[Federal Register Volume 75, Number 29 (Friday, February 12, 2010)]
[Rules and Regulations]
[Pages 6884-6995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2731]



[[Page 6883]]

-----------------------------------------------------------------------

Part II





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



20 CFR Part 655



-----------------------------------------------------------------------



Wage and Hour Division

29 CFR Part 501



-----------------------------------------------------------------------



Temporary Agricultural Employment of H-2A Aliens in the United States; 
Final Rule

  Federal Register / Vol. 75, No. 29 / Friday, February 12, 2010 / 
Rules and Regulations  

[[Page 6884]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Part 501

RIN 1205-AB55


Temporary Agricultural Employment of H-2A Aliens in the United 
States

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (the Department or DOL) is amending 
its regulations governing the certification of temporary employment of 
nonimmigrant workers in temporary or seasonal agricultural employment 
and the enforcement of the contractual obligations applicable to 
employers of such nonimmigrant workers. The Department is also amending 
the regulations at 29 CFR part 501 to provide for enhanced enforcement 
under the H-2A program requirements so that workers are appropriately 
protected when employers fail to meet their obligations under the H-2A 
program.

DATES: This Final Rule is effective March 15, 2010.

FOR FURTHER INFORMATION CONTACT: For further information on 20 CFR part 
655, contact William L. Carlson, Ph.D., 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 on 29 CFR part 501 contact James Kessler, 
Farm Labor Branch Chief, Wage and Hour Division, 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:

I. Revisions to 20 CFR Part 655 Subpart B

A. Statutory and Regulatory Background

    The H-2A nonimmigrant worker visa program enables United States 
(U.S.) agricultural employers to employ foreign workers on a temporary 
basis to perform agricultural labor or services. 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); see also 8 U.S.C. 1184(c)(1) and 
1188.\1\ The INA authorizes the Secretary of the Department of Homeland 
Security (DHS) to permit employers to import foreign workers to perform 
temporary agricultural labor or services of a temporary or seasonal 
nature if the Secretary of the U.S. DOL (Secretary) certifies that:
---------------------------------------------------------------------------

    \1\ For ease of reference, all subsequent sections of the INA 
will be referred to by their corresponding section in the United 
States Code (U.S.C.).

    (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.

8 U.S.C. 1188(a)(1). The Secretary has delegated these 
responsibilities, through the Assistant Secretary, Employment and 
Training Administration (ETA), to ETA's Office of Foreign Labor 
Certification (OFLC). The Secretary has delegated responsibility for 
enforcement of the worker protections to the Administrator of the Wage 
and Hour Division (WHD). The Department's H-2A regulations remained 
largely unchanged from the 1987 Rule until 2008. In 2008, the 
Department significantly revised these regulations at 73 FR 77110, Dec. 
18, 2008 (the 2008 Final Rule). Over the past several months, the 
Department undertook a review of the policy decisions reflected in the 
2008 Final Rule, specifically reviewing the worker protections afforded 
under that rule. This review resulted in a Notice of Proposed 
Rulemaking (NPRM) published in September 2009, 74 FR 45906, Sep. 4, 
2009.

B. Overview of Comments Received

    The Department received almost 7,000 comments on the proposed rule. 
We have determined that 349 of these comments were completely unique, 
13 were considered duplicates, and 6,577 were considered a form letter 
or based on a form letter.
    Commenters represented a broad range of constituencies for the H-2A 
program, including individual farmers, farm workers, farm associations, 
farm worker advocate groups, agents, law firms, farm labor bureaus, 
State Workforce Agencies (SWAs), State Government Officials, U.S. 
Congress Members and Committees, and various interested members of the 
public. The Department received comments both in support of and in 
opposition to the proposed regulation, which are discussed in greater 
detail below. These comments raised a variety of concerns, some general 
and some pertaining to specific provisions or specific proposals. After 
reviewing the comments thoughtfully and systematically, the Department 
has modified several provisions and retained others as originally 
proposed in the NPRM. In addition, there were several commenters that 
requested that due to the timing of the regulation falling during 
harvest time for many farmers and based on the complexity of the issues 
addressed, the Department should provide additional time to comment on 
the proposed rule. In response to these comments, the Department 
provided an additional 15 days for comments on the proposed rule.
    The Department received many comments that were deemed to be beyond 
the scope of the proposed rule. Some of these issues included pending 
legislation, the H-2B temporary nonagricultural worker program, 
comprehensive immigration reform, and specific issues related to the 
control of our nation's borders. These are issues that cannot be 
resolved or implemented through this regulatory process or are not 
within the purview of the Department. Additionally, comments submitted 
in a manner inconsistent with the specific directions of the NPRM or 
submitted after the comment period closed were not considered.
    The Department received many comments challenging the Department's 
decision to engage in new rulemaking for the H-2A program. The 
Department has inherent authority to change its regulations in 
accordance with the Administrative Procedure Act (APA). In this Final 
Rule we provide an appropriate justification for all of the changes 
that we are making to the H-2A program.
    The Department received requests by several commenters that the 
proposed rule be published in Spanish since the workers who use the 
program predominantly speak and write Spanish as their first language. 
The APA at 5 U.S.C. 552(a)(1) requires agencies to

[[Page 6885]]

publish regulations in the Federal Register. The Department initiated 
conversations with the Office of the Federal Register on the subject of 
publishing regulations in a language other than English. However, the 
Office of the Federal Register informed the Department that based on 
its limited resources and personnel it is unable to publish any 
documents in a language other than English.

C. Severability

    To the extent that any portion of this Final Rule is declared 
invalid by a court, the Department intends for all other parts of 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 results in a 
partial reversion to the current regulations or to the statutory 
language itself, the Department intends that the rest of the Final Rule 
continue to operate, if at all possible in tandem with the reverted 
provisions.

II. Discussion of Comments Received

    The Department has addressed those areas in which it received 
comments. With regard to specific provisions on which the Department 
did not receive comments, it has retained the provisions as proposed, 
except where clarifying edits have been made, which have been explained 
below.

A. Section 655.103 Overview of This Subpart and Definition of Terms

1. Section 655.103(a) Overview
    The overview section in the proposed rule was shortened from the 
2008 Final Rule to avoid any possibility that it may contain mandates 
not contained in the sections following it. The Department received no 
comments on this change and is leaving the section unchanged in the 
Final Rule.
2. Section 655.103(b) Definitions
    For the purposes of this section, the Department has included a 
discussion of those definitions that received comments. Any definitions 
that did not receive comments have been retained as proposed without 
further changes, unless otherwise noted.
a. Agricultural Association
    The NPRM proposed a slight change to the definition of agricultural 
association. The 2008 Final Rule seemed to imply that an agricultural 
association could be both an agent of its employer members and an 
employer at the same time. The NPRM clarified that an agricultural 
association could either be an agent or an employer (whether a sole 
employer or joint with its members) but not both. The Department 
received no comments on this change; therefore, the Final Rule reflects 
the language proposed in the NPRM without any modification.
b. Area of Intended Employment
    The NPRM made no significant changes from the 2008 Final Rule in 
the definition of area of intended employment. The only changes were in 
the elimination of the redundancies and the use of etc. in the listing 
of examples of the factual circumstances that could constitute a normal 
commuting distance or commuting area. One commenter suggested that the 
Department add a definite number of miles, such as 75 miles, within 
which all work locations must be located. The commenter suggested that 
because of the size of the area of intended employment coupled with the 
length of the certification period, U.S. workers who only want to do 
one kind of agricultural job may be dissuaded from applying. Another 
commenter suggested narrowing the area of intended employment because 
commuting distances within an area of intended employment could be 
upwards of 90 miles and it would be unreasonable for the Department to 
expect U.S. workers to commute such a distance every day without being 
provided housing.
    The Department understands the concerns of both commenters; 
however, their concerns are misplaced. The term area of intended 
employment is used in conjunction with recruitment, which should cast a 
net as wide as possible to inform all potential U.S. workers of an 
upcoming contract in their area. U.S. workers are entitled to the same 
housing as the H-2A workers if they are not reasonably able to return 
to their residence within the same day as discussed under Sec.  
655.122(d)(1).
    As for the commenter's concern that a worker who only wanted to do 
one type of agricultural activity would be precluded from applying, 
changing the definition of an area of intended employment would not 
alleviate such a situation. The term is used primarily for recruitment 
purposes to ensure that the designated SWAs receive the job order so 
that U.S. workers have the opportunity to apply for the job. Therefore, 
the Final Rule adopts the definition as proposed in the NPRM, with the 
exception of a minor editorial change.
c. Corresponding Employment
    In the definition of corresponding employment, the Department 
proposed that all workers employed by H-2A employers doing work 
performed by H-2A workers be considered engaged in corresponding 
employment. The proposal returns to the requirements of the 1987 Rule, 
with one difference which is explained below. The Final Rule adopts the 
language of the NPRM as proposed.
    The change from the 1987 Rule is the addition of the phrase or in 
any agricultural work performed by the H-2A workers. This language was 
added to address the adverse impact on U.S. workers when an H-2A 
employer engages H-2A workers in agricultural work outside the scope of 
work found in the approved job order, including work impermissibly 
performed outside the area of intended employment. Domestic workers 
should not be disadvantaged when an employer violates the terms and 
conditions of the H-2A job order. This does not require that every 
worker on a farm be paid the H-2A required wage. It does, however, 
require that workers employed by an H-2A employer who perform the same 
agricultural work as the employer's H-2A workers be paid at least the 
H-2A required wage for that work.
    A number of commenters opposed the proposal to return to the prior 
definition of corresponding employment because they agreed with the 
rationale offered for the change in the 2008 Final Rule (which limited 
the protections to newly hired workers). These commenters stated that 
we provided no basis for a return to the prior definition, offered no 
evidence to support the proposed definition, and did not account for 
the increased costs. A labor contractor opposed the definition because 
it would require the payment of the Adverse Effect Wage Rate (AEWR) to 
non-H-2A workers who performed incidental work that was also performed 
by H-2A workers.
    A worker advocate favored the proposal because it would ensure that 
U.S. workers would not be adversely affected by H-2A workers. Another 
advocacy organization supported the proposal because it would not 
penalize local workers and would contribute to a stable workforce.
    The effect of the proposed definition which would require U.S. 
workers to be paid the same wages and conditions that H-2A workers 
receive when performing the same work is not new. Hearings were held in 
1962 to address the impact on the wages and working conditions of 
domestic workers due to the use of temporary foreign workers to perform 
agricultural work. The 1980 Senate Judiciary Report on Temporary Worker 
Programs discussing the 1962 hearings

[[Page 6886]]

stated that U.S. employers were required to offer domestic workers 
wages equal to foreign workers as a prerequisite for labor 
certification. See Congressional Research Service: ``Report to the 
Senate Committee on the Judiciary: Temporary Worker Programs: 
Background and Issues, 53 (1980).'' For many years, the H-2 program has 
required employers to pay wage rates to domestic workers as determined 
by DOL. See 32 FR 4571, Mar. 28, 1967.
    The preamble to the 1979 H-2 rulemaking provided that employers 
must offer and provide U.S. workers at least the same level of wages, 
benefits, and working conditions offered or provided to foreign 
workers. See 43 FR 10308, Mar. 10, 1979. The 1987 Rule continued the 
application of this principle and introduced the term corresponding 
employment, stating that those regulations were applicable to the 
employment of other workers hired by employers of H-2A workers in the 
occupations and for the period of time set forth in the job order 
approved by ETA as a condition for granting the H-2A certification. The 
regulations made specific reference to workers in corresponding 
employment hired by H-2A employers as well as to any other worker 
employed in corresponding employment. See 52 FR 20527-20528, and 20531, 
Jun. 1, 1987.
    Courts have consistently upheld the Department's interpretation 
that the wages and benefits offered or provided to the H-2A workers 
must also be provided to domestic workers. See Farmer v. Employment 
Security Comm'n of N.C., 4 F.3d 1274, 1276, n.2, 3 (4th Cir. 1993) (H-
2A employers must make certain benefits available to all temporary 
agricultural laborers); see also Williams v. Usery, 531 F.2d 305, 306 
(5th Cir. 1976) (the Secretary's authority is limited to making an 
economic determination of what rate must be paid all workers to 
neutralize any adverse effect resulting from the influx of temporary 
foreign workers), and NAACP, Jefferson County v. Donovan, 566 F.Supp. 
1202, 1205 (D.D.C. 1983) (the AEWR is the rate at which DOL requires 
growers to pay all of their farm workers before the Department will 
allow them to import alien labor; the purpose of requiring payment of 
the AEWR is to prevent importation of nonimmigrant laborers from having 
an adverse effect on the prevailing wage rate).
    The 2008 Final Rule stripped these protections from longtime 
employees of H-2A employers, applying H-2A protections only to newly-
hired workers and the H-2A workers themselves. The preamble to the 2008 
Final Rule reasoned that longtime U.S. workers paid below the AEWR were 
no worse off for the hiring of H-2A workers at the higher AEWR and 
therefore were not adversely affected by the hiring of H-2A workers. On 
further review, this explanation fails to account for the role of the 
AEWR in protecting against possible wage depression from the 
introduction of foreign workers. Further, as one commenter observed, 
since newly-hired employees are entitled to the AEWR, a longtime 
employee may quit his current employment and re-apply for the same job 
with the same employer to obtain the new higher AEWR. This anomaly puts 
too high a premium on longtime employees knowing the AEWR, 
understanding their rights under the regulations, and having the 
security, rare in low-wage agricultural employment, to quit a job with 
the expectation of being immediately rehired. Under this Final Rule, 
longtime U.S. workers will be entitled to the wage rates paid to H-2A 
employees without having to quit their jobs and be rehired.
    One commenter noted that the proposal ignores market-based 
principles. Another asserted that supervisors who occasionally did jobs 
performed by H-2A workers would have to be paid the AEWR. As explained 
above, the AEWR is intended to supplement wage rates that have been 
depressed by the presence of H-2A and other foreign workers. In that 
sense it is not reflective of market forces. Supervisors presumably 
would be paid more than the AEWR and the Final Rule does not require 
that their wages be reduced. To the extent that is not the case, the 
requirement to pay them the AEWR would only apply for the period of 
time they perform work done by H-2A workers.
    One commenter requested that the definition of corresponding 
employment be expanded to include joint employment, and another 
requested that U.S. workers of fixed-site employers be included in the 
definition when their employer contracts with an H-2A Labor Contractor 
(H-2ALC) to provide H-2A workers. We do not believe it is necessary to 
include joint employment in the definition of corresponding employment, 
as the regulatory definition of joint employment makes clear that each 
employer in a joint employment relationship bears all of the 
obligations of an employer. Accordingly, U.S. workers employed by a 
joint employer of H-2A workers would be in corresponding employment, if 
performing the same work. However, the INA limits the Secretary's 
enforcement authority to employers (or joint employers) of H-2A 
workers. See 8 U.S.C. 1188(g)(2).
d. H-2A Labor Contractors (H-2ALCs)
    The definition of an H-2ALC in the Final Rule remains unchanged 
from the NPRM. One commenter questioned whether the Department should 
grant certification to labor contractors to participate in the program, 
noting that, for growers, the H-2A program is a means to obtain the 
labor needed to meet their end, the production of a farm commodity, 
whereas for the labor contractor, the H-2A workers themselves are the 
desired end. Some commenters objected to the inclusion of the 
activities of recruitment and employment in the definition of an H-
2ALC, asserting that these activities are only applicable to domestic 
migrant and seasonal workers already covered by the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA). Because the 
Department's enforcement experience shows agricultural labor 
contractors have lower compliance rates than fixed-site agricultural 
employers, additional obligations are required for them. This requires 
a definition that distinguishes each type of employer. The fact that 
some H-2ALCs engage in activities covered by other statutes (such as 
MSPA) does not mean that the Department should ignore those activities 
when they relate to H-2A workers.
    A representative of the sheep shearing industry objected to the 
potential classification of sheep shearing contractors as H-2ALCs. The 
argument presented by this commenter is that Congress specifically 
exempted employers in this industry from farm labor contractor (FLC) 
licensing requirements under MSPA; therefore, they should be exempt 
from being considered H-2ALCs.
    The definition of an H-2ALC broadly encompasses employers who seek 
to participate in the H-2A program, but do not fit the definition of a 
fixed-site employer. The shearing contractor does not have a fixed site 
where the agricultural activities are performed; therefore, it cannot 
be a fixed-site employer and by default is an H-2ALC. The fact that 
shearing contractors are exempt from MSPA licensing requirements does 
not affect their status as H-2ALCs.
    In addition, this commenter mistakenly believes that the name and 
location of each ranch where the shearing will take place must be in 
the advertisement. This was a requirement in the 2008 Final Rule, but 
was eliminated in the NPRM. The NPRM proposed to require that 
advertisements

[[Page 6887]]

contain the geographic area of intended employment with enough 
specificity to apprise applicants of any travel requirements and where 
applicants will likely have to reside to perform the labor or services. 
Therefore, the Department does not believe this to be a significant 
burden warranting a special definition of employer for the shearing 
industry.
    This commenter also asserted that sheep shearing contractors will 
have to file separate applications for each area of intended employment 
and in some cases may have to file two different applications for one 
area of intended employment, if the contractor must return to the same 
area of intended employment after moving to a different area of 
intended employment. This commenter points out that under the 1987 Rule 
and the 2008 Final Rule there were special procedures for shearing 
contractors that provided for itinerary work and required only one 
application. The NPRM did not remove the special procedures at Sec.  
655.102. In addition, the ``Special Procedures for Employers in the 
Itinerant Animal Shearing Industry Under the H-2A Program'' found in 
Training and Employment Guidance Letter No. 17-06 are still in effect 
and would permit a sheep shearing employer to file an itinerary-based 
application. Therefore, the Department is not persuaded that this is a 
valid reason to exempt shearing contractors from the definition of an 
H-2ALC.
e. Job Opportunity
    One commenter opined that the new definition of job opportunity 
offered by the NPRM was not as specific as the 1987 Rule because it 
does not include the words job opening. The commenter contended that a 
definition of job opportunity without a reference to a job opening is 
invalid. The Department disagrees. There is no meaningful distinction 
between the two concepts and adding the phrase job opening would be 
redundant.
f. Job Order
    The definition of job order has been modified in this Final Rule to 
add the word material for consistency with the definitions of job offer 
and work contract.
g. Master Application
    The NPRM proposed to include a definition of master application. 
Although we did not receive comments directly addressing the 
definition, based on comments received on the treatment of master 
applications in Sec.  655.131(b), we are clarifying several aspects 
including that a master application may cover multiple areas of 
intended employment within a single State but no more than two 
contiguous States. These clarifications are discussed in more detail in 
the preamble for that section.
h. Positive Recruitment
    The 2008 Final Rule definition included the concept of interviewing 
qualified and eligible individuals. The NPRM added the language that 
positive recruitment is performed under the auspices and direction of 
the OFLC. The Department received no comments on the definition of this 
term; therefore, the definition is unchanged in the Final Rule.
i. Prevailing Practice
    The 2008 Final Rule defined the term prevailing whereas the NPRM 
defined the term prevailing practice. We have returned to the 
formulation used in the 1987 Rule which defines prevailing practice. 
This definition applies to certain terms of employment, e.g., family 
housing, which must be offered by employers if they reflect prevailing 
practice, i.e., are offered by a majority of the employers employing a 
majority of the workers in the area. Since the term prevailing wage is 
otherwise defined, there is no need for a definition of the term 
prevailing.
j. Prevailing Wage
    The NPRM defined prevailing wage as the wage established under 20 
CFR 653.501(d)(4). The Department received no comments on this change. 
Therefore, the Final Rule adopts the language of the NPRM without 
change.
k. Successor in Interest
    The NPRM proposed no substantive changes to the definition of 
successor in interest; however, it added one factor to the 
circumstances that may be considered in determining whether an employer 
is a successor in interest. The change clarified that whether the 
former management or persons with an ownership interest in the prior 
firm retain a management interest in the successor firm may be 
considered in the successor determination. One commenter opposed the 
proposed clarification, but did not provide a reason for its 
opposition. The definition is adopted as proposed.
l. United States
    The NPRM included in the definition of United States language 
regarding the transition program effective date of the application of 
Federal immigration law to the Commonwealth of the Northern Mariana 
Islands (CNMI). That transition program effective date having passed, 
we have accordingly deleted that language as CNMI now is included 
automatically in the definition of United States under U.S. immigration 
law.
m. United States Worker
    The NPRM included a definition of U.S. workers that referenced, as 
did the 2008 Final Rule, the INA. Although no comments were received on 
this definition we have edited the definition for clarity.
3. Section 655.103(c) Definition of Agricultural Labor or Services
    The NPRM proposed to modify the definition of agricultural labor or 
services in several ways. It proposed to retain all three of the 
statutory definitions set forth in the INA, which include agricultural 
labor as defined in sec. 3121(g) of the Internal Revenue Code of 1986 
(IRC), agriculture as defined in sec. 3(f) of the Fair Labor Standards 
Act (FLSA), and the pressing of apples for cider on a farm, 8 U.S.C. 
1188(a)(15)(H)(ii)(a). The NPRM proposed to remove three provisions 
from the definition. The first expressly provided that an activity is 
agriculture, even though it meets only one of the statutory 
definitions. The second allowed H-2A employees to engage in certain 
activities that are not included in the statutory definitions, provided 
that H-2B workers were not performing the same work in the same place. 
The third allowed H-2A workers to perform work that was not listed on 
the Application for Temporary Employment Certification (Application), 
so long as it was less than 20 percent of the work and incidental to 
the agricultural work performed. The Final Rule retains the first 
provision that had been proposed for removal but removes the latter two 
provisions. The NPRM also had proposed to retain logging employment in 
the definition and to add reforestation and pine straw activities. The 
Final Rule retains logging, but does not add reforestation and pine 
straw activities.
    The IRC and FLSA definitions include work performed by a farmer or 
on a farm cultivating, raising, or harvesting crops and raising 
livestock and other animals and bees, including the operation and 
maintenance of the farm. The IRC definition also includes the packing 
and processing of agricultural and horticultural commodities so long as 
more than half of the commodities are produced by the farmer performing 
the packing and processing.
    The FLSA definition has been interpreted to have a primary meaning 
(e.g., production, cultivation, growing and harvesting of any 
agricultural or

[[Page 6888]]

horticultural commodities) as well as a broader secondary meaning that 
includes any practices 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, and delivery 
to carriers for transportation to market.
    In 2008, changes to FLSA regulations at 29 CFR part 780 and 29 CFR 
part 788 addressing Christmas tree production were published 
simultaneously with the H-2A regulations. These changes to FLSA 
regulations did not change the applicability of H-2A to Christmas tree 
production. The H-2A definition of agricultural labor or services 
includes the IRC definition of this term. The IRC recognizes as 
agricultural labor those services performed in the employ of any person 
in connection with the planting, raising, cultivating, and harvesting 
of Christmas trees when such services are performed on a farm. 
Therefore, such activities come within the scope of H-2A.
a. An Occupation Included in Either Statutory Definition
    The NPRM proposed the removal of a clarifying sentence stating that 
an occupation included in either the IRC or the FLSA definition is 
considered agricultural labor or services even though the occupation 
does not appear in both definitions. This means that if the work is 
within the scope of either the IRC or the FLSA definition of 
agriculture, then the work is within the scope of the H-2A program. 
Although the Department believed that this principle was clear and the 
provision superfluous, several commenters found it useful. The Final 
Rule reinstates the deleted sentence, with slight editorial 
modifications.
b. Removal of Handling, Packing, Processing, and Other Non-Agricultural 
Activities Where the Farmer Processed Less Than 50 Percent of the 
Commodity
    The NPRM also proposed the removal of the definition of 
agricultural labor and services that had been added in the 2008 Final 
Rule that permitted 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. This 
provision allowed activities defined as nonagricultural work under the 
FLSA and the IRC to be performed by H-2A workers, so long as no H-2B 
workers were employed at the same worksite doing the same work. The 
Final Rule adopts the proposed deletion, returning to the definition 
used in the 1987 Rule.
    A few commenters sought the Department's rationale for the removal 
of this language. One commenter expressed disappointment regarding the 
proposed removal, asserting that it was a major change that would 
impact packing houses that might not be able to obtain workers through 
the H-2B program due to the annual cap on that program. This commenter 
further asserted that since such H-2B workers often worked alongside H-
2A workers and their jobs are clearly in the stream of agriculture, the 
language should be re-inserted.
    The 2008 Final Rule's definition was problematic because it allowed 
a farmer to employ both H-2A workers and H-2B workers to perform 
identical work, so long as the H-2A workers and the H-2B workers were 
employed in different locations. Congress clearly intended to create 
two separate programs: H-2A for agricultural work and H-2B for other, 
nonagricultural work. Compare 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 8 
U.S.C. 1101(a)(15)(H)(ii)(b). A regulation that allows H-2A workers and 
H-2B workers to perform the same activity is inconsistent with this 
Congressional intent. Furthermore, Congress has already addressed the 
proper classification of packing and processing work by including the 
IRC definition, which specifies that these activities are considered 
agricultural labor only if more than 50 percent of the commodity on 
which the work is being performed has been produced by the farmer. In 
other words, work in a packing shed on a farm, packing apples or 
peaches which are grown on the same farm, falls within the definition 
and thus within the H-2A program. However, if more than 50 percent of 
the apples or peaches being packed come from other farms, the work is 
no longer considered agriculture.
    The Department believes that this statutory limitation is 
meaningful, and that Congress intended it to apply to different types 
of work. As a result, the Department has determined that it is 
appropriate to return to the definition of agriculture as set forth in 
the 1987 Rule and has deleted this provision.
c. Removal of Minor and Incidental Activities
    Further, the NPRM proposed the removal of the phrase other work 
typically performed on a farm that is not specifically listed on the 
Application and is minor (i.e., less than 20 percent of the total time 
worked) and incidental to the agricultural labor or services for which 
the H-2A worker was sought. Several commenters objected to this change, 
asserting that the removal of this language would unfairly limit their 
flexibility in assigning H-2A workers to different kinds of work, and/
or to work which was not listed on the job order. Commenters also 
expressed fears that the removal of the 20 percent tolerance for work 
that is not listed on the Application would subject employers to 
debarment if H-2A workers perform work that is outside the scope of the 
job order for even a small fraction of their time.
    The comments appear to reflect a misunderstanding of the 2008 Final 
Rule's use of the terms minor and incidental. For example, commenters 
complained that they would no longer be able to assign H-2A workers to 
such nonagricultural work as directing traffic at retail outlets (as 
opposed to roadside stands selling agricultural goods produced on the 
farm), and unloading truckloads of purchased merchandise (as opposed to 
farm products) to be offered for sale to retail customers. These 
activities are not incidental to the agricultural activities performed 
by H-2A workers, and they do not appear to relate to agriculture in any 
way. In light of these comments, it appears that the language added to 
the definition of agriculture led to confusion rather than 
clarification.
    On further review, the Department believes that the proposed return 
to the 1987 Rule definition still provides farmers adequate flexibility 
in the use of H-2A workers, while respecting congressional intent that 
the work be agricultural in nature. These workers can, for example: 
Work at a farmer's roadside retail stand; handle, package or sell 
agricultural or horticultural goods produced on the farm; or perform 
maintenance work on farm buildings and machinery. These activities are 
performed by a farmer or on a farm and are incidental to farming 
operations, and therefore meet the FLSA definition of agriculture. In 
addition, the IRC definition of agricultural labor or services 
encompasses a broad range of activities, such as the management of 
wildlife on a farm, the ginning of cotton, or the handling, planting, 
drying, packing, packaging, processing, freezing, grading, storing, or 
delivering to storage or to market, of any agricultural or 
horticultural commodity, as long as more than 50 percent of the goods 
were produced by the farmer-employer. These definitions provide 
considerable latitude to the employer as to the type of work for which 
H-2A

[[Page 6889]]

workers may be used. They have been used for decades and are well 
understood.
    Further, the INA is clear that in order for the Secretary to 
certify a petition, an applicant must demonstrate that there are not 
sufficient workers to perform the labor or services involved in the 
petition. It is incongruous to claim that such a broad degree of 
flexibility is needed to encompass work that has not yet been 
identified, while representing in the Application for H-2A workers that 
there are not enough U.S. workers available to perform such work. To 
approve an Application that would allow a worker to perform a 
substantial amount of work that was not included in the Application 
would not be in keeping with the plain statutory language requiring the 
Department to find that there are not enough workers available to 
perform the work for which H-2A workers are being sought. The 2008 
Final Rule's 20 percent tolerance allowed H-2A workers to work a full 
day a week, every week for the entire job order, in work other than 
that listed on the Application. This broad language effectively allowed 
an employer to apply for 10 workers although the employer had only 
identified work for which eight workers were needed. This permitted an 
employer with a substantial number of H-2A workers to routinely assign 
them unadvertised work that would have been sufficient to support the 
hiring of additional U.S. workers. Such a tolerance is not minor and is 
inconsistent with the statutory standard. Therefore, the Final Rule 
deletes this provision from the definition.
    Finally, several commenters expressed concerns that removing the 
reference to incidental work from the definition of agricultural labor 
or services, coupled with proposed changes in the provisions addressing 
revocation and debarment, might lead to an employer being debarred for 
having assigned a worker outside the scope of the job order for even a 
small fraction of time. However, the Department does not intend to 
debar an employer whose H-2A workers perform an insubstantial amount of 
agricultural work not listed in the Application. In exercising our 
enforcement discretion when an employer has worked an H-2A worker 
outside the scope of the activities listed on the job order due to 
unplanned and uncontrollable events (such as a freeze that prevents 
planting or heavy rains that prevent harvesting), the Department will 
consider the employer's explanation, so long as the activities are 
within the scope of H-2A agriculture, have been occasional or sporadic, 
and the time spent in total is not substantial. Moreover, the debarment 
regulations require that the violation be substantial, and that a 
number of factors must be considered in making that determination, 
including: An employer's previous history of violations; the number of 
workers affected; the gravity of the violation; the employer's 
explanation, if any; its good faith; and its commitment to future 
compliance. Under these criteria, the good faith assignment of a worker 
to work not listed in the Application for a small amount of time would 
not result in debarment. The Final Rule deletes the provision providing 
a blanket 20 percent tolerance for work outside the scope of the 
Application, as proposed.
d. Definition of Agricultural Labor or Services--Inclusion of 
Reforestation and Pine Straw Activities
    The Department proposed that the definition of agricultural labor 
or services include reforestation activities, defined as predominately 
manual forestry work including but not limited to tree planting, brush 
clearing, and pre-commercial tree thinning. It also proposed to include 
pine straw activities, defined as certain activities predominately 
performed using hand tools, including but not limited to raking, 
gathering, baling, and loading of pine straw, a product of pine trees 
that are managed using agricultural or horticultural/silvicultural 
techniques. Currently, employers engaged in these activities may use 
the H-2B program. Reforestation, a sub-industry of forestry, is 
commonly performed by migrant crews who are overseen by labor 
contractors and share the same characteristics as traditional 
agricultural crews. The same reasoning was used in proposing to include 
pine straw activities within the scope of the H-2A program. 
Overwhelmingly, the comments were opposed to adding reforestation 
activities and pine straw activities to the H-2A program. We are 
convinced by these comments and therefore the Final Rule does not 
include reforestation and pine straw activities.
    A number of employer commenters claimed that the way in which 
contracts are awarded to reforestation companies would preclude 
applicants from being able to file H-2A applications in realistic 
timeframes and would make it difficult to comply with H-2A provisions; 
they asserted that such contracts are often for short duration, making 
it particularly difficult to provide documentation that housing, 
typically hotels or motels, had been secured far in advance. Some of 
the commenters projected their increased costs and predicted the costs 
could put them out of business or preclude them from using the program 
to employ an authorized workforce.
    Employee advocates indicated they were concerned about moving such 
workers into the H-2A program, since such a change would mean these 
workers would lose the protections afforded to them by the MSPA, 
particularly the right to a Federal cause of action to enforce these 
rights, replete with statutory liquidated damages for violations. 
Commenters indicated that the loss of protections under MSPA outweighed 
whatever additional benefits or protections inclusion in the H-2A 
program would offer. Several commenters suggested that the better 
course of action would be for the Department to provide additional 
protections to these workers through changes in the regulations that 
govern the H-2B program.
    Only a few commenters supported the proposed change. One stated 
that the activities were agricultural and thus it was unreasonable for 
forestry contractors to have all the regulatory responsibilities of 
agricultural employers but be denied access to agricultural labor under 
the H-2A visa program. Others supported the change based on the reasons 
the Department had used in making the proposal. A State agency 
supported the proposal but cautioned there would be increased efforts 
and costs for their agency to carry out additional housing inspections 
and prevailing wage and practices surveys. We received only one comment 
that specifically addressed the proposed inclusion of pine straw 
activities, and it supported the inclusion based on a circuit court 
decision that found that these activities fell within the definition of 
agriculture under MSPA. We note that the court in this decision did not 
rely on the definitions of agriculture used in either the FLSA or the 
IRC, which are the statutory definitions included in the H-2A program. 
See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163 (11th Cir. 
2003).
    Taking into account the lack of support from all sides to the 
proposed inclusion of reforestation activities and pine straw 
activities in the H-2A program, the Department has decided not to 
include these activities in the definition of agricultural labor or 
services in the Final Rule. We will consider whether it is appropriate 
to propose additional protections for these workers in any future 
revision of the H-2B program.

[[Page 6890]]

e. Definition of Agricultural Labor or Services--Logging
    The NPRM proposed to keep logging in the H-2A program; however, the 
definition section of the NPRM proposed a more detailed definition of 
logging employment. The justification for this decision to include 
logging in the definition was contained in the preamble to the 2008 
Final Rule.
    The Department received some comments on the inclusion of logging 
in general and the definition in particular. One commenter indicated no 
opposition to the inclusion of logging in the definition of 
agricultural labor or services but noted that the Department offered no 
justification for inclusion of logging in the NPRM. Another commenter 
stated that the rationale for including logging in the definition is 
inconsistent with prior regulations and principles of statutory 
interpretation. This commenter asserted that the statutory language of 
8 U.S.C. 1101(a)(15)(H)(ii)(b) clearly encompasses all temporary 
service or labor other than agricultural labor or services, and argued 
that the Department arbitrarily used the phrase agricultural labor or 
services (defined by several statutory provisions) as authority to 
expand the scope of the H-2A program to cover virtually all work with 
renewable natural resources. The commenter argued that the division of 
8 U.S.C. 1101(a)(15)(H)(ii) into (a) and (b) (devolving into the H-2A 
and H-2B programs) was not intended to grant the Department unlimited 
discretion to make legislative changes, as proposed in Sec.  
655.103(b).
    The same commenter asserted that the inclusion of logging in the 
definition as in 2008 would constitute a substantial change from past 
practice that does not protect U.S. workers. This commenter also 
contended that moving these workers from a visa program with caps to 
one without statutory caps would not assist in protecting them from 
exploitation by labor contractors. Instead the commenter proposed that 
the more stringent labor protections applicable to H-2ALCs be 
incorporated into the H-2B regulations for all temporary foreign 
workers not working at fixed locations.
    The Department disagrees with this commenter. Congress clearly gave 
the Secretary authority to define agricultural labor and services 
through regulation. 8 U.S.C. 1101(a)(15)(H)(ii)(a). As stated 
previously, the Department's rationale was discussed in detail in the 
2008 Final Rule. Proposed changes to the H-2B regulations are not a 
part of this rulemaking.
    A reforestation contractor noted that logging was included under 
the H-2A program due to misconceptions about the industry, namely that 
the companies are mainly labor contractors who hire and move migrant 
crews. This commenter indicated that several logging employers would be 
interested in using temporary, seasonal foreign workers to fill labor 
shortfalls if the program allowed for working conditions and benefits 
that are common to prevailing logging employer practices. The commenter 
did not specify the prevailing logging practices being referenced; 
however, we believe that inclusion of logging activities in the H-2A 
program appropriately balances the interests of logging employers and 
workers.
    A State agency indicated that the Department's definition of 
logging operations is consistent with the definition used by the 
Occupational Safety and Health Administration (OSHA) and commended the 
Department. However, the commenter was concerned that the definition of 
logging employment might encompass certain positions such as logging 
supervisors, mechanics, mechanics' helpers, and operations engineers 
(who cut and maintain roads for access). The commenter stated that 
these positions do not meet the standards for H-2A agricultural 
employment and do not constitute employment on an agricultural 
employer's farmstead. This commenter requested that the Department 
clarify that these positions are not included in the H-2A program. The 
NPRM definition identifies the types of logging activities for which 
labor certification may be granted. We did not intend to change the 
scope of logging activities adopted by the 2008 Final Rule and 
therefore employees who were previously granted logging status may 
continue to be certified under the definition now contained in the H-2A 
program. The Final Rule retains the language from the NPRM.
4. Section 655.103(d) Temporary or Seasonal Nature
a. General Comments Regarding Temporary or Seasonal Nature
    The NPRM proposed to adopt the definition of temporary or seasonal 
nature currently used by DHS in its H-2A regulations. The Department 
received more than a dozen comments on this proposed change in the 
definition. All of them opposed the change. Many found that there was 
no rational basis for the change and stated that the preamble 
explanation was insufficient. Many said that the existing definition 
had worked effectively for more than 20 years and should be retained. 
Of those who explained why, the primary reason stated was that the DHS 
definition is meant to apply to the worker, not the employer, and DOL 
is tasked with determining the needs of the employer rather than the 
worker; therefore, the DHS definition used in the NPRM is 
inappropriate. Many of the commenters pointed out that the existing 
definition is well-established and is the subject of many years of 
precedential court decisions. These commenters asserted that departing 
from this well-established definition would be highly disruptive to the 
program.
    Other commenters believe that the definition of temporary or 
seasonal nature in the NPRM is too vague and requires further 
delineation if it is to be kept. Specifically, these commenters point 
out that adding short to annual growing cycle limits the timeframe, and 
the requirement for labor levels far above those necessary for ongoing 
operations during that short timeframe could exclude small farmers who 
might only need one or two additional employees during the peak of 
their season.
    The Department has decided to retain the language of the NPRM which 
was not intended to create any substantive change in how the Department 
administers the program. If additional clarification is needed in the 
future, we will provide such clarification through the use of guidance 
memoranda, bulletins, special procedures (as applicable) and other 
guidance documentation.
b. Treatment of the Dairy Industry Under the Definition of Temporary or 
Seasonal Nature
    The Department received numerous comments requesting the inclusion 
of the dairy industry in the definition of agricultural labor or 
services.
    All of these commenters expressed a critical need for foreign labor 
in the dairy industry. Several commenters referenced an internal survey 
of a national organization of milk producers that indicated that an 
estimated 62 percent of milk production on these farms was attributed 
to immigrant labor. One commenter asserted that domestic workers do not 
want to fill the available jobs in the dairy industry. Another 
commenter stated that a shortage of domestic labor is particularly 
acute in this industry, in which employers experience year-round 
employment needs and must invest significant resources into employee 
recruitment and retention.

[[Page 6891]]

    Most of these commenters sought the inclusion of dairy under H-2A 
special procedures, likening the dairy industry to sheepherders (and 
also loggers and cider pressers) whose need is not temporary, but who 
enjoy the benefits of the program. One commenter argued that the 
industry should be included on an expanded temporary basis of 1 year at 
a time. This commenter referred to isolated, anecdotal evidence from 
before the passage of the Immigration Reform and Control Act of 1986 
(IRCA) where the Department permitted successive 1-year certifications 
for an employer that demonstrated a particular need.
    The determination of whether a particular dairy activity is 
eligible for an H-2A certification rests on a finding that the duration 
of the activity and the need for that activity is temporary or 
seasonal. The majority of activities encompassed by the dairy industry, 
and milk production in particular, are year-round activities and 
therefore cannot be classified as temporary. The Department has no 
legal authority, nor is there legislative precedent, that would allow 
for the inclusion of the entire dairy industry in the H-2A program.
    Sheepherders, which many of the commenters cited as an example of 
an exception to the definition of temporary, owe their inclusion in the 
program to a statutory provision dating back to the 1950s. That 
legislative inclusion was implicitly ratified in IRCA. No such 
legislative inclusion of the dairy industry as a whole has yet to be 
provided by Congress.

Prefiling Procedures

5. Section 655.120 Offered Wage Rate
    In response to comments, the Final Rule adds the agreed-upon 
collectively bargained wage to the list of required wage rates. The 
rationale for this change is explained below, after the discussion of 
the AEWR.
a. The Department's Execution of the Offered Wage Rate
(i) The Provision of an AEWR in the H-2A Program
    The Department has decided to retain the concept of an AEWR as part 
of the H-2A program and that the basis for computing the H-2A AEWR 
shall be the annual average of combined crop and livestock workers' 
wages applicable for each state as reported by the U.S. Department of 
Agriculture's (USDA) Farm Labor Survey (FLS) reports. This section 
discusses the Department's rationale for retaining the AEWR and then 
discusses the Department's rationale for changing the methodology used 
to calculate the AEWR.
(ii) The Need for an AEWR
    The admission of temporary foreign workers under the H-2A program 
is predicated on a certification by the Secretary that

the employment of the alien in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.

    (8 U.S.C. 1188(a)(1)(B)).

Accordingly, under Sec.  655.120(a) of this Final Rule, an employer 
must offer, advertise in its recruitment, and pay a wage that is the 
highest of the AEWR, the prevailing hourly wage or piece rate, the 
collectively bargained wage rate, or the Federal or State minimum wage, 
except where a special procedure is approved.

    This requirement reflects a longstanding concern that there is a 
potential for the entry of foreign workers to depress the wages and 
working conditions of domestic agricultural workers. The AEWR is the 
minimum wage rate that agricultural employers seeking nonimmigrant 
foreign workers must offer to and pay their U.S. and foreign workers if 
the prevailing wage rate, the collectively bargained wage rate, and any 
Federal or State minimum wage rates are below the AEWR. The AEWR is 
designed to prevent the potential wage-depressive impact of foreign 
workers on the domestic agricultural workforce. The AEWR is a wage 
floor, and its existence does not prevent the worker from seeking, or 
the employer from paying, a higher wage.
    From the outset of the Federal Government's involvement in the 
admission of temporary foreign agricultural workers, the Government has 
sought to protect similarly employed U.S. workers from the potential 
adverse effect such employment would have on their wages. Since 1953, 
the Department has computed and published AEWRs for the temporary 
employment of nonimmigrant foreign workers for agricultural employment 
under various admission programs. See H.N. Dellon, ``Foreign 
Agricultural Workers and the Prevention of Adverse Effect'', 17 Labor 
Law Journal 739 (1966) for a detailed history of the early decades of 
publication of AEWRs by the Department. Mr. Dellon's article notes 
that, as far back as 1953, employers seeking to employ foreign 
nationals to work in various crop activities (in that case, under the 
Bracero Program) were required to pay not less than a wage established 
by DOL. AEWRs began to be set periodically on a statewide basis, first 
for a subset of States based on applications for temporary foreign 
workers and subsequently for all States (except Alaska).
    As time passed, the establishment of AEWRs became more formalized, 
and AEWRs were computed and set for the H-2 program as well, after 
public notice and comment. See, e.g., 29 FR 19101-19102, Dec. 30, 1964; 
32 FR 4569, 4571, Mar. 28, 1967; and 35 FR 12394-12395, Aug. 4, 1970.
    Economic theory provides the initial justification for the use of 
an AEWR. Economic theory holds that, other things being constant, any 
increase in the supply of labor available in a labor market segment 
would result in a decrease in the equilibrium wage. This theory-based 
observation of the effect of increased labor supply is the basis for 
the concern that currently employed, or incumbent, farm workers would 
be adversely affected by lowered wages as a result of an influx of 
temporary foreign farm workers.
    Similarly, economic theory holds that, under conditions of an 
emerging labor shortage, the previously observed wage (prevailing local 
wage) may not reflect the equilibrium wage.\2\ Instead, adjustments 
would occur over time \3\ and the observed wage would increase by an 
amount sufficient to attract more workers until supply and demand were 
met in equilibrium. Absent an increase of workers under the H-2A 
program, wages would rise above the currently observed wage in order to 
dispel the labor shortage until sufficient additional domestic labor 
was attracted into the market from neighboring geographic areas or 
other occupations. By computing an AEWR to approximate the equilibrium 
wage that would result absent an influx of temporary foreign workers, 
the AEWR serves to put incumbent farm workers in the position they 
would have been in but for the H-2A program. In this sense, the AEWR 
avoids adverse effects on currently employed workers by preventing 
wages from stagnating at the local prevailing

[[Page 6892]]

wage rate when they would have otherwise risen to a higher equilibrium 
level over time.
---------------------------------------------------------------------------

    \2\ The notion that a single point wage would be observed for a 
market in equilibrium is a simplification. In the abstract, an 
equilibrium wage is the wage at which the quantity of labor supplied 
by workers matches the quantity of labor demanded by employers. In 
practical reality a range of individual wage contract amounts may be 
observed reflecting individual labor productivity differences, 
relative bargaining strengths of contracting parties, timing of 
employment contracts, imperfect knowledge of market conditions by 
one or both parties, location factors and a myriad of other 
influences, but this array of individual wage contract values yields 
a particular average as a measure of the distribution's central 
tendency, and this average is conveniently referenced as the 
equilibrium wage.
    \3\ Including, given enough time, the possibility of 
substitution of capital for labor.
---------------------------------------------------------------------------

    In practical application, there are a number of obstacles and 
limitations that hinder the market adjustment process to an equilibrium 
wage as indicated by the theoretical labor market analysis. Foremost of 
these is the limitation imposed by inefficiency in the transmission of 
information about labor market conditions (job openings, revised wage 
offers, conditions of employment, etc.) across both physical and social 
distances. Information transmission inefficiencies affect all labor 
markets. Most jobs in the U.S. are filled through informal information 
and referral processes. It has been estimated that fewer than 20 
percent of job openings are listed on public labor exchange information 
systems or advertised in public media.\4\
---------------------------------------------------------------------------

    \4\ See Bayer, Patrick, Ross, Stephen, and Topa, Giorgio, 
``Place of Work and Place of Residence: Informal Hiring Networks and 
Labor Market Outcomes.'' National Bureau of Economic Research 
Working Paper No. 11019, 2005 for a review of research regarding the 
impact of differences in access to labor market information and 
social networks in shaping the different wage and employment 
outcomes of different groups of workers. See Ozga, S.A., ``Imperfect 
Markets Through Lack of Information.'' Quarterly Journal of 
Economics, February 1960, 74(1), pp. 29-52, for a theoretical 
discussion of the effects of imperfect information flows on labor 
market dynamics. See Holzer, Harry J., ``Informal Job Search and 
Black Youth Unemployment.'' American Economic Review, June 1987, 
77(3), pp. 446-452 for a discussion of how minorities, and 
especially youth, are disadvantaged by the relative inefficiency of 
their informal job search and labor market information networks.
---------------------------------------------------------------------------

    Farm workers are especially likely to be disadvantaged in terms of 
access to information about new or changing labor market conditions or 
job opportunities. The physical distances and relative social isolation 
typical of many rural environments slows the transmission of 
information by word-of-mouth. Even though seasonal migrant workers may 
move great distances from one crop area to another over the course of 
the planting, tending and harvesting seasons, their knowledge is often 
limited to a familiar circuit of employment opportunities, and they 
often lack rapid access to information that would enable them to alter 
routine migration patterns to take advantage of new opportunities. The 
low educational attainment of farm workers is a major barrier to 
efficient access and rapid response to changing labor market 
conditions. Over 45 percent of U.S. citizens who are employed as hired 
farm workers do not have a high school diploma, and 21 percent of U.S. 
citizens employed as hired farm labor have less than a 10th grade 
education.\5\ These farm workers with low educational attainment, 
numbering over 246,000 U.S. citizens, and many more if permanent 
resident non-citizens are included, often have limited reading ability 
and limited access to newspapers and other media in which job 
opportunities and wage offers might be advertised. They are also 
disproportionately poor, and their economic status may limit their 
physical access to public labor market information and assistance 
resources.
---------------------------------------------------------------------------

    \5\ Based on analysis of 2005-2009 data from the Current 
Population Survey (CPS), Annual Social and Economic Conditions 
Supplement. The analysis of CPS data was restricted to U.S. citizens 
because non-citizens in the sample could not be identified as 
legally documented residents or not.
---------------------------------------------------------------------------

    The resulting limitations in the flow of labor market information 
hinder the rapid adjustment of wages to a market equilibrium level. 
This situation can lead to localized short-run critical shortages of 
farm labor and result in spikes in farm labor wages that are much 
greater in magnitude than would be the case if information flowed more 
readily and markets adjusted more rapidly to a final equilibrium. Wide 
fluctuations in local wages may create a hardship for farmers who need 
to plan financially for expected labor costs. Unexpectedly large 
increases in labor costs may reduce profits. Shortages of labor at 
critical times may cause tangible waste if crops cannot be harvested at 
the appropriate time. It was in part to alleviate such difficulties 
facing farmers, as well as to discourage the unauthorized employment of 
workers, that Congress enacted legislation to facilitate the temporary 
importation of foreign labor to meet short-term gaps in the domestic 
supply of labor in critical locales. However, Congress also recognized 
the need to protect the wages and access to jobs of citizens and other 
permanent residents employed in the farm labor sector, and Congress 
placed with the Secretary the responsibility to ensure that the process 
of importation of foreign labor to aid farmers did not cause damage to 
the economic condition of domestic farm workers.
    The apparent existence of a shortage of domestic workers, at least 
temporarily, is the basis on which employers apply to import temporary 
foreign H-2A workers. The requirement that employers first attempt to 
recruit domestic labor by listing job openings and wage offers with 
SWAs which are part of the public labor exchange system and to 
advertise openings in appropriate media is an essential part of the 
process of protecting domestic workers. However, as a result of the 
known limitations faced by farm workers in obtaining information from 
these sources, there may not be enough time for additional domestic 
workers to enter the local farm labor market. In such cases, because 
there is a long history of temporary migrant work in the U.S. and 
because the potential supply of foreign low-wage agricultural workers 
is great, the importation of foreign workers might more expediently 
address the labor shortage. However, because such an influx of labor 
would imply that the wages of incumbent domestic workers would not 
adjust upward, the use of an AEWR circumvents this adverse affect on 
incumbent workers.
(iii) The Use of the Prevailing Wage Does Not Provide Sufficient 
Protection
    A farm association commented that there is no valid economic 
justification for a separate AEWR standard in addition to the 
prevailing and statutory minimum wage. Another comment suggested that 
the concept of an AEWR is an outdated notion. They stated that the AEWR 
was created at a time when there was no Federal minimum wage for 
agricultural employees. The purpose of the AEWR, therefore, was to 
create a floor on the prevailing wage rate. Subsequently, the 
Government has established a Federal minimum wage for agricultural 
employees. The commenter asserted that once the agricultural minimum 
wage was established, the AEWR was retained simply as a matter of 
economic theory. The commenter further contended that keeping an AEWR 
that is higher than the prevailing wage actually has an adverse effect 
on employment of U.S. workers because it precludes access to jobs that 
would otherwise be available if there were a competitive wage. The 
commenter stated that he has moved to less labor-intensive farm 
practices as a direct result of the higher than market wage rate he has 
to pay based on the AEWR.
    The commenter concluded that there is no current reason to have an 
AEWR. The commenter proposed that the Department refrain from further 
efforts to determine which of several flawed surveys are appropriate 
for the AEWR. Instead the Department should eliminate the AEWR and use 
the prevailing wage as the baseline for the H-2A program.
    An AEWR distinct from a prevailing wage concept \6\ is most 
relevant in cases in which the local prevailing wage is

[[Page 6893]]

lower than the wage considered over a larger geographic area (within 
which movement of domestic labor is feasible) or over a broader 
occupation/crop/activity definition (within which reasonably ready 
transfer of skills is feasible). In such cases, the introduction of 
foreign workers paid at the local prevailing wage fails to account for 
the fact that the labor shortage would have otherwise resulted in 
higher local wages. The use of the observed local prevailing wage would 
adversely affect domestic workers by filling job vacancies with foreign 
workers before wages were allowed to adjust upward to alleviate the 
labor shortage in the imperfectly functioning labor market information 
system.
---------------------------------------------------------------------------

    \6\ Under the 2008 Final Rule, which also retained the concept 
of an AEWR, the methodology used to calculate the AEWR was such that 
the AEWR was essentially the same as the prevailing wage.
---------------------------------------------------------------------------

    Thus, to more fully protect domestic workers from the adverse 
effects of temporary foreign workers, it is appropriate to compute 
wages based on a broader geographic area or broader occupation 
definition than the more specific prevailing wage computation when the 
local prevailing wage is below the average found in the broader market 
area. In this case, application of the AEWR is an attempt to 
approximate the equilibrium wage that would have resulted but for the 
introduction of foreign workers. The AEWR is, in essence, a prevailing 
wage concept defined over a broader geographic or occupational field, 
recognizing the relevant parameters over which wages could have 
adjusted to an equilibrium level in the absence of additional temporary 
workers under the H-2A program.
    In cases in which the AEWR is not higher than the prevailing wage, 
minimum wage, or collectively bargained wage, incumbent domestic 
workers would be disadvantaged by the use of the AEWR instead of the 
higher alternative.\7\ In these cases, the local shortage of labor 
exists despite a wage rate prevailing at a local level (or a mandated 
minimum wage or a collectively bargained wage) that is generally higher 
than wage average over a broader area, suggesting that wages have not 
fully adjusted to an equilibrium level. Therefore, in these cases, the 
AEWR is not binding on employers because use of a higher alternative 
wage would afford greater protection to incumbent workers. The 
difference between the local prevailing wage (which would be paid to 
temporary foreign workers) and the lower wage in the broader geographic 
or occupational definition area (represented by the AEWR) provides an 
incentive for domestic resident workers to shift their labor supply 
into the affected market and to benefit from additional employment 
opportunities and potentially higher wages than are available to them 
elsewhere. Because employers would otherwise be compelled to pay the 
minimum wage (by law), the collectively bargained wage (by contract) or 
the prevailing wage (by market forces), the Final Rule only codifies 
what the employers would otherwise do. The requirement that imported 
foreign temporary workers be paid no less than the highest of the AEWR, 
the local prevailing wage, the collectively bargained wage, or the 
applicable legal minimum wage ensures that domestic workers receive the 
greatest potential protection from adverse effects on their wages and 
working conditions, including the adverse effect of being denied access 
to the opportunity to earn a higher equilibrium wage that would have 
resulted as the market (perhaps slowly) adjusted in the absence of the 
guest workers.
---------------------------------------------------------------------------

    \7\ Evidence suggests that the AEWR would be the highest of the 
computed wage alternatives, and therefore binding on employers, in 
the vast majority of cases. In Fiscal Year (FY) 2009, the AEWR was 
not applicable in only 10 percent of the cases certified under the 
Rule before the 2008 Final Rule.
---------------------------------------------------------------------------

(iv) Evidence of Current Wage Depression Is Not Needed
    Citing various sources of evidence, some comments have suggested 
that the use of an AEWR is not justified because there is no evidence 
of wage depression in agriculture. One farm organization noted that, in 
the proposed rule, the Department justified the use of an AEWR despite 
the fact that the Department readily acknowledges that evidence is not 
conclusive on the existence of past adverse effect. Similarly, another 
association of agricultural employers asserted that there is no longer 
a rationale for an AEWR because wages in the agricultural industry have 
increased over time.
    First and foremost, regardless of any past adverse effect that the 
use of low-skilled foreign labor may or may not have had on the wages 
paid to authorized agricultural workers, the Department considers the 
forward-looking need to protect U.S. workers whose low skills make them 
particularly vulnerable to even relatively mild--and thus very 
difficult to capture empirically--wage stagnation or deflation that has 
the potential to result from the hiring of immigrant labor. The lack of 
evidence of wage depression at present is not evidence that an AEWR is 
unnecessary; rather, it may be evidence that the imposition of the AEWR 
heretofore has been successful in shielding domestic farm workers from 
the potentially wage depressing effects of overly large numbers of 
temporary foreign workers. The fact, discussed below, that the 
localized wage adopted as the AEWR in the 2008 Final Rule has led to 
significant decreases in farm worker wage in many cases suggests that 
an AEWR linked to a wider geographic area and a wider spectrum of 
occupations has provided the protection it was intended to provide.
    Furthermore, the Department recognizes that the empirical evidence 
is inconclusive about the past impact of immigration on wages and 
believes that the provision of an AEWR in the face of such uncertainty 
will serve to ensure that wages and working conditions are not 
adversely affected. The 2008 Final Rule reviewed evidence on the 
depressive effects of immigration on wages and explicitly reiterated 
the conclusion stated in the 1989 Rule that evidence of wage depression 
in the agricultural sector was inconclusive. 73 FR 77168, Dec. 18, 
2008. In the 1989 Rule, the Department noted that some studies had 
identified wage depression in specific agricultural labor markets, but 
labeled that evidence anecdotal. The Department further noted that even 
this anecdotal evidence of wage depression was highly localized and 
concentrated in specific areas and crop activities. 54 FR 28043, Jul. 
5, 1989.
    According to the 2008 Final Rule preamble, evidence developed 
during the 20 years after the 1989 Rule did not provide additional 
clarity on the issue of wage depression. The 2008 Final Rule cited 
experts who continued to claim that unauthorized workers cause wage 
depression (e.g., Michael J. Wishnie, ``Prohibiting the Employment of 
Unauthorized Immigrants: The Experiment Fails'', 2007 U. Chic. Leg. 
For. 193, 215 (2007) (asserting that unauthorized workers certainly 
contributed to the depression of wages and working conditions for U.S. 
workers). However, the rule also cited experts who suggested that the 
evidence was mixed. Thus, the 2008 Final Rule, 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, reaffirmed the 
Department's conclusion in the 1989 rulemaking that evidence of wage 
depression in the agricultural sector is inconclusive. Furthermore, the 
2008 Final Rule also stated that: there is no conclusive evidence one 
way or the other regarding the existence of wage depression in 
localized agricultural labor markets. 73 FR 77168-77169, Dec. 18, 2008.

