received by the CO no more than 30
calendar days after the date of the certification. Non-payment or
untimely payment may be considered a substantial violation subject to
the procedures in Sec. 655.182.
Sec. 655.164 Denied certification.
If temporary agricultural labor certification is denied, the CO
will send a Final Determination notice to the employer and a copy, if
appropriate, to the employer's agent or attorney using an electronic
method(s) designated by the OFLC Administrator. For employers permitted
to file by mail as set forth in Sec. 655.130(c), the CO will send the
Final Determination notice by means normally assuring next day
delivery. The Final Determination notice will:
(a) State the reason(s) certification is denied, citing the
relevant regulatory standards;
(b) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ
of the denial under Sec. 655.171; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ in
accordance with Sec. 655.171, the denial is final, and the Department
will not accept any appeal on that Application for Temporary Employment
Certification.
Sec. 655.165 Partial certification.
The CO may issue a partial certification, reducing either the
period of employment or the number of H-2A workers being requested or
both for certification, based upon information the CO receives during
the course of processing the Application for Temporary Employment
Certification, an audit, or otherwise. The number of workers certified
will be reduced by one for each U.S. worker who is able, willing, and
qualified, and who will be available at the time and place needed and
has not been rejected for lawful, job-related reasons, to perform the
labor
or services. If a partial labor certification is issued, the CO will
send the Final Determination notice approving partial certification
using the procedures at Sec. 655.162. The Final Determination notice
will:
(a) State the reason(s) the period of employment and/or the number
of H-2A workers requested has been reduced, citing the relevant
regulatory standards;
(b) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ
of the partial certification under Sec. 655.171; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ in
accordance with Sec. 655.171, the partial certification is final, and
the Department will not accept any appeal on that Application for
Temporary Employment Certification.
Sec. 655.166 Requests for determinations based on nonavailability of
U.S. workers.
(a) Standards for requests. If a temporary agricultural labor
certification has been partially granted or denied based on the CO's
determination that able, willing, available, eligible, and qualified
U.S. workers are available, and, on or after 30 calendar days before
the first date of need, some or all of those U.S. workers are, in fact,
no longer able, willing, eligible, qualified, or available, the
employer may request a new temporary agricultural labor certification
determination from the CO. Prior to making a new determination, the CO
will promptly ascertain (which may be through the SWA or other sources
of information on U.S. worker availability) whether specific able,
willing, eligible and qualified replacement U.S. workers are available
or can be reasonably expected to be present at the employer's
establishment within 72 hours from the date the employer's request was
received. The CO will expeditiously, but in no case later than 72 hours
after the time a complete request (including the signed statement
included in paragraph (b) of this section) is received, make a
determination on the request under paragraph (c) of this section. An
employer may appeal a denial of such a determination in accordance with
the procedures contained in Sec. 655.171.
(b) Unavailability of U.S. workers. The employer's request for a
new determination must be made directly to the CO in writing using an
electronic method(s) designated by the OFLC Administrator, unless the
employer requests to file the request by mail as set forth in Sec.
655.130(c). If the employer requests the new determination by asserting
solely that U.S. workers have become unavailable, the employer must
submit to the CO a signed statement confirming such assertion. If such
signed statement is not received by the CO within 72 hours of the CO's
receipt of the request for a new determination, the CO will deny the
request.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient
available U.S. workers who are able, willing, eligible, and qualified
or who are likely to become available, the CO will grant the employer's
request for a new determination on the Application for Temporary
Employment Certification in accordance with the procedures contained in
Sec. 655.162 or Sec. 655.165. However, this does not preclude an
employer from submitting subsequent requests for new determinations, if
warranted, based on subsequent facts concerning purported
nonavailability of U.S. workers or referred workers not being eligible
workers or not able, willing, or qualified because of lawful, job-
related reasons.
Sec. 655.167 Document retention requirements of H-2A employers.
(a) Entities required to retain documents. All employers must
retain documents and records demonstrating compliance with this
subpart.
(b) Period of required retention. Records and documents must be
retained for a period of 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
determination if the Application for Temporary Employment Certification
is denied or withdrawn.
(c) Documents and records to be retained by all employers. All
employers must retain:
(1) Proof of recruitment efforts, including:
(i) Job order placement as specified in Sec. 655.121;
(ii) Contact with former U.S. workers as specified in Sec.
655.153; and
(iii) Additional positive recruitment efforts as specified in Sec.
655.154.
(2) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.156, such as evidence of
nonapplicability of contact of former employees as specified in Sec.
655.153.
(3) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.156(b).
(4) Proof of workers' compensation insurance or State law coverage
as specified in Sec. 655.122(e).
(5) Records of each worker's earnings as specified in Sec.
655.122(j).
(6) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.122(q).
(7) If applicable, records of notice to the NPC and DHS of the
abandonment of employment or termination for cause of a worker as set
forth in Sec. 655.122(n).
(d) Additional retention requirement for agricultural associations
filing an Application for Temporary Employment Certification. In
addition to the documents specified in paragraph (c) of this section,
associations must retain documentation substantiating their status as
an employer or agent, as specified in Sec. 655.131.
Post-Certification
Sec. 655.170 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances.
(a) Short-term extension. Employers seeking extensions of 2 weeks
or less of the certified Application for Temporary Employment
Certification must apply directly to DHS for approval. If granted, the
Application for Temporary Employment Certification will be deemed
extended for such period as is approved by DHS.
(b) Long-term extension. Employers seeking extensions of more than
2 weeks may apply to the CO. Such requests must be related to weather
conditions or other factors beyond the control of the employer (which
may include unforeseen changes in market conditions). Such requests
must be supported in writing, with documentation showing that the
extension is needed and that the need could not have been reasonably
foreseen by the employer. The CO will notify the employer of the
decision in writing if time allows, or will otherwise notify the
employer of the decision. The CO will not grant an extension where the
total work contract period under that Application for Temporary
Employment Certification and extensions would last longer than 1 year,
except in extraordinary circumstances. The employer may appeal a denial
of a request for an extension by following the procedures in Sec.
655.171.
(c) Disclosure. The employer must provide to the workers a copy of
any approved extension in accordance with Sec. 655.122(q), as soon as
practicable.
Sec. 655.171 Appeals.
(a) Request for review. Where authorized in this subpart, an
employer seeking review of a decision of the CO must request an
administrative review
or de novo hearing before an ALJ of that decision to exhaust its
administrative remedies. In such cases, the request for review:
(1) Except as provided in Sec. 655.181(b)(3), must be received by
the Chief ALJ, and the CO who issued the decision, within 10 business
days from the date of the CO's decision;
(2) Must clearly identify the particular decision for which review
is sought;
(3) Must include a copy of the CO's decision;
(4) Must clearly state whether the employer is seeking
administrative review or a de novo hearing. If the request does not
clearly state the employer is seeking a de novo hearing, then the
employer waives its right to a hearing, and the case will proceed as a
request for administrative review;
(5) Must set forth the particular grounds for the request,
including the specific factual issues the requesting party alleges
needs to be examined in connection with the CO's decision in question;
(6) May contain any legal argument that the employer believes will
rebut the basis of the CO's action, including any briefing the employer
wishes to submit where the request is for administrative review;
(7) May contain only such evidence as was actually before the CO at
the time of the CO's decision, where the request is for administrative
review; and
(8) May contain new evidence for the ALJ's consideration, where the
request is for a de novo hearing, provided that the new evidence is
introduced at the hearing.
(b) Administrative file. After the receipt of the request for
review, the CO will send a copy of the OFLC administrative file to the
Chief ALJ, the employer, the employer's attorney or agent (if
applicable), and the Associate Solicitor for Employment and Training
Legal Services, Office of the Solicitor, U.S. DOL (counsel), as soon as
practicable by means normally assuring next-day delivery.
(c) Assignment. The Chief ALJ will immediately assign an ALJ to
consider the particular case, which may be a single member or a three-
member panel of the BALCA.
(d) Administrative review--(1) Briefing schedule. If the employer
wishes to submit a brief on appeal, it must do so as part of its
request for review. Within 7 business days of receipt of the OFLC
administrative file, the counsel for the CO may submit a brief in
support of the CO's decision and, if applicable, in response to the
employer's brief.
(2) Standard of review. The ALJ must uphold the CO's decision
unless shown by the employer to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.
(3) Scope of review. The ALJ will consider the documents in the
OFLC administrative file that were before the CO at the time of the
CO's decision and any written submissions from the parties or amici
curiae that do not contain new evidence. The ALJ may not consider
evidence not before the CO at the time of the CO's decision, even if
such evidence is in the administrative file. After due consideration,
the ALJ will affirm, reverse, or modify the CO's decision, or remand to
the CO for further action, except in cases over which the Secretary has
assumed jurisdiction pursuant to 29 CFR 18.95.
(4) Decision. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
employer's attorney or agent (if applicable), the CO, and counsel for
the CO within 7 business days of the submission of the CO's brief or 10
business days after receipt of the OFLC administrative file, whichever
is later, using means normally assuring next-day delivery.
(e) De novo hearing--(1) Conduct of hearing. Where the employer has
requested a de novo hearing the procedures in 29 CFR part 18 apply to
such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take
place within 14 business days after the ALJ's receipt of the OFLC
administrative file, if the employer so requests, and will allow for
the introduction of new evidence during the hearing as appropriate;
(iii) The ALJ may authorize discovery and the filing of pre-hearing
motions, and so limit them to the types and quantities which in the
ALJ's discretion will contribute to a fair hearing without unduly
burdening the parties;
(iv) The ALJ's decision must be rendered within 10 calendar days
after the hearing; and
(v) If the employer waives the right to a hearing, such as by
asking for a decision on the record, or if the ALJ determines there are
no disputed material facts to warrant a hearing, then the standard and
scope of review for administrative review applies.
(2) Standard and scope of review. The ALJ will review the evidence
presented during the hearing and the CO's decision de novo. The ALJ may
determine that there are no issues of material fact, or only some
issues of material fact, for which there is a genuine dispute, and may
subsequently limit the hearing to only issues of material fact for
which there is a genuine dispute. If new evidence is submitted with a
request for a de novo hearing, and the ALJ subsequently determines that
a hearing is warranted, the new evidence provided with the request must
be introduced at the hearing to be considered by the ALJ. After a de
novo hearing, the ALJ must affirm, reverse, or modify the CO's
decision, or remand to the CO for further action, except in cases over
which the Secretary has assumed jurisdiction pursuant to 29 CFR 18.95.
(3) Decision. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
employer's attorney or agent (if applicable), the CO, and counsel for
the CO by means normally assuring next-day delivery.
Sec. 655.172 Post-certification withdrawals.
(a) The employer may withdraw an Application for Temporary
Employment Certification and the related job order after the CO grants
certification under Sec. 655.160. However, the employer is still
obligated to comply with the terms and conditions of employment
contained in the Application for Temporary Employment Certification and
job order with respect to all workers recruited in connection with that
application and job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the certification and stating the
reason(s) for the withdrawal.
Sec. 655.173 Setting meal charges; petition for higher meal charges.
(a) Meal charges. An employer may charge workers up to $14.00 per
day for providing them with three meals. The maximum charge allowed by
this paragraph (a) will be changed annually by the same percentage as
the 12-month percentage change for the Consumer Price Index for all
Urban Consumers for Food between December of the year just concluded
and December of the year prior to that. The annual adjustments will be
effective on the date of their publication by the OFLC Administrator in
the Federal Register. When a charge or deduction for the cost of meals
would bring the employee's wage below the minimum wage set by the FLSA
at 29 U.S.C. 206, the charge or deduction must meet the requirements of
the FLSA
at 29 U.S.C. 203(m), including the recordkeeping requirements found at
29 CFR 516.27.
(b) Petitions for higher meal charges. The employer may file a
petition with the CO to request approval to charge more than the
applicable amount set under paragraph (a) of this section.
(1) Filing a higher meal charge request. To request approval to
charge more than the applicable amount set under paragraph (a) of this
section, the employer must submit the documentation required by either
paragraph (b)(1)(i) or (ii) of this section. A higher meal charge
request will be denied, in whole or in part, if the employer's
documentation does not justify the higher meal charge requested.
(i) Meals prepared directly by the employer. Documentation
submitted must include only the cost of goods and services directly
related to the preparation and serving of meals, the number of workers
fed, the number of meals served, and the number of days meals were
provided. The cost of the following items may be included in the
employer's charge to workers for providing prepared meals: food;
kitchen supplies other than food, such as lunch bags and soap; labor
costs that have a direct relation to food service operations, such as
wages of cooks and dining hall supervisors; fuel, water, electricity,
and other utilities used for the food service operation; and other
costs directly related to the food service operation. Charges for
transportation, depreciation, overhead, and similar charges may not be
included. Receipts and other cost records for a representative pay
period must be retained and must be available for inspection for a
period of 3 years.
