[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 77110-77262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29309]



[[Page 77109]]

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Part II





Department of Labor





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Employment and Training Administration



20 CFR Part 655



Wage and Hour Division

29 CFR Parts 501, 780, and 788



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Temporary Agricultural Employment of H-2A Aliens in the United States; 
Modernizing the Labor Certification Process and Enforcement; Final Rule

  Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / 
Rules and Regulations  

[[Page 77110]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55


Temporary Agricultural Employment of H-2A Aliens in the United 
States; Modernizing the Labor Certification Process and Enforcement

AGENCY: Employment and Training Administration, and Wage and Hour 
Division, Employment Standards Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor (DOL or Department) is amending its 
regulations regarding the certification for the temporary employment of 
nonimmigrant workers in agricultural occupations on a temporary or 
seasonal basis, and the enforcement of the contractual obligations 
applicable to employers of such nonimmigrant workers.
    This final rule re-engineers the process by which employers obtain 
a temporary labor certification from the Department for use in 
petitioning the Department of Homeland Security (DHS) to employ a 
nonimmigrant worker in H-2A (agricultural temporary worker) status. The 
final rule utilizes an attestation-based application process based on 
pre-filing recruitment and eliminates duplicative H-2A activities 
currently performed by State Workforce Agencies (SWAs) and the 
Department. The rule also provides enhanced enforcement, including more 
rigorous penalties, to complement the modernized certification process 
and to appropriately protect workers.

DATES: This final rule is effective January 17, 2009.

FOR FURTHER INFORMATION CONTACT: For further information about 20 CFR 
part 655, subpart B, contact William L. Carlson, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.
    For further information regarding 29 CFR part 501, contact James 
Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment 
Standards Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-3510, Washington, DC 20210; Telephone (202) 693-
0070 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone number above via TTY by 
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Leading to the NPRM
    A. Statutory Standard and Current Department of Labor 
Regulations
    B. Overview of the Proposed Redesign of the System
    C. Severability
II. Discussion of Comments on Proposed Rule
    A. Revisions to 20 CFR Part 655 Subpart B
    Section 655.93 Special Procedures
    Section 655.100 Overview and Definitions
    Section 655.101 Applications for Temporary Employment 
Certification
    Section 655.102 Required pre-filing activity
    Section 655.103 Advertising requirements
    Section 655.104 Contents of job offers
    Section 655.105 Assurances and obligations of H-2A employers
    Section 655.106 Assurances and obligations of H-2A labor 
contractors
    Section 655.107 Processing of applications
    Section 655.108 Offered wage rate
    Section 655.109 Labor certification determinations
    Section 655.110 Validity and scope of temporary labor 
certifications
    Section 655.111 Required departure
    Section 655.112 Audits
    Section 655.113 H-2A Applications Involving Fraud or Willful 
Misrepresentation
    Section 655.114 Setting Meal Charges; Petition for Higher Meal 
Charges
    Section 655.115 Administrative Review and De Novo Hearing before 
an Administrative Law Judge
    Section 655.116 Job Service Complaint System; enforcement of 
work contracts
    Section 655.117 Revocation of H-2A certification approval
    Section 655.118 Debarment
    Timeline for Anticipated Training and Education Outreach 
Initiative Transition
    B. Revisions to 29 CFR Part 501
    Section 501.0 Introduction
    Section 501.1 Purpose and scope
    Section 501.2 Coordination of intake between DOL agencies
    Section 501.3 Discrimination
    Section 501.4 Waiver of rights prohibited
    Section 501.5 Investigation authority of Secretary
    Section 501.6 Cooperation with DOL officials
    Section 501.8 Surety bond
    Section 501.10 Definitions
    Section 501.15 Enforcement
    Section 501.16 Sanctions and remedies
    Section 501.19 Civil money penalty assessment
    Section 501.20 Debarment and revocation
    Section 501.21 Failure to cooperate with investigations
    Section 501.30 Applicability of procedures and rules
    Section 501.31 Written notice of determination required
    Section 501.32 Contents of notice
    Section 501.33 Requests for hearing
    Section 501.42 Exhaustion of administrative remedies
    C. Revisions to 29 CFR Parts 780 and 788
    Section 780.115 Forest products
    Section 780.201 Meaning of forestry or lumbering operations
    Section 780.205 Nursery activities generally and Christmas tree 
production
    Section 780.208 Forestry activities
    Section 788.10 Preparing other forestry products
III. Administrative Information
    A. Executive Order 12866--Regulatory Planning and Review
    B. Regulatory Flexibility Analysis
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 13132--Federalism
    E. Executive Order 13175--Indian Tribal Governments
    F. Assessment of Federal Regulations and Policies on Families
    G. Executive Order 12630--Protected Property Rights
    H. Executive Order 12988--Civil Justice Reform
    I. Plain Language
    J. Executive Order 13211--Energy Supply
    K. Paperwork Reduction Act

I. Background Leading to the NPRM

A. Statutory Standard and Current Department of Labor Regulations

    The H-2A visa program provides a means for U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
agricultural labor or services when U.S. labor is in short supply. 
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A 
worker as a nonimmigrant admitted to the U.S. on a temporary or 
seasonal basis to perform agricultural labor or services. Section 
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary 
of DHS consult with the Secretary of the Department of Labor (the 
Secretary) with respect to adjudication H-2A petitions, and, by cross-
referencing Section 218 of the INA (8 U.S.C. 1188), with determining 
the availability of U.S. workers and the effect on wages and working 
conditions. Section 218 also sets forth further details of the H-2A 
application process and the requirements to be met by the agricultural 
employer.

[[Page 77111]]

    Although foreign agricultural labor has contributed to the growth 
and success of America's agricultural sector since the 19th century, 
the modern-day agricultural worker visa program originated with the 
creation, in the INA (Pub. L. 82-144), of the ``H-2 program''--a 
reference to the INA subparagraph that established the program. Today, 
the H-2A nonimmigrant visa program authorizes the Secretary of DHS to 
permit employers to hire foreign workers to come temporarily to the 
U.S. and perform agricultural services or labor of a seasonal or 
temporary nature, if the need for foreign labor is first certified by 
the Secretary.
    Section 218(a)(1) of the INA (8 U.S.C. 1188(a)(1)) states that a 
petition to import H-2A workers may not be approved by the Secretary of 
Homeland Security unless the petitioner has applied to the Secretary 
for a certification that:
    (a) There are not sufficient U.S. 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
    (b) 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.
    The INA specifies conditions under which the Secretary must deny 
certification, and establishes specific timeframes within which 
employers must file--and the Department must process and either reject 
or certify--applications for H-2A labor certification. In addition, the 
statute contains certain worker protections, including the provision of 
workers' compensation insurance and housing as well as minimum 
recruitment standards to which H-2A employers must adhere. See 8 U.S.C. 
1188(b) and (c). The INA does not limit the number of foreign workers 
who may be accorded H-2A status each year or the number of labor 
certification applications the Department may process.
    The Department has regulations at 20 CFR part 655, subpart B--
``Labor Certification Process for Temporary Agricultural Employment 
Occupations in the United States (H-2A Workers),'' governing the H-2A 
labor certification process, and at 29 CFR part 501 implementing its 
enforcement responsibilities under the H-2A program. Regulations 
relating to employer-provided housing for agricultural workers appear 
at 20 CFR part 654, subpart E (Housing for Agricultural Workers), and 
29 CFR 1910.142 (standards set by the Occupational Safety and Health 
Administration); see also 20 CFR 651.10, and part 653, subparts B and 
F.
    The Department was charged with reviewing the efficiency and 
effectiveness of its H-2A procedures in light of the increasing 
presence of undocumented workers in agricultural occupations and 
because of growing concern about the stability of the agricultural 
industry given its difficulty in gaining access to a legal 
workforce.\1\ The Department reviewed its administration of the program 
and, in light of its extensive experience in both the processing of 
applications and the enforcement of worker protections, proposed 
measures to re-engineer the H-2A program in a Notice of Proposed 
Rulemaking on February 13, 2008 (73 FR 8538) (NPRM or Proposed Rule).
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    \1\ Fact Sheet: Improving Border Security and Immigration Within 
Existing Law, Office of the Press Secretary, The White House (August 
10, 2007); see also Statement on Improving Border Security and 
Immigration Within Existing Law, 43 Weekly Comp. Pres. Doc. (August 
13, 2007).
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B. Overview of the Proposed Redesign of the System

    The NPRM described a pre-filing recruitment and attestation process 
as part of a re-engineered H-2A program. The Department proposed a 
process by which employers, as part of their application, would attest 
under threat of penalties, including debarment from the program, that 
they have complied with and will continue to comply with all applicable 
program requirements. In addition, employers would not be required to 
file extensive documentation with their applications but would be 
required to maintain all supporting documentation for their application 
for a period of 5 years in order to facilitate the Department's 
enforcement of program requirements. The Department's proposal also 
contained new and enhanced penalties and procedures for invoking those 
penalties against employers as well as their attorneys or agents who 
fail to perform obligations imposed under the H-2A program. The program 
also eliminates duplicative administration and processing by the State 
Workforce Agencies (SWAs) and the Department by requiring filing of the 
application only with the Department's National Processing Center (NPC) 
in Chicago, Illinois. This program would also enable the SWAs to better 
perform their mandated functions in processing H-2A agricultural 
clearance orders, by enhancing their ability to conduct housing 
inspections well in advance of the employer's application date. The 
SWAs would also continue to clear and post intrastate job orders, 
circulate them through the Employment Service interstate clearance 
system and refer potential U.S. workers to employers.
    Finally, the Department proposed additional processes for 
penalizing employers or their attorneys or agents who fail to perform 
obligations required under the H-2A program, including provisions for 
debarring employers, agents, and attorneys and revoking approved labor 
certifications.

C. Severability

    The Department declares that, to the extent that any portion of 
this Final Rule is declared to be invalid by a court, it intends for 
all other parts of the Final Rule that are capable of operating 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 resulted in a partial reversion to the current regulations 
or to the statutory language itself, the Department intends that the 
rest of the Final Rule would continue to operate, if at all possible, 
in tandem with the reverted provisions.

II. Discussion of Comments on Proposed Rule

    The Department received over 11,000 comments in response to the 
proposed rule, the vast majority of them form letters or e-mails 
repeating the same contentions. Commenters included individual farmers 
and associations of farmers, agricultural associations, law firms, 
farmworker advocates, community-based organizations, and individual 
members of the public. The Department has reviewed these comments and 
taken them into consideration in drafting this Final Rule.
    We do not discuss here those provisions of the NPRM on which we 
received no comments. Those provisions were adopted as proposed. We 
have also made some editorial changes to the text of the proposed 
regulations, for clarity and to improve readability. Those changes are 
not intended to alter the meaning or intent of the regulations.

A. Revisions to 20 CFR Part 655 Subpart B

Section 655.93 Special Procedures
    The Department proposed to revise the current regulation on special 
procedures to clarify its authority to establish procedures that vary 
from those procedures outlined in the regulations. We received numerous 
comments about this revised language on special procedures.

[[Page 77112]]

    Several commenters questioned the effect the proposed language 
would have on special procedures currently in use. Section 655.93(b) of 
the current regulations provides for special procedures, stating that: 
``the Director has the authority to establish special procedures for 
processing H-2A applications when employers can demonstrate upon 
written application to and consultation with the Director that special 
procedures are necessary.'' The proposed rule provides that ``the OFLC 
Administrator has the authority to establish or to revise special 
procedures in the form of variances for processing certain H-2A 
applications when employers can demonstrate upon written application to 
and consultation with the OFLC Administrator that special procedures 
are necessary.''
    Four associations of growers/producers specifically requested 
clarification of the phrase ``in the form of variances.'' These 
associations asked the Department to confirm that the proposed language 
does not pose a threat to the continued use of the special procedures 
for sheepherders currently in place. One association expressed concern 
that this revised language would require hundreds of employers engaged 
in the range production of livestock to annually document their need 
for special procedures.
    The addition of the phrase ``in the form of variances'' is intended 
to clarify that special procedures differ from those processes set out 
in the regulation, which otherwise apply to employers seeking to hire 
H-2A workers. The special procedures for sheepherders, for example, 
arise from decades of past practices and draw upon the unique nature of 
the activity that cannot be completely addressed in the generally 
applicable regulations. The establishment of special procedures 
recognizes the peculiarities of an industry or activity, and provides a 
means to comply with the underlying program requirements through an 
altered process that adequately addresses the unique nature of the 
industry or activity while meeting the statutory and regulatory 
requirements of the program. The special procedures do not enable 
industries and employers to evade their statutory or regulatory 
responsibilities but rather establish a feasible and tailored means of 
meeting them while recognizing the unique circumstances of that 
industry. The language in Sec.  655.93(b) affirms the Department's 
authority to develop and/or revise special procedures. The Department 
does not intend to require any industry currently using special 
procedures to seek ratification of their current practice, nor does the 
Department intend to require annual or periodic justifications of an 
industry's need for special procedures. The Department does reserve the 
right to make appropriate changes to those procedures after 
consultation with the industry involved.
    Section 655.93(b) in the NPRM enables the Administrator/OFLC ``to 
establish or revise special procedures in the form of variances for 
processing certain H-2A applications when employers can demonstrate 
upon written application to and consultation with the OFLC 
Administrator that special procedures are necessary.'' In contrast, the 
current rule states that the subpart permits the Administrator/OFLC to 
``continue and * * * revise the special procedures previously in effect 
for the handling of applications for sheepherders in the Western States 
(and to adapt such procedures to occupations in the range production of 
other livestock) and for custom combine crews.''
    The Department received several comments about the proposed 
language, universally expressing concern that the new language provides 
the Department with broader authority for changing or revoking existing 
special procedures without providing due process with respect to 
altering the procedures. An association of growers/producers stated 
that the proposed rule uses ``more ominous terms'' and gives the 
impression that the Administrator/OFLC has unilateral authority to make 
changes without safeguards, review, or democratic procedures. One 
association of growers and producers expressed the view that the 
revocation language gives the Department authority to revoke the 
procedures without advance notice and opportunity for comment and is, 
therefore, a violation of the Administrative Procedure Act.
    A law firm that provides counsel to agricultural employers stated 
that the new language does not adequately solidify the Department's 
commitment to existing special procedures and recommended that the 
Department amend the regulation to affirm its commitment to continuing 
such long-standing special procedures by providing that any proposed 
changes to the existing special procedures and policies can be made 
only after publication in the Federal Register with at least a 120-day 
period for public comment. The firm also commented that the proposal to 
empower the Administrator/OFLC to revoke special procedures would 
violate Section 218(c)(4) of the INA, which requires the Secretary of 
Labor to issue regulations addressing the specific requirements of 
housing for employees principally engaged in the range production of 
livestock.
    The Department has decided, following consideration of these 
concerns, to retain the NPRM language in the final regulation, but has 
added language similar to that in the current regulation, to enumerate 
those special procedures currently in effect as examples of the use of 
special procedures. It is our belief that this provision, as it now 
reads, provides both the Department and employers using the H-2A 
program essential flexibility regarding special procedures, thus 
permitting the Department to be far more responsive to employers' 
changing needs, crop mechanization, and similar concerns. In addition, 
the language on special procedures in the Final Rule reaffirms the 
Department's continuing commitment to use special procedures where 
appropriate. The Department has no present intent to revoke any of the 
special procedures that are already in place, nor does the language of 
the final regulation give the Department any new power to do so. While 
it is possible that at some time in the future the Department may need 
to revoke or revise existing special procedures, that step would be 
taken with the same level of deliberation and consultation that was 
employed in the creation of those procedures. To strengthen our 
commitment to continue the current consultative process, we have 
changed the word ``may'' in the last sentence of paragraph (b) to 
``will.'' The provision also provides the Department with the authority 
to develop new procedures to meet employer needs and, additionally, 
provides employers with the opportunity to request that the Department 
consider additional procedures or revisions to existing special 
procedures. Proposed paragraph (c) has been deleted as unnecessarily 
duplicative of the language in paragraph (b).
    Two associations of growers and producers requested that the 
Department formulate special procedures for dairy workers, stating that 
these requested special procedures should not be different from those 
already established for sheepherders. The associations stated the 
provisions for sheepherders have ``special relevance to the current 
dairy situation'' and also stated the ``special procedures relieve the 
sheepherding industry from having to make a showing of temporary or 
seasonal employment.'' The longstanding special procedures that allow 
sheepherders to participate in the

[[Page 77113]]

H-2A program have their origins in prior statutory provisions dating 
back to the 1950s. The Department is unaware of any comparable 
statutory history pertaining to the dairy industry. The Department 
would, of course, consider a specific request from dairy producers or 
their representatives for the development of special procedures that 
would be applicable to eligible H-2A occupations (see further 
discussion on this point in the discussion of the definition of 
``agricultural labor or services'' below). The Department does not 
believe, however, that it would be appropriate to speculatively address 
the merits of a specific special procedures request in this regulation, 
particularly before a request making a detailed case for the 
appropriateness of such special procedures has been received.
    An individual employer commented that those involved in discussing 
and considering changes to the H-2A program should preserve the special 
procedures for sheepherders and extend them to all occupations engaged 
in the range production of other livestock (cattle and horses). A 
private citizen provided suggestions for improving the handling of 
certification for sheep shearers.
    The Department has previously established special procedures for 
open range production of livestock and sheep shearers and does not have 
any plans to change those procedures at this time and does not believe 
that it would be appropriate to address in this regulation the merits 
of the commenters' general suggestions for revising these special 
procedures. The Department would, of course, be willing to consider a 
specific request from livestock producers or their representatives for 
the revision or expansion of special procedures consistent with its 
authority and this regulation.
Section 655.100--Overview and definitions
(a) Overview
    The Department included a provision in the NPRM, similar to a 
provision in the current regulation, which provides an overview of the 
H-2A program. This overview provides the reader, especially readers 
unfamiliar with the program, a general description of program 
obligations, requirements, and processes.
    Only two commenters identified concerns with the overview as 
written. Both expressed concern with the proposed earlier time period 
for the recruitment of U.S. workers. They questioned whether U.S. 
workers who agreed to work on a date far in advance would then be 
available to work for the entire contract period. The overview, 
however, simply describes in broad-brush fashion the regulatory 
provisions that are discussed in detail later in the NPRM, and in and 
of itself has no legal effect. The concerns and observations expressed 
by commenters will be addressed in the context of the relevant 
regulatory provision to which they apply rather than in the overview. 
The overview has also been edited for general clarity and to reflect 
changes made throughout the regulatory text.
(b) Transition
    The Department, due to past program experience, has decided to add 
a transition period in order to provide an orderly and seamless 
transition to the new system created by these regulatory revisions. 
This will allow the Department to make necessary changes to program 
operations, provide training to the NPC, SWAs and stakeholder groups, 
and allow employers and their agents/representatives to become familiar 
with the new system. Employers with a date of need for workers on or 
after July 1, 2009 will be obligated to follow all of the new 
procedures established by these regulations. Prior to that time, the 
Department has created a hybrid system involving elements of the old 
and the new regulations as delineated in the new Sec.  655.100(b).
    Even though the NPRM put current and future users of H-2A workers 
on some notice regarding what this Final Rule will require, the rule as 
a whole implements several significant changes to the administration of 
the program. Several commenters requested that the Department allow 
employers some period of time to prepare and adjust their requests for 
temporary agricultural workers. These regulations implement new 
application forms, new processes, and new time periods for conducting 
recruitment for domestic workers to which current and new users of the 
program will need to become accustomed.
    The Department is accordingly adopting a transition period after 
the effective date of this Final Rule. The transition period 
establishes procedures that will apply to any application for which the 
first date of need for H-2A workers is no earlier than the effective 
date of this rule and no later than June 30, 2009.
    During this transition period, the Department will accept 
applications in the following manner: An employer will complete and 
submit Form ETA-9142, Application for Temporary Employment 
Certification, in accordance with Sec.  655.107, no less than 45 days 
prior to their date of need. The employer will simultaneously submit 
Form ETA-790 Agricultural and Food Processing Clearance Order (job 
order), with the Application for Temporary Employment Certification 
(application) directly to the Chicago NPC. Activities that are required 
to be conducted prior to filing an application under the Final Rule 
will be conducted post-filing during this transition period, much as 
they are under the current rule. The employer will also be expected to 
make attestations in its application applicable to its future 
recruitment activities, payment of the offered wage rate, etc. 
Employers will not be required to complete an initial recruitment 
report for submission with the application, but will be required to 
complete a recruitment report for submission to the NPC prior to 
certification, and will also be required to complete a final 
recruitment report covering the entire recruitment period.
    The employer will not separately request a wage determination from 
the Chicago NPC. Upon receipt of Forms ETA-9142 and ETA-790, the 
Chicago NPC will provide the employer with the minimum applicable wage 
rate to be offered by the employer, and will process the application 
and job order in a manner consistent with Sec.  655.107, issuing a 
modification for any curable deficiencies within 7 calendar days. Once 
the application and job order have been accepted, the Chicago NPC will 
transmit a copy of the job order to the SWA(s) serving the area of 
intended employment to initiate intrastate and interstate clearance, 
request the SWA(s) schedule an inspection of the housing, and provide 
instructions to the employer to commence positive recruitment in a 
manner consistent with Sec.  655.102. The NPC will designate labor 
supply States during this transition period on a case-by-case basis, 
applying the basic information standard for such designations that is 
set forth in Sec.  655.102(i).
    This transition period process will apply only to applications 
filed on or after the effective date of this regulation with dates of 
need no earlier than the effective date and no later than June 30, 
2009. Employers with a date of need on or after July 1, 2009 will be 
expected to fully comply with all of the requirements of the Final 
Rule. Moreover, after the Final Rule's effective date, the requirements 
of the Final Rule will fully apply except for those modifications that 
are expressly mentioned as transition period procedures in Sec.  
655.100(b); all other

[[Page 77114]]

provisions of the Final Rule will apply on the effective date of the 
Final Rule.
    These transition period procedures are designed to ensure that 
employers seeking to utilize the program immediately after its 
effective date, especially those with needs early in the planting 
season, will not be prejudiced by the new pre-filing requirements 
regarding wage determinations and recruitment, which might otherwise 
substantially impact employers' application timing. Because the 
Department's seasonal H-2A workload begins to peak in January of each 
year, however, the Department deems it essential to the smooth and 
continuous operation of the H-2A program throughout calendar year 2009 
to make the rule effective as early in the year as possible.
(c) Definitions 655.100
Definition of ``agent,'' ``attorney,'' and ``representative''
    The Department did not propose any changes to the definition of 
``agent'' from existing regulations but added definitions for 
``attorney'' and ``representative'' in the proposed rule. A major trade 
association commented that the definitions of, and references to, the 
terms ``agent,'' ``attorney'' and ``representative'' are confusing. The 
association found the definitions of agent and representative to be 
duplicative and the distinctions between these two terms, both of which 
encompass the authority to act on behalf of an employer, unclear. The 
association also commented that the definition of ``attorney'' is self-
evident and appears to be a vehicle for permitting attorneys to act as 
``agents'' or ``representatives.'' Further, according to the commenter, 
the term ``representative'' is also problematic and the Department 
should consider revising it or eliminating it entirely. The association 
believes the main purpose of the definition is to deem the person who 
makes the attestations on behalf of the employer a ``representative,'' 
but the association believes it is not clear whether the intent of the 
definition of ``representative'' is to also make the representative 
liable for any misrepresentations made in an attestation on behalf of 
an employer. The association recommended the proposed rule should 
clarify the intent of the definition of ``representative'' and also 
under what circumstances an agent will be liable for activities 
undertaken on behalf of an employer. The association recommended a 
clear set of standards for liability and suggested such standards 
should not deviate from the current standards where agents, attorneys, 
and representatives (under the proposed rule) are not liable if they 
perform the administrative tasks necessary to file labor certification 
applications and petitions for visas and do not make attestations that 
are factually based. In addition, the association recommended that the 
agents, attorneys, or representatives should not be liable for program 
violations by the employer.
    The Department understands the need for clarity in determining who 
qualifies as a representative before the Department and what 
responsibilities and liabilities attach to that role and has 
accordingly simplified the definition of a representative. Although the 
Department does distinguish between the different roles of attorneys 
and agents, both groups are held to the same standards of ethics and 
honesty under the Department's rules. Under the rules, attorneys can 
function as agents, and either attorneys or agents can function as a 
representative of the employer. The Department has, in addition, 
replaced the word ``official'' with ``person or entity'' to parallel 
the definition of agent.
    However, the Department disagrees with the commenter's 
interpretation of the extent to which an agent or attorney can be held 
accountable by the Department for their own and their clients' conduct 
in filing an application for an employer. While agents and attorneys 
are of course not strictly liable for all misconduct engaged in by 
their clients, they do undertake a significant duty in attestations to 
the Department regarding their employer-clients' obligations. They are, 
therefore, responsible for exercising reasonable due diligence in 
ensuring that employers understand their responsibilities under the 
program and are prepared to execute those obligations. Agents and 
attorneys do not themselves make the factual attestations and are not 
required to have personal knowledge that the attestations they submit 
are accurate. They are, however, required to inform the employers they 
represent of the employers' obligations under the program, including 
the employers' liability for making false attestations, and the 
prohibition on submitting applications containing attestations they 
know or should know are false. The debarment provisions at Sec.  
655.118 of the final regulations have accordingly been clarified to 
state that agents and attorneys can be held liable for their employer-
clients' misconduct when they ``participated in, had knowledge of, or 
had reason to know of, the employer's substantial violation.''
    The same association also questioned why the Department is 
``singling out attorneys'' in the definition of ``representative'' by 
requiring an attorney who acts as an employer's representative and 
interviews and/or considers U.S. workers for the job offered to the 
foreign worker(s) to also be the person who normally considers 
applicants for job opportunities not involving labor certifications. 
The association found no apparent rationale justifying why the 
Department should dictate who and under what circumstances an attorney 
or any other person should interview U.S. job applicants. It further 
recommended that the rule eliminate the reference to attorneys or, at a 
minimum, clarify that the rule does not reach attorneys who merely 
advise and guide employers through the H-2A program. The Department has 
accordingly clarified the definition of representative by deleting the 
sentence limiting the role attorneys can play in interviewing and 
considering workers, primarily because, unlike other labor 
certification programs administered by the Department, the relatively 
simple job qualifications that apply to most agricultural job 
opportunities render it unlikely that U.S. workers would be discouraged 
from applying for those jobs by the prospect of being interviewed by an 
attorney.
    A specialty bar association urged that the definition of ``agent'' 
be changed in order to prevent abuses related to foreign nationals 
paying recruiters' fees. The association suggested that the Department 
limit representation of employers to that recognized by DHS: attorneys 
duly licensed and in good standing; law students and law graduates not 
yet licensed who are working under the direct supervision of an 
attorney licensed in the United States or a certified representative; a 
reputable individual of good moral character who is assisting without 
direct or indirect remuneration and who has a pre-existing relationship 
with the person or entity being represented; and accredited 
representatives, who are persons representing a nonprofit organization 
which has been accredited by the Board of Immigration Appeals.
    The Department acknowledges that its allowance of agents who are 
not attorneys and who do not fit into the categories recognized by DHS 
creates a difference of practices between the two agencies. However, 
the Department has for decades permitted agents who do not meet DHS's 
criteria to appear before it. Agents who are not attorneys have 
adequately represented claimants before the Department in a wide 
variety of

[[Page 77115]]

activities since long before the development of the H-2A program. To 
change such a long-standing practice in the context of this rulemaking 
would represent a major change in policy that the Department is not 
prepared to make at this time. The Department has, however, added 
language to the definition of both ``agent'' and ``attorney'' to 
clarify that individuals who have been debarred by the Department under 
Sec.  655.118 cannot function as attorneys or agents during the period 
of their debarment.
Definition of ``adverse effect wage rate''
    The Department proposed a revised definition of ``adverse effect 
wage rate,'' limiting its application to only H-2A workers. A law firm 
commented that the proposed definition of ``adverse effect wage rate'' 
appears to apply only to H-2A workers and not to U.S. workers who are 
employed in ``corresponding employment.'' The Department has clarified 
the definition to make clear that those hired into corresponding 
employment during the recruitment period will also receive the highest 
of the AEWR, prevailing wage, or minimum wage, as applicable. The firm 
also requested the same revision to 29 CFR Part 501 regulations. The 
Department believes that this requirement is adequately explained in 
the text of the regulations at Sec.  655.104(l) and Sec.  655.105(g).
Definition of ``agricultural association''
    The Department added a definition for ``agricultural association'' 
in the proposed regulation. A major trade association commented that 
the proposed definition does not acknowledge that associations may be 
joint employers and suggests that the definition could cause confusion 
because other sections of the proposed regulation acknowledge that 
associations may have joint employer status. The association 
recommended the definition clarify that agricultural associations may 
serve as agents or joint employers and define the circumstances under 
which joint employer arrangements may be utilized. A professional 
association further commented that associations should not be exempt 
from Farm Labor Contractor provisions if the associations are 
performing the same activities as Farm Labor Contractors.
    The Department agrees that agricultural associations play a vital 
role in the H-2A program and seeks to minimize potential confusion 
about their role and responsibilities. The regulation has been revised 
to clarify that agricultural associations may indeed serve as sole 
employers, joint employers, or as agents. The definition of ``H-2A 
Labor Contractors'' has also been revised to clearly differentiate 
labor contractors from agricultural associations and that an 
agricultural association that meets the definition in this part is not 
subject to the requirements attaching to H-2A Labor Contractors. 
Finally, the regulation has been clarified by specifying that 
``processing establishments, canneries, gins, packing sheds, nurseries, 
or other fixed-site agricultural employers'' can all be encompassed by 
agricultural associations.
Definition of Application for Temporary Employment Certification
    The Department has added to the Final Rule a definition of 
Application for Temporary Labor Certification. An Application for 
Temporary Labor Certification is an Office of Management and Budget 
(OMB)-approved form that an employer submits to DOL to secure a 
temporary agricultural labor certification. A complete submission is 
required to include an initial recruitment report.
Definition of ``date of need''
    The Department slightly modified the definition of ``date of need'' 
to clarify that the applicable date is the one that is specified in the 
employer's Application for Temporary Employment Certification.
Definition of ``employ'' and ``employer''
    In the NPRM, the Department added a definition for ``employ'' and 
made revisions to the existing definition of ``employer.'' A trade 
association suggested that the Department eliminate the definition of 
``employ'' but retain the definition of ``employer,'' stating that the 
definition of ``employ'' adds nothing to clarify status or legal 
obligations under the H-2A program. The association believes the status 
of an employer under the H-2A program is defined by the labor 
certification and visa petition processes and that the incorporation of 
the broad FLSA and MSPA definitions of ``employ'' insinuate broad legal 
concepts that add unnecessary confusion. The association further 
recommended that the Department eliminate the fourth criterion related 
to joint employment status in its proposed definition of ``employer'' 
and, instead, provide a separate definition of joint employer 
associations and the respective liabilities of the association and its 
joint employer members.
    The Department agrees with these comments and has, accordingly, 
removed the definition of ``employ'' as superfluous and created a 
separate definition of ``joint employment'' (using that portion of the 
definition of employer which discussed joint employers) to eliminate 
any confusion between the two terms. The definition of ``employer'' has 
also been revised. First, the Final Rule clarifies the proposal's 
statement that an employer must have a ``location'' within the U.S. to 
more specifically state that it must have a ``place of business 
(physical location) within the U.S.'' Second, out of recognition that 
some H-2A program users, such as H-2ALCs, are itinerant by nature, and 
that SWA referrals may thus occasionally need to be made to non-fixed 
locations, the Final Rule states that an employer must have ``a means 
by which it may be contacted for employment'' rather than a specific 
location ``to which U.S. workers may be referred.'' Finally, the Final 
Rule clarifies that an employer must have an employment relationship 
``with respect to H-2A employees or related U.S. workers under this 
subpart'' rather than less specifically referring to ``employees under 
this subpart,'' and deletes the references to specific indicia of an 
employment relationship because the applicable criteria are spelled out 
in greater detail in the definition of ``employee.'' The definition of 
``joint employer'' is modified slightly from the concept that appeared 
in the NPRM to clarify that the two or more employers must each have 
sufficient indicia of employment to be considered the employer of the 
employee in order to meet the test for joint employment.
Definition of ``farm labor contracting activity'' and ``Farm Labor 
Contractor (FLC)''
    The Department proposed adding definitions for ``farm labor 
contracting activity'' and ``Farm Labor Contractor (FLC)'' to this 
section. In the Final Rule, the Department has eliminated the 
definition for ``farm labor contracting activity'' and revised the 
definition for ``Farm Labor Contractor.'' The revised definition is now 
contained under the heading ``H-2A Labor Contractor.''
    A law firm commented that neither agents nor attorneys should be 
required to register as H-2A Labor Contractors. The commenter did not 
specifically address why it believed agents and attorneys would be 
required to register under the proposed definitions, so the Department 
is unable to respond to this point. As a general matter, however, an 
agent or attorney, if performing labor contracting activities as they 
appear in the revised definition of an H-2A Labor Contractor, would be 
required to register

[[Page 77116]]

as, and would be held to the standards of, an H-2A Labor Contractor.
    A group of farmworker advocacy organizations commented that the 
definition proposed for Farm Labor Contractor (H-2A Labor Contractor) 
would exclude recruiters of foreign temporary workers from the scope of 
the rule, making enforcement impossible. This organization pointed out 
that under the Migrant and Seasonal Agricultural Worker Protection Act 
(MSPA), H-2A workers are not migrant or seasonal agricultural workers 
and, therefore, a contractor recruiting workers to become H-2A visa 
holders would not fit within the proposed regulatory definition. The 
organization also commented that the reference to ``fixed-site'' 
employers in the ``farm labor contracting activity'' definition could 
present problems in some employment situations, such as employment for 
a custom harvester, where the employer would not have a fixed site. An 
association of growers/producers suggested the MSPA definitions for 
``farm labor contracting activity'' and ``Farm Labor Contractor'' 
should be used.
    In response to the comments, the Department has deleted the 
definition of ``agricultural employer'' and included a separate 
definition for ``fixed-site employer.'' The Department also deleted the 
definition of ``Farm Labor Contractor'' in the final regulation and 
replaced it with a new definition for ``H-2A Labor Contractor.'' This 
will differentiate the two terms since the definition of an ``H-2A 
Labor Contractor'' does not match the definition of a ``Farm Labor 
Contractor'' as used in MSPA, and the operational differences between 
the H-2A program and MSPA do not allow perfect parallels to be drawn 
between the two statutory schemes. The definition of ``farm labor 
contracting activity'' has been deleted as redundant since the 
activities have been made part of the definitions of ``fixed-site 
employer'' and ``H-2A Labor Contractor.''
Definition of ``joint employment''
    The Department included in its definition of ``employment'' a 
reference to what would constitute ``joint employment'' for purposes of 
the H-2A program. The Department received one comment suggesting the 
inclusion of the definition of ``joint employment'' within the 
definition of ``employment'' was confusing. The Department has 
accordingly removed the last phrase from the proposed definition of 
``employer'' and provided a separate definition for ``joint 
employment.''
Definition of ``prevailing''
    The Department proposed a revision to the definition of 
``prevailing'' to include, ``with respect to certain benefits other 
than wages provided by employers and certain practices engaged in by 
employers, that practice or benefit which is most commonly provided by 
employers (including H-2A and non-H-2A employers) for the occupation in 
the area of intended employment.'' This represented a change from the 
current rule, which does not refer to ``commonly provided'' practices 
or benefits but instead uses a percentage test (50 percent or more of 
employers in an area and for an occupation must engage in the practice 
or offer the benefit for it to be considered ``prevailing,'' and the 50 
percent or more of employers must also employ in aggregate 50 percent 
or more of U.S. workers in the occupation and area''). The Department 
received comments on the change, specifically inquiring whether the 
SWAs would continue to conduct prevailing wage and practice surveys, 
and requesting that if the Department intends to no longer require SWAs 
to conduct prevailing wage and practice surveys, the change should be 
discussed in the preamble.
    The Department has determined that, to provide greater clarity and 
for ease of administration, the definition of ``prevailing'' will 
revert to the definition in the current regulation that requires that 
50 percent or more of employers in an area and for an occupation engage 
in the practice or offer the benefit and that the 50 percent or more of 
the employers in an area must also employ in aggregate 50 percent or 
more of U.S. workers in the occupation and area.
    The Department notes it does not intend to change the provision on 
prevailing wage surveys currently undertaken by SWAs. The Department 
has included specific definitions for the terms ``prevailing piece 
rate'' and ``prevailing hourly rate,'' the two kinds of wage surveys 
that have traditionally been undertaken by SWAs, and has included 
express references to both types of surveys throughout the rule.
Definition of ``strike''
    The Department has been added to the Final Rule a definition for 
the term strike. The definition conforms to the changes explained in 
the discussion of Sec.  655.105(c), and clarifies that the Department 
will evaluate whether job opportunities are vacant because of a strike, 
lockout, or work stoppage on an individualized, position-by-position 
basis.
Definition of ``successor in interest''
    The Department's proposal included a debarment provision allowing 
for debarment of a successor in interest to ensure that violators are 
not able to re-incorporate to circumvent the effect of the debarment 
provisions. A national agricultural association commented that this 
provision as drafted could result in an innocent third party buying the 
farm of a debarred farmer and being subject to debarment, even though 
the successor is free of any wrongdoing, and thus the rule would place 
roadblocks on the sale of assets to innocent parties.
    The Department agrees with this commenter. We have addressed this 
issue by including a definition of ``successor in interest'' to make 
clear that the Department will consider the facts of each case to 
determine whether the successor and its agents were personally involved 
in the violations that led to debarment in determining whether the 
successor constitutes a ``successor in interest'' for purposes of the 
rule.
Definition of ``United States''
    The Consolidated Natural Resources Act of 2008, Public Law 110-229, 
Title VII (CNRA), applies the INA to the Commonwealth of the Northern 
Mariana Islands (CNMI) at the completion of the transition period as 
provided in the CNRA, which at the earliest, would be December 31, 
2014. Accordingly, the H-2A program will not apply to the CNMI until 
such time. However, the CNRA amends the definition of ``United States'' 
in the INA to include the CNMI. It should be noted that the amendment 
to the INA of the definition of ``United States'' does not take effect 
until the beginning of the transition period which could be as early as 
June 1, 2009, but may be delayed up to 180 days. Accordingly, the 
Department has included CNMI in the definition of ``United States'' 
with the following qualification: ``as of the transition program 
effective date, as defined in the Consolidated Natural Resources Act of 
2008, Public Law 110-229, Title VII.'' The Department will publish a 
notice in the Federal Register at such time that its regulations 
regarding the foreign labor programs described in the INA, including 
the H-2A program, will apply to the Commonwealth.
Definition of ``Within [number and type] days''
    The Department has added to the Final Rule a definition of the term 
within [number and type] days. The definition clarifies how the 
Department will calculate timing for meeting filing

[[Page 77117]]

deadlines under the rule where that term, in some formulation, appears. 
The definition specifies that a period of time described by the term 
``within [number and type] days'' will begin to run on the first 
business day after the Department sends a notice to the employer by 
means normally assuring next-day delivery, and will end on the day that 
the employer sends whatever communication is required by the rules back 
to the Department, as evidenced by a postal mark or other similar 
receipt.
Definition of ``Work contract''
    The Department has added to the Final Rule a definition of the term 
work contract. The definition was borrowed from the definition section 
of 29 CFR part 501 of the NPRM, with minor modifications made for 
purposes of clarification.
d. Definition of ``agricultural labor or services''
    The Department proposed changes to the definition of ``agricultural 
labor or services'' to clarify, as in the current regulation, that an 
activity that meets either the Internal Revenue Code (IRC) or the Fair 
Labor Standards Act (FLSA) definition of agriculture is considered 
agricultural labor or services for H-2A program purposes and, more 
significantly, to remove limitations on the performance of certain 
traditional agricultural activities which, when performed for more than 
one farmer, are not considered agricultural labor or services under the 
IRC or the FLSA, including packing and processing.
    The Department received several comments supporting these changes, 
with some specific suggestions for additional changes. A major trade 
association complimented the Department on providing ``bright line'' 
definitional guidance regarding the activities that constitute 
agricultural work to be covered by the H-2A program as distinct from 
the H-2B program. A number of these commenters mentioned that the 
Department's inclusion of packing and processing activities in work 
considered as agricultural provides an option for obtaining legal 
workers, especially in light of the numerical limitations on H-2B 
visas. One association of growers/producers supported the expansion of 
the current definition to include packing and processing but suggested 
that agricultural employers who have previously used the H-2B program 
for packing or processing operations be allowed to continue using the 
H-2B program. Another association of growers/producers suggested that 
the definition be changed to allow product that is moving from on-farm 
production directly to the end consumer be included as permissible work 
for H-2A workers, and suggested that the definition provide that it is 
a permissible activity for H-2A workers to work on production of a 
purchased crop when the crop is purchased by a farm because of weather 
damage to that farm's crops in a particular year.
    The Department appreciates the general support for the proposed 
changes and has retained them in the final regulation. Regarding 
packing and processing activities, the proposed definition includes as 
agricultural activities ``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 
while in the employ of the operator of a farm.'' In response to the 
request to allow employers who have used the H-2B program for packing 
or processing operations to continue using the H-2B program, the 
Department has revised the definition to clarify that while the 
Department cannot permit H-2A workers and H-2B workers to 
simultaneously perform the same work at the same establishment, the 
distinctions between establishments at which operations of this nature 
should be performed by H-2A workers and those at which the operations 
should be performed by H-2B workers are too fine for the Department to 
reasonably distinguish between them with sufficient precision to 
establish a bright line test. The Department will therefore defer to 
operators as to whether the ``handling, planting, drying, packing, 
packaging, processing, freezing, grading, storing or delivering'' 
operations at their particular establishment are more properly governed 
by the H-2A or the H-2B program, but will not accept applications for 
both kinds of workers to simultaneously perform the same work at the 
same establishment.
    The Department agrees with the comment that H-2A workers should be 
permitted to work in the production of a purchased crop, as well as 
work in processing or packing a farm product that is moving from on-
farm production directly to the end consumer. Moreover, the Department 
believes such activities are permitted by the definition in the 
proposed rule and therefore the provision requires no additional 
language in the Final Rule.
    The Department has clarified the Final Rule to reflect existing 
law, which provides that work performed by H-2A workers, or workers in 
corresponding employment, which is not defined as agriculture under 
Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. 203(f), is 
subject to the provisions of the FLSA as provided therein, including 
the overtime provisions in Section 7(a)(29 U.S.C. 207(a)).
Incidental Activities
    The Department also proposed clarifications to reflect that work 
activity of the type typically performed on a farm and incident to the 
agricultural labor or services for which an H-2A labor certification 
was approved may be performed by an H-2A worker. A number of 
commenters, including a professional association, a major trade 
association, and several associations of growers/producers supported 
this change, stating that it was positive and would provide more 
flexibility for employers. A major trade association commented this 
change would allow employers to include duties in H-2A certified job 
opportunities that reflect the actual duties performed by farm workers 
and further commented that, ``[p]resumably the provision will cover a 
farm worker who engages in incidental employment in the farm's roadside 
retail stand, a farm worker who assists in managing `pick your own' 
activities, and a farm worker who occasionally drives a tractor pulling 
a hay wagon for a hay ride, to cite a few examples of incidental 
activities customarily performed by farm workers that have been 
disallowed in the past.'' This commenter's understanding of the 
Department's interpretation is correct.
    One association of growers/producers commented that allowing H-2A 
workers to perform duties typically performed on a farm benefits the 
employee as well as the employer. A trade association commented that 
being able to use workers in other jobs not listed on the contract is 
needed, particularly when weather prevents field work.
    The Department has revised the wording in the definition of 
``agricultural labor or services'' provided in Sec.  655.100(d)(1)(vi) 
to provide additional clarity for employers. The definition now reads: 
``Other work typically performed on a farm that is not specifically 
listed on the Application for Temporary Employment Certification and is 
minor (i.e., less than 20 percent of the total time worked on the job 
duties that are listed on the Application for Temporary Employment 
Certification) and incidental to the agricultural labor or services for 
which the H-2A worker was sought.'' The Department recognizes that, due 
to the unpredictable nature of weather

[[Page 77118]]

conditions and agricultural work itself, employers need some 
flexibility in assigning tasks, and that it would be difficult if not 
impossible to list all potential minor and incidental job 
responsibilities of H-2A workers on the Application for Temporary 
Employment Certification. The proposed amendment of the definition is 
intended to recognize the reality of working conditions at agricultural 
establishments and ensure that an H-2A worker's performance of minor 
and incidental activity does not violate the terms and conditions of 
the worker's H-2A visa status. The further revision to the definition 
will assist employers in determining whether activities or work not 
included on the Application for Temporary Employment Certification can 
reasonably be considered as minor and incidental.
Inclusion of Other Occupations
    The Department proposed to include logging employment in its 
definition of ``agricultural labor or services'' for purposes of the H-
2A program. Two commenters voiced their support for this inclusion; we 
received no comments in opposition. The Department also sought comments 
as to whether there are other occupations that should be included 
within the definition of agriculture used in the H-2A program. The 
Department received several suggestions of other industries that should 
be considered, including livestock and dairy producers, fisheries, 
nurseries, greenhouses, landscapers, poultry producers, wine 
businesses, equine businesses, turf grass growers, mushroom producers, 
maple syrup producers, and employers engaging in seasonal food 
processing as well as growers who operate processing and packing 
plants.
    Of those requesting expansion of the definition to include other 
occupations, representatives of the dairy industry submitted the most 
comments. A major trade association and a number of associations of 
growers/producers commented that the dairy industry is unable to use 
the H-2A agricultural worker visa program and that this exclusion is 
unfair. They stated dairy farmers need and deserve the same access to 
legal foreign workers as other sectors of the agricultural industry. 
The association suggested that H-2A visas for dairy workers should last 
at least three years rather than one. Two trade association commenters 
stated they understood the importance under the statutory definition of 
H-2A workers needing to be temporary or seasonal, but not why the jobs 
themselves needed to be temporary or seasonal. A farm bureau provided 
comments suggesting dairy and livestock operations should be allowed to 
designate seasonal jobs within their operations for which H-2A workers 
could be employed. This association commented that current worker 
patterns suggest typical milkers stay in their positions for 9 to 10 
months and then voluntarily leave, but return to seek a job after 2 to 
3 months.
    The Department also received comments from an association of 
growers/producers and from two individual employers requesting that 
reforestation work be considered as agricultural labor. These 
commenters assert that there are reforestation activities including 
planting, weed control, herbicide application and other unskilled tasks 
related to preparing the site and cultivating the soil and that workers 
who perform these tasks deserve consideration for eligibility for H-2A 
visas, as do workers who perform the same or similar tasks in 
cultivating other agricultural and horticultural commodities on many of 
the same farms. These commenters also pointed out that workers 
performing reforestation tasks for farmers or on farms are clearly 
agricultural employees under the FLSA and, additionally, believed the 
Internal Revenue Code supports their position for considering 
reforestation work performed on a farm or for a farmer as agricultural 
labor or services.
    Following review of the comments discussed above, the Department 
has decided the definition of agriculture should not be further 
expanded at this time and no additional activities have been selected 
for inclusion as agricultural activities beyond those included in the 
NPRM. In most cases where there was the suggestion for the inclusion of 
a particular industry or activity in the definition of agriculture 
there was not strong support for the inclusion by representatives of 
that industry, as indicated by the number and source of the comments 
received. For example, one commenter supported adding maple syrup 
harvesting and ancillary activities to the definition of agricultural 
labor. The suggestion did not come from someone actually involved in 
the maple syrup industry, however, but rather from a State Workforce 
Agency. While the Department appreciates the input of such commenters, 
it would be inappropriate to impose on those industries (most of which 
currently qualify for the H-2B program rather than the H-2A program) 
changes that the industry itself did not seek.
    The two exceptions to this pattern in the comments were the dairy 
industry and the reforestation industry, both of which, as discussed 
above, submitted comments evidencing industry-based support. The 
Department's analysis of the comments from the dairy industry, however, 
indicates it is not the program's definition of agriculture, which 
already includes dairy activities, that presents a potential barrier to 
the industry's use of the H-2A program, but rather the statutory 
requirement for the work to be temporary or seasonal in nature.
    The H-2A program, by statute, provides a means for agricultural 
employers to employ foreign workers on a temporary basis. Many dairy-
related job needs, however, appear to be year-round and permanent in 
nature.
    While the H-2A program is specially designed for agricultural 
employers, they are not limited to using only the H-2A program. The 
employment-based permanent visa program is also open to agricultural 
employers with a permanent need for which they are unable to secure 
U.S. workers. At the same time, year-round operations are permitted to 
seek certification to utilize H-2A workers for seasonal or temporary 
jobs within their industries when they can substantiate the temporary 
or seasonal nature of the jobs. The Department recognizes that an 
employer may have both permanent and temporary jobs in the same 
occupation. However, employers should be aware that the Department does 
not typically approve subsequent applications requesting foreign 
workers for the same position when, taken together, those applications 
would cover a continuous period of time in excess of 10 months, unless 
exceptional circumstances are present.
    The comments from the reforestation industry, while thoughtful, 
represented the input of only two individual employers and a single 
employer association who do not necessarily provide a representative 
sample of the entire reforestation industry. The Department is 
reluctant to overturn the regulatory practices of several decades and 
impose the significant obligations of an H-2A employer on an entire 
industry without significant input from that industry. While the 
Department is willing to further explore whether to include the 
reforestation industry in the definition of agriculture, it does not 
believe a decision to do so is warranted at this time.
``On a seasonal or other temporary basis''
    The Department proposed a definition of the key terms ``on a 
seasonal or other temporary basis'' in the definition of

[[Page 77119]]

agricultural labor or services in the NPRM that continued the 
interpretation of the current regulation. We received several comments 
related to the phrase ``on a seasonal or other temporary basis.'' A 
trade association suggested the rule borrow the temporary and seasonal 
concepts from the Migrant and Seasonal Agricultural Workers Protection 
Act (MSPA) definitions that are appropriate in an H-2A context without 
incorporating the MSPA regulations and related judicial precedent. It 
was the association's belief that this approach would allow an H-2A 
worker to be admitted for longer than a 10-month period. An association 
of growers/producers suggested the definition of temporary or seasonal 
should apply to the worker rather than the job and also that year-round 
farming operations/nurseries should be allowed to access a workforce to 
provide year-round services by rotating ``shifts'' of workers with 
different contract/visa periods. Another trade association also 
suggested the definition and interpretation of temporary and seasonal 
could be expanded.
    The Department does not agree that the definition of temporary or 
seasonal should focus on the worker rather than the job. The INA is 
clear that the employer must have a need for foreign labor to undertake 
work of a temporary or seasonal nature for which it cannot locate U.S. 
workers. The Department's position has traditionally been that job 
opportunities that are permanent in nature do not qualify for the H-2A 
program. The controlling factor is the employer's temporary need, 
generally less than 1 year, and not the nature of the job duties. See 
Matter of Artee Corp., 18 I&N Dec. 366 (Comm. 1982); see also Global 
Horizons, Inc. v. DOL, 2007-TLC-1 (November 30, 2006) (upholding the 
Department's position that a failure to prove a specific temporary need 
precludes acceptance of temporary H-2A application); see also 11 U.S. 
Op. Off. Legal Counsel 39 (1987). An H-2A worker could, however, be 
employed continuously by successive H-2A employers having a temporary 
need for the worker's services and thus be employed and remain in the 
U.S. for a period beyond one year.
    In addition, the Department has made several edits to the 
Definitions section of the NPRM to provide consistency with other 
changes to the regulatory text and to clarify the Final Rule. For 
example, the definition of ``Application for Temporary Employment 
Certification'' has been amended to help ensure the public has a clear 
understanding of what this regulation requires. Other definitions, such 
as ``temporary agricultural labor certification determination'' and 
``unauthorized alien,'' have been eliminated because they are not used 
in this regulation. We have also made non-substantive changes to 
provide clarity and to comport with plain English language 
requirements.
Section 655.101 Applications for Temporary Employment Certification in 
Agriculture
(a) Instituting an Attestation-based Process
    The Department proposed instituting an application requiring 
employers to attest to their adherence to the obligations of the H-2A 
program. The Department received several comments in favor of the new 
process, several opposed, and others generally in favor but suggesting 
changes to the process as outlined in the Department's proposal.
    Some commenters believed that attestations to future events should 
not be required, and that attestations should be made under the 
``applicant's best knowledge and belief'' standard and not the ``under 
penalty of perjury'' standard because applicants cannot know what will 
happen in the future.
    The Department believes that the attestations the Final Rule 
requires employers to make do not require employers to predict future 
events, but rather represent straightforward commitments to comply with 
program requirements. Such compliance is fully in the control of the 
employer. It is, therefore, not necessary to delete or modify the 
manner in which attestations are made.
(1) Support for an Attestation-based Process
    Those commenters who favored the shift to an attestation-based 
process generally believed the new process would make the H-2A 
application more efficient and less burdensome for employers. One State 
government agency commented that the process would enable the SWAs to 
focus on job orders, referrals, and housing inspections while relieving 
them of the burden to review the applications themselves. Another 
commenter supported the shift but encouraged the Department to ensure 
the ``Administrator * * * acquires the agricultural expertise necessary 
to provide training and guidance to those who are reviewing and 
overseeing the operating of a program that is critical to future U.S. 
agricultural production.''
    The Department appreciates support for its proposed process. As of 
June 1, 2008, the Department has centralized the Federal processing of 
all applications for H-2A temporary foreign workers in the Chicago 
National Processing Center. This centralization will enhance the 
Department's ability to handle the expected increases in the usage of 
the H-2A program and ensure consistency in application of program 
requirements. The Department recognizes the unique needs and timeframes 
associated with this program and anticipates that centralization will 
lead to the development of greater expertise to meet those needs and 
timeframes. It also believes that centralized processing of 
applications will facilitate the identification of areas where program 
training should be enhanced and that the centralized environment will 
maximize the effectiveness of such training.
    An association of growers/producers supported the attestation-based 
process but found the process, as described in the proposed regulation, 
confusing and duplicative. This commenter requested that all of the 
attestation requirements be consolidated into one rule clearly stating 
which facts are to be verified.
    The Department appreciates the commenter's suggestion about 
consolidation of the attestation requirements and, as provided in the 
proposal, has retained the comprehensive listing of the requirements in 
Sec.  655.105, ``Assurances and Obligations of H-2A Employers'' and 
Sec.  655.106, ``Assurances and Obligations of H-2A Labor 
Contractors.'' It was not clear if this commenter was requesting a 
consolidated listing of the attestations required by both the 
Departments of Labor and Homeland Security. The Department of Labor is 
including in the comprehensive lists only those attestations that DOL 
requires. The commenter did not include specific examples of 
duplication or confusing information and the Department, therefore, is 
unable to provide any further response.
(2) Legality of the Attestation-based Process
    Several of the commenters who opposed the change asserted an 
attestation-based process conflicts with the statutory mandate in 
Section 218 of the INA (8 U.S.C. 1188). These commenters interpreted 
the INA to require the Department to make a determination based upon an 
active verification of the H-2A application. One group commented that 
the attestation process violates the statute's Congressional mandate. 
Two organizations expressed the belief that the certification process 
has always been understood to require active

[[Page 77120]]

oversight by the Department of the employer's recruitment and hiring of 
U.S. workers as well as the details of the job offer. One commenter, an 
advocacy organization, voiced the opinion that the statutory standard 
is not whether the employer has made adequate assurances that it has or 
will meet the obligations of the H-2A program but is whether the 
employer has actually met them. Another commenter opined that labor 
certifications were not meant to be attestation-based and that this 
approach will dramatically reduce government oversight of this program. 
These commenters believe that the Secretary will not be able to certify 
that wages and working conditions have not been adversely affected and 
that this regulation is contrary to the statute.
    The attestation-based process implemented by the Final Rule is not 
inconsistent with any statutory requirements, but rather is a 
reasonable means selected by the Department to fulfill its statutory 
responsibilities. The Department does not interpret Section 218 of the 
INA to specify a particular methodology that the Department must employ 
to determine that all of the statutory criteria have been met, and 
indeed, various aspects of the Department's methodology have changed 
through the years. The attestation-based system, backed by audits, that 
is implemented by the Final Rule is an acceptable means, within the 
reasonable discretion of the Secretary, for the Department to ensure 
that the statutory criteria for certification are met and that program 
requirements are satisfied. Similar approaches have been used by the 
Department in other contexts (such as approval of permanent labor 
certifications) to fulfill its statutory responsibilities. Indeed, as 
discussed in greater detail in various sections below, under the 
statutory time limits for filing applications and issuing 
certifications the Department typically makes certification 
determinations on applications prior to the completion of many of the 
recruitment requirements and without any direct observation or 
inspection by the Department or its SWA agents that rental housing 
secured by employers complies with all of the applicable legal 
standards.
    No system for review and approval of applications, of course, is 
foolproof, and the statute prescribes appropriate penalties for 
situations in which the terms of approved labor certifications are 
later violated. See 8 U.S.C. 1188(b)(2)(A). There will always be bad 
actors who attempt to circumvent program requirements. Employers 
sometimes violate program requirements under the current H-2A 
application process, and the Department has also detected violations in 
other foreign worker programs it administers. Under the final rule, the 
Department will have more enforcement tools at its disposal than ever 
before to deal with such violations. The Department believes that the 
attestation-based process fully complies with all statutory 
requirements and, when utilized in concert with a strong audit and 
review process, represents the best means for the Department to deploy 
its limited resources in a manner that ensures that statutory timelines 
are met and that the program's integrity is maintained.
(3) Protections for U.S. Workers in an Attestation-based Process
    Several commenters believed the proposed attestation-based process 
would not provide adequate protections for U.S. and H-2A workers 
because it would reduce the oversight responsibilities of the 
Department. Some of these commenters also said the current system 
should be maintained to ensure that the Department oversees worker 
protection, especially in the areas of housing and wages. An 
organization commented that while this change may ease the application 
process for employers it ignores the damage that could be caused by 
false attestations and a lack of active oversight of the job terms, 
recruitment, and hiring of U.S. workers. A farmworker advocacy 
organization questioned the change to an attestation-based process 
claiming there is a long history of labor abuse in agriculture and 
saying they believed that when ``self-inspection procedures'' are 
implemented they are generally based upon a prior record of compliance 
and an accompanying determination that resources would be better 
utilized in another pursuit. Another farmworker advocacy organization 
commented that the attestation-based process, as proposed, would 
further remove and diminish the Department's role in assuring all 
reasonable efforts to locate U.S. workers had been exhausted before 
foreign guest workers could be certified. Another commenter voiced 
concern that the proposed process would eliminate the current process 
of follow-up correspondence that has been instrumental in ensuring that 
employers have actually undertaken the required recruitment steps. A 
worker advocacy organization commented the proposed process, with its 
emphasis on meeting paper requirements, would be ``ill suited to deal 
with the inherent disparities in bargaining power between U.S. 
agricultural employers and impoverished workers from the developing 
world.''
    The Department believes these commenters' concerns, while not 
invalid, are substantially resolved by the safeguards that have been 
built into the new process. The new program model emphasizes compliance 
through enforcement mechanisms such as audits, revocation of approved 
certifications, and debarment from the program. In light of these 
enforcement tools, employers will have a substantial incentive to be 
truthful in their representations that they cannot find U.S. workers 
willing to engage in agricultural work at the appropriate wage, because 
good-faith compliance with program obligations is necessary to maintain 
continued access to a legal nonimmigrant workforce. Because the rule 
requires pre-filing recruitment, the Department will also have an 
opportunity to review recruitment reports and (through its SWA 
partners) to conduct housing inspections before applications are 
approved. Job orders must also be reviewed, approved, and circulated by 
the SWAs before labor certifications can be granted, making it 
impossible for even bad actor employers to entirely circumvent the 
program's core recruitment requirements. Finally, it is worth noting 
that the bulk of the program's requirements, including requirements to 
pay workers at prescribed rates, maintain housing conditions, and 
provide transportation that complies with applicable safety 
requirements, have always been, and must necessarily be, enforced by 
the Department after the labor certification has been granted.
    Although not a factor in our evaluation of the comments here, the 
Department also notes that many commenters who opposed the attestation-
based system in this rulemaking, claiming that it will adversely affect 
U.S. workers, have enthusiastically endorsed proposed legislation 
before the U.S. Congress that would in fact mandate that the Department 
adopt an attestation-based application system in the H-2A program. 
Those organizations in their comments on this rulemaking made no 
attempt to explain their contradictory public positions regarding the 
merits of an attestation-based application system.
(4) Improvements for Employers in an Attestation-based Process
    Several commenters questioned whether the proposed process would 
yield a simplified process for employer applicants. These commenters 
believed the new process requires the same amount of paperwork and only 
relieves employers of submitting documentation while at the same time 
imposes

[[Page 77121]]

additional requirements including post-filing audits, increased 
penalties, and a five-year records retention requirement. Several 
commenters were concerned that the attestation-based process would lead 
to increased liabilities for employers.
    The Department does not believe that employers, attorneys, and 
agents wishing to comply with program obligations will be adversely 
affected by the institution of an attestation-based process. The 
process is designed to give employers specific notice of the assurances 
they are making to the Department and what their obligations are. Once 
the employer is on notice of those assurances, it is better able to 
understand what it must do to comply with H-2A requirements and to 
conform its conduct to those requirements.
    A trade association of agricultural employers agreed with the shift 
to an attestation-based process but believed the process as outlined in 
the proposed regulations was not a true attestation-based process and 
recommended the process used in the H-1B program serve as a model. 
Other commenters also recommended use of a process similar to the one 
used in the H-1B program. Several commenters also suggested that the 
Department combine the Application for Temporary Employment 
Certification with the I-129 petition for simultaneous submission to 
the Departments of Labor and Homeland Security.
    In response to the proposals to convert the proposed attestation-
based process into a process modeled after the H-1B labor condition 
application, the statutory differences between the two programs are 
sufficiently substantial to make such an idea impractical. In the H-1B 
program, the Department is statutorily limited to reviewing the 
attestations made by an employer for ``completeness and obvious 
inaccuracies.'' 8 U.S.C. 1182(n)(1)(G)(ii). The Department believes the 
different H-2A statutory language suggests that a different application 
and review process is appropriate for the H-2A program. The Department 
appreciates the suggestion that simultaneous submissions to the 
Department and DHS could lead to further application efficiencies for 
employers. However, the Department believes that the complexity of the 
current statutory requirements for the H-2A program would make it 
unworkable to combine the Department's application with the petition 
submitted to DHS. A proposal presented by the Department several years 
ago to employ such a process in the H-2B program for temporary 
nonagricultural workers was met with significant opposition. To attempt 
to undertake a similar process with the significantly more complex H-2A 
program does not appear feasible at this time.
    Some commenters appeared not to understand the proposed attestation 
process. The Department received comments stating that it is not clear 
what should be included with the attestation. The Department has 
accordingly clarified in the Final Rule that the application must be 
accompanied by the prevailing wage determinations obtained in 
anticipation of the recruitment for the application as well as the 
initial recruitment report. The employer will be required to keep all 
other supporting documentation in case of an audit, which means the 
employer should keep all records relating to compliance with the H-2A 
program, including advertising, job orders, recruitment logs/reports, 
and housing inspection requests. To eliminate any lingering confusion 
over document retention requirements, the Department has spelled these 
out in a new regulatory section (Sec.  655.119) in this Final Rule.
(b) SWA Involvement/Application Submission
    The NPRM revised the application submission requirements by 
proposing to have employers submit applications only to the NPC rather 
than to both the NPC and SWA as currently required. Most of the 
comments received about this proposal were in favor of it, but a few 
commenters expressed concerns about the reduced role for SWAs. One 
person commented that eliminating the SWA involvement would leave 
employers who seek assistance and guidance from the government in 
completing applications more disposed to making errors and would 
increase their potential liability. A farmworker advocacy organization 
commented that SWA knowledge has proven useful to workers in the past 
and that the advantage of SWA involvement is the detailed knowledge 
their experienced staff can bring to bear about local agricultural 
practices and the use of agricultural labor in their area. The 
commenter also believed that the proposed process, which requires the 
employer to place a job order with the SWA, means that the SWA must 
take on faith that the employer's job offer is consistent with the 
terms of the H-2A application because the SWA will no longer receive a 
copy of the application. This organization recommended that 
applications should be filed with the SWA as well as the NPC so the SWA 
could advise the NPC if the application did not appear legitimate. A 
growers and producers association believed retaining responsibility for 
the substantive review by the NPC staff could remain a problem because 
of their lack of expertise related to agriculture.
    A State governor suggested the process could be improved by 
eliminating the Department from the process. The governor believes the 
States know their agricultural industry better, can resolve issues more 
quickly, and are in the best position to identify and enforce sanctions 
against fraud. Conversely, a professional association of immigration 
attorneys recommended the SWA be eliminated from the recruitment 
process and, alternatively, the employer handle all recruitment for the 
positions, including accepting applications received as a result of a 
job order placed by the SWA in the interstate and intrastate system.
    The Department remains committed to modernizing the application 
process and continues to believe the submission of applications 
directly to the NPC is the most effective way of accomplishing this 
goal. Eliminating the SWAs' participation in the application review 
process will provide more efficient review of applications, as well as 
greater consistency of review. The Department disagrees that NPC staff 
have insufficient knowledge of the agricultural industry; to the 
contrary, NPC reviewers who have handled H-2A applications have, in 
some cases, more experience with such applications than many SWA staff.
    The SWAs will, moreover, continue to play an important role in the 
H-2A application process. SWAs will be responsible for posting job 
orders, both intrastate and interstate, under Sec.  655.102(e) and (f) 
and 20 CFR Part 653, thus reducing the risk for employers to make 
mistakes with respect to job descriptions, minimum requirements, and 
other application particulars. SWAs will review the job offer, its 
terms and conditions, any special requirements, and the justifications 
therefor. As part of their duties to post job orders pursuant to 20 CFR 
Part 653, SWAs will also refer eligible workers to employers as well as 
conduct housing inspections and follow up on deficiencies in the job 
order. Finally, SWAs will continue an active role in conducting 
prevailing hourly wage, prevailing piece rate, and prevailing practice 
surveys.
    Two commenters noted potential coordination or communication issues 
could result when the SWA did not also receive the application. One 
commenter was concerned there would be no assurance that the job order 
posted by

[[Page 77122]]

the SWA would be the same as that on the application. The other 
commenter pointed out the proposed regulations provided that the SWA 
receive a copy of the notice of deficiency when one was issued, but the 
SWA would not have a copy of the submitted application and thus could 
have inadequate information to be of assistance to the involved 
employer. An association of growers/producers recommended the 
Department provide training to H-2A employers about the need to send a 
formal request to the SWA to request a housing inspection and also 
recommended the Department notify the SWA when an application was 
received for processing so the SWA could, in turn, contact the 
employer.
    The Department appreciates the concerns about the need for 
communication between the NPC and the SWA and reiterates that there was 
never any intent to eliminate the SWA from all H-2A activity. As 
discussed above, SWAs remain an integral partner in key respects: The 
placing of the intrastate/interstate job orders, conducting prevailing 
hourly wage, prevailing piece rate, and prevailing practice surveys, 
referring eligible workers, and conducting housing inspections, all 
activities for which SWAs will continue to receive grants from the 
Department. Moreover, nothing in the regulations precludes the 
Department from contacting SWAs, where there is reason to believe that 
it is necessary, to verify that the terms in the employer's Application 
for Temporary Employment Certification are consistent with the terms of 
the job offer.\2\ However, SWAs will no longer process H-2A 
applications. Accordingly, to minimize confusion about roles and 
responsibilities, the Department has removed from Sec.  655.107(a)(3) 
(Sec.  655.107(b) of the Final Rule) the provision requiring that SWAs 
be sent deficiency notices.
---------------------------------------------------------------------------

    \2\ There is also no prohibition preventing a SWA from 
contacting the Department to ensure that the employer's job order 
and Application for Temporary Employment Certification are 
consistent. As a practical matter, a SWA will rarely be able to do 
so before posting a job order, because Applications for Temporary 
Employment Certification generally are not filed with the Department 
under the Final Rule until at least 15 days after the job order has 
been submitted to the SWA. Communication between SWAs and the 
Department has always been essential to identifying and putting a 
stop to deceitful employer behavior, however, and the Department 
expects that such communication will continue under the Final Rule.
---------------------------------------------------------------------------

(c) Electronic Filing
    The Department invited comments on the concept of a future 
electronic filing process for the H-2A program and received comments 
supporting the concept, although some also included suggestions for on-
line training, the establishment of a toll-free help line, and an 
outreach and education component. A trade association recommended that 
a paper-based option should also remain available. One commenter noted 
that the Department did not provide an effective date for the 
electronic filing process.
    The Department appreciates the support for electronic filing and is 
in the process of developing a system that will include the ability to 
complete and submit an application form online with sufficient security 
(PIN numbers, features to deter fraud and maintain system integrity, 
electronic notifications, etc.). The Department is aware of the need to 
provide outreach and training prior to the implementation of electronic 
filing and will involve user groups in these efforts. Additionally, the 
Department will ensure an adequate notice process and timeframe for 
transitioning to a new or revised electronic application system.
(d) H-2A Labor Contractor Applications
    The Final Rule has been clarified slightly to more clearly state 
the obligations of H-2A Labor Contractors in filing applications. The 
proposed rule stated that H-2ALCs must have a place of business in the 
United States ``to which U.S. workers may be referred.'' Because H-
2ALCs may be mobile, however, and because referrals during the season 
may need to be made to whatever location an H-2ALC is working at rather 
than to the physical location of the H-2ALC's place of business, the 
final rule has been modified to state that H-2ALCs must have a place of 
business in the United States ``and a means by which it may be 
contacted for employment.'' This slightly modified requirement will 
ensure that referrals can be made to H-2ALCs during the course of a 
season (where such referrals are provided for by the Final Rule), and 
that U.S. workers will have a means of contacting the H-2ALC to secure 
employment. All other changes made to the paragraph on filing 
requirements for H-2ALCs were purely stylistic and made for purposes of 
clarity.
(e) Master Applications
    Both the current and proposed regulations require an association of 
agricultural producers filing an application to identify whether the 
association is the sole employer, a joint employer with its employer-
members, or the agent of its employer-members. Although the current 
regulations do not specifically describe a ``master application'' that 
can be filed by associations, they are clearly contemplated by 8 U.S.C. 
1188(d), and the Department has permitted them to be filed as a matter 
of practice. See 52 FR 20496, 20498 (Jun. 1, 1987) (cited in ETA 
Handbook No. 398).
    The Department received several comments objecting to the omission 
of a provision in the NPRM for the filing of master applications. An 
association of growers/producers commented that the Department should 
encourage agricultural employers in small commodity groups or large 
associations of employers to jointly participate in the H-2A program, 
as this will make processing more efficient for both the Department and 
farmers. Another association of growers/producers stated that using an 
association application is the only possible solution for the H-2A 
program to accommodate growers who need harvest workers for a short 
period of time (one month or less). A major trade association also 
commented that the master application significantly reduces the 
paperwork and bureaucratic burden for the associations and its members, 
as well as for the Department.
    A major trade association and other associations of growers/
producers recommended that the Department retain and improve the master 
application process and fully incorporate it into the H-2A regulatory 
structure. The association recommended the master application also be 
simplified as part of the new H-2A application process. It recommended 
the regulations include the essential components of the master 
application process that has been followed in practice, including the 
filing of one application on behalf of multiple employers seeking 
workers in virtually the same occupation, permitting the association to 
place the required advertisements and conduct the required positive 
recruitment on behalf of all participants but without the listing of 
every individual employer in the advertisement as currently required, 
permitting referral of workers to the association, and allowing the 
association to place workers in the job opportunities. The association 
further recommended the master application process also apply to 
applications filed by associations acting as agents.
    The statute governing the H-2A program requires that agricultural 
associations be permitted to file H-2A applications, see 8 U.S.C. 
1188(d), and that they be permitted to do so either as agents or as 
employers, see 8 U.S.C. 1188(c)(3)(B)(iv) and (d)(2). Consequently, the 
Department has, as a matter of longstanding practice,

[[Page 77123]]

accepted master applications from agricultural associations. In 
response to the comments received on this subject, the Department has 
decided to include specific language concerning such applications in 
the regulation text at Sec.  655.101(a)(3).
    The basic theory behind master applications is that agricultural 
associations should be able to file a single H-2A application on behalf 
of all their employer members in essentially the same manner that a 
single employer controlling all the work sites and all the job 
opportunities included in the application would. Two important 
limitations apply to such applications. First, all the workers 
requested by the application must be requested for the same date of 
need. If an agricultural association needs workers at different times, 
it must file a separate Application for Temporary Employment 
Certification for each date of need, just as a single employer would. 
Second, the combination of job duties and opportunities that are listed 
in the application must be supported by a legitimate business reason, 
which must be provided as part of the application. The purpose of this 
limitation is to prevent agricultural associations from creating 
undesirable combinations of job duties and opportunities for the sole 
purpose of discouraging U.S. workers from applying for the jobs. So 
long as a legitimate business reason exists supporting the combination 
presented, however, the Department will deem it acceptable. An 
acceptable business reason for a combination of job duties and 
opportunities could include, for example, the efficiencies that closely 
proximate employers expect to gain from having access to a flexible, 
readily available pool of workers, even though the employers in 
question do not grow the same crops, which may be necessary for 
agricultural employers to deal with uncertain and weather-dependent 
planting and harvesting times.
    The Department is aware that this may mean that at times a U.S. 
worker wishing to perform only one type of job duty, such as picking 
asparagus, may be required to perform an additional job duty, such as 
harvesting tobacco, in order to secure an agricultural job with that 
association. It is not at all uncommon, however, for jobs in the United 
States to include multiple job duties, some of which workers may view 
as more desirable than others. Indeed, many job opportunities offered 
under the current H-2A regulations include multiple job duties, some of 
which may be more desirable than others. There is nothing in the 
statute governing the H-2A program indicating that Congress intended to 
require agricultural employers to allow prospective workers to 
selectively choose which job duties they want to perform and which job 
duties they do not, with regard to a particular job opportunity. The 
Department is requiring that combinations of job duties be supported by 
a legitimate business reason to prevent the deliberate and unnecessary 
discouragement of U.S. workers from applying for job opportunities, but 
the Department does not believe that further restrictions on job duty 
combinations are warranted or necessary to fulfill the statutory 
criteria for certification.
(f) Timeliness of Filing Application
    As required by statute, the provision stating a completed 
application is not required to be filed more than 45 calendar days 
before the date of need was retained in the proposed rule. The 
Department has continued that requirement in Sec.  655.101(c). The 
Department received some suggestions for changes to the proposed 
timeframes for submitting applications. Two commenters suggested the 
Department should at least provide the employer with the option of 
applying not more than 45 days before the date of need, undertaking the 
recruitment after the application has been accepted, and continuing to 
accept referrals under the 50 percent rule.
    The Department may not require an application to be filed more than 
45 calendar days before the date of need under 8 U.S.C. 1188(c). The 
Department does not agree with the suggestion for offering employers 
the option of applying not more than 45 days prior to the date of need, 
doing post-acceptance recruitment, and continuing to accept referrals 
under the 50 percent rule. Given the need to maintain consistency in 
the program's requirements, the Department cannot offer varying options 
for recruitment timeframes.
(g) Emergency Situations
    The NPRM did not contain the current regulatory provision 
(currently found at Sec.  655.101(f)(2)) allowing the Administrator/
OFLC to waive the required timeframe for application submission for 
employers who did not use the H-2A program during the prior 
agricultural season or for any employer for good and substantial cause. 
The Department received a number of comments objecting to its 
elimination. A major trade association stated the elimination would 
preclude many employers from legalizing their workforce simply because 
their decision to join the program was made too late to meet the 
required timeframes. Another major trade association commented that a 
provision allowing filing after the deadline is even more essential 
because the de facto deadline for meeting requirements under the final 
regulation is further in advance of the date of need than the current 
requirement. One association of growers/producers cited the situation 
following Hurricane Katrina when many employers needed to secure 
additional H-2A workers as an example of the need for an emergency 
application process.
    Most of those requesting that the provision for an emergency 
application be reinstated also commented that if an emergency 
application is filed in an area of intended employment and for a job 
opportunity for which other employers have previously been certified 
for the same time frame, the emergency application should be certified 
immediately. These commenters also suggested that post-application 
recruitment could be extended for emergency applications to ensure that 
their availability would not create an incentive to avoid the pre-
filing recruitment efforts.
    The Department agrees that a provision allowing the Certifying 
Officer (CO) to waive the required timeframe for submission of 
applications in emergency situations is necessary and has included such 
a provision in the Final Rule at Sec.  655.101(d). The provision, which 
substantially replicates the current regulatory provision governing 
emergency situations, requires submission of a completed application, 
except for the initial recruitment report that would otherwise be 
required, and a statement of the emergency situation giving rise to the 
waiver request. The emergency situation giving rise to a request for a 
waiver may include a lack of experience with the H-2A program 
obligations (including housing and transportation requirements) or for 
other good and substantial cause. The Department anticipates that 
employers who were non-users of the program during the previous year 
may fail to meet the filing deadline due to miscalculation of the time 
needed to complete the application. The Department will entertain 
waiver requests from employers in this situation but will consider them 
only after first verifying that the employer did not use the program 
during the prior year.
    The Department is not providing an explicit definition of good and 
substantial cause in order to preserve flexibility when faced with 
unanticipated situations or conditions.

[[Page 77124]]

We have provided some examples in the regulatory text to assist 
employers in determining what might constitute sufficient cause 
warranting a waiver. One example provided is a dramatic change in the 
weather conditions resulting in a substantial change to the anticipated 
date of need for H-2A workers with significant attendant crop loss 
unless the waiver is granted. However, the employer must be able to 
demonstrate that the situation or condition leading to the request for 
a waiver was genuinely outside of the control of the employer.
    The Department is requiring, in the Final Rule, that the employer 
who requests a waiver must conduct some recruitment as a condition for 
obtaining that waiver. The employer will be required to submit a job 
order to the relevant SWA(s) and conduct positive recruitment from the 
time of filing the application until the date that is 30 days after the 
employer's date of need. The SWA must transmit the job offer for 
interstate clearance as in a normal application process. We have also 
added a provision that requires the CO to specify a date upon which the 
employer must submit a recruitment report consistent with the 
requirements of this part.
    The Department recognizes that the suggestions that waivers be 
approved if other applications for similar occupations and dates of 
need in the same geographic locations have been previously certified 
are intended to expedite the process. However, each application is 
unique and the Department must consider each request on its own merits, 
and therefore does not believe it should commit to approving requests 
solely because there have been prior approvals for employers with 
similar job opportunities and dates of need in the same area.
    Finally, the Department made changes in Sec.  655.101 to conform to 
other changes made to the rule. Such changes include, but are not 
limited to, changes to clarify a potential electronic filing of future 
applications. In addition, the Department has made non-substantive 
changes to enhance readability.
Section 655.102 Required Pre-Filing Activity
    The Department has changed the title of this section from 
``Required Pre-filing Recruitment'' to ``Required Pre-filing Activity'' 
to include the activities other than recruitment that are discussed in 
this section.
(a) Section 655.102(a) Time of Filing of Application
    The NPRM proposed requiring that applications be filed at least 45 
days before the employer's date of need (as required by statute) with a 
pre-filing recruitment period commencing no more than 120 days prior to 
the date of need and not less than 60 days prior to the date of need. 
The Department received a number of comments on the change to a pre-
filing recruitment framework and the related timing for that 
recruitment.
    The Department received multiple comments opposing this proposed 
timeframe; several commenters were generally opposed to the expanded 
timeframe and others raised more specific concerns. Several commenters 
questioned the Department's legal authority for a shift to pre-filing 
recruitment. The Department also received comments arguing that the 
proposed pre-filing recruitment requirement has the effect of moving 
the deadline for filing an application. Several commenters argued that 
the proposed requirement that employers begin recruitment earlier than 
they are required to file applications would be inconsistent with the 
Congressionally set timeframes and thus beyond the Department's 
statutory authority.
    The Department disagrees strongly with the premise that its revised 
recruitment steps are a violation of the statute. The INA is clear that 
the Department may not require an application for labor certification 
to be filed more than 45 days prior to the date of need. See 8 U.S.C. 
1188(c)(1). The statute is silent on how the Department implements the 
certification process: It does not specify when the recruitment of U.S. 
workers should take place, whether prior to or subsequent to filing. 
The INA clearly contemplates at 8 U.S.C. 1188 that recruiting U.S. 
workers is a separate activity from filing and considering 
applications, and the statute does not provide any express timeframes 
during which recruitment must be conducted. There is thus nothing in 
the statute that prevents the Department from requiring employers to 
recruit before filing an application, much as it requires that 
recruitment be conducted prior to the filing of an application in other 
immigration programs. The Department has determined that program 
integrity would be improved by being able to review a preliminary 
recruitment report at the time the application is filed, a requirement 
that is consistent with both the intent and the language of the 
statute.
    Several commenters opined that it was not feasible for employers to 
make accurate assessments of timeframes and the number of workers 
needed so far in advance and many questioned how effective an early 
recruitment period would be in helping employers to locate U.S. workers 
who would still be available at the time the work actually began. 
Additionally, many commenters believed the earlier recruitment would 
not benefit U.S. agricultural workers seeking employment because it is 
inconsistent with the traditional job-seeking patterns of these 
workers.
    Some commenters expressed concern that extending the recruitment 
time would either not increase the number of U.S. worker applicants for 
a position, or would increase the number of U.S. workers who applied 
for a position but would not translate into more actual workers taking 
the jobs, as many would not report to work. A trade association also 
commented that the employer is put at risk because, by the time the 
jobs begin, U.S. applicants may have long since changed their minds or 
accepted other employment. A State government agency commented that 
most agricultural workers would not make a commitment to a job so far 
in advance of the start date. One individual employer believed the 
proposed pre-filing recruitment would actually have the opposite effect 
the Department anticipates because U.S. workers would be reluctant to 
make commitments so far in advance of the start date. An employer 
association recommended that the final regulation specifically permit 
employers to ask workers identified during the recruitment process to 
attest to or affirm their intentions to actually report to work to 
perform the jobs.
    An association of growers/producers shared its data from the 2006-
2007 season which shows only 9 percent of U.S. applicants applied 
during the first 15 days of the current 45-day recruitment period and 
questioned whether a longer timeframe would yield additional 
applicants. The association also reported 83 percent of the applicants 
who applied during the initial 15-days of the recruitment period failed 
to report for work on the date of need, as compared to a 60 percent 
failure-to-report rate for applicants who applied during the last 30 
days of recruitment leading up to the date of need.
    Some commenters stated that the current recruitment timeframes are 
adequate for identifying and hiring U.S. workers and others advocated 
alternate timeframes. Commenters presented a number of options for the 
recruitment timeframe, including the current

[[Page 77125]]

timeframe, and options ranging between 90 to 75 days prior to the date 
of need for beginning recruitment and 60 to 45 days prior to the date 
of need for filing the application. In the words of one trade 
association, which was representative of the comments received on this 
point: ``For the sector for which H-2A is predominantly applicable--
fruits and vegetables--the ability to predict months in advance when 
labor will be required is simply impossible.''
    The Department takes seriously its twin obligations, consistent 
with all H-2A statutory requirements, to ensure both that an adequate 
workforce is available to U.S. agricultural producers and that U.S. 
workers have a meaningful opportunity to apply for all open 
agricultural job opportunities. The Department believes it can best 
fulfill its statutory responsibilities by requiring employers to 
recruit in advance of filing, which will enable employers to submit 
preliminary recruitment reports with their applications, giving the 
Department better information than it has ever had before about the 
availability of U.S. workers before the Department is required by the 
tight statutory timeframes to make a determination on an application. 
The current pattern of forcing positive recruitment combined with the 
Department's near simultaneous evaluation of the application into a 
substantially narrow window of only 15 days is simply inadequate to 
address these workforce and program integrity needs. Based on the 
comments received, however, the Department has come to believe that 
requiring employers to seek and secure a workforce 120 days in advance 
of need may not be practicable, given the substantial likelihood that 
over such an extended period variables such as weather conditions, 
competition from other industries for available workers, and 
competition among farms and crops could intervene and result in 
increased labor uncertainty for employers.
    The Final Rule accordingly shortens the pre-filing recruitment 
period described in the NPRM. Employers will be required to initiate 
recruitment no more than 75 days prior and no less than 60 days prior 
to the anticipated date of need. Reducing the pre-filing recruitment 
time period in this manner from the time period that was proposed, 
while simultaneously adjusting the Department's proposal by extending 
the referral period beyond the date of need (discussed further below), 
will ensure U.S. workers have access to these job opportunities, and 
enable employers to recruit effectively for U.S. workers without 
adversely affecting planting and harvesting schedules. This revised 
recruitment schedule, which is closer in time to the employer's actual 
date of need, also addresses the commenters' concerns about the job 
search patterns of likely U.S. workers. The Department declines, at 
this time, to implement any requirement that U.S. workers affirm in 
writing their intent to show up for work when needed, as that is a 
contractual matter between the worker and the employer. The Department 
notes that it has afforded employers some flexibility in the Final Rule 
in Sec.  655.110(e), ``Requests for determinations based on 
nonavailability of able, willing, and qualified U.S. workers,'' to 
address situations where U.S. workers have failed to appear as 
promised.
(b) Section 655.102(b) General Attestation Obligation
(1) General Comments Regarding the Attestations
    A group of farmworker advocacy organizations commented on the 
language in the proposed regulation that states ``the employer shall 
attest that it will continue to cooperate with the SWA by accepting 
referrals of all eligible U.S. workers who apply.'' The organization 
stated it is the employer's duty to hire all qualified U.S. workers who 
apply and believed the proposed language did not make this clear.
    An association of growers requested that the language describing 
the time period for acceptance of referrals be modified by adding the 
word ``first'' before ``begin to depart'' because not all foreign 
workers depart on the same date. A professional association requested 
the regulation be changed to permit employers to stop local recruitment 
efforts no more than five days prior to the date of need rather than 
three days as proposed. This change was requested to accommodate the 
actual transit time required for workers to arrive from abroad. As 
discussed in more detail below, the points made by these commenters 
have been rendered moot by changes made to this provision.
(2) The ``50 Percent Rule'' and the Cessation of Recruitment
    The Department sought comments on program users' experience with 
the ``50 percent rule,'' which requires employers of H-2A workers to 
hire any qualified U.S. worker who applies to the employer during the 
first 50 percent of the period of the H-2A work contract. We received 
numerous comments and several commenters offered alternative 
approaches.
    Several commenters questioned the Department's authority to make 
changes to the 50 percent rule, citing the 1986 IRCA amendments which 
added the 50 percent rule to the INA as a temporary 3-year statutory 
requirement, pending the findings of a study that the Department was 
required to conduct regarding its continuation. In 1990, pursuant to 
what is now INA Sec.  218(c)(3)(B)(iii), ETA published an Interim Final 
Rule to continue the 50 percent requirement. See 55 FR 29356, July 19, 
1990. That rule was never finalized.
    As the Department stated in the NPRM, since the 1990 publication of 
the Interim Final Rule continuing the 50 percent rule, it has gained 
substantial experience and additional perspective calling into question 
whether the Department's 1990 decision was in fact supported by the 
data contained in the 1990 study, and whether the rule is in fact a 
necessary, efficient and effective means of protecting U.S. workers 
from potential adverse impact resulting from the employment of foreign 
workers.
    The Department received several comments in support of retaining 
the 50 percent rule as it is currently administered. Commenters 
asserted that the rule is an important method for granting U.S. workers 
job preference over foreign temporary workers and creates an incentive 
for pre-season recruitment of U.S. workers. Some commenters stated 
their belief that many U.S. workers gain jobs under the 50 percent rule 
and that its elimination would deprive many U.S. workers of jobs 
unfairly, although these commenters did not provide any data to support 
their assertion.
    Several commenters believed that few employers have had to lay off 
H-2A workers under the 50 percent rule, and that the rule has enabled 
many U.S. workers to secure jobs, and that elimination of the rule 
would unfairly deprive them of those jobs. The commenters believed that 
by eliminating this rule, the Department may keep U.S. farmworkers from 
applying for jobs they would otherwise be able to take. Other 
commenters believed that for those U.S. workers who learn of an H-2A 
job, the proposal would eliminate the protections that safeguard 
against employers rejecting qualified U.S. workers.
    One commenter argued that the 50 percent rule provides an incentive 
that should be maintained to create an attractive working environment, 
and that it is critical to the integrity of the H-2A program. The 
commenter asserted that it prevents growers from engaging in practices 
that are tolerated by H-2A workers only because of their greater 
economic vulnerability and in turn

[[Page 77126]]

ensures that labor standards are not driven down for U.S. workers 
unable to compete with H-2A workers who have no choice but to endure 
such conditions.
    While one commenter admitted that they could not provide data 
regarding the cost and benefits of the 50 percent rule, they expressed 
the belief that employers will hire fewer domestic workers without it, 
thereby adversely affecting an already vulnerable population. A number 
of commenters noted that the elimination of the 50 percent rule would 
make it more difficult for traditional farm workers who move with crops 
along the traditional migrant streams to secure jobs. The commenter 
believed that U.S. workers will be ``absolutely foreclosed'' from much 
if not most H-2A related employment if they cannot be hired just 
before, at, and past the date of need. An obligation to continue to 
hire U.S. workers after the departure of any foreign workers to the 
U.S. for employment was viewed by the commenter as critical to 
maintaining and developing a U.S. agricultural workforce.
    Finally, another commenter observed that the 50 percent rule has 
served as an important tool for ensuring that the H-2A program does not 
adversely affect U.S. workers, and that at a time of increasing 
unemployment, the Department should not choose this particular moment 
to abandon these long-standing labor protections for U.S. workers.
    Several other commenters argued the 50 percent rule should be 
abolished. These commenters argued that H-2A users have long considered 
the 50 percent rule to be unfair and unreasonable. They observed that 
no other temporary or permanent worker program has an even remotely 
corresponding requirement. Commenters also observed that the 50 percent 
rule was purportedly designed to enable domestic workers to accept 
agricultural employment opportunities, but that its costs outweigh its 
benefits. Commenters shared experiences that many of the domestic 
workers who apply under the 50 percent rule do so to maintain 
government benefits under the Unemployment Insurance program (the UI 
program requires unemployed workers to show that they have actively 
sought employment each week in order to continue benefits). They also 
found that while the rule does not actually provide substantial 
additional employment to domestic workers, it creates needless 
insecurity and uncertainty for H-2A workers who are employed under H-2A 
contracts.
    A commenter from a state agency asserted that the elimination of 
the rule would relieve the SWA from having to track these H-2A job 
orders and would remove unnecessary burdens on employers. The commenter 
believed that there is no tangible evidence that the rule produces the 
desired results of increasing employment of domestic workers:

    My experience is that it is rare for [U.S.] workers to search 
our Internet postings for agricultural positions in the middle of a 
growing season. Employers find this requirement confusing and 
worrisome. Smaller employers have expressed concern that they could 
lose their fully trained and settled foreign worker(s), suddenly 
disrupting their operation. Unfortunately, their experience is that 
U.S. workers who drop in during a season have a tendency to not stay 
till the end of the contract period. If this practice had 
historically produced significant results, the government-mandated 
grower investment of time and money might be justifiable, but it has 
not.