[[Page 6894]]

    Additional research not previously considered suggests that any 
adverse wage effects would be more likely to affect lower-skill 
workers. See Pia M. Orrenius, Michael Nicholson, ``Immigrants in the 
U.S. Economy: A Host-Country Perspective,'' Journal of Business 
Strategies, vol. 26, 2009, which concludes that those who suffer the 
most severe negative wage impacts are prior immigrants, who are the 
most substitutable for new immigrants. See also Vernon M. Briggs Jr., 
``Illegal Immigration: The Impact on Wages and Employment of Black 
Workers,'' U.S. Civil Rights Commission, April 4, 2008, Washington, DC, 
which suggests that low skilled workers, many of whom are black, have 
been more dramatically affected by immigration over time.
    Most contemporary research on the economic impacts of immigration 
deals with the effects of permanent immigration (whether authorized or 
not) on wages of incumbent workers across the economy generally, and 
not specifically in agriculture. To some extent it is not surprising 
that the results are unclear, because the effects of increased labor 
supply in particular labor markets from immigration are at least 
partially (and perhaps more than) offset in general economic 
equilibrium terms by the increase in aggregate demand from the 
formation of new households. The specific labor market impacts of 
permanent immigrants are also attenuated by the fact that immigrants 
are not limited by law to particular industries, occupations or places 
of residence. They may adapt to current economic conditions and seek 
opportunities in relatively fast growing economic areas where their 
potentially negative impact on wages is subsumed under a strong upward 
trend.
    For several reasons, temporary authorized importation of foreign 
farm labor may differ from permanent immigration in its impact on labor 
markets. The guest workers are by definition admitted for only a 
temporary time, and their shelter and sometimes food are provided by 
the employer. They do not bring family; they do not set up permanent 
households; most of their earnings return to their home countries so 
that they add relatively little to the domestic economy; and their 
labor is not transferable to other industries where wages and jobs may 
be growing faster. The Department is concerned that the potential 
adverse impact on domestic workers of large numbers of authorized 
temporary foreign workers admitted under the H-2A program may be 
greater than the negative impact (if any) of similar numbers of 
permanent immigrants who contribute positively to aggregate economic 
demand through household formation and whose impact on agricultural 
wages may be reduced by their potential mobility to move into other 
industries.
    Thus, in light of the uncertainty about the wage effects of 
immigration and the likelihood that any impact would be felt more 
severely by low-skill workers, the Department believes that the risk of 
wage depression must be recognized and therefore that there is a 
rational basis for the use of an AEWR.
    The Department also recognizes the potential for the presence of 
unauthorized workers to exert a stagnating influence on agricultural 
wages. Evidence from the National Agricultural Workers Survey (NAWS) 
suggests that about 60 percent of hired farm workers may not have legal 
authorization to work. This large presence of unauthorized workers in 
the agricultural workforce heightens the concern about stagnating 
agricultural wages for authorized workers.\8\
---------------------------------------------------------------------------

    \8\ The ability of unauthorized workers to move readily between 
agricultural jobs and jobs in other industries such as construction 
may account for the lack of evidence of wage depression. In 
contrast, workers admitted under the H-2A program are restricted to 
working only in the agricultural sector, and therefore the wage-
depressive effects of the influx of such workers are concentrated.
---------------------------------------------------------------------------

(v) The AEWR Is Unique to the H-2A Program
    One commenter 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, suggesting that, because there 
is no provision for an AEWR in other guest worker programs, there is no 
justification for providing for an AEWR in the H-2A program.
    For other programs, the Department currently 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 admitting 
foreign workers under the H-1B program. 8 U.S.C. 1182(n)(1)(A), 
1182(p).
    However, the Department established special adverse effect wage 
rates for the H-2A program. The very existence of a separate program 
for temporary guest workers in agriculture demonstrates that the 
agricultural industry is unique and that temporary foreign agricultural 
workers, and domestic resident agricultural workers in general, may be 
quite different than workers in other industries subject to the H-1B 
and H-2B programs. Workers in agricultural labor or services often 
perform work in remote locations for short periods of time and 
therefore may have little or no access to community or government 
resources, decreasing their ability to obtain information about 
alternative employment opportunities that could enable them to bargain 
more effectively. In addition, the concentration of foreign temporary 
workers in a single industry sector amplifies the impact of the 
employment of guest workers on domestic workers. Therefore, the 
Department believes that the fact that an AEWR is not used in other 
programs is not indicative of its appropriateness for the H-2A program.
    There is ample evidence that agricultural workers are a 
particularly vulnerable population. They are often hired on a seasonal 
basis and are required to move from place to place. In part as a 
consequence of their low educational attainment, low skills, low rates 
of unionization and high rates of unemployment, agricultural workers 
have limited ability to negotiate wages and working conditions with 
farm operators or agricultural services employers. The Department 
believes that the limited bargaining power of agricultural workers 
exacerbates the problem of stagnating prevailing wages and slow 
adjustment to higher equilibrium wages in the face of labor shortages, 
justifying the use of an AEWR separate and distinct from local 
prevailing wages.
    The vulnerable condition of U.S. agricultural workers is described 
in a report by the USDA's Economic Research Service (ERS), available at 
http://www.ers.usda.gov/Briefing/LaborAndEducation/FarmLabor.htm. The 
report found that in 2006 the average annual unemployment rate for 
hired farm workers (8.5 percent) was nearly twice the unemployment rate 
for U.S. workers across all occupations (4.5 percent). High 
unemployment is in part attributable to the seasonality of farm work. 
Total employment levels for hired farm workers vary significantly 
depending on the time of year. As an example of seasonal employment 
fluctuations, the ERS report pointed to National Agricultural 
Statistics Service (NASS) data in 2006 which indicated that 1,195,000 
hired farm workers were employed in mid-July, compared with only 
796,000 in mid-January.
    The ERS report also noted the concentration of hired farm workers 
in the Southwest. According to data from the Current Population Survey 
(CPS), roughly 40 percent of all hired farm

[[Page 6895]]

workers live in the Southwest, and 20 percent live in each of the South 
and Midwest regions. Almost half of all hired farm workers live in just 
five States: California, Texas, North Carolina, Washington, and Oregon. 
The geographic concentration of farm workers suggests that exclusive 
reliance on the traditional notion of the prevailing wage (i.e., the 
wage paid for that occupation in area of intended employment) is 
inappropriate to the unique circumstances of the H-2A program. 
Moreover, many of the other temporary foreign labor programs 
administered by the Department are subject to statutory visa caps. 
Historically, those programs have never involved the influx of large 
numbers of foreign workers into a particular labor market because the 
influx of workers is spread throughout several industries. In these 
other programs, it is realistic to conclude that payment of a 
prevailing wage to the foreign workers will have no adverse effect on 
U.S. workers. This assumption is not valid in the H-2A context. The 
program is uncapped and experience indicates that it can involve large 
numbers of foreign workers entering a specific labor market. Under 
these circumstances, there is a heightened risk that the employment of 
foreign workers may produce wage stagnation in the local labor market. 
Access to an unlimited number of foreign workers in a particular labor 
market at the current prevailing wage would inevitably keep the 
prevailing wage lower than it would have been had it adjusted to an 
equilibrium wage to dispel the shortage through normal market processes 
involving domestic labor supply flows in response to equilibrium wage 
changes. The most effective way to remedy this adverse effect on 
domestic agricultural workers is to impose a wage floor that 
approximates the equilibrium wage that would have resulted, and the 
most effective way to approximate such a wage is to consider a broader 
geographic area than the local area considered for prevailing wages.\9\
---------------------------------------------------------------------------

    \9\ As mentioned previously, in cases in which the AEWR is not 
the highest of the prevailing wage, Federal or State minimum wage or 
collectively bargained wage, use of the AEWR would be a disadvantage 
to incumbent workers, and the highest wage rate among the listed 
choices is a closer approximation of the position the workers would 
have been in, absent the H-2A program.
---------------------------------------------------------------------------

    One commenter suggested that the current 66,000 visa cap on the H-
2B program would be sufficient to flood any particular labor market 
anyway, assuming all the positions in that labor market were certified 
by the DOL. Rather than arguing against the use of an AEWR to prevent 
localized wage depression, this comment simply suggests that localized 
wage depression is theoretically possible under a prevailing wage 
concept as provided for under the H-2B program. The Department has not 
found that entry of workers using H-2B visas has adversely affected 
local labor markets, because in fact, these workers are employed in a 
wide variety of industry sectors, including landscaping, hospitality, 
construction, reforestation, and retail trade. Nevertheless, the 
Department has noted the concentration of agricultural workers in 
localized areas and therefore the greater likelihood of adverse effects 
on local agricultural labor markets. Thus, the Department recognizes 
the usefulness of an AEWR in the context of the H-2A program.
    The Department continues to consider valid the justification cited 
in the 1989 Rule, stating that even though the evidence is not 
conclusive on the existence of past adverse effect, DOL still believes 
that its statutory responsibility to U.S. workers will be discharged 
best by the adoption of an AEWR in order to protect against the 
possibility that the anticipated expansion of the H-2A program will 
itself create wage depression or stagnation. See 54 FR 28037, July 5, 
1989.
    The Department continues to believe that the use of an AEWR is 
necessary in order to effectuate its statutory mandate of protecting 
domestic agricultural workers from the possibility of adverse effects 
on their wages or working conditions. In drawing this conclusion, the 
Department follows the approach in the 2008 Final Rule. 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 AEWR concept. 73 FR 77110, Dec. 18, 2008.
b. Determining the AEWR
    The Department has chosen to calculate the AEWR for each State 
within a given region as the annual average combined hourly wage for 
field and livestock workers derived from the USDA's NASS quarterly FLS. 
Hourly wage rates are calculated based on employers' reports of total 
wages paid and total hours worked for all hired workers during the 
survey reference week each quarter.
    The FLS is conducted each year in January, April, July and October, 
and results are published the following month. Annual average estimates 
for the number of all hired workers, hours worked by hired workers and 
wage rates are included in the October FLS report, which is published 
in November. Information about the methodology of the FLS is publicly 
available at: http://usda.mannlib.cornell.edu/usda/current/FarmLabo/FarmLabo-11-20-2009.pdf.
    The FLS defines work as work done on a farm or ranch in connection 
with the production of agricultural products, including nursery and 
greenhouse products and animal specialties such as fur farms or 
apiaries. It also includes work done off the farm to handle farm-
related business, such as trips to buy feed or deliver products to 
local markets.
    The FLS defines hired workers as anyone, other than workers 
supplied by a services contractor, who was paid for at least 1 hour of 
agricultural work on a farm or a ranch. Worker type is determined by 
what the employee was primarily hired to do, not necessarily what work 
was done during the survey week. The survey seeks data on four types of 
hired workers: Field workers, livestock workers, supervisors (hired 
managers, range foremen, and crew leaders) and other workers engaged in 
agricultural work not included in the other three categories.
    The FLS report is based on farmers' gross wages paid to workers 
grouped into two broad categories: Field workers and livestock workers. 
Wage rates are not calculated and published for supervisors or other 
workers, but are for field workers, livestock workers, field and 
livestock workers combined, and total hired workers. Field workers 
include employees engaged in planting, tending and harvesting crops, 
including operation of farm machinery on crop farms. Livestock workers 
include employees tending livestock, milking cows or caring for 
poultry, including operation of farm machinery on livestock or poultry 
operations.\10\
---------------------------------------------------------------------------

    \10\ To the extent workers receive 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, some statistics agencies refer to the ratio as 
average hourly earnings, and not as hourly wages or wage rate.
---------------------------------------------------------------------------

    The FLS also collects data on the number of workers and wages of 
workers performing agricultural services on farms (i.e., workers 
supplied by services contractors) in California and Florida. California 
and Florida account for the preponderance of agricultural service 
contract labor provided to farms.
    The target population for the establishment portion of the FLS is 
all farms that sell, or would normally sell, at least $1,000 worth of 
agricultural

[[Page 6896]]

products during the year. The target population for the agricultural 
services survey covering California and Florida is all operations that 
provide agricultural services to farmers.
    The USDA survey is designed to produce statistically reliable 
estimates of overall hired labor use and costs for California, Florida 
and Hawaii, and provide data for other States except Alaska under 15 
multistate groupings. For California, Florida and Hawaii, the AEWR each 
year will be set as the annual average of the previous calendar year's 
four quarterly FLS hourly wage estimates for field and livestock 
workers (combined) in each of these States. For the other States the 
AEWR will be set as the annual average of the previous calendar year's 
four quarterly FLS hourly wage estimates for field and livestock 
workers (combined) of the FLS multistate crop region to which the State 
belongs. Every State in the same region will be assigned the same AEWR 
amount. The State groupings are as follows.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Northeast I............................  Connecticut, Maine,
                                          Massachusetts, New Hampshire,
                                          New York, Rhode Island and
                                          Vermont.
Northeast II...........................  Delaware, Maryland, New Jersey
                                          and Pennsylvania.
Appalachian I..........................  Virginia and North Carolina.
Appalachian II.........................  Kentucky, Tennessee and West
                                          Virginia.
Southeast..............................  Alabama, Georgia and South
                                          Carolina.
Delta..................................  Arkansas, Louisiana and
                                          Mississippi.
Cornbelt I.............................  Illinois, Indiana and Ohio.
Cornbelt II............................  Iowa and Missouri.
Lake...................................  Michigan, Minnesota and
                                          Wisconsin.
Northern Plains........................  Kansas, Nebraska, North Dakota
                                          and South Dakota.
Southern Plains........................  Oklahoma and Texas.
Mountain I.............................  Idaho, Montana and Wyoming.
Mountain II............................  Colorado, Utah and Nevada.
Mountain III...........................  Arizona and New Mexico.
Pacific................................  Oregon and Washington.
------------------------------------------------------------------------

    The selection of the Bureau of Labor Statistics (BLS) Occupational 
Employment Survey (OES) in the 2008 Final Rule was based on an 
underestimation of its inadequacies. The OES agricultural wage data has 
a number of significant shortcomings with respect to its accuracy as a 
measure of the wages of hired farm labor suitable to be used as the 
AEWR. Perhaps its most substantial shortcoming in this context is that 
the OES data do not include wages paid by farm employers. Data is not 
gathered directly from farmers but from non-farm establishments whose 
operations support farm production, rather than engage in farm 
production. Therefore, the OES results for the farm workers and 
laborers, crop, nursery and greenhouse occupation category reflects 
only the subset of farm workers and laborers employed by agricultural 
support services employers--companies that provide agricultural labor 
supply to farmers on a contract basis. The survey does not include data 
on farm workers who are directly hired by farm operators and represent 
the majority of hired farm labor. According to the latest OES data, the 
covered agricultural establishments represent employment of 451,770 
hired agricultural workers of all types--about one-third of the 1.2 
million total number of all hired farm workers of all types identified 
by the USDA FLS. Given that the employees of non-farm establishments 
constitute a minority of the overall agricultural labor force, the 
Department has concluded that these data are therefore not 
representative of the farm labor supply and do not provide an 
appropriately representative sample for the labor engaged by H-2A 
employers.
    The adoption of the BLS OES methodology in the 2008 Final Rule was 
intended to simplify the wage determination process for the H-2A 
program while maintaining adverse effect wage protection similar to 
that previously provided by the FLS. It was never the Department's 
intention to produce a substantial and across-the-board reduction in 
the level of wage protection provided by the AEWR. The 2008 Final Rule 
explicitly stated that the decision to adopt the OES method for 
computing the AEWR 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. Nonetheless, average wage levels 
certified under the H-2A program have declined by over 10 percent 
nationwide: On a State-by-State basis, only seven States did not 
experience a decline (See Table 1; Data based on the full set of H-2A 
application records received in fiscal years (FY) 2008 and 2009).
    Several commenters representing employers and grower associations 
questioned the conclusion expressed in the NPRM that the change in the 
AEWR computation method had negatively impacted wage floors set under 
the H-2A program and asked for more specific data. Accordingly, the 
Department has analyzed the records for FY 2008 and FY 2009 H-2A 
certifications. The FY 2008 certifications included records for 5,392 
applications that were fully or partially approved in the last full 
year of AEWR computation under the procedure specified in the 1989 Rule 
(relying on the NASS averages for crop and livestock workers). The FY 
2009 certifications included 4,857 applications that were fully or 
partially approved, of which about 40 percent were received before the 
January 2009 effective date of the 2008 Final Rule and were processed 
under the 1989 computation method. The fact that in FY 2009 some 
applications were certified under different methods provides a very 
useful basis for comparison of the relative impact of the computation 
method change from the FLS data source to the OES data source. The 
analysis focused on the applications for hourly paid farm and livestock 
workers for which the AEWR is most likely to be the wage floor 
determinant. The analysis excluded 906 applications in FY 2008 and 610 
applications in FY 2009 that were applications for custom combine and 
other specialized equipment operators or cattle or sheep range workers 
paid on a monthly or weekly basis (the wages for these jobs are 
determined predominantly by local, crop or livestock specific 
prevailing wage surveys). The excluded applications had de minimis 
effect on the comparative averages for FY 2008 and FY 2009 wage 
comparisons shown below since the excluded observations included 
approximately equal numbers of applications involving relatively high-
paid custom combine operators and relatively low-paid sheepherders. 
Table 1 shows the National and State average wage certifications for FY 
2008, for the applications certified under the 1989 Rule in FY 2009 and 
for the applications certified under the 2008 Final Rule in FY 2009.
    The average wage amounts are the average of the certified minimum 
wages of the approved applications weighted by the number of workers 
approved for each application. The average wages reflect the combined 
effects of the AEWR, the applicable local prevailing wage and the 
applicable legal Federal or State minimum wage, whichever was highest 
for each application. In some cases the AEWR was the determining 
parameter for the wage certified and in other cases a local prevailing 
wage or a legal minimum wage was the determining parameter. The change 
in the method of calculating the AEWR is reflected in the changes in 
the share of applications in which the applicable prevailing wage or 
legal minimum wage was higher than the applicable AEWR and in the 
average certified wages for applications processed before and after the 
change.
    The change to the OES method of computing the AEWR resulted in the

[[Page 6897]]

average certified wage for H-2A workers decreasing nationwide to $8.02 
per hour, an 11.2 percent decrease compared to the $9.04 per hour 
average for FY 2009 applications that were received before January 19, 
2009 and processed under the prior rules, and a 10.8 percent decrease 
compared to the $9.00 per hour average wage rate for FY 2008 
applications, for all of which the wage determination was made under 
the prior rule. The only States that did not see a fall in the average 
H-2A wage amount following the implementation of the 2008 Final Rule 
were Alaska, Delaware, Hawaii, Minnesota, Montana, North Dakota, and 
South Dakota. These States accounted for 1,252 H-2A workers, less than 
2.4 percent of the 52,420 total number of H-2A workers certified under 
the 2008 Final Rule in FY 2009. It is noteworthy that the decline in 
average wage certification amounts would have been greater were it not 
for the significant increase following the implementation of the OES 
AEWR computation method in the proportion of applications in which the 
wage floor determination reflects a legal minimum wage or a local 
prevailing wage greater than the applicable AEWR level. In FY 2009, for 
applications processed under the 2008 Final Rule (i.e., applications 
received after January 19, 2009), 60 percent of the applications were 
approved at a wage higher than the applicable AEWR because the 
applicable prevailing or legal minimum wage was higher. This is in 
contrast to only 10 percent in which the AEWR was not applicable among 
applications processed in FY 2009 under the prior rule.

                Table 1--State and National Average Certified H-2A Wage Rates FY 2008 and FY 2009
----------------------------------------------------------------------------------------------------------------
                                                                                   08-09 Change
                                   FY 08 average   Pre Jan. 19,    Post Jan. 19,    (FY 2008 vs   09 Change (pre
              State                 wage level       2009 wage       2009 wage     post Jan. 19)  Jan 19 vs post
                                                       level           level            chg          Jan. 19)
----------------------------------------------------------------------------------------------------------------
AK..............................           $8.00           $8.00           $8.25           $0.25           $0.25
AL..............................            8.52            8.53            7.39           -1.12           -1.13
AR..............................            8.25            8.44            7.42           -0.83           -1.03
AZ..............................            8.55            8.73            8.09           -0.46           -0.64
CA..............................            9.44            9.29            8.65           -0.80           -0.64
CO..............................            8.93            9.45            8.15           -0.78           -1.30
CT..............................            9.63            9.60            9.22           -0.40           -0.38
DE..............................           12.67            9.70           13.78            1.11            4.08
FL..............................            8.62            8.82            7.45           -1.17           -1.37
GA..............................            8.52            8.53            7.31           -1.22           -1.23
HI..............................           10.83           10.86           10.90            0.08            0.04
IA..............................           10.42           10.39            7.46           -2.96           -2.93
ID..............................            8.76            8.77            7.95           -0.81           -0.83
IL..............................           10.09            9.90            7.76           -2.33           -2.14
IN..............................            9.90            9.90            8.53           -1.37           -1.37
KS..............................            9.64            9.85            9.78            0.14           -0.07
KY..............................            8.87            9.13            7.38           -1.49           -1.75
LA..............................            8.19            8.47            8.14           -0.05           -0.33
MA..............................            9.66            9.63            8.30           -1.36           -1.33
MD..............................            9.42            9.70            9.07           -0.34           -0.63
ME..............................            9.68            9.70            9.48           -0.20           -0.22
MI..............................            9.90           10.02            8.24           -1.66           -1.78
MN..............................            9.85           10.03           10.03            0.18            0.00
MO..............................           10.14           10.44            9.56           -0.58           -0.89
MS..............................            8.16            8.45            7.51           -0.64           -0.94
MT..............................            8.78            8.75            9.29            0.51            0.54
NC..............................            8.91            8.88            7.40           -1.51           -1.48
ND..............................            9.66           10.89           11.61            1.96            0.73
NE..............................            9.66            9.90            9.54           -0.11           -0.36
NH..............................            9.67            9.70            8.39           -1.28           -1.31
NJ..............................            9.34            9.76            8.48           -0.86           -1.28
NM..............................            8.59            9.00            8.74            0.15           -0.26
NV..............................            9.28            9.42            8.98           -0.30           -0.44
NY..............................            9.64            9.72            9.13           -0.51           -0.59
OH..............................            9.92            9.96            9.26           -0.66           -0.70
OK..............................            9.06            9.13            8.94           -0.12           -0.19
OR..............................            9.93  ..............            9.89           -0.04  ..............
PA..............................            9.49            9.70            8.72           -0.77           -0.98
RI..............................            9.63           10.00  ..............  ..............  ..............
SC..............................            8.51            8.53            7.26           -1.25           -1.27
SD..............................            9.68            9.94           10.11            0.43            0.17
TN..............................            8.89            9.10            7.44           -1.45           -1.65
TX..............................            8.83            9.03            8.75           -0.08           -0.28
UT..............................            9.04            9.45            8.85           -0.19           -0.60
VA..............................            8.95            8.87            7.55           -1.41           -1.32
VT..............................            9.66  ..............            9.62           -0.04  ..............
WA..............................            9.93            9.94            8.74           -1.19           -1.20
WI..............................            9.78           10.04            8.44           -1.34           -1.60
WV..............................            8.65            9.13            7.39           -1.26           -1.74
WY..............................            8.73            9.01            8.45           -0.28           -0.56
Nationwide......................            9.00            9.04            8.02           -0.98           -1.01
----------------------------------------------------------------------------------------------------------------
Note: Empty cells indicate no applications.


[[Page 6898]]

    Because of the proportionate size of the decrease and the 
widespread extent of the decreases, the Department has concluded that 
the continued use of the OES method to calculate the H-2A AEWR entails 
a significant risk that U.S. workers may in the future experience wage 
depression as a result of unchecked expansion of the demand for foreign 
workers.
    Some employers and employer association commenters suggested that 
the AEWR computed on the basis of OES data is a better reflection of 
actual agricultural labor market conditions than the average wage based 
on the FLS. This view is incorrect and reflects a misunderstanding of 
the role of the AEWR. As already noted, the AEWR is most relevant in 
cases in which the local prevailing wage is lower than the wage 
considered over a larger geographic area or over a broader definition 
of occupation, crop, and/or activity. In this regard, the OES data are 
inadequate. The OES data does not include any survey observations of 
wages paid to workers who are employed directly by farm operators. It 
only includes data from employers who operate farm support operations, 
including contract suppliers of temporary farm labor. Workers in 
agricultural crop and livestock occupations who are employed by support 
services establishments account for about one-third of total hired 
agricultural crop and livestock employment. The predominant majority 
are directly hired by farmers.
    In the 2008 Final Rule, the Department recognized this deficiency 
in the OES data, but assumed that earnings in the support services 
sector reported in the OES data would be equivalent to, and a 
reasonable proxy for, wages paid by farm employers. Subsequent analysis 
of empirical data by the Department has shown that this assumption was 
seriously flawed. The agricultural occupations of workers employed in 
the agricultural support services sector (the only sector directly 
represented in the OES survey results) differ significantly from the 
vast majority of the agricultural occupations performed by workers who 
are employed directly by farm establishments. These differences range 
across characteristics that significantly affect potential productivity 
and earnings. Based on data from the Annual Social and Economic 
Supplement (also known as the March supplement) of the U.S. Census 
Bureau's CPS describing annual earnings, weeks worked, and weekly hours 
worked for persons with any work experience during calendar years 2004 
through 2008, hired agricultural laborers employed by agriculture 
support services establishments were comprised of 59 percent non-
citizens and 41 percent U.S. citizens. In contrast, just 37 percent of 
similar workers directly employed by farm establishments were non-
citizens and 63 percent were U.S. citizens. While the legal status of 
non-citizen workers in the sample is unknown, it has been generally 
observed across a wide range of industries and occupations that non-
citizens tend to earn lower wages than do U.S. citizens. For example, 
the CPS data we analyzed showed that across all occupations and 
industries, mean hourly earnings of non-citizens in the 2004-2008 
period were 28 percent less than mean hourly earnings of citizens.
    Educational attainment is also an important determinant of 
earnings. Hired agricultural workers tend to have lower-than-average 
educational attainment compared to the general workforce, but the 
differences between hired agricultural workers employed by agriculture 
service sector establishments compared to those employed directly by 
farm establishments are striking and reflect in part the higher share 
of non-citizens found in the agriculture service establishment compared 
to the farm establishments. For agriculture service establishments, 60 
percent of workers had completed no more than the 9th grade, compared 
to 41 percent of hired agriculture workers employed directly by farm 
establishments. Over 26 percent of workers employed directly by farm 
establishments had a high school diploma, compared to 19 percent of 
those employed by agriculture service establishments, and 15 percent of 
hired farm laborers employed directly by farm establishments had some 
post-secondary education, compared to only 6 percent for employees of 
agriculture support service establishments. These differences in 
characteristics of hired agricultural workers employed by agricultural 
support service establishments (the only category of agriculture 
establishments reflected in the OES wage data) compared to workers 
employed directly by farm establishments helps to explain the large 
differences in wages between the two sectors. On average over the 2004-
2008 period, persons who were employed directly by farm establishments 
earned on average $10.87 per hour (median $8.33 per hour), compared to 
a mean of $9.32 per hour (median $7.15 per hour) for those employed by 
support service establishments. Whether in terms of mean or median, 
workers employed in the support services sector earned 14 percent less. 
All data are in real 2009 dollar equivalent terms.
    The Department's error in the 2008 Final Rule of assuming that the 
OES data for workers employed by agricultural support services 
establishments would be a reasonable proxy for wages paid by farm 
establishments was compounded by a second erroneous assumption. In the 
2008 Final Rule, the Department added the option for applicants for H-
2A workers to specify a skill level for the job opportunity. These 
skill levels correspond to points on the percentile distributions of 
wages below and above the OES median for each occupation. The 
Department assumed that employers would seek a variety of skill levels 
in occupations for which workers were sought--some higher and some 
lower than the occupational median, but that the overall result would 
likely be balanced and average to the median. The FY 2009 
implementation experience revealed a significantly different outcome: 
73 percent of applicants for H-2A workers specified the lowest 
available skill level--corresponding to the wage earned by the lowest 
paid 16 percent of observations in the OES data. Only 8 percent of 
applicants specified a skill level that translated into a wage above 
the OES median. This bias toward low skill job specifications 
compounded the downward wage bias created by the omission of farm 
establishment observations from the OES data. Both the shift to the OES 
data source and the use of skill levels contributed to the downward 
bias in the AEWR-based wage determinations for the applications in 
which the wage determination was made using the rule for applications 
received on or after January 17, 2009.
    The FLS is the only annually available data source that actually 
uses information sourced directly from farmers. This is a strong 
advantage of the FLS as the AEWR data source compared to all other 
alternatives. The OES data do not include observations of wages paid by 
farm establishments. Other potential data sources that do include 
earnings information for hired farm workers employed by farming 
establishments include the annual CPS work experience supplement (the 
Annual Social and Economic Conditions (ASEC) supplement), the CPS 
monthly (outgoing rotation) earner study supplement and the Census 
Bureau's American Community Survey (ACS). However, the CPS data (both 
the ASEC supplement and the monthly earner supplement) contain too few

[[Page 6899]]

observations for disaggregation of estimates to State or significant 
multistate regions; the analysis of CPS work experience data for this 
rulemaking entailed pooling of 5 years of data to obtain sufficient 
observations. The sample of the CPS is designed to reliably produce 
total annual labor force characteristics on a State-by-State basis. 
State (and, to a greater extent, substate) sub-samples of the CPS 
generally cannot support reliable estimation on a monthly basis for the 
relatively small category of agricultural employment. Because of a 
concern about the statistical significance for tabulations covering 
less than a full calendar year, the BLS does not regard CPS statewide 
tabulations covering less than a full calendar year as fit for 
publication and cannot account for seasonal fluctuations in the sub-
national monthly CPS tabulations. Furthermore, the ACS data entail an 
unacceptable time lag of over a year and do not readily allow for 
calculation of hourly earnings. On balance, the USDA FLS is the best 
source available.
    Many comments by farm organizations, individual farmers, and 
elected officials expressed concerns that wages vary across the U.S. by 
geographic location, by specific agricultural occupation, and by level 
of skill. Therefore, these commenters argued that an AEWR that does not 
take into account these variables will adversely affect U.S. workers. 
Accordingly, a farm association proposed that DOL continue using the 
BLS data to determine the AEWR because it gives a more accurate picture 
of market-based wages actually being paid for agricultural jobs being 
performed at various skill levels.
    The Department does not agree with the assertion that the OES data 
provide a more accurate picture of market-based wages. In addition to 
the fact that the FLS and not the OES includes data about what farm 
establishments actually pay for hired labor (as discussed previously), 
the commenters' focus on localized labor market conditions overlooks 
the important role of the FLS's broader geographic and occupational 
coverage in protecting domestic workers from wage depression or 
stagnation resulting from an influx of foreign workers into the context 
of small, isolated geographic areas or niche crop markets. The FLS 
sample is distributed across the entire country, with the geographic 
detail covering 15 multistate regions and 3 stand-alone States. This 
broader geographic scope makes the FLS more consistent with both the 
nature of agricultural employment and the statutory intent of the H-2A 
program. Because of the seasonal nature of agricultural work, much of 
the labor force continues to follow a migratory pattern of employment 
that often encompasses large regions of the country. Congress 
recognized this unique characteristic of the agricultural labor market 
with its statutory requirement that employers recruit for labor in 
multistate regions as part of their labor market before receiving a 
labor certification for employing H-2A workers.
    A related consideration is the potential inefficiency of labor 
market information transmission systems. By providing a prevailing wage 
defined over a broader geographic area and over a broader occupational 
span (all field and livestock workers, rather than a narrow crop or job 
description), use of the FLS provides a check on the expansion of 
foreign labor importation to prevent undermining job opportunities and 
wages for domestic farm workers. Using the FLS average wage derived 
from data across a relatively broad geographic and occupational span 
reflects the view that farm labor is mobile across relatively wide 
areas and farm laborers' skills are adaptable across a relatively wide 
range of crop or livestock activities and occupations. The use of the 
FLS wage average as an AEWR appropriately limits the importation of 
foreign labor to cases where the value of the labor need is more than 
marginal; the relatively higher willingness to pay signaled by farmers 
who do import foreign workers temporarily under these circumstances 
(because domestic labor was not immediately forthcoming) may serve to 
mobilize domestic farm labor in neighboring counties and States to 
enter the subject labor market over the longer term and obviate the 
need to rely on importation of foreign labor on an ongoing basis. In 
this way, the AEWR based on the FLS data source balances the needs of 
both farmers and domestic farm workers. The 2008 Final Rule did not 
sufficiently account for these labor market attributes and the 
Department believes that, by returning to an AEWR based on the FLS' 
regionally-based methodology, that inconsistency will be remedied.
    The employer and employer association commenters that argued that 
precise tailoring of H-2A wages to local labor market conditions is 
critical to preventing an adverse effect on wages of U.S. workers may 
not fully understand the dynamics of farm worker labor markets and 
labor market information flows described above. Furthermore, those who 
argue that it is essential that the AEWR have as great a degree of 
geographic refinement as possible, reflecting market conditions for 
each locality across the country, miss the essential point that the 
importation of foreign labor should not serve as an obstacle to normal 
market adjustment processes and labor mobility in the broader regional 
market perspective. We have carefully considered the arguments of some 
commenters that 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. After due consideration, 
we conclude that a broadly-based AEWR protects the long-term well-being 
of domestic workers in terms of wages and access to job opportunities 
and it also benefits farmers in the long-run by preserving market 
adjustment processes that encourage efficient allocation of resources, 
innovation, and adaptation to changing competitive circumstances.
    DOL consistently has set statewide AEWRs rather than substate or 
crop-specific AEWRs because of the absence of data from which to 
measure wage depression at the local level. To the extent that wage 
depression does exist on a concentrated local basis, the USDA's 
aggregation of wage data at broad regional levels immunizes the survey 
from the effects of any localized wage depression that might exist.
    Many employer and association commenters expressed concern that an 
appropriate AEWR that reflects market realities and labor costs should 
include wage data relating to the specific occupation and level of 
skill or experience required for a position.
    Several farm organizations and individual farmers expressed 
concerns that the FLS produces an artificially high wage rate, in part 
because it includes many occupations which are not related to the jobs 
H-2A workers are hired to perform. Commenters also argued that the 
Department's reliance on USDA FLS data does not provide refined data by 
skill level or experience, occupations, or geographic locales of 
workers typically sought by agricultural employers in the H-2A program. 
Commenters also pointed out that the USDA FLS population includes not 
only the lower-skilled crop field workers typically sought by 
agricultural employers who turn to the H-2A program for labor, but also 
inspectors, animal breeding technicians, and trained animal handlers--
all occupations that provide a poor basis for determining H-2A wages 
because they are rarely, if ever, filled by H-2A workers. In response 
to these comments,

[[Page 6900]]

we examined the records of FY 2008 and FY 2009 H-2A applications and 
found numerous examples of requests for foreign workers to fill jobs as 
inspectors, animal breeding technicians (inseminators), and other 
specialized occupations. For example, the FY 2009 applications included 
requests for 12 equine trainers and breeding specialists, 38 
agricultural product inspectors and graders, 5 non-equine animal 
trainers, 43 operating engineers, 312 beekeepers, 25 artificial 
inseminators, 23 logging crane operators, 18 farm equipment mechanics 
and 14 reptile specialists. Therefore, this objection to the use of FLS 
data is unfounded.
    The OES occupational detail is a unique feature of the survey. One 
State agriculture department noted that this approach allows local 
farmers and ranchers to reimburse immigrant workers with fair, market-
based wages specific to the location of employment. It is also in part 
the reason that the survey is used in other foreign worker programs 
administered by the Department, including the H-1B and H-2B programs.
    The Department believes that the BLS OES wage survey suffers from 
higher error rates than the USDA FLS, and is a less reliable source of 
data about farm workers' wage rates. One study of OES data found that 
employment in some of the metro and non-metro areas is very small, 
increasing relative standards errors. For example, for the occupation 
of farm workers and laborers, crop, nursery, and greenhouse employment 
numbers may be very small for some States--see Kentucky (200) or West 
Virginia (190) as compared to California (146,220). As expected, the 
subsequent relative standard errors for States with few observations is 
relatively high--meaning that the reliability of the wage statistics is 
relatively low, which result in data that are not precisely measured. 
For example, the 90 percent confidence interval for the $8.28 hourly 
mean wage for California is from $8.20 to $8.36 as compared to the 90 
percent confidence interval for the $11.52 hourly mean wage for Montana 
which is from $10.24 to $12.80. Furthermore, a SWA noted that the OES 
survey program used in the 2008 Final Rule is a complex, confusing 
system resulting in multiple H-2A wage rates for various geographical 
areas within a State.
    Several farmers pointed out that another unique feature of OES is 
that it offers the ability to establish four wage level benchmarks 
commonly associated with the concepts of experience, skill, 
responsibility, and difficulty variations within each occupation. The 
four skill levels for each occupation afford the employer and the 
Department the opportunity to more closely associate the level of skill 
required for the job opportunity to the relevant OES job category and, 
in turn, the appropriate AEWR.
    The Department has carefully considered these comments and does not 
find the notion of meaningful skill differences among most agricultural 
workers to be generally credible. The perception expressed by some 
commenters that the OES data actually differentiates workers by skill 
is simply false. The OES wage levels are not determined by surveying 
the actual skill level of workers, but rather by applying an arithmetic 
formula. These are arbitrary percent cut-offs of the distribution of 
earnings within the occupations. Therefore, the associated occupational 
skill levels are not well defined, and H-2A wage differences do not 
accurately reflect meaningful differences in skills or job complexity.
    Moreover, the Department finds that the notion of meaningful skill 
differences among agricultural workers is unfounded. Most of the 
occupations and activities relevant to the H-2A program involve skills 
that are readily learned in a very short time on the job,\11\ skills 
peak quickly, rather than increasing with long-term experience, and 
skills related to one crop or activity are readily transferred to other 
crops or activities.
---------------------------------------------------------------------------

    \11\ According to the Employment Projection Program at BLS, for 
crop, nursery, and greenhouse farm workers and laborers, the most 
significant source of post-secondary education or training is short-
term on-the-job training. See http://www.bls.gov/opub/mlr/2007/11/art5full.pdf.
---------------------------------------------------------------------------

    The preamble to the 2008 Final Rule states that the Department is 
statutorily obligated to use the four-tier wage system. Although the 
relevant statute is not clear on its face, the Department has now 
concluded that this statement is an incorrect reading of the statute. 
The legislation establishing the four-tier system was part of the 
Consolidated Appropriations Act 2005, Pub. L. 108-447 and is contained 
in a section titled the L-1 Visa and H-1B Visa Reform Act. The specific 
part of that Act describing the four-tier system, sec. 423, is titled 
H-1B Prevailing Wage Level. In addition, the legislation specifically 
identifies the visa categories to which it applies and H-2A visas are 
not included in the list. While the Department had the discretion to 
use the four-tier system in the H-2A program if the facts supported 
that outcome, it is simply wrong to state that the Department is 
statutorily required to use it. Moreover, for the reasons stated above, 
the Department has concluded that the OES four-tier wage system is 
inappropriate for use in the H-2A program.
(i) Survey Frequency and Data Availability
    The FLS and publication schedule provide timely data for purposes 
of calculating the relevant State AEWRs. Specifically, the FLS is 
routinely available and published within 1 month of the survey date. 
The quarterly gathering of data ensures that the annual averages are 
more accurately reflective of the fluctuations of farm labor patterns, 
which are by definition seasonal and thus more subject to fluctuation 
than other occupations. The scope and frequency of the survey means 
that all crops and activities now covered by the H-2A program will be 
included in the survey data and that peak work periods also will be 
covered. This is in contrast to the OES data, which are published 1 
year after collection of the most recent data panel. Furthermore, OES 
data are only collected in May and November, which are not times of 
peak work for many crops and activities covered by H-2A.
(ii) Accuracy of Data
    The Department also weighed concerns over the accuracy of AEWRs 
based on the USDA FLS because the FLS is not based on reported hourly 
wage rates. Instead, the 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 information, the survey 
constructs annual average earnings for the broad general categories of 
field workers and livestock workers as the ratio of gross wages to 
hours worked. The hourly AEWR thus is not based 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.
    The USDA FLS asks employers about their workers' total earnings and 
total hours worked to derive average hourly rates. In OES, 
establishments report the number of workers in a certain occupation 
earning within each of 12 wage intervals. To calculate the mean hourly 
wage of each occupation, total weighted hourly wages are summed across 
all wage intervals and divided by the occupation's weighted survey 
employment. Furthermore, the mean hourly wage rate for all workers in 
any given wage interval is not computed using grouped data collected by 
the OES survey. Rather, the mean wage for each interval is based on 
occupational wage

[[Page 6901]]

data collected by the BLS Office of Compensation and Working Conditions 
for the National Compensation Survey (NCS). Although smaller than the 
OES in terms of sample size, the NCS program, unlike OES, collects 
individual wage data. However, agriculture establishments are excluded 
from the scope of the NCS. Farm worker data is derived from workers 
employed through companies listing themselves as nonagricultural 
establishments. Therefore, the Department believes that the FLS is 
superior to the OES for purposes of computing the H-2A AEWR.
(iii) The Department's Decision To Return to the NASS FLS Methodology
    Even if one accepted the argument that the geography, occupational, 
and other attributes of data available from the OES are desirable 
features, the Department finds that none of these individually or 
together would offset the disadvantage that the OES does not gather 
data directly from farmers but from non-farm establishments whose 
operations support farmer production, rather than engage in farm 
production. For example, the OES results for the farm workers and 
laborers, crop, nursery and greenhouse occupation category reflects 
only the subset of farm workers and laborers employed by agricultural 
support services employers--companies who provide agricultural labor 
supply to farmers on a contract basis. The survey does not include data 
on the majority of farm workers who are directly hired by farm 
operators. Because the data demonstrate that workers employed by 
support services establishments are less educated and less likely to be 
U.S. citizens than employees of farm establishments, and therefore 
typically have substantially lower wage rates, the OES survey is not an 
appropriate data source for ensuring that the importation of guest 
workers does not adversely affect U.S. workers.
    For this and all of the other reasons discussed, the Department 
will return to its 1987 Rule methodology for the formulation of the 
AEWR. The Department will annually publish for each State within a 
given geographical region the AEWR based on the average combined hourly 
wage for field and livestock workers for the four quarters of the prior 
calendar year from the USDA's NASS FLS.
c. Collective Bargaining Wage
    The Department did not propose adding the term collective 
bargaining wage in the provision regarding the required wage to be 
offered. Several commenters, however, suggested that the Department 
address the use of collective bargaining wages in required wages. Some 
commenters suggested that the collective bargaining wage rate be cited 
as the first wage to be imposed, looking to the highest of the AEWR, 
prevailing, or minimum wages only in the absence of a collective 
bargaining wage rate, in order to recognize that wages paid under 
collective bargaining agreements between a union and an employer do not 
adversely affect the wages of workers similarly employed. Others 
suggested the Department recognize wages set by collective bargaining 
agreements as prevailing, in the alternative or as an exception to the 
AEWR.
    After consideration, the Department has decided to amend the 
provision to add the term an agreed-upon collective bargaining wage to 
the required wage rate options for employers. This amendment requires 
employers to use a collective bargaining wage if it is the highest 
wage, thus avoiding the potential payment of a collective bargaining 
wage that is less than the other wages. At the same time, it 
acknowledges the role of the collectively bargained wage as a potential 
legitimate wage.
d. Increase in Prevailing Wage During the Contract Period
    In the NPRM, the Department proposed that if the prevailing wage 
rate is adjusted during the work contract and the new adjusted wage is 
higher than the required wage at the time of certification, the 
employer must pay that higher wage upon notification by the Department. 
We are retaining this requirement with modifications based on (a) 
above.
    The Department received several comments in favor of this proposal. 
One commenter expressed support for the proposed increase but suggested 
the Department further amend the requirement to include within the list 
of applicable wages the hourly wage or piece rate paid to the 
employer's non-H-2A workers in the current or immediately preceding 
season for comparable employment. The Department declines to adopt this 
recommended change as not necessary to fulfill the statutory 
requirement to ensure that U.S. workers are not adversely affected.
    Some commenters opposed the proposed adjustment, contending in one 
case that the proposal is contrary to current practice in other 
temporary programs, and that the Department provided inadequate 
justification for the change. These commenters also indicated that the 
application in mid-season of any increase would be detrimental to 
employers who have already budgeted for the season based on wages in 
effect at the time of recruitment.
    Employers participating in the H-2A program have historically been 
required to offer and pay the highest of the AEWR, the prevailing wage 
or the Federal or State minimum wage at the time the work is performed. 
The wage adjustment under this provision is intended to ensure that the 
workers in the program are consistently receiving at least the highest 
of the applicable wages. As explained above, the wage adjustment also 
ensures that the wages reflect the wage in the area of intended 
employment in those relatively rare cases when that wage exceeds the 
AEWR. Accordingly, this adjustment, as stated in the Final Rule, will 
only affect a limited number of employers whose OFLC-approved offered 
wage rate falls below the permissible floor once the new wage rates are 
issued.
    The Department recognizes that these wage adjustments may alter 
employer budgets for the season. However, the change is intended to 
ensure workers are paid throughout the life of their contracts at an 
appropriate wage. Therefore, employers are encouraged to include into 
their contingency planning certain flexibility to account for any 
possible wage adjustments.
6. Section 655.121 Job Orders
a. Area of Intended Employment
(i). Submission of the Job Order to the SWA
    The Department proposed to continue the longstanding practice of 
requiring employers to submit job orders to the SWA serving the area of 
intended employment for intrastate clearance in order to test the local 
labor market and determine the availability of U.S. workers before 
filing an Application. The Department further proposed that if the job 
opportunity is located in more than one State within the same area of 
intended employment, the employer may submit a job order to any one of 
the SWAs having jurisdiction over the anticipated worksites to place 
the job order. The Final Rule also requires that the SWA must forward 
the job order to the companion SWAs to have it placed in all locations 
simultaneously.
    The Department received several comments on this proposal. A farm 
worker advocacy association commented that the filing of the job order 
alone and the elimination of the contemporaneous filing of the 
Application inappropriately reduces the oversight by the OFLC during 
the early

[[Page 6902]]

stages of the H-2A process. This commenter was concerned about the 
sufficiency of OFLC oversight during the pre-certification period when 
OFLC staff previously used this period to address serious deficiencies 
in the Application that affected material terms of employment and 
recruitment, including job terms and conditions as publicized to both 
U.S. and foreign workers.
    Several commenters supported the Department's proposed regulation. 
One noted that it would reintroduce much-needed checks and balances 
into the process. Others indicated that the submission of the job order 
and initiation of recruitment prior to certification would increase the 
potential for hiring local workers. They also suggested that 
recruitment of U.S. workers may satisfy the need for agricultural labor 
and eliminate the need for a labor certification. As noted in the NPRM, 
the INA requires employers to engage in recruitment through the job 
clearance system, administered by the SWAs. See 8 U.S.C. 1188(b)(4); 
see also 29 U.S.C. 49 et seq., and 20 CFR part 653, subpart F. 
Accordingly, the Final Rule retains the language of the NPRM.
(ii). Submission 75-60 Days Prior to Date of Need
    The Department proposed to retain the 2008 Final Rule requirement 
that the employer submit the job order to the SWA no more than 75 
calendar days and no fewer than 60 calendar days before the date of 
need. The Department received several comments about this proposal. The 
Department received two comments from State agencies supporting the 
longer recruitment timeframe, one noting that the timeframe will permit 
the SWA to review the proposed terms and conditions, assure that the 
wages offered meet the required wage, and commence required recruitment 
by placing the job order into intrastate clearance.
    Most commenters, however, opposed the 75 to 60 day recruitment 
period. Many of them advocated a return to the 45-day posting of the 
job order, reasoning that it provides a more appropriate timeframe for 
employers to assess the local job market as well as to anticipate labor 
demands of the coming crop. Other commenters explained that growers, 
particularly small and mid-sized growers, must account for a variety of 
factors in order to decide what crops to plant and the amount of 
acreage, and that they do not make those decisions 75 to 60 days in 
advance. These commenters also expressed the concern that very few 
local agricultural workers commit to a job 75 to 60 days in advance and 
many of those who do commit often do not report for work on the date of 
need. One of these commenters expressed concern that the longer 
recruitment period would penalize employers because early hires may no 
longer be available at the time the work begins, leaving the employer 
with a labor shortage.
    A few commenters echoed the same concerns and argued for a shorter 
timeframe. These commenters criticized the Department's rationale for 
extending the recruitment period. The same commenters referenced the 
Department's statements in the NPRM indicating that the use of the H-2A 
program since the implementation of the 2008 Final Rule has decreased, 
arguing that there should be less need for a longer timeframe due to 
fewer demands on the Department's resources.
    Many commenters advocated for the return to the 45-day timeframe 
because the shorter recruitment period would be counterbalanced by the 
50 percent rule that tends to provide longer exposure to H-2A job 
opportunities for U.S. workers. One commenter argued that the longer 
recruitment period was more acceptable when it was combined with a 
shorter 30-day referral period. Another commenter, a State farm bureau, 
also opposed the proposal, noting that the 15 to 30 days' increase in 
pre-employment recruiting was initially implemented by the Department 
in exchange for the elimination of the 50 percent rule and reduction in 
the referral period to 30 days after the start date.
    One commenter noted that the Department presented no evidence 
indicating that referrals made further from the date of need are more 
numerous than those closer to the date of need. Another referred to 
Congressional testimony from a former association executive asserting 
that in his experience recruiting closer to the date of need produces 
more applicants and that prospective job applicants in these industries 
do not look for work 120 or even 45 days in advance.
    A law firm representing growers urged the Department to allow 
growers to file their proposed job orders on the shortest, most 
administratively feasible timeframe. It also noted that the 
Department's policies should be designed to allow flexibility and 
entrepreneurial expansion and development of agricultural production 
and work opportunities, and not restrict the growth of job 
opportunities or agricultural products.
    Some commenters cited the statement in the NPRM that the Department 
approves most applications by the 27th to 29th day before the date of 
need as evidence that the current system of filing on the 45th day 
before the date of need and certifying by the 30th day before the date 
of need is working and need not be changed. The Department is bound by 
the statute to make a final determination on each temporary 
agricultural labor certification by the 30th day before the date of 
need. The fact that the Department is generally able to meet the 
statutory deadline does not mean that the Department is able to certify 
based on a robust record of the employer's recruitment efforts. As 
discussed above, the extension of the recruitment period will enable 
the Department to make its certification with better information on 
recruitment.
    Based on its long program experience, the Department believes that 
beginning recruitment 45 days before the date of need is insufficient 
because it provides the Department with only 15 days to assess the 
availability of U.S. workers in the relevant job market and to permit 
them sufficient time to seek and be hired for these jobs. (In fact, 
since it must first accept the Application and authorize recruitment, 
the Department has traditionally had only about a week to review 
recruitment efforts.) The Department has determined that the 75 to 60 
day timeframe most adequately balances the Department's statutory duty 
to ensure that U.S. workers have access to meaningful employment 
opportunities (and are not adversely affected by the employment of 
foreign workers), with the agricultural employers' legitimate need to 
meet labor demands. In response to the commenter's argument that 
unpredictable factors often affect an employer's labor needs, the 
Department notes that its Final Rule retains a provision that permits 
an employer to amend its Application prior to certification to increase 
the number of workers needed. Giving growers the ability to request 
additional workers is intended to provide flexibility and account for 
the contingencies affecting agricultural production. Furthermore, the 
Department recognizes that some local job applicants who accept an 
offer of employment in agriculture, as in all other industries, on 
occasion fail to report for work as agreed. Employers in those 
circumstances must temporarily re-distribute the workload while seeking 
to hire a replacement. We reemphasize that while the Final Rule permits 
the submission of the job order as much as 75 days before the start 
date, employers are only required to submit their job orders 60 days 
prior to the start date. The Department believes that this

[[Page 6903]]

timeframe enhances the ability of domestic workers to access these 
employment opportunities.
    As discussed throughout this Final Rule, the Department's primary 
concern with respect to its statutory mandate is restoring necessary 
protections to U.S. and foreign workers while maintaining a fair and 
reliable process for addressing legitimate employer needs. As adopted, 
the 75 to 60 day timeframe is necessary to ensure the orderly and 
timely administration of the program and provides the necessary 
flexibility for the Department, the SWAs and employers to meet the 
program's statutory requirements and objectives. The demand on 
Departmental resources, although relevant, is not a decisive factor in 
implementing a workable timeframe.
    The Department has determined that in addition to providing U.S. 
workers with longer exposure to H-2A job opportunities through the 
reinstatement of the 50 percent rule, the longer pre-filing timeframe 
will ensure that the job order meets all applicable programmatic 
requirements. The Department has determined that both a longer 
recruitment period and a longer referral period are necessary to meet 
the statutory and policy objectives of the H-2A program. While there 
had been some discussion about balancing the initiation of recruitment 
with the termination of the employer's obligation to hire domestic 
applicants, the two issues are unrelated and deal with different 
aspects of recruitment. The need to start the recruitment process 
slightly earlier will also assist the Department to more effectively 
meet our obligation to make a certification decision 30 days before the 
start date. This is unrelated to the need to ensure the continued 
availability of these positions to U.S. workers through post-
certification hiring requirements. We have discussed above why 
recruitment needs to start at least 60 days before the start date. We 
discuss later in this preamble why the Department has determined that 
the post-certification hiring is best met through the 50 percent rule.
    Having considered the issues raised by commenters, the Department 
has decided to keep the provision in the Final Rule. Therefore, the 
Department has determined that the 75 to 60 day timeframe provides 
adequate time to resolve any pre-filing issues in a way that will not 
negatively impact the employer's ability to timely meet its labor 
needs.
b. SWA Review
    In the NPRM the Department proposed that SWAs review the contents 
of the job order and address any noted deficiencies. As noted above, it 
also provided for the involvement of the Certifying Officer (CO) to 
resolve any issues regarding the placement of job orders in the 
intrastate clearance system. The Department received a number of 
comments addressing this provision. Many of the commenters expressed 
concern over the broad discretion granted to the SWAs to determine the 
sufficiency of the job order, and the lack of CO involvement to resolve 
outstanding issues prior to the filing of the Application. These 
commenters proposed to limit the SWA review to a specified timeframe.
    A few expressed support for the retention by the OFLC of ultimate 
decision-making authority regarding the sufficiency of job orders but 
expressed concern over what they deemed an inordinate level of 
decision-making authority in the hands of the SWAs. These commenters 
were primarily concerned with the resulting lack of uniformity in 
adjudication and enforcement due to differences between the SWAs in 
rule interpretation and the likelihood that disparate adjudications 
will result in confusion for both employers and workers.
    One commenter stated that having multiple points of acceptance will 
cause confusion and disruption in program use for large and small 
growers because States may differ from one another in their 
interpretations of the statutory and regulatory requirements and some 
are not even consistent internally. In addition, the commenter was 
concerned about the potential for inconsistency between what the SWA 
accepts at the pre-filing stage and the later determination by the CO 
regarding the sufficiency of the job order.
    Another commenter indicated support for the reduced role of the 
SWAs in the H-2A labor certification process under the 2008 Final Rule. 
This commenter contended that most of the delay in processing of H-2A 
visas has been caused by SWA staff, who it asserted have been slow to 
perform their duties under the program. This commenter proposed that 
the Department limit the role of the SWAs to the inspection of worker 
housing and workplace conditions after approval.
    A large growers' association expressed dissatisfaction with the 
process for placing job orders with the SWA. It asserted that since the 
filing of the Application is predicated on the acceptance by the SWA, 
the Department failed to provide a meaningful relief mechanism for 
employers to address issues with the SWAs imposing unwarranted 
requirements.
    The Department expressed above its belief that SWAs remain, as they 
have always been, the arbiters of the acceptability of job orders. The 
Department also recognizes the need for employers to have an acceptable 
and timely process by which orders are fully evaluated and issues 
addressed with each SWA. Therefore, the Department has decided to amend 
its procedures for SWA acceptance of the H-2A job order to allow for a 
timely process of the acceptance or rejection of job orders.
    Under the INA, the Department has the ultimate responsibility for 
all labor certification determinations. The Final Rule does not 
abrogate that authority. However, the Department has determined that 
the involvement of the SWAs at the outset of mandatory recruitment will 
benefit the process because, as discussed above, SWAs have unique 
expertise in assisting employers in preparing job orders and making 
initial determinations regarding their sufficiency. In addition, SWAs 
are experienced in providing services to farm workers and helping them 
navigate the employment process. In order to balance our obligations 
under the INA with involvement of the SWAs in the process, the Final 
Rule creates a process so that disagreements between the employer and 
the SWA about the contents of the job order can be expeditiously 
resolved. This provision also ensures uniformity of determinations and 
places the ultimate decision regarding the sufficiency of a job order 
with the CO.
    The Department's Final Rule therefore adopts a process in which the 
SWA must either accept or reject the job order. After considering 
comments advocating that the Final Rule include a timeline, the 
Department has determined that 7 calendar days, rather than the 5 days 
proposed by some commenters, provides the SWA with adequate time to 
make a determination on even the most substantial job orders. In the 
event the SWA and the employer cannot reach a mutually agreeable 
solution regarding the job order in the timeframe outlined in the 
revised regulation, the SWA must reject the job order by written notice 
specifying the reasons for rejection, i.e. the deficiencies in the job 
order, to the employer, and the employer must respond. The Final Rule 
adds the requirement that once the employer responds to the SWA 
notification of deficiencies, the SWA must respond to the employer's 
response within 3