(ii) Meals provided through a third party. Documentation submitted
must identify each third party that the employer will engage to prepare
meals, describe how the employer will fulfill its obligation to provide
three meals per day to workers through its agreement with the third
party, and document the third party's charge(s) to the employer for the
meals to be provided. Neither the third party's charge(s) to the
employer nor the employer's meal charge to workers may include a
profit, kick back, or other direct or indirect benefit to the employer,
a person affiliated with the employer, or to another person for the
employer's benefit. Receipts and other cost records documenting
payments made to the third party that prepared the meals and meal
charge deductions from employee pay must be retained for the period
provided in Sec. 655.167(b) and must be available for inspection by
the CO and WHD during an investigation.
(2) Effective date and scope of validity of a higher meal charge
approval. The employer may begin charging the higher rate upon receipt
of approval from the CO, unless the CO sets a later effective date in
the decision, and after disclosing to workers any change in the meal
charge or deduction. A favorable decision from the CO is valid only for
the meal provision arrangement documented under paragraph (b)(1) of
this section and the approved higher meal charge amount. If the
approved meal provision arrangement changes, the employer may charge no
more than the maximum permitted under paragraph (a) of this section
until a new petition for a higher meal charge based on the new
arrangement is approved.
(3) Appeal rights. In the event the employer's petition for a
higher meal charge is denied in whole or in part, the employer may
appeal the denial. Appeals will be filed with the Chief ALJ, pursuant
to Sec. 655.171.
Sec. 655.174 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
agricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the
date decided, and the final disposition.
Integrity Measures
Sec. 655.180 Audit.
The CO may conduct audits of applications for which certifications
have been granted.
(a) Discretion. The CO has the sole discretion to choose the
certified applications selected for audit.
(b) Audit letter. Where an application is selected for audit, the
CO will issue an audit letter to the employer and a copy, if
appropriate, to the employer's agent or attorney. The audit letter
will:
(1) Specify the documentation that must be submitted by the
employer;
(2) Specify a date, no more than 30 calendar days from the date the
audit letter is issued, by which the required documentation must be
sent to the CO; and
(3) Advise that failure to fully comply with the audit process may
result in the revocation of the certification or program debarment.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit. If
circumstances warrant, the CO can issue one or more requests for
supplemental information.
(d) Potential referrals. In addition to measures in this subpart,
the CO may decide to provide the audit findings and underlying
documentation to DHS, WHD, or other appropriate enforcement agencies.
The CO may refer any findings that an employer discouraged an eligible
U.S. worker from applying, or failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, to the Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section.
Sec. 655.181 Revocation.
(a) Basis for DOL revocation. The OFLC Administrator may revoke a
temporary agricultural labor certification approved under this subpart,
if the OFLC Administrator finds:
(1) The issuance of the temporary agricultural labor certification
was not justified due to fraud or misrepresentation in the application
process;
(2) The employer substantially violated a material term or
condition of the approved temporary agricultural labor certification,
as defined in Sec. 655.182;
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit (as
discussed in Sec. 655.180), or law enforcement function under 8 U.S.C.
1188, 29 CFR part 501, or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by WHD, or with one or more decisions or orders of the
Secretary or a court order secured by the Secretary under 8 U.S.C.
1188, 29 CFR part 501, or this subpart.
(b) DOL procedures for revocation--(1) Notice of Revocation. If the
OFLC Administrator makes a determination to revoke an employer's
temporary agricultural labor certification, the OFLC Administrator will
send to the employer (and its attorney or agent) a Notice of
Revocation. The Notice will contain a detailed statement of the grounds
for the revocation, and it will inform the employer of its right to
submit rebuttal evidence or to appeal as provided in this paragraph
(b)(1) and in paragraph (b)(3) of this section. If the employer does
not file rebuttal evidence or an appeal within 14 calendar days of the
date of the Notice of Revocation, the Notice is the final agency action
and will take effect immediately at the end of the 14-day period.
(2) Rebuttal. The employer may submit evidence to rebut the grounds
stated in the Notice of Revocation within 14 calendar days of the date
the
Notice is issued. If rebuttal evidence is timely filed by the employer,
the OFLC Administrator will inform the employer of the OFLC
Administrator's final determination on the revocation within 14
calendar days of receiving the rebuttal evidence. If the OFLC
Administrator determines that the certification should be revoked, the
OFLC Administrator will inform the employer of its right to appeal as
provided in this paragraph (b)(2) and in paragraph (b)(3) of this
section. If the employer does not appeal the OFLC Administrator's final
determination within 10 calendar days, it will become the final agency
action.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the OFLC Administrator after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.171.
In such cases, the appeal must be received by the Chief ALJ, and the
OFLC Administrator, within the time periods established in paragraphs
(b)(1) and (2) of this section.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
(5) Decision. If the temporary agricultural labor certification is
revoked, the OFLC Administrator will send a copy of the final agency
action to DHS and the Department of State (DOS).
(c) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked, the
employer is responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.122(h)(1);
(2) The worker's outbound transportation and subsistence expenses,
as if the worker meets the requirements for payment under Sec.
655.122(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.122(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under this subpart.
Sec. 655.182 Debarment.
(a) Debarment of an employer, agent, or attorney. The OFLC
Administrator may debar an employer, agent, or attorney, or any
successor in interest to that employer, agent, or attorney, from
participating in any action under 8 U.S.C. 1188, this subpart, or 29
CFR part 501 subject to the time limits set forth in paragraph (c) of
this section, if the OFLC Administrator finds that the employer, agent,
or attorney substantially violated a material term or condition of the
temporary agricultural labor certification, with respect to H-2A
workers; workers in corresponding employment; or U.S. workers
improperly rejected for employment, or improperly laid off or
displaced.
(b) Effect on future applications. No application for H-2A workers
may be filed by a debarred employer, or by any successor in interest to
a debarred employer, or by an employer represented by a debarred agent
or attorney, or by any successor in interest to any debarred agent or
attorney, subject to the term limits set forth in paragraph (c) of this
section. If such an application is filed, it will be denied without
review.
(c) Statute of limitations and period of debarment. (1) The OFLC
Administrator must issue any Notice of Debarment not later than 2 years
after the occurrence of the violation.
(2) No employer, agent, or attorney may be debarred under this
subpart for more than 3 years from the date of the final agency
decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this
subpart;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188
or 29 CFR part 501, or an audit under Sec. 655.180;
(vii) Employing an H-2A worker outside the area of intended
employment, in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of Sec. 655.135(j) or (k);
(ix) A violation of any of the provisions listed in 29 CFR
501.4(a); or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected;
(2) The employer's failure to pay a necessary certification fee in
a timely manner;
(3) The H-2ALC's failure to submit an original surety bond meeting
the requirements of Sec. 655.132(c) within 30 days of the date the
temporary agricultural labor certification was issued or failure to
submit additional surety within 30 days of a finding under 20 CFR
501.9(a) that the face value of the bond is insufficient;
(4) Fraud involving the Application for Temporary Employment
Certification; or
(5) A material misrepresentation of fact during the application
process.
(e) Determining whether a violation is substantial. In determining
whether a violation is so substantial as to merit debarment, the
factors the OFLC Administrator may consider include, but are not
limited to, the following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part
501, or this subpart;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR
part 501, and this subpart;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188; and
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(f) Debarment procedure--(1) Notice of Debarment. If the OFLC
Administrator makes a determination to debar an employer, agent, or
attorney, the OFLC Administrator will send the party a Notice of
Debarment. The Notice will state the reason for the debarment finding,
including a detailed explanation of the grounds for and the duration of
the debarment, and it will inform the party subject to the Notice of
its right to submit rebuttal evidence or to request a debarment
hearing. If the
party does not file rebuttal evidence or request a hearing within 30
calendar days of the date of the Notice of Debarment, the Notice will
be the final agency action and the debarment will take effect at the
end of the 30-day period.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the Notice
within 30 calendar days of the date the Notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a final
determination on the debarment within 30 calendar days of receiving the
rebuttal evidence. If the OFLC Administrator determines that the party
should be debarred, the OFLC Administrator will inform the party of its
right to request a debarment hearing according to the procedures of
paragraph (f)(3) of this section. The party must request a hearing
within 30 calendar days after the date of the OFLC Administrator's
final determination, or the OFLC Administrator's determination will be
the final agency action and the debarment will take effect at the end
of the 30-calendar-day period.
(3) Hearing. The recipient of a Notice of Debarment may request a
debarment hearing within 30 calendar days of the date of a Notice of
Debarment or the date of a final determination of the OFLC
Administrator after review of rebuttal evidence submitted pursuant to
paragraph (f)(2) of this section. To obtain a debarment hearing, the
debarred party must, within 30 calendar days of the date of the Notice
or the final determination, file a written request to the Chief
Administrative Law Judge, United States Department of Labor, 800 K
Street NW, Suite 400-N, Washington, DC 20001-8002, and simultaneously
serve a copy to the OFLC Administrator. The debarment will take effect
30 calendar days from the date the Notice of Debarment or final
determination is issued, unless a request for review is properly filed
within 30 calendar days from the issuance of the Notice of Debarment or
final determination. The timely filing of a request for a hearing stays
the debarment pending the outcome of the hearing. Within 10 calendar
days of receipt of the request for a hearing, the OFLC Administrator
will send a certified copy of the ETA case file to the Chief ALJ by
means normally assuring next day delivery. The Chief ALJ will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the OFLC Administrator's determination. The ALJ will prepare the
decision within 60 calendar days after completion of the hearing and
closing of the record. The ALJ's decision will be provided immediately
to the parties to the debarment hearing by means normally assuring next
day delivery. The ALJ's decision is the final agency action, unless
either party, within 30 calendar days of the ALJ's decision, seeks
review of the decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. The ARB will decide whether to
accept the petition within 30 calendar days of receipt. If the ARB
declines to accept the petition, or if the ARB does not issue a notice
accepting a petition within 30 calendar days after the receipt of a
timely filing of the petition, the decision of the ALJ will be deemed
the final agency action. If a petition for review is accepted, the
decision of the ALJ will be stayed unless and until the ARB issues an
order affirming the decision. The ARB must serve notice of its decision
to accept or not to accept the petition upon the ALJ and upon all
parties to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review such decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which such presentation must be submitted.
(6) ARB decision. The ARB's decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ. If the ARB fails to issue a decision within 90
calendar days from the notice granting the petition, the ALJ's decision
will be the final agency decision.
(g) Concurrent debarment jurisdiction. OFLC and WHD have concurrent
jurisdiction to impose a debarment remedy under this section or under
29 CFR 501.20. When considering debarment, OFLC and WHD may inform one
another and may coordinate their activities. A specific violation for
which debarment is imposed will be cited in a single debarment
proceeding. Copies of final debarment decisions will be forwarded to
DHS promptly.
(h) Debarment of associations, employer-members of associations,
and joint employers. If the OFLC Administrator determines that an
individual employer-member of an agricultural association, or a joint
employer under Sec. 655.131(b), has committed a substantial violation,
the debarment determination will apply only to that employer-member
unless the OFLC Administrator determines that the agricultural
association or another agricultural association member or joint
employer under Sec. 655.131(b), participated in the violation, in
which case the debarment will be invoked against the agricultural
association or other complicit agricultural association member(s) or
joint employer(s) under Sec. 655.131(b), as well.
(i) Debarment involving agricultural associations acting as joint
employers. If the OFLC Administrator determines that an agricultural
association acting as a joint employer with its employer-members has
committed a substantial violation, the debarment determination will
apply only to the agricultural association, and will not be applied to
any individual employer-member of the agricultural association.
However, if the OFLC Administrator determines that the employer-member
participated in, had knowledge of, or had reason to know of the
violation, the debarment may be invoked against the complicit
agricultural association member as well. An agricultural association
debarred from the H-2A temporary labor certification program will not
be permitted to continue to file as a joint employer with its employer-
members during the period of the debarment.
(j) Debarment involving agricultural associations acting as sole
employers. If the OFLC Administrator determines that an agricultural
association acting as a sole employer has committed a substantial
violation, the debarment determination will apply only to the
agricultural association and any successor in interest to the debarred
agricultural association.
Sec. 655.183 Less than substantial violations.
(a) Requirement of special procedures. If the OFLC Administrator
determines that a less than substantial violation has occurred but has
reason to believe that past actions on the part of the employer (or
agent or attorney) may have had and may continue to have a chilling or
otherwise negative effect on the recruitment, employment, and retention
of U.S. workers, the OFLC Administrator may require the employer to
conform to special procedures before
and after the temporary agricultural labor certification determination.