    One commenter stated that there is no need for the 50 percent rule 
where recruiting indicates that there are no or few local workers. The 
commenter also found no need for the rule in situations where the 
employers typically hire a large number of local workers. The commenter 
went on to argue that if the Department wants to retain the rule, it 
should do so only as a condition of approval of an application where 
there is evidence indicating that there are a relatively large number 
of local workers but the employer has indicated that it intends to hire 
few if any local workers.
    A number of commenters observed that all available data support the 
view that relatively few U.S. workers desire employment in agriculture. 
They argued that it necessarily follows from this fact that the 50 
percent rule provides almost no benefit to U.S. workers, yet its 
presence dissuades employers from participating in the program because 
of the uncertainty it creates. These commenters concluded that the rule 
should be abandoned. One commenter believed that if the Department 
wished to retain the rule, it should reserve the right to do so on a 
case by case basis, as a condition of approval for an application where 
the CO and SWA believed that insufficient local recruiting has been 
accomplished. The Department believes that this idea may have some 
merit, but has not devised a means to implement it at this time.
    A number of agricultural employers commented that the rule 
requiring H-2A employers to hire any qualified U.S. worker during the 
first 50 percent of the H-2A work contract makes it very difficult for 
a producer to manage labor supply and costs over the life of the 
contract. Commenters from state agencies found that the features of the 
rule are seldom completely understood by the growers who need the H-2A 
program, adding to their impression that the entire process is 
complicated and rife with red tape. Another State commenter found the 
rule to be antiquated and ineffective.
    Another commenter observed that the rule has been disruptive and 
non-productive for both workers and employers and that its elimination 
will provide much-needed stability in the workforce obtained by the 
employer. A commenter found that a cost-benefit analysis of the 
situation indicates that continuing to recruit U.S. workers beyond the 
date of need results in no corresponding benefit. One farmer observed,

    It's just not right that after I have made the best attempt to 
hire domestic workers that once halfway through the season I be 
forced to replace a trained H-2A worker. I really would prefer to 
hire local workers and keep that wage money at home, if I could find 
them.

    Commenters from various farm bureaus around the country argued that 
under current conditions, the 50 percent rule is without foundation. 
They argued that anecdotal evidence shows that few, if any, employees 
referred for employment after the employer's date of need apply for or 
maintain their work status. They believed that agricultural employers, 
especially those with perishable crops, must be able to operate with 
greater certainty. Once an operation begins, the success of the work 
effort is the product of coordinated teamwork. Employers are willing to 
make strong recruitment efforts before the date of need, but they seek 
certainty and continuity once the work period has begun.
    A commenter from a farming association found that the actual 
benefits of the 50 percent rule for domestic workers are, to all 
practical intent, illusory. The commenter strongly supported 
eliminating the rule entirely, arguing that such an approach would 
result in a substantial improvement in program operations. The 
commenter argued that while the Department has a statutory obligation 
to protect the rights of U.S. workers when implementing the program, it 
is necessary to strike a balance between the priority given to U.S. 
workers and the rights of employers, who have met all of the legal 
obligations that attach to employing H-2A workers. It went on to argue:

    The current 50 percent rule, while seemingly a provision to 
protect U.S.

[[Page 77127]]

workers, is more disruptive to farm operations and a disincentive to 
program participation than it is a true protection for workers. 
There is no reason to mandate that a grower's obligations to find 
and recruit eligible U.S. workers should extend past the recruitment 
period; imposing such an obligation serves only to disrupt 
operations of the producer and does little to protect U.S. workers * 
* *. The fact is, and all available data support this view, 
relatively few U.S. workers desire employment in agriculture * * *. 
The work is arduous, episodic, taxing, requires relatively little 
skill and virtually no education. Within the U.S. economy the pay--
while increasing--is relatively low. These jobs provide tremendous 
economic opportunity for migrant workers but are not perceived as 
offering the same benefit to U.S. workers. In fact, approximately 10 
million individuals in the U.S. economy today choose to work in jobs 
which pay them less than they could earn in agriculture. The 50 
percent rule provides virtually no benefit to U.S. workers yet its 
presence has clearly been a disincentive to program participation. 
It should be abandoned.

    Other commenters offered alternatives to the 50 percent rule 
including a 25 percent rule, recognizing that referrals after the date 
of need may serve a useful purpose but extending through 50 percent of 
the contract completion might be too long. One farming association 
suggested that the obligation to accept domestic referrals should 
terminate not later than three days before the date of need.
    A number of state agencies suggested that SWAs should leave job 
orders open for 30 days after the date of need and employers should be 
required to offer employment to any qualified and eligible U.S. workers 
who are referred during that time, also recognizing that the current 50 
percent of the contract period is too long and perhaps too uncertain to 
manage.
    Another commenter similarly recommended that employers be required 
to begin recruitment no more than 60 days prior to the date of need and 
continue until between one and 30 days after the date of need, with 
adjustments made according to the expected duration of the job 
opportunity. Under this commenter's proposal, the determination of the 
end date for recruitment should be no earlier than the date of need, 
but the 50 percent rule should be revisited and adjusted to lessen its 
potential negative impact on the agricultural employer's workforce. 
Finally, another commenter suggested a continued obligation of 50 
percent of the work period or 30 days, whichever is longer.
    It is clear to the Department from these comments that many view 
the current 50 percent rule as a substantially burdensome requirement 
that does not provide a corresponding benefit to U.S. workers.\3\ 
Others see the rule as benefiting U.S. workers by providing them 
expanded job opportunities. Based on the comments it has received and 
its substantial experience in operating the H-2A program, the 
Department believes that the 50 percent rule clearly does provide some 
benefits to U.S. workers, but that the rule creates substantial 
uncertainty for employers in managing their labor supply and labor 
costs during the life of an H-2A contract and serves as a substantial 
disincentive to participate in the program.
---------------------------------------------------------------------------

    \3\ In December 2007, the Department commissioned a survey of 
stakeholder representatives to evaluate the effectiveness of the 50 
percent rule as a mechanism to minimize adverse impacts of the H-2A 
program on U.S. farm workers. The Department had conducted a similar 
study of the impact of the 50 percent rule in 1990, but upon 
reviewing that study as part of the H-2A review which led to this 
recent NPRM the Department concluded that it was of limited utility 
because it covered only two states--Virginia and Idaho--and because, 
given the significant changes that have occurred in the field of 
agricultural employment over the last two decades, it was 
substantially out of date. The surveyors for the new study conducted 
interviews with a number of stakeholders to gather information on 
the impact of the 50 percent rule and how it is currently working. 
The surveyors queried a far more representative sample of entities 
affected by the 50 percent rule than the 1990 study had, including 
employers, state workforce agencies, and farm worker advocacy 
organizations.
    While the new study identified a diversity of opinion about the 
value and effectiveness of the current 50 percent rule, the 
researchers found that the rule ``plays an insignificant role in the 
program overall, hiring-wise, and has not contributed in a 
meaningful way to protecting employment for domestic agricultural 
workers.'' See ``Findings from Survey of Key Stakeholders on the H-
2A `50 Percent Rule','' HeiTech Services, Inc. Contract Number: 
DOLJ069A20380, April 11, 2008. The researchers estimated that the 
number of agricultural hires resulting from referrals to employers 
during the 50 percent rule period was exceedingly small, with H-2A 
employers hiring less than 1 percent of the legal U.S. agricultural 
workforce through the 50 percent rule. All of the categories of 
surveyed stakeholders, including employers, state workforce 
agencies, and even farm worker assistance and advocacy 
organizations, reported that U.S. workers hired under the 50 percent 
rule typically do not stay on the job for any length of time when 
hired, frequently losing interest in the work when they learn about 
the job requirements. Many of the survey respondents, including 
representatives from each of the three groups, suggested that the 
rule should be either eliminated or modified.
    The Department did not specifically rely on either of the two 
surveys in crafting the Final Rule. It does, however, believe that 
the information provided adds some additional depth to the 
discussion contained in this preamble. Accordingly, it has posted 
the studies on the Department's Web site.
---------------------------------------------------------------------------

    Based on the comments it received, the Department has decided to 
modify the rule. The requirements of 8 U.S.C. 1188(c)(3)(B)(iii) were 
fully satisfied when the Department promulgated interim final 
regulations on July 19, 1990. Nevertheless, the language of that 
provision suggests that when issuing regulations dictating whether 
agricultural employers should be required to hire U.S. workers after H-
2A workers have already departed for the place of employment, the 
Department should weigh the ``benefits to United States workers and 
costs to employers.'' After considering its own experience and the 
experience of its SWA agents, the Department agrees, on balance, with 
those commenters who argued that the costs of the 50 percent rule 
outweigh any associated benefits the rule may provide to U.S. workers. 
It is beyond dispute that the obligation to hire additional workers 
mid-way through a season is disruptive to agricultural operations and 
makes it difficult for agricultural employers to be certain that they 
will have a steady, stable, properly trained, and fully coordinated 
work force. It is also apparent from the comments received that the 
current rule is poorly understood by employers, difficult for the SWAs 
to administer, and a disincentive for employers to use the H-2A 
program. Finally, the rule requires agricultural employers to incur 
additional unpredictable and unnecessary expenses, forcing them to 
choose between either hiring a greater number of workers than they 
actually need to complete their work part-way through a season, or 
discharging some or all of their H-2A workers, in which case the 
employer will lose its entire investment in those workers and will be 
required to incur the immediate additional expense to transport the 
workers back to their home countries. It is for all of these reasons 
that no other permanent or temporary worker program administered by the 
Department contains such a burdensome requirement, even though most of 
these programs are subject to similar statutory or regulatory 
requirements that the Secretary certify (1) that there are not 
sufficient workers in the United States who are able, willing, and 
qualified to perform the labor or services needed and (2) that the 
employment of the aliens in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.
    It is clear to the Department that the current 50-percent rule does 
provide some benefits to U.S. workers, since at least some U.S. workers 
secure jobs through referrals made pursuant to the rule. The number of 
such hires, however, appears to be quite small. Moreover, the comments 
indicate that many workers hired pursuant to the 50-

[[Page 77128]]

percent rule do not complete the entire work period, adding costs to 
employers and further diminishing the total economic benefits derived 
from the rule by U.S. workers. It is also relevant that under the Final 
Rule, the period of time that a job order is posted by a SWA prior to 
an employer's dates of need has been substantially expanded from the 
current rule, which will provide U.S. workers with more up-front 
information about agricultural job opportunities, rendering mandatory 
post-date-of-need hiring less necessary.
    In sum, after considering the best information currently available, 
the Department has concluded that the benefits of the 50-percent rule 
to U.S. workers are not, on balance, sufficient to outweigh its costs. 
The Department has also determined that modifying or eliminating the 
50-percent rule would not compromise the Department's ability to ensure 
that U.S. workers are not adversely affected by the hiring of H-2A 
workers, just as the absence of a 50-percent rule from the other 
permanent and temporary worker programs administered by the Department 
has never been thought to compromise the Department's ability to ensure 
that U.S. workers are not adversely affected by the hiring of foreign 
workers under those programs. If it is true, as some commenters 
suggested, that some U.S. agricultural workers simply drift from 
employer to employer without paying attention to actual advertising 
about agricultural job opportunities, the Department is confident that 
farm worker advocacy and assistance organizations will help to spread 
the word about advertised agricultural job openings, much as they do 
today. The available hiring and referral data strongly suggest, 
however, that such workers only rarely secure their jobs through the 
50-percent rule today. It is also worth noting that to the extent 
workers can identify agricultural job openings before those jobs have 
started, they will gain the additional benefit of a longer period of 
employment.
    Despite these conclusions, the Department is concerned that the 
sudden and immediate elimination of the 50-percent rule might prove 
disruptive to the access of some U.S. workers to agricultural 
employment opportunities. If some U.S. workers have become accustomed 
to the ability to secure H-2A-related employment after the jobs have 
already started, those workers may benefit from a transition period 
that will allow those workers to adjust their employment patterns. A 
transition period would also allow the Department to collect additional 
data about the costs and benefits of mandatory post-date-of-need hiring 
under the new rule structure over a period of several years, allowing 
the Department to assure itself that its initial conclusions regarding 
the rule are sound.
    For these reasons, the Department has created a five-year 
transitional period under the Final Rule during which mandatory post-
date-of-need hiring of qualified and eligible U.S. worker applicants 
will continue to be required of employers for a period of 30 days after 
the employer's date of need. In determining precisely what form 
mandatory hiring should take during this transitional period, the 
Department considered all of the various options presented by 
commenters. Several commenters suggested limiting the period during 
which employers are required to engage in mandatory post-date-of-need 
hiring to 30 days. The Department has adopted this suggestion as the 
transitional period rule, both for ease of administration and to 
minimize the extent to which the various costs and considerations 
outlined above will burden employers during the transition. The 
Department believes that the use of this 30-day post-date-of-need 
mandatory hiring period during the five-year transition period will 
allow a smooth adjustment of the expectations of U.S. workers and will 
provide the Department additional time to collect data on the effect of 
the rule. At the end of the transition period, the mandatory post-date-
of-need hiring requirements under the Final Rule will expire, and 
employers will only be required to accept referrals of U.S. workers 
until the first date the employer requires the services of H-2A 
workers. However, the Department intends to conduct a study of the 
impact of this transitional 30-day rule on U.S. workers and on 
employers during the five-year transition period, and under the rule 
retains the ability to indefinitely extend the 30-day rule by notice 
published in the Federal Register should the Department's study 
determine that the rule's benefits outweigh its costs.
    We believe this framework addresses the concerns of many of the 
commenters, both for and against continuation of the 50-percent rule, 
and strikes an appropriate balance between the concerns of agricultural 
employers and the need to protect U.S. workers' access to the 
employment opportunities under the H-2A program. Having a set period of 
time during the transition period, not tied to a percentage of the 
contract length, will provide employers more predictability and be 
easier to administer for employers, workers and SWAs making referrals. 
The language of Sec.  655.102(b) as originally proposed implied that 
mandatory post-date-of-need hiring would no longer be required by the 
H-2A regulations. The language creating the transitional 30-day 
mandatory hiring period outlined above may be found at Sec.  
655.102(f)(3) of the Final Rule.
    To the extent that the 30-day rule applies, the employer would 
require similar safeguards as under the 50-percent rule so long as the 
employer continues to have an affirmative obligation to hire U.S. 
workers beyond the date of need. Accordingly, the Department has 
included a provision in Sec.  655.102(f)(3)(ii) of the Final Rule on 
the prohibition of withholding of U.S. workers. The provision is 
similar to the provision in Sec.  655.106(g) of the current 
regulations, but has been modified to reflect the centralization of the 
application process with the NPC. Under the final rule, the CO, and not 
the SWA, receives and investigates the complaint and makes a 
determination whether the application of the 30-day rule should be 
suspended with respect to the employer.
(c) Section 655.102(c) Retention of Documentation
    The Department proposed in the NPRM a 5-year retention requirement 
for all H-2A applications and their supporting documents. The vast 
majority of commenters who provided observations on this provision 
voiced concern with the proposed 5-year document retention period and 
recommended 3 years, stating that they did not have adequate staff to 
comply with the requirement or that it is not an industry standard and 
not legally consistent with other regulations and might even discourage 
use of the H-2A program. The Department has reconsidered its position 
and has changed the retention requirement to 3 years.
    One commenter suggested that all record retention requirements and 
periods be combined into one section of the amended regulations to 
provide program participants with clearer guidance for these 
obligations. The Department agrees and has added a new Sec.  655.119 to 
the regulatory text. The new section lists all the document retention 
requirements.
    Another commenter requested that the Department add a sentence to 
the rule indicating that the employer is not liable for eliminating 
records after the retention period expires. The Department has not 
added an express provision to this effect, as we believe the cessation 
of the employer's

[[Page 77129]]

responsibility to retain the records after the retention period expires 
is self-evident. The Department suggests, however, that there may be 
some benefits to employers keeping records beyond the required 3-year 
period; if the employer later faces an allegation of fraud or some 
other alleged violation that has a statute of limitations of longer 
than 3 years, retained documents may help the employer defend itself. 
Indeed, if a proceeding or investigation relating to the retained 
records has already been initiated, it should be understood that the 
employer is obligated to retain the records that are the subject of the 
proceeding or investigation until it has come to a conclusion.
    One commenter requested that the Department allow applicants who 
are denied certification to discard records 180 days after the denial. 
The Department has decided to eliminate the requirement to retain 
records pertaining to denied certifications in its entirety. If an 
application is denied on grounds of fraud or malfeasance, the 
Department expects that it will have already obtained copies of any 
documents necessary to prove the fraud or malfeasance during the 
process of denying the certification, and thus the retention of such 
documents by the employer would be needlessly duplicative. Under the 
Final Rule, any employer who has been denied certification can discard 
the records immediately upon receiving the denial notice, or, if the 
employer appeals the decision, whenever the decision to deny 
certification becomes final. If the denial is ultimately overturned on 
appeal and certification is granted, the application of course becomes 
subject to the document retention requirements for approved cases.
    A SWA requested that we define who is responsible for monitoring 
the documentation and ensuring compliance. This Final Rule places 
responsibility squarely with the employer to maintain the 
documentation. The NPC, through the audit function as well as the other 
enforcement tools at its disposal, will ensure compliance. SWAs would 
not be responsible for monitoring documentation or ensuring compliance 
with this provision.
(d) Section 655.102(d) Positive Recruitment Steps
    The Department proposed ``positive recruitment'' steps including 
posting a job order with the SWA serving the area of intended 
employment; placing three print advertisements; contacting former U.S. 
employees who were employed within the last year; and recruiting in 
additional States designated by the Secretary as States of traditional 
or expected labor supply.
    Many commenters, primarily employers and employer associations, 
expressed concerns with the specific proposed pre-filing recruitment 
steps. Many argued that the proposed longer recruitment period and 
increased advertising would simply increase the cost of the recruiting 
effort without increasing the benefits and that the increased steps 
were duplicative. These commenters believe that their workforce 
shortage problem is not due to a lack of awareness of available jobs, 
but rather is because of a lack of willing and available U.S. workers. 
They suggested that rules be promulgated to use only the current state 
employment service system and not require agricultural employers to 
perform a substantial prolonged search for U.S. workers before being 
able to apply for an H-2A labor certification. According to these 
commenters, the time required in the current rules is sufficient to 
identify and notify the U.S. work force of the availability of 
particular jobs.
    Requiring pre-filing recruitment is, in the Department's view, 
essential to the integrity of an attestation-based process. Only with 
sufficient time for adequate recruitment can the Department ensure that 
the potential U.S. worker pool is apprised of the job opportunity in 
time to access that opportunity. The current recruitment time frame, in 
which employers file applications 45 days prior to the date of need, 
recruit for 15 days thereafter, and in which a CO must adjudicate the 
application no later than 30 days prior to need, has proven unworkable. 
COs are today certifying the absence of U.S. workers based on, at best, 
a handful of days of recruitment activity, which is insufficient to 
apprise U.S. workers of job opportunities through either the SWA 
employment service system or other positive recruitment activities.
    The belief of some commenters that the time allotted in the present 
regulatory scheme for recruiting is sufficient to canvass the potential 
U.S. workforce is, in the Department's view, incorrect. The Department 
has heard significant concerns voiced by the farmworker advocate 
community that there is an inability to access job opportunities within 
the short recruitment period provided in the current system. The 
Department takes seriously these concerns about the length of the 
recruitment, particularly in light of the Department's modification of 
the 50 percent rule (discussed above with respect to Sec.  655.102(b)) 
and the possibility that it will be phased out entirely after a period 
of five years. The movement of the recruitment period to a time prior 
to the filing of the application provides a clear and well-defined time 
for the employer to make available and for the U.S. farmworker to 
access job opportunities, and provides the Department with better 
information with which to make its certification determination. The 
establishment of a 30-day post-date-of-need referral period for the 
next five years further ensures that the expectations of workers will 
not be unduly disrupted.
    A trade association recommended SWAs be removed from the 
recruitment process altogether, and only be involved in the inspection 
of worker housing and workplace conditions after approval of the labor 
certification and visa and the commencement of work. A State agency 
representative recommended the SWAs receive copies of the ETA-750 
(Application for Temporary Employment Certification) and ETA-790 not 
for review but to ensure the SWA would have access to accurate 
information.
    The Department notes that it is statutorily prohibited at this time 
from amending the Wagner-Peyser regulations to remove SWAs from the H-
2A process. See Public Law 110-161, Division G, Title I, Section 110. 
Nor does it believe such a step would be beneficial at this time. SWAs 
provide an effective means of completing many required activities, such 
as inspections of employer-provided housing. SWAs are also integral to 
the process of receiving and posting agricultural job orders. The 
Department declines to require that SWAs also receive the form ETA-750, 
as they will receive far more significant information in the form ETA-
790 job clearance order request.
    A group of farmworker advocacy organizations also claimed that the 
proposed changes to the recruitment process were inconsistent with INA 
requirements, portions of the Wagner-Peyser Act, and MSPA. The 
organization believed the proposed regulations changed the standards 
for employer recruitment efforts to the detriment of U.S. workers and 
did not address recruitment violations that had been uncovered in the 
past. Specifically, the organization objected to the elimination of the 
standard for positive recruitment based on comparable efforts of other 
employers and the H-2A applicant employer as found in the current 
regulation at Sec.  655.105(a). This organization was also concerned 
about the elimination of the current provision requiring that ``[w]hen 
it is the prevailing practice in the area of employment and for the 
occupation for

[[Page 77130]]

non-H-2A agricultural employers to secure U.S. workers through farm 
labor contractors and to compensate farm labor contractors with an 
override for their services, the employer shall make the same level of 
effort as non-H-2A agricultural employers and shall provide an override 
which is no less than that being provided by non-H-2A agricultural 
employers.'' 20 CFR 655.103(f). The organization made several 
recommendations for revisions regarding recruitment, including 
preserving the burden on the employer (under Departmental review) to 
identify and positively recruit in locations with potential sources of 
labor, and the obligation to work with the SWA to do so; retaining 
current regulatory provisions requiring that employers engage in the 
same kind and degree of recruitment for U.S. workers as they utilize 
for foreign workers; and requiring adequate compensation of farm labor 
contractors who find U.S. workers. Additionally, it recommended 
preserving the role of SWAs contained in the current regulations and 
detailed in the internal Departmental H-2A Program Handbook.
    Other commenters expressed concern that the Department's proposal 
to reduce the scope and type of required recruitment efforts while 
increasing the length of time to perform recruitment was primarily 
intended to streamline the program, but would not actually benefit U.S. 
workers. These commenters disagreed with the proposed rule's 
elimination of the current regulatory requirement to contact farm labor 
contractors, labor organizations, nonprofits and similar organizations 
to recruit domestic employees. If the Department seeks to revise the 
current recruitment practices, in the opinion of these commenters, it 
would be more effective to maintain or increase current recruitment 
standards, while giving agricultural employers additional time within 
which to meet their obligations; otherwise the Department is reducing 
opportunities for U.S. workers.
    One commenter suggested that the Department bolster word-of-mouth 
recruitment because it is, in the commenter's opinion, the only way 
that U.S. workers find out about jobs in the agricultural sector and it 
encourages free-market competition as long as the information is 
accurate. This commenter believes too many H-2A employers do not 
provide accurate information to U.S. workers because it is in their 
best interests to hire H-2A workers who must stay tied to that employer 
for the entire agricultural season.
    While the Department appreciates the concerns expressed, it 
believes these concerns are misplaced in light of the recruitment 
methods that the Department will be requiring employers to undertake 
under the Final Rule. The Department will continue, and in some 
respects expand, those core positive recruitment requirements that have 
a proven track-record of providing cost-effective information to U.S. 
workers about available job opportunities. For example, the Final Rule 
retains the current requirement that employers run two newspaper 
advertisements in the area of intended employment, but expands that 
requirement, as laid out more fully in Sec.  655.102(g), by requiring 
that one of the advertisements be placed on a Sunday, which typically 
is the newspaper edition that has the highest circulation. The 
Department declines, however, to continue obscure and difficult-to-
administer provisions requiring employers and the Department to 
abstractly measure the amount of ``effort'' that employers put into 
their domestic positive recruitment, or to determine precisely what the 
prevailing practice is in a given area with respect to the payment of 
labor contractor override fees. Provisions that call for the 
measurement of employer effort require the Department to make highly 
subjective judgments and are extremely difficult to enforce. Moreover, 
the Department's program experience has shown that most of the 
discontinued recruitment methods cited by commenters--radio ads and 
contacting fraternal organizations, for example--substantially add to 
the burden of using the program, but add little to the total amount of 
information about agricultural job opportunities that is made available 
to U.S. workers through the positive recruitment methods that are 
required by the Final Rule. The elimination of specific requirements to 
contact entities such as fraternal organizations does not mean that 
interested entities will be entirely deprived of information about open 
agricultural job opportunities. Rather, it means that interested 
entities should pay attention to newspaper advertisements and SWA job 
orders.
    The Department appreciates the suggestion that it should develop 
methods for encouraging word-of-mouth as a recruitment tool, and that 
word-of-mouth is frequently a successful way for U.S. workers to learn 
about job opportunities. We do not believe that word-of-mouth 
recruitment can effectively be mandated by regulation, however. Rather, 
the Department anticipates that word-of-mouth communication will be 
instigated by the positive recruitment efforts that the Final Rule 
requires, particularly through the assistance of farm worker assistance 
and advocacy organizations, which can spread the word about available 
job openings.
    The Department takes seriously its statutory obligation to 
determine whether there are sufficient numbers of U.S. workers who are 
able, available, willing, and qualified to perform the labor or 
services involved in the petition and to ensure that U.S. workers' 
wages and working conditions are not adversely affected by the hiring 
of H-2A workers. The Department believes that the positive recruitment 
methods it has selected for inclusion in the Final Rule--the use of 
newspaper advertisements, the state employment service system, contact 
with former workers, and recruitment in traditional or expected labor 
supply States--provide notice of job opportunities to the broadest 
group of potential applicants in an efficient and cost-effective 
manner, while avoiding burdening employers with requirements that have 
proven costly and at times difficult to administer without yielding 
clear benefits. The Department notes that employers stand to gain a 
great deal from recruiting eligible U.S. workers rather than incurring 
the considerable time and expense of securing foreign workers from 
thousands of miles away. The various provisions of these regulations, 
including wage, housing, and transportation requirements, ensure that 
it is virtually always more expensive for employers to hire H-2A 
workers than it is for them to hire U.S. workers outside the H-2A 
program. Thus, employers have significant incentives to use the 
positive recruitment methods prescribed by these regulations to maximum 
effect, and the Department is confident that these methods will 
adequately spread the word to U.S. workers about available job 
opportunities. The Department expects that many employers will also 
engage in additional recruitment efforts that can, in the absence of 
rigid and overly prescriptive regulatory requirements, be flexibly 
tailored to the particular circumstances of local labor markets.
(e) Section 655.102(e) Job Order
    Proposed Sec.  655.102(e) required that, prior to filing its 
application with the NPC, the employer place a job order, consistent 
with 20 CFR part 653, with the SWA serving the area of intended 
employment. The NPRM also required the job order to be placed at least 
75 but no more than 120 days prior to the anticipated date of need.

[[Page 77131]]

    Several commenters focused on the requirements for placement of the 
job order. Three commenters posited that the rule would create problems 
for program users by establishing requirements for acceptable job 
offers that are subject to the Department's discretion, while employers 
would have to conduct the recruitment before the terms and conditions 
of the employer's job offer have been reviewed and approved by the 
Department. According to these commenters, the rule is silent on what 
happens if, after the employer conducts the pre-filing recruitment, the 
Department does not approve the employer's job offer. Under the current 
program, the recruitment would be considered invalid, and the employer 
would be required to revise the job offer and repeat the recruitment. 
This situation, according to these commenters, introduces an 
unacceptable degree of uncertainty and risk into the process. A trade 
association further commented that, because there will be no prior 
approval of the job offer by the NPC, all SWAs would be independently 
interpreting and making decisions about the job offers, and believed 
that such a process would lead to inconsistencies among SWAs. The 
association was also concerned there would be inconsistency between 
what a local SWA employee would accept and what the CO would later find 
acceptable. The association recommended retaining the existing process 
as an option for employers.
    The Department requires that the employer submit an acceptable job 
order (current form ETA-790) to the appropriate SWA for posting in the 
intrastate and interstate clearance system. The ETA-790 describes the 
job and terms and conditions of the job offer: the job duties and 
activities, the minimum qualifications required for the position (if 
any), any special requirements, the rate of pay (piece rate, hourly or 
other), any applicable productivity standards, and whether the employee 
is expected to supply tools and equipment. This form is submitted to 
the SWA for acceptance prior to the employer's beginning positive 
recruitment. As long as the employer's advertisements do not depart 
from the descriptions contained in the accepted job order, the 
advertisements will be deemed acceptable by the Department. Thus, 
employers should place advertisements after the form ETA-790 has been 
accepted for intrastate/interstate clearance, eliminating any chance 
that recruitment will later be rejected by the NPC due to problems with 
the job offer and corresponding advertisements.
    The Department also does not anticipate significant problems in 
uniform decision making among SWAs. SWAs will be, as they have been for 
some time, the primary arbiter of whether job descriptions and job 
orders are acceptable. In response to comments on the subject, however, 
the Department has clarified in the text of the rule that employers may 
seek review by the NPC of a SWA rejection, in whole or in part, of a 
job description or job order. The regulations have also been revised to 
permit the NPC to direct the SWA to place the job order where the NPC 
determines that the applicable program requirements have been met and 
to provide the employer with an opportunity for review if the NPC 
concludes that the job order is not acceptable. This modification 
renders concrete what has long been the informal practice with respect 
to H-2A related job orders, as the NPC has worked hand-in-hand with the 
SWAs to ensure that job orders comply with applicable requirements. It 
is also implicit in the status of the SWAs as agents of the Department, 
assisting the Department in the fulfillment of its statutory 
responsibilities.
    One trade association noted that the job order must be filed in 
compliance with part 653, and that Sec.  653.501 requires that the 
employer give an assurance of available housing as part of the job 
offer. This commenter opined that this would be impossible to do since 
employers cannot guarantee the availability of housing that far in 
advance for purposes of using the proposed housing voucher. The 
Department's disposition of the proposed housing voucher, discussed 
below, renders this comment moot.
    The same commenter noted that Sec.  653.501(d)(6) requires that the 
SWA staff determine whether the housing to be provided by the employer 
meets all of the required standards before accepting a job order, and 
argued that this would be an impossible task 120 days before the actual 
date of need, as the proposed rule purported to allow. As explained 
above in the discussion of Sec.  655.102(a), the Department has amended 
the timeframe for recruitment by moving the first date for advertising 
and placement of the job order to no more than 75 days and no fewer 
than 60 days prior to the date of need. Moreover, in response to the 
comments received, the Department has specified in the Final Rule that 
SWAs should place job orders into intrastate and interstate clearance 
prior to the completion of the housing inspections required by 20 CFR 
653.501(d)(6) where necessary to meet the timeframes required by the 
governing statute and regulations. This will maximize the time that job 
orders are posted, providing better information to workers. The Final 
Rule further directs SWAs that have posted job orders prior to 
completing a housing inspection to complete the required inspections as 
expeditiously as possible thereafter. This provision is consistent with 
the current regulations, which already permit job orders to be posted 
prior to the completion of a housing inspection pursuant to Sec.  
654.403. If a SWA notes violations during a subsequent housing 
inspection, and the employer does not cure the violations after being 
provided a reasonable opportunity to do so, the corresponding job order 
may be revoked. With these amendments, the Department believes it has 
adequately addressed the concerns contained in this comment.
    In addition, a group of farmworker organizations objected to the 
use of the language ``place where the work is contemplated to begin'' 
in describing which SWA should receive a job order when there are 
multiple work locations within the same area of intended employment and 
the area of intended employment is found in more than one State. It 
believed this language would allow employers to choose where they 
wanted to recruit U.S. workers simply by ``contemplating'' that the 
work would begin in an area unlikely to have U.S. workers. The 
Department received other comments that supported this requirement. 
After considering these comments, the Department has revised the 
language of the provision to state that an employer can submit a job 
order ``to any one of the SWAs having jurisdiction over the anticipated 
worksites.'' The revised language affords employers some flexibility in 
determining where to initially send job orders, but it does not allow 
employers to use this flexibility to avoid recruitment obligations, as 
Sec.  655.102(f) provides that the SWA that receives the job order 
``will promptly transmit, on behalf of the employer, a copy of its 
active job order to all States listed in the job order as anticipated 
worksites.'' Thus, no matter where the job order is initially sent, the 
scope of required recruitment will be the same, covering all areas in 
which anticipated worksites are located.
    A sentence has also been added to the Final Rule, simply as a 
procedural direction to the SWAs, that ``[w]here a future master 
application will be filed by an association of agricultural employers, 
the SWA will prepare a single job order in the name of the

[[Page 77132]]

association on behalf of all employers that will be duly named on the 
Application for Temporary Employment Certification.''
(f) Section 655.102(f) Intrastate/Interstate Recruitment
    The proposed regulation instructs the SWA receiving an employer's 
job order to transmit a copy to all States listed as anticipated 
worksites and, if the worksite is in one State, to no fewer than three 
States. Each SWA receiving the order must then place the order in its 
intrastate clearance system and begin referral of eligible U.S. 
workers.
    The Department received some general comments regarding the 
referral process for U.S. workers. One group of farmworker advocacy 
organizations expressed concern about the lack of referrals by SWAs to 
H-2A employers in the past and believed the proposed regulation would 
not cure this deficiency. One association of agricultural employers 
expressed concern regarding the ability of the SWAs to adequately 
handle the referral process.
    The Department believes these concerns are misplaced, especially 
under a modernized system in which SWA responsibilities with respect to 
each H-2A application is reduced. A core function of the SWA system is 
the clearance and placement of job orders and the referral of eligible 
workers to the employers who placed those job orders. Past program 
experience demonstrates the occurrence of a sufficient number of 
referrals to sustain this requirement.
    One SWA commented that although the NPRM states the purpose of 
removing the SWA is to remove duplication of effort, one important 
duplicative effort is retained--the requirement for sending job orders 
to other labor supply States and neighboring States. This agency 
suggested that if the job orders are uploaded to the national labor 
exchange program, then the transmittal of job orders to other States is 
unnecessarily duplicative. Other commenters recommended all 
agricultural job orders be posted in an automated common national job 
bank.
    The Department acknowledges the potential benefits of a national 
online system for posting job offers. However, automating interstate 
job clearance would require regulatory reforms that the Department is 
currently constrained from undertaking by Congress. See Public Law 110-
161, Division G, Title I, Section 110. There is currently no online 
national exchange organized under the auspices of the Department to 
which such jobs could be posted. The Department's former internet-based 
labor exchange system, America's Job Bank, was disbanded in 2007 
because the private sector provides much more cost-effective and 
efficient job search databases than the federal government can provide. 
The Department, however, does not wish to impose mandatory 
participation in such job databases on SWAs or employers at this time. 
Because the Department already has an existing system in place for 
handling interstate job orders, and given the current legal and 
operational constraints of changing that system, the Department has 
determined that the only feasible and prudent approach at this time is 
to continue to require SWAs to process the interstate job orders in 
accordance with 20 CFR Part 653.
    An association of growers/producers opposed the requirement for 
transmitting job orders to additional States and recommended the job 
orders be circulated only in the State where the job is located. This 
association also suggested that any out of State notifications should 
list only the location of the job offer and never list the employer's 
name.
    The Department's circulation of the job order to any States that 
are designated by the Secretary as labor supply States is required by 
statute. Section 218(b)(4) of the INA prohibits the Secretary from 
issuing a labor certification after determining that 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.'' The interstate recruitment must be 
conducted ``in addition to, and shall be conducted within the same time 
period as, the circulation through the interstate employment service 
system of the employer's job offer.'' The Department does not have the 
ability to eliminate or alter the requirement absent Congressional 
amendment.
    At the same time, the Department does not read the statutory 
language to require the Secretary to designate traditional or expected 
labor supply States with respect to all States in which H-2A 
applications may be filed. Rather, the Department believes that the 
statutory language is most reasonably read to require the Secretary to 
make a determination for each area (which the Secretary has elected to 
do on a State-by-State basis) whether, with respect to agricultural job 
opportunities in that area, there are other areas (which the Secretary 
has also elected to examine at the State-by-State level) in which 
``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.'' In other words, the Department 
reads the statute as contemplating that with respect to agricultural 
job opportunities in certain States at certain times, as a factual 
matter there simply will not be other States in which 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.'' Under this reading of the statute, the 
word ``where'' in 8 U.S.C. 1188(b)(4) essentially means ``if'': If the 
Secretary determines that the statutory criteria have been met, then 
she is required by the statute to designate the area of traditional or 
expected labor supply, but if the Secretary determines that the 
statutory criteria have not been met, then the requirement is simply 
inapplicable. This sensible reading of the statute comports with the 
realities of the agricultural sector: The pattern of seasonal migrant 
work has clearly changed over time, and in some cases older patterns 
have become well-established while others have fallen away. The 
changeable nature of the agricultural labor flow, which is highly 
dependent upon weather patterns, crop distribution, the availability of 
transportation, and even the price of gasoline, are all recognized 
under this system of flexible, fact-specific designations by the 
Secretary.
    A group of farmworker advocacy organizations pointed out that the 
proposed regulations do not provide a timeframe for how long the local 
SWA can wait before placing the H-2A job order into interstate 
clearance, and only require the SWA to ``promptly transmit'' the job 
offer. The Department does not believe that its requirement of 
``prompt'' transmission requires further clarification, however. 
Posting job orders is one of the core functions of the SWAs, and the 
Department is confident the SWAs will continue to act responsibly in 
promptly transmitting and posting job orders as they have in the past.
    The organization was also concerned about the clarity of the 
instructions to be followed by SWAs for circulating job orders among 
other States. The proposed regulations require the SWA to transmit a 
copy of the open job order to all States listed in the employer's 
application as anticipated worksites or, if the employer's anticipated 
worksite is

[[Page 77133]]

within a single State, to no fewer than three States, including those 
designated as traditional or expected labor supply States. However, the 
organization believed the proposed regulation would be read to not 
require any additional job order circulation by the SWA if the employer 
has anticipated worksites in two States, and thus would provide less 
circulation of job orders and no contact of labor supply States in such 
situations. The Department agrees and has clarified the language of 
Sec.  655.102(f)(1) by removing the phrase, ``If the employer's 
anticipated worksite location(s) is contained within the jurisdiction 
of a single State'' to make clear that job orders with locations in 
more than one State must be circulated to any traditional or expected 
labor supply States designated by the Secretary for either of the work 
locations.
    An attorney for an association of growers/producers suggested the 
H-2A process could be further improved by allowing State officials to 
affirm that employers need agricultural workers in their State. The 
Department believes it cannot implement such an affirmation process, as 
similar processes for determining the unavailability of U.S. workers 
have been found to be insufficient for the factual determination 
required by the Secretary. See First Girl, Inc. v. Reg. Manpower Admin. 
DOL, 361 F. Supp. 1339 (N.D. Ill. 1973) (availability of U.S. workers 
could not be determined by generic listing of available workers listed 
with state agency).
    A public legal service firm recommended that the Department require 
employers to circulate all job orders in Texas, which they said is a 
traditional agriculture labor surplus state. If the commenter's factual 
assertions about labor availability in Texas are correct, the 
Department would expect that Texas will frequently be designated as a 
labor supply State. The Department is cognizant of the changeable 
nature of worker flows, however, and therefore does not wish to require 
the mandatory inclusion of one or more specific States in the 
designation process. It is subject to question, for example, whether 
significant numbers of agricultural workers in Texas would be willing 
to accept seasonal employment in Alaska or Hawaii. Rather, the 
Department will rely on annually updated information in designating 
labor supply States to ensure the accuracy of the assertions that farm 
workers are indeed available in the purported labor supply State and 
that recruitment there for out of State jobs would not take needed 
workers away from open agricultural jobs in the labor supply State. In 
response to these concerns, however, the Department notes it will 
announce, at least 120 days in advance of the Secretary's annual 
designation, an opportunity for the public to offer information 
regarding States to be designated.
    Finally, a group of farmworker advocacy organizations expressed 
concern regarding the content of job orders placed by agricultural 
associations. It objected to the placement of job orders with a range 
of applicable wage offers with a statement that ``the rate applicable 
to each member can be obtained from the SWA.''
    In promulgating this rule, the Department made no changes to 
current practice. An association is permitted to pay a different wage 
for each of its members, should it choose to do so, as long as that 
wage meets the criteria established in the regulations (now found at 
Sec.  655.108). U.S. workers seeking a job opportunity from or within 
an association can acquire from the SWA a list of member locations and 
the wages associated with each so that the worker can make a fully 
informed decision as to which job, if any, the worker wishes to apply.
    We made several minor edits that are consistent with the above 
discussion to the language of Sec.  655.102(f) for purposes of clarity. 
Some language was also moved to other sections or deleted, again for 
purposes of clarity and without substantive effect. Section 
655.102(f)(3), which describes the recruitment period during which 
employers are required to accept referrals of U.S. workers, was added 
to the rule for reasons described at length in the discussion of the 50 
percent rule under Sec.  655.102(b).
(g) Section 655.102(g) Newspaper Advertisements
    The Department proposed that in addition to the placement of a job 
order with the SWA, employers be required to place three advertisements 
(rather than the current two) with a newspaper or other appropriate 
print medium. Most who commented on this suggestion believed the 
additional advertising would result in additional costs without any 
additional benefits. An association of growers/producers stated: 
``Additional newspaper advertising is a very expensive alternative of 
recruiting workers in today's world and should not be the only method 
allowed.''
    A trade association also questioned the expansion of the 
advertising requirements in the proposed regulations and commented that 
newspapers are not a usual or even occasional source of labor market 
information for farm workers. The association and other commenters 
referenced the National Agricultural Worker Survey (NAWS) which 
reported that percent of seasonal crop workers (both legal and illegal) 
learn about jobs from a friend or relative or already know about the 
existence of the job (although how such knowledge is attained was not 
reported). The association further commented that the proportion of 
workers who learn about their jobs from a ``help wanted'' ad was 
apparently too small even to warrant inclusion in the report. Several 
of these commenters suggested it would be more efficient to simply 
allow for posting to the SWA's job bank which is more practical, less 
expensive, and reaches applicants more readily.
    A few employers objected to the very concept of newspaper 
advertising. One employer objected to having to advertise in a 
newspaper, commenting that newspaper advertisement is ``not only 
expensive, but doesn't find any hiding sheep shearers.'' Another 
employer objected to the increase in required newspaper advertising for 
U.S. workers ``when it is clear that local workers are simply not 
available for seasonal jobs.'' Many commenters were particularly 
concerned that increasing the number of ads from two to three in 
addition to requiring that one be placed in a Sunday edition would 
greatly increase employer costs. One trade association commented that 
it is likely that in the typical situation an employer's advertising 
costs would increase by three to four times under the proposed 
regulations, adding hundreds to thousands of dollars to the employers' 
application costs. That commenter did not provide data supporting this 
conclusion, however.
    Several commenters were in favor of the proposal to increase 
advertising and expressed support for the additional ad in the 
expectation it would provide additional notice to the target 
population. An association of growers/producers supported the increase 
in advertisements from two to three, believing it would enhance the 
ability of an eligible U.S. worker to identify and apply for 
agricultural job openings before the job begins. A farmworker/community 
advocacy organization agreed that requiring three instead of two 
advertisements would be a step toward improving the recruitment of U.S. 
workers.
    The Department appreciates that a newspaper ad frequently may not, 
of itself, result in significant numbers of U.S. workers applying for 
employment. However, such advertising has been required for decades and 
remains the central mechanism by which jobs are

[[Page 77134]]

advertised, especially to workers who may have only limited access to 
the Internet. The ads may not necessarily be seen by all farmworkers, 
but may be, and indeed are, seen by those who participate in the 
greater farm work community and who can pass along a description of the 
jobs ads through ``word-of-mouth.'' Newspaper advertising remains, 
along with the state employment service system network, an objective 
mechanism by which notice of upcoming farm work can be assessed by the 
Department and communicated to those who are interested.
    The study referenced by many commenters suggesting that most 
referrals in the agricultural sector take place through word-of-mouth 
rather than through newspaper advertisements was actually conducted by 
the Department, and, as noted above, the Department acknowledges that 
word-of-mouth frequently results in U.S. workers learning about job 
opportunities. However, the Department believes it would be nearly 
impossible to effectively implement and enforce a word-of-mouth 
regulatory standard. The Department believes the combination of job 
orders and required newspaper advertisements are cost-effective, easily 
administrable, and readily enforceable, and will make job information 
available in ways that will result in word-of-mouth referrals.
    Although it may be true that few agricultural workers themselves 
read such advertisements, others do read them, including farm labor 
advocacy organizations, community organizations, faith-based 
organizations, and others who seek out such opportunities on behalf of 
their constituents. The newspaper becomes a very visible source of 
information for such organizations that are in turn able to spread the 
word to workers. Through publication to this wide audience, the 
information ultimately reaches those for whom it is intended.
    The Department appreciates the substantial concern raised by a 
number of commenters regarding the placement of multiple ads and has 
thus revised its proposal on the number of ads that must be placed in 
the area of intended employment. The Department has decided to revert 
from the proposed three to the existing rule's requirement for two ads. 
The Department is retaining its proposal, however, to require that one 
of the newspaper advertisements be run on a Sunday, as that is 
typically the newspaper edition with the broadest circulation and that 
is most likely to be read by job-seekers.
    In response to the various comments about the proposed advertising 
requirements, the Department is also slightly modifying the language of 
Sec.  655.102(g)(1) to provide some limited flexibility in selecting 
the newspaper in which the job advertisement should be run. The Final 
Rule clarifies that the newspaper must have a ``reasonable 
distribution.'' Thus, advertisements need not be placed in the New York 
Times, even if the New York Times is the newspaper of highest 
circulation in a given area, but also cannot be placed in a local 
newspaper with such a small distribution that it is unlikely to reach 
local agricultural workers. The Final Rule also clarifies that the 
newspaper must be ``appropriate to the occupation and the workers 
likely to apply for the job opportunity,'' but deletes the modifier 
requiring that the newspaper must be the ``most'' appropriate. This 
change was made out of a recognition that in many areas there are 
multiple newspapers with a reasonable distribution and that are likely 
to reach U.S. workers interested in applying for agricultural job 
opportunities, and that as long as these criteria are met, an 
employer's positive recruitment should not be invalidated. If an 
employer is uncertain whether a particular newspaper satisfies these 
criteria, it can seek guidance from the local SWA or the NPC.
    The Final Rule also instructs employers not to place the required 
newspaper advertisements until after the job order has been accepted by 
the SWA for intrastate/interstate clearance; this replaces the time 
frame contained in the NPRM and shifts the initiation of recruitment 
back to the submission to and clearance by the SWA of the job order. 
This ensures that advertisements reflect the job requirements and 
conditions accepted by the SWA and minimizes the risk that employers' 
advertisements will later be determined to be invalid by the NPC.
    One commenter suggested that a better alternative to employer-
placed advertisements would be for the Department to maintain an up-to-
date database listing advertisements for farming and ranching jobs and 
directing interested workers to contact the SWA in the States where the 
jobs were located. The commenter believed this approach would expand 
the ability of U.S. workers to select more varied jobs in a larger 
geographic area. The Department does not disagree; however, as noted 
above, amending the current job order clearance process is not an 
option at this time.
    A private citizen commented that the SWA, not the employer, is in 
the best position to know which newspaper is most likely to reach U.S. 
workers, and that the SWA should, therefore, continue to have a role in 
determining where advertising is conducted. Nothing, of course, 
prevents an employer from consulting with the SWA regarding the most 
appropriate publication in which to place advertising and thus ensure 
compliance with the regulations, particularly in instances in which a 
professional, trade or ethnic publication is more appropriate than a 
newspaper of general circulation. In fact, a representative of a State 
government agency suggested the advertising requirements should be 
limited to local area media and trade publications where available, and 
that the specific publications should be agreed to by the employer and 
the SWA based on the potential for attracting candidates and historical 
experience. While we are not incorporating this suggestion for 
coordination into the regulation as a requirement, we note that the 
regulation at Sec.  655.102(g)(1) already requires the ads to be placed 
in the ``newspaper of general circulation serving the area of intended 
employment that has a reasonable distribution and is appropriate to the 
occupation and the workers likely to apply for the job opportunity.''
(h) Section 655.102(h) Contact With Former U.S. Workers
    The Department proposed that employers be required to contact by 
mail former U.S. workers as part of the recruitment process. A group of 
farmworker organizations objected to the requirement and commented: 
``if DOL had intended to come up with the least effective way of 
contacting former employees, it could not have selected a better method 
than by mail.'' This organization was concerned because they claimed a 
majority of farm workers are not literate in English or their primary 
language and, therefore, might not understand the written communication 
and the regulation does not require the written communication to be in 
any language other than English. The organization also recommended 
contact by telephone or through crew leaders or foremen as alternative 
methods of contact. In response, we have modified this provision in the 
Final Rule to permit employers to also contact former U.S. workers 
through alternative effective means, and document those means in some 
manner (telephone bills or logs, for example).
    Additionally, the organization believes many workers would be 
missed by the proposed mailing effort because the proposed regulation 
limits the requirement to contacting former

[[Page 77135]]

workers ``employed by the employer in the occupation at the place of 
employment, during the previous year'' and does not require that H-
2ALCs contact a growers' former workers who did not work for the H-2ALC 
during the previous season. The Department declines to adopt a 
requirement that employers contact workers who did not work for them 
during the previous season, as such a requirement would be quite 
impractical, and the other positive recruitment requirement methods 
included in the Final Rule are intended to reach such workers. It is 
not at all clear how H-2ALCs would even gain access to the necessary 
contact information for former employees of other employers, and in the 
judgment of the Department such a requirement would be excessively 
burdensome.
    One association of growers/producers suggested the proposed rule be 
modified to allow employers the ability to deny work to employees hired 
in previous years who demonstrated an unsatisfactory work history/ethic 
even if the worker was not terminated for cause. A trade association 
and other commenters expressed concern about former employees who were 
the subject of no-match letters from the Social Security Administration 
and requested a safe harbor or common sense exception in such 
situations.
    The Department appreciates that employers that do not participate 
in the H-2A program generally are not required to rehire employees who 
have a poor work history. The Department also appreciates that 
employers frequently may allow short-term workers who prove to be poor 
performers to finish their job terms if it is easier and, in light of 
potential litigation risks, less costly than firing them. There is a 
countervailing concern, however, that if the Department allowed 
employers to reject former workers who completed their previous job 
term on the alleged ground that the workers were actually poor 
performers, it would open the door for bad actor employers to reject 
former workers on the basis of essentially pretextual excuses. The 
Department has therefore decided to address employers' concerns about 
poorly performing workers by creating an exception allowing employers 
not to contact certain poor performers, but only in the narrow 
circumstance where the employer provided the departing employee at the 
end of the employee's last job with a written explanation of the 
lawful, job-related reasons for which the employer intends not to 
contact the worker during the next employment season. The employer must 
retain a copy of the documentation provided to the worker for a period 
of 3 years, and must make the documentation available to the Department 
upon request. The Department will review the propriety of the 
employer's non-contact in such situations on a case-by-case basis. The 
Department believes that the insertion of this provision is responsive 
to the comment in that it relieves employers from the burden of being 
required to rehire truly poorly performing workers, while ensuring that 
workers who will not be recontacted are aware of the employer's 
intentions and reasons well in advance of the next employment season 
and have the opportunity to bring reasons they regard as pretextual to 
the Department's attention.
    With respect to the comment about no-match letters, we note that 
employers are not required to hire a worker who cannot demonstrate 
legal eligibility to work. Receipt of a no-match letter may give rise 
to a duty on the employer's part to inquire about work eligibility, but 
the letter in and of itself is not sufficient legal justification to 
refuse to hire a U.S. worker.
    One trade association expressed concern about the related 
requirement for documenting contact with former employees and stated, 
``This requirement could reasonably be interpreted to mean that the 
employer must maintain a copy of its correspondence with each former 
employee demonstrating that it had been mailed. The only practical way 
to do this would be to send each letter by certified mail or some other 
means providing evidence of attempt to deliver. Such a requirement 
would be unnecessarily burdensome and costly.'' The association 
recommended this be simplified by requiring the employer to keep a copy 
of the form of the letter sent and a statement attesting to the date on 
which it was sent and to whom. Additionally, the association questioned 
what kind of documentation would demonstrate that the employee ``was 
non-responsive to the employer's request.'' The association suggested 
the employer's recruitment report should be sufficient to document 
which employees were responsive and requiring documentation of non-
responsiveness is unreasonable.
    The Department does not intend this requirement to be overly 
burdensome to employers and agrees that copies of form letters together 
with the employer's attestation that the letters were mailed to a list 
of former employees would be sufficient to meet the requirements of 
this provision. The Department also agrees that the recruitment report 
can be used to sufficiently document the non-responsiveness of former 
employees. The Department inserted language into the Final Rule 
clarifying the Department's expectations regarding the type of 
documentation that should be maintained.
(i) Section 655.102(i) Additional Positive Recruitment
(1) Designation of Traditional or Expected Labor Supply States
    In the NPRM, the Department continued to impose on employers the 
requirement that the employer make ``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 U.S. workers who, if recruited, would be willing to make 
themselves available for work at the time and place needed,'' as 
mandated by 8 U.S.C. 1188(b)(4). The Department proposed that each year 
the Secretary would make a determination with respect to each State in 
which employers sought to hire H-2A workers whether there are other 
States in which there a significant number of eligible, able and 
qualified workers who, if recruited, would be willing to make 
themselves available for work in that State. The Department also 
proposed to continue the current regulatory provision stating that the 
Secretary will not designate a State as a State of traditional or 
expected labor supply if that State had a significant number of local 
employers recruiting for U.S. workers for the same types of 
occupations. The Department proposed to publish an annual determination 
of labor supply States to enable applicable employers to conduct 
recruitment in those labor supply States prior to filing their 
application. The Department received several comments on this 
provision.
    A group of farmworker advocacy organizations opined that the 
Department's proposal contravenes the H-2A statutory requirements 
regarding positive recruitment. The organization believes the 
Department's proposal will result in employers not competing with one 
another for migrant workers and workers not receiving job information 
even though a particular job in another State may offer a longer 
season, a higher wage, or better work environment. Another farmworker 
advocacy organization commented that it makes no sense in a market 
economy which recognizes competition as good to stop requiring 
employers to recruit for farmworkers in areas where other employers are 
seeking farmworkers. A labor organization commented that this

[[Page 77136]]

provision demonstrates a lack of understanding of farmworker 
recruitment and what it believes is an inappropriate desire to ease the 
recruitment obligations for growers at the expense of U.S. farmworkers. 
This organization recommended the current positive recruitment rules 
should be retained and enforced. A U.S. Senator was concerned that the 
NPRM would cost American workers jobs because they would not have 
access to information about jobs in other areas.
    Employers seeking farmworkers are statutorily required to recruit 
out-of-State if the Secretary has determined that other States contain 
a significant number of workers who, if recruited, would be willing to 
pick up and move in order to perform the work advertised in accordance 
with all of its specifications. The commenters referenced above appear 
to believe that the Department's proposal is a new regulatory 
provision. That is incorrect. The current regulations at 20 CFR 
655.105(a), which have been in place for 20 years, specify that 
Administrator, OFLC should ``attempt to avoid requiring employers to 
futilely recruit in areas where there are a significant number of local 
employers recruiting for U.S. workers for the same types of 
occupations.'' This longstanding provision reflects two judgments on 
the part of the Department. First, it reflects the Department's reading 
that 8 U.S.C. 1188(b)(4) was intended to require out-of-State 
advertising only in areas with a surplus labor supply, and was not 
intended to deleteriously impact farmers in certain areas by 
instituting federal program requirements that would draw away their 
local workers. Second, it reflects the Department's judgment that where 
a ``significant'' number of local employers are already recruiting U.S. 
workers in a given area for the same types of occupations, there is 
already significant competition for workers in that area and the 
addition of further out-of-State advertising would likely be futile. 
The Department's program experience in applying this limitation over a 
long period of time leads it to believe that it has worked well in 
practice to aid program administration and avoid the imposition of 
unnecessary program expense. The Department notes that this limitation 
does not mean that out-of-state recruitment will cease in States where 
workers are being locally recruited, since SWAs will continue to have 
discretion to post job orders in those States where appropriate.
    Several commenters sought more information on the methodology that 
would be used in making the determinations about labor supply States. A 
group of farmworker/community advocacy organizations voiced its concern 
that ``The annual survey is flawed in many respects and not designed to 
identify sources of labor at the time of need.'' The organization was 
also concerned about the timing and specificity of the survey to be 
used. A representative of a State Workforce Agency requested additional 
information about the designation of labor supply States for the 
logging industry in her State. A trade association commented that ``the 
same types of occupations'' should mean something more than merely 
agricultural work. An individual commenter believed that just because 
an employer in a State may request H-2A workers for a certain crop 
activity for a certain time period should not mean that State should 
not be considered a labor supply State for other crop activities and 
time periods.
    The Department has addressed many of these concerns by modifying 
the provision to allow for notice to be published in the Federal 
Register at least 120 days before the announcement of the annual 
determination, allowing anyone to provide the Department with 
information they believe will assist the Secretary in making her 
determination about labor supply states. The Department will consider 
all timely submissions made in response to this notice. In addition to 
the information presented by the public, the Department expects that it 
will continue to consult SWAs, farmworker organizations, agricultural 
employers and employer associations, and other appropriate interested 
entities. As discussed above, the ``same types of occupations'' 
language in the Final Rule has been carried over from the current 
regulations, and the Department intends to apply the term in the same 
manner that it has in the past. The Department agrees that the phrase 
is not intended to lump all agricultural work together as the ``same 
type of occupation.''
(2) Required Out-of-State Advertising
    The Department proposed that each employer would be required to 
engage in positive recruitment efforts in any State designated as a 
labor supply State for the State in which the employer's work would be 
performed. This recruitment obligation would consist of one newspaper 
advertisement in each designated State.
    Several commenters felt the newspaper advertisement requirements 
were too burdensome on employers and that the additional time and 
expense of recruiting in traditional or expected labor supply States 
should be borne by the Department rather than the employer. An 
association of growers/producers recommended that the regulation only 
require SWAs to send the job orders to those States designated as labor 
supply States as they do now. A United States Senator recommended that 
after the employer has satisfied the intrastate recruitment 
requirements and has attested that insufficient domestic workers are 
available, the burden of proof that U.S. workers are unavailable should 
shift to the Department.
    The Department does not consider a requirement to place a single 
out-of-state advertisement in each designated labor supply state to be 
unjustifiably onerous on employers and is of the opinion at this time 
that the potential benefit to be gained in locating eligible and 
available U.S. workers outweighs the costs of the advertising. This is 
required in the current program and the Department has received little 
negative feedback on the burden of such advertising. The Department 
does not agree that this is an expense the Department should bear, 
beyond the expense of the interstate agricultural clearance system that 
the Department already finances. The INA at sec. 218(b)(4) is clear 
that it is an employer who must engage in such out-of-state positive 
recruitment, not the Department.
    Several associations of growers/producers commented that placing 
newspaper advertisements should be limited to no more than three 
States, to avoid the possibility that the Department could require 
recruitment in 50 States and the additional territories because the 
language in the companion recruitment provision for SWAs at Sec.  
655.102(f) reads ``no fewer than 3 States.'' A United States Senator 
also endorsed a limit on the number of States in which an employer is 
required to recruit and suggested the Department should provide a means 
of indemnifying employers from liability associated with mandatory out-
of-State advertising.
    The Department anticipates the number of States to be so designated 
will be no more than three for any one State, but that the number of 
States designated will vary by State. In some cases, no State or only 
one or two States may meet the relevant criteria. In response to these 
comments, the Department has added to the Final Rule language 
specifying that ``[a]n employer will not be required to conduct 
positive recruitment in more than three States designated in accordance 
with paragraph (i)(1) for each area of intended employment listed on 
the employer's application.'' This is

[[Page 77137]]

generally consistent with past practice concerning required out-of-
State recruitment, as employers have only very rarely been required to 
conduct advertising in more than three States of traditional or 
expected labor supply. Providing this modest cap will provide employers 
with needed certainty regarding expected advertising costs.
    A farmworker advocacy organization believed the requirement should 
be for three advertisements, not one, in each designated State and also 
recommended that the Department require that the language predominant 
among agricultural workers in the region be used. A representative of a 
State government agency commented that the proposed regulations were 
not clear as to how an employer's ad in another State would be handled. 
The individual commented that the advertising instructions indicate 
interested applicants should contact the SWA, but asserted that this 
procedure would not work well for an ad placed out of State and 
recommended the ads placed out of State should advise applicants to 
contact the employer directly. Another commenter recommended the 
newspaper ads in other States should direct all applicants to the SWA 
and the SWA should then refer them to the employer's SWA. An 
association of growers/producers recommended the required newspaper 
advertisements should contain only the job specifications and the SWA 
contact information.
    The Department agrees that more clarity on the mechanics of out-of-
state recruitment is appropriate. The Department has added language to 
the regulation to clarify that one advertisement is to be placed in 
each State identified for the area of intended employment as a 
traditional or expected labor supply State. The Department declines to 
require more than one ad in each State, which would be a significant 
departure from the advertising requirements under the current 
regulations and would add additional program expense. In response to 
comments, and out of recognition that employers often will not be well-
versed in the characteristics of out-of-State newspapers, the 
Department has included language in the Final Rule specifying that its 
annual Federal Register notice will not only announce the designation 
of labor supply States, but will also specify the acceptable newspapers 
in the designated States that employers may utilize for their required 
out-of-State advertisements. In no case will an employer be required to 
place an ad in more than one newspaper in a labor supply State. In 
response to comments, the Final Rule has also been modified to specify 
that ads should refer interested employees to the SWA nearest the area 
in which the advertisement was placed. The SWA will then refer eligible 
individuals to the SWA of the employer's State. The Department believes 
these procedures will provide a workable advertisement-and-referral 
system to provide farmworkers information about available jobs and to 
supply needed labor to prospective users of the H-2A program.
(j) Section 655.102(j) Referrals of Verified Eligible U.S. Workers
    The Department proposed to require SWAs to ``refer for employment 
only those individuals whom they have verified through the completion 
of a Form I-9 are eligible U.S. workers.'' These provisions are 
consistent with the Department's statutory mandate. Although the INA 
prohibits the referral of workers where it is known that they are 
unauthorized to work in the United States, this rule clarifies and 
spells out the Department's expectations. Based upon comments received 
and the Department's experience with this requirement, which has been 
in effect administratively since the issuance of TEGL 11-07, Change 1 
on November 14, 2007, and with respect to which ETA has provided recent 
training webinars for SWAs, the Department believes that SWAs should be 
required to verify the identity and employment authorization of 
referred workers by completing USCIS Form I-9 in accordance with DHS 
regulations at 8 CFR 274a.2 and 274a.6. The NPRM, ETA's written 
guidance, and an opinion by the Solicitor of Labor, all of which have 
been shared with SWAs over the past year, explain both the rationale 
for the SWA verification requirement.
    Comments on this subject were received from a national association 
representing state agencies, 12 individual SWAs, several civil rights 
and labor advocacy organizations, members of Congress, and numerous 
employer groups and individual employers. Commenters supporting the 
proposal generally cited the longstanding need for a reliable 
employment service system that is based on affirmative verification and 
refers only workers who are authorized to work in the U.S. Commenters 
opposing the proposal raised a variety of legal, programmatic, 
resource-related, and policy-based concerns.
    Many commenters considered the employment verification requirement 
to be a change in policy after decades of contrary Departmental 
interpretation. Another argued that the requirement runs afoul of the 
Department's FY08 Appropriations Act, Public Law 110-161, Division G, 
Title I, Section 110, in which Congress prohibited ETA from finalizing 
or implementing any rule under the Wagner-Peyser or Trade Assistance 
Acts until each is reauthorized.
    The Department has always required that SWAs fulfill the 
requirements of the INA to refer only eligible workers by verifying 
their employment authorization. Recent instructions by the Department 
(including TEGL 11-07, Change 1) have clarified the way that employment 
verification is required to be accomplished. To the extent that these 
requirements were thought by some to represent a shift in Departmental 
policy, they are now being clearly stated in the Department's 
regulations. The Department has not reviewed the H-2A regulations 
comprehensively since the current program's inception in 1986. After a 
top-to-bottom review of the program requested by the President in 
August 2007, the Department is revising and modifying a number of 
established practices based on program experience, years of feedback 
from stakeholders, and changing economic conditions.
    As discussed in the NPRM our clarification of SWAs' obligation to 
affirmatively verify employment eligibility is in direct response to 
longstanding concerns about the reliability of SWA referrals. The 
referral of workers not authorized to work undermines the integrity of 
the H-2A program, can harm U.S. workers, and can disrupt business 
operations.
    Many commenters argued that the requirement is inconsistent with 
INA provisions at 8 U.S.C. 1324a, and DHS regulations at 8 CFR 274a.6, 
which permit but do not require SWAs to verify employment eligibility 
for individuals they refer. The USCIS regulations expressly permit SWAs 
to verify the identity and employment authorization of workers before 
making referrals, and certainly do not prohibit such verification. See 
8 CFR 274a.6. The Acting General Counsel of DHS has issued an 
interpretive letter stating that while the USCIS regulations do not 
require SWAs to verify the eligibility of workers before referring 
them, those regulations do not prevent other agencies with independent 
authority from imposing such a requirement. See November 6, 2007 letter 
from Gus P. Coldebella, DHS Acting General Counsel, to Gregory F. 
Jacob, Senior Advisor to the Secretary of Labor. The Department is now 
exercising its independent statutory authority under

[[Page 77138]]

the INA to require through regulation that SWAs verify employment 
eligibility of referrals. Further, to ensure that the regulated 
community has appropriate notice of the specific requirement, and to 
ensure a standard process for verification remains in place consistent 
with the procedures already approved by Congress, we have clarified in 
the regulatory text that states must at a minimum use the I-9 process 
for purposes of verification. The Department also strongly suggests 
(but does not require), as it did in the NPRM, that States utilize the 
DHS-administered E-Verify system. State agencies with procedures that 
do not comply with the minimum requirements of the Form I-9, however, 
such as verification through scanned documents transmitted over the 
Internet, must revise their processes to ensure that agricultural 
referrals are made only as a result of in-person verification.
    The INA requires that employers execute a Form I-9 for all new 
employees. Some commenters interpreted the NPRM to shift this employer 
responsibility to SWAs. A subset of these commenters raised concern 
that removing responsibility for verification from agricultural 
employers alone would be unfair to other, non-agricultural employers 
who would still be required to complete the Form I-9 form.
    This Final Rule does not govern employment eligibility 
verification, nor does it seek to change, for purposes of H-2A labor 
certification, the basic responsibility of employers under the INA. As 
we strongly cautioned in the NPRM, a SWA's responsibility to perform 
threshold, pre-referral verification exists separate from an employer's 
independent obligation under the Immigration Reform and Control Act of 
1986 to verify the identity and employment authorization of every 
worker to whom it has extended a job offer. However, the governing 
statute does permit employers to rely on an employment verification 
conducted by the SWA to fulfill their statutory responsibilities. The 
INA--at sec. 274A(a)(5)--exempts employers from the verification 
requirement and provides a ``safe harbor'' from legal liability to 
employers, regardless of industry, who unwittingly hire an unauthorized 
worker where the hire is based on a SWA referral made in compliance 
with 8 CFR 274a.6, requiring appropriate documentation from the SWA 
certifying that verification has taken place. As discussed more fully 
below, the Department requires in this Final Rule that SWAs provide 
documentation meeting the requirements of sec. 274A(a)(5) of the INA 
and 8 CFR 274a.6 to each employer at the time the SWA refers the 
verified worker to the employer. Employers must retain a copy of the 
SWA certificate of verification just as it would retain a copy of Form 
I-9. Employers must still verify employment eligibility for workers who 
do not have a state certification that complies with all of the 
applicable statutory and regulatory requirements.
    Some commenters were concerned that employers who hire SWA-referred 
workers may seek to hold SWAs responsible for referring unauthorized 
workers. The Department expects that any referrals a SWA makes to 
individual employers will comply with the requirements of Federal law, 
including those established in this Final Rule. For example, the 
preamble to the proposed rule directs SWAs to provide all referred 
employees with adequate documentation that verification of their 
employment has taken place, and clarifies that employers may invoke 
``safe harbor'' protection only where the documentation complies with 
all statutory and regulatory requirements. We have clarified in the 
Final Rule the SWA's obligation to complete Form I-9 and provide 
evidence of such completion by providing the employer with a 
certification that complies with the DHS requirements for such 
certificate at 8 CFR 274a.6. However, employers have no obligation to 
hire a job applicant, whether or not referred by the SWA, who does not 
present the employer with appropriate documentation evidencing the 
applicant's work eligibility. As stated in the NPRM, an employer will 
not be penalized by the Department for turning away applicants who are 
not authorized to work. Additionally, as long as a SWA complies with 
the process established by DHS for State Workforce Agencies and 
undertakes good faith efforts to establish the employment eligibility 
of referred workers, it will not incur any potential liability. 
Although the Department certainly intends to hold SWAs responsible for 
complying with all program requirements, just as it has in the past, 
the Department is not aware of any basis under which SWAs could be held 
liable to third parties for failing to properly perform their 
employment verification responsibilities in the absence of willful or 
malicious conduct.
    Many commenters raised a concern that these new procedures would 
have an unlawful, disparate impact on a protected class, or at least 
make states vulnerable to legal claims of disparate impact that would 
require the expenditure of significant resources to defend. More 
specifically, these commenters felt that to the extent the verification 
process is not applied to non-agricultural workers, it would have a 
disparate impact on agricultural workers, many of whom are Hispanic, 
and that could be perceived as unlawful discrimination on the basis of 
race or ethnicity. Some commenters were concerned that states would be 
forced to expend significant resources to defend lawsuits or, 
alternatively, that in order to protect against lawsuits, would be 
forced to apply the verification procedures to all job referrals.
    The requirement to verify employment eligibility does not violate 
constitutional prohibitions against disparate impact. The eligibility 
requirement is established by statute and is similar to verification 
requirements to gain access to other similar public benefits. See, 
e.g., Section 432, Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193, 110 Stat. 2105 
(employment eligibility verification requirement for most federal 
public benefits for needy families). As this regulation governs the H-
2A foreign labor certification program, the clarification made here is 
limited to that program and to agricultural job referrals, but the 
Department proposed an analogous provision in the H-2B NPRM published 
on May 22, 2008, seeking to extend the same procedural employment 
verification requirements to that program. More generally, the 
clarification of the requirement in this regulation does not mean the 
Department's policy is limited only to agricultural referrals, as the 
Department's expectation is that SWAs will do what they can, including 
exercising their authority under 8 U.S.C. 1324a, to avoid expending 
public resources to refer unauthorized workers to any job 
opportunities, regardless of program area. The employment verification 
provisions included in this regulation are part of a much broader, 
concerted effort--one that includes regulation, written guidance, and 
outreach and education--to address longstanding weaknesses in the 
system and to strengthen the integrity of foreign labor certification 
activities.
    Some commenters opined that the employment eligibility verification 
requirement presents an obstacle to employment for, and will reduce the 
pool of, the U.S. workers it is designed to protect. For example, these 
commenters stated that States are increasingly moving toward web-based 
employment services. The commenters believe an in-person verification 
requirement will require potentially

[[Page 77139]]

onerous visits by job seekers who they believe currently could be 
referred to work without ever visiting a workforce center. The 
commenters stated that, especially in the larger States, this will 
present a greater and perhaps insurmountable hurdle for a larger number 
of U.S. workers, who will be discouraged from travelling great 
distances to obtain a job referral.
    In practice, an in-person verification requirement will not 
significantly change the operation of referrals in most States. In the 
Department's program experience, States often require that agricultural 
job applicants visit the workforce center to receive information on the 
terms and conditions of the job, which must be provided prior to 
referral. See 20 CFR 653.501(f) (placement of the form within local 
offices). While we do not disagree that an in-person verification 
requirement may impact the decisions of a limited number of otherwise 
eligible workers, at this juncture the impact is speculative and does 
not outweigh the significant value of verification. Moreover, it is a 
problem that SWAs may be able to adjust to by designating or creating 
additional in-person locations where eligibility can be verified. This 
is not a problem unique to SWAs given that workers often must travel 
great distances to reach a prospective employer, who then (absent a SWA 
certification) would be required to verify work eligibility. Although 
employment eligibility verification does require some amount of time 
and effort, Congress has determined that simple convenience must cede 
to the overarching goal of achieving a legal workforce and the 
Department has drafted its regulations accordingly.
    Commenters opposing the eligibility provision uniformly complained 
that the verification requirement would add potentially significant 
workload and strain the already inadequate resources of many State 
Workforce Agencies. Many saw it as an unfunded federal mandate in 
violation of the Unfunded Mandates Reform Act. More than one referred 
to the Department's recent inclusion of the requirement as a condition 
for receiving further labor certification grant funding.
    As stated in the preamble to the NPRM, the Department is not 
insensitive to the resource constraints facing state agencies in their 
administration of the H-2A program. However, as we stated in the NPRM, 
we do not believe that the requirement will result in a significant 
increase in workload or administrative burden. We have provided 
training to SWAs to meet their obligations in this context and will 
continue to do so.
    In addition, notwithstanding funding limitations, there is a 
strong, longstanding need for a consistent and uniform verification 
requirement at the state government level. Verification is a statutory 
responsibility of the Department and the SWAs under the INA and the 
Wagner-Peyser Act, and the Department has further determined employment 
verification is a logical and necessary condition for the issuance of 
foreign labor certification grants to states. Precisely to ensure that 
available federal funding supports verification activities, the 
Department has added the verification requirement as an allowable cost 
under the foreign labor certification grant agreement. While cognizant 
of the challenges posed by funding limitations, we expect states to 
comply as they do with other regulatory requirements and other terms 
and conditions of their grant.
    Commenters raised a number of concerns with the use of E-Verify, 
including potential system problems, delays and inaccuracies. The 
Department strongly encourages state agencies to use the system, which 
provides an additional layer of accuracy and security over and above 
the basic I-9 process, but it has not mandated use of E-Verify. SWAs 
can comply with this Final Rule without the use of E-Verify.
    One commenter pointed out that the regulation does not describe the 
penalties to SWAs for non-compliance or delayed compliance with this 
requirement, or the implications for H-2A employers who may seek 
services from SWAs that are not in compliance with the requirement. For 
instance, the commenter inquired whether, if the Department were to 
suspend Foreign Labor Certification grant funding, employers would be 
required to accept referrals funded exclusively by Wagner-Peyser 
funding. The commenter also inquired whether the SWA in an employer's 
state would be required to verify the work eligibility of a worker that 
was referred to it by a non-compliant out-of-State SWA. As the 
verification requirement is implemented, the Department's guidance will 
evolve in response to the experience of the regulated community and our 
own. We do note that these problems already exist under the 
Department's current regulations and policies, and the Department is 
working through them as they arise. The problems are substantially 
alleviated by the fact that virtually every State and territory 
administering the H-2A program has already agreed to come into 
compliance with the employment eligibility verification requirements 
established by current Departmental policies, minimizing the chance 
that a State will need to be de-funded due to non-compliance or that 
non-compliant referrals will be made by out-of-State SWAs. 
Nevertheless, we do not discount the importance of the questions posed 
by the commenter, but see them as issues of implementation that should 
be addressed, as they arise, through appropriate guidance.
    In addition, we note that the SWA may not refuse to make a referral 
and the employer may not refuse to accept a referral because of an E-
Verify tentative nonconfirmation (TNC), unless the job seeker decides 
not to contest the TNC. SWAs and employers may not take any adverse 
action, such as delaying a referral or start date, against a job seeker 
or referred worker based on the fact that E-Verify may not yet have 
generated a final confirmation of employment eligibility.
(k) Section 655.102(k) Recruitment Report
    The Department proposed requiring employers to submit an initial 
recruitment report with their applications and to supplement that 
report with a final recruitment report documenting all recruitment 
activities related to the job opportunity that took place subsequent to 
the filing of the application. The Department proposed that the initial 
recruitment report to be filed with the application be prepared not 
more than 60 days before the date of need, and that the supplemental, 
final report be completed within 48 hours of the date H-2A workers 
depart for the worksite or 3 days prior to the date of need, whichever 
is later. Many individuals and members of agricultural associations 
expressed concern that recruitment reports will not simplify the 
application process and will instead inflict an undue burden on 
employees of small farms. Some agricultural associations argued that 
having two recruitment reports will double the work for employers and 
stated that the supplemental report is not justified because of its 
limited utility in resolving compliance issues.
    The Department disagrees that a supplemental recruitment report 
will have limited benefit, given the Department's intended use of 
supplemental reports in the event of an audit. The supplemental 
recruitment report will provide assurance to the Department that an 
employer has complied with all of its obligations with respect to the 
domestic workforce. Compliance throughout the program, including after 
filing of an application,

[[Page 77140]]

is necessary for the appropriate enforcement of the H-2A program and 
its requirements. By requiring a supplemental report, the Department is 
not requiring a duplicative effort but is in fact effectively requiring 
employers to split the current comprehensive total report (of all 
referrals that are required to be reported) into two smaller, more 
manageable reports. The Department does not believe that this splitting 
of the comprehensive total report will require significantly more 
effort on the part of employers.
    Several commenters specifically mentioned the timing of the 
recruitment report as the biggest problem with the requirement. One 
farm association noted that since the initial application cannot be 
submitted without the recruitment report, and the recruitment report 
must be prepared not more than 60 days prior to the date of need, the 
application itself cannot be filed until 60 days ahead of time. In 
order to rectify this issue, the commenter believed the application 
itself should be required to be filed not more than 60 days prior to 
the date of need. Another farm association suggested that the timeline 
for the recruitment report be moved up to no later than 45 days before 
the date of need, rather than 60 days before the date of need. The 
Department also received comments in support of the supplemental 
recruitment reports.
    The Department has learned through experience that if recruitment 
is begun no more than 45 days before the date of need, it is virtually 
impossible for the Department to receive an adequate recruitment report 
by the time it is statutorily required to make a certification 
determination 30 days before the date of need. As discussed above, we 
have in response to comments amended the timeframe for pre-filing 
recruitment to reflect a recruitment period closer to the date the 
workers are needed. In addition, in accordance with the revisions to 
the time frame specified in Sec.  655.102(e) for submitting job orders, 
the original proposal regarding the timing of the filing of recruitment 
reports has been revised in the Final Rule and now provides that the 
initial recruitment report may not be prepared more than 50 days prior 
to the employer's date of need. The Final Rule also revises the 
proposed timing for the completion of the supplemental recruitment 
report, and now requires the employer to update the recruitment report 
within 2 business days following the last date that the employer is 
required to accept referrals; that is, the end of the recruitment 
period as specified in Sec.  655.102(f)(3). With respect to employers 
who wish to file an Application for Temporary Employment Certification 
prior to 50 days before the date of need, they are welcome to do so to 
initiate processing of the application, but the application will not be 
considered to be complete, and thus eligible for a final determination, 
until the initial recruitment report is submitted.
    Finally, the Department has made additional clarifying edits to the 
regulatory text. These edits are to ensure this provision comports with 
other sections of this Final Rule, to improve readability, and to 
clarify its requirements. These include the deletion of the redundant 
phrase ``who applied or was referred to the job opportunity'' which 
appeared twice in the NPRM paragraph (k)(2) (which is now (k)(1)(iii)); 
simplifying the reference to the contents of the supplemental 
recruitment report through the use of cross-references; and placing the 
paragraph regarding the updating of recruitment reports before the 
paragraph regarding document retention requirements. In addition, the 
Department has added a requirement that the recruitment report must 
contain the original number of openings advertised. This last addition 
will enable the Department to grant an employer a partial certification 
in the event it can meet part but not all of its need through the 
recruitment of U.S. workers.
Section 655.103 Advertising Requirements
    The Department proposed detailed instructions for the content of 
the newspaper advertisements to be placed by employers as part of the 
required pre-filing recruitment in Sec.  655.103. A few comments were 
received on the specific contents of the ads. Other comments regarding 
the rule's advertising requirements are discussed in the section of the 
preamble pertaining to Sec.  655.102(g).
    An association of growers/producers commented that the advertising 
requirements are inefficient and wasteful, particularly when ``numerous 
virtually identical ads are appearing at the same time.'' Another 
association suggested that employers be allowed to advertise jobs by 
simply referencing the job order placed with the SWA, and suggested 
that employers should not be required to include all of the detailed 
information contained in the proposed regulation. Another association 
suggested that if more than one grower is simultaneously recruiting in 
an area covered by only one newspaper, their ads should be combined and 
placed by the SWA. The association suggested that the names of the 
growers could all be provided in the ad, but applicants would be 
directed to the SWA to get additional information about the jobs and 
referrals to the employers.
    The Department has considered but declines to adopt these 
suggestions at this time. The Final Rule significantly clarifies the H-
2A advertising requirements. The Department believes that it has struck 
a careful and appropriate balance, based on its program experience, 
between the expense of advertising to employers and workers' need for 
basic job information when considering whether to pursue advertised 
employment opportunities.
    The Final Rule contains several clarifying and conforming changes 
to the proposed text for Sec.  655.103, none of which are substantive. 
The Final Rule also paraphrases in Sec.  655.103 the equal treatment 
requirement already stated in Sec.  655.104(a). Section 655.103 
requires that an employer's recruitment ``must contain terms and 
conditions of employment which are not less favorable than those that 
will be offered to the H-2A workers.''
Section 655.104 Contents of Job Offers
(a) Section 655.104(a) Preferential Treatment of Aliens
    The Department's proposed regulation stated: ``The employer's job 
offer shall 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.'' A group of farmworker advocacy organizations 
opposed the removal of the words ``U.S. worker'' from this section of 
the rule. This commenter believes that the proposed wording allows 
employers to treat U.S. workers less favorably than H-2A workers.
    While the Department does not agree that the new wording would have 
allowed employers to treat U.S. workers any less favorably than H-2A 
workers, the words ``U.S. worker'' have been reinserted.
(b) Section 655.104(b) No Less Than Minimum Offered
    The NPRM proposed that the ``job duties and requirements specified 
in the job offer shall be consistent with the normal and accepted 
duties and requirements of non-H2A employers in the same or comparable 
occupations and crops in the area of intended employment and shall not 
require a combination of duties not normal to the occupation.'' Several 
commenters expressed concern that the proposed requirements would prove 
unworkable,

[[Page 77141]]

unadministrable, and exceedingly difficult for employers to comply 
with, as what is ``normal'' and ``accepted'' are substantially 
subjective determinations. All of the commenters who provided input on 
this provision suggested that the Department should not second guess an 
employer's business decision regarding an occupation's job duties when 
they are unique to that employer. These commenters believe that the 
Department's proposal would give the Department more discretion to deny 
an application than is contemplated by the statute.
    The Department agrees with the basic thrust of these comments. 
Section 218(c)(3)(A) of the INA requires the Department, when 
determining whether an employer's asserted job qualifications are 
appropriate, to apply ``the normal and accepted qualifications required 
by non-H-2A employers in the same or comparable occupations and 
crops.'' There is a substantial difference, however, between job duties 
and job qualifications; job qualifications typically describe the 
minimum skills and experience that an employee must have to secure a 
job, while job duties describe the tasks that qualified workers are 
expected to perform. The Department agrees that, as a general matter, 
employers are in a far better position than the Department to assess 
what job duties workers at a particular establishment in a particular 
area can reasonably be required to perform in an H-2A eligible 
position.
    The Department is therefore altering this provision to conform more 
closely to the language of the statute, and is limiting the restriction 
in Sec.  655.104(b) to job qualifications. The Department is aware that 
this may mean that at times a U.S. worker wishing to perform one type 
of job duty, such as picking asparagus, may be required by an employer 
to perform an additional job duty, such as harvesting tobacco, in order 
to secure an agricultural job. It is not at all uncommon, however, for 
jobs in the United States to include multiple job duties, some of which 
workers may view as more desirable than others. There is nothing in the 
statute governing the H-2A program indicating that Congress intended to 
require agricultural employers to allow prospective workers to 
selectively choose which job duties they want to perform and which job 
duties they do not, with regard to a particular job opportunity. In the 
Final Rule, this provision states that ``[e]ach job qualification 
listed in the job offer must not substantially deviate from the normal 
and accepted qualifications required by employers that do not use H-2A 
workers in the same or comparable occupations and crops.''
    The Department is sensitive, however, that in certain circumstances 
a listed job duty may act as a de facto job qualification, because the 
listed duty requires skills or experience that agricultural workers may 
not typically possess. When such circumstances arise, the Department 
reserves the right to treat the listed job duty as a job qualification, 
and to apply the ``normal'' and ``accepted'' standard that is set forth 
in the statute and restated in the regulations in determining whether 
the qualification is appropriate.
    One commenter suggested that this provision should be made 
consistent with those in the PERM regulations at 20 CFR 656.17. The 
Department declines to apply the PERM standard to the H-2A program, as 
that standard is based on a substantially different statutory 
structure. The Department is confident that the revised standard for 
Sec.  655.104(b) that is set forth in the Final Rule, which hews 
closely to the language of sec. 218(c)(3)(A) of the INA, is 
appropriately tailored to the H-2A program and will prove workable in 
practice.
(c) Section 655.104(c) Minimum Benefits
    A group of farmworker advocacy organizations pointed out that 
proposed Sec.  655.104 does not correlate exactly to current Sec.  
655.102(b). Specifically, in this commenter's opinion the proposed 
section does not require the employer to pay the worker at least the 
adverse effect wage rate in effect at the time the work is performed, 
the prevailing hourly wage rate, or the legal federal or State minimum 
wage rate, whichever is highest, for every hour or portion thereof 
worked during a pay period as required in the current regulation. 
According to this commenter, under the proposed rule, H-2A workers 
would have only contract law as their primary enforcement tool. With 
proposed Sec.  655.104(c) stating that every job offer must include the 
wage provisions listed in paragraphs (d) through (i) of this section 
but no longer requiring precisely what the current Sec.  
655.102(b)(9)(i) requires, this commenter argued that workers will be 
left at a disadvantage if the employer fails to specify the required 
wage provisions in the work contract.
    The Department appreciates this commenter's analysis. However, we 
do not agree that the employer will no longer be bound to pay the 
employee the wage promised, nor that the only enforcement tool 
available is through contract law. Under the new program the employer's 
attestation required under Sec.  655.105(g) is an enforceable program 
requirement. The failure of an employer to comply with any program 
requirement subjects the employer to the Department's enforcement 
regime.
    A commenter pointed out the illogical consequences of rigid rules 
governing wages for agricultural workers. It is the commenter's 
contention that the Department should add a phrase at the end of Sec.  
655.104(c) that would not force employers to pay the NPC prescribed 
wage until the date of need and instead would allow employers to pay 
U.S. workers a mutually agreed upon wage between the time they recruit 
the workers and the date the H-2A workers are needed in order to train 
the U.S. worker and retain them until and throughout the period of the 
H-2A contract. The commenter reports that if they do not offer those 
U.S. workers employment immediately, they will most likely not be 
available when the H-2A work begins. The commenter believes that any 
employment prior to the date of need and prior to the date that foreign 
H-2A workers arrive should not be governed by the H-2A contract or its 
wage provisions.
    The Department agrees that the H-2A required wage takes effect on 
the effective start date of the H-2A contract period. However, the 
Department does not believe that any changes to the regulatory text 
need to be made under this section because Sec.  655.105(g) provides 
that the requirement to pay the offered wage applies only during the 
valid period of the approved labor certification. U.S. workers who are 
hired in response to H-2A recruitment and who perform work for an 
employer before the date of need specified in the H-2A labor 
certification are not required by these regulations (but may be 
required by contract) to be paid the H-2A wage until the period of the 
H-2A contract begins, without regard to the type of work performed.
    A group of farmworker advocacy organizations argued that under the 
proposed rule, employers would no longer be required to disclose in job 
offers their obligation to provide housing to workers. That is 
incorrect. Section 655.104(c) provides that ``[e]very job offer 
accompanying an H-2A application must include each of the minimum 
benefit, wage, and working condition provisions listed in paragraphs 
(d) through (q) of this section.'' Paragraph (d) of that section 
provides, in turn, that ``[t]he employer must provide housing at no 
cost to the worker, except for those U.S. workers who are reasonably 
able to return to

[[Page 77142]]

their permanent residence at the end of the work day.''
(d) Section 655.104(d) Housing
    Section 218(c)(4) of the INA requires employers to furnish housing 
in accordance with specific regulations. The employer may fulfill this 
obligation by providing housing which meets the applicable Federal 
standards for temporary labor camps or providing housing which meets 
the local standards for rental and/or public accommodations or other 
substantially similar class of housing. In the absence of local 
standards, the rental and/or public accommodations or other 
substantially similar class of housing must meet State standards, and 
in the absence of State standards, such housing must meet Federal 
temporary labor camp standards. By statute, the determination of 
whether employer-provided housing meets the applicable standards must 
be made no later than 30 days before the date of need. The Department 
proposed three changes to the current housing requirements.
    First, the Department proposed allowing employers to request 
housing inspections no more than 75 and no fewer than 60 days before 
the date of need. The Department further proposed that the NPC would, 
as required by statute, make determinations on H-2A applications 30 
days before the employer's date of need, even if the housing referenced 
in the application had not yet been physically inspected by the SWA, so 
long as (1) the employer requested a housing inspection within the time 
frame specified by the regulations and (2) the SWA failed to conduct 
the inspection for reasons beyond the employer's control. Under the 
Department's proposal, SWAs would have the authority and the 
responsibility under such circumstances to conduct post-certification 
housing inspections prior to or during occupancy. If such a post-
certification housing inspection identified deficiencies that the 
employer failed to act promptly to correct, the proposal provided that 
the SWA would inform the NPC of the deficiencies in writing so that the 
NPC could take appropriate corrective action, potentially including 
revocation of the labor certification. The Department proposed these 
changes in part to alleviate the problems SWAs currently face in trying 
to conduct large numbers of required housing inspections during the 
short 15-day window provided by the statute between the time that 
applications are required to be filed (45 days before the date of need) 
and the time that the Department is required to make a determination on 
the application (30 days before the date of need). The changes were 
also intended to avoid penalizing employers for the failure of SWAs to 
comply with their legal duty to meet the timeframes established by the 
statute.
    The Department heard from a number of SWAs on the issue of timely 
housing inspections, many of which declared their ability to conduct 
housing inspections within the 15-day window. One SWA acknowledged that 
at times delays may occur in conducting housing inspections, but 
attributed those delays to incomplete or inaccurate information being 
provided to inspectors. This SWA suggested that providing a copy of the 
job order with the housing inspection request would alleviate the 
problem of inspectors investigating the wrong housing. Finally, an 
anonymous commenter tied the delays in housing inspections to a lack of 
funding at the state level.
    The Department recognizes that many SWAs conduct housing 
inspections in advance of the statutory deadline of 30 days before the 
date of need, but cannot ignore the fact that SWA delays in conducting 
housing inspection have in many instances resulted in labor 
certification determinations being made by the Department outside of 
the statutorily required timeframes. This result is not acceptable to 
the Department or to employers seeking H-2A certification. As one 
employer commenter stated:

[u]ntimely housing inspections are one of the most common reasons 
for delays in making labor certification determinations. Therefore, 
the provision in the proposed regulations for making a pre-
application housing inspection, and the provision that certification 
will not be delayed if a timely housing inspection is not made, and 
that occupancy of the housing is permitted, are important 
improvements in the program.