[[Page 6904]]

calendar days. If the job order deficiencies still remain unresolved, 
the Department's regulations permit the employer to use the emergency 
filing procedures to file its Application (and the job order) directly 
with the National Processing Center (NPC); such circumstances will 
constitute the good cause contemplated by that provision. The CO will 
then follow the procedures for accepting or rejecting the job order as 
outlined in this revised provision.
    The Department's regulations provide for the involvement of the CO 
in instances where issues with the job order are not resolved between 
the employer and the SWA. As explained above, the Department's Final 
Rule adopts a timeframe under which the SWA must either accept or 
reject the job order within 7 calendar days and respond within 3 
calendar days where the employer responds to the notification of 
deficiencies. If the deficiencies remain unresolved, the Final Rule 
provides for the filing of Applications on an emergency basis where the 
employer and the SWA cannot reach a timely resolution regarding the 
placement of the job order.
    The Department does not anticipate significant discrepancies 
between SWA determinations in various States. In our experience, 
differences in SWA processing of job orders are often attributable to 
the differences in experience with the local industries and labor 
markets, and the resulting distinctions in treatment are legitimate 
outgrowths of those differences. The Department is relying on the SWAs 
to apply their broad, historical experience in administering our 
nation's public workforce system and understanding of the practical 
application of program requirements to the process of clearing job 
orders. SWAs process job orders as part of their essential functions 
and have processed H-2 and H-2A job orders since the inception of the 
program. Employers are encouraged to work with the SWAs early in the 
process, including on crafting the requirements of job orders, to 
ensure that their job orders meet all requirements, and are timely 
accepted for intrastate clearance. In addition, the Department 
anticipates that CO determinations about job orders will in most 
instances agree with those of the SWA. The Department will provide 
training and on-going guidance for the SWAs and program users, in order 
to foster a clear understanding of program and other regulatory 
requirements and ensure uniformity in determinations.
c. Intrastate Clearance
    The Department proposed to continue the requirement of having the 
employer whose job opportunity is in more than one State file with only 
one SWA serving the area of intended employment.
    A commenter suggested that each work site be evaluated to determine 
whether there is more than one area of intended employment for a 
particular job opportunity. This commenter proposed a change to require 
that the employer simultaneously submit a job order to each SWA serving 
an area of intended employment where the job opportunity is located in 
more than one State.
    An individual commenter proposed that the SWA placing the job order 
in intrastate clearance share the listing with other SWAs in States 
bordering the State containing the area of intended employment. This 
commenter argued that State lines should not stand in the way of 
recruitment of local residents where the area of commuting distance 
encompasses more than one State. This commenter further argued that 
permitting the forwarding of job orders to neighboring States would 
save the employer the costs of applying for an H-2A labor certification 
if the employer is able to fill the job openings with local workers.
    The Department agrees with the intent of these comments and has 
modified the rule to require the SWA to forward the job order to the 
other SWAs having jurisdiction over the area of intended employment. 
However, we believe the requirement for filing with multiple States 
would be confusing to employers and place an undue burden on them. 
Since SWAs have existing mechanisms to accomplish this task, this is a 
more appropriate activity for the SWA, rather than the employer, to 
undertake.
d. Duration of Job Order Posting
    The Department is clarifying that Form ETA-790, the Agricultural 
and Food Processing Clearance Order, is to be used for the submission 
of the job order to the SWA. The Department received one comment 
opposing duplication in filing and processing arguing that the most 
substantive and voluminous portion of an application is the Form ETA-
790. The Form ETA-790 must be used by all employers seeking to recruit 
agricultural labor in the U.S., pursuant to the Wagner-Peyser 
regulations at 20 CFR 653.401. Those regulations were not part of this 
rulemaking so this comment was not considered.
e. Modifications to the Job Order
    The Department proposed a process for the modification of job 
orders. Several commenters expressed concern regarding the proposed 
provision permitting the CO to direct modification of a job order after 
SWA acceptance and before the issuance of a labor certification. Some 
of the commenters argued that there should be finality in the process, 
including one point of acceptance for a job order. Some commenters 
further argued that since the employer is held to the terms and 
conditions offered in the job order, the SWA and the CO should be bound 
by the acceptance of those terms and conditions. A couple of commenters 
expressed concern that corrections to the job order after SWA 
acceptance and placement in intrastate clearance may result in 
different groups of potential workers being recruited under differing 
terms, and noted that workers recruited under a particular job order 
need to be able to rely on the terms and conditions offered. One of 
these commenters proposed that the Department limit all modifications 
after acceptance to significant emergency situations such as Acts of 
God. Another commenter opposed the provision permitting the CO to 
direct an employer to modify the job order after a finding that the 
previously accepted terms and conditions fail to fully comply with 
program requirements. This commenter indicated that this provision 
violates 8 U.S.C. 1188(c)(2), which requires DOL to state any 
deficiencies that it finds in a labor certification application within 
7 days.
    The INA requires the Department to note any deficiencies in the 
employer's Application within 7 days from receipt. We do not interpret 
the provision requiring the Department to accept or reject an 
Application within 7 days to limit the Department from requiring 
modifications after acceptance. The INA cannot mean that the SWA's 
acceptance of the Application forces the CO to overlook any apparent 
violations. To interpret the statute in that way would require the 
Department to either accept Applications which contain apparent 
violations or to reject the Applications without giving the employer 
the opportunity to correct the apparent violation of program 
requirements. With respect to concerns about worker reliance on a job 
order that subsequently has been modified, employers will now be 
required to notify all workers recruited pursuant to that job order of 
any material change in the terms and conditions of employment, 
particularly to the extent that the terms of the job

[[Page 6905]]

order constitute part of the work contract as described in Sec.  
655.122(q).
    Another commenter argued that the Final Rule needs to address 
changes by employers when changes are necessary because of unforeseen 
business necessities that arise during the time between the beginning 
of the recruitment period and certification.
    The Final Rule retains a provision from the NPRM permitting the 
employer to request modification of a job order before filing the 
Application. As discussed above, many commenters noted that at this 
point, 45 days from the date of need, most employers would have a 
better idea regarding their plans for the season, including their labor 
needs. Therefore, the Department's Final Rule retains the limitation on 
employer modification of job orders.
f. Elimination of Requirement That SWAs Must Verify Employment 
Eligibility (Form I-9, E-Verify)
    As explained in the NPRM, the Department proposed to eliminate the 
requirement that SWAs must complete the employment eligibility 
verification process (Form I-9 or Form I-9 plus E-Verify) for all 
workers referred to the employer by the SWA under a job order. The 
Final Rule follows the NPRM and no longer requires SWAs to verify 
employment eligibility. This approach is logical and consistent with 
employers' discretion and duties concerning all new hires--including 
the checking of references, qualifications, etc. Nothing in the INA or 
these regulations precludes the States from performing employment 
verification voluntarily or pursuant to State law, nor do they prevent 
the employer from relying on verification performed by the SWA so long 
as it meets certain verification standards as set out in applicable DHS 
regulations.
    In their traditional role, the SWAs are only required to refer 
candidates whose qualifications match the terms and conditions of the 
job order to an employer's job opportunity. Requiring one small subset 
of applicants who apply for H-2A positions to be subject to employment 
eligibility verification raises the possibility of disparate impact.
    A SWA referral does not in itself constitute an offer of employment 
because the referred individual may be rejected for lawful, employment-
related reasons. In addition, the Department believes that SWA 
resources are most effectively directed to the core functions of the 
public workforce system, such as clearing job orders. For all the 
reasons discussed above, the Department has retained the language from 
the NPRM and eliminated the requirement that SWAs verify employment 
eligibility of potential employees referred in connection with an H-2A 
job order.
    The Department received comments both for and against the 
elimination of employment eligibility verification by the SWAs. Several 
commenters expressed support for the Department's decision to return to 
the previous practice of permitting the SWAs to determine for 
themselves the method by which they would ensure workers were eligible 
for referral.
    Several commenters offered strong support for the Department's 
proposal to remove the requirement that the SWA verify the employment 
eligibility of job seekers before referral. Most of these commenters 
explained that placing the burden of verification on the SWAs in the 
2008 Final Rule was inappropriate and that it required States to impose 
a greater barrier for people seeking H-2A job openings than on others, 
resulting in disparate treatment of protected classes. One SWA further 
indicated that people not authorized to work in the U.S. are unlikely 
to seek work through government-run One-Stop Career Centers. Another 
SWA noted that the Department simply lacks statutory authority to 
require SWAs to conduct employment eligibility verification because 8 
U.S.C. 1324a permits, but does not require, SWAs to complete I-9 forms 
with regard to individuals they refer to jobs. One of these SWAs also 
noted that it will continue to refer eligible job seekers using its 
current right-to-work verification process, codified in its State law. 
Another SWA voiced support for the elimination of the requirement and 
pointed out that States are not funded to provide I-9 verification. 
Another commenter indicated that freeing the SWAs of verification 
responsibilities was a positive development given that the proposed 
regulations call for greater SWA involvement in recruitment.
    A few employer organizations objected to the elimination of the 
verification requirement on the grounds that employers are required to 
hire referred workers and that the SWAs should not refer workers who 
are not eligible to be employed.
    Other commenters discussed what they characterized as an 
impermissible shifting of the financial and administrative burden of 
employment verification back to employers who are already facing 
difficult times and rising production costs. One commenter, a farm 
bureau, noted that the resource issue for SWAs is no different than the 
resource issues that family farmers regularly face but who verify 
employment eligibility nonetheless. Another farm bureau described the 
proposal of reverting to employer verification as contrary to the 
Administration's commitment to eliminating illegal immigration.
    Other commenters opposed the change in the requirement, noting that 
the elimination of the requirement would burden the employers whose 
Applications were only partially certified based on the number of 
referred local workers who later turn out to be ineligible for 
employment. Another commenter contended that, in the absence of SWA 
verification, the Department should not count the SWA referrals against 
the number of workers requested by an employer on an Application.
    Other commenters accused the Department of compromising its 
obligation to protect the jobs of domestic workers by eliminating the 
employment eligibility verification requirement. One of these 
commenters further asserted that the Department should take 
responsibility for the referral activities of its State partners and 
that the elimination of the employment eligibility verification 
signifies that the Department condones the employment of illegal 
aliens, which contributes to low wages, inadequate housing and a 
shortage of viable job opportunities for U.S. workers. Another 
commenter noted that the elimination of the verification requirement 
undercuts the role of the SWA to determine the availability of U.S. 
workers for employment before the filing of an Application. This 
commenter asserted that the SWA's inability to determine the work 
authorization of workers recruited and referred under the job order 
fails to meet the SWA's legal obligation to determine that sufficient 
able, willing, and qualified U.S. workers are available.
    Several commenters expressed concerns that without SWA 
verification, at least 75 percent of referred workers will later prove 
ineligible for employment, with one commenter citing examples from its 
experience. Most of these commenters further argued that the referral 
of ineligible workers will place a burden on employers either to 
continue to employ ineligible workers and run the risk of employer 
sanctions, or dismiss these workers and find replacement workers in 
time.
    Several commenters opposed the change in the requirement, pointing 
to the 2008 Final Rule's interpretation that 8 U.S.C. 1324a and DHS 
regulations at 8 CFR 274a.2 and 274a.6 require the SWA to verify 
employment eligibility

[[Page 6906]]

before referring applicants to the employer. Another commenter 
challenged the Department's distinction between a referral and an offer 
of employment, asserting that the distinction is meaningless since the 
employer has no option to refuse to hire the worker referred by the SWA 
if that person is willing, able, and qualified for employment. Another 
commenter argued that the SWA is statutorily required to verify 
employment eligibility of referrals because 8 U.S.C. 1188(c)(3) lists 
as one condition for certification a requirement that the employer does 
not actually have or has not been provided with referrals of qualified, 
eligible individuals, and 8 U.S.C. 1188(i) defines an eligible 
individual as being one who with respect to employment, is not an 
unauthorized alien, as defined in 8 U.S.C. 1324a(h)(3). This commenter 
further argued that the Department or the SWA must determine if 
applicants from the pool of local workers are authorized to work in the 
U.S. because, without this determination, DOL cannot deny any 
application for labor certification on the basis of there being 
qualified, eligible individuals.
    Another commenter challenged the Department's rationale regarding 
the disparate impact of employment verification on workers, referring 
to the 2008 Final Rule rationale that the requirement to verify 
employment eligibility does not violate constitutional prohibitions 
against disparate impact. As explained further below, the Department 
believes that this position in its 2008 Final Rule was erroneous, and 
that disparate impact can result from the segregation of H-2A referrals 
to comply with the verification requirement.
    After thorough consideration of these comments, the Department has 
concluded that it will retain the language of the NPRM. The Department 
believes that its mandate to protect job opportunities for U.S. workers 
and ensure that they are not adversely affected by the employment of 
foreign workers will be best served by a requirement that reflects the 
intent of Congress that the employer, and not the SWA, is responsible 
for the ultimate verification that its labor force is comprised of 
workers legally present and authorized to work in the U.S. Employers 
are the group that is charged with this function under the statutory 
verification process and have been since the imposition of employment 
verification. The previous rule did not in any way relieve employers of 
ensuring the employment eligibility of their workforce. Similarly, 
removing the employment eligibility verification requirement from SWAs 
also does not relieve employers of that duty.
    The statute makes the plain statement that the employer may not 
hire an unauthorized worker. 8 U.S.C. 1324a(a)(1). The same statute 
enables employers to rely upon a referral by a State agency with the 
proper employment verification documentation, but imposes no burden on 
States to actually do so, in contrast to the burden it affirmatively 
imposes on employers. 8 U.S.C. 1324a(a)(5).
    The SWAs must administer a number of programs and functions, 
including those related to foreign labor certification. Certain SWA job 
service functions are funded by formula under the Wagner-Peyser Act and 
the Workforce Investment Act. Other funding is received directly from 
the OFLC for services the SWAs provide in connection with the 
Department's labor certification programs. The Department has decided 
that imposing the additional requirement of employment eligibility 
verification of H-2A referrals denies the SWA the flexibility to decide 
how best to allocate its resources.
    Additionally, the Department continues to believe that requiring 
the SWAs to conduct employment verification of applicants for H-2A job 
opportunities prior to referral creates the potential for complaints of 
disparate impact. By requiring this verification of referrals only in 
job orders in which employers are seeking nonimmigrant workers, some 
referrals to job orders that are identical with the sole exception of 
the H-2A component are treated differently. The Department's concern 
that this could in turn lead to differential treatment of H-2A job 
orders generally and of referrals to those job orders specifically, 
provides further cause for concern about continuing the obligation on 
SWAs.
    The suggestion by the commenters that this return to the pre-2008 
requirements is unduly burdensome ignores the statutory requirement, 
with which they have presumably always comported, to undertake 
verification. The return to employer verification returns H-2A 
employers to the same position as virtually all employers, including 
non-H-2A agricultural employers. Thus, H-2A employers are subjected to 
no greater burden than any other employers, with respect to employment 
verification.
    Traditionally employers are not required to hire each person 
referred by the SWA, because they may reject potential hires for any 
lawful, job-related reason. Furthermore, each employer has an 
obligation to terminate any worker who upon acceptance of the job offer 
proves ineligible to work in the U.S.; such grounds are, moreover, a 
legitimate basis for rejecting the worker for purposes of the 
recruitment report.
    The Department declines to accept the commenters' interpretation of 
the SWAs' obligations with respect to the verification of SWA 
referrals. Because SWAs do not perform any activities that would 
classify them as subject to 8 U.S.C. 1324a(a)(1)(B), the INA does not 
require SWAs to engage in employment eligibility verification. In 
addition, 8 U.S.C. 1188(3)(A) does not identify the referring entity 
that would provide employers with eligible individuals within the 
meaning of 8 U.S.C. 1188(i). The role of the SWA in the referral of 
U.S. workers under the H-2A program is solely governed by the 
Department's regulations, as 8 U.S.C. 1188 does not define the 
methodology for the recruitment of U.S. workers, nor does it include 
any references to the SWAs or other State actors. Section 655.155 of 
this Final Rule directs the SWA to refer to employers only those 
applicants who have been apprised of all material terms and conditions 
of employment and have agreed that they are able, willing, qualified, 
and available by agreeing to be referred to the job opportunity. This 
provision makes it clear that the SWA is only required to perform its 
traditional job service functions uniformly across all classes of 
applicants and employers.
7. Section 655.122 Contents of Job Offers
    The job offer sets out the terms and conditions of employment 
contained within the job order. The employer can give this information 
to the workers by providing a copy of the job order or a separate work 
contract. A written job offer is critical to inform potential workers 
of the material terms and conditions of employment and to demonstrate 
compliance with all of the obligations of the H-2A program. For H-2A 
program purposes, the job offer must contain, at a minimum, all of the 
worker protections that apply to both domestic and foreign workers 
pursuant to these regulations. The Department considers the job offer 
essential for providing the workers sufficient information to make 
informed employment decisions. The work contract, or where there is no 
written work contract, the job order, which is the document 
representing the material terms and conditions of the job offer, must 
be provided with its pertinent terms in a language the worker 
understands.

[[Page 6907]]

    The Department proposed to retain much of the 2008 Final Rule 
requirements on job offers with some minor clarifications. The 
Department's responses to comments are discussed in more detail below.
a. Prohibition Against Preferential Treatment
    The NPRM proposed to return to the language in the 1987 Rule about 
the requirement for the minimum wages and working conditions that must 
be offered to foreign and U.S. workers.
    One commenter proposed that the Department permit employers to 
require experience for U.S. workers applying for H-2A job openings, to 
increase the chance that the worker will complete the contract after 
being reimbursed for transportation and any other allowable costs 
incurred in the course of recruitment. This commenter justified the 
proposed revision by stating that no similar mechanism is necessary to 
keep the H-2A workers tied to the contract as their very status depends 
on their continued performance under the work contract.
    Another commenter noted its experience with employers who prefer an 
H-2A workforce and therefore subject U.S. workers to conditions 
intended to displace them, such as coercion, in-person interviews, and 
production standards that they do not impose on their foreign workers. 
This commenter indicated that strong protections are needed to protect 
agricultural job opportunities for the domestic workforce, including 
regulations that prevent different standards from being applied to 
foreign and domestic applicants. Furthermore, this commenter urged the 
Department not to allow an experience requirement proposed by other 
commenters unless the same requirement applies to foreign workers. 
Another commenter noted that many employers pay higher wages and 
provide better benefits to year-round or long-term employees but that 
those benefits should not result in the preferential treatment of U.S. 
workers. Another commenter, an H-2A agent, asserted that this proposed 
provision may have the opposite of the intended effect, particularly 
with respect to wages, due to a requirement to offer H-2A workers the 
same minimum level of benefits, wages, and working conditions being 
offered to U.S. workers.
    While the regulatory text did not prohibit employers from paying 
U.S. workers more than H-2A workers, inartful preamble language caused 
confusion as to whether U.S. workers can be provided benefits and/or 
wages exceeding those offered and provided to H-2A workers. The 
requirement is that the employer's job offer to U.S. workers be no less 
than what the employer is offering, intends to offer, or will provide 
to the employer's H-2A workers. Further, the contents of any job offer 
under H-2A must contain--at a minimum--the wages and working conditions 
found in this Final Rule. If a job offer to H-2A workers offers or 
provides a wage or benefit greater than what is required, then the same 
must be offered and provided to U.S. workers. Similarly, if the job 
offer imposes a restriction or obligation (e.g., a productivity 
standard or experience requirement), then that restriction or 
obligation is applicable to all workers--both U.S. and H-2A--and no 
additional or further restriction can be placed on only U.S. workers. 
(Any such restriction or obligation must be stated in the job offer for 
it to be applicable to any worker, whether U.S. or H-2A.) This does 
not, however, preclude an employer from providing additional wages and 
benefits to U.S. workers that are not being provided to H-2A workers. 
There is no intention, for example, to require an employer to lower the 
wages of a long-term or year-round U.S. employee to an H-2A-required 
wage simply because such U.S. worker is engaged in corresponding 
employment. Additionally, these regulations are not intended to require 
an employer to raise the wage rate of all H-2A workers--and then by 
extension, all other workers in corresponding employment--if a long-
term U.S. worker being paid a higher wage is engaged in corresponding 
employment. The Department, therefore, retains the proposal with 
clarifying edits.
b. Job Qualifications and Requirements
    The Department proposed in the NPRM to retain the same requirements 
with respect to the job qualifications and requirements as in the 2008 
Final Rule. In addition, the Department made explicit that the CO or 
the SWA has the discretion to require that the employer submit 
documentation to justify the qualifications specified in the job order. 
Having considered the comments received in response to this proposal, 
the Department has decided to retain the provision, as proposed.
    The Department received several comments in response to this 
provision. One commenter, a farm worker advocacy association, referred 
to reports of persistent violations by employers who recruit foreign 
workers under qualifications and job requirements that are inconsistent 
with the Application and job order. This organization proposed a 
revision to require qualifications and requirements comparable with the 
employer's non-H-2A workers in the current or immediately preceding 
season for similar employment.
    Several commenters opposed the requirement that the SWA or the CO 
may require the employer to provide documentation justifying job 
qualifications or requirements. One asserted that the qualifications or 
requirements of a job opening are within the purview of the employer's 
business purposes and that neither the CO nor the SWA have an 
understanding regarding what is or is not a reasonable qualification. 
Another commenter indicated that the job requirements and 
qualifications or other factors making a particular Application unique 
must be acceptable if they are justified by business necessity. 
According to this commenter, nothing in the INA requires an employer to 
perform any job in the same manner as another employer in order to 
obtain a labor certification. Another employer opposed the imposition 
of the requirement, arguing that the provision is vague and unjustified 
and that it contains no guidance on what types of documentation the SWA 
or the CO would find sufficient, nor does it provide for an appeal 
process for the employer. Further, the commenter argued, the Department 
is giving no assurance that the requirement would be applied in a 
consistent or objective manner.
    The Department appreciates the proposal to require qualifications 
from previous seasons but after careful consideration has determined 
that it would be difficult to enforce this requirement on both 
employers who did and those who did not participate in the program 
during a prior season. Additionally, this requirement would unduly 
intrude on the employer's discretion to make business decisions, while 
not enhancing worker protections.
    With respect to comments opposing the documentation requirement, 8 
U.S.C. 1188(c)(3) provides that in determining questions of whether a 
specific qualification is appropriate in a job offer, the Secretary 
shall apply the normal and accepted qualifications required by non-H-2A 
employers in the same or comparable occupations and crops. For decades, 
the Department's regulations have applied this principle to both job 
requirements and job qualifications. The Final Rule continues that 
approach.

[[Page 6908]]

c. Minimum Benefits, Wages, Working Conditions
    The NPRM proposed this section as an introduction to the section on 
the contents of the job offer. The Department received comments 
expressing support for these provisions that strengthen labor 
protections for temporary foreign agricultural workers, such as wages, 
housing, and employer-provided transportation.
    The regulatory text has been edited to correct an inadvertent error 
in paragraph designations and to make a minor editorial clarification.
d. Housing
    Because the employer's obligation to provide housing is intertwined 
with the requirement for housing inspections, issues related to the 
employer's obligation to provide housing are addressed in this section. 
Under the NPRM, an employer seeking to use the H-2A program would be 
required to submit a job order to the SWA in the area of intended 
employment for intrastate clearance. Concurrent with the filing of the 
job order, the employer must request a housing inspection and, 
consistent with the Wagner-Peyser Act regulations, the housing 
inspection must be completed before issuance of the H-2A certification. 
This proposal marked a change from the 2008 Final Rule which allowed 
the NPC, under certain circumstances, to make a certification 
determination on an Application 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
    In addition, the NPRM proposed to clarify that the employer's 
obligation to provide housing extends both to H-2A workers and to 
workers in corresponding employment who are not reasonably able to 
return to their residence within the same day. The Department proposed 
minor modification to the provision on certified housing that becomes 
unavailable. While most of the 2008 Final Rule provision remains, the 
Department proposed that the SWA be required to promptly notify the 
employer of its obligation to correct deficiencies if the substituted 
housing is or becomes out of compliance with applicable safety and 
health standards after inspection. The Department also sought to 
clarify available remedies for housing safety and health violations to 
include denial of a pending Application or revocation of a future 
Application. No changes were proposed to the 2008 Final Rule provisions 
concerning housing safety and health standards, rental or public 
accommodations, open range housing, deposit charges, charges for public 
housing, and provision of family housing. After full consideration of 
the comments, the Department is adopting all the housing-related 
provisions as set out in the proposed rule, with minor editorial 
modifications.
    The Department received a number of comments on this proposal from 
employers, grower associations, SWAs and worker advocates. One employer 
association commented that the return to the 1987 Rule housing 
inspection rules would cause delays in certifications, and as evidence 
of this statement provided certification statistics from 2008 for its 
members. This commenter asserted that between December 15, 2007 and 
April 20, 2008, 89 certifications were issued for its members, of which 
40 certifications were issued and received within 4 days of due date 
(40 percent); 37 were received between the 5th day and the 10th day (37 
percent); another eight were received between the 11th and 15th days (8 
percent); and the rest were received between the 16th and 24th days (13 
percent). According to this commenter, the certifications issued in 
2008 under the 1987 Rule were on average late by 8.27 days. This 
commenter also took issue with the Department's assumptions for the 
time associated with processing and receipt of petition approval from 
United States Citizenship and Immigration Services (USCIS), the worker 
obtaining a visa from the Consulate, and transportation from Mexico to 
the area of intended employment. It concluded that the proposed change 
to the timing of the housing inspections would have a very significant 
impact on the association's members. Another employer association 
similarly stated that its members had seen improvements in processing 
times as a result of the 2008 Final Rule and predicted certification 
delays as a result of this provision. The association also criticized 
the Department for ignoring its own detailed rationale in the preamble 
of the 2008 Final Rule explaining why it was inappropriate to delay 
certification determinations because of the SWA's delay in completing 
housing inspections.
    Other employers noted that the proposed change would result in less 
time to make necessary repairs and improvements to housing, which in 
one grower's view would ultimately work to the detriment of the workers 
housed there. Other employers commented that requiring that the housing 
inspection be completed before worker occupancy creates unnecessary 
financial burdens by essentially requiring employers to ensure housing 
is available prior to the actual need. An agricultural employer and H-
2A program user stated that inspecting occupied housing can be very 
difficult for the inspector and has the potential to add huge 
liabilities for employers; it asked whether the WHD intends to train 
SWA staff on differentiating between compliance issues connected with 
occupied housing and those connected with unoccupied housing. This 
commenter further suggested that employers be given a specific and 
reasonable time period to correct violations found in inspections of 
occupied housing, and that penalties only be assessed if the employer 
fails to correct the violations. Similarly, an association commented 
that SWAs are not allowed to inspect occupied housing, which creates 
difficulties if the employer is seeking to augment his or her existing 
workforce or another grower is utilizing the housing during the H-2A 
employer's off-season. This commenter also remarked that the Department 
does not mandate pre-occupancy inspections of farm worker housing 
outside of the H-2A program and suggested that this is an indication 
that temporary housing is not a priority for the Department except in 
the H-2A program.
    Several commenters representing employers and employer interests 
offered that the cost and availability of housing is one of the most 
serious impediments to the use and expansion of the H-2A program, and 
many suggested implementation of a system where employers could provide 
workers a housing voucher instead of the employer directly providing 
housing. These commenters also noted that the H-2A program is the only 
employment-based immigrant or nonimmigrant worker program that requires 
the employer to provide free housing to its workforce and suggested 
that imposing the housing requirement only on agricultural employers is 
unwarranted. One employer association stated that until Congress 
eliminates this requirement on employers, the Department should limit 
the practice and not expand employers' responsibility to serve as 
unpaid landlords to their workforce.
    In contrast to comments from employers and employer associations, 
comments received from SWAs and employee advocates were generally 
supportive of the proposed change. State agencies commenting in favor 
of the provision represented States in which a significant number of H-
2A workers are employed and/or States where agriculture contributes

[[Page 6909]]

substantially to the State's economy. One SWA agreed with the proposed 
change on the basis that it would protect growers by helping them 
fulfill their housing obligations and ensure protections for workers. 
Another SWA commented that requiring housing inspections to be 
completed prior to H-2A certification will confirm that adequate 
housing is being provided to the temporary foreign workers. Another 
State agency found the provision consistent with its goal of assuring 
safe and healthy living for migrant farm workers and stated that one 
way they accomplish this is through their housing inspection program, 
stating that eliminating the attestation process and requiring that 
farm worker housing be inspected prior to occupancy is consistent with 
their Department of Health's licensing and inspection program.
    An employee advocate organization commented that while the proposed 
provision is an important step in assuring compliance with housing 
requirements, the proposed regulations still do not adequately address 
the problem of ghosthousing, wherein employers list housing that is 
never actually intended to be used to house workers. This commenter 
explained that when there is no post-certification inspection 
requirement, the potential exists for abuse by unscrupulous employers 
who would purposefully arrange for the inspection of housing they have 
no intention of using. It suggested adding a post-certification 
inspection requirement for the SWA to inspect housing midway through 
the certification period. In this commenter's view, such a requirement 
would discourage the practice of an employer listing housing that 
either does not exist, or exists but is not used. This commenter also 
suggested the strengthening of the protections afforded to workers with 
respect to housing, including an additional requirement for inspection 
of substitute housing during occupancy; the elimination of references 
in the regulations to conditional access to the interstate clearance 
system based on the employer's assurance that housing will be in 
compliance by a specified date; and the clarification that the 
strictest standard applies to housing subject to multiple housing 
standards (e.g., local, State and Federal).
    The Department also received a few comments not directly related to 
its proposed housing provisions. One commenter, a worker-led nonprofit 
organization that recruits, trains and places H-2A workers, explained 
that in the border region (e.g., Yuma County, AZ), many H-2A workers 
have the option of returning to their homes and families at night, and 
many prefer to do so rather than stay in employer-provided housing. 
This commenter suggested establishment of a commission to develop an 
alternative border-based housing policy for the H-2A program. Although 
no changes were proposed to the provision of range housing or the 
standards applicable to range housing, comments from an association 
representing the sheep and livestock industries and a Federal Lands 
Council urged the Department to continue to provide special procedures 
for housing provided to sheepherders and workers engaged in the range 
production of livestock. A SWA and an employee advocate provided 
comment on the employer's obligation to provide family housing to 
workers with families who request family housing when it is the 
prevailing practice in the area of intended employment and occupation 
(Sec.  655.122(d)(5)). Both commenters requested that the Department 
clarify that if a State statute or court decision applicable to the 
jurisdiction requires an employer to provide family housing, then the 
State statute or court decision is to be considered the prevailing 
practice with respect to the provision of family housing.
    The INA requires employers to provide housing in accordance with 
regulations issued by the Secretary. The employer may meet this 
obligation by providing housing meeting the applicable regulations. The 
Department recognizes that this requirement is unique to the H-2A 
program, but statutory requirements prohibit the Department from 
providing the flexibility suggested by some employers to authorize a 
housing voucher in lieu of employer-furnished housing, to limit the 
practice of H-2A employers providing housing to their workers, or to 
relieve employers in border regions from this requirement. Likewise, 
the Department is statutorily prohibited from requiring compliance with 
the stricter of applicable local, State or Federal standards if 
multiple standards apply to rental and/or public accommodations or 
other substantially similar class of habitation.
    Instead, the Department is returning to its position contained in 
the 1987 Rule that employers must provide housing to their H-2A workers 
and to their workers in corresponding employment who are not reasonably 
able to return to their residence within the same day. As explained in 
the section discussing the definition of corresponding employment, the 
requirement on employers to provide housing to workers in corresponding 
employment helps ensure that those workers receive the same level of 
wages, benefits, and working conditions as the H-2A workers, and 
therefore that the employment of the H-2A workers does not adversely 
affect the employment of workers similarly employed.
    With regard to the timing of housing inspections, from the 1987 
Rule until January 2009, ETA's regulations required that employer-
furnished housing be inspected and certified as meeting applicable 
standards as a condition of the Secretary granting H-2A certification 
to the employer. This requirement was based on the Department's reading 
that the INA requires that the Secretary make a certification 
determination no later than 30 days before the date of need (8 U.S.C. 
1188(c)(3)(A)) and that the determination of whether housing furnished 
by the employer meets the applicable safety and health standards be 
made no later than the date by which the Secretary is required to make 
the certification determination (8 U.S.C. 1188(c)(4)). For more than 20 
years, the Department read these two provisions in concert and 
concluded that the certification determination could not be made unless 
the employer-furnished housing had been inspected and found to meet 
applicable safety and health standards. The 2008 Final Rule changed the 
regulation to eliminate the requirement that housing be inspected and 
approved before certification in all cases.
    The INA establishes both the date by which the Secretary must make 
the certification determination and the date by which the determination 
of whether employer-furnished housing meets applicable standards must 
be made. The Department believes the 1987 Rule reading, which is also 
implemented in this Final Rule, is the more appropriate reading of 
these statutory requirements and, notwithstanding the Department's 
earlier statements, is more consistent with congressional intent to 
ensure that U.S. workers are not adversely affected by the employment 
of H-2A workers. Reinstatement of this process also benefits employers 
by reconciling the Department's H-2A certification process with 
applicable State laws requiring pre-occupancy inspection and 
certification of worker housing. Contrary to the suggestion of one 
commenter, the fact that the Department does not require pre-occupancy 
inspection of housing provided to farm workers outside of the H-2A 
program is not a reflection of the Department's priorities, but a 
function of the

[[Page 6910]]

underlying statutory requirements and Departmental resources.
    The Department also notes that reinstating the provision at Sec.  
655.122(d)(1) concerning conditional access to the interstate clearance 
system under the Wagner-Peyser regulations obviates the need for the 
conditional certification determinations included in the 2008 Final 
Rule. Employers whose housing has not yet been inspected may request 
conditional access to the interstate clearance system under the 
procedures set forth in 20 CFR 654.403. Likewise, employers whose 
housing has been inspected and found not to meet the required standards 
may seek conditional access to the interstate clearance system, thereby 
allowing the employer an opportunity to make the necessary repairs or 
improvements without penalizing the employer through denial of access 
to the interstate clearance system. In either situation, if the 
employer seeks and is granted conditional access to the interstate 
clearance system, the continued review and processing of its H-2A 
Application need not be held up. The Department believes this process 
appropriately balances the requirement that workers are provided safe 
and healthy housing while not unduly delaying H-2A certification 
determinations. In response to the suggestion that the Department 
eliminate all references to conditional access to the interstate 
clearance system, this provision exists in the Department's regulations 
implementing the Wagner-Peyser Act with respect to farm workers, which 
the Department has not proposed amending at this time.
    The Department understands that any delay in H-2A certification 
determinations is of concern; however, based on the Department's 
examination of program activity for FY 2007 and 2008, we do not 
anticipate the inordinate delays assumed by employers and associations. 
As explained in the proposed rule, certification determinations for FY 
2007 and 2008 were made, on average, approximately 27 calendar days 
before the employer's certified start date of need. That analysis does 
not reveal the reason for the delay in certification determinations--
whether the delay was the result of a delayed housing inspection, the 
failure of an employer to provide information requested by OFLC and 
necessary for OFLC to make the certification determination, or for some 
other reason. See discussion at 74 FR 45932, Sep. 4, 2009. The 
Department appreciates that an individual H-2A program user or 
association may have experienced certification determinations made 
closer to their date of need than the average cited by the Department, 
but believes that requiring that the housing be certified as meeting 
applicable safety and health standards as a prerequisite to making the 
certification determination is both required by the most reasonable 
reading of the statute and is proper given the Department's 
responsibility to protect U.S. and H-2A workers. As noted in the 
proposed rule, the Department is not responsible for any downstream 
delays in processing at either USCIS or the U.S. Consulate.
    The Department recognizes that there are situations beyond an 
employer's control which impact the availability of certified housing 
the employer intended to use for housing workers and therefore has 
retained the provision in Sec.  655.122(d)(6) for the substitution of 
rental or public accommodation housing with a clarification that 
substitute housing must meet applicable standards. Concerns raised by 
employers that SWA staff may not be authorized to conduct, or may not 
be sufficiently trained in the conduct of, inspections of occupied 
housing will be addressed through the Department's current process for 
providing guidance to SWAs on implementation of Departmental programs. 
As explained in the discussion of 29 CFR part 501 in this preamble, the 
Department will continue to exercise its discretion with respect to 
allowing employers a reasonable opportunity to correct housing safety 
and health violations before imposition of sanctions, such as 
revocation and debarment.
    Comments suggesting that the Department impose a requirement for 
post-occupancy inspection of housing midway through the certification 
period and post-occupancy inspection of substitute housing are outside 
the scope of this rulemaking. However, the WHD does conduct inspections 
of occupied housing during all H-2A investigations and during 
agricultural investigations outside of the H-2A program when housing is 
owned or controlled by the employer. Post-certification audits also 
provide the Department with a tool for ensuring H-2A employers provide 
housing meeting applicable standards to their workers.
    The Department will continue to provide guidance to the SWAs with 
respect to determining whether the prevailing practice in the area of 
intended employment and occupation includes the provision of family 
housing. The Department agrees with commenters that where agricultural 
employers are required by State statute or applicable court decisions 
to provide family housing to workers with families, the prevailing 
practice is to provide family housing.
    The Department does not believe that requiring completion of the 
housing inspection before the certification determination is made will 
result in negative economic consequences for employers. Some 
agricultural employers commented that their financial burdens would 
increase under this provision; however, these commenters provided no 
evidence of increased financial burden for the Department's 
consideration.
e. Workers' Compensation
    The Department proposed to retain the 2008 Final Rule requirements 
regarding an employer's statutory obligation to provide workers' 
compensation insurance coverage in compliance with (or equivalent to) 
State law. However, the Department also proposed to return to requiring 
employers to provide the CO with proof of workers' compensation 
insurance coverage, including the name of the insurance carrier, the 
insurance policy number, and proof that the coverage is in effect 
during the dates of need. The Final Rule adopts this requirement as 
proposed.
    Several commenters supported the proposed change, while others 
asserted that the change was unnecessary. They contended that the 
Department should simply accept the employer's attestation that it had 
obtained adequate insurance coverage, without any proof. The Department 
disagrees with that position. In an industry as dangerous as farming, 
the availability of workers' compensation coverage is absolutely 
critical. It is essential that the Department be satisfied that the 
appropriate coverage is in place. Requiring employers to prove the 
existence of such coverage creates no meaningful additional burden for 
employers since they would have to retain that documentation in any 
event.
f. Employer-Provided Items
    The NPRM proposed to amend the 2008 Final Rule by requiring 
employers to provide to the worker, without charge, all tools, supplies 
and equipment necessary to complete the job. The Final Rule adopts this 
provision without change.
    The Department received few specific comments addressing this 
provision. One commenter expressed general support for the provision. 
Another commenter suggested the addition of language providing that if 
any of these items are provided by the worker, the employer will 
reimburse the worker for the cost of the items. It is not necessary to 
adopt the additional language

[[Page 6911]]

suggested by the commenter, because the rule plainly and unequivocally 
states that the employer must provide these items without charge. 
Moreover, as discussed in more detail in the section regarding 
deductions, employees must receive the required wage rate free and 
clear. Therefore, unless specifically authorized by these regulations, 
employees may not provide or have their pay docked for any item that is 
an employer business expense where doing so would reduce their wages 
below the required wage rate.
g. Meals
    The Department proposed a meals provision identical to the 2008 
Final Rule requiring the employer to provide three meals a day (which 
the employer may provide for a charge in accordance with Sec.  655.173) 
or free and convenient kitchen facilities to the workers enabling them 
to prepare their own meals. The Department decided to retain this 
provision without change in the Final Rule.
    A few commenters addressed the proposed provision governing meals. 
One commenter supported the mandatory provision of meals and other 
benefits provided to workers. This commenter noted that entitlements, 
such as meals, protect U.S. workers by creating a disincentive to use 
foreign temporary labor solely because of lower cost.
    Another commenter suggested that workers should be provided with 
food preparation expenses if kitchens are not available. The Department 
notes that the Final Rule requires that the employer either provide 
workers with meals or furnish free and convenient cooking facilities 
and that this is adequate to secure the benefit that was intended by 
Congress.
h. Transportation; Daily Subsistence
    The NPRM proposed to require an employer to pay the worker for the 
reasonable costs incurred for transportation and subsistence from the 
place from which the worker has come to the place of employment if the 
worker completes 50 percent of the work contract period and the 
employer has not previously advanced or provided transportation to the 
place of employment and subsistence costs. If it is the prevailing 
practice of non-H-2A agricultural employers to advance such costs, or 
if the employer extends such benefits to similarly situated H-2A 
workers, the employer must advance or provide such costs to workers in 
corresponding employment who are traveling to the worksite. The 
transportation reimbursement must be no less than the most economical 
and reasonable common carrier transportation charges, and the daily 
subsistence payment must be at least what the employer would charge the 
worker for providing three meals a day (if applicable), but no less 
than the amount permitted under Sec.  655.173(a). The NPRM, thus, 
proposed to return to the language of the 1987 Rule that the 
transportation reimbursement be for the cost from the place from which 
the worker has departed. The NPRM also proposed to remind employers 
that the FLSA applies independently of the H-2A requirements.
    Section 655.122(h)(2) of the NPRM proposed to require employers to 
provide or pay for the worker's transportation and daily subsistence 
from the place of employment to the place from which the worker, 
disregarding intervening employment, departed to work for the employer, 
if the worker completes the work contract period or is terminated 
without cause (deleting the 2008 Final Rule's definition of the U.S. 
consulate or port of entry as the place from which the worker 
departed). Consistent with the 1987 Rule, the NPRM proposed that if the 
worker has subsequent H-2A employment, the current employer must pay 
for transportation to that worksite unless the subsequent employer has 
agreed in the work contract to pay for transportation and daily 
subsistence. The NPRM added that an employer is not relieved of its 
obligation if an H-2A worker is displaced as a result of the employer's 
compliance with the requirement to hire U.S. workers who are referred 
within the first 50 percent of the contract period.
    Section 655.122(h)(3) of the NPRM proposed to continue to require 
employers to provide transportation between the workers' employer-
provided housing and the employer's worksite at no cost to the workers.
    Finally, Sec.  655.122(h)(4) of the NPRM also proposed to require 
that all employer-provided transportation comply with all applicable 
laws and provide, at a minimum, the same transportation safety 
standards, driver licensure, and vehicle insurance as required under 29 
U.S.C. 1841, 29 CFR 500.105, and 29 CFR 500.120 to 500.128. The NPRM 
thus proposed to extend the 2008 Final Rule's similar requirements, 
which were applicable only to transportation between the living 
quarters and the worksite, because such safety requirements already 
exist elsewhere in other Federal, State or local transportation laws.
    The Final Rule adopts Sec.  655.122(h) of the NPRM as proposed, 
with a technical correction to an internal cross reference.
    The vast majority of the comments pertained to Sec.  655.122(h)(1). 
Numerous employers and their representatives objected to the proposed 
change regarding the requirement to pay for transportation from the 
place from which the worker has come, rather than transportation from 
the consulate or port of entry. They stated that it makes more sense to 
pay for transportation from the consulate, because that allows an 
employer to know in advance or to estimate more precisely what its 
costs will be. Some commenters expressed concern about how an employer 
will know with certainty where a worker's home is and how much the 
transportation from there to the consulate costs, and they wondered 
whether they would be liable for whatever an employee claims his travel 
costs were. Others stated that their first contact with the worker is 
at the consulate, where the workers must go through government 
screening to ensure that they meet the requirements for entry into the 
U.S., and that there is not an employer-employee relationship until an 
H-2A visa is issued at the consular office because that establishes the 
worker's entitlement to enter the country. Several other employer 
representatives emphasized that their disagreement was not with the 
proposed regulation, but with the NPRM's inconsistent preamble 
language, which described the requirement as to pay for the cost to and 
from the worker's home. These commenters gave an example of an employee 
whose home is in Hawaii, but who was recruited in New Haven, CT by the 
Connecticut SWA, and they emphasized that it would be unreasonable to 
require a Connecticut employer to return the worker to Hawaii. These 
commenters noted that historically the requirement was to pay for 
transportation to and from the point of recruitment, which may or may 
not be the worker's home. They suggested that the Final Rule should 
eliminate the inconsistency by clarifying that the requirement is the 
same as it was in the 1987 Rule, which would eliminate the confusion 
caused by the preamble and bring the costs within the control of the 
eventual employer. Finally, as discussed in much more detail with 
regard to Sec.  655.122(p), a number of employers encouraged the 
Department to follow the FLSA interpretation that had been set forth in 
the preamble to the 2008 Final Rule, which repudiated the decision in 
Arriaga v. Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002).

[[Page 6912]]

These commenters objected to any requirement to reimburse an employee's 
transportation costs in the first workweek, rather than when the worker 
has completed 50 percent of the work contract period. They emphasized 
that the employee benefits from getting a job in the U.S., and so the 
employer should not be viewed as the primary beneficiary of the 
transportation.
    In contrast, employee representatives approved of the proposed 
change back to the requirements of the 1987 Rule. Employee commenters 
noted that employees have suffered economically from the reduced 
reimbursement only for costs from the consulate and, therefore, 
welcomed the return to the prior rule. They also stated that U.S. 
workers will no longer be at a competitive disadvantage regarding this 
benefit. Other employee representatives stated that the reinstatement 
of the former requirement is appropriate because the transportation 
costs impose an undue burden on workers when the expense benefits 
employers, and they emphasized that employers should be required to 
bear the full cost of their decision to import foreign workers in order 
to ensure that they do not prefer H-2A workers over U.S. workers. One 
employee advocate specifically emphasized that it is important to make 
clear that the FLSA applies independently of the H-2A requirements with 
regard to transportation.
    The Final Rule adopts Sec.  655.122(h)(1) as proposed. The 
Department believes that it is appropriate to return to the language of 
the 1987 Rule requiring employers to reimburse employees for their 
inbound transportation from the place from which the worker has come to 
work for the employer. The Department did not intend for the inartful 
language in the preamble to the NPRM, referring to the worker's home, 
to indicate a different standard that would be problematic for 
employers to implement. The Department believes that employers will not 
have difficulty returning to the standard that they used for more than 
20 years. As a number of employer representatives acknowledged, whether 
with regard to workers in the U.S. or workers recruited in a foreign 
country, employers will know where they recruited the workers and, 
thus, can predict and control their ultimate transportation costs. 
Finally, with regard to the reference to the FLSA, an issue discussed 
in detail with regard to Sec.  655.122(p), the Department believes that 
it is important to remind employers of their obligations under other 
statutes to enable them to ensure that they are in compliance with all 
applicable laws.
    In addition, a few employers or their representatives commented on 
the proposal to incorporate the standards used under the MSPA governing 
vehicle safety, licensure and insurance requirements for all employer-
provided transportation, rather than just for transportation between 
the living quarters and the worksite (as did the 2008 Final Rule). They 
objected to this requirement, stating that it was inappropriate to 
apply MSPA standards to H-2A workers, who are statutorily excluded from 
MSPA. However, the transportation of H-2A workers is an essential part 
of the H-2A program. Transportation safety standards have been set for 
H-2A workers in the Department's regulations from the outset of the 
program, through the incorporation of existing standards. The 1987 
Rule, for example, incorporated existing Federal, State, and local 
transportation laws and regulations. As noted in the preamble to the 
2008 Final Rule, the Department does not seek to apply MSPA to H-2A 
workers and has no authority to do so. Rather, the regulation simply 
adopts these established safety standards under the Department's H-2A 
regulatory authority, in order to better assure the safety of H-2A 
workers.
    Finally, one employee representative stated that the current 
subsistence allowance does not allow workers to purchase nutritionally 
adequate meals during their journey to the workplace or their return 
home. The commenter stated that the Department should determine an 
appropriate dollar figure, such as by surveying meal prices in the 
types of establishments frequented by charter bus companies and readily 
available to passengers on common carriers or some other method, and 
then indexing the amount for inflation. The Department did not propose 
any changes to the subsistence amount or the methodology for setting 
it; therefore, it believes that it would be outside the scope of this 
rulemaking to adopt the suggested change. However, the Department notes 
that it does update the subsistence amount each year to account for 
inflation, based on the CPI.
i. Three-Fourths Guarantee
    The NPRM proposed to retain the three-fourths guarantee from the 
2008 Final Rule, which had clarified that the guarantee must offer the 
worker employment for a total number of work hours equal to at least 
three-fourths of the workdays of the contract period, beginning with 
the first workday after the worker arrives at the place of employment. 
The NPRM clarified the three-fourths guarantee requirement to ensure 
that the guarantee will not have been met if the employer merely 
offered some work to employees on three-fourths of the days in the 
contract, if the workday did not consist of the full number of work 
hours disclosed in the job order (e.g., hours offered on a day in which 
fewer than the full number of hours stated in the job order have been 
offered). The Department also proposed to retain the provision 
addressing displaced H-2A workers, with a clarification that the 
provision now refers to the reinstated 50 percent requirement. The 
Final Rule generally adopts the proposal, with a minor clarifying edit.
    The Department received several comments on the proposed three-
fourths guarantee requirement. Some commenters opposed the requirement 
by stating that the three-fourths guarantee only benefits workers and 
is therefore one-sided. Several commenters, including members of 
Congress, supported the continuation of the three-fourths guarantee. A 
few commenters noted that the three-fourths guarantee, as proposed in 
the NPRM, does not go far enough to protect workers, and they offered 
suggestions to make the requirement more meaningful.
    Several commenters asserted that some employers manipulate the 
period of employment and number of promised work hours in an attempt to 
minimize the amount of the three-fourths guarantee. One commenter 
stated its belief that employers purposefully evade the requirement by 
overstating the hours of work in the job order and artificially 
prolonging the season beyond the end of available work so that idle 
workers voluntarily depart before the end of the stated contract period 
and are no longer entitled to the three-fourths guarantee protection, 
provided that the employer made the proper required notifications. The 
commenter suggested that the Department impose on H-2A employment 
contracts the first week guarantee already available to U.S. workers 
under the interstate clearance order regulations (20 CFR 
653.501(d)(2)(v)(A)), as well as an analogous last week guarantee. As 
an alternative, this commenter suggested that the three-fourths 
guarantee be applied to each successive 4-week period rather than once 
to the entire contract period. Another commenter suggested that if it 
became clear that the three-fourths guarantee could not be met, the 
workers should have the option of demanding their three-fourths 
guarantee and returning home at the expense of the employer. This

[[Page 6913]]

commenter also asserted that because job orders that include multiple 
crops and/or multiple locations often do not have consecutive work 
periods, workers experience days and sometimes weeks of down time with 
no way of knowing whether they will be offered enough work to earn the 
three-fourths guarantee. To address this uncertainty, the commenter 
suggested that the monetary amount of the minimum three-fourths 
guarantee be stated in the job order and job offer. The commenter urged 
that if a job order exceeds a 3-month period and includes work to be 
performed for consecutive periods in more than one type of crop or for 
more than one fixed-site agricultural business, the three-fourths 
guarantee should be calculated for the work period corresponding to 
each crop and each area of intended employment. Lastly, this commenter 
suggested that the proposed three-fourths guarantee requirement be 
included in each contract for which an H-2ALC is providing workers and 
that anticipated delays between jobs be disclosed so that potential 
employees, both U.S. and foreign, have a clear idea of the amount of 
work that will actually be offered.
    Several commenters advocated requiring that all offered days of 
work be at least 8 hours. Another commenter agreed, stating that the 
three-fourths guarantee could be made a meaningful protection for farm 
workers by requiring employers to guarantee each worker at least 8 
hours of work per day over the course of the season. The commenter 
asserted that such a requirement would prevent employers from 
overestimating the number of workers needed to perform the job. This 
commenter also suggested that the Department reinforce that job orders 
must accurately reflect the applicant's true labor needs and that the 
requirement for full-time employment means that the employer must offer 
at least 35 hours per week to all workers under the job order 
throughout the entire contract period. Additionally, several employer 
commenters noted that the inclusion of a 35-hour full-time employment 
requirement in the proposed definition of job offer would have an 
impact on the amount of hours required to meet the three-fourths 
guarantee.
    The Department is aware that certain circumstances or events beyond 
the control of the employer may make the fulfillment of the contract 
impossible, and the Final Rule includes a provision that, upon a 
finding of contract impossibility by the CO, the employer is relieved 
of the full three-fourths guarantee obligation and is instead permitted 
to reduce the guarantee to the time period from the start of the work 
until the time of the contract's termination. The Department has 
determined that the contract impossibility provision strikes an 
appropriate balance between ensuring fairness to workers and 
flexibility to employers.
    Although many of these suggestions would further strengthen the 
three-fourths guarantee requirement, the Department believes that it 
would be inappropriate to implement such significant changes to a 
fundamental and longstanding requirement of the program, without 
affording the regulated community the opportunity to formally comment 
on such proposals. Nevertheless, WHD will continue to carefully 
evaluate the facts when it conducts investigations to evaluate whether 
there has been any fraud with regard to dates of need specified in the 
job order and will pay close attention to evidence of fraud or other 
issues that may emerge over time. Moreover, the WHD plans to do 
increased outreach to workers to ensure that they understand their 
rights with regard to the three-fourths guarantee. Therefore, the 
Department retains the requirement as proposed with a minor editorial 
clarification.
j. Earnings Records
    The NPRM proposed to require employers to retain payroll records 
for not less than 5 years. Numerous comments objected to this extension 
of the 2008 Final Rule's 3-year record retention requirement. The 
Department has decided to return to the 3-year requirement. Discussion 
of the comments can be found in the preamble section regarding document 
retention requirements at Sec.  655.167.
k. Hours and Earnings Statements
    Employers are required to provide earnings statements to workers 
each pay period. The Department proposed that these statements include 
the beginning and ending dates of the pay period, and the employer's 
name, address and Federal Employment Identification Number. The Final 
Rule retains these requirements as proposed. Several commenters 
objected to this addition, stating that it would apply the requirements 
of the MSPA to H-2A workers. The commenters noted that MSPA does not 
include H-2A workers within its protections. See 29 U.S.C. 
1802(8)(B)(ii) and (10)(B)(iii). The Department has determined that 
this information, which is easily ascertainable by the employer, and 
may be added to the existing earnings statement, is essential to the 
employee's understanding as to whether he or she has been paid 
correctly, as well as the identity of the employer. Employees will also 
need this information if they are to report violations of the H-2A 
provisions to the Department. Accordingly, this information is 
important to assuring that the wages and working conditions of H-2A 
workers do not adversely affect U.S. workers. While it is true that 
this information is also required by MSPA regulations, that requirement 
is not a reason to exclude it from earnings statements where it is 
necessary to fulfill the H-2A statutory purpose.
l. Rates of Pay
    The Department proposed to return to the approach taken in the 1987 
Rule with respect to employer productivity standards. This Final Rule 
retains the proposed language although the provision has been modified 
to reflect the additional agreed-upon collective bargaining wage rate 
factor discussed above. Under that provision employers must apply the 
productivity standard that was normally required the year they first 
used H-2A workers unless they entered the system prior to 1977. For 
those employers who entered the system before that time, the 1977 
standard applies. In either case, the OFLC Administrator may approve a 
higher minimum. A number of employer associations objected to the 
proposal on a number of grounds including questioning the need for any 
regulation of productivity standards, expressing concerns about the use 
of a 1977 baseline and noting the need to consider how technological 
changes might impact productivity. We have carefully evaluated these 
comments and believe that they do not reflect an appreciation of the 
history surrounding this requirement or acknowledge the flexibility 
built into the proposal.
    The Department's regulations have reflected a concern about 
productivity standards for more than 30 years. 43 FR 10313, Mar. 10, 
1978. The concerns arose from program experience in which employers 
that paid on a piece rate basis when facing rising hourly guarantees 
would increase productivity standards rather than raise piece rates. 
Initial efforts to address this issue by regulating piece rates were 
unsatisfactory and the 1987 Rule took the alternative approach of 
simply freezing productivity standards, subject to the employer making 
a showing that technological developments justify higher standards. 
That approach served the program well for 20 years and the comments 
offer no compelling reasons to adopt a different approach. Nothing