These special procedures may include special on-site positive
recruitment and streamlined interviewing and referral techniques. The
special procedures are designed to enhance U.S. worker recruitment and
retention in the next year as a condition for receiving a temporary
agricultural labor certification. Such requirements will be reasonable;
will not require the employer to offer better wages, working
conditions, and benefits than those specified in Sec. 655.122; and
will be no more than deemed necessary to assure employer compliance
with the test of U.S. worker availability and adverse effect criteria
of this subpart.
(b) Notification of required special procedures. The OFLC
Administrator will notify the employer (or agent or attorney) in
writing of the special procedures that will be required in the coming
year. The notification will state the reasons for the imposition of the
requirements, state that the employer's agreement to accept the
conditions will constitute inclusion of them as bona fide conditions
and terms of a temporary agricultural labor certification, and will
offer the employer an opportunity to request an administrative review
or a de novo hearing before an ALJ. If an administrative review or de
novo hearing is requested, the procedures prescribed in Sec. 655.171
will apply.
(c) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (a) of this section,
the OFLC Administrator will send a written notice to the employer,
stating that the employer's otherwise affirmative H-2A certification
determination will be reduced by 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year. Notice of such a reduction in
the number of workers requested will be conveyed to the employer by the
OFLC Administrator in a written temporary agricultural labor
certification determination. The notice will offer the employer an
opportunity to request administrative review or a de novo hearing
before an ALJ. If administrative review or a de novo hearing is
requested, the procedures prescribed in Sec. 655.171 will apply,
provided that if the ALJ affirms the OFLC Administrator's determination
that the employer has failed to comply with special procedures required
by paragraph (a) of this section, the reduction in the number of
workers requested will be 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year.
Sec. 655.184 Applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Employment Certification, the CO may refer the matter to DHS and the
Department's Office of the Inspector General for investigation.
(b) Sanctions. If WHD, a court, or DHS determines that there was
fraud or willful misrepresentation involving an Application for
Temporary Employment Certification and certification has been granted,
a finding under this paragraph (b) will be cause to revoke the
certification. The finding of fraud or willful misrepresentation may
also constitute a debarrable violation under Sec. 655.182.
Sec. 655.185 Job service complaint system; enforcement of work
contracts.
(a) Filing with DOL. Complaints arising under this subpart must be
filed through the Job Service Complaint System, as described in 20 CFR
part 658, subpart E. Complaints involving allegations of fraud or
misrepresentation must be referred by the SWA to the CO for appropriate
handling and resolution. Complaints that involve work contracts must be
referred by the SWA to WHD for appropriate handling and resolution, as
described in 29 CFR part 501. As part of this process, WHD may report
the results of its investigation to the OFLC Administrator for
consideration of employer penalties or such other action as may be
appropriate.
(b) Filing with the Department of Justice. Complaints alleging that
an employer discouraged an eligible U.S. worker from applying, failed
to hire, discharged, or otherwise discriminated against an eligible
U.S. worker, or discovered violations involving the same, will be
referred to the U.S. Department of Justice, Civil Rights Division,
Immigrant and Employee Rights Section, in addition to any activity,
investigation, and/or enforcement action taken by ETA or a SWA.
Likewise, if the Immigrant and Employee Rights Section becomes aware of
a violation of the regulations in this subpart, it may provide such
information to the appropriate SWA and the CO.
Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Occupations
Sec. 655.200 Scope and purpose of herding and range livestock
regulations in this section and Sec. Sec. 655.201 through 655.235.
(a) Purpose. The purpose of this section and Sec. Sec. 655.201
through 655.235 is to establish certain procedures for employers who
apply to the Department to obtain labor certifications to hire
temporary agricultural foreign workers to perform herding or production
of livestock on the range, as defined in Sec. 655.201. Unless
otherwise specified in this section and Sec. Sec. 655.201 through
655.235, employers whose job opportunities meet the qualifying criteria
under this section and Sec. Sec. 655.201 through 655.235 must fully
comply with all of the requirements of Sec. Sec. 655.100 through
655.185; part 653, subparts B and F, of this chapter; and part 654 of
this chapter.
(b) Jobs subject to this section and Sec. Sec. 655.201 through
655.235. The procedures in this section and Sec. Sec. 655.201 through
655.235 apply to job opportunities with the following unique
characteristics:
(1) The work activities involve the herding or production of
livestock (which includes work that is closely and directly related to
herding and/or the production of livestock), as defined under Sec.
655.201;
(2) The work is performed on the range for the majority (meaning
more than 50 percent) of the workdays in the work contract period. Any
additional work performed at a place other than the range must
constitute the production of livestock (which includes work that is
closely and directly related to herding and/or the production of
livestock); and
(3) The work activities generally require the workers to be on call
24 hours per day, 7 days a week.
Sec. 655.201 Definition of herding and range livestock terms.
The following are terms that are not defined in Sec. Sec. 655.100
through 655.185 and are specific to applications for labor
certifications involving the herding or production of livestock on the
range.
Herding. Activities associated with the caring, controlling,
feeding, gathering, moving, tending, and sorting of livestock on the
range.
Livestock. An animal species or species group such as sheep,
cattle, goats, horses, or other domestic hooved animals. In the context
of Sec. Sec. 655.200 through 655.235, livestock refers to those
species raised on the range.
Production of livestock. The care or husbandry of livestock
throughout one or more seasons during the year, including guarding and
protecting livestock from predatory animals and poisonous plants;
feeding, fattening, and watering livestock; examining livestock to
detect diseases, illnesses, or other injuries; administering medical
care to sick or injured livestock; applying vaccinations and spraying
insecticides on the range; and assisting with the breeding, birthing,
raising, weaning, castration, branding, and general care of livestock.
This term also includes duties performed off the range that are closely
and directly related to herding and/or the production of livestock. The
following are non-exclusive examples of ranch work that is closely and
directly related: repairing fences used to contain the herd; assembling
lambing jugs; cleaning out lambing jugs; feeding and caring for the
dogs that the workers use on the range to assist with herding or
guarding the flock; feeding and caring for the horses that the workers
use on the range to help with herding or to move the sheep camps and
supplies; and loading animals into livestock trucks for movement to the
range or to market. The following are examples of ranch work that is
not closely and directly related: working at feedlots; planting,
irrigating and harvesting crops; operating or repairing heavy
equipment; constructing wells or dams; digging irrigation ditches;
applying weed control; cutting trees or chopping wood; constructing or
repairing the bunkhouse or other ranch buildings; and delivering
supplies from the ranch to the herders on the range.
Range. The range is any area located away from the ranch
headquarters used by the employer. The following factors are indicative
of the range: it involves land that is uncultivated; it involves wide
expanses of land, such as thousands of acres; it is located in a
remote, isolated area; and typically range housing is required so that
the herder can be in constant attendance to the herd. No one factor is
controlling, and the totality of the circumstances is considered in
determining what should be considered range. The range does not include
feedlots, corrals, or any area where the stock involved would be near
ranch headquarters. Ranch headquarters, which is a place where the
business of the ranch occurs and is often where the owner resides, is
limited and does not embrace large acreage; it only includes the
ranchhouse, barns, sheds, pen, bunkhouse, cookhouse, and other
buildings in the vicinity. The range also does not include any area
where a herder is not required to be available constantly to attend to
the livestock and to perform tasks, including but not limited to,
ensuring the livestock do not stray, protecting them from predators,
and monitoring their health.
Range housing. Range housing is housing located on the range that
meets the standards articulated under Sec. 655.235.
Sec. 655.205 Herding and range livestock job orders.
An employer whose job opportunity has been determined to qualify
for the procedures in Sec. Sec. 655.200 through 655.235 is not
required to comply with the job order filing timeframe requirements in
Sec. 655.121(a) and (b) or the job order review process in Sec.
655.121(e) and (f). Rather, the employer must submit the job order
along with a completed Application for Temporary Employment
Certification, as required in Sec. 655.215, to the designated NPC for
the NPC's review.
Sec. 655.210 Contents of herding and range livestock job orders.
(a) Content of job offers. Unless otherwise specified in Sec. Sec.
655.200 through 655.235, the employer must satisfy the requirements for
job orders established under Sec. 655.121 and for the content of job
offers established under part 653, subpart F, of this chapter and Sec.
655.122.
(b) Job qualifications and requirements. The job offer must include
a statement that the workers are on call for up to 24 hours per day, 7
days per week and that the workers spend the majority (meaning more
than 50 percent) of the workdays during the contract period in the
herding or production of livestock on the range. Duties may include
activities performed off the range only if such duties constitute the
production of livestock (which includes work that is closely and
directly related to herding and/or the production of livestock). All
such duties must be specifically disclosed on the job order. The job
offer may also specify that applicants must possess up to 6 months of
experience in similar occupations involving the herding or production
of livestock on the range and require reference(s) for the employer to
verify applicant experience. An employer may specify other appropriate
job qualifications and requirements for its job opportunity. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's H-2A workers engaged in herding
or the production of livestock on the range. Any such requirements must
be applied equally to both U.S. and foreign workers. Each job
qualification and requirement listed in the job offer must be bona
fide, and the CO may require the employer to submit documentation to
substantiate the appropriateness of any other job qualifications and
requirements specified in the job offer.
(c) Range housing. The employer must specify in the job order that
range housing will be provided. The range housing must meet the
requirements set forth in Sec. 655.235.
(d) Employer-provided items. (1) The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required by law, by the employer, or by the nature of the
work to perform the duties assigned in the job offer safely and
effectively. The employer must specify in the job order which items it
will provide to the worker.
(2) Because of the unique nature of the herding or production of
livestock on the range, this equipment must include effective means of
communicating with persons capable of responding to the worker's needs
in case of an emergency including, but not limited to, satellite
phones, cell phones, wireless devices, radio transmitters, or other
types of electronic communication systems. The employer must specify in
the job order:
(i) The type(s) of electronic communication device(s) and that such
device(s) will be provided without charge or deposit charge to the
worker during the entire period of employment; and
(ii) If there are periods of time when the workers are stationed in
locations where electronic communication devices may not operate
effectively, the employer must specify in the job order, the means and
frequency with which the employer plans to make contact with the
workers to monitor the worker's well-being. This contact must include
either arrangements for the workers to be located, on a regular basis,
in geographic areas where the electronic communication devices operate
effectively, or arrangements for regular, pre-scheduled, in-person
visits between the workers and the employer, which may include visits
between the workers and other persons designated by the employer to
resupply the workers' camp.
(e) Meals. The employer must specify in the job offer and provide
to the worker, without charge or deposit charge:
(1) Either three sufficient meals a day, or free and convenient
cooking facilities and adequate provision of food to
enable the worker to prepare their own meals. To be sufficient or
adequate, the meals or food provided must include a daily source of
protein, vitamins, and minerals; and
(2) Adequate potable water, or water that can be easily rendered
potable and the means to do so. Standards governing the provision of
water to range workers are also addressed in Sec. 655.235(e).
(f) Hours and earnings statements. (1) The employer must keep
accurate and adequate records with respect to the worker's earnings and
furnish to the worker on or before each payday a statement of earnings.
The employer is exempt from recording the hours actually worked each
day, the time the worker begins and ends each workday, as well as the
nature and amount of work performed, but all other regulatory
requirements in Sec. 655.122(j) and (k) apply.
(2) The employer must keep daily records indicating whether the
site of the employee's work was on the range or off the range. If the
employer prorates a worker's wage pursuant to paragraph (g)(2) of this
section because of the worker's voluntary absence for personal reasons,
it must also keep a record of the reason for the worker's absence.
(g) Rates of pay. The employer must pay the worker at least the
monthly AEWR, as specified in Sec. 655.211, the agreed-upon collective
bargaining wage, or the applicable minimum wage imposed by Federal or
State law or judicial action, in effect at the time work is performed,
whichever is highest, for every month of the job order period or
portion thereof.
(1) The offered wage shall not be based on commissions, bonuses, or
other incentives, unless the employer guarantees a wage that equals or
exceeds the monthly AEWR, the agreed-upon collective bargaining wage,
or the applicable minimum wage imposed by Federal or State law or
judicial action, or any agreed-upon collective bargaining rate,
whichever is highest, and must be paid to each worker free and clear
without any unauthorized deductions.
(2) The employer may prorate the wage for the initial and final pay
periods of the job order period if its pay period does not match the
beginning or ending dates of the job order. The employer also may
prorate the wage if a worker is voluntarily unavailable to work for
personal reasons.
(h) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly. Employers must pay wages when due.
Sec. 655.211 Herding and range livestock wage rate.