    While employers and employer associations favored the proposed 
conditional labor certifications, several commenters representing 
employer interests had concerns with the proposed requirement that 
housing inspections be requested no fewer than 60 days before the date 
of need. Employers stated that in some parts of the U.S., housing may 
still be winterized 60 days before the date of need and therefore may 
be unavailable for inspection, or unable to pass inspection. In certain 
areas, inspection agencies require that the employer rent the housing 
before an inspection is conducted and the earlier time frame for 
requesting an inspection requires employers to pay an additional month 
or two of rent for the housing, substantially adding to the cost of 
providing housing. Other growers stated that current inspection 
procedures prohibit the inspection of occupied housing and therefore 
this proposal would require that regulations be adjusted to permit 
inspection of occupied housing. Some said that the earlier time frame 
for requesting housing inspections may be before many farmers plant 
their crops, let alone know the dates of the harvest.
    Commenters representing employer interests also included questions 
concerning implementation of the proposal. Many argued that employers 
should be provided a specific and reasonable period of time for 
abatement of violations found in post-determination inspections 
conducted by SWAs, and that employers who correct violations within the 
specified period should not be penalized for the violations. One 
employer association argued that ``the fact that employers continue to 
face consequences for having deficient housing will prevent any adverse 
effects for workers.'' Employers also questioned the proposed 
requirement that housing inspection requests be made in writing, and 
some employers recommended that the Department provide training to SWA 
staff on conducting housing inspections of occupied housing. Finally, 
one employer commented that in the state in which he operates, the 
state's Department of Health conducts inspections of temporary labor 
camps and that to require SWAs to conduct these inspections would 
result in confusion.
    Employee advocacy organizations and state agencies expressed 
concern that the granting of pre-inspection labor certification 
determinations could potentially result in cases where housing is not 
inspected prior to occupancy, which in turn could result in workers 
being housed in substandard conditions. Several commenters objected to 
this proposed revision stating that pre-occupancy housing inspections 
are an effective incentive for employers to take corrective action, 
thus ensuring that workers are housed in safe and sanitary housing. 
Other commenters urged the Department to continue the requirement that 
housing be inspected before workers arrive.
    A few comments from both organizations representing employer 
interests and from organizations representing employee interests 
questioned the Department's legal authority to establish a requirement 
that housing inspections be requested more than 45 days before the date 
of need, which is the earliest date that the

[[Page 77143]]

Department may under the statute require applications to be filed. One 
commenter asserted that the proposed changes contradict the 
Department's Wagner-Peyser regulations requiring that the housing be 
inspected to determine compliance with applicable housing safety and 
health standards before a job order can be posted (and, thus, before 
the housing can be occupied).
    The Department has carefully considered the comments and has 
determined that the framework of the Department's original proposal 
strikes an appropriate balance between the need to ensure that housing 
for H-2A workers meets all applicable safety and health standards, that 
agricultural employers are able to secure H-2A workers in a timely 
manner, and that the Department complies with the statutory requirement 
to render a determination no fewer than 30 days before the date of 
need. To ensure that SWAs have adequate time to complete housing 
inspections before the statutory deadline of 30 days before the date of 
need, the Final Rule requires employers to request housing inspections 
no fewer than 60 days before the date of need, except when the 
emergency provisions contained in Sec.  655.101(d) are used. The 
Department is eliminating in the Final Rule the proposed restriction on 
housing inspections being requested more than 75 days before date of 
need. Eliminating this restriction will provide SWAs additional 
flexibility to manage the workload of completing required inspections 
with respect to those cases where an employer's housing is ready for 
inspection well in advance of the date of need.
    The INA at 8 U.S.C. 1188(c)(3)(A) expressly requires the Secretary 
of Labor to make a determination on an employer's application for 
temporary labor certification no fewer than 30 days before the 
employer's date of need. The INA also requires that the Secretary make 
a determination as to whether employer-provided housing meets the 
applicable housing standards by the same deadline--no fewer than 30 
days before the employer's date of need. Although the Department has 
delegated its statutory housing inspection responsibilities to the 
SWAs, the statutory deadline applicable to that responsibility 
continues to apply. This is made explicit by Sec.  655.104(d)(6)(iii) 
of the Final Rule, which states that ``[t]he SWA must make its 
determination that the housing meets the statutory criteria applicable 
to the type of housing provided prior to the date on which the 
Secretary is required to make a certification determination under sec. 
218(c)(3)(A) of the INA, which is 30 days before the employer's date of 
need.''
    Some commenters read the language of sec. 218(c)(4) of the INA as 
prohibiting the Secretary from making a determination on an employer's 
application for temporary labor certification until the employer's 
housing has been physically inspected. The Department strongly 
disagrees with that interpretation. The language of sec. 218(c)(4) is 
not phrased as a limitation on the Secretary's duty under sec. 
218(c)(3)(A) to make determinations on applications no later than 30 
days before the employer's date of need. In fact, the language of sec. 
218(c)(4) does not require that housing inspections be completed prior 
to the Secretary's certification determination, although Congress 
certainly could have phrased the requirement that way had it wanted to 
do so. Instead, the language of sec. 218(c)(4) is most naturally read 
as imposing a statutory duty on the Department to complete required 
housing inspections ``prior to the date specified in paragraph 
(3)(A)''--which, as noted previously, is 30 days before the employer's 
date of need. The provision does not specify what consequence should 
follow in the event that the Department fails to comply with this 
mandate. Presumably, however, if Congress had intended that the primary 
consequence of the government's failure to meet its statutory 
responsibility to complete housing inspections in a timely manner would 
be to penalize employers by releasing the Department from its 
independent statutory responsibility to make determinations on 
applications no later than 30 days before the employer's date of need--
a deadline that was indisputably established to ensure that employers 
can secure needed H-2A workers in a timely fashion without undue delays 
caused by the government--it would have said so explicitly.
    Of course, the Department greatly prefers that housing inspections 
be conducted prior to certification, as this gives the Department the 
strongest possible assurance that ``the employer has complied with the 
criteria for certification'' as required by sec. 218(c)(3)(A)(i) of the 
INA. To this end, the Final Rule requires that employers make requests 
for housing inspections no fewer than 60 days before the employer's 
date of need, ensuring that SWAs have adequate time to meet the 
statutory deadline for conducting housing inspections. Moreover, SWAs 
remain under an express statutory and regulatory mandate to complete 
housing inspections by 30 days before the employer's date of need, an 
obligation that the Department expects SWAs will not take lightly. The 
Department therefore believes that under the Final Rule, post-
certification housing inspections will be the very rare exception 
rather than the rule.
    The Department has never read sec. 218(c)(3)(A)(i), however, as 
requiring that the government directly observe for itself that the 
employer has satisfied all of the statutory criteria for certification. 
For example, under the current regulations a substantial portion of 
required recruitment takes place after a certification has been made, 
and SWAs typically do not conduct pre-certification inspections of 
rental housing or public accommodations secured by employers pursuant 
to sec. 218(c)(4). It is important to note that under the Final Rule 
employers are required to provide or secure housing that meets all 
applicable standards, and that a certification cannot be granted, with 
or without an inspection, unless the employer has attested that its 
housing fully complies with those standards. Sanctions and penalties 
may be imposed for violations of the attestation requirements and the 
housing standards, including revocation of a labor certification, 
regardless of whether a pre-certification housing inspection was 
conducted.
    As to commenters who argued that it is unacceptable that housing 
might in some rare circumstances be occupied by H-2A workers before it 
is inspected, the Department notes that under MSPA, U.S. workers often 
occupy agricultural housing before it is inspected, and the Department 
has not seen any data indicating that this arrangement has caused harm 
to U.S. workers. The Department does not believe that H-2A workers will 
be harmed by this rule when being afforded the same level of protection 
that Congress has afforded to U.S. workers. Moreover, the Department 
believes that any chance that H-2A workers would be placed in 
substandard housing under the Final Rule--a possibility that can never 
fully be guarded against as a practical matter, and occurs on occasion 
even under the current rule--is minimized by the fact that a 
certification cannot be granted unless the employer has attested that 
its housing fully complies with all applicable standards. If this 
attestation is later shown to be false, the employer risks substantial 
penalties, including the possibility of a revoked labor certification 
and/or debarment.
    The Department is not persuaded by employers' arguments for 
specific language allowing employers in all cases to abate housing 
violations

[[Page 77144]]

without penalties where the housing has already been occupied. 
Penalties for failing to meet the applicable standards help ensure 
compliance. As with all Department investigations to determine 
compliance with Federal safety and health standards for housing, 
however, the employer is as a matter of practice provided a reasonable 
opportunity to correct or abate any violations that are found. This 
also is true when the SWA or other state agency conducts the 
inspection. Time frames for abatement are directly related to the 
severity of the violation and its potential impact on the safety and 
health of the workers. Therefore, language in this regulation 
specifying an abatement period for the correction of housing violations 
is unnecessary. Current regulations at 29 CFR 501.19(b) and the Final 
Rule at Sec. Sec.  655.117 and 655.118 address the factors considered 
by the Department in determining the appropriateness of penalties and 
sanctions. The Department will continue to ensure that the penalties 
assessed and sanctions imposed for violations of housing safety and 
health standards are appropriate to the violation.
    The Department is cognizant that requiring employers to request 
housing inspections no fewer than 60 days before the date of need may 
present a challenge to some employers. However, we believe that overall 
this requirement will be beneficial to employers, workers and the SWAs 
by allowing more time for the SWAs to schedule and conduct pre-
occupancy housing inspections, and more time for employers to correct 
any deficiencies prior to the arrival of the workers. The Department 
expects that SWAs will continue to work with employers on the 
scheduling of housing inspections and that SWAs will endeavor to 
minimize the expense to the SWA and maximize the benefit to the 
employer and workers by avoiding scheduling inspections of facilities 
at times that they are not winterized or otherwise unlikely to pass 
inspection. In response to comments about obstacles that currently 
exist in some jurisdictions to securing timely housing inspections, the 
Department has also included an instruction to SWAs in the Final Rule 
not to adopt rules or restrictions that would inhibit their ability to 
conduct inspections by 30 days before the date of need, such as 
requirements that rental housing already be formally leased by the 
employer before the SWA will conduct an inspection, or rules that 
occupied housing will not be inspected. It is solely the employer's 
responsibility, however, to ensure that the SWA has access to the 
housing to be inspected so that the inspection may take place. For the 
reasons set forth in the discussion of Sec.  102(a) concerning the 
Final Rule's pre-filing recruitment requirements, the Department does 
not agree that the statute prohibits the Department from requiring that 
housing inspection requests be submitted to SWAs prior to the date that 
applications must be submitted to the NPC.
    The Department also disagrees that the possibility that some 
housing inspections will take place after certification under the Final 
Rule violates the Wagner-Peyser regulations. The current regulations at 
20 CFR 654.403 already permit job orders to be posted prior to the 
completion of a housing inspection. If an SWA identifies violations 
during a subsequent housing inspection, and the employer does not cure 
the violations after being provided a reasonable opportunity to do so, 
the corresponding job order may be revoked. Although some commenters 
expressed the view that the regulatory process under Sec.  654.403 is 
more protective of workers because Sec.  654.403(e) requires that the 
SWA ``shall assure that the housing is inspected no later than the date 
by which the employer has promised to have its housing in compliance 
with the requirements of this subpart,'' that provision is actually 
less protective of workers than the Final Rule. The Final Rule 
unequivocally recapitulates the statutory requirement that housing 
inspections be completed no later than 30 days before the employer's 
date of need, a date that is actually earlier than that required by the 
conditional access provisions set forth in Sec.  654.403. Thus, both 
the Final Rule and Sec.  654.403 contain clear mandates for pre-
occupancy inspections. Significantly, however, Sec.  654.403 does not 
specify any particular consequence if an SWA fails in its duty to 
conduct the required pre-occupancy inspection; under that provision, it 
is only if the SWA fulfills its duty to conduct the required inspection 
and finds violations that the employer's job order is removed from 
clearance. Thus, in specifying that the Department will adhere to its 
statutory obligation to make certification determinations on 
applications no later than 30 days before the employer's date of need 
even where an SWA has failed in its statutory duty to conduct the 
required housing inspection in a timely fashion, the Department is not 
depriving workers of any protections that they have under Sec.  
654.403. Both provisions fundamentally depend on SWAs to protect 
workers by fulfilling their responsibilities under the law--and the 
Department notes that in its experience, the SWAs take those 
responsibilities very seriously.
    The Department is retaining the proposed requirement that the 
employer's request for housing inspections must be in writing. This 
requirement provides the employer with the documentation necessary to 
demonstrate that their request for a housing inspection was made within 
the required time frame.
    While the Department refers to the SWAs as the entities responsible 
for making housing inspections related to labor certification 
determinations, the Department does not intend to limit the flexibility 
afforded SWAs in fulfilling this requirement. For example, some SWAs 
have agreements with other State agencies for conducting housing 
inspections and it is not the Department's intention to change such 
arrangements.
    Finally, in response to concerns that SWA staff is not sufficiently 
trained to conduct inspections of occupied housing, the Department 
anticipates that there will be additional training of SWA staff on the 
conduct of housing inspections.
    The Department's second housing-related proposal was the creation 
of a housing voucher as an additional option employers could use to 
meet the H-2A housing requirements. The Department did not explain in 
detail in the NPRM how such a voucher program would work, but instead 
requested suggestions and comment from the public about how the program 
should be constructed and operated. The Department's NPRM did, however, 
propose to include several safeguards in the voucher program to ensure 
that workers would be provided housing meeting the applicable safety 
and health standards, including requirements that the voucher could not 
be used in an area where the Governor of the State has certified that 
there is inadequate housing available in the area of intended 
employment. Other safeguards included the provision that the voucher 
could only be redeemed for cash paid by the employer to a third party, 
that the housing obtained with the voucher had to be within a 
reasonable commuting distance of the place of employment and that 
workers could ``pool'' their vouchers to secure housing (e.g., to 
secure a house instead of a motel room) but that such pooling may not 
result in a violation of the applicable safety and health standards. 
The Department also included as a safeguard the requirement that if 
acceptable housing could not be obtained with the voucher, the employer 
would be required to provide

[[Page 77145]]

housing meeting the applicable safety and health standards to the 
worker. The Department requested comments on whether such a program 
would adequately balance the needs of employers and workers and how 
such a program should operate. The Department received a number of 
comments from employers, employer associations, employee advocacy 
organizations and State agencies on the housing voucher option.
    A number of comments from stakeholders representing both employer 
and employee interests led us to conclude that the proposal was not 
well understood. Several commenters stated that ``the voucher program 
would effectively eliminate the requirement that all housing for H-2A 
workers must meet health and safety standards.'' Some employer 
associations stated that they supported the concept of ``using vouchers 
to provide housing in lieu of actually providing housing'' while 
another commenter asserted that the housing voucher option would 
``undermine Congressional intent by eliminating the requirement that 
employers provide non-local workers with free housing that meets the 
basic safety and health standards.''
    While noting a few concerns with the proposal (e.g., the employer's 
responsibility for violations of safety and health standards at housing 
obtained by the voucher), employers and employer associations generally 
praised the Department for the much needed flexibility a voucher 
program would create. Some commenters opined that the use of housing 
vouchers would ``greatly stimulate H-2A participation'' and ``would 
encourage others to use legal workers.'' Other commenters stated that 
the H-2A current requirement to provide housing to workers is a serious 
impediment to program participation and that the implementation of a 
housing voucher option would make the H-2A program more usable and 
effective.
    Comments from individuals and organizations representing employee 
interests criticized the voucher option, stating that the proposed 
safeguards were illusory and provided no substantive protections to 
workers. Virtually all criticism of the proposal, including from SWAs, 
misunderstood the Department's position and assumed health and safety 
standards would not apply to housing obtained with a voucher. Many 
commenters argued that the voucher idea ``ignores the reality of the 
situation for both U.S. and H-2A workers'' in that many farmworkers, 
particularly H-2A workers, do not have the resources to conduct a long-
distance housing search, such as access to the Internet, knowledge of 
the area, and language difficulties. Several found it unreasonable to 
expect that a worker will travel from another country, or even across 
the State, for employment and be able to quickly find a motel or 
landlord that will accept vouchers for a short-term stay.
    The comments received from SWAs on the housing voucher option were 
generally opposed to the proposal and also reflected a misunderstanding 
of the Department's proposal. One SWA cited concerns that a voucher 
would eliminate established standards that ensure safety and healthful 
conditions of housing. Another SWA argued that ``[t]he use of vouchers 
and the failure to cover the full cost of housing reflects an 
unrealistic understanding of the housing market for seasonal workers.'' 
Another SWA suggested that it would be impossible for the Governor to 
determine whether there was inadequate housing available in the area 
since the SWAs would not be the recipient of the labor condition 
applications, and therefore, would not know the number of workers in 
need of housing.
    Some commenters criticized the Department's proposal on the grounds 
that many basic questions about how the voucher would function were not 
adequately addressed in the NPRM, including the lack of: A mechanism 
for determining the amount or value of the voucher; a definition of 
``reasonable commuting distance;'' criteria to be used in determining 
whether the employer made a good faith effort to assist the worker in 
identifying, locating and securing housing in the area of intended 
employment; and standards to be used in the Governor's certification of 
insufficient housing for migrant workers and H-2A workers in the area 
of intended employment. Other commenters took issue with the 
Department's proposal to allow workers to ``pool'' the vouchers, 
claiming that such pooling would result in workers overpaying for 
overcrowded and/or substandard housing. Several commenters questioned 
the Department on the rationale for not allowing the voucher to be 
redeemed for cash by the employee to a third party.
    The requirement that employers furnish housing that meets 
applicable safety and health standards is a statutory requirement in 
the INA. The Department does not have authority to waive this statutory 
requirement, nor did the Department intend to do so in proposing a 
voucher option. In proposing a voucher option, the Department sought 
comment on how best to provide much needed flexibility to employers in 
fulfilling their obligation to furnish housing while ensuring that 
workers are not housed in substandard conditions. After reviewing the 
comments received on this proposal, the Department is persuaded that it 
should drop the proposal at this time because it would be extremely 
difficult to implement. The extent to which the Department's proposal 
was misunderstood by commenters on all sides also caused the Department 
concern that, if implemented, the proposal would result in numerous 
program violations and become a substantial enforcement problem. If, in 
the future, the Department is able to design an effective, enforceable 
and viable alternative, it will develop a proposal and request public 
comment.
    We are sympathetic to the concerns of many growers and employer 
associations who supported the proposal and noted that the cost of 
providing housing is a major deterrent for many to participate in the 
H-2A program and that in many parts of the country, restrictive 
building and zoning codes can prevent growers from building housing to 
accommodate workers. The Department notes that many of these problems 
can be overcome by employers under the statute and the Final Rule by 
securing ``housing which meets the local standards for rental and/or 
public accommodations or other substantially similar class of 
habitation.'' These options do not require employers to build and 
furnish their own housing. As is noted in ETA Handbook No. 398, there 
is nothing to preclude an employer who does not actually own housing on 
his/her property from renting non-commercial housing from other 
individuals or entities. If there are areas where rental and public 
accommodation options, including non-commercial housing, are not 
readily available, it is difficult to imagine how workers could have 
secured housing in those areas through the use of a voucher, such that 
the voucher program would not have been viable in those areas anyway.
    Third, the Department proposed in the NPRM to clarify and codify 
additional limited flexibility under certain circumstances to make 
post-certification changes to housing. The Department's current policy 
\4\ allows the employer to substitute rental or public accommodations 
for certified housing in the event that certified housing becomes 
unexpectedly unavailable for reasons

[[Page 77146]]

outside of the employer's control. The employer is required to notify 
the SWA in writing of the housing change and the qualifying reason(s) 
for the change, and provide evidence that the substituted housing meets 
the applicable safety and health standards. The SWA may inspect the 
substitute housing to determine compliance with applicable safety and 
health standards. The NPRM sought to clarify and codify this policy and 
included a provision for the SWA to notify the CO of any housing 
changes and the results of housing inspections conducted on substitute 
housing. Employer commenters and commenters representing employer 
interests universally favored the clarification in the proposal:
---------------------------------------------------------------------------

    \4\ Training and Employment Guidance Letter 11-07, Change 1 
(November 14, 2007).

    The inclusion of language that permits employers to use 
substitute housing in the event that their approved housing becomes 
unavailable for reasons beyond their control will be beneficial for 
the obvious reason that in the rare circumstances where this occurs, 
---------------------------------------------------------------------------
an employer has a housing option without being in violation.

    Commenters on behalf of employees questioned the Department's 
authority to propose such a change and thought the proposed change 
would result in workers being housed in substandard housing saying:

    [T]his change is not permitted by the statute [INA 218(c)(4)] 
and would encourage potentially fraudulent ``bait and switch'' 
tactics perpetrated by H-2A employers with respect to employer-
provided housing.

Commenters also questioned which standards are the applicable standards 
to the substitute housing.

    The Department maintains that this additional limited flexibility 
with respect to substitute housing is the best approach in those rare 
circumstances where the certified housing becomes unavailable for 
reasons beyond the employer's control. The Department believes that the 
requirements that the substitute housing be rental or other public 
accommodations and that the employer provide evidence that the new 
housing meets the applicable safety and health standards offer workers 
the necessary protections. Indeed, the proposal in no way lessens the 
applicable housing standards, as substitute housing must meet the 
standards that typically apply to H-2A housing of the same type. 
Failure to create a substitute housing provision could leave H-2A 
employers in the untenable position of having workers arrive at the 
worksite and having no permissible place to house them. Therefore, the 
Department has included this provision in the Final Rule. This Final 
Rule specifically references the applicable standards to which rental 
or public accommodation housing, including substitute housing, is 
subject.
    The Department has made several modifications to this provision in 
the Final Rule for purposes of clarity and to conform the standard to 
the structure of the rest of the Final Rule. First, the proposal states 
that the unavailability provision would apply in ``situations in which 
housing certified by the SWA later becomes unavailable.'' To ensure 
that the full range of applicable situations is covered, the Final Rule 
provides that the unavailability provision applies where housing 
becomes unavailable ``after a request to certify housing (but before 
certification), or after certification of housing.'' There is no reason 
to exclude housing that has not yet been inspected from the scope of 
the provision, since the initially designated housing has become 
unavailable anyway. Second, the phrase ``applicable housing standards'' 
has been replaced in the Final Rule with ``the local, State, or Federal 
housing standards applicable under paragraph (d)(1)(ii) of this 
section,'' which is more specific. Third, the phrase ``in accordance 
with the requirements of paragraph (d)(1)(ii) of this section'' has 
been added to the end of the second sentence of the provision, and the 
phrase ``from the appropriate local or State agency responsible for 
determining compliance'' has accordingly been deleted as unnecessary; 
as noted in the discussion of paragraph (d)(1)(ii), that paragraph has 
been separately modified to reflect the evidentiary standard that is 
currently in place in ETA Handbook No. 398. For the same reason, the 
proposal's admonition that SWAs ``should make every effort to inspect 
the accommodations prior to occupation, but may also conduct 
inspections during occupation, to ensure that they meet applicable 
housing standards'' has been removed in the Final Rule. As current ETA 
Handbook No. 398 explains at page II-15, ``[i]f DOL standards are not 
applicable, no pre-occupancy inspections need be conducted, and the 
employer need only document to the RA's satisfaction that the housing 
complies with the local or State standards which apply to the 
situation.'' To the extent that some SWAs may typically inspect rental 
or public accommodation housing despite the fact that they are not 
required by these rules to do so, they should make every effort to 
inspect substitute housing prior to occupation.
    The Department received comments on other housing-related issues 
for which no changes were proposed. A number of commenters noted that 
the text of proposed Sec.  655.104(d)(1)(i) referred to employer-owned 
housing, whereas the current regulation at Sec.  655.102(b)(1)(i) and 
the preamble to the proposed rule referenced employer-provided housing. 
The Department did not intend to change the current requirements for 
employer-provided housing and has corrected this inadvertent reference 
to ``employer-owned'' housing in the regulatory text.
    A group of farmworker advocacy organizations commented that, in its 
view, all rental and/or public accommodations should be required by the 
Department, at a minimum, to meet the Federal standards for temporary 
labor camps. The commenter asserted that State and local standards for 
rental and/or public accommodation housing may in many instances be 
grossly inadequate, and that the application of Federal minimum 
standards is therefore essential. The Department does not believe, 
however, that it has the authority under the INA to impose such a 
minimum requirement. Section 218(c)(4) of the INA expressly provides 
that to satisfy their housing obligation employers may, at their 
option, either ``provide housing meeting applicable Federal standards 
for temporary labor camps'' or ``secure housing which meets the local 
standards for rental and/or public accommodations or other 
substantially similar class of habitation.'' An employer that secures 
rental and/or public accommodations that meet all of the applicable 
local standards has satisfied its housing obligation under the statute. 
The statute provides that rental and/or public accommodation housing 
does not need to meet Federal temporary labor camp standards unless 
there are no ``applicable local or State standards.'' The Department is 
not at liberty to issue regulations that are inconsistent with the 
structure of employer housing obligations under the INA.
    A few commenters urged the Department to relieve employers in 
certain border communities (e.g., Yuma, AZ) of the requirement to 
provide housing to H-2A workers from Mexico who are able to commute 
back to their homes across the border on a daily basis. According to 
one association commenter, Yuma, Arizona employers have traditionally 
attracted tens of thousands of seasonal workers daily, approximately 
half of whom reside in the U.S. while the other half choose to maintain 
their residences in Mexico. This association believes that requiring 
employers in such instances to provide housing and transportation not 
only hinders participation but ignores reality.

[[Page 77147]]

The INA at sec. 218(c)(4) requires employers to provide housing to all 
H-2A workers. The Department does not believe it has a legal basis upon 
which to permit employers to employ H-2A workers without providing 
those workers with housing. Of course, there is no statutory 
requirement that workers actually reside in the employer-provided 
housing. So, an H-2A worker who resides within commuting distance of a 
home across the border could presumably return home each night if the 
worker wanted to, provided the employer didn't require its workers to 
reside in specific housing as a condition of the work agreement. 
Nevertheless, the employer would be required by statute to make 
appropriate housing available to the worker.
    Some commenters suggested that U.S. Department of Agriculture sec. 
514 Farm Labor Housing Loans should be made available for the 
construction of housing used for H-2A workers. The Department has no 
authority to allocate Farm Labor Housing Loans, but has passed along 
the comment to the USDA.
    Several commenters raised specific concerns about the attestation 
process as related to housing for agricultural workers. These 
commenters believe that the attestation process will lead to abuses in 
housing because there is no process in place for establishing 
compliance with the housing inspection request. Pursuant to the Final 
Rule, housing inspections are still required to be completed by SWAs. 
The Department believes that the extended timeframes for required pre-
certification housing inspections will give the housing inspectors more 
time to complete inspections and should actually lead to more thorough 
inspections that in turn will help ensure violations are corrected.
    So as not to inadvertently alter the availability of the 
conditional access provisions of Sec.  654.403, which were cited 
favorably by some commenters, the Department has added language to 
Sec.  655.104(d)(6)(i) clarifying that the required attestation ``may 
include an attestation that the employer is complying with the 
procedures set forth in Sec.  654.403.''
    Finally, the Department notes it has made several non-substantive 
changes to the text of Sec.  655.104(d) to provide clarity. For 
example, the NPRM noted the obligation to provide housing to those 
workers who are not reasonably able to return to their permanent 
residence ``within the same day.'' The Department has amended this 
phrase to ``at the end of the work day'' to clarify that a work day may 
go beyond the same 24-hour period (for example, a late shift may not 
necessarily end within the same day but would still be considered part 
of the same work day after which an H-2A worker could not be reasonably 
expected to return to the home residence). For the same reason, the 
term ``without charge'' has been amended to read ``at no cost to the 
worker,'' in order to ensure clarity and understanding. The Department 
has also included language in Sec.  655.104(d)(1)(ii) to clarify the 
kind of documentation that employers are expected to retain if they 
secure rental and/or public accommodations for their workers to show 
that the accommodations comply with the applicable legal standards. The 
language is taken directly from ETA Handbook No. 398, which provides at 
page I-26 that such documentation ``may be in the form of a certificate 
from the local or State Department of Health office or a statement from 
the manager or owner of the housing.'' In addition, non-substantive 
changes have been made to comport with plain English standards (for 
example, the use of active voice, such as the change in Sec.  
655.104(d)(6)(iii) to read ``The SWA is required by Section 218(c)(4) 
of the INA to make its determination''). Finally, a provision that is 
in the current regulation regarding charges for public housing, which 
was inadvertently omitted from the NPRM and whose absence was noted by 
several commenters, has been restored.
(e) Section 655.104(e) Workers' compensation
    The NPRM proposed to continue the current requirement that the job 
offer must contain a statement promising that workers' compensation 
insurance will be provided. This is a statutory requirement. The INA at 
Section 218(b)(3) requires the employer to provide the Secretary with 
satisfactory assurances that ``if the employment for which 
certification is sought is not covered by State workers' compensation 
law, the employer will provide, at no cost to the worker, insurance 
covering injury and disease arising out of and in the course of the 
worker's employment which will provide benefits at least equal to those 
provided under the State workers' compensation law for comparable 
employment.'' One commenter noted the State of Washington has an 
unusual Worker's Compensation statute that requires workers to 
contribute 50 percent of the premium unless the employer is self-
insured, whereas the NPRM required the employer to provide such 
insurance at no cost to the worker. The intent of the workers' 
compensation provision in the INA is to ensure that no worker is left 
without insurance in those States that exclude agricultural work from 
coverage. In fact, Section 218(b)(3) provides that if ``employment for 
which the certification is sought is not covered by State workers' 
compensation law, the employer will provide, at no cost to the worker, 
insurance covering injury and disease arising out of and in the course 
of the workers' employment which will provide benefits at least equal 
to those provided under the State workers' compensation law for 
comparable employment'' (emphasis added). Where the employment in 
question is covered by State workers' compensation law, but subject to 
certain rules applied by the State, the statutory provision is 
inapplicable. Therefore, the Department has modified language in Sec.  
655.104(e) to clarify that the employer should follow State law, but if 
the State excludes the type of employment for which the certification 
is being sought, then the employer must purchase the insurance at no 
cost to the worker.
    Other commenters complained that the Department no longer requires 
submission of proof of Worker's Compensation Insurance. These 
commenters believe that employers circumvent this requirement by having 
inadequate coverage or by allowing the coverage to lapse after 
receiving certification, or by not buying it at all because State law 
does not require it. The Department is confident that the attestation-
based application system will allow the Department to enforce these 
provisions because these attestations are made under penalty of 
perjury. If it is revealed during an audit that an employer 
fraudulently claimed to have met all program requirements, the employer 
would be subject to penalties, including debarment from the program.
    Other changes made to the language of this provision were non-
substantive, and made for purposes of clarification, or (as in the case 
of the recordkeeping language) to conform to changes made elsewhere in 
the rule.
(f) Section 655.104(f) Employer-Provided Items
    The NPRM proposed to continue the current requirement that 
employers provide workers with ``all tools, supplies, and equipment 
required'' to perform the duties of the job. The NPRM allowed employers 
to require workers to provide tools or equipment where the employer can 
demonstrate such a practice was ``common'' in the area of employment.
    The Department received one comment relating to its proposal, 
asserting that the Department should

[[Page 77148]]

not have deleted the current language mandating approval from the 
Department if employers seek to require employees to purchase any tools 
and equipment because it is common practice to do so. The ``common 
practice'' standard is not new, but has been carried over from the 
current regulation. Whether a common practice exists will still be a 
determination of fact to be decided by the Department and not by the 
employer. The only change in this determination is that the employer 
will now bear the burden of proof in the event of an audit or 
investigation to show that the practice claimed is common. In 
determining whether a practice is ``common'' in a particular area, the 
Department will apply a simple mathematical formula. If an employer can 
demonstrate that 25 percent of non-H-2A workers in the crop activity 
and occupation in the particular area are required to provide tools or 
equipment, the Department will consider the practice to be ``common.'' 
This simple standard will be relatively easy to administer, and will 
ensure that employers have fair notice of their legal obligations.
    Clarifying language was also inserted referencing the requirements 
of sec. 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m) (FLSA), 
which does not permit deductions for tools or equipment primarily for 
the benefit of the employer that reduce an employee's wage below the 
wage required under the minimum wage, or, where applicable, the 
overtime provisions of the FLSA.
(g) Section 655.104(g) Meals
    Section 655.104 (g) concerns the provision of meals to workers and 
the amount employers may charge workers for meals each day. Although 
the Department proposed no changes to this section, a few comments were 
received stating that the amount allowed to be charged/reimbursed does 
not reflect the true cost of the employer's providing or the worker's 
purchase of meals. Section 655.114 provides for annual adjustments of 
the previous year's allowable meal charges based upon Consumer Price 
Index (CPI) data. Each year the maximum charges allowed are adjusted 
from the charges allotted the previous year by the same percentage as 
the twelve-month percent change in the CPI for all Urban Consumers for 
Food (CPI-U for Food) between December of the year just concluded and 
December of the year prior to that. The Department reminds employers of 
their ability to petition for higher meal charges, a practice that has 
been continued in the Final Rule in Sec.  655.114. The amount of the 
meal charge, which in the NPRM was listed in Sec.  655.104(g), has for 
purposes of clarity been listed instead in Sec.  655.114.
(h) Section 655.104(h) Transportation
    Existing regulations at Sec.  655.102(b)(5) require employers to 
provide or pay for workers' daily subsistence and transportation from 
the place from which the worker has come to the place of employment. 
The employer is to advance these costs to the worker when it is the 
prevailing practice of non-H-2A employers in the occupation and area to 
do so. If the employer has not advanced transportation and subsistence 
costs or otherwise provided or paid for these costs and the worker 
completes 50 percent of the work contract period, the employer is 
required to reimburse the worker for these costs at that time. The 
Department proposed no change to this requirement, but sought comments 
and information on the costs and benefits to employers and workers of 
continuing to require employers to pay for the workers' inbound and 
outbound (return) subsistence and transportation costs.
    The Department received several comments on this requirement. Some 
comments from employers and employer associations advocated that 
employers and employees should share the costs of workers' inbound 
subsistence and transportation. These commenters argued that both 
employees and employers benefit from the H-2A employment relationship 
and therefore should share the costs. Others suggested that the 
employees should bear the full cost of their inbound subsistence and 
transportation, arguing that the inbound travel employment once they 
are in the country. Some commenters also noted that no other 
nonimmigrant work-related program requires employers to pay for the 
workers' inbound subsistence and transportation.
    Comments from employee advocates urged the Department to continue 
the requirement that employers provide or pay for workers inbound 
subsistence and transportation costs, asserting that inbound 
subsistence and transportation costs:

[a]re necessary for many reasons--to attract U.S. workers; to 
encourage employers to fully employ the workers in whom they have 
invested and to recruit only those workers needed; * * * and, 
because farmworkers wages are so low, to prevent farmworkers from 
becoming even more deeply indebted (and more exploitable) or from 
seeking low-cost transportation that is often unregulated and 
deadly.

    While there was disagreement among commenters on the current 
requirement that employers pay inbound subsistence and transportation, 
there was agreement that employers should continue to pay for workers' 
outbound transportation. Employer and worker advocate commenters agreed 
that payment of outbound travel is a critical means to help ensure that 
workers depart the U.S. at the end of their H-2A contract.
    Many comments addressed the timing of reimbursement to workers for 
inbound subsistence and transportation costs. Most commenters 
referenced the appellate court's decision in Arriaga v. Florida Pacific 
Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002), which held that growers 
violated the minimum wage provisions of the FLSA by failing to 
reimburse farmworkers during their first workweek for travel expenses 
(and visa and immigration fees) paid by the workers employed by the 
growers under the H-2A program. Under the FLSA, pre-employment expenses 
incurred by workers that are properly business expenses of the employer 
and primarily for the benefit of the employer are considered ``kick-
backs'' of wages to the employer and are treated as deductions from the 
employees' wages during the first workweek. 29 CFR 531.35. Such 
deductions must be reimbursed by the employer during the first workweek 
to the extent that they effectively result in workers' weekly wages 
being below the minimum wage. 29 CFR 531.36. Although the employer in 
the Arriaga case did not itself make direct deductions from the 
workers' wages, the Court held that the costs incurred by the workers 
amounted to ``de facto deductions'' that the workers absorbed, thereby 
driving the workers' wages below the statutory minimum. The Eleventh 
Circuit reasoned that the transportation and visa costs incurred by the 
workers were primarily for the benefit of the employer and necessary 
and incidental to the employment of the workers and stated that 
``[t]ransportation charges are an inevitable and inescapable 
consequence of having H-2A foreign workers employed in the United 
States; these are costs which arise out of the employment of H-2A 
workers.'' Finally, the court held that the growers' practices violated 
the FLSA minimum wage provisions, even though the H-2A regulations 
provide that the transportation costs need not be repaid until the 
workers complete 50 percent of the contract work period. The Eleventh 
Circuit noted that the H-2A regulations require employers to comply 
with applicable federal laws, and in accepting the contract orders in 
this case, the ETA Regional Administrator informed the growers in 
writing that their obligation

[[Page 77149]]

to pay the full FLSA minimum wage is not overridden by the H-2A 
regulations.
    Comments from employers recommended continuing the Department's 
requirement that workers be reimbursed at the 50 percent point of the 
work contract, stating that the current policy appropriately balances 
the interests of employers and employees by creating an incentive for 
employees to complete at least half of the contract. Many employers 
urged the Department not to require immediate reimbursement to workers 
and that the Department:

should explicitly state that an employer of H-2A workers does not 
have an obligation under the INA, the Fair Labor Standards Act 
(``FLSA''), or DOL regulations to reimburse a worker's in-bound 
transportation expense until the 50 percent point of the work 
contract and that if a worker's payment of inbound transportation 
and subsistence costs reduces his/her first week's wage below the 
minimum wage, such reduction does not result in a violation of the 
FLSA.

    Employee advocates, on the other hand, pressed the Department to 
require employers to comply with the FLSA which, they state, requires 
the reimbursement of costs at the beginning of employment when those 
costs are for the benefit of the employer and effectively reduce the 
workers' weekly income below the minimum wage. Another employee 
advocate suggested that the Department consider requiring H-2A 
employers to advance to workers inbound costs and to pay referral fees 
to domestic labor contractors to encourage the movement of low-wage 
U.S. workers to labor shortage areas.
    After due consideration of the comments, the Department has 
determined to continue the current policy of requiring employers to 
provide or pay for workers' inbound and outbound subsistence and 
transportation and the corresponding requirement for reimbursement of 
such inbound costs upon the worker's completion of 50 percent of the 
work contract period. Thus, reimbursement at the 50 percent point is 
all that the Final Rule requires pursuant to the Department's 
rulemaking authority under the INA. Moreover, the Department believes 
that the better reading of the FLSA and the Department's own 
regulations is that relocation costs under the H-2A program are not 
primarily for the benefit of the employer, that relocation costs paid 
for by H-2A workers do not constitute kickbacks within the meaning of 
29 CFR 531.35, and that reimbursement of workers for such costs in the 
first paycheck is not required by the FLSA.
    The FLSA requires employers to pay their employees set minimum 
hourly wages. 29 U.S.C. 206(a). The FLSA allows employers to count as 
wages (and thus count toward the satisfaction of the minimum wage 
obligation) the reasonable cost of ``furnishing [an] employee with 
board, lodging, or other facilities, if such board, lodging, or other 
facilities are customarily furnished by such employer to his 
employees.'' 29 U.S.C. 203(m). The FLSA regulations provide that 
``[t]he cost of furnishing `facilities' found by the Administrator to 
be primarily for the benefit or convenience of the employer will not be 
recognized as reasonable [costs within the meaning of the statute] and 
may not therefore be included in computing wages.'' 29 CFR 531.3(d)(1). 
The FLSA regulations further provide examples of various items that the 
Department has deemed generally to be qualifying facilities within the 
meaning of 29 U.S.C. 203(m), see 29 CFR 531.32(a), as well as examples 
of various items that the Department has deemed generally not to be 
qualifying facilities, see 29 CFR 531.3(d)(2), 29 CFR 531.32(c).
    Separate from the question whether items or expenses furnished or 
paid for by the employer can be counted as wages paid to the employee, 
the FLSA regulations contain provisions governing the treatment under 
the FLSA of costs and expenses incurred by employees. The regulations 
specify that wages, whether paid in cash or in facilities, cannot be 
considered to have been paid by the employer and received by the 
employee unless they are paid finally and unconditionally, or ``free 
and clear.'' 29 CFR 531.35. Thus, ``[t]he wage requirements of the Act 
will not be met where 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. This is true 
whether the `kick-back' is made in cash or in other than cash. For 
example, if the employer requires that the employee must provide tools 
of the trade that will be used in or are specifically required for the 
performance of the employer's particular work, there would be a 
violation of the Act in any workweek when the cost of such tools 
purchased by the employee cuts into the minimum or overtime wages 
required to be paid him under the Act.'' Id. The regulations treat 
employer deductions from an employee's wages for costs incurred by the 
employer as though the deductions were a payment from the employee to 
the employer for the items furnished or services rendered by the 
employer, and applies the standards set forth in the ``kick-back'' 
provisions at 29 CFR 531.35 to those payments. Thus, ``[d]eductions for 
articles such as tools, miners' lamps, dynamite caps, and other items 
which do not constitute `board, lodging, or other facilities' '' are 
illegal ``to the extent that they reduce the wages of the employee in 
any such workweek below the minimum required by the Act.'' 29 CFR 
531.36(b).
    In sum, where an employer has paid for a particular item or 
service, under certain circumstances it may pursuant to 29 U.S.C. 
203(m) count that payment as wages paid to the employee. On the other 
hand, when an employee has paid for such an item or service, an 
analysis under 29 CFR 531.35 is required to determine whether the 
payment constitutes a ``kick-back'' of wages to the employer that 
should be treated as a deduction from the employee's wages.
    The Arriaga court seems to have assumed that all expenses 
necessarily fall into one of these two categories--that either they 
qualify as wages under 29 U.S.C. 203(m) or they constitute a ``kick-
back'' under 29 CFR 531.35. See Arriaga, 305 F.3d at 1241-42 (stating 
that if a payment ``may not be counted as wages'' under 29 U.S.C. 
203(m), then ``the employer therefore would be required to reimburse 
the expense up to the point the FLSA minimum wage provisions have been 
met'' under 29 CFR 531.35 and 29 CFR 531.36). That is incorrect. For 
example, if an employer were to give an employee a valuable item that 
was not ``customarily furnished'' to his or her employees, the employer 
would not be able to count the value of that item as wages under 29 
U.S.C. 203(m) unless the employer ``customarily furnished'' the item to 
his or her employees. Nevertheless, since the employee paid nothing for 
that item, it clearly would not constitute a ``kick-back'' of wages to 
the employer that would have to be deducted from the employee's wages 
for purposes of determining whether the employer met its minimum wage 
obligations under 29 U.S.C. 206(a). Similarly, if a grocery employee 
bought a loaf of bread off the shelf at the grocery store where he or 
she worked as part of an arms-length commercial transaction, the 
payment made by the employee to the employer would not constitute a 
``kick-back'' of wages to the employer, nor would the loaf of bread 
sold by the employer to the employee be able to be counted toward the 
employee's wages under 29 U.S.C. 203(m). Both parties would presumably 
benefit equally from such a transaction--it would neither be primarily 
for the benefit of the employer, nor would it be primarily for the 
benefit of the employee.

[[Page 77150]]

    Expenses paid by an employer that are primarily for the employer's 
benefit cannot be counted toward wages under 29 U.S.C. 203(m). See 29 
CFR 531.3(d). Similarly, expenses paid by an employee cannot constitute 
a ``kick-back'' unless they are for the employer's benefit. See 29 CFR 
531.35. An analysis conducted under 29 U.S.C. 203(m) determining that a 
particular kind of expense is primarily for the benefit of the employer 
will thus generally carry through to establish that the same kind of 
expense is primarily for the benefit of the employer under 29 CFR 
531.35. Each expense, however, must be analyzed separately in its 
proper context.
    The question at issue here is whether payments made by H-2A 
employees for the cost of relocating to the United States, whether paid 
to a third party transportation provider or paid directly to the 
employer, constitutes a ``kick-back'' of wages within the meaning of 29 
CFR 531.35. If the payment does constitute a ``kick-back,'' then the 
payment must, as the Arriaga court decided, be counted as a deduction 
from the employee's first week of wages under the FLSA for purposes of 
determining whether the employer's minimum wage obligations have been 
met.
    The Department does not believe that an H-2A worker's payment of 
his or her own relocation expenses constitutes a ``kick-back'' to the 
H-2A employer within the meaning of 29 CFR 531.35. It is a necessary 
condition to be considered a ``kick-back'' that an employee-paid 
expense be primarily for the benefit of the employer. The Department 
need not decide for present purposes whether an employee-paid expense's 
status as primarily for the benefit of the employer is a sufficient 
condition for it to qualify as a ``kick-back,'' because the Department 
does not consider an H-2A employee's payment of his or her own 
relocation expenses to be primarily for the benefit of the H-2A 
employer.
    Both as a general matter and in the specific context of guest 
worker programs, employee relocation costs are not typically considered 
to be ``primarily for the benefit'' of the employer. Rather, in the 
Department's view, an H-2A worker's inbound transportation costs either 
primarily benefit the employee, or equally benefit the employee and the 
employer. In either case, the FLSA and its implementing regulations do 
not require H-2A employers to pay the relocation costs of H-2A 
employees. Arriaga misconstrued the Department's regulations and is 
wrongly decided.
    As an initial matter, any weighing of the relative balance of 
benefits derived by H-2A employers and employees from inbound 
transportation costs must take into account the fact that H-2A workers 
derive very substantial benefits from their relocation. Foreign workers 
seeking employment under the H-2A nonimmigrant visa program often 
travel great distances, far from family, friends, and home, to accept 
the offer of employment. Their travel not only allows them to earn 
money--typically far more money than they could have in their home 
country over a similar period of time--but also allows them to live and 
engage in non-work activities in the U.S. These twin benefits are so 
valuable to foreign workers that these workers have proven willing in 
many instances to pay recruiters thousands of dollars (a practice that 
the Department is now taking measures to curtail) just to gain access 
to the job opportunities, at times going to great lengths to raise the 
necessary funds. The fact that H-2A farmworkers travel such great 
distances and make such substantial sacrifices to obtain work in the 
United States indicates that the travel greatly benefits those 
employees. Many of the comments received by the Department support this 
conclusion.
    Most significantly, however, the Department's regulations 
explicitly state that ``transportation furnished employees between 
their homes and work where the travel time does not constitute hours 
worked compensable under the Act and the transportation is not an 
incident of and necessary to the employment'' are qualifying 
``facilities'' under 29 U.S.C. 203(m). 29 CFR 531.32(a). As qualifying 
facilities, such expenses cannot by definition be primarily for the 
benefit of the employer. 29 CFR 531.32(c). The wording of the 
regulation does not distinguish between commuting and relocation costs, 
and in the context of the H-2A program, inbound relocation costs fit 
well within the definition as they are between the employee's home 
country and the place of work.
    The Arriaga court ruled that H-2A relocation expenses are primarily 
for the benefit of the employer in part because it believed that under 
29 CFR 531.32, ``a consistent line'' is drawn ``between those costs 
arising from the employment itself and those that would arise in the 
ordinary course of life.'' 305 F.3d at 1242. The court held that 
relocation costs do not arise in the ordinary course of life, but 
rather arise from employment. Id. Commuting costs and relocation costs 
cannot be distinguished on those grounds, however. Both kinds of 
expenses are incurred by employees for the purpose of getting to a work 
site to work. Moreover, an employee would not rationally incur either 
kind of expense but for the existence of the job. Both the employer and 
the employee derive benefits from the employment relationship, and, 
absent unusual circumstances, an employee's relocation costs to start a 
new job cannot be said to be primarily for the benefit of the employer.
    That is not to say that travel and relocation costs are never 
properly considered to be primarily for the benefit of an employer. The 
regulations state that travel costs will be considered to be primarily 
for the benefit of the employer when they are ``an incident of and 
necessary to the employment.'' 29 CFR 531.32(c). This might include, 
for example, a business trip, or an employer-imposed requirement that 
an employee relocate in order to retain his or her job. Relocation 
costs to start a new job will rarely satisfy this test, however.
    In a literal sense it may be necessary to travel to a new job 
opportunity in order to perform the work, but that fact, without more, 
does not render the travel an ``incident'' of the employment. Inbound 
relocation costs are not, absent unusual circumstances, any more an 
``incident of * * * employment'' than is commuting to a job each day. 
Indeed, inbound relocation costs are quite similar to commuting costs 
in many respects, which generally are not considered compensable. Cf. 
DOL Opinion Letter WH-538 (August 5, 1994) (stating that travel time 
from home to work is ``ordinary home-to-work travel and is not 
compensable'' under the FLSA); Vega ex rel. Trevino v. Gasper, 36 F.3d 
417 (5th Cir. 1994) (finding travel to and from work and home not 
compensable activity under Portal-to-Portal Act). In fact, there is no 
reason to believe that the drafters of 29 U.S.C. 203(m) and 206(a) ever 
intended for those provisions to indirectly require employers to pay 
for their employees' relocation and commuting expenses. To qualify as 
an ``incident of * * * employment'' under the Department's regulations, 
transportation costs must have a more direct and palpable connection to 
the job in question than merely serving to bring the employee to the 
work site.
    Taking the Arriaga court's logic to its ultimate conclusion would 
potentially subject employers across the U.S. to a requirement to pay 
relocation expenses for all newly hired employees--or at least to pay 
relocation expenses for all newly hired foreign employees, since 
international relocation is perhaps less ``ordinary'' than 
intranational

[[Page 77151]]

relocation. That simply cannot be correct. The language of 29 U.S.C. 
203(m) and 206(a) and their implementing regulations provide a very 
thin reed on which to hang such a seismic shift in hiring practices, 
particularly so many years after those provisions have gone into 
effect. Nor does the fact that H-2A workers are temporary guest workers 
change the equation. Even assuming that H-2A workers derive somewhat 
less benefit from their jobs because they are only temporary, that fact 
alone would not render the worker's relocation expenses an ``incident'' 
of the temporary job. If it did, ski resorts, camp grounds, shore 
businesses, and hotels would all be legally required to pay relocation 
costs for their employees at the beginning of each season--again, a 
result that is very difficult to square with the language and purpose 
of 29 U.S.C. 203(m) and 29 CFR 531.35.
    A stronger argument could be made, perhaps, that employers derive a 
greater-than-usual benefit from relocation costs when they hire foreign 
guest workers such as H-2A workers, because employers generally are not 
allowed to hire guest workers unless they have first attempted but 
failed to recruit U.S. workers. Thus, such employers have specifically 
stated a need to hire non-local workers. Given the substantially 
greater benefit that foreign guest workers generally derive from work 
opportunities in the United States than they do from employment 
opportunities in their home countries, however, the Department believes 
that this at most brings the balance of benefits between the employer 
and the worker into equipoise. Moreover, the employer's need for non-
local workers does nothing to transform the relocation costs into an 
``incident'' of the job opportunity in a way that would render the 
employee's payment of the relocation expenses a ``kick-back'' to the 
employer. If it did, courts would soon be called upon every time an 
employer hired an out-of-state worker to assess just how great the 
employer's need for the out-of-state employee was in light of local 
labor market conditions. Conversely, the courts would also have to 
inquire into the employee's circumstances, and whether the employee had 
reasonably comparable job prospects in the area from which the employee 
relocated. Again, the Department does not believe such a result is 
consistent with the text or the intent of the FLSA or the Department's 
implementing regulations.
    It is true, of course, that H-2A employers derive some benefit from 
an H-2A worker's inbound travel. To be compensable under the FLSA, 
however, the question is not whether an employer receives some benefit 
from an item or paid-for cost, but rather whether they receive the 
primary benefit. Significantly, despite the fact that employers nearly 
always derive some benefit from the hiring of state-side workers as 
well, such workers' relocation costs generally have not been considered 
to be ``primarily for the benefit of the employer.'' That is so because 
the worker benefits from the travel either more than or just as much as 
the employer.
    The Department obligated H-2A employers to pay H-2A workers' 
transportation costs not because it believed that the workers were 
entitled to such payments under the FLSA, but rather in the discharge 
of its responsibilities under the INA to insure the integrity of the H-
2A program. The Department carefully crafted its regulation to give H-
2A workers a strong incentive to complete at least 50 percent of their 
work contract. The practical effect of the Arriaga decision, however, 
is to require H-2A employers to pay for H-2A workers' inbound 
transportation costs without any reciprocal guarantee that the workers 
will continue to work for the employer after the first workweek. The 
Department believes that the payment of such transportation costs 
unattached to a reciprocal guarantee that the needed work will 
ultimately be performed substantially diminishes the benefit of the 
travel to the employer, and certainly would not allow the travel to be 
considered primarily for the employer's benefit.
    In sum, the Department believes that the costs of relocation to the 
site of the job opportunity generally is not an ``incident'' of an H-2A 
worker's employment within the meaning of 29 CFR 531.32, and is not 
primarily for the benefit of the H-2A employer. The Department has 
publicly stated that ``in enforcing the FLSA for H-2A workers, the 
Department's general policy is to ensure that workers receive 
transportation reimbursement by the time they complete 50 percent of 
their work contract period (or shortly thereafter) rather than 
insisting upon reimbursement at the first pay period.'' The Department 
continues to believe that this is the appropriate interpretation of the 
interplay between the H-2A program regulations and the FLSA in regards 
to transportation reimbursement. The Department states this as a 
definitive interpretation of its own regulations and expects that 
courts will defer to that interpretation.
    The current regulation uses the phrase ``place from which the 
worker has departed'' to describe the beginning point from which 
employers are required to provide or pay for inbound transportation and 
subsistence, and, if the worker completes the work contract period, the 
ending point to which employers are required to provide or pay for 
outbound transportation and subsistence. This phrase has at times been 
interpreted by the Department to mean the worker's ``home,'' or the 
place from which the worker was recruited. Most recently, the phrase 
was addressed in ETA Training and Employment Guidance Letter No. 23-01, 
Change 1 (August 2, 2002): `` `Home' is where the worker was originally 
recruited.'' While the Department proposed no changes to this 
regulatory language or interpretation, comments were received on this 
point. One agricultural association suggested that the Department 
clarify that transportation from and back to the place from which the 
worker came to work should be considered to require transportation from 
or to the site of the U.S. Consulate that issued the visa. This 
commenter stated:

    For the past 20 years the phrase ``from the place from which the 
worker has come to work for the employer to the place of 
employment,'' has meant payment of transportation from the location 
of the U.S. Consulate which issued the H-2A visa to the place of 
employment of the petitioning employer. Although the Department in 
its memoranda refers to ``place of recruitment'' its examples of how 
this rule works speaks only of transportation from and back to the 
worker's home country. There is no mention of the worker's village. 
This interpretation is in line with the INA and DHS regulations 
which do not allow a worker to enter the U.S. until that foreign 
worker has an H-2A visa. Thus, the worker cannot ``come to work for 
the employer'' until he or she has an H-2A visa. It is at the point 
that the worker has the H-2A visa that he or she is eligible to go 
to work for the employer.

    The Department finds this to be a compelling argument. It is the 
Department's program experience that workers, particularly H-2A 
workers, gather in groups for processing and transfer to the U.S. The 
logical gathering point for these workers is at the U.S. Consulate 
location where the workers receive their visa. In most countries that 
send H-2A workers to the U.S., such processing is usually centrally 
located (in Monterrey, Mexico, for example, rather than in Mexico City 
or another Consulate location). Designating the Consulate location 
where the visa is issued provides the Department with an 
administratively consistent place from which to calculate charges and

[[Page 77152]]

obligations. We have therefore made corresponding changes in the 
regulatory text to clarify that the ``place from which the worker has 
departed'' for foreign workers outside of the U.S. is the appropriate 
U.S. Consulate or port of entry.
    Finally, the Department sought to clarify that minimum safety 
standards required for employer provided transportation between the 
worker's living quarters (provided or secured by the employer pursuant 
to INA sec. 218(c)(4)) and the worksite are the standards contained in 
MSPA (29 U.S.C. 1841). The Department does not seek to apply MSPA to H-
2A workers and has no authority to do so. This clarification is 
intended to remove any ambiguity concerning the appropriate minimum 
vehicle safety standards for H-2A employers and should simplify 
compliance for those H-2A employers that also employ MSPA workers.
    Other changes to the language of the proposed provision--most 
significantly, the notation that an employer's return transportation 
obligation under Sec.  655.104(h)(2) applies where ``the worker has no 
immediately subsequent H-2A employment''--are non-substantive and have 
been made for purposes of clarification.
(i) Section 655.104(i) Three-Fourths Guarantee
    The Department chose, in the NPRM, to continue the so-called 
``three-fourths guarantee,'' by which it ensures that H-2A workers are 
offered a certain guaranteed number of hours of work during the 
specified period of the contract, and that if they are not offered 
enough hours of work, that they are paid as though they had completed 
the specified minimum number of work hours. In doing so, the Department 
suggested some minor changes to make the guarantee easier to apply in 
practice.
    One grower association objected to the continuation of the three-
fourths guarantee. They stated that it needs to be eliminated because 
it is arcane, is seldom understood by the growers, and complicates the 
system by creating more ``red tape'' for the growers. Other commenters 
supported the rule, but commented on the nuances of the changes made to 
the rule under the NPRM. A few commenters expressed the view that the 
guarantee deters employers from over-recruiting, which may create an 
oversupply of workers and drive wages down, and also assures long-
distance migrants that attractive job opportunities exist. However, 
some commenters also believe that the guarantee requirement results in 
employer abuses, such as employers misrepresenting the length of the 
season. They suggested the Department add language to allow workers to 
collect the three-fourths guarantee ``based on the average number of 
hours worked in a particular crop region and upon a showing of having 
worked through the last week in which the employer offered work to a 
full complement of his workforce.''
    The Department believes the rule provides essential protection for 
both U.S. and H-2A workers, in that it ensures their commitment to a 
particular employer will result in real jobs that meet their reasonable 
expectations. The Department also believes the rule is not easy to 
abuse or circumvent, as it is based on a simple mathematical 
calculation. For those employers that might try to evade their 
responsibilities, the Department has enforcement measures and penalties 
to act as a deterrent.
    Changing the three-fourths guarantee to be based on a per-crop 
harvest calculation using an average of hours worked rather than a 
contract period would make it nearly impossible to track and enforce 
the guarantee. To require employers to keep track of workers on a per-
crop basis and allow the workers to collect money based on the three-
fourths guarantee when the U.S. workers transition from one employer to 
another during the peak harvesting times appears patently unfair and 
the Department is not willing to create such an option.
    Two commenters also suggested that the Department take out the 
reference to ``work hours'' and return the term ``workday'' because the 
commenters believed that the employer might otherwise submit job orders 
based on a ``bogus'' hourly work day or work week. The Department 
believes that this concern is misplaced. The new terminology proposed 
by the Department is no more susceptible to abuse than the old 
terminology is; under either phrasing, employer fraud requires 
submitting false calculations of work. The Department purposely added 
the sentence with ``work hours'' and kept the old references to 
``workday'' in the NPRM to make the formula for calculation of the 
total amount guaranteed easier to understand and calculate. The end 
result is the same under either phrasing, however.
    A farm bureau requested that we insert language at the end of Sec.  
655.104(i)(1) to protect employers from the costs resulting from U.S. 
workers who voluntarily abandon employment in the middle of the 
contract period and then return at the end of the contract period or 
from those U.S. workers who show up in the middle of the contract 
period. This commenter does not believe that an employer should have 
any liability under the three-fourths guarantee rule for such 
unreliable employees. The guarantee has never applied to workers who 
voluntarily abandon employment or who never show up for the work, 
provided notice of such abandonment or no-show is provided to DOL 
within the time frames for reporting an abandonment that are set forth 
in Sec.  655.104(n). The Department has further clarified that 
provision in the Final Rule by defining abandonment of the job as the 
worker failing to report for work for 5 consecutive days.
    Farmworker advocates expressed concern that the Department would 
not enforce this provision. The Department appreciates the concerns 
raised and assures the public it intends to enforce this provision 
fully, as it intends to implement the entire rule.
    Another commenter requested clarification on what hours an employer 
may count toward the three-fourths guarantee when an employee 
voluntarily works more than the contract requires. The commenter asked 
for language to be inserted into Sec.  655.104(i)(3) stating that all 
hours of work actually performed including voluntary work over and 
above the contract requirement can be counted by the employer. The 
Department believes that this principle was already made clear by Sec.  
655.104(i)(1), but it has added the requested language for purposes of 
clarification.
    In proposed Sec.  655.104(i)(4) the Department sought to reiterate 
the employer's obligation to provide housing and meals to workers 
during the entire contract period, notwithstanding the three-fourths 
guarantee. The proposed paragraph, while properly entitled ``Obligation 
to provide housing and meals,'' inadvertently discussed an obligation 
to provide meals and transportation. Two comments were received on this 
paragraph. One employer association suggested that the text of the 
paragraph be revised to reflect that employers are not obligated to 
provide housing to workers who quit or are terminated for cause. One 
employee advocacy organization commented that the clarification that 
the employer is not allowed to shut down the labor camp or the camp 
kitchen during the contract period is a positive change. The Department 
has modified the paragraph to clarify that it is the employer's 
obligation to provide housing and meals during the contract period that 
is not affected by the three-fourths guarantee,

[[Page 77153]]

and to clarify that employers are not obligated to provide housing to 
workers who voluntarily abandon employment or are terminated for cause.
    Finally, in the NPRM the Department inadvertently deleted some 
qualifying phrases from this provision that are contained in the 
current regulation, and has accordingly in the Final Rule reverted to 
the language of the current regulation. Section 655.104(i)(3) discusses 
an employee's failure to work in the context of calculating whether the 
period of guaranteed employment has been met. The Final Rule reinserts 
the phrase currently in the regulations at Sec.  655.102(b)(6)(iii) 
permitting an employer to count ``all hours of work actually performed 
(including voluntary work over 8 hours in a workday or the worker's 
Sabbath or Federal Holidays).'' The Final Rule also reinserts as Sec.  
655.104(i)(4) the statement found in the current regulation at Sec.  
655.102(b)(6)(iv) that an employer is not liable for payment of the 
three-quarters guarantee to an H-2A worker whom the CO certifies has 
been displaced because of the employer's compliance with its obligation 
under these rules, where applicable, to accept referrals of U.S. 
workers after its date of need.
(j) Section 655.104(j) Records
    The NPRM proposed continuing the ``keeping of adequate and accurate 
records'' with respect to the payment of workers, making only minor 
modifications to the current regulation. The Department received 
several comments specific to the provisions of this section.
    A commenter requested that the Department eliminate the requirement 
for employers to provide information to the worker through the worker's 
representative upon reasonable notice. The Department does not believe 
this requirement should be eliminated because it is the Department's 
goal to encourage the availability of information to workers. Another 
commenter suggested refinements to the provision, including suggesting 
that a ``worker's representative'' be defined and documented in some 
manner so as to prevent the theft of information under the guise of 
disclosure to worker's representatives, and also to require disclosure 
of records within five days instead of upon ``reasonable'' notice.
    The Department agrees that it did not clarify in sufficient detail 
how a designated worker's representative should be identified so as to 
prevent unauthorized disclosure of records, and it accordingly has 
added language to the Final Rule stating that appropriate documentation 
of a designation of representative status must be provided to the 
employer.
    Instead of changing the term ``reasonable'' notice in the Final 
Rule to refer to a specific number of days, however, the Department has 
instead decided to adopt in Sec.  655.104(j)(2) of the Final Rule the 
standard for production of records that is currently found at 29 CFR 
516.7 and that the WHD uses under the FLSA. The Secretary can already 
request most H-2A records kept pursuant to this rule under the FLSA, 
and having one standard will help to avoid confusion in the regulated 
community.
(k) Section 655.104(k) Hours and Earnings Statements
    The Department did not receive any comments on this section. 
However, the Department made non-substantive punctuation changes to the 
provision in the Final Rule to reflect plain language standards.
(l) Section 655.104(l) Rates of Pay
    In the NPRM, the Department proposed to require employers to pay 
the highest of the adverse effect wage rate, the prevailing wage rate, 
or the Federal, State, or local minimum wage. The Final Rule retains 
this requirement, with some minor non-substantive clarifications to the 
text of the provision; comments specific to the issue of actual rates 
that will be required and the timing of their application are dealt 
with in the discussion of Sec.  655.108.
    Because this provision discusses the use of piece rates, several 
commenters took the opportunity to suggest changes to how piece rates 
are treated within the H-2A program. Worker advocates argued for 
reinstitution of the pre-1986 rules regarding piece rate adjustments. 
Some employers argued that the Department should not attempt to 
regulate piece rates at all. As the NPRM did not propose changes to the 
now long-standing procedures for the regulation of piece rates, the 
Department did not adopt any of these suggested changes in the Final 
Rule.
    The NPRM proposed a modest change to the regulation governing 
productivity standards. Under existing regulations, an employer who 
pays on a piece rate basis and utilizes a productivity standard as a 
condition of job retention must utilize the productivity standard in 
place in 1977 or the first year the employer entered the H-2A system 
with certain exceptions and qualifications. The NPRM proposed to 
simplify this provision by requiring that any productivity standard be 
no more than that normally required by other employers in the area.
    No commenter explicitly opposed the change in the methodology by 
which acceptable productivity standards are determined, but several 
employers asked for additional flexibility to be allowed to use a 
productivity standard even if the majority of employers in the area do 
not utilize one. We believe the ``normal'' standard, which the 
Department will retain in the Final Rule, will provide adequate 
flexibility for employers while ensuring that the wages and working 
conditions of U.S. workers are not adversely affected by the use of 
productivity rates not normal in the area of intended employment. 
Clarifying language has been added to the provision supplying the 
Department's interpretation of the term ``normal'' to mean ``not 
unusual.'' The Department has long applied this meaning of the term 
``normal'' In the H-2A context. See, e.g., ETA Handbook No. 398 at II-7 
(``The terms `normal' and `common', although difficult to quantify, for 
H-2A certification purposes mean situations which may be less than 
prevailing, but which clearly are not unusual or rare.''); id. at I-40 
(noting that the Department will carefully examine job qualifications, 
which are required by statute to be ``normal'' and ``accepted,'' if the 
qualifications are ``unusual''). It is also within the range of 
generally accepted meanings of the term. See, e.g., Black's Law 
Dictionary 1086 (8th ed. 2004) (``The term describes not just forces 
that are constantly and habitually operating but also forces that 
operate periodically or with some degree of frequency. In this sense, 
its common antonyms are unusual and extraordinary.''); Webster's 
Unabridged Dictionary 1321 (2d ed. 2001) (supplying ``not abnormal'' as 
one of several definitions). Thus, ``normal'' does not require that a 
majority of employers in the area use the same productivity standard. 
If there are no other workers in the area of intended employment that 
are performing the same work activity, the Department will look to 
workers outside the area of intended employment to assess the normality 
of an employer's proposed productivity standard.
    With respect to other provisions in the NPRM, some commenters 
argued that the Department is required by statute to use a 
``prevailing'' standard with respect to all practices permitted by the 
regulations. These commenters argued that the use of anything less than 
a ``prevailing practice'' standard necessarily adversely affects U.S. 
workers. The Department disagrees. The Department notes that with 
respect to

[[Page 77154]]

many types of practices, it may not even be possible to determine what 
the ``prevailing'' practice is. For example, there may be a wide range 
of productivity standards used by employers in a given area, none of 
which is used by 50 percent of employers or with respect to 50 percent 
of workers. Furthermore, many practices are not readily susceptible to 
averaging: For example, with respect to practices regarding the 
frequency with which workers are paid, some employers may pay workers 
at the end of each week, others at the end of every two weeks, and 
others twice a month. If one third of employers used each method, which 
practice would be ``prevailing''?
    The Department has examined each type of employment practice and 
each type of working condition that is addressed by this rule to 
determine what parameters or limits are necessary to ensure that U.S. 
workers will not be adversely affected. With respect to productivity 
standards, the Department has determined that a range of practices are 
acceptable, and that it is unlikely that U.S. workers will be adversely 
affected if H-2A employers use a productivity standard that is not 
unusual for non-H-2A employers to apply to their U.S. workers. The 
Department will not, however, certify applications containing unusual 
productivity standards that are clearly prejudicial to U.S. workers.
(m) Section 655.104(m) Frequency of Pay
    The Department proposed in the NPRM to continue the requirement of 
the current regulation that the employer must state in the job offer 
the rate of frequency that the worker is to be paid, based upon 
prevailing practice in the area but in no event less frequently than 
twice a month. The Department received one comment on this provision 
noting that weekly or daily earnings are ``always'' the prevailing 
practice in agriculture, never bi-weekly, and that the Department 
should accordingly require weekly payment. After considering this 
comment, the Department has determined that it would be difficult, and 
not at all cost-effective, to use surveys to determine the frequency 
with which employers in a given area typically pay their employees. The 
Department has therefore decided to retain the minimum requirement that 
employees must be paid at least twice monthly, but has dropped the 
reference to the use of prevailing practices. The Department notes that 
this modest change affects only the frequency with which workers are 
paid, and not the amount to which they are entitled.
(n) Section 655.104(n) Abandonment of Employment
    The NPRM included a provision stating that the employer is not 
required to pay the transportation and subsistence expenses of 
employees who abandon employment, provided the employer notifies the 
Department or DHS within 2 workdays of abandonment. One association of 
farm employers argued that this requirement was unreasonable in that 
the typical practice is termination 3 days beyond the abandonment or 
``no show'' of the worker. An employer opined that this requirement 
should create an obligation on the part of the Department to help 
employers locate and pursue remedies against employees who voluntarily 
abandon employment without returning to their home country.
    The Department acknowledges the need for clarification in the 
provision to ensure that the requirement begins to run only when the 
abandonment or abscondment is discovered. The Department has therefore 
added language to the provision clarifying that the employer must 
notify DOL and DHS no later than 2 workdays ``after such abandonment or 
abscondment occurs.'' The Department has added further clarification to 
ensure that employers must meet the identical standards for 
notification to DOL as to DHS, so that a worker is deemed to have 
absconded when the worker has not reported for work for a period of 5 
consecutive work days without the agreement of the employer. The 
Department has extended this standard to a worker's failure to report 
at the beginning of a work contract. This is intended to clarify for 
the employer that the same standard of reporting applies for both 
agencies. The Department declines to include provisions prescribing new 
employer remedies against workers who abandon the job, but notes that 
abandonment of a job may result in a worker being ineligible to return 
to the H-2A program.
(o) Section 655.104(o) Contract Impossibility
    The current and proposed regulations contain a provision that 
allows an employer to ask permission from the Department to terminate 
an H-2A contract if there is an extraordinary, unforeseen, catastrophic 
event or ``Act of God'' such as a flood or hurricane (or other severe 
weather event) that makes it impossible for the business to continue.
    One commenter noted that the proposed regulation eliminates a 
current requirement that ``the employer will make efforts to transfer 
the worker to other comparable employment acceptable to the worker,'' 
and stated that U.S. workers, in particular, would benefit from such an 
effort. The Department declines to adopt this suggestion, as it 
believes the workers themselves will be in a better position to find 
alternative job opportunities than an employer whose business 
enterprise has been substantially impacted by an Act of God. In 
response to this comment, the Department has, however, added language 
to the Final Rule specifying that the H-2A worker may choose whether 
the employer terminating the H-2A contract should pay to transport them 
``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 (but only if the worker can 
provide documentation supporting such employment).'' The limitation 
providing that a worker who requests transportation to the next 
employer must provide documentation of that employment will help to 
ensure that H-2A workers who do not have subsequent employment inside 
the United States return to the country from which they came to the 
United States rather than remaining in the United States illegally.
    To conform to similar changes made elsewhere in the rule, the Final 
Rule clarifies that ``for an H-2A worker coming from outside of the 
U.S., the place from which the worker (disregarding intervening 
employment) came to work for the employer is the appropriate U.S. 
consulate or port of entry.''
    Other changes to the language of the proposed rule are non-
substantive and have been made for purposes of clarifying the provision 
or to conform to changes made elsewhere in the Final Rule.
(p) Section 655.104(p) Deductions
    The Department, in the NPRM, proposed requiring employers to make 
assurances in their application that they will make all deductions from 
the workers' paychecks that are required by law. A group of farmworker 
advocacy organizations asserted that the Department was skirting its 
responsibility under Arriaga by allowing ``reasonable'' deductions to 
be taken from a worker's paycheck without any mention of the FLSA. This 
commenter believes that the Department inappropriately removed 
clarifying language in the current regulation that

[[Page 77155]]

``an employer subject to the Fair Labor Standards Act (FLSA) may not 
make deductions which will result in payments to workers of less than 
the federal minimum wage permitted by the FLSA.'' This commenter opined 
that workers under the H-2A program are entitled to full coverage under 
the FLSA, and that the Department should not make regulatory changes 
which suggest otherwise. By eliminating this language from the rule, 
this commenter believes the Department would effectively undermine the 
rights of farm workers to be paid the minimum wage free and clear of 
costs imposed on them for inbound transportation and visa costs, as 
established by case law.
    The Department does not agree with this commenter's 
characterization of the applicability of the FLSA to H-2A workers, 
including regarding inbound transportation. Nevertheless, we have 
returned the deleted language to the Final Rule to clarify that 
employers must of course comply with all statutory requirements 
applicable to them.
(q) Section 655.104(q) Copy of Work Contract
    The NPRM contained the provision found in the current regulation 
specifying that a copy of the work contract must be provided to the 
worker no later than the date the work commences. One group of 
farmworker advocacy organizations pointed out that this proposed 
regulation does not require that the work contract be given to the 
employee in the employee's native language and believed that these 
regulations as proposed are contrary to the requirements in MSPA for 
domestic workers. The Department has decided to make no substantive 
changes to this provision. Employers seeking to hire H-2A workers, as 
with all employers seeking to recruit agricultural workers under the 
Wagner/Peyser system, must file a Form ETA 790 with the SWA. This Form 
provides the necessary disclosures for MSPA purposes. The form itself 
is bilingual. In addition, section 10(a) of the Form specifically 
requires that the summary of the material job specifications be 
completed by the employer in both English and Spanish. The changes made 
to the language of the provision in the Final Rule are non-substantive 
and were made to provide better clarity.
Section 655.105 Assurances and Obligations of H-2A Employers
    The Department proposed instituting an application requiring 
employers to attest to their adherence to the obligations of the H-2A 
program. The Department received many comments expressing approval of 
the new attestation-based process, and others opposed to such a change. 
Still other commenters expressed general approval of the new 
attestation-based approach but suggested changes to the attestations 
and the process of submitting such attestations.
    The Department received two comments regarding the substantive 
obligations imposed on employers through the attestations. One 
commenter requested that the Department add another attestation that 
employers will not confiscate workers' passports. Another commenter 
requested that the Department impose substantial penalties on employers 
who lure H-2A workers away from contract jobs before the termination of 
their contracts. This commenter believes that such a practice 
victimizes both the employer, who loses laborers, and the employee, who 
loses status under U.S. law when they prematurely terminate a contract.
    The Department is not aware that the confiscation of passports is a 
widespread practice among agricultural employers hiring H-2A workers. 
However, where evidence of such practice is found, it would likely 
indicate the presence of other practices prohibited by the H-2A 
regulations, such as the withholding of pay and other program 
entitlements. In such situations, the Department possesses mechanisms 
under this Final Rule to investigate and take appropriate action 
against such unscrupulous employers, both through program actions 
including revocation and debarment and through direct enforcement with 
civil fines and debarment.
    On the subject of changes of employment, the proposed companion 
regulation to the Department's NPRM, issued by USCIS at 73 FR 8230, 
Feb. 13, 2008, underscored that H-2A workers are free to move between 
H-2A certified jobs, and proposed to provide even greater mobility 
toward that end. The ability of workers to move to new H-2A employment 
when the current H-2A contract is completed is not something the 
Department wishes to discourage. A worker who abandons a job before its 
conclusion must be reported to DOL and DHS, and, depending on the 
reason for the abandonment, such abandonment may result in a violation 
of H-2A status and the consequent inability to commence employment with 
another employer. Such abandonment may also adversely affect a worker's 
future eligibility to participate in the H-2A program.
    One commenter requested that we allow substitution of H-2A workers 
at the port of entry without having to file a new petition. An 
Application for Temporary Employment Certification is filed without the 
names of the foreign workers. Substitution of workers is permitted by 
the DHS companion rule.
(a) Section 655.105(a)
    The attestation obligation set forth in Sec.  655.105(a) in the 
NPRM requires the employer to assure the Department that the job 
opportunity is open to any U.S. worker and that the employer conducted 
(or will conduct) the required recruitment, and was still unsuccessful 
in locating qualified U.S. applicants in sufficient numbers to fill its 
need. This assurance was criticized by a farm bureau because it 
believes that it is impossible for employers to state they ``will 
conduct'' recruitment as required in the regulations and at the same 
time attest that they were unsuccessful in finding any U.S. workers. 
The Department has clarified this language in the Final Rule to enable 
employers to attest that the employer ``has been'' unsuccessful in 
locating U.S. workers sufficient to fill the stated need.
    One group of advocacy organizations believes the Department should 
retain the language from the current Sec.  655.103(c), which states: 
``Rejections and terminations of U.S. workers. No U.S. worker will be 
rejected for or terminated from employment for other than a lawful job-
related reason, and notification of all rejections or terminations 
shall be made to the SWA.'' (Emphasis supplied.) This commenter 
requests that the provision against termination should be added to the 
assurance found in the new Sec.  655.105(a), specifically where it 
states: ``Any U.S. workers who applied for the job were rejected for 
only lawful, job-related reasons.''
    The Department declines to add language regarding terminations at 
this location in the regulations. The provision at issue is an 
attestation by an employer regarding the hiring of U.S. workers, not 
their termination. The termination of U.S. workers for inappropriate 
reasons is already covered under the regulations by the prohibition in 
Sec.  655.105(j), discussed below.
    The Department added several clarifications and conforming changes 
to the text of the proposed provisions. First, the Department added 
language clarifying that the employer must attest that it will keep the 
job opportunity open to qualified U.S. workers ``through the 
recruitment period,'' which is defined at Sec.  655.102(f)(3). Second, 
the Department added language clarifying that the employer must attest 
that it has

[[Page 77156]]

hired and will hire all U.S. workers who apply for the job and are not 
rejected for lawful, job-related reasons. Third, and relatedly, the 
Department added language stating that an employer must attest that 
``it will retain records of all rejections as required by Sec.  
655.119.'' Other changes to the language of the provision were minor 
and non-substantive, and made for purposes of providing additional 
clarity.
(b) Section 655.105(b)
    The Department proposed in the NPRM that employers be required to 
offer terms and conditions that are ``normal to workers similarly 
employed'' and ``which are not less favorable than those offered to the 
H-2A workers.'' One commenter believed that this standard is not 
sufficiently protective of the wages and working conditions of U.S. 
farmworkers to meet the statutory precondition that the employment of 
foreign workers will not adversely affect the wages and working 
conditions of U.S. workers. According to this commenter, a practice 
applying to a small percentage of workers may still be considered 
``normal.'' This commenter opined that this criterion violates the 
statute, because requiring anything less than the prevailing practices 
of non-H-2A employers with respect to job terms will necessarily harm 
U.S. workers, either by putting downward pressure on wages and 
conditions and/or by facilitating job offers that are meant to deter 
U.S. workers from applying and accepting work.
    For reasons that have already been discussed above, the Department 
disagrees. Where the Department has identified particular terms or 
working conditions that have an important impact on U.S. workers--such 
as wages or the obligation to provide tools--it has inserted provisions 
addressing them directly. Not every term or condition attaching to a 
job, however, threatens to negatively impact the wages and working 
conditions of U.S. workers simply because it is not a ``prevailing'' 
condition. An employer may, for example, be the only employer in the 
area that grows a particular crop, or that requires the use of a 
particular tool. Such requirements generally do not threaten to 
adversely affect U.S. workers and are not improper for employers to 
impose. Moreover, as noted above, it is often very difficult, if not 
impossible, to determine what the ``prevailing practice'' is with 
respect to certain types of job terms and working conditions. Other 
specific provisions in the regulations safeguard against job 
qualifications, terms, and working conditions that are deliberately 
designed by employers to discourage U.S. workers from applying for job 
openings.
    Because the Department has indicated in the Final Rule the specific 
standard (i.e., ``common,'' ``normal,'' ``prevailing'') that applies to 
each type of covered job term and working condition, the Department has 
deleted language from the proposed rule that might have been understood 
to apply a catch-all requirement to all job terms and working 
conditions that they be ``normal to workers similarly employed in the 
area of intended employment.'' Retaining this language would have 
resulted, in some instances, in application of different standards to 
the same job requirements, potentially creating substantial confusion. 
The deleted language might also have been misconstrued as applying to 
job terms and working conditions that are not elsewhere addressed in 
the Final Rule. The Department never intended for the deleted language 
to apply to such peripheral job requirements; those job terms and 
working conditions that the Department considers to be central to H-2A 
work and to preventing an adverse effect on U.S. workers--such as 
wages, housing, transportation, tools, and productivity requirements--
have each been specifically addressed elsewhere in the Final Rule. The 
Final Rule retains the requirement that employers must offer job terms 
and working conditions that ``are not less than the minimum terms and 
conditions required by this subpart.'' This language ensures that 
employers must attest to their adherence to the standard specified in 
the Final Rule for each covered job term and working condition.
(c) Section 655.105(c)
    The Department proposed in the NPRM to continue to require that the 
employer submitting an application attest that the job opportunity 
being offered to H-2A workers is not vacant because the former 
occupants are on strike or locked out in the course of a labor dispute 
involving a work stoppage. The language of the proposed provision has 
been modified in the Final Rule by reverting to the language in the 
current regulation at Sec.  655.103(a), which provides that the 
employer must assure the Department that ``[t]he specific job 
opportunity for which the employer is requesting H-2A certification is 
not vacant because the former occupant is on strike or being locked out 
in the course of a labor dispute.'' The Department is reverting to the 
current regulatory language to clarify that the Department will 
evaluate whether job opportunities are vacant because of a strike, 
lockout, or work stoppage on an individual case-by-case basis. As the 
Department's current ETA Handbook No. 398 explains at page II-23, the 
Department must ensure that ``the specific positions vacant because of 
the dispute will not be included in any otherwise positive H-2A 
certification determination or redetermination.''
    The purpose of the strike/lock-out provision is to ensure that 
striking U.S. workers are not replaced with temporary foreign workers, 
thereby adversely affecting such workers. However, if an agricultural 
employer needs twenty workers, and only ten of the positions are vacant 
because workers are on strike, the employer should not be prohibited 
from hiring H-2A workers to fill the ten job openings that are not 
strike-related. Hiring foreign workers to fill positions of U.S. 
workers that are on strike is likely to adversely affect the U.S. 
workers, but hiring H-2A workers to fill positions that are not vacant 
because of a strike would not. The language of this provision in the 
Final Rule is also more consistent with the Department's statutory 
authority to withhold a labor certification where granting the 
certification would adversely affect the wages and working conditions 
of U.S. workers.
    Comments regarding the NPRM's labor dispute provisions, which 
overlap with the contents of Sec.  655.109(b)(4)(i) of the NPRM, are 
addressed in the discussion of that section below.
(d) Section 655.105(d)
    The NPRM included a provision that required the employer to attest 
it would continue to cooperate with the SWA by accepting referrals of 
all eligible and qualified U.S. workers who apply (or on whose behalf 
an application is made) for the job opportunity until the date the H-2A 
workers departed or three days prior to the date of need, whichever was 
later. The language of the provision in the Final Rule has been 
modified to render it consistent with Sec.  655.102(f)(3), which 
specifies that employers must continue to accept referrals until the 
``end of the recruitment period'' as defined in that provision.
    The only comment that the Department received on this section is 
discussed in greater detail under the Department's discussion of the 50 
percent rule in Sec.  655.102(b), above.
(e) Section 655.105(e)
    No comments were received on Sec.  655.105(e)(1) regarding the 
attestation promising to comply with all labor laws. Comments received 
on Sec.  655.105(e)(2)