[[Page 6914]]

negates our historic concern that rising hourly guarantees will 
encourage employers to raise productivity standards rather than piece 
rates. Likewise, the regulation has proven flexible enough to address 
legitimate productivity increases. For example, apple growers were 
allowed to raise productivity standards to reflect the introduction of 
dwarf trees.
    In addition, the Final Rule adds references to a collectively 
bargained wage as one of the potential highest required wage rates, for 
the reasons discussed above.
m. Frequency of Pay
    The Department proposed to return to the 1987 Rule with regard to 
the frequency of pay. The Final Rule provides that workers shall be 
paid at least twice monthly or according to the prevailing practice in 
the area of intended employment, whichever is more frequent. In 
addition to stating the frequency of pay in the job order, the rule 
adds a clarification that employees must actually be paid at the time 
specified in the job order (i.e., when wages are due).
    Commenters objected to the requirement that employees be paid when 
the wages are due, stating that this is an MSPA requirement, and 
therefore inapplicable to H-2A workers. The idea that an employer must 
pay its workers based on its statement in the job order is not novel. 
Courts have recognized that a prompt payment requirement is inherent in 
the FLSA, and that employers must pay employees their wages on the day 
their paycheck is ordinarily due. See, e.g., Biggs v. Wilson, 1 F.3d 
1537 (9th Cir. 1993), cert. denied, 510 U.S. 1081 (1994). The promise 
to pay a required wage is worth little if there is no requirement as to 
when the wage should be paid.
n. Abandonment of Employment or Termination for Cause
    The Department proposed to retain the requirements of the 2008 
Final Rule on the abandonment of employment or termination for cause. 
The Department has decided to adopt this provision as proposed, with 
clarifying edits. Under the Final Rule, a worker is deemed to have 
abandoned employment after he or she fails to report for work for 5 
consecutive working days.
    The Department received a few comments addressing this provision. 
One commenter argued that this provision is one-sided because it 
permits the employer, but not the employee, to be relieved of the 
contract requirements in case of a material breach. The commenter 
proposed a revision to the regulations to exclude circumstances where 
the worker abandons employment because of the employer's material 
breach of a term or condition of the contract.
    The Department has decided against including this suggested 
revision. The issue of an abandonment based on a material breach by the 
employer is a fact-based scenario that is subject to inconsistent 
interpretation and one over whose consequences (status of the H-2A 
worker) the Department has no control. The issue of workers who 
justifiably abandon employment can be best addressed through normal 
Department enforcement processes against the offending employer. WHD 
and/or ETA will address matters within each agency's purview, and make 
appropriate referrals to other agencies, including DHS.
    A few commenters argued that the requirement to report to DOL and 
DHS within 2 days after discovering that a worker has abandoned 
employment is not reasonable. The commenter proposed a change in the 
requirement to permit the employer to wait until 2 days after the end 
of the pay period during which the worker failed to report for work for 
5 consecutive working days. The Department is not making this 
recommended change because the Department believes it is important for 
its regulations to mirror the DHS regulations on this point.
    The NPRM clarified that notice for both H-2A workers and workers in 
corresponding employment needs to be made to the NPC and notice 
concerning an H-2A worker needs to be made to DHS. We note that the 
regulatory language is specific to a worker voluntarily having 
abandoned employment or having been terminated for cause. The factual 
basis underlying any notification provided is subject to review during 
an audit or investigation. If an audit or investigation finds that 
fraud, misrepresentation or other violations were present, the employer 
would not be relieved from the three-fourths guarantee requirement nor 
from the obligation to provide outbound transportation.
    The Department also made minor clarifications in the Final Rule to 
reflect that the notification requirement relieving the employer of its 
obligation for the three-fourths guarantee and outbound transportation 
applies to both H-2A workers and workers in corresponding employment as 
it had in previous rules.
o. Contract Impossibility
    In the NPRM, the Department proposed to retain the 2008 Final Rule 
requirements regarding contract impossibility and included an 
additional obligation from the 1987 Rule that requires employers to 
make efforts to transfer the worker to other comparable employment 
acceptable to the worker in the event the employer is prevented from 
fulfilling the requirements of the work contract. One commenter stated 
that it believed that any transfer of a worker to other comparable 
employment due to contract impossibility should be mutually acceptable 
to the employer and the worker since both have a vital interest in the 
worker's future employment and neither should be allowed unreasonably 
to impede the other from future employment opportunities. The 
Department believes, however, that if it were to require that such 
transfers be mutually acceptable, the employer could object to any 
comparable employment opportunity. The purpose of this section is to 
protect the worker and maximize the worker's employment opportunities--
and not to create a means for an employer to protect its labor supply 
for future seasons. Accordingly, the Department has retained the same 
requirement in the Final Rule as proposed in the NPRM.
    In addition, the Department has edited the section to eliminate the 
requirement that the employer receive documentation of the new 
assignment from the worker. This was removed to clarify that the first 
employer is not the arbiter of the worker's status beyond employment 
with the first employer.
p. Deductions
    Section 655.122(p) of the NPRM proposed to require employers to 
make all deductions required by law and to specify all other deductions 
in the job offer. Further, it proposed that if an employer paid the 
employee's transportation and daily subsistence expenses to the place 
of employment, the employer could deduct those expenses from the 
worker's paycheck, but the job offer had to state that the worker would 
be reimbursed the full amount of the deduction upon the worker's 
completion of 50 percent of the work contract period. Additionally, an 
employer subject to the FLSA may not make deductions that would violate 
the FLSA. The Final Rule generally adopts the rule as proposed, with a 
new paragraph to more fully describe what is meant by the term 
reasonable.
    A large number of commenters addressed this provision. Numerous 
employee advocates emphasized that farm workers' wages have been 
reduced by inappropriate wage deductions. Some employee advocates and

[[Page 6915]]

Congressional representatives suggested that the Department should do 
more to protect employees' wages from deductions for employer business 
expenses, and to ensure that workers receive the full required wage 
rate, by forbidding all deductions not required by law. Other employee 
advocates stated that the regulation should clearly delineate which 
deductions are permissible and which are not, rather than just 
requiring that deductions be reasonable. Some also suggested that the 
Department should strengthen the regulation by adding language 
incorporating the free and clear principle found in the FLSA and 
Service Contract Act regulations, thereby prohibiting any deductions or 
de facto deductions for expenses that primarily benefit the employer if 
the deductions would bring the employees' wages below the required 
wage. These commenters noted that the higher wage rates guaranteed by 
the requirements of the H-2A program can be subverted by unreasonable 
or unauthorized deductions, just as the FLSA minimum wage can be 
subverted. One farm worker advocacy organization specifically 
emphasized that H-2A workers are among the poorest and most vulnerable 
workers and should not be required to wait until they have completed 50 
percent of the contract period to be reimbursed for their 
transportation and transit meal expenses. Others stated that the 
regulations should expressly forbid employers from recouping these 
expenses in any later workweek.
    In contrast, numerous employers and their representatives stated 
that the requirement to reimburse employees for their inbound 
transportation and subsistence at the 50 percent point is appropriate, 
asserting that these costs are not for the primary benefit of the 
employer. They commented that employers, therefore, should not be 
required to reimburse these expenses in the first workweek under the 
FLSA. Specifically, several employer associations stated that the 
Department should return to the FLSA interpretation set forth in the 
preamble to the 2008 Final Rule, repudiate the decision in Arriaga v. 
Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002), and conclude 
that transportation and subsistence are not for the primary benefit of 
the employer. Under that analysis, refusing to reimburse such costs 
would not be a de facto deduction from the first week's wages that 
could constitute a minimum wage violation under the FLSA. These 
commenters emphasized that employers should not have to reimburse such 
costs in the first workweek under the FLSA, since the H-2A regulations 
provide that they must be reimbursed after the employee completes 50 
percent of the job period. They also commented that the balance struck 
by requiring reimbursement at the 50 percent point works well, because 
both parties have an investment in the employment. A few of these 
commenters predicted that the rate at which workers leave their H-2A 
employment and stay in the U.S. out of visa status will increase if the 
FLSA requires reimbursement in the first workweek. One employer 
representative stated that while there may be some concern that 
withholding reimbursement until the middle of the contract period may 
go to the other extreme, the Department's final policy choice should 
reflect the mutual benefits to both the employer and the employee.
    The Department concludes that the Final Rule should mirror the 
proposed rule, with additional clarifying language. The Department 
believes that, in order to avoid confusion, it is important for this 
regulation to continue to remind both employers and employees that, 
where an employer is covered by the FLSA, the requirements of that 
statute also will apply. As the WHD explained in Field Assistance 
Bulletin 2009-2 (Aug. 21, 2009), which addressed the application of the 
FLSA to employers utilizing the H-2B visa program, employers that are 
covered by more than one law must always determine their wage 
requirements under each applicable statute and then apply the highest 
requirement in order to satisfy all laws. See Powell v. United States 
Cartridge Co., 399 U.S. 497, 519 (1950). That Bulletin noted that an 
employer may participate in the H-2B visa program only when it 
demonstrates both that there are not sufficient U.S. workers available 
and that the employment of foreign workers will not adversely affect 
the wages and working conditions of similarly employed U.S. workers. 
Employers who want to bring in H-2B guestworkers must first comply with 
numerous requirements related to the recruitment of U.S. workers in 
order to satisfy the Department that there are not sufficient U.S. 
workers available. Any foreign workers who ultimately are brought in 
under the program are permitted to work only on a temporary basis, with 
no possibility of the job becoming permanent no matter how well the 
employees perform or what skills they acquire. Moreover, the employees 
may work only for the employer who received the labor certification for 
the H-2B visa program. At the conclusion of the specified work period, 
the workers must leave the country and they are not permitted to seek 
subsequent work from another U.S. employer, unless that subsequent 
employer also is certified under the H-2B program. In that context, the 
WHD concluded in the Bulletin that, under the FLSA, the transportation 
expenses and visa fees of H-2B employees are for the primary benefit of 
the H-2B employers.
    As the Bulletin noted, the H-2A visa program is similar to the H-2B 
program, because it also provides for the temporary employment of 
nonimmigrants only when there are not sufficient U.S. workers available 
for the jobs and the employment of foreign workers will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. The H-2A program also involves special recruiting requirements 
directed at locating any available U.S. workers, and the H-2A workers 
who enter the country are similarly limited to temporary employment for 
the qualifying employer, and must leave the country at the end of the 
work contract period unless they go to another qualifying employer. 
Because of the similar statutory requirements and similar structure of 
the H-2A and H-2B programs, the same FLSA analysis applies to the H-2A 
program as was set forth in the Field Assistance Bulletin. Therefore, 
an H-2A employer covered by the FLSA is responsible for paying inbound 
transportation costs in the first workweek of employment to the extent 
that shifting such costs to employees (either directly or indirectly) 
would effectively bring their wages below the FLSA minimum wage.
    The Bulletin also noted that, under the FLSA, there is no legal 
difference between deducting a cost from a worker's wages and shifting 
a cost to the employee to bear directly. Thus, employers may not make 
deductions from employees' wages for employer expenses or require 
employees to pay for such costs out of pocket, if that would bring them 
below the minimum wage, because the minimum wage is received only when 
wages are paid free and clear. The Department concludes that it is 
appropriate to continue to remind employers and employees in the H-2A 
regulations of the simultaneous applicability of the FLSA; otherwise, 
the H-2A requirement that an employer reimburse transportation only 
after the employee completes 50 percent of the contract period could 
result in confusion regarding the FLSA requirement to ensure payment of 
at

[[Page 6916]]

least the minimum wage in the first workweek.
    Furthermore, in order to provide additional clarity, the Final Rule 
describes what is meant by the statement that deductions must be 
reasonable. The Department's regulations implementing the FLSA provide 
that the reasonable cost of an item may not include a profit to the 
employer or any affiliated person, 29 CFR 531.3(b), and that the cost 
of furnishing any facility found to be primarily for the benefit or 
convenience of the employer is not reasonable and cannot be counted in 
computing wages. See 29 CFR 531.3(d)(1). This is so even if the 
employer asserts that the employee has voluntarily agreed to bear such 
costs. Moreover, wages cannot be considered to have been received 
unless they are paid finally and unconditionally or free and clear, 
without any kickback, directly or indirectly. See 29 CFR 531.35. Thus, 
for example, if an employee must purchase a uniform with the employer's 
logo, there would be a violation of the FLSA in any workweek when the 
cost of such a uniform purchased by the employee cuts into the required 
minimum or overtime wages. The same principles also apply under the 
SCA. See 29 CFR 4.168. The Department believes that the same principles 
also must apply to the H-2A required wage rate, in order to ensure that 
the employee receives the legally required wage free and clear without 
any inappropriate, unauthorized deductions. Therefore, the Final Rule 
adds language similar to that found in the FLSA and SCA regulations, 
with a cross-reference to the FLSA regulations.
    However, the FLSA regulations recognize that an employer may make a 
deduction from wages where the employee has voluntarily assigned a sum 
to another, such as a creditor, donee, or other third party (e.g., for 
insurance, union dues, or charitable donations), provided that neither 
the employer nor any person acting in his behalf or interest derives 
any benefit or profit from the transaction. See 29 CFR 531.40. 
Therefore, the Final Rule does not prohibit all deductions or identify 
the specific deductions that are permissible. Of course, Sec.  
655.122(f) of this Final Rule requires employers to provide all tools, 
supplies and equipment required to perform the job, without charge to 
the worker, so no deductions for those items are permitted.
    Finally, because the NPRM proposed to allow an employer to deduct 
any inbound transportation and subsistence costs that the employer paid 
directly, and to retain the longstanding requirement that an employer 
must reimburse an employee for such expenses only when the employee has 
completed 50 percent of the work contract period, the Final Rule does 
not require an employer to reimburse an employee in the first workweek 
up to the level of the H-2A required wage. The Department does not 
believe that requiring reimbursement of inbound transportation and 
subsistence expenses up to the H-2A required wage in the first workweek 
would be appropriate, because the NPRM did not propose to modify the 
longstanding requirement to reimburse these expenses only after an 
employee completes 50 percent of the work contract period. Rather, the 
Final Rule provides with regard to inbound transportation and 
subsistence expenses that employers must comply with the FLSA, where 
applicable, which means that their reimbursement obligation in the 
first workweek for these expenses is limited to the FLSA minimum wage 
level. However, all other deductions must be reasonable, as discussed 
above, and other deductions are tested against the required H-2A wage 
rate, not just the FLSA minimum wage. The requirement that all 
deductions must be disclosed is retained as proposed; therefore, 
deductions that are not disclosed are not permissible. The Department 
understands the concerns expressed by the commenters regarding the 
requirements of this regulation and will carefully monitor the 
experiences of workers and growers under the new rule to determine 
whether it is appropriate to revisit this issue in the future.
q. Disclosure of Work Contract
    The 2008 Final Rule and earlier rules have required that a copy of 
the work contract be provided to the worker and that the copy be 
provided no later than on the day work commences. The NPRM proposed 
that this disclosure be made, as necessary and reasonable, in a 
language understood by the worker. This provision has been retained. 
Some comments asserted that this requirement would require translations 
into regional and village-specific dialects. The Department intends for 
employers to make translations into major languages, and not every 
dialect. The Department believes that employers should provide the 
terms and conditions of employment to a prospective worker in a manner 
that permits the worker to understand the nature of the employment 
being offered, as well as the worker's commitment and rights under that 
employment.
    In addition, we received comments that suggested that the copy of 
the work contract be provided on the day the worker's visa is issued or 
at the time of recruitment. These comments stated that it is unfair to 
allow a worker to travel hundreds or thousands of miles before learning 
the terms and conditions of employment, and that far too often workers 
are not accurately apprised of the terms of the work contract until 
they are in the U.S. The Department agrees. Accordingly, the Final Rule 
requires that a written copy of the work contract be provided to an H-
2A worker no later than the time at which the H-2A worker applies for 
the visa in a language understood by the worker (as discussed above). 
The written copy can be provided at any point in the hiring process 
prior to this point to ensure that the H-2A worker has written notice 
of the terms and conditions of employment prior to departing the 
worker's home country. A written copy of the contract need not be 
provided to each foreign worker who is a potential candidate for 
employment during the process of recruiting or soliciting. However, 
when the employer and the worker have reached a stage in discussing 
employment that has gone beyond the recruiting or solicitation stage 
and an offer of employment has been made, a copy of the work contract 
has to be provided. For a worker in corresponding employment, a copy 
needs to be provided no later than the day on which work begins, 
although employers may be obligated to provide written disclosure 
sooner to migrant or seasonal agricultural workers covered by MSPA. 
Recognizing that some H-2A workers may move to subsequent approved H-2A 
employment, the regulations provide in such situations that the copy be 
provided no later than the time an offer of employment is made by the 
subsequent H-2A employer. Finally, the requirement to provide a copy of 
the work contract was already contained in the proposal, and this 
change only modifies when the copy is to be provided. Therefore, any 
additional costs would be negligible.
    As discussed above, the Final Rule clarifies that employers who 
have an approved modification of a job order must provide the revised 
job order to the workers in the language understood by the workers. If 
the modification of the job order is approved after the workers receive 
the original job order or contract, disclosure of the revised terms and 
conditions must occur as soon as practicable.

[[Page 6917]]

Application Filing Procedures

8. Section 655.130 Application Filing Requirements
a. What To File
    The Department proposed to require employers to file an Application 
with a copy of Form ETA-790. The Department received no comments in 
response to this proposal; therefore, the Final Rule adopts the 
language of the NPRM with minor clarifying edits.
b. Timeliness
    The Department proposed to accept Applications no less than 45 days 
from the date of need in order to assure compliance with its statutory 
mandate to certify all applications within 30 days from the date of 
need. The Department received no comments in response to this proposal; 
therefore, the Final Rule adopts the language of the NPRM.
c. Location and Method of Filing
    The Department proposed to accept Applications by U.S. mail or 
private mail courier to the NPC. The Department received no comments in 
response to this proposal; therefore, the Final Rule adopts the 
language of the NPRM.
d. Signatures
    The Department proposed, consistent with the 2008 Final Rule, to 
require applicants to submit original forms and signatures. However, 
the NPRM clarified that this requirement also applies to associations 
filing as agents for their members, and requires them to obtain 
signatures of all their employer-members before submitting the 
Application to the Department. The Department clarified the existing 
requirement to ensure that all employer-members are on notice of the 
obligations each is assuming and must adhere to under the Application. 
The Department is retaining this requirement.
    The Department received comments opposing the signature requirement 
and indicating that it would be both time consuming and burdensome for 
associations. The commenters also objected to an alleged lack of 
justification offered by the Department for imposing the requirement.
    In order to foster fair play and full disclosure, the Department 
has determined that it must require individual signatures of all 
employers applying for a temporary labor certification. The Department 
expects that this practice will result in better compliance and more 
individual involvement by employers to assure that program requirements 
are met and that both U.S. and foreign workers are treated fairly.
e. Other Comments on Application Filing Requirements
    One commenter proposed that all documents filed with the SWA and 
OFLC be made readily available to U.S. workers and their 
representatives through the Freedom of Information Act (FOIA) or an 
electronic means through a publicly accessible Web site. This comment 
was addressed under the section dealing with the electronic job 
registry, on which the Department intends to post, when the system is 
available, all open and pending job orders.
9. Section 655.131 Association Filing Requirements
    The Department proposed to continue allowing associations to file 
on behalf of their members. The NPRM clarified the role of associations 
as filers (sole employer, joint employer or agent), in order to assist 
the association and employer-members in understanding the obligations 
each party is undertaking with respect to the Application. As in the 
past, an association will be required to identify in what capacity it 
is filing, so there is no doubt as to whether the association is 
subject to the obligations of an agent or an employer (whether 
individual or joint). This requirement is a continuation from both the 
1987 Rule and 2008 Final Rule that required an association of 
agricultural producers to identify whether the association is the sole 
employer, a joint employer with its employer-members, or the agent of 
its employer-members. The Department is retaining this provision with a 
change related to the filing of master applications, as discussed more 
fully below.
    One commenter generally opposed the provision indicating that it 
should be dropped because it requires associations, agents and FLCs to 
provide to DOL confidential and/or proprietary business information. 
The Department notes that neither the NPRM nor the Final Rule requires 
that program users submit information that is confidential or 
constitutes proprietary business information. The Final Rule simply 
requires that the association retain documentation substantiating the 
employer or agency status of the association and be prepared to submit 
such documentation in response to a Notice of Deficiency from the CO 
prior to issuing a Final Determination or audit. While we do not 
believe that information submitted in response to a Notice of 
Deficiency or an audit request would be confidential business 
information, we want to reassure employers and associations that 
information identified as confidential will be protected consistent 
with Departmental regulations.
a. Individual Applications
    As discussed above, the Department proposed to continue permitting 
associations to file as individuals and is retaining this provision in 
the Final Rule. The Department received no comments on this proposal.
b. Master Applications
    As explained in the NPRM, master applications filed by associations 
are clearly contemplated by the INA, and the Department has permitted 
master applications as a matter of practice. In the 2008 Final Rule, 
the Department recognized their use. The NPRM proposed to continue the 
use of master applications but in a more limited fashion. The 
Department is retaining the NPRM provision addressing master 
applications with several changes. In response to many comments 
received on this issue, the Department has reconsidered the one-State 
limitation and has expanded the area of intended employment for 
associations filing master applications to at most two contiguous 
States. In addition, the Department is clarifying that a master 
application may cover the same occupations or comparable agricultural 
employment.
    The Department received a number of comments in response to its 
proposed regulations governing master applications. One commenter 
expressed full support for the proposed changes indicating that they 
will allow for better accountability in the advertising and referral 
process.
    Numerous commenters asserted that the proposed changes to the 
provision governing the use of master applications will prove more 
difficult for employers, without sufficient justification by the 
Department for the changes. Many of these commenters noted that there 
is no reason to limit the use of the master applications to only one 
State, some noting that many farms cross over State lines.
    Similarly, many asserted that a limitation to a single occupation 
and comparable work is not justified because many farmers perform 
different types of work on their farms, and forcing them to duplicate 
the Application process for each type of job would greatly increase the 
cost of meeting their labor needs, and in some cases negatively offset 
the cost sharing

[[Page 6918]]

among the employers covered by a master application.
    Several commenters opposed the single-State, single-occupation and 
comparable work limitations, asserting they will incur greater 
financial and administrative burdens due to a sudden increase in the 
number of master applications they will be required to prepare and file 
to cover all employers, workers and job occupations that would have 
been covered by the same master application under the 2008 Final Rule. 
These commenters proposed that the Department permit the bundling of 
job orders and master applications to reach across State lines so long 
as the jobs are similar and the wages are the same. The same commenters 
opposed the increased paperwork burden.
    Many commenters claimed that the changes appear unjustified and 
that the Department failed to offer a justification based on instances 
of violations or data indicating that master applications are being 
abused in a way that would be addressed by proposed changes. Some 
commenters asserted that this change, along with other changes in 
requirements, will increase the cost of compliance and force some 
employers out of the program.
    One commenter indicated that narrowing the scope of master 
applications that are essential for many H-2A employers will 
particularly affect smaller employers or those with shorter seasonal 
needs. According to this commenter, the one-State limitation fails to 
account for weather patterns and climate that govern the seasons and 
therefore drive most agricultural activities. Further, it is reasonable 
to permit employers and workers in regions where similar activities 
take place at the same time to increase efficiency and effectiveness by 
working together through the use of master applications.
    Another of these commenters noted that both labor and management 
understand that multi-employer Applications offer a benefit to farm 
workers by providing job opportunities. The same commenter contended 
that the Department should provide employers with additional 
flexibility rather than impose restrictive requirements. In addition, 
it asserted that an additional benefit of the expanded availability of 
master applications would result in greater work opportunities for 
workers, lower costs for employer participation, and a higher level of 
compliance among the participating farmers.
    The Department agrees with the commenters regarding the benefits of 
master applications and has therefore retained their use, as intended 
in the INA. The Department's changes to the regulatory requirements are 
not intended to discourage employers from utilizing master applications 
but are rather designed to preserve program integrity and foremost, aim 
at greater protections for U.S. and foreign workers. In addition, the 
Final Rule continues to require a single date of need as a basic 
element for a master application, as well as a longstanding requirement 
that master applications may only be filed by an association acting as 
a joint employer with its members. The Department highlights joint 
responsibility of the association and its employer-members by requiring 
that the association identify all employer-members that will employ H-
2A workers. The Application must demonstrate that each employer has 
agreed to the conditions of H-2A labor certification.
    The Department has modified the provision governing master 
applications to expand the area of intended employment. The 
modification strikes a balance between the programmatic goals of 
protecting job opportunities for U.S. workers and ensuring uniform 
enforcement of the terms and conditions and the need to provide 
flexibility for employer associations. Monitoring program compliance 
becomes more difficult and the potential for violations increases when 
workers under a single application are dispersed across several States. 
Limiting the area of intended employment to two contiguous States will 
make it more likely that employers under the same application will 
learn of and have the ability to correct potential problems and avoid 
liability.
    The Department has determined that limiting the master applications 
to a single occupation or comparable work provides necessary 
protections for both U.S. and foreign workers by providing a 
disincentive to employers to overestimate job opportunities or 
timeframes. Such limits also provide greater incentives to the domestic 
U.S. workforce. Recruiting workers under a master application, with 
many different job openings that may be located at different sites and 
subject to different terms and conditions, may discourage some U.S. 
workers from responding. This may also make the recruitment and 
retention of U.S. workers more difficult because some workers may not 
want to perform diverse activities. This requirement will also assist 
employers in working together to ensure that terms and conditions are 
met with respect to each set of workers employed under a specific 
master application. The Department expects that the nature of the job 
opportunities that can be included in a master application will largely 
mirror how master applications were treated under the 1987 Rule. We 
further note that the regulatory text has been changed to substitute 
the word or for the word and in the phrase ``single occupation and 
comparable work.''
    Although associations may be required to prepare greater numbers of 
applications, the requirement is intended to make it easier for them to 
track compliance with the terms and conditions. As applications become 
more specialized, the associations may find that the number of their 
participating members increases for each application, therefore 
preserving the cost-sharing benefits. Similarly, the need for 
efficiency in processing applications is far outweighed by the 
anticipated improvement in the process, and the increased protections 
for both U.S. and foreign workers that will result.
    The Department is supportive of the use of master applications by 
employers (large and small) as a means to meet seasonal needs and 
believes that the commenters' concerns regarding the impact of 
limitations are exaggerated. The Final Rule returns to the traditional 
use of master applications as operated between 1987 and 2009. The Final 
Rule, with its expansion of the use of master applications beyond a 
single State, preserves the flexibility inherent in the use of master 
applications while ensuring that they are not vehicles for abuse or a 
way to skirt program requirements. Nothing in the Final Rule impacts 
employers with shorter seasonal needs.
10. Section 655.132 H-2A Labor Contractor (H-2ALC) Filing Requirements
    The NPRM revised the provision by providing an introductory 
paragraph that explained what other provisions of the regulations H-
2ALCs are subject to and deleted the redundant sections in the H-2ALC 
section. The Final Rule adopts these changes as proposed, with minor 
editorial clarifications.
    The Department received many comments addressing the need for the 
regulation of H-2ALCs. Most commenters agreed with the proposal that 
specific obligations for H-2ALCs are necessary. However, a majority 
felt that the Department did not go far enough to regulate H-2ALCs, 
asserting that H-2ALCs are the most egregious violators of the H-2A 
program. They pointed out that some H-2ALCs recruit workers when they 
do not have actual jobs to offer; therefore, these commenters were 
pleased that the Department is now requiring additional

[[Page 6919]]

documentation about their contracts and that the WHD has more 
enforcement authority. One commenter contended that H-2ALCs exaggerate 
their labor needs in order to maximize their profits by creating 
something close to a Ponzi scheme in which foreign workers pay 
exorbitant recruiting fees abroad. This commenter suggested that the 
Department create a form for the contract between an H-2ALC and fixed-
site employer in order to ensure that all necessary information is 
provided to the Department such as the legal name of the farm, its 
address, number of workers needed, dates of need, tasks to be 
performed, and the remuneration that the fixed-site employer intends to 
pay an H-2ALC. One commenter requested that the Department explicitly 
acknowledge State and Federal protections provided to all workers 
during recruitment and employment including those related to 
discrimination and retaliation. This same commenter requested that we 
require an H-2ALC to provide a recruitment plan. Additionally, a 
commenter recommended the creation of a Federal H-2ALC licensing and 
continuing education requirement.
    The Department believes that the proposed regulations provide 
sufficient protections to address these commenters' concerns, and no 
additional restrictions or forms or licensing requirements are 
necessary at this time. The proposed protections, including the 
requirements to submit proof of the H-2ALCs' work contracts, will help 
eliminate these egregious abuses and therefore were retained.
a. Scope of H-2ALC Applications
    As stated previously, the NPRM proposed to eliminate multiple areas 
of intended employment in one Application and substituted a requirement 
that each Application be limited to worksites in only one area of 
intended employment. The Department received several substantive 
comments on this particular provision.
    A legal aid organization commended the Department for forbidding 
multiple areas of employment in a single application. The commenter 
claimed that U.S. workers are harmed because positive recruitment takes 
place only at the initial area of intended employment and by the time 
the itinerary reaches some of the later areas of intended employment, 
the 50 percent rule has lapsed and the U.S. workers lack access to the 
work opportunities. The commenter also asserted that the H-2A workers 
incur unnecessary expense because there may be weeks of downtime 
between areas of intended employment so they travel back home to Mexico 
at their own expense. The commenter stated that this would not be the 
case if the job order accurately reflected the actual work activities.
    The Department believes that the enhanced restrictions on H-2ALCs 
serve to address this issue and retains the provision as proposed in 
the NPRM.
b. Required Information
(i) Identify Name and Location of Fixed-Site Employers and Crop 
Activities
    The requirement to list the name and location of each fixed-site 
employer to which an H-2ALC expects to provide H-2A workers, including 
the beginning and ending dates of when the workers are needed and a 
description of the activities the workers are expected to perform and 
crops upon which they will work, is the same in both the 2008 Final 
Rule and the NPRM. The Department received several comments, all in 
support of this provision. One farm worker advocacy group suggested 
that the Department add an additional requirement to include the 
monetary value of the three-fourths guarantee for the applicable work 
performed at each fixed site. The three-fourths guarantee is not 
calculated by each fixed-site employer; therefore, the Department 
cannot implement this suggestion.
(ii) Required Information and Submissions
    The Department did not receive any comments on this section of the 
proposed rule. Therefore, the Department is adopting the provision as 
proposed with minor editorial changes.
(iii) H-2A Labor Contractor (H-2ALC) Bond Requirements
    The Department proposed to continue to require that an H-2ALC 
obtain a bond to demonstrate its ability to meet its financial 
obligations to its employees. This permits the Department to ensure 
that labor contractors can meet their payroll and other obligations 
contained in the terms of the job order and the H-2A program 
obligations. The Final Rule requires that an H-2ALC submit the original 
surety bond (and any extensions thereof) to the Department with the 
Application. This change is not expected to place any additional burden 
on an H-2ALC applicant since such applicants were previously required 
to submit fundamental information from the bond that most applicants 
accomplished by providing a copy of the bond. This requirement to 
provide the bond itself will ensure that the Department has legal 
recourse to make a claim to the surety against the bond following a 
final order finding violations.
    Several farm worker advocates suggested that H-2ALCs should have 
the option of joint employment with each fixed-site employer in lieu of 
the bond requirement. They noted that in that situation, fixed-site 
employers would be held jointly responsible for the treatment of the 
farm workers. The Department believes that the increased surety bond 
amounts provide better protections.
(iv) Provide Copies of Work Contracts
    The NPRM proposed to add a provision requiring H-2ALCs to provide 
copies of their work contracts. The comments were generally in favor of 
this requirement. One commenter requested that additional language be 
added to this provision, specifically, that each contract disclose the 
fact that an H-2ALC intends to employ H-2A workers in connection with 
the contract and that workers employed at the same site at the same 
time in any work included in the job order are employed in 
corresponding employment. One commenter opined that we are requiring H-
2ALCs to provide too much confidential and proprietary business 
information and that those provisions should be dropped.
    The Department has determined that the requirement to include proof 
of work contracts is appropriate for protecting agricultural workers, 
and does not believe additional language is necessary. Additionally, as 
stated above, the Department intends to protect any material identified 
as confidential in accordance with Departmental regulations.
(v) Housing/Transportation
    The NPRM required housing and transportation to comply with the 
standards in Sec.  655.122, and relevant comments are addressed in the 
preamble for that section. The Final Rule adopts the NPRM as proposed.
11. Section 655.133 Requirements for Agents
    The NPRM proposed to require agents to provide, as a part of the 
Application, copies of agreements demonstrating representation--in the 
form of a contract, agency agreement, or other proof of the 
relationship and the authority of the agent to represent the employer. 
In addition, the Department proposed to require agents who are required 
to register as FLCs under MSPA to provide proof of registration. The 
Department is retaining this provision as proposed.

[[Page 6920]]

    The Department received several comments discussing the enhanced 
requirements for agents. One commenter objected to the changed 
requirements arguing that agents, associations and labor contractors 
should not be required to provide confidential/proprietary business 
information.
    Some commenters opposed the requirement arguing that the current 
Form ETA-9142 Application for Temporary Employment Certification (Form 
ETA-9142) already contains a section where the employer may authorize 
another to act as an agent on its behalf and that providing the agency 
agreement creates a redundancy in the application process. One of these 
commenters indicated that both the employer and agent are required by 
law to personally attest with original signatures to the accuracy of 
all representations made in the Form ETA-9142, and knowingly 
misrepresenting constitutes a felony criminal offense punishable by 
$250,000 fines and up to 5 years in jail. In light of such severe 
penalties, this commenter did not see the necessity for additional 
information ascertaining the validity of the representation.
    One commenter claimed that employers hire agents simply to assist 
them with the paperwork and asserted that the scope of such 
representation in most cases never involves activities that would 
require the agent to register as a FLC. In addition, the commenter 
posited that enhanced requirements are unnecessary because the 
Department already imposes separate requirements on H-2ALCs and FLCs.
    An association of employers opposed the enhanced requirements for 
agents arguing that the proposed changes are punitive and the 
Department did not provide justification for the new restrictions and 
did not explain how they will correct or prevent any program abuses. 
This commenter specifically opposed the requirement to submit agency 
agreements and noted that this requirement will simply result in more 
paperwork and cost for employers. The commenter further asserted that 
the Department has no need for private contract information and should 
be solely concerned with employer compliance with program requirements. 
One commenter expressed concern about the possibility that its 
proprietary information may be subject to public release under FOIA.
    One commenter offered support for the enhanced requirements for 
agents, including that agents obtain a bond and licensure.
    The Final Rule adopts the provision as proposed. The Department is 
requiring agents to supply copies of the agreements defining the scope 
of the agency relationship in addition to completing all relevant 
portions of the Application to ensure that there is a bona fide agency 
relationship to ensure program integrity. The requirement, however, in 
no way obligates either the agent or the employer to disclose any trade 
secrets, or other proprietary business information. For example, the 
Department has no interest in or need to know the amount of the fee 
that the agent is charging the employer. The Final Rule only requires 
the agent to provide sufficient documentation to clearly demonstrate 
the scope of the agency.
    Preserving program integrity requires the Department to ascertain 
the validity and scope of the agency relationship. The current 
application procedures require both the employer and the agent to 
attest under penalty of perjury that all information provided on the 
Form ETA-9142 is true and correct. It further includes a declaration by 
the agent or employee of the employer that it is authorized to act on 
its behalf in connection with the Application. This attestation, 
however, simply evidences an existing relationship; unlike the actual 
agency agreement, it does not define the scope of the agency 
relationship and consequently the scope of employer's or agent's 
liability. For these reasons, the Department is retaining the provision 
as proposed.
    In addition, the Department wishes to assure all commenters and 
stakeholders that it will continue to follow all applicable legal and 
internal procedures for complying with FOIA requests that ensure the 
protection of private data.
    The Department agrees with the commenter supporting the need for 
enhanced requirements for agents. The Department, however, does not 
feel that it is appropriate at this time to impose a bonding 
requirement on agents unless the Department determines on a case by 
case basis that they are more appropriately classified as H-2ALCs.
12. Section 655.134 Emergency Situations
    The Department proposed to retain the criteria for accepting and 
processing Applications filed less than 45 days before the date of need 
on an emergency basis. The Department received no comments on this 
proposal and retains it in the Final Rule, with minor editorial 
clarifications.
13. Section 655.135 Assurances and Obligations of H-2A Employers
a. Non-Discriminatory Hiring Practices
    The Department proposed to require employers to make certain 
assurances as a condition for certification. The first of these 
assurances was that the job opportunity remain open to any qualified 
U.S. worker regardless of race, color, national origin, age, sex, 
religion, handicap, or citizenship, and that rejections of U.S. workers 
must be only for lawful, job-related reasons.
    The Department received a few comments on this provision. The 
Department received a comment that this provision is not necessary and 
should be deleted because the employer is already required to comply 
with all applicable laws. Another commenter suggested adding the phrase 
and as otherwise provided by State law to the end of the first 
sentence.
    The Department does not agree with suggested deletion. The 
provision is intended to be specific to the hiring practices of H-2A 
employers, such that the jobs, even those filled by H-2A workers prior 
to the end of the recruitment period, remain available to U.S. workers. 
The Department declines to add the suggested phrase here because this 
concept is addressed elsewhere in the regulation. Therefore, the Final 
Rule contains the language proposed in the NPRM, with an edit 
clarifying that the employer's obligations continue through the 50 
percent point of the work contract.
b. No Strike or Lockout
    The NPRM proposed that employers be required to assure the 
Department that there was no strike or lockout in the course of a labor 
dispute at the worksite.
    The Department received several comments from various groups who 
requested that the Department return to the language of the 1987 Rule 
and the 2008 Final Rule which limited such assurance to strikes or 
lockouts involving the specific job opportunity sought to be filled. 
These commenters claimed that the proposed wording can leave too much 
room for mischief among those who would seek to block the hiring of H-
2A workers. They expressed concern that the proposed language was broad 
and would allow one or two workers to claim that they walked off the 
job over a labor dispute and in such a situation the employer's 
Application would be denied. They also pointed out that the National 
Labor Relations Act does not cover agricultural employment, which means 
that there is no official process for determining the existence of a 
labor

[[Page 6921]]

dispute. These commenters state that the 1987 Rule language was 
carefully crafted to make it clear that if a worker walks off the job 
claiming a labor dispute, only the job opportunity vacated by that 
worker, and not the entire Application, is barred from certification. 
One of the commenters pointed out that the Department provided no 
justification for the proposed change. Several of the commenters opined 
that the proposed definition of strike in the definition section does 
not alleviate this problem because concerted stoppage of work by 
employees as a result of a labor dispute still allows two employees to 
act in concert to prevent an Application from being certified.
    The Department is concerned that narrowing the provision as 
recommended by the commenters would unjustifiably limit the freedom of 
agricultural workers to engage in concerted activity during a labor 
dispute. This would be inconsistent with Congress' broad prohibition 
against granting labor certifications where there is a strike or 
lockout in the course of a labor dispute. The Department believes that 
revising the language based on these comments would result in H-2A 
workers performing not only the jobs identified in the certification, 
but also the jobs performed by those workers engaged in the labor 
dispute. Therefore, the Final Rule retains the language as proposed.
c. Recruitment Requirements
    The Department proposed to require an assurance from the employer 
that it had and would 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 a job through 50 percent of the contract 
period including all extensions, and would conduct recruitment 
activities as set forth in the regulation. The Department received no 
comments on the section dealing with the assurance. Therefore the Final 
Rule generally adopts the NPRM provision as proposed with minor 
clarifying edits. This includes the deletion of the ``whichever occurs 
first'' language regarding the end date of the positive recruitment. We 
have modified this language to impose clarity that one date, if known, 
will overrule the other. For a full discussion of this provision refer 
to the preamble discussion under Sec.  655.158.
d. Fifty Percent Rule
    The Department proposed reinstatement of the 50 percent rule, which 
requires employers to hire U.S. workers through 50 percent of the 
contract period, as outlined in 8 U.S.C. 1188(c)(3)(B)(i). We received 
many comments for and against this proposal, and for the reasons 
discussed below, the Department is retaining the provision as published 
in the NPRM.
    Several Congressional commenters supporting the rule noted that the 
50 percent rule played a crucial role in the reservation of these jobs 
for U.S. workers. Another commenter noted that the 50 percent rule was 
not only an essential protection for U.S. workers, but a significant 
inducement for employers to make serious attempts to recruit U.S. 
workers as a condition of H-2A certification. Several commenters cited 
the role that the rule plays in the continued opportunities for U.S. 
workers for the jobs, close to and even beyond the start date of the 
contract. Other commenters who supported a return to the 50 percent 
rule noted that the longer referral period provides essential access to 
U.S. workers with respect to H-2A jobs. Even some employer commenters 
opposed to the reinstatement of the 50 percent rule recognized the 
Department's statutory need to strike a balance between the priority 
given to U.S. workers and the right of an employer, when it has met its 
legal obligations, to employ H-2A workers.
    Several employer commenters opposed to the rule focused on the 
complications the H-2A employer faces in hiring an H-2A worker, only to 
have the pattern of employment potentially disrupted by a domestic 
worker. Other commenters asserted that U.S. workers are not well served 
by the 50 percent rule when the employer does not want to hire them 
because the foreign workers have arrived. A number of commenters stated 
that there was not sufficient evidence that the rule worked as 
intended. Many commenters referred to the alternative 30-day rule 
imposed in the 2008 Final Rule as a preferred alternative.
    Many commenters focused on the unreliability of the domestic 
workforce referred during the 50 percent period. They noted that 
referred workers were unlikely to even show up for interviews, and that 
many of those who are hired last for no more than a few days. Others 
noted that most employers receiving referrals during the 50 percent 
period choose not to release the H-2A worker but retain that worker, 
either in a superfluous position or as the potential replacement worker 
for when the U.S. worker either does not show up for work or quits 
employment. One commenter noted that, in its State, referrals more than 
doubled in 2009 yet very few actually showed up for interviews and 
ultimately they saw no increase in domestic workers accepting job 
offers.
    Some commenters objected to the cost of interviewing U.S. workers, 
particularly for small farmers. One commenter questioned the return to 
the 50 percent rule, noting what this commenter considered to be the 
small number of workers (11,000) referred by One-Stop Career Centers 
nationwide.
    A commenter stated there is no evidence that the adoption of the 
30-day rule in the 2008 Final Rule (as opposed to the 50 percent rule) 
has adversely impacted U.S. workers. Another asked whether the 
Department had come across new or different information regarding the 
effectiveness of the 50 percent rule to merit its reinstatement.
    The 50 percent rule predates the H-2A program; it was originally 
created as part of the predecessor H-2 agricultural worker program in 
1978. See Sec.  655.203(e); 43 FR 10316, Mar. 10, 1978. In 1986, IRCA 
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 and review other relevant materials, including 
evidence of benefits to U.S. workers and costs to employers, addressing 
the advisability of continuing a policy which requires an employer as a 
condition for certification to continue to accept qualified, eligible 
U.S. workers for employment after the date the H-2A workers depart for 
work with the employer. 8 U.S.C 1188(c)(3)(B)(i). In the absence of the 
enactment of Federal legislation prior to the end of the 3-year period, 
Congress instructed the Secretary to publish the findings immediately 
and promulgate an interim or final regulation based on the findings.
    The study conducted during that time period included the two States 
determined to have had the highest number of U.S. workers who responded 
to referrals during the 50 percent period; it sought only to determine 
the costs to employers that hired workers referred under the 50 percent 
rule and the concomitant benefits to the U.S. workers hired under the 
rule. Accordingly, in 1990, pursuant to what is now 8 U.S.C. 
1188(c)(3)(B)(iii), ETA published an Interim Final Rule to continue the 
50 percent requirement. 55 FR 29356, Jul. 19, 1990. The perceived 
shortcomings of the study were cited by the Department in calling for 
comments regarding the 50 percent rule in 2008, and in conducting 
another study that attempted to secure additional information regarding 
the effectiveness of the 50 percent rule. That

[[Page 6922]]

study, however, also was focused to meet the needs of the 2008 Final 
Rulemaking process.\12\ It selected only 9 participants from each of 
three stakeholder groups--farm employers, SWAs, and farm worker 
advocates. Despite the protests of at least one commenter that this 
study plainly demonstrates the ineffectiveness of the provision, the 
study did not constitute a comprehensive analysis of the effectiveness 
of the rule.
---------------------------------------------------------------------------

    \12\ See ``Findings from Survey of Key Stakeholders on the H-2A 
50 Percent Rule,'' HeiTech Services, Inc. Contract Number: 
DOU069A20380, April 11, 2008.
---------------------------------------------------------------------------

    The Department had a clear statutory obligation to determine if 
there was a need to require employers to continue the longstanding 
practice of accepting referrals from the time of departure of the H-2A 
workforce until 50 percent of the contract period has elapsed. The 
Department's obligation continues and must be implemented in 
furtherance of the Congressional policy that aliens not be admitted 
under this section unless there are not sufficient workers in the U.S. 
who are able, willing, and qualified to perform the labor or service 
needed and that 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. 8 U.S.C. 1188(c)(3)(B)(iii). The 
Department's promulgation of a different timeframe in 2008 Final Rule 
as an alternative to the 50 percent rule was not in accordance with the 
Department's Congressional mandate to ensure that foreign workers are 
not admitted unless sufficient U.S. workers are unavailable and their 
wages and working conditions will not be adversely affected.
    We have considered the commenters' anecdotal concerns about the 
unreliability of the domestic workforce referred during the 50 percent 
period. However, the potential costs that may be incurred as a result 
of U.S. workers leaving shortly after they are hired are outweighed by 
the benefit to U.S. workers and the Department's statutory 
responsibilities to ensure that U.S. workers continue to have access to 
these jobs.
    The Department believes the opportunity provided U.S. workers by 
the 50 percent rule is not insignificant and notes that SWAs have a 
duty through the labor exchange system to refer qualified individuals. 
The States have within their grasp a variety of ways to ensure 
referrals are coordinated and integrated to make sure that those most 
in need of and desiring access to these opportunities are given the 
required access through the 50 percent period. States are reminded of 
their responsibility to use these tools to the fullest extent. Staff-
assisted referrals are one significant mechanism by which SWAs can 
ensure that those seeking these particularized positions have access to 
them. The Department notes that over the 20 years during which the 50 
percent rule was in operation employers did not raise significant 
concerns with regard to this policy.
    With regard to the comment concerning new or different information 
about the effectiveness of the 50 percent rule, the Department does not 
rely on new information as the basis for the reinstatement of the 50 
percent rule. The information that is available through these comments 
is in conflict. While employers argue that this rule presents obstacles 
to their effective operation, worker advocates and some SWAs contend 
with equal vigor that the existence of the 50 percent rule is essential 
to ensuring that agricultural job opportunities are available to 
domestic workers. The 2008 study, which was based on employers that 
employed only 12 percent of the H-2A workers, was an inadequate basis 
upon which to change the Department's longstanding rule. The Department 
finds the lack of definitive data to be the very reason to protect the 
vulnerable domestic workforce, rather than deny it access to these 
jobs.
    The Department has accordingly determined it must protect the needs 
of the U.S. worker population, even if there is potential uncertainty 
for the employer in terms of managing labor supply and labor costs 
during the life of the contract. Moreover, we note that this benefit, 
if employers' comments are correct, is one very few U.S. workers avail 
themselves of--thus making the cost to employers negligible.
    With regard to comments that SWAs refer a small number of workers 
under this rule, the Department does not believe that 11,000 job 
opportunities for U.S. workers are inconsequential, particularly when 
compared to the approximately 70,000 H-2A workers admitted. Moreover, 
with respect to small farmers specifically mentioned as being unduly 
burdened in this process, Congress provided the option of non-
compliance with the 50 percent rule in what is now 8 U.S.C. 
1188(c)(3)(B)(ii), as implemented in the Final Rule.
i. Small Farm Exemption
    The Department proposed a return to the 1987 Rule's small farm 
exemption from the 50 percent rule. Most of those supporting the 
proposal to reinstate this exemption further requested that the 
Department eliminate the provisions limiting its application to those 
small farms that are not members of an association filing a master 
application (or otherwise associated with other employers). The 
Department cannot accommodate this request. This limitation was not 
regulatory, but statutory. See 8 U.S.C. 1188(c)(3)(B)(ii). In that 
provision, Congress specifically excluded small employers who are 
members of associations from the small-employer exemption to the 50 
percent rule. The association, however, can assign any workers referred 
under the 50 percent rule to employers who need additional workers or 
who can more easily accommodate the referred workers, thus minimizing 
or eliminating the burden on small farmers.
ii. Other Comments on the 50 Percent Rule
    Another commenter asked whether the Department would reinstate 
policy guidance addressing the referral of U.S. workers to an H-2A 
employer after the arrival of the H-2A workers. The Department issued 
guidance in 1993 and 2007 instructing SWAs to refer U.S. workers to an 
H-2A employer whose H-2A workers have already arrived only if there is 
no suitable alternative employment available or if the worker expresses 
a preference for an H-2A employer's job opening. The Department does 
not believe it is appropriate to include such guidance in the context 
of the regulation.
e. Compliance With Applicable Laws
    In the NPRM, the Department proposed to require employers to comply 
with all applicable Federal, State and local laws and regulations, 
including health and safety laws, during the period of employment that 
is the subject of the labor certification. This proposal expanded the 
scope of the prior guarantees which, under both the 1987 Rule and the 
2008 Final Rule, limited the required compliance to employment-related 
laws. In addition, the proposed regulations made explicit that H-2A 
employers may be subject to the provisions of the FLSA. The Department 
has decided to retain the enhanced requirement in order to emphasize 
and ensure that both H-2A and U.S. workers are provided all of the 
protections to which they are entitled.
    One commenter supported the expanded proposal, asserting that the 
new assurance would assist State and local governments in curbing 
illegal immigration and exploitation of foreign agricultural workers, 
and it would also grant more uniform protections to all workers. 
Another commenter supported

[[Page 6923]]

the enhanced provision but suggested a change to expand the protections 
to the period of recruitment, as well as the duration of the work 
contract.
    The Department agrees that emphasis on compliance with all 
applicable laws and regulations is intended to bolster protections for 
both U.S. and foreign workers. The provision puts employers on notice 
that they must comply with all applicable laws specifically as a 
condition of program participation. In addition it provides State and 
local agencies with an incentive to work together with the Department 
to identify violators and address issues related to the employment of 
temporary foreign agricultural workers.
    As to the comment suggesting an expansion of the protection to the 
period of recruitment as well as the duration of the work contract, we 
believe that the prohibition against discrimination during the period 
of recruitment provides adequate protection. Additionally, several 
commenters requested that the Department prohibit employers from 
holding or confiscating workers' passports, visas, or other immigration 
documents. The Department recognizes the worker's right not to 
relinquish possession of his or her passport to the employer. 
Therefore, the Department is adding a provision to this section to 
require employers to comply with existing Federal law that prohibits 
confiscation of such documents (William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008, 18 U.S.C. 1592(a)).
f. Job Opportunity is Full-Time
    The NPRM proposed to require employers to offer only full-time 
temporary employment of at least 35 hours per work week, an increase 
from the 30 hours per week in the 2008 Final Rule. The Department made 
this change on the basis that that a 35-hour work week more accurately 
reflects agricultural work patterns and also strikes a more appropriate 
balance between the employers' needs and the employment and income 
needs of both U.S. and foreign workers.
    The Department received a number of comments on this requirement. 
Some of these comments addressed the increased requirement in the 
context of the three-fourths guarantee which is also discussed 
elsewhere in this preamble.
    One commenter offered unqualified support for the proposed 35-hour 
per week proposal. Another commenter, a legal aid organization, 
proposed changes to the provision that would define a full-time job 
opportunity as constituting 8 hours per day and no less than 40 hours 
per week. Another commenter suggested that the Department adopt a 37-
hour per week requirement instead, because it would more accurately 
reflect the reality in the field. As part of its justification, this 
commenter argued that an increase in the hours would bolster the three-
fourths guarantee and ensure that workers are actually employed for the 
duration of the contract.
    Several commenters opposed the new definition of full-time 
employment. Some commenters asserted that the increased hourly 
requirement increases the obligation of the employer to meet the 
minimum hour requirement and thus increases the number of hours for 
purposes of the three-fourths guarantee. Another commenter indicated 
that this would drive up costs for H-2A employers. Other commenters 
asserted that the proposed change in the requirement would drive labor 
costs up 16 percent because the requirement and the three-fourths 
guarantee are now applicable not only to H-2A workers but also to U.S. 
workers in corresponding employment. One commenter also argued that 
this change is compounded by the change in the AEWR methodology 
resulting in prohibitive costs for employers.
    Some commenters suggested the Department retain the 30-hour per 
week requirement because it provides farmers with more flexibility in 
meeting the three-fourths guarantee when they are faced with unforeseen 
circumstances such as inclement weather, etc. Several commenters argued 
that the Department offers no justification for increasing the 
requirement or statistical data indicating that 35 hours, instead of 
30, strikes a more appropriate balance between employers' needs and the 
needs of U.S. and foreign workers. One of these commenters argued that 
farmers do not have the flexibility to set the sale prices in order to 
absorb costs associated with the new proposal, which will result in 
many family farms going out of business and loss of employment for U.S. 
workers.
    The Department's experience in program administration and 
enforcement has shown that the 30-hour requirement does not adequately 
reflect the reality of agricultural production and that most employers 
over the course of the season offer well in excess of that number of 
hours. Although the Department believes that agricultural employers 
need some flexibility to account for the unpredictable factors 
affecting agriculture, the Department's primary responsibility is to 
ensure the availability and viability of job opportunities for U.S. 
workers. The Department has determined that requiring employers to use 
35 hours as the minimum threshold for full-time employment will strike 
a more appropriate balance between the reality in the field, the 
workers' needs for meaningful hours and wages, and the farmers' need 
for flexibility. The Department is therefore retaining the 35-hour work 
week, as proposed.
g. No Recent or Future Layoffs
    The Department proposed to require an employer to assure that it 
has not laid off and will not lay off any similarly employed U.S. 
worker in the occupation in which the employer is seeking to hire H-2A 
workers within 60 days of the date of need. The Department has modified 
the provision in response to comments and has clarified the 
circumstances under which a layoff would not be improper.
    The Department received a number of comments addressing the 
proposal. One commenter expressed concern that the layoff provision 
could create confusion and complications for certain employers with 
long seasons; coupled with the longer recruitment provisions, the 
employer may be required to begin recruitment of U.S. workers (and the 
application process for H-2A workers) before or at the time that it is 
dismissing workers associated with the prior work contract/prior 
season. This commenter further argued that offering to re-hire these 
workers may not remedy the situation because many of them may not 
commit to a job opportunity until a later date. This commenter 
recommended that the Department adopt a shorter recruitment period, 
and/or a shorter layoff protection period and/or require employers to 
attest to their intent to rehire all qualified U.S. workers who have 
been laid off due to the season ending. Another commenter argued that 
it and other employers in the industry regularly dismiss their year-
round employees between December and February. This commenter proposed 
that the Department change the provision so it does not bar such 
employers from using the program.
    One commenter proposed changes to the provision to impose the 
requirement on both the employer and the fixed-site business (to the 
extent they are not one and the same). In addition, this commenter 
proposed additional language to prohibit the employer or fixed-site 
business from causing the layoff in addition to actually laying off the 
workers.
    In response to the concerns of employers with long seasons or who 
dismiss their employees between December and February that they would 
be barred from the program the Final

[[Page 6924]]