(a) Compliance with rates of pay. (1) To comply with its obligation
under Sec. 655.210(g), an employer must offer, advertise in its
recruitment, and pay each worker employed under Sec. Sec. 655.200
through 655.235 a wage that is at least the highest of the monthly AEWR
established under this section, the agreed-upon collective bargaining
wage, or the applicable minimum wage imposed by Federal or State law or
judicial action.
(2) If the monthly AEWR established under this section is adjusted
during a work contract, and is higher than both the agreed-upon
collective bargaining wage and the applicable minimum wage imposed by
Federal or State law or judicial action in effect at the time the work
is performed, the employer must pay at least that adjusted monthly AEWR
upon the effective date of the updated monthly AEWR published by the
Department in the Federal Register.
(b) Publication of the monthly AEWR. The OFLC Administrator will
publish, at least once in each calendar year, on a date to be
determined by the OFLC Administrator, an update to the monthly AEWR as
a document in the Federal Register.
(c) Monthly AEWR rate. (1) The monthly AEWR shall be $7.25
multiplied by 48 hours, and then multiplied by 4.333 weeks per month;
and
(2) Beginning for calendar year 2017, the monthly AEWR shall be
adjusted annually based on the Employment Cost Index (ECI) for wages
and salaries published by the Bureau of Labor Statistics (BLS) for the
preceding October-October period.
(d) Transition rates. (1) For the period from November 16, 2015,
through calendar year 2016, the Department shall set the monthly AEWR
at 80 percent of the result of the formula in paragraph (c) of this
section.
(2) For calendar year 2017, the Department shall set the monthly
AEWR at 90 percent of the result of the formula in paragraph (c) of
this section.
(3) For calendar year 2018 and beyond, the Department shall set the
monthly AEWR at 100 percent of the result of the formula in paragraph
(c) of this section.
Sec. 655.215 Procedures for filing herding and range livestock
Applications for Temporary Employment Certification.
(a) Compliance with Sec. Sec. 655.130 through 655.132. Unless
otherwise specified in Sec. Sec. 655.200 through 655.235, the employer
must satisfy the requirements for filing an Application for Temporary
Employment Certification with the NPC designated by the OFLC
Administrator as required under Sec. Sec. 655.130 through 655.132.
(b) What to file. An employer must file a completed Application for
Temporary Employment Certification and job order.
(1) The Application for Temporary Employment Certification and job
order may cover multiple areas of intended employment in one or more
contiguous States.
(2) An agricultural association filing as a joint employer may
submit a single job order and master Application for Temporary
Employment Certification on behalf of its employer-members located in
more than two contiguous States with different first dates of need.
Unless modifications to a sheep or goat herding or production of
livestock job order are required by the CO or requested by the
employer, pursuant to Sec. 655.121(h), the agricultural association is
not required to re-submit the job order during the calendar year with
its Application for Temporary Employment Certification.
Sec. 655.220 Processing herding and range livestock Applications for
Temporary Employment Certification.
(a) NPC review. Unless otherwise specified in Sec. Sec. 655.200
through 655.235, the CO will review and process the Application for
Temporary Employment Certification and job order in accordance with the
requirements outlined in Sec. Sec. 655.140 through 655.145, and will
work with the employer to address any deficiencies in the job order in
a manner consistent with Sec. Sec. 655.140 through 655.141.
(b) Notice of acceptance. Once the job order is determined to meet
all regulatory requirements, the NPC will issue a NOA consistent with
Sec. 655.143(b), provide notice to the employer authorizing
conditional access to the interstate clearance system, and transmit an
electronic copy of the approved job order to each SWA with jurisdiction
over the anticipated place(s) of employment. The CO will direct the SWA
to place the job order promptly in clearance and commence recruitment
of U.S. workers. Where an agricultural association files as a joint
employer and submits a single job order on behalf of its employer-
members, the CO will transmit a copy of the job order to the SWA having
jurisdiction over the location of the agricultural association, those
SWAs having jurisdiction over other States where the work will take
place, and to the SWAs in all States designated under Sec. 655.154(d),
directing each SWA to place the job order in
intrastate clearance and commence recruitment of U.S. workers.
(c) Electronic job registry. Under Sec. 655.144(b), where a single
job order is approved for an agricultural association filing as a joint
employer on behalf of its employer-members with different first dates
of need, the Department will keep the job order posted on the OFLC
electronic job registry until the end of the recruitment period, as set
forth in Sec. 655.135(d), has elapsed for all employer-members
identified on the job order.
Sec. 655.225 Post-acceptance requirements for herding and range
livestock.
(a) Unless otherwise specified in this section, the requirements
for recruiting U.S. workers by the employer and SWA must be satisfied,
as specified in Sec. Sec. 655.150 through 655.158.
(b) Pursuant to Sec. 655.150(b), where a single job order is
approved for an agricultural association filing as a joint employer on
behalf of its employer-members with different first dates of need, each
of the SWAs to which the job order was transmitted by the CO or the SWA
having jurisdiction over the location of the agricultural association
must keep the job order on its active file the end of the recruitment
period, as set forth in Sec. 655.135(d), has elapsed for all employer-
members identified on the job order, and must refer to the agricultural
association each qualified U.S. worker who applies (or on whose behalf
an application is made) for the job opportunity.
(c) Any eligible U.S. worker who applies (or on whose behalf an
application is made) for the job opportunity and is hired will be
placed at the location nearest to them absent a request for a different
location by the U.S. worker. Employers must make reasonable efforts to
accommodate such placement requests by the U.S. worker.
(d) An agricultural association that fulfills the recruitment
requirements for its employer-members is required to maintain a written
recruitment report containing the information required by Sec. 655.156
for each individual employer-member identified in the application or
job order, including any approved modifications.
Sec. 655.230 Range housing.
(a) Housing for work performed on the range must meet the minimum
standards contained in Sec. Sec. 655.235 and 655.122(d)(2).
(b) The SWA with jurisdiction over the location of the range
housing must inspect and certify that such housing used on the range is
sufficient to accommodate the number of certified workers and meets all
applicable standards contained in Sec. 655.235. The SWA must conduct a
housing inspection no less frequently than once every three calendar
years after the initial inspection and provide documentation to the
employer certifying the housing for a period lasting no more than 36
months. If the SWA determines that an employer's housing cannot be
inspected within a 3-year timeframe or, when it is inspected, the
housing does not meet all the applicable standards in Sec. 655.235,
the CO may deny the H-2A application in full or in part or require
additional inspections, to be carried out by the SWA, in order to
satisfy the regulatory requirement.
(c)(1) The employer may self-certify its compliance with the
standards contained in Sec. 655.235 only when the employer has
received a certification from the SWA for the range housing it seeks to
use within the past 36 months.
(2) To self-certify the range housing, the employer must submit a
copy of the valid SWA housing certification and a written statement,
signed and dated by the employer, to the SWA and the CO assuring that
the housing is available, sufficient to accommodate the number of
workers being requested for temporary agricultural labor certification,
and meets all the applicable standards for range housing contained in
Sec. 655.235.
(d) The use of range housing at a location other than the range,
where fixed-site employer-provided housing would otherwise be required,
is permissible only when the worker occupying the housing is performing
work that constitutes the production of livestock (which includes work
that is closely and directly related to herding and/or the production
of livestock). In such a situation, workers must be granted access to
facilities, including but not limited to toilets and showers with hot
and cold water under pressure, as well as cooking and cleaning
facilities, that would satisfy the requirements contained in Sec.
655.122(d)(1)(i). When such work does not constitute the production of
livestock, workers must be housed in housing that meets all the
requirements of Sec. 655.122(d).
Sec. 655.235 Standards for range housing.
An employer employing workers under this section and Sec. Sec.
655.200 through 655.230 may use a mobile unit, camper, or other similar
mobile housing vehicle, tents, and remotely located stationary
structures along herding trails, which meet the following standards:
(a) Housing site. Range housing sites must be well drained and free
from depressions where water may stagnate.
(b) Water supply. (1) An adequate and convenient supply of water
that meets the standards of the State or local health authority must be
provided.
(2) The employer must provide each worker at least 4.5 gallons of
potable water, per day, for drinking and cooking, delivered on a
regular basis, so that the workers will have at least this amount
available for their use until this supply is next replenished.
Employers must also provide an additional amount of water sufficient to
meet the laundry and bathing needs of each worker. This additional
water may be non-potable, and an employer may require a worker to rely
on natural sources of water for laundry and bathing needs if these
sources are available and contain water that is clean and safe for
these purposes. If an employer relies on alternate water sources to
meet any of the workers' needs, it must take precautionary measures to
protect the worker's health where these sources are also used to water
the herd, dogs, or horses, to prevent contamination of the sources if
they collect runoff from areas where these animals excrete.
(3) The water provided for use by the workers may not be used to
water dogs, horses, or the herd.
(4) In situations where workers are located in areas that are not
accessible by motorized vehicle, an employer may request a variance
from the requirement that it deliver potable water to workers, provided
the following conditions are satisfied:
(i) It seeks the variance at the time it submits its Application
for Temporary Employment Certification;
(ii) It attests that it has identified natural sources of water
that are potable or may be easily rendered potable in the area in which
the housing will be located, and that these sources will remain
available during the period the worker is at that location;
(iii) It attests that it shall provide each worker an effective
means to test whether the water is potable and, if not potable, the
means to easily render it potable; and
(iv) The CO approves the variance.
(5) Individual drinking cups must be provided.
(6) Containers appropriate for storing and using potable water must
be provided and, in locations subject to freezing temperatures,
containers must be small enough to allow storage in the housing unit to
prevent freezing.
(c) Excreta and liquid waste disposal. (1) Facilities, including
shovels, must be provided and maintained for effective
disposal of excreta and liquid waste in accordance with the
requirements of the State health authority or involved Federal agency;
and
(2) If pits are used for disposal by burying of excreta and liquid
waste, they must be kept fly-tight when not filled in completely after
each use. The maintenance of disposal pits must be in accordance with
State and local health and sanitation requirements.
(d) Housing structure. (1) Housing must be structurally sound, in
good repair, in a sanitary condition and must provide shelter against
the elements to occupants;
(2) Housing, other than tents, must have flooring constructed of
rigid materials easy to clean and so located as to prevent ground and
surface water from entering;
(3) Each housing unit must have at least one window that can be
opened or skylight opening directly to the outdoors; and
(4) Tents appropriate to weather conditions may be used only where
the terrain and/or land use regulations do not permit the use of other
more substantial housing.
(e) Heating. (1) Where the climate in which the housing will be
used is such that the safety and health of a worker requires heated
living quarters, all such quarters must have properly installed
operable heating equipment that supplies adequate heat. Where the
climate in which the housing will be used is mild and the low
temperature for any day in which the housing will be used is not
reasonably expected to drop below 50 degrees Fahrenheit, no separate
heating equipment is required as long as proper protective clothing and
bedding are made available, free of charge or deposit charge, to the
workers.
(2) Any stoves or other sources of heat using combustible fuel must
be installed and vented in such a manner as to prevent fire hazards and
a dangerous concentration of gases. If a solid or liquid fuel stove is
used in a room with wooden or other combustible flooring, there must be
a concrete slab, insulated metal sheet, or other fireproof material on
the floor under each stove, extending at least 18 inches beyond the
perimeter of the base of the stove.
(3) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or stove pipe must be made of fireproof material. A vented metal
collar must be installed around a stovepipe or vent passing through a
wall, ceiling, floor, or roof.
(4) When a heating system has automatic controls, the controls must
be of the type that cuts off the fuel supply when the flame fails or is
interrupted or whenever a predetermined safe temperature or pressure is
exceeded.
(5) A heater may be used in a tent if the heater is approved by a
testing service and if the tent is fireproof.
(f) Lighting. (1) In areas where it is not feasible to provide
electrical service to range housing units, including tents, lanterns
must be provided (kerosene wick lights meet the definition of lantern);
and
(2) Lanterns, where used, must be provided in a minimum ratio of
one per occupant of each unit, including tents.
(g) Bathing, laundry, and hand washing. Bathing, laundry, and hand
washing facilities must be provided when it is not feasible to provide
hot and cold water under pressure.
(h) Food storage. When mechanical refrigeration of food is not
feasible, the worker must be provided with another means of keeping
food fresh and preventing spoilage, such as a butane or propane gas
refrigerator. Other proven methods of safeguarding fresh foods, such as
dehydrating or salting, are acceptable.
(i) Cooking and eating facilities. (1) When workers or their
families are permitted or required to cook in their individual unit, a
space must be provided with adequate lighting and ventilation; and
(2) Wall surfaces next to all food preparation and cooking areas
must be of nonabsorbent, easy to clean material. Wall surfaces next to
cooking areas must be made of fire-resistant material.