[[Page 77157]]

pertaining to the housing attestation are addressed in the discussion 
of Sec. Sec.  655.102(e) and 655.104(d). Comments received on Sec.  
655.105(e)(3) pertaining to the workers' compensation attestation are 
addressed in the discussion of Sec.  655.104(e). Finally, comments 
received with respect to Sec.  655.105(e)(4) about the transportation 
attestation are addressed in the discussion of Sec.  655.104(h) and the 
comments received in connection with Sec.  655.105(e)(4) regarding 
worker protections are addressed in the discussion of the section on 
revocation at Sec.  655.117. Several minor non-substantive 
modifications have been made to the text of the provision for purposes 
of clarity and to conform to changes made elsewhere in the Rule.
(f) Section 655.105(f)
    Several comments were received on Sec.  655.105(f), which as 
published in the NPRM required employers to notify the Department and 
DHS within 48 hours if an H-2A worker leaves the employer's employ 
prior to the end date stipulated on the labor certification. The 
commenters thought that 48 hours was not enough time to accomplish this 
especially in light of DHS' requirement that proof of notification be 
kept for up to one year. The commenters thought it was unfair to 
require the employer to comply with this requirement and incur the 
added expense of sending the notice by certified mail. One commenter 
went on to say that such notice is not needed in all cases. The 
commenter cited the example of an employee transferring to another 
employer with approval to do so by the Department and DHS and asks why 
the employer should still be required to provide notification in such 
cases. According to this commenter, notification should only be 
required if the H-2A worker absconds from the work site.
    The notification is necessary in all circumstances because the 
early separation of a worker impacts not only the rights and 
responsibilities of the employer and worker but also implicates DOL's 
and DHS's enforcement responsibilities. For instance, an employer would 
no longer be responsible for providing or paying for the subsequent 
transportation and subsistence expenses or the ``three-fourths 
guarantee'' for a worker who has separated prior to the end date 
stipulated on the labor certification, either through voluntary 
abandonment or termination for cause. There is no requirement that the 
notification be made by certified mail, however. A file copy of a 
letter sent by regular U.S. mail, with notation of the posting date, 
will suffice. In addition, the Department revised the notification 
requirement in the Final Rule to reflect that a report must be made no 
later than 2 workdays after the employee absconds, which, consistent 
with DHS, has been defined as 5 consecutive days of not reporting for 
work. The text of this provision has been modified accordingly.
    The Department also received comments on this section relating to 
notification when H-2A workers leave their home country for the first 
place of intended employment. The Department believes those comments 
pertain to requirements in the DHS NPRM published February 13, 2008 
rather than the Department's NPRM of the same date.
(g) Section 655.105(g) Offered Wage Assurances
    Comments received pertaining to the offered wage are addressed in 
the response to comments on Sec.  655.108. The Department added 
language to the text of this provision in the Final Rule to clarify 
that, as a matter of enforcement policy, the adverse effect wage rates 
that are in effect at the time that recruitment is initiated will 
remain valid for the entire period of the associated work contract. 
This enforcement policy will honor the settled expectations of workers 
and employers regarding their respective earnings and costs under an H-
2A work contract and will avoid surprises that might give rise to 
disputes. It will also be an easy rule for the Department to 
administer, particularly when calculating payments due under the three-
quarters guarantee. Because H-2A contracts never last more than a year, 
locking in wage rates for the duration of a contract in this manner 
will not significantly prejudice workers or employers in the event that 
wage rates happen to rise or fall during the middle of a work contract.
(h) Section 655.105(h) Wages Not Based on Commission
    Comments pertaining to the offered wage are addressed in the 
response to comments on Sec.  655.108.
(i) Section 655.105(i)
    The NPRM contained an assurance requiring the employer to attest 
that it was offering a full-time temporary position whose 
qualifications are consistent with the ``normal and accepted 
qualifications required by non-H-2A employers in the same or comparable 
occupations or crops.'' This was a continuation of current obligations.
    The Department received several comments relevant to this 
provision. One commenter opined that the Department should scrutinize 
employer applications that offer U.S. workers a 30-hour work week 
arguing that such a requirement is not normal and is meant to dissuade 
U.S. workers from applying when in reality H-2A workers would work 50-
60 hours a week. The commenter argues, under the new rule, it will 
become impossible for the Department to deny an application because the 
standard for what is ``normal'' is so lax.
    The word ``normal'' in Sec.  655.105(i) does not refer to the 
requirement that the jobs be full-time, but rather to the 
qualifications provision in that section. Thirty hours a week is the 
minimum to be considered full-time employment in the H-2A program and 
the Department has, as a clarification, provided that definition of 
full-time in this section in the Final Rule. Moreover, other provisions 
in these regulations (see, e.g., Sec. Sec.  655.103, 655.105(b)) 
prohibit giving H-2A workers more favorable job terms than were 
advertised to U.S. workers, which include the number of hours of 
employment.
    Another commenter noted that requirements that the job duties be 
normal to the occupation and not include a combination of duties not 
normal to the occupation has led to frequent disputes, particularly in 
specialty areas of agriculture. This commenter noted that there is a 
distinction between restrictive requirements that are clearly contrived 
for the purpose of disqualifying domestic workers and those directly 
designed to producing specialized products, utilizing unusual 
production techniques or otherwise seeking to distinguish their 
products in the marketplace.
    The Department agrees that the INA was not meant to require 
employers to adhere to timeworn formulas for production in the H-2A or 
any other employment-based category, and that job duties for which 
there is a legitimate business reason are permissible. The requirement 
that job qualifications be ``normal'' and ``accepted,'' however, is 
statutory and cannot be altered. Section 218(c)(3)(A) of the INA 
requires the Department, when determining whether an employer's 
asserted job qualifications are appropriate, to apply ``the normal and 
accepted qualifications required by non-H-2A employers in the same or 
comparable occupations and crops.'' For the reasons provided in the 
discussion of Sec.  655.104(b) of the Final Rule above, the Department 
has deleted the phrase ``in that they shall not require a combination 
of duties not normal to the

[[Page 77158]]

occupation'' from the NPRM to conform to the language of the statute.
    In the Final Rule, the language of this provision has been modified 
in one additional respect to conform to the language of Sec.  
655.104(b). The provision now states that job qualifications must not 
``substantially deviate from the normal and accepted qualifications 
required by employers that do not use H-2A workers in the same or 
comparable occupations or crops.''
(j) Section 655.105(j) Layoffs
    The Department in its NPRM added a new provision prohibiting 
employers from hiring H-2A workers if they laid off workers within a 
stated time frame, unless such laid-off workers were offered and 
rejected the H-2A positions. Two commenters saw the new provision on 
layoffs as unnecessary and unworkable. One commenter saw this as 
contrary to the section on unforeseeable events and also illogical 
because many employers request a contract period of ten months. This 
would mean that employers would be unable to lay off workers at the end 
of one season, because the new season begins within 60 days and the 
proposed 75-day requirement will not have lapsed. Another commenter 
suggested a change to the language in this section to include a caveat 
that such layoffs shall be permitted where the employer also attests 
that it will offer or has offered the opportunity to the laid-off U.S. 
worker(s) beginning on the date of need, and said U.S. worker(s) either 
refused the job opportunity or were rejected for the job opportunity 
for lawful, job-related reasons.
    The Department agrees, in general, with the changes proposed by the 
commenters. We have accordingly modified the language of the provision 
in the Final Rule to limit the effect of the provision to 60 days on 
either side of an employer's date of need. This modification is also 
consistent with the revised timetables for recruitment in the Final 
Rule. This 120-day protective period will provide U.S. workers 
important protections during the period of time that H-2A workers are 
being recruited and through the beginning of the work season, which is 
the period of time that U.S. workers are most vulnerable to layoffs 
related to the hiring of H-2A workers, while avoiding most of the 
problems cited by the commenters. We also agree that a laid off worker 
must be qualified for the opportunity and that U.S. workers may only be 
rejected for lawful, job-related reasons, a limitation that preserves 
an employer's right to reject those workers it knows to be unreliable.
(k) Sections 655.105(k) and (l) Retaliation and Discharge
    One commenter reasoned that the Department has weakened its own 
enforcement ability by eliminating the word ``discharge'' from the list 
of prohibited retaliatory acts against a worker who files a complaint 
or testifies against the employer, consults with an attorney, or 
asserts any rights on behalf of himself/herself or other workers.
    The Department believes it has, in fact, strengthened its 
enforcement ability by addressing discharge separately in Sec.  
655.105(l). By making this a separate assurance, the employer 
acknowledges even more obviously the prohibition against discharge as 
retaliation.
    One group of farmworker advocacy organizations commented that the 
NPRM's proposed language requiring employers to attest that they will 
not discharge any person ``for the sole reason'' that they engaged in 
protected activity under Sec.  655.105(k) would substantially weaken 
the anti-retaliation language in the current regulations. The 
Department agrees with this commenter that a ``sole reason'' standard 
would impose an inappropriately high burden on retaliation claimants. A 
retaliation claimant should only be required to prove that protected 
activity was a contributing factor to the discharge. Thus, the 
Department has modified the language of Sec.  655.105(l) to require 
employers to attest that they will not discharge any person ``because 
of'' protected activity under Sec.  655.105(k).
    Section 655.104(k)(4) provides that an employer may not retaliate 
against an employee who has consulted with an employee of a legal 
assistance program. This provision does not, however, provide employees 
license to aid or abet trespassing on an employer's property, including 
by persons offering advocacy or legal assistance. No matter how 
laudable the intent of those offering advocacy or legal services, an 
employee does not have the legal right to grant others access to the 
private property of an employer without the employer's permission. A 
farm owner is entitled to discipline employees who actively aid and 
abet those who engage in illegal activity such as trespassing. Absent 
any evidence of a workers' actively aiding or abetting such activity, 
however, an employer's adverse action against an employee in response 
to that employee meeting with a representative of an advocacy or legal 
services organization, particularly on the worker's own time and not on 
the employer's property, would be viewed as retaliation.
    Several minor non-substantive modifications were made to the text 
of the provision for purposes of clarity and style.
(l) Section 655.105(m) Timeliness of Fee Payment
    The Department received one comment on this section and has 
addressed it in the comments on Sec.  655.118 on debarment, below.
(m) Section 655.105(n) Notification of Departure Requirements
    The Department did not receive any comments on this provision. For 
purposes of simplicity, and to avoid any potential conflict with DHS's 
regulations, the phrase ``another employer and that employer has 
already filed and received a certified Application for Temporary 
Employment Certification and has filed that certification in support of 
a petition to employ that worker with DHS'' has been deleted from the 
Final Rule and replaced with the terms ``another subsequent employer.'' 
This change is non-substantive; subsequent employers still cannot 
legally employ H-2A workers without an approved labor certification.
(n) Section 655.105(o) and New Section 655.105(p) Prohibition on Cost-
Shifting
    The Department included in the NPRM a provision prohibiting 
employers from shifting costs for activities related to obtaining labor 
certification to the worker and further requiring the employer to 
contractually forbid its agents from accepting money from the H-2A 
worker for hiring him or her. The Department received several comments 
in relation to this provision.
    A State Workforce Agency expressed concern that this prohibition 
will create another disincentive for U.S. employers to use the program 
because it gives the impression that workers will be able to request 
reimbursement from the employer for any monies paid to a recruiter. The 
Department notes in response that the H-2A rule does not require the 
employer to reimburse the H-2A worker for any recruitment-related fees 
he or she may pay. Rather, with an exception discussed below, the rule 
requires the employer to contractually forbid any foreign recruiters it 
hires from charging the H-2A worker any fees in order to be hired or 
considered for employment. This may mean that employers are required to 
pay foreign recruiters more than they do today for the services that 
they render, but the Department considers this a necessary step toward 
preventing

[[Page 77159]]

the exploitation of foreign workers, with its concomitant adverse 
effect on U.S. workers.
    One group of farmworker advocacy organizations believes this rule 
does not go far enough to protect workers from exploitation by 
recruiters. The commenter specifically suggested that DOL should 
require employers to attest that they are ``directly paying the entire 
recruiting/processing fee charged to any foreign labor contractor whom 
they engage to perform international recruitment of H-2A workers.'' 
Employers are permitted to pay fees to recruiters for their recruiting 
services, and indeed the Department expects that they will have to do 
so, as it is unlikely that recruiters will work for free. The 
Department sees little value, however, in an over-complicated and over-
prescriptive rule allowing foreign recruiters to charge H-2A workers 
recruiting fees, but then requiring the employer to pay the fee 
directly. Moreover, this rule represents the Department's first effort 
to regulate in this area under the H-2A program and we decline to go 
further, at this time. We will consider further actions if experience 
dictates that they are necessary, if specific actions are identified 
that would be effective, and if those actions are within the 
Department's enforcement authority, taking into account limits on the 
Department's territorial jurisdiction.
    Several farmers commented that they need agents to find H-2A 
workers because they are unable to travel to different countries to 
find employees, interview them, and help them process all the necessary 
paperwork to obtain their visas. Employer commenters believe that an H-
2A worker receives a substantial benefit from the job, including more 
money than he or she is able to earn in his or her home country. 
Therefore, workers should also bear some of the financial 
responsibility for the opportunity in the form of paying for the 
services that enable that worker to find his or her way through the 
bureaucratic maze both in the worker's country and the U.S. Consulate. 
According to these commenters, many of these workers would never be 
able to apply for H-2A visas without help because they do not have 
passports from their own countries and they may not have the required 
computer and internet access for applying to the U.S. Consulate for the 
visa.
    While the Department does not disagree that this provision will 
result in an additional expense for employers, the Department is 
adamant that recruitment of the foreign worker is an expense to be 
borne by the employer and not by the foreign worker. Examples of 
exploitation of foreign workers, who in some instances have been 
required to give recruiters thousands of dollars to secure a job, have 
been widely reported. The Department is concerned that workers who have 
heavily indebted themselves to secure a place in the H-2A program may 
be subject to exploitation in ways that would adversely affect the 
wages and working conditions of U.S. workers by creating conditions 
resembling those akin to indentured servitude, driving down wages and 
working conditions for all workers, foreign and domestic. We believe 
that requiring employers to incur the costs of recruitment is 
reasonable, even when taking place in a foreign country. Employers may 
easily band together for purposes of recruitment to defray costs. To 
ensure that employers do not attempt to use surrogates to attempt to 
extract recruitment fees from H-2A workers, the Final Rule has been 
modified to specify that employers must attest that they and their 
``agents'' have not sought or received payment of any kind for any 
activity related to obtaining labor certification, including payment of 
the employer's attorneys' fees, application fees, or recruitment costs.
    The Department notes, however, that it is only prohibiting 
employers and their recruiter agents from shifting to workers the cost 
of recruiting for open job opportunities. This rule does not prevent a 
person or entity (which could be a ``facilitator'' under the DHS Final 
Rule) from charging workers reasonable fees for rendering assistance in 
applying for or securing services related to passports, visas, or 
transportation, so long as such fees are not made a condition of access 
to the job opportunity by the recruiter, employer, or facilitator. The 
Department will, however, monitor such activities to the extent 
possible to ensure that any such charges are not ``de facto'' 
recruitment fees charged for access to the H-2A program. In addition, 
government processing fees and document preparation fees related to 
securing a passport and visa to prepare for travel to the United States 
are the responsibility of the worker and the employer is not required 
to pay those fees. We note that the DHS Final H-2A Rule also precludes 
the approval of an H-2A petition, and provides for possible revocation 
of an already approved H-2A petition, if the employer knows or has 
reason to know that the worker has paid, or has agreed to pay fees to a 
recruiter or facilitator as a condition of gaining access to the H-2A 
program. Many employer advocates noted that there is no definition of 
``recruiter'' and it is unclear whether ``facilitators'' who help the 
H-2A workers apply for visas are included in this prohibition. This is 
a concern to employers because DHS, in its companion H-2A proposed 
regulation, requires disclosure of payments to ``facilitators,'' 
whether by the alien or the employer. The Department, on the other 
hand, forbids employers and their agents from receiving remuneration 
from the H-2A worker for access to job opportunities and further 
requires the employer to contractually forbid its agents from accepting 
money from the H-2A worker for hiring him or her. To allay any 
confusion, we note that our own proposed regulation was intended to 
prohibit foreign labor contractors or recruiters, with whom an employer 
in the U.S. contracts, from soliciting or requiring payments from 
prospective H-2A workers to secure job opportunities in the U.S. The 
Department believes that this is consistent with the DHS position of 
disclosure, which is presumably intended to deter such payments. The 
Department has not defined ``recruiter'' as we believe this term is 
well understood by the regulated community. Many commenters believe 
that the new rule prohibits the use of foreign recruiters. It does not. 
It requires employers to contractually forbid foreign recruiters from 
receiving payments directly or indirectly from the foreign worker. 
Employers who would be unable to find workers without recruiters are 
not prohibited from hiring such recruiters. When they do, they must 
make it abundantly clear that the recruiter and its agents are not to 
receive remuneration from the alien recruited in exchange for access to 
a job opportunity. As noted above, reasonable payments from workers in 
exchange for rendering assistance in applying for or securing services 
related to passports, visas, or transportation is not prohibited by 
this rule.
    Some commenters opined that the Department does not have the 
authority to regulate cost-shifting abroad. The Department recognizes 
that its power to enforce regulations across international borders is 
constrained. However, it can and should do as much as possible in the 
U.S. to protect workers from unscrupulous recruiters. Consequently, the 
Department is requiring that the employer make, as a condition of 
applying for labor certification, and therefore, as a condition to 
lawful H-2A employment within the U.S., the commitment that the 
employer is contractually forbidding any foreign

[[Page 77160]]

labor contractor or recruiter whom the employer engages in 
international recruitment of H-2A workers to seek or receive payments 
from prospective employees in exchange for access to job opportunities. 
As stated above, we will examine program experience in this area and 
will consider further actions as experience dictates.
    One commenter suggested that we certify recruiting agencies to 
ensure against exploitation of workers whereas two other commenters 
thought we should make employers attest that the fee employees paid to 
foreign recruiters was reasonable or did not go above a reasonable 
market-based ceiling set by the Department. The Department simply does 
not have the infrastructure or expertise to assess on a country-by-
country basis what a reasonable fee would be. The prophylactic rule 
adopted by the Department guards against worker exploitation in a 
manner that is enforceable. If a U.S. employer cannot find foreign 
workers without the help of a recruiter, then the U.S. employer must 
bear the cost of such recruitment efforts.
    One commenter requested that we provide clarification on several 
terms used in this section. The first is ``received payment * * * as an 
incentive or inducement to file * * *.'' The second is ``* * * from the 
employee or any other party, except when work to be performed by the H-
2A worker * * * will benefit or accrue to the person or entity making 
the payment, based on that person's or entity's established business 
relationship with the employer.'' For reasons discussed below, we have 
removed this language from the Final Rule to provide greater clarity to 
the provision's effect.
    Some commenters expressed concern that the rule passed on too many 
costs in recruitment to the employer. One commenter estimated that the 
recruitment cost to each employer would be $1,000 per H-2A worker. We 
believe these estimates were not supported by data and note that 
employers can collaborate with respect to recruitment to defray costs.
    A farmworker advocate argued that new labor contractors are often 
undercapitalized and can barely meet their payroll obligations. The 
commenter claimed that labor contractors' primary source of income is 
from the foreign recruiters who give them payments from the recruitment 
fees paid by the aliens. It is precisely this type of activity that the 
employer assurances are meant to prevent, for all of the reasons 
previously mentioned.
    In addition, and based upon the comments received, the Department 
has revised the provision on cost-shifting to provide for greater 
clarity. As mentioned above, the Department has added language to the 
Final Rule clarifying that the provision only applies to payments by 
employees. This rendered the language providing an exemption for 
certain payments to employers by third-parties unnecessary, and it has 
accordingly been deleted to avoid confusion. We have also eliminated 
the qualifying language stating that the provision applied to payments 
made as an ``incentive and inducement to filing,'' again for purposes 
of simplification and clarity. By simplifying the provision to prohibit 
employers from seeking or receiving payment for any activity related to 
the recruitment of H-2A workers, the Department hopes to achieve 
consistent and enforceable compliance.
    In the Final Rule the Department has separated the provision on 
cost-shifting into two sections, again to achieve clarity regarding the 
use of foreign contractors. The Rule's new Sec.  655.105(p) now 
contains the language that requires the employer to contractually 
forbid any foreign labor contractor whom they engage from seeking or 
receiving payments from prospective employees in exchange for access to 
job opportunities. In this manner the Department hopes to achieve clear 
and consistent compliance with the prohibitions contained in the Rule. 
To make the provision on cost-shifting by recruiters consistent with 
DHS's Final Rule, we have added clarifying language stating that the 
prohibition does not apply where ``provided for in DHS regulations at 8 
CFR 214.2(h)(5)(xi)(A).'' This language clarifies that the prohibition 
does not apply to worker expenses such as the cost of transportation 
and passport, visa, and inspection fees, except where such shifting of 
expenses to the worker is expressly forbidden by law.
    Paragraph (p) from the NPRM has now been redesignated as paragraph 
(q). The Department did not receive any comments specifically 
addressing this provision. Several minor non-substantive modifications 
have been made to the text of the provision for purposes of clarity and 
to conform to changes made elsewhere in the Rule. We have deleted what 
was paragraph (q) in the NPRM, an assurance on housing vouchers, 
because, for the reasons given in the discussion of Sec.  655.104(d), 
we have decided not to implement housing vouchers.
Section 655.106 Assurances and Obligations of Farm Labor Contractors
(a) General Comments
    As discussed earlier, the definition of Farm Labor Contractor in 
the Proposed Rule has been rewritten and is for purposes of H-2A now an 
H-2A Labor Contractor (H-2ALC). The Farm Labor Contractor definition in 
the NPRM was borrowed from MSPA and the Department has determined that 
definition causes confusion when applied to the H-2A program. A 
fundamental distinction between these two terms is the requirement that 
an H-2A Labor Contractor must employ the workers. This distinction 
addresses the concerns of commenters who mistakenly believed that 
agents and attorneys would have to register as Farm Labor Contractors 
(FLC) as a requirement of the H-2A program. In order for a person or 
entity under H-2A to meet the definition of an H-2ALC, that person or 
entity would have to employ the workers who are subject to Section 218 
of the INA.
    Other commenters believed that the definition of farm labor 
contractor also includes the activities of the foreign recruiters and 
obligates the employers to take on liabilities for the acts of the 
foreign recruiters because the definition of FLC in the NPRM was taken 
directly from the MSPA. The definition of an H-2ALC is no longer taken 
directly from MSPA.
    While the Department cannot reach the conduct of foreign recruiters 
abroad, it can regulate the conduct of U.S. employers participating in 
the foreign labor certification process who do business with these 
recruiters. The Department cannot by regulation impose strict liability 
on employers for labor contractors' activities abroad, but the 
Department, as a condition for an employer to obtain approval of a 
temporary labor certification application, can require the employer to 
contractually forbid foreign recruiters that an employer uses as its 
agent from seeking or receiving payments from prospective employees, as 
discussed in the discussion of Sec.  655.105(o) and (p), addressing the 
prohibition on cost shifting.
    There was considerable comment about the lack of a provision in the 
NPRM addressing ``override fees,'' which is essentially the commission 
paid by employers to labor contractors for their services. One 
commenter elaborated on this point by explaining that employers in an 
area where labor contractors with U.S. workers are well established 
could bypass the labor contractor by hiring H-2A workers

[[Page 77161]]

directly and thus not have to pay an override fee.
    Labor contractors operate in the free market system, both in hiring 
workers and in providing contract labor services, and do not require 
any special government provisions to ensure they are paid for the 
services they provide. Whether an employer chooses to utilize a farm 
labor contractor or hire workers directly is a decision to be made by 
the employer based on what best suits his business needs. Labor 
contractors typically enter into contracts with fixed site employers in 
advance of the season. The Department does not seek to regulate private 
transactions between employers and labor contractors with regard to the 
appropriate price of contract services. Employers are required to 
advertise before they can apply for H-2A workers, and both H-2ALCs and 
the U.S. workers employed by the H-2ALCs will have an opportunity to 
take the advertised jobs at the wage rates and subject to the terms and 
working conditions required by the Department. The Department is 
confident that the required wage rates, job terms, and working 
conditions are sufficient to prevent any adverse effect on U.S. 
workers.
    One group of farmworker advocacy organizations complained that the 
Department has eliminated all requirements that employers contact and 
recruit through established FLCs (now H-2ALCs). This commenter believes 
that the elimination of this requirement allows growers to bypass H-
2ALCs in favor of filing H-2A applications. The Department disagrees. 
As previously mentioned, employers are required to spread information 
about job opportunities in a variety of ways, and there is nothing that 
would prevent an H-2ALC from responding to such advertisements by 
offering its services.
    Many commenters advocated the removal of labor contractors from the 
H-2A program. The use of labor contractors to supply workers, however, 
is a reality in the agricultural industry, and reflects the substantial 
need for a flexible labor supply in a sector characterized by many 
different crops requiring different work at different times, all of 
which are subject to seasons, weather, and market conditions. To forbid 
labor contractors from utilizing the H-2A program would only encourage 
them to operate outside the system and potentially use undocumented 
workers to fill their ranks. Labor contractors desiring to hire H-2A 
workers must apply for a labor certification, recruit for U.S. workers, 
and attest to the terms and conditions of H-2A employment, just like 
any other employer desiring to hire H-2A workers, and must also list 
the sites where work will occur.
    One group of farmworker advocacy organizations commented that H-
2ALCs, under the new rule, are not required to have a physical presence 
in the U.S. This commenter points out that even under the current 
system, which does require physical locations in the U.S., there is 
still room for deception by H-2ALCs. The commenter misreads the rule. 
The definition of an H-2ALC in the Final Rule requires H-2ALCs to meet 
the definition of an ``employer,'' and the definition of employer 
requires a place of business in the United States.
(b) Description of H-2ALC obligations
    The Department's review of comments regarding the obligations of 
labor contractors under the proposed rule persuaded the Department that 
these obligations were poorly understood. To provide a clearer 
description of those obligations, and to avoid confusion on the part of 
employers, SWAs, workers, and worker advocates alike, the Final Rule 
has collected, consolidated, and refined the NPRM's description of H-
2ALC pre-filing recruiting obligations. The Final Rule therefore splits 
proposed Sec.  655.106 into two separate parts. Section 655.106(a) of 
the Final Rule consolidates, refines, and explains H-2ALCs' recruitment 
obligations under the H-2A program. Section 655.106(b) of the Final 
Rule contains all of the provisions proposed in the NPRM that impose 
additional obligations on H-2ALCs that do not apply to other types of 
H-2A employers.
    Although the language of Sec.  655.106(a) of the Final Rule is new, 
the substantive obligations it imposes on H-2ALCs are derived from the 
basic requirements that apply to other H-2A employers under the NPRM. 
The fact that H-2ALCs do not stay at one fixed location but travel from 
one worksite to another over the course of a season, and the fact that 
they frequently rely on the fixed site employers with whom they 
contract to provide housing and transportation to their workers, makes 
it operationally problematic to shoehorn H-2ALCs into the exact same 
recruitment framework that applies to fixed site employers. New Sec.  
655.106(a) refines for H-2ALCs the core recruitment requirements that 
apply to all other H-2A employers, including requirements that job 
orders be submitted to SWAs, that referrals of qualified U.S. workers 
be accepted during the recruitment period, that positive recruitment be 
conducted in advance of H-2A workers performing work in a given area of 
intended employment, that workers from the previous season be contacted 
and offered employment before H-2A workers can be hired, and that 
housing inspections be conducted in a timely manner.
    New Sec.  655.106(a)(1) acknowledges that, because of the itinerant 
nature of H-2ALCs, their job orders ``may contain work locations in 
multiple areas of intended employment.'' As with other employers with 
multiple work locations, H-2ALCs may submit job orders ``to any one of 
the SWAs having jurisdiction over the anticipated work areas.'' The SWA 
receiving the job order is responsible for circulating the job order to 
``all States listed in the application as anticipated worksites, as 
well as those States, if any, designated by the Secretary as 
traditional or expected labor supply States for each area in which the 
employer's work is to be performed.'' The provision further clarifies 
how long SWAs receiving multiple-area job orders should keep the job 
orders posted, and specifies that they ``may make referrals for job 
opportunities in any area of intended employment that is still in an 
active recruitment period.''
    New Sec.  655.106(a)(2) clarifies that H-2ALCs with multiple work 
locations in multiple areas of intended employment are required to 
conduct separate positive recruitment, following all of the normal 
rules specified in Sec.  655.102(g)-(i), but are not required to 
conduct separate positive recruitment for each work location within a 
single area of intended employment. Instead, positive recruitment 
within each area of intended employment is required to ``list the name 
and location of each fixed-site agricultural business to which the H-2A 
Labor Contractor expects to provide H-2A workers, the expected 
beginning and end dates when the H-2A Labor Contractor will be 
providing workers to each fixed site, and a description of the crops 
and activities the workers are expected to perform at such fixed 
site.'' Positive recruitment for each area of intended employment, 
including positive recruitment in any designated labor supply states 
associated with each area of intended employment, must, in accordance 
with the standard rule under these regulations, be conducted no more 
than 75 and no fewer than 60 days before the listed arrival date 
applicable to that area of intended employment.
    New Sec.  655.106(a)(3) specifies that H-2ALC recruitment, 
including both positive recruitment and job orders, may require that 
workers applying for jobs in any given area of intended employment 
``complete the remainder of the H-

[[Page 77162]]

2ALC's itinerary.'' H-2ALCs are by nature itinerant, and the work that 
they offer is thus itinerant as well. Workers applying for labor 
contractor jobs cannot expect to selectively choose which work 
locations they are willing to work at, unless the H-2ALC permits them 
to do so. Certainly, U.S. workers applying to work for farm labor 
contractors that are not H-2ALCs have no ability to selectively choose 
which portion of a job offer they want to accept and which they will 
reject.
    Without this rule, H-2ALCs would at times be placed in impossibly 
difficult hiring situations. For example, an H-2ALC might enter into 
contracts to serve work locations in three different areas of intended 
employment, requiring twenty workers in each area. If the H-2ALC is 
unable to recruit any U.S. workers in the first and third areas of 
intended employment, but finds ten U.S. workers in the second area of 
intended employment who are willing to complete its itinerary, then the 
H-2ALC should be allowed to hire ten H-2A workers for the duration of 
its itinerary, and ten H-2A workers for the dates of need applicable to 
the first area of intended employment (or, if these ten H-2A workers 
were initially hired with the expectation that they would complete the 
itinerary, the H-2ALC would be permitted to release them at the time 
its subsequent positive recruitment for the second area of intended 
employment resulted in the hiring of ten additional U.S. workers), 
ensuring that the H-2ALC would at all times have the twenty workers 
needed to fulfill its contracts. If, however, the ten U.S. worker 
applicants for jobs in the second area of intended employment were not 
willing to complete the H-2ALC's itinerary, and if these regulations 
nevertheless required the H-2ALC to hire those workers, the H-2ALC 
would be forced to choose between releasing ten of its H-2A workers at 
the time it hired the ten U.S. workers since only twenty workers were 
needed in the second area of intended employment. As a result, the H-
2ALC would be left with only ten workers total to fulfill its contracts 
when it got to the third area of intended employment, or, to avoid this 
consequence, would have to keep all thirty workers on its payrolls 
during its work in the second area of intended employment, thereby 
incurring the significant additional cost of paying ten unnecessary 
workers. The Department declines to force H-2ALCs to make that 
unnatural choice, which would place them at a competitive disadvantage 
vis-[agrave]-vis farm labor contractors that hire all U.S. workers and 
that are thus free to require prospective workers to complete their 
remaining itinerary.
    The Department considered, as an alternative, requiring H-2ALCs to 
file a separate application for work to be performed in each separate 
area of intended employment, but rejected the idea for several reasons. 
First, it is far more administratively convenient for both the 
Department and the employer if all of the employer's seasonal work for 
the year with the same initial date of need is included in a single 
application. Filing multiple applications in such a situation is 
needlessly duplicative, wasting valuable time and resources. In theory, 
an H-2ALC could be conceived of as having a separate date of need for 
each new work site or for each new area of intended employment, but the 
reality of labor contract work is that the responsibilities of workers 
to the labor contractor employer, as well as their associated job 
duties, continue from work location to work location and do not re-
start with each new work site. Second, the ``single application'' 
method will maximize recruitment of U.S. workers through posted job 
orders, since the SWAs for all the areas of intended employment will 
refer workers for jobs opportunities in all of the other areas of 
intended employment. Third and finally, the ``single application'' 
method will better manage the expectations of incoming H-2A workers, 
who will know at the outset whether the H-2ALC expects to employ them 
for the entire season, or rather only for a more limited duration.
    H-2ALCs are free to file separate applications for separate areas 
of intended employment where it makes sense for them to do so. Indeed, 
they may be required to file separate applications where, for example, 
they need extra workers with a different date of need to report for 
work in areas of intended employment that they will reach later in the 
season. For purposes of administrative convenience, however, and to 
comport with the realities of the nature of the underlying job 
positions, the Department will permit single applications to be filed 
by H-2ALCs covering extended itineraries.
    New Sec.  655.106(a)(4) provides that H-2ALCs that hire U.S. 
workers part-way through the season, whether through referrals or some 
other form of recruitment, may discharge a like number of H-2A workers 
and, in accordance with Sec.  655.104(i)(4), are released from the 
three-quarters guarantee with respect to those workers.
    New Sec.  655.106(a)(5) explains the rules that apply to an H-
2ALC's amendment of its application under Sec.  655.107(d)(3). Because 
H-2ALCs are itinerant and because the timing of agricultural work is 
difficult to predict with precision, H-2ALCs may often need to amend 
their applications mid-season to include additional work locations or 
additional areas of intended employment. Amendments will be readily 
permitted, but special responsibilities attach to such amendments for 
H-2ALCs. Where an amendment adds a new area of intended employment, or 
where an amendment adds a new work site in an already-listed area of 
employment and the job duties at the new work site(s) are substantially 
different from those already listed, additional recruitment will be 
required. Because amendments of H-2ALC applications may often need to 
be made at the last minute to take into account changing weather 
conditions, the required additional recruitment may be completed on an 
expedited schedule. Housing inspections of any new housing arrangements 
that have not yet been inspected must also be secured in a timely 
fashion.
    H-2ALCs are encouraged to attempt to avoid needing to make last-
minute amendments to their applications by listing all reasonably 
probable work locations in their original application and job order. In 
doing so, H-2ALCs are reminded that the ``reasonably probable'' 
standard should be closely adhered to--purely speculative employment 
should not be listed on an application. While U.S. workers benefit from 
seeing in an advertisement or job order a list of all the locations 
that the H-2ALC is reasonably likely to service, information that is 
intentionally misleading detracts from the ability of U.S workers to 
make intelligent decisions about whether to apply. The Department 
assumes that H-2ALCs will be deterred from listing purely speculative 
work sites on their applications by the three-quarters guarantee and by 
the requirement that H-2ALCs secure written statements from fixed-site 
employers regarding housing and transportation if the H-2ALC will not 
be providing the required housing and transportation itself.
    New Sec.  655.106(a)(6) reiterates the obligation of SWAs to 
complete required housing inspections ``no later than 30 days prior to 
the commencement of employment in each area of intended employment in 
the itinerary of an H-2ALC.''
    New Sec.  655.106(a)(7) provides that H-2ALCs must contact all U.S. 
workers that worked for the H-2ALC during the previous season, and must 
advise each such worker ``that a separate job opportunity exists for 
each area of

[[Page 77163]]

intended employment that is covered by the application.'' A worker who 
applies for a job opportunity in an area of intended employment may be 
required to complete the remainder of the itinerary.
    The additional obligations that the Department proposed in the NPRM 
to impose on H-2ALC employers have been consolidated in new Sec.  
655.106(b). Each provision is discussed separately below.
(c) Proposed Sections 655.106(a) and (b), New Sections 655.106(b)(1) 
and (2) Provide MSPA Farm Labor Contractor Certificate of Registration 
Number and Identify Authorized Activities
    One commenter opined that MSPA is not explicitly included in the 
rule even though it is mentioned throughout. This commenter believes 
that legal services groups that file lawsuits under these regulations 
will be able to include claims based on MSPA as well. This commenter 
believes there are enough protections in the H-2A rule without 
including MSPA.
    While references to certain specific provisions of MSPA have been 
included in the H-2A regulations, such language is not intended to 
apply MSPA to H-2A workers or employers. The provisions of H-2A and 
MSPA operate independently from one another and the inclusion of terms 
used in MSPA does not provide a legal basis upon which to hold H-2A 
employers to MSPA standards. Nothing in this rule expands the scope of 
MSPA or increases liabilities under it.
    Some clarifying, non-substantive modifications have been made to 
the language of these provisions in the Final Rule, and a statutory 
citation to MSPA has been added.
(d) Proposed Section 655.106(c), New Section 655.106(b)(3) Disclosure 
of All Locations
    One agricultural employer association asserted that it is not 
reasonable to require H-2ALCs to disclose all customers, clients, 
dates, and services, and that providing evidence that the customers and 
clients of H-2ALCs are established business operations should be 
sufficient because the proposed requirement would otherwise subject the 
labor contractor to disclosure of its clientele should an FOIA request 
be made, and also because a labor contractor should not have to know 
all of the locations so far in advance and should have the flexibility 
to change plans. The disclosure requirement is contained in the current 
regulations and has been for many years. The Department requires such 
information not for the purpose of forcing a labor contractor to 
disclose its clientele, but to ensure that the labor contractor has 
real employment opportunities available for the prospective worker. A 
good-faith compilation of the roster of clients and dates of 
arrangements with each is integral to ensure there is work available 
requiring the use of H-2A workers. It is also essential to ensure that 
recruiting is properly performed and that U.S. workers are given access 
to all job opportunities. With respect to the commenter's concerns 
about disclosure, if the list of clientele is properly considered 
confidential business information under FOIA, it would be exempt from 
disclosure.
    One commenter suggested that wording should be added to allow labor 
contractors to add or change out growers during the season by informing 
the Department. These comments have been addressed in the discussion of 
Sec.  655.106(a)(5), pertaining to the amendment of H-2ALC 
applications, above.
(e) Proposed Section 655.106(d), New Section 655.106(b)(4) Surety Bonds
    The Department required in its NPRM that FLCs (now H-2ALCs) secure 
a surety bond as proof of their ability to discharge their financial 
obligations under the H-2A program. We received some comments opposing 
the surety bond requirement, and others insisting that the requirement 
did not go far enough.
    One commenter suggested that the Department has no statutory 
authority to require H-2ALCs to be bonded. This commenter believes that 
the Department has plenty of methods available to it to weed out the 
abusive H-2ALCs and does not need the provision for bonding. The 
bonding requirement for labor contractors, who may be transient and 
undercapitalized, provides a basis to assure compliance with an 
attestation-based program. The language in the INA in Section 218(g)(2) 
which authorizes the Secretary to take such action as may be necessary 
to assure employer compliance with the terms and conditions of the Act 
provides the authority for the bonding requirement.
    Another commenter believes that the surety bond required is 
woefully inadequate to guarantee H-2ALC compliance with program 
requirements, and that it only applies to those cases that come before 
the Administrator of the Wage and Hour Division (herein referred to as 
Administrator/WHD) and not to civil actions filed in state or Federal 
court. Another commenter believes that all H-2A employers should be 
required to post a bond.
    The Department believes that the procurement of a surety bond will 
show that an H-2ALC is serious about doing business legitimately, and 
that a surety bond gives the Department leverage over the employer so 
that if the employer fails in performing its obligations, the bond will 
be available for the government to recover unpaid wages. The surety 
bond is simply a device to ensure the Department has reasonable 
assurance that the labor contractor will adhere to its program 
obligations; the labor contractor's ability to retain its interest in 
the bond depends entirely upon its adherence to performance 
obligations. The commenter is correct that the surety bond applies only 
to those cases that come before the Administrator/WHD. We have no 
authority to require it for actions beyond the Department's 
jurisdiction.
    One agricultural employer association states that the bonding 
requirement is unrealistic because underwriters will not provide the 
bonds to anyone but the largest labor contractors. This in effect will 
eliminate smaller labor contractors from the program. This commenter 
proposes that this requirement be eliminated or in the alternative that 
the discretion of the Administrator/WHD to increase the bond 
requirements should be limited to the use of reasonable and objective 
criteria.
    There is no evidence that only large labor contractors will be able 
to obtain surety bonds. The bond is a necessary compliance mechanism to 
ensure compliance with program obligations, namely the assurance of 
payment of the wages of H-2A workers covered by Section 218 of the INA. 
The Department can adjust bonds as necessary through notice and comment 
rulemaking to balance the requirement against the financial constraints 
faced by smaller employers.
(f) Proposed Section 655.106(e), New Section 655.106(b)(5) Positive 
Recruitment in Each Fixed-Site Location of Services
    In Sec.  655.106(e) of the NPRM, the Department proposed to impose 
additional recruitment obligations on FLCs (now H-2ALCs). One 
commenter, a large agricultural employer association, believes that the 
positive recruitment requirements should be the same as they are for 
non-H-2ALCs who have several fixed-site locations. The Department 
believes that the recruitment standards for H-2ALCs in the Final Rule 
spring from the same principles that apply to fixed-site employers, but 
that some modification was necessary because of the level of mobility 
of H-2ALCs. To ensure that

[[Page 77164]]

U.S. workers are provided notice of all available job opportunities, H-
2ALCs are expected to recruit in all areas in which employment will 
take place, rather than just the area where the work will begin or the 
greatest concentration of work will take place. The modified 
recruitment obligations of H-2ALCs under the Final Rule are examined at 
greater length in the discussion of new Sec.  655.106(a) above.
(g) Proposed Section 106(f), New Section 106(b)(6) Housing and 
Transportation
    The NPRM required a labor contractor to attest that it has obtained 
written assurances from fixed-site providers of housing and 
transportation that such housing and transportation complies with the 
applicable standards. One agricultural employer association observed 
that housing and transportation provided by H-2ALCs should be required 
to meet the same standards as the housing provided by any other H-2A 
employer. The Department agrees that H-2ALCs are to be held to the same 
standards, but disagrees that an H-2ALC can simply attest, without 
more, that housing it has not secured itself meets all of the 
applicable standards. Because many H-2ALC s rely upon the activities of 
others in meeting their own obligations, the Department requires the 
contractor to obtain written assurances so that the contractor can, in 
turn, fully attest to the conditions required to employ H-2A workers. 
The Department also deleted the reference to H-2A workers in this 
section to conform to Sec.  655.104(d) and to clarify the issue raised 
by commenters on Sec.  655.104(d) regarding the need to have housing 
meet local, State, and Federal standards and guidelines for all 
agricultural workers, not just H-2A workers. Other minor, non-
substantive modifications have been made to the language of this 
provision to conform to other provisions of the Final Rule.
Section 655.107 Processing of Applications
    The Department promulgated in its proposed rule the general 
parameters for the submission and processing of applications. Section 
655.107 of the NPRM laid out the process by which the Department 
intends to review applications and included provision for the 
modification of deficient applications as well as the amendment of 
pending and approved applications. Several commenters expressed concern 
with this section, specifically in the area of deficient applications. 
These specific areas of concern are addressed below.
    As a general matter, one employer suggested that Sec.  655.107 
should include a provision that the Department will have an adequately 
staffed information service to answer employer questions and help 
employers comply with the process. The Department appreciates the need 
for such services, particularly among first-time program users. 
However, existing program resources are limited and the funding of such 
a specialized information service does not appear possible at this 
time. The Department is committed to conducting briefings for users of 
the program to acquaint them with the terms and processes of the 
regulation prior to its implementation. The Department is also 
examining other ways to make program information and instructions 
available to users on an ongoing basis, particularly through its Web 
site.
(a) Proposed Sections 655.107(a)(1) and (a)(2) Review Criteria
    The Department, in describing the review process for each 
application, stated in the NPRM that each application ``will be 
substantively reviewed for compliance with the criteria for 
certification'' and further defined criteria for certification to 
``include, but not be limited to, the nature of the employer's need for 
the agricultural services or labor to be performed is temporary; all 
assurances and obligations outlined in Sec.  655.105 in this part; 
compliance with the timeliness requirements as outlined in Sec.  
655.102 of this part; and a lack of errors in completing the 
application prior to submission, which would make the application 
otherwise non-certifiable.'' A major trade association of agricultural 
employers believed this language contained ambiguous phrases, 
particularly ``include but not be limited to'' and ``errors * * * which 
would make the application otherwise non-certifiable'' and, as a 
result, the phrase ``criteria for certification'' was largely 
undefined. A farmworker/community advocacy organization commented the 
language incorporates no actual determination of whether the 
application complies with the statutory requirements for labor 
certification unlike the current regulations, which require a 
determination at the outset as to whether an application is 
``acceptable for consideration'' based on compliance with the adverse 
effect and timeliness criteria. This organization maintains that the 
lack of substantive review in processing attestation-based applications 
violates the statute. The Department has previously addressed that 
argument in the discussion of Sec.  655.101, which has now been 
rewritten to address many of these concerns. To avoid the possibility 
that vague and ambiguous terminology in the provision could cause 
confusion, however, proposed Sec.  655.107(a)(1) and (a)(2) have been 
combined in the Final Rule, and the applicable criteria for 
certification have been listed through cross-references. Furthermore, 
to avoid confusion regarding the timing requirements set forth in the 
NPRM, Sec.  655.107(a)(2) of the Final Rule specifies that when the 
Department issues a notice or a request requiring a response by an 
employer, it will use means normally assuring next-day delivery, which 
may include e-mail and fax. It further specifies that an employer's 
response to such a notice or request will be considered to be filed 
with the Department on the date that it is sent to the Department, 
which may be established, for example, by a postmark.
    The trade association also pointed out that, although the language 
related to the nature of the employer's need included ``temporary,'' it 
did not also include ``seasonal.'' In addition, the association 
suggested the phrase ``assurances and obligations related to the 
recruitment of U.S. workers'' in proposed Sec.  655.107(a)(3) [new 
Sec.  655.107(b)] be clarified and recommended that if the language is 
intended to be construed broadly, the Department should include all of 
the required assurances and obligations to make this clear.
    The Department, as mentioned above, agrees this section of the NPRM 
was confusing and has accordingly clarified the regulatory text. The 
new Sec.  655.107 references the general criteria for certification 
that ensures the application will be evaluated for whether the employer 
has ``established the need for the agricultural services or labor to be 
performed on a temporary or seasonal basis; made all the assurances and 
met all the obligations required by Sec.  655.105, and/or, if an H-2ALC 
by Sec.  655.106; complied with the timeliness requirements in Sec.  
655.102; and complied with the recruitment obligations required by 
Sec.  655.102 and Sec.  655.103.'' By referencing back to these 
sections rather than enumerating the assurances and obligations in this 
provision, the Department both provides a clear frame of reference for 
the evaluation of obligations and also puts employers on notice of the 
review process.
    New language has been inserted in Sec.  655.107(a) in the Final 
Rule stating that ``[a]pplications requesting that zero job 
opportunities be certified for H-2A employment because the employer has 
been able to recruit a sufficient number

[[Page 77165]]

of U.S. workers must comply with other requirements for H-2A 
applications and must be supported by a recruitment report, in which 
case the application will be denied.'' The reasons for the insertion of 
this new language are explained below in the discussion of Sec.  
655.110(e) of the Final Rule.
(b) Proposed Section 655.107(a)(3), New Section 655.107(b) Notice of 
Deficiencies
    Several minor, non-substantive modifications were made to the 
language of the proposed provision for purposes of clarity and to 
conform it to changes made elsewhere in the Final Rule. One significant 
clarification was also added at Sec.  655.107(b)(2)(iv) of the Final 
Rule to specifically address the handling of applications initially 
rejected for failure to comply with the Final Rule's recruitment 
obligations. Some employer and trade association commenters noted that 
the structure of the processing procedures in the NPRM would have 
required an employer whose application was rejected for failing to 
recruit properly to begin the entire pre-filing recruitment sequence 
over again. As a result, approval of the re-filed application would 
have been substantially delayed by the minimum period specified that 
positive recruitment must be conducted in advance of the date of need 
(75 days in the NPRM, 60 days in the Final Rule).
    Recruitment is an essential part of the H-2A program, and is 
necessary for the Department to be able to certify that no qualified 
U.S. workers are able, willing, and available for the job opportunity, 
and that hiring H-2A workers would not adversely affect the wages and 
working conditions of U.S. workers similarly employed. Although the 
positive recruitment requirements will not be waived, the Department 
will allow re-recruitment to be conducted on an expedited schedule so 
that employers can secure H-2A workers in a timely fashion where no 
U.S. workers are available. Even with an expedited schedule, however, 
failure to properly recruit will inevitably delay approval of an 
application to at least some extent, and the Department encourages 
employers to be mindful of all of the recruitment requirements 
specified in the Final Rule.
(c) Proposed Section 655.107(a)(5), New Section 655.107(c) 
Modifications
    The proposed regulations retain the process for issuance of a 
Notice of Deficiency by the CO and the submission of a modified 
application by the employer. However, under the current regulations, 
applications are received, modified if required, and accepted prior to 
the employer's recruitment efforts. Under the proposed rule, 
recruitment will be conducted prior to submission of the application.
    A major trade association requested clarification on the effect a 
modification will have on the validity of the recruitment effort and 
recommended the regulations state that if an application is ultimately 
accepted, even after modification, any required modifications to the 
application will not invalidate any recruitment conducted based on the 
application as originally submitted. A professional association 
recommended that if an initial application contains a deficiency 
related to recruitment, the CO could require remedial recruitment 
efforts to be completed prior to the final determination and the 
remedial recruitment efforts and the date of need extended to 
accommodate the required recruitment efforts. This association believed 
such a process would be better than the issuance of a denial, which 
would require the employer to begin the process, including the pre-
filing recruitment, over again and, therefore, be unable to complete 
the process in time to meet the employer's actual date of need. As 
discussed above, the Department has clarified the effect of deficient 
recruitment in Sec.  655.107(b)(2)(iv) of the Final Rule. This revised 
procedure will allow modified applications to move forward after the 
application originally submitted is found to have deficient 
recruitment.
    The NPRM proposed to revise the current timeframe for an employer 
to submit a modification to the application from 5 calendar days to 5 
business days, and this change was supported by a major trade 
association. However, the association commented that 5 business days 
still is not sufficient time for an employer to decide whether to 
modify the application or submit a request for an expedited 
administrative judicial review. The association requested the timeframe 
for requesting an expedited review should be extended to 7 business 
days. The Department has decided to retain the requirement for 
submission of either a modification or a request for administrative 
review within 5 business days, as proposed, which will allow the 
Department to meet the timeframes for review that are established by 
statute. The Department believes that due to the time-sensitive nature 
of the H-2A program, the majority of employers also prefer a speedy 
timeline that ensures disputes and deficiencies are resolved as quickly 
as possible.
    The Department also deleted the word ``amendment'' from the 
regulatory text in this section to prevent confusion. Modifications and 
amendments are, in fact, different actions under this Rule and 
amendments are described in Sec.  655.107(d).
(d) Proposed Section 655.107(a)(6), New Section 655.107(d) Amendments
    The Department did not propose to change the requirements from the 
current regulation for amendments to an application seeking additional 
workers. An association of growers/producers requested that the 
requirement in proposed Sec.  655.107(a)(6)(i) limiting the increase in 
the number of workers to not more than 20 percent (or 50 percent for 
employers of fewer than 10 workers) be changed to allow employers of 
fewer than 10 workers to increase the number of workers in their 
initial application by up to 10 workers. A State government agency 
noted its agreement with retaining the current limitations.
    The Department has decided to retain the provisions from the NPRM 
regarding the number of workers that may be requested through 
amendments. Our experience indicates these limits are necessary to 
discourage employers from requesting a lower number of workers than 
actually needed and subsequently submitting an amendment to increase 
the number. Moreover, the exception for employers of 10 or fewer H-2A 
workers has not been changed, as interest in such a change was not 
widespread.
    In the NPRM the Department included new provisions relating to 
amendments to reflect the shift to an attestation-based process. A 
group of farmworker advocacy organizations commented that they believed 
the new language is weaker than the language in the current 
regulations. The organization objected to the deletion of language 
making explicit that labor certifications are subject to the conditions 
and assurances made during the application process and recommended this 
language be included. The Department did not deem this change 
necessary, as it is already clear from the text and structure of the 
Final Rule. The organization also recommended the language prohibiting 
changes to the benefits, wages, and working conditions as contained in 
the current regulation should be included in the new rule. The 
Department believes the language in the Final Rule specifying that in 
deciding whether to accept an amendment, the CO must ``take into 
account the effect(s) of a decision to approve on the adequacy of the 
underlying test of the domestic labor market for the job opportunity'' 
fulfills

[[Page 77166]]

this function. An amendment to effect a non-trivial increase in the 
offered wages, for example, would likely render the job more attractive 
to U.S. workers, and such an amendment would not be approved without 
new recruitment being conducted. However, the Final Rule clarifies that 
amendments should be approved by the CO ``if the CO determines the 
proposed amendment(s) are justified by a business reason and will not 
prevent the CO from making the labor certification determination 
required under Sec.  655.109.''
    Finally, the organization believed that the provision in proposed 
Sec.  655.107(a)(6) (now Sec.  655.107(d)(2)), which allows minor 
changes in the period of employment, and also requires an assurance 
that U.S. workers will be provided with housing and subsistence costs 
under certain circumstances when the season is delayed, does not go far 
enough because it does not address problems that H-2A workers might 
encounter related to housing, subsistence, lost work opportunities, and 
an employer's failure to meet its obligation under the three-fourths 
rule. The Department does not agree with this characterization. Both 
the DOL and DHS Final Rules allow for minor modifications in the period 
of employment that do not change any of the employer's responsibilities 
with respect to its workers. All of an employer's obligations, attested 
to in the original application, apply to any amendment thereto.
    A sentence was added to the Final Rule clarifying that the CO will 
transmit accepted amendments to SWAs, where necessary, so that posted 
job orders can be modified. A further sentence was added clarifying 
that the Department will review proposed amendments as quickly as 
possible, ``taking into account revised dates of need for work 
locations associated with the amendment.''
(e) Proposed Section 655.107(a)(7), New Section 655.107(e) Appeal 
Procedures
    Some minor, non-substantive changes were made to the language of 
this provision in the Final Rule for purposes of clarity and 
consistency. The language has also been modified to specify that ``the 
denial of a requested amendment under paragraph (d) of this section'' 
and ``a notice of denial issued under Sec.  655.109(e)'' do not 
constitute final agency action, and may be appealed pursuant to the 
procedures set forth in Sec.  655.115.
Section 655.108--Offered Wage Rate
    A number of commenters questioned the continued need for an adverse 
effect wage rate (AEWR). An association of growers commented that 
``there is no valid basis for setting an adverse effect wage rate, 
separate and distinct from the prevailing wage for the occupation in 
the area of intended employment, and requiring the payment of such a 
wage if it is higher than the prevailing wage.'' An association of 
growers commented that ``DOL's discussion in the preamble to the 
proposed regulation makes the case against an AEWR.'' Another grower's 
association doubts the Department's assertion ``in the preamble that 
the wages and working conditions of agricultural workers are depressed 
by the presence of a high proportion of illegal aliens.'' This 
organization further asserts that field and livestock workers' average 
wages have increased at a faster rate than those for non-farm workers. 
Other comments focused on an apparent inconsistency between the H-2A 
program and other temporary worker programs, none of which requires an 
AEWR in addition to a prevailing wage.
    Congress did not mandate the creation of an adverse effect wage 
rate for the H-2A program. Rather, Congress provided in sec. 
218(a)(1)(B) of the INA that before an employer is permitted to hire an 
H-2A worker, the Secretary of Labor must certify that the hiring of the 
H-2A worker ``will not adversely affect the wages and working 
conditions of workers in the United States similarly employed.'' This 
language is identical to the general labor certification language in 
sec. 212(a)(5)(A)(i) of the INA, which provides that ``[a]ny alien who 
seeks to enter the United States for the purpose of performing skilled 
or unskilled labor is inadmissible, unless the Secretary of Labor has 
determined'' that hiring that alien ``will not adversely affect the 
wages and working conditions of workers in the United States similarly 
employed.''
    For most of its temporary and permanent foreign worker programs, 
the Department applies the assumption that U.S. workers in the same 
occupation will be adequately protected from having their wages 
adversely affected by the hiring of foreign workers so long as the 
workers are paid prevailing wage rates. Congress itself has applied 
this assumption by statute with respect to the granting of labor 
certifications under the H-1B program. See Sections 212(n)(1)(A) and 
212(p) of the INA. For historical reasons, however, the Department 
established special ``adverse effect'' wage rates for the H-2A program. 
The Department comprehensively recounted the history of adverse effect 
wage rates in its last major rulemaking on the H-2A program in 1989. 54 
FR 28037, 28039-28041 (July 5, 1989).
    Adverse effect wage rates were established for the first time in 
1961 pursuant to an agreement with Mexico, which provided that the 
wages offered under the Bracero program could be no less than an 
adverse effect wage rate determined by the Secretary of Labor. The H-2 
program, which is the predecessor to the H-2A program, was initially 
created in 1952. H-2 workers were initially required to be paid only 
prevailing wage rates. Adverse effect wage rates were extended to the 
H-2 program for the first time, however, in 1963, as the Bracero 
program was being phased out. Two circumstances motivated the creation 
of these wage rates. First, the federal minimum wage had not yet been 
extended to agricultural workers. Second, concerns were raised that 
large numbers of foreign workers, many of whom were undocumented, had 
depressed wage rates in the agricultural sector. 54 FR 28041.
    Between 1963 and 1989, the Department applied a variety of 
methodologies to determine how adverse effect wage rates should be set. 
It is clear that the Department has always been motivated in setting 
adverse effect wage rates to counteract the potential impact on the 
wages of U.S. workers of the large numbers of foreign workers, 
particularly undocumented workers, in the agricultural sector. Id. The 
Department's comprehensive 1989 study of adverse effect wage rates came 
to several important conclusions, however. First, none of the 
methodologies employed by the Department ``ever has purported to add an 
enhancement'' to wage rates calculated by the United States Department 
of Agriculture (USDA). 54 FR 28040. Second, although some adverse 
effect wage rates did exceed the wage rates set by the USDA, that was 
``an unintended result of the application of the various methodologies 
used in the 1960s'' and ``cannot in any way be viewed as a measurement 
of the quantum of adverse effect.'' Id. Indeed, the Department 
concluded that some of its past methodologies for calculating adverse 
effect wage rates ``led to AEWRs which were higher than Statewide 
agricultural earning in some states and lower in others,'' a result 
that the Department labeled ``erratic.'' 54 FR 28041.
    The Department stated in 1989 that the adverse effect wage rate 
``is a `method of avoiding wage deflation.' '' 54 FR 28045, citing 
Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976). Thus, the 
Department performed a comprehensive study of the then-existing 
literature on agricultural wages

[[Page 77167]]

to determine whether wage depression in fact existed in the 
agricultural sector, and if so, what its likely sources were. The 
Department concluded that ``there is a tendency for illegal alien 
workers to adversely affect wage rates.'' 54 FR 28041. The Department 
relied in part on a General Accounting Office report finding that 
``illegal aliens do, in some cases, exert downward pressure on wages 
and working conditions with low-wage low-skilled jobs in certain labor 
markets.'' 54 FR 28042, quoting General Accounting Office, Illegal 
Aliens: Influence of Illegal Workers on Wages and Working Conditions of 
Legal Workers (GAO/PEMD-88-13BR) (March 1988). The Department also 
relied on a study published by the National Commission for Employment 
Policy, which found that ``[u]ndocumented workers do displace some 
native-born U.S. workers and do lower wages and working conditions in 
some occupations and geographical areas.'' 54 FR 28042, quoting 
National Commission for Employment Policy, Illegal Immigrants and 
Refugees--Their Economic Adaptation and Impact on Local U.S. Labor 
Markets: A Review of the Literature (October 1986). The Department also 
relied on a study conducted by Dr. Phillip L. Martin, Professor of 
Agricultural Economics, University of California at Davis, who 
concluded that ``[t]he removal of illegal alien workers should raise 
farm wages.'' 54 FR 28043, quoting Dr. Phillip L. Martin, IRCA and the 
U.S. Farm Labor Market (February 1988).
    There were, however, countervailing findings indicating that any 
adverse effects on agricultural wages caused by illegal alien workers 
at that time were ``minor and localized.'' 54 FR 28041. The Department 
noted that ``the only wage depression shown in agricultural employment 
in the GAO report appeared in two limited, localized studies of San 
Diego County, California, pole tomatoes and Ventura County, California, 
citrus,'' and that ``GAO itself noted that these studies were probably 
atypical.'' 54 FR 28042. The National Council for Employment Policy 
study found that ``[t]he evidence regarding the labor market impact of 
undocumented entrants is mixed and somewhat inconclusive.'' Id., 
quoting Illegal Immigrants and Refugees, supra. And Dr. Martin noted 
that ``the evidence of these possible wage-depressing effects of 
illegals is sparse.'' 54 FR 28043, quoting Martin, supra.
    The Department thus drew three significant conclusions in the 1989 
rulemaking. First, ``DOL views the data and literature as inconclusive 
on the issue of adverse effect or wage depression from the presence of 
illegal alien workers on the USDA data series.'' 54 FR 28043. Second, 
``[t]o the extent that there is some anecdotal evidence of wage 
depression from these sources, the evidence also suggests that the 
adverse effects are highly localized and concentrated in specific areas 
and crop activities.'' Id. Third, an ``explicit enhancement'' to 
agricultural wages can only be justified ``if the extent of the 
depression can be measured.'' Id.
    In 1989, the Department decided that, taking all of these 
considerations into account, ``setting the AEWR at the level of average 
agricultural wages, as determined by the USDA survey, is the correct 
approach.'' 54 FR 28043. The Department noted that the ``new 
methodology ties AEWRs directly to the average wage, as opposed to the 
old methodology which resulted in AEWRS substantially higher than 
agricultural earnings in many States, and lower for some States.'' 54 
FR 28038. The Department found that the use of an average wage rate as 
the adverse effect wage rate was particularly appropriate because 
``AEWRs, if set too high, might be a disincentive to the use of H-2A 
and U.S. workers, and could undermine efforts to eradicate the 
employment of illegal aliens.'' 54 FR 28044.
    Having determined to use average agricultural wage rates to set the 
H-2A program's adverse effect wage rates, the Department chose the USDA 
survey to measure average agricultural wage rates for two main reasons. 
First, the Department found that at that time the USDA survey of farm 
and livestock workers ``presents the best available data on hourly 
wages in the agricultural sector.'' 54 FR 28041. The Department noted 
in this regard that ``all crops and activities now covered by the H-2A 
program will be included in the survey data and the peak work periods 
also will be covered.'' Id. Second, although the Department had found 
that evidence concerning wage depression in the agricultural sector 
caused by undocumented workers was inconclusive, ``[t]o the extent the 
wage depression does exist on a concentrated local basis, the average 
agricultural wage does not appear to be significantly affected by wage 
depression. Further, none of the studies reviewed by DOL here 
quantifies or measured any wage depression that might exist in the USDA 
series.'' 54 FR 28043. Thus, although ``the evidence is not conclusive 
on the existence of past adverse effect,'' any adverse effect ``which 
might have occurred may not be reflected in the USDA data series.'' Id.
    The Department's decisions to use average agricultural wage rates 
to set the H-2A program's wage rates, and to use the USDA survey to 
measure average agricultural wage rates, were challenged but were 
upheld by the DC Circuit. AFL-CIO v. Dole, 923 F.2d 182 (DC Cir. 1991). 
The Court noted that there is no ``statutory requirement to adjust for 
past wage depression,'' and that in determining appropriate wage rates 
there is a ``range of reasonable methodological choices open to the 
Department.'' Id. at 187. The Court further noted that the Department 
had expressed that one of its objectives in adopting the new wage 
methodology was to avoid impeding ``IRCA's goal of replacing illegal 
aliens with documented foreign workers.'' Id. at 186. Where ``the data 
is inconclusive,'' the Department merely needs to ``identify the 
considerations it found persuasive in making its decision'' as to what 
methodology to apply. Id. at 187.
(a) Retaining the Adverse Effect Wage Rate
    Many commenters who opposed retaining the adverse effect wage rate 
seemed to believe that the AEWR is intended to be an enhanced wage 
rate, and that its existence must be predicated on the existence of 
wage depression in the agricultural sector. Both of those views were 
squarely rejected by the Department in the 1989 rulemaking, when the 
Department expressly declined to adopt any form of enhancement to the 
average agricultural hourly wage rate, and when it retained the adverse 
effect wage rate despite its finding that evidence of generalized wage 
depression in the agricultural sector was inconclusive.
    The Department is retaining the concept of the adverse effect wage 
rate, despite the fact that is adopting a methodology that will 
actually set AEWRs at prevailing wage rates, for three reasons. First, 
by definition, the adverse effect wage rate is the wage rate at which 
the wages of U.S. workers will not be adversely affected. The 
Department is firmly committed to the principle that the wage rates 
required by the H-2A program should ensure that the wages of U.S. 
workers will not be adversely affected by the hiring of H-2A workers, 
and therefore declines to jettison the ``adverse effect wage rate'' 
concept. Second, as is explained further below, the Department was 
guided in its choice of methodologies for determining prevailing wage 
rates, and in its ultimate selection of the Bureau of Labor Statistics 
(BLS) Occupational Employment Statistics (OES) survey, by its 
commitment to selecting the methodology that will best prevent an 
adverse effect on the wages of U.S.

[[Page 77168]]

workers. Thus, the adverse effect concept will continue to exert an 
important influence on the wage rates actually supplied by the H-2A 
program. Finally, Sec.  655.108(a) of the Final Rule requires employers 
to pay ``the highest of the AEWR in effect at the time recruitment for 
a position is begun, the prevailing hourly wage or piece rate, or the 
Federal or State minimum wage.'' The ``prevailing hourly wage rate'' 
referred to in this provision is defined to mean ``the hourly wage 
determined by the SWA to be prevailing in the area in accordance with 
State-based wage surveys.'' A similar formulation is used under the 
current rule. Retaining the phrase ``adverse effect wage rate'' to 
describe the wage level that is determined by the Department to be 
prevailing in accordance with Federal wage surveys will retain this 
traditional State/Federal distinction and avoid the confusion that 
might result from calling two different wage levels both the 
``prevailing'' wage rate.
(b) Evidence of Wage Depression at the National Level
    In 1989, the Department concluded that evidence of wage depression 
in the agricultural sector was inconclusive. 54 FR 28043. The 
Department noted that some studies had identified wage depression in 
specific agricultural labor markets, but labeled that evidence 
``anecdotal.'' Id. The Department further noted that even this 
anecdotal evidence of wage depression was ``highly localized and 
concentrated in specific areas and crop activities.'' Id.
    Evidence developed during the last 20 years has not added any 
additional clarity on the issue of wage depression. Some experts 
continue to claim that undocumented workers cause wage depression. See, 
e.g., Michael J. Wishnie, Prohibiting the Employment of Unauthorized 
Immigrants: The Experiment Fails, 2007 U.Chic.Leg. For. 193, 215 (2007) 
(``[T]his has almost certainly contributed to the depression of wages 
and working conditions for U.S. workers.''). One comment submitted by a 
group of farmworker advocacy organizations acknowledged that the impact 
of undocumented workers on wages at a broad national level ``is under 
dispute,'' but asserted that wage depression is clearly evident in the 
agricultural sector. This commenter did not provide any wage data 
supporting this assertion, however. Rather, the commenter relied on 
data indicating that undocumented workers are more prevalent in the 
agricultural sector than they are in most other sectors of the labor 
force. In fact, none of the comments that were submitted to the 
Department and none of the studies that the Department reviewed in 
response to those comments provided a methodology that would allow for 
the quantification of any agricultural wage depression that might 
exist.
    On the other hand, many experts assert that evidence indicating 
that undocumented workers cause wage depression remains mixed. For 
example, Jeffrey S. Passel of the Pew Hispanic Center recently stated 
that ``I don't know if there's anything in the data that clearly points 
one way or the other. At one level, it's a lot of people: 11.5 million 
to 12 million. But it's about one in 20 workers, so it's not a huge 
share of the labor market.'' The Immigration Debate: Its Impact on 
Wages, Workers, and Employers, in Knowledge@Wharton at p. 4 (May 17, 
2006). Bernard Anderson, who served as Assistant Secretary for the 
Employment Standards Administration during the Clinton Administration, 
has opined that with respect to the question of ``what impact there is 
on wages, economic status and employment for American workers * * * you 
get a clear divide in the economic literature. The evidence produced by 
economists who have studied this question is mixed.'' Id. See also 
several studies on the effects of immigration generally: Robert D. 
Emerson, Agricultural Labor Markets and Immigration at p. 57 (Choices, 
1st Quarter 2007) (``While some economists suggest that increased 
immigration has reduced wage rates for native-born, unskilled workers * 
* * most have found negative wage effects of increased immigration 
extremely difficult to demonstrate once all appropriate adjustments are 
made.''); Pia Orrenius, The Impact of Immigration, Commentary, The Wall 
Street Journal (April 25, 2006) (``[M]ost studies find immigrants have 
little effect on average wages.''); Gianmarco I.P. Ottaviao and 
Giovannit Peri, Rethinking the Gains from Immigration: Theory and 
Evidence from the U.S. at 28 (August 2005) (``It turns out empirically 
and theoretically that immigration, as we have known it during the 
nineties, had a sizeable beneficial effect on wages of U.S born 
workers.''). Several grower and employer groups commented that they do 
not believe there is reliable evidence of wage depression in the 
agricultural sector. They did not, however, provide any data or 
analysis of existing studies to support this assertion.
    The assertion of one group of farmworker advocacy organizations 
that the unusually high concentration of undocumented workers in the 
agricultural sector must necessarily result in a particularly 
depressive effect on the wages in that sector does not appear to be 
borne out by the facts. A study analyzing changes in the median weekly 
earnings for selected occupations between 1988 and 1999 found that 
median weekly earnings for ``farm occupations, except managerial'' had 
increased 21 percent between 1988 and 1993, and 20 percent between 1994 
and 1999, while median earnings for ``farm workers'' increased 22 
percent between 1988 and 1993, and 20 percent between 1994 and 1999. 
This compared favorably to increases in the median weekly earnings for 
all workers, which increased 20 percent between 1988 and 1993, and 18 
percent between 1994 and 1999, as well as to workers in many other 
specific low-wage occupational categories (cooks: 17 percent and 19 
percent; butchers: 13 percent and 22 percent; laundry and dry cleaning 
operators: 17 percent and 16 percent; sewing machine operators, 17 
percent and 19 percent). See Philip Martin, Guest Workers: New 
Solution, New Problem? at Table A3-4 (Pew Hispanic Center Study, March 
21, 2002). Although the Department assumes that it is true that 
undocumented workers are more prevalent in the agricultural sector than 
they are in many other sectors, the available data does not support the 
notion that they have had a disproportionately depressive impact on 
wages in the agricultural sector.
    In sum, after considering the comments received on the subject of 
wage depression, and after reviewing relevant literature in an attempt 
to identify empirical support for the assertions made in those 
comments, the Department reaffirms its conclusion in the 1989 
rulemaking that evidence of wage depression in the agricultural sector 
is inconclusive.
(c) Evidence of Wage Depression at the Local Level
    In the 1989 rulemaking, the Department found that ``[t]o the extent 
that there is some anecdotal evidence of wage depression * * *, the 
evidence also suggests that the adverse effects are highly localized 
and concentrated in specific areas and crop activities.'' The 
Department did not find that there was in fact wage depression in local 
markets, specific areas, or specific crop activities, but rather noted 
that the anecdotal evidence of wage depression that existed at that 
time was confined to those settings. The relevant facts concerning 
concentrations of illegal workers in specific local markets and crop 
activities have changed substantially in the intervening 20 years, 
however.

[[Page 77169]]

    A group of farmworker advocacy organizations commented that 
``[t]imes have changed since 1987.'' This group stated that 
undocumented workers in the agricultural sector are now ``spread 
throughout the nation.'' This group noted that ``undocumented workers 
now dominate in the agricultural sector'' and ``constitute a majority 
of the farmworkers in the United States.'' This group argued that the 
factual change in the prevalence of undocumented workers in the 
agricultural sector is so significant that ``DOL may not legally ignore 
[it].'' It further provided an impressive compilation of statistics 
from a variety of studies showing that undocumented workers are now 
pervasive in the agricultural sector, rather than a sparse or localized 
phenomenon. Specifically, the studies cited found that ``[i]n 
California, where 35 percent of the nation's farmworkers are employed, 
57 percent of farmworkers were undocumented as of 2003-05,'' that in 
Florida, ``50 percent of farmworkers were unauthorized immigrants [in 
2004] and the percentage was increasing,'' that ``[m]ore than 60 
percent of agricultural workers in Washington are believed to be 
undocumented,'' that ``in New York State approximately 70 percent of 
farmworkers are undocumented,'' and that ``45 percent of the Mountain 
region's farmworkers report they were working illegally in the U.S.''
    A variety of experts have similarly concluded that the presence of 
undocumented workers in the United States is now a widespread 
phenomenon rather than a localized one. A 2005 study by the Pew 
Hispanic Center found that ``since the mid-1990s, the most rapid growth 
in the immigrant population in general and the unauthorized population 
in particular has taken place in new settlement areas where the 
foreign-born had previously been a relatively small presence.'' Jeffrey 
S. Passel, Unauthorized Migrants: Numbers and Characteristics at p. 11 
(Pew Hispanic Center, June 14, 2005). ``The geographic diversification 
of the unauthorized population since 1990 is very evident * * * .'' Id. 
at p. 13. A 2006 study by the Department of Homeland Security reached a 
similar conclusion. See Michael Hoefer, Nancy Rytina, and Christopher 
Campbell, Estimates of the Unauthorized Immigrant Population Residing 
in the United States: January 2006 at p. 4 (Office of Immigration 
Statistics, August 2007) (``Growing geographic dispersion of the 
unauthorized immigrant population is reflected by an increase in the 
share of the population living in all other states.''). In many 
respects the growing dispersion of unauthorized workers is 
unsurprising, as the number of unauthorized workers in the United 
States has dramatically increased from an estimated 2.5 million in the 
late 1980s to an estimated 12 million or more today. See Passel, 
Unauthorized Migrants: Numbers and Characteristics at p. 10, supra; 
Hoefer et al. at p. 1, supra.
    Recent literature also suggests that, even if there are some areas 
in the agricultural sector in which particularly high concentrations of 
illegal immigrants remain, such concentrations may not adversely affect 
U.S. workers. Jeffrey S. Passel of the Pew Hispanic Center has noted 
that high concentrations of illegal workers in particular markets are 
generally correlated with lower local unemployment rates for native 
workers:

    The presence of illegals is not associated with higher 
unemployment among natives and it seems to me you would have to see 
that kind of thing for there to be true displacement in any sense. 
Geographically, it tends to be the reverse: Places with large 
numbers of illegals tend to have lower unemployment than places 
without illegals.

The Immigration Debate: Its Impact on Wages, Workers, and Employers, in 
Knowledge@Wharton at pp. 4-5 (May 17, 2006). And David Card concluded 
in a study analyzing the effects of immigration generally (rather the 
effects of unauthorized immigration in particular) on U.S. workers that 
``[a]lthough immigration has a strong effect on relative supplies of 
different skill groups, local labor market outcomes of low skilled 
[U.S.] natives are not much affected by the relative supply shocks.'' 
David Card, Is the New Immigration Really So Bad?, National Bureau of 
Economic Research (August 2005).
    The Department concludes that there is no conclusive evidence one 
way or the other regarding the existence of wage depression in 
localized agricultural labor markets. There is strong evidence that 
there has been a seismic shift in the demographics of the agricultural 
labor market in the United States since the Department's last 
rulemaking in 1989, and that undocumented workers have in the 
intervening years come to dominate that market throughout the United 
States. In light of the pervasive presence of undocumented workers in 
the agricultural sector today, it is substantially less likely than it 
was in 1989 that wage depression could uniquely be found in highly 
localized agricultural labor markets and specific crop activities. 
Moreover, even if pockets of unusually high concentrations of illegal 
workers continue to exist in some places in the agricultural sector, 
the evidence concerning the effect high concentrations of illegal 
workers have on the wages of U.S. workers itself remains equivocal.
(d) Inability To Measure Wage Depression
    None of the commenters and none of the literature reviewed by the 
Department suggested a reliable methodology for measuring any wage 
depression that may exist in the agricultural sector. Indeed, one group 
of farmworker advocacy organizations submitted an analysis prepared by 
a PhD economist from the University of California, Berkeley, that 
concluded that ``[g]iven the extremely large share of illegal 
immigrants working in agriculture, it is unknowable, absent them, how 
many U.S. workers would be willing to and at what price work in the 
agricultural sector.'' As the Department explained in 1989, ``an 
explicit enhancement could only be justified if alien agricultural 
employment has depressed average agricultural earnings, and if the 
extent of the depression can be measured at the aggregate level.'' 54 
FR 28043. With no conclusive evidence showing that wage depression 
exists in the agricultural sector, and with no reliable methodology to 
measure any wage depression that does exist, the Department declines to 
adopt an adverse effect wage rate that is deliberately set above market 
rates.
(e) The Impact of Undocumented Workers vs. Guest Workers on U.S. Worker 
Wages
    To the extent that wage depression may exist in the agricultural 
sector, the evidence does not indicate that it has been caused by the 
H-2A program. Rather, all of the information available to the 
Department strongly indicates that the presence of large numbers of 
illegal, undocumented workers in the agricultural sector poses a much 
greater potential threat to the wages of U.S. workers than guest 
workers do.
    The Department has reviewed anew the studies that it relied on in 
1989 when it issued the last rule governing the adverse effect wage 
rate. Virtually all of those studies focused on the effect that 
undocumented alien workers have on the wages of U.S. workers. See, 
e.g., National Commission for Employment Policy, supra (``Undocumented 
workers do displace some native-born U.S. workers and do lower wages 
and working conditions in some occupations and geographical areas.''); 
Martin, IRCA

[[Page 77170]]

and the U.S. Farm Labor Market, supra ( ``[t]he removal of illegal 
alien workers should raise farm wages.''). Indeed, the GAO study that 
was relied upon by the Department examined the impact of undocumented 
workers not just on the wages of U.S. citizen workers, but on all legal 
workers in the United States with low-wage, low-skilled jobs, including 
guest workers. See Illegal Aliens: Influence of Illegal Workers on 
Wages and Working Conditions of Legal Workers (GAO/PEMD-88-13BR) (March 
1988) (``illegal aliens do, in some cases, exert downward pressure on 
wages and working conditions with low-wage low-skilled jobs in certain 
labor markets.'').
    Other sources also support the notion that any threat that foreign 
workers may pose to the wages and working conditions of U.S. workers is 
primarily caused by direct competition from a large undocumented 
workforce within the United States. Illegal aliens may be willing to 
work for illegally low wages that are paid off the books, and may be 
reluctant to report an employer's violations of the labor and 
employment laws. A group of farmworker advocacy organizations submitted 
an analysis prepared by a PhD economist from the University of 
California, Berkeley, which stated that:

    There are other reasons that employers in the U.S. hire 
undocumented workers over U.S. workers. Undocumented workers--afraid 
of deportation--are perceived to be less demanding in terms of non-
pecuniary benefits and are less likely to form unions or make 
demands from employers, as well as accept pay below legal standards.

Senators from both political parties remarked upon this phenomenon 
during the recent immigration debates in Congress.\5\ As Senator 
Kennedy stated in May 2007,
---------------------------------------------------------------------------

    \5\ See e.g., 152 Cong. Rec. S9773 (2006) (statement of Senator 
Dianne Feinstein); 153 Cong. Rec. S441-S442 (2007) (statement of 
Senator Larry Craig); and 153 Cong. Rec. S6590 (2007) (statement of 
Senator Edward Kennedy).

    [W]e have, unfortunately, employers who--are prepared to exploit 
the current condition of undocumented workers in this country--
potentially, close to 12 [and] \1/2\ million are undocumented. 
Because they are undocumented, employers can have them in these 
kinds of conditions. If they don't like it, they tell them they will 
be reported to the immigration service and be deported. That is what 
is happening today.\6\
---------------------------------------------------------------------------

    \6\ 153 Cong. Rec. S6590 (2007).

The U.S. Supreme Court has also noted the threat that undocumented 
workers pose to the wages and working conditions of U.S. workers. See 
Sure-Tan v. NLRB, 467 U.S. 883, 892 (1984) (``acceptance by illegal 
aliens of jobs on substandard terms as to wages and working conditions 
can seriously depress wage scales and working conditions of citizens 
and legally admitted aliens * * *'').
    A group of farmworker advocacy organizations suggested that guest 
worker programs may also threaten the wages and working conditions of 
U.S. workers. These organizations primarily cited studies finding that 
between 1950 and 1964, the period of time during which the Bracero 
Program was operating, real wages for agricultural workers remained 
flat. Even if these studies are correct about the impact of the Bracero 
Program, however, the Department does not consider the Bracero Program 
to be representative of the impact of guest worker programs generally. 
The Bracero Program was notorious for rampant employer abuses and lack 
of government enforcement. See, e.g., Alma M. Garcia, The Mexican 
Americans at pp. 30-33 (2002). If employers are regularly able to get 
away with violating program requirements and paying sub-standard wages, 
such rogue activity may of course have a depressive effect on overall 
wage rates. H-2A program enforcement, however, is more rigorous than 
Bracero Program enforcement was, and is substantially aided by watchdog 
farmworker advocacy organizations that help to ensure that workers 
hired through the H-2A program are paid properly.
    The commenter cited only one other supposed example of wage 
depression caused by the H-2A program: The Florida sugar cane industry. 
The commenter noted that the sugar cane harvest in Florida was 
mechanized in the early 1990s, and that the industry therefore no 
longer uses substantial numbers of H-2A workers. The commenter 
asserted, however, that in the late 1980s and early 1990s, while H-2A 
workers were still being used, their presence depressed the wages of 
U.S. workers. As support for this proposition, the commenter cited 
statistics indicating that sugar cane producers that hired only U.S. 
workers paid their employees substantially more per hour than producers 
that hired H-2A workers. The Department does not consider this to be 
evidence of wage depression; if anything, the wage gap between U.S. 
workers and H-2A workers shows that the AEWR paid to H-2A sugar cane 
workers did not function as the maximum hourly rate that U.S. workers 
in the area could make. Rather, U.S. workers were able to secure jobs 
that paid substantially higher wages than H-2A workers. Economically 
speaking, that result is not at all surprising; employers generally 
should be willing to pay U.S. workers higher wages than the required 
wage rate for H-2A workers, since H-2A workers impose a number of 
additional costs on employers, including housing, transportation, and 
application fees, that make them relatively more expensive to employers 
than U.S. workers.
    Whatever effect guest workers may have on the wages of U.S. 
workers, however, there appears to be virtually unanimous agreement 
among the experts and commenters that undocumented workers have a 
greater impact and pose a greater threat. Indeed, the very same group 
of farmworker advocacy organizations that argued that guest worker 
programs have a depressive effect on wages submitted a PhD economist's 
analysis concluding that ``the H-2A program and the AEWR are severely 
undermined by the employment of hundreds of thousands of undocumented 
immigrant workers.'' The economist further opined that ``[f]irst and 
foremost, it is in the best interest of U.S. domestic and H-2A workers 
to mitigate the effects that such a large share of illegal workers has 
on wages and employment conditions in the agricultural industry.'' See 
also Peter Cappelli, The Immigration Debate: Its Impact on Wages, 
Workers, and Employers, in Knowledge@Wharton at p. 3 (May 17, 2006) 
(``While it is true that low-skill workers who enter the United States 
legally also exert downward pressure on wages, there is a significant 
difference between them and their undocumented counterparts.''). Of 
course, guest worker programs could, in the abstract, pose a 
significant threat to the wages of U.S. workers, if, for example, the 
required wage rate was set substantially below the prevailing market 
rates, or if enforcement of the required wage rates was so lax that 
substantially below-market wages were regularly paid. There is no 
indication, however, that those conditions currently exist in the H-2A 
program, nor does the Department have any intention of allowing them to 
occur under the Final Rule.
    Thus, the Department concludes that while evidence of wage 
depression in the agricultural sector remains inconclusive, it is quite 
clear that the most likely source of any wage depression that does 
exist is the hundreds of thousands of undocumented workers in the 
agricultural labor market.
(f) The Department's Decision To Use More Precise Adverse Effect Wage 
Rates
    Although evidence of actual wage depression in the agricultural 
sector is equivocal, the Department believes it is appropriate to 
select a wage-

[[Page 77171]]

determination methodology that will help to prophylactically guard 
against wage depression. As the Department noted in the NPRM, one of 
the most significant actions it can take to protect the wages and 
working conditions of U.S. workers is to render the H-2A program 
sufficiently functional that agricultural employers will hire H-2A 
workers, with all their accompanying legal protections, rather than 
hiring undocumented workers. The Department has concluded that this can 
best be achieved by setting adverse effect wage rates that (1) are not 
below the prevailing wages being earned by U.S. workers and (2) are not 
so far above local market rates that they encourage employers to hire 
undocumented workers instead. Achieving these objectives requires 
setting AEWRs that appropriately reflect market realities and labor 
costs.
    There are currently not nearly enough U.S. workers in the 
agricultural sector to perform all of the agricultural work that needs 
to be performed. When agricultural employers cannot find U.S. workers, 
they must of necessity turn to some other labor source. The H-2A 
program was created by Congress to be the alternate source of choice 
for agricultural labor. The program is clearly failing to fill the role 
envisioned for it, however, as approximately ten times more 
undocumented workers than H-2A workers are employed in the agricultural 
sector today. Agricultural employers may or may not realize that 
specific individuals they are hiring are in the United States 
illegally, but undocumented workers have clearly become the 
agricultural sector's alternate labor market of choice. The Department 
believes that the current methodology for determining adverse effect 
wage rates, which is not keyed to actual local labor market conditions, 
may be partly responsible for the program's failure.
    It is obvious that an AEWR that is set too low is likely to harm 
U.S. workers. It is no secret that foreign workers may be willing to 
work for wages that are lower, and often substantially lower, than 
wages that are typically paid to U.S. workers. Allowing foreign workers 
to work at substandard wages would likely harm U.S. agricultural 
workers by causing them to be displaced or by forcing them to accept 
lower wages to secure jobs. As will be discussed later, there is reason 
to believe that in some geographic areas and for some occupations, 
current AEWRs are set artificially low, resulting in an adverse effect 
on U.S. workers similarly employed. See Gerald Mayer, Temporary Farm 
Labor: The H-2A Program and the U.S. Department of Labor's Proposed 
Changes in the Adverse Effect Wage Rate (``CRS Report'') at 8 (CRS 
Report for Congress, November 6, 2008) (``Currently, the AEWR applies 
equally to all crop workers, livestock workers, and farm equipment 
operators in a region or state. However, within a region or state, 
[market] wages for the same occupation may vary because of differences 
in the cost of living or in the relative supply of or demand for 
workers.'').
    Conversely, an AEWR that is artificially set too high can also 
result in harm to U.S. workers. If the AEWR is set so high that it does 
not reflect actual local labor market conditions, many agricultural 
employers may be priced out of participating in the H-2A program. When 
employers cannot find U.S. workers, and also cannot afford H-2A workers 
because they are required to pay them above-market wage rates, some 
will inevitably end up hiring undocumented workers instead.
    The resulting influx of undocumented foreign workers into the 
agricultural sector threatens to erode the earnings and employment 
opportunities of U.S. workers in agricultural occupations. U.S. workers 
may have a difficult time fairly competing against undocumented 
workers, who may accept work at below-market wages, are viewed by 
employers as less troublesome and less likely to assert their rights, 
and are cheaper to employ than H-2A workers because they do not require 
the additional payment of H-2A program costs such as transportation and 
housing. Although the threat of legal sanctions and attendant risks of 
work disruption will constrain some employers from knowingly employing 
undocumented workers,\7\ the greater the gap between the true market 
rate for farm labor and the total cost to employers of H-2A workers, 
including artificially inflated wage rates plus all other attendant H-
2A program costs, the greater the likelihood that employers will forego 
using the H-2A program and will instead risk hiring undocumented 
foreign labor. The undocumented foreign workers whose hiring is 
incentivized when AEWRs are artificially set too high lack the legally 
enforced protections and benefits that the H-2A program provides, 
further threatening to degrade U.S. workers' working conditions.
---------------------------------------------------------------------------

    \7\ Some commenters noted that the Department's discussion of 
this point in the NPRM preamble appeared to suggest that the 
Department believed agricultural employers intentionally set out to 
hire illegal workers. The Department did not intend to suggest such 
motives. As noted above, many illegal workers in the U.S. possess 
documentation indicating they are legally authorized to work and all 
employers (not just those in agriculture) are required by current 
law to accept at face value documentation that appears valid.
---------------------------------------------------------------------------

    The Department was concerned about precisely this phenomenon in the 
1989 rulemaking. The Department presciently observed that ``AEWRs, if 
set too high, might be a disincentive to the use of H-2A and U.S. 
workers, and could undermine efforts to eradicate the employment of 
illegal aliens.'' 54 FR 28044. The Department's choice of the USDA 
average agricultural wage to set AEWRs at the time was predicated on 
the assumption ``that IRCA will achieve its states purpose of removing 
illegal aliens from the labor force. * * * Agricultural employers who 
have employed illegal alien workers in the past then must fill their 
labor needs with U.S. workers * * * or with H-2A workers.'' Id. IRCA 
did not, of course, succeed in eradicating the employment of illegal 
aliens in the agricultural sector, a fact that the Department must now 
take into account in determining what wage-setting methodology is most 
appropriate.
    As noted above, there is demand for hundreds of thousands of 
agricultural workers beyond what the domestic labor market is able to 
supply. If any wage depression does currently exist in the agricultural 
sector, the presence of a large number of undocumented workers is the 
most likely cause. Replacing the hundreds of thousands of undocumented 
agricultural workers currently employed in the U.S. either with U.S. 
workers or with H-2A program workers who are paid a legally required 
wage would substantially help to protect U.S. workers from adverse 
effects caused by the undocumented work force. For this reason, the 
Department believes that it should select a methodology for setting 
adverse effect wage rates that is as precise and refined as possible.
    A group of farmworker advocacy organizations commented that rather 
than adopt a wage-setting methodology that may reduce required wage 
rates in some areas, the government should get rid of undocumented 
workers by more vigorously enforcing the immigration laws. Primary 
enforcement responsibility in these areas is entrusted to DHS and the 
Department of Justice. The Department notes, however, that during the 
last several years the federal government has in fact embarked upon 
unprecedented efforts to enforce the immigration laws, both at the 
border and in the interior. In fact, this rulemaking effort is part of 
a comprehensive 26-point immigration reform plan that was announced by 
the present Administration in August 2007.