Rule clarifies that layoffs are permissible when H-2A workers are laid 
off before any U.S. workers in corresponding employment are laid off. 
We have previously made this point in 29 CFR 501.19(e) and have moved 
it to this provision. Moreover, we note that the employer is required 
to offer employment to all U.S. workers employed in the prior season. 
The Department continues to believe that offering the maximum job 
opportunities to U.S. workers is critical to the Department's 
responsibilities under the H-2A program.
    The Final Rule does not extend the concept of joint employment to 
H-2ALCs and fixed-site employers at the same location for purposes of 
the no layoff provision, where the fixed-site employer does not qualify 
as a joint employer. Only an employer may lay off its own employees and 
therefore each employer is individually responsible for ensuring that 
it does so only for lawful, job-related reasons. Adding the proposed 
language to the provision would create confusion regarding joint 
employment and the ultimate responsibility for the workers under the 
program.
h. No Unfair Treatment
    The Department proposed to prohibit employers from intimidating, 
threatening, coercing, blacklisting, discharging or in any manner 
discriminating against workers or former workers who file a complaint 
against the employer, or who institute any proceeding against the 
employer, or testify in any proceeding against the employer, or consult 
with an employee of a legal assistance program or an attorney on 
matters related to a proceeding against the employer, or exercise or 
assert any right or protection under the H-2A program. This provision 
supplements existing provisions in these regulations requiring 
compliance with Federal, State and local laws, and provisions which 
prohibit unfair treatment. The Department is retaining the provision as 
proposed.
    Some commenters expressed unqualified support for the provision. 
Other commenters proposed to add into this provision new language that 
would include protections for workers who file complaints with the SWA 
or assert rights or institute actions based on State employment or 
housing law or regulations. A Congressional commenter proposed that the 
Department consider additional protections, including visa extensions, 
to prevent retaliation against foreign workers who file complaints 
alleging unlawful conduct.
    The Department believes that its provision requiring compliance 
with all applicable Federal, State and local laws already provides for 
the additional State-related protections proposed by one of the 
commenters.
    The Department supports providing protections to workers so that 
they may complain of violations without fear of retaliation. However, 
the Department does not have the authority to provide for an extension 
of status or stay for a foreign worker; this authority rests 
exclusively with DHS and the Department can take no action with respect 
to extending the status of any individual worker.
i. Notify Workers of Duty To Leave United States
    The NPRM proposed to continue to require an employer to inform H-2A 
workers that they are required to depart the U.S. at the end of the 
certified work period, or if they become separated from the employer 
before the end of that period. The requirement that the workers depart 
applies to all H-2A workers who do not have a subsequent offer of 
employment, approved by USCIS in a subsequent nonimmigrant worker 
petition, from another H-2A employer. This continues a requirement in 
the program which parallels DHS regulations. The Department received no 
comments addressing this provision, and is retaining this provision as 
modified.
j. Comply With the Prohibition Against Employees Paying Fees
    The NPRM proposed to prohibit the employer or its agent from 
seeking or receiving payment of any kind (including, but not limited 
to, monetary payments, wage concessions, kickbacks, etc.) from an 
employee for any activity related to obtaining the H-2A labor 
certification, including payment of the employer's attorneys' fees, 
application fees, or recruitment costs, but not costs that are the 
responsibility of the workers, such as passport fees. The proposed rule 
deleted the reference in the 2008 Final Rule to visa fees as a cost 
that is the responsibility of the workers. The preamble to the NPRM 
explained that visa fees, border inspection fees, and other government-
mandated fees are directly related to the employer's need for the 
workers to enter the U.S. to work for the employer. The Final Rule 
generally adopts the language as proposed, with the removal of the 
reference to the FLSA as unnecessary.
    Employee advocates generally endorsed the proposed prohibitions on 
cost shifting. For example, one employee advocate stated that 
exorbitant recruitment fees imposed on H-2A workers, including 
transportation fees, passport and visa expenses, require workers to 
bankrupt themselves and their families just to enter the U.S. This 
commenter suggested, as did others, that the Department should further 
clarify that fees are the responsibility of the employer and, because 
they primarily benefit the employer, may not be recouped in a later 
workweek. Another employee advocate suggested that the Department 
should go further to eliminate employers' incentive to prefer H-2A to 
U.S. workers and prevent employers from shifting to others the costs of 
importing H-2A by expressly requiring the reimbursement of passport 
fees, hotel costs while waiting in the consular city to interview for 
and receive the work visa, and visa processing fees.
    A number of employers and their representatives objected to the 
requirement that employers pay the workers' visa fees. For example, 
some commenters emphasized that consulate, border crossing and visa 
fees should remain the responsibility of the workers, stating that 
workers also benefit from the employment relationship and should have 
some investment in the relationship. They predicted that there would be 
increased absconding from the job upon arrival if employees did not 
have a financial stake in their decision to enter the country. Other 
employers and their representatives similarly commented that visa fees 
should remain the responsibility of the worker, both in order to 
control employers' costs, and because they are a natural cost of the 
decision to go to another country for a job, from which the employee 
also benefits. Others emphasized that facilitation of the visa 
application process by foreign agents, compensated by the foreign 
beneficiaries, is a longstanding practice, which eases the process at 
the consulate; they stated that using such facilitators is not a 
condition of employment, but a voluntary choice by the workers. 
Moreover, they stated that some applicants will require such assistance 
because they are not literate in English, do not have access to a 
computer, or lack the ability to navigate the various Department of 
State (DOS) forms, yet all of this assistance is outside the control 
and knowledge of the employer. Another employer representative 
expressed concern that if it fronted the worker money for the visa 
appointment fee, the visa application fee and the visa printing fee, 
its costs would be higher and the worker could simply take the money 
and disappear. On the other hand, another employer

[[Page 6925]]

association acknowledged that many employers already advance these 
costs or reimburse them in the first workweek as a result of the 
decision in Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 
(11th Cir. 2002), which held that such visa-related costs are an 
employer business expense. Moreover, several employer associations 
stated that they strongly supported the prohibition on collecting fees 
from workers, stating that it was an essential protection for foreign 
workers, who are often subject to exploitation in their home countries. 
A farm bureau similarly supported the concept that workers should not 
be required to pay these fees, but it expressed concern about liability 
for cross-border payments that it had no knowledge of and therefore 
suggested deleting words like kickback, bribe, and tribute.
    The Final Rule generally adopts the provision as proposed. 
Government-mandated fees such as visa application, border crossing and 
visa fees (including those imposed by the DOS or other government 
contractors) are integral to the employer's choice to use the H-2A 
program to bring foreign workers into the country. Such expenses 
provide no benefit to the employee other than for that particular 
limited employment situation. As the Department recognized in the 
preamble to the 2008 Final Rule, requiring employers to bear the full 
cost of their decision to import foreign workers is a necessary step 
toward preventing the exploitation of foreign workers, with its 
concomitant adverse effect on U.S. workers. Moreover, as one employer 
association acknowledged, many employers already are advancing or 
reimbursing these costs in the first workweek.
    As to employer concerns that some unscrupulous individuals may take 
money that the employer advances and never report for work, the 
Department notes that employers are not obligated to advance such fees 
to employees. Employers may wait and reimburse such fees in the 
employee's first paycheck. Furthermore, the Department is not adopting 
the suggestion of one employee advocate to require employers to 
reimburse employees for their passport costs, because employees may use 
their passport for personal purposes unrelated to their H-2A employment 
with a particular employer. See Wage and Hour Division Field Assistance 
Bulletin 2009-2, http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.pdf. Finally, as noted in the preamble 
to the 2008 Final Rule, employers are not responsible for an employee's 
voluntary choice to use the services of an independent facilitator, 
such as to assist the employee in obtaining access to the internet and 
in dealing with the DOS, so long as such fees are not made a condition 
of access to the job opportunity. However, as was also noted in that 
preamble, the Department will monitor such activities to attempt to 
ensure that any such charges are not de facto recruitment fees charged 
for access to the H-2A program.
    The Department does not believe it is appropriate to identify the 
border crossing, visa, and other government-mandated fees that must be 
paid by the employer with more specificity, as those fees may change 
over time. Moreover, there is no need to repeat that such fees may not 
be recouped in a later workweek, as the discussion of deductions under 
Sec.  655.122(p) makes clear that deductions for such employer business 
expenses may not be made if they bring the worker below the required H-
2A wage rate.
k. Contracts With Third Parties Comply With Prohibitions
    The NPRM proposed to require an employer to assure that it has 
contractually forbidden any foreign labor contractor or recruiter that 
the employer engages in the international recruitment of H-2A workers 
to seek or receive payments or other compensation from prospective 
employees, except as allowed under the DHS regulation at 8 CFR 
214.2(h)(5)(xi)(A). The proposal clarified that the contractual 
prohibition must extend to any agent of the foreign labor contractor or 
recruiter, and that the employer must make the documentation available 
upon request. The Final Rule adopts this provision as proposed, with 
minor clarifying corrections.
    Employee representatives favored the proposed provision. For 
example, one employee advocate applauded the proposal, which carries 
forward the current rule's prohibition on shifting recruitment costs, 
noting that recruitment fees are a burden on foreign H-2A workers and 
their families. Another employee representative similarly expressed 
approval of the prohibition against employers and their agents seeking 
or receiving payments from prospective employees. Several unions 
commented that farm workers often come to the U.S. as the indentured 
servants of the recruiters and middlemen to whom they have promised to 
pay thousands of dollars. Other commenters stated that more must be 
done to protect vulnerable H-2A workers during recruitment abroad, with 
the ultimate employers being made responsible for the recruiters they 
use. One commenter suggested that the Department should require 
employers to compensate their recruiters to eliminate the incentive for 
them to charge fees to H-2A workers.
    Some farmers expressed concern that they might be required to 
reimburse employees who claim that they were forced to pay a foreign 
recruiter a fee, even though the farmer's agent prohibited fees, and 
they wanted the rule to be clear on what the farmer must do to comply. 
Others similarly wondered how the Department would investigate workers' 
claims of alleged payments abroad to verify whether they were paid, and 
they wanted a clearer explanation of how the provision would be 
enforced, with objective standards for compliance and a safe harbor if 
the required contractual terms were in place. One employer 
representative emphasized that the Arriaga decision did not require an 
employer to pay recruiter fees if the employer is not in a position to 
know of or exercise control over such payments. And one foreign 
recruiter stated that it wanted to be able to charge employees a fee, 
because farmers are not willing to pay recruiters until the employees 
have worked for some time. Another labor recruiter stated that the 
prohibition against charging workers for recruiter fees was a 
respectable decision by the Department. However, it wanted some 
assurance that the Department would enforce the prohibition, so that 
responsible employers are not disadvantaged if unscrupulous parties 
continue to charge workers fees.
    As the preamble to the 2008 Final Rule emphasized, 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 
akin to indentured servitude, driving down wages and working conditions 
for all workers, foreign and domestic.
    For the same reasons, the Department continues to believe that 
employers should be required to assure that they have contractually 
forbidden their foreign labor contractors or recruiters from seeking or 
receiving payment from prospective employees, and that the prohibition 
should extend to their

[[Page 6926]]

agents. Contrary to the concerns expressed by some employer commenters, 
as the 2008 Final Rule preamble recognized, the rule does not require 
farmers to pay all costs that employees may claim that they paid to 
recruiters abroad. Rather, the employer must contractually prohibit its 
foreign labor recruiters and their agents from charging or receiving 
such fees. In other words, paying such fees cannot be made a condition 
of access to the job. In response to a recruiter's concern that the 
Department enforce this requirement to ensure that responsible 
employers are not disadvantaged while unscrupulous agencies continue to 
charge workers fees so they can provide workers more cheaply, the 
Department emphasizes that it will monitor these activities to the 
extent possible to ensure that the required contractual terms are bona 
fide. While the Department's power to enforce regulations across 
international borders is constrained, it will attempt to ensure the 
bona fides of such contracts and will work together with DHS, whose 
regulations also preclude the approval of an H-2A petition and provide 
for potential revocation 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. As 
the 2008 preamble stated, when employers use recruiters, 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. For example, evidence showing that the employer paid 
the recruiter no fee or an extraordinarily low fee, or continued to use 
a recruiter about whom the employer had received numerous credible 
complaints, could be an indication that the contractual prohibition was 
not bona fide. Finally, we have deleted language referring to the DHS 
regulations since those regulations defer to DOL regulations to the 
extent that such costs and fees relating to transportation and certain 
government mandated fees are prohibited by DOL.
l. Notice of Worker Rights
    The Department proposed for the first time to require employers to 
post and maintain in conspicuous locations at the worksite a poster 
provided by the Department describing the rights and protections for 
workers employed pursuant to the INA. The posting is required to be in 
English and, to the extent necessary, in any language common to a 
significant portion of the workers if they are not fluent in English. A 
number of commenters stated that while they thought that having to 
provide a written job contract or a copy of the job order was already 
adequate, they did not object to the requirement to display a poster as 
long as any necessary translations were provided by DOL. We note that 
the posting of this notice will provide information not only to H-2A 
workers but will also provide information to U.S. workers, including 
workers who otherwise may not know that they may be engaged in 
corresponding employment and be entitled to the terms and conditions of 
H-2A employment.
    Providing such notification of their rights to workers through a 
worksite poster of their rights is consistent with other programs 
administered and enforced by the Department. It ensures that both U.S. 
and H-2A workers are aware of their rights and are provided with 
resources (in the form of phone numbers or contact information) which 
they may use to notify the Department of any issues at the worksite or 
report employers who fail to meet their obligations under the program. 
The Department is retaining this requirement, with clarification that 
the poster be in any language common to a significant portion of 
workers, as made available by DOL.
    One commenter expressed opposition to this requirement, indicating 
that farm operations have limited available space for posting 
information and that posting may become nonproductive based on the 
quantity of information posted.
    One commenter proposed that the Department adopt a notification 
requirement whereby the H-2A employer would have to notify the SWA 
within 2 work days that the H-2A workers have arrived. This commenter 
argued that this requirement would facilitate outreach by SWAs to H-2A 
workers and facilitate an understanding by both H-2A and U.S. workers 
of the work contract terms. It would also give the H-2A workers notice 
of available resources should any challenges arise. The commenter noted 
that State resources will also be better used if SWAs are not left to 
guess or conduct various trips to see whether or not the H-2A workers 
have arrived.
    The Department has determined that requiring the posting of rights 
specific to workers in the H-2A program is necessary to ensure worker 
protections and program integrity. Although workers may have access to 
other information or recourse for violations, directly providing them 
with knowledge about their rights under the program is intended to 
ensure timely reporting of violations. It further provides employers 
with an additional incentive to fully comply with the assurances and 
obligations under the program.
    Several commenters requested that the Department prohibit employers 
from holding or confiscating workers' passports, visas, or other 
immigration documents. Some of these commenters noted that this 
practice deters workers from leaving abusive situations or challenging 
unfair employer conduct, and that employers use this practice to 
control and exploit workers.
    As required by the Trafficking Victims Protection Reauthorization 
Act, the Department recognizes the need to inform a foreign worker of 
his or her right not to relinquish possession of his/her passport to 
the employer. Although the regulations already incorporate this 
protection under the provision that requires employers to comply with 
all applicable laws, the Department is adding a provision under the 
Assurances section expressly to require employers to comply. The 
Department anticipates that adding explicit references in these 
provisions to these requirements will provide the necessary additional 
worker protections.
    The Department declines to adopt the requirement that an employer 
notify the SWA within 2 working days that the H-2A workers have 
arrived. The role of the SWAs under these regulations consists of 
various activities involving the employer related to the recruitment of 
H-2A workers, including placement of job orders and referring U.S. 
workers to employers for the designated time period, and conducing 
housing inspections. Arrival of the H-2A workers is not a key event in 
these activities.

Processing of Applications for Temporary Employment Certification

14. Sections 655.140-655.145
    The Department received no specific comments on the application 
review process (Sec.  655.140), the Notice of Acceptance process (Sec.  
655.141), the Notice of Deficiency process (Sec.  655.143), and 
submission of modified applications (Sec.  655.144). However, the 
Department did receive a comment from a law firm that made it clear to 
the Department that the organization of this section created confusion. 
The commenter thought that the Notice of Deficiency would be sent out 
after the Notice of Acceptance. In reviewing this comment, the 
Department decided that it would be best to reorganize the order of the 
sections, delete a misplaced section, and make minor word changes to 
facilitate a better understanding of the process. Thus, the Notice of 
Deficiency section will be renumbered and become

[[Page 6927]]

Sec.  655.141 and the first sentence will begin with if the CO 
determines the Application is incomplete instead of when the CO 
determines the Application is incomplete. The submission of modified 
applications will be renumbered and become Sec.  655.142 because only 
Applications that were returned to the employer with a Notice of 
Deficiency need to be modified; therefore, it is logical that it must 
follow the Notice of Deficiency section. The Notice of Acceptance will 
become Sec.  655.143 and the electronic job registry, which is used 
only after any deficiencies have been cured and a Notice of Acceptance 
has been issued, will become Sec.  655.144.
    In addition, Sec.  655.141(c)(5) has been changed to state that the 
employer must seek administrative review within 5 business days or 
submit a modified application pursuant to Sec.  655.142. The language 
in the NPRM which required that an application be denied unless the 
modified application was received within 5 days would have negated the 
purpose of Sec.  655.142.
15. Section 655.142 (now Sec.  655.144) Electronic Job Registry
    The NPRM proposed for the first time the creation of an electronic 
job registry. The comments received were almost equally divided between 
those who supported it and those who opposed it. The major concern of 
those who were against creating a new registry was that the Department 
did not explain the concept in detail and it was hard for them to 
understand why it would be any different from America's Job Bank. 
Several growers' associations and a U.S. Senator declared that this 
proposal is a waste of taxpayer dollars because the information is 
already available through the SWAs. They believe that the only 
justification for such a new database would be the elimination of all 
the other recruitment requirements. Several of the commenters thought 
the registry raises privacy issues. They feared that confidential 
business information would be available on the Internet and would allow 
advocacy litigators to harass the employers or simply subject the 
employers to random non-legitimate referrals from across the country, 
which require the employer to expend time and money responding to such 
inquiries and referrals.
    The NPRM proposed to create this registry for two reasons. One was 
for public disclosure and transparency. The other was to have an 
additional tool through which U.S. workers can be matched with 
employers. A few of the commenters, including SWAs, who agreed with the 
concept of the registry applauded the Department for more open public 
disclosure of the information and admitted that the current systems are 
not uniform and that it will be easier for them to track H-2A job 
orders and enhance the efforts to match workers with jobs. One of the 
SWAs thought the public disclosure would help relieve the SWA from the 
time currently spent responding to inquiries from the media and 
interest groups. The Department's experience has been that SWA 
information is not uniform, and that the creation of the job registry 
will greatly assist the dissemination of this information to the 
public; that it will save tax dollars through the elimination of 
numerous requests through the FOIA rather than cost them for what the 
Department believes is not a redundant system.
    A legal aid bureau commended the Department for proposing the 
registry because it will alleviate the current frustrations experienced 
by the public and stakeholders who must wait for responses to FOIA 
requests. The Department also aims to reduce the substantial number of 
the FOIA requests it receives each year by publishing the job orders 
online.
    Most of the other commenters who agreed with the registry also 
acknowledged their hope that this Federal registry would become the 
only electronic registry of H-2A job opportunities and be used in lieu 
of either the newspaper advertisement or the SWA posting. Some SWAs 
thought the idea was good in principle, but thought that the Department 
should use an existing registry such as JobCentral. JobCentral is a 
partnership between the National Association of State Workforce 
Agencies and Direct Employers Association. SWAs can use the system at 
no cost. The Department examined the option of using an existing 
registry but found that the costs would impose an additional burden on 
employers. Therefore, the Department has decided not to adopt this 
proposal.
    The NPRM did not provide a great deal of detail on how the registry 
would operate. Those details are provided here. The Department will 
announce through a notice in the Federal Register when the registry is 
operational. After creating the infrastructure for the registry, the 
Department plans to scan the Form ETA-790 after redacting confidential 
information, as it would for a FOIA request. The redacted image of the 
Form ETA-790 will be posted on the registry. This should alleviate 
commenters' concerns about the public dissemination on the Internet of 
confidential business information. The same search functions that are 
available to currently search PDF files will be available to search the 
postings on the registry. The Department believes this will be an 
effective mechanism to make this information available to workers, 
employers and advocates.

Post-Acceptance Requirements

16. Sections 655.150-655.158
    The NPRM proposed both pre- and post-filing recruitment. The SWA 
would, as always, be responsible for placing the job order. If the 
initial test of the labor market did not yield enough U.S. workers, the 
employer would file an Application with the Department. Once the CO 
accepted the Application, the CO would direct the SWA to place the job 
order in its interstate clearance system and send the job order to any 
States designated by the CO to be traditional supply States. The 
employer would be directed to place the newspaper advertisements where 
the CO determines appropriate. As in both the 1987 Rule and the 2008 
Final Rule, the NPRM requires that newspaper advertisements direct 
applicants to report or apply for the job opportunity at the nearest 
office of the local SWA where the ad appears.
    The 1987 Rule contained very specific additional recruitment 
requirements that an employer had to perform in order to comply with 
the positive recruitment requirements of the regulations, such as radio 
advertising, contacting FLCs, migrant workers and other potential 
workers by letter and/or telephone, or contacting such entities as 
schools, business and labor organizations, or fraternal and veterans' 
organization. The 2008 Final Rule changed the additional recruitment 
requirements by eliminating many of these steps and by requiring 
employers to contact former U.S. employees. The NPRM proposed a hybrid 
of the two earlier rules. The NPRM kept the 2008 Final Rule requirement 
to contact former employees but proposed to give the CO discretion to 
order additional recruitment as determined necessary, which could 
include newspaper or radio advertising, contacting local unions or FLCs 
or any other method used by non-H-2A employers, depending on the 
prevailing practice in the area of intended employment.
    The requirement to recruit in traditional or expected labor supply 
States is a statutory requirement in 8 U.S.C. 1188(b)(4). The 1987 Rule 
required the OFLC Administrator to ascertain the normal recruitment 
practices of non-H-2A agricultural employers in the area to determine 
what recruitment efforts, if any, should be

[[Page 6928]]

required of the employers in other traditional or expected labor supply 
States. The 2008 Final Rule mandates that the Secretary publish a 
Federal Register notice each year that specifies which States are 
considered traditional or expected supply States and which newspapers 
in those States are to be used for advertising. The NPRM eliminated the 
Federal Register notice requirement and put the burden of determining 
the places and methods of recruitment on the CO at the NPC. The NPRM 
did not mention mandated newspaper advertising in the traditional or 
expected supply States.
17. Section 655.150 Interstate Clearance of Job Order
    One commenter misunderstood the proposed role of the SWA, thinking 
that the NPRM proposed to return recruitment oversight to the SWA. In 
fact, under the NPRM the NPC would take on that role. Another commenter 
misunderstood the role of the SWA under the 2008 Final Rule by saying 
that it does not require the SWA to place interstate job orders, when 
in fact it does. Other commenters were against maintaining the 
requirement for placing job orders through the interstate clearance 
system. These commenters thought the interstate clearance system was an 
antiquated process that does not produce enough U.S. workers. An 
association of growers provided anecdotal evidence about how few 
referrals are received by the growers in the commenter's State from the 
interstate clearance system. This commenter contended that because the 
number of referrals added up to less than 3 percent of the total number 
of workers needed by its grower members, the system is a failure. The 
Department recognizes that growers cannot, in all cases, meet their 
labor needs through the domestic labor force. However, the Department's 
objective is to make sure that every U.S. worker who wants a job in 
agriculture is made aware of the opportunity. Use of the interstate 
clearance system is also required by statute at 8 U.S.C. 1188(b)(4). 
Congress specifically directed the Department to make sure that 
employers' job orders are circulated in the interstate employment 
service system. Therefore, the Department is not able to eliminate this 
provision, and it is retained in the Final Rule with minor editorial 
modifications.
18. Sections 655.151-655.152 Newspaper Advertisements/Advertising 
Requirements
    The Department proposed to require employers to engage in newspaper 
advertisement as part of their positive recruitment efforts. The 
Department removed proposed Sec.  655.151(b) because it was 
inconsistent with the requirements of the CO to direct recruitment, but 
has otherwise adopted the proposed provision with clarifying 
modifications.
    The Department received several comments, with only one in favor of 
the newspaper advertising requirement. The vast majority requested that 
the Department abolish this form of recruitment because it is both too 
costly and ineffective. Several commenters, including one U.S. Senator, 
requested that the Department justify the requirement for newspaper 
advertising with statistical evidence of its efficacy.
    The 2008 Final Rule eliminated a number of recruitment steps whose 
value was questionable, difficult to monitor and burdensome on the 
employer, such as mandatory contact with FLCs, schools, fraternal and 
veterans' organizations, and nonprofit organizations. As commenters 
pointed out during the comment period in this rulemaking and in the 
rulemaking for the 2008 Final Rule, agricultural workers usually find 
out about agricultural jobs by word of mouth. The Department agrees 
but, as pointed out in the 2008 Final Rule, it is almost impossible to 
mandate and enforce such a recruitment step. What the Department has 
found over more than 20 years of H-2A program experience is that even 
though the agricultural workers themselves may not frequently buy and 
read the newspapers, their friends and relatives often do, as do job 
placement agencies and those who advocate on behalf of, and provide 
services to, such workers. None of the commenters presented the 
Department with a viable alternative for getting notice of job 
opportunities to interested constituencies. Therefore, the Department 
declines to remove this requirement.
    Some commenters specifically objected to the Sunday edition 
requirement because it is more expensive to place the ad in the Sunday 
edition and because that edition is more expensive to buy. Commenters 
also pointed out that newspapers are going out of business because of 
all of the new electronic media available. The Department does not 
disagree with the commenters on these points. However, newspapers are 
still the best medium in which to advertise low-skilled jobs, and 
Sunday is still the most popular day for job listings. Therefore, the 
Department declines to eliminate this requirement.
    One comment requested that the Department allow associations of 
agricultural producers acting as agents for their members and filing 
master applications to advertise their master applications in lieu of 
an individual advertisement for each member, and allow the association 
to name itself in the advertisement instead of requiring it to list 
every individual employer associated with the Application. The NPRM did 
not change the master application concept. Master applications can only 
be filed by associations who will be joint employers with their 
members. The association only needs to place one advertisement on 
behalf of itself and its members. Each member does not need to place an 
individual ad. Likewise, the NPRM did not propose to require 
associations filing master applications to list all of the members in 
the advertisement. Quite the contrary, the language in Sec.  655.152(a) 
requires only a statement that the names and locations of its members 
can be obtained at the local SWA in the State where the advertisement 
appeared. However, if the association wishes to file an Application as 
an agent, it may do so only on an individual basis for each of its 
members separately, and the advertisements would need to be run by each 
individual member. The wording of the regulation in this particular 
instance is very clear, and we decline to make any changes in the Final 
Rule.
    The Department received numerous comments on the new requirement 
that advertisements should direct applicants to report or apply at 
their local SWA. The NPRM included a provision requiring that where the 
worksite is remote relative to the population most likely to apply for 
the job opportunity, an accessible alternative location for any 
required interviews must be provided by the employer.
    One commenter, a SWA, agreed with this requirement. All of the 
other SWAs that commented on the issue were against this provision, 
because they thought it was an added cost burden that would require 
farmers to rent and staff offices. Some of the commenters did point out 
that a SWA would probably have space available for interviewing, but 
that it still would force the farmer to lose valuable time on the farm 
to travel to the interview site. Several asked why the Government is 
requiring farmers to have face-to-face interviews when the virtual 
office now exists allowing so many people in other professions to 
conduct such interviews over the phone or other virtual means, the 
Government is requiring farmers to conduct face-to-face interviews.
    The Department agrees with these comments. The provision was 
proposed because of the practice of some

[[Page 6929]]

employers to demand face-to-face interviews in remote places that cost 
the worker not only transportation costs to arrive at the location, but 
even an entrance fee to get on the property, such as a National Forest.
    However, several farmers stated that if the workers cannot even 
find their way to the worksite for an interview, then it is likely that 
they will be unable to get themselves to the job site each day to 
report to work or it is an indication that they are not interested. The 
Department categorically disagrees with this assessment. The statute 
requires that the job be advertised in other States and territories of 
the U.S. where U.S. workers are willing to travel once offered the job, 
such as to a remote job site.
    After considering all of the comments, the Department has decided 
to amend its regulation to resolve the problem identified by the 
commenters. In-person interviews cannot play a significant role in the 
H-2A process since numbers of domestic applicants, and all of the 
prospective H-2A workers, are hired at locations distant from the area 
of intended employment. Domestic applicants generally are interviewed, 
if at all, by telephone. Potential H-2A workers are interviewed, if at 
all, by an employer's representative overseas. The Final Rule reflects 
these realities by requiring that employers who conduct interviews must 
do so by telephone or establish a means by which applicants may be 
interviewed in the location in which they are applying. We have also 
continued the prohibition on employers requiring employees to pay fees 
to apply for the job for which they are sought and on other fees such 
as testing fees. The Department views entrance fees or access fees to 
property where the interview is to be conducted as indicating a lack of 
good faith in the recruitment of such workers. The interview process 
must be one that represents little or no cost to the worker.
    Some of the commenters claimed that the Department did not account 
in our cost-benefit analysis for the cost to the employer of having 
access to a place in which to conduct interviews. However, because we 
are not and never have required in-person interviews of workers, and 
because we also assumed employers who wanted face-to-face interviews 
would use the free services of the One-Stop Career Centers, we need not 
factor in any costs. Employers who wish to require more costly 
interview methods do so by their own choice, not from any requirement 
of these regulations.
19. Section 655.153 Contact With Former U.S. Employees
    The 2008 Final Rule listed specific methods for contacting former 
employees and methods of recording responses. The NPRM proposed to 
simplify the procedures for contacting these former employees. A few 
commenters opined that the new, less specific language meant that the 
employer now had to send all correspondence to former U.S. employees by 
certified mail. The NPRM allowed employers to continue to use the 
methods described in the 2008 Final Rule, such as maintaining copies of 
correspondence signed and dated by the employer or maintaining dated 
logs demonstrating that each worker was contacted, including the phone 
number, e-mail address, or other means used to make contact. However, 
if it is easier for the employer to print out a list of previous 
employees and attach a telephone bill that shows calls placed to all of 
the employees, then the Department will not require that employer to 
rewrite the entire contact list into a formal log. The 2008 Final Rule 
also specifically required the employer to enter the data a second time 
into the recruitment report. The recruitment report requirements are 
clear in Sec.  655.156, and do not need to be repeated in this section. 
All workers who apply or respond to solicitations must be listed in the 
recruitment report.
    A worker advocate group commended the Department on keeping the 
requirement to contact former employees; however, it pointed out that 
this provision has been very poorly enforced because many former 
employees report being refused re-hire by companies using H-2A workers. 
The Department believes the text of the rule provides clear and 
appropriate requirements with which employers should be able to comply; 
therefore the Final Rule adopts the NPRM language with minor editorial 
changes.
20. Section 655.154 Additional Positive Recruitment
    The requirements for positive recruitment and for recruitment in 
traditional or expected labor supply States are mandated by statute. 
Specifically, the statute requires that positive recruitment efforts be 
made within a multistate 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.
    The NPRM cited the statute and gave the CO discretion to determine 
if any additional recruitment is necessary in such States. The CO would 
order recruitment efforts that are normal for similar and smaller 
employers in the area of intended employment.
    Some commenters opined that the 2008 Final Rule was more specific 
on how the traditional or expected labor supply States will be 
determined than was the NPRM. The majority of commenters did not think 
that giving the CO discretion to determine what the additional 
recruitment should be and where was a good idea. These commenters 
asserted that the NPRM lacks any objective and transparent standards, 
which means that employers will be subject to inconsistent, arbitrary, 
or contradictory directions from COs. Another commenter felt that the 
Department did not have the right to delegate the Secretary's statutory 
obligations to COs. Several commenters opined that the Department did 
not explain how the States would be identified or how many would be 
required.
    One commenter went into great detail about the lack of rationale in 
the NPRM for changing to a discretionary model from a specific model. 
According to this commenter, the 2008 Final Rule contained an extensive 
analysis of the rationale behind the requirements in the section in its 
preamble and the Department failed to justify its reasons for departing 
from the rationale. This commenter stated that the Department failed to 
explain the basis for changing course and has provided so little 
description of what the employers might expect that the Department 
failed to provide the necessary notice and opportunity for comment to 
the employers. This commenter requested that the Department return to 
the 2008 Final Rule language.
    An agricultural service provider concurred with many of the 
comments mentioned above, citing its experience with current processing 
procedures and noting the cost and futility of the advertising 
currently required by the CO. Another commenter contended that 
employers must be advised of the requirements and costs they will incur 
before they decide to enter the program. We acknowledge this concern 
and have accordingly sought to limit the expense to employers while 
still satisfying the Department's statutory obligation to ensure 
recruitment of U.S. workers in traditional labor supply States.
    A U.S. Senator was concerned that there was no set limit on the 
number of traditional or expected labor supply States that could be 
designated whereas

[[Page 6930]]

before the Department had promised that there would never be more than 
three States designated. The Department did not plan to designate more 
than three but, in light of all the comments, has added that explicit 
provision to the regulatory text. The Senator also opined that if the 
Secretary believes that sufficient workers can be found in other 
States, then the Secretary should expend the time and resources 
necessary to find them instead of the employers having to do so.
    One commenter believed that the Department was going to require 
advertising in ethnic newspapers in the traditional or expected labor 
supply States. The NPRM does not contain such a requirement. The NPRM 
mentions ethnic newspapers only in the document retention requirements, 
simply stating that if advertisements were run in an ethnic newspaper, 
the employer must maintain proof of publication along with the other 
documents listed in that section.
    The Department has determined to retain the proposed requirement 
with one modification that clarifies that the employer will not be 
required to conduct positive recruitment in more than three States for 
each area of intended employment.
    First, commenters who suggested that the Department is 
affirmatively obligated to locate domestic workers before a 
certification can be denied are incorrect. Under 8 U.S.C. 1188(b)(4), 
employers seeking to use H-2A workers must conduct positive recruitment 
outside the local area.
    In the NPRM, the Department moved from the rigid model imposed by 
the 2008 Final Rule to one in which the CO has more discretion in order 
to allow the Department more flexibility in gathering information to 
determine where available workers may be found, even within a single 
growing season. Since many farm workers migrate over the course of the 
year and since the time it takes to perform various farm work 
activities varies from year to year, the more flexible model proposed 
in the NPRM gives the CO the opportunity to use current information to 
determine the States to which to refer an employer to conduct positive 
recruitment. The designation model of the 2008 Final Rule required the 
Secretary make such designations on an annual basis by formally 
soliciting and then reviewing information supplied from States, 
employers, and worker organizations. The annual designation process was 
an ambitious and unnecessarily formalized process of collecting 
information from a wide range of sources, and then making a decision 
for each State which three other States, if any, would be designated as 
States in which positive recruitment must be conducted. This process 
ties the CO's hands and prevents the CO from using later information 
which may show that workers are available in a State different from one 
of the pre-designated States or from using information that shows that 
workers are not available in one of the pre-designated States. The 
Department believes it can accomplish the same collection of 
information through less formal means, and use that information more 
effectively by allowing the CO some discretion in the selection of the 
methods and areas in which they are employed based on the best and most 
recent information available. The NPC already receives information on 
the availability of workers from SWAs and will welcome, although not 
require, information on labor supply from those same entities 
identified previously to assist in its decisions on the best sources of 
labor to be required of employers.
    The types of recruitment used in the program have not varied 
tremendously through the decades. The Department intends to continue to 
rely on newspaper advertising. While not as important a recruitment 
tool as it may have been in the past, we believe it remains valuable 
and imposes no additional costs over what has been required since the 
1987 Rule.
    Finally, the Department did not plan to designate more than three 
States but, in light of the comments, has added an explicit provision 
to the regulatory text limiting to three the number of States in which 
an employer will be required to conduct positive recruitment.
21. Section 655.155 Referrals of U.S. Workers
    The NPRM proposed to eliminate the requirement that SWAs verify 
employment eligibility and return to the standard of the 1987 Rule 
requiring applicants to indicate that they are qualified. The 
Department received numerous comments on this proposal, which are 
discussed above.
22. Section 655.156 Recruitment Report
    The NPRM proposed to have the employer submit the recruitment 
report only once on a date certain as specified by the NPC in its 
letter of acceptance. The NPRM preamble inadvertently included two 
submissions of the recruitment report to the CO. The Department 
received comments noting that submitting the report twice was an 
unnecessary burden. The Department agrees and because the regulatory 
text only required one submission, the Department clarifies its intent 
to require only one submission of the recruitment report in this 
preamble and does not make any changes to the Final Rule.
    One commenter requested that the Department eliminate the need to 
continue updating the recruitment report throughout the 50 percent rule 
period because the employer's obligation to recruit ends when the H-2A 
worker leaves to come to the U.S. While the employer's positive 
recruitment obligation ends when the H-2A workers depart for the job 
site, the obligation to continue to accept referrals or to process 
potential gate hires continues throughout the period of the 50 percent 
rule. The Department needs to be able to determine whether the employer 
has met its obligations. Thus, the employer must continue to log those 
referrals into the recruitment report and explain whether or not they 
were hired and if not, what the lawful job-related reason was. 
Therefore, the Department declines to change the requirement to update 
the recruitment report and has made one minor editorial change to this 
section.
23. Section 655.157 Withholding of U.S. Workers Prohibited
    The statute prohibits the willful withholding of U.S. workers until 
the beginning of the contract period in order to force the employer to 
send the H-2A workers home under the 50 percent rule. One commenter 
expressed support for the Department's inclusion of these provisions in 
the proposed regulation. Another commenter requested that the 
Department make a minor change to the section by inserting the words 
``if possible'' after the requirement that the employer clearly 
identify the person or entity that withheld the workers. This commenter 
asserts that it is sometimes difficult for the employer to know who the 
actual person or entity is. The Department declines to make this change 
and retains the proposed language, because without identifying the 
actual person or entity allegedly withholding U.S. workers the 
Department has no facts upon which to investigate the complaint. 
Additionally, the Department corrected a typographical error in this 
provision.
24. Section 655.158 Duration of Positive Recruitment
    The NPRM proposed, consistent with the INA, that positive 
recruitment end on the date H-2A workers depart for the employer's 
place of business.
    One commenter claimed that the Department provided no rationale for 
requiring recruitment up to and including the day the H-2A workers

[[Page 6931]]

depart for the employer's place of business and requests that the 
Department remove this requirement. The same commenter also requested 
that the Department adopt the additional provision from the 2008 Final 
Rule of stopping the recruitment 3 days before the first date of need. 
The Final Rule clarifies that unless the SWA is informed in writing of 
a different date, the date that is the third day preceding the 
employer's first date of need will be determined to be the date the H-
2A workers departed for the employer's place of business.

Labor Certification Determinations

25. Sections 655.160-655.167
    The Department did not receive any comments that were within scope 
for Sec. Sec.  655.160-.162. One commenter did suggest that we add 
requirements for training new crew leaders and field supervisors to 
Sec.  655.160, which only deals with the 30-day requirement for the 
Department to adjudicate an Application. The Department does not 
believe this suggestion is appropriate for this section and training of 
employees of an H-2A employer, particularly in the H-2ALC context, is 
dealt with more specifically in the H-2ALC section. The Department has 
also made minor editorial changes to Sec. Sec.  655.164-.165, deleting 
language believed to be unnecessary.
26. Section 655.163 Certification Fee
    The NPRM did not propose to change the certification fee and 
received one comment agreeing with the fee structure. The Department is 
adopting the provision as proposed.
27. Section 655.166 Appeal Procedures (Now Determinations Based on 
Unavailability)
    The Final Rule simplifies the regulatory text by centralizing the 
information about appeals in Sec.  655.171. A commenter identified one 
type of determination for which appeal rights did not appear to be 
included in the provision. Specifically, the commenter was referring to 
the right to appeal a denial or partial denial, where U.S. workers were 
found to be available, but later became unavailable. The INA requires 
that this particular right to appeal must be adjudicated within 72 
hours, while Sec.  655.171 only provides for 5-day turnarounds. 
Therefore, the Department has added procedures similar to those in the 
2008 Final Rule that provided the process for requesting such 
redeterminations.
28. Section 655.167 Document Retention Requirements
    The NPRM proposed a document retention requirement of 5 years. A 
number of comments opposed the proposed increase to 5 years, from the 
3-year requirement in the 2008 Final Rule. The reasons varied from 
simply that the requirement being too burdensome on employers to the 
need for consistency with other less onerous statutory document 
retention requirements such as the FLSA and MSPA. In light of all the 
comments, the Department has reconsidered its position on this issue 
and changed the Final Rule to reflect a 3-year retention requirement.

Post-Certification Activities

29. Sections 655.170-655.174
    The Department proposed certain post-certification activities. 
These included the allowance and process for short-term extension 
requests; appeals of denial of submitted Applications; employers' 
obligations in the event of withdrawal of a job order; the setting of 
(and process for appealing) meal charges; and the creation of public 
disclosure data of H-2A applicants. The Department received comments on 
most of these provisions.
30. Section 655.170 Extensions
    The Department received one comment noting that the Department 
eliminated the right to appeal denials of extension requests. The 
commenter pointed out that the Department did not cite any relevant 
statistics about extension requests, number of denials, number of 
appeals, and number of unsuccessful appeals, nor did it provide any 
justification for removing the right to appeal in the NPRM. The 
Department agrees and has provided for appeal rights in these cases. 
Additionally, the Department has included a requirement that employers 
provide a copy of the approved extension to workers in accordance with 
the disclosure requirements.
31. Section 655.171 Appeals
    The Department has modified the provision concerning de novo 
hearings to require that such hearings be held in 5 business days after 
the Administrative Law Judge (ALJ) receipt of the administrative file. 
While no comments were received on this provision, our administrative 
experience has shown that the 5 calendar day provision was not 
workable.
32. Section 655.172 Withdrawal of Job Orders and Application for 
Temporary Employment Certification
    The Department received no comments on this proposed section. It is 
accordingly adopted as proposed.
33. Section 655.173 Setting Meal Charges, Petition for Higher Meal 
Charges
    The NPRM did not propose any changes to the section addressing meal 
charges for workers. The Department received a comment from a farm 
worker advocacy group that requested we include a statement that the 
maximum meal charge set by these regulations is subject to applicable 
State law and an employer may deduct only the lesser of the two. This 
same commenter also wanted us to amend this section to prohibit 
employers from deducting for days that the employers offered the 
workers no work or less than 8 hours. This commenter contends that some 
employers combine several crops into one job order and have such 
lengthy down times as to cause workers' wages for a week to have a zero 
balance once the meal charges are deducted.
    With respect to meals, the employer must either provide three meals 
a day (with an allowable charge) or must furnish free and convenient 
cooking and kitchen facilities that will enable the workers to prepare 
their own meals during the entire contract period. The commenter's 
suggested language that an employer should be prohibited from charging 
employees for meals consumed on days where no work was provided was not 
proposed in the NPRM and it would not be appropriate to make this 
change without the opportunity for public notice and comment. With 
regard to meal charges and State law, the regulations elsewhere 
specifically require the employer to comply with applicable State laws. 
Therefore, the Department declines to make any changes to this 
provision.
34. Section 655.174 Public Disclosure
    The 2008 Final Rule did not discuss public disclosure. The 
Department has been providing publicly accessible information about 
users of the H-2A program on its Web site for several years now at 
http://www.flcdatacenter.com/. The NPRM proposed to codify a 
longstanding practice of disclosing this information.
    The Department received several comments on this proposal. Several 
thought it was duplicative of the electronic job registry proposed in 
Sec.  655.142; however, it is not. The electronic job registry will be 
a

[[Page 6932]]

temporary posting of scanned copies of the job order and other 
pertinent documents for the duration of the recruitment and 50 percent 
referral periods. Then those documents will be removed. The public 
disclosure data will continue, as it is now, to be in a spreadsheet 
format with only the most basic information, such as the name of the 
employer, attorney, and agent, address of the employer, case number, 
decision and date, contract period certified, number of workers 
requested and number certified, occupation of certified workers, number 
of work hours a week, wage rate, and the State where the foreign 
workers will perform the work. This disclosure data will remain on the 
OFLC Web site for at least 3 years.
    Some commenters requested that the Department add language to this 
section to clarify and reiterate that States must disclose all 
information such as housing inspection reports, and other pertinent 
documents when requested to do so under a FOIA. These commenters state 
that the States are refusing to provide information under the guise of 
protecting privacy. However, States are not subject to FOIA, which 
governs Federal agencies. Therefore, the Department declines to add any 
text to the regulatory language.
    One farm worker advocacy group requested that we mandate employers 
to contract with non-profit groups to provide ``Know Your Rights'' 
training to all first-time H-2A workers during paid work hours. This 
request is beyond the scope of the NPRM. The cost associated with such 
a requirement was not accounted for in the cost-benefit analysis and 
employers did not have a chance to comment on such a requirement. The 
Department believes that the new requirement that was proposed in the 
NPRM and is in the Final Rule requiring employers to post a Department-
provided worker's rights poster will be sufficient to apprise foreign 
workers of their rights.

Integrity Measures

35. Section 655.180 Audits
    The Department proposed to make minor changes to the audit process 
established in the 2008 Final Rule. The proposed section retains the 
Department's discretion to choose which labor certifications requests 
it will audit. The Department is retaining the proposed provision with 
additional minor changes.
    One commenter proposed a change to the language of the provision 
substituting the word will for the word may in order to clarify that 
the Department has the discretion to audit a particular Application, 
not that it will necessarily audit each Application. The Department 
agrees and made the requested change.
    A few commenters contended that the audit procedure is a 
duplicative process since both WHD and OFLC have concurrent enforcement 
authority enabling each to separately audit an Application. These 
commenters asserted that only WHD should have the enforcement authority 
under the final regulations governing the H-2A program, because 
duplicative enforcement will unnecessarily expend government resources 
and create confusion and a burden for employers.
    Several commenters contended that the 2008 Final Rule more 
justifiably included the audit procedure because of its reliance on 
self-attestations by employers, and that the NPRM proposed a full-
adjudication model, therefore eliminating the justification for using 
the audit process. This commenter further argued that after 
certification, the Department should have only one investigative 
process--WHD investigations--and suggested that the Department 
eliminate the audit procedures.
    One commenter argued that should the proposed Audit procedures be 
included in the final regulations, the Department should extend to 30 
days the minimum time for a response to a Department audit request.
    Two commenters, a national farm bureau and a grower's association, 
opposed the requirement that the CO refer any findings of 
discrimination to the Department of Justice (DOJ), arguing that such a 
finding may or may not have merit considering the relative complexity 
of discrimination law. These commenters argued that the Department's 
proposed regulations attempt to deputize COs to make findings about 
violations of law for which they have no mandate or expertise.
    The Department disagrees with the commenters. The Department's 
audit responsibilities rest solely with OFLC. These responsibilities 
are distinct from its revocation and debarment authorities and 
therefore are not duplicative. OFLC's authority to conduct audits is an 
integral part of ensuring that both U.S. and foreign workers are 
provided the full scope of protections available under the H-2A 
program. The audit gives OFLC an opportunity to assess compliance and 
instruct the employer to make changes or adjustments in its compliance 
with the regulations and program requirements. OFLC focuses on the 
issuance and denial of labor certifications, while WHD focuses on 
whether employers have complied with the obligations to U.S. and H-2A 
workers. While audits may lead to revocation and/or debarment, they 
also allow OFLC to determine whether the certifications it has granted 
have been correctly adjudicated so that it can adjust its processes to 
more accurately adjudicate Applications.
    The Department disagrees with those commenters who called for a 
longer response period. The Final Rule provides for a timeframe of no 
more than 30 days for an employer to respond to an audit letter. The 
Department has concluded that the proposed timeframe strikes a balance 
between the employer's need for sufficient time to prepare its audit 
response and the Department's need to ascertain the level of compliance 
in time to address any potential violations affecting U.S. and H-2A 
workers.
    Both the 2008 Final Rule and this Final Rule include the provision 
requiring the CO to refer 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. The Department 
wishes to clarify that it is not undertaking a new or separate mandate 
to conduct audits for the purpose of identifying employers engaging in 
alleged discriminatory hiring practices. Rather, the Final Rule 
documents an existing practice under which the Department assists the 
Office of the Special Counsel to carry out its responsibilities under 8 
U.S.C. 1324B prohibiting unfair immigration-related employment 
practices. Under the Final Rule, employers are placed on notice that 
engaging in a practice to discourage U.S. workers from applying for H-
2A job opportunities or similar discriminatory practices may lead to 
additional liability under the INA and the DOJ regulations at 28 CFR 
part 44.
36. Section 655.181 Revocation
    The NPRM proposed to expand the grounds upon which the Department 
may revoke an approved labor certification. It also proposed to change 
the revocation procedure so that the Department no longer sends a 
Notice of Intent to Revoke. We received a number of comments on these 
proposals. The Department has retained the provision with some 
modifications. One edit clarifies throughout that it is the OFLC 
Administrator, rather than the CO, who exercises the revocation 
authority. The

[[Page 6933]]

Final Rule also amends the basis for revocation proposed at Sec.  
655.181(a)(1) of the NPRM.
    Several commenters generally objected to the expansion of the 
Department's power of revocation authority. These commenters opposed 
the NPRM's elimination of the many restrictions that the 2008 Final 
Rule puts on the Department's authority to revoke. For example, the 
standard proposed in the NPRM would allow revocation for any failure to 
cooperate with a DOL investigation, rather than for only significant 
failures to cooperate as in the 2008 Final Rule, and the proposed 
standard would allow revocation for any substantial violation of a 
material term or condition of the certification without requiring that 
the violation be willful or that the employer be given an opportunity 
to cure the violation.
    One commenter stated that the proposed changes would allow 
revocation if an employer submits documents in response to an audit 
just 1 day late, even if the tardiness is due to an emergency or 
weather that delays the mail. The same commenter also contended that 
the proposed changes would allow the CO to revoke for one instance of 
an H-2A ranch worker acting outside the area of intended employment, 
even if his actions are to retrieve an animal that has wandered away 
from the herd in order to comply with a State law that prohibits 
sheepherders from abandoning sheep. Other commenters worried that 
expansion of the grounds for revocation would allow the Department to 
revoke certifications of well-intentioned employers making minor 
errors.
    Several employer associations stated that revocation is an 
extremely harsh penalty. Because a revocation can have such a damaging 
effect on the employer's business, these commenters believe that 
revocation is appropriate only for employers who willfully commit 
substantial violations. They argued that the restrictions built in to 
the 2008 Final Rule's revocation standards ensure that the Department 
does not apply such a severe penalty erroneously. Some of these 
associations argued that revocation was too harsh a penalty for 
anything other than fraud or willful misrepresentation and that the 
Department's other enforcement methods (including audits, debarment, 
and civil money penalties) were sufficient to address most violations.
    One employer association argued that the Department does not have 
the statutory authority to revoke certification on the expanded grounds 
proposed in the NPRM. The same commenter acknowledged that some 
revocation authority may be inferred when fraud has occurred, but the 
statute does not give authority to revoke because DOL has decided to 
revisit the merits of the Application. The commenter stated that 
Congress was specific about the power to revoke previously approved 
labor certifications: it gave DOL the power to notify DHS when 
revocation should be imposed, but gave no authority for DOL to revoke a 
previously approved petition. The commenter stated that the statute 
does not give the Department the broad powers of authority asserted in 
the NPRM, such as revoking because an H-2A worker performed an 
incidental activity that is not specifically listed in the job order.
    The same commenter argued that the Department has no legal 
authority to revoke labor certifications according to the standards 
proposed in the NPRM, because those standards are destructive to the H-
2A program. The commenter contends that this would constitute an 
illegal taking under the Fifth Amendment.
    Some employer associations objected to the proposal because the 
Department did not support the necessity of expanding the revocation 
power with any data. These commenters stated that the revocation 
standards in the 2008 Final Rule are sufficient to enable the 
Department to address substantial violations, and that the Department 
has not presented data to justify departing from the 2008 Final Rule's 
recent rejection of expanding the revocation authority. Several 
employers argued generally that the heightened enforcement powers 
contained in the 2008 Final Rule were an appropriate trade-off to the 
Department's switch to an attestation-based model. These commenters 
believe that it is only fair for the Department to relax the 
enforcement standards if we are going to return to a certification 
model.
    Worker advocacy organizations were generally in favor of the NPRM's 
expansion of the grounds for revocation, calling it an important 
improvement to the H-2A regulations. One organization proposed that the 
Department add that failure to cooperate in an investigation performed 
by State or other officials enforcing employment or housing laws would 
be grounds for revocation. One Member of Congress generally urged more 
enforcement. The Department believes its revocation authority extends 
only to substantial violations of the H-2A program requirements.
    Congress explicitly endorsed the Department's revocation authority 
as a means of validating the integrity of the program. The INA, 
codified at 8 U.S.C. 1188(e)(1), specifically refers to a revocation of 
certification when discussing determinations made by the Secretary. The 
section does not indicate any limitations on the bases for which the 
Secretary may determine that the certification should be revoked. 
Therefore, we interpret the statute as acknowledging that the Secretary 
has the authority to revoke a labor certification and as providing no 
limitations on that authority.
    The Department understands the concerns of the commenters and we 
are aware of the severe effects revocation may have on an employer, 
especially a small employer. The Department believes its revocation 
authority extends only to substantial violations of the H-2A program 
requirements. However, the Final Rule retains the text of the NPRM, 
with some modifications. The removal of the 2008 Final Rule's 
restrictions on our ability to revoke certifications will ensure that 
we are able to act appropriately against employers whose grievous 
actions undermine the integrity of the H-2A program and must be 
remedied immediately, mid-certification. The Department intends to use 
its authority to revoke only when an employer's actions warrant such 
severe consequences. We do not intend to revoke certification if an 
employer commits minor mistakes or in circumstances that are beyond an 
employer's control. The changes are meant to ensure that when 
revocation is appropriate, we have the ability to act.
    The Department views our revocation authority as a tool generally 
to be used to address an employer's flagrant violations. Therefore, we 
have changed the first ground for revocation to clarify that the 
Department may revoke if the temporary labor certification was 
unjustified due to fraud or misrepresentation in the application 
process.
    We view revocation as a remedy to be used in situations that 
require immediate action. Several commenters expressed their concern 
that the Department would revoke certification mid-season because we 
discovered that the employer had committed a substantial violation 
during a previous certification. This would not fit our conception of 
our revocation authority, and we regret that the NPRM caused some 
employer associations to believe we would engage in such revocations 
for past wrongs. The Department may revoke an employer's certification 
to remedy actions described in Sec.  655.181(a)(1-4) taken during that 
same potentially revocable certification. Debarment is the appropriate 
remedy for

[[Page 6934]]

substantial violations committed during a certification that has 
already ended; the Department's opportunity to revoke the certification 
has expired.
    The Department has many years of experience enforcing the H-2A 
program. Over those many years, the constraints imposed by prior 
regulatory language have made it difficult for us to take action in 
response to flagrant violations. As explained above, we do not intend 
to revoke certification for any and every violation. We believe that 
revocation is an essential tool for protecting the integrity of the H-
2A program and for addressing violations that must be remedied 
immediately. The expansion of the revocation power is simply meant to 
ensure that we are able to use this valuable tool when appropriate.
    The commenter's argument that revocation constitutes a taking is 
premised on the view that the Department is going to use its expanded 
revocation power to destroy the H-2A program. The Department has no 
intention of destroying the H-2A program. On the contrary, as we have 
explained, the Final Rule's changes to the revocation authority are 
meant to ensure that the Department can use the revocation power to 
protect the integrity of the H-2A program.
    A few commenters stated that the proposed revocation standards are 
vague and ambiguous. Some commenters also criticized the proposed 
regulations because they mention but do not define ``material term,'' 
``failure to cooperate,'' or ``failed to comply.''
    We disagree that the standards are vague. The Final Rule states 
that an employer's substantial violation of a material term of the 
labor certification is grounds for revocation. We believe that the list 
of violations in Sec.  655.182(d) paired with the list of factors used 
to determine whether those violations are substantial, listed in Sec.  
655.182(e), communicate to employers the conduct that is unacceptable 
in the H-2A program. These two subsections are referenced in the text 
of the regulation stating grounds for revocation under Sec.  
655.181(a)(2). The words ``material term or condition'' of a labor 
certification were added by the 2008 Final Rule to communicate that 
revocation is not to be used for just any violation of any term of the 
certification.
    The standards ``failure to cooperate with a DOL investigation'' and 
``failure to comply'' are self-evident. We reiterate that we do not 
intend to use our revocation authority to remedy minor errors or 
violations.
    A few employer associations commented on the proposed changes to 
the revocation procedure. One claimed that the elimination of the 
Notice of Intent to Revoke, replaced with a Notice to Revoke that will 
be given immediate effect if the employer does not respond within 14 
days, would not constitute a fair right of appeal. However, the Notice 
of Intent to Revoke given under the 2008 Final Rule also took immediate 
effect after 14 days if the employer did not respond by sending 
rebuttal evidence. The 14-day time period sufficiently balances the 
employer's right to appeal against the reality that circumstances 
warranting revocation require immediate action. The Department would 
not issue a Notice of Revocation 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 safety of the workers is at stake.
    Some employer associations commented on the proposed revision to 
the revocation procedure of the NPRM. Section 655.181(b)(1) states that 
after reviewing any rebuttal evidence submitted by an employer, if the 
CO determines that certification should be revoked, the CO will inform 
the employer. This is a change from the language in the 2008 Final Rule 
which stated that 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, then the CO will inform 
the employer. Some employer associations noted the proposed removal of 
the words more likely than not and characterized this as diminishing 
DOL's burden of proof in support of revocation.
    The Final Rule does not contain the words ``more likely than not''. 
The Department does not intend this to be a substantive change from the 
2008 Final Rule; the language was changed merely for clarity. The 
Department notes that it has no burden of proof at this stage of the 
revocation procedure, and that the only purpose of reviewing rebuttal 
evidence is to determine whether the circumstances reasonably appear to 
warrant revocation. We would not issue a Notice of Revocation if we did 
not believe that the reason for doing so seriously jeopardized the 
integrity of the H-2A labor certification process.
    One commenter stated that the NPRM eliminated the requirement that 
the CO consult with the OFLC Administrator when determining whether to 
revoke certification. What the commenter intended is unclear. The only 
time the 2008 Final Rule refers to the CO consulting with the OFLC 
Administrator is at the very beginning of the section describing 
revocation. This language was not changed in the NPRM. In the Final 
Rule, we clarify that the OFLC Administrator exercises revocation 
authority, rather than the CO.
    A worker advocacy organization proposed that the Department change 
the revocation procedure to state that the Department shall commence an 
investigation to determine whether to revoke certification if 
information is provided to the OFLC by WHD, a SWA, an employee, or any 
other person alleging that an H-2A employer or an H-2ALC has engaged in 
activity constituting the basis for revocation. The organization also 
proposed that any person who provided information that resulted in a 
revocation be provided copies of the notices issued in the proceeding. 
The Final Rule does not mandate that the Department commence an 
investigation in response to every allegation, nor does it mandate that 
the Department share the results of a revocation investigation with 
every person who provided useful information over the course of an 
investigation. Such a system would be unwieldy and an inefficient use 
of resources.
37. Section 655.182 Debarment
    The NPRM proposed to expand the Department's debarment authority. 
It also proposed that the WHD have concurrent authority with the OFLC, 
and it proposed changes to the debarment procedure so that the two 
offices' procedures would be parallel. The Final Rule adopts these 
provisions with minor changes.
a. Expansion of the Debarment Authority
    Many employer associations asserted that the proposed rule's 
expansion of the Department's debarment authority would discourage 
participation in the H-2A program and lead to the program's eventual 
demise. Some commenters stated that the expansion of the debarment 
grounds in the 2008 Final Rule was sufficient to address any 
enforcement problems the Department may have had in the past. These 
commenters advocated that the Department maintain the debarment 
authority as provided in the 2008 Final Rule. One stated that we should 
return to the debarment provisions of the 1987 Rule. On the other hand, 
farm worker advocacy organizations and a Member of Congress generally 
supported the proposed expansion of the debarment grounds.
    We have considered these comments and we believe that the resulting 
debarment provision enables us to use our authority to uphold the 
integrity of