(j) Garbage and other refuse. (1) Durable, fly-tight, clean
containers must be provided to each housing unit, including tents, for
storing garbage and other refuse; and
(2) Provision must be made for collecting or burying refuse, which
includes garbage, at least twice a week or more often if necessary,
except where the terrain in which the housing is located cannot be
accessed by motor vehicle and the refuse cannot be buried, in which
case the employer must provide appropriate receptacles for storing the
refuse and for removing the trash when the employer next transports
supplies to the location.
(k) Insect and rodent control. Appropriate materials, including
sprays, and sealed containers for storing food, must be provided to aid
housing occupants in combating insects, rodents, and other vermin.
(l) Sleeping facilities. A separate comfortable and clean bed, cot,
or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement, unless a variance is requested from and
granted by the CO. When filing an application for certification and
only where it is demonstrated to the CO that it is impractical to
provide a comfortable and clean bed, cot, or bunk, with a clean
mattress, for each range worker, the employer may request a variance
from this requirement to allow for a second worker to join the range
operation. Such a variance must be used infrequently, and the period of
the variance will be temporary (i.e., the variance shall be for no more
than 3 consecutive days). Should the CO grant the variance, the
employer must supply a sleeping bag or bed roll for the second occupant
free of charge or deposit charge.
(m) Fire, safety, and first aid. (1) All units in which people
sleep or eat must be constructed and maintained according to applicable
State or local fire and safety law.
(2) No flammable or volatile liquid or materials may be stored in
or next to rooms used for living purposes, except for those needed for
current household use.
(3) Housing units for range use must have a second means of escape
through which the worker can exit the unit without difficulty.
(4) Tents are not required to have a second means of escape, except
when large tents with walls of rigid material are used.
(5) Adequate, accessible fire extinguishers in good working
condition and first aid kits must be provided in the range housing.
Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, Custom Combining, and
Reforestation Occupations
Sec. 655.300 Scope and purpose.
(a) Purpose. The purpose of this section and Sec. Sec. 655.301
through 655.304 is to establish certain procedures for employers who
apply to the DOL to obtain labor certifications to hire temporary
agricultural foreign workers to perform animal shearing, commercial
beekeeping, and custom combining, as defined in this subpart. Unless
otherwise specified in this section and Sec. Sec. 655.301 through
655.304, employers whose job opportunities meet the qualifying criteria
under this section and Sec. Sec. 655.301 through 655.304 must fully
comply with all of the requirements of Sec. Sec. 655.100 through
655.185; part 653, subparts B and F, of this chapter; and part 654 of
this chapter.
(b) Jobs subject to this section and Sec. Sec. 655.301 through
655.304. The procedures in this section and Sec. Sec. 655.301 through
655.304 apply to job
opportunities for animal shearing, commercial beekeeping, and custom
combining, as defined under Sec. 655.301, where workers are required
to perform agricultural work on a scheduled itinerary covering multiple
areas of intended employment.
Sec. 655.301 Definition of terms.
The following terms are specific to applications for labor
certifications involving animal shearing, commercial beekeeping, and
custom combining.
Animal shearing. Activities associated with the shearing and
crutching of sheep, goats, or other animals producing wool or fleece,
including gathering, moving, and sorting animals into shearing yards,
stations, or pens; placing animals into position, whether loose, tied,
or otherwise immobilized, prior to shearing; selecting and using
suitable handheld or power-driven equipment and tools for shearing;
shearing animals with care according to industry standards; marking,
sewing, or disinfecting any nicks and cuts on animals due to shearing;
cleaning and washing animals after shearing is complete; gathering,
storing, loading, and delivering wool or fleece to storage yards,
trailers or other containers; and maintaining, oiling, sharpening, and
repairing equipment and other tools used for shearing. Transporting
equipment and other tools used for shearing qualifies as an activity
associated with animal shearing for the purposes of this definition
only where such activities are performed by workers who are employed by
the same employer as the animal shearing crew and who travel and work
with the animal shearing crew. Wool or fleece grading, which involves
examining, sorting, and placing unprocessed wool or fleece into
containers according to government or industry standards, qualifies as
activity associated with animal shearing for the purposes of this
definition only where such activity is performed by workers who are
employed by the same employer as the animal shearing crew and who
travel and work with the animal shearing crew.
Commercial beekeeping. Activities associated with the care or
husbandry of bee colonies for producing and collecting honey, wax,
pollen, and other products for commercial sale or providing pollination
services to agricultural producers, including assembling, maintaining,
and repairing hives, frames, or boxes; inspecting and monitoring
colonies to detect diseases, illnesses, or other health problems;
feeding and medicating bees to maintain the health of the colonies;
installing, raising, and moving queen bees; splitting or dividing
colonies, when necessary, and replacing combs; preparing, loading,
transporting, and unloading colonies and equipment; forcing bees from
hives, inserting honeycomb of bees into hives, or inducing swarming of
bees into hives of prepared honeycomb frames; uncapping, extracting,
refining, harvesting, and packaging honey, beeswax, or other products
for commercial sale; cultivating bees to produce bee colonies and queen
bees for sale; and maintaining and repairing equipment and other tools
used to work with bee colonies.
Custom combining. Activities for agricultural producers consisting
of: operating self-propelled combine equipment (i.e., equipment that
reaps or harvests, threshes, and swath or winnow the crop); performing
manual or mechanical adjustments to combine equipment, including
cutters, blowers and conveyers; performing safety checks on self-
propelled combine equipment; and maintaining and repairing equipment
and other tools for performing swathing or combining work; and, where
performed by workers employed by the same employer as the custom
combining crew and who work and travel with the custom combining crew:
transporting harvested crops to elevators, silos, or other storage
areas, and transporting combine equipment and other tools used for
custom combining work from one field to another. Neither the planting
and cultivation of crops and related activities, nor component parts of
custom combining not performed by the harvesting entity (e.g., grain
cleaning), are considered custom combining for the purposes of this
definition.
Sec. 655.302 Contents of job orders.
(a) Content of job offers. Unless otherwise specified in Sec. Sec.
655.300 through 655.304, the employer must satisfy the requirements for
job orders established under Sec. 655.121 and for the content of job
offers established under part 653, subpart F, of this chapter and Sec.
655.122.
(b) Job qualifications and requirements. (1) For job opportunities
involving animal shearing, the job offer may specify that applicants
must possess up to 6 months of experience in similar occupations and
require reference(s) for the employer to verify applicant experience.
The job offer may also specify that applicants must possess experience
with an industry shearing method or pattern, must be willing to join
the employer at the time the job opportunity is available and at the
place the employer is located, and must be available to complete the
scheduled itinerary under the job order. U.S. applicants whose
experience is based on a similar or related industry shearing method or
pattern must be afforded a break-in period of no less than 5 working
days to adapt to the employer's preferred shearing method or pattern.
(2) For job opportunities involving commercial beekeeping, the job
offer may specify that applicants must possess up to 3 months of
experience in similar occupations and require reference(s) for the
employer to verify applicant experience. The job offer may also specify
that applicants must not have bee, pollen, or honey-related allergies,
must possess a valid commercial U.S. driver's license or be able to
obtain such license not later than 30 days after the first workday
after the arrival of the worker at the place of employment, must be
willing to join the employer at the time and place the employer is
located, and must be available to complete the scheduled itinerary
under the job order.
(3) For job opportunities involving custom combining, the job offer
may specify that applicants must possess up to 6 months of experience
in similar occupations and require reference(s) for the employer to
verify applicant experience. The job offer may also specify that
applicants must be willing to join the employer at the time and place
the employer is located and must be available to complete the scheduled
itinerary under the job order.
(4) An employer may specify other appropriate job qualifications
and requirements for its job opportunity, subject to Sec. 655.122(a)
and (b).
(c) Employer-provided communication devices. For job opportunities
involving animal shearing and custom combining, the employer must
provide to at least one worker per crew, without charge or deposit
charge, effective means of communicating with persons capable of
responding to the workers' needs in case of an emergency, including,
but not limited to, satellite phones, cell phones, wireless devices,
radio transmitters, or other types of electronic communication systems.
The employer must specify in the job order the type(s) of electronic
communication device(s) and that such devices will be provided without
charge or deposit charge to at least one worker per crew during the
entire period of employment.
(d) Housing. For job opportunities involving animal shearing and
custom combining, the employer must specify in the job order that
housing will be provided as set forth in Sec. 655.304.
Sec. 655.303 Procedures for filing Applications for Temporary
Employment Certification.
(a) Compliance with Sec. Sec. 655.130 through 655.132. Unless
otherwise specified in Sec. Sec. 655.300 through 655.304, the employer
must satisfy the requirements for filing an Application for Temporary
Employment Certification with the NPC designated by the OFLC
Administrator as required under Sec. Sec. 655.130 through 655.132.
(b) What to file. An employer must file a completed Application for
Temporary Employment Certification. The employer must identify each
place of employment with as much geographic specificity as possible,
including the names of each farm or ranch, their physical locations,
and the estimated period of employment at each place of employment
where work will be performed under the job order.
(c) Scope of applications. The Application for Temporary Employment
Certification and job order may cover multiple areas of intended
employment in one or more contiguous States. An Application for
Temporary Employment Certification and job order for opportunities
involving commercial beekeeping may include one noncontiguous State at
the beginning and end of the period of employment for the overwintering
of bee colonies.
(d) Agricultural association filings. An agricultural association
filing as a joint employer may submit a single job order and master
Application for Temporary Employment Certification on behalf of its
employer-members located in more than two contiguous States. An
agricultural association filing as a joint employer may file an
Application for Temporary Employment Certification and job order for
opportunities involving commercial beekeeping including one
noncontiguous State at the beginning and end of the period of
employment for the overwintering of bee colonies.
Sec. 655.304 Standards for mobile housing.
(a) Use of mobile housing. An employer employing workers engaged in
animal shearing or custom combining under this section and Sec. Sec.
655.301 through 655.303 may use a mobile unit, camper, or other similar
mobile housing unit that complies with all of the following standards,
except as provided in paragraph (a)(1) or (2) of this section:
(1) In situations where the mobile housing unit will be located on
the range (as defined in Sec. 655.201) to enable work to be performed
on the range, and where providing housing that meets each of the
standards for mobile housing in this section is not feasible, an
employer may request a variance from the particular mobile housing
standard(s) with which compliance is not feasible. The CO will specify
the locations, dates, and specific variances, if approved. The
following conditions must be satisfied for an employer to obtain a
variance:
(i) The employer seeks the variance at the time it submits its
Application for Temporary Employment Certification;
(ii) The employer identifies the particular mobile housing
standard(s), and attests that compliance with the standard(s) is not
feasible;
(iii) The employer identifies the location(s) in which the
particular mobile housing standard(s) cannot be met;
(iv) The employer identifies the anticipated dates that the mobile
housing unit will be in those location(s);
(v) The employer identifies the corresponding range housing
standard(s) in Sec. 655.235 that will be met instead, and attests that
it will comply with such standard(s);
(vi) The employer attests to the reason why the particular mobile
housing(s) standard cannot be met; and,
(vii) The CO approves the variance.
(2) A Canadian employer performing custom combining operations in
the United States whose mobile housing unit is located in Canada when
not in use must have the housing unit inspected and approved by an
authorized representative of the Federal or provincial government of
Canada, in accordance with inspection procedures and applicable
standards for such housing under Canadian law or regulation.
(b) Compliance with mobile housing standards. The employer may
comply with the standards for mobile housing in this section in one of
two ways:
(1) The employer may provide a mobile housing unit that complies
with all applicable standards; or
(2) The employer may provide a mobile housing unit and supplemental
facilities (e.g., located at a fixed housing site) if workers are
afforded access to all facilities contained in these standards.
(c) Housing site. (1) Mobile housing sites must be well drained and
free from depressions where water may stagnate. They shall be located
where the disposal of sewage is provided in a manner that neither
creates, nor is likely to create, a nuisance or a hazard to health.
(2) Mobile housing sites shall not be in proximity to conditions
that create or are likely to create offensive odors, flies, noise,
traffic, or any similar hazards.
(3) Mobile housing sites shall be free from debris, noxious plants
(e.g., poison ivy, etc.), and uncontrolled weeds or brush.
(d) Drinking water supply. (1) An adequate and convenient supply of
potable water that meets the standards of the local or State health
authority must be provided.
(2) Individual drinking cups must be provided.
(3) A cold water tap shall be available within a reasonable
distance of each individual living unit when water is not provided in
the unit.
(4) Adequate drainage facilities shall be provided for overflow and
spillage.
(e) Excreta and liquid waste disposal. (1) Toilet facilities, such
as portable toilets, recreational vehicle (RV) or trailer toilets,
privies, or flush toilets, must be provided and maintained for
effective disposal of excreta and liquid waste in accordance with the
requirements of the applicable local, State, or Federal health
authority, whichever is most stringent.