[[Page 77172]]

See Fact Sheet: Improving Border Security and Immigration Within 
Existing Law, http://www.whitehouse.gov/news/releases/2007/08/20070810.html (August 10, 2007). This rulemaking is designed to work in 
tandem with those enforcement efforts. The Department does not believe 
that it is necessary to choose between a functional H-2A program and 
effective immigration enforcement; we can and should have both, as 
having both will maximize protections for U.S. workers.
    The same commenter argued that if agricultural employers 
substantially hiked their wage rates, U.S. workers would re-enter the 
agricultural labor market to secure the higher wages, thus 
substantially reducing the need to resort to foreign labor in the 
agricultural sector. Although the Department assumes that substantially 
higher agricultural wages would indeed induce some reentry by U.S. 
workers into the agricultural labor market, the commenter did not 
provide any data suggesting what level of wage increases would be 
required to make such a re-entry phenomenon substantial, or whether 
agricultural employers could remain competitive if required to pay 
those wages. As the Department noted in 1989, there is an upper ceiling 
to how much U.S. agricultural employers can even theoretically afford 
to pay in labor costs, as they must ultimately compete not only with 
other U.S. producers, but also ``with foreign imports.'' 54 FR 28044. 
The Department believes that it is also relevant that U.S. workers have 
steadily left the agricultural sector over the last two decades, 
despite the fact that agricultural wages have increased during that 
time, suggesting that factors other than wages may be causing many U.S. 
workers to view agricultural jobs as undesirable.
    Finally, the same commenter argued that the Department's rationale 
effectively calls for a continuous lowering of agricultural wage rates, 
because in this commenter's view (1) the Department's real objective is 
to lower wage rates and (2) the only way to actually replace 
undocumented workers with H-2A workers is to set adverse effect wage 
rates at the level of wages that undocumented workers are willing to 
accept. As an initial matter, the commenter misunderstands the 
Department's objective. The Department seeks to ensure that AEWRs are 
precisely tailored to the conditions of specific agricultural 
occupations in specific labor markets. Although it is true that the 
Department's preamble analysis in both the NPRM and the Final Rule 
explains in detail how artificially high AEWRs can hurt U.S. workers, 
that does not reflect any belief on the part of the Department that all 
AEWRs are currently artificially high and that they therefore should 
all be lowered. In fact, the Department's preamble analysis also 
explains how AEWRs that are set too low hurt U.S. workers. The 
Department seeks to avoid both effects by adopting a more precise 
methodology. Because the USDA survey that is currently used is an 
average wage rate that is set across broad, typically multi-state 
regions, the actual wages of individual labor markets within the USDA 
regions are necessarily in some instances above, and in some instances 
below, the USDA average. In fact, the statistics provided by this 
commenter show that even according to the commenter's calculations, the 
average BLS OES wage for crop workers is higher than the average USDA 
wage for field workers in several States, including three of the ten 
biggest H-2A using States (Louisiana, New York, and Virginia). A recent 
report of the Congressional Research found that even OES Level I wages 
are higher than the current AEWR for some occupations in some 
geographic areas. CRS Report at 13-17.
    The Department also rejects the notion that the only way to replace 
undocumented workers with U.S. workers and H-2A workers is to lower 
AEWRs to the levels that undocumented workers are willing to accept. 
That might be true if agricultural employers viewed U.S. workers, H-2A 
workers, and undocumented workers as completely fungible, but they do 
not. Many employer and grower association commenters emphatically 
stated that they want to comply with the law, and that in fact they 
would generally prefer to hire U.S. workers over H-2A workers or 
undocumented workers if U.S. workers were available. Moreover, 
agricultural employers who even unknowingly hire undocumented workers 
risk losing their labor force part way through the season due to an 
immigration raid, and those who knowingly hire undocumented workers 
risk criminal penalties. These risks are particularly pronounced today 
because of the government's recent highly publicized increased worksite 
immigration enforcement efforts. For all of these reasons, agricultural 
employers are generally willing to pay substantially more to hire a 
U.S. worker or an H-2A worker than they are to hire an undocumented 
worker. This observation is borne out by actual data showing that 
undocumented workers typically make less than U.S. workers and H-2A 
workers do.
    After reviewing the comments received, the Department continues to 
believe that precise tailoring of H-2A wages to local labor market 
conditions is the most critical factor in preventing an adverse effect 
on the wages of U.S. workers. For example, a single national AEWR 
applicable to all agricultural jobs in all geographic locations would 
prove to be below market rates in some areas and above market rates in 
other areas. If the AEWR in any given area does not reflect market 
wages, it will either harm U.S. workers directly by artificially 
lowering wages, or it will harm U.S. workers indirectly by providing an 
incentive for employers to hire undocumented workers. AEWRs covering 
large multi-state regions suffer from similar flaws. In an agricultural 
sector where prevailing labor conditions make the need for precision in 
AEWR determinations paramount, it is essential that a methodology be 
adopted that allows for as great a degree of geographic refinement as 
possible. Improving the geographic precision of the AEWR is essential 
to ensuring that the AEWR meets its statutory objective.
    The Department is aware that its rationale for establishing 
precise, localized wage rates is quite different than the rationale 
that motivated it in 1989 to establish aggregated, regional wage 
rates.\8\ That decision was reached under very different factual 
circumstances, however. In 1989, the Department found that there was no 
conclusive evidence of generalized wage depression in the agricultural 
sector, but noted that there was some anecdotal evidence suggesting 
that wages in particular local labor markets might be depressed. The 
Department chose at that time to use USDA data to set AEWRs largely 
because it believed that USDA's aggregation of wage data at broad 
regional levels would immunize the survey from the effects of any 
localized wage depression that might exist. 54 FR 28043. As discussed 
above, however, undocumented workers are substantially more dispersed 
throughout the agricultural sector today than they were in 1989. Not 
only are undocumented workers no longer confined to particularized 
local labor markets, but recent studies have also called into question 
whether the concentration of undocumented workers in particular labor 
markets actually causes localized wage depression.
---------------------------------------------------------------------------

    \8\ The Department's underlying motivation--to protect the wages 
and working conditions of U.S. workers--remains the same.
---------------------------------------------------------------------------

    In light of these developments, the one key advantage the 
Department believed in 1989 was afforded by the USDA survey's broadly 
aggregated data--its ability to avoid localized wage

[[Page 77173]]

depression effects--has been substantially diminished. On the other 
hand, the fact that undocumented workers have come to dominate the 
agricultural labor force in the intervening years has rendered the 
imprecision of USDA wage data vis-[agrave]-vis local labor market 
conditions a substantial drawback that may sometimes actually encourage 
employers to hire undocumented workers. In fact, the Department 
expressed concern in the 1989 rulemaking that precisely this phenomenon 
might develop, stating that ``AEWRs, if set too high, might be a 
disincentive to the use of H-2A workers and U.S. workers, and could 
undermine efforts to eradicate the employment of illegal aliens.'' 54 
FR 28044. Many commenters argued that the large numbers of undocumented 
workers in the agricultural sector adversely affects U.S. workers. 
After weighing all of these considerations, the Department has 
determined that under the present factual circumstances, the advantages 
of tailoring AEWRs to better reflect the actual wages earned by 
specific occupational categories in specific local labor markets 
outweigh the potential disadvantages.
(g) The Department's Decision To Use the Occupational Employment 
Statistics Survey
    Having determined that the Department can best safeguard the wages 
and working conditions of U.S. workers from adverse effect by 
encouraging employers to replace undocumented workers with either U.S. 
workers or H-2A workers, and having further determined that tailoring 
AEWRs to local labor market conditions is the best way to foster this 
replacement process, the Department made two independent decisions. 
First, the Department decided to use the BLS OES survey to set AEWRs, 
rather than the USDA Farm Labor Survey (FLS). Second, the Department 
decided to attain further precision in setting AEWRs by breaking the 
OES wage rates down into four different skill levels, rather than using 
a single average OES wage rate for each agricultural occupation. While 
the Department viewed the ability to break OES data into four separate 
skill levels as an advantage of that survey, its decision to use the 
OES survey to set AEWRs was not dependent on this feature.
    The FLS and the OES survey are the leading candidates among 
agricultural wage surveys potentially available to the Department to 
set AEWRs. Neither survey is perfect. In fact, both surveys have 
significant shortcomings. On balance, however, the Department has 
concluded that in light of the current prevalence of undocumented 
workers in the agricultural labor market, AEWRs derived from OES survey 
data will be more reflective of actual market wages than FLS data, and 
thus will best protect the wages and working conditions of U.S. workers 
from adverse effects.
    The present methodology for settings AEWRs, which was established 
by the 1989 final rule, calculates regional AEWRs based on the previous 
year's annual combined average hourly wage rate for field and livestock 
workers in each of 15 multi-state regions and 3 stand-alone States, as 
compiled by the USDA quarterly FLS Reports. The aggregation of a widely 
diverse national agricultural landscape into just 15 regions (and 3 
stand-alone states) results in extremely broad generalizations that 
fail to account for specific market conditions at the local level. Wage 
data collected at each individual State and even substate level would 
be more appropriate for purposes of computing an accurate, sub-regional 
AEWR that reflects local market conditions. Indeed, market-based wage 
survey data at the State or substate level is the standard for 
calculating comparison wages in other temporary worker programs 
administered by the Department, including the H-2B program that is the 
non-agricultural counterpart of H-2A and the H-1B specialty occupation 
worker program.\9\
---------------------------------------------------------------------------

    \9\ Calculation of the applicable wage by a SWA using the OES 
survey is, in fact, a ``safe harbor'' providing presumption of 
correctness in the H-1B labor condition application. 20 CFR 
655.731(a)(2)(ii)(A)(3).
---------------------------------------------------------------------------

    The Department's reliance on USDA FLS data creates several problems 
for functional program administration. The USDA quarterly FLS does not 
provide refined wage data by occupations or geographic locale. 
Additionally, the USDA FLS does not account at all for different skill 
levels required by agriculture occupations. Moreover, the wage levels 
reported in the USDA FLS are skewed by the inclusion of wages that are 
paid to many agricultural occupations that are not typically filled by 
H-2A workers, such as inspectors, animal breeding technicians, and 
trained animal handlers.
    The accuracy of AEWRs based on the USDA FLS is further diminished 
because the FLS is not based on reported hourly wage rates. Instead, 
USDA's FLS asks employers to report total gross wages and total hours 
worked for all hired workers for the two reference weeks of the survey. 
Based on this limited information, the survey constructs annual average 
wages for the broad general categories of field workers and livestock 
workers. The AEWR is then calculated by combining the average of the 
annual wage for field workers and the average annual wage for livestock 
workers into one annual wage rate covering both of those general 
occupational categories. The survey thus determines the hourly AEWR 
based not on reported hourly wages, but rather on the basis of the 
numerator (total gross wages for the combined occupations) and 
denominator (total hours for the combined occupations) derived from the 
information supplied by employers.
    Moreover, the USDA FLS is administered and funded through USDA, 
giving the Department no direct control over its design and 
implementation. USDA could terminate the survey at any time and leave 
the Department without the basic data, problematic as it is, used to 
calculate the AEWR. In fact, USDA announced that it would suspend the 
survey in February 2007 due to budget constraints. Ultimately, USDA 
resumed the survey in May 2007. The possibility that USDA may suspend 
the survey at some point in the future adds a measure of instability 
and uncertainty for AEWR determinations in future years. USDA's control 
over the survey also prevents the Department from making improvements 
to it that could help to correct its shortcomings and set more market-
reflective AEWRs.
    In 1989, the Department determined that the USDA survey was the 
best available ``barometer'' for measuring farm wages on a nationwide 
basis. In the succeeding years, however, the Department has gained vast 
knowledge and experience in applying wage data that simply did not 
exist in 1989. The OES wage survey is among the largest on-going 
statistical survey programs of the Federal Government. The OES program 
surveys approximately 200,000 establishments every 6 months, and over 3 
years collects the full sample of 1.2 million establishments. The OES 
program collects occupational employment and wage data in every State 
in the U.S. and the data are published annually. The OES wage data is 
already utilized by the Department for determining comparison wages in 
other temporary worker programs and has proven to be an accurate, 
statistically valid, and successful wage reference. In 1989, when the 
Department established the current AEWR methodology, the OES program 
was not well developed and thus was not an effective alternative for 
the USDA Labor Survey. In the intervening nearly 20 years the OES 
program has in several respects

[[Page 77174]]

surpassed the USDA Labor Survey as a source for agricultural wage data.
    Farm labor comprises a number of occupations and skills, and both 
the demand for and supply of farm workers with a particular skill or 
experience level varies significantly across geographic areas. The farm 
labor market is not a monolithic entity, but rather is a matrix of 
markets across a spectrum of occupations, skill or experience levels, 
and local areas. Effectively protecting U.S. workers from unfair 
competition by undocumented workers by setting an AEWR that is neither 
too high nor too low requires that the AEWR be specifically tailored to 
the local labor markets, and must take into account such factors as 
specific occupation, skill or experience, and geographic location. The 
Department thus strongly values the geographic and occupational 
precision of the OES estimates as well as the ability to establish four 
wage-level benchmarks commonly associated with the concepts of 
experience, skill, responsibility, and difficulty within a given 
occupation. These features are unique to the OES survey, and it is in 
part for this reason that the survey is also used in other foreign 
worker programs administered by the Department, including the H-1B and 
H-2B programs.
    The Department acknowledges that OES agricultural wage data is far 
from perfect. Perhaps most significantly, as several opposed commenters 
pointed out, ``BLS OES data do not include wages paid by farms.'' 
Rather, ``[t]he OES focuses on establishments that support farm 
production, rather than engage in farm production, and many of these 
establishments are farm labor contractors.'' These commenters argued 
that ``[t]he employees of such non-farm establishments constitute a 
minority of the overall agricultural labor supply and are not 
representative of the farm labor supply.'' They argued that this effect 
is exacerbated by the fact that ``BLS OES results are obtained by using 
the results of a separate BLS survey, the National Compensation Survey 
(NCS),'' which ``does not survey any agricultural establishments.''
    The Department is confident in the quality of the agricultural 
workers wage estimates calculated using the OES survey, even with its 
lack of direct coverage of agricultural establishments. As noted by one 
major farm association, ``the OES's agricultural wage information is 
based on data collected from farm labor suppliers, individuals who 
specialize in finding, pricing, and placing agricultural workers with 
local farm employers.'' Indeed, workers provided by farm labor 
suppliers are for most agriculture employers the closest substitute for 
H-2A workers; both represent an alternate labor source to which an 
agricultural employer can turn if it is unable to locate a sufficient 
numbers of U.S. workers through its own direct recruiting efforts.
    Moreover, as one group of farmworker advocacy organizations noted, 
the USDA FLS shows that ``[a]gricultural service employees on farms and 
ranches made up * * * about 30 percent of hired workers.'' Such workers 
appear to be spread across virtually all geographical areas and crop 
activities, and 30 percent is certainly a statistically valid sample 
size. Nonetheless, the Department recognizes that it is reasonable to 
consider the survey's nonfarm scope to be a shortcoming, and the 
Department will work with BLS to expand the coverage of the OES to 
include agricultural establishments, in keeping with recommendations 
from various commenters, including such disparate entities as growers' 
associations and state workforce agencies. One significant advantage of 
the BLS OES is that because it is within the control of the Department, 
it can be refined and improved over time with the specific needs of the 
H-2A program in mind.
    One opposed commenter argued that the high concentration of FLCs in 
the OES survey data will necessarily lead to depressed AEWRs, because 
FLCs employ disproportionately high concentrations of undocumented 
workers and typically pay their employees low wages. If this assertion 
was true, one would expect that average OES wage rates for crop workers 
would always be below, and in many cases substantially below, the 
average FLS wage rates. The data presented by this commenter, however, 
show that this is not the case. According to that data, the average OES 
crop worker wage rates in many States (although not in a majority of 
States) are actually higher than average FLS field worker wage rates, 
including Idaho (12.16 percent higher), Louisiana (13.3 percent 
higher), New York (6.73 percent higher), Washington (5.78 percent), and 
Virginia (5.45 percent higher). Louisiana, New York, and Virginia are 
all in the top ten States among H-2A users. Unsurprisingly, because OES 
data is more refined than FLS data, it produces wage rates that are 
higher than FLS wage rates in some places, and lower than FLS wage 
rates in other places. For example, a recent CRS Report found that FLS 
data ``may overestimate the wages of crop workers and underestimate the 
wages of livestock workers and farm equipment operators.'' CRS Report 
at 16. Because the OES survey disaggregates this wage data, it would be 
expected that moving from the FLS to the OES survey for the calculation 
of AEWRs would result in crop worker wage rates going down in some 
places, and livestock and farm equipment operator wages going up in 
some places. In fact, this is precisely the effect that the CRS Report 
concluded was likely to occur. Id. at 15-17.
    The data simply does not support the picture painted by the 
commenter of an OES survey producing wage rates that are uniformly low 
and severely depressed. Although the Department assumes that it is true 
that the wages paid to unauthorized workers are reflected in some OES 
data, see CRS Report at 18 (``In labor markets with a large 
concentration of unauthorized farmworkers, wage data from the OES 
survey may, to some extent, reflect the wages paid to unauthorized 
workers.''), that is undoubtedly true of FLS data as well. The PhD 
economist's analysis submitted by one commenter, for example, found 
that ``[a] second limitation regarding the FLS is that undocumented 
workers are no doubt in the survey and their wage is used in the 
calculation of AEWRs.'' This does not provide a sound basis for 
choosing between the two surveys.
    Some commenters questioned the statistical reliability of OES wage 
estimates for detailed geographic areas, noting that more detailed 
areas have reduced samples and high relative standard errors. The 
Department's Foreign Labor Certification Data Center takes data quality 
into account when updating its Online Wage Library and adjusts the 
geographic areas used to derive wage estimates as needed to ensure data 
reliability. A ``GeoLevel'' variable indicates the kind of adjustment, 
if any, that has been made:

    If the data used to calculate the wage estimate came from the 
actual metropolitan statistical area (MSA) or balance of state (BOS) 
area the GeoLevel code will equal ``1.''
    If there were no releasable estimates for the desired area then 
the wages are for the area indicated plus its contiguous areas. This 
is signified by a GeoLevel ``2.''
    If there were no releasable estimates for the area, or for the 
area plus contiguous areas the wage is calculated from statewide 
data, indicated by a GeoLevel equaling ``3.''
    Finally, if there is no releasable estimate for the state, the 
national average is used. This is indicated by GeoLevel ``4.''

The application of these statistically sound methodologies takes into 
account the fact that wage data in some local labor markets is limited, 
and provides the best wage rate approximations available. No wage 
survey is perfect. The OES accounts for those places

[[Page 77175]]

where data is limited by borrowing aggregate data to produce the best 
local wage rate approximation possible. The OES surely is not always 
precisely correct as to the going wage rates for every occupation in 
every geographic locale, but its statistically sound methodology will 
on the whole produce wage rates that are far more refined and accurate 
than the broad, region-based FLS.
    One commenter considered the Department's criticism of the multi-
state nature of the USDA surveys to be misplaced: ``[w]hile 
agricultural labor markets for seasonal, labor-intensive crops have a 
local component, an interstate character to these markets emerges in 
the presence of migratory workers that move from State-to-State and 
crop-to-crop.'' The commenter went on to note that ``Broad regional 
wage standards are appropriate in this context, where more localized 
rates might unfairly disadvantage workers employed in areas with only a 
small number of potential employers, who can collude to keep wages 
low.'' Even if the commenter's view about an interstate market for 
wages of migratory workers were correct, however, the current structure 
of the AEWR offers no support for the argument that the USDA survey 
should be retained. The FLS's regional divisions bear virtually no 
resemblance to any traditional interstate agricultural markets or 
traditional migratory work patterns or flows. Wage estimates from the 
OES are well suited to capture substate wage differences such that the 
Department may tailor H-2A certification decisions and required wage 
rates to reflect local labor market conditions.
    A group of farmworker advocacy organizations criticized the 
Department for failing to provide a better explanation of how AEWRs 
will be calculated using OES data. The calculation of OES wage rates is 
no great mystery, as OES wage rates are currently used for both the H-
1B and H-2B programs. A recent CRS report explains how wage rates are 
determined using FLS and OES survey data. See CRS Report at 3-10. The 
underlying statistical methodologies for determining OES wage rates 
are, of course, quite complex. Nevertheless, the Department will 
attempt to distill the process for determining wage rates using both 
the FLS and the OES survey here:
    The FLS surveys between 11,000 and 13,000 farms and ranches each 
quarter on multiple subjects, including the number of hired farm 
workers, the gross wages paid to workers, and their total hours worked. 
Only farms and ranches with value of sales of $1,000 or more are within 
the scope of the survey. ``Hired farm workers'' are defined as 
``anyone, other than an agricultural service worker, who was paid for 
at least one hour of agricultural work on a farm or ranch.'' The survey 
seeks data on four types of hired workers: field workers, livestock 
workers, supervisors, and other workers.
    USDA, through the National Association of State Departments of 
Agriculture, uses four collection methods for the FLS: mail, CATI 
(computer-assisted telephone interviews), personal visits (for larger 
operations), and online (only about 2 percent of respondents). The FLS 
sample is distributed across the entire country; however, the 
geographic detail covers just 15 multi-state regions and 3 stand alone 
states and thus is much more limited than the OES survey. The table 
below lists the sample size by region.

   Quarterly Farm Labor Sample Size, by Region, 2008-09 \1\ (October,
                         January, and April) \2\
------------------------------------------------------------------------
                            Region                               Sample
------------------------------------------------------------------------
Northeast I..................................................        570
Northeast II.................................................        498
Appalachian I................................................        546
Appalachian II...............................................        654
Southeast....................................................        588
Florida......................................................        604
Lake.........................................................        846
Corn Belt I..................................................        840
Corn Belt II.................................................        672
Delta........................................................        534
Northern Plains..............................................        846
Southern Plains..............................................        960
Mountain I...................................................        354
Mountain II..................................................        309
Mountain III.................................................        263
Pacific......................................................        526
California...................................................      1,329
Hawaii.......................................................        404
U.S..........................................................    11,343
------------------------------------------------------------------------
\1\ Includes Ag Services for CA and FL
\2\ July sample is approximately 13,000 at U.S. level.
Source: National Agricultural Statistics Service, USDA.

    USDA calculates and publishes average wage rates for four 
categories of workers each quarter. Wage rates are not calculated and 
published for supervisors or other workers, but just for field workers, 
livestock workers, field and livestock workers combined, and total 
hired workers. Within the FLS, the ``wage rates,'' or average hourly 
wage, by category are defined as the ratio of gross wages to total 
hours worked. To the extent workers receive overtime or other types of 
incentive pay, the average wage rate would exceed the workers actual 
wage rate. Because the ratio of gross pay to hours worked may be 
greater than a workers' actual wage rate, other statistics agencies, 
such as BLS, refer to the ratio as ``average hourly earnings,'' and not 
as hourly wages or wage rate.
    The FLS-derived wage rate estimate for the four categories is 
published quarterly, and annual averages are published as well. With 
wage information on just two agricultural occupation categories, the 
FLS has very little occupational detail relative to OES. The FLS also 
calculates average wage rates in two other categories by combining the 
average wages of other types of workers. The Department uses the 
regional annual average for the category ``field and livestock workers 
combined'' as the annual AEWR for each state within a given geographic 
region.
    In contrast, the OES survey directly collects a wage rate (within 
given intervals) by occupations defined by the Office of Management and 
Budget's (OMB) occupational classification system, the Standard 
Occupational Classification (SOC) system code. Specifically, ``wages 
for the OES survey are straight-time, gross pay, exclusive of premium 
pay. Base rate, cost-of-living allowances, guaranteed pay, hazardous-
duty pay, incentive pay including commissions and production bonuses, 
tips, and on-call pay are included. Excluded is back pay, jury duty 
pay, overtime pay, severance pay, shift differentials, nonproduction 
bonuses, employer cost for supplementary benefits, and tuition 
reimbursements.''
    The OES survey collects occupational employment and wage data by 
means of a matrix in which employers report the number of employees in 
an occupation and in a given wage range. The wage intervals used for 
the May 2007 estimates are as follows:

------------------------------------------------------------------------
            Interval                 Hourly wages        Annual wages
------------------------------------------------------------------------
Range A.........................  Under $7.50.......  Under $15,600
Range B.........................  $7.50 to $9.49....  $15,600 to $19,759
Range C.........................  $9.50 to $11.99...  $19,760 to $24,959

[[Page 77176]]

 
Range D.........................  $12.00 to $15.24..  $24,960 to $31,719
Range E.........................  $15.25 to $19.24..  $31,720 to $40,039
Range F.........................  $19.25 to $24.49..  $40,040 to $50,959
Range G.........................  $24.50 to $30.99..  $50,960 to $64,479
Range H.........................  $31.00 to $39.24..  $64,480 to $81,639
Range I.........................  $39.25 to $49.74..  $81,640 to
                                                       $103,749
Range J.........................  $49.75 to $63.24..  $103,480 to
                                                       $131,559
Range K.........................  $63.25 to $79.99..  $131,560 to
                                                       $166,399
Range L.........................  $80.00 and over...  $166,400 and over
------------------------------------------------------------------------

The mean hourly wage rate for all workers in any given wage interval 
cannot be computed using grouped data collected by the OES survey. 
Instead, the mean hourly wage rate for each of the 12 intervals is 
calculated using data from BLS's National Compensation Survey (NCS). 
Although smaller than the OES survey in terms of sample size, the NCS 
program, unlike OES, collects individual wage data.
    Once the mean hourly wage rates for the 12 intervals are 
determined, the mean hourly wage rate for a given occupation is 
calculated. It is defined as:

    Total weighted wages that all workers in the occupation earn in 
an hour/ total weighted survey employment of the occupation.

Because the OES wage data are collected in intervals (grouped), it does 
not capture the exact wage of each worker. Therefore, some components 
of the wage variance are approximated using factors developed from NCS 
data. A Taylor Series Linearization technique is used to develop a 
variance estimator appropriate for OES mean wage estimates. The primary 
component of the mean wage variance, which accounts for the variability 
of the observed OES sample data, is estimated using the standard 
estimator of variance for a ratio estimate. Within each wage interval, 
there are also three types of variance estimated from the NCS. They 
represent the variability of the wage value imputed to each worker; the 
variability of wages across establishments; and the variability of 
wages within establishments. In short, the estimates of OES relative 
standard errors for wages take into account the sampling error 
associated with OES components of the wage estimator and also error 
associated with the NCS components of the estimator that are used for 
the mean wages for each interval.
    The Department hopes this explanation helps.
    Some commenters critiqued the OES survey as not being as timely as 
the FLS. A group of farmworker advocacy organizations claims that ``OES 
is out of date and harms U.S. workers.'' It is true that the lag 
between the survey reference period and data publication can be greater 
for OES than for FLS. But such lag simply reflects the greater scope of 
the OES survey, which collects detailed employment and wage data from 
approximately 200,000 establishments every six months. The rolling 
three-year sample used in OES reduces year-to-year volatility in the 
wage estimates, and as a result, it is highly unlikely that the one-
year period between the reference period and data publication would 
result in substantively different wage estimates if the lag were 
reduced.
    One commenter considered it problematic that the OES reference 
months are May and November, which they said ``may not be the best 
approach if one is interested in farm workers.'' This commenter's 
presumption appears to be that farm workers on payrolls in some other 
unspecified months may have higher wages than those during the OES 
reference months. The Department did not identify any evidence, 
however, to support this hypothesis. The criticism could be equally 
applied to the reference months used in the USDA FLS. Available data 
indicates that virtually all workers are paid a constant minimum hourly 
rate during their tenure and are not paid different rates in different 
months. Estimates from the FLS do not show a clear cyclical pattern in 
wage rates, suggesting that there is little seasonal variation at an 
aggregate level.
    The Department has considered these comments and re-examined the 
wage surveys. Taking into account the pros and cons of both surveys, 
the Department concludes that the advantages to the OES survey make it 
the best data source available for determining applicable wages in the 
H-2A program. In fact, a recent CRS Report found that the Department's 
proposal to use the OES survey to calculate AEWRs would likely have 
precisely the effect the Department intends it to. The report concluded 
that ``[u]nder the proposed rule, the AEWR should more closely reflect 
the wages of farmworkers in local labor markets.'' CRS Report at 18. 
Furthermore, in those local labor markets where AEWRs are currently 
above true market rates, and the Final Rule's new wage-setting 
methodology therefore results in lower AEWRs, ``the rule should create 
an incentive for employers to hire more H-2A, as opposed to 
unauthorized, workers.'' Id. at 13. While the full impact of the new 
wage-setting methodology cannot be forecast with precision, id. at 18, 
the Department on the whole believes that these predicted changes will 
better protect the wages and working conditions of U.S. workers.
    Therefore, the Final Rule adopts the NPRM's proposal to institute 
an alternative methodology for determining the AEWR that will more 
accurately measure market-based wages by occupation, skill level, and 
geographic location. A more accurate and refined AEWR methodology will 
produce an AEWR that more closely approximates actual market 
conditions, which will, in turn, help protect the wages and working 
conditions of U.S. workers. Under the Final Rule, the Department will 
utilize the BLS OES data instead of USDA FLS data.
(h) The Department's Decision To Set Wages for Four Skill Levels
    Independent of its decision to use the OES survey to set AEWRs, the 
Department has decided to take advantage of the OES data feature that 
allows wage levels for each occupational category in each geographic 
locale to be set at four skill levels. The Department made this 
decision for a variety of legal and policy reasons.
    First, the Department believes that it is required by statute to 
supply wages at the four separate skill levels. Section 212(p)(4) of 
the INA states that ``[w]here the Secretary of Labor uses, or makes 
available to employers, a governmental survey to determine the 
prevailing wage, such survey shall provide at least 4 levels of wages 
commensurate with experience, education, and the level of 
supervision.'' Although this provision was enacted in the context of H-
1B

[[Page 77177]]

reform, it is the only paragraph in Section 212(p) that does not 
reference any specific immigration programs to which it applies, and 
there is no legislative history indicating that it was meant to apply 
only to the H-1B program. Although OES data is being used in this 
particular instance to set AEWRs, the provision on its face still seems 
to apply, since the OES is ``a governmental survey to determine the 
prevailing wage,'' and since the Department has decided to set AEWRs at 
prevailing wage rates. Thus, the Department believes that it is bound 
by Section 212(p)(4) to offer four wage levels.
    Second, even if the Department were not legally required by Section 
212(p)(4), the provision does represent a congressionally approved 
method for setting prevailing wage rates. The Department uses four wage 
levels both in the H-1B program, which is limited to skilled workers, 
and the H-2B program, which primarily serves low-skilled jobs. The 
Department is thus familiar with the administration of a four-level 
wage system, and believes that its use in these other programs has 
proved successful.
    Finally, the use of four wage levels that are roughly tied to 
skills and experience will add further precision to the AEWRs, thus 
serving the Department's above-discussed objectives. Although the four 
wage levels are determined arithmetically rather than by surveying the 
actual skill levels of workers, the resulting wage rates reflect the 
Department's experience that within occupational categories, workers 
that are more skilled and more experienced tend to earn higher wages 
than those that are less skilled and less experienced. This is 
apparently Congress's experience as well, as it has expressly approved 
the use of four wage levels when setting prevailing wages.
    The CRS Report on the Department's proposal, for example, found 
that the Level I wage for agricultural equipment operators is above the 
current AEWR in many areas, and that the Level III and Level IV wages 
for agricultural equipment operators were generally much higher. CRS 
Report at 17. The Department believes that more highly skilled and 
experienced agricultural equipment operators generally are paid higher 
wages than novice ones, and the wage scale that will be used by the 
Department thus seems fully appropriate. Indeed, if the Department 
failed to set higher adverse effect wage rates jobs requiring greater 
skills and experience, U.S. workers capable of performing such jobs 
might find their ``true market'' wages undercut by employers' ability 
to fill the jobs with H-2A workers making merely average wages.
    A group of farmworker advocacy organizations, as well as many other 
commenters, argued that allowing employers to pay wage rates that are 
below the average for an occupational category will necessarily 
adversely affect U.S. workers. The purpose of the four-tier wage 
system, however, is to generate the best approximation possible of the 
actual prevailing wage rate for jobs requiring various levels of 
experience or skill. When the required wage rates are accurate, they do 
not represent a below-average wage rate, but rather represent the wage 
rate that is prevailing for that particular kind of job. Using a single 
average wage rate for all jobs performed within a particular 
occupational category ignores the fact that certain jobs require higher 
levels of experience and skill, and may adversely affect U.S. workers 
who are capable of performing such jobs. It is also worth noting that 
Congress has directed that, when determining prevailing wage rates, the 
Department should ``provide at least 4 levels of wages commensurate 
with experience, education, and the level of supervision.'' Although 
this Final Rule is actually changing the methodology for determining 
adverse effect wage rates, the Department's determination to set AEWRs 
at locally prevailing wage rates makes it fully appropriate to borrow 
Congress's prescribed prevailing wage rate methodology.
    The same commenter objected that the ``proposed methodology for the 
wage levels is purely an arithmetical formula'' and ``does not relate 
to skills or experience in agriculture.'' It is true, as the Department 
has already noted, that the skills-based wage levels are not determined 
by surveying the actual skill level of workers, but rather by applying 
an arithmetic formula. Congress has explicitly endorsed the use of such 
an arithmetic approach, however: ``Where an existing government survey 
has only 2 levels, 2 intermediate levels may be created by dividing by 
3, the difference between the 2 levels offered, adding the quotient 
thus obtained to the first level and subtracting that quotient from the 
last level.'' INA sec. 212(p)(4). No methodology for determining 
prevailing wage rates will be perfect, but this methodology is 
currently used in both the H-1B and the H-2B programs. Moreover, the 
recent CRS Report that studied the Department's proposal in detail did 
not conclude that use of the congressionally created arithmetic formula 
is particularly problematic.
    The same commenter argued that the use of four wage levels would be 
too complicated for the Department to administer. This comment ignores 
the fact that the Department already administers a four wage level 
system for the H-1B and H-2B programs.
    For purposes of clarity, and in response to comments questioning 
the application of a four-tiered wage system, the Department has 
inserted text into the Final Rule specifying how the four H-2A wage 
levels will be applied. The inserted language is substantially similar 
to existing provisions establishing the four skill levels for the H-1B 
and H-2B programs, which most commenters assumed would apply. The four 
skill levels will afford the Department and employers using the H-2A 
program the same opportunity that is available under other similar 
programs administered by the Department to more closely associate the 
level of skill required for the job opportunity. This skill level 
precision complements the geographic and occupational specificity of 
the OES wage estimates. The Department considers the lack of such 
precision to be a shortcoming of the current AEWR.
    There also appeared to be some confusion among some of the 
commenters who believe the NPRM language allows an employer to choose 
the level and the wage survey and propose its ``offered wage rate'' to 
the NPC for approval. That is not the case. After reviewing the 
employer's request for a wage rate, including job description and skill 
level, the Department will compare the AEWR, state and federal minimum 
wage, and piece rate to determine the highest wage applicable to the 
job opportunity described in the employer's request. The Department 
will assign the appropriate wage (the offered wage rate) to the 
employer's job opportunity and that wage must be utilized in recruiting 
for the position.
(i) Other Considerations Affecting the Department's Decision
    Although the changes in wage rates that will result from the 
Department's decision presumably will make local AEWRs more reflective 
of actual local labor market conditions, to counteract the potential 
for wage reductions in some areas, the Department has decided to retain 
in the Final Rule the NPRM's proposal to use the future (effective July 
24, 2009) FLSA minimum wage of $7.25 as the floor for any OES-derived 
AEWR. This basic wage floor will provide a fundamental protection to 
both foreign temporary workers and U.S. workers that will ensure that 
AEWRs cannot be

[[Page 77178]]

lower than the new federal minimum wage even though that wage will not 
be legally required until 2009.
    Moreover, even in those instances where the use of OES data may 
result in lower AEWRs for H-2A workers in the short term as compared to 
the current AEWR methodology, the Department is confident that the 
wages and working conditions of U.S. workers will be protected because 
the total costs of hiring H-2A workers are higher than the hourly AEWR 
alone reflects, and employers focus not only on wages when making 
hiring decisions, but on a workers' total cost.\10\ The program 
requirement that employers pay for H-2A workers' transportation and 
lodging, as well as the administrative expense of filing H-2A 
applications with several different Government agencies, add 
substantial additional costs to the employment of H-2A workers. The 
additional costs beyond wages associated with utilization of foreign 
labor under the H-2A program are an important consideration that 
provides significant protection for U.S. workers.\11\ It is expected 
that U.S. workers in similar occupations, with similar skills and 
working in the same locality, would likely be able to command higher 
hourly wages than H-2A workers and at least equivalent benefits because 
the additional cost considerations associated with utilization of the 
H-2A program provide an economic incentive for employers to seek out 
and hire U.S. workers instead of H-2A workers.\12\ And of course, U.S. 
workers also have the protection of the rule requiring agricultural 
employers to first attempt to recruit U.S. workers before they can 
employ H-2A workers.\13\
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    \10\ See CRS Report at 18.
    \11\ One commenter pointed out that H-2A workers are also 
relatively cheaper than U.S. workers in some respects, because 
employers do not have to pay Social Security or unemployment 
insurance taxes for H-2A workers. On the whole, however, the 
substantial costs to house and transport H-2A workers, together with 
the not insignificant costs of the application process, 
substantially exceeds these savings, making H-2A workers on the 
whole more expensive to employ than U.S. workers who are being paid 
the same wage rates.
    \12\ U.S. workers hired in response to recruitment required by 
the H-2A program are entitled to at least the same benefits received 
as those received by H-2A workers.
    \13\ A group of farm worker advocacy organizations argued that 
the AEWR becomes the effective maximum wage for U.S. workers. 
Available data does not support this assertion, however. Indeed, 
this same commenter stated that a Pennsylvania tomato farmer paid 
his workers $16.59 an hour on average, even though the 2008 AEWR in 
Pennsylvania is only $9.70.
---------------------------------------------------------------------------

    A group of farmworker advocacy organizations commented that many 
employers use piece rates abusively and in a manner that undermines the 
AEWR. Of course, as the commenter acknowledges, piece rates cannot in 
and of themselves lead to the payment of sub-standard wages, since 
Sec.  655.104(l)(2)(i) requires an employer to supplement a piece-rate 
worker's effective hourly rate of pay to the level of the applicable 
AEWR if the pay would otherwise be less. This commenter argued that 
many employers avoid the obligation to supplement by deliberately 
underreporting the number of hours worked by piece-rate workers during 
a pay period. Such fraud is already clearly prohibited by the Final 
Rule, however. The commenter also argued that piece rates are abusive 
because they ``induce workers to higher levels of productivity'' by 
providing ``the opportunity to earn more than the worker would earn on 
an hourly rate.'' The Department does not consider the opportunity to 
earn average hourly wages that are higher than the AEWR through more 
industrious work to be abusive; it is an opportunity to earn higher 
pay, nothing more.\14\ If the worker fails to earn enough under the 
offered piece rate to meet the applicable AEWR, the worker is not 
penalized for it; to the contrary, as mentioned previously, under such 
circumstances the worker's pay is required to be supplemented to the 
level of the AEWR. Of course, if the worker was in fact penalized by 
the employer in some way for failing to accomplish enough piece rate 
work, the penalty would effectively convert the piece rate into a 
productivity standard. Such productivity standards are policed through 
Sec.  655.104(l)(2)(ii) and (iii) of the Final Rule, however, which 
require that piece rates be no less than the piece rates prevailing and 
that productivity standards be normal, meaning that productivity 
standards may not be unusual for workers performing the same activity 
in the area of intended employment.
---------------------------------------------------------------------------

    \14\ The Department notes that the same opportunity to earn 
average hourly rates of pay that are above the AEWR must under the 
Final Rule be offered to U.S. workers before it can be offered to H-
2A workers.
---------------------------------------------------------------------------

    For the reasons discussed above with respect to Sec.  655.105(g) of 
the Final Rule, the Department has inserted language in this section 
specifying that employers are required to adhere for the duration of a 
work contract to the AEWR rate that is in effect at the time 
recruitment for a position is begun. Newly published AEWRs shall not 
apply to ongoing contracts, but only to new contracts the recruitment 
for which is begun after the publication of the new AEWR. The 
Department has also added a new Sec.  655.108(h) specifying that 
employers are required to retain NPC wage determinations for a period 
of three years, which is consistent with the general record keeping 
provisions of the Final Rule. Other changes to the text of this section 
in the Final Rule are non-substantive and were made for purposes of 
clarity.
Section 655.109--Labor Certification Determinations
(a) Section 655.109(b)--Timeframes for Determination
    The Department did not propose any changes to the requirement that 
it issue a determination on an application no later than 30 calendar 
days before the date of need. An individual employer suggested that 
certifications should be issued 60 to 90 days before the employer's 
date of need rather than the 30 days currently required. A State 
government representative suggested the CO should be required to issue 
the determination by the earlier of 15 days after receipt of a complete 
application or 30 days before the date of need to allow USCIS and the 
State Department more time to process a petition. A professional 
association suggested no more than 40 days and no less than 30 days 
before the date of need for issuance of the final determination. An 
association of growers/producers recommended the timeframes should be 
simplified and standardized to encourage grower participation. 
Specifically, it recommended the pre-filing recruitment be conducted 90 
days prior to the date of need and approval occur no later than 45 days 
prior to the date of need.
    The requirement that, if an application is timely filed, complete 
and approvable, or is modified to be approvable within the statutory 
timeframes, the Department issue a certification no later than 30 days 
prior to the date of need, is statutory and cannot be changed by 
regulation. While employers can file earlier in anticipation of their 
date of need, statutory limitations prevent the Department from 
requiring employers to file any more than 45 days before their date of 
need. The Department believes the adjustments made to recruitment and 
filing timeframes adequately address the issue of filing times. 
Employers are encouraged to file as early as possible and to take care 
that their submitted applications are complete to minimize potential 
delays.

[[Page 77179]]

(b) Section 655.109(b)--Criteria for Determination
    The Department included a provision in the NPRM to outline the 
criteria upon which a determination is made. As commenters noted, 
however, the criteria stated in this provision were redundant of other 
provisions in the regulation. The Department has accordingly revised 
this provision to eliminate unnecessary duplication within the rule, 
which could have caused confusion among program applicants.
(1) Labor Disputes--Sec.  655.109(b)(4)(i)
    Two associations of growers commented on the certification criteria 
in proposed Sec.  655.109(b)(4)(i). These commenters stated that labor 
disputes in agricultural employment are not covered by the National 
Labor Relations Act and, therefore, there is no official process for 
determining the existence of a labor dispute. The proposed language in 
Sec.  655.109(b)(4)(i) of the NPRM was intended to replicate the 
language in the current regulations at Sec.  655.103(a), which examines 
whether the ``specific'' job opportunity for which the employer is 
requesting H-2A certification is vacant because ``the former occupant'' 
is on strike or being locked out in the course of a labor dispute. That 
provision was carefully crafted to bar only certification of the single 
job opportunity vacated by each particular worker who went on strike or 
was locked out, and not all jobs requested to be certified. However, 
proposed Sec.  655.109(b)(4)(i) was in conflict with proposed Sec.  
655.105(c). The Department has removed the language in Sec.  655.109 of 
the NPRM regarding labor disputes because of the redundancy and overlap 
with the labor dispute provision in Sec.  655.105. As explained in the 
discussion of Sec.  655.105(c), the Department has also reverted in 
Sec.  655.105(c) to the language concerning labor disputes that is 
found in the current regulations. The Department believes these changes 
adequately address the comments on this provision.
(2) Job Opportunity--Sec.  655.109(b)(4)(vi)
    A professional association commented that the job requirements, 
combinations of duties, or other factors that may make a specific 
application unique should be acceptable if justified by business 
necessity. This association asserted that nothing in the INA requires 
that a specific employer perform any job in exactly the same way as 
other employers perform the job. An association of growers/producers 
agreed and also pointed out that under the proposed provisions a grower 
using technology not yet considered normal practice could be denied H-
2A workers due to its job requirements and/or combination of duties.
    As is explained above in the discussion of Sec.  655.104(b), the 
Department agrees that, as a general matter, employers are in a far 
better position than the Department to assess what job duties workers 
at a particular establishment in a particular area can reasonably be 
required to perform. The Department has therefore altered Sec.  
655.104(b) to conform more closely to the language of the statute, and 
has limited its application to job qualifications. Where a listed job 
duty serves as a de facto job qualification because the listed duty 
requires skills or experience that agricultural workers do not 
typically possess, however, the Department reserves the right under 
Sec.  655.104(b) to treat the listed job duty as a job qualification, 
and to apply the ``normal'' and ``accepted'' standard that is set forth 
in the statute and recapitulated in the regulations in determining 
whether the qualification is appropriate. Because Sec.  655.104(b) of 
the Final Rule contains the Final Rule's restrictions on job duties and 
job qualifications, Sec.  655.109(b)(4)(vi) of the NPRM has been 
eliminated as redundant.
(3) Extrinsic Evidence
    A group of farmworker advocacy organizations suggested the 
regulation should be clear that the CO can consider extrinsic evidence 
in making a final determination. The organization believed the CO 
should be able to deny certification to an employer who has engaged in 
violations of employment-related laws whether or not there has been a 
final finding to that effect and whether or not the employer has 
previously participated in the H-2A program. The commenter also 
suggested that if the CO has reason to doubt the accuracy of any of the 
attestations or assurances, the CO should have the authority to request 
additional information and the authority to deny the certification. In 
the same vein, the commenter recommended the regulations should include 
a process by which the CO will receive and consider supplemental 
information from SWAs, workers and others.
    The Department does not agree that adding explicit language to 
provide the CO with authority to consider extrinsic evidence is 
necessary. The Final Rule allows for certification to be based solely 
on the criteria outlined in Sec.  655.107(a). Adding a process for the 
provision of extrinsic evidence would create an adversary process for 
the granting of a benefit, with COs at a loss as to how to evaluate 
such evidence in the context of the application and unable to evaluate 
its authenticity, particularly in light of the tight statutory 
timeframes given to the Department to adjudicate applications. Workers 
who are affected by an agricultural clearance order have a complete 
process in 20 CFR Part 658, subpart E (incorporated by reference in 
Sec.  655.116) through which to submit and obtain resolution of their 
complaints. Anyone having information bearing upon an H-2A employer may 
avail themselves of the protections contained within these regulations 
and all other mechanisms, such as filing a complaint with WHD. 
Following these procedures will ensure that the Department receives the 
information in a way in which it can be most useful.
(c) Section 655.109(d)--Accepting Referrals of U.S. Workers
    A large association of agricultural employers suggested that the 
proposed regulations and the Final Determination letter should clarify 
that the obligation to continue to accept referrals of eligible U.S. 
workers continues only until the employer has accepted the number of 
referrals of eligible U.S. workers equal to the number job openings on 
the Application for Temporary Employment Certification. The Department 
agrees with this statement and has included new language to that effect 
in Sec.  655.109(d). The Department has also modified the provision to 
conform to the Final Rule's new definition of the ``end of the 
recruitment period'' that is set forth in Sec.  655.102(f)(3).
(d) Section 655.109(e)--Denial Letters
    A major trade association pointed out the proposed regulation at 
Sec.  655.109(e) states that if the certification is denied the Final 
Determination letter will state ``the reasons the application is not 
accepted for consideration.'' The association commented it was their 
presumption this language was used inadvertently but asked for 
clarification if its use was intentional. The Department's use of the 
language ``not accepted for consideration'' was, in fact, inadvertent. 
Section 655.109(e) has now been revised to read: ``the reasons 
certification is denied.'' The Final Rule also clarifies that the 
Department will send determination letters to employers ``by means 
normally assuring next-day delivery,'' which may include e-mail or fax.

[[Page 77180]]

(e) Sections 655.109(e), (f), and (g)--Appeal Process for Denied and 
Partial Certifications
    The proposed regulation did not explicitly reference appeal 
procedures in either the Denied Certification (Sec.  655.109(e)) or 
Partial Certification (Sec.  655.109(f)) provisions. Although the 
proposed ``Administrative review and de novo hearing'' procedures 
(Sec.  655.115) do reference a decision by the CO to deny, a major 
trade association commented that the regulation should be clarified by 
specifying the appeal procedures in Sec.  655.109. The Department 
appreciates this comment and has inserted text in paragraphs 
655.109(e), 655.109(f), and 655.109(g) stating that the final 
determination letter will provide the procedures for appeal in either 
situation. Employers should be aware that, if a partial certification 
is received, only the period of need or the availability of U.S. 
workers are at issue and thus subject to appeal.
(f) Partial Certifications--Sec.  655.109(f)
    The proposed regulations contained a provision at Sec.  655.109(f) 
for partial certifications. The provision stated that ``the CO may, in 
his/her discretion, and to ensure compliance with all regulatory 
requirements, issue a partial certification, reducing either the period 
of need or the number of H-2A workers being requested or both for 
certification, based upon information the CO receives in the course of 
processing the temporary labor certification application, an audit, or 
otherwise.'' Although the current regulations at Sec.  655.106(b)(1) do 
not contain the phrase ``partial certification,'' they do provide that 
the Administrator/OFLC shall grant the temporary agricultural labor 
certification request ``for enough H-2A workers to fill the employer's 
job opportunities for which U.S. workers are not available.'' A 
farmworker/community advocacy organization voiced its concern that the 
deletion of the language in the current regulation and the addition of 
language providing for discretionary partial certifications violates 
the statutory precondition for certification that the employer not have 
U.S. workers available to fill its job opportunities. This organization 
expressed the opinion that the new language would allow employers to 
import more foreign labor than they actually needed.
    The Department has retained the provision regarding partial 
certifications, with one modification. The Department believes that the 
language describing partial certifications provides more clarity 
regarding the process of obtaining a certification where the Department 
determines that fewer workers than were originally requested in the 
application are required. A lack of available U.S. workers is a 
necessary precondition to filing an application. Allowing a partial 
certification covers situations where the employer recruited for a need 
of X workers, finds sufficient workers to meet only a part of its need, 
and thus still needs X workers minus the number of workers successfully 
recruited. An employer who finds sufficient workers to meet its entire 
need cannot, by statute and this pre-filing recruitment model, receive 
a certification. The Department retains the authority to reduce the 
number of positions requested in the event the information contained in 
the application demonstrates an availability of workers who were 
eligible and applied for the position. Since a partial certification is 
issued by subtracting the number of available workers from the total 
number of workers requested, the Department does not believe this 
provision will allow employers to import more workers than they 
actually need. To make it clear that the deduction of able, willing, 
qualified, and available U.S. workers is non-discretionary, the 
Department has added language to the provision stating that ``[t]he 
number of workers certified shall be reduced by one for each referred 
U.S. worker who is qualified, able, available, and willing.''
    A major trade association commented that the proposed provision has 
no counterpart in the existing regulations and that the Department 
articulates no rationale for why such a provision is necessary or how 
it will ensure compliance. The association recommended the provision be 
deleted from the final regulations. The association also expressed 
concern that there was no due process for an employer whose application 
was arbitrarily changed. This association believed the CO should issue 
a Notice of Deficiency, require the submission of a modification and 
offer an appeal process.
    As explained above, the ability to issue a partial certification is 
necessary where the Department receives an application with respect to 
which eligible and qualified U.S. workers have been or are subsequently 
successfully recruited prior to certification. A modification process 
is one option the Department considered to address such a situation, 
but given the likely time frame of filing by employers, a modification 
would often not be possible. In response to the comment regarding an 
appeal process, the Department has added language regarding appeal 
provisions to this provision in the Final Rule.
(g) Proposed Sec.  655.109(g), New Sec.  655.109(h)--Fees for Certified 
Applications
    The Department proposed the following new fee structure: an 
application fee of $200 for each employer receiving a temporary 
agricultural labor certification plus $100 for each H-2A worker 
certified; an application fee of $200 for each employer-member of a 
joint employer association receiving a certification plus $100 for each 
H-2A worker certified for that employer-member; and a processing fee of 
$100 for any amendments accepted for processing plus $100 for each 
additional H-2A worker certified. The proposal did not set a cap on the 
amount of fees to be charged as provided in the current regulations. 
The Department received numerous comments about the proposed fees. Many 
of the commenters acknowledged that an increase was warranted but 
strongly objected to the amount of the increase. Several commenters 
requested a justification for the amount of the increase and further 
detail regarding the activities and related costs involved in 
processing since the Department stated in the preamble to the proposed 
rule that it was updating the fees to align with ``the reasonable costs 
of processing'' H-2A applications, as authorized by the INA. Also in 
this context, commenters questioned why the fees would increase to such 
an extent since the Department was proposing to improve and increase 
access to the H-2A program. One association of growers/producers 
recommended that the Department determine a more reasonable processing 
fee and explore adding to those revenues from another source rather 
than seeking to recover processing costs through processing fees. A 
State government agency suggested that fees should be used to fund 
program costs incurred by the SWA instead of being deposited in the 
Treasury. Another commenter asserted that under the Treaty of Guadalupe 
Hidalgo, the application and processing of the application for H-2A 
temporary workers who are Mexican citizens must be free of charge and, 
therefore, employers seeking to employ such nonimmigrant workers should 
not be charged processing fees.
    A number of associations of growers/producers, a trade association, 
and several individual employers commented that the increased fees 
would add to the cost of an already

[[Page 77181]]

expensive program and, if the application process is to become more 
efficient as proposed, believed a fee increase would be 
counterproductive. Some commenters stated the increase in fees, when 
coupled with other increased costs, could drive farmers out of business 
or dissuade many from participating in the program at all. Another 
association of growers/producers suggested the fee structure should 
take into consideration all of the fees growers must pay and suggested 
a fair compromise would be to reduce the fees for farmers using H-2A 
workers, ask workers to pay for costs incurred in traveling to the U.S. 
port of entry closest to the employer, and require the employer to bear 
the costs from the point of entry to the farm. A trade association also 
commented that many growers utilize workers for a short period only and 
that they believed under the proposed regulations a grower's cost for 
10 H-2A workers would increase to $10,000 in application fees and the 
total cost could rise to almost $20,000 before any revenue would be 
gained through harvesting of the crop.
    Several commenters offered specific suggestions for setting the fee 
amounts. One association of growers/producers suggested that any 
increase in fees should be tied to the cost of inflation or the 
consumer price index and not related to the cost of processing. A 
United States Senator and others stated a doubling of the fees would be 
acceptable. One individual employer/farmer suggested the fees should 
remain at current levels. A trade association commented that fees 
should be based on the number of employers certified rather than the 
number of applications.
    Many commenters specifically requested the inclusion of a cap on 
the amount of fees and commented that the elimination of a cap might 
cause participants to abandon the program.
    Following consideration of all the comments, the Department has 
decided to retain the current fee structure rather than that proposed 
in the NPRM. At this time, the Department believes that it is of utmost 
importance to increase accessibility to the program and recognizes that 
the proposed increase in fees could have discouraged both potential new 
users and current users of the program. Accordingly, the Department has 
reverted to the current fee structure for both employers and for 
associations. Moreover, the increased fee would not have helped the 
program operate more efficiently at this time because the H-2A fees 
received by the Department are, pursuant to statute, deposited directly 
in the Treasury as miscellaneous receipts. Any change in that 
requirement would require a statutory change by Congress.
    The Department may, in the future, revisit the fee structure and 
propose changes in the amount of the processing fees. The Department 
appreciates the many comments received requesting additional 
information on the actual costs involved in the processing of 
applications and finds these requests to be reasonable. Since the 
Department is changing the program to an attestation-based process, it 
does not have experience with the actual operation of the program under 
the new process and, therefore, agrees that it should not revise fees 
until cost information using the new model is available.
    As noted above, the Department has decided to retain the current 
fee structure, which includes a limit on the fee amount to be paid by 
one employer. The Department agrees with the commenters and believes a 
cap on fees paid by an applicant is appropriate and should be included 
in any future proposal. The failure to include such a cap in this 
proposal was an oversight.
    The Department also received comments on the proposed $100 
processing fee for an amendment, coupled with a fee of $100 for each 
additional H-2A worker certified on the amendment. A trade association 
noted that amendments to applications can be for many reasons, 
including increasing the number of workers requested, adjusting the 
date of need, and making minor technical amendments to the application. 
It commented further that while it is reasonable to charge the 
additional certification fee for an amendment to increase the number of 
workers in order to avoid creating a disincentive for understating the 
number of workers on the original application, it is not reasonable to 
charge a fee for other amendments, including minor technical 
amendments.
    The parenthetical phrase ``(except joint employer associations)'' 
was clarified in the Final Rule by replacing it with ``(except joint 
employer associations, which shall not be assessed a fee in addition to 
the fees assessed to the members of the association).''
    In keeping with the retention of the current fee structure, no fee 
for amendments is included in the final regulation.
Section 655.110--Validity and Scope of Temporary Labor Certifications
    Several minor, non-substantive changes were made to the language of 
this provision for purposes of clarity and to conform to other 
provisions of the Final Rule. All substantive changes to the text of 
this provision are addressed below.
(a) Scope of Validity--Associations--Sec.  655.110(c)
    The Department made no changes in the proposed regulation regarding 
certifications provided to associations acting as joint employers. A 
farmworker/community advocacy organization suggested that the 
Department should include language currently in the H-2A Program 
Handbook limiting such applications (and certifications) to those 
involving ``virtually identical job opportunities.'' The Department 
declines to adopt this suggestion. The governing statute expressly 
provides at Sec.  218(d)(1) of the INA for the filing of H-2A 
applications by associations of agricultural producers, but does not 
provide a ``virtually identical'' limitation. Individual employers are 
permitted under the current regulations to offer job opportunities with 
a variety of non-identical job duties, and the Department has seen no 
evidence that this has adversely affected U.S. workers.
    Section 655.104(b) of the Final Rule limits the job qualifications 
that employers may impose to those that are normal and accepted 
qualifications required by non H-2A employers in the same or comparable 
occupations and crops. Where a combination of job duties or job 
opportunities serves as a de facto job qualification because the listed 
duties and opportunities require skills or experience that agricultural 
workers do not typically possess, the Department reserves the right 
under Sec.  655.104(b) to treat the listed job duties or job 
opportunities as job qualifications, and to apply the ``normal'' and 
``accepted'' standard that is set forth in the statute and 
recapitulated in the regulations. The Department believes that this 
framework is most consistent with the statute and will adequately 
protect U.S. workers from adverse effects.
(b) Redetermination of Need--Section 655.110(e)
    The proposed regulations omitted the provision in current 
regulations allowing employers to request an expedited 
``redetermination of need'' if a labor certification is denied, or a 
partial certification is granted, because U.S. workers are available 
and, subsequent to the denial or partial certification, the U.S. 
workers identified as available are no longer available. The Department 
received several comments objecting to the deletion of this provision 
and requesting its inclusion in

[[Page 77182]]

the final regulations. Two commenters pointed out the requirement in 
Section 218(e) of the INA mandating a new determination within 72 hours 
in cases of unavailability. A trade association also mentioned that 
Congress was sufficiently concerned about the failure of domestic 
workers to report that it included a heavy obligation on the Department 
to re-establish need. Others commented that the need for a 
redetermination procedure is even greater since the pre-filing 
recruitment efforts will put job commitments farther in advance of the 
dates of need and thereby increase the likelihood of U.S. workers not 
reporting. A trade association provided data from a farmer to 
illustrate the need for a process for redetermination and also 
described a procedure they would like implemented wherein U.S. workers 
referred by the SWA would be asked to sign a form indicating their 
intention to return for work on the date of need and to work for the 
duration of the contract. The goal of this process would be to not have 
the number of jobs certified be reduced by the total number of 
referrals but rather by the number of workers who signed the form.
    In response to the comments, the Department has included a new 
section, Sec.  655.110(e), addressing the procedures for requesting a 
redetermination of need. The Department appreciates the suggestion for 
an additional requirement for U.S. workers to sign a form stating they 
will report to work but has determined such a requirement does not 
appear likely to alleviate the problem of ``no-shows'' among the U.S. 
worker population the employers seek to address. The Department, 
therefore, did not add the requirement.
    A trade association also posed a question about handling a 
situation where the employer obtains sufficient commitments from 
qualified U.S. workers for the job opportunity during the pre-filing 
recruitment and is precluded from filing an application but 
subsequently learns that some of these workers will not honor their 
commitments. Since no application was filed, technically, the employer 
in this situation would not be able to request a redetermination. The 
association claimed the Congress clearly did not intend to leave 
employers without an adequate workforce and stated it is incumbent upon 
the Department to accommodate employers who are in this situation.
    While the Department agrees it is unlikely Congress intended that 
employers should be left without an adequate workforce, the Department 
cannot add a provision to allow an employer who does not submit an 
application due to the availability of able, willing and qualified U.S. 
workers sufficient to meet their needs, but who subsequently discovers 
that not all the workers will be able to honor their commitments, to 
request an expedited redetermination. The Department lacks such 
authority under the INA; Section 218(e)(2) of the INA only authorizes 
the Secretary to make such expedited determinations for a certification 
that was denied in whole or in part because of the availability of 
qualified workers. However, The Department will permit an employer to 
file an application requesting that zero job opportunities be certified 
for H-2A employment because the employer has been able to recruit a 
sufficient number of U.S. workers. Such applications must comply with 
other requirements for H-2A applications to be considered complete and 
must be supported by a recruitment report, in which case the 
application will be denied. Such a denial will provide no immediate 
benefit to the employer, but the employer will thereafter be permitted 
under the statute and regulations to request an emergency 
reconsideration of the denial should the U.S. workers fail to show up 
or later abscond, leaving the employer with a rejuvenated need for H-2A 
workers. Language to this effect has been added to Sec.  655.107(a) of 
the Final Rule.
Section 655.111--Required Departure
    The Department included language in the NPRM explaining the 
relationship between the labor certification's validity period and the 
foreign worker's period of stay in the U.S. and informing employers of 
their obligation to notify H-2A workers who begin employment with them 
of the worker's responsibility to register their departure if and when 
required by the DHS. A trade association questioned the inclusion of 
this section in the Department's regulations. This association 
commented that it has no bearing on either the issue of the 
availability of U.S. workers, or whether the employment of aliens will 
adversely affect U.S. workers, the two issues which are within the 
statutory purview of the Department. A professional association 
commented that the Department's language in the proposed Sec.  655.111 
did not allow for transit time for workers after the expiration of the 
labor certification and was, therefore, in conflict with the USCIS 
requirements which provide a specified period of time after expiration 
of the labor certification before departure from the country is 
required.
    The Department believes the provision is useful, as it strikes at 
the heart of the relationship between the Department's findings and the 
entry of workers to fulfill the terms of the labor certification. This 
provision does not usurp any role held under the statute by another 
agency; it merely emphasizes for the employer its obligation to notify 
workers to return home at the end of their authorized period of stay. 
Moreover, the Department does have an interest in ensuring that H-2A 
workers return to their home country at the end of their authorized 
work period, as they would otherwise become undocumented workers inside 
the United States. As described in the discussion of Sec.  655.108, 
undocumented workers compete with U.S. workers for agricultural job 
openings without any of the protections associated with the H-2A 
program applying, and thus are likely to have an adverse effect on the 
wages and working conditions of U.S. workers.
    The Department does agree, however, with the comment regarding the 
lack of clarity in the language used in the proposed rule. The 
Department notes that DHS provisions (in current regulations) require 
the worker be given a period of 10 days of valid status beyond the 
validity period of the labor certification in which to depart, and has 
extended that time to 30 days in their recent companion H-2A 
rulemaking. We have revised the regulation to acknowledge this period 
granted by DHS, to provide greater certainty for both employer and 
worker.
Section 655.112--Audits and Referrals
    In the NPRM, the Department proposed the initiation of post-
certification audits of applications to ensure quality control, to 
review compliance, and to identify abusers of the program, among other 
goals. The Department received several comments on these audit 
provisions.
    One commenter felt that there was no policy or legal rationale 
given by the Department for this new system that includes audits. The 
Department believes that a sufficient policy rationale for the 
necessity of audits was provided in the NPRM. Reviewing the 
documentation attached to and supporting the attestations made by an 
employer in the context of an H-2A application is an essential element 
of the shift of the program to an attestation-based certification 
system. The Department, to protect the basic integrity of the process 
of H-2A certifications, must ensure the applications are filed in 
accordance with the basic obligations of the

[[Page 77183]]

program. The Department has the authority to enforce program 
responsibilities with respect to those who seek its benefits, and in 
particular with respect to those who receive them. The audit provides 
reassurance to the employer, the Department, and the affected employees 
that all program obligations are understood and followed.
    Another commenter stated that 30 days to respond to the audit 
request was not enough time during growing season. The Department does 
not believe that audit requests will be so burdensome that they cannot 
be complied with relatively quickly as long as the employer has 
retained the required documentation contemporaneously with performing 
the required actions, such as keeping the tear sheet of the 
advertising, and retaining the final recruitment report. To partially 
address this commenter's concern, however, language has been added to 
the Final Rule specifying that employers will be provided at least 14 
days to comply with an audit request.
    A SWA suggested that every application be audited and some SWAs 
suggested they should participate in audits, and should be provided 
funds to do so. The Department declines to delegate the audit function 
to the SWAs. Audits will be conducted by the Department based on the 
presence or absence of certain criteria, as well as on a random basis 
to ensure program integrity. Moreover, dispersing audit activity among 
SWAs, would be at odds with the re-engineering of the H-2A process. 
SWAs will no longer possess the underlying documentation necessary to 
adequately evaluate the audit factors that will be built into the new 
program.
    One commenter stated that ``non-program'' participants should not 
be included in the audit process. The Department believes participation 
by others in the audit process would be disruptive to program 
operations and therefore declines to add such a provision in the Final 
Rule.
    A farm worker advocacy organization expressed the belief that the 
proposed increase in audits and penalties would not adequately address 
concerns related to worker protections and remarked the penalties would 
come too late in the process to benefit U.S. workers searching for 
work.
    The Department believes, on the contrary, that the audit process 
will address concerns about worker protections. The Department will 
audit applications based on selected criteria as well as on a random 
basis. Worker protections are at the root of the H-2A program and will 
provide many of the criteria for audits. In addition, WHD's 
investigative authority is an additional and comprehensive tool to 
address these concerns and benefit U.S. workers. U.S. workers, 
additionally, have at their disposal a complaint system (found in the 
Job Service Complaint system regulations at 20 CFR 658 et seq.) to 
address complaints arising from agricultural job orders, such as an 
improper failure to accept a referral. The use of all such tools will 
help to ensure employer compliance with the requirements of the 
program.
    Another commenter stated that the penalties enumerated will do 
little to deter abuses and that the Department should consider the 
complementary tool of civil money penalties for lesser violations found 
in the audit process. The Department cannot assess civil monetary 
penalties without statutory authority to do so.
    One commenter stated that the enumerated penalties are so severe 
that farmers could go out of business and that employers should 
therefore be informed, in detail and in advance, about the methods, 
criteria and scope on which these audits and potential sanctions will 
be based. In addition to the explanation of the audit procedures and 
sanctions already provided in the Rule, the Department will develop 
materials for employers to assist them in understanding the various 
aspects of the program, including audits. However, the Department 
cannot reveal its audit criteria, which must be kept confidential to 
ensure program integrity.
    One commenter suggested that the Department conduct pre-audit 
inspections of applications and issue a notice of violations so that 
there is an opportunity to correct mistakes without penalty. The 
Department will be reviewing applications prior to certification (and 
thus prior to any potential audit) as part of the approval process, and 
intends to issue Notices of Deficiency when such correctable 
deficiencies are found. We cannot, however, complete full audits in the 
15 day statutory window the Department is afforded to review and 
certify applications.
    Many commenters expressed skepticism about enforcement, saying the 
Department's prior enforcement in the H-2A arena has not been as 
vigorous as they would like. One commenter also doubted the ability of 
adjudicators to discover fraud and did not believe that sufficient 
resources existed to accomplish this function.
    This Rule introduces new enforcement measures, such as 
certification revocation, and new grounds for the Department to impose 
sanctions to more effectively address violations of the terms and 
conditions of the labor certification. Accordingly, the Department will 
have greater flexibility than under the current regulation to initiate 
and impose sanctions. Additionally, the Department has assigned 
dedicated resources for these enforcement and compliance activities.
    Several commenters opined that the rule will not prevent 
international recruitment system abuses. The Department has little 
control over international recruitment system abuses unless U.S. 
employers or their agents are involved. The new rule allows the 
Department to sanction the U.S. parties involved in abuses.
    One commenter believed that the Department should create a new 
division within ETA to conduct audits and report to the Secretary on 
the efficacy of the H-2A program. A new division is unnecessary as the 
audits will be undertaken in connection with OFLC program operations 
and, as noted above, the Department has assigned additional resources 
to perform the audit function.
    A farm bureau offered a rewrite of Sec.  655.112, believing that 
audits should only be conducted on the recruitment portion of the 
application and employers should be told specifically what criteria 
could lead to an audit. We thank the commenter for its detailed 
analysis of the audit requirements, but we do not agree with its 
premise that audits should be limited to the recruitment portion of the 
application. The Department has been consistent in its refusal to 
disclose its audit criteria in its foreign labor programs; it cannot 
disclose these without risking the very integrity of the programs. The 
Final Rule delineates more clearly which documents employers are 
required to retain during the document retention period, and any of 
these documents may be requested during an audit.
    Other changes to the language of this provision are minor and non-
substantive, and were made for purposes of clarity, to insert cross-
references, or to conform to changes made elsewhere in the Final Rule. 
For example, the reference to auditing of denied applications has been 
deleted to reflect the decision not to require employers whose 
applications are denied to retain records, explained in the discussion 
of Sec.  655.102(c). Similarly, the statement that an employer's 
obligation to comply with the Department's audit process includes 
``providing documentation within the specified time period'' has been 
deleted as superfluous, as the consequences of

[[Page 77184]]

an employer's failure to comply with the audit process are now more 
explicitly addressed in Sec. Sec.  655.117 and 655.118.
Section 655.113-H-2A Applications Involving Fraud or Willful 
Misrepresentation
    The NPRM proposed a new Sec.  655.113, creating a process whereby a 
finding of fraud or willful misrepresentation would result in 
termination of processing of current applications.
    One commenter expressed concern that proposed Sec.  655.113 did not 
go far enough to give the CO explicit authority to deny an application 
because of suspected fraud or factual inaccuracy. The commenter 
suggested that the regulation should set forth a process that allows 
SWAs, workers, and others to send in information and allow the CO to 
consider such documentation. The same commenter feared that without a 
definition of ``possible fraud or willful misrepresentation'' that the 
Department will only use a criminal standard of guilt and thereby allow 
many employers who engage in lesser fraud to go unsanctioned. The 
Department agrees and will define such terms and evidence to be used in 
policy guidance rather than in the rule itself. The Department declines 
to permit COs to deny applications based solely on suspicion of 
wrongdoing. Such an undefined standard fails to put program users on 
notice of what is expected of them. The CO must articulate the specific 
criteria the applicant failed to meet and which resulted in the 
application being denied, as explained in Sec.  655.109(e).
    Another commenter believed that it is unfair to put the full burden 
on the employer for employing undocumented workers if the employer has 
limited capacity to verify the legality of the worker documents and 
whether or not they are fraudulent.
    The rule is not meant to and will not punish the employer for 
complying with the requirements in the I-9 form to verify employment 
eligibility. There is nothing in the Department's regulation that would 
impose liability on an employer for unknowingly accepting fraudulent 
documents that appear authentic.
    The Department has added language to this provision in the Final 
Rule clarifying that ``[i]f a certification has been granted, a finding 
under [Sec.  655.113(b)] will be cause to revoke the certification.'' 
Paragraph (b) of the NPRM has been deleted in the Final Rule as 
unnecessary and redundant.
Section 655.114--Setting Meal Charges; Petition for Higher Meal Charges
    In the NPRM, the Department outlined the procedures for employers 
to petition to charge more than the established amount for meals and 
for appealing the denial of such a petition. In the Final Rule, the 
Department has revised the section to more clearly address both the 
establishment of the annual allowable meal charge amount and the 
procedures for petitioning for a higher amount. One commenter noted 
that the allowable amount published in the NPRM was out-of-date. This 
commenter is correct and the Department has updated the amount in the 
Final Rule. Another commenter requested that the Department define 
``representative pay period'' as used in Sec.  655.114(b). The 
Department believes that no further definition is necessary since the 
term ``representative'' is commonly defined to mean ``typical.'' In 
addition, the header for this section has been changed to indicate both 
topics that are discussed.
    In addition, this section has been revised for clarity in the Final 
Rule. The language about petitions for higher meal charges has been 
removed from the first sentence of paragraph (a). All material about 
petition for higher meal charges is found in paragraph (b). The 
effective date provision concerning granted petitions for higher meal 
charges has been separated out and provided its own paragraph in order 
to enable employers to more easily understand when the higher meal 
charge applies. The material on the procedures for appealing denied 
petitions has been moved from proposed paragraph (a) to a new paragraph 
(c). A new sentence has also been added to the end of paragraph (a) 
reminding employers that all deductions for meal charges under this 
provision must comply with the FLSA's recordkeeping requirements, which 
will become relevant if the deductions bring the employee's hourly 
wages below the federal minimum wage.
Section 655.115--Administrative Review and De Novo Hearing Before an 
Administrative Law Judge
    The NPRM contained a provision setting out the procedure by which 
an employer could request a review on the record of a certification 
denial, including a de novo hearing. The Department received several 
comments on this section.
    One commenter requested that copies of certified case files should 
be delivered to the employer within two business days. This would 
require the additional expense for overnight courier service, and the 
Department declines to adopt such a requirement. The Department also 
notes that an employer would be expected to already possess copies of 
all of the relevant documents relating to his application.
    The same commenter suggested that the rule be amended to include 
explicit language that hearings for debarments are available and 
specify the procedures for them, and state that all relevant documents 
and other evidentiary material, including exculpatory evidence, must be 
provided to the employer. The Department has adopted the suggestions of 
the commenter but has done so outside of Sec.  655.115. Given the 
severity of debarment and revocation, the short timeframes set forth in 
Sec.  655.115 are neither necessary nor appropriate for these types of 
determinations. Accordingly, the Department has addressed the 
administrative appeals procedures for debarment and revocation in Sec.  
655.118 and Sec.  655.117, respectively. Under the Final Rule, 
debarment decisions are stayed pending the outcome of any requested 
administrative hearing and subsequent appeals.
    Another commenter suggested that workers and their representatives 
should be allowed to intervene in administrative review proceedings. 
The Department does not agree that determinations on labor 
certification applications should be turned into multiparty adversary 
proceedings, which would likely become unwieldy and time-consuming. 
Workers and their representatives may file complaints as appropriate in 
accordance with other provisions in the Final Rule.
    One commenter suggested the rule should also specify that the 
removal of the requirement to answer the notice of complaint in the de 
novo hearing does not preclude the ALJ from requiring an answer or its 
equivalent as a matter of discretion or from limiting the 
discoverability of information. The same commenter believed the rule 
should specify that the Department bears the burden of proof in the 
proceedings, because otherwise the employer would effectively be 
presumed guilty and required to prove its innocence.
    The Department does not believe there is any reason to add 
additional language to the rule, which already states that 29 CFR part 
18 governs the rules of procedure. Specifically, 29 CFR 18.1(b) and 
18.5(e) cover the ALJ's discretion to request an answer or require 
discovery. The burden of proof is governed by common law principles in 
which the moving party has the burden of proof. In this case, the 
burden

[[Page 77185]]

would be on the applicant to provide a complete application in the 
first instance, and if it is found to be incomplete by the Department's 
Certifying Officer, then it is the appellant/applicant's burden to 
prove that it submitted the requisite information. The burden does not 
shift to the government because it is not the government that is 
requesting a benefit.
    To ensure an expeditious review process, the Final Rule provides 
that ALJs conducting de novo hearings must schedule such hearings 
within 5 calendar days, rather than 5 business days, at the employer's 
request. It further clarifies that new evidence may be introduced at 
such hearings. Employers will not be prejudiced by this provision, 
since the expedited scheduling is to be performed only at the appealing 
employer's request. The Final Rule further provides that ALJs must 
render decisions within 10 calendar days after a de novo hearing.
Section 655.116--Job Service Complaint System; Enforcement of Work 
Contracts
    The NPRM contained the provision in the current regulations 
regarding complaints filed through the Job Service Complaint system. 
Several commenters suggested that site visits be implemented, employer 
and worker interviews be added, a 24/7 anonymous call-in number be 
created, and mediation offices (called ``work visa representational 
offices'' by the commenter) be created where contract disputes can be 
discussed between the employer and laborer. The Department declines to 
create such additional measures as a complaint system already exists in 
the Job Service complaint system found in 20 CFR Part 658, subpart E, 
and any similar system specific to H-2A agricultural clearance orders 
or applications would result in the duplication of effort and be a 
waste of already scarce government resources.
    Some commenters believe that this rule is still too onerous, and 
that the audits and compliance requirements will continue to discourage 
farmers from using the program. The program is complex due to statutory 
requirements and historical practice. However, the Department has 
attempted, in this Final Rule, to simplify the procedures where 
appropriate while still ensuring program integrity and worker 
protection. The Department believes that this rule is significantly 
easier to understand and comply with than its predecessor.
    One commenter stated that workers should be punished by being 
permanently barred from the program if they move to an unauthorized 
employer or overstay their visa. This is not an issue for the 
Department, which certifies positions as being available to be filled 
by H-2A workers. The Department does not control the work status of H-
2A workers; that is a function performed by DHS.
    Another commenter suggested that a mechanism should be created to 
pre-certify employers as being in compliance with program requirements 
and obligations prior to the issuance of the Labor Certification. This 
is something the Department will consider implementing at a future 
time, when employers have compiled an established record of compliance 
with program requirements.
    A commenter suggested that the Department institute procedures for 
workers and their advocates to raise grievances or lodge complaints for 
Departmental review and expedited resolution. The Department again 
notes that the Job Service complaint system referenced in Sec.  655.116 
and detailed in 20 CFR part 658, subpart E, which handles complaints 
arising from employer actions, and WHD's authority under 29 CFR part 
501, whose provisions include the investigation and prosecution of 
valid complaints, provide two effective mechanisms for resolving 
complaints. The commenter also requested that a graduated system of 
fines be created, allowing a ``learning curve'' for agricultural 
employers to become more familiar with the H-2A requirements. The Final 
Rule at 29 CFR 501.19 provides a number of factors that the WHD takes 
into consideration when assessing CMPs, including the type of violation 
committed, efforts made in good faith to comply, and the explanation of 
the person charged with the violation.
Section 655.117--Revocation of Approved Labor Certifications
    Several minor, non-substantive changes were made to the language of 
this provision for purposes of clarity and to conform to other 
provisions of the Final Rule. All substantive changes made to the text 
of this provision are addressed below.
(a) Comments Opposing Revocation Because Other Penalties Sufficient
    Several employers and employer associations objected to revocation 
of labor certifications on the grounds that other penalties for non-
compliance are sufficient, citing the Department's increase in both the 
penalties for non-compliance and the bases upon which non-compliance 
can be asserted, along with the new document retention, audit process, 
and expanded bases for debarment. Similarly, several commenters cited 
the Department's existing ability to provide evidence to the DHS 
supporting the revocation of a petition.
    We disagree that the existence of these other penalties makes 
revocation an unnecessary remedy. The Department's obligation to ensure 
program integrity is self-evident. The Department's ability to revoke 
an application is essential to maintaining and enhancing program 
integrity and a necessary companion to the flexibility of a self-
attestation model. The Department should not have to rely on DHS to 
ensure the integrity of its programs.
(b) Revocation Too Severe a Penalty
    Several employers and employer associations objected to revocation 
of labor certifications because of the negative impact that it would 
have on an employer's business. A commenter also stated that revocation 
could effectively result in an employer violating state law in Wyoming, 
which assertedly prohibits sheepherders from abandoning sheep. Given 
that revocation is meant to be a sanction against employers who have 
violated the terms and conditions of the certification or for whom the 
initial certification is demonstrated to have been unwarranted, it 
should be no surprise that the employer may face serious consequences 
as a result. It is in the best interest of the Department to ensure 
that the integrity of the H-2A labor certification program is upheld. 
If the granting of a labor certification was not justified, revocation 
of such certification is a reasonable measure for the Department to 
take.
(c) Interference With DHS Authority
    An association of growers requested that the Department clarify the 
legal basis for exercising the enforcement of DHS regulations and the 
rationale for doing so, stating that employers should not have to face 
two enforcement authorities with different policy objectives enforcing 
the same regulations. We agree with the commenter's concern that the 
Department should not be enforcing DHS regulations and accordingly have 
deleted the reference to 8 CFR 214.2(h)(5) in Sec.  655.117(a)(1).
(d) Grounds for Revocation
(1) Certification Not Justified--Sec.  655.117(a)(1)
    A law firm questioned the Department's authority to revoke a labor 
certification application under Section 218 of the INA simply because 
the Department has decided to revisit the

[[Page 77186]]

merits of the application, stating that the Department would need 
authority comparable to that provided in Section 205 of the INA to do 
so. Additionally, one law firm interprets Section 218(e) to authorize 
the Department to revoke certifications only in the case of fraud or 
criminal misconduct. We disagree. Section 218(e) of the INA addresses 
the authority to revoke a certification and does not specify any 
limitations on the bases for which such authority may be exercised.
    Nevertheless, the Department does agree that it should not revisit 
the merits of a labor certification determination in the absence of 
some form of willful misconduct on the part of the employer. Taking 
this concern into account, as well as the seriousness of revocation as 
a penalty, the Department has decided to impose a stricter standard on 
revocation as a penalty based upon the CO's finding that a 
certification was not justified. Given the immediate and devastating 
consequences revocation could have on an employer's business, the 
Department has determined that revocation based on a finding that the 
certification was not justified at the time it was granted is 
appropriate only when the employer made a willful misrepresentation on 
the labor certification application. In such an instance, the 
employer's willful misconduct has presumably contributed to the 
Department's initial erroneous determination, making revocation fully 
appropriate. Accordingly, we have removed ``based on the criteria set 
forth in the INA'' so that Sec.  655.117(a)(1) now reads ``The CO finds 
that issuance of the Temporary Agricultural Labor Certification was not 
justified due to a willful misrepresentation on the application.''
(2) Violation of Terms and Conditions of Labor Certification--Sec.  
655.117(a)(2)
    An employer suggested that the employer's violation of the terms 
and conditions of the labor certification under Sec.  655.117(a)(2) 
should be qualified with ``knowingly and willfully.'' An association of 
growers suggested that the revocation could only be exercised when the 
employer willfully misrepresents a material fact in the application. 
Similarly, an association of growers suggested that the Department 
should clarify that technical or good faith violations of the 
regulation should not result in an enforcement action. After reviewing 
these comments, the Department agrees that the standard set forth in 
the NPRM allowing revocation for any violation of an approved temporary 
agricultural labor certification was too broad. The Department has 
attempted to address the commenters' concerns by setting forth in 
greater detail the types of violations warranting revocation. Given the 
seriousness of revocation as a penalty, and in response to the 
comments, we added in this Final Rule an intent requirement 
(``willfully'') with respect to violations of the terms or conditions 
of the labor certification, and we also added the condition that the 
violation must be of a material term or condition. We have also listed 
separately in paragraphs 655.117(a)(2)(ii)--(v) other serious 
violations which the Department would have few other available remedies 
to enforce and which may not necessarily involve a willful violation of 
a material term or condition of the labor certification. These 
violations include: The failure to cooperate with a DOL investigation 
into the current certification; the failure to comply with one or more 
sanctions or remedies imposed by the ESA or one or more decisions or 
orders of the Secretary or a court order secured by the Secretary 
resulting from Department-initiated legal action (not private suits) 
regarding the current certification; and the failure to cure, after 
notification, a substantial violation of the applicable housing 
standards regarding the current certification.
    A group of farmworker advocacy organizations suggested that the 
regulations should clarify that a revocation may occur where the 
employer does not offer the job terms required in the regulations or 
does not comply with the job terms required in the regulations. 
Assuming that the employer's actions were willful, we believe that this 
basis for revocation is already covered by Sec.  655.117(a)(2), since 
the terms and conditions of the labor certification incorporate the 
employer attestations set forth in the regulations under Sec.  655.105.
    A group of farmworker advocacy organizations suggested that 
revocation should be utilized when an employer has an active 
certification and intends to bring additional workers but is unwilling 
or unable to provide the terms and conditions of the work promised. We 
believe that the grounds that the commenter cited for revocation are 
incorporated in Sec.  655.117(a)(2), assuming that the employer's 
unwillingness or inability to provide the terms and conditions of the 
work promised manifests itself in the willful violation of a material 
term or condition of the labor certification.
    A group of farmworker advocacy organizations suggested that 
revocation should be used if a timely audit discovers that U.S. workers 
had been discouraged or denied employment. Again, we interpret Sec.  
655.117(a)(2) to cover such a violation, if willful, since an employer 
must attest on its labor certification application that any U.S. 
workers who applied for the job were rejected only for lawful, job-
related reasons.
    A group of farm worker advocacy organizations suggested that 
revocation of a current job order should be allowed based on violations 
of prior job orders. Substantial violations of prior job orders are 
covered in the debarment section at Sec.  655.118. We believe that 
debarment is the more appropriate remedy for substantial violations of 
prior job orders since a revocation is meant to address problems with 
the existing labor certification.
(3) Referrals From WHD--Sec.  655.117(a)(3)
    A private citizen objected to the inclusion of a recommendation by 
WHD as a ground for revocation. The Department believes that WHD plays 
a critical role in upholding the integrity of the labor certification 
process by enforcing an employer's obligation to provide the wages, 
benefits, and working conditions required under the terms and 
conditions of a labor certification. Accordingly, their input in the 
revocation process would help to protect workers from additional 
violations or abuse by unscrupulous employers. However, we have 
clarified that the CO must actually find a violation of sufficient 
gravity that leads to the recommendation of revocation by WHD and that 
29 CFR 501.20 sets forth the grounds under which WHD may recommend 
revocation, which are nearly identical to ETA's grounds for revocation 
provided under Sec.  655.117(a)(2). Any WHD recommendation for 
revocation must be based on violations of the certification in effect 
at the time of the recommended revocation.
(4) Fraud or Willful Misrepresentation--Sec.  655.117(a)(4)
    The Department has included an additional provision which sets 
forth the Department's authority to revoke a labor certification based 
on a finding of fraud or willful misrepresentation in that 
certification, as provided in Sec. Sec.  655.112 and 655.113. Section 
655.117(a)(4) provides that the Department may revoke a certification 
if a court or the DHS, or, as a result of an audit, the CO, determines 
that there was fraud or willful misrepresentation involving the 
application.