[[Page 6935]]

the H-2A labor certification program without unfairly punishing 
employers who use the program or discouraging their future use of the 
program. The allegations that the Department is trying to destroy the 
H-2A program are unfounded. This Final Rule is intended to improve the 
H-2A program, by taking the best aspects of the 2008 Final Rule and of 
previous rules to create a program that both protects workers and 
enables agricultural employers to access an available labor supply.
b. Elimination of the Pattern or Practice Requirement
    Several farm worker advocacy organizations and a Member of Congress 
commented that they supported the proposal that the Department may 
debar if a party commits one or more acts of commission or omission 
that constitute a substantial violation, rather than requiring a 
pattern or practice of such actions, as in both the 1987 Rule and the 
2008 Final Rule.
    Many employer associations commented that they disagreed with the 
proposed deletion of the pattern or practice requirement. Many of these 
commenters are concerned that the change would make it too easy for the 
Department to engage in debarment proceedings and that the Department 
is looking to debar employers for innocent mistakes or oversight--that 
the Department may seek to punish a well-intentioned, honest employer 
who commits minor mistakes or errors while attempting to follow the 
rules of the program. These commenters characterize the H-2A program as 
extremely complex, and one where unintentional mistakes are easily 
made. Some stated that debarment should be reserved for the truly bad 
actors in the program. The commenters also stated that the Department 
provided no data to support the elimination of the pattern or practice 
requirement.
    The Department has considered these comments, and we have decided 
to retain the NPRM's language deleting the pattern or practice 
requirement in the Final Rule. We believe that by defining a 
substantial violation as one or more acts of commission or omission, we 
will be able to more effectively use our debarment authority to enforce 
compliance with the rules of the H-2A program. In the past, the 
requirement that the Department show a pattern or practice of 
violations has obstructed us from using our debarment authority. As one 
farm worker advocate recounted, these include instances of flagrant 
violations, such as an employer who physically assaulted a worker whom 
he believed had filed an OSHA complaint concerning working conditions 
on the farm. The commenter stated that even though the employer was 
found guilty of the charge in criminal court, he continued to be 
certified and that since the employer had limited the physical assault 
to a single worker, there was no pattern of substantial violations. By 
eliminating the requirement that we show a pattern or practice of 
violations, the Final Rule will enable the Department to remove an 
employer like this from the H-2A program. This will allow us to better 
fulfill our statutory duty to protect the integrity of the H-2A program 
and to debar employers who commit substantial violations.
    The Department appreciates the concern of employer associations 
that by eliminating the pattern or practice requirement, the Department 
will be able to use its debarment authority more easily. The Department 
does not intend to debar employers who make minor, unintentional 
mistakes in complying with the program. The factors listed in Sec.  
655.182(e) of the NPRM have also been retained in the Final Rule. These 
factors are intended to give employers guidance as to what factors the 
Department will consider in determining whether a violation constitutes 
a substantial violation to warrant debarment. The elimination of the 
pattern or practice requirement was intended to ensure that the 
Department is able to use debarment in circumstances that warrant the 
penalty, not to punish well-intentioned employers that inadvertently 
commit minor errors.
c. Specific Proposed Grounds for Debarment
i. Elimination of the Requirement That a Substantial Violation Be 
Willful
    Several employer associations objected that the NPRM eliminated the 
many qualifiers in the 2008 Final Rule which required that actions be 
willful or significant to be considered substantial violations. These 
comments protested that the change would enable the Department to debar 
employers who commit minor, unintentional mistakes when using the H-2A 
program. One commenter argued that the term substantial was too broadly 
defined, given no real qualitative measurement other than the proposed 
factors. That commenter stated that this contrasted with the 2008 Final 
Rule, which provided a detailed list of acts and omissions that meet 
the definition of a substantial violation.
    The Final Rule retains the language of the NPRM. As explained 
above, the Department does not intend to debar well-intentioned 
employers that commit inadvertent or minor mistakes. The Final Rule 
includes the list of acts or omissions that meet the definition of a 
substantial violation as proposed. The Department believes this 
description of the factors the OFLC Administrator may consider when 
determining whether debarment is appropriate in a particular 
circumstance will provide clearer guidance and make the Department's 
determinations more transparent to the regulated community. 
Additionally, the term willful restricted the Department's ability to 
use its debarment authority when appropriate, due to the strict legal 
definitions given the term in other unrelated areas of the law. The 
language of the Final Rule is intended to ensure that the Department is 
able to use its debarment authority when appropriate.
ii. The Elimination of the Definition of Incidental Activities and Its 
Effect on Debarment
    Both the 2008 Final Rule and the NPRM permit debarment of employers 
who use H-2A workers for activities outside the job order. The 2008 
Final Rule, however, contains a qualifier providing that such 
deviations will not result in debarment where they involve an activity 
or activities minor and incidental to the activity/activities listed in 
the job order. The NPRM did not contain this qualification and a number 
of commenters were concerned that this signaled intent on the part of 
the Department to debar employers who were only guilty of minor or good 
faith deviations from the job order. This was not the Department's 
objective, although the Department does not condone the use of H-2A 
workers for activities not authorized by the statute.
    Several farm worker advocacy organizations and a Member of Congress 
expressed support of the NPRM's expansion of the grounds for debarment 
to include employment of an H-2A worker outside the area of intended 
employment. This remains grounds for debarment in the Final Rule.
    The removal of the minor and incidental language from the 
definition of agricultural labor and services is discussed above in the 
definitions section.
iii. Debarment for Improper Displacement of U.S. Workers and Workers in 
Corresponding Employment
    The NPRM proposed to add the improper layoff or displacement of 
U.S. workers or workers in corresponding employment as an additional 
ground for debarment. Some farm worker advocacy organizations and a 
Member of Congress commented that they support the proposed expansion 
of the grounds for

[[Page 6936]]

debarment to include the improper displacement of U.S. workers.
    Several employer associations objected to the added ground for 
debarment. These commenters were concerned that the breadth of the 
concepts of displacement and corresponding employment would allow a 
significant expansion of the debarment authority.
    The Final Rule includes this added ground for debarment. An 
employer's improper displacement or layoff of U.S. workers frustrates 
the very purpose of many of the protections for American workers 
imposed by the INA itself--the primary goal of the H-2A program is to 
allow agricultural employers access to the labor force they need while 
protecting the employment opportunities for U.S. workers. Improper 
displacement of U.S. workers clearly subverts a fundamental purpose of 
the H-2A program. Additionally, the Department does not believe that 
improper displacement needs to be more clearly defined--improper 
displacement is any displacement caused by an employer's failure to 
comply with the H-2A rules.
iv. Added Grounds of Debarment for Violations of the Anti-Fee Shifting 
Provisions and the Anti-Discrimination Provisions
    Several commenters objected to the proposed additional grounds that 
would allow debarment of employers that violate the anti-fee shifting 
provisions or anti-discrimination provisions of the proposed rule. The 
commenters generally objected that these added grounds were an 
unwarranted expansion of the Department's debarment authority.
    The Final Rule retains the proposed added grounds for debarment. 
Strict enforcement of the anti-fee shifting provisions and anti-
discrimination provisions is essential to providing needed protections 
to H-2A workers and to workers in corresponding employment. 
Additionally, strict enforcement of the anti-discrimination provisions 
is essential to maintaining program integrity and compliance, because 
intimidation of farm workers who file complaints or otherwise 
participate in the enforcement process impairs the Department's ability 
to effectively enforce the requirements of the H-2A program.
v. Failure To Pay Certification Fees in a Timely Manner
    The NPRM proposed to define a substantial violation to include an 
employer's failure to pay a necessary fee in a timely manner. The Final 
Rule adopts this proposed change but clarifies that the ``necessary 
fee'' to which the NPRM refers is the certification fee, described in 
Sec.  655.163. One commenter contended that this ground for debarment 
is overly harsh. The commenter stated that because the proposed rule 
has eliminated the requirement of showing a pattern or practice of 
violations, this means that the Department may debar an employer if a 
fee payment arrives one day late in the mail. The commenter points out 
that most employers who use the H-2A system live in rural areas where 
mail delivery is not efficient, and the employers often live a far 
distance from a post office. He points out that many agricultural 
employers are small, family-run businesses that may not have enough 
time to spare a person to go to the post office in times of bad 
weather. Finally, the commenter argues that this proposed provision 
departs from other immigration programs run by the Department, where 
one late payment could never cause the harsh result that the employer 
could not participate in the program for years to come.
    The Department is very aware of the severe consequences that 
debarment has for an employer's business, especially for a small 
business. Again, the Department's objective in expanding the definition 
of ``substantial violation'' is not to debar employers for minor errors 
or circumstances beyond the employer's control. We expanded the 
definition to ensure that we will be able to institute debarment 
proceedings when circumstances warrant it, and to ensure that we are 
not obstructed by our own regulatory language. The Department must take 
very seriously the failure to pay the required certification fees in a 
timely manner simply because we do not believe that it is an effective 
use of our limited resources to track down employers who fail to pay 
fees. By defining the late payment of certification fees as a 
substantial violation in the Final Rule, we intend to impress upon 
employers that the timely payment of such fees is their responsibility 
which we expect them to fulfill if they choose to participate in the H-
2A program.
vi. Failure To Pay Wages
    The NPRM did not propose changes to this requirement. One farm 
worker advocacy organization commented that the Final Rule should 
include an explicit statement that multiple reports of unpaid wages 
will result in debarment. The same commenter stated that there should 
also be a streamlined system for filing wage complaints and immediate 
investigations upon receiving the complaints. We believe that the 
explicit statement is unnecessary; the Final Rule includes as grounds 
for debarment the failure to pay or provide the required wages to H-2A 
workers or workers in corresponding employment. That provision would 
allow the Department to debar an employer if the employer is found to 
have failed to pay the required wages, especially if it failed to do so 
multiple times. As for the streamlined system, we believe that this is 
available through the Job Service Complaint System.
d. Grounds for Debarring Joint Employer Associations
    Several employer associations commented on the NPRM's expansion of 
the standard for debarment of members of joint employer associations to 
any member that has reason to know of the association's debarrable 
violation. These commenters stated that the standard is too expansive 
and unduly harsh, and that the 2008 Final Rule's participation or 
knowledge standard should be retained. Some commenters also objected 
that the Department had not provided any data supporting the need for 
this change.
    The Final Rule retains the language proposed in the NPRM. The 
Department's change to the debarment standard for members of joint 
employer associations is consistent with the statutory language in 8 
U.S.C. 1188(d)(3)(B)(1), which states that an individual producer-
member of a joint employer association will not be debarred if the 
association commits a substantial violation unless the member 
participated in, had knowledge of, or reason to know of the violation.
e. Debarment of Agents/Attorneys
    The NPRM proposed to authorize the Department to debar agents and 
attorneys. One commenter stated that the INA only gives the Department 
authority to debar employers, and therefore the Department has no 
authority to debar agents or attorneys. As explained in the 2008 Final 
Rule's preamble, we believe that acts committed by agents and attorneys 
of employers may constitute substantial violations and, accordingly, 
that agents and attorneys of employers should be debarrable parties.
    The commenter's argument that the statute does not give the 
Department the power to debar agents or attorneys seems to be premised 
on the argument that by naming one thing in the statute, Congress meant 
to exclude all others, a legal maxim of statutory construction referred 
to as expressio unius est exclusio alterius. However, this maxim

[[Page 6937]]

is limited in application. In order for it to apply, the necessary 
implication is that Congress considered the unnamed possibility (such 
as debarring agents or attorneys) and meant to exclude it, as opposed 
to excluding the term inadvertently or simply deciding not to address 
it. Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citing 
United Dominion Industries, Inc. v. United States, 532 U.S. 822, 836 
(2001)). The application of the maxim can also be limited where the 
exclusion would result in inconsistency or injustice or would undermine 
the general purpose of the statute. See Ford v. United States, 273 U.S. 
593, 612 (1927), and Herman & MacLean v. Huddleston, 459 U.S. 375, 387 
n.23 (1983).
    The INA makes no reference to the role of agents or attorneys in 
its labor certification provisions. The involvement of two parties in 
the H-2A certification process is strictly a construct of the 
regulations. Therefore, it would be difficult to believe that Congress 
actually considered acts committed by agents and attorneys, much less 
deliberately excluded them when it drafted the debarment provision. 
Additionally, if the Department were not able to debar agents or 
attorneys, the integrity and effectiveness of the H-2A program 
potentially would be at risk, which would seem to undermine the 
Department's ability to carry out its responsibilities under the 
statute. Criminal cases under other immigration programs are strong 
evidence that agents and attorneys can commit flagrant violations of 
the INA, sometimes without the knowledge of their clients.
    Additionally, the Department has inherent authority to regulate the 
conduct of attorneys and agents who practice before it. The Department 
has invoked this authority to debar agents and attorneys under the PERM 
and H-1B immigration programs. As discussed in the preamble to the PERM 
fraud rule, there is extensive case law establishing that Federal 
agencies have the authority to determine who can practice and 
participate in administrative proceedings before them. The general 
authority of an agency to prescribe its own rules of procedure is 
sufficient authority for an agency to determine who may practice and 
participate in administrative proceedings before it, even in the 
absence of an express statutory provision authorizing that agency to 
prescribe the qualifications of those individuals or entities. Koden v. 
United States Department of Justice, 546 F.2d 228, 232-233 (7th Cir. 
1977) (citing Goldsmith v. United States Board of Tax Appeals, 270 U.S. 
117 (1926)). See also Schwebel v. Orrick, 153 F. Supp. 701, 704 (D.D.C. 
1957) (The Securities and Exchange Commission has implied authority 
under its general statutory power to make rules and regulations 
necessary for the execution of its functions to establish 
qualifications for the attorneys practicing before it and to take 
disciplinary action against attorneys found guilty of unethical or 
improper professional conduct). In addition, an agency with the power 
to determine who may practice before it also has the authority to debar 
or discipline such individuals for unprofessional conduct. See Koden, 
564 F.2d at 233. Further, as the Department has the authority to 
prescribe regulations for the performance of its business (as is the 
case with all executive departments under 5 U.S.C. 301), it likewise 
has the authority to determine who may practice or participate in 
administrative proceedings before it and may debar or discipline those 
individuals engaging in unprofessional conduct. The Department has 
exercised such authority in the past in prescribing the qualifications 
and procedures for denying the appearance of attorneys and other 
representatives before the Department's Office of Administrative Law 
Judges under 29 CFR 18.34(g). See also Smiley v. Director, Office of 
Workers' Compensation Programs, 984 F.2d 278, 283 (9th Cir. 1993). 
Accordingly, the Department has the authority to debar agents and 
attorneys. We have decided to assert this authority to maintain the 
integrity of the H-2A program and to be consistent with other 
immigration programs.
    The same commenter argued that the Department's assertion of its 
authority to debar attorneys will have severe implications on attorney-
client privilege, impairing an attorney's ability to give advice about 
these regulations to his or her clients, lest a client's question cause 
the attorney to know or have reason to know about a client's 
substantial violation. The Department acknowledges this concern. 
However, as explained in the preamble to the 2008 Final Rule, the 
Department does not intend to make attorneys (or agents) strictly 
liable for debarrable offenses committed by their employer clients. The 
Department does not intend to debar attorneys who obtain privileged 
information during the course of representation regarding their 
client's violations. We asserted authority to debar attorneys, like the 
authority to debar agents, to ensure that we are able to address 
substantial violations committed by the attorneys or agents themselves, 
or committed in concert with the employers. The Department is not 
seeking to debar attorneys who, while working to assist their clients 
in complying with the H-2A program, make an error. Nor are we seeking 
to debar attorneys whose clients disregard their legal advice and 
commit substantial violations; the appropriate party to be debarred in 
that situation would be the employer-client. However, the Department is 
asserting its authority to debar attorneys who work in collusion with 
their employer-clients to commit substantial violations. Therefore, in 
response to the comments, we have modified the Final Rule to allow for 
the debarment of attorneys only if the OFLC Administrator finds that 
the attorney has participated in a substantial violation.
f. Statute of Limitations for Initiating Debarment Proceedings
    The NPRM did not propose any changes to the statute of limitations 
for debarment proceedings. One commenter suggested that the Department 
change the time limitation to issue a Notice of Debarment. The 
commenter suggested that rather than stating the notice must be issued 
no later than 2 years after the occurrence of the violation, the 
regulations should require a Notice of Debarment be issued no later 
than 2 years from the time the debarring authority learns of the 
debarrable activities.
    However, the restriction to 2 years is mandated by the INA. 
Accordingly it is maintained in the Final Rule.
g. Debarment Procedure
i. Concurrent Authority With WHD
    The NPRM proposed and the Final Rule provides WHD the authority to 
debar employers, agents, and attorneys who commit substantial 
violations, in addition to OFLC's authority to debar. A number of 
commenters supported this change from the 2008 Final Rule, because they 
believe that it will strengthen and improve the efficiency of 
enforcement of the H-2A regulations. Conversely, many employer 
associations opposed concurrent debarment authority, predicting 
inconsistencies in the two agencies' interpretation of the regulations. 
These comments are discussed in the sections that discuss the debarment 
authority of the WHD.
    The Final Rule states that the OFLC and the WHD will coordinate 
their activities so that only one debarment proceeding is imposed for 
the same substantial violation. The Department notes that the two 
agencies have been concurrently involved in debarment

[[Page 6938]]

proceedings from the beginning of the H-2A program, with WHD performing 
the investigations and OFLC conducting the actual debarment proceedings 
on WHD's recommendations. This experience the two agencies have in 
coordinating their actions will help minimize any inconsistencies that 
may exist between the agencies' interpretations of the program 
requirements. Furthermore, the two agencies' debarment proceedings are 
the same, which is intended to eliminate any inconsistencies between 
the agencies' interpretations. Three grounds for debarment are listed 
in Sec.  655.182(d)(2-4) that are not present in the regulations 
governing WHD's involvement in the H-2A program, because these grounds 
concern the processing of an employer's Application for H-2A labor 
certification, which is solely within the jurisdiction of the OFLC. The 
Department believes that conferring concurrent debarment authority on 
both agencies will improve the quality of H-2A enforcement and increase 
efficiency.
ii. Changes to the Debarment Procedure of OFLC
    The NPRM proposed to extend concurrent debarment authority to the 
WHD, and made changes to the OFLC debarment procedure so that it would 
parallel the debarment procedure of the WHD. This included eliminating 
the step wherein the OFLC sends the employer a Notice of Intent to 
Debar, and eliminating the employer's opportunity to submit rebuttal 
evidence to the OFLC Administrator upon receiving that Notice of 
Intent. Instead, the proposed rule gave the employer an immediate right 
to a hearing before the ALJ, and then the right to request review 
before the Administrative Review Board (ARB). The Final Rule adopts 
many of the proposed changes, but it amends the proposed elimination of 
an employer's chance to submit rebuttal evidenced. The Final Rule also 
clarifies that the OFLC Administrator rather than the CO will exercise 
debarment authority, and the Final Rule makes minor changes relating to 
service so as not to preclude, for example, electronic service. 
Additionally, the Final Rule makes a minor change to the provision in 
Sec.  655.182(f)(3) of the NPRM that stated the ALJ's decision after a 
debarment hearing will be provided to the employer, OFLC Administrator, 
DHS, and DOS by means normally assuring next-day delivery. The Final 
Rule states that the ALJ's decision will be immediately provided to the 
parties to the debarment hearing by means normally assuring next-day 
delivery. This change was made so the language would include an 
attorney or agent if that person (rather than the employer) was the 
party subject to the debarment hearing. Additionally, the reference to 
DHS and DOS was eliminated here because it is redundant; Sec.  
655.182(g) states that final debarment decisions will be forwarded to 
DHS promptly.
    Many employer associations objected to the changes proposed to the 
OFLC debarment procedures. A number of commenters objected to the 
elimination of debarred parties' opportunity to submit rebuttal 
evidence providing them with only one option to respond to a Notice of 
Debarment, namely to request a hearing before the ALJ. Many commenters 
stated that this would deny the parties due process.
    The Department considered these comments and is restoring the right 
to submit rebuttal evidence. The Final Rule adopts a hybrid approach. 
The procedure for a debarment proceeding that is initiated by WHD will 
still follow the procedure as proposed. A regulatory provision for 
submission of rebuttal evidence by an employer in a debarment 
proceeding conducted by the WHD is unnecessary--a WHD debarment 
proceeding will be predicated on a WHD investigation that involves 
numerous opportunities for communication between the WHD and the party 
that is subject to the investigation. However, the procedure for a 
debarment proceeding initiated by the OFLC will include a provision 
allowing the party who receives a Notice of Debarment to choose first 
to submit rebuttal evidence to the OFLC Administrator before requesting 
a hearing before the ALJ. This procedure for OFLC debarments is better 
suited to the method of OFLC investigations, which consist mainly of an 
OFLC audit and written exchanges between the OFLC and the party subject 
to debarment. This procedure for OFLC debarment is also more closely 
parallel to the OFLC procedure for revocation. However, the OFLC 
debarment procedure will still parallel WHD's debarment procedure after 
the potentially debarred party's opportunity to submit rebuttal 
evidence, including a party's opportunity to request a hearing before 
an ALJ and then on appeal to the ARB. This procedure will ensure that 
employers have ample opportunity to be heard during debarment 
proceedings initiated by the OFLC while also maintaining the ARB as the 
single highest authority for all debarments from the H-2A program, 
whether initiated by the WHD or the OFLC. This will ensure consistency 
in the application of debarment standards by both agencies.
    Other employer associations commented that there should also be a 
process by which an H-2A employer can appeal a Notice of Debarment. The 
intended meaning of this comment is unclear since there is provision 
for an appeal.
    Finally, as in its comments regarding the revocation section, one 
farm worker advocacy organization proposed that the regulations state 
that the Department shall commence a debarment investigation if it 
receives any information provided from a SWA, an employee, or other 
person alleging activity that may constitute grounds for debarment. The 
organization also proposed that any person who provided information 
that resulted in a debarment be provided copies of the notices issued 
in the proceeding. The Final Rule does not adopt such an inflexible 
system for the same reasons mentioned under the revocation section--it 
is inefficient and hinders the Department's discretion in enforcing its 
regulations.
38. Section 655.183 Less Than Substantial Violations
    The NPRM proposed to require an employer to follow special 
requirements during its recruitment process if the Department believes 
that past actions on the part of the employer (or agent or attorney) 
may have had and may continue to have a chilling or otherwise negative 
effect on the recruitment, employment, and retention of U.S. workers if 
the Department determined that the employer was guilty of a less than 
substantial violation of the terms of its labor certification. It also 
proposed an appeals process the employer may pursue if it disagrees 
with the Department's determination. The Final Rule retains this 
provision as proposed.
    A few employer associations opposed this section. Generally, they 
stated that the provision is ill-defined, costly, and overly harsh. One 
predicts that due to the Final Rule's expansion of the definition of a 
substantial violation, virtually every employer who uses the H-2A 
program will be subject to the special procedures referred to in this 
section. The commenters also stated that the provision does not confer 
sufficient due process to contest the imposition of these special 
procedures, and that the Department fails to cite any evidence showing 
the need for this provision.
    This provision was included in the H-2A regulations from the 1987 
Rule until the provision was removed, with no explanation, by the 2008 
Final Rule. The Department is restoring the provision to this Final 
Rule because it

[[Page 6939]]

allows added flexibility in enforcing the H-2A regulations. It also 
gives the Department a mechanism to address employers' less severe 
violations without pursuing the more serious remedies of revocation or 
debarment. The Department believes that this added flexibility will 
suit its enforcement goals while acknowledging employers' concerns 
about the harshness of revocation or debarment.
39. Section 655.184 Applications Involving Fraud or Willful 
Misrepresentation
    The Department proposed a process for the referral of applications 
involving potential fraud or misrepresentation to the DHS and the 
Department's Office of the Inspector General for investigation and 
action. The Department received no comments in response to this 
proposal; therefore, the Final Rule adopts the language of the NPRM.
40. Section 655.185 Job Service Complaint System; Enforcement of Work 
Contracts
    The NPRM proposed to continue the requirements for the filing of 
complaints arising under this subpart through the Job Service Complaint 
System and the referral of complaints alleging discrimination against 
eligible U.S. workers to the U.S. Department of Justice, Civil Rights 
Division, Office of Special Counsel for Unfair Immigration Related 
Employment Practices. These requirements were also included in the 2008 
Final Rule. The proposed rule additionally requires the SWA to refer 
complaints alleging fraud or misrepresentation to the attention of the 
CO who will commence the audit process to determine whether the 
allegations are valid and warrant imposing employer sanctions or 
penalties. The Department is retaining the provision as proposed in the 
NPRM.
    One commenter misunderstood the proposed requirement for complaint 
referral to the CO and stated that the filing with the CO may be 
challenging for migrant and seasonal workers who rely on the SWA to 
prepare and file their complaints. Another commenter who opposed this 
requirement asserted that the CO does not have the ability to determine 
whether or not a complaint alleging fraud is valid. Two employer 
organizations also opposed the requirement, contending that the NPRM 
did not include safeguards to prevent third parties from abusing the 
system to harass employers. Another commenter proposed that the 
Department implement user-friendly complaint procedures.
    An association of growers proposed that the Department disallow 
anonymous complaints so that employers can face their accusers. This 
commenter also requested that the Department limit the application of 
its integrity measures to only those cases in which it has additional 
corroborative evidence, beyond the initial Job Service Complaint System 
complaint. Furthermore, it proposed that the Department require that 
Job Service Complaint System complaints consist of detailed written 
statements signed under penalty of perjury.
    Another commenter called for improved oversight of complaint 
processing by the SWAs. This commenter also proposed a change to the 
regulations to mandate the exchange of certain information (such as 
outcomes of investigation or administrative proceedings conducted by 
the SWA or any Federal agency) between the WHD and the OFLC and the 
Office of Special Counsel for Unfair Immigration-Related Employment 
Practices at DOJ and the OFLC.
    The Job Service Complaint System is part of the State agencies' 
mandate under the Wagner-Peyser Act. See Wagner-Peyser Act of 1933, as 
amended, 29 U.S.C. 49 et seq.; 38 U.S.C. chapters 41 and 42; 5 U.S.C. 
301 et seq.; 20 CFR. 658.410, 658.411 and 658.413 also issued under 44 
U.S.C. 3501 et seq. These regulations apply to State agencies and 
require them to establish and administer the Job Service Complaint 
System in order to accept complaints from migrant and seasonal farm 
workers. This enables workers who may already have a relationship with 
the SWA as a result of referral to go back to the SWA for assistance. 
The NPRM did not propose to amend the regulations governing the 
operation of the Job Service Complaint System found in 20 CFR part 658, 
subpart E. Therefore, the Department is unable to respond to the many 
suggestions discussed above that would require changes to these 
regulations.
    The Department agrees that the SWAs play an essential role in 
accepting and evaluating complaints from workers. The requirement that 
the SWAs refer certain complaints to the CO is intended to bolster 
program integrity by ensuring that the Department most effectively 
directs its enforcement resources to curb and address program abuses. 
In response to a commenter's assertion of potential abuse of the Job 
Service Complaint System by third parties, the Department does not 
anticipate that the Job Service Complaint System will be used as a 
widespread tool to harass employers. Furthermore, under the Final Rule, 
the COs will receive any complaints alleging fraud or misrepresentation 
and will use their longstanding and extensive programmatic knowledge 
and understanding of the user community to distinguish between 
frivolous complaints and those asserting real and supported claims. No 
entity will be subject to penalties or sanctions when the CO ascertains 
that the employer is in compliance. Finally, closer cooperation with 
its State partners in the area of enforcement will enable the 
Department to ensure program integrity and increase protections for 
both U.S. and foreign workers participating in the program.
    In response to one commenter's suggestion that the regulations 
mandate information sharing between different agencies, the Department 
has determined that the part of that suggestion that is specific to 
amendments to the Job Service Complaint System falls outside the scope 
of this rulemaking as the process of the system is regulated by 20 CFR 
658. However, this is not to say that information is not shared with 
our sister agency. As explained further above and below, the Deparment 
affirmatively shares information with DHS and other agencies, within 
defined limits, to enable those agencies to take action.
    Therefore, the Department is retaining this provision as proposed.

III. Revisions to 29 CFR Part 501

    The Final Rule amends the Department's regulations at 29 CFR part 
501, which set forth the responsibilities of the WHD to enforce the 
legal, contractual and regulatory obligations of employers under the H-
2A program so that WHD can carry out its statutory mandate to protect 
temporary H-2A workers and U.S. workers. These amendments are adopted 
concurrent with and in order to complement the changes ETA is making in 
its certification procedures.
    Since this Final Rule makes changes to several of the existing 
regulations in 29 CFR part 501, we have included the entire text of the 
final regulations and not just the sections which have been amended.
a. Subpart A General Provisions
1. Sections 501.0 and 501.1 Introduction and Purpose and Scope
    Consistent with its statutory mandate, the Department proposed to 
amend its regulations in order to enhance its enforcement program and 
better protect workers--including U.S. workers, H-2A workers, and/or 
workers employed in

[[Page 6940]]

corresponding employment--from adverse effects and from potential abuse 
by employers who fail to meet the requirements of the H-2A program or 
violate its provisions. Modifications were proposed to Sec. Sec.  501.0 
and 501.1 to more clearly outline the differing authority and 
responsibilities of ETA and WHD, to identify the various groups of 
workers who are entitled to protections under the program, and to state 
the effective date of the Final Rule.
    The Department is adopting the provisions as proposed, with 
clarifications and the following change: since the NPRM was issued, the 
Department has eliminated the Employment Standards Administration 
(ESA), which was the former umbrella organization of the WHD. 
Therefore, the Final Rule deletes the reference to ESA in Sec.  
501.1(c).
    Many commenters representing workers, farm worker advocacy 
organizations, unions, SWAs, Congress, and individuals generally 
supported the proposed changes to 29 CFR part 501, and they advocated 
stronger enforcement of program requirements across the board. Several 
of these commenters noted the long history of abuses under guest farm 
worker programs, dating back to the Bracero program of the 1940's. They 
noted that these workers are particularly vulnerable. Since their work 
visas are tied to a single employer they are reluctant to complain for 
fear of losing their jobs and being deported, and they often have 
limited English skills and limited access to social services or legal 
representation. These commenters welcomed the reversal of many aspects 
of the 2008 Final Rule, and they endorsed more active enforcement by 
WHD.
    Most commenters representing employers generally opposed the 
enhanced enforcement proposals. Many employers complained that the 
proposal is not balanced, since it reinstates the labor certification 
requirements of the 1987 Rule yet retains the elevated penalties which 
were added by the 2008 Final Rule. They argued that the elevated 
penalties were a trade-off for the streamlined attestation procedures 
in the 2008 Final Rule, suggesting that one cannot be retained without 
the other. One commenter asserted that the NPRM retains the most 
burdensome and, in its view, punitive provisions of the 1987 Rule and 
2008 Final Rule, while adding new and onerous requirements. A commenter 
asserted that the proposed enforcement changes exceed the Department's 
underlying statutory authority, that the NPRM failed to include any 
citations or legal analysis supporting the changes, and that the 
Department generally ignored its own analysis in the 2008 Final Rule.
    The Department disagrees. The proposed changes are clearly 
authorized by the INA, which authorizes the Secretary to deny 
certifications and to take such other actions, including imposing 
appropriate penalties and seeking appropriate injunctive relief and 
specific performance of contractual obligations, as may be necessary to 
ensure compliance with the terms and conditions of employment. The 
Department believes that these enhanced enforcement regulations are 
necessary to properly carry out its statutory obligations to protect 
workers.
    As explained both in the NPRM and in the foregoing preamble 
sections, the Department has now determined that the 2008 Final Rule 
did not effectively carry out the Department's statutory mandate to 
protect workers and failed to allow for robust and meaningful 
enforcement of the terms of the approved job orders and other 
regulatory requirements. While most employers of temporary H-2A workers 
are law-abiding, some are not. The Department has carefully crafted its 
enhanced enforcement tools so as to continue allowing law-abiding 
employers to use the program to recruit U.S. workers and/or guest 
workers to meet their seasonal employment needs. At the same time, it 
seeks to target those employers who fail to meet their legal 
obligations to recruit and hire U.S. workers, and/or to offer required 
wages and benefits to workers. We believe that the Final Rule achieves 
the proper balance between meeting the seasonal labor needs of farmers 
and protecting the rights of farm workers.
2. Section 501.2 Coordination Between Federal Agencies
    The Department also proposed to expand Sec.  501.2 to allow broader 
information sharing and coordination between agencies both within and 
outside of DOL, and to grant WHD and OFLC express authority to share 
information for enforcement purposes and, where appropriate, with other 
agencies such as DHS and DOS which play a role in immigration 
enforcement. In addition, because the Department proposed that ETA and 
WHD have concurrent debarment authority, the Department also proposed 
to limit its enforcement to only one debarment proceeding (by either 
OFLC or WHD, but not both) resulting from a single set of operative 
facts, and proposed that OFLC and the WHD would coordinate their 
activities to accomplish this result. It also proposed that copies of 
any final debarment decisions be forwarded by DOL to DHS so that it can 
take appropriate action.
    No comments were received on this proposed section. Therefore, the 
Department is adopting the provision generally as proposed, with slight 
wording changes.
3. Section 501.3 Definitions
    As in the 2008 Final Rule, the NPRM proposed to incorporate the 
definitions listed in 20 CFR part 655, subpart B that pertain to 29 CFR 
part 501. The discussion of changes to the definitions can be found in 
the preamble for 20 CFR part 655, subpart B above.
4. Section 501.4 Discrimination Prohibited
    The Department proposed to move this provision from Sec.  501.3 to 
Sec.  501.4, and to add a reference to debarment as a potential remedy 
for employers or others who engage in prohibited discrimination, along 
with other minor editorial changes. The Final Rule adopts the 
provisions as proposed without change.
    Worker advocacy organizations supported the proposal requiring 
workers' compensation coverage and the submission of proof of coverage. 
They also requested that the Final Rule include a provision making 
discrimination against workers who file a workers' compensation claim a 
violation of these regulations. This protection is already provided. 
The regulation at 20 CFR 655.122(e), like the statutory provision it 
implements, provides a right to workers' compensation coverage under 
State law or, where the employee is not covered by State law, private 
insurance. The right to workers' compensation coverage would be 
meaningless if it did not include the right to file a claim under that 
coverage without risking retaliation. Accordingly, the right to file a 
claim is provided under the INA, as well as these regulations. Section 
501.4(a)(5) states that discrimination against any person asserting a 
right or protection afforded by the INA or these regulations is 
prohibited. Therefore, persons filing workers' compensation claims 
under a workers' compensation policy mandated by the statute are 
protected from discrimination. In addition, as a condition of H-2A 
certification, employers must agree to comply with Federal, State and 
local laws and regulations during the period of employment. Where State 
laws prohibit discrimination against employees making workers' 
compensation claims, a violation of those laws would also be a 
violation of these regulations.

[[Page 6941]]

5. Section 501.5 Waiver of Rights Prohibited
    The Department proposed to renumber Sec.  501.5 (Waiver of rights 
prohibited), which was previously Sec.  501.4, and to expand the 
provision to cover U.S. workers who were improperly rejected for 
employment or improperly laid off or displaced. The Final Rule adopts 
the proposed amendment.
    A legal services organization suggested expanding this provision to 
also prohibit waivers of the FLSA, applicable State employment laws, 
and State employee housing laws. The Department notes that the FLSA may 
not be waived and that State laws may or may not be waivable. The 
regulations require employers to certify their compliance with all 
applicable State and local laws and regulations, including health and 
safety laws. Therefore, the Department does not believe that such 
additional references need to be included in the no-waiver provision.
6. Section 501.6 Investigation Authority of the Secretary
    The Department proposed to renumber, substantially shorten and 
revise this section to clarify and to eliminate duplication. The 
Department is adopting the provisions as proposed without change.
    Employee advocacy groups commented that this provision should be 
expanded to require WHD to notify workers (in their language), as well 
as advocates and local agencies whenever WHD conducts an investigation, 
and that it notify workers and others of the outcome of investigations. 
As a matter of enforcement policy, WHD already notifies complainants of 
the status of their complaint(s), and makes every effort to do so in 
languages understandable to the worker. Notifying all employees, 
advocates and local agencies in every case is impracticable. However, 
WHD is committed to doing outreach to advocates, workers, and affected 
communities, and intends to work more closely with interested parties 
in appropriate cases.
7. Section 501.7 Cooperation With Federal Officials
    The NPRM proposed to require cooperation with any Federal official 
investigating, inspecting, or enforcing compliance with the statute or 
regulations. No comments were received addressing this section. 
Therefore, the Final Rule adopts the provision as proposed.
8. Section 501.8 Accuracy of Information, Statements, Data
    The NPRM also proposed to renumber Sec.  501.8, which was 
previously Sec.  501.7, but did not otherwise change the provision. No 
comments were received addressing this section. Therefore, the Final 
Rule adopts the changes as proposed.
9. Section 501.9 Surety Bond
    In order to assure compliance with the H-2A labor provisions and to 
ensure the safety and economic security of covered employees of H-2ALCs 
under the H-2A program, the NPRM proposed to continue the requirement 
that H-2ALCs obtain and maintain a surety bond based on the number of 
workers to be employed under the labor certification, throughout the 
period it is in effect, including any extensions. The proposed rule 
also retained the provision that enables the WHD to require, after 
notice and the opportunity for a hearing, that an H-2ALC obtain a 
surety bond with a face amount greater than the amounts specified in 
the proposed regulation. The Department also proposed to enhance the 
level of protection for workers by introducing new bond amount tiers 
that are more closely and appropriately tied to the number of job 
opportunities for which certification is sought. The Final Rule adopts 
the NPRM with one change and minor clarifying edits. The Final Rule 
requires H-2ALCs to provide the original surety bond with their 
application, rather than just a copy.
    In the 2008 Final Rule, surety bond amounts were set at $5,000 for 
H-2ALCs seeking certification to employ fewer than 25 employees, 
$10,000 for those seeking certification to employ 25 to 49 employees, 
and $20,000 for H-2ALCs wanting to hire 50 or more employees. However, 
assuming that an H-2ALC with 50 employees pays approximately the same 
for a $20,000 bond as an H-2ALC with 300 employees, the 2008 Final Rule 
framework disproportionately advantages larger H-2ALCs while providing 
diminishing levels of protection for the employees of such contractors.
    Under the proposed rule, the first two bond amount tiers remained 
unchanged ($5,000 for H-2ALCs who apply for certification to employ 
fewer than 25 employees and $10,000 for those H-2ALCs who are applying 
for certification to employ 25 to 49 workers). The NPRM proposed to 
require H-2ALCs seeking certification to employ from 50 to 74 workers 
to obtain a bond of $20,000. In addition, we proposed to require H-
2ALCs seeking certification to employ from 75 to 99 workers to obtain a 
surety bond of $50,000, and those seeking certification to employ 100 
or more workers to obtain a bond of $75,000.
    In the proposed rule, the Department specifically requested 
comments addressing the implications for H-2ALCs who may be subject to 
this requirement. A number of commenters opposed the adoption of the 
proposed surety bond requirements as being too costly and indicated 
these increased costs will discourage participation in the H-2A program 
while not significantly improving worker protections.
    A number of commenters supported the surety bond requirements. 
However, these commenters also expressed the view that the proposed 
requirements do not go far enough to protect covered farm workers, and 
they offered suggestions to further strengthen the requirements. These 
suggestions fall into three general categories: (a) either increase the 
face amount of the required bond to $1,000 per worker or index the 
amount of the bond to a percentage of the value of the offered 
contract; (b) require that the bond be payable to both the DOL and the 
affected workers; and (c) in lieu of a surety bond, allow H-2ALCs and 
the fixed-site employers to enter into a written contract in which the 
fixed-site employer agrees to be responsible for compliance with 
respect to the H-2ALC's employees as if the employees were jointly 
employed by both an H-2ALC and the fixed-site employer.
    Only those H-2A program applicants who meet the definition of an H-
2ALC will be required to obtain a surety bond. The Department is not 
aware that any H-2ALC has been unable to obtain a surety bond as 
required under the 2008 Final Rule because it was too costly. The 
Department's enforcement experience has found that agricultural labor 
contractors are more often in violation of applicable labor standards 
than fixed-site employers. They are also less likely to meet their 
obligations to their workers than fixed-site employers. Regarding the 
comment that the Department does not have the authority to institute a 
surety bond requirement, the Department notes that 8 U.S.C. 1188 gives 
the Secretary the authority to take such actions as may be necessary to 
assure employer compliance with the terms and conditions of employment. 
Requiring a bond of H-2ALCs is within the scope of that authority to 
better ensure compliance with H-2A obligations and to protect the 
safety and security of covered workers employed by H-2ALCs. The 
Department believes

[[Page 6942]]

that the increased bond amounts are appropriate and will better allow 
the Department to ensure that adequate funds are available to remedy 
violations that result in lost wages for workers.
    The Department has also determined to retain the surety bond levels 
as proposed in the NPRM. With regard to the suggestions that the bond 
amount be set at $1,000 per worker, we do not believe this to be 
necessary as the proposal gives the WHD Administrator the authority to 
adjust the amounts on an individual basis, as may be warranted in the 
future. For the alternative suggestion that the amount be indexed to a 
percentage of the value of the offered contract, it is unclear how bond 
underwriters would be able to accomplish this.
    Other commenters suggested a further amendment to the language to 
make the bonds payable to both the Administrator of the Wage and Hour 
Division and to affected employees of the H-2ALCs. The suggestions did 
not state how to implement such a change since the bond needs to be 
secured and provided as part of the Application approval process. 
Moreover, the Department believes that it is most appropriate for the 
Administrator to be the party named in the bond because the 
Administrator is responsible for the enforcement of the terms and 
conditions of the labor certification and will act on behalf of all 
employees if a violation is found. Therefore, the Department has 
determined to retain the requirement that the bond be payable to the 
Administrator of the Wage and Hour Division as proposed.
    Certain commenters suggested that the Department adopt, as an 
alternative to the requirement to obtain a bond, a provision that 
allows an H-2ALC to forgo obtaining a bond if the fixed-site employer 
to whom an H-2ALC furnishes workers contractually obligates itself (in 
writing) to be jointly responsible as a joint employer with an H-2ALC 
for compliance with all of the provisions of the job offer/contract. To 
adopt such a provision would necessitate that an H-2ALC enter into a 
separate contractual agreement with each and every fixed-site employer 
to whom he or she intends to furnish workers throughout the period for 
which certification is sought; it is unclear if this is feasible and, 
further, it would require that each such contractual agreement be 
scrutinized for legal sufficiency prior to certification, which would 
impact the finite resources available for processing applications. 
Therefore, the Department has not adopted this suggestion.
    No comments were received on the proposal to change the requirement 
that H-2ALCs provide written notice to the WHD Administrator of 
cancellation or termination of the surety bonds from a 30-day to a 45-
day notice period, and that the bond must remain in effect for at least 
2 years after the expiration of the labor certification (unless the WHD 
has commenced an enforcement proceeding, in which case the bond must 
remain in effect until the conclusion of the proceeding and any 
appeals). Therefore, the Department adopts the proposal in the NPRM.
    Finally, the proposed rule required that documentation from the 
issuer must be provided with the Application identifying the name, 
address, phone number, and contact person for the surety, and providing 
the amount of the bond (as calculated in this section), date of its 
issuance and expiration and any identifying designation used by the 
surety for the bond. In the Final Rule, the Department is requiring 
that the original of the bond be submitted with the Application. The 
Department believes this change will not present any additional costs 
for applicants since such applicants are already required to provide 
fundamental information from the bond which most applicants accomplish 
by providing a copy of the bond. The requirement to provide the 
original bond is intended to ensure that the Department has legal 
recourse to make a claim to the surety against the bond following a 
final order finding violations.
10. Section 501.15 Enforcement
    The Department proposed no changes and received no comment on this 
section. The Department is adopting these provisions as proposed 
without change.
11. Section 501.16 Sanctions and Remedies--General
    The Department proposed to provide WHD with express authority to 
pursue reinstatement and make whole relief in addition to back wages in 
cases of discrimination, or in cases in which U.S. workers have been 
improperly rejected, laid off, or displaced. As explained in the 
proposal, this was intended to clarify WHD's authority to pursue 
recovery of improper deductions, such as recruiter fees or other costs 
improperly deducted or paid in violation of the required assurances 
under the Application, which forbid such deductions and payments. The 
Final Rule adopts the provisions as proposed.
    Many commenters representing farm workers, farm worker advocacy 
organizations, unions, SWA, Congress, and individuals generally 
endorsed the enhanced enforcement provisions. Employee advocacy groups 
commented that this provision should be expanded to require WHD to 
notify workers (in their language) and invite them to participate 
whenever it files an administrative proceeding, and serve them with 
notices of all hearings, settlements, decisions and orders in each 
case; they also suggested improving outreach and follow-up 
communications with State and County staff after complaints are filed.
    Many other commenters representing employers, recruiters and 
employer associations complained that the proposed enhanced penalties 
and remedies would punish innocent employers and deter them from using 
the program. Specific comments are addressed below.
    Several commenters representing employers expressed concerns about 
the breadth and potential severity of the proposed new remedies, in 
particular make whole relief, which they feared could potentially 
include compensatory damages for non-economic injuries such as pain and 
suffering, or other civil damages of the type available in Federal or 
State courts. Another commenter questioned how WHD would exercise its 
new authority, asserting that the provisions were vague and would leave 
employers vulnerable to endless litigation and harassment based on the 
flimsiest of allegations.
    These concerns are unfounded. The Department intended make whole 
relief to be limited to its traditional meaning, such as, 
reinstatement, hiring, reimbursement of monies illegally demanded or 
withheld, or the provision of specific relief such as the cash value of 
insurance benefits, housing, transportation or subsistence payments 
which the employer was required to, but failed to provide, in addition 
to the recovery of back wages where appropriate. Nothing in the 
regulations allows for the recovery of pain and suffering or other 
civil or punitive damages on behalf of workers in addition to actual 
damages and equitable relief. Moreover, the Department has been 
enforcing H-2A regulations for many years. It intends to continue to 
use its traditional enforcement discretion to review cases based on 
their facts, and to select for prosecution only those which an 
investigation has shown the case to be well-founded.
    Other commenters suggested that, where an employer has restricted 
its agents by contract arrangement from receiving recruitment fees or 
kickbacks

[[Page 6943]]

from workers, yet a worker complains that he or she was forced to pay a 
prohibited fee, the employer should be shielded from liability. The 
Final Rule requires that H-2A employers contractually prohibit their 
recruiters and agents from seeking or receiving such payments, directly 
or indirectly. As in every enforcement case, WHD will examine the 
evidence and will seek to enforce appropriate remedies against the 
proper parties. Therefore, if an employer's recruiter or agent has 
violated this provision, but the employer can show that it had a bona 
fide contractual provision preventing or barring the violative action 
by its agent, the employer has not violated the regulation.
12. Section 501.17 Concurrent Actions
    The Department proposed to grant concurrent debarment authority to 
OFLC and WHD, while recognizing the differing roles and 
responsibilities of each agency under the program. Under the proposed 
revisions, debarment authority for violations arising out of the 
application process remained with OFLC, but the WHD Administrator 
gained debarment authority for issues arising from WHD investigations. 
The proposal also included safeguards requiring coordination between 
the agencies to ensure streamlined adjudications and that an employer 
would not face two debarment proceedings for violations arising from 
the same facts. The Department is adopting the provisions as proposed 
without change.
    Several employers and employer associations disagreed with the 
Department's proposal to grant debarment authority to WHD. They noted 
that the Department had rejected this approach in the 2008 Final Rule. 
As in 2008, they expressed concerns about conflicting regulatory 
interpretations by OFLC and WHD, and contended that allowing both 
agencies to exercise debarment authority would be inefficient and 
confusing, and result in twice as much bureaucracy for employers.
    Worker advocates and others who commented in favor of the proposed 
change agreed that WHD should have the power to debar employers who 
violate program requirements. They cited examples where unscrupulous 
FLCs failed to provide any work, failed to pay their workers, demanded 
kickbacks, engaged in Ponzi schemes, lied to, assaulted, and abused 
workers, committed fraud, engaged in human trafficking, and even pled 
guilty to criminal conduct (assaulting a worker for filing a complaint 
with OSHA), yet were permitted to continue operating as H-2ALCs. These 
commenters welcomed additional enforcement and debarment authority by 
WHD.
    In 2008 the Department considered extending debarment authority to 
WHD, yet decided not to do so, fearing that such authority could result 
in unnecessary confusion. However, upon further reflection, the 
Department has concluded that this fear is unfounded. Providing WHD 
with the ability to order debarment, along with or in lieu of other 
remedies, will streamline and simplify the administrative process, and 
eliminate unnecessary bureaucracy by removing extra steps. Under the 
2008 Final Rule, WHD conducts investigations of H-2A employers, and may 
assess back wages, civil money penalties, and other remedies, which the 
employer has the right to challenge administratively. However, under 
the 2008 Final Rule, WHD cannot order debarment, no matter how 
egregious the violations, and instead must take the extra step of 
recommending that OFLC issue a Notice of Debarment based on the exact 
same facts, which then has to be litigated again. Contrary to the 
commenters' assertions, allowing WHD to impose debarment along with the 
other remedies it can already impose in a single proceeding will 
simplify and speed up this duplicative enforcement process, and result 
in less bureaucracy for employer-violators. Instead, administrative 
hearings and appeals of back wage and civil money penalties, which the 
WHD already handles, will now be consolidated with challenges to 
debarment actions based on the same facts, so that an employer need 
only litigate one case and file one appeal rather than two. This means 
that both matters can be resolved more expeditiously.
    Furthermore, this change is consistent with recommendations made as 
far back as 1997 in a General Accounting Office (GAO) report to 
Congress, in which GAO proposed that WHD be given authority to suspend 
employers with serious labor standard or H-2A contract violations. See 
U.S. Gen. Accounting Office: ``Report to Congressional Committees: H-2A 
Agricultural Guestworker Program, Changes Could Improve Services to 
Employers and Better Protect Workers,'' 68, 70 (1997). Moreover, WHD 
has extensive debarment experience under regulations implementing other 
programs, such as H-1B and the Service Contract Act. See, e.g. 29 CFR 
5.12, 5.1
    Nevertheless, the Department is sensitive to the perception of some 
employers that OFLC and WHD may interpret certain rules differently, 
and that employers should not be faced with double jeopardy for a 
single violation. Therefore, it has included several safeguards on this 
new authority. First, each agency must coordinate their activities when 
considering debarment. Second, the proposal also expressly identifies 
which violations will be pursued by which agency. For example, OFLC 
will continue to institute its own debarment proceedings regarding 
issues that arise during the application or recruitment process, or 
from an OFLC audit, while WHD may order debarment as a result of 
different violations which it discovers during its investigations. 
Third, the standards for debarment to be applied by both OFLC and WHD 
have been revised to ensure that they are identical and to ensure 
consistency in application. Finally, the Final Rule also provides that 
debarment for any violation arising out of the same facts will be 
addressed only by a single agency. This will allow for more expeditious 
proceedings and more efficient enforcement, without any negative impact 
on law-abiding employers.
13. Section 501.18 Representation of the Secretary
    The NPRM proposed to modify this provision to conform to the 
statute, which provides for administrative appeals, but does not grant 
the Secretary independent litigating authority in civil litigation. No 
comments were received addressing this section. Therefore, the Final 
Rule adopts the changes as proposed.
14. Section 501.19 Civil Money Penalty Assessment
    The Department proposed to amend this section in several ways. It 
proposed to increase the maximum civil money penalty (CMP) amount from 
$1,000 to $1,500 for each violation in most cases, noting that this 
amount had not been adjusted since 1987. It proposed to increase the 
penalty amount for a failure to meet a condition of the work contract 
that results in displacing a U.S. worker to up to $15,000, and added a 
new penalty of up to $15,000 for improperly rejecting a U.S. worker who 
has made application for employment. It also proposed to increase the 
potential penalty in cases where a violation of an applicable housing 
or transportation safety and health provision of the work contract 
causes the death or serious injury of any worker to up to $50,000 per 
worker, and to double the maximum penalty to up to $100,000 per worker 
where the violation of safety or health provisions causing the death or 
serious injury was repeated or willful; it

[[Page 6944]]

eliminated the separate provision in the 2008 Final Rule which had 
previously increased the maximum penalty to $100,000 in cases where the 
employer failed, after notification, to cure a specific violation. The 
Department is adopting the provisions as proposed without change, with 
the exception of moving language regarding layoffs from Sec.  501.19(e) 
to 20 CFR 655.135(g).
    Several employer associations and employers commented that the 
proposed increases in the penalty structure are too severe, are 
unsupported by data or by examples of violators, and seem designed to 
discourage use of or even to destroy the program. Overall, most of 
these commenters argued that the proposed rules are the worst of both 
worlds for program users, since they abandon the simplified attestation 
model of the 2008 Final Rule, but retain the elevated penalties 
contained in that rule. They contended that the return to supervised 
recruitment requirements makes the enhanced penalties unnecessary.
    Other employer associations expressed concern about the potential 
multiplier effect of the proposed penalties, and wondered whether a 
separate penalty could be assessed for each incorrect paycheck, 
resulting in astronomical penalties. These commenters also questioned 
the changes to the repeat violation definition, worrying that multiple 
violations in one incident could be deemed repeat violations, even 
where the employer has promptly corrected the violations. Other 
commenters criticized the assessment of a penalty for unintentional 
violations, for each violation or for each failure to pay a worker, 
which they characterized as a new provision.
    Commenters representing workers applauded the proposal to increase 
the proposed penalties and enforcement in general. They stated that 
abuse of H-2A workers by unscrupulous employers is rampant, that 
enforcement has historically been very weak, and that many workers do 
not complain for fear of retaliation. They asserted that the lack of 
enforcement and the occasional fines or sanctions levied by WHD in the 
past have led to an environment where crew leaders and employers 
believe that they have immunity from the law, and where financial gains 
from lawbreaking exceed the costs. One advocacy group claimed that the 
vast majority of H-2A workers in the U.S. are victims of wage theft for 
which they have no effective recourse. These groups uniformly supported 
more consistent, thorough and timely enforcement to serve as a 
deterrent to worker abuse.
    The Department agrees with the commenters who assert that stronger 
penalties are necessary to adequately protect workers. Increasing the 
proposed penalties for violators who disregard their obligations will 
provide the Department with more effective tools to discourage 
potential abuse of the program and will have little if any impact on 
law-abiding employers. Such penalties are intended to deter violations, 
discrimination, and interference with investigations, and strengthen 
worker protections. These penalties will be especially useful to deter 
repeat violators, who have committed violations knowing that many H-2A 
workers are unlikely to file complaints or seek legal assistance to 
enforce their rights.
    The increases in the proposed penalties for violations of 
applicable safety and health provisions, especially those which cause 
serious injury or death, and those for repeat violations, are intended 
to encourage participants to ensure that housing and/or transportation 
provided to their workers meets all applicable safety and health 
requirements, and that housing and/or vehicles used in connection with 
employment do not place workers in danger. The higher penalties are 
consistent with the increased penalties recently authorized by Congress 
for child labor violations which cause death or serious injury to a 
worker (see the Genetic Information Nondiscrimination Act Section 302 
(2008), codified at 29 U.S.C. 216(e)). They are also lower than those 
that can be imposed by the Mine Safety and Health Administration as a 
result of the MINER Act of 2006, codified at 30 U.S.C. 820 (2006), 
which increased the penalty for flagrant violations up to $220,000, and 
the penalty for failure to notify the agency of a death or injury to up 
to $60,000. See 72 FR 13592, Mar. 22, 2007. The Department believes 
that the increases for H-2A violations are in line with these other 
recent increases in penalties in other programs administered by the 
Department.
    Contrary to the assumptions of some commenters, the assessment of a 
particular penalty (or of an enhanced penalty for a repeat or willful 
violation) is not mandatory, but guided by consideration of the seven 
factors listed in paragraph (b), the facts of each individual case, and 
by common sense. For example, before assessing any penalty, the WHD 
Administrator must consider the type of violation, its gravity, the 
number of workers affected, and several mitigating and/or aggravating 
factors including, but not limited to, the explanation offered by the 
employer (if any), its good faith or lack thereof, any previous history 
of violations, and any financial loss, gain or injury as a result of 
the violation. These safeguards are intended to ensure that inadvertent 
errors and/or minor violations are not unfairly penalized.
    Finally, the assessment of a penalty for each violation is not a 
new provision, but has been included in the regulations since at least 
the 1987 Rule, including the 2008 Final Rule. Compare 52 FR 20531, Jun. 
1, 1987 and 73 FR 77235, Dec. 18, 2008. Indeed, in the 2008 Final Rule 
the provision was clarified to reflect the then-existing practice that 
a CMP could be assessed for each violation committed (with each failure 
to pay a worker properly or to honor the terms or conditions of a 
worker's employment constituting a separate violation). The only change 
made by the Final Rule is to move this explanatory language up from 
Sec.  501.19(c) into the general provision at Sec.  501.19(a). However, 
it is not new, and there is no reason to fear that it will be applied 
in an unfair or arbitrary manner. The provision is written so as to 
protect smaller employers and first-time unintentional violators while 
appropriately targeting repeat and willful violators and those who 
abuse or exploit large numbers of workers with the largest penalties.
15. Other Comments Pertaining to Enforcement and Sanctions
    An employer association commented that DOL should have retained the 
portion of the 2008 Final Rule preamble warning workers that they are 
not permitted to aid or abet trespassing on an employer's private 
property, although consulting with legal aid lawyers and other 
representatives is protected activity under 20 CFR 655.105(k)(4). DOL 
believes that such language is not necessary. Trespassing is a matter 
of state law, and is not enforced by the WHD.
16. Section 501.20 Debarment and Revocation
    The Department proposed this section to grant concurrent debarment 
authority to WHD. Under the proposal, OFLC would retain the authority 
to debar an employer based on violations occurring during the 
application, recruitment and certification process, while WHD would 
gain new authority to debar employers, agents or attorneys based on 
evidence discovered during WHD investigations. The proposal noted that 
the two agencies would apply identical standards, and would coordinate 
their activities in this area. It also proposed conforming changes to 
other sections to

[[Page 6945]]

reflect this new debarment authority, with minor clarifying changes.
    The Department received many comments regarding these standards. 
These comments and the Department's responses are explained above in 
the section of this preamble discussing OFLC's debarment authority. In 
addition, the reference to res judicata in this provision has been 
deleted because the Department believed it was unnecessary. Otherwise, 
the Department retains the WHD debarment authority as proposed.
17. Section 501.21 Failure To Cooperate With Investigations
    The NPRM proposed to expand this section to include remedies for 
failure to cooperate with a WHD investigation, and to add debarment to 
the list of potential remedies for such failure. No comments were 
received addressing this section. Therefore, the Final Rule adopts the 
changes as proposed.
18. Section 501.22 Civil Money Penalties--payment and collection
    No comments were received on this provision, however; the Final 
Rule contains several clarifying edits.
19. Sections 501.30-501.47
    The NPRM proposed few changes to the administrative proceedings set 
forth in Sec. Sec.  501.30-.47 of the 2008 Final Rule. Because the NPRM 
proposed to authorize the WHD to pursue debarment proceedings, the NPRM 
added references to debarment in Sec. Sec.  501.30, 501.31, 501.32(a), 
and 501.41(d). These sections of the proposal also specified that these 
procedures will govern any hearing on an increase in the amount of a 
surety bond. They also replaced the term unpaid wages with the term 
monetary relief to reflect the fact that WHD may seek to recover other 
types of relief, such as if an employer fails to provide housing or 
meet the three-fourths guarantee.
    The Department proposed to modify Sec.  501.33 to permit hearing 
requests to be filed by overnight delivery, as well as by certified 
mail, and to reiterate that surety bonds must remain in force 
throughout any stay pending appeal. The Department also proposed to add 
a new Sec.  501.34(b), in order to conform H-2A procedures to those 
used in the H-1B program. The new provision provides discretion to an 
ALJ to ensure the production of relevant and probative evidence while 
excluding evidence that is immaterial, irrelevant or unduly repetitive 
without resort to the formal strictures of the Federal Rules of 
Evidence. Other than very minor editorial changes or corrections of 
typographical errors, the NPRM proposed no other changes to Sec. Sec.  
501.30-501.47. The Final Rule adopts the provisions as proposed, with 
minor changes relating to service so as not to preclude, for example, 
electronic service.
    As noted above, several commenters representing employers generally 
objected to the breadth of the proposed new remedies, seeking 
reassurance that the Department would not seek compensatory damages for 
non-economic injuries such as pain and suffering, or other civil 
damages of the type available in Federal or State courts. These 
concerns are unfounded. The Department intended that the term monetary 
relief as used in this section be limited to its traditional meaning: 
for example, reimbursement of monies illegally demanded or withheld, or 
reimbursement of the cash value of insurance benefits, housing, 
transportation, subsistence or other payments which the employer was 
required to provide (but failed to do so), in addition to the recovery 
of back wages where appropriate. Nothing in the regulations allows for 
the recovery of pain and suffering or other civil or punitive damages 
for individual workers in addition to actual damages and equitable 
relief.