(2) Where mobile housing units contain RV or trailer toilets, such
facilities must be connected to sewage hookups whenever feasible (i.e.,
in campgrounds or RV parks).
(3) If wastewater tanks are used, the employer must make provisions
to regularly empty the wastewater tanks.
(4) If pits are used for disposal by burying of excreta and liquid
waste, they shall be kept fly-tight when not filled in completely after
each use. The maintenance of disposal pits must be in accordance with
local and State health and sanitation requirements.
(f) Housing structure. (1) Housing must be structurally sound, in
good repair, in a sanitary condition, and must provide shelter against
the elements to occupants.
(2) Housing must have flooring constructed of rigid materials easy
to clean and so located as to prevent ground and surface water from
entering.
(3) Each housing unit must have at least one window or a skylight
that can be opened directly to the outdoors.
(g) Heating. (1) Where the climate in which the housing will be
used is such that the safety and health of a worker requires heated
living quarters, all such quarters must have properly installed
operable heating equipment that supplies adequate heat. Where the
climate in which the housing will be used is mild and the low
temperature for any day in which the housing will be used is not
reasonably expected to drop below 50 degrees Fahrenheit, no separate
heating equipment is required as long as proper protective clothing and
bedding are made available, free of charge or deposit charge, to the
workers.
(2) Any stoves or other sources of heat using combustible fuel must
be installed and vented in such a manner as to prevent fire hazards and
a dangerous concentration of gases. If a solid or liquid fuel stove is
used in a room with wooden or other combustible flooring, there must be
a concrete slab, insulated metal sheet, or other fireproof material on
the floor under each stove, extending at least 18 inches beyond the
perimeter of the base of the stove.
(3) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or stove pipe must be made of fireproof material. A vented metal
collar must be installed around a stovepipe or vent passing through a
wall, ceiling, floor, or roof.
(4) When a heating system has automatic controls, the controls must
be of the type that cuts off the fuel supply when the flame fails or is
interrupted or whenever a predetermined safe temperature or pressure is
exceeded.
(h) Electricity and lighting. (1) Barring unusual circumstances
that prevent access, electrical service or generators must be provided.
(2) In areas where it is not feasible to provide electrical service
to mobile housing units, lanterns must be provided (e.g., battery
operated lights).
(3) Lanterns, where used, must be provided in a minimum ratio of
one per occupant of each unit.
(i) Bathing, laundry, and hand washing. (1) Bathing facilities,
supplied with hot and cold water under pressure, shall be provided to
all occupants no less frequently than once per day.
(2) Laundry facilities, supplied with hot and cold water under
pressure, shall be provided to all occupants no less frequently than
once per week.
(3) Alternative bathing and laundry facilities must be available to
occupants at all times when water under pressure is unavailable.
(4) Hand washing facilities must be available to all occupants at
all times.
(j) Food storage. (1) Provisions for mechanical refrigeration of
food at a temperature of not more than 45 degrees Fahrenheit must be
provided.
(2) When mechanical refrigeration of food is not feasible, the
employer must provide another means of keeping food fresh and
preventing spoilage (e.g., a butane or propane gas refrigerator).
(k) Cooking and eating facilities. (1) When workers or their
families are permitted or required to cook in their individual unit, a
space must be provided with adequate lighting and ventilation, and
stoves or hotplates.
(2) Wall surfaces next to all food preparation and cooking areas
must be of nonabsorbent, easy to clean material. Wall surfaces next to
cooking areas must be made of fire-resistant material.
(l) Garbage and other refuse. (1) Durable, fly-tight, clean
containers must be provided to each housing unit, for storing garbage
and other refuse.
(2) Provision must be made for collecting refuse, which includes
garbage, at least twice a week or more often if necessary for proper
disposal in accordance with applicable local, State, or Federal law,
whichever is most stringent.
(m) Insect and rodent control. Appropriate materials, including
sprays, and sealed containers for storing food, must be provided to aid
housing occupants in combating insects, rodents, and other vermin.
(n) Sleeping facilities. (1) A separate comfortable and clean bed,
cot, or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement.
(2) Clean and sanitary bedding must be provided for each person.
(3) No more than two deck bunks are permissible.
(o) Fire, safety, and first aid. (1) All units in which people
sleep or eat must be constructed and maintained according to applicable
local or State fire and safety law.
(2) No flammable or volatile liquid or materials may be stored in
or next to rooms used for living purposes, except for those needed for
current household use.
(3) Mobile housing units must have a second means of escape through
which the worker can exit the unit without difficulty.
(4) Adequate, accessible fire extinguishers in good working
condition and first aid kits must be provided in the mobile housing.
(p) Maximum occupancy. The number of occupants housed in each
mobile housing unit must not surpass the occupancy limitations set
forth in the manufacturer specifications for the unit.
0
5. Revise 29 CFR part 501 to read as follows:
Title 29--Labor
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION
AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of the Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, and data.
501.9 Enforcement of surety bond.
Subpart B--Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies--general.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules in this subpart.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Decision of the Administrative Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188;
28 U.S.C. 2461 note; and sec. 701, Pub. L. 114-74, 129 Stat. 584.
Subpart A--General Provisions
Sec. 501.0 Introduction.
The regulations in this part cover the enforcement of all
contractual obligations, including requirements under 8 U.S.C. 1188 and
20 CFR part 655, subpart B, applicable to the
employment of H-2A workers and workers in corresponding employment,
including obligations to offer employment to eligible United States
(U.S.) workers and to not lay off or displace U.S. workers in a manner
prohibited by the regulations in this part or 20 CFR part 655, subpart
B.
Sec. 501.1 Purpose and scope.
(a) Statutory standards. The standard in 8 U.S.C. 1188 provides
that:
(1) An H-2A Petition to import an H-2A worker, as defined at 8
U.S.C. 1188, may not be approved by the Secretary of the Department of
Homeland Security (DHS) unless the petitioner has applied for and
received a temporary agricultural labor certification from the
Secretary of Labor (Secretary). The temporary agricultural labor
certification establishes that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the H-2A Petition; and
(ii) The employment of the H-2A worker in such labor or services
will not adversely affect the wages and working conditions of workers
in the United States similarly employed.
(2) The Secretary is authorized to take actions that assure
compliance with the terms and conditions of employment under 8 U.S.C.
1188, the regulations at 20 CFR part 655, subpart B, or the regulations
in this part, including imposing appropriate penalties, and seeking
injunctive relief and specific performance of contractual obligations.
See 8 U.S.C. 1188(g)(2).
(b) Authority and role of the Office of Foreign Labor
Certification. The Secretary has delegated authority to the Assistant
Secretary for the Employment and Training Administration (ETA), who in
turn has delegated that authority to the Office of Foreign Labor
Certification (OFLC), to issue certifications and carry out other
statutory responsibilities as required by 8 U.S.C. 1188. Determinations
on an Application for Temporary Employment Certification are made by
the OFLC Administrator who, in turn, may delegate this responsibility
to designated staff, e.g., a Certifying Officer (CO).
(c) Authority of the Wage and Hour Division. The Secretary has
delegated authority to the Wage and Hour Division (WHD) to conduct
certain investigatory and enforcement functions with respect to terms
and conditions of employment under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part (``the H-2A program''), and to carry out other
statutory responsibilities required by 8 U.S.C. 1188. Certain
investigatory, inspection, and law enforcement functions to carry out
the provisions under 8 U.S.C. 1188 have been delegated by the Secretary
to the WHD. In general, matters concerning the obligations under a work
contract between an employer of H-2A workers and the H-2A workers and
workers in corresponding employment are enforced by WHD, including
whether employment was offered to U.S. workers as required under 8
U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were
laid off or displaced in violation of program requirements under 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part. Included within
the enforcement responsibility of WHD are such matters as the payment
of required wages, transportation, meals, and housing provided during
the employment. WHD has the responsibility to carry out investigations,
inspections, and law enforcement functions and in appropriate instances
to impose penalties, to debar from future certifications, to recommend
revocation of existing certification(s), and to seek injunctive relief
and specific performance of contractual obligations, including recovery
of unpaid wages and reinstatement of laid off or displaced U.S.
workers.
(d) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy pursuant to 20 CFR 655.182 and Sec. 501.20.
(e) Effect of regulations. The enforcement functions carried out by
WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and this part
apply to the employment of any H-2A worker and any other worker in
corresponding employment as the result of any Application for Temporary
Employment Certification processed under 20 CFR 655.102(c).
Sec. 501.2 Coordination between Federal agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
worker will be immediately forwarded to the appropriate WHD office for
appropriate action under the regulations in this part.
(b) Information received in the course of processing applications,
program integrity measures, or enforcement actions may be shared
between OFLC and WHD or, where applicable to employer enforcement under
the H-2A program, other Departments or agencies as appropriate,
including the Department of State (DOS) and DHS.
(c) A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. OFLC and WHD may coordinate
their activities to achieve this result. Copies of final debarment
decisions will be forwarded to DHS promptly.
Sec. 501.3 Definitions.
(a) Definitions of terms used in this part. The following defined
terms apply to this part:
Act. The Immigration and Nationality Act, as amended (INA), 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ). A person within the Department of
Labor's (Department or DOL) Office of Administrative Law Judges (OALJ)
appointed pursuant to 5 U.S.C. 3105.
Administrator. See definitions of OFLC Administrator and WHD
Administrator in this paragraph (a).
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage for field and livestock workers (combined) in the States or
regions as published annually by the U.S. Department of Agriculture
(USDA) based on its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(i) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including, but not limited to,
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker
subject to 8 U.S.C. 1188.
Applicant. A U.S. worker who is applying for a job opportunity for
which an employer has filed an Application for Temporary Employment
Certification and job order.
Application for Temporary Employment Certification. The Office of
Management and Budget (OMB)-approved Form ETA-9142A and appropriate
appendices submitted by an employer to secure a temporary agricultural
labor certification determination from DOL.
Area of intended employment (AIE). The geographic area within
normal commuting distance of the place of employment for which the
temporary agricultural labor certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the place of employment, or quality of the
regional transportation network). If a place of employment is within a
Metropolitan Statistical Area (MSA), including a multi-State MSA, any
place within the MSA is deemed to be within normal commuting distance
of the place of employment. The borders of MSAs are not controlling in
the identification of the normal commuting area; a place of employment
outside of an MSA may be within normal commuting distance of a place of
employment that is inside (e.g., near the border of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the United States, or the District of Columbia (DC). Such a person
is also permitted to act as an agent under this part. No attorney who
is under suspension, debarment, expulsion, or disbarment from practice
before any court, the Department, the Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an
employer under this part.
Certifying Officer (CO). The person who makes a determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the National CO. Other COs may be
designated by the OFLC Administrator to also make the determination
required under 20 CFR part 655, subpart B.
Chief Administrative Law Judge (Chief ALJ). The chief official of
the Department's OALJ or the Chief ALJ's designee.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary
Employment Certification in any work included in the job order, or in
any agricultural work performed by the H-2A workers. To qualify as
corresponding employment, the work must be performed during the
validity period of the job order, including any approved extension
thereof.
Department of Homeland Security (DHS). The Department of Homeland
Security, as established by 6 U.S.C. 111.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: the hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(i) Has an employment relationship (such as the ability to hire,
pay, fire, supervise, or otherwise control the work of employee) with
respect to an H-2A worker or a worker in corresponding employment; or
(ii) Files an Application for Temporary Employment Certification
other than as an agent; or
(iii) Is a person on whose behalf an Application of Temporary
Employment Certification is filed.
Employment and Training Administration (ETA). The agency within the
Department that includes OFLC and has been delegated authority by the
Secretary to fulfill the Secretary's mandate under the INA and DHS'
implementing regulations in 8 CFR chapter I, subchapter B, from the
administration and adjudication of an Application for Temporary
Employment Certification and related functions.
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
First date of need. The first date the employer requires the labor
or services of H-2A workers as indicated in the Application for
Temporary Employment Certification.
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this part;
who owns or operates a farm, ranch, processing establishment, cannery,
gin, packing shed, nursery, or other similar fixed-site location where
agricultural activities are performed; and who recruits, solicits,
hires, employs, houses, or transports any worker subject to 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this part as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A labor contractor (H-2ALC). Any person who meets the definition
of employer under this part and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part.
H-2A Petition. The USCIS Form I-129, Petition for a Nonimmigrant
Worker, with H Supplement or successor form or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2A nonimmigrant workers.
H-2A worker. Any temporary foreign worker who is lawfully present
in the United States and authorized by DHS to perform agricultural
labor or services of a temporary or seasonal nature pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the United
States to which U.S. workers can be referred.