[[Page 77187]]

(e) Procedure--Sec.  655.117(b) and Hearing--Sec.  655.117(c)
    An association of growers suggested that the Notice of Intent to 
Revoke should include the statement of factual grounds for the alleged 
basis for revocation. The regulation already provides that the Notice 
of Intent to Revoke is to contain a detailed statement of the grounds 
for the proposed revocation and thereby would include the factual 
grounds for the proposed revocation. Accordingly, we do not believe 
that it is necessary to change the proposed language of the provision.
    One commenter suggested that employers should be able to request a 
hearing with respect to the Notice of Intent to Revoke. The Department 
does not believe that a hearing is strictly necessary in all cases, but 
has added language to Sec.  655.117(a) of the Final Rule specifying 
that a revocation may only be made ``after notice and opportunity for a 
hearing (or rebuttal).'' The regulations also allow an employer to file 
an administrative appeal of a revocation and provides for notice of the 
opportunity to appeal in the CO's final decision.
    While a group of farm worker advocacy organizations expressed 
concern that a final determination should not be required to revoke a 
labor certification, the Department received a number of comments from 
a large number of employers and employer associations objecting to 
revocation taking effect immediately at the end of the 14-day window 
for the employer to submit rebuttal evidence, if the employer fails to 
do so. The commenters cited due process concerns and the devastating 
and irreversible impact that revocation would have on farms while the 
matter was being adjudicated. The Department does not agree that 
allowing the CO's decision to become final if the employer fails to 
submit rebuttal evidence within 14 days constitutes a violation of due 
process; an employer should reasonably be able to compile a response to 
the CO's notice within 14 days.
    To address legitimate due process concerns, however, the Department 
has changed the language in Sec.  655.117(b)(3) to provide that the 
filing of an administrative appeal stays revocation. Accordingly, an 
association of growers' suggestion that the effective date of 
revocation should be one day after the appeal period expires so that 
the employer would not be required to cease employing the worker while 
it decides whether to appeal is no longer relevant.
    Two commenters expressed concern about the Department's ability to 
revoke a labor certification on a very broad range of criteria and 
suggested that the Department provide a standard for the Department's 
decision to revoke when the employer submits rebuttal evidence. We 
understand the commenters' concern and have articulated the standard 
for which the Department may revoke an application when the employer 
submits rebuttal evidence. Specifically, the regulations have now been 
revised to provide that the CO must determine that the employer more 
likely than not meets one or more of the bases for revocation under 
655.117(a) in order to revoke the application.
    An association of growers suggested extending the employer's 
rebuttal period from 14 days to 30 days with extensions granted by the 
CO on a reasonable basis, and if such a request is denied 
unjustifiably, the denial may be a basis of, or an additional reason 
for, reversal by the Department. Similarly, an association of growers 
suggested that employers should be given 14 instead of 10 days to file 
an administrative appeal. We disagree with the proposal to extend the 
time period for rebuttal with indefinite extensions by the CO, and 
particularly the suggestion that the denial of such a request for an 
extension should be a basis for reversal of the revocation, all of 
which would unnecessarily delay the revocation process. We also 
disagree with the proposal to extend the time period for an 
administrative appeal. We carefully considered what time period would 
be appropriate for employers to rebut the notice of intent to revoke 
and to file an administrative appeal. We would not be issuing a notice 
of intent to revoke if the reason for doing so did not seriously 
jeopardize the integrity of the H-2A labor certification process. 
Accordingly, it is imperative for the Department to be able to act 
quickly, especially if the livelihood of the workers and an employer's 
ability to plan for its labor needs are at stake. The addition of at 
least a minimum of 20 days to the process would not only impede the 
efficiency of the labor certification system but also prolong the 
period of time for which employers would be subject to uncertainty 
regarding their labor needs, a concern that was as raised by a 
commenter. As a result, we are maintaining the proposed rule's 14-day 
period for rebuttal and 10-day period for filing an administrative 
appeal.
    An association of growers also suggested that the CO should have 
more than 14 days to reach a final decision--that the CO should in fact 
have all the time that he or she believes is necessary to reach the 
best possible decision on the record as it is presented. While we 
appreciate an association of growers' concern that the Department have 
a sufficient amount of time to render its decision, 14 days is an 
adequate amount of time for the Department to consider all the facts at 
hand to make a decision and to ensure that the revocation proceedings 
move along in an expeditious manner for the reasons stated in the 
previous paragraph.
    The Department takes very seriously the commenters' concerns about 
having enough time and opportunity to reach the best decision possible 
pertaining to revocation. As a result, as discussed in the preamble to 
Sec.  655.115, given the seriousness of the revocation penalty, the 
Department is creating a separate appeals process for revocation which 
allows for greater time for deliberation at the administrative appeals 
level. Instead of applying the administrative appeals process at Sec.  
655.115 to revocation, as provided in the NPRM, we have lengthened the 
timeframes for hearings, to 15 calendar days after the ALJ's receipt of 
the ETA case file, and for decisions, to 20 calendar days after the 
hearing. This appeals process provides the right balance between 
ensuring that revocation occurs in a timely manner before the 
expiration of the labor certification, while also providing a 
sufficient amount of time for deliberation.
    Two commenters suggested revising the regulation so that an 
employer be provided 14 days from the date that it receives the Notice 
of Intent to Revoke to provide rebuttal evidence instead of from the 
date of the Notice. Given that the Notice will be sent by means 
ensuring next day delivery, the employer will essentially have 13 days, 
which is a reasonable amount of time to provide rebuttal evidence. In 
addition, because the date the employer actually receives the Notice is 
virtually impossible to verify, we have decided to retain the date of 
the Notice as the starting point for the 14 day rebuttal period.
    One commenter suggested phasing-in the Department's compliance and 
control measures so that employers have the opportunity to adapt to the 
program. We do not believe that it is necessary to phase-in such 
measures. Employers have received notice of, and have had an 
opportunity to comment on, the measures that the Department has 
proposed. Employers certainly have had an opportunity to plan for such 
changes, and we do not believe that providing any additional time for 
employers to adjust to the new requirements is warranted.

[[Page 77188]]

(f) Worker Protections
    A group of farm worker advocacy organizations suggested that ETA 
require employers with open job orders to accept the referral of H-2A 
workers who are already present in the U.S. and have been affected by 
revocation, and that ETA should deny job orders to employers who refuse 
such H-2A workers. We understand the serious toll revocation of a labor 
certification can take on an employer's workforce--both U.S. and H-2A 
workers alike--and agree that certain worker protections should be 
triggered in the event of revocation. We do not agree that the SWAs 
should be in the business of using taxpayer money to make referrals of 
temporary foreign workers to open job opportunities. However, we have 
added a new provision at Sec.  655.117(c) setting forth an employer's 
obligation to its H-2A workers in the event of revocation. Upon 
revocation, if the workers have already departed the place of 
recruitment, the employer will be responsible for reimbursing each 
worker's inbound transportation and subsistence expenses, outbound 
transportation expenses unless the worker accepts other H-2A work in 
the U.S., any payments due to the worker under the three-fourths 
guarantee, and any other wages, benefits, and working conditions due or 
owing the worker under the regulations.
(g) Beyond the Scope of the Regulation
    We received several comments that were clearly beyond the scope of 
the revocation provision. Among them were several comments regarding 
issues that touch upon agencies with responsibility for H-2A issues 
that have nothing to do with the labor certification process or the 
enforcement of the obligations and assurances made by employers with 
respect to H-2A workers.
    For example, a group of farmworker advocacy organizations suggested 
that the Department should establish an MOU with ICE to alert ICE upon 
revocation that an employer's request for workers has been denied and 
to heighten inspections of that employer's I-9 forms to ensure that the 
employer does not attempt to recruit undocumented workers to fill the 
positions originally designated for H-2A workers. While we understand 
the concern of the commenter, we do not believe that the regulation is 
the appropriate place to address the details of the Department's 
coordination and communication with DHS in the event of revocation.
Section 655.118--Debarment
(a) The Department's Debarment Authority
    The Department revised Sec.  655.118(a) of the proposed rule to 
more closely parallel the language in Section 218 of the INA setting 
forth the Department's debarment authority. The Department is also 
clarifying that it interprets the requirement that ``the Secretary of 
Labor has determined, after notice and opportunity for a hearing, that 
the employer during the previous two-year period substantially violated 
a material term or condition of the labor certification'' to mean that 
the Department must notify the employer of the Department's intent to 
debar no later than two years after the occurrence of the violation (or 
in the case of a pattern or practice, two years after the occurrence of 
the most recent violation). The Department's rationale for this 
interpretation is discussed in greater detail in the Debarment 
Proceedings (20 CFR 655.118(e)) section of this preamble.
(b) Parties Subject to Debarment--Sec.  655.118(a)
(1) Successors in Interest
    One organization objected to the debarment of an employer's 
successor in interest, rather than only those entities with a 
substantial interest in the employer. This commenter expressed concern 
that because debarment can result in the dissolution of the employer's 
business, debarring a successor in interest would impede the sale of 
assets and business to others who are not complicit in the cause of 
debarment. The Department's primary objective in debarring successors 
in interest is to prevent persons or firms who were complicit in the 
cause of debarment from reconstituting themselves as a new entity to 
take over the debarred employer's business. The final regulation 
includes a definition of successor in which the culpability of the 
successor and its agents for the violations resulting in debarment must 
be considered. This definition will avoid harm to successors that were 
not culpable in the violations resulting in debarment.
(2) Attorneys and Agents
    One commenter suggested that agents of employers should be 
debarrable as well as employers, given that the substantial violations 
listed in Sec.  655.118(d) could be committed by either the employer or 
the employer's agent. Another commenter also expressed concern that 
agents could not be sanctioned even though they may commit debarrable 
activities. We agree that agents should be included as debarrable 
parties if they have committed a substantial violation. To be 
consistent with the Department's permanent labor certification program, 
we believe that substantial violations should include acts committed by 
attorneys of employers and, accordingly, that attorneys of employers be 
debarrable parties as well. Additionally, the Department would consider 
an attorney or agent who had knowledge of or had reason to know of the 
employer's substantial violation to be complicit in the employer's 
violation and accordingly, should also be subject to debarment.
    The preamble to the NPRM expressed the Department's intention to 
include actions by agents and attorneys of employers as debarrable 
offenses, and include agents and attorneys as debarrable parties. The 
regulatory text, however, did not make this clear. Some commenters 
expressed concern that this language would render attorneys and agents 
strictly liable for debarrable offenses committed by their employer 
clients. That was never the Department's intent. To clarify the 
provision, the Department has broken Sec.  655.118(a) of the NPRM into 
three paragraphs. New Sec.  655.118(b) specifies that agents and 
attorneys may only be debarred if they ``participated in, had knowledge 
of, or had reason to know of, the employer's substantial violation.'' 
New Sec.  655.118(c) establishes the maximum debarment period of three 
years, which applies to debarments of employers, attorneys, and agents.
(c) Bases for Debarment--Sec.  655.118(d)
(1) General Opposition
    Several commenters objected to the debarment provision on the 
grounds that it was too severe a penalty and would discourage 
participation in the H-2A program. Additionally, another commenter 
expressed concern that overly circumscribed debarment regulations would 
continue to impede enforcement by the Department. As discussed in the 
preamble to the NPRM, the proposed changes to the debarment provision 
responded to the unnecessarily narrow definition of employer actions 
warranting debarment in the current regulation, which has hampered 
effective enforcement of the H-2A program, and is also an important 
part of the program's shift toward an attestation-based application 
process. We have carefully considered the comments that we received in 
response to the NPRM and believe that the debarment provisions in the 
Final Rule

[[Page 77189]]

will uphold the integrity of the H-2A labor certification program 
without unfairly punishing employers who utilize the program. We 
believe that ETA debarment authority and WHD's authority to recommend 
debarment will help to strengthen the Department's efforts to enforce 
the program regulations.
    The Department has reorganized this provision in the Final Rule in 
order to provide additional clarity to program users. In the NPRM, the 
bases for debarment were enumerated in Sec.  655.118(b); in the Final 
Rule they are enumerated in Sec.  655.118(d). The NPRM listed several 
violations in proposed Sec.  655.118(b)(1) that the Department would 
consider to be debarrable substantial violations if ``one or more acts 
of commission or omission on the part of the employer'' could be shown. 
For reasons discussed below, the Final Rule distinguishes between 
program violations that do not rise to the level of debarrable 
substantial violations unless ``a pattern of practice of acts of 
commission on the part of the employer'' can be shown, which are listed 
in paragraphs 655.118(d)(1)(i)-(v), and program violations that are 
subject to some other standard, which are listed in paragraphs 
655.118(d)(2)-(6).
    Failure to cooperate with a DOL investigation and failure to comply 
with sanctions, remedies, decisions, and orders issued by the 
Department were listed as debarrable offenses under Sec.  655.118(b)(1) 
of the NPRM. Those provisions have been broken out separately in the 
Final Rule as Sec.  655.118(d)(4) and Sec.  655.118(d)(5), emphasizing 
that such violations are not subject to Sec.  655.118(d)(1)'s ``pattern 
or practice'' standard. For reasons described below, a new Sec.  
655.118(d)(6) has been added to the rule allowing the Department to 
debar for ``[a] single heinous act showing such flagrant disregard for 
the law that future compliance with program requirements cannot 
reasonably be expected.''
(2) Standards for Debarrable Offenses--Additional Conditions and 
Clarification, Including Pattern and Practice
    Several commenters requested greater clarification of what actions 
would be subject to debarment and suggested including additional 
qualifiers or conditions to the various grounds for debarment. Two 
commenters stated that the listed grounds for debarment seem to empower 
the Department to debar for actions that merely ``reflect'' unlawful 
activity, even though the actions might not actually be unlawful. These 
commenters requested additional clarification as to what sort of 
activities would result in debarment. We disagree with the commenters' 
characterization that the listed grounds for debarment do not require a 
finding that the entity to be debarred engaged in unlawful activity. 
Mere suspicion of a violation of the law is not sufficient to warrant 
debarment. Rather, an actual violation would be necessary, in 
accordance with Section 218 of the INA which authorizes debarment when 
an employer substantially violates a material term or condition of the 
labor certification with respect to the employment of domestic or 
nonimmigrant workers. In sum, the use of the term ``reflect'' in the 
Final Rule to describe debarrable ``pattern or practice'' violations in 
Sec.  655.118(d)(1)(ii)-(v) does not mean that the Department is not 
required to prove actual underlying program violations.
    Several commenters suggested that the Department should require a 
pattern or practice of substantial violations for debarment. Of 
particular concern was the prospect of debarment based on the 
commission of one violation which they alleged would deter 
participation in the program. Additionally, one of these commenters 
noted that employers who are less sophisticated in their business 
practices should be spared from debarment for innocent oversights or 
mistakes. We agree with commenters' concerns and have qualified the 
acts set forth under Sec.  655.118(d)(1) with a pattern or practice 
requirement. However, the Department does not have any available remedy 
other than debarment to penalize and deter certain program violations, 
and believes that these violations constitute ``substantial 
violations'' warranting debarment even without a pattern or practice. 
These acts are set forth separately in paragraphs 655.118(d)(2)-(6). 
These include: fraud; the failure to pay the necessary fee in a timely 
manner; and the failure to cooperate with a DOL investigation or 
interference with a DOL official performing an investigation, 
inspection or law enforcement function; the failure to comply with one 
or more sanctions or remedies imposed by the ESA, or with one or more 
decisions of the Secretary or court (regarding a Department-initiated 
lawsuit); and a single heinous act showing such flagrant disregard for 
the law that future compliance with program requirements cannot 
reasonably be expected.
    Several commenters requested that the Department clarify and 
distinguish what activity is debarrable from what activity is subject 
to other penalties. Many of the activities that would trigger debarment 
also trigger other penalties. We do not think that it is necessary to 
draw such a distinction. Generally, a non-willful violation will not be 
grounds for debarment unless it is part of a pattern or practice. 
Debarrable offenses are clearly delineated in Sec.  655.118(d) of the 
Final Rule. Program violations that are subject to other penalties are 
listed elsewhere in the Final Rule.
(3) ``But Not Limited to''--Proposed Sec.  655.118(b), New Sec.  
655.118(d)
    Several commenters argued that the language ``but not limited to'' 
in proposed Sec.  655.118(b)'s list of the available grounds for 
debarment was overly broad and raised due process concerns, as there 
would not be sufficient notice of what additional actions would be 
considered substantial violations. We agree with the commenters' 
concerns, and given that various grounds for debarment that are 
specified in the Final Rule, we do not believe that the ``but not 
limited to'' language is necessary. Accordingly it has been deleted 
from the regulatory text.
(4) Significant Injury to Wages, Benefits, and Working Conditions--
Proposed Sec.  655.118(b)(1)(i), New Sec.  655.118(d)(1)(i)
    An association of growers suggested that the Department clarify 
that the significant injury to wages, benefits, and working conditions 
be explicitly linked to the employer's hiring of H-2A workers, which 
the association interpreted as Congress's concern in establishing the 
labor certification process. Thus, in the opinion of this commenter, 
only significant injuries to U.S. workers that would not have occurred 
but for the hiring of H-2A workers in the occupation would be 
potentially relevant. We do not read Section 218 of the INA so 
narrowly. A substantial violation of a material term or condition of 
the labor certification with respect to the employment of U.S. or non-
immigrant workers encompasses more than injuries arising directly from 
the hiring of H-2A workers. For instance, an employer may engage in a 
pattern or practice of intentionally paying its workers at a rate below 
the minimum wage. The debarment of the employer for such a flagrant 
violation both of the FLSA and the terms and conditions of the labor 
certification would be warranted under Section 218 of the INA, despite 
the fact the violation was not strictly dependent on the hiring of H-2A 
workers.
    A group of farm worker advocacy organizations suggested that the 
Department should have the discretion to deny a certification to an 
employer who has previously engaged in

[[Page 77190]]

violations of employment-related laws, whether or not there has been a 
final administrative or judicial finding of such violations and whether 
the employer previously employed H-2A workers or sought to do so. The 
standard for debarment set forth under Section 218(b)(2)(A) of the INA 
provides that ``[t]he employer during the previous two-year period 
employed H-2A workers and the Secretary of Labor has determined, after 
notice and opportunity for a hearing, that the employer at any time 
during that period substantially violated a material term or condition 
of the labor certification with respect to the employment of domestic 
or non-immigrant workers.'' The commenter's suggestion that the 
employer only need to have engaged in a violation of employment-related 
laws, regardless of whether there has been a final finding of the 
violation or whether the employer previously employed H-2A workers 
clearly goes beyond the Department's statutory authority to debar. 
Accordingly, the Department declines to debar.
(5) Ten Percent Threshold--Proposed Sec.  655.118(b)(1)(i), New Sec.  
655.118(d)(1)(i)
    An association of growers expressed concern that under proposed 
Sec.  655.118(b)(1)(i), an employer's change in the health or 
retirement plans or benefits offered to its employees could rise to the 
level of a debarrable violation, even though the employer is in full 
compliance with the job order. The Department does not intend to 
penalize employers who are in compliance with the job order. Rather, 
the Department intends to apply debarment to acts that are 
significantly injurious to benefits required to be offered to employees 
under the H-2A program, as opposed to all benefits, such as health and 
retirement plans, that an employer may offer to its employees. 
Accordingly, the Department has added in paragraph (d)(1)(i) of the 
Final Rule as a qualifier for ``benefits,'' ``required to be offered 
under the H-2A program.''
    Several employers objected to the 10 percent threshold required for 
a significant injury under proposed Sec.  655.118(b)(1)(i) because it 
would disproportionately affect small employers--i.e., an action taken 
against one employee might be enough to trigger a substantial violation 
against a small employer. A group of farm worker advocacy organizations 
objected to the figure because it might allow egregious actions to be 
taken against numbers of employees that don't meet the 10 percent 
threshold. We recognize the concerns of both the employers and worker 
advocates and have eliminated the 10 percent threshold and replaced it 
with ``a significant number.'' Thus, small employers would not be 
disproportionately affected by this provision. At the same time, the 
provision makes it possible for a substantial violation to occur even 
if the injury affects less than 10 percent of employees if the number 
of affected employees is significant.
(6) Substantial Number of U.S. Workers Similarly Employed--Proposed 
Sec.  655.118(b)(1)(i), New Sec.  655.118(d)(1)(i)
    Two commenters objected to the language in proposed Sec.  
655.118(b)(1)(i) providing for debarment based on actions significantly 
injuring the wages, benefits, or working conditions of ``a substantial 
number of U.S. workers similarly employed in the area of intended 
employment.'' These commenters expressed concern that this language 
might be read to extend beyond U.S. workers potentially employable in 
H-2A occupations, which are the workers that the statutory ``adverse 
effect'' concept is supposed to protect. These commenters believed that 
this language might allow an employer who fully complied with all 
program requirements to be debarred based on a finding by an economic 
expert that the employment of H-2A workers depressed the wages of other 
employers' similarly employed workers in the area of intended 
employment. Another commenter also expressed concern that it would be 
impossible for an employer to know in advance whether its actions would 
be significantly injurious to such workers. We recognize these 
concerns. The Department's various program requirements of this Final 
Rule have been established to protect U.S. workers from adverse 
effects, and an employer that has complied with all of these program 
requirements should not be held responsible for any arguable adverse 
effects that were unforeseen by the Department. The Department has 
accordingly deleted the reference to ``a substantial number of U.S. 
workers similarly employed in the area of intended employment'' from 
Sec.  655.118(d)(1)(i) of the Final Rule.
(7) Significant Failure To Offer Employment to U.S. Workers--Proposed 
Sec.  655.118(b)(1)(ii), New Sec.  655.118(d)(1)(ii)
    A group of farm worker advocacy organizations expressed concern 
that the use of the term ``significant'' under proposed Sec.  
655.118(b)(1)(ii) limits the authority of the Administrator/OFLC to 
debar an employer who has taken actions injurious to workers or refused 
to offer jobs to U.S. workers. We believe that any violation by the 
employer no matter how minor or how egregious should be met with the 
appropriate penalty. Given the severity of debarment as a penalty for 
employers, however, the violations constituting the grounds for 
debarment must be significant. Employer sanctions for violations which 
do not rise to the level required for debarment are available through 
other penalties, including civil money penalties.
(8) Failure To Recruit U.S. Workers--Proposed Sec.  655.118(b)(1)(iii), 
New Sec.  655.118(d)(1)(iii)
    An association of growers suggested that the Department clarify 
that a violation in the form of ``a willful failure to comply with the 
employer's obligations to recruit domestic workers'' be subject to the 
following qualifications: (1) 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; and (2) 
such failure is material--that if the employer had done what was 
required, qualified U.S. workers willing to do the job would have been 
found. If an employer complies with the recruitment requirements of the 
Final Rule but fails to recruit U.S. workers due to the fact that such 
workers are unavailable, that would not violate the regulation. Where, 
however, an employer has willfully failed to comply with its 
obligations under the Final Rule to recruit U.S. workers, it may be 
difficult if not impossible for the Department to prove, after the 
fact, that workers would have been available if the proper steps had 
been taken. When an employer has purposely defaulted on its 
responsibility to recruit U.S. workers, a substantial violation of a 
material term of the labor certification exists and the debarment 
criteria are met. The Department therefore declines to adopt this 
suggested change.
(9) Failure To Comply With the Audit Process--Sec.  655.118(d)(1)(iv)
    The Department has explicitly included in Sec.  655.118(d)(1)(iv) 
of the Final Rule an additional ground for debarment for a significant 
failure to comply with the audit process. This potential ground of 
debarment was expressly stated in Sec.  655.112 of the NPRM, but was 
inadvertently left out of the debarment provisions.

[[Page 77191]]

(10) Outside Area of Intended Employment--Proposed Sec.  
655.118(b)(1)(vi), New Sec.  655.118(d)(1)(v)
    A law firm questioned how the employment of an H-2A worker outside 
the area of intended employment would support debarment under Section 
218(b) of the INA. As discussed earlier, the statute authorizes 
debarment when an employer substantially violates a material term or 
condition of the labor certification with respect to the employment of 
domestic or nonimmigrant workers. Section 655.105(b) requires the 
employer to attest that it is offering terms and working conditions 
normal to workers similarly employed in the area of intended employment 
and which are no less favorable than those offered to the H-2A workers 
and are not less than the minimum terms and conditions required under 
the regulations. Section 655.105(d) requires the employer to attest 
that it will continue to cooperate with the SWA by accepting referrals 
of all eligible U.S. workers who apply for the job opportunity until 
the end of the recruitment period. Finally, Sec.  655.110(b) limits the 
scope of validity of a certification to ``the area of intended 
employment.'' The area of intended employment thus plays a key role in 
determining the employer's particular obligations with respect to the 
terms and working conditions offered. An employer would not be able to 
abide by these attestations if it places its workers outside the area 
of intended employment and, accordingly, would be committing a 
substantial violation of a material term and condition of the labor 
certification with respect to the U.S. and H-2A workers alike.
    An association of growers suggested that the Department apply a 
``common sense'' interpretation of the regulations, particularly with 
respect to where a certification describes an area of intended 
employment which, for example, is within a 25 mile radius of a 
particular city, but the worker ends up working a field for a new 
customer that is 27 miles from that city. The Department understands 
the commenter's concern and expects the CO to exercise the appropriate 
judgment in the face of such circumstances.
(11) Incidental Work--Proposed Sec.  655.118(b)(1)(vi), New Sec.  
655.118(d)(1)(v)
    A group of farm worker advocacy organizations supported the 
inclusion of the employment of H-2A workers in an activity not listed 
in the job order as a debarrable offense because it would guard against 
employers that ``have shown a total disregard for the very notion of 
corresponding employment, and the results are unfair to similarly 
employed U.S. workers.'' However, several commenters expressed concern 
that employers whose workers would be performing work that is 
incidental to the activity listed in the job order could be debarred 
under proposed Sec.  655.118(b)(1)(vi) for ``the employment of an H-2A 
worker * * * in an activity not listed in the job order.'' ``Other work 
typically performed on a farm that is not specifically listed on the 
Application for Temporary Employment Certification and is minor (i.e., 
less than 20 percent of the total time worked on the job duties and 
activities that are listed on the Application for Temporary Employment 
Certification) and incidental to the agricultural labor or services for 
which the H-2A worker was sought'' is included in the definition of 
agricultural labor and services at Sec.  655.100(d)(1)(vi). 
Accordingly, work that is incidental to the particular agricultural 
labor or services that are listed in the job order would be considered 
to be part of the activity that is listed in the job order. Contrary to 
the assertion of some commenters, permitting H-2A workers to engage in 
incidental activity places those workers in the same position as 
similarly situated U.S. workers who would be expected to perform 
incidental agricultural work in addition to any specific tasks for 
which they may have been hired. The Final Rule therefore notes that the 
employment of H-2A workers in activities ``minor and incidental to the 
activity/activities listed in the job order'' does not constitute a 
program violation.
    One commenter also suggested that the regulations should provide a 
means to modify the job description covered by a temporary agricultural 
labor certification should a situation arise that requires more than 
minor incidental work, such as an act of nature requiring structural 
repairs and/or clean-up, or the temporary incapacity of a worker due to 
illness or injury who could do other work. The Department agrees with 
the commenter's concern and believes the concern is adequately 
addressed by the amendment procedures provided at Sec.  655.107(d)(3) 
of the Final Rule.
(12) After Expiration of Job Order--Proposed Sec.  655.118(b)(1)(vi), 
New Sec.  655.118(d)(1)(v)
    Although the Department did not receive any comments relating to 
this issue, the Department has replaced ``after the expiration of the 
job order and any approved extension'' in Sec.  655.118(d)(1)(v) with 
``after the period of employment specified in the job order and any 
approved extension'' and revised the corresponding heading for greater 
clarity.
(13) Fees--Proposed Sec.  655.118(b)(2), New Sec.  655.118(d)(2)
    Several commenters noted the inclusion of acts of commission or 
omission that reflect the employer's failure to pay the necessary fee 
in a timely manner as being too severe a ground for debarment and 
questioned whether the inclusion of these grounds were within the 
Department's authority under the INA. The INA authorizes debarment for 
a substantial violation of a material term or condition of a labor 
condition application with respect to the employment of domestic or 
non-immigrant workers. Section 655.109(h) specifically provides that as 
a condition of the issuance of the labor certification, the employer 
must pay the processing fee in a timely manner, and Sec.  655.105(m) 
provides that an employer must attest that all fees associated with 
processing the temporary labor certification will be processed in a 
timely manner. Additionally, a law firm objected to the inclusion of an 
employer's failure to pay the necessary fee in a timely manner because 
it does not comport with longstanding practice in other existing 
immigration procedures. However, an employer's failure to pay the 
necessary fee in a timely manner has been a ground for debarment under 
the H-2A regulations since July 1987, and the Department does not 
consider the absence of such a practice in other program areas to 
constitute a persuasive reason to eliminate it. Accordingly, the 
Department's retention of this ground for debarment supports the 
Department's longstanding practice and is necessary for the Department 
to administer effectively the H-2A labor certification process.
    Additionally, a wool growers association was concerned that if the 
check arrived one day late, then the employer could be debarred under 
proposed Sec.  655.118(b)(2). We do not read the provision to be that 
absolute and inflexible. Even though Sec.  655.109(h)(2) provides that 
fees received by the CO no more than 30 days after the date the 
temporary labor certification is granted will be considered timely, the 
language of ``timely manner'' provides the Department with some 
discretion so that a check that arrives on the 31st day would not 
automatically result in the debarment of the employer. The Department 
takes seriously its

[[Page 77192]]

responsibility to administer the H-2A program in a fair and reasonable 
manner.
    The Department, however, has decided to add the qualifier of 
``persistent and prolonged'' for the failure to pay fees in a timely 
manner in Sec.  655.118(d)(2) to ensure a farmer cannot have a 
certification revoked for a single instance of a failure to timely pay 
the fee upon certification. Furthermore, the regulation now provides 
for the issuance of a deficiency notice to the applicant, allowing for 
a reasonable opportunity to pay its fees before the issuance of the 
Notice of Intent to Debar.
(14) Fraud and Material Misrepresentation--Proposed Sec.  
655.118(b)(3), New Sec.  655.118(d)(3)
    Although no comments were received with respect to this provision, 
we have simplified the language to eliminate redundant references to 
fraud and included fraud involving the Application for Temporary 
Employment Certification as a ground for debarment in accordance with 
Sec.  655.112(d).
(15) Significant Failure To Cooperate With Investigations--Proposed 
Sec.  655.118(b)(1)(v), New Sec.  655.118(d)(4)
    Several commenters objected to the inclusion of acts of commission 
or omission that reflect action impeding an investigation. Full 
cooperation with investigations to determine compliance with the terms 
of the labor certification application and the regulations is essential 
to the viability of the H-2A program. Accordingly, the labor 
certification application provides that the employer will cooperate 
fully with any investigation undertaken pursuant to statute or 
regulation. Impeding an investigation would therefore qualify as a 
substantial violation of a material term of the labor certification 
application.
    The Department has revised the language in this provision to 
clarify that not only impeding an investigation but also a significant 
failure to cooperate with a DOL investigation would constitute a 
substantial violation. Accordingly, the Department has replaced 
``actions impeding an investigation of an employer'' with ``[a] 
significant failure to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, or law enforcement 
function'' and revised the heading accordingly.
(16) Civil Judgment/Court Orders--Proposed, Sec.  655.118(b)(1)(iv), 
New Sec.  655.118(d)(5)
    A group of farm worker advocacy organizations suggested that an 
employer's failure to pay or comply with the terms of a civil judgment 
or court order in favor of any migrant or seasonal agricultural workers 
or H-2A workers should be an additional ground for debarment and that 
such debarment should remain indefinitely until an employer has paid 
all wages due and owing former workers. A group of farm worker advocacy 
organizations also suggested that at a minimum, the regulations should 
specify that an employer who has not paid assessed back wages or civil 
money penalties or complied with an injunction sought by the Department 
or paid a judgment for employment-related claims should not be 
permitted to receive a certification.
    Several of the grounds for debarment suggested by these commenters 
reflecting substantial violations are already encompassed by these 
regulations. The three year time limit on debarment is specified in 
Section 218(b) of the INA; indefinite debarment is not permitted. 
Otherwise, the Department declines to interject any claim or remedy 
sought or any judgment awarded in private litigation into the labor 
certification process. To assure employers that the heavy sanction of 
debarment will not be imposed for trivial instances of non-compliance, 
the Department has clarified in the Final Rule that debarment is 
applicable only where an employer's non-compliance is ``significant.''
    The Department has clarified that the failure ``to comply with one 
or more decisions or orders of * * * a court'' means that the order 
must be secured by the Secretary under Section 218 of the INA. 
Accordingly, the Department has replaced the reference to ``a court'' 
with ``a court order secured by the Secretary'' in Sec.  655.118(d)(5).
(17) A Single Heinous Act--Sec.  655.118(d)(6)
    As discussed earlier, a group of farm worker advocacy organizations 
objected to the 10 percent threshold in proposed Sec.  655.118(b)(1)(i) 
because such a figure might allow egregious actions to be taken against 
a number of employees that don't meet the 10 percent threshold. The 
Department agreed and eliminated the 10 percent threshold and replaced 
it with ``a significant number'' under Sec.  655.118(d)(1)(i). However, 
in further considering the commenter's concern, the Department decided 
that it was also necessary to address situations where a single 
egregious action would constitute a debarrable offense, yet, given the 
seriousness of debarment as a penalty, ensure that only the most 
serious violators would be subject to debarment. Accordingly, the 
Department has included as an additional ground for debarment a single 
heinous act showing such flagrant disregard for the law that future 
compliance with program requirements cannot reasonably be expected.
(d) Debarment Proceedings--Proposed Sec.  655.118(c), New Sec.  
655.118(e)
(1) Statutory Authority--Requirement for Notice and Hearing
    Some commenters expressed concern that the regulations exceeded the 
statutory grant of authority for debarment provided to the Department 
under the INA. These commenters questioned whether the regulations were 
consistent with the statutory requirement that a determination of a 
violation can only be made after notice and an opportunity for hearing. 
We believe that the regulations as proposed were consistent with the 
statutory requirement for notice and an opportunity for a hearing. 
However, the Department has now included a Notice of Intent to Debar in 
the procedure to provide an additional opportunity for notice and 
rebuttal, which is consistent with the procedure under the Department's 
revocation provision at Sec.  655.117. If the employer fails to rebut 
the allegations provided in the Notice of Intent to Debar, the 
Department will issue a Notice of Debarment. The employer may then 
request a hearing through the administrative appeals process. 
Accordingly, the regulation's debarment procedures are consistent with 
the statutory requirement that a determination of a violation be made 
after notice and an opportunity for hearing. These additional 
procedures provide even greater due process protections to employers 
facing debarment.
    Additionally, several commenters questioned whether the Department 
was exceeding its statutory authority under the INA, given that a final 
determination of the violation would likely not occur until more than 
two years have passed since the violation. The INA provides that ``(A) 
the employer during the previous two-year period employed H-2A workers 
and the Secretary of Labor has determined, after notice and opportunity 
for hearing, that the employer at any time during that period 
substantially violated a material term or condition of the labor 
certification with respect to the employment of domestic or 
nonimmigrant workers. (B) No employer may be denied certification under 
subpart (A) for more than three years for any violation described in 
such subparagraph.'' 8 U.S.C. 1188(b)(2).

[[Page 77193]]

    The statute presents three requirements for denial of a 
certification. First, the employer must have employed H-2A workers 
within ``the previous two-year period;'' second, the Secretary must 
determine, after notice and hearing, that a substantial violation 
occurred during that two-year period; and third, denial of 
certification based on a finding of violations may not extend for more 
than three years. However, the statute does not place a time limit on 
when the Secretary's must issue a final determination that a 
substantial violation occurred. While a substantial violation must have 
occurred within the two-year period, so long as a determination is 
ultimately made that a violation occurred, a certification may be 
denied based on that violation. The most reasonable reading of the 
debarment provision, giving effect to all its language, is that 
Congress intended the Secretary to initiate an investigation leading to 
debarment within two years of the alleged violation and, by referring 
in Section 218(b)(2)(B) of the INA to a maximum three-year period, to 
permit any eventual debarment action to be for up to three years. The 
Department's interpretation of this provision was codified in the prior 
regulations at 20 CFR 655.110(a) and upheld in Matter of Global 
Horizons Manpower, Inc. and Mordechai Orian, ALJ No. 2005-TAE-00001 
(June 16, 2006).
    Several farm bureaus and growers' associations suggested that 
employers be provided with an opportunity to be heard before the 
issuance of a Notice of Debarment due to the concern that parties 
opposed to the H-2A program would initiate investigations that are not 
aimed at improving working conditions but rather seek to end an 
employer's ability to hire H-2A workers when qualified workers are 
unavailable. As discussed above, the Department already provides 
employers with an opportunity to be heard through the rebuttal process 
and with an opportunity for a hearing through the appeals process, and 
debarment is stayed upon the administrative appeal by an employer. 
Having an additional level of hearings would be overly cumbersome and 
impede the Department's administration of the H-2A program. Based on 
our experience with the permanent labor certification program, after 
which the H-2A program's debarment provision was modeled, we have 
concluded that the procedures set forth in the Final Rule, which 
provide the employer an opportunity to present rebuttal evidence before 
a Notice of Debarment is issued and an opportunity to appeal a 
debarment decision, provide employers sufficient protection against 
meritless claims.
    The Department has also made several minor, non-substantive 
modifications to the text of this provision in the Final Rule for 
purposes of clarity.
(2) Timing
    Commenters expressed conflicting concerns over the amount of time 
debarment procedures would entail. Two employer associations expressed 
concern that because of the length of the process, an employer could 
face uncertainty as to its debarment status and that the employer's 
ability to plan for its labor needs would be adversely affected. An 
association of growers proposed a much more drawn-out procedure 
starting with a detailed notice of an intent to debar from the 
Department, a disclosure of the full evidentiary record by the 
Department, a pre-notice hearing with a minimum of 30 days (with 
extensions), issuance of a formal notice of debarment by the Department 
which should include the factual and legal grounds for the intended 
action, prescribe an effective date that is after the time period for 
filing a timely appeal, provide at least 14 days to appeal, and 
administrative appeal by the employer, with the proceedings to be 
governed by 29 CFR part 18. We have already discussed the reasons we 
have not included a pre-notice hearing. The Final Rule already requires 
a Notice of Intent to Debar and a Notice of Debarment, both of which 
are required to state the reason for the debarment finding, including a 
detailed explanation of the grounds for the debarment. We believe that 
the commenters raised a valid point about prescribing an effective date 
that is after the time period for filing a timely appeal, and we have 
added to the regulation the requirement that the Notice of Debarment 
specify that the employer have 30 days from the date the notice is 
issued to file an administrative appeal before debarment becomes 
effective. Additionally, as we discussed in the preamble to Sec.  
655.115, the Department is creating a separate appeals process for 
debarment which allows for greater time for deliberation at the 
administrative appeals level, given the seriousness of debarment as a 
penalty. Accordingly, we have deleted the reference to Sec.  655.115 as 
governing administrative appeal rights. Under the Final Rule, a 
debarred party may request a hearing which would be governed by the 
procedures set forth at 29 CFR part 18, and administrative law judge 
decisions are no longer required to be issued within a set period of 
time. We believe that the procedures set forth in these regulations 
provide a middle ground between these two sets of concerns by providing 
a period of time that is both sufficient for thorough consideration of 
the grounds for debarment and expedient enough so as to allow the 
Department to debar bad actors before they can cause any additional 
harm while also minimizing the period of uncertainty for employers in 
the case of a successful appeal.
(3) Review by the Administrative Review Board
    Concerns by the commenters about the seriousness of debarment as a 
penalty has prompted the Department to include an additional level of 
Departmental review for debarment decisions. Accordingly, we are 
providing a debarred party with an opportunity to request a review of 
the decision of the administrative law judge with the Administrative 
Review Board (ARB). The procedures for ARB review are nearly identical 
to those provided at 29 CFR 501.42 through 501.45 for WHD. However, one 
major difference is that if the ARB fails to issue a final decision 
within 90 days from the notice granting the petition, the decision of 
the administrative law judge will be the final decision of the 
Secretary.
(4) Phasing In/Grace Period
    Two commenters suggested phasing in the Department's compliance and 
control measures so that employers have the opportunity to adapt to the 
program. We have addressed this comment in the preamble discussion of 
Sec.  655.117, which governs revocation of labor certifications.
(e) Debarment Involving Members of Associations--Proposed Sec.  
655.118(d), (e), and (f), New Sec.  655.118(f), (g), and (h)
    A group of farm worker advocacy organizations suggested that 
debarment should also apply to an association and its members' 
successors in interest so that associations and their principals will 
not be able to re-constitute themselves and continue business as usual. 
Because associations and/or their members operate as employers under 
the various scenarios addressed by the regulations in Sec.  655.118(f), 
(g), and (h), the successor in interest language for employers in Sec.  
655.118(a) would also apply to associations and their members as well. 
Accordingly, we do not believe that it is necessary to change the 
language in Sec.  655.118(f), (g), or (h).
    Although the Department did not receive any other comments relating 
to these provisions, the Department has

[[Page 77194]]

decided that when a members of an associations or an association acting 
as a joint employer is disbarred, other members of the association who 
``had knowledge of'' or ``had reason to know of'' the violation shall 
not be subject to debarment unless they participated in the violation. 
Because Section 218 of the INA requires that the employer substantially 
violate a material term or condition of the labor certification, an 
employer that merely had knowledge of, but did not actually participate 
in, the violation could not be debarred. The Department has never 
established program obligations requiring members of associations to 
report violations of other members or of associations that they have 
``knowledge of,'' and mere knowledge of another entity's violation does 
not constitute a debarrable offense. Accordingly, the Department is 
removing the references to ``had knowledge of'' and ``had reason to 
know of'' from Sec.  655.118(f) and (g). Where a member of an 
association both had knowledge of a violation and directly benefitted 
from that violation, however, the member will be considered to be 
complicit in the violation.
(f) Protections to Workers of Debarred Employers
    A legal services provider suggested that the Department establish a 
system allowing H-2A workers from a debarred or decertified employer to 
be transferred to the next available H-2A employer in the state or 
region to protect these workers from becoming jobless due to 
enforcement actions against their employer. Because debarment applies 
only to an employer's ability to obtain future labor certifications, we 
believe that it is neither necessary nor useful to set up such a 
system, as a debarred employer would not have any H-2A workers.
(m) Beyond the Scope of the Regulation
    Two grower associations suggested that the Department provide 
technical assistance to employers on complying with the H-2A program 
through training and a 1-800 hotline on selecting agents. The 
Department will provide guidance materials and training to the public 
to help explain how the H-2A program works. The Department does not 
intend at this time to establish a 1-800 phone number or referral 
system for selecting agents.
Timeline for Anticipated Training and Education Outreach Initiatives
    Commenters suggested that the Department include a timeline for 
training and education outreach initiatives in the Final Rule and 
indicate who would be responsible for such training and outreach--the 
Department or the SWAs. The commenters also provided specific ideas for 
training and educational materials, including training on how to 
respond to the threat of litigation; how to respond to audits; how to 
comply with all program functions; the application process, and how to 
avoid violations and penalties. There were also requests for training 
in both English and Spanish.
    The Department appreciates the input from commenters and the Office 
of Foreign Labor Certification will prepare and provide training based 
on these comments although at this time cannot describe the precise 
content and timing of such training.

B. Revisions to 29 CFR Part 501

    Comments received that discussed whether the commenter was 
generally in favor of or generally opposed the proposed regulations 
typically did not differentiate between the proposed changes to 20 CFR 
part 655, Subpart B and 29 CFR part 501. Comments received on proposed 
changes in 29 CFR part 501 typically commented on a specific change 
proposed in this part. These are addressed below.
    Section 218(g)(2) of the INA authorizes the Secretary of Labor to 
take such actions, including imposing appropriate penalties, seeking 
appropriate injunctive relief, and requiring specific performance of 
contractual obligations, as may be necessary to ensure employer-
compliance with the terms and conditions of employment under this 
section of the statute. The Secretary has determined that the 
enforcement of the contractual obligations of employers under the H-2A 
Program is the responsibility of the Wage and Hour Division (WHD). 
Regulations at 29 CFR part 501 were issued to implement the WHD's 
responsibilities under the H-2A Program and the amendment of these 
regulations is part of this proposed rulemaking.
    Concurrent with the Department's finalization of the proposed 
amendments to its regulations in 20 CFR part 655, Subpart B to 
modernize the certification of temporary employment of nonimmigrant H-
2A workers, the Department is finalizing the proposed amendments to its 
regulations at 29 CFR part 501 regarding enforcement under the H-2A 
Program.
    The changes proposed for enhanced enforcement to complement the 
modernized certification process, so that workers are appropriately 
protected when employers fail to meet the requirements of the H-2A 
Program, are incorporated into this Final Rule. Given the number of 
changes proposed for 29 CFR part 501 and the number of sections 
affected by the proposed changes, we have included the entire text of 
the regulation and not just the sections changed. We note that a number 
of comments suggested changes but that the existing text of the 
regulation, which was to remain unchanged, already addressed such 
issues in the manner raised in the comments. We will discuss comments 
received and any changes to the regulatory text in the NPRM in response 
to comments.
    Based on comments received and our recognition of the need for 
clarification, we made changes to the following sections of the 
proposed rule: Sections 501.0, 501.1, 501.3 through 501.6, 501.8, 
501.10, 501.15, 501.16, 501.19 through 501.22, 501.30 through 501.32, 
501.41, and 501.42.
    The following sections have not been changed from the notice of 
proposed rulemaking (other than inserting non-substantive references to 
the Administrative Review Board): Sections 501.2, 501.33, and 501.43 
through 501.45.
    The following sections were not included in the proposed rule and 
have not been amended (other than inserting non-substantive references 
to the Administrative Review Board) since publication in 52 FR 20527, 
June 1, 1987: Sections 501.7, 501.17, 501.18, 501.34 through 501.40, 
501.46, and 501.47.
Nomenclature Changes
    The proposed rule made a number of non-substantive nomenclature 
changes and technical corrections to 29 CFR part 501. These include: 
reflecting that the INA was amended in 1988 while the current 
regulations were published in June 1987 and H-2A provisions that were 
in section 216 are now codified in Section 218 of the INA; changing 
references from the State Employment Service offices to the SWA; 
reflecting that appeals from administrative law judge decisions are 
made to the Department's Administrative Review Board; and replacing in 
some sections references to the Secretary with references to the 
Administrative Review Board.
Section 501.0 Introduction
    Language was added to the proposed introduction Sec.  501.0 to 
update the reference to Section 218 of the Immigration and Nationality 
Act (INA) and provide that corresponding employment only includes U.S. 
workers who are newly hired by employers

[[Page 77195]]

participating in the H-2A Program. Two commenters disagreed with this 
change. One found the Department's argument for removing U.S. farm 
workers who are not newly hired from the protection of the H-2A 
provisions unpersuasive. The other noted that, while the Department 
justifies these changes by noting situations where H-2A workers are 
paid more than similarly employed U.S. workers will arise very rarely, 
if ever, in practice, the fact that an irrational result arises only 
rarely does not serve as a justification for ever allowing it to occur 
and requested the Department to withdraw this proposed change. As we 
stated in the preamble to the proposed rule, the INA only requires that 
the employment of the alien in such labor or services not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed. Where an employee has agreed to work at a certain 
wage, and begins to receive that wage prior to the time an employer has 
hired an H-2A worker, the subsequent hiring and payment of the H-2A 
worker at a rate that is higher than the wage received by the U.S. 
worker will not adversely affect the wages and working conditions of 
the U.S. worker--rather, the U.S. worker will be paid precisely what he 
or she would have had the H-2A worker not been hired at all. As such, 
the Department lacks the authority to require that H-2A employers pay 
existing workers the rates paid to subsequently hired H-2A workers. The 
Department has clarified in the Final Rule that the phrase ``in the 
occupations'' in proposed Sec.  501.0 means ``workers in the same 
occupations as the H-workers.''
    One commenter proposed that the definition of ``corresponding 
employment'' be clarified to exclude those persons who may be willing 
to work limited hours or fewer days than those for which full-time 
workers are sought under an H-2A job order. These regulations are 
applicable to the employment of U.S. workers newly hired by employers 
of H-2A workers in the same occupations during the period of time set 
forth in the labor certification approved by ETA. These workers are 
engaged in corresponding employment. Any U.S. worker who is hired in 
corresponding employment must receive the benefits and protections 
outlined in the H-2A job order, the work contract, and the applicable 
regulations. Consequently, an employee who is hired to perform any work 
covered by the job order during the contract period is entitled to all 
the material terms and conditions of the job order or work contract for 
the corresponding employment, but not for any time spent in work not 
covered by the job order or work contract. If part-time workers are 
engaged in corresponding employment, they are entitled to the same 
rights as the H-2A workers, including payment of the AEWR (or highest 
applicable H-2A-required rate). The H-2A record keeping requirements 
mandate the recording of all hours offered. Hours offered but not 
worked by a part-time employee would count towards the employer's 
three-fourths guarantee obligation. Some minor, non-substantive changes 
were made to the language of this provision for purposes of clarity.
Section 501.1 Purpose and Scope
    One commenter suggested that the Wage and Hour Division does not 
need to be an enforcement authority in connection with the H-2A 
Program. As discussed above, the Secretary determined that the 
enforcement of the contractual obligations of employers under the H-2A 
Program is the responsibility of the WHD and there is no clear 
rationale for discontinuing WHD's responsibilities.
    This section in the regulations previously listed as an ETA 
responsibility determining whether employment had been offered to U.S. 
workers for up to 50 percent of the contract period. The proposed rule 
requested comments on this requirement and proposed eliminating the 50 
percent rule and replacing it with expanded, up-front recruitment 
requirements. In the final rule in 20 CFR part 655, Subpart B, the 
requirement will now be whether employment has been offered to U.S. 
workers until the end of the recruitment period specified in Sec.  
655.102(f)(3), a change that is more fully discussed in the preamble to 
the final rule for 20 CFR part 655, Subpart B. The language regarding 
this requirement in the Final Rule has been modified accordingly. 
Language in this section also clarifies the WHD's role when U.S. 
workers are laid off or displaced, in light of Sec.  501.19(e) 
discussing WHD's authority to assess civil money penalties for 
violations of these requirements. Also, a commenter noted that the 
statutory language indicated that the Secretary was authorized to take 
action as described in Sec.  501.1(c) and the language has been changed 
to reflect the statute.
    One commenter suggested that the proposed language for Sec.  
501.1(c)(2) could be interpreted as disjunctive. The comment contends 
that clarifying language would deter violations by preventing employers 
from shifting liability to other entities and ensure workers' access to 
a meaningful recovery from either a FLC (see Sec.  501.10 definitions 
for H-2A Labor Contractor (H-2ALC) definition) or its bond insurer. 
Accordingly, Sec.  501.1(c)(2) includes the term ``and/or'' to 
demonstrate the liability of H-2ALCs as well as their surety for 
violations of the H-2A rules and regulations. This change is intended 
to clarify the surety's and the H-2ALC's liability and to provide an 
additional means of wage recovery.
    The language of this provision has also been modified to conform to 
changes that have been made in Sec.  501.20 of the Final Rule to WHD's 
debarment authority. The Final Rule provides that WHD may ``recommend * 
* * debarment from future certifications,'' as WHD will not have 
authority under the Final Rule to itself debar from certifications.
Section 501.2 Coordination of Intake Between DOL Agencies
    The proposed rule clarified the procedure for addressing 
contractual H-2A labor complaints filed with either the ETA or any 
State Workforce Agency (SWA). Such complaints will be forwarded to the 
WHD office of the Department and will be administratively addressed as 
provided in these regulations. No changes have been made to Sec.  501.2 
in the Final Rule.
Section 501.3 Discrimination
    Proposed Sec.  501.3(b) added two provisions to the existing 
regulation prohibiting discrimination against persons exercising rights 
under the H-2A statute. The section modified the debarment remedy to 
conform to proposed Sec.  501.20, which provided the WHD with authority 
to debar violators under certain conditions. The section also added 
language codifying the existing procedure for forwarding complaints 
based on citizenship or immigration status to the Department of 
Justice, Civil Rights Division, Office of Special Counsel for 
Immigration-Related Unfair Employment Practices. Under this procedure, 
complaints based on citizenship or immigration status are forwarded to 
the Department of Justice, while aspects of the complaints which allege 
a violation of this section, or any other portion of the H-2A statute 
or regulations, are investigated by the WHD.
    The Department received four comments on Sec.  501.3. One private 
citizen stated that guest workers should be protected from 
discrimination on the same terms as U.S. workers. One non-profit legal 
aid firm stated that H-2A

[[Page 77196]]

employers have a reputation for mistreating U.S. farm workers and urged 
the Department to closely monitor hiring and employment practices and 
severely penalize employers who discriminate against U.S. workers.
    One agricultural organization stated that the Department has not 
explained the legal basis for this authority or the proposed new 
procedures for handling discrimination claims. The agricultural 
organization also stated that Congressional intent is contrary to the 
Department's assertion of broad authority over undefined forms of 
discrimination with an uncapped make whole remedy.
    The final regulation does not contain new procedures for the 
investigation of discrimination complaints. As part of the Application 
for Temporary Employment Certification, an employer attests that it 
will not discriminate against persons who exercise their rights under 
the H-2A statute and regulations. Authority for the current regulation 
is found in Section 218(g)(2) of the INA which authorizes the Secretary 
of Labor to take such actions, including imposing appropriate penalties 
and seeking appropriate injunctive relief and specific performance of 
contractual obligations, as may be necessary to ensure employer 
compliance with terms and conditions of employment.
    The agricultural organization further stated that employment 
discrimination claims should be handled by the Equal Employment 
Opportunity Commission (EEOC). On the other hand, one farm worker 
advocacy organization argued that the Office of Special Counsel (OSC) 
has no statutory authority to enforce the rights of long-term, lawful 
permanent residents. This commenter proposed that Sec.  501.3 should be 
modified to empower the WHD to investigate and prosecute complaints of 
discrimination on all unlawful grounds, including citizenship or 
immigrant status.
    The Department has clarified the final regulation to make clear 
that the WHD will continue to investigate all alleged violations of the 
H-2A statute and regulations, and forward complaints of citizenship and 
immigration status, which it lacks authority to enforce, to the 
Department of Justice. Similarly, discrimination claims subject to EEOC 
jurisdiction will be forwarded to that agency. As noted above, where 
the same operative facts that support an allegation of citizenship 
discrimination or any other type of discrimination also support a claim 
of discrimination under the H-2A statute and regulations, which 
generally relate to retaliation for exercising rights under the 
program, the WHD will investigate the claim of discrimination under the 
H-2A statute and regulations and refer the claim of citizenship or 
other discrimination to the Department of Justice or to any other 
appropriate agency.
    The language of this provision has been modified to conform to the 
changes made in Sec.  501.20 of the Final Rule to WHD's debarment 
authority. The Final Rule provides that WHD ``may recommend to ETA 
debarment of any such violator from future labor certification,'' 
rather than stating that WHD ``may initiate action to debar any such 
violator from future labor certification.''
    Section 501.3(a)(5) of the Final Rule provides, consistent with the 
proposed rule, that an employer may not retaliate or discriminate 
against an employee who has consulted with an attorney or an employee 
of a legal assistance program. This provision does not, however, 
provide employees license to aid or abet trespassing on an employer's 
property, including by persons offering advocacy or legal assistance. 
No matter how laudable the intent of those offering advocacy or legal 
services, an employee does not have the legal right to grant others 
access to the private property of an employer. A farm owner is entitled 
to discipline employees who actively aid and abet those who engage in 
illegal activity such as trespassing. Absent any evidence of a workers' 
actively aiding or abetting such activity, however, an employer's 
adverse action against an employee in response to that employee meeting 
with a representative of an advocacy or legal services organization, 
particularly on the worker's own time and not on the employer's 
property, would be viewed as retaliation.
Section 501.4 Waiver of Rights Prohibited
    Proposed Sec.  501.4 proposed a change to the existing regulation 
to conform to the modified definition of corresponding employment in 
Sec.  501.0 and to remove language that was not necessary to the 
meaning or interpretation of the regulation. No other change was 
intended. The final regulation adds language that was included in the 
prior regulation to make clear that the prohibition on the waiver of 
rights does not prevent agreements to settle private litigation.
    An agricultural organization expressed concern that this provision 
prohibits anyone from seeking a waiver of rights and recommended that 
the Department clarify that this does not preclude offering a 
settlement, proposing a waiver or general release, or informally 
resolving disputes in the workplace. As noted above, the Department has 
included language from the current regulation stating that agreements 
to settle private litigation are not prohibited. In other contexts 
employees may not waive statutory or regulatory rights.
Section 501.5 Investigation Authority of Secretary
    This section reflects a change from the proposed rule to reflect 
that WHD will recommend debarment to ETA. See 29 CFR 501.20. In 
addition, the proposed rule provided that sanctions may be imposed on 
any employer that does not cooperate with an H-2A investigation. One 
commenter stated that the proposed rule changed the broader term person 
to employer and recommended the use of the prior language. The term 
employer is used to conform to the statutory language. To be consistent 
with language used elsewhere in the part and in 20 CFR 655 Subpart B, 
this section now includes the employer's attorney or agent.
Section 501.6 Cooperation With DOL Officials
    The proposed changes to Sec.  501.6 were intended to ensure that 
DOL officials receive cooperation from employers participating in the 
H-2A Program in conducting audits, investigations, and other 
enforcement procedures intended to ensure the efficiency and 
effectiveness of the Program and included language specifically 
addressing WHD's authority to debar under the H-2A Program. The 
regulation was changed to reflect the fact that WHD will make debarment 
recommendations to ETA and has been clarified to require all persons to 
cooperate with investigations so that a failure to cooperate, which 
encompasses interference with an investigation, would warrant 
appropriate action by WHD.
Section 501.8 Surety Bond
    In order to assure compliance with the H-2A labor provisions and to 
ensure the safety and security of workers under the H-2A Program, 
proposed Sec.  501.8 requires all H-2ALCs seeking H-2A labor 
certification to obtain a surety bond for $10,000, where the H-2ALC 
employs fewer than 50 employees, or for $20,000, where the H-2ALC's 
employees number 50 or more. The purpose of Sec.  501.8 is to ensure 
that workers employed under the H-2A Program receive all wages and 
benefits owed to them by an H-2ALC who is found to have violated the 
provisions of the H-2A Program during the period for which it was 
certified. Rather than requiring H-2ALC applicants to remit

[[Page 77197]]

the bonds directly to the Department, however, proposed Sec.  501.8 
requires that the H-2ALC attest to having obtained the required bond 
and to provide the specific bond and bonding company information in 
conjunction with the H-2A certification application.
    The proposed requirement for a surety bond from H-2ALCs was met 
with approval from two commenters. A worker advocacy organization 
suggested that the Department consider other associated worker costs in 
addition to the number of employees to compute the amount of the bond 
that the H-2ALC would have to obtain.
    Other commenters disagreed with the surety bond requirement. An 
agricultural organization that disagreed with Sec.  501.8, as it was 
proposed, argued that the surety bonds will not be financially feasible 
for any but the largest H-2A contractors. It contends that such bonds 
are not only financially constrictive but are also difficult to obtain 
in the bond underwriting market. The Department notes, however, that 
several states, including California, Illinois, Oregon, and Idaho, have 
adopted similar state regulations requiring comparable surety bond 
amounts from employers and labor contractors without causing any 
significant impediments to employers and agricultural labor 
contractors. The Final Rule has been modified in response to these 
comments, however, to create a smaller bonding requirement of $5,000 
for small H-2ALCs with fewer than 25 employees.
    Several commenters argued that the Department's ability to increase 
the bond amounts based only on its discretion is unreasonable and is 
outside the scope of the Department's authority. Instead, they suggest 
that the regulation provide more objective criteria for setting the 
bond levels instead of relying solely on the discretion of the 
Secretary of Labor.
    The Department has determined that it has the authority, where 
warranted by the circumstances and supported by objective criteria, to 
require that an H-2ALC obtain an increase in a bond amount if it is 
deemed necessary to effectuate the purposes of ensuring that the H-2ALC 
comply with the requirements and obligations of the H-2A Program. A 
clarification that objective criteria are required to support an 
increase in the bond amount has been added to the Final Rule. The due 
process rights of H-2ALCs are further preserved through the H-2ALC's 
right to request a hearing pursuant to Sec.  501.33 regarding the 
Department's determination that the amount of a bond is to be increased 
in order to be allowed to participate in the H-2A Program. By reviewing 
the historic bonding requirements in conjunction with worker claims, 
the Department preserves the discretionary authority needed to ensure 
that the obligations owed by the H-2ALCs to workers employed under the 
H-2A program are fulfilled, including wages paid, and to ensure that 
the protections offered to those workers by the H-2A Program are 
maintained.
Section 501.10 Definitions
    Section 501.10 incorporates the definitions listed in 20 CFR part 
655, Subpart B that pertain to 29 CFR part 501. The discussion of 
definitions that are common to both 20 CFR 655.100 and 29 CFR 501.10 
can be found in the preamble for 20 CFR 655, Subpart B above. Several 
changes were made to the definitions in Sec.  501.10 to conform to 
changes to the definitions in 20 CFR 655, Subpart B.
    As noted in two comments, the definition of employ in proposed 29 
CFR 501.10 was defined as to suffer or permit to work, whereas the 
terms employer and employee were defined in terms of the common law 
test. Since the two concepts are different and the use of suffer or 
permit to work is precluded by the Supreme Court opinion in Nationwide 
Mutual Ins. v. Darden, 503 U.S. 318, 322-323 (1992), the reference to 
suffer or permit to work has been removed.
    The definition of work contract has been updated to reflect 
language used in the proposed changes to 20 CFR part 655, Subpart B.
    The proposal, like the Final Rule, utilized the term successor in 
interest in Sec.  501.20. A definition of the term has therefore been 
added to the Final Rule.
Section 501.15 Enforcement
    This section updated references to Section 218 of the INA and 
changed language addressing corresponding employment. Minor, non-
substantive changes have been made to the language of the provision in 
the Final Rule for purposes of clarity and to update cross-references.
Section 501.16 Sanctions and Remedies
    The proposed rule modified the current language to conform to the 
proposed regulation at Sec.  501.20, which provided authority to the 
WHD to debar violators under certain circumstances and to conform to 
the bonding requirements in 20 CFR part 655, Subpart B.
    A farm worker advocacy organization comments that the proposed rule 
can be read to restrict payment of back wages to fixed-site employers 
in the event that a joint employment relationship exists between a 
fixed-site employer and an H-2ALC. Since it is the Department's intent 
to hold both employers in a joint employment relationship liable for 
back wages, the regulation has been clarified to make that point plain.
    The farm worker advocacy organization also commented that the 
distinction between the WHD's jurisdiction to debar and the ETA's 
jurisdiction to debar is unclear, and expressed concern that some 
violations that may merit debarment would not be acted upon. The 
commenter suggested that debarment authority be concurrent to assure 
that all appropriate allegations would be addressed. After careful 
consideration of this alternative, the Department has determined that 
WHD will make debarment recommendations to ETA. See preamble to Sec.  
501.20. The Final Rule has been modified accordingly. Because debarment 
is addressed explicitly in Sec.  655.118, and because recommendations 
of debarment are addressed explicitly in Sec.  501.20, the language 
from Sec.  501.16 of the NPRM has been deleted to avoid potential 
confusion.
    The rule has also been clarified to make explicit that back wages 
may be assessed in the event a U.S. worker is adversely affected by a 
layoff or displacement. This clarification conforms the regulation to 
the provisions of the proposed civil money penalty and debarment 
regulations which provide for penalties in the event a U.S. worker is 
adversely affected by a layoff or displacement. Assessment of back 
wages in the event of a layoff or displacement that is prohibited by 
these regulations will help to ensure that the employment of the alien 
in such labor or services will not adversely affect the wages and 
working conditions of U.S. workers similarly employed. While the 
authority to assess back wages is already provided in the proposed 
regulation, the clarification is useful in light of the explicit 
penalty provisions in Sec. Sec.  501.19 and 501.20.
    Finally, the final rule modifies Sec.  501.16 to make clear that 
injunctions may be sought to reinstate U.S. workers who are laid off or 
displaced in violation of the attestation provision found at Sec.  
655.105(j), where the Administrator/WHD has found a violation and the 
employer has refused reinstatement.
Section 501.19 Civil Money Penalty Assessment
    Section 218(g)(2) of the INA authorizes the Secretary to set

[[Page 77198]]

appropriate penalties to assure compliance with the terms and 
conditions of employment under the H-2A statute. Proposed Sec.  501.19 
increased the maximum civil money penalties from the current maximum of 
$1,000 per violation. Section 501.19(c)(1) proposed an increase to a 
maximum penalty to $5,000 per worker for a willful failure to meet a 
condition of the work contract or for discrimination against a U.S. or 
H-2A worker who filed a complaint, has testified or is about to 
testify, or has exercised or asserted a protected right. Section 
501.19(d) proposed a change to the maximum penalty for interference 
with a WHD investigation to $5,000 per investigation. Section 501.19(e) 
proposed an increase to $15,000 for the maximum penalty for a willful 
failure to meet a condition of the work contract that results in 
displacing a U.S. worker employed by the employer during the period of 
employment on the employer's application, or during the period of 75 
days preceding such period of employment. Section 501.19(c)(2) proposed 
a new penalty of up to $50,000 per worker for a violation of an 
applicable housing or transportation safety and health provision of the 
work contract that causes the death or serious injury of any worker. 
The section also proposed a new penalty of up to $100,000 per worker 
where the violation of a safety and health provision involving death or 
serious injury is repeated or willful.
    Three worker advocacy organizations and a U.S. Senator supported 
the Department's proposal to increase the amount of fines and penalties 
for noncompliance with H-2A rules. One commenter stated that enhanced 
enforcement activities are key to an effective attestation-based 
application program and encouraged the Department to utilize all fines 
levied for noncompliance to further enhance enforcement measures. 
Similarly, one worker advocacy organization stated that the increased 
money penalties are welcomed and may have some tangible deterrent 
effect; however, it did not think they were adequate to achieve 
meaningful assurance of employer compliance.
    Fourteen commenters opposed the proposed increases in penalties and 
fines, arguing that the increases are excessive. Six commenters argued 
that the excessive increases in fines and penalties would discourage 
employers, especially new employers, from using the H-2A Program. Some 
agricultural organizations raised concerns that the increased penalties 
would deter employers from participating in the program out of fear 
that excessive penalties could end a business. Similarly, some 
agricultural organizations argued that the increased penalties are 
excessive given the complicated nature of the program and the 
likelihood of an inadvertent mistake on the part of the employer that 
could prove to be financially disastrous. One farm labor contractor 
argued that the fines are unnecessary since employers strive to treat 
all workers fairly and attempt to follow the rules.
    Some commenters suggested that the Department not assess a $5,000 
civil money penalty against employers new to the H-2A Program and the 
certification requirements. While one commenter endorsed and encouraged 
the Department's ability to utilize all fines and penalties for 
noncompliance with the H-2A rules, he raised some concern that the 
proposal does not provide any leeway to new users of the program. The 
commenter recommended a graduated system of fines to allow for a 
learning curve for new users. Similarly, one agricultural organization 
suggested that the civil money penalties be graduated for the first, 
second, and third offenses to allow for a learning curve due to the 
complexity of the program.
    Initially, it should be noted that the current regulation at 29 CFR 
501.19(c) provides penalties in the maximum amount of $1,000 for each 
act of discrimination or interference. While the Final Rule will result 
in increased penalties in some cases, it will also limit penalties for 
discrimination to $5,000 per worker and penalties for failure to 
cooperate to $5,000 per investigation, creating new caps for these 
penalties. The Department has revised 29 CFR 501.19(d) to cover a 
``failure to cooperate with an investigation'' so that the language of 
the violation is consistent with Sec. Sec.  501.6, 501.20, and 501.21.
    The Department does not believe that higher penalties, where 
applicable, will prevent employers from participating in the H-2A 
Program. Rather, the Department agrees with this commenter that 
enhanced enforcement activities are key to an effective attestation-
based application program and will assist the Department in enforcing 
worker protections. The higher penalties are an important and effective 
deterrent against violators who disregard their obligations under the 
attestation program and/or who discriminate against workers.
    It is worth noting that some commenters believe that the penalties 
are excessive, while others claim they are inadequate. The Department 
believes that the general penalties of no more than $1,000 for each 
violation, and $5,000 for each willful failure to meet a covered 
condition of the work contract or for willful discrimination, are fully 
appropriate, and those penalties have been left unchanged in the Final 
Rule. To clear up ambiguities in the proposed rule, however, the 
Department has inserted clarifying language specifying how it is that 
the existence of separate violations subject to those penalties will be 
determined.
    While the new sections increase the amount of the penalties that 
the Department may seek for some violations, they do not modify or 
change in any way the relevant factors that the Administrator/WHD will 
use in determining the amount of the penalty as listed in the prior 
rule. The Administrator/WHD will not seek the maximum amount for every 
violation. Rather, the Administrator/WHD will continue to evaluate the 
relevant factors listed in Sec.  501.19(b), and the totality of the 
circumstances, when determining the amount of the penalty. The factors 
that will be considered include, but are not limited to, the previous 
history of violation(s) of the H-2A provisions of the Act and the 
regulations; the number of H-2A employees, corresponding U.S. employees 
or those U.S. workers individually rejected for employment affected by 
the violation(s); the gravity of the violation(s); efforts made in good 
faith to comply with the H-2A provisions of the Act and these 
regulations; explanation of the person charged with the violation(s); 
commitment to future compliance, taking into account the public health, 
interest or safety, and whether the person has previously violated the 
H-2A provisions of the Act; and the extent to which the violator 
achieved a financial gain due to the violation, or the potential 
financial loss or potential injury to the worker. The phrase ``H-2A 
employees, corresponding U.S. employees or those U.S. workers 
individually rejected for employment'' has been substituted for the 
phrase ``workers'' in Sec.  501.19(b)(2) of the current regulation to 
clarify the scope of potentially impacted workers that the Department 
will examine in determining an appropriate penalty, and to make clear 
that workers will not be considered unless they were sufficiently 
proximate to the violation in question that the Department can fairly 
consider the workers to have suffered a direct adverse effect. These 
criteria assure that excessive penalties will not be assessed and that 
penalties will be appropriately tailored when minor or inadvertent 
violations are committed.

[[Page 77199]]

    As previously noted, the Department's proposal also allows the 
Administrator/WHD to seek higher civil money penalties for a violation 
of an applicable housing or transportation safety and health provision 
of the work contract that causes death or serious injury of any worker. 
The Department has corrected a typographical error in Sec.  
501.19(c)(3), which inadvertently stated that ``[f]or purposes of 
paragraph (c)(3) of this section, the term serious injury means.'' The 
proposed section should have referenced paragraph (c)(2).
    One agricultural organization supported increased prosecution of 
repeat or flagrant violators of the H-2A Program instead of 
implementing excessive fines for inadvertent violations. Some 
commenters disagreed with the $50,000 penalty per worker for these 
violations, and one agricultural organization opposed additional 
penalties of $50,000, and $100,000 for violations that result in injury 
and death. These commenters expressed concerns that in some 
circumstances an employer could have no reasonable means of knowing 
about housing or transportation defects or an employee's misbehavior or 
carelessness that could lead to serious injury or death. One 
agricultural organization argued that these penalty increases would not 
reduce accidents but would rather deter employers from participating in 
the H-2A Program.
    The Department is sensitive to the fact that the proposed penalties 
represent increases of up to 100 times the current maximum penalty 
amount. Nevertheless, the Department believes that the current 
penalties are grossly inadequate to address serious program violations 
that kill or seriously injure workers. In light of the concerns 
expressed, however, and to better tailor the proposed very substantial 
penalties to the employer's actual level of culpability, the Department 
has modified the penalties in the Final Rule. The Final Rule provides 
that ``[f]or a violation of a housing or transportation safety and 
health provision of the work contract that proximately causes the death 
or serious injury of any worker, the civil money penalty shall not 
exceed $25,000 per worker, unless the violation is a repeat or willful 
violation, in which case the penalty shall not exceed $50,000 per 
worker, or unless the employer failed, after notification, to cure the 
specific violation, in which case the penalty shall not exceed $100,000 
per worker.''
    The Department also notes in response to these commenters that the 
Administrator/WHD will not seek the full amount in every circumstance. 
The Department will continue to evaluate the relevant factors listed in 
Sec.  501.19(b), and the totality of the circumstances, to determine 
the civil money penalty assessment for these violations. For instance, 
the gravity of the violation(s); efforts made in good faith to comply 
with the H-2A provisions of the Act and these regulations; explanation 
of the person charged with the violation(s); and the extent to which 
the violator achieved a financial gain due to the violation, or the 
potential financial loss or potential injury to the worker will be 
considered by the Department in determining the civil money penalty 
assessment against an employer for a violation of an applicable housing 
or transportation safety and health provision of the work contract that 
causes death or serious injury of any worker. The Department believes 
that evaluating these relevant factors, along with the totality of the 
circumstances, should alleviate the commenter's concerns that excessive 
penalties will be assessed for inadvertent violations. Furthermore, one 
commenter expressed concern that serious injury is not further defined. 
It is the Department's view that Sec.  501.19(c)(3), which defines 
serious injury as the permanent loss or substantial impairment of the 
senses, function of a bodily member, organ, or mental faculty, or the 
loss of movement of a body part, is sufficient to put employers on 
notice as to the types of injuries that the Department will consider 
when assessing a penalty.
    One agricultural organization stated that penalties are not the 
proper deterrent to stop safety violations because they are imposed 
after an accident and recommended greater emphasis on preventing 
accidents. Similarly, two agricultural organizations requested a 
specified time period for employers to correct violations before 
penalties would be assessed. One agricultural organization stated that 
employers who make good faith efforts to comply with the revised H-2A 
Program should be allowed a 60 day compliance period to correct the 
error without the assessment of fines and penalties.
    While the Department recognizes the need to prevent accidents 
before they happen, the Department believes that the burden to do so 
should rest with the employer who has attested that the housing and/or 
transportation provided to the workers meets all applicable 
requirements. Furthermore, the ability to assess a civil money penalty 
where violations have been found will serve as an important incentive 
for employers to ensure that the housing and transportation that they 
provide are safe to the H-2A and U.S. workers and meet all applicable 
safety and health requirements. The Department does not believe that a 
60 day compliance period after a violation has been discovered would 
ensure that employers fulfill their obligations to provide safe housing 
and transportation. Rather, the 60 day compliance period would not be 
an effective deterrent for employers who might not cure safety 
violations until discovered by the Department.
    One law firm argued that, to the extent that the Department 
contemplates issuing fines for violations of other laws, such as the 
Occupational Safety and Health Act or Fair Labor Standards Act, those 
fines would be duplicative and not authorized by law. The law firm also 
argued that there is no justifiable basis for treating H-2A employers 
more harshly than non-H-2A employers for violations of the same 
statute, but even if special treatment for violations of other laws by 
H-2A employers could be justified, any enhanced enforcement through 
heavier penalties or other punitive action for failure to comply fully 
with other laws as violations of the H-2A regulations should at least 
be deferred for at least 3 years after any new rules are implemented. 
The Department does not and will not assess penalties for the same 
housing violation under multiple laws at the same time. Where an 
employer violates an OSHA Temporary Labor Camp standard, which could 
also be a violation of the H-2A housing regulations, a violation will 
be charged under only one of those statutes. WHD follows this practice 
in enforcing OSHA temporary labor camp standards and MSPA housing 
standards that can apply to the same facility. However, an employer has 
an obligation to follow all applicable laws and regulations. To the 
extent that an employer is covered by the FLSA, the Division may 
enforce and seek remedies under both the H-2A program and the FLSA. Of 
course, payment of the AWER, or the prevailing hourly wage or piece 
rate under the H-2A Program, would also satisfy the obligation to pay 
the minimum wage under the FLSA. While all of the facts and 
circumstances of a given case will be considered in the assessment of 
any penalty, the Department has determined that a blanket 3 year 
deferral of penalty assessments is not warranted.
    The proposed Sec.  501.19(e) states that the civil money penalty 
shall not exceed $15,000 per worker for willful layoff or displacement 
of any similarly situated U.S. worker employed in the occupation that 
is the subject of the Application for Temporary Employment 
Certification in the area of intended employment within

[[Page 77200]]

the period beginning 75 days before the date of need. A civil money 
penalty will not be assessed for layoffs where the employer has offered 
the opportunity to the laid-off U.S. worker, and the U.S. worker(s) 
either refused the job opportunity or was rejected for the job 
opportunity for lawful, job-related reasons. The Final Rule has changed 
the 75 day period to a period within 60 days of the date of need in 
conformity with the change to Sec.  655.100(a)(1)(ii) which modified 
the requirement that the employer begin advertising within 75 days of 
the date of need to within 60 days of the date of need.
    Some commenters argued that $15,000 for displacement of a domestic 
worker was excessive and could put a small farm out of business. The 
Department is sensitive to the fact that this penalty represents a 
fifteen-fold increase in the maximum penalty provided for any offense 
under the current regulations. Nevertheless, unlawfully displacing a 
domestic worker is a serious offense that has a substantial adverse 
effect on the displaced worker, and thus falls within the core of the 
Department's enforcement responsibilities. Balancing these competing 
concerns, the Department has decided to adopt a $10,000 maximum penalty 
for displacement of a U.S. worker in the Final Rule, a tenfold increase 
over the current maximum penalty for any violation. This penalty will 
provide the Department with an important enforcement tool under this 
attestation-based program. The Department believes that a significant 
penalty will serve as an important deterrent for employers who might 
turn away qualified U.S. workers from an occupation covered by an 
Application for Temporary Employment Certification. As discussed above, 
the Department will continue to evaluate the relevant factors listed in 
Sec.  501.19(b), as well as the totality of the circumstances, to 
determine the civil money penalty assessment for these violations.
    One commenter argued that the Department was purporting to legalize 
the displacement of U.S. farm workers based on nothing more than an 
employer's unscrutinized, self-serving statement that U.S. workers did 
not want, or were unqualified for, the job. The Department did not 
intend this consequence, and on further consideration has determined 
that such an expansive safe harbor provision for layoffs is not 
necessary. Layoffs that are for lawful, job-related reasons are already 
protected under the text of the Final Rule, and the Department does not 
believe that it is appropriate to allow an employer to legitimize an 
otherwise illegal layoff simply by later offering the laid-off employee 
a new position. The Department has therefore limited the application of 
the safe harbor provision to situations ``where all H-2A workers were 
laid off'' before any U.S. workers were. In such a situation, the 
employment of H-2A workers will not have factored into the layoff of 
the U.S. workers.
    One agricultural organization argued that the safe harbor provision 
seems to require an actual offer and would not be satisfied by a good 
faith, but unsuccessful, attempt to locate the domestic worker. The 
agricultural organization noted that it may be difficult to locate 
domestic workers to make the offer and recommended that the attestation 
could be satisfied with reasonable, good-faith efforts to contact these 
workers through a written communication to the worker's last known 
address or any other reasonably specific attempt to make contact. In 
light of the modifications to the safe harbor provision, these comments 
have been rendered moot.
    The agricultural organization also argued that this section should 
be revised because the maximum period of admission under the H-2A 
Program for one employer is 10 months, making it possible that the 
employer could discharge the domestic worker at the end of the 
employer's period of need and then begin a new employment period 2 
months later. This employer would have discharged the domestic worker 
within the displacement provision timeline, notwithstanding the fact 
that the employer was in compliance with the H-2A Program. The 
agricultural organization argued that this could expose employers to 
large fines for no reason other than the timing of the seasons. The 
agricultural organization recommended that the section be revised to 
reflect the time frames inherent in the H-2A regulations to avoid this 
inequitable outcome. As noted above, the time frames have been modified 
to prohibit displacement and layoff within 60 days of the date of need. 
In any event, in light of the modifications to the safe harbor 
provision, these comments have been rendered moot.
    One law firm requested that the Department remove what they 
considered improper, substantial new penalties against agents and 
attorneys of H-2A employers who are found or accused of making material 
misrepresentations in the certification application process. The law 
firm stated that such disciplinary measures are usually handled through 
the state bar association and that imposing substantial penalties, 
including debarment merely for accusations of material 
misrepresentations, is a violation of due process principles. There is 
no explicit reference in this provision to attorneys or agents. As is 
discussed at greater length in the preamble to Part 655, the Department 
will not hold attorneys and agents strictly liable under the Final Rule 
for the misconduct of their clients. Rather, the Department will 
require some degree of personal culpability on the part of attorneys 
and agents before applying any form of penalty to them.
    Some commenters argued that the new regulations failed to provide 
an appeals process for violations or fines and requested that 
procedures be developed to allow employers to appeal violations and 
fines when good faith efforts were taken to comply with the rules. The 
Department already provides such a process in Subpart C--Administrative 
Proceedings. The current Sec.  501.30 provides the administrative 
proceedings that will be applied with respect to a determination to 
impose an assessment of civil money penalties. Under current and 
proposed Sec.  501.33(a), any person who desires review of a civil 
money penalty determination shall make written request for an 
administrative hearing no later than 30 days after issuance of the 
notice to the official who issued the determination at the Wage and 
Hour Division. Such timely filing of an administrative appeal stays the 
determination pending the outcome of the appeals process pursuant to 
proposed Sec.  501.33(d).
Section 501.20--Debarment and Revocation
    The current regulations provide ETA with the authority to deny 
certification (i.e., debarment) and revoke certificates while requiring 
the WHD to report findings and make recommendations to ETA to deny 
future certifications and revoke current certificates. The NPRM 
proposed providing debarment authority for issues arising from WHD 
investigations to the Administrator/WHD, while debarment authority for 
issues arising out of the attestation process would have remained with 
ETA. The Final Rule modifies the proposal by adhering to the current 
practice, providing ETA authority for debarment and revocation, and 
providing the Wage and Hour Division authority to make a debarment 
recommendation.
    A number of commenters opposed extending debarment authority to the

[[Page 77201]]

WHD. These commenters requested that debarment authority remain with 
ETA to avoid inconsistencies in the interpretation of the H-2A 
regulations between WHD and ETA. One of these commenters stated that 
extending debarment authority to the WHD would enhance enforcement, 
while recommending regulatory language requiring coordination between 
the two agencies. One commenter stated that the WHD should have 
concurrent debarment authority with ETA to ensure that debarment is 
available for all appropriate violations.
    After a careful review of the comments, the Department has 
concluded that providing debarment authority to two different agencies 
within the Department for different, though potentially overlapping 
types of violations could result in unnecessary confusion. Debarment 
authority will therefore remain with ETA, which will entertain 
recommendations from WHD.
    However, under the current system the Board of Alien Labor 
Certification Appeals (BALCA) adjudicates appeals of ETA debarment 
determinations based upon WHD recommendations, while appeals of WHD 
back wage and civil money penalty assessments are adjudicated by the 
Administrative Review Board (ARB). WHD debarment recommendations 
generally arise from the same set of facts, involving the same evidence 
as WHD back wage and civil money penalty assessments. To conserve 
resources and avoid unnecessary duplication of litigation, the Final 
Rule specifies at Sec.  501.20(e) that ``In considering a 
recommendation made by the Wage and Hour Division to debar an employer 
or to revoke a temporary agricultural labor certification, the 
Administrator/OFLC shall treat final agency determinations that the 
employer has committed a violation as res judicata and shall not 
reconsider those determinations.''
    The standards for debarment recommendations used by WHD have been 
conformed to ensure that they are identical to the standards used by 
ETA for debarment actions under 20 CFR 655, Subpart B, thus ensuring 
consistency in application, though ETA has some additional standards 
that are not applicable to the WHD role and will not be utilized by 
WHD.
    The proposed rule did not include a change to the current 
revocation procedures, under which WHD provides recommendations to ETA 
for certificate revocation. That procedure is adopted in the Final 
Rule, together with more specific revocation criteria, which have been 
modified to conform to the criteria set forth in 20 CFR 655, Subpart B.
Section 501.21 Failure To Cooperate With Investigations
    Section 501.21 has been modified in the Final Rule to conform to 
the changes made in Sec.  501.20 regarding WHD's authority to make 
debarment and revocation recommendations to ETA. The relevant language 
in the Final Rule now provides that ``a civil money penalty may be 
assessed for each failure to cooperate with an investigation, and other 
appropriate relief may be sought. In addition, the WHD shall report 
each such occurrence to ETA, and ETA may debar the employer from future 
certification. The WHD may also recommend to ETA that an existing 
certification be revoked.''
Section 501.22 Payment and Collection of Civil Money Penalties
    No changes to this section were proposed in the NPRM. The text of 
the current regulation has been included in the Final Rule with only 
one alteration, specifying that a ``penalty is due within 30 days.''
Section 501.30 Applicability of Procedures and Rules
    The language in Sec.  501.30 was revised in the proposed rule to 
illustrate the administrative process for assessing civil money 
penalties and seeking a debarment under the H-2A Program. With the 
exception of civil money penalty assessments and debarment disputes, 
the Department of Labor may file an action directly in Federal court 
seeking enforcement. Section 501.30 has been modified in the Final Rule 
to conform to the changes made in Sec.  501.20 regarding WHD's 
authority to make debarment recommendations to ETA.
Section 501.31 Written Notice of Determination Required
    The administrative process was revised in the proposed rule to 
reference WHD's authority to debar. Section 501.31 has been modified by 
deleting the phrase ``to debar'' to reflect the fact that WHD 
recommendations for debarment do not constitute ``determinations'' of 
the Administrator/WHD that are subject to hearing requests under Sec.  
501.33.
Section 501.32 Contents of Notice
    This section was revised in the proposed rule to reference WHD's 
authority to debar. Section 501.32 has been modified by deleting the 
phrase ``whether to debar and the length of the debarment'' to reflect 
the fact that WHD recommendations for debarment do not constitute 
``determinations'' of the Administrator/WHD that are subject to hearing 
requests under Sec.  501.33.
Section 501.33 Requests for Hearing
    The proposed rule added language to the regulation to make clear 
that exhaustion of the appeal of the Administrator/WHD's determination 
is required before a party may appeal an agency ruling to Federal 
court. No comments were received and the Final Rule is adopted as 
proposed.
Section 501.41 Decision and Order of Administrative Law Judge
    Some minor, non-substantive changes were made to paragraph (c) of 
this provision, including the creation of a new paragraph (d), for 
purposes of clarity and consistency with Sec.  501.42.
Section 501.42 Exhaustion of Administrative Remedies
    Proposed Sec.  501.42 clarified the current regulation to assure 
that the exhaustion of all administrative remedies is required before 
an appeal of the decision of the administrative law judge can be taken 
to the Federal courts pursuant to the Administrative Procedure Act.
    One commenter noted that the additional language, stating that the 
decision of the administrative law judge shall be inoperative pending 
final review of the Administrative Review Board's (ARB) decision, was 
unnecessary to ensure exhaustion and harmful to workers. In Darby v. 
Cisneros, 509 U.S. 137, 152 (1993), the Supreme Court decided that 
agencies may not require exhaustion of administrative remedies before 
an appeal may be filed with a federal district court unless a rule is 
adopted that an agency appeal must be taken before judicial review is 
available, and it is provided that the initial decision is inoperative 
pending appeal. Id. Accordingly, the additional language is necessary 
to the exhaustion requirement. Further, it is unclear what harm may 
result from requiring that workers await a decision by the ARB before 
appealing to Federal court. There is a distinct public benefit from the 
uniform agency decision making process accorded by ARB review. 
Additional language has been added to this provision to clarify when an 
administrative law judge's decision becomes final agency action.