IV. Administrative Information

A. Executive Order 12866

    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 to review by the Office of Management and 
Budget (OMB). Section 3(f) of the E.O. defines an economically 
significant regulatory action as an action that is likely to result in 
a rule that: (1) Has an annual effect on the economy of $100 million or 
more, or adversely and materially affects a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.
    The Department has determined that this Final Rule is significant, 
but not an economically significant regulatory action under sec. 
3(f)(1) of E.O. 12866. The timeframes and procedures for fixed-site 
agricultural employers, H-2ALCs, or associations of agricultural 
producer-members to file a job offer and application, prepare 
supporting documentation, and satisfy the required assurances and 
obligations under the H-2A visa category under this regulation are 
substantially similar to those under the 2008 Final Rule and would not 
have an annual economic impact of $100 million or more. This regulation 
would not adversely affect the economy or any sector thereof, 
productivity, competition, jobs, the environment, or public health or 
safety in a material way. In fact, this Final Rule is intended to 
provide agricultural employers with clear and consistent guidance on 
the requirements for participation in the H-2A temporary agricultural 
worker program. The Department, however, has determined that this Final 
Rule is a significant regulatory action under sec. 3(f)(4) of the E.O. 
and, accordingly, OMB has reviewed this Final Rule.
1. Need for Regulation
    The Department has significant concerns with the 2008 Final Rule 
that necessitate new rulemaking. First, the Department has determined 
that there were insufficient worker protections in the attestation-
based model of the 2008 Final Rule in which employers do not actually 
demonstrate that they have performed an adequate test of the U.S. labor 
market. It has come to the Department's attention that some employers, 
due to a lack of understanding or for other reasons, were attesting to 
compliance with program obligations with which they had not complied. 
The Department is accordingly concerned about the use of attestations 
to demonstrate program compliance.
    The Department is amending its regulations through the changes 
discussed in the sections below with the primary purpose of adequately 
protecting U.S. and foreign H-2A workers. The Department took into 
account both the regulations promulgated in 1987, as well as the 
substantive re-working of the regulations in the 2008 Final Rule to 
arrive at a Final Rule that balances the worker protections of the 1987 
Rule and the program integrity measures of the 2008 Final Rule.
    Much of the 2008 Final Rule has been retained in format, as it 
presents an understandable regulatory roadmap; it has been used when 
its provisions do not conflict with the policies in this Final Rule. To 
the extent the 2008 Final Rule presents a conflict with the policies 
underpinning this Final Rule, it

[[Page 6946]]

has been rewritten or the provisions of the 1987 Rule have been 
adopted. To the extent the 1987 Rule advances the policies underlying 
this Final Rule, those provisions have been retained. These changes are 
pointed out above.
2. Alternatives
    The Department has considered three alternatives: (1) to make the 
policy changes contained in this Final Rule; (2) to take no action, 
that is, to leave the 2008 Final Rule intact; and (3) to revert to the 
1987 Rule. The Department believes that the first alternative--the 
policies contained in this Final Rule--represents retention of the best 
features of both the 1987 Rule and 2008 Final Rule. The Department has 
chosen not to retain the 2008 Final Rule for the reasons mentioned 
above. It has also rejected reversion to the 1987 Rule as inefficient 
and ineffective, given societal and economic changes that have occurred 
since its promulgation.
3. Economic Analysis
    The economic analysis presented below covers the following industry 
sectors: Crop production; animal production; activities for 
agriculture; logging; and fishing, hunting, and trapping. Many 
commenters indicated that because of their uniqueness, reforestation 
and pine straw activities should not be added to the H-2A Program. The 
Department has agreed with these concerns and is not including these 
activities in this Final Rule. Reforestation and pine straw activities 
remain a part of the H-2B Program.
    In 2007, there were over 2.2 million farms, of which 78 percent had 
annual sales of less than $50,000, 17 percent had annual sales of 
$50,000 to $499,999, and the remaining 5 percent had annual sales in 
excess of $500,000.\13\
---------------------------------------------------------------------------

    \13\ Source: 2007 Census of Agriculture, United States 
Department of Agriculture.
---------------------------------------------------------------------------

    The Department derives its estimates by comparing the baseline, 
that is, the program benefits and costs under the 2008 Final Rule, 
against the benefits and costs associated with implementation of 
provisions contained in this Final Rule. The benefits and costs of the 
provisions of this Final Rule are estimated with respect to the 
baseline. Thus, costs and benefits that are statutory or that exist as 
a result of the 2008 Final Rule are not considered as costs and 
benefits of this Final Rule. We explain how the required actions of 
workers, employers, government agencies, and other related entities are 
linked to the expected benefits and costs of this Final Rule.\14\
---------------------------------------------------------------------------

    \14\ In response to comments, the Department includes the 
calculations used in the estimates of costs and benefits in order to 
increase the transparency of the analysis. The total cost and 
benefit estimates presented in this analysis are subject to rounding 
errors.
---------------------------------------------------------------------------

    The Department has quantified and monetized the benefits and costs 
of this Final Rule where feasible. Where we were unable to quantify 
benefits and costs--for example, due to data limitations--we describe 
them qualitatively. The analysis covers 10 years (2009 through 2018) to 
ensure it captures all major benefits and costs.\15\
---------------------------------------------------------------------------

    \15\ For the purposes of the cost-benefit analysis, the 10-year 
period starts on October 1, 2009.
---------------------------------------------------------------------------

    In addition, the Department provides a qualitative assessment of 
transfer payments associated with the increased wages and protections 
of U.S. workers. Transfer payments, as defined by OMB Circular A-4, are 
payments from one group to another that do not affect total resources 
available to society. Transfer payments are associated with a 
distributional effect but do not result in additional costs or benefits 
to society. When summarizing the benefits or costs of specific 
provisions of this Final Rule, we present the 10-year averages to 
estimate the typical annual effect or 10-year discounted totals to 
estimate the present value of the overall effects.
    The Department reviewed the public comments submitted in response 
to the NPRM and made revisions where feasible in the economic analysis 
of this Final Rule. The Department used projected H-2A participant 
values in the NPRM because FY 2009 was not yet complete. The economic 
analysis of this Final Rule, however, uses the actual participant 
values for the full FY 2009. The Department also removed reforestation 
and pine straw employers and workers from the analysis. For many of the 
impacts included, these modifications caused a relative decrease in 
magnitude from the NPRM to this Final Rule.
    Additional revisions to this Final Rule relative to the NPRM are 
the inclusion of costs to employers for paying visa and border crossing 
fees for H-2A workers, costs related to the new requirement that 
employers disclose the terms and conditions of the employment no later 
than the time an H-2A worker applies for a visa, and costs related to 
the requirement that employers provide a copy of revised contracts to 
affected workers where the employer applies for an extension of the 
certification. The Department also made several changes to impacts 
already included in the NPRM, including revising the documentation 
retention requirement and the assumption related to the time required 
by employers to review the new rule. Finally, the Department includes 
transfer estimates related to the larger bonding requirement for large 
H-2ALCs.
4. Subject-by-Subject Analysis
    The Department's analysis below considers the expected impacts of 
the following provisions of this Final Rule against the baseline (i.e., 
the 2008 Final Rule): the new methodology for estimating the AEWR, an 
enhanced U.S. worker referral period for employers after certification, 
the increased costs to the Department for developing and maintaining an 
electronic job registry, changes in administrative burdens placed on 
SWAs by increased timeframes for recruitment, changes in administrative 
benefits resulting from eliminating employment verification 
requirements, enhanced worker protections resulting from compliance 
certification, enhanced coverage of expenses for transportation to and 
from the place from which the worker departed to work for the employer, 
coverage of visa/border crossing expenses, changes in the requirements 
for contract revisions and the disclosure of terms and conditions, and 
changes in the requirement for housing inspections. For each of these 
subjects, the relevant costs and benefits are discussed, as well as 
transfer payments that may apply.\16\
---------------------------------------------------------------------------

    \16\ For the purpose of this analysis, H-2A workers are 
considered temporary residents of the U.S.
---------------------------------------------------------------------------

    The Department's analysis below does not consider impacts 
associated with activities not required by this Final Rule or 
provisions that are not changing between the 2008 Final Rule and this 
Final Rule. For instance, several commenters expressed concern about 
the value of the requirement in the NPRM that H-2A employers retain the 
recruitment report and supporting documentation and other records for 5 
years rather than 3 years. The Department concurs with this concern. 
This Final Rule, similar to the 2008 Final Rule, requires that 
employers maintain a complete recruitment report and all supporting 
documentation for 3 years. Because this requirement is not a change 
from the 2008 Final Rule, there is no additional cost associated with 
the provision, and the Department does not consider it in this 
analysis.\17\
---------------------------------------------------------------------------

    \17\ The NPRM included the assumption that employers require 1 
hour to review the new rule. The Department, in response to public 
comments, increased the estimate for this requirement to 2 hours.
---------------------------------------------------------------------------

a. New Methodology for Estimating the AEWR
    The Department has determined that the wages of agricultural 
workers have been adversely impacted to a far greater

[[Page 6947]]

extent than anticipated by the 2008 Final Rule. As discussed further 
below, the change in the calculation of the AEWR from the method used 
under the 1987 Rule to a method based on local prevailing wages under 
the 2008 Final Rule resulted in a reduction of farm worker wages in 
many labor categories and an increase in only a few others.
    The 2008 Final Rule based the estimation of the AEWR on data from 
the OES Wage Survey collected by BLS. This Final Rule changes the 
methodology for estimating the AEWR, basing it instead on data from the 
USDA survey. The change to the OES method of computing the AEWR 
resulted in a decline in the average certified wage for H-2A workers to 
$8.02 per hour. This wage calculated under the 2008 Final Rule was 11.2 
percent lower than the $9.04 average wage for FY 2009 applications 
received before January 19, 2009 and processed under the 1987 Rule, and 
it was 10.8 percent lower than the $9.00 average wage rate for FY 2008 
applications, all processed under the 1987 Rule.
    The 2008 Final Rule based the estimation of the AEWR on the OES 
Wage Survey collected by BLS, whereas the basis for the AEWR under the 
1987 Rule was data compiled by the USDA NASS. This Final Rule changes 
the methodology for estimating the AEWR to the USDA survey. As 
explained above, the wage survey methodology in this Final Rule is 
associated with a nationwide average wage rate that is $1.02 higher 
than that under the 2008 Final Rule. That is, a nationwide average H-2A 
wage rate of $9.04 as opposed to $8.02.
i. Transfers
    The principal transfers of the higher wages are from H-2A workers 
to U.S. citizens and from U.S. employers to both H-2A workers and U.S. 
citizens.
    A transfer from H-2A workers to U.S. citizens arises because, as 
labor market research indicates, as agricultural wages for U.S. workers 
increase, a larger number of U.S. workers may be attracted to work in 
the agricultural labor force. While some of these workers may be drawn 
from work in other industries, some of these workers would otherwise 
remain unemployed or out of the labor force entirely, earning no 
salary. The increase in labor supply resulting from higher wages is 
captured by the so-called wage elasticity of the U.S. agricultural 
labor supply. A recent study found that this elasticity is 0.43; for 
each 1 percent increase in wages, there is a 0.43 percent increase in 
the labor supply of U.S. agricultural workers. Another study estimated 
a labor supply elasticity of 0.36.\18\ Although the increase in wages 
for documented workers in agriculture will lead to complex labor market 
dynamics which involve both labor supply and demand and which are 
difficult to quantify, the Department believes that the net effect of 
the expected increase in wages as a result of this Final Rule will be 
more U.S. workers employed in agriculture.
---------------------------------------------------------------------------

    \18\ See Julie L. Hotchkiss and Myriam Quispe-Agnoli, ``Employer 
Monopsony Power in the Labor Market for Undocumented Workers,'' 
Federal Reserve Bank of Atlanta, Working Paper 2009-14a, June 2009, 
and Duffield, J.A. and R. Coltrane, 1992, ``Testing for 
Disequilibrium in the Hired Farm Labor Market,'' American Journal of 
Agricultural Economics, 74: 412-20. The Department includes these 
elasticity estimates for reference. They are not used in the 
analysis.
---------------------------------------------------------------------------

    The higher wages for workers associated with the new methodology 
for estimating the AEWR is beneficial to U.S. workers, improving their 
ability to meet costs of living and to spend money in their local 
communities.\19\ These are important concerns to the current 
Administration and a key aspect of the Department's mandate to ensure 
that the wages and working conditions of similarly employed U.S. 
workers are not adversely affected. The increase in the wage rates for 
some workers represents a transfer from agricultural employers to their 
workers, both H-2A and corresponding U.S. workers.
---------------------------------------------------------------------------

    \19\ An additional transfer noted by a commenter is increased 
remittances to the worker's home country. Due to data limitations, 
however, the Department does not address this issue quantitatively.
---------------------------------------------------------------------------

    The Department received comments focusing on the spending patterns 
with respect to the transfers, noting that since the money received by 
H-2A workers eventually leaves the U.S., it results in a transfer from 
the U.S. economy to foreign economies. The ultimate destination of the 
funds, which cannot be assessed with any certainty, is not relevant to 
this analysis. E.O. 12866 does not require that consumption patterns of 
recipients of transfers be considered in the cost analysis.
    There may be a transfer of costs from government entities to 
employers as a result of lower expenditures on unemployment insurance 
benefit claims. Previously unemployed individuals who were not willing 
to accept a job at the lower wage may now be willing to accept the job 
and would not need to seek new or continued unemployment insurance 
benefits. The Department, however, is not able to quantify these 
transfer payments with precision. Difficulty in calculating these 
transfer payment arises from uncertainty about the actual entries of H-
2A workers, the quantity of corresponding U.S. workers, the types of 
occupations to be included in future filings, the ranges of wages in 
the areas of actual employment, and the point at which any occupation 
in any given area is subject to the prevailing wage (hourly or piece 
rate) or Federal or State minimum wage or collectively bargained wages, 
rather than the application of the OES or USDA FLS to the calculation 
of the AEWR.
    Several commenters noted that, in rare instances, the prevailing 
wage rate increases above the AEWR mid-season due to market forces. In 
the Department's experience, prevailing wage increases occur rarely. In 
FY 2009, for instance, the AEWR was not applicable in only 10 percent 
of the cases certified before the implementation of the 2008 Final 
Rule. In addition, some states do not perform prevailing wage surveys, 
so the Department cannot determine the magnitude of the difference 
between the prevailing wage and the AEWR for those States. Due to these 
data limitations, the Department is not able to estimate the frequency 
that the prevailing wage increases beyond the AEWR, the duration for 
which the difference exists, or the magnitude of the difference and, 
thus, the Department does not quantify the transfer resulting from such 
increases.
    Other commenters noted that in some instances, the presence of 
Collective Bargaining Agreements (CBAs) is associated with wages above 
the AEWR. Agricultural employers who are parties to a CBA would be 
required by the CBA to pay the collectively-bargained wage rate (unless 
it was lower than one of the alternative wage rates). The requirement 
in this Final Rule that employers pay the collectively bargained wage 
rate when it is the highest alternative only codifies what the 
Department understands to be required by the labor contract. Therefore, 
this provision does not in itself represent an additional burden to 
employers.
ii. Costs
    In standard economic models of labor supply and demand, an increase 
in the wage rate is an increased production cost to employers, and it 
will lead to a reduction in the demand for agricultural labor. Because 
production costs increase with an increase in the wage rate, there is a 
resulting loss in profits for agricultural employers. In addition, 
workers who would have been hired at a lower wage rate are not hired at 
the higher wage rate, resulting in forgone earnings for workers. The 
loss in profits for agricultural employers and the

[[Page 6948]]

forgone earnings combine to form what is known as ``deadweight loss'' 
because it is lost to society. In order to estimate this lost benefit, 
we would need to calculate the estimated reduction in employment, 
assuming an elastic labor demand. The elasticity of labor demand 
measures the extent to which employers respond to an increase in wages 
by lowering employment. Using standard estimates of the elasticity of 
labor demand, the deadweight loss is not projected to be large.\20\
---------------------------------------------------------------------------

    \20\ Many commenters on the NPRM mentioned the effect of the 
proposed rule on food prices. The effect on food prices is 
incorporated in this calculation through the demand curve which 
fully summarizes the employer's optimization problem--including 
prices in the product market.
---------------------------------------------------------------------------

b. Coverage of Visa/Border Crossing Expenses
    Under this Final Rule, the employer must pay the visa and border 
crossing fees of the H-2A workers they employ. As the Department 
recognized in the preamble to the 2008 Final Rule, requiring employers 
to bear the full cost of their decision to import foreign workers is a 
necessary step toward preventing the exploitation of foreign workers, 
with its concomitant adverse effect on U.S. workers. Government-
mandated fees such as visa application, border crossing, and visa fees 
are integral to the employer's choice to use the H-2A program to bring 
temporary foreign workers in the country.
Transfers
    The reimbursement of visa application and border crossing fees by 
employers is a transfer from employers to H-2A workers. Each H-2A 
worker must pay a visa application fee of $131.00 and a reciprocity fee 
based on their country of origin. To be conservative in its estimate of 
costs to U.S. employers, the Department used the maximum reciprocity 
fee of $100,000 to obtain a total cost per H-2A worker of $231.00 
($131.00 + $100.00).
c. Enhanced U.S. Worker Referral Period
    Although the recruitment requirements of employers will not change 
substantively, this Final Rule increases the amount of time that 
employers must accept referrals for temporary agricultural 
opportunities from qualified U.S. workers. Specifically, this Final 
Rule requires that SWAs extend their job advertising efforts on behalf 
of employers so as to keep the job order on active status through 50 
percent of the period of employment, as opposed to 30 calendar days 
after the date of need under the current regulation.
i. Costs
    The extension of the referral period in this Final Rule will result 
in increased SWA staff time required to maintain job orders for the new 
U.S. worker referrals. SWAs will need to maintain additional job orders 
for the new applicants to the H-2A program in the States in which 
temporary workers are expected to perform work and for all applicants 
to the H-2A program in the States designated as States of traditional 
or expected labor supply. The Department estimates the average annual 
cost associated with this activity to be $0.4 million.\21\
---------------------------------------------------------------------------

    \21\ Between July 1, 2007 and June 30, 2008, there were 70,722 
U.S. migrant seasonal farm worker referrals, or 194 (70,722/365) 
referrals per day. The Department scales up this value by the growth 
of the total number of H-2A applications across the analysis period 
to estimate the number of referrals per day in each year. The 
Department multiplies the number of referrals per day (194) by the 
extension of the recruitment period (86 days) to obtain a total of 
16,566 (194 x 86) extra referrals in 2009. We assume that a State 
employee with a job title of ``Compensation, Benefits, and Job 
Analysis Specialists'' conducts this activity. The median hourly 
wage for this occupation is $21.69, which we scaled up by a factor 
of 1.52 to account for employee benefits (source: Bureau of Labor 
Statistics), resulting in a total hourly labor cost of $32.97 
($21.69 x 1.52). The Department then multiplies the total number of 
extra referrals by the SWA staff time to place a job order, and the 
hourly compensation of an SWA staff member. The Department assumes 
that it takes SWA staff 30 additional minutes (0.5 hours) per 
application to maintain a job order. These assumptions result in a 
total cost of $273,087 (16,566 x 0.5 x $32.97) in 2009. The 
Department then repeats this calculation for each year of the 
analysis period and then averages the costs to obtain an average 
annual cost of $351,096.
---------------------------------------------------------------------------

    The Department recognizes that the requirement that employers 
accept referrals for a longer time will likely lead to additional 
referrals and, therefore, additional costs to employers. However, the 
Department does not have sufficient data on the number of average 
additional referrals (and the ensuing additional cost in terms of 
contractual obligations to a greater number of workers) to accurately 
monetize such a cost to employers.
    The expansion of DOL oversight of the H-2A program will result in 
increased time dedicated by the Department to review applications. We 
estimate this cost by multiplying the total number of new applications 
by the time required for Department staff to review each application, 
and then by the average hourly compensation of this staff. The 
Department estimates the average annual cost associated with this 
activity to be $0.5 million.\22\
---------------------------------------------------------------------------

    \22\ The Department assumes that Department staff (GS-12, step 
5) spend one additional hour to review each application. The hourly 
salary for a GS-12, step 5 staff ($31.34) was multiplied by an index 
of 1.69 to account for Federal government employee benefits and 
proportional operating costs, resulting in an hourly rate of $52.96. 
The 1.69 index is derived by using the Bureau of Labor Statistics' 
index for salary and benefits plus the Department's analysis of 
overhead costs averaged over all employees of the Department's OFLC. 
The Department multiplies this hourly labor cost by the cumulative 
number of new applications received in 2009 (2,717) to obtain a 
total cost of $143,887 ($52.96 x 1 x 2,717) in 2009. The Department 
repeats this calculation in each year of the analysis, using the 
number of new applications projected to be received in each year, 
and averages the results to obtain an average annual cost of 
$469,737.
---------------------------------------------------------------------------

ii. Transfers
    As more U.S. workers are hired as a result of this Final Rule, 
those workers who were previously unemployed will no longer make claims 
for new or continued unemployment insurance benefits.\23\ Other things 
constant, we expect the States to experience a reduction in 
unemployment insurance expenditures as a consequence of U.S. workers 
being hired. However, the Department is not able to quantify these 
transfer payments due to a lack of adequate data.
---------------------------------------------------------------------------

    \23\ Similarly, when U.S. workers shift from other industries to 
fill agricultural jobs, additional workers from the pool of the 
unemployed will inevitably fill the vacant positions.
---------------------------------------------------------------------------

d. New Electronic Job Registry
    Under this Final Rule, the Department will create and maintain an 
electronic job registry. The Department will post and maintain 
employers' H-2A job orders, including modifications approved by the CO, 
in a national and publicly accessible electronic job registry. The job 
registry will serve as a public repository of H-2A job orders for the 
duration of the enhanced U.S. worker referral period: 50 percent of the 
certified period of employment. The job orders will be posted in the 
registry by a CO upon the acceptance of each submission. The posting of 
the job orders will not require any additional effort on the part of 
the SWAs or H-2A employers.
i. Benefits
    The job registry will improve the visibility of agricultural jobs 
to U.S. workers. Thus, the job registry represents a benefit to society 
by expanding the period during which agricultural jobs are available to 
U.S. workers and, therefore, improving their employment opportunities. 
In addition, the establishment of a job registry will provide greater 
transparency with respect to the Department's administration of the H-
2A program to the public, members of Congress, and other stakeholders. 
Transferring these agricultural job orders (Form ETA-790 and 
attachments) into electronic records for the job registry will 
eliminate

[[Page 6949]]

unnecessary paper records currently maintained by the CO and result in 
a better and more complete record of H-2A labor certification 
petitions. Finally, because Form ETA-790 and attachments are among the 
documents most commonly requested by members of the public, Congress, 
and other stakeholders, the Department anticipates some reduction in 
FOIA requests for these agricultural job orders, thereby saving staff 
time and resources.
ii. Costs
    The establishment of an electronic job registry in this Final Rule 
imposes several costs directly on the Department: The increased costs 
for developing business requirements and design documentation outlining 
the functional components of the job registry; increased costs for 
application programming, testing, and implementation of the electronic 
job registry into a production environment; increased costs to maintain 
and continuously improve the electronic job registry; and additional 
staff time to maintain job orders placed on the registry. The 
Department expects that the majority of costs to develop and implement 
the new electronic job registry will occur within the first 12 months 
of implementing the regulation. Out-year costs will include maintenance 
and additional staff time to maintain job orders on the registry. The 
Department estimates average annual costs of maintaining an electronic 
job registry to be approximately $0.5 million.\24\
---------------------------------------------------------------------------

    \24\ The Department assumes first-year development, testing, and 
implementation staff time and labor categories as follows: Project 
Manager II, 1,253 hours; Computer Systems Analyst II, 1,253 hours; 
Computer Systems Analyst III, 2,037 hours; Computer Programmer III, 
3,995 hours; Computer Programmer IV, 3,995 hours. For out-year 
maintenance costs, the Department assumes that 376 hours will be 
required for the following labor categories: Program Manager, 
Computer Systems Analyst II & III, Computer Programmer III & IV, 
Computer Programmer Manager, Data Architect, Web Designer, Database 
Analyst, Technical Writer II, Help Desk Support Analyst, and 
Production Support Manager. Finally, the Department uses the 
following loaded rates based on an Independent Government Cost 
Estimate (ICGE) produced by OFLC and inclusive of direct labor and 
overhead costs for each labor category: Program Manager, $138.34; 
Project Manager II, $106.90; Computer Systems Analyst II, $92.14; 
Computer Systems Analyst III, $109.84; Computer Programmer III, 
$89.63; Computer Programmer IV, $107.72; Computer Programmer 
Manager, $123.88; Data Architect, $104.99; Web Designer, $124.76; 
Database Analyst, $77.80; Technical Writer II, $84.81; Help Desk 
Support Analyst, $55.28; Production Support Manager--$125.76. The 
Department multiplies the assumed number of hours by the appropriate 
labor rates to obtain a first-year cost of $1,261,554 and a cost in 
subsequent years of $464,341. The Department averages the costs over 
the 10-year analysis period to obtain an average annual cost of 
$544,063.
---------------------------------------------------------------------------

e. Reduced SWA Administrative Burden By Eliminating Employment 
Verification
    Under this Final Rule, SWAs will no longer be responsible for 
conducting employment eligibility verification activities. These 
activities include the completion of the Form I-9 and the vetting of 
application documents by SWA personnel. However, there will be 
additional costs to employers as they resume the function of their own 
employment eligibility verification.
i. Benefits
    Under the 2008 Final Rule, SWAs are required to complete Form I-9 
for agricultural job orders and inspect and verify the employment 
eligibility documents furnished by the applicants.\25\ Under this Final 
Rule, SWAs will no longer be required to complete this process, 
resulting in cost savings. To estimate the avoided costs of employment 
eligibility verification activities, the Department multiplies the 
estimated number of U.S. farm workers that are referred to H-2A jobs 
through One-Stop Career Centers by the cost per application.\26\ The 
Department estimates average annual avoided costs of employment 
eligibility verification activities to be $ 0.03 million.
---------------------------------------------------------------------------

    \25\ The cost estimate assumes the use of the Form I-9 rather 
than the E-Verify system. The most recent count indicates that 
relatively few SWAs are using E-Verify.
    \26\ To estimate the cost per application, the Department sums 
the time for the SWA staff to complete the Form I-9, the time 
required to review employment eligibility documents, and the time to 
file the completed form in a systematic manner, to obtain a total of 
13 minutes of labor per application. The Department then divides 
this result by 60 to approximate the fraction of an hour (0.22) 
required to process each application. The Department assumes this 
work would be done by a SWA Compensation, Benefits, and Job Analysis 
Specialist at an hourly rate of $32.97 ($21.69 multiplied by 1.52 to 
account for employee benefits). For 2009, the Department then takes 
the total number of U.S. migrant seasonal farm worker (MSFW) 
referrals between July 1, 2007 and June 30, 2008 (70,722) and 
multiplies this total by the percentage of MSFWs that did not refer 
themselves (10 percent) and by the percentage of MSFW referrals that 
were H-2A jobs (67 percent) to obtain an annual total of 4,715 
referrals (70,722 x 0.10 x 0.67). The Department then multiplies 
this annual number of referrals by the fraction of an hour required 
to process each application and by the hourly wage rate to obtain a 
total avoided cost in 2009 of $33,679 (4,715 x 0.22 x $32.97). The 
Department then repeats this calculation for each year of the 
analysis period and averages the results to obtain an average annual 
avoided cost of $33,679.
---------------------------------------------------------------------------

    Under the 2008 Final Rule, after the adjudication of employment 
eligibility, SWAs issue certifications for eligible workers. Under this 
Final Rule, SWAs will no longer be required to issue such 
certifications. The avoided costs include the value of staff time to 
prepare and print the certification form, as well as the costs of 
paper, envelopes, and postage. The Department estimates annual avoided 
costs of certification issuance to be $0.02 million.\27\
---------------------------------------------------------------------------

    \27\ The Department estimates the cost of staff time by 
multiplying the number of U.S. farm workers who are referred to H-2A 
jobs through One-Stop Career Centers (4,715 in 2009, as calculated 
above) by the time required to print the form (5 minutes or 0.08 
hours) and the hourly labor compensation of an SWA Compensation, 
Benefits, and Job Analysis Specialist ($21.69) scaled by 1.52 to 
account for employee benefits ($32.97). This results in total labor 
costs of $12,954 (4,715 x 0.08 x $32.97) in 2009. The Department 
then adds to this cost the materials cost per application assuming 
that the cost of a sheet of paper, cost of an envelope, and cost of 
postage per envelope are $0.02, $0.04, and $0.44, respectively. This 
calculation results in total materials cost of $2,358 (4,715 x 
($0.02 + $0.04 + $0.44). Summing the labor and materials costs 
results in a total avoided cost of $15,311 for 2009. The Department 
repeats this calculation for each year of the analysis period to 
obtain an average annual avoided cost of $15,311.
---------------------------------------------------------------------------

    SWAs are also required to retain records for the employment 
eligibility decisions. Under this Final Rule, SWAs will no longer be 
required to retain the records. The avoided costs include the value of 
staff time to copy, organize, and store all relevant documents, as well 
as the material costs of paper and photocopy machine use. The 
Department estimates average annual avoided costs equal to 
approximately $0.02 million.\28\
---------------------------------------------------------------------------

    \28\ The Department estimates the cost of staff time by 
multiplying the total number of H-2A workers requested (4,715 in 
2009, as calculated above) by the time required to copy, organize, 
and store all relevant documents (5 minutes or 0.08 hours) and the 
hourly labor compensation of an SWA Compensation, Benefits, and Job 
Analysis Specialist ($21.69) scaled by 1.52 to account for employee 
benefits (for a total hourly labor cost of $32.97). This results in 
a total labor cost for 2009 of $12,954 (4,715 x 0.08 x $32.97). The 
Department then adds to this labor cost the materials cost per 
record by multiplying the total number of H-2A workers requested 
(4,715) by the cost per record, assuming the number of sheets 
photocopied is 5 and cost per photocopy is $0.12. This calculation 
results in total materials cost of $2,829 (4,715 x (5 x $0.12)). 
Summing the labor and materials costs results in a total avoided 
cost of $15,782 for 2009. The Department repeated this calculation 
for each year of the analysis period to obtain an average annual 
avoided cost of $15,782.
---------------------------------------------------------------------------

    The employment eligibility verification activities currently in 
place require the training of SWA to properly complete the process. 
Under this Final Rule, SWAs will no longer incur the costs of this 
training. These costs include the value of staff time to attend 
training courses, the staff time to teach training courses, and the 
material costs of producing training manuals. The Department estimates 
average annual avoided costs of SWA staff training equal to 
approximately $0.4 million.\29\
---------------------------------------------------------------------------

    \29\ The Department estimates the avoided costs of attending 
training courses by multiplying the number of One-Stop Career 
Centers (1,794) by the number of workers trained per center (2), the 
length of training (3 hours), and the hourly labor compensation of 
an SWA Compensation, Benefits, and Job Analysis Specialist ($32.97 
as calculated above). This calculation results in a total avoided 
cost of training courses of $354,876 in 2009 (1,794 x 2 x 3 x 
$32.97). The Department estimates the avoided costs of trainer 
workload by multiplying the number of trainers (1 per 5 One-Stop 
Career Centers, or 359 trainers (1,794/5)) by the length of training 
(3 hours) and the hourly labor compensation of an SWA Compensation, 
Benefits, and Job Analysis Specialist ($32.97). This calculation 
results in a total avoided cost of trainer workload of $35,488 in 
2009 (359 x 3 x $32.97). The Department estimates the avoided cost 
of producing training manuals by multiplying the number of One-Stop 
Career Centers (1,794) by the number of workers trained per center 
(2), the pages per training manual (30) and the cost per photocopy 
($0.12). This calculation results in a total avoided cost of 
producing training manuals of $12,917 in 2009 (1,794 x 2 x 30 x 
$0.12). The Department sums these costs to obtain a total avoided 
training cost of $403,281 ($354,876 + $35,488 + $12,917) in 2009. 
The Department repeated this calculation for each year of the 
analysis period to obtain a total average avoided cost of $403,281.

---------------------------------------------------------------------------

[[Page 6950]]

ii. Costs
    Costs associated with retention of documentation and application 
fees exist as a result of the 2008 Final Rule and, therefore, are not 
considered in this analysis. The Department acknowledges that employers 
will experience increased costs related to employment eligibility 
verification for referred employees who will no longer need to be 
verified by SWAs under this Final Rule. The cost to employers is, 
however, not equivalent to the cost representing the benefit to SWAs, 
as employers are not required to also complete the certification 
required of SWAs.
f. Enhancing Worker Protections Through Compliance Certification
    The 2008 Final Rule used an attestation-based model: Employers 
conducted the required recruitment in advance of application filing 
and, based upon the results of that effort, applied for certification 
from the Department for a number of foreign workers to fill openings. 
That is, under the 2008 Final Rule, employers attested that they had 
undertaken the necessary activities and made the required assurances to 
workers. In contrast, under the 1987 Rule, such actual efforts or 
documentation were reviewed by a Federal or State official to ensure 
compliance. The Department has determined that there are insufficient 
worker protections in the attestation-based model in which employers 
merely confirm, and do not actually demonstrate, that they have 
performed an adequate test of the U.S. labor market. As a result, this 
Final Rule mandates a fully-supervised labor market test and requires 
the submission of documentation, such as workers' compensation, housing 
certification issued by the SWA, and proof of registration and surety 
bond for H-2ALCs.
i. Costs
    The certification of compliance will impose some costs on employers 
because they will need to submit copies of recruitment activities, 
details of job offers, workers' compensation documentation, and for H-
2ALCs, registration, surety bond, and work contracts, rather than 
attesting that they have complied with the required elements of the H-
2A program. Employers are already required by the 2008 Final Rule to 
obtain and retain these documents, and this Final Rule simply requires 
the submission of those documents, particularly workers' compensation 
and housing inspections, to the Department in order to satisfy the 
underlying statutory assurances. The Department estimates the cost of 
this requirement by multiplying the total number of applications by the 
difference in time to prepare the new H-2A application as compared to 
that under the 2008 Final Rule. We then multiply this product by the 
average compensation of a human resources manager at an agricultural 
business. Because the H-2A application in this Final Rule requires more 
to be submitted than the application under the 2008 Final Rule, we add 
the incremental costs of photocopying the additional pages and the 
postage required to ship them to DOL.\30\ This calculation yields an 
average annual cost to employers of $0.6 million.\31\
---------------------------------------------------------------------------

    \30\ The Department received 8,150 applications in 2009 and 
projects the annual number of applications to increase to 22,601 by 
2018. To estimate the materials cost, the Department estimates that 
150 additional pages will need to be photocopied at a cost of $0.12 
per photocopy. These assumptions result in a cost of $146,700 in 
2009 (8,150 x 150 x $0.12) for photocopying. The additional pages 
weigh approximately 17.6 ounces and require $0.80 in postage per 
application. This cost estimate is based on mailing the additional 
150 pages via Priority Mail (2-day delivery) from Topeka, Kansas to 
the NPC in Chicago (source: http://postcalc.usps.gov). These 
assumptions result in a cost of $6,520 (8,150 x $0.80) for mailing 
applications in 2009. Summing the photocopying and mailing costs 
results in a total materials cost of $153,220 in 2009.
    \31\ The Department received 8,150 applications in 2009 and 
projects the annual number of applications to increase to 22,601 by 
2018, of which approximately 2,717 and 2,421 of the applications 
submitted in 2009 and 2018, respectively, would not have been 
previously submitted. The Department estimates that this work would 
be performed by a human resources manager at an agricultural firm at 
an hourly rate of $42.15 (as published by the Department's OES 
Survey, O*Net Online), which we multiplied by 1.43 to account for 
employee benefits (source: BLS) to obtain a total hourly wage rate 
of $60.27. For applications that would not have been previously 
submitted, the Department assumes that preparing an application 
using the certification application process, as compared to the 
attestation process, will result in increased agricultural employer 
staff time of 30 minutes (0.5 hours) per application. These 
assumptions result in a total labor cost of $81,873 in 2009 (2,717 x 
0.05 x $60.27) for applications that would not have been previously 
submitted. For applications that would have been previously 
submitted under the H-2A program, the Department assumes there will 
be a 20-minute (0.33 hours) increase in staff time using the 
certification application process. The Department determined the 
number of applications that would have been previously submitted 
(5,433) by subtracting the number of new applications that would not 
have been previously submitted (2,717) from the total number of 
applications received in 2009 (8,150). These assumptions result in a 
total labor cost of $109,164 in 2009 (5,433 x 0.33 x $60.27) for 
applications that would not have been previously submitted. Summing 
the labor and materials costs for 2009 results in a total cost of 
$344,257 ($81,873 + 109,164 + 153,220). Using the projected number 
of applications, the Department repeats this calculation for each 
year of the analysis period to obtain an average annual cost of 
$573,481.
---------------------------------------------------------------------------

ii. Transfers
    The Department maintains its requirement that an H-2ALC post a 
surety bond to demonstrate its ability to meet its financial 
obligations to its employees.\32\ In addition to the bond amounts 
specified in the 2008 Final Rule, the Department is adding larger 
bonding requirements applicable to H-2ALCs with larger crews. Under the 
2008 Final Rule, H-2ALCs seeking to employ 50 or more workers are 
required to obtain a surety bond of $20,000. Under this Final Rule, H-
2ALCs seeking to employ 75 to 99 workers will be required to obtain a 
surety bond in the amount of $50,000, and H-2ALCs seeking to employ 100 
or more workers are required to obtain a surety bond in the amount of 
$75,000. The Department estimates average annual transfers due to 
increased surety bond requirements to be approximately $0.03 
million.\33\
---------------------------------------------------------------------------

    \32\ Some States (e.g., California) already have existing surety 
bond requirements for FLCs.
    \33\ The Department assumes that 4 percent and 2 percent of H-
2ALCs hire 75-99 workers and 100 or more workers, respectively. The 
Department also assumes that the surety bond premium is 
approximately 1.5 percent of the total bond amount. To calculate the 
increased cost to H-2ALCs that hire 75-99 workers, the Department 
multiplies the number of FLCs participating in the H-2A program 
(594) by the percent of H-2ALCs that hire 75-99 workers (4 percent), 
the increase in bond size required ($30,000), and the bond premium 
as a percent of the total bond value (1.5) to obtain a total of 
$10,699 in 2009. To calculate the increased cost to H-2ALCs that 
hire 100 or more workers, the Department multiplies the number of 
FLCs participating in the H-2A program (594) by the percent of H-
2ALCs that hire 100 or more workers (2 percent), the increase in 
bond size required ($55,000), and the bond premium as a percent of 
the total bond value (1.5 percent) to obtain a total of $9,807 in 
2009. The Department then sums these two values to obtain a total 
value of the transfer of $20,506 ($10,699 + $9,807) in 2009. The 
Department repeats this calculation for each year of the analysis to 
obtain an average value of the transfer of $26,338.

---------------------------------------------------------------------------

[[Page 6951]]

g. Contract Revisions and the Disclosure of Terms and Conditions
    This Final Rule requires that employers disclose the terms and 
conditions of the employment no later than the time an H-2A worker 
applies for a visa in the foreign country rather than by the first day 
of employment. This modification to the 2008 Final Rule requires that 
employers mail the terms and conditions document to workers instead of 
delivering the document to workers by hand once they arrive at the work 
site. The Department estimates average annual costs of mailing terms 
and conditions disclosures to be approximately $0.2 million.\34\
---------------------------------------------------------------------------

    \34\ The Department assumes that 50 percent of employers use 
foreign recruiters, which means that terms and conditions for all 
recruited workers can be sent directly to the recruiter who then 
disseminates the terms and conditions to workers. To estimate the 
cost for this population in 2009, the Department divides the total 
number of H-2A workers certified in 2009 (99,472) by the average 
number of workers per employer application (12) and then multiplies 
this value by 50 percent to obtain a total of 4,145 packages send to 
recruiters. This value is then multiplied by the cost of shipping a 
package to Mexico via the U.S. Postal Service ($9.60) to obtain a 
total cost of $39,789 for mailing terms and conditions to foreign 
recruiters. To estimate this cost for employers that do not use 
foreign recruiters in 2009, the Department multiplies the total 
number of H-2A workers certified in 2009 (99,472) by the percent of 
employers who do not use foreign recruiters (50 percent) and the 
cost of shipping a mailer to Mexico via the U.S. Postal Service 
($1.59) for a total cost in 2009 of $79,080. The Department then 
sums these two costs to obtain a total cost in 2009 of $118,869 
($39,789 + $79,080). The Department then repeats this calculation 
for each year of the analysis period, using the projected number of 
H-2A workers certified each year, to obtain an average annual cost 
of $172,200.
---------------------------------------------------------------------------

    This Final Rule requires employers to provide a copy of a revised 
contract to affected workers when the employer applies for an extension 
of the H-2A certification. This occurs in situations in which employers 
are required to adjust their labor schedules due to unforeseen events, 
such as bad weather. The Department estimates average annual costs of 
contract revisions to be approximately $0.02 million.\35\
---------------------------------------------------------------------------

    \35\ To estimate the cost of photocopying the revised ETA-790 
for each worker in 2009, the Department multiples the total number 
of H-2A workers certified (99,472), the number of pages in the ETA-
790 (1 page), and the cost per photocopy ($0.12) to obtain a total 
cost in 2009 of $11,937. The Department repeats this calculation 
each year to obtain an average annual cost of $17,292.
---------------------------------------------------------------------------

h. Changes in the Requirement for Housing Inspections
    This Final Rule retains most of the 2008 Final Rule provisions 
governing housing inspections. The employer's obligations with respect 
to housing standards, rental or public accommodations, open range 
housing, deposit charges, charges for public housing, and family 
housing under the regulations remain the same as under the 2008 Final 
Rule. One notable difference, however, is the timeframe in which an 
inspection of the employer's housing must occur.
    In this Final Rule, when an employer places a Form ETA-790 with the 
SWA serving the area of intended employment 60 to 75 days before the 
date of need, the employer is required to disclose the location and 
type of housing to be provided to domestic and H-2A workers. Upon 
receipt of the Form ETA-790, the SWA will schedule and conduct an 
inspection of the employer's housing. Unlike the 2008 Final Rule, this 
Final Rule requires that the pre-occupancy inspection of the employer's 
housing be completed prior to the issuance of a temporary labor 
certification, which is 30 days before the date of need.\36\
---------------------------------------------------------------------------

    \36\ The Department notes that such inspection is mandated by 
other regulations governing the agricultural clearance process. 
Pursuant to 20 CFR 654.400, SWAs must deny intrastate and interstate 
recruitment services unless, among other things, a preoccupancy 
inspection has been conducted (with conditional access permitted for 
H-2A employers for a limited time period). These regulations govern 
all migrant seasonal worker housing inspections.
---------------------------------------------------------------------------

    The Department expects that this change in timing will have a 
minimal economic impact on employers. Because employers are required to 
place the job order with the SWA between 60 and 75 days prior to the 
date of need, the SWA will have between 30 and 55 days to schedule and 
conduct a timely inspection of the housing. The Department believes 
that this enhanced recruitment timeframe will also provide a sufficient 
amount of time for SWAs to conduct the required pre-occupancy housing 
inspection. Prior to the 2008 Final Rule, the Department's experience 
is that most employers who routinely use the H-2A program prepare their 
housing in advance of inspection and/or communicate with SWA staff with 
respect to changes in the location(s) or type(s) of housing before 
application filing occurred at 45 days prior to the date of need. This 
past practice was necessary, particularly among large grower 
associations, to allow SWAs to schedule and conduct pre-occupancy 
housing inspections in a timely manner and to minimize disruptions to 
the process of obtaining labor certification, petitioning for workers 
at USCIS, obtaining visas through the U.S. consulate, and bringing 
foreign workers to the worksite by the certified date of need.
    The Department examined program activity data for FY 2007 and FY 
2008 to determine if this Final Rule's requirement of completion of a 
pre-occupancy housing inspection prior to temporary certification would 
have a significant negative impact on employers. For employer 
applications certified in FY 2007 and FY 2008, the Department issued 
determinations an average of 27 calendar days before the employer's 
certified start date of need; the median in both years was 29 calendar 
days before the employer's certified start date of need. This 
processing timeframe provided employers with sufficient time to 
petition USCIS and obtain visas from the U.S. consulate in order to 
bring foreign workers from their place of residence to the worksite by 
the certified start date of need. Any downstream delays in processing 
at either USCIS or the U.S. consulate, such as scheduling and 
conducting interviews for foreign workers, cannot be attributed to the 
Department's processing of the temporary labor certification.
    The Department also examined the percentage of H-2A labor 
certifications that were issued during FY 2007 and FY 2008 beyond the 
statutory 30 days timeframe such that the issuance of the determination 
would have negatively affected the employer's ability to obtain foreign 
workers by the certified start date of need. To do this, the Department 
assumed that, following issuance of the temporary labor certification, 
generally employers would receive the labor certification within 2 
days, file an I-129 petition for non-premium processing and receive 
approval from USCIS within 5 business days, file appropriate 
applications with DOS and obtain visas within 5 days, and transport 
foreign workers to the worksite in the U.S. over the course of 3 days. 
Using these assumptions, the Department determined that any labor 
certification issued later than 15 business days before the employer's 
certified start date of need would have negatively impacted the 
employer's ability to obtain foreign workers.
    For FY 2007, of the H-2A labor certification applications approved 
between October 1, 2006 and September 30, 2007 (273 out of 4,526 
certifications) for employers and associations of employer producers, 
approximately 6 percent were issued by the Department less than 15 days 
before the certified start date of need, thus having a potential 
adverse impact. For FY 2008, of the H-2A labor certification 
applications approved between October 1, 2007 and September 30, 2008 
(271 out of 5,014 certifications) for employers and associations of 
employer producers, approximately 5.4 percent were issued

[[Page 6952]]

by the Department less than 15 days before the certified start date of 
need. Some proportion of these resulted from delays in the housing 
inspection, but the Department cannot identify how many were delayed 
for this reason alone apart from those delayed for other reasons (for 
example, a failure of the employer to provide the Department with 
evidence of the coverage of workers by workers' compensation). The 
Department's program experience has demonstrated that the new 
requirement for a pre-occupancy housing inspection prior to temporary 
labor certification has not and will not have a significant impact on 
employers' ability to obtain foreign workers by the certified start 
date of need.
    Because of data limitations, we were not able to monetize the costs 
and benefits associated with this provision. The Department believes 
such costs will be minimal.
i. Enhanced Coverage of Transportation Expenses
    Under the 2008 Final Rule, the employer provides for travel 
expenses and subsistence for foreign workers only to and from the place 
of recruitment, defined as the appropriate U.S. consulate or port of 
entry. Under this Final Rule, the Department no longer limits the 
definition of the place of recruitment to the appropriate U.S. 
consulate or port of entry but rather reverts to the standard in place 
under the 1987 Rule. The employer is required to pay the costs of 
transportation from the worker's place of recruitment to and from the 
place of employment. The Department estimates average annual costs of 
these additional transportation expenditures to be approximately $9.1 
million.\37\
---------------------------------------------------------------------------

    \37\ The Department estimates the cost of this requirement in 
2009 by multiplying the total number of H-2A workers certified in 
2009 (99,472) by the cost of bus fare from the worker's place of 
recruitment to the consulate and back. The Department multiplies by 
two the one-way cost of bus fare of $31.50 (based on the cost of a 
bus trip from Oaxaca to Mexico City, source: http://www.ticketbus.com.mx). These assumptions result in a total cost for 
this requirement in 2009 of $6,266,736 (99,472 x $31.50 x 2). The 
Department repeats this calculation, using the projected number of 
H-2A workers, for each year of the analysis period to obtain an 
average annual cost of $9,078,346 for this requirement.
---------------------------------------------------------------------------

j. Other
    During the first year that this Final Rule would be in effect, all 
employers would need to learn about the new application process and how 
compliance will be judged. We estimate the cost of this process by 
multiplying the number of applications submitted by employers by the 
time required to read the new Final Rule and any educational and 
outreach materials that explain the H-2A application process under this 
Final Rule by the average compensation of a human resources manager at 
an agricultural business. The Department estimates this one-time cost 
to employers at $1.0 million.\38\
---------------------------------------------------------------------------

    \38\ The Department estimates that employers will spend 2 hours 
to read the new rule and outreach and educational materials 
explaining the program. The Department assumes that this labor will 
be performed by a human resources manager at an agricultural firm at 
an hourly wage rate of $60.27, as calculated above. The Department 
multiplies this hourly wage rate by 2 and by the total number of H-
2A applications received in 2009 (8,150) to obtain a total cost for 
this requirement of $982,474 in 2009.
---------------------------------------------------------------------------

    This Final Rule requires that contracts be translated into the 
languages of employees who do not speak English. Employers are already 
required to provide contract translation for Spanish-speaking workers. 
The Department multiplies the percent of H-2A workers who do not speak 
English or Spanish by the total number of H-2A applications to estimate 
the number of contract translations required.\39\ The Department then 
multiplies the resulting value by the average number of pages per 
contract and the cost per page for translation.\40\ The Department 
estimates average annual costs of contract translation at $0.08 
million.
---------------------------------------------------------------------------

    \39\ Approximately 0.6 percent of H-2A workers do not speak 
English or Spanish (source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls). The Department multiplies 
this percentage by the total number of H-2A applications certified 
in 2009 (7,665) to obtain a total of 47 contracts needing to be 
translated in 2009.
    \40\ The Department assumes that the average number of pages per 
contract is 50, and the cost per page for translation is $19.50 
(source: http://www.languagescape.com). The Department multiplies 
the number of contracts needing to be translated in 2009 (47) by the 
average number of pages per contract (50) and the cost per page for 
translation to obtain a total cost of $45,720 in 2009. The 
Department repeats this calculation for each year of the analysis 
period using the projected number of H-2A applications certified to 
obtain an average annual cost of $80,233 for this requirement.
---------------------------------------------------------------------------

    This Final Rule also requires that H-2ALCs submit photocopies of 
contracts with fixed agricultural sites as well as the original surety 
bonds. To estimate the number of H-2ALCs that will be subject to this 
requirement, the Department multiplies the total number of H-2A 
applications by the percent of H-2A employers who are foreign labor 
contractors. To estimate the cost of submitting photocopies of 
contracts, the Department multiplies the resulting value by the average 
number of pages per employer contract and the cost per photocopy, 
resulting in average annual costs of contract submission of $0.006 
million.\41\ To estimate the cost of providing the surety bond, the 
Department multiplies the number of H-2ALCs that will be subject to 
this requirement by the average number of pages per surety bond and the 
cost per photocopy, resulting in average annual costs of surety bond 
documentation of $0.001 million.\42\
---------------------------------------------------------------------------

    \41\ The Department estimates that approximately 7 percent of H-
2A employers are foreign labor contractors. The Department 
multiplies this percentage by the total number of H-2A applications 
requested in 2009 (8,150) by the average number of pages in a 
contract (50) and the cost per page for photocopying ($0.12) to 
obtain a total cost in 2009 of $3,566. The Department repeated this 
calculation for each year using the projected number of H-2A 
applications requested to obtain an average annual cost of $6,258 
for this requirement.
    \42\ The Department estimates that the average number of pages 
per surety bond is 5, and the cost per photocopy is $0.12. Using 
these assumptions and the same assumptions as above for the number 
of applications results in a total cost for this requirement of $357 
(0.07 x 8,150 x 5 x $0.12) in 2009. The Department repeats this 
calculation for each year using the projected number of H-2A 
applications requested to obtain an average annual cost of $626 for 
this requirement.
---------------------------------------------------------------------------

    To inform the public about this Final Rule, the Department will 
produce and deliver outreach and education materials to employers in 
order to explain the new application process and how compliance will be 
judged. We estimate this cost by multiplying the hours required to 
develop, maintain, and distribute such materials by the average 
compensation of Department staff and find average annual cost to the 
Department equal to $0.1 million.\43\
---------------------------------------------------------------------------

    \43\ The Department estimates that Department staff (GS-12 step 
5) will spend 160 hours during the first year of the program to 
develop educational and outreach materials. For every subsequent 
year, the Department estimates that staff will spend 40 hour to 
review and update educational materials, as appropriate. The hourly 
salary for Department staff ($31.34) was multiplied by an index of 
1.69 to account for employee benefits and proportional operating 
costs, resulting in an hourly rate of $52.96 for a GS-12, step 5. 
These assumptions result in a total labor cost of $8,474 ($52.96 x 
160) for 2009 and $2,119 ($52.96 x 40) in subsequent years. To 
estimate the materials cost of this requirement in 2009, the 
Department used the total number of H-2A applications requested in 
2009 (8,150) and multiplied it by the assumed percentage of 
applicants that are small farms (98 percent) to obtain a total of 
7,987 compliance guides needed. The Department then determines the 
cost for photocopying by multiplying the average page length of a 
compliance guide (100 pages) by the cost of $0.12 per page. The 
Department then includes the cost of a clasp for a heavyweight 
envelope ($0.12) and a cost of $4.95 per compliance guide for 
postage. Multiplying these costs together results in a total 
materials cost of $56,468 for this requirement in 2009. Summing the 
labor and materials costs together results in a total cost of 
$64,942 ($8,747 + $56,468) for this requirement in 2009. The 
Department repeats this calculation for each year to obtain an 
average annual cost of $101,849.
---------------------------------------------------------------------------

    Several commenters noted that H-2A employers would incur additional 
costs associated with off-site interviews and

[[Page 6953]]

courier (overnight mail) services. The use of private off-site 
interview space and courier services is not required by this Final 
Rule. Therefore, any costs associated with such activities are not 
considered in this analysis.
5. Summary of Cost-Benefit Analysis
    Exhibit 1 presents a summary of the cost-benefit analysis of this 
Final Rule. The monetized costs and benefits displayed are the yearly 
summations of the calculations described above. In some cases, the 
totals for 1 year are less than the totals of the annual averages 
described above. For example, the annual average cost of enhanced 
transportation expenses--the largest cost component of this Final 
Rule--is $9.1 million across the 10-year time horizon, but the 
individual yearly values range from $6.3 million in 2009 to $12.5 
million in 2018. This increase in yearly costs is due to the changes in 
program participation across the time horizon of the cost-benefit 
analysis. The monetized costs exceed the monetized benefits both at a 7 
percent and a 3 percent discount rate. The size of the net benefits, 
the absolute difference between the projected benefits and costs, is 
negative.