Job order. The document containing the material terms and
conditions of employment that is posted by the SWA on its interstate
and intrastate job clearance systems based on the employer's
Agricultural Clearance Order (Form ETA-790/ETA-790A and all appropriate
addenda), as submitted to the National Processing Center.
Joint employment. (i) Where two or more employers each have
sufficient definitional indicia of being a joint employer of a worker
under the common law of agency, they are, at all times, joint employers
of that worker.
(ii) An agricultural association that files an Application for
Temporary Employment Certification as a joint employer is, at all
times, a joint employer of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment. An employer-member of
an agricultural association that files an Application for Temporary
Employment Certification as a joint employer is a joint employer of the
H-2A workers sponsored under the joint employer Application for
Temporary Employment Certification along with the agricultural
association during the period that the employer-member employs the H-2A
workers sponsored under the Application for Temporary Employment
Certification.
(iii) Employers that jointly file a joint employer Application for
Temporary Employment Certification under 20 CFR 655.131(b) are, at all
times, joint employers of all H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment.
Metropolitan Statistical Area (MSA). A geographic entity defined by
OMB for use by Federal statistical agencies in collecting, tabulating,
and publishing Federal statistics. A Metropolitan Statistical Area
contains a core urban area of 50,000 or more population, and a
Micropolitan Statistical Area contains an urban core of at least 10,000
(but fewer than 50,000) population. Each metropolitan or micropolitan
area consists of one or more counties and includes the counties
containing the core urban area, as well as any adjacent counties that
have a high degree of social and economic integration (as measured by
commuting to work) with the urban core.
National Processing Center (NPC). The offices within OFLC in which
the Cos operate and which are charged with the adjudication of
Applications for Temporary Employment Certification.
Office of Foreign Labor Certification (OFLC). OFLC means the
organizational component of ETA that provides national leadership and
policy guidance, and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the United States to perform work
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of OFLC, or the OFLC
Administrator's designee.
Period of employment. The time during which the employer requires
the labor or services of H-2A workers as indicated by the first and
last dates of need provided in the Application for Temporary Employment
Certification.
Piece rate. A form of wage compensation based upon a worker's
quantitative output or one unit of work or production for the crop or
agricultural activity.
Place of employment. A worksite or physical location where work
under the job order actually is performed by the H-2A workers and
workers in corresponding employment.
Secretary of Labor (Secretary). The chief official of the
Department, or the Secretary's designee.
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to
administer the State's public labor exchange activities.
Successor in interest. (i) Where an employer, agent, or attorney
has violated 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part,
and has ceased doing business or cannot be located for purposes of
enforcement, a successor in interest to that employer, agent, or
attorney may be held liable for the duties and obligations of the
violating employer, agent, or attorney in certain circumstances. The
following factors, as used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Readjustment Assistance Act, may be
considered in determining whether an employer, agent, or attorney is a
successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(A) Substantial continuity of the same business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working conditions;
(E) Similarity of supervisory personnel;
(F) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(G) Similarity in machinery, equipment, and production methods;
(H) Similarity of products and services; and
(I) The ability of the predecessor to provide relief.
(ii) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator, based on the Application for Temporary
Employment Certification, job order, and all supporting documentation,
with respect to an employer seeking to file an H-2A Petition with DHS
to employ one or more foreign nationals as an H-2A worker, pursuant to
8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188, and 20 CFR
part 655, subpart B.
United States. The continental United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services (USCIS). An operational
component of DHS.
U.S. worker. A worker who is:
(i) A citizen or national of the United States;
(ii) An individual who is lawfully admitted for permanent residence
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise
authorized by the INA or DHS to be employed in the United States; or
(iii) An individual who is not an unauthorized alien, as defined in
8 U.S.C. 1324a(h)(3), with respect to the employment in which the
worker is engaging.
Wage and Hour Division (WHD). The agency within the Department with
authority to conduct certain investigatory and enforcement functions,
as delegated by the Secretary, under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part.
Wages. All forms of cash remuneration to a worker by an employer in
payment for labor or services.
WHD Administrator. The primary official of the WHD, or the WHD
Administrator's designee.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part. The contract between the employer and the worker may be
in the form of a separate written document. In the absence of a
separate written work contract incorporating the required terms and
conditions of employment, agreed to by both the employer and the
worker, the work contract at a minimum will be the terms and conditions
of the job order and any obligations required under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part.
(b) Definition of agricultural labor or services. For the purposes
of this part, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938, as amended (FLSA), at 29 U.S.C.
203(f); the pressing of apples for cider on a farm; or logging
employment. An occupation included
in either statutory definition is agricultural labor or services,
notwithstanding the exclusion of that occupation from the other
statutory definition. For informational purposes, the statutory
provisions are listed in paragraphs (b)(1) through (3) of this section.
(1) Agricultural labor. (i) For the purpose of paragraph (b) of
this section, agricultural labor means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in sec. 15(g) of the
Agricultural Marketing Act, as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (b)(1)(i)(D) of this section but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph (b)(1)(i)(E), any
unincorporated group of operators shall be deemed a cooperative
organization if the number of operators comprising such group is more
than 20 at any time during the calendar year in which such service is
performed;
(F) The provisions of paragraphs (b)(1)(i)(D) and (E) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses, or other similar
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(2) Agriculture. For purposes of paragraph (b) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities
include, in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: gum spirits of turpentine and gum rosin. In addition, as
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of
turpentine made from gum (oleoresin) from a living tree and gum rosin
means rosin remaining after the distillation of gum spirits of
turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g), or as applied in sec. 3(f)
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
(4) Logging employment. Logging employment is operations associated
with felling and moving trees and logs from the stump to the point of
delivery, such as, but not limited to, marking danger trees, marking
trees or logs to be cut to length, felling, limbing, bucking,
debarking, chipping, yarding, loading, unloading, storing, and
transporting machines, equipment and personnel to, from, and between
logging sites.
(5) Employment as defined and specified in 20 CFR 655.300 through
655.304. For the purpose of paragraph (b) of this section, agricultural
labor or services includes animal shearing, commercial beekeeping, and
custom combining activities as defined and specified in 20 CFR 655.300
through 655.304.
(c) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Sec. 501.4 Discrimination prohibited.
(a) A person may not intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188 or this
part;
(2) Instituted or caused to be instituted any proceedings related
to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part; or
(5) Exercised or asserted on behalf of themself or others any right
or protection afforded by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part.
(b) Allegations of discrimination against any person under
paragraph (a) of this section will be investigated by WHD. Where WHD
has determined through investigation that such allegations have been
substantiated, appropriate remedies may be sought. WHD may assess civil
money penalties, seek injunctive relief, and/or seek additional
remedies necessary to make the worker whole as a result of the
discrimination, as appropriate, initiate debarment proceedings, and
recommend to OFLC revocation of any
such violator's current temporary agricultural labor certification.
Complaints alleging discrimination against workers or immigrants based
on citizenship or immigration status may also be forwarded by WHD to
the Department of Justice, Civil Rights Division, Immigrant and
Employee Rights Section.
Sec. 501.5 Waiver of rights prohibited.
A person may not seek to have an H-2A worker, a worker in
corresponding employment, or a U.S. worker improperly rejected for
employment or improperly laid off or displaced waive any rights
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part. Any agreement by a worker purporting to waive or modify any
rights given to said person under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part shall be void as contrary to public policy
except as follows:
(a) Waivers or modifications of rights or obligations under 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part in favor of the
Secretary shall be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
Sec. 501.6 Investigation authority of the Secretary.
(a) General. The Secretary, through WHD, may investigate to
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part, either pursuant to a complaint or
otherwise, as may be appropriate. In connection with such an
investigation, WHD may enter and inspect any premises, land, property,
housing, vehicles, and records (and make transcriptions thereof),
question any person, and gather any information as may be appropriate.
(b) Confidential investigation. WHD shall conduct investigations in
a manner that protects the confidentiality of any complainant or other
person who provides information to the Secretary in good faith.
(c) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part to the Secretary by advising any local office of the SWA,
ETA, WHD, or any other authorized representative of the Secretary. The
office or person receiving such a report shall refer it to the
appropriate office of WHD for the geographic area in which the reported
violation is alleged to have occurred.
Sec. 501.7 Cooperation with Federal officials.
All persons must cooperate with any Federal officials assigned to
perform an investigation, inspection, or law enforcement function
pursuant to 8 U.S.C. 1188 and this part during the performance of such
duties. WHD will take such action as it deems appropriate, including
initiating debarment proceedings, seeking an injunction to bar any
failure to cooperate with an investigation, and/or assessing a civil
money penalty therefor. In addition, WHD will report the matter to
OFLC, and may recommend to OFLC that the person's existing temporary
agricultural labor certification be revoked. In addition, Federal
statutes prohibiting persons from interfering with a Federal officer in
the course of official duties are found at 18 U.S.C. 111 and 114.
Sec. 501.8 Accuracy of information, statements, and data.
Information, statements, and data submitted in compliance with 8
U.S.C. 1188 or this part are subject to 18 U.S.C. 1001, which provides,
with regard to statements or entries generally, that whoever, in any
matter within the jurisdiction of any department or agency of the
United States, knowingly and willfully falsifies, conceals, or covers
up a material fact by any trick, scheme, or device, or makes any false,
fictitious, or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years, or both.
Sec. 501.9 Enforcement of surety bond.
Every H-2A labor contractor (H-2ALC) must obtain a surety bond
demonstrating its ability to discharge financial obligations as set
forth in 20 CFR 655.132(c).
(a) Notwithstanding the required bond amounts set forth in 20 CFR
655.132(c), the WHD Administrator may require that an H-2ALC obtain a
bond with a higher face value amount after notice and opportunity for
hearing when it is shown based on objective criteria that the amount of
the bond is insufficient to meet potential liabilities.
(b) Upon a final decision reached pursuant to the administrative
proceedings of subpart C of this part, including any timely appeal, or
resulting from an enforcement action brought directly in a District
Court of the United States finding a violation or violations of 20 CFR
part 655, subpart B, or this part, the WHD Administrator may make a
written demand on the surety for payment of any wages and benefits,
including the assessment of interest, owed to an H-2A worker, a worker
engaged in corresponding employment, or a U.S. worker improperly
rejected or improperly laid off or displaced. The WHD Administrator
shall have 3 years from the expiration of the labor certification,
including any extension thereof, to make such written demand for
payment on the surety. This 3-year period for making a demand on the
surety is tolled by commencement of any enforcement action of the WHD
Administrator pursuant to Sec. 501.6, Sec. 501.15, or Sec. 501.16 or
the commencement of any enforcement action in a District Court of the
United States.
Subpart B--Enforcement
Sec. 501.15 Enforcement.
The investigation, inspection, and law enforcement functions to
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, as provided in this part for enforcement by WHD, pertain
to the employment of any H-2A worker, any worker in corresponding
employment, or any U.S. worker improperly rejected for employment or
improperly laid off or displaced. Such enforcement includes the work
contract provisions as defined in Sec. 501.3(a).
Sec. 501.16 Sanctions and remedies--general.
Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part have been violated, such action shall
be taken and such proceedings instituted as deemed appropriate,
including, but not limited to, the following:
(a)(1) Institute appropriate administrative proceedings, including:
the recovery of unpaid wages (including recovery of recruitment fees
paid in the absence of required contract clauses (see 20 CFR
655.135(k)); the enforcement of provisions of the work contract, 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part; the assessment
of a civil money penalty; make whole relief for any person who has been
discriminated against; reinstatement and make whole relief for any U.S.
worker who has been improperly rejected for employment, or improperly
laid off or displaced; or debarment for up to 3 years.
(2) The remedies referenced in paragraph (a)(1) of this section
will be sought either directly from the employer, agent, or attorney,
or from its successor in interest, as appropriate. In the case of an H-
2ALC, the remedies will be sought from the H-2ALC directly and/or
monetary relief (other than civil money penalties) from the insurer who
issued the surety bond to
the H-2ALC, as required by 20 CFR part 655, subpart B, and Sec. 501.9.
(b) Petition any appropriate District Court of the United States
for temporary or permanent injunctive relief, including to prohibit the
withholding of unpaid wages and/or for reinstatement, or to restrain
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part,
by any person.
(c) Petition any appropriate District Court of the United States
for an order directing specific performance of covered contractual
obligations.
Sec. 501.17 Concurrent actions.
OFLC has primary responsibility to make all determinations
regarding the issuance, denial, or revocation of a labor certification
as described in 20 CFR part 655, subpart B, and Sec. 501.1(b). WHD has
primary responsibility to make all determinations regarding the
enforcement functions as described in Sec. 501.1(c). The taking of any
one of the actions referred to above shall not be a bar to the
concurrent taking of any other action authorized by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part. OFLC and WHD have concurrent
jurisdiction to impose a debarment remedy pursuant to 20 CFR 655.182
and Sec. 501.20.