C. Revisions to 29 CFR Parts 780 and 788

    In the notice of proposed rulemaking (NPRM) published February 13, 
2008, the Department proposed a modification to Parts 780 and 788 of 
the FLSA

[[Page 77202]]

regulations to recognize that the production of ``Christmas'' trees 
through the application of agricultural and horticultural techniques to 
be harvested and sold for seasonal ornamental use constitutes 
agriculture as the term is defined under the FLSA. As explained in the 
preamble to the NPRM, the Department deemed this change necessary in 
light of the Fourth Circuit Court of Appeals' decision in U.S. 
Department of Labor v. North Carolina Growers Association, 377 F.3d 345 
(4th Cir. 2004), and because it recognizes that modern production of 
such trees typically involves extensive care and management.
    Many individual employers, trade associations, and associations of 
growers approved of the Department's proposed rule to classify 
Christmas tree farming as an agricultural activity under FLSA. Several 
commenters noted that the Christmas tree industry had undergone 
significant changes, such as no longer harvesting from natural stands, 
in the time since the FLSA was first passed in 1938. Commenters also 
listed a range of current common practices shared by Christmas tree 
producers and other row crop farmers, such as planting, pruning, weed 
control, pest control, transplanting, and harvesting under a deadline. 
The insight provided by these comments further confirms that the 
determination to classify Christmas tree farming as agriculture under 
the FLSA is appropriate.
    Two commenters suggested that many of these activities were also 
covered by the 1938 FLSA primary definition of agriculture. Moreover, 
the commenters maintained that, since the FLSA classifies nursery 
activities as an agricultural activity, Christmas tree production and 
harvesting, which the commenters believed to be nearly identical to 
those in nursery production and harvesting, must also be classified as 
agricultural activity.
    Several commenters expressed appreciation for the Department's 
attempt to establish a national standard for Christmas tree labor 
status. Several others maintained that the ambiguity surrounding the 
industry's status had hurt Christmas tree growers nationally because 
laws were not being applied in a uniform fashion across the states. In 
addition, many commenters pointed to the Fourth Circuit's 2004 decision 
in North Carolina Growers Association, in which the court held that 
Christmas tree farming fit the definition of agriculture as proof that 
Christmas tree production was an agricultural activity. See 377 F.3d at 
352. This holding created confusion between the Department's 
classification and federal law. Two commenters noted that Christmas 
tree growers located in the Fourth Circuit may have achieved clarity 
with respect to their status as agricultural producers, but the status 
of all other Christmas tree growers not within the jurisdiction of the 
Fourth Circuit remained unclear until now.
    Other commenters added that, under many other federal rules 
including property tax, sales tax, and agricultural worker's protection 
standards for pesticide use, Christmas tree growers were already 
considered to be agricultural. Several commenters acknowledged that 
certain Christmas tree growers may dig trees with a soil ball, which is 
considered a nursery activity and therefore an agricultural activity, 
but may also produce trees for harvesting by cutting, which has, 
historically, not been considered to be agricultural activity. The 
commenters noted that the decision to dig or cut a tree depends on 
market conditions at the time of harvest, and the same employees could 
hypothetically participate in both scenarios. Two commenters concluded, 
however, that this difference between nursery and Christmas tree 
harvesting was irrelevant because the production practices remained the 
same and should be construed as agriculture. Likewise, one commenter 
wrote that the same equipment was often used for both Christmas tree 
production and nursery projects.
    Three commenters offered suggestions for minor changes to the rule 
stating that the proposed language offered overly specific timeframes 
for horticultural operations. The commenters argued that such 
timeframes may vary according to region and tree species and that 
future changes to horticultural procedures might affect some of the 
listed activities in the rule. One commenter further stated that 
removing the timeframes would not affect the Christmas tree industry's 
ability to operate within the FLSA's definition of agriculture, but 
would possibly eliminate an unnecessary rigidity that might otherwise 
disqualify Christmas tree production that appropriately qualifies for 
agricultural status. The Fourth Circuit's reasoning in the North 
Carolina Growers Association case clearly articulated that performance 
of certain actions on the plants is an important indicator that what is 
being produced is a seasonal ornamental horticultural commodity. See 
377 F.3d at 345. The regulatory language addressing timeframes is 
sufficiently flexible to allow for variation in timeframes due to 
region, species, and procedural differences. Indeed, the Final Rule 
expressly qualifies the listed timeframes by saying that the 
agricultural techniques applied must be those ``such as the 
following.'' The Department will not apply the listed timeframes with 
undue rigidity.
    One commenter, commenting on its own behalf and on behalf of 
numerous advocacy groups, opposed the rule, asserting that, while the 
H-2A program offered more comprehensive protections for workers than 
did the H-2B classification (under which many Christmas tree harvest 
workers had previously been allowed into the country to work), 
Christmas tree workers under the H-2A Program would lose their coverage 
under MSPA as well as their claims to overtime. The commenter added 
that the matter of overtime pay was critical because the Christmas tree 
harvest season can be extremely intense with extensive overtime work. 
Temporary, non-immigrant workers for Christmas tree production have 
been brought in under the H-2A Program and not the H-2B non-
agricultural Program for many years now based on the IRC definition of 
agriculture, which the H-2A regulations use (as well as the FLSA 
definition of agriculture), and would not have been within the 
definition of a worker subject to MSPA. The proposed rule insures 
equity within the industry in that employers across the country will be 
bound by the same requirements under the FLSA in the wake of the Fourth 
Circuit's North Carolina Growers Association decision. See id. The 
Department is adopting the proposed changes for 29 CFR Part 780 without 
change.
    No comments were received with respect to the proposed change to 29 
CFR Part 788.10. Therefore, the Department is adopting the proposed 
rule without change in the Final Rule.

III. Administrative Information

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (E.O.) 12866, the Department must determine 
whether a regulatory action is ``significant'' and therefore subject to 
the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB). Section 3(f) of the E.O. defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule (1) having an annual effect on the economy of $100 million or 
more, or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or

[[Page 77203]]

tribal governments or communities (also referred to as ``economically 
significant''); (2) creating serious inconsistency or otherwise 
interfering with an action taken or planned by another agency; (3) 
materially altering the budgetary impacts of entitlement grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raising novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the E.O. The Department has determined that this Final Rule is not 
an ``economically significant regulatory action'' under Section 3(f)(1) 
of E.O.12866. The procedures for filing an Application for Temporary 
Employment Certification under the H-2A visa category on behalf of 
nonimmigrant temporary agricultural workers, under this regulation, 
will not have an economic impact of $100 million or more. The 
regulation will not adversely affect the economy or any sector thereof, 
productivity, competition, jobs, the environment, nor public health or 
safety in a material way. In fact, this Final Rule is intended to 
provide relief to affected employers both directly, by modernizing the 
process by which they can apply for H-2A labor certification, and 
indirectly, by increasing the available legal workforce. The 
Department, however, has determined that this Final Rule is a 
``significant regulatory action'' under Section 3(f)(4) of the E.O. 
Summary of Impacts. The changes in this Final Rule are expected to have 
little net direct cost impact on employers, above and beyond the 
baseline of the current costs required by the program as it is 
currently implemented. The re-engineering of the program requirements, 
including attestation-based applications and pre-application 
recruitment, will have the effect of reducing employer application 
costs in time and resources and introduce processing efficiencies that 
will reduce costs for employers, particularly costs associated with 
loss of labor due to delayed certifications.
    Employer costs for newspaper advertising will increase slightly, as 
the Final Rule will require that one of the two currently required 
advertisements be run on a Sunday. However, the Department believes 
that this cost increase will be offset by the certainty the Final Rule 
will provide regarding total recruitment costs. Most significantly, the 
Final Rule has eliminated the possibility that additional, unstated 
recruitment measures may be imposed on program users at the last 
minute, and further provides program users an annual list of 
traditional labor supply states that will inform them in advance of 
precisely where they will be required to engage in out-of-state 
newspaper advertising.
    Civil money penalties have increased substantially under the Final 
Rule, but these represent avoidable costs, and the Department believes 
that they will have the deterrent effect of fostering greater program 
compliance under the Final Rule.
    The biggest cost to employers under the Final Rule is likely to be 
an increased cost of foreign recruitment, since employers can no longer 
allow foreign recruiters with whom they are in privity of contract to 
charge foreign workers fees for recruitment. The Department believes 
that this cost can be substantially offset by collaborative 
recruitment, however, and that it will not be so large as to overcome 
employers' cost savings resulting from streamlining of the application 
process and program efficiencies. The Department requested comment on 
what costs these policies introduce and what efficiencies may be gained 
from adopting these new procedures, to foster a thorough consideration 
and discussion of the rule's costs and benefits before its 
finalization. Several commenters believed that the proposed changes 
could increase costs for employers and doubted that they would achieve 
the proposed objectives. Many of these concerns have been addressed by 
changes in the Final Rule, including reductions in the newspaper 
advertising and record retention requirements.
    The additional record retention costs for employers are minimal and 
the Final Rule includes a three-year requirement as compared to the 
originally proposed five-year requirement. The new record retention 
requirements will require a burden of approximately ten minutes per 
year per application to retain the application and supporting documents 
above and beyond the one year of retention required by regulations of 
the Equal Employment Opportunity Commission (EEOC) at 29 CFR 1602.14, 
promulgated pursuant to Title VII of the Civil Rights Act and the 
Americans With Disabilities Act, and 29 CFR 1627.3(b)(3), promulgated 
pursuant to the Age Discrimination in Employment Act. In FY 2007, 7,725 
employers filed requests for 80,294 workers. Using standard 
administrative wage rates, including benefits, of $60.42 \15\ per hour, 
this additional burden for each of the two years following the mandated 
year above is approximately $77,791 total per year (or approximately 
$10 per applicant per year) if the current number of requests remains 
constant. Any increase in the use of the program would result in the 
same ultimate burden to each individual applicant.
---------------------------------------------------------------------------

    \15\ Derived by utilizing the Bureau of Labor Statistics 2006 
median wage for Human Resources Manager wage of $42.55 and a 1.42 
factor for the cost of benefits and taxes.
---------------------------------------------------------------------------

    Employers will experience efficiencies as a result of the 
reengineering of the process. These savings are expected to result 
primarily from the simplified attestation-based application. While the 
Department cannot precisely estimate the cost savings as a result of 
this time saved, it believes that employers will experience economic 
benefits as a result of this reengineering of the application process 
to an attestation-based submission, including lower advertising costs 
and fewer unanticipated labor costs due to post-date-of-need hiring 
requirements. Savings to employers will be universal to new users as 
well as current participants. Savings from efficiency gains may be 
impacted, however, by increased usage of the program by agricultural 
employers, which could delay processing times within the Department.

B. Regulatory Flexibility Analysis

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires that a regulatory flexibility analysis 
be prepared and made available for public comment. The RFA must 
describe the impact of the rule on small entities. See 5 U.S.C. 603(a). 
Section 605 of the RFA allows an agency to certify a rule, in lieu of 
preparing an analysis, if the rulemaking is not expected to have 
significant economic impact on a substantial number of small entities. 
The Assistant Secretary of ETA has notified the Chief Counsel for 
Advocacy, Small Business Administration (SBA), and certifies under the 
RFA at 5 U.S.C. 605(b), that this rule will not have a significant 
economic impact on a substantial number of small entities. The rule 
does not substantively change existing obligations for employers who 
choose to participate in the H-2A temporary agricultural worker 
program.
    The factual basis for such a certification is that even though this 
rule can and does affect small entities, there are not a substantial 
number of small entities that will be affected, nor is there a 
significant economic impact upon those small entities that are 
affected. Of the total 2,089,790 farms in the United States, 98 percent 
have sales of less than $750,000 per year and fall within SBA's 
definition of small entities. In FY 2007, however, only

[[Page 77204]]

7,725 employers filed requests for only 80,294 workers. That represents 
fewer than 1 percent of all farms in the United States. Even if all of 
the 7,725 employers who filed applications under H-2A in FY2007 were 
small entities, that is still a relatively small number of employers 
affected. The Department does anticipate a substantial increase in 
program usage as a result of the Final Rule, but even a doubling in 
program usage would mean the participation of only about 15,500 
employers, not all of whom would be small entities.
    Even more important than the number of small entities affected, 
however, the Department believes that the costs incurred by employers 
under this Final Rule will not be substantially different from those 
incurred under the current application filing process. Employers 
seeking to hire foreign workers on a temporary basis under the H-2A 
program must continue to establish to the Secretary of Labor's 
satisfaction that their recruitment attempts have not yielded enough 
qualified and available U.S. workers and that their hiring of foreign 
workers will not adversely affect the wages and working conditions of 
similarly employed U.S. workers. Similar to the current process, 
employers under this newly reengineered H-2A process will file a 
standardized application for temporary labor certification and will 
retain recruitment documentation, a recruitment report, and any 
supporting evidence or documentation justifying the temporary need for 
the services or labor to be performed.
    To estimate the cost of this reformed H-2A process on employers, 
the Department calculated the current costs each employer likely pays 
in the range of $124.00-$170.00 to meet the advertising and recruitment 
requirements for a job opportunity, and spends approximately 3 hours of 
staff time preparing the standardized applications for the required 
offered wage rate and for temporary labor certification, final 
recruitment report, and retaining all other required documentation 
(e.g., newspaper ads, job orders, business necessity) in a file for 
audit purposes that is not otherwise required to be retained in the 
normal course of business. In estimating employer staff time costs, the 
Department used the median hourly wage rate for a Human Resources 
Manager ($42.55), as published by the U.S. Department of Labor's 
Occupational Employment Statistics survey, O*Net OnLine,\16\ and 
increased it by a factor of 1.42 to account for employee benefits and 
other compensation for a total staff time cost of $181.26 per 
applicant.
---------------------------------------------------------------------------

    \16\ Source: Bureau of Labor Statistics 2006 wage data.
---------------------------------------------------------------------------

    The Department acknowledges that there might be some extremely 
small businesses that may incur additional costs to file their 
application on-line if and when the Department moves to an electronic 
processing model. The total costs for the small entities affected by 
this program will most likely be reduced or stay the same as the costs 
for participating in the current program. Even assuming that all 
entities who file H-2A labor certification applications are considered 
to be small businesses, the net economic effect is not significant.
    The Department invited comments from members of the public who 
believed there will be a significant impact on a substantial number of 
small entities or who disagree with the size standard used by the 
Department in certifying that this Final Rule will not have a 
significant impact on a substantial number of small entities. Several 
small farmers and ranchers offered that the proposal could have 
substantial impact on sheepherding operations and other small farmers. 
However, the comments offered addressed costs arising from requirements 
that were either already in place or were required by statute and 
therefore were unchanged by this rulemaking. Several other commenters 
from farming enterprises voiced concern that the Department's 
determination that the rulemaking was not economically significant was 
a judgment as to the economic significance of the industry. This was 
clearly a misconstruction of the Department's intent. The Department 
recognizes the economic importance of the agricultural and farming 
sector of the economy and has embarked on this rulemaking to ensure 
that there are sufficient workers available to ensure the economic 
success of both individual farms and the agricultural sector as a 
whole.
    Several other commenters, including individual farmers and a law 
firm representing farming concerns, objected to what they saw as high 
costs of compliance with the new changes when taken together with the 
increased costs of filing applications with DHS. The Department 
appreciates and recognizes the strong cost pressures on American 
agricultural firms and has taken steps to reduce the costs of 
compliance wherever possible to ensure that farms of all sizes have the 
ability to participate in the program and have access to a reliable and 
legal workforce. We believe the improvements to this Final Rule address 
many of these concerns, while ensuring program integrity and worker 
protections.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 
U.S.C. 1501 et seq.) directs agencies to assess the effects of a 
Federal regulatory action on State, local, and tribal governments, and 
the private sector to determine whether the regulatory action imposes a 
Federal mandate. A Federal mandate is defined in the Act at 2 U.S.C. 
658(5)-(7) to include any provision in a regulation that imposes an 
enforceable duty upon State, local, or tribal governments, or imposes a 
duty upon the private sector which is not voluntary. Further, each 
agency is required to provide a process where State, local, and tribal 
governments may comment on the regulation as it develops, which further 
promotes coordination between the Federal and the State, local, and 
tribal governments.
    The Department of Labor provided several opportunities for State, 
local, and tribal government input. Representatives from the Department 
in OFLC hosted webinars with the States on December 2 and 5, 2007, and 
then again on March 12 and 25, 2008, to discuss the issues outlined in 
Training and Employment Guidance Letter (TEGL) 11-07, Change 1 
(November 14, 2007) that are now codified in the regulation. In 
addition, the Department hosted and continues to host regular 
conference calls to discuss these issues. Further, the Department 
fielded questions about the verification process from the States and 
posted the responses to them as Frequently Asked Questions on the 
program office Web site. Finally, the Department invited comments from 
all individuals, which includes State representatives, through the 
comment process for this regulation. As a result of these efforts, the 
Department received only six (6) comments from State agencies on 
unfunded mandates.
    Each of the commenters stated that the regulation imposes an 
unfunded mandate because there are insufficient funds to support the H-
2A activities at the State level. One commenter stated that the State 
would have difficulty maintaining the same level of quality in the 
program. Another commenter stated that the rule represents an unfunded 
mandate because there is no funding for litigation defense.
    The Department disagrees that this final rule imposes an unfunded

[[Page 77205]]

mandate. As noted in the proposed rule, the SWAs are required to 
perform certain activities for the Federal government under this 
program, and are compensated for the resources used in performing these 
activities. Further, under this final rule, the SWAs responsibilities 
are streamlined and generally reduced because they no longer are 
responsible for the substantive review of H-2A applications, which will 
allow the States to use grant funds for other program purposes. The 
Department recognizes that certain States may see an increase in the 
use of the program, as two commenters discussed, and as a result, may 
experience an increase in activities over another State with less H-2A 
activity. The Department addressed this issue in the proposed rule when 
it stated that it would analyze the amount of grants to each State to 
fund H-2A activities. The Department believes it would be premature to 
make a blanket statement regarding any increases the States may 
experience until after the new requirements are implemented. Therefore, 
the Department intends to make funding determinations based on that 
analysis and after an analysis of any increased usage trends among 
particular States as part of its normal program management operations. 
The Department believes it is also premature to presume that the States 
will have to bear a significant cost to defend against any potential 
litigation associated with the implementation of this final rule, and 
which is typically considered part of a grantee's programmatic 
responsibility, should it occur. A more substantive discussion on the 
Department's position on defending any potential litigation is located 
in other sections of the preamble.
    Several commenters expressed a concern about using already limited 
Wagner-Peyser Act funds to compensate for H-2A activities. Although the 
Department understands the commenters' concern that Wagner-Peyser Act 
funds may be discontinued, such arguments are not relevant at this time 
given that the Department currently funds Wagner-Peyser Act activities 
and intends to continue doing so in the future.
    Another commenter stated that TEGL 11-07, Change 1 imposes an 
unfunded mandate because compliance with the TEGL, which is now 
codified in the final rule, is a condition for the continued receipt of 
Wagner-Peyser Act funds. That same commenter also noted that the rule 
is more restrictive than H.R. 4088 (introduced in the 110th Congress), 
which is similar to the TEGL.
    With regard to this comment, the Department included references to 
this TEGL in the proposed rule merely to inform the public that the 
provisions of the TEGL were clarified and codified in this rule. 
Because the Department already requires States under current program 
guidance to verify the employment authorization of workers before 
making H-2A referrals, the Final Rule's codification of these 
verification requirements will not impose significant new costs on 
States. The fact that a State may lose its funding for failing to 
comply with the program requirements, including those in the TEGL and 
now codified in this final rule, does not rise to the level of an 
unfunded mandate. The Department notes that this program is voluntary 
and like all voluntary Federal programs, it comes with responsibilities 
for managing the program and penalties for failing to adhere to those 
program requirements. There were no comments from the private sector on 
this issue. Therefore, for the reasons stated above, the Department has 
determined that this final rule does not impose any unfunded mandates.

D. Executive Order 13132--Federalism

    Executive Order 13132 addresses the Federalism impact of an 
agency's regulations on the States' authority. Under E.O. 13132, 
Federal agencies are required to consult with States prior to and 
during the implementation of national policies that have a direct 
effect on the States, the relationship between the Federal Government 
and the States, or on the distribution of power and responsibilities 
among the various levels of government. Further, an agency is permitted 
to limit a State's discretion when it has statutory authority and the 
regulation is a national activity that addresses a problem of national 
significance. The Department received one comment on this section. This 
commenter stated that the Department's reversal of a long-standing 
position on U.S. worker self-attestation creates a Federalism impact. 
According to this commenter, TEGL 11-07, Change 1, mandates that SWAs 
perform pre-employment eligibility verifications on every U.S. worker 
that requests a referral to an H-2A job order. This commenter requests 
that the Department prepare a summary impact statement and acknowledge 
that many States currently have attestation-based systems for U.S. 
worker access to public labor exchange services.
    The Department disagrees with this commenter's assessment of a 
Federalism impact and therefore, the need for a summary impact 
statement. In this case there is no direct effect on the States. The H-
2A program is a Federal program that regulates work visas for temporary 
agriculture workers, protects employment opportunities for U.S. 
workers, and prevents an adverse effect on the wages and working 
conditions of U.S. workers. As noted elsewhere in this preamble, the 
Department has not reviewed the H-2A program comprehensively since its 
inception in 1986. These changes are consistent with the Department's 
review, program experience, and years of stakeholder feedback on 
longstanding concerns about the integrity of the prior program. 
Therefore, as a program of national scope, the Department is 
implementing requirements that apply uniformly to all States.
    Even if there were an argument that the Department should defer to 
the States on the eligibility verification requirements, the Department 
is authorized by the INA to implement Federal regulations to ensure 
consistency across States on immigration matters. In addition, given 
that the H-2A program is an immigration program, it also is a program 
related to national security with national significance requiring 
Federal oversight and uniformity. Further, the relationship the States 
have with this program and the Federal government is by grants from the 
Department to the States for the sole purpose of maintaining 
consistency across States. As a voluntary Federal program, the 
Department may change the direction from time to time as dictated by 
the changes to immigration concerns, but at the same time are 
consistent with the underlying legislation.
    Furthermore, the Department consulted with the States on the 
eligibility verification requirements by several means. Representatives 
from the Department in OFLC hosted webinars with the States on December 
2 and 5, 2007, and then again on March 12 and 25, 2008, to discuss the 
issues outlined in the TEGL that are now codified in the regulation. In 
addition, the Department hosted and continues to host regular 
conference calls to discuss these issues. Further, the Department 
fielded questions about the verification process from the States and 
posted the responses to them as Frequently Asked Questions on the 
program office Web site. Finally, the Department invited comments from 
all individuals, which includes State representatives, through the 
comment process for this regulation.
    Therefore, for the reasons stated, the Department has determined 
that this rule does not have sufficient Federalism

[[Page 77206]]

implications to warrant the preparation of a summary impact statement.

E. Executive Order 13175--Indian Tribal Governments

    Executive Order 13175 requires Federal agencies to develop policies 
in consultation with tribal officials when those policies have tribal 
implications. This final rule regulates the H-2A visa program and does 
not have tribal implications. Therefore, the Department has determined 
that this E.O. does not apply to this rulemaking. The Department did 
not receive any comments related to this section.

F. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Federal regulations and policies on families. The assessment must 
address whether the regulation strengthens or erodes the stability, 
integrity, autonomy, or safety of the family.
    The final rule does not have an impact on the autonomy or integrity 
of the family as an institution, as it is described under this 
provision. The Department has determined that although there may be 
some costs associated with the final rule, they are not of a magnitude 
to adversely affect family well-being. The Department did not receive 
any comments related to this section.

G. Executive Order 12630--Protected Property Rights

    Executive Order 12630, Governmental Actions and the Interference 
with Constitutionality Protected Property Rights, prevents the Federal 
government from taking private property for public use without 
compensation. It further institutes an affirmative obligation that 
agencies evaluate all policies and regulations to ensure there is no 
impact on constitutionally protected property rights. Such policies 
include rules and regulations that propose or implement licensing, 
permitting, or other condition requirements or limitations on private 
property use, or that require dedications or exactions from owners of 
private property.
    The Department received one comment on this section. This commenter 
stated that this rule would have a ``takings'' implication if farmers 
are forced out of business under this rule. The Department disagrees 
with this assessment. Although the cost associated with this regulatory 
action has an impact on commerce, it is not the type of impact 
addressed by the E.O. This final rule does not propose or implement 
licensing, permitting or other condition requirements on the use of 
private property nor does it require dedications or exactions from 
owners of private property. Accordingly, the Department has determined 
this rule does not have takings implications.

H. Executive Order 12988--Civil Justice Reform

    Section 3 of E.O. 12988, Civil Justice Reform, requires Federal 
agencies to draft regulations in a manner that will reduce needless 
litigation and will not unduly burden the Federal court system. 
Therefore, agencies are required to review regulations for drafting 
errors and ambiguity; to minimize litigation; ensure that it provides a 
clear legal standard for affected conduct rather than a general 
standard; and promote simplification and burden reduction.
    The rule has been drafted in clear language and with detailed 
provisions that aim to minimize litigation. The purpose of this final 
rule is to streamline the H-2A program and simplify the application 
process. Therefore, the Department has determined that the regulation 
meets the applicable standards set forth in Section 3 of E.O. 12988. 
The Department received no comments regarding this section.

I. Plain Language

    Every Federal agency is required to draft regulations that are 
written in plain language to better inform the public about policies. 
The Department has assessed this final rule under the plain language 
requirements and determined that it follows the Government's standards 
requiring documents to be accessible and understandable to the public. 
The Department did not receive any comments related to this section.

J. Executive Order 13211--Energy Supply

    This final rule is not subject to E.O. 13211, which assesses 
whether a regulation is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Accordingly, the Department 
has determined that this rule does not represent a significant energy 
action and does not warrant a Statement of Energy Effects. The 
Department did not receive any comments related to this section.

K. Paperwork Reduction Act

1. Summary
    The Paperwork Reduction Act (44 U.S.C. 3501) information collection 
requirements, which must be implemented as a result of this regulation, 
were submitted to OMB on February 14, 2008, in conjunction with the 
NPRM. Persons are not required to respond to a collection of 
information unless it displays a currently valid OMB control number as 
required in 5 CFR 1320.11(l). The public was given 60 days to comment 
on this information collection under the NPRM even though originally 
the Department gave the public only 45 days to comment on the rest of 
the NPRM. On March 27, 2008, the Department published a notice in the 
Federal Register extending the comment period to April 14, 2008, for 
the rest of the NPRM, which then coincided with the comment period for 
the information collection. This same information collection was again 
submitted for public comment under another NPRM for a different 
program. The comments received pertaining to this rule were taken into 
consideration and a final package with the forms needed to implement 
this rule was submitted to OMB and received final approval on November 
21, 2008, under OMB control number 1205-0466. The approval will expire 
on November 30, 2011. The information required under this collection is 
mandated in this final rule at Sec. Sec.  655.100(a), 655.101, 
655.102(c), 655.104(d), 655.105, 655.106, 655.107, 655.108, and 
655.109.
    The collection of information for the current H-2A program under 
the regulations in effect prior to the effective date of this rule were 
approved under OMB control number 1205-0015 (Form ETA 750) and OMB 
Control Number 1205-0134 (Form ETA 790). The Form ETA 750 will be 
gradually phased out and will no longer be used for the H-2A program 
for applications filed with a beginning date of need of July 1, 2009 or 
later. The Form ETA 790 will continue to be used in the H-2A program as 
it is required under 20 CFR 653.501 for all agricultural job orders.
    As noted above, this final rule implements the use of the new 
information collection that OMB approved on November 21, 2008, under 
OMB control number 1205-0466. The approval will expire on November 30, 
2011. The new Form ETA 9142, with instructions and appendices, has a 
public reporting burden estimated to average 2.17 hours for Form ETA 
9142 per response or application filed. The Department has made changes 
to this final rule after receiving comments to the proposed rule and 
has made changes to the forms for clarity and program functionality. 
However, these changes do not impact the overall annual burden hours 
for the H-2A program information collection. The total costs associated

[[Page 77207]]

with the form, as defined by the Paperwork Reduction Act, is a maximum 
of $1,100 per employer for the Form ETA 9142. For an additional 
explanation of how the Department calculated the burden hours and 
related costs, the Paperwork Reduction Act package for this information 
collection may be obtained from the RegInfo.gov Web site at http://www.reginfo.gov/public/do/PRAMain or by contacting the Department at: 
Office of Policy and Research, Department of Labor, 200 Constitution 
Ave., NW., Washington, DC 20210 or by phone request to 202-693-3700 
(this is not a toll-free number) or by e-mail at [email protected].
2. Comments
    The Department received only a few comments on this section of the 
NPRM. In each case, the commenters noted that there appeared to be an 
increase in the number of hours required under the new regulations, 
especially for the second recruitment report. One commenter estimated 
that it would take approximately 6.5 hours for an employer to complete 
two (2) recruitment reports, but did not provide data or a supporting 
rationale for this estimate. Most of the commenters did not 
specifically address the issue of our methodology or assumptions.
    The combined paperwork burden estimate for the forms used for the 
H-2A program under the regulations in effect prior to the effective 
date of this final rule, Forms ETA 750 and ETA 790, was approximately 
2.5 hours. Under this new collection of information, the Department 
estimates that the burden will be approximately 2.17 hours for Form ETA 
9142, which includes one hour on average per employer to prepare the 
recruitment reports. There will be some employers who only require a 
few minutes to complete the recruitment report if only a few (or no) 
workers apply for the job opportunity, while other employers may spend 
two or more hours compiling the recruitment report if many workers 
apply for the job opportunity. As for other information requirements, 
the Department estimates that the affidavits of publication or tear 
sheets, which should be requested at the time of publication, require 
only one extra minute of time. Further, the Department estimates that 
requesting notice from the SWA confirming distribution of the job order 
will also only take an extra minute of time. Therefore, without more 
persuasive analysis rebutting the analysis used by the Department, we 
assume our calculations are representative of the actual hourly burden 
for the new collection.
    Another commenter stated that the form itself lacked sufficient 
space and the ``description for complying * * * [is] inadequate and 
materially misleading of the terms and conditions employers need to 
provide * * *.'' The Department notes, however, that this comment is 
related to the Form ETA 750, which will be discontinued, rather than 
the new collection form, ETA 9142. In addition, the Department added a 
notation to the new form that permits employers to submit additional 
pages of information if there is not sufficient space on the form for a 
response. In such cases, the information must clearly correspond to the 
appropriate section and question number noted on the form.
    A couple of commenters on this section asked if any of the 
paperwork could be shifted to the Department, such as making copies of 
job orders, placing advertisements, and obtaining the tear sheets. 
Although the Department appreciates these comments, we find no 
reasonable justification for assuming this type of expense or 
responsibility. The responsibility for the applicable reporting 
requirements lies with program participant, which in this case is the 
applicant. The Department will continue to seek ways to improve program 
management efficiency and as noted elsewhere in this preamble, will be 
looking to implement an online application process in the future.

List of Subjects

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, Agriculture, Aliens, 
Employment, Housing, Housing standards, Immigration, Labor, Migrant 
labor, Penalties, Transportation, Wages.

29 CFR Part 780

    Agricultural commodities, Agriculture, Employment, Forests and 
forest products, Labor, Minimum wages, Nursery stock, Overtime pay, 
Wages.

29 CFR Part 788

    Employment, Forests and forest products, Labor, Overtime pay, 
Wages.

0
For the reasons stated in the preamble, the Department of Labor amends 
20 CFR part 655 and 29 CFR parts 501, 780, and 788 as follows:

TITLE 20--EMPLOYEES' BENEFITS

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for part 655 is revised 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), 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); Pub. L. 
109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 
1184(c), and 1188; and 8 CFR 214.2(h).
    Subparts A and C 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).
    Subparts D and E authority repealed.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); and sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428.
    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; and 8 CFR 214.2(h).
    Subparts J and K authority repealed.
    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
2. Revise the heading to part 655 to read as set forth above.

0
3. Revise Sec.  655.1 to read as follows:


Sec.  655.1  Purpose and scope of subpart A.

    This subpart sets forth the procedures governing the labor 
certification process for the temporary employment of nonimmigrant 
foreign workers in the United States (U.S.) in occupations other than 
agriculture or registered nursing.

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.
655.90 Purpose and scope of subpart B.
655.92 Authority of ETA-OFLC.
655.93 Special procedures.

[[Page 77208]]

655.100 Overview of subpart B and definition of terms.
655.101 Applications for temporary employment certification in 
agriculture.
655.102 Required pre-filing recruitment.
655.103 Advertising requirements.
655.104 Contents of job offers.
655.105 Assurances and obligations of H-2A employers.
655.106 Assurances and obligations of H-2A Labor Contractors.
655.107 Processing of applications.
655.108 Offered wage rate.
655.109 Labor certification determinations.
655.110 Validity and scope of temporary labor certifications.
655.111 Required departure.
655.112 Audits.
655.113 H-2A applications involving fraud or willful 
misrepresentation.
655.114 Petition for higher meal charges.
655.115 Administrative review and de novo hearing before an 
administrative law judge.
655.116 Job Service Complaint System; enforcement of work contracts.
655.117 Revocation of approved labor certifications.
655.118 Debarment.
655.119 Document retention requirements.


Sec.  655.90  Purpose and scope of subpart B.

    This subpart sets out the procedures established by the Secretary 
of the United States Department of Labor (the Secretary) to acquire 
information sufficient to make factual determinations of:
    (a) Whether there are sufficient able, willing, and qualified U.S. 
workers available to perform the temporary and seasonal agricultural 
employment for which an employer desires to import nonimmigrant foreign 
workers (H-2A workers); and
    (b) Whether the employment of H-2A workers will adversely affect 
the wages and working conditions of workers in the U.S. similarly 
employed.


Sec.  655.92  Authority of ETA-OFLC.

    Temporary agricultural labor certification determinations are made 
by the Administrator, Office of Foreign Labor Certification (OFLC) in 
the Department of Labor's (the Department or DOL) Employment & Training 
Administration (ETA), who, in turn, may delegate this responsibility to 
a designated staff member; e.g., a Certifying Officer (CO).


Sec.  655.93  Special procedures.

    (a) Systematic process. This subpart provides procedures for the 
processing of applications from agricultural employers and associations 
of employers for the certification of employment of nonimmigrant 
workers in agricultural employment.
    (b) Establishment of special procedures. To provide for a limited 
degree of flexibility in carrying out the Secretary's responsibilities 
under the Immigration and Nationality Act (INA), while not deviating 
from statutory requirements, the Administrator, OFLC has the authority 
to establish or to devise, continue, revise, or revoke special 
procedures in the form of variances for processing certain H-2A 
applications when employers can demonstrate upon written application to 
the Administrator, OFLC that special procedures are necessary. These 
include special procedures in effect for the handling of applications 
for sheepherders in the Western States (and adaptation of such 
procedures to occupations in the range production of other livestock), 
and for custom combine crews. In a like manner, for work in occupations 
characterized by other than a reasonably regular workday or workweek, 
such as the range production of sheep or other livestock, the 
Administrator, OFLC has the authority to establish monthly, weekly, or 
bi-weekly adverse effect wage rates (AEWR) for those occupations for a 
statewide or other geographical area. Prior to making determinations 
under this section, the Administrator, OFLC will consult with employer 
and worker representatives.


Sec.  655.100  Overview of subpart B and definition of terms.

    (a) Overview. (1) Application filing process. (i) This subpart 
provides guidance to employers desiring to apply for a labor 
certification for the employment of H-2A workers to perform 
agricultural employment of a temporary or seasonal nature. The 
regulations in this subpart provide that such employers must file with 
the Administrator, OFLC an H-2A application on forms prescribed by the 
ETA that describe the material terms and conditions of employment to be 
offered and afforded to U.S. and H-2A workers. The application must be 
filed with the Administrator, OFLC at least 45 calendar days before the 
first date the employer requires the services of the H-2A workers. The 
application must contain attestations of the employer's compliance or 
promise to comply with program requirements regarding recruitment of 
eligible U.S. workers, the payment of an appropriate wage, and terms 
and conditions of employment.
    (ii) No more than 75 and no fewer than 60 calendar days before the 
first date the employer requires the services of the H-2A workers, and 
as a precursor to the filing of an Application for Temporary Employment 
Certification, the employer must initiate positive recruitment of 
eligible U.S. workers and cooperate with the local office of the State 
Workforce Agency (SWA) which serves the area of intended employment to 
place a job order into intrastate and interstate recruitment. Prior to 
commencing recruitment an employer must obtain the appropriate wage for 
the position directly from the ETA National Processing Center (NPC). 
The employer must then place a job order with the SWA; place print 
advertisements meeting the requirements of this regulation; contact 
former U.S. employees; and, when so designated by the Secretary, 
recruit in other States of traditional or expected labor supply with a 
significant number of U.S. workers who, if recruited, would be willing 
to make themselves available at the time and place needed. The SWA will 
post the job order locally, as well as in all States listed in the 
application as anticipated work sites, and in any additional States 
designated by the Secretary as States of traditional or expected labor 
supply. The SWA will keep the job order open until the end of the 
designated recruitment period. No more than 50 days prior to the first 
date the employer requires the services of the H-2A workers, the 
employer will prepare and sign an initial written recruitment report 
that it must submit with its Application for Temporary Employment 
Certification (www.foreignlaborcert.doleta.gov). The recruitment report 
must contain information regarding the original number of openings for 
which the employer recruited. The employer's obligation to engage in 
positive recruitment will end on the actual date on which the H-2A 
workers depart for the place of work, or 3 days prior to the first date 
the employer requires the services of the H-2A workers, whichever 
occurs first.
    (iii) The Application for Temporary Employment Certification must 
be filed by mail unless the Department publishes a Notice in the 
Federal Register requiring that applications be filed electronically. 
Applications that meet threshold requirements for completeness and 
accuracy will be processed by NPC staff, who will review each 
application for compliance with the criteria for certification. Each 
application must meet requirements for timeliness and temporary need 
and must provide assurances and other safeguards against adverse impact 
on the wages and working conditions of U.S. workers. Employers 
receiving a labor certification must continue to cooperate with the SWA 
by accepting referrals--and have the obligation to hire qualified and 
eligible U.S. workers

[[Page 77209]]

who apply--until the end of the designated recruitment period.
    (2) Deficient applications. The CO will promptly review the 
application and notify the applicant in writing if there are 
deficiencies that render the application not acceptable for 
certification, and afford the applicant a 5 calendar day period (from 
date of the employer's receipt) to resubmit a modified application or 
to file an appeal of the CO's decision not to approve the application 
as acceptable for consideration. Modified applications that fail to 
cure deficiencies will be denied.
    (3) Amendment of applications. This subpart provides for the 
amendment of applications. Where the recruitment is not materially 
affected by such amendments, additional positive recruitment will not 
be required.
    (4) Determinations. (i) Determinations. If the employer has 
complied with the criteria for certification, including recruitment of 
eligible U.S. workers, the CO must make a determination on the 
application by 30 days before the first date the employer requires the 
services of the H-2A workers. An employer's failure to comply with any 
of the certification criteria or to cure deficiencies identified by the 
CO may lengthen the time required for processing, resulting in a final 
determination less than 30 days prior to the stated date of need.
    (ii) Certified applications. This subpart provides that an 
application for temporary agricultural labor certification will be 
certified if the CO finds that the employer has not offered and does 
not intend to offer foreign workers higher wages, better working 
conditions, or fewer restrictions than those offered and afforded to 
U.S. workers; that sufficient U.S. workers who are able, willing, 
qualified, and eligible will not be available at the time and place 
needed to perform the work for which H-2A workers are being requested; 
and that the employment of such nonimmigrants will not adversely affect 
the wages and working conditions of similarly employed U.S. workers.
    (iii) Fees. (A) Amount. This subpart provides that each employer 
(except joint employer associations) of H-2A workers will pay the 
appropriate fees to the Department for each temporary agricultural 
labor certification received.
    (B) Timeliness of payment. The fee must be received by the CO no 
later than 30 calendar days after the granting of each temporary 
agricultural labor certification. Fees received any later are untimely. 
A persistent or prolonged failure to pay fees in a timely manner is a 
substantial program violation which may result in the denial of future 
temporary agricultural labor certifications and/or program debarment.
    (iv) Denied applications. This subpart provides that if the 
application for temporary agricultural labor certification is denied, 
in whole or in part, the employer may seek expedited review of the 
denial, or a de novo hearing, by an administrative law judge as 
provided in this subpart.
    (b) Transition of filing procedures from current regulations. (1) 
Compliance with these regulations. Employers with a date of need for H-
2A workers for temporary or seasonal agricultural services on or after 
July 1, 2009 must comply with all of the obligations and assurances 
required in this subpart.
    (2) Transition from former regulations. Employers with a date of 
need for H-2A workers for temporary or seasonal agricultural services 
prior to July 1, 2009 will file applications in the following manner:
    (i) Obtaining required wage rate. An employer will not obtain an 
offered wage rate through the NPC prior to filing an application, but 
will complete and submit Form ETA-9142, Application for Temporary 
Employment Certification no less than 45 days prior to their date of 
need. The employer will simultaneously submit Form ETA-790 Agricultural 
and Food Processing Clearance Order, along with the Application for 
Temporary Employment Certification, directly to the NPC having 
jurisdiction over H-2A applications.
    (ii) Pre-filing activities. Activities required to be conducted 
prior to filing under the final rule will be conducted post-filing 
during this transition period. The employer will be expected to make 
attestations in its application applicable to its future activities 
concerning recruitment, payment of the offered wage rate, etc. 
Employers will not be required to complete an initial recruitment 
report for submission with the application, but will be required to 
complete a recruitment report for submission to the NPC prior to 
certification, and will also be required to complete a final 
recruitment report covering the entire recruitment period.
    (iii) Acceptance of application. Upon receipt, the NPC will provide 
the employer with the wage rate to be offered, at a minimum, by the 
employer, and will process the application in a manner consistent with 
new Sec.  655.107, issuing a notification of deficiencies for any 
curable deficiencies within 7 calendar days.
    (iv) Processing of application. Once the application and job order 
have been accepted, the NPC will transmit a copy of the job order to 
the SWA(s) serving the area of intended employment to initiate 
intrastate and interstate clearance, request that the SWA(s) schedule 
an inspection of the housing, and provide instructions to the employer 
to commence positive recruitment in a manner consistent with Sec.  
655.102(d)(2) through (4). The NPC will designate labor supply States 
during this period on a case-by-case basis. Such designations must be 
based on information provided by State agencies or by other sources, 
and will to the extent information is available take into account the 
success of recent efforts by out-of-State employers to recruit in that 
State.
    (c) Definitions of terms used in this subpart. For the purposes of 
this subpart:
    Administrative Law Judge (ALJ) means a person within the DOL's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105, or a panel of such persons designated by the Chief Administrative 
Law Judge from the Board of Alien Labor Certification Appeals (BALCA) 
established by part 656 of this chapter, which will hear and decide 
appeals as set forth in Sec.  655.115.
    Administrator, OFLC means the primary official of the Office of 
Foreign Labor Certification (OFLC), or the Administrator, OFLC 's 
designee.
    Adverse effect wage rate (AEWR) means the minimum wage rate that 
the Administrator, OFLC has determined must be offered and paid to 
every H-2A worker employed under the DOL-approved Application for 
Temporary Employment Certification in a particular occupation and/or 
area, as well as to U.S. workers hired by employers into corresponding 
employment during the H-2A recruitment period, to ensure that the wages 
of similarly employed U.S. workers will not be adversely affected.
    Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that:
    (1) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes;
    (2) Is not itself an employer, or a joint employer, as defined in 
this paragraph (c) of this section with respect to a specific 
application; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court or the Department, the Board of 
Immigration Appeals, the immigration judges, or the Department of 
Homeland Security (DHS) under 8 CFR 292.3 or 1003.101.
    Agricultural association means any nonprofit or cooperative 
association of

[[Page 77210]]

farmers, growers, or ranchers (including but not limited to processing 
establishments, canneries, gins, packing sheds, nurseries, or other 
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 sec. 218 
of the INA. An agricultural association may act as the agent of an 
employer for purposes of filing an Application for Temporary Employment 
Certification, and may also act as the sole or joint employer of H-2A 
workers.
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved form submitted by an employer 
to secure a temporary agricultural labor certification determination 
from DOL. A complete submission of the Application for Temporary 
Employment Certification includes both the form and the employer's 
initial recruitment report.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of the job 
opportunity for which the certification is sought. There is no rigid 
measure of distance which 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 worksite, quality of the regional 
transportation network, etc.). If the place of intended employment is 
within a Metropolitan Statistical Area (MSA), including a multistate 
MSA, any place within the MSA is deemed to be within normal commuting 
distance of the place of intended employment. The borders of MSAs are 
not controlling in the identification of the normal commuting area; a 
location outside of an MSA may be within normal commuting distance of a 
location that is inside (e.g., near the border of) the MSA.
    Attorney means 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 U.S., or the District of Columbia, and who is not 
under suspension, debarment, expulsion, or disbarment from practice 
before any court or the Department, the Board of Immigration Appeals, 
the immigration judges, or DHS under 8 CFR. 292.3 or 1003.101. Such a 
person is permitted to act as an agent or attorney for an employer and/
or foreign worker under this subpart.
    Certifying Officer (CO) means the person designated by the 
Administrator, OFLC to make determinations on applications filed under 
the H-2A program.
    Chief Administrative Law Judge means the chief official of the DOL 
Office of Administrative Law Judges or the Chief Administrative Law 
Judge's designee.
    Date of need means the first date the employer requires the 
services of H-2A worker as indicated in the employer's Application for 
Temporary Employment Certification.
    Department of Homeland Security (DHS) means the Federal agency 
having control over certain immigration functions that, through its 
sub-agency, United States Citizenship and Immigration Services (USCIS), 
makes the determination under the INA on whether to grant visa 
petitions filed by employers seeking H-2A workers to perform temporary 
agricultural work in the U.S.
    DOL or Department means the United States Department of Labor.
    Eligible worker means an individual who is not an unauthorized 
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) 
with respect to the employment in which the worker is engaging.
    Employee means employee 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 means a person, firm, corporation or other association or 
organization that:
    (1) Has a place of business (physical location) in the U.S. and a 
means by which it may be contacted for employment;
    (2) Has an employer relationship with respect to H-2A employees or 
related U.S. workers under this subpart; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Employment Standards Administration (ESA) means the agency within 
DOL that includes the Wage and Hour Division (WHD), and which is 
charged with carrying out certain investigative and enforcement 
functions of the Secretary under the INA.
    Employment Service (ES) refers to the system of Federal and State 
entities responsible for administration of the labor certification 
process for temporary and seasonal agricultural employment of 
nonimmigrant foreign workers. This includes the SWAs and the OFLC, 
including the NPCs.
    Employment and Training Administration (ETA) means the agency 
within the DOL that includes OFLC.
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    Fixed-site employer means 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 
sec. 218 of the INA or these regulations as incident to or in 
conjunction with the owner's or operator's own agricultural operation. 
For purposes of this subpart, person includes any individual, 
partnership, association, corporation, cooperative, joint stock 
company, trust, or other organization with legal rights and duties.
    H-2A Labor Contractor (H-2ALC) means any person who meets the 
definition of employer under this paragraph (c) of this section 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 sec. 218 of the 
INA or these regulations.
    H-2A worker means any temporary foreign worker who is lawfully 
present in the U.S. to perform agricultural labor or services of a 
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of 
the INA, as amended.
    INA means the Immigration and Nationality Act, as amended, 8 U.S.C. 
1101 et seq.
    Job offer means the offer made by an employer or potential employer 
of H-2A workers to eligible workers describing all the material terms 
and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the U.S. to which a U.S. worker can be 
referred.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of

[[Page 77211]]

employment to be considered the employer of an employee, those 
employers will be considered to jointly employ that employee. Each 
employer in a joint employment relationship to an employee is 
considered a joint employer of that employee.
    Occupational Safety and Health Administration (OSHA) means the 
organizational component of the Department that assures the safety and 
health of America's workers by setting and enforcing standards; 
providing training, outreach, and education; establishing partnerships; 
and encouraging continual improvement in workplace safety and health 
under the Occupational Safety and Health Act, as amended.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component of the 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 U.S. to perform work described in 
sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.
    Positive recruitment means the active participation of an employer 
or its authorized hiring agent in recruiting and interviewing qualified 
and eligible 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 means, with respect to practices engaged in by employers 
and benefits other than wages provided by employers, that:
    (1) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; but only if
    (2) This 50 percent or more of employers also employs in aggregate 
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, frequency of wage payments, 
and workers supplying their own bedding, but non-H-2A employers only 
for determinations concerning the provision of advance transportation).
    Prevailing piece rate means that amount that is typically paid to 
an agricultural worker per piece (which includes, but is not limited 
to, a load, bin, pallet, bag, bushel, etc.), to be determined by the 
SWA according to a methodology published by the Department. As is 
currently the case, the unit of production will be required to be 
clearly described; e.g., a field box of oranges (1\1/2\ bushels), a 
bushel of potatoes, and Eastern apple box (1\1/2\ metric bushels), a 
flat of strawberries (twelve quarts), etc.
    Prevailing hourly wage means the hourly wage determined by the SWA 
to be prevailing in the area in accordance with State-based wage 
surveys.
    Representative means a person or entity employed by, or duly 
authorized to act on behalf of, the employer with respect to activities 
entered into for, and/or attestations made with respect to, the 
Application for Temporary Employment Certification.
    Secretary means the Secretary of the United States Department of 
Labor, or the Secretary's designee.
    Secretary of Homeland Security means the chief official of the 
United States Department of Homeland Security (DHS) or the Secretary of 
Homeland Security's designee.
    Secretary of State means the chief official of the United States 
Department of State (DOS) or the Secretary of State's designee.
    State Workforce Agency (SWA) means the State government agency that 
receives funds pursuant to the Wagner-Peyser Act to administer the 
public labor exchange delivered through the State's One-Stop delivery 
system in accordance with the Wagner-Peyser Act at 29 U.S.C. 49 et seq. 
Separately, SWAs receive ETA grants, administered by OFLC, to assist 
them in performing certain activities related to foreign labor 
certification, including conducting housing inspections.
    Strike means a labor dispute wherein employees engage in a 
concerted stoppage of work (including stoppage by reason of the 
expiration of a collective-bargaining agreement) or engage in any 
concerted slowdown or other concerted interruption of operation. 
Whether a job opportunity is vacant by reason of a strike or lock out 
will be determined by evaluating for each position identified as vacant 
in the Application for Temporary Employment Certification whether the 
specific vacancy has been caused by the strike or lock out.
    Successor in interest means that, in determining whether an 
employer is a successor in interest, the factors used under Title VII 
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act will be considered. When considering whether an employer 
is a successor for purposes of Sec.  655.118, the primary consideration 
will be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violations 
resulting in a debarment recommendation. Normally, wholly new 
management or ownership of the same business operation, one in which 
the former management or owner does not retain a direct or indirect 
interest, will not be deemed to be a successor in interest for purposes 
of debarment. A determination of whether or not a successor in interest 
exists is based on the entire circumstances viewed in their totality. 
The factors to be considered include:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same facilities;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Similarity in machinery, equipment, and production methods;
    (7) Similarity of products and services; and
    (8) The ability of the predecessor to provide relief.
    Temporary agricultural labor certification means the certification 
made by the Secretary with respect to an employer seeking to file with 
DHS a visa petition to employ one or more foreign nationals as an H-2A 
worker, pursuant to secs. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 
of the INA that:
    (1) 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 agricultural labor or services involved in the petition, 
and
    (2) The employment of the foreign worker in such agricultural labor 
or services will not adversely affect the wages and working conditions 
of workers in the U.S. similarly employed (8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188).
    United States (U.S.), when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, the Commonwealth of Puerto 
Rico, and the territories of Guam, the Virgin Islands, and, as of the 
transition program effective date, as defined in the Consolidated 
Natural Resources Act of 2008, Public Law 110-229, Title VII, the 
Commonwealth of the Northern Mariana Islands.
    United States Citizenship and Immigration Services (USCIS) means 
the Federal agency making the determination under the INA whether to 
grant petitions filed by employers seeking H-2A workers to perform 
temporary agricultural work in the U.S.
    United States worker (U.S. worker) means a worker who is

[[Page 77212]]

    (1) A citizen or national of the U.S., or
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under sec. 207 of the INA, is 
granted asylum under sec. 208 of the INA, or is an immigrant otherwise 
authorized (by the INA or by DHS) to be employed in the U.S.
    Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    Within [number and type] days means, for purposes of determining an 
employer's compliance with the timing requirements for appeals and 
requests for review, a period that begins to run on the first business 
day after the Department sends a notice to the employer by means 
normally assuring next-day delivery, and will end on the day that the 
employer sends whatever communication is required by these rules back 
to the Department, as evidenced by a postal mark or other similar 
receipt.
    Work contract means all the material terms and conditions of 
employment relating to wages, hours, working conditions, and other 
benefits, required by the applicable regulations in Subpart B of 20 CFR 
part 655, Labor Certification for Temporary Agricultural Employment of 
H-2A Aliens in the U.S. (H-2A Workers), or these regulations, including 
those terms and conditions attested to by the H-2A employer, which 
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 shall be the terms of the job order, as provided in 20 CFR part 
653, Subpart F, and covered provisions of the work contract shall be 
enforced in accordance with these regulations.
    (d) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this subpart means the following:
    (1) Agricultural labor or services, pursuant to sec. 
101(a)(15)(H)(ii)(a) of the INA at 8 U.S.C. 1101(a)(15)(H)(ii)(a), is 
defined as:
    (i) Agricultural labor as defined and applied in sec. 3121(g) of 
the Internal Revenue Code of 1954 at 26 U.S.C. 3121(g);
    (ii) Agriculture as defined and applied in sec. 3(f) of the Fair 
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f). Work performed 
by H-2A workers, or workers in corresponding employment, that is not 
defined as agriculture in sec. 3(f) is subject to the provisions of the 
FLSA as provided therein, including the overtime provisions in sec. 
7(a) 29 U.S.C. 207(a);
    (iii) The pressing of apples for cider on a farm;
    (iv) Logging employment; or
    (v) 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 while in the employ of the 
operator of a farm where no H-2B workers are employed to perform the 
same work at the same establishment; or
    (vi) Other work typically performed on a farm that is not 
specifically listed on the Application for Temporary Employment 
Certification and is minor (i.e., less than 20 percent of the total 
time worked on the job duties and activities that are listed on the 
Application for Temporary Employment Certification) and incidental to 
the agricultural labor or services for which the H-2A worker was 
sought.
    (2) An occupation included in either of the statutory definitions 
cited in paragraphs (d)(1)(i) and (ii) of this section is agricultural 
labor or services, notwithstanding the exclusion of that occupation 
from the other statutory definition.
    (i) Agricultural labor. For purposes of paragraph (d)(1)(i) of this 
section means all services 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 furbearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation 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 at 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)(1) 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;
    (2) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (d)(2)(i)(D)(1) 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, any unincorporated group of 
operators will be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during the 
calendar quarter in which such service is performed;
    (3) The provisions of paragraphs (d)(2)(i)(D)(1) and (2) of this 
section do not apply to services 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
    (4) On a farm operated for profit if such service is not in the 
course of the employer's trade or business and is not domestic service 
in a private home of the employer.
    (E) For purposes of (d)(2)(i) of 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. See sec. 3121(g) of the 
Internal Revenue Code of 1986 at 26 U.S.C. 3121(g).
    (ii) Agriculture. For purposes of paragraph (d)(1)(ii) 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 as 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

[[Page 77213]]

transportation to market. See 29 U.S.C. 203(f), as amended.
    (iii) Agricultural commodity. For purposes of paragraph (d)(2)(ii) 
of this section agricultural commodity includes, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
gum spirits of turpentine and gum rosin as processed by the original 
producer of the crude gum (oleoresin) from which derived. 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. See 12 U.S.C. 1141j(g), sec. 
15(g) of the Agricultural Marketing Act, as amended, and 7 U.S.C. 92.
    (3) Of a temporary or seasonal nature. (i) On a seasonal or other 
temporary basis. For the purposes of this subpart, of a temporary or 
seasonal nature means on a seasonal or other temporary basis, as 
defined in the WHD's regulation at 29 CFR 500.20 under the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA).
    (ii) MSPA definition. The definition of on a seasonal or other 
temporary basis found in MSPA is summarized as follows:
    (A) Labor is performed on a seasonal basis where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, may 
not be continuous or carried on throughout the year. A worker who moves 
from one seasonal activity to another, while employed in agriculture or 
performing agricultural labor, is employed on a seasonal basis even 
though the worker may continue to be employed during a major portion of 
the year.
    (B) A worker is employed on other temporary basis where he or she 
is employed for a limited time only or the worker's performance is 
contemplated for a particular piece of work, usually of short duration. 
Generally, employment which is contemplated to continue indefinitely is 
not temporary.
    (C) On a seasonal or other temporary basis does not include (i) the 
employment of any foreman or other supervisory employee who is employed 
by a specific agricultural employer or agricultural association 
essentially on a year round basis; or (ii) the employment of any worker 
who is living at his or her permanent place of residence, when that 
worker is employed by a specific agricultural employer or agricultural 
association on essentially a year round basis to perform a variety of 
tasks for his or her employer and is not primarily employed to do field 
work.
    (iii) Temporary. For the purposes of this subpart, the definition 
of ``temporary'' in paragraph (d)(3) of this section refers to any job 
opportunity covered by this subpart where the employer needs a worker 
for a position for a limited period of time, including, but not limited 
to, a peakload need, which is generally less than 1 year, unless the 
original temporary agricultural labor certification is extended 
pursuant to Sec.  655.110.


Sec.  655.101  Applications for temporary employment certification in 
agriculture.

    (a) Application Filing Requirements. (1) An employer that desires 
to apply for temporary employment certification of one or more 
nonimmigrant foreign workers must file a completed DOL Application for 
Temporary Employment Certification form and, unless a specific 
exemption applies, the initial recruitment report. If an association of 
agricultural producers files the application, the association must 
identify whether it is the sole employer, a joint employer with its 
employer-member employers, or the agent of its employer-members. The 
association must retain documentation substantiating the employer or 
agency status of the association and be prepared to submit such 
documentation to the CO in the event of an audit.
    (2) If an H-2ALC intends to file an application, the H-2ALC must 
meet all of the requirements of the definition of employer in Sec.  
655.100(b), and comply with all the assurances, guarantees, and other 
requirements contained in this part and in part 653, subpart F, of this 
chapter. The H-2ALC must have a place of business (physical location) 
in the U.S. and a means by which it may be contacted for employment. H-
2A workers employed by an H-2ALC may not perform services for a fixed-
site employer unless the H-2ALC is itself providing the housing and 
transportation required by Sec.  655.104(d) and (h), or has filed a 
statement confirming that the fixed-site employer will provide 
compliant housing and/or transportation, as required by Sec.  655.106, 
with the OFLC, for each fixed-site employer listed on the application. 
The H-2ALC must retain a copy of the statement of compliance required 
by Sec.  655.106(b)(6).
    (3) An association of agricultural producers may submit a master 
application covering a variety of job opportunities available with a 
number of employers in multiple areas of intended employment, just as 
though all of the covered employers were in fact a single employer, as 
long as a single date of need is provided for all workers requested by 
the application and the combination of job opportunities is supported 
by an explanation demonstrating a business reason for the combination. 
The association must identify on the Application for Temporary 
Employment Certification, by name and address, each employer that will 
employ H-2A workers. If the association is acting solely as an agent, 
each employer will receive a separate labor certification.
    (b) Filing. The employer may send the Application for Temporary 
Employment Certification and all supporting documentation by U.S. Mail 
or private mail courier to the NPC. The Department will publish a 
Notice in the Federal Register identifying the address(es), and any 
future address changes, to which applications must be mailed, and will 
also post these addresses on the DOL Internet Web site at http://www.foreignlaborcert.doleta.gov/. The form must bear 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). An association filing a master application as a joint employer 
may sign on behalf of its employer members. The Department may also 
require applications to be filed electronically in addition to or 
instead of by mail.
    (c) Timeliness. A completed Application for Temporary Employment 
Certification must be filed no less than 45 calendar days before date 
of need.
    (d) Emergency situations. (1) Waiver of time period and required 
pre-filing activity. The CO may waive the time period for filing and 
pre-filing wage and recruitment requirements set forth in Sec.  
655.102, along with their associated attestations, for employers who 
did not make use of temporary alien agricultural workers during the 
prior year's agricultural season or for any employer that has other 
good and substantial cause (which may include unforeseen changes in 
market conditions), provided that the CO can timely make the 
determinations required by Sec.  655.109(b).
    (2) Employer requirements. The employer requesting a waiver of the 
required time period and pre-filing wage and recruitment requirements 
must submit to the NPC a completed Application for Temporary Employment 
Certification, a completed job offer on the ETA Form 790 Agricultural 
and Food Processing Clearance Order, 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 agricultural season 
or

[[Page 77214]]

whether the request is for other 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 which has necessitated the waiver request. Good 
and substantial cause may include, but is not limited to, such things 
as the substantial loss of U.S. workers due to weather-related 
activities or other reasons, unforeseen events affecting the work 
activities to be performed, pandemic health issues, or similar 
conditions.
    (3) Processing of Applications. The CO shall promptly transmit the 
job order, on behalf of the employer, to the SWA serving the area of 
intended employment and request an expedited review of the job order in 
accordance with Sec.  655.102(e) and an inspection of housing in 
accordance with Sec.  655.104(d)(6)(iii). The CO shall process the 
application and job order in accordance with Sec.  655.107, issue a 
wage determination in accordance with Sec.  655.108 and, upon 
acceptance, require the employer to engage in positive recruitment 
consistent with Sec.  655.102(d)(2), (3), and (4). The CO shall require 
the SWA to transmit the job order for interstate clearance consistent 
with Sec.  655.102(f). The CO shall specify a date on which the 
employer will be required to submit a recruitment report in accordance 
with Sec.  655.102(k). The CO will make a determination on the 
application in accordance with Sec.  655.109.


Sec.  655.102  Required pre-filing activity.

    (a) Time of filing of application. An employer may not file an 
Application for Temporary Employment Certification before all of the 
pre-filing recruitment steps set forth in this section have been fully 
satisfied, except where specifically exempted from some or all of those 
requirements by these regulations. Modifications to these requirements 
for H-2ALCs are set forth in Sec.  655.106.
    (b) General Attestation Obligation. An employer must attest on the 
Application for Temporary Employment Certification that it will comply 
with all of the assurances and obligations of this subpart and to 
performing all necessary steps of the recruitment process as specified 
in this section.
    (c) Retention of documentation. An employer filing an Application 
for Temporary Employment Certification must maintain documentation of 
its advertising and recruitment efforts as required in this subpart and 
be prepared to submit this documentation in response to a Notice of 
Deficiency from the CO prior to the CO rendering a Final Determination, 
or in the event of an audit. The documentation required in this subpart 
must be retained for a period of no less than 3 years from the date of 
the certification. There is no record retention requirement for any 
application (and supporting documentation) after the Secretary has made 
a final decision to deny the application.
    (d) Positive recruitment steps. An employer filing an application 
must:
    (1) Submit a job order to the SWA serving the area of intended 
employment;
    (2) Run two print advertisements (one of which must be on a Sunday, 
except as provided in paragraph (g) of this section);
    (3) Contact former U.S. employees who were employed within the last 
year as described in paragraph (h) of this section; and
    (4) Based on an annual determination made by the Secretary, as 
described in paragraph (i) of this section, recruit in all States 
currently designated as a State of traditional or expected labor supply 
with respect to each area of intended employment in which the 
employer's work is to be performed as required in paragraph (i)(2) of 
this section.
    (e) Job order. (1) The employer must submit a job order to the SWA 
serving the area of intended employment no more than 75 calendar days 
and no fewer than 60 calendar days before the date of need for 
intrastate and interstate clearance, identifying it as a job order to 
be placed in connection with a future application for H-2A workers. If 
the job opportunity is located in more than one State, the employer may 
submit a job order to any one of the SWAs having jurisdiction over the 
anticipated worksites. Where a future master application will be filed 
by an association of agricultural employers, the SWA will prepare a 
single job order in the name of the association on behalf of all 
employers that will be duly named on the Application for Temporary 
Employment Certification. Documentation of this step by the applicant 
is satisfied by maintaining proof of posting from the SWA identifying 
the job order number(s) with the start and end dates of the posting of 
the job order.
    (2) The job order submitted to the SWA must satisfy all the 
requirements for newspaper advertisements contained in Sec.  655.103 
and comply with the requirements for agricultural clearance orders in 
20 CFR part 653 Subpart F and the requirements set forth in Sec.  
655.104.
    (3) The SWA will review the contents of the job order as provided 
in 20 CFR part 653 Subpart F and will work with the employer to address 
any deficiencies, except that the order may be placed prior to 
completion of the housing inspection required by 20 CFR 653.501(d)(6) 
where necessary to meet the timeframes required by statute and 
regulation. However, the SWA must ensure that housing within its 
jurisdiction is inspected as expeditiously as possible thereafter. Any 
issue with regard to whether a job order may properly be placed in the 
job service system that cannot be resolved with the applicable SWA may 
be brought to the attention of the NPC, which may direct that the job 
order be placed in the system where the NPC determines that the 
applicable program requirements have been met. If the NPC concludes 
that the job order is not acceptable, it shall so inform the employer 
using the procedures applicable to a denial of certification set forth 
in Sec.  655.109(e).
    (f) Intrastate/Interstate recruitment. (1) Upon receipt and 
acceptance of the job order, the SWA must promptly place the job order 
in intrastate clearance on its active file and begin recruitment of 
eligible U.S. workers. The SWA receiving the job order under paragraph 
(e) of this section will promptly transmit, on behalf of the employer, 
a copy of its active job order to all States listed in the job order as 
anticipated worksites. The SWA must also transmit a copy of all active 
job orders to no fewer than three States, which must include those 
States, if any, designated by the Secretary as traditional or expected 
labor supply States (``out-of-State recruitment States'') for the area 
of intended employment in which the employer's work is to be performed 
as defined in paragraph (i) of this section.
    (2) Unless otherwise directed by the CO, the SWA must keep the job 
order open for interstate clearance until the end of the recruitment 
period, as set forth in Sec.  655.102(f)(3). Each of the SWAs to which 
the job order was referred must keep the job order open for that same 
period of time and must refer each eligible U.S. worker who applies (or 
on whose behalf an application is made) for the job opportunity.
    (3) (i) For the first 5 years after the effective date of this 
rule, the recruitment period shall end 30 days after the first date the 
employer requires the services of the H-2A workers, or on the last day 
the employer requires the services of H-2A workers in the applicable 
area of intended employment, whichever is sooner (the 30-day rule). 
During that 5-year period, the Department will endeavor to study

[[Page 77215]]

the costs and benefits of providing for continuing recruitment of U.S. 
workers after the H-2A workers have already entered the country. Unless 
prior to the expiration of the 5-year period the Department conducts a 
study and publishes a notice determining that the economic benefits of 
such extended recruitment period outweigh its costs, the recruitment 
period will, after the expiration of the 5-year period, end on the 
first date the employer requires the services of the H-2A worker.
    (ii) Withholding of U.S. workers prohibited. The provisions of this 
paragraph shall apply so as long as the 30-day rule is in place.
    (A) Complaints. 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 job site of H-2A workers in order to force 
the hiring of U.S. workers during the 30-day rule under paragraph 
(f)(3)(i) of this section 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) Investigations. 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) Written findings. Where the CO determines, after conducting the 
interviews required by this paragraph, that the employer's complaint is 
valid and justified, the CO shall immediately suspend the application 
of the 30-day rule under paragraph (f)(3)(i) of this section to the 
employer. The CO's determination shall be the final decision of the 
Secretary.
    (g) Newspaper advertisements. (1) During the period of time that 
the job order is being circulated by the SWA(s) for interstate 
clearance under paragraph (f) of this section, the employer must place 
an advertisement on 2 separate days, which may be consecutive, one of 
which must be a Sunday (except as provided in paragraph (g)(2) of this 
section), in a newspaper of general circulation serving the area of 
intended employment that has a reasonable distribution and is 
appropriate to the occupation and the workers likely to apply for the 
job opportunity. Both newspaper advertisements must be published only 
after the job order is accepted by the SWA for intrastate/interstate 
clearance.
    (2) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the employer must, in place of 
a Sunday edition, advertise in the regularly published daily edition 
with the widest circulation in the area of intended employment.
    (3) The newspaper advertisements must satisfy the requirements of 
Sec. Sec.  655.103 and 655.104. The employer must maintain copies of 
newspaper pages (with date of publication and full copy of ad), or tear 
sheets of the pages of the publication in which the advertisements 
appeared, or other proof of publication containing the text of the 
printed advertisements and the dates of publication furnished by the 
newspaper.
    (4) If a professional, trade or ethnic publication is more 
appropriate for the occupation and the workers likely to apply for the 
job opportunity than a general circulation newspaper, and is the most 
likely source to bring responses from able, willing, qualified, and 
available U.S. workers, the employer may use a professional, trade or 
ethnic publication in place of one of the newspaper advertisements, but 
may not replace the Sunday advertisement (or the substitute required by 
paragraph (g)(2) of this section).
    (h) Contact with former U.S. employees. The employer must contact 
by mail or other effective means its former U.S. employees (except 
those who were dismissed for cause, abandoned the worksite, or were 
provided documentation at the end of their previous period of 
employment explaining the lawful, job-related reasons they would not be 
re-contacted) employed by the employer in the occupation at the place 
of employment during the previous year and solicit their return to the 
job. The employer must maintain copies of correspondence signed and 
dated by the employer or, if other means are used, maintain dated logs 
demonstrating that each worker was contacted, including the phone 
number, e-mail address, or other means that was used to make contact. 
The employer must list in the recruitment report any workers who did 
not return to the employ of the employer because they were either 
unable or unwilling to return to the job or did not respond to the 
employer's request, and must retain documentation, if provided by the 
worker, showing evidence of their inability, unwillingness, or non-
responsiveness.
    (i) Additional positive recruitment. (1) Each year, the Secretary 
will make a determination with respect to each State whether there are 
other States (``traditional or expected labor supply States'') in which 
there are a significant number of able and qualified workers who, if 
recruited, would be willing to make themselves available for work in 
that State, as well as which newspapers in each traditional or expected 
labor supply State that the employer may use to fulfill its obligation 
to run a newspaper advertisement in that State. Such determination must 
be based on information provided by State agencies or by other sources 
within the 120 days preceding the determination (which will be 
solicited by notice in the Federal Register), and will to the extent 
information is available take into account the success of recent 
efforts by out-of-State employers to recruit in that State. The 
Secretary will not designate a State as a traditional or expected labor 
supply State if the State has a significant number of employers that 
are recruiting for U.S. workers for the same types of occupations and 
comparable work. The Secretary's annual determination as to traditional 
or expected labor supply States, if any, from which applicants from 
each State must recruit will be published in the Federal Register and 
made available through the ETA Web site.
    (2) Each employer must engage in positive recruitment in those 
States designated in accordance with paragraph (i)(1) with respect to 
the State in which the employer's work is to be performed. Such 
recruitment will consist of one newspaper advertisement in each State 
in one of the newspapers designated by the Secretary, published within 
the same period of time as the newspaper advertisements required under 
paragraph (g) of this section. An employer will not be required to 
conduct positive recruitment in more than three States designated in 
accordance with paragraph (i)(1) for each area of intended employment 
listed on the employer's application. The advertisement must refer 
applicants to the SWA nearest the area in which the advertisement was 
placed.
    (j) Referrals of U.S. workers. SWAs may only refer for employment 
individuals for whom they have verified identity and employment 
authorization through the process for employment verification of all 
workers that is established by INA sec. 274A(b). SWAs must provide 
documentation certifying the employment verification that satisfies the 
standards of INA sec. 274A(a)(5) and its implementing regulations at 8 
CFR 274a.6.

[[Page 77216]]

    (k) Recruitment report. (1) No more than 50 days before the date of 
need the employer must prepare, sign, and date a written recruitment 
report. The recruitment report must be submitted with the Application 
for Temporary Employment Certification. The recruitment report must:
    (i) List the original number of openings for which the employer 
recruited;
    (ii) Identify each recruitment source by name;
    (iii) 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;
    (iv) Confirm that former employees were contacted and by what 
means; and
    (v) If applicable, explain the lawful job-related reason(s) for not 
hiring any U.S. workers who applied for the position.
    (2) The employer must update the recruitment report within 48 hours 
of the date that is the end of the recruitment period as specified in 
Sec.  655.102(f)(3). This supplement to the recruitment report must 
meet the requirements of paragraph (k)(1) of this section. The employer 
must sign and date this supplement to the recruitment report and retain 
it for a period of no less than 3 years. The supplement to the 
recruitment report must be provided in the event of an audit.
    (3) The employer must retain resumes (if provided) of, and evidence 
of contact with (which may be in the form of an attestation), each U.S. 
worker who applied or was referred to the job opportunity. Such resumes 
and evidence of contact must be retained along with the recruitment 
report and the supplemental recruitment report for a period of no less 
than 3 years, and must be provided in response to a Notice of 
Deficiency or in the event of an audit.


Sec.  655.103  Advertising requirements.

    All advertising conducted to satisfy the required recruitment steps 
under Sec.  655.102 before filing the Application for Temporary 
Employment Certification must meet the requirements set forth in this 
section and at Sec.  655.104 and must contain terms and conditions of 
employment which are not less favorable than those that will be offered 
to the H-2A workers. All advertising must contain the following 
information:
    (a) The employer's name and location(s) of work, or in the event 
that a master application will be filed by an association, a statement 
indicating that the name and location of each member of the association 
can be obtained from the SWA of the State in which the advertisement is 
run;
    (b) The geographic area(s) of employment with enough specificity to 
apprise applicants of any travel requirements and where applicants will 
likely have to reside to perform the services or labor;
    (c) A description of the job opportunity for which certification is 
sought with sufficient information to apprise U.S. workers of services 
or labor to be performed and the anticipated period of employment of 
the job opportunity;
    (d) The wage offer, or in the event that there are multiple wage 
offers (such as where a master application will be filed by an 
association and/or where there are multiple crop activities for a 
single employer), the range of applicable wage offers and, where a 
master application will be filed by an association, a statement 
indicating that the rate(s) applicable to each employer can be obtained 
from the SWA;
    (e) The three-fourths guarantee specified in Sec.  655.104(i);
    (f) If applicable, a statement that work tools, supplies, and 
equipment will be provided at no cost to the worker;
    (g) A statement that housing will be made available at no cost to 
workers, including U.S. workers, who cannot reasonably return to their 
permanent residence at the end of each working day;
    (h) If applicable, a statement that transportation and subsistence 
expenses to the worksite will be provided by the employer;
    (i) A statement that the position is temporary and a specification 
of the total number of job openings the employer intends to fill;
    (j) A statement directing applicants to report or send resumes to 
the SWA of the State in which the advertisement is run for referral to 
the employer;
    (k) Contact information for the applicable SWA and the job order 
number.


Sec.  655.104  Contents of job offers.

    (a) Preferential treatment of aliens prohibited. 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. Except where otherwise permitted under 
this section, no job offer may impose on U.S. workers any restrictions 
or obligations that will not be imposed on the employer's H-2A workers.
    (b) Job qualifications. Each job qualification listed in the job 
offer must not substantially deviate from the normal and accepted 
qualifications required by employers that do not use H-2A workers in 
the same or comparable occupations and crops.
    (c) Minimum benefits, wages, and working conditions. Every job 
offer accompanying an H-2A application 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 worker, except for those U.S. workers 
who are reasonably able to return to their permanent residence at the 
end of the work day. Housing must be provided through one of the 
following means:
    (i) Employer-provided housing. Employer-provided housing that meets 
the full set of DOL 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; or
    (ii) Rental and/or public accommodations. Rental or public 
accommodations or other substantially similar class of habitation that 
meets applicable local standards for such housing. In the absence of 
applicable local standards, State standards will apply. In the absence 
of applicable local or State standards, DOL OSHA standards at 29 CFR 
1910.142 will apply. Any charges for rental housing must be paid 
directly by the employer to the owner or operator of the housing. The 
employer must document that the housing complies with the local, State, 
or Federal housing standards. Such documentation may include but is not 
limited to a certificate from a State Department of Health or other 
State or local agency or a statement from the manager or owner of the 
housing.
    (2) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock shall meet standards of 
DOL OSHA for such housing. In the absence of such standards, range 
housing for sheepherders and other workers engaged in the range 
production of livestock must meet guidelines issued by ETA.
    (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, bedding, or other property by the individual 
workers found to have been responsible for

[[Page 77217]]

damage which 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 (but need 
not pay for optional, extra services) 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, 
family housing must be provided to workers with families who request 
it.
    (6) Housing inspection. In order to ensure that the housing 
provided by an employer under this section meets the relevant standard:
    (i) An employer must make the required attestation, which may 
include an attestation that the employer is complying with the 
procedures set forth in Sec.  654.403, at the time of filing the 
Application for Temporary Employment Certification pursuant to Sec.  
655.105(e)(2).
    (ii) The employer must make a request to the SWA for a housing 
inspection no less than 60 days before the date of need, except where 
otherwise provided under this part.
    (iii) The SWA must make its determination that the housing meets 
the statutory criteria applicable to the type of housing provided prior 
to the date on which the Secretary is required to make a certification 
determination under INA sec. 218(c)(3)(A), which is 30 days before the 
employer's date of need. SWAs must not adopt rules or restrictions on 
housing inspections that unreasonably prevent inspections from being 
completed in the required time frame, such as rules that no inspections 
will be conducted where the housing is already occupied or is not yet 
leased. If the employer has attested to and met all other criteria for 
certification, and the employer has made a timely request for a housing 
inspection under this paragraph, and the SWA has failed to complete a 
housing inspection by the statutory deadline of 30 days prior to date 
of need, the certification will not be withheld on account of the SWA's 
failure to meet the statutory deadline. The SWA must in such cases 
inspect the housing prior to or during occupation to ensure it meets 
applicable housing standards. If, upon inspection, the SWA determines 
the supplied housing does not meet the applicable housing standards, 
the SWA must promptly provide written notification to the employer and 
the CO. The CO will take appropriate action, including notice to the 
employer to cure deficiencies. An employer's failure to cure 
substantial violations can result in revocation of the temporary labor 
certification.
    (7) Certified housing that becomes unavailable. If after a request 
to certify housing (but before certification), or after certification 
of 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 paragraph (d)(1)(ii) of this 
section and for which the employer is able to submit evidence of such 
compliance. The employer must 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 
paragraph (d)(1)(ii) of this section. The SWA must notify the CO of all 
housing changes and of any noncompliance with the standards set forth 
in paragraph (d)(1)(ii) of this section. Substantial noncompliance can 
result in revocation of the temporary labor certification under Sec.  
655.117.
    (e) Workers' compensation. 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. The employer must retain for 3 years from the 
date of certification of the application, the name of the insurance 
carrier, the insurance policy number, and proof of insurance for the 
dates of need, or, if appropriate, proof of State law coverage.
    (f) Employer-provided items. Except as provided in this paragraph, 
the employer must provide to the worker, without charge or deposit 
charge, all tools, supplies, and equipment required to perform the 
duties assigned. The employer may charge the worker for reasonable 
costs related to the worker's refusal or negligent failure to return 
any property furnished by the employer or due to such worker's willful 
damage or destruction of such property. Where it is a common practice 
in the particular area, crop activity and occupation for workers to 
provide tools and equipment, with or without the employer reimbursing 
the workers for the cost of providing them, such an arrangement will be 
permitted, provided that the requirements of sec. 3(m) of the FLSA at 
29 U.S.C. 203(m) are met. Section 3(m) does not permit deductions for 
tools or equipment primarily for the benefit of the employer that 
reduce an employee's wage below the wage required under the minimum 
wage, or, where applicable, the overtime provisions of the FLSA.
    (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.  655.114.
    (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 departed to the employer's place of 
employment. For an H-2A worker coming from outside of the U.S., the 
place from which the worker has departed is the place of recruitment, 
which the Department interprets to mean the appropriate U.S. consulate 
or port of entry. 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 U.S. workers. 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

[[Page 77218]]

permitted under paragraph (g) of this section.
    (2) Transportation from last place of employment to home country. 
If the worker completes the work contract period, and the worker has no 
immediately 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. For an H-2A 
worker coming from outside of the U.S., the place from which the worker 
has departed will be considered to be the appropriate U.S. consulate or 
port of entry.
    (3) Transportation between living quarters and worksite. The 
employer must provide transportation between the worker's living 
quarters (i.e., housing provided or secured by the employer pursuant to 
paragraph (d) of this section) and the employer's worksite at no cost 
to the worker, and such transportation must comply with all applicable 
Federal, State or local 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 part 500, 
subpart D. If workers' compensation is used to cover such 
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.
    (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. For purposes of this 
paragraph 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 has been approved by the CO. 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. 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 
(e.g., 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 guaranteed. 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 the employer affords the U.S. or H-2A worker during the total work 
contract period less employment than that required under this 
paragraph, 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.
    (2) Guarantee for piece rate paid worker. If the worker will be 
paid on a piece rate basis, the employer must use the worker's average 
hourly piece rate earnings or the AEWR, 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 do so 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 
paragraph (j)(2) of this section.
    (4) Displaced H-2A worker. The employer is not liable for payment 
under paragraph (i)(1) of this section to an H-2A worker whom the CO 
certifies is displaced because of the employer's compliance with Sec.  
655.105(d) with respect to referrals made after the employer's date of 
need. The employer is, however, liable for return transportation for 
any such displaced worker in accordance with paragraph (h)(2) of this 
section.
    (5) Obligation to provide housing and meals. Notwithstanding the 
three-fourths guarantee contained in this section, employers are 
obligated to provide housing and subsistence 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 U.S. 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) The employer must keep accurate and 
adequate records with respect to the workers' 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 home 
address; and the amount of and reasons for any and all deductions taken 
from the worker's wages.
    (2) Each employer must keep the records required by this part, 
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

[[Page 77219]]

representative, and by the worker and designated representatives as 
described in this paragraph.
    (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 completion of the work contract.
    (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 (broken out by 
offers in accordance with, and 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; 
and
    (6) If piece rates are used, the units produced daily.
    (l) Rates of pay. (1) If the worker is paid by the hour, the 
employer must pay the worker at least the AEWR in effect at the time 
recruitment for the position was begun, the prevailing hourly wage 
rate, the prevailing piece rate, or the Federal or State minimum wage 
rate, whichever is highest, for every hour or portion thereof worked 
during a pay period; or
    (2)(i) If the worker is paid on a piece rate basis and the piece 
rate does not result at the end of the pay period 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, 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 piece rate prevailing 
for the activity in the area of intended employment; 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 must 
be normal, meaning that they may not be unusual for workers performing 
the same 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.
    (n) Abandonment of employment or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, fails to report for employment at the beginning of the contract 
period, or is terminated for cause, and the employer notifies the 
Department and DHS in writing or by any other method specified by the 
Department or DHS in a manner specified in a notice published in the 
Federal Register not later than 2 working days after such abandonment 
or abscondment occurs, the employer will not be responsible for 
providing or paying for the subsequent transportation and subsistence 
expenses of that worker under paragraph (h) of this section, and that 
worker is not entitled to the three-fourths guarantee described in 
paragraph (i) of this section. An abandonment or abscondment shall be 
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. Employees may be terminated for cause, 
however, for shorter unexcused periods of time that shall not be 
considered abandonment or abscondment.
    (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:
    (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 (but only if the worker can provide documentation 
supporting such employment), whichever the worker prefers. For an H-2A 
worker coming from outside of the U.S., the place from which the worker 
(disregarding intervening employment) came to work for the employer is 
the appropriate U.S. consulate or port of entry;
    (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 will be computed as set forth in 
paragraph (h) of this section. The amount of the transportation payment 
will be no less (and is not required to be more) than the most 
economical and reasonable common carrier transportation charges for the 
distances involved.
    (p) Deductions. The employer must make all deductions from the 
worker's paycheck that are 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. However, an 
employer subject to the FLSA may not make deductions that would violate 
the FLSA.
    (q) Copy of work contract. The employer must provide to the worker, 
no later than on the day the work commences, a copy of the work 
contract between the employer and the worker. The work contract must 
contain all of the provisions required by paragraphs (a) through (p) of 
this section. In the absence of a separate, written work contract 
entered into between the employer and the worker, the job order, as 
provided in 20 CFR part 653, Subpart F, will be the work contract.


Sec.  655.105  Assurances and obligations of H-2A employers.

    An employer seeking to employ H-2A workers must attest as part of 
the Application for Temporary Employment Certification that it will 
abide by the following conditions of this subpart:
    (a) The job opportunity is and will continue through the 
recruitment period to be open to any qualified U.S. worker regardless 
of race, color, national origin, age, sex, religion, handicap, or 
citizenship, and the employer has conducted and will continue to 
conduct the required recruitment, in accordance with regulations, and 
has been unsuccessful in locating sufficient numbers of qualified U.S. 
applicants for the job opportunity for which certification is sought. 
Any U.S. workers who applied or apply for the job were or will be 
rejected only for lawful, job-related reasons, and those not rejected 
on this basis have been or will be hired. In addition, the employer 
attests that it

[[Page 77220]]

will retain records of all rejections as required by Sec.  655.119.
    (b) The employer is offering terms and working conditions which are 
not less favorable than those offered to the H-2A worker(s) and are not 
less than the minimum terms and conditions required by this subpart.
    (c) The specific job opportunity for which the employer is 
requesting H-2A certification is not vacant because the former occupant 
is on strike or being locked out in the course of a labor dispute.
    (d) The employer 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 recruitment period as specified in Sec.  655.102(f)(3).
    (e) During the period of employment that is the subject of the 
labor certification application, the employer will:
    (1) Comply with applicable Federal, State and local employment-
related laws and regulations, including employment-related health and 
safety laws;
    (2) Provide for or secure housing for those workers who are not 
reasonably able to return to their permanent residence at the end of 
the work day, without charge to the worker, that complies with the 
applicable standards as set forth in Sec.  655.104(d);
    (3) Where required, has timely requested a preoccupancy inspection 
of the housing and, if one has been conducted, received certification;
    (4) Provide insurance, without charge to the worker, under a State 
workers' compensation law or otherwise, that meets the requirements of 
Sec.  655.104(e); and
    (5) Provide transportation in compliance with all applicable 
Federal, State or local laws and regulations between the worker's 
living quarters (i.e., housing provided by the employer under Sec.  
655.104(d)) and the employer's worksite without cost to the worker.
    (f) Upon the separation from employment of H-2A worker(s) employed 
under the labor certification application, if such separation occurs 
prior to the end date of the employment specified in the application, 
the employer will notify the Department and DHS in writing (or any 
other method specified by the Department or DHS) of the separation from 
employment not later than 2 work days after such separation is 
discovered by the employer. The procedures for reporting abandonments 
and abscondments are outlined in Sec.  655.104(n) of this subpart.
    (g) The offered wage rate is the highest of the AEWR in effect at 
the time recruitment is initiated, the prevailing hourly wage or piece 
rate, or the Federal or State minimum wage, and the employer will pay 
the offered wage during the entire period of the approved labor 
certification.
    (h) The offered wage is not based on commission, bonuses, or other 
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis that equals or exceeds the AEWR, prevailing 
hourly wage or piece rate, or the legal Federal or State minimum wage, 
whichever is highest.
    (i) The job opportunity is a full-time temporary position, 
calculated to be at least 30 hours per work week, the qualifications 
for which do not substantially deviate from the normal and accepted 
qualifications required by employers that do not use H-2A workers in 
the same or comparable occupations or crops.
    (j) 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 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 to those laid-off U.S. worker(s) and the U.S. worker(s) 
either refused the job opportunity or was rejected for the job 
opportunity for lawful, job-related reasons.
    (k) The employer has not and will not intimidate, threaten, 
restrain, coerce, blacklist, 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 with just cause:
    (1) Filed a complaint under or related to sec. 218 of the INA at 8 
U.S.C. 1188, or this subpart or any other Department regulation 
promulgated under sec. 218 of the INA;
    (2) Instituted or caused to be instituted any proceeding under or 
related to sec. 218 of the INA, or this subpart or any other Department 
regulation promulgated under sec. 218 of the INA;
    (3) Testified or is about to testify in any proceeding under or 
related to sec. 218 of the INA or this subpart or any other Department 
regulation promulgated under sec. 218 of the INA;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to sec. 218 of the INA or this subpart or 
any other Department regulation promulgated under sec. 218 of the INA; 
or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by sec. 218 of the INA, or this 
subpart or any other Department regulation promulgated under sec. 218 
of the INA.
    (l) The employer shall not discharge any person because of that 
person's taking any action listed in paragraphs (k)(1) through (k)(5) 
of this section.
    (m) All fees associated with processing the temporary labor 
certification will be paid in a timely manner.
    (n) The employer will inform H-2A workers of the requirement that 
they leave the U.S. at the end of the period certified by the 
Department or separation from the employer, whichever is earlier, as 
required under Sec.  655.111, unless the H-2A worker is being sponsored 
by another subsequent employer.
    (o) The employer and its agents have not sought or received payment 
of any kind from the employee for any activity related to obtaining 
labor certification, including payment of the employer's attorneys' 
fees, application fees, or recruitment costs. For purposes of this 
paragraph, 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. This provision does not prohibit employers or their agents from 
receiving reimbursement for costs that are the responsibility of the 
worker, such as government required passport or visa fees.
    (p) The employer has contractually forbidden any foreign labor 
contractor or recruiter whom the employer engages in international 
recruitment of H-2A workers to seek or receive payments from 
prospective employees, except as provided for in DHS regulations at 8 
CFR 214.2(h)(5)(xi)(A).
    (q) The applicant is either a fixed-site employer, an agent or 
recruiter, an H-2ALC (as defined in these regulations), or an 
association.