Sec. 501.18 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, shall
represent the WHD Administrator and the Secretary in all administrative
hearings under 8 U.S.C. 1188 and this part.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the WHD Administrator
for each violation of the work contract, or the obligations imposed by
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. Each failure
to pay an individual worker properly or to honor the terms or
conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part constitutes a separate violation.
(b) In determining the amount of penalty to be assessed for each
violation, the WHD Administrator shall consider the type of violation
committed and other relevant factors. The factors that the WHD
Administrator may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR
part 655, subpart B, and this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188; and
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(c) A civil money penalty for each violation of the work contract
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part will not exceed $1,898 per violation, with the following
exceptions:
(1) A civil money penalty for each willful violation of the work
contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, or for each act of discrimination prohibited by Sec.
501.4 shall not exceed $6,386;
(2) A civil money penalty for a violation of a housing or
transportation safety and health provision of the work contract, or any
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part, that proximately causes the death or serious injury of any worker
shall not exceed $63,232 per worker; and
(3) A civil money penalty for a repeat or willful violation of a
housing or transportation safety and health provision of the work
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, that proximately causes the death or serious
injury of any worker, shall not exceed $126,463 per worker.
(4) For purposes of paragraphs (c)(2) and (3) this section, the
term serious injury includes, but is not limited to:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ or mental faculty, including the loss of all or
part of an arm, leg, foot, hand, or other body part; or
(iii) Permanent paralysis or substantial impairment that causes
loss of movement or mobility of an arm, leg, foot, hand, or other body
part.
(d) A civil money penalty for failure to cooperate with a WHD
investigation shall not exceed $6,386 per investigation.
(e) A civil money penalty for laying off or displacing any U.S.
worker employed in work or activities that are encompassed by the
approved Application for Temporary Employment Certification for H-2A
workers in the area of intended employment either within 60 calendar
days preceding the first date of need or during the validity period of
the job order, including any approved extension thereof, other than for
a lawful, job-related reason, shall not exceed $18,970 per violation
per worker.
(f) A civil money penalty for improperly rejecting a U.S. worker
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, shall not exceed $18,970 per
violation per worker.
Sec. 501.20 Debarment and revocation.
(a) Debarment of an employer, agent, or attorney. The WHD
Administrator may debar an employer, agent, or attorney, or any
successor in interest to that employer, agent, or attorney from
participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, subject to the time limits set forth in
paragraph (c) of this section, if the WHD Administrator finds that the
employer, agent, or attorney substantially violated a material term or
condition of the temporary agricultural labor certification, with
respect to H-2A workers, workers in corresponding employment, or U.S.
workers improperly rejected for employment, or improperly laid off or
displaced, by issuing a Notice of Debarment.
(b) Effect on future applications. No application for H-2A workers
may be filed by a debarred employer, or any successor in interest to a
debarred employer, or by an employer represented by a debarred agent or
attorney, or by any successor in interest to any debarred agent or
attorney, subject to the time limits set forth in paragraph (c) of this
section. If such an application is filed, it will be denied without
review.
(c) Statute of limitations and period of debarment. (1) The WHD
Administrator must issue any Notice of Debarment not later than 2 years
after the occurrence of the violation.
(2) No employer, agent, or attorney, or their successors in
interest, may be debarred under this part for more than 3 years from
the date of the final agency decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2A
workers and/or workers in corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188
or this part, or an audit under 20 CFR part 655, subpart B;
(vii) Employing an H-2A worker outside the area of intended
employment, or in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of 20 CFR 655.135(j) or (k);
(ix) A violation of any of the provisions listed in Sec. 501.4(a);
or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(2) In determining whether a violation is so substantial as to
merit debarment, the factors set forth in Sec. 501.19(b) shall be
considered.
(e) Procedural requirements. The Notice of Debarment must be in
writing, must state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, must identify appeal opportunities under Sec. 501.33 and a
timeframe under which such rights must be exercised and must comply
with Sec. 501.32. The debarment will take effect 30 calendar days from
the date the Notice of Debarment is issued, unless a request for review
is properly filed within 30 calendar days from the issuance of the
Notice of Debarment. The timely filing of an administrative appeal
stays the debarment pending the outcome of the appeal as provided in
Sec. 501.33(d).
(f) Debarment of associations, employer-members of associations,
and joint employers. If, after investigation, the WHD Administrator
determines that an individual employer-member of an agricultural
association, or a joint employer under 20 CFR 655.131(b), has committed
a substantial violation, the debarment determination will apply only to
that employer-member unless the WHD Administrator determines that the
agricultural association or another agricultural association member or
joint employer under 20 CFR 655.131(b), participated in the violation,
in which case the debarment will be invoked against the agricultural
association or other complicit agricultural association member(s) or
joint employer under 20 CFR 655.131(b) as well.
(g) Debarment involving agricultural associations acting as sole
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a sole employer has
committed a substantial violation, the debarment determination will
apply only to the agricultural association and any successor in
interest to the debarred agricultural association.
(h) Debarment involving agricultural associations acting as joint
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a joint employer with its
employer-members has committed a substantial violation, the debarment
determination will apply only to the agricultural association, and will
not be applied to any individual employer-member of the agricultural
association. However, if the WHD Administrator determines that the
employer-member participated in, had knowledge of, or had reason to
know of the violation, the debarment may be invoked against the
complicit agricultural association member as well. An agricultural
association debarred from the H-2A temporary labor certification
program will not be permitted to continue to file as a joint employer
with its employer-members during the period of the debarment.
(i) Revocation. WHD may recommend to the OFLC Administrator the
revocation of a temporary agricultural labor certification if WHD finds
that the employer:
(1) Substantially violated a material term or condition of the
approved temporary agricultural labor certification;
(2) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
or
(3) Failed to comply with one or more sanctions or remedies imposed
by WHD, or with one or more decisions or orders of the Secretary or a
court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part.
Sec. 501.21 Failure to cooperate with investigations.
(a) No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this
investigative or enforcement authority.
(b) Where an employer (or employer's agent or attorney) does not
cooperate with an investigation concerning the employment of an H-2A
worker, a worker in corresponding employment, or a U.S. worker who has
been improperly rejected for employment or improperly laid off or
displaced, WHD may make such information available to OFLC and may
recommend that OFLC revoke the existing certification that is the basis
for the employment of the H-2A workers giving rise to the
investigation. In addition, WHD may take such action as appropriate,
including initiating proceedings for the debarment of the employer,
agent, or attorney from future certification for up to 3 years, seeking
an injunction, and/or assessing civil money penalties against any
person who has failed to cooperate with a WHD investigation. The taking
of any one action shall not bar the taking of any additional action.
Sec. 501.22 Civil money penalties--payment and collection.
Where a civil money penalty is assessed in a final order by the WHD
Administrator, by an ALJ, or by the Administrative Review Board (ARB),
the amount of the penalty must be received by the WHD Administrator
within 30 days of the date of the final order. The person assessed such
penalty shall remit the amount thereof, as finally determined, to the
Secretary. Payment shall be made by certified check or money order made
payable and delivered or mailed according to the instructions provided
by the Department; through the electronic pay portal located at
www.pay.gov or any successor system; or by any additional payment
method deemed acceptable by the Department.
Subpart C--Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules in this subpart.
The procedures and rules contained in this subpart prescribe the
administrative process that will be applied with respect to a
determination to assess civil money penalties, debar, or increase the
amount of a surety bond and which may be applied to the enforcement of
provisions of the work contract, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this
part, or to the collection of monetary relief due as a result of any
violation. Except with respect to the imposition of civil money
penalties, debarment, or an increase in the amount of a surety bond,
the Secretary may, in the Secretary's discretion, seek enforcement
action in a District Court of the United States without resort to any
administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the WHD Administrator decides to assess a civil money
penalty, debar, increase a surety bond, or proceed administratively to
enforce contractual obligations, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, including for the recovery of
the monetary relief, the person against whom such action is taken shall
be notified in writing of such determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the WHD Administrator including
the amount of any monetary relief due or actions necessary to fulfill a
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part; the amount of any civil money penalty
assessment; whether debarment is sought and if so its term; and any
change in the amount of the surety bond, and the reason or reasons
therefor.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the WHD
Administrator shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the WHD address appearing on the determination notice,
no later than 30 calendar days after the date of issuance of the notice
referred to in Sec. 501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons the person requesting the
hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of
this section. Requests may be made by certified mail or by means
normally assuring overnight delivery.
(d) The determination shall take effect on the start date
identified in the written notice of determination, unless an
administrative appeal is properly filed. The timely filing of an
administrative appeal stays the determination pending the outcome of
the appeal proceedings, provided that any surety bond remains in effect
until the conclusion of any such proceedings.
Rules of Practice
Sec. 501.34 General.
(a) Except as specifically provided in this part, the Rules of
Practice and Procedure for Administrative Hearings before the Office of
Administrative Law Judges established by the Secretary at 29 CFR part
18 shall apply to administrative proceedings described in this part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and 29 CFR part 18, subpart B,
will not apply, but principles designed to ensure production of
relevant and probative evidence shall guide the admission of evidence.
The ALJ may exclude evidence that is immaterial, irrelevant, or unduly
repetitive.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1188 and
the regulations in this part shall be commenced upon receipt of a
timely request for hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C. 1188
and the regulations in this part shall be captioned in the name of the
person requesting such hearing, and shall be styled as follows: In the
Matter of ___, Respondent.
(b) For the purposes of such administrative proceedings, the WHD
Administrator shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. 501.33, the WHD Administrator, by the
Associate Solicitor for the Division of Fair Labor Standards or the
Regional Solicitor for the Region in which the action arose, will, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or the authorized representative of such
person, to the Chief ALJ, for a determination in an administrative
proceeding as provided in this subpart. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively,
be given the effect of a complaint and answer thereto for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under 29 CFR part 18 or this part.
(b) A copy of the Order of Reference, together with a copy of this
part, shall be served by counsel for the WHD Administrator upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief ALJ shall appoint
an ALJ to hear the case. The ALJ shall promptly notify all interested
parties of the docketing of the matter and shall set the time and place
of the hearing. The date of the hearing shall be not more than 60
calendar days from the date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--
number of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided in this subpart shall be served on
the attorneys for DOL. One copy shall be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210, and one copy on
the attorney representing the Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor,
the ALJ, within 30 calendar days thereafter, shall, if satisfied with
its form and substance, accept such agreement by issuing a decision
based upon the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ will prepare, within 60 calendar days after completion
of the hearing and closing of the record, a decision on the issues
referred by the WHD Administrator.
(b) The decision of the ALJ shall include a statement of the
findings and conclusions, with reasons and basis therefor, upon each
material issue presented on the record. The decision shall also include
an appropriate order which may affirm, deny, reverse, or modify, in
whole or in part, the determination of the WHD Administrator. The
reason or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the ARB.
(d) The decision concerning civil money penalties, debarment,
monetary relief, and/or enforcement of other contractual obligations
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when
served by the ALJ shall constitute the final agency order unless the
ARB, as provided for in Sec. 501.42, determines to review the
decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, WHD, or any other party wishing review, including
judicial review, of the decision of an ALJ must, within 30 calendar
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. If the ARB does not issue a notice accepting a petition for
review of the decision within 30 calendar days after receipt of a
timely filing of the petition, or within 30 calendar days of the date
of the decision if no petition has been received, the decision of the
ALJ will be deemed the final agency action.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding.
Sec. 501.43 Responsibility of the Office of Administrative Law
Judges.
Upon receipt of the ARB's notice to accept the petition, the OALJ
will promptly forward a copy of the complete hearing record to the ARB.
Sec. 501.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB will notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions must be made (e.g., briefs or
oral argument); and
(c) The time within which such presentation must be submitted.
Sec. 501.45 Decision of the Administrative Review Board.
The ARB's decision shall be issued within 90 days from the notice
granting the petition and served upon all parties and the ALJ.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part shall be maintained and filed
under the custody and control of the Chief ALJ, or, where the case has
been the subject of administrative review, the ARB.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a District Court of the United States,
after the administrative remedies have been exhausted, the Chief ALJ
or, where the case has been the subject of administrative review, the
ARB shall promptly index, certify, and file with the appropriate
District Court of the United States, a full, true, and correct copy of
the entire record, including the transcript of proceedings.
Martin J. Walsh,
Secretary of Labor.
[FR Doc. 2022-20506 Filed 10-6-22; 8:45 am]
BILLING CODE 4510-FP-P