Sec.  655.106  Assurances and obligations of H-2A Labor Contractors.

    (a) The pre-filing activity requirements set forth in Sec.  655.102 
are modified as follows for H-2ALCs:
    (1) The job order for an H-2ALC may contain work locations in 
multiple areas of intended employment, and may be submitted to any one 
of the SWAs

[[Page 77221]]

having jurisdiction over the anticipated work areas. The SWA receiving 
the job order shall promptly transmit, on behalf of the employer, a 
copy of its active job order to all States listed in the application as 
anticipated worksites, as well as those States, if any, designated by 
the Secretary as traditional or expected labor supply States for each 
area in which the employer's work is to be performed. Each SWA shall 
keep the H-2ALC's job order posted until the end of the recruitment 
period, as set forth in Sec.  655.102(f)(3), for the area of intended 
employment that is covered by the SWA. SWAs in States that have been 
designated as traditional or expected labor supply States for more than 
one area of intended of employment that are listed on an application 
shall keep the H-2ALC's job order posted until the end of the 
applicable recruitment period that is last in time, and may make 
referrals for job opportunities in any area of intended employment that 
is still in an active recruitment period, as defined by Sec.  
655.102(f)(3).
    (2) The H-2ALC must conduct separate positive recruitment under 
Sec.  655.102(g) through (i) for each area of intended employment in 
which the H-2ALC intends to perform work, but need not conduct separate 
recruitment for each work location within a single area of intended 
employment. The positive recruitment for each area of intended 
employment must list 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. Such positive recruitment must be conducted pre-filing for the 
first area of intended employment, but must be started no more than 75 
and no fewer than 60 days before the listed arrival date (or the 
amended date, if applicable) for each subsequent area of intended 
employment. For each area of intended employment, the advertising that 
must be placed in any applicable States designated as traditional or 
expected labor supply States must be placed at the same time as the 
placement of other positive recruitment for the area of intended 
employment in accordance with Sec.  655.102(i)(2).
    (3) The job order and the positive recruitment in each area of 
intended employment may require that workers complete the remainder of 
the H-2ALC's itinerary.
    (4) An H-2ALC who hires U.S. workers during the course of its 
itinerary, and accordingly releases one or more of its H-2A workers, is 
eligible for the release from the three-quarters guarantee with respect 
to the released H-2A workers that is provided for in Sec.  
655.104(i)(4).
    (5) An H-2ALC may amend its application subsequent to submission in 
accordance with Sec.  655.107(d)(3) to account for new or changed 
worksites or areas of intended employment during the course of the 
itinerary in the following manner:
    (i) If the additional worksite(s) are in the same area(s) of 
intended employment as represented on the Application for Temporary 
Employment Certification, the H-2ALC is not required to re-recruit in 
those areas of intended employment if that recruitment has been 
completed and if the job duties at the new work sites are similar to 
those already covered by the application.
    (ii) If the additional worksite(s) are outside the area(s) of 
intended employment represented on the Application for Temporary 
Employment Certification, the H-2ALC must submit in writing the new 
area(s) of intended employment and explain the reasons for the 
amendment of the labor certification itinerary. The CO will order 
additional recruitment in accordance with Sec.  655.102(d).
    (iii) For any additional worksite not included on the original 
application that necessitates a change in housing of H-2A workers, the 
H-2ALC must secure the statement of housing as described in paragraph 
(b)(6) of this section and obtain an inspection of such housing from 
the SWA in the area of intended employment.
    (iv) Where additional recruitment is required under paragraphs 
(a)(5)(i) or (a)(5)(ii) of this section, the CO shall allow it to take 
place on an expedited basis, where possible, so as to allow the amended 
dates of need to be met.
    (6) Consistent with paragraph (a)(5) of this section, no later than 
30 days prior to the commencement of employment in each area of 
intended employment in the itinerary of an H-2ALC, the SWA having 
jurisdiction over that area of intended employment must complete the 
housing inspections for any employer-provided housing to be used by the 
employees of the H-2ALC.
    (7) To satisfy the requirements of Sec.  655.102(h), the H-2ALC 
must contact all U.S employees that worked for the H-2ALC during the 
previous season, except those excluded by that section, before filing 
its application, and must advise those workers that a separate job 
opportunity exists for each area of intended employment that is covered 
by the application. The employer may advise contacted employees that 
for any given job opportunity, workers may be required to complete the 
remainder of the H-2ALC's itinerary.
    (b) In addition to the assurances and obligations listed in Sec.  
655.105, H-2ALC applicants are also required to:
    (1) Provide the MSPA Farm Labor Contractor (FLC) certificate of 
registration number and expiration date if required under MSPA at 29 
U.S.C. 1801 et seq., to have such a certificate;
    (2) Identify the farm labor contracting activities the H-2ALC is 
authorized to perform as an FLC under MSPA as shown on the FLC 
certificate of registration, if required under MSPA at 29 U.S.C. 1801 
et seq., to have such a certificate of registration;
    (3) List the name and location of each fixed-site agricultural 
business to which the H-2A Labor Contractor 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;
    (4) Provide proof of its ability to discharge financial obligations 
under the H-2A program by attesting that it has obtained a surety bond 
as required by 29 CFR 501.8, stating on the application the name, 
address, phone number, and contact person for the surety, and providing 
the amount of the bond (as calculated pursuant to 29 CFR 501.8) and any 
identifying designation utilized by the surety for the bond;
    (5) Attest that it has engaged in, or will engage in within the 
timeframes required by Sec.  655.102 as modified by Sec.  655.106(a), 
recruitment efforts in each area of intended employment in which it has 
listed a fixed-site agricultural business; and
    (6) Attest that it will be providing housing and transportation 
that complies with the applicable housing standards in Sec.  655.104(d) 
or that it has obtained from each fixed-site agricultural business that 
will provide housing or transportation to the workers a written 
statement stating that:
    (i) All housing used by workers and owned, operated or secured by 
the fixed-site agricultural business complies with the applicable 
housing standards in Sec.  655.104(d); and
    (ii) All transportation between the worksite and the workers' 
living quarters that is provided by the fixed-site agricultural 
business complies with all applicable Federal, State, or local laws and 
regulations and will 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 part 500, subpart D,

[[Page 77222]]

except where workers' compensation is used to cover such transportation 
as described in Sec.  655.104(h)(3).


Sec.  655.107  Processing of applications.

    (a) Processing. (1) Upon receipt of the application, the CO will 
promptly review the application for completeness and an absence of 
errors that would prevent certification, and for compliance with the 
criteria for certification. The CO will make a determination to 
certify, deny, or issue a Notice of Deficiency prior to making a Final 
Determination on the application. Applications requesting that zero job 
opportunities be certified for H-2A employment because the employer has 
been able to recruit a sufficient number of U.S. workers must comply 
with other requirements for H-2A applications and must be supported by 
a recruitment report, in which case the application will be accepted 
but will then be denied. Criteria for certification, as used in this 
subpart, include, but are not limited to, whether the employer has 
established the need for the agricultural services or labor to be 
performed on a temporary or seasonal basis; made all the assurances and 
met all the obligations required by Sec.  655.105, and/or, if an H-
2ALC, by Sec.  655.106; complied with the timeliness requirements in 
Sec.  655.102; and complied with the recruitment obligations required 
by Sec. Sec.  655.102 and 655.103.
    (2) Unless otherwise noted, any notice or request sent by the CO or 
OFLC to an applicant requiring a response shall be sent by means 
normally assuring next-day delivery, to afford the applicant sufficient 
time to respond. The employer's response shall be considered filed with 
the Department when sent (by mail, certified mail, or any other means 
indicated to be acceptable by the CO) to the Department, which may be 
demonstrated, for example, by a postmark.
    (b) Notice of deficiencies. (1) If the CO determines that the 
employer has made all necessary attestations and assurances, but the 
application fails to comply with one or more of the criteria for 
certification in paragraph (a) of this section, the CO will promptly 
notify the employer within 7 calendar days of the CO's receipt of the 
application.
    (2) The notice will:
    (i) State the reason(s) why the application fails to meet the 
criteria for temporary labor certification, citing the relevant 
regulatory standard(s);
    (ii) Offer the employer an opportunity to submit a modified 
application within 5 business days from date of receipt, stating the 
modification that is needed for the CO to accept the application for 
consideration;
    (iii) Except as provided for under paragraph (b)(2)(iv) of this 
section, state that the CO's determination on whether to grant or deny 
the Application for Temporary Employment Certification will be made no 
later than 30 calendar days before the date of need, provided that the 
employer submits the requested modification to the application within 5 
business days and in a manner specified by the CO;
    (iv) Where the CO determines the employer failed to comply with the 
recruitment obligations required by Sec. Sec.  655.102 and 655.103, 
offer the employer an opportunity to correct its recruitment and 
conduct it on an expedited schedule. The CO shall specify the positive 
recruitment requirements, request the employer submit proof of 
corrected advertisement and an initial recruitment report meeting the 
requirements of Sec.  655.102(k) no earlier than 48 hours after the 
last corrected advertisement is printed, and state that the CO's 
determination on whether to grant or deny the Application for Temporary 
Employment Certification will be made within 5 business days of 
receiving the required documentation, which may be a date later than 30 
days before the date of need:
    (v) Offer the employer an opportunity to request an expedited 
administrative review or a de novo administrative hearing before an 
ALJ, of the Notice of Deficiency. The notice will state that in order 
to obtain such a review or hearing, the employer, within 5 business 
days of the receipt of the notice, must file by facsimile or other 
means normally assuring next day delivery, a written request to the 
Chief Administrative Law Judge of DOL and simultaneously serve a copy 
on the CO. The notice will also state that the employer may submit any 
legal arguments that the employer believes will rebut the basis of the 
CO's action; and
    (vi) State that if the employer does not comply with the 
requirements under paragraphs (b)(2)(ii) and (iv) of this section or 
request an expedited administrative judicial review or a de novo 
hearing before an ALJ within the 5 business days the CO will deny the 
application in accordance with the labor certification determination 
provisions in Sec.  655.109.
    (c) Submission of modified applications. (1) If the CO notifies the 
employer of any deficiencies within the 7 calendar day timeframe set 
forth in paragraph (b)(1) of this section, the date by which the CO's 
Final Determination is required by statute to be made will be postponed 
by 1 day for each day that passes beyond the 5 business-day period 
allowed under paragraph (b)(2)(ii) of this section to submit a modified 
application.
    (2) Where the employer submits a modified application as required 
by the CO, and the CO approves the modified application, the CO will 
not deny the application based solely on the fact that it now does not 
meet the timeliness requirements for filing applications.
    (3) If the modified application is not approved, the CO will deny 
the application in accordance with the labor certification 
determination provisions in Sec.  655.109.
    (d) Amendments to applications. (1) Applications may be amended at 
any time before the CO's certification determination to increase the 
number of workers requested in the initial application 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 request is 
submitted in writing, 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.
    (2) Applications may be amended to make minor changes in the total 
period of employment, but only if a written request is submitted to the 
CO and approved in advance. 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(s) of a decision to approve on the adequacy of the 
underlying test of the domestic labor market for the job opportunity. 
If a request for a change in the start date of the total period of 
employment is made after workers have departed for the employer's place 
of work, the CO may only approve the change if the request is 
accompanied by a written assurance signed and dated by the employer 
that all such workers 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.
    (3) Other amendments to the application, including elements of the 
job offer and the place of work, may be approved by the CO if the CO 
determines the proposed amendment(s) are justified by a business reason 
and will not prevent the CO from making the

[[Page 77223]]

labor certification determination required under Sec.  655.109. 
Requested amendments will be reviewed as quickly as possible, taking 
into account revised dates of need for work locations associated with 
the amendment.
    (e) Appeal procedures. With respect to either a Notice of 
Deficiency issued under paragraph (b) of this section, the denial of a 
requested amendment under paragraph (d) of this section, or a notice of 
denial issued under Sec.  655.109(e), if the employer timely requests 
an expedited administrative review or de novo hearing before an ALJ, 
the procedures set forth in Sec.  655.115 will be followed.


Sec.  655.108  Offered wage rate.

    (a) Highest wage. To comply with its obligation under Sec.  
655.105(g), an employer must offer a wage rate that is the highest of 
the AEWR in effect at the time recruitment for a position is begun, the 
prevailing hourly wage or piece rate, or the Federal or State minimum 
wage.
    (b) Wage rate request. The employer must request and obtain a wage 
rate determination from the NPC, on a form prescribed by ETA, before 
commencing any recruitment under this subpart, except where 
specifically exempted from this requirement by these regulations.
    (c) Validity of wage rate. The recruitment must begin within the 
validity period of the wage determination obtained from the NPC. 
Recruitment for this purpose begins when the job order is accepted by 
the SWA for posting.
    (d) Wage offer. The employer must offer and advertise in its 
recruitment a wage at least equal to the wage rate required by 
paragraph (a) of this section.
    (e) Adverse effect wage rate. The AEWR will be based on published 
wage data for the occupation, skill level, and geographical area from 
the Bureau of Labor Statistics (BLS), Occupational Employment 
Statistics (OES) survey. The NPC will obtain wage information on the 
AEWR using the On-line Wage Library (OWL) found on the Foreign Labor 
Certification Data Center Web site (http://www.flcdatacenter.com/). 
This wage shall not be less than the July 24, 2009 Federal minimum wage 
of $7.25.
    (f) Wage determination. The NPC must enter the wage rate 
determination on a form it uses, indicate the source, and return the 
form with its endorsement to the employer.
    (g) Skill level. (1) Level I wage rates are assigned to job offers 
for beginning level employees who have a basic understanding of the 
occupation. These employees perform routine tasks that require limited, 
if any, exercise of judgment. The tasks provide experience and 
familiarization with the employer's methods, practices, and programs. 
The employees may perform higher level work for training and 
developmental purposes. These employees work under close supervision 
and receive specific instructions on required tasks and results 
expected. Their work is closely monitored and reviewed for accuracy.
    (2) Level II wage rates are assigned to job offers for employees 
who have attained, through education or experience, a good 
understanding of the occupation. These employees perform moderately 
complex tasks that require limited judgment. An indicator that the job 
request warrants a wage determination at Level II would be a 
requirement for years of education and/or experience that are generally 
required as described in the O*NET Job Zones.
    (3) Level III wage rates are assigned to job offers for employees 
who have a sound understanding of the occupation and have attained, 
either through education or experience, special skills or knowledge. 
These employees perform tasks that require exercising judgment and may 
coordinate the activities of other staff. They may have supervisory 
authority over those staff. A requirement for years of experience or 
educational degrees that are at the higher ranges indicated in the 
O*NET Job Zones would be an indicator that a Level III wage should be 
considered. Frequently, key words in the job title can be used as 
indicators that an employer's job offer is for an experienced worker. 
Words such as lead, senior, crew chief, or journeyman would be 
indicators that a Level III wage should be considered.
    (4) Level IV wage rates are assigned to job offers for employees 
who have sufficient experience in the occupation to plan and conduct 
work requiring judgment and the independent evaluation, selection, 
modification, and application of standard procedures and techniques. 
Such employees receive only minimal guidance and their work is reviewed 
only for application of sound judgment and effectiveness in meeting the 
establishment's procedures and expectations. They generally have 
management and/or supervisory responsibilities.
    (h) Retention of documentation. An employer filing an Application 
for Temporary Employment Certification must maintain documentation of 
its wage determination from the NPC as required in this subpart and be 
prepared to submit this documentation with the filing of its 
application. The documentation required in this subpart must be 
retained for a period of no less than 3 years from the date of the 
certification. There is no record retention requirement for 
applications (and supporting documentation) that are denied.


Sec.  655.109  Labor certification determinations.

    (a) COs. The Administrator, OFLC is the Department's National CO. 
The Administrator, OFLC, and the CO(s) in the NPC(s) (by virtue of 
delegation from the Administrator, OFLC), have the authority to certify 
or deny applications for temporary employment certification under the 
H-2A nonimmigrant classification. If the Administrator, OFLC has 
directed that certain types of temporary labor certification 
applications or specific applications under the H-2A nonimmigrant 
classification be handled by the National OFLC, the Director(s) of the 
NPC(s) will refer such applications to the Administrator, OFLC.
    (b) Determination. No later than 30 calendar days before the date 
of need, as identified in the Application for Temporary Employment 
Certification, except as provided for under Sec.  655.107(c) for 
modified applications, or applications not otherwise meeting 
certification criteria by that date, the CO will make a determination 
either to grant or deny the Application for Temporary Employment 
Certification. The CO will grant the application if and only if: the 
employer has met the requirements of this subpart, including the 
criteria for certification set forth in Sec.  655.107(a), and thus the 
employment of the H-2A workers will not adversely affect the wages and 
working conditions of similarly employed U.S. workers.
    (c) Notification. The CO will notify the employer in writing 
(either electronically or by mail) of the labor certification 
determination.
    (d) Approved certification. If temporary labor certification is 
granted, the CO must send the certified Application for Temporary 
Employment Certification and a Final Determination letter to the 
employer, or, if appropriate, to the employer's agent or attorney. The 
Final Determination letter will notify the employer to file the 
certified application and any other documentation required by USCIS 
with the appropriate USCIS office and to continue to cooperate with the 
SWA by accepting all referrals of eligible U.S. workers who apply (or 
on whose behalf an application is made) for the job opportunity until 
the end of the recruitment period as set forth in Sec.  655.102(f)(3). 
However, the employer will not be required to accept referrals of 
eligible U.S. workers once it has hired

[[Page 77224]]

or extended employment offers to eligible U.S. workers equal to the 
number of H-2A workers sought.
    (e) Denied certification. If temporary labor certification is 
denied, the Final Determination letter will be sent to the employer by 
means normally assuring next-day delivery. The Final Determination 
Letter will:
    (1) State the reasons certification is denied, citing the relevant 
regulatory standards and/or special procedures;
    (2) If applicable, address the availability of U.S. workers in the 
occupation as well as the prevailing benefits, wages, and working 
conditions of similarly employed U.S. workers in the occupation and/or 
any applicable special procedures;
    (3) Offer the applicant an opportunity to request an expedited 
administrative review, or a de novo administrative hearing before an 
ALJ, of the denial. The notice must state that in order to obtain such 
a review or hearing, the employer, within 7 calendar days of the date 
of the notice, must file by facsimile (fax), telegram, or other means 
normally assuring next day delivery, a written request to the Chief 
Administrative Law Judge of DOL (giving the address) and simultaneously 
serve a copy on the CO. The notice will also state that the employer 
may submit any legal arguments which the employer believes will rebut 
the basis of the CO's action; and
    (4) State that if the employer does not request an expedited 
administrative judicial review or a de novo hearing before an ALJ 
within the 7 calendar days, the denial is final and the Department will 
not further consider that application for temporary alien agricultural 
labor certification.
    (f) Partial certification. The CO may, to ensure compliance with 
all regulatory requirements, issue a partial certification, reducing 
either the period of need or the number of H-2A workers being requested 
or both for certification, based upon information the CO receives in 
the course of processing the temporary labor certification application, 
an audit, or otherwise. The number of workers certified shall be 
reduced by one for each referred U.S. worker who is qualified, able, 
available and willing. If a partial labor certification is issued, the 
Final Determination letter will:
    (1) State the reasons for which either the period of need and/or 
the number of H-2A workers requested has been reduced, citing the 
relevant regulatory standards and/or special procedures;
    (2) If applicable, address the availability of U.S. workers in the 
occupation;
    (3) Offer the applicant an opportunity to request an expedited 
administrative review, or a de novo administrative hearing before an 
ALJ, of the decision. The notice will state that in order to obtain 
such a review or hearing, the employer, within 7 calendar days of the 
date of the notice, will file by facsimile or other means normally 
assuring next day delivery a written request to the Chief 
Administrative Law Judge of DOL (giving the address) and simultaneously 
serve a copy on the CO. The notice will also state that the employer 
may submit any legal arguments which the employer believes will rebut 
the basis of the CO's action; and
    (4) State that if the employer does not request an expedited 
administrative judicial review or a de novo hearing before an ALJ 
within the 7 calendar days, the denial is final and the Department will 
not further consider that application for temporary alien agricultural 
labor certification.
    (g) Appeal procedures. If the employer timely requests an expedited 
administrative review or de novo hearing before an ALJ under paragraph 
(e)(3) or (f)(3) of this section, the procedures at Sec.  655.115 will 
be followed.
    (h) Payment of processing fees. A determination by the CO to grant 
an Application for Temporary Employment Certification in whole or in 
part under paragraph (d) or (f) of this section will include a bill for 
the required fees. Each employer of H-2A workers under the Application 
for Temporary Employment Certification (except joint employer 
associations, which shall not be assessed a fee in addition to the fees 
assessed to the members of the association) must pay in a timely manner 
a non-refundable fee upon issuance of the certification granting the 
application (in whole or in part), as follows:
    (1) Amount. The application 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. The fees must be paid by check or money order made payable 
to ``United States Department of Labor.'' In the case of H-2A employers 
that are members of an agricultural association acting as a joint 
employer applying on their behalf, the aggregate fees for all employers 
of H-2A workers under the application must be paid by one check or 
money order.
    (2) Timeliness. Fees received by the CO no more than 30 days after 
the date the temporary labor certification is granted will be 
considered timely. Non-payment of fees by the date that is 30 days 
after the issuance of the certification will be considered a 
substantial program violation and subject to the procedures in Sec.  
655.115.


Sec.  655.110  Validity and scope of temporary labor certifications.

    (a) Validity period. A temporary labor certification is valid for 
the duration of the job opportunity for which certification is granted 
to the employer. Except as provided in paragraph and (d) of this 
section, the validity period is that time between the beginning and 
ending dates of certified employment, as listed on the Application for 
Temporary Employment Certification. The certification expires on the 
last day of authorized employment.
    (b) Scope of validity. Except as provided in paragraphs (c) and (d) 
of this section, a temporary labor certification is valid only for the 
number of H-2A workers, the area of intended employment, the specific 
occupation and duties, and the employer(s) specified on the certified 
Application for Temporary Employment Certification (as originally filed 
or as amended) and may not be transferred from one employer to another.
    (c) Scope of validity--associations. (1) Certified applications. If 
an association is requesting temporary labor certification as a joint 
employer, the certified Application for Temporary Employment 
Certification will be granted jointly to the association and to each of 
the association's employer members named on the application. Workers 
authorized by the temporary labor certification may be transferred 
among its certified employer members to perform work for which the 
temporary labor certification was granted, provided the association 
controls the assignment of such workers and maintains a record of such 
assignments. All temporary agricultural labor certifications to 
associations may be used for the certified job opportunities of any of 
its employer members named on the application. If an association is 
requesting temporary labor certification as a sole employer, the 
certified Application for Temporary Employment Certification is granted 
to the association only.
    (2) Ineligible employer-members. Workers may not be transferred or 
referred to an association's employer member if that employer member 
has

[[Page 77225]]

been debarred from participation in the H-2A program.
    (d) Extensions on period of employment. (1) Short-term extension. 
An employer who seeks an extension of 2 weeks or less of the certified 
Application for Temporary Employment Certification must apply for such 
extension to DHS. If DHS grants the extension, the corresponding 
Application for Temporary Employment Certification will be deemed 
extended for such period as is approved by DHS.
    (2) Long-term extension. For extensions beyond 2 weeks, an employer 
may apply to the CO at any time for an extension of the period of 
employment on the certified Application for Temporary Employment 
Certification for reasons related to weather conditions or other 
factors beyond the control of the employer (which may include 
unforeseen changes in market conditions), provided that the employer's 
need for an extension is 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 grant or deny the 
request for extension of the period of employment on the Application 
for Temporary Employment Certification based on the available 
information, and will notify the employer of the decision in writing. 
The employer may appeal a denial for a request of an extension in 
accordance with the procedures contained in Sec.  655.115. The CO will 
not grant an extension where the total work contract period under that 
application and extensions would be 12 months or more, except in 
extraordinary circumstances.
    (e) Requests for determinations based on nonavailability of able, 
willing, available, eligible, and qualified U.S. workers. (1) Standards 
for requests. If a temporary 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 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 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 (e)(2) of this section) is 
received, make a determination on the request. An employer may appeal a 
denial of such a determination in accordance with the procedures 
contained in Sec.  655.115.
    (2) Unavailability of U.S. workers. The employer's request for a 
new determination must be made directly to the CO by telephone or 
electronic mail, and must be confirmed by the employer in writing as 
required by this paragraph. If the employer telephonically or via 
electronic mail 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.
    (3) Notification of determination. If the CO determines that U.S. 
workers have become unavailable and cannot identify sufficient specific 
able, willing, eligible, and qualified U.S. workers who are or who are 
likely to be available, the CO will grant the employer's request for a 
new determination. 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.  655.111  Required departure.

    (a) Limit to worker's stay. As defined further in DHS regulations, 
a temporary labor certification limits the authorized period of stay 
for an H-2A worker. See 8 CFR 214.2(h). A foreign worker may not remain 
beyond his or her authorized period of stay, as established by DHS, 
which is based upon the validity period of the labor certification 
under which the H-2A worker is employed, nor beyond separation from 
employment prior to completion of the H-2A contract, absent an 
extension or change of such worker's status under DHS regulations.
    (b) Notice to worker. Upon establishment of a program by DHS for 
registration of departure, an employer must notify any H-2A worker that 
when the worker departs the U.S. by land at the conclusion of 
employment as provided in paragraph (a) of this section, the worker 
must register such departure at the place and in the manner prescribed 
by DHS.


Sec.  655.112  Audits.

    (a) Discretion. The Department will conduct audits of temporary 
labor certification applications for which certification has been 
granted. The applications selected for audit will be chosen within the 
sole discretion of the Department.
    (b) Audit letter. Where an application is selected for audit, the 
CO will issue an audit letter to the employer/applicant. The audit 
letter will:
    (1) State the documentation that must be submitted by the employer;
    (2) Specify a date, no fewer than 14 days and no more than 30 days 
from the date of the audit letter, by which the required documentation 
must be received by the CO; and
    (3) Advise that failure to comply with the audit process may result 
in a finding by the CO to:
    (i) Revoke the labor certification as provided in Sec.  655.117 
and/or
    (ii) Debar the employer from future filings of H-2A temporary labor 
certification applications as provided in Sec.  655.118.
    (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.
    (d) Audit violations. If, as a result of the audit, the CO 
determines the employer failed to produce required documentation, or 
determines that the employer violated the standards set forth in Sec.  
655.117(a) with respect to the application, the employer's labor 
certification may be revoked under Sec.  655.117 and/or the employer 
may be referred for debarment under Sec.  655.118. The CO may determine 
to provide the audit findings and underlying documentation to DHS or 
another appropriate enforcement agency. The CO shall 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, Office of Special Counsel for Unfair Immigration Related 
Employment Practices.


Sec.  655.113  H-2A 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 the DHS and the 
Department's Office of the Inspector General for investigation.

[[Page 77226]]

    (b) Terminated processing. If a court or the DHS determines that 
there was fraud or willful misrepresentation involving an Application 
for Temporary Employment Certification, the application will be deemed 
invalid. The determination is not appealable. If a certification has 
been granted, a finding under this paragraph will be cause to revoke 
the certification.


Sec.  655.114  Setting meal charges; petition for higher meal charges.

    (a) Meal charges. Until a new amount is set under this paragraph an 
employer may charge workers up to $9.90 for providing them with three 
meals per day. 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 Administrator, OFLC, as a Notice 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 (FLSA), the charge or deduction must meet the 
requirements of 29 U.S.C. 203(m) of the FLSA, including the 
recordkeeping requirements found at 29 CFR 516.27.
    (b) Filing petitions for higher meal charges. The employer may file 
a petition with the CO to charge more than the applicable amount for 
meal charges if the employer justifies the charges and submits to the 
CO the documentation required by paragraph (b)(1) of this section.
    (1) Required documentation. Documentation submitted must include 
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: 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 by the CO for a period of 1 year.
    (2) Effective date for higher charge. The employer may begin 
charging the higher rate upon receipt of a favorable decision from the 
CO unless the CO sets a later effective date in the decision.
    (c) Appeal. 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 Administrative Law Judge. 
ALJ's will hear such appeals according to the procedures in 29 CFR part 
18, except that the appeal will not be considered as a complaint to 
which an answer is required. The decision of the ALJ is the final 
decision of the Secretary.


Sec.  655.115  Administrative review and de novo hearing before an 
administrative law judge.

    (a) Administrative review. (1) Consideration. Whenever an employer 
has requested an administrative review before an ALJ of a decision by 
the CO: Not to accept for consideration an Application for Temporary 
Employment Certification; to deny an Application for Temporary 
Employment Certification; to deny an amendment of an Application for 
Temporary Employment Certification; or to deny an extension of an 
Application for Temporary Employment Certification, the CO will send a 
certified copy of the ETA case file to the Chief Administrative Law 
Judge by means normally assuring next-day delivery. The Chief 
Administrative Law Judge will immediately assign an ALJ (which may be a 
panel of such persons designated by the Chief Administrative Law Judge 
from BALCA established by 20 CFR part 656, which will hear and decide 
the appeal as set forth in this section) to review the record for legal 
sufficiency. The ALJ may not remand the case and may not receive 
evidence in addition to what the CO used to make the determination.
    (2) Decision. Within 5 business days after receipt of the ETA case 
file the ALJ will, on the basis of the written record and after due 
consideration of any written submissions (which may not include new 
evidence) from the parties involved or amici curiae, either affirm, 
reverse, or modify the CO's decision by written decision. The decision 
of the ALJ must specify the reasons for the action taken and must be 
immediately provided to the employer, the CO, the Administrator, OFLC, 
and DHS by means normally assuring next-day delivery. The ALJ's 
decision is the final decision of the Secretary.
    (b) De novo hearing. (1) Request for hearing; conduct of hearing. 
Whenever an employer has requested a de novo hearing before an ALJ of a 
decision by the CO: Not to accept for consideration an Application for 
Temporary Employment Certification; to deny an Application for 
Temporary Employment Certification; to deny an amendment of an 
Application for Temporary Employment Certification; or to deny an 
extension of an Application for Temporary Employment Certification, the 
CO will send a certified copy of the ETA case file to the Chief 
Administrative Law Judge by means normally assuring next-day delivery. 
The Chief Administrative Law Judge will immediately assign an ALJ 
(which may be a panel of such persons designated by the Chief 
Administrative Law Judge from BALCA established by 20 CFR part 656 of 
this chapter, but which will hear and decide the appeal as provided in 
this section) to conduct the 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 5 calendar days after the ALJ's receipt of the ETA case 
file, if the employer so requests, and will allow for the introduction 
of new evidence; and
    (iii) The ALJ's decision must be rendered within 10 calendar days 
after the hearing.
    (2) Decision. After a de novo hearing, the ALJ must affirm, 
reverse, or modify the CO's determination, and the ALJ's decision must 
be provided immediately to the employer, CO, Administrator, OFLC, and 
DHS by means normally assuring next-day delivery. The ALJ's decision is 
the final decision of the Secretary.


Sec.  655.116  Job Service Complaint System; enforcement of work 
contracts.

    (a) Complaints arising under this subpart may be filed through the 
Job Service Complaint System, as described in 20 CFR part 658, Subpart 
E. Complaints which involve worker contracts must be referred by the 
SWA to ESA for appropriate handling and resolution, as described in 29 
CFR part 501. As part of this process, ESA may report the results of 
its investigation to the Administrator, OFLC for consideration of 
employer penalties or such other action as may be appropriate.
    (b) 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, may be referred to the U.S. Department of Justice, 
Civil Rights

[[Page 77227]]

Division, Office of Special Counsel for Unfair Immigration Related 
Employment Practices (OSC), in addition to any activity, investigation, 
and/or enforcement action taken by ETA or an SWA. Likewise, if OSC 
becomes aware of a violation of these regulations, it may provide such 
information to the appropriate SWA and the CO.


Sec.  655.117  Revocation of approved labor certifications.

    (a) Basis for DOL revocation. The CO, in consultation with the 
Administrator, OFLC, may revoke a temporary agricultural labor 
certification approved under this subpart, if, after notice and 
opportunity for a hearing (or failure to file rebuttal evidence), it is 
found that any of the following violations were committed with respect 
to that temporary agricultural labor certification:
    (1) The CO finds that issuance of the temporary agricultural labor 
certification was not justified due to a willful misrepresentation on 
the application;
    (2) The CO finds that the employer:
    (i) Willfully violated a material term or condition of the approved 
temporary agricultural labor certification or the H-2A regulations, 
unless otherwise provided under paragraphs (a)(2)(ii) through (iv) of 
this section; or
    (ii) Failed, after notification, to cure a substantial violation of 
the applicable housing standards set out in 20 CFR 655.104(d); or
    (iii) Significantly failed to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, or law 
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this 
subpart, or 29 CFR part 501 (ESA enforcement of contractual 
obligations); or
    (iv) Failed to comply with one or more sanctions or remedies 
imposed by the ESA for violation(s) of obligations found by that 
agency, or with one or more decisions or orders of the Secretary or a 
court order secured by the Secretary under sec. 218 of the INA at 8 
U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of 
contractual obligations).
    (3) The CO determines after a recommendation is made by the WHD ESA 
in accordance with 29 CFR 501.20, which governs when a recommendation 
of revocation may be made to ETA, that the conduct complained of upon 
examination meets the standards of paragraph (a)(1) or (2) of this 
section; or
    (4) If a court or the DHS, or, as a result of an audit, the CO, 
determines that there was fraud or willful misrepresentation involving 
the Application for Temporary Employment Certification.
    (b) DOL procedures for revocation. (1) The CO will send to the 
employer (and his attorney or agent) a Notice of Intent to Revoke by 
means normally ensuring next-day delivery, which will contain a 
detailed statement of the grounds for the proposed revocation and the 
time period allowed for the employer's rebuttal. The employer may 
submit evidence in rebuttal within 14 calendar days of the date the 
notice is issued. The CO must consider all relevant evidence presented 
in deciding whether to revoke the temporary agricultural labor 
certification.
    (2) If rebuttal evidence is not timely filed by the employer, the 
Notice of Intent to Revoke will become the final decision of the 
Secretary and take effect immediately at the end of the 14-day period.
    (3) If, after reviewing the employer's timely filed rebuttal 
evidence, the CO finds that the employer more likely than not meets one 
or more of the bases for revocation under Sec.  655.117(a), the CO will 
notify the employer, by means normally ensuring next-day delivery, 
within 14 calendar days after receiving such timely filed rebuttal 
evidence, of his/her final determination that the temporary 
agricultural labor certification should be revoked. The CO's notice 
will contain a detailed statement of the bases for the decision, and 
must offer the employer an opportunity to request a hearing. The notice 
must state that, to obtain such a hearing, the employer must, within 10 
calendar days of the date of the notice 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 Administrator, OFLC. The timely 
filing of a request for a hearing will stay the revocation pending the 
outcome of the hearing.
    (c) Hearing. (1) Within 5 business days of receipt of the request 
for a hearing, the CO will send a certified copy of the ETA case file 
to the Chief Administrative Law Judge by means normally assuring next-
day delivery. The Chief Administrative Law Judge will immediately 
assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18 
apply to such hearings, except that:
    (i) The request for a hearing 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 15 calendar days after the ALJ's receipt of the ETA case 
file, if the employer so requests, and will allow for the introduction 
of new evidence; and
    (iii) The ALJ's decision must be rendered within 20 calendar days 
after the hearing.
    (2) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the CO's determination. The ALJ's decision must be provided 
immediately to the employer, CO, Administrator, OFLC, DHS, and DOS by 
means normally assuring next-day delivery. The ALJ's decision is the 
final decision of the Secretary.
    (d) Employer's obligations in the event of revocation. If an 
employer's temporary agricultural labor certification is revoked under 
this section, and the workers have departed the place of recruitment, 
the employer will be responsible for:
    (1) Reimbursement of actual inbound transportation and subsistence 
expenses, as if the worker meets the requirements for payment under 
Sec.  655.104(h)(1);
    (2) The worker's outbound transportation expenses, as if the worker 
meets the requirements for payment under Sec.  655.104(h)(2);
    (3) Payment to the worker of the amount due under the three-fourths 
guarantee as required by Sec.  655.104(i); and
    (4) Any other wages, benefits, and working conditions due or owing 
to the worker under these regulations.


Sec.  655.118  Debarment.

    (a) The Administrator, OFLC may not issue future labor 
certifications under this subpart to an employer and any successor in 
interest to the debarred employer, subject to the time limits set forth 
in paragraph (c) of this section, if:
    (1) The Administrator, OFLC finds that the employer substantially 
violated a material term or condition of its temporary labor 
certification with respect to the employment of domestic or 
nonimmigrant workers; and
    (2) The Administrator, OFLC issues a Notice of Intent to Debar no 
later than 2 years after the occurrence of the violation.
    (b) The Administrator, OFLC may not issue future labor 
certifications under this subpart to an employer represented by an 
agent or attorney, subject to the time limits set forth in paragraph 
(c) of this section, if:
    (1) The Administrator, OFLC finds that the agent or attorney 
participated in, had knowledge of, or had reason to know of, an 
employer's substantial violation; and
    (2) The Administrator, OFLC issues the agent or attorney a Notice 
of Intent to Debar no later than 2 years after the occurrence of the 
violation.

[[Page 77228]]

    (c) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years.
    (d) For the purposes of this section, a substantial violation 
includes:
    (1) A pattern or practice of acts of commission or omission on the 
part of the employer or the employer's agent which:
    (i) Are significantly injurious to the wages or benefits required 
to be offered under the H-2A program, or working conditions of a 
significant number of the employer's U.S. or H-2A workers; or
    (ii) Reflect a significant failure to offer employment to all 
qualified domestic workers who applied for the job opportunity for 
which certification was being sought, except for lawful job-related 
reasons; or
    (iii) Reflect a willful failure to comply with the employer's 
obligations to recruit U.S. workers as set forth in this subpart; or
    (iv) Reflect a significant failure to comply with the audit process 
in violation of Sec.  655.112; or
    (v) Reflect the employment of an H-2A worker outside the area of 
intended employment, or in an activity/activities, not listed in the 
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment 
specified in the job order and any approved extension;
    (2) The employer's persistent or prolonged failure to pay the 
necessary fee in a timely manner, following the issuance of a 
deficiency notice to the applicant and allowing for a reasonable period 
for response;
    (3) Fraud involving the Application for Temporary Employment 
Certification or a response to an audit;
    (4) A significant failure to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, or law 
enforcement function under sec. 218 of the INA at 8 U.S.C. 1188, this 
subpart, or 29 CFR part 501 (ESA enforcement of contractual 
obligations); or
    (5) A significant failure to comply with one or more sanctions or 
remedies imposed by the ESA for violation(s) of obligations found by 
that agency (if applicable), or with one or more decisions or orders of 
the Secretary or a court order secured by the Secretary under sec. 218 
of the INA at 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA 
enforcement of contractual obligations); or
    (6) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected.
    (e) DOL procedures for debarment under this section will be as 
follows:
    (1) The Administrator, OFLC will send to the employer, attorney, or 
agent a Notice of Intent to Debar by means normally ensuring next-day 
delivery, which will contain a detailed statement of the grounds for 
the proposed debarment. The employer, attorney or agent may submit 
evidence in rebuttal within 14 calendar days of the date the notice is 
issued. The Administrator, OFLC must consider all relevant evidence 
presented in deciding whether to debar the employer, attorney, or 
agent.
    (2) If rebuttal evidence is not timely filed by the employer, 
attorney, or agent, the Notice of Intent to Debar will become the final 
decision of the Secretary and take effect immediately at the end of the 
14-day period.
    (3) If, after reviewing the employer's timely filed rebuttal 
evidence, the Administrator, OFLC determines that the employer, 
attorney, or agent more likely than not meets one or more of the bases 
for debarment under Sec.  655.118(d), the Administrator, OFLC will 
notify the employer, by means normally ensuring next-day delivery, 
within 14 calendar days after receiving such timely filed rebuttal 
evidence, of his/her final determination of debarment and of the 
employer, attorney, or agent's right to appeal.
    (4) 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, and must offer the 
employer, attorney, or agent an opportunity to request a hearing. The 
notice must state that, to obtain such a hearing, the debarred party 
must, within 30 calendar days of the date of the notice, 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 Administrator, OFLC. The 
debarment will take effect 30 days from the date the Notice of 
Debarment is issued unless a request for a hearing is properly filed 
within 30 days from the date the Notice of Debarment is issued. The 
timely filing of the request for a hearing stays the debarment pending 
the outcome of the hearing.
    (5)(i) Hearing. Within 10 days of receipt of the request for a 
hearing, the Administrator, OFLC will send a certified copy of the ETA 
case file to the Chief Administrative Law Judge by means normally 
assuring next-day delivery. The Chief Administrative Law Judge 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;
    (ii) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the Administrator, OFLC 's determination. The ALJ's decision 
must be provided immediately to the employer, Administrator, OFLC, DHS, 
and DOS by means normally assuring next-day delivery. The ALJ's 
decision is the final decision of the Secretary, unless either party, 
within 30 calendar days of the ALJ's decision, seeks review of the 
decision with the Administrative Review Board (ARB).
    (iii) Review by the ARB.
    (A) Any party wishing review of the decision of an ALJ must, within 
30 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 must decide whether to accept the petition within 30 
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 days after 
the receipt of a timely filing of the petition, the decision of the ALJ 
shall be deemed the final agency action. If a petition for review is 
accepted, the decision of the ALJ shall 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 in person or by certified mail.
    (B) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges shall promptly forward a copy of 
the complete hearing record to the ARB.
    (C) Where the ARB has determined to review such decision and order, 
the ARB shall notify each party of:
    (1) The issue or issues raised;
    (2) The form in which submissions shall be made (i.e., briefs, oral 
argument, etc.); and
    (3) The time within which such presentation shall be submitted.
    (D) The ARB's final decision must be issued within 90 days from the 
notice granting the petition and served upon all parties and the ALJ, 
in person or by certified mail. If the ARB fails to provide a decision 
within 90 days from the notice granting the petition, the ALJ's 
decision will be the final decision of the Secretary.
    (f) Debarment involving members of associations. If the 
Administrator, OFLC determines a substantial violation has occurred, 
and if an individual employer-member of an agricultural

[[Page 77229]]

association acting as a joint employer is determined to have committed 
the violation, the debarment determination will apply only to that 
member of the association unless the Administrator, OFLC determines 
that the association or other association members participated in the 
violation, in which case the debarment will be invoked against the 
complicit association or other association members.
    (g) Debarment involving agricultural associations acting as joint 
employers. If the Administrator, OFLC determines a substantial 
violation has occurred, and if an agricultural association acting as a 
joint employer with its members is found to have committed the 
violation, the debarment determination will apply only to the 
association, and will not be applied to any individual employer-member 
of the association unless the Administrator, OFLC determines that the 
member participated in the violation, in which case the debarment will 
be invoked against any complicit association members as well. An 
association debarred from the H-2A temporary labor certification 
program will not be permitted to continue to file as a joint employer 
with its members during the period of the debarment.
    (h) Debarment involving agricultural associations acting as sole 
employers. If the Administrator, OFLC determines a substantial 
violation has occurred, and if an agricultural association acting as a 
sole employer is determined to have committed the violation, the 
debarment determination will apply only to the association and any 
successor in interest to the debarred association.


Sec.  655.119  Document retention requirements.

    (a) Entities required to retain documents. All employers receiving 
a certification of the Application for Temporary Employment 
Certification for agricultural workers under this subpart are required 
to retain the documents and records as provided in the regulations 
cited in paragraph (c) of this section.
    (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.
    (c) Documents and records to be retained. (1) All applicants must 
retain the following documentation:
    (i) Proof of recruitment efforts including:
    (A) Job order placement as specified in Sec.  655.102(e)(1);
    (B) Advertising as specified in Sec.  655.102(g)(3), or, if used, 
professional, trade, or ethnic publications;
    (C) Contact with former U.S. workers as specified in Sec.  
655.102(h);
    (D) Multi-state recruitment efforts (if required under Sec.  
655.102(i)) as specified in Sec.  655.102(g)(3);
    (ii) Substantiation of information submitted in the recruitment 
report prepared in accordance with Sec.  655.102(k)(2), such as 
evidence of non-applicability of contact of former employees as 
specified in Sec.  655.102(h);
    (iii) The supplemental recruitment report as specified in Sec.  
655.102(k) and any supporting resumes and contact information as 
specified in Sec.  655.102(k)(3);
    (iv) Proof of workers' compensation insurance or State law coverage 
as specified in Sec.  655.104(e);
    (v) Records of each worker's earnings as specified in Sec.  
655.104(j);
    (vi) The work contract or a copy of the Application for Temporary 
Employment Certification as defined in 29 CFR 501.10 and specified in 
Sec.  655.104(q);
    (vii) The wage determination provided by the NPC as specified in 
Sec.  655.108;
    (viii) Copy of the request for housing inspection submitted to the 
SWA as specified in Sec.  655.104(d); and
    (2) In addition to the documentation specified in paragraph (c)(1) 
of this section, H-2ALCs must also retain:
    (i) Statements of compliance with the housing and transportation 
obligations for each fixed-site employer which provided housing or 
transportation and to which the H-2ALC provided workers during the 
validity period of the certification, unless such housing and 
transportation obligations were met by the H-2ALC itself, in which case 
proof of compliance by the H-2ALC must be retained, as specified in 
Sec.  655.101(a)(5);
    (ii) Proof of surety bond coverage which includes the name, 
address, and phone number of the surety, the bond number of other 
identifying designation, the amount of coverage, and the payee, as 
specified in 29 CFR 501.8; and
    (3) Associations filing must retain documentation substantiating 
their status as an employer or agent, as specified in Sec.  
655.101(a)(1).

Subpart C--[Removed and Reserved]

0
5. Subpart C is removed and reserved.

TITLE 29--LABOR

0
6. Revise part 501 to read as follows:

PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY 
ALIEN 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 of intake between DOL agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Cooperation with DOL officials.
501.7 Accuracy of information, statements, data.
501.8 Surety bond.
501.10 Definitions.
Subpart B--Enforcement of Work Contracts
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.

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 Final decision of the Administrative Review Board.

Record

501.46 Retention of official record.
501.47 Certification.


[[Page 77230]]


    Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.

Subpart A--General Provisions


Sec.  501.0  Introduction.

    These regulations cover the enforcement of all contractual 
obligation provisions applicable to the employment of H-2A workers 
under sec. 218 of the Immigration and Nationality Act (INA), as amended 
by the Immigration Reform and Control Act of 1986 (IRCA). These 
regulations are also applicable to the employment of United States 
(U.S.) workers newly hired by employers of H-2A workers in the same 
occupations as the H-2A workers during the period of time set forth in 
the labor certification approved by ETA as a condition for granting H-
2A certification, including any extension thereof. Such U.S. workers 
hired by H-2A employers are hereafter referred to as engaged in 
corresponding employment.


Sec.  501.1  Purpose and scope.

    (a) Statutory standard. Section 218(a) of the INA provides that:
    (1) A petition to import an alien as an H-2A worker (as defined in 
the INA) may not be approved by the Secretary of the Department of 
Homeland Security (DHS) unless the petitioner has applied to the 
Secretary of the United States Department of Labor (Secretary) for a 
certification 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 petition, and
    (ii) The employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
U.S. similarly employed.
    (2) [Reserved]
    (b) Role of the Employment and Training Administration (ETA). The 
issuance and denial of labor certification under sec. 218 of the INA 
has been delegated by the Secretary to ETA, an agency within the U.S. 
Department of Labor (the Department or DOL). In general, matters 
concerning the obligations of an employer of H-2A workers related to 
the labor certification process are administered and enforced by ETA. 
Included within ETA's jurisdiction are issues such as whether U.S. 
workers are available, whether adequate recruitment has been conducted, 
whether there is a strike or lockout, the methodology for establishing 
AEWR, whether workers' compensation insurance has been provided, 
whether employment was offered to U.S. workers as required by sec. 218 
of the INA and regulations at 20 CFR part 655, Subpart B, and other 
similar matters. The regulations pertaining to the issuance and denial 
of labor certification for temporary alien workers by the ETA are found 
in 20 CFR part 655, Subpart B.
    (c) Role of the Employment Standards Administration (ESA), Wage and 
Hour Division (WHD). (1) The Secretary is authorized to take actions 
that assure compliance with the terms and conditions of employment 
under sec. 218 of the INA, the regulations at 20 CFR part 655, Subpart 
B, or these regulations, including the assessment of civil money 
penalties and seeking injunctive relief and specific performance of 
contractual obligations. See 8 U.S.C. 1188(g)(2).
    (2) Certain investigatory, inspection, and law enforcement 
functions to carry out the provisions of sec. 218 of the INA have been 
delegated by the Secretary to the ESA, WHD. In general, matters 
concerning the obligations under a work contract between an employer of 
H-2A workers and the H-2A workers and U.S. workers hired in 
corresponding employment by H-2A employers are enforced by ESA, 
including whether employment was offered to U.S. workers as required 
under sec. 218 of the INA or 20 CFR part 655, Subpart B, or whether 
U.S. workers were laid off or displaced in violation of program 
requirements. Included within the enforcement responsibility of WHD are 
such matters as the payment of required wages, transportation, meals, 
and housing provided during the employment. The WHD has the 
responsibility to carry out investigations, inspections, and law 
enforcement functions and in appropriate instances impose penalties, 
recommend revocation of existing certification(s) or debarment from 
future certifications, and seek injunctive relief and specific 
performance of contractual obligations, including recovery of unpaid 
wages (either directly from the employer or in the case of an H-2A 
Labor Contractors (H-2ALC), from the H-2ALC directly and/or from the 
insurer who issued the surety bond to the H-2ALC as required by 20 CFR 
part 655, Subpart B and 29 CFR 501.8).
    (d) Effect of regulations. The amendments to the INA made by Title 
III of the IRCA apply to petitions and applications filed on and after 
June 1, 1987. Accordingly, the enforcement functions carried out by the 
WHD under the INA and these regulations apply to the employment of any 
H-2A worker and any other U.S. workers hired by H-2A employers in 
corresponding employment as the result of any application filed with 
the Department on and after June 1, 1987.


Sec.  501.2  Coordination of intake between DOL agencies.

    Complaints received by ETA or any State Workforce Agency (SWA) 
regarding contractual H-2A labor standards between the employer and the 
employee will be immediately forwarded to the appropriate WHD office 
for appropriate action under these regulations.


Sec.  501.3  Discrimination prohibited.

    (a) No person shall intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
who has:
    (1) Filed a complaint under or related to sec. 218 of the INA or 
these regulations;
    (2) Instituted or caused to be instituted any proceedings related 
to sec. 218 of the INA or these regulations;
    (3) Testified or is about to testify in any proceeding under or 
related to sec. 218 of the INA or these regulations;
    (4) Exercised or asserted on behalf of himself or others any right 
or protection afforded by sec. 218 of the INA or these regulations; or
    (5) Consulted with an employee of a legal assistance program or an 
attorney on matters related to sec. 218 of the INA, or to this subpart 
or any other Department regulation promulgated pursuant to sec. 218 of 
the INA.
    (b) Allegations of discrimination against any person under 
paragraph (a) of this section will be investigated by the WHD. Where 
the WHD has determined through investigation that such allegations have 
been substantiated, appropriate remedies may be sought. The WHD may 
assess civil money penalties, seek injunctive relief, and/or seek 
additional remedies necessary to make the employee whole as a result of 
the discrimination, as appropriate, and may recommend to ETA debarment 
of any such violator from future labor certification. Complaints 
alleging discrimination against U.S. workers and immigrants based on 
citizenship or immigration status may also be forwarded by the WHD to 
the Department of Justice, Civil Rights Division, Office of Special 
Counsel for Immigration-Related Unfair Employment Practices.


Sec.  501.4  Waiver of rights prohibited.

    No person shall seek to have an H-2A worker, or other U.S. worker 
hired in corresponding employment by an H-2A employer, waive any rights 
conferred under sec. 218 of the INA, the

[[Page 77231]]

regulations at 20 CFR part 655, Subpart B, or under these regulations. 
Any agreement by an employee purporting to waive or modify any rights 
inuring to said person under the INA or these regulations shall be void 
as contrary to public policy, except that a waiver or modification of 
rights or obligations hereunder in favor of the Secretary shall be 
valid for purposes of enforcement of the provisions of the INA or these 
regulations. This does not prevent agreements to settle private 
litigation.


Sec.  501.5  Investigation authority of Secretary.

    (a) General. The Secretary, either pursuant to a complaint or 
otherwise, shall, as may be appropriate, investigate and, in connection 
therewith, enter and inspect such places (including housing) and such 
vehicles, and such records (and make transcriptions thereof), question 
such persons and gather such information as deemed necessary by the 
Secretary to determine compliance with contractual obligations under 
sec. 218 of the INA or these regulations.
    (b) Failure to cooperate with an investigation. Where any employer 
(or employer's agent or attorney) using the services of an H-2A worker 
does not cooperate with an investigation concerning the employment of 
H-2A workers or U.S. workers hired in corresponding employment, the WHD 
shall report such occurrence to ETA and may recommend that ETA revoke 
the existing certification that is the basis for the employment of the 
H-2A workers giving rise to the investigation, and the WHD may 
recommend to ETA the debarment of the employer from future 
certification for up to 3 years. In addition, the WHD may take such 
action as may be appropriate, including the seeking of an injunction 
and/or assessing civil money penalties, against any person who has 
failed to permit the WHD to make an investigation.
    (c) Confidential investigation. The Secretary 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.
    (d) Report of violations. Any person may report a violation of the 
work contract obligations of sec. 218 of the INA or these regulations 
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 DOL, WHD for the geographic area in which the reported violation is 
alleged to have occurred.


Sec.  501.6  Cooperation with DOL officials.

    All persons must cooperate with any official of the DOL assigned to 
perform an investigation, inspection, or law enforcement function 
pursuant to the INA and these regulations during the performance of 
such duties. The WHD will take such action as it deems appropriate, 
including seeking an injunction to bar any failure to cooperate with an 
investigation and/or assessing a civil money penalty therefore. In 
addition, the WHD will report the matter to ETA, and the WHD may 
recommend to ETA the debarment of the employer from future 
certification and/or recommend that the person's existing 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 18 U.S.C. 1114.


Sec.  501.7  Accuracy of information, statements, data.

    Information, statements and data submitted in compliance with 
provisions of the Act or these regulations 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 U.S. knowingly and willfully falsifies, conceals or 
covers up by any trick, scheme, or device a material fact, 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.  501.8  Surety bond.

    (a) H-2ALCs shall obtain a surety bond to assure compliance with 
the provisions of this part and 20 CFR part 655, Subpart B for each 
labor certification being sought. The H-2ALC shall attest on the 
application for labor certification that such a bond meeting all the 
requirements of this section has been obtained and shall provide on the 
labor certification application form information that fully identifies 
the surety, including the name, address and phone number of the surety, 
and which identifies the bond by number or other identifying 
designation.
    (b) The bond shall be payable to the Administrator, Wage and Hour 
Division, United States Department of Labor. It shall obligate the 
surety to pay any sums to the Administrator, WHD, for wages and 
benefits owed to H-2A and U.S. workers, based on a final decision 
finding a violation or violations of this part or 20 CFR part 655, 
Subpart B 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 shall be written to cover liability 
incurred during the term of the period listed in the application for 
labor certification made by the H-2ALC, and shall be amended to cover 
any extensions of the labor certification requested by the H-2ALC. 
Surety bonds may not be canceled or terminated unless 30 days' notice 
is provided by the surety to the Administrator, WHD.
    (c) The bond shall be in the amount of $5,000 for a labor 
certification for which a H-2ALC will employ fewer than 25 employees, 
$10,000 for a labor certification for which a H-2ALC will employ 25 to 
49 employees, and $20,000 for a labor certification for which a H-2ALC 
will employ 50 or more employees. The amount of the bond may be 
increased by the Administrator, WHD after notice and an opportunity for 
hearing when it is shown based on objective criteria that the amount of 
the bond is insufficient to meet potential liabilities.


Sec.  501.10  Definitions.

    (a) Definitions of terms used in this part. For the purpose of this 
part:
    Administrative Law Judge (ALJ) means a person within the 
Department's Office of Administrative Law Judges appointed pursuant to 
5 U.S.C. 3105, or a panel of such persons designated by the Chief 
Administrative Law Judge from the Board of Alien Labor Certification 
Appeals (BALCA) established by part 656 of this chapter, which will 
hear and decide appeals as set forth at 20 CFR 655.115.
    Administrator, WHD means the Administrator of the Wage and Hour 
Division (WHD), ESA and such authorized representatives as may be 
designated to perform any of the functions of the Administrator, WHD 
under this part.
    Adverse effect wage rate (AEWR) means the minimum wage rate that 
the Administrator of the Office of Foreign Labor Certification (OFLC) 
has determined must be offered and paid to every H-2A worker employed 
under the DOL-approved Application for Temporary Employment 
Certification in a particular occupation and/or area, as well as to 
U.S. workers hired by employers into corresponding employment during 
the H-2A recruitment period, to ensure that the wages of similarly 
employed U.S. workers will not be adversely affected.

[[Page 77232]]

    Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that--
    (1) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes;
    (2) Is not itself an employer, or a joint employer, as defined in 
this section, with respect to a specific application; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court or the Department, the Board of 
Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3, 
1003.101.
    Agricultural association means any nonprofit or cooperative 
association of farmers, growers, or ranchers (including but not limited 
to processing establishments, canneries, gins, packing sheds, 
nurseries, or other 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 
sec. 218 of the INA. An agricultural association may act as the agent 
of an employer for purposes of filing an H-2A Application for Temporary 
Employment Certification, and may also act as the sole or joint 
employer of H-2A workers.
    Application for Temporary Employment Certification means the Office 
of Management and Budget (OMB)-approved form submitted by an employer 
to secure a temporary agricultural labor certification determination 
from DOL. A complete submission of the Application for Temporary 
Employment Certification includes the form and the initial recruitment 
report.
    Area of intended employment means the geographic area within normal 
commuting distance of the place (worksite address) of the job 
opportunity for which the certification is sought. There is no rigid 
measure of distance which constitutes a normal commuting area, because 
there may be widely varying factual circumstances among different areas 
(e.g., average commuting times, barriers to reaching the worksite, 
quality of the regional transportation network, etc.). If the place of 
intended employment is within a Metropolitan Statistical Area (MSA), 
including a multistate MSA, any place within the MSA is deemed to be 
within normal commuting distance of the place of intended employment. 
The borders of MSAs are not controlling in the identification of the 
normal commuting area; a location outside of an MSA may be within 
normal commuting distance of a location that is inside (e.g., near the 
border of) the MSA.
    Department of Homeland Security (DHS) means the Federal agency 
having control over certain immigration functions that, through its 
sub-agency, United States Citizenship and Immigration Services (USCIS), 
makes the determination under the INA on whether to grant visa 
petitions filed by employers seeking H-2A workers to perform temporary 
agricultural work in the U.S.
    DOL or Department means the United States Department of Labor.
    Eligible worker means an individual who is not an unauthorized 
alien (as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) 
with respect to the employment in which the worker is engaging.
    Employee means employee 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 means a person, firm, corporation or other association or 
organization that:
    (1) Has a place of business (physical location) in the U.S. and a 
means by which it may be contacted for employment;
    (2) Has an employer relationship with respect to H-2A employees or 
related U.S. workers under this part; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Employment Service (ES) refers to the system of Federal and state 
entities responsible for administration of the labor certification 
process for temporary and seasonal agricultural employment of 
nonimmigrant foreign workers. This includes the SWAs and OFLC, 
including the National Processing Centers (NPCs).
    Employment Standards Administration (ESA) means the agency within 
DOL that includes the WHD, and which is charged with carrying out 
certain investigative and enforcement functions of the Secretary under 
the INA.
    Employment and Training Administration (ETA) means the agency 
within the DOL that includes OFLC.
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    Fixed-site employer means 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 
sec. 218 of the INA or these regulations as incident to or in 
conjunction with the owner's or operator's own agricultural operation. 
For purposes of this part, person includes any individual, partnership, 
association, corporation, cooperative, joint stock company, trust, or 
other organization with legal rights and duties.
    H-2A Labor Contractor (H-2ALC) means any person who meets the 
definition of employer in this section 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 sec. 218 of the INA or these 
regulations.
    H-2A worker means any temporary foreign worker who is lawfully 
present in the U.S. to perform agricultural labor or services of a 
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of 
the INA, as amended.
    INA/Act means the Immigration and Nationality Act, as amended, 8 
U.S.C. 1101 et seq.
    Job offer means the offer made by an employer or potential employer 
of H-2A workers to eligible workers describing all the material terms 
and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the U.S. to which a U.S. worker can be 
referred.
    Joint employment means that where two or more employers each have 
sufficient definitional indicia of employment to be considered the 
employer of an employee, those employers will be considered to jointly 
employ that employee. Each employer in a joint employment relationship 
to an employee is considered a ``joint employer'' of that employee.
    Office of Foreign Labor Certification (OFLC) means the 
organizational

[[Page 77233]]

component of the 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 U.S. to perform work described in 
sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.
    Positive recruitment means the active participation of an employer 
or its authorized hiring agent in recruiting and interviewing qualified 
and eligible 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 means with respect to practices engaged in by employers 
and benefits other than wages provided by employers, that:
    (1) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; but only if
    (2) This 50 percent or more of employers also employs in aggregate 
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, frequency of wage payments, 
and workers supplying their own bedding, but non-H-2A employers only 
for determinations concerning the provision of advance transportation 
and the utilization of H-2ALCs).
    Prevailing hourly wage means the hourly wage determined by the SWA 
to be prevailing in the area in accordance with State-based wage 
surveys.
    Prevailing piece rate means that amount that is typically paid to 
an agricultural worker per piece (which includes, but is not limited 
to, a load, bin, pallet, bag, bushel, etc.) to be determined by the SWA 
according to a methodology published by the Department. As is currently 
the case, the unit of production will be required to be clearly 
described; e.g., a field box of oranges (1\1/2\ bushels), a bushel of 
potatoes, and Eastern apple box (1\1/2\ metric bushels), a flat of 
strawberries (twelve quarts), etc.
    Representative means a person or entity employed by, or duly 
authorized to act on behalf of, the employer with respect to activities 
entered into for, and/or attestations made with respect to, the 
Application for Temporary Employment Certification.
    Secretary means the Secretary of the United States Department of 
Labor or the Secretary's designee.
    State Workforce Agency (SWA) means the State government agency that 
receives funds pursuant to the Wagner-Peyser Act to administer the 
public labor exchange delivered through the State's One-Stop delivery 
system in accordance with the Wagner-Peyser Act, 29 U.S.C. 49, et seq. 
Separately, SWAs receive ETA grants, administered by OFLC, to assist 
them in performing certain activities related to foreign labor 
certification, including conducting housing inspections.
    Successor in interest means that, in determining whether an 
employer is a successor in interest, the factors used under Title VII 
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act will be considered. When considering whether an employer 
is a successor for purposes of this part, the primary consideration 
will be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violations 
resulting in a debarment recommendation. Normally, wholly new 
management or ownership of the same business operation, one in which 
the former management or owner does not retain a direct or indirect 
interest, will not be deemed to be a successor in interest for purposes 
of debarment. A determination of whether or not a successor in interest 
exists is based on the entire circumstances viewed in their totality. 
The factors to be considered include:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same facilities;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Similarity in machinery, equipment, and production methods;
    (7) Similarity of products and services; and
    (8) The ability of the predecessor to provide relief.
    Temporary agricultural labor certification means the certification 
made by the Secretary with respect to an employer seeking to file with 
DHS a visa petition to employ one or more foreign nationals as an H-2A 
worker, pursuant to secs. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218 
of the INA that:
    (1) 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 agricultural labor or services involved in the petition, 
and
    (2) The employment of the foreign worker in such agricultural labor 
or services will not adversely affect the wages and working conditions 
of workers in the U.S. similarly employed as stated at 8 U.S.C. 
1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188.
    United States (U.S.), when used in a geographic sense, means the 
continental United States, Alaska, Hawaii, the Commonwealth of Puerto 
Rico, and the territories of Guam, the Virgin Islands, and, as of the 
transition program effective date, as defined in the Consolidated 
Natural Resources Act of 2008, Public Law 110-229, Title VII, the 
Commonwealth of the Northern Mariana Islands.
    U.S. worker means a worker who is:
    (1) A citizen or national of the U.S., or;
    (2) An alien who is lawfully admitted for permanent residence in 
the U.S., is admitted as a refugee under sec. 207 of the INA, is 
granted asylum under sec. 208 of the INA, or is an immigrant otherwise 
authorized (by the INA or by DHS) to be employed in the U.S.
    Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    Work contract means all the material terms and conditions of 
employment relating to wages, hours, working conditions, and other 
benefits, required by the applicable regulations in subpart B of 20 CFR 
part 655, Labor Certification for Temporary Agricultural Employment of 
H-2A Aliens in the U.S. (H-2A Workers), or these regulations, including 
those terms and conditions attested to by the H-2A employer, which 
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 shall be the terms of the job order, as provided in 20 CFR part 
653, Subpart F, and covered provisions of the work contract shall be 
enforced in accordance with these regulations.
    (b) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this part, agricultural labor or 
services of a temporary or seasonal nature means the following:
    (1) Agricultural labor or services, pursuant to sec. 
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), is 
defined as:
    (i) Agricultural labor as defined and applied in sec. 3121(g) of 
the Internal

[[Page 77234]]

Revenue Code of 1954 at 26 U.S.C. 3121(g);
    (ii) Agriculture as defined and applied in sec. 3(f) of the Fair 
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f) (Work performed 
by H-2A workers, or workers in corresponding employment, that is not 
defined as agriculture in sec. 3(f) is subject to the provisions of the 
FLSA as provided therein, including the overtime provisions in sec. 
7(a) at 29 U.S.C. 207(a));
    (iii) The pressing of apples for cider on a farm;
    (iv) Logging employment; or
    (v) 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 while in the employ of the 
operator of a farm where no H-2B workers are employed to perform the 
same work at the same establishment; or
    (vi) Other work typically performed on a farm that is not 
specifically listed on the Application for Temporary Employment 
Certification and is minor (i.e., less than 20 percent of the total 
time worked on the job duties and activities that are listed on the 
Application for Temporary Employment Certification) and incidental to 
the agricultural labor or services for which the H-2A worker was 
sought.
    (2) An occupation included in either of the statutory definitions 
cited in paragraphs (b)(1)(i) and (ii) of this section is agricultural 
labor or services, notwithstanding the exclusion of that occupation 
from the other statutory definition.
    (i) Agricultural labor for purposes of paragraph (b)(1)(i) of this 
section means all services 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 furbearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation 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 at 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)(1) 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;
    (2) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (b)(2)(i)(A) 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, any unincorporated group of 
operators will be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during the 
calendar quarter in which such service is performed;
    (3) The provisions of paragraphs (b)(2)(i)(D)(1) and (2) of this 
section do not apply to services 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
    (4) On a farm operated for profit if such service is not in the 
course of the employer's trade or business and is not domestic service 
in a private home of the employer.
    (E) For the purposes of this section, the term farm includes stock, 
dairy, poultry, fruit, fur-bearing animals, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses or other similar 
structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards. See sec. 3121(g) of the 
Internal Revenue Code of 1986 (26 U.S.C. 3121(g)).
    (ii) Agriculture. For purposes of paragraph (b)(1)(ii) 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 as 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 sec. 29 U.S.C. 
203(f), as amended.
    (iii) Agricultural commodity. For purposes of paragraph (b)(1)(ii) 
of this section, agricultural commodity includes, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
gum spirits of turpentine and gum rosin as processed by the original 
producer of the crude gum (oleoresin) from which derived. 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. See 12 U.S.C. 1141j(g) (sec. 
15(g) of the Agricultural Marketing Act, as amended), and 7 U.S.C. 92.
    (3) Of a temporary or seasonal nature. (i) On a seasonal or other 
temporary basis. For the purposes of this part, of a temporary or 
seasonal nature means on a seasonal or other temporary basis, as 
defined in the WHD's regulation at 29 CFR 500.20 under the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA).
    (ii) MSPA definition. The definition of on a seasonal or other 
temporary basis found in MSPA is summarized as follows:
    (A) Labor is performed on a seasonal basis where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, may 
not be continuous or carried on throughout the year. A worker who moves 
from one seasonal activity to another, while employed in agriculture or 
performing agricultural labor, is employed on a seasonal basis even 
though the worker may continue to be employed during a major portion of 
the year.
    (B) A worker is employed on other temporary basis where the worker 
is employed for a limited time only or the worker's performance is 
contemplated for a particular piece of work, usually of short duration. 
Generally, employment which is contemplated to continue indefinitely is 
not temporary.
    (C) On a seasonal or other temporary basis does not include
    (1) The employment of any foreman or other supervisory employee who 
is employed by a specific agricultural employer or agricultural 
association essentially on a year round basis; or

[[Page 77235]]

    (2) The employment of any worker who is living at his or her 
permanent place of residence, when that worker is employed by a 
specific agricultural employer or agricultural association on 
essentially a year round basis to perform a variety of tasks for his or 
her employer and is not primarily employed to do field work.
    (iii) Temporary. For the purposes of this part, the definition of 
temporary in paragraph (b)(3) of this section refers to any job 
opportunity covered by this part where the employer needs a worker for 
a position for a limited period of time, including, but not limited, to 
a peakload need, which is generally less than 1 year, unless the 
original temporary agricultural labor certification is extended 
pursuant to 20 CFR 655.110.

Subpart B--Enforcement of Work Contracts


Sec.  501.15  Enforcement.

    The investigation, inspections and law enforcement functions to 
carry out the provisions of sec. 218 of the INA, as provided in these 
regulations for enforcement by the WHD, pertain to the employment of 
any H-2A worker and any other U.S. worker hired in corresponding 
employment by an H-2A employer. Such enforcement includes work contract 
provisions as defined in Sec.  501.10(a). The work contract also 
includes those employment benefits which are required to be stated in 
the job offer, as prescribed in 20 CFR 655.104.


Sec.  501.16  Sanctions and remedies--General.

    Whenever the Secretary believes that the H-2A provisions of the INA 
or these regulations have been violated such action shall be taken and 
such proceedings instituted as deemed appropriate, including (but not 
limited to) the following:
    (a) Institute appropriate administrative proceedings, including: 
The recovery of unpaid wages, including wages owed to U.S. workers as a 
result of a layoff or displacement prohibited by these rules (either 
directly from the employer, a successor in interest, or in the case of 
an H-2ALC also by claim against any surety who issued a bond to the H-
2ALC); the enforcement of covered provisions of the work contract as 
set forth in 29 CFR 501.10(a); the assessment of a civil money penalty; 
reinstatement; or the recommendation of debarment for up to 3 years.
    (b) Petition any appropriate District Court of the U.S. for 
temporary or permanent injunctive relief, including the withholding of 
unpaid wages and/or reinstatement, to restrain violation of the H-2A 
provisions of the INA, 20 CFR part 655, Subpart B, or these regulations 
by any person.
    (c) Petition any appropriate District Court of the U.S. for 
specific performance of covered contractual obligations.


Sec.  501.17  Concurrent actions.

    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 the H-
2A provisions of the Act and these regulations, or the regulations of 
20 CFR part 655.


Sec.  501.18  Representation of the Secretary.

    (a) Except as provided in 28 U.S.C. 518(a) relating to litigation 
before the Supreme Court, the Solicitor of Labor may appear for and 
represent the Secretary in any civil litigation brought under the Act.
    (b) The Solicitor of Labor, through authorized representatives, 
shall represent the Administrator, WHD and the Secretary in all 
administrative hearings under the H-2A provisions of the Act and these 
regulations.


Sec.  501.19  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the Administrator, WHD 
for each violation of the work contract as set forth in Sec.  501.10(a) 
of these regulations.
    (b) In determining the amount of penalty to be assessed for any 
violation of the work contract as provided in the H-2A provisions of 
the Act or these regulations the Administrator, WHD shall consider the 
type of violation committed and other relevant factors. The matters 
which may be considered include, but are not limited to, the following:
    (1) Previous history of violation or violations of the H-2A 
provisions of the Act and these regulations;
    (2) The number of H-2A employees, corresponding U.S. employees or 
those U.S. workers individually rejected for employment affected by the 
violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made in good faith to comply with the H-2A provisions 
of the Act and these regulations;
    (5) Explanation of person charged with the violation or violations;
    (6) Commitment to future compliance, taking into account the public 
health, interest or safety, and whether the person has previously 
violated the H-2A provisions of the Act;
    (7) The extent to which the violator achieved a financial gain due 
to the violation, or the potential financial loss or potential injury 
to the workers.
    (c) A civil money penalty for violation of the work contract will 
not exceed $1,000 for each violation committed (with each failure to 
pay a worker properly or to honor the terms or conditions of a worker's 
employment that is required by sec. 218 of the INA, 20 CFR 655, Subpart 
B, or these regulations constituting a separate violation), with the 
following exceptions:
    (1) For a willful failure to meet a covered condition of the work 
contract, or for willful discrimination, the civil money penalty shall 
not exceed $5,000 for each such violation committed (with each willful 
failure to honor the terms or conditions of a worker's employment that 
are required by sec. 218 of the INA, 20 CFR 655, Subpart B, or these 
regulations constituting a separate violation);
    (2) For a violation of a housing or transportation safety and 
health provision of the work contract that proximately causes the death 
or serious injury of any worker, the civil money penalty shall not 
exceed $25,000 per worker, unless the violation is a repeat or willful 
violation, in which case the penalty shall not exceed $50,000 per 
worker, or unless the employer failed, after notification, to cure the 
specific violation, in which case the penalty shall not exceed $100,000 
per worker.
    (3) For purposes of paragraph (c)(2) of this section, the term 
serious injury means:
    (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 $5,000 per investigation;
    (e) For a willful layoff or displacement of 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 within 60 days of the date of need other than for a lawful, 
job-related reason, except that such layoff shall be permitted where 
all H-2A workers were laid off

[[Page 77236]]

first, the civil penalty shall not exceed $10,000 per violation per 
worker.


Sec.  501.20  Debarment and revocation.

    (a) The WHD shall recommend to the Administrator, OFLC the 
debarment of any employer and any successor in interest to that 
employer (or the employer's attorney or agent if they are a responsible 
party) if the WHD finds that the employer substantially violated a 
material term or condition of its temporary labor certification for the 
employment of domestic or nonimmigrant workers.
    (b) For purposes of this section, a substantial violation includes:
    (1) A pattern or practice of acts of commission or omission on the 
part of the employer or the employer's agent which:
    (i) Are significantly injurious to the wages, benefits required to 
be offered under the H-2A program, or working conditions of a 
significant number of the employer's U.S. or H-2A workers;
    (ii) Reflect a significant failure to offer employment to all 
qualified domestic workers who applied for the job opportunity for 
which certification was being sought, except for lawful job-related 
reasons;
    (iii) Reflect a willful failure to comply with the employer's 
obligations to recruit U.S. workers as set forth in this subpart; or
    (iv) Reflect the employment of an H-2A worker outside the area of 
intended employment, or in an activity/activities, not listed in the 
job order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment 
specified in the job order and any approved extension;
    (2) A significant failure to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, or law 
enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this 
subpart, or 29 CFR part 501 (ESA enforcement of contractual 
obligations); or
    (3) A significant failure to comply with one or more sanctions or 
remedies imposed by the ESA for violation(s) of obligations found by 
that agency (if applicable), or with one or more decisions or orders of 
the Secretary or a court order secured by the Secretary under sec. 218 
of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA 
enforcement of contractual obligations); or
    (4) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected.
    (c) Procedures for Debarment Recommendation. The WHD will send to 
the employer a Notice of Recommended Debarment. The Notice of 
Recommended Debarment must be in writing, must state the reason for the 
debarment recommendation, including a detailed explanation of the 
grounds for and the duration of the recommended debarment. The 
debarment recommendation will be forwarded to the Administrator, OFLC. 
The Notice of Recommended Debarment shall be issued no later than 2 
years after the occurrence of the violation.
    (d) The WHD may recommend to the Administrator, OFLC the revocation 
of a temporary agricultural labor certification if the WHD finds that 
the employer:
    (1) Willfully violated a material term or condition of the approved 
temporary agricultural labor certification, work contract, or this 
part, unless otherwise provided under paragraphs (d)(2) through (4) of 
this section.
    (2) Failed, after notification, to cure a substantial violation of 
the applicable housing standards set out in 20 CFR 655.104(d);
    (3) Failed to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, or law enforcement 
function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29 
CFR part 501 (ESA enforcement of contractual obligations); or
    (4) Failed to comply with one or more sanctions or remedies imposed 
by the ESA for violation(s) of obligations found by that agency (if 
applicable), or with one or more decisions or orders of the Secretary 
or a court order Secured by the Secretary under sec. 218 of the INA, 8 
U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of 
contractual obligations).
    (e) In considering a recommendation made by the WHD to debar an 
employer or to revoke a temporary agricultural labor certification, the 
Administrator, OFLC shall treat final agency determinations that the 
employer has committed a violation as res judicata and shall not 
reconsider those determinations.


Sec.  501.21  Failure to cooperate with investigations.

    No person shall refuse to cooperate with any employee of the 
Secretary who is exercising or attempting to exercise this 
investigative or enforcement authority. As stated in Sec. Sec.  501.6 
and 501.19 of this part, a civil money penalty may be assessed for each 
failure to cooperate with an investigation, and other appropriate 
relief may be sought. In addition, the WHD shall report each such 
occurrence to ETA, and ETA may debar the employer from future 
certification. The WHD may also recommend to ETA that an existing 
certification be revoked. 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 the assessment is directed in a final order by the 
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty 
is due within 30 days and payable to the United States Department of 
Labor. The person assessed such penalty shall remit promptly the amount 
thereof as finally determined, to the Administrator, WHD by certified 
check or by money order, made payable to the order of Wage and Hour 
Division, United States Department of Labor. The remittance shall be 
delivered or mailed to the WHD Regional Office for the area in which 
the violations occurred.

Subpart C--Administrative Proceedings


Sec.  501.30  Applicability of procedures and rules.

    The procedures and rules contained herein prescribe the 
administrative process that will be applied with respect to a 
determination to impose an assessment of civil money penalties, and 
which may be applied to the enforcement of covered provisions of the 
work contract as set forth in Sec.  501.10(a), including the collection 
of unpaid wages due as a result of any violation of the H-2A provisions 
of the Act or of these regulations. Except with respect to the 
imposition of civil money penalties, the Secretary may, in the 
Secretary's discretion, seek enforcement action in Federal court 
without resort to any administrative proceedings.

Procedures Relating to Hearing


Sec.  501.31  Written notice of determination required.

    Whenever the Administrator, WHD decides to assess a civil money 
penalty or to proceed administratively to enforce covered contractual 
obligations, including the recovery of unpaid wages, 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 Administrator, WHD including 
the amount of any unpaid wages due or actions necessary to fulfill a 
covered contractual obligation, the amount of

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any civil money penalty assessment and the reason or reasons therefore.
    (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 Administrator, 
WHD 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 days after 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 why 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. For the affected person's protection, if the request is 
by mail, it should be by certified mail.
    (d) The determination shall take effect on the start date 
identified in the 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.

Rules of Practice


Sec.  501.34  General.

    Except as specifically provided in these regulations, 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.


Sec.  501.35  Commencement of proceeding.

    Each administrative proceeding permitted under the Act and these 
regulations 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 the Act and 
these regulations 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 
Administrator, WHD 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 Administrator, WHD, by the 
Associate Solicitor for the Division of Fair Labor Standards or by the 
Regional Solicitor for the Region in which the action arose, shall, 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 by the authorized representative of such 
person, to the Chief Administrative Law Judge, for a determination in 
an administrative proceeding as provided herein. 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 these regulations or 29 CFR part 18.
    (b) A copy of the Order of Reference, together with a copy of these 
regulations, shall be served by counsel for the Administrator, WHD 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 Administrative Law 
Judge 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 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 herein shall be served on the 
attorneys for the 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

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and an order is submitted within the time allowed therefor, the ALJ, 
within 30 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 shall prepare, within 60 days after completion of the 
hearing and closing of the record, a decision on the issues referred by 
the Administrator, WHD.
    (b) The decision of the ALJ shall include a statement of 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 Administrator, WHD. The reason or 
reasons for such order shall be stated in the decision.
    (c) The decision shall be served on all parties and the 
Administrative Review Board (ARB) in person or by certified mail.
    (d) The decision concerning civil money penalties and/or back wages 
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, the WHD, or any other party wishing review, 
including judicial review, of the decision of an ALJ shall, within 30 
days of the decision of the ALJ, petition the ARB to review the 
decision. Copies of the petition shall 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 concerning civil money penalties and/or back 
wages within 30 days after receipt of a timely filing of the petition, 
or within 30 days of the date of the decision if no petition has been 
received, the decision of the ALJ shall be deemed the final agency 
action. If the ARB does not issue a notice accepting a petition for 
review of the decision concerning the debarment recommendation within 
30 days after the receipt of a timely filing of the petition, or if no 
petition has been received by the ARB within 30 days of the date of the 
decision, the decision of the ALJ shall be deemed the final agency 
action. If a petition for review is accepted, the decision of the ALJ 
shall be inoperative unless and until the ARB issues an order affirming 
the decision.
    (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 in person or by certified mail.


Sec.  501.43  Responsibility of the Office of Administrative Law 
Judges.

    Upon receipt of the ARB's Notice pursuant to Sec.  501.42 of these 
regulations, the Office of ALJ shall 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 shall notify each party of:
    (a) The issue or issues raised;
    (b) The form in which submissions shall be made (i.e., briefs, oral 
argument, etc.); and
    (c) The time within which such presentation shall be submitted.


Sec.  501.45  Final decision of the Administrative Review Board.

    The ARB's final decision shall be issued within 90 days from the 
notice granting the petition and served upon all parties and the ALJ, 
in person or by certified mail.

Record


Sec.  501.46  Retention of official record.

    The official record of every completed administrative hearing 
provided by these regulations shall be maintained and filed under the 
custody and control of the Chief Administrative Law Judge, 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 U.S. District Court, after the 
administrative remedies have been exhausted, the Chief Administrative 
Law Judge or, where the case has been the subject of administrative 
review, the ARB shall promptly index, certify and file with the 
appropriate U.S. District Court, a full, true, and correct copy of the 
entire record, including the transcript of proceedings.

PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF 
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR 
STANDARDS ACT

0
9. The authority citation for part 780 is revised to read as follows:

    Authority: Sections 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 
201-219.

0
10. Revise Sec.  780.115 to read as follows:


Sec.  780.115  Forest products.

    Trees grown in forests and the lumber derived therefrom are not 
agricultural or horticultural commodities, for the purpose of the FLSA. 
(See Sec.  780.205 regarding production of Christmas trees.) It follows 
that employment in the production, cultivation, growing, and harvesting 
of such trees or timber products is not sufficient to bring an employee 
within sec. 3(f) unless the operation is performed by a farmer or on a 
farm as an incident to or in conjunction with his or its farming 
operations. On the latter point, see Sec. Sec.  780.200 through 780.209 
discussing the question of when forestry or lumbering operations are 
incident to or in conjunction with farming operations so as to 
constitute agriculture. For a discussion of the exemption in sec. 
13(b)(28) of the Act for certain forestry and logging operations in 
which not more than eight employees are employed, see part 788 of this 
chapter.

0
11. Revise Sec.  780.201 to read as follows:


Sec.  780.201  Meaning of forestry or lumbering operations.

    The term forestry or lumbering operations refers to the cultivation 
and management of forests, the felling and trimming of timber, the 
cutting, hauling, and transportation of timber, logs, pulpwood, 
cordwood, lumber, and like products, the sawing of logs into lumber or 
the conversion of logs into ties, posts, and similar products, and 
similar operations. It also includes the piling, stacking, and storing 
of all such products. The gathering of wild plants and of wild 
Christmas trees is included. (See the related discussion in Sec. Sec.  
780.205 through 780.209 and in part 788 of this chapter which considers 
the sec. 13(b)(28) exemption for forestry or logging operations in 
which not more than eight employees are employed.) Wood working as such 
is not included in forestry or lumbering operations. The manufacture of 
charcoal under modern methods is neither a forestry nor lumbering 
operation and cannot be regarded as agriculture.

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0
12. Revise Sec.  780.205 to read as follows:


Sec.  780.205  Nursery activities generally and Christmas tree 
production.

    (a) The employees of a nursery who are engaged in the following 
activities are employed in agriculture:
    (1) Sowing seeds and otherwise propagating fruit, nut, shade, 
vegetable, and ornamental plants or trees, and shrubs, vines, and 
flowers;
    (2) Handling such plants from propagating frames to the field;
    (3) Planting, cultivating, watering, spraying, fertilizing, 
pruning, bracing, and feeding the growing crop.
    (b) Trees produced through the application of extensive 
agricultural or horticulture techniques to be harvested and sold for 
seasonal ornamental use as Christmas trees are considered to be 
agricultural or horticultural commodities. Employees engaged in the 
application of agricultural and horticultural techniques to produce 
Christmas trees as ornamental horticultural commodities such as the 
following are employed in agriculture:
    (1) Planting seedlings in a nursery; on-going treatment with 
fertilizer, herbicides, and pesticides as necessary;
    (2) After approximately three years, re-planting in lineout beds;
    (3) After two more seasons, lifting and re-planting the small trees 
in cultivated soil with continued treatment with fertilizers, 
herbicides, and pesticides as indicated by testing to see if such 
applications are necessary;
    (4) Pruning or shearing yearly;
    (5) Harvesting of the tree for seasonal ornamental use, typically 
within 7 to 10 years of planting.
    (c) Trees to be used as Christmas trees which are gathered in the 
wild, such as from forests or uncultivated land and not produced 
through the application of agricultural or horticultural techniques are 
not agricultural or horticultural commodities for purposes of sec. 
3(f).

0
13. Revise Sec.  780.208 to read as follows:


Sec.  780.208  Forestry activities.

    Operations in a forest tree nursery such as seeding new beds and 
growing and transplanting forest seedlings are not farming operations. 
For such operations to fall within sec. 3(f), they must qualify under 
the second part of the definition dealing with incidental practices. 
See Sec.  780.201.

PART 788--FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN 
EIGHT EMPLOYEES ARE EMPLOYED

0
14. Revise Sec.  788.10 to read as follows:


Sec.  788.10  Preparing other forestry products.

    As used in the exemption, other forestry products means plants of 
the forest and the natural properties or substances of such plants and 
trees. Included among these are decorative greens such as holly, ferns, 
roots, stems, leaves, Spanish moss, wild fruit, and brush. Christmas 
trees are only included where they are gathered in the wild from 
forests or from uncultivated land and not produced through the 
application of extensive agricultural or horticultural techniques. See 
29 CFR 780.205 for further discussion. Gathering and preparing such 
forestry products as well as transporting them to the mill, processing 
plant, railroad, or other transportation terminal are among the 
described operations. Preparing such forestry products does not include 
operations that change the natural physical or chemical condition of 
the products or that amount to extracting (as distinguished from 
gathering) such as shelling nuts, or that mash berries to obtain 
juices.

    Signed in Washington this 5th day of December 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

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