           Exhibit 1--Summary of Monetized Benefits and Costs
------------------------------------------------------------------------
                                                 Monetized    Monetized
                                                  benefits      costs
                     Year                       ($millions/  ($millions/
                                                   year)        year)
------------------------------------------------------------------------
1. 2009.......................................         0.47         9.52
2. 2010.......................................         0.47         8.34
3. 2011.......................................         0.47         9.03
4. 2012.......................................         0.47         9.77
5. 2013.......................................         0.47        10.58
6. 2014.......................................         0.47        11.46
7. 2015.......................................         0.47        12.41
8. 2016.......................................         0.47        13.45
9. 2017.......................................         0.47        14.58
10. 2018......................................         0.47        15.80
                                               =========================
Undiscounted total............................         4.68       114.93
                                               -------------------------
Total with 7 Percent discounting..............         3.29        77.70
                                               -------------------------
Total with 3 Percent discounting..............         3.99        96.41
------------------------------------------------------------------------
Totals may not add because of rounding.

    Due to lack of adequate data, the Department is not able to provide 
monetary estimates of several important benefits to society, including 
the increased employment opportunities for U.S. workers and the 
enhancement of worker protections for U.S. and H-2A workers.
    The Department has concluded that after consideration of both the 
quantitative and qualitative impacts of this Final Rule, the societal 
benefits of the rule justify the societal costs.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605 of the RFA allows an 
agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Further, under the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an 
agency is required to produce a compliance guidance for small entities 
if the rule has a significant economic impact. The Assistant Secretary 
of ETA has notified the Chief Counsel for Advocacy, Small Business 
Administration (SBA), under the RFA at 5 U.S.C. 605(b), and certified 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
1. Definition of a Small Business
    A small entity is one that is independently owned and operated and 
which is not dominant in its field of operation. The definition of 
small business varies from industry to industry to the extent necessary 
to properly reflect industry size differences. An agency must either 
use the SBA definition for a small entity, or, establish an alternative 
definition for the agricultural industry. The Department has adopted 
the SBA definition, which is an establishment with annual revenues of 
less than $0.75 million.
2. Impact on Small Businesses
    The Department has estimated the incremental costs for small 
businesses from the 2008 Final Rule (the baseline) to this rule. We 
have estimated the costs of the increased wages paid to H-2A workers, 
reading and reviewing the new application and compliance processes, the 
enhanced coverage of transportation expenses, coverage of visa and 
border crossing expenses, the enhanced worker protections through 
compliance certification, the changes in the requirement for housing 
inspections, the enhanced U.S. worker referral period, the changes in 
the requirements for contract revisions, and the disclosure of terms 
and conditions. This analysis includes the incremental cost of this 
rule as it adds to the requirements in the 2008 Final Rule. This 
analysis does not include the baseline costs of the 2008 Final Rule, 
such as the associated application fees and costs for record keeping, 
because none of these requirements have changed from the 2008 Final 
Rule.
    Approximately 98 percent of U.S. farms have revenues of less than 
$0.75 million and, therefore, fall within the SBA's definition of small 
entity. The Department estimates that by 2018 there will be 
approximately 22,601 applications (not necessarily applicants) to the 
H-2A program. Even if all 22,601 applications are filed by unique small 
farms, the percentage of small farms applying for temporary 
agricultural worker certification will be only 1.2 percent of the total 
number of small U.S. farms.\44\ Because the rule will impact less than 
10 percent of the total number of small U.S. farms, the rule will not 
have an impact on a substantial number of small entities as described 
by the RFA.
---------------------------------------------------------------------------

    \44\ Based on the number of farms in 2007 and assuming that the 
number of farms will decline at the same average annual rate as it 
has in the past 10 years, the Department estimates that in 2018 
there will be approximately 1,878,971 farms.
---------------------------------------------------------------------------

    To examine the impact of this rule on small entities, the 
Department evaluates the impact of the incremental costs on the average 
small entity, which is assumed to apply for 12 temporary workers. The 
Department estimates that these farms have annual revenues of about 
$367,000.\45\
---------------------------------------------------------------------------

    \45\ Based on the average duration of temporary agricultural 
workers' stay, the Department estimates that these workers work, on 
average, 198 days. As already discussed, temporary agricultural 
workers will be paid, on average, $9.36 per hour. Given this hourly 
rate and 1,584 working hours per year, a small entity hiring 12 
temporary workers incurs hired farm labor costs of $177,915 ($9.36 x 
1,584 x 12). Based on the 2002 Census of Agriculture, hired farm 
labor costs account, on average, for 41.2 percent of total farm 
costs while total costs represent, on average, 86.3 percent of total 
revenues. Applying these rates to the estimated hired labor costs, 
we estimate that a small farm employing 12 temporary agricultural 
workers would have total production expenses of $316,777, revenues 
of $366,936, and net farm income (i.e., revenues minus production 
expenses) of $50,159 per year.
---------------------------------------------------------------------------

a. Increased Wages Paid to H-2A Workers
    As discussed earlier, the use of the USDA survey for the 
determination of wages as opposed to the BLS OES Wage Survey, which was 
used in the 2008 Final Rule, results in an increase of $1.02 in hourly 
wages paid to H-2A workers. The Department multiplies this hourly wage 
increase by 8 hours to obtain a daily cost of the increase in wages of 
$8.16 ($1.02 x 8). The

[[Page 6954]]

Department then multiplies this daily labor cost by 198, which is the 
average number of days worked by H-2A workers. This results in a total 
cost of $1,615.68 ($8.16 x 198) per H-2A worker per year and an average 
annual cost of $1,615.68 over the 10-year analysis period due to the 
increase in wages. For employers hiring the average number (12) of H-2A 
workers, this results in a total cost of $19,388.16 ($1,615.68 x 12) 
per year due to the increase in wages, or an average annual cost of 
$19,388.16 over the 10-year analysis period.
b. Reading and Reviewing the New Application and Compliance Processes
    During the first year that this rule would be in effect, employers 
would need to learn about the new application process and how 
compliance will be determined. We estimate this cost by multiplying the 
time required to read the new rule and any educational and outreach 
materials that explain the H-2A application process under this rule by 
the average compensation of a human resources manager at an 
agricultural business. In the first year of the rule, the Department 
estimates that the average small farm will spend approximately 2 hours 
of staff time to read and review the new application and compliance 
processes, which amounts to approximately $120.55 ($60.27 x 2) in labor 
costs in the first year and an average annual cost of $12.06 ($120.55/
10) over the 10-year analysis period.\46\
---------------------------------------------------------------------------

    \46\ The Department estimates that employers will spend 2 hours 
to read the new rule and outreach and educational materials 
explaining the program. In addition, the Department estimates that 
the median hourly wage for a human resources manager is $42.15 (as 
published by the Department's OES survey, O*Net Online), which we 
increased by 1.43 to account for private-sector employee benefits 
(source: BLS for an hourly wage rate of $60.27.
---------------------------------------------------------------------------

c. Enhanced Coverage of Transportation Expenses
    Under the 2008 Final Rule, the employer provides for travel 
expenses and subsistence for foreign workers only to and from the 
appropriate U.S. consulate or port of entry. Under this Final Rule, the 
employer is required to pay the costs of transportation from the 
worker's place of recruitment to and from the place of employment. The 
Department estimates that the average small farm would incur costs of 
$63.00 ($31.50 x 2) per worker per year related to the enhanced 
coverage of transportation expenses, or an average annual cost of 
$63.00 per worker.\47\ For employers hiring the average number of 
workers (12), this requirement results in an average annual cost of 
$756.00 ($63.00 x 12).
---------------------------------------------------------------------------

    \47\ The Department estimates these costs by multiplying the 
total number of H-2A workers certified by the cost of bus fare from 
the worker's home to the consulate and back. The Department assumes 
one-way cost of bus fare of $31.50.
---------------------------------------------------------------------------

d. Coverage of Visa/Border Crossing Expenses
    Under this Final Rule, the employer must pay the visa and border 
crossing fees of the H-2A workers they employ. Although this cost is a 
transfer from U.S. employers to H-2A workers, this requirement 
represents an increase in the cost of U.S. employers. Each H-2A worker 
must pay a visa application fee of $131.00 and a reciprocity fee based 
on their country of origin.\48\ To estimate the cost of the reciprocity 
fee to employers, the Department researched the reciprocity fee for the 
five top countries supplying H-2A workers. The reciprocity fees for 
these countries ranged from $0 to $100.00, which is the reciprocity fee 
for Mexico, the top source of H-2A workers.\49\ To be conservative in 
its estimate of costs to U.S. employers, the Department used the 
maximum reciprocity fee of $100.00 to obtain a total cost per worker of 
$231.00 ($131.00 + $100.00). For employers hiring the average number of 
workers (12), this requirement results in an average annual cost of 
$2,772.00 ($231.00 x 12).
---------------------------------------------------------------------------

    \48\ Source: http://travel.state.gov/visa/temp/types/types_1263.html#temp.
    \49\ Source: http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html.
---------------------------------------------------------------------------

e. Enhancing Worker Protections Through Compliance Certification
    The certification of compliance will represent minimal costs to 
employers because they will need to submit copies of recruitment 
activities, details of job offers, workers' compensation documentation, 
and for H-2ALCs, registration, surety bond, and work contracts, rather 
than attesting that they have complied with the required elements of 
the H-2A program. Under the 2008 Final Rule, employers are already 
required to obtain and retain these documents and this rule simply 
requires the submission of those existing documents, particularly 
workers' compensation and housing inspections, to the Department in 
order to satisfy the program's underlying statutory assurances. The 
Department estimates this cost by multiplying the difference in time to 
prepare the new H-2A application as compared to that under the 2008 
Final Rule for both new H-2A applicants and previous applicants. We 
then multiply these products by the average compensation of a human 
resources manager at an agricultural business ($60.27 per hour, as 
calculated above).
    For small employers applying to the program for the first time, the 
Department estimates that the application will take approximately one-
half hour (0.5 hours) more to complete. This results in additional 
labor costs equal to $30.14 ($60.27 x 0.5). For applicants familiar 
with the process, the Department estimates that the application will 
require approximately 20 additional minutes (0.33 hours) to complete. 
The result is additional labor costs of $20.09 ($60.27 x 0.33) for 
applicants familiar with the program. Because the application will be 
longer, the Department adds the costs of photocopying additional pages 
and additional postage required to the labor costs above.\50\ In total, 
the Department estimates that the average small farm that is a new H-2A 
applicant would incur an average annual cost of $48.94 ($30.14 + 
$18.80), and the average small farm that is a previous H-2A applicant 
would incur an average annual cost of $38.89 ($20.09 + $18.80).
---------------------------------------------------------------------------

    \50\ The Department estimates that an average of 150 additional 
pages will need to be photocopied at a cost of $0.12 per photocopy. 
The additional pages weigh approximately 17.6 ounces and require 
$0.80 in postage per application. These assumptions result in a 
total materials cost of this requirement of $18.80 ((150 x $0.12) + 
0.80).
---------------------------------------------------------------------------

    This rule also requires that contracts be translated into the 
languages of employees who do not speak English. Employers are already 
required to provide contract translations for employees who speak 
Spanish. We multiply the percent of H-2A workers who do not speak 
English or Spanish by the average number of pages per contract and the 
cost per page for translation.\51\ The Department estimates the average 
small farm would incur average annual costs of contract translation of 
$5.96 (0.6 percent x 50 x $19.50).
---------------------------------------------------------------------------

    \51\ Approximately 0.6 percent of H-2A workers do not speak 
English or Spanish (source: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2008/table32d.xls). The Department assumes that 
the average number of pages per contract is 50, and the cost per 
page for translation is $19.50 (source: http://www.languagescape.com).
---------------------------------------------------------------------------

f. Changes in the Requirement for Housing Inspections
    This Final Rule retains most of the 2008 Final Rule provisions 
governing housing inspections. The employer's obligations with respect 
to housing standards, rental or public accommodations, open range 
housing, deposit charges, charges for public housing, and family 
housing under this

[[Page 6955]]

rule have remained the same as under the 2008 Final Rule.
    One notable difference, however, is the timeframe in which an 
inspection of the employer's housing must occur. Unlike the 2008 Final 
Rule, this rule requires that the pre-occupancy inspection of the 
employer's housing be completed prior to the issuance of a temporary 
labor certification, which is 30 days before the date of need for the 
workers.
    The Department expects that this change in timing will have a 
minimal economic impact on employers. Prior to the effective date of 
the 2008 Final Rule, the Department's experience was that the majority 
of employers who routinely used the H-2A program prepared their housing 
in advance of inspection and/or communicated with SWA staff with 
respect to changes in the location(s) or type(s) of housing before 
application filing occurred at 45 days prior to the date of need. 
Because of data limitations, we were not able to monetize the costs and 
benefits associated with this provision.
g. Contract Revisions and the Disclosure of Terms and Conditions
    This rule requires that employers disclose the terms and conditions 
of the employment no later than the time an H-2A worker applies for a 
visa in the foreign country rather than by the first day of employment. 
As discussed above, this requires that employers mail the terms and 
conditions documents to workers instead of delivering the document to 
workers by hand once they arrive at the work site. To estimate the cost 
of this requirement to a small entity, the Department uses the cost of 
shipping a package to Mexico via the United States Postal Service 
($9.60) for entities required to mail packages for the average number 
(12) of H-2A workers. For the smallest of entities employing only one 
H-2A worker, the Department assumed the cost of this requirement was 
equal to the cost of shipping a mailer to Mexico via the United States 
Postal Service ($1.59). The average annual cost of this requirement is 
thus $9.60 for entities employing the average number of H-2A workers, 
and $1.59 for the smallest of entities employing only one H-2A worker.
    As discussed previously, this rule requires employers to provide a 
copy of a revised contract to affected workers when the employer 
applies for an extension of the H-2A certification. To determine the 
cost to small entities, the Department multiplied the number of pages 
in the Form ETA-790 (one page) and the cost per page for photocopying 
($0.12) to obtain a total cost per affected entity of $0.12 ($0.12 x 1) 
for Form ETA-790 revision. The average annual cost of this requirement 
is thus $1.44 ($0.12 x 12) for entities employing the average number 
(12) of H-2A workers and $0.12 for the smallest of entities employing 
only one H-2A worker.
h. Additional Costs for Small Employers Who Are H-2ALCs
    Employers who are H-2ALCs will incur additional costs related to 
the submission of contracts and the provision of the surety bond. For 
both categories, we estimate the cost by multiplying the additional 
photocopies required by the cost per photocopy. The Department 
estimates that the average small H-2ALC will incur average annual costs 
of $6.00 for the submission of contract photocopies (50 x $0.12) and 
$0.60 (5 x $0.12) for the provision of the surety bond.\52\
---------------------------------------------------------------------------

    \52\ We assume that the average number of pages per contract is 
50, the number of pages per surety bond is 5, and the cost per 
photocopy is $0.12.
---------------------------------------------------------------------------

i. Other Issues
    The Department does not anticipate that the increased SWA activity 
under this rule will result in significant processing delays, as the 
Department continues to operate under the statutory mandate to make a 
determination of whether or not the application meets the threshold 
requirements for certification within 7 days of filing. The 
Department's analysis pursuant to E.O. 12866, above, contains an 
analysis of potential delays for all employers, including small 
employers, incurred for all reasons, not just for the reason of delays 
that may happen as a result of increased SWA activity. The conclusion 
that the Department has drawn from this analysis is that the increased 
SWA activity, which the Department believes is required by statute, 
will not result in increased delays to employers.
    Several commenters on the proposed rule noted that H-2A employers 
would incur additional costs associated with off-site interviews and 
courier services. As discussed above, the use of private off-site 
interview space and courier services are not required by this Final 
Rule and, therefore, do not constitute a cost to small entities.
3. Total Cost Burden for Small Entities
    The Department's calculations indicate that the total average 
annual cost of this rule is $22,994 for the average small entity 
applying to the program for the first time and $22,984 for the average 
small entity that has previous program familiarity.\53\
---------------------------------------------------------------------------

    \53\ For illustration, the total cost of $22,994 for the average 
small entity applying to the program for the first time results from 
summing the totals for the various rule requirements described above 
as follows: $22,998 = $19,388.16 + $12.06 + $756.00 + $2,772.00 + 
$48.94 + $5.96 + $9.60 + $1.44.
---------------------------------------------------------------------------

    For small entities that apply for 1 worker instead of 12 
(representing the smallest of the small farms that hire workers), the 
Department estimates that the total average annual cost of the rule 
ranges from $1,968 for those that have previous program familiarity to 
$1,978 for small entities new to the program.\54\
---------------------------------------------------------------------------

    \54\ For illustration, the total cost of $1,968 for small 
entities with previous program familiarity and employing only one 
worker results from summing the totals for the various rule 
requirements described above as follows: $1,968 = $1,615.68 + $12.06 
+ $63.00 + $231.00 + $38.89 + $5.96 + $0.12 + $1.59.
---------------------------------------------------------------------------

    For employers that are H-2ALCs, the Department estimates that the 
total average annual cost of this rule is an additional $85 for the 
average small entity applying to the program for the first time and an 
additional $75 for the average small entity that has previous program 
familiarity.\55\
---------------------------------------------------------------------------

    \55\ For illustration, the total cost of $85 for the average 
small H-2ALC applying to the program for the first time results from 
summing the totals for the various rule requirements described above 
as follows: $85 = $12.06 + $48.94 + $5.96 + $1.44 + $9.60 + $6.00 + 
$0.60.
---------------------------------------------------------------------------

    For the smallest H-2ALCs that would apply for only one worker 
instead of the average of 12 workers, the Department estimates that the 
total annual average cost of the rule ranges from an additional $65 for 
those that have previous program familiarity and an additional $75 for 
small entities new to the program.\56\
---------------------------------------------------------------------------

    \56\ For illustration, the total cost of $65 for small H-2ALCs 
with previous program familiarity and employing only one worker 
results from summing the totals for the various rule requirements 
described above as follows: $65 = $12.06 + $38.89 + $5.96 + $0.12 + 
$1.59 + $6.00 + $0.60.
---------------------------------------------------------------------------

    Due primarily to the increase in wages paid to H-2A workers, the 
rule is expected to have a significant impact on affected small 
entities. The affected small entities, however, represent approximately 
1.2 percent of all small U.S. farms. Therefore, the Department believes 
that this Final Rule is expected to have a net direct cost impact on a 
very limited number of small agricultural employers, above and beyond 
the baseline of the current costs required by the program as it is 
currently implemented under the 2008 Final Rule.
4. Alternatives Considered as Options for Small Businesses
    While we have concluded that this regulation will not have a 
significant economic impact on a substantial number of small entities, 
we have recognized the concerns expressed by small businesses and have 
made every

[[Page 6956]]

effort to minimize the burden on all users. The Department's 
responsibilities under the INA, however, severely constrain our ability 
to make any adjustments to program requirements in an effort to address 
concerns unique to small business. The Department's mandate under the 
H-2A program is to set requirements for employers who wish to import 
foreign agricultural workers. Those standards are designed to both 
ensure that foreign worker are imported only if qualified domestic 
workers are not available and that the importation of H-2A workers will 
not adversely effect the wages and working conditions of similarly 
employed domestic workers. These regulations set those minimum 
standards. To create different and likely lower standards for one class 
of employers, e.g., small business, would essentially sanction the very 
adverse effect that the Department is compelled to prevent. The need 
for parity among all employers is illuminated by the fact that Congress 
within the INA carved out a specific dispensation for small businesses 
in a specific area of the statute. Section 218 (c)(3)(B)(ii) of the INA 
(8 U.S.C. 1188(c)(3)(B)(ii) exempts certain small businesses from the 
application of the 50 percent rule. The suggestion from the small 
business community that small farmers who file master applications with 
other small farmers not lose their 50 percent exemption is specifically 
precluded by Congress at 8 U.S.C. 1188(c)(3)(B)(ii)(II) & (III). Where 
Congress has so clearly demonstrated its ability to modify H-2A program 
requirements to accommodate small businesses, it would be 
inappropriate, and outside of the Secretary's authority, for the 
Department to carve out additional exceptions.
    Commenters asked the Department to waive the surety bond 
requirement for H-2ALCs without violations for 3-5 years. In the 2008 
Final Rule, surety bond amounts were set at $5,000 for H-2ALCs seeking 
certification to employ fewer than 25 employees, $10,000 for those 
seeking certification to employ 25 to 49 employees, and $20,000 for H-
2ALCs wanting to hire 50 or more employees. However, assuming that an 
H-2ALC with 50 employees pays approximately the same for a $20,000 bond 
as an H-2ALC with 300 employees, the 2008 Final Rule framework 
disproportionately advantages larger H-2ALCs while providing 
diminishing levels of protection for the employees of such contractors. 
Under the proposed rule, the first two bond amount tiers for the 
smaller H-2ALCs remained unchanged ($5,000 for H-2ALCs who apply for 
certification to employ fewer than 25 employees and $10,000 for those 
H-2ALCs who are applying for certification to employ 25 to 49 workers). 
The NPRM proposed to require H-2ALCs seeking certification to employ 
from 50 to 74 workers to obtain a bond of $20,000. In addition, we 
proposed to require H-2ALCs seeking certification to employ from 75 to 
99 workers to obtain a surety bond of $50,000, and those seeking 
certification to employ 100 or more workers to obtain a bond of 
$75,000. The Department determined to retain the surety bond levels as 
proposed in the NPRM. Waiver of the bond requirements is not feasible 
and is inconsistent with the policy objective of the bonding 
requirement--to reduce the potential for H-2ALCs with insufficient 
capital to meet program obligations from receiving H-2A certifications. 
A past pattern of performance with respect to payment of wages does not 
equal the continuation of future funding to do so, and the point of the 
bond is to ensure that H-2ALCs can each year meet wage obligations.
    Several small business commenters asked the Department to exempt 
small businesses who apply through a master job order from the 
multistate recruitment requirement. Commenters from the small business 
community also recommended that the Final Rule exempt all small 
businesses from multistate recruitment requirement. After deliberation 
on the statutory limitations imposed on and operational challenges of 
such a distinction, the Department has determined that such exemptions 
are not statutorily permitted and would, moreover, undermine our 
statutory obligation to ensure access of U.S. workers to the jobs. We 
were; therefore, unable to include the proposed exemptions.
    The Department proposed a return to the small farm exemption from 
the 50 percent rule, as implemented in the 1987 Rule. The regulation as 
proposed, and this Final Rule, reflects that statute's exemption for 
small business applicants. This exemption applies to small farms as 
defined in the FLSA which are not members of an association or which 
have not petitioned for foreign workers under a master application. 
This exemption is not applicable in the case of an association filing a 
master application because the association can assign any workers 
referred under the 50 percent rule to member-employers who need 
additional workers or who can more easily accommodate the referred 
workers, thus minimizing or eliminating the burden on small farmers. 
Most of the commenters further requested that the Department eliminate 
the provisions limiting the application of the small farm exemption to 
those small farms as described above. The Department cannot accommodate 
this request. The exemption and its limitations are statutory, not 
regulatory. See 8 U.S.C. 1188(c)(3)(B)(ii). In that provision, Congress 
specifically excluded small employers who are members of associations 
from the small-employer exemption to the 50 percent rule, on the basis 
that associations have the ability to apportion referred workers among 
employers where they may be needed. Therefore, the statute prevents the 
Department from implementing this alternative.
    Relatedly, a small business commenter recommended that the 
Department expand the small farm exemption from the 50 percent rule to 
businesses meeting the SBA small business test rather than only those 
meeting the FLSA definition of small farm. Again, we are prevented by 
statute from making the requested expansion as the INA specifically 
uses the FLSA small farm definition and not the SBA small business 
definition. (8 U.S.C. 1188(c)(3)(B)(ii)).
    Several small employers asked us to change the definitions of 
incidental employment and corresponding employment to exempt small 
business from their application. Commenters were concerned that the 
removal of incidental activities from the definition of agricultural 
labor or services would limit employers' flexibility in assigning tasks 
to workers not specifically included in the job order. Commenters were 
apprehensive that this proposed change, coupled with the Department's 
proposed change in the definition of corresponding employment, could 
subject employers to penalties, including revocation or debarment, if 
H-2A workers perform work that is outside the scope of the job order 
for even a small fraction of their time. In response, we have made 
changes to the incidental employment definition to address several of 
the concerns raised during the comment period. As discussed more fully 
elsewhere in this preamble, the Department does not intend to debar an 
employer whose H-2A workers perform an insubstantial amount of 
agricultural work not listed in the Application, and will exercise our 
enforcement discretion when an employer has worked an H-2A worker 
outside the scope of activities listed in the job order due to 
unplanned and uncontrollable events. The regulations concerning 
revocation and debarment require that the violation be substantial

[[Page 6957]]

and a number of factors must be considered in making that 
determination. The good faith assignment of a worker to work not listed 
in the Application for a small amount of time would not result in 
debarment. We are unable to make further amendments, as our statutory 
obligation is to protect U.S. workers from adverse affect and ensure 
U.S. workers access to these agricultural jobs, without regard to the 
size of the employer offering those jobs.
    Several commenters from the reforestation industry recommended that 
the Department not implement the proposal to add reforestation and pine 
straw activities to the definition of agricultural labor or services, 
as proposed in the NPRM. Currently, employers engaged in these 
activities may use the H-2B program. Reforestation, a sub-industry of 
forestry, is commonly performed by migrant crews who are overseen by 
labor contractors and share the same characteristics as traditional 
agricultural crews. The same reasoning was used in proposing to include 
pine straw activities within the scope of H-2A. A number of employer 
commenters claimed that the way in which contracts are awarded to 
reforestation companies would preclude applicants from being able to 
file H-2A applications in realistic timeframes and would make it 
difficult to comply with H-2A provisions; they asserted that such 
contracts are often for short duration, making it particularly 
difficult to provide documentation that housing, typically hotels or 
motels, had been secured far in advance. Some of the commenters 
projected their increased costs and predicted the costs could put them 
out of business or preclude them from using the program to employ an 
authorized workforce. The Department considered these comments and 
concerns of the industry, as discussed in more detail above, and we 
decided against including reforestation and pine straw activities in 
the Final Rule.
    One small business commenter suggested that the Department exempt 
small employers with marginal net revenues from the requirement to 
house or hire local workers. After consideration, the Department 
determined that we are unable to do so, as our statutory obligation is 
to protect U.S. workers from adverse affect and ensure U.S. workers 
access to the jobs, without regard to the size or economics of the 
employer who is participating in the program.
    A few commenters suggested that small businesses in particular 
would be adversely affected by the remote interview requirements in the 
proposed rule. The Department has clarified in the Final Rule that no 
interviews are required, but that if interviews are to take place that 
they do so in a manner to ensure that the referred worker is not 
adversely impacted. The ability to conduct telephone interviews, to 
meet at a mutual site (such as a One-Stop Career Center, will limit the 
potential for adverse monetary impact on all businesses, including 
small businesses.

 C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector. This Final Rule has no ``Federal mandate,'' which is defined in 
2 U.S.C. 658(6) to include either a ``Federal intergovernmental 
mandate'' or a ``Federal private sector mandate.'' A Federal mandate is 
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. A decision by a private entity to obtain 
an H-2A worker is purely voluntary and is; therefore, excluded from any 
reporting requirement under the Act.
    SWA activities under the H-2A program are currently funded by the 
Department through grants provided under the Wagner-Peyser Act. 29 
U.S.C. 49 et seq. The Department anticipates continuing funding under 
the Wagner-Peyser Act. As a result of this Final Rule, the Department 
will analyze the amounts of such grants made available to each State to 
fund the activities of the SWAs. The Department did not receive any 
comments related to this section.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    The Department has determined that this rulemaking will not impose 
a significant impact on a substantial number of small entities under 
the RFA, therefore, the Department is not required to produce any 
Compliance Guides for Small Entities as mandated by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801) (SBREFA). 
The Department does, however, intend to produce compliance guides for 
all businesses, in order to provide users with more effective 
participation in the program. The Department has similarly concluded 
that this Final Rule is not a major rule requiring review by the 
Congress under the SBREFA because it will not likely result in: (1) An 
annual effect on the economy of $100 million or more; (2) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State or local Government agencies, or geographic regions; or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of U.S.-based enterprises 
to compete with foreign-based enterprises in domestic or export 
markets. The Department did not receive any comments related to this 
section.

 E. Executive Order 13132--Federalism

    The Department has reviewed this Final Rule in accordance with E.O. 
13132 regarding federalism and has determined that it does not have 
federalism implications. The Final Rule does not have substantial 
direct effects on States, on the relationship between the States, or on 
the distribution of power and responsibilities among the various levels 
of Government as described by E.O. 13132. Therefore, the Department has 
determined that this Final Rule will not have a sufficient federalism 
implication to warrant the preparation of a summary impact statement. 
The Department did not receive any comments related to this section.

 F. Executive Order 13175--Indian Tribal Governments

    This Final Rule was reviewed under the terms of E.O. 13175 and 
determined not to have tribal implications. The rule does not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. As a result, no tribal summary impact 
statement has been prepared. The Department did not receive any 
comments related to this section.

 G. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub.L. 105-277, 112 Stat. 
2681) requires the Department to assess the impact of this Final Rule 
on family well-being. A rule that is determined to have a negative 
effect on families must be supported with an adequate rationale.
    The Department has assessed this Final Rule and determines that it 
will not have a negative effect on families.

[[Page 6958]]

The Department did not receive any comments related to this section.

 H. Executive Order 12630--Government Actions and Interference With 
Constitutionally Protected Property Rights

    This Final Rule is not subject to E.O. 12630, Governmental Actions 
and Interference with Constitutionally Protected Property Rights, 
because it does not involve implementation of a policy with takings 
implications. The Department did not receive any comments related to 
this section.

 I. Executive Order 12988--Civil Justice

    This Final Rule has been drafted and reviewed in accordance with 
E.O. 12988, Civil Justice Reform, and will not unduly burden the 
Federal court system. The regulation has been written to minimize 
litigation and provide a clear legal standard for affected conduct, and 
has been reviewed carefully to eliminate drafting errors and 
ambiguities. The Department did not receive any comments related to 
this section.

 J. Plain Language

    The Department drafted this Final Rule in plain language. The 
Department did not receive any comments related to this section.

K. Executive Order 13211, Energy Supply

    This Final Rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. The Department did not receive any comments related to this 
section.

 L. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, DOL conducts a preclearance consultation program to provide the 
general public and Federal agencies with an opportunity to comment on 
proposed and continuing collections of information in accordance with 
the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). 
This helps to ensure that the public understands the Department's 
collection instructions; respondents can provide the requested data in 
the desired format, reporting burden (time and financial resources) is 
minimized, collection instruments are clearly understood, and the 
Department can properly assess the impact of collection requirements on 
respondents.
    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 information collected is mandated in this Final 
Rule at Title 20 CFR 655.122, 655.130, 655.131, 655.132, 655.133, 
655.134, 655.135, 655.144, 655.145, 655.150, 655.151, 655.152, 655.153, 
655.154, 655.156, 655.157, 655.167, 655.170, 655.171, 655.172, 655.173, 
655.180, 655.181, 655, 182, 655.185, and Title 29 CFR 501.2, 501.4, and 
501.6.
    In accordance with the PRA (44 U.S.C. 3501) information collection 
requirements, which must be implemented as a result of this regulation, 
a clearance package containing proposed changes to the already approved 
collection was submitted to OMB on September 4, 2009, along with the 
proposed rule to reform the H-2A agricultural foreign labor 
certification program.
    The public was given 60 days to comment on this information 
collection. The Department did not receive any comments specifically 
related to this section. The Department did receive one general comment 
simply stating that the paperwork is becoming repetitious and 
excessive. However, without more specificity, the Department cannot 
address this commenter's concerns. The forms used to comply with this 
Final Rule are the same as those required under the 2008 Final Rule, 
except that Form ETA-9142 was modified slightly to reflect the 
assurances and obligations of the H-2A employer as required under the 
non-attestation based system created by the NPRM and this Final Rule. 
The Department used a chart format to list all of the information 
collection requirements in the NPRM, which perhaps gave the impression 
of being excessive. However, the hourly or cost burden on the public 
actually decreased from the 2008 Final Rule burden because Appendix A.1 
was eliminated by this Final Rule. Therefore, the Department made no 
changes based on this comment to the Information Collection submitted 
to OMB.
    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. However, these changes do not impact the overall annual burden 
hours for the H-2A program information collection. The total costs 
associated with the form, as defined by the PRA, is a maximum of $1,100 
per employer for the Form ETA-9142.
    The majority of the information collection requirements for the 
current H-2A program are approved under two OMB control numbers--OMB 
Control Number 1205-0466 (which includes Form ETA-9142) and OMB Control 
Number 1205-0134 (which includes Form ETA-790). This Final Rule 
implements the use of the new information collection, which OMB first 
approved on November 21, 2008 under OMB control number 1205-0466. The 
Expiration Date is November 30, 2011. OMB pre-approved the minor 
changes the Department proposed to the Form ETA-9142 as part of this 
rulemaking on November 17, 2009 and extended the expiration date to 
November 30, 2012. The changes recently approved by OMB to the Form 
ETA-9142 and Appendix A.2 become effective upon the effective date of 
this Final Rule. The Form ETA-9142 has a public reporting burden 
estimated to average 1 hour for Form ETA-9142 and Appendix A.2 per 
response or application filed. (Appendix A.1 will no longer be used in 
the H-2A program under this Final Rule.) Under this Final Rule, and the 
implementation schedule it establishes, employers applying to the H-2A 
program will continue to use the Form ETA-790 to submit a job order. 
The information collection for the Form ETA-790 (OMB control number 
1205-0134) was recently approved by OMB on November 9, 2009 and it 
extended permission to use the form until November 30, 2012.
    For an additional explanation of how the Department calculated the 
burden hours and related costs, the PRA packages for these information 
collections 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 Development 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].

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.

[[Page 6959]]


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

Title 20--Employees' Benefits

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

0
1. Revise the authority citation for part 655 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 of 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.
655.100 Scope and purpose of subpart B.
655.101 Authority of the Office of Foreign Labor Certification 
(OFLC) administrator.
655.102 Special procedures.
655.103 Overview of this subpart and definition of terms.

Prefiling Procedures

655.120 Offered wage rate.
655.121 Job orders.
655.122 Contents of job offers.

Application for Temporary Employment Certification Filing Procedures

655.130 Application filing requirements.
655.131 Association filing requirements.
655.132 H-2A labor contractor (H-2ALC) filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.

Processing of Application for Temporary Employment Certification

655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to applications for temporary employment 
certification.

Post-Acceptance Requirements

655.150 Interstate clearance of job order.
655.151 Newspaper advertisements.
655.152 Advertising requirements.
655.153 Contact with former U.S. employees.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.

Labor Certification Determinations

655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based on nonavailability of U.S. 
workers.
655.167 Document retention requirements.

Post Certification

655.170 Extensions.
655.171 Appeals.
655.172 Withdrawal of job order and application for temporary 
employment certification.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.

Integrity Measures

655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.

Subpart B--Labor Certification Process for Temporary Agricultural 
Employment in the United States (H-2A Workers)


Sec.  655.100  Scope and purpose of subpart B.

    This subpart sets out the procedures established by the Secretary 
of the United States Department of Labor (the Secretary) under the 
authority given in 8 U.S.C. 1188 to acquire information sufficient to 
make factual determinations of:
    (a) Whether there are sufficient able, willing, and qualified 
United States (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.  655.101  Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator.

    The Secretary has delegated her authority to make determinations 
under 8 U.S.C. 1188 to the Assistant Secretary for the Employment and 
Training Administration (ETA), who in turn has delegated that authority 
to the Office of Foreign Labor Certification (OFLC). The determinations 
are made by the OFLC Administrator who, in turn, may delegate this 
responsibility to designated staff members; e.g., a Certifying Officer 
(CO).


Sec.  655.102  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 OFLC 
Administrator has the authority to establish, continue, revise, or 
revoke special procedures for processing certain H-2A applications. 
Employers must demonstrate upon written application to the OFLC 
Administrator that special procedures are necessary. These include 
special procedures currently 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 harvesting crews. Similarly, 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 
OFLC Administrator has the authority to establish monthly, weekly,

[[Page 6960]]

or semi-monthly adverse effect wage rates (AEWR) for those occupations 
for a statewide or other geographical area. Prior to making 
determinations under this section, the OFLC Administrator may consult 
with affected employer and worker representatives. Special Procedures 
in place on the effective date of this regulation will remain in force 
until modified by the Administrator.


Sec.  655.103  Overview of this subpart and definition of terms.

    (a) Overview. In order to bring nonimmigrant workers to the U.S. to 
perform agricultural work, an employer must first demonstrate to the 
Secretary that there are not sufficient U.S. workers able, willing, and 
qualified to perform the work in the area of intended employment at the 
time needed and that the employment of foreign workers will not 
adversely affect the wages and working conditions of U.S. workers 
similarly employed. This rule describes a process by which the 
Department of Labor (Department or DOL) makes such a determination and 
certifies its determination to the Department of Homeland Security 
(DHS).
    (b) Definitions. For the purposes of this subpart:
    Administrative Law Judge (ALJ). A person within the Department's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105.
    Adverse effect wage rate (AEWR). The annual weighted average hourly 
wage for field and livestock workers (combined) in the States or 
regions as published annually by the U.S. Department of Agriculture 
(USDA) based on its quarterly wage survey.
    Agent. A legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that:
    (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 subpart with respect to a specific application; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, the Executive Office 
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including but not limited to 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar fixed-site agricultural employers), incorporated or 
qualified under applicable State law, that recruits, solicits, hires, 
employs, furnishes, houses, or transports any worker that is subject to 
8 U.S.C. 1188. An agricultural association may act as the agent of an 
employer, or may act as the sole or joint employer of any worker 
subject to 8 U.S.C. 1188.
    Area of intended employment. The geographic area within normal 
commuting distance of the place of the job opportunity for which the 
certification is sought. There is no rigid measure of distance that 
constitutes a normal commuting distance or normal commuting area, 
because there may be widely varying factual circumstances among 
different areas (e.g., average commuting times, barriers to reaching 
the worksite, or quality of the regional transportation network). 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. 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. Such a person is also 
permitted to act as an agent under this subpart. No attorney who is 
under suspension, debarment, expulsion, or disbarment from practice 
before any court, the Department, the Executive Office for Immigration 
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an 
employer under this subpart.
    Certifying Officer (CO). The person who makes determination on an 
Application for Temporary Employment Certification filed under the H-2A 
program. The OFLC Administrator is the national CO. Other COs may be 
designated by the OFLC Administrator to also make the determinations 
required under this subpart.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for 
Temporary Employment Certification in any work included in the job 
order, or in any agricultural work performed by the H-2A workers. To 
qualify as corresponding employment the work must be performed during 
the validity period of the job order, including any approved extension 
thereof.
    Date of need. The first date the employer requires the services of 
H-2A workers as indicated in the Application for Temporary Employment 
Certification.
    Employee. A person who is engaged to perform work for an employer, 
as defined under the general common law of agency. Some of the factors 
relevant to the determination of employee status include: The hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive.
    Employer. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (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 (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employee) with respect 
to an H-2A worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
    Fixed-site employer. Any person engaged in agriculture who meets 
the definition of an employer, as those terms are defined in this 
subpart, who owns or operates a farm, ranch, processing establishment, 
cannery, gin, packing shed, nursery, or other similar fixed-site 
location where agricultural activities are performed and who recruits, 
solicits, hires, employs, houses, or transports any worker subject to 8 
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A Labor Contractor (H-2ALC). Any person who meets the definition 
of employer under this subpart and is not a fixed-site employer, an 
agricultural association, or an employee of a fixed-site employer or 
agricultural association, as those terms are used in this part, who 
recruits, solicits, hires, employs, furnishes, houses, or transports 
any worker subject to 8

[[Page 6961]]

U.S.C. 1188, 29 CFR part 501, or this subpart.
    H-2A worker. Any temporary foreign worker who is lawfully present 
in the U.S. and authorized by DHS to perform agricultural labor or 
services of a temporary or seasonal nature pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), as amended.
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the U.S. to 
which U.S. workers can be referred.
    Job Order. The document containing the material terms and 
conditions of employment that is posted by the State Workforce Agency 
(SWA) on its inter- and intra-state job clearance systems based on the 
employer's Agricultural and Food Processing Clearance Order (Form ETA-
790), as submitted to the SWA.
    Joint employment. Where two or more employers each have sufficient 
definitional indicia of being an employer to be considered the employer 
of a worker, those employers will be considered to jointly employ that 
worker. Each employer in a joint employment relationship to a worker is 
considered a joint employer of that worker.
    Master application. An Application for Temporary Employment 
Certification filed by an association of agricultural producers as a 
joint employer with its employer-members. A master application must 
cover the same occupations or comparable agricultural employment; the 
same start date of need for all employer-members listed on the 
Application for Temporary Employment Certification; and may cover 
multiple areas of intended employment within a single State but no more 
than two contiguous States.
    National Processing Center (NPC). The office within OFLC in which 
the COs operate and which are charged with the adjudication of 
Applications for Temporary Employment Certification.
    Office of Foreign Labor Certification (OFLC). OFLC means the 
organizational component of 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 8 
U.S.C. 1101(a)(15)(H)(ii)(a).
    OFLC Administrator. The primary official of the Office of Foreign 
Labor Certification (OFLC), or the OFLC Administrator's designee.
    Positive recruitment. The active participation of an employer or 
its authorized hiring agent, performed under the auspices and direction 
of the OFLC, in recruiting and interviewing individuals in the area 
where the employer's job opportunity is located and any other State 
designated by the Secretary as an area of traditional or expected labor 
supply with respect to the area where the employer's job opportunity is 
located, in an effort to fill specific job openings with U.S. workers.
    Prevailing practice. A practice engaged in by employers, that:
    (1) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; and
    (2) This 50 percent or more of employers also employs 50 percent or 
more of U.S. workers in the occupation and area (including H-2A and 
non-H-2A employers) for purposes of determinations concerning the 
provision of family housing, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of 
advance transportation and the utilization of labor contractors.
    Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
    State Workforce Agency (SWA). State government agency that receives 
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Strike. A concerted stoppage of work by employees as a result of a 
labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest. (1) Where an employer has violated 8 U.S.C. 
1188, 29 CFR part 501, or these regulations, and has ceased doing 
business or cannot be located for purposes of enforcement, a successor 
in interest to that employer may be held liable for the duties and 
obligations of the violating employer in certain circumstances. The 
following factors, as used under Title VII of the Civil Rights Act and 
the Vietnam Era Veterans' Readjustment Assistance Act, may be 
considered in determining whether an employer is a successor in 
interest; no one factor is dispositive, but all of the circumstances 
will be considered as a whole:
    (i) Substantial continuity of the same business operations;
    (ii) Use of the same facilities;
    (iii) Continuity of the work force;
    (iv) Similarity of jobs and working conditions;
    (v) Similarity of supervisory personnel;
    (vi) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (vii) Similarity in machinery, equipment, and production methods;
    (viii) Similarity of products and services; and
    (ix) The ability of the predecessor to provide relief.
    (2) For purposes of debarment only, the primary consideration will 
be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator 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 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), 
and 1188.
    United States (U.S.). The continental U.S., Alaska, Hawaii, the 
Commonwealth of Puerto Rico, and the territories of Guam, the U.S. 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands 
(CNMI).
    United States worker (U.S. worker). 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 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the INA or by DHS) to be employed in the U.S.; or
    (3) An individual who is not an unauthorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for personal services.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart. The contract between the employer and the worker may be in the 
form of a separate written document. In the absence of a separate 
written work contract incorporating the required terms and conditions 
of employment, agreed to by both the employer and the worker, the work 
contract at a minimum will be the terms of the job order and any 
obligations

[[Page 6962]]

required under 8 U.S.C. 1188, 28 CFR part 501, or this subpart.
    (c) Definition of agricultural labor or services. For the purposes 
of this subpart, agricultural labor or services, pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and 
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the 
Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the 
pressing of apples for cider on a farm; or logging employment. An 
occupation included in either statutory definition is agricultural 
labor or services, notwithstanding the exclusion of that occupation 
from the other statutory definition. For informational purposes, the 
statutory provisions are listed below.
    (1)(i) Agricultural labor for the purpose of paragraph (c) of this 
section means all service performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock, 
bees, poultry, and fur-bearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, management, conservation, 
improvement, or maintenance of such farm and its tools and equipment, 
or in salvaging timber or clearing land of brush and other debris left 
by a hurricane, if the major part of such service is performed on a 
farm;
    (C) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the 
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (D) In the employ of the operator of a farm in handling, planting, 
drying, packing, packaging, processing, freezing, grading, storing, or 
delivering to storage or to market or to a carrier for transportation 
to market, in its unmanufactured state, any agricultural or 
horticultural commodity; but only if such operator produced more than 
one-half of the commodity with respect to which such service is 
performed;
    (E) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (c)(1)(iv) 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 shall be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during the 
calendar year in which such service is performed;
    (F) The provisions of paragraphs (c)(1)(iv) and (c)(1)(v) of this 
section shall not be deemed to be applicable with respect to service 
performed in connection with commercial canning or commercial freezing 
or in connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; or
    (G) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    (ii) As used in this section, the term farm includes stock, dairy, 
poultry, fruit, fur-bearing animal, and truck farms, plantations, 
ranches, nurseries, ranges, greenhouses or other similar structures 
used primarily for the raising of agricultural or horticultural 
commodities, and orchards.
    (2) Agriculture. For purposes of paragraph (c) of this section, 
agriculture means farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities defined as 
agricultural commodities in 1141j(g) of title 12, 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 (sec. 3(f) of the FLSA, as codified). Under 12 
U.S.C. 1141j(g) agricultural commodities include, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
the following products as processed by the original producer of the 
crude gum (oleoresin) from which derived: gum spirits of turpentine and 
gum rosin. In addition as defined in 7 U.S.C. 92, gum spirits of 
turpentine means spirits of turpentine made from gum (oleoresin) from a 
living tree and gum rosin means rosin remaining after the distillation 
of gum spirits of turpentine.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied in sec. 3121(g) of the 
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) 
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
    (4) Logging employment. Operations associated with felling and 
moving trees and logs from the stump to the point of delivery, such as, 
but not limited to, marking danger trees and trees/logs to be cut to 
length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from and between logging sites.
    (d) Definition of a temporary or seasonal nature. For the purposes 
of this subpart, employment is of a seasonal nature where it is tied to 
a certain time of year by an event or pattern, such as a short annual 
growing cycle or a specific aspect of a longer cycle, and requires 
labor levels far above those necessary for ongoing operations. 
Employment is of a temporary nature where the employer's need to fill 
the position with a temporary worker will, except in extraordinary 
circumstances, last no longer than 1 year.

Prefiling Procedures


Sec.  655.120  Offered wage rate.

    (a) To comply with its obligation under Sec.  655.122(l), an 
employer must offer, advertise in its recruitment, and pay a wage that 
is the highest of the AEWR, the prevailing hourly wage or piece rate, 
the agreed-upon collective bargaining wage, or the Federal or State 
minimum wage, except where a special procedure is approved for an 
occupation or specific class of agricultural employment.
    (b) If the prevailing hourly wage rate or piece rate is adjusted 
during a work contract, and is higher than the highest of the AEWR, the 
prevailing wage, the agreed-upon collective bargaining wage, or the 
Federal or State minimum wage, in effect at the time the work is 
performed, the employer must pay that higher prevailing wage or piece 
rate, upon notice to the employer by the Department.
    (c) The OFLC Administrator will publish, at least once in each 
calendar year, on a date to be determined by the OFLC Administrator, 
the AEWRs for each State as a notice in the Federal Register.


Sec.  655.121  Job orders.

    (a) Area of intended employment.

[[Page 6963]]

    (1) Prior to filing an Application for Temporary Employment 
Certification, the employer must submit a job order, Form ETA-790, to 
the SWA serving the area of intended employment for intrastate 
clearance, identifying it as a job order to be placed in connection 
with a future Application for Temporary Employment Certification for H-
2A workers. The employer must submit this job order no more than 75 
calendar days and no fewer than 60 calendar days before the date of 
need. If the job opportunity is located in more than one State within 
the same area of intended employment, the employer may submit a job 
order to any one of the SWAs having jurisdiction over the anticipated 
worksites.
    (2) Where the job order is being placed in connection with a future 
master application to be filed by an association of agricultural 
employers as a joint employer, the association may submit a single job 
order to be placed in the name of the association on behalf of all 
employers that will be duly named on the Application for Temporary 
Employment Certification.
    (3) The job order submitted to the SWA must satisfy the 
requirements for agricultural clearance orders in 20 CFR part 653, 
subpart F and the requirements set forth in Sec.  655.122.
    (b) SWA review.
    (1) The SWA will review the contents of the job order for 
compliance with the requirements specified in 20 CFR part 653, subpart 
F and this subpart, and will work with the employer to address any 
noted deficiencies. The SWA must notify the employer in writing of any 
deficiencies in its job order no later than 7 calendar days after it 
has been submitted. The SWA notification will direct the employer to 
respond to the noted deficiencies. The employer must respond to the 
deficiencies noted by the SWA within 5 calendar days after receipt of 
the SWA notification. The SWA must respond to the employer's response 
within 3 calendar days.
    (2) If, after providing responses to the deficiencies noted by the 
SWA, the employer is not able to resolve the deficiencies with the SWA, 
the employer may file an Application for Temporary Employment 
Certification pursuant to the emergency filing procedures contained in 
Sec.  655.134, with a statement describing the nature of the dispute 
and demonstrating compliance with its requirements under this section. 
In the event the SWA does not respond within the stated timelines, the 
employer may use the emergency filing procedures noted above. If upon 
review of the Application for Temporary Employment Certification and 
the job order and all other relevant information, the CO concludes that 
the job order is acceptable, the CO will direct the SWA to place the 
job order into intrastate and interstate clearance and otherwise 
process the Application in accordance with the procedures contained in 
Sec.  655.134(c). If the CO determines the job order is not acceptable, 
the CO will issue a Notice of Deficiency to the employer under Sec.  
655.143 of this subpart directing the employer to modify the job order 
pursuant to paragraph (e) of this section The Notice of Deficiency will 
offer the employer the right to appeal.
    (c) Intrastate clearance. Upon its clearance of the job order, the 
SWA must promptly place the job order in intrastate clearance and 
commence recruitment of U.S. workers. Where the employer's job order 
references an area of intended employment which falls within the 
jurisdiction of more than one SWA, the originating SWA will also 
forward a copy of the approved job order to the other SWAs serving the 
area of intended employment.
    (d) Duration of job order posting. The SWA must keep the job order 
on its active file until the end of the recruitment period, as set 
forth in Sec.  655.135(d), and must refer each U.S. worker who applies 
(or on whose behalf an Application for Temporary Employment 
Certification is made) for the job opportunity.
    (e) Modifications to the job order.
    (1) Prior to the issuance of the final determination, the CO may 
require modifications to the job order when the CO determines that the 
offer of employment does not contain all the minimum benefits, wages, 
and working condition provisions. Such modifications must be made or 
certification will be denied pursuant to Sec.  655.164 of this subpart.
    (2) The employer may request a modification of the job order, Form 
ETA-790, prior to the submission of an Application for Temporary 
Employment Certification. However, the employer may not reject 
referrals against the job order based upon a failure on the part of the 
applicant to meet the amended criteria, if such referral was made prior 
to the amendment of the job order. The employer may not amend the job 
order on or after the date of filing an Application for Temporary 
Employment Certification.
    (3) The employer must provide all workers recruited in connection 
with the Application for Temporary Employment Certification with a copy 
of the modified job order or work contract which reflects the amended 
terms and conditions, on the first day of employment, in accordance 
with Sec.  655.122(q), or as soon as practicable, whichever comes 
first.


Sec.  655.122  Contents of job offers.

    (a) Prohibition against preferential treatment of aliens. The 
employer's job offer must offer to U.S. workers no less than the same 
benefits, wages, and working conditions that the employer is offering, 
intends to offer, or will provide to H-2A workers. Job offers may not 
impose on U.S. workers any restrictions or obligations that will not be 
imposed on the employer's H-2A workers. This does not relieve the 
employer from providing to H-2A workers at least the same level of 
minimum benefits, wages, and working conditions which must be offered 
to U.S. workers consistent with this section.
    (b) Job qualifications and requirements. Each job qualification and 
requirement listed in the job offer must be bona fide and consistent 
with the normal and accepted qualifications required by employers that 
do not use H-2A workers in the same or comparable occupations and 
crops. Either the CO or the SWA may require the employer to submit 
documentation to substantiate the appropriateness of any job 
qualification specified in the job offer.
    (c) Minimum benefits, wages, and working conditions. Every job 
order accompanying an Application for Temporary Employment 
Certification must include each of the minimum benefit, wage, and 
working condition provisions listed in paragraphs (d) through (q) of 
this section.
    (d) Housing.
    (1) Obligation to provide housing. The employer must provide 
housing at no cost to the H-2A workers and those workers in 
corresponding employment who are not reasonably able to return to their 
residence within the same day. Housing must be provided through one of 
the following means:
    (i) Employer-provided housing. Employer-provided housing must meet 
the full set of DOL Occupational Safety and Health Administration 
(OSHA) standards set forth at 29 CFR 1910.142, or the full set of 
standards at Sec. Sec.  654.404 through 654.417 of this chapter, 
whichever are applicable under Sec.  654.401 of this chapter. Requests 
by employers whose housing does not meet the applicable standards for 
conditional access to the interstate clearance system, will be 
processed under the procedures set forth at Sec.  654.403 of this 
chapter; or
    (ii) Rental and/or public accommodations. Rental or public 
accommodations or other substantially similar class of habitation must 
meet

[[Page 6964]]

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 to the satisfaction of the CO that the housing complies with 
the local, State, or Federal housing standards.
    (2) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock must 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 OFLC.
    (3) Deposit charges. Charges in the form of deposits for bedding or 
other similar incidentals related to housing must not be levied upon 
workers. However, employers may require workers to reimburse them for 
damage caused to housing by the individual worker(s) found to have been 
responsible for damage 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 directly 
to the housing's management.
    (5) Family housing. When it is the prevailing practice in the area 
of intended employment and the occupation to provide family housing, it 
must be provided to workers with families who request it.
    (6) Certified housing that becomes unavailable. If after a request 
to certify housing, such housing becomes unavailable for reasons 
outside the employer's control, the employer may substitute other 
rental or public accommodation housing that is in compliance with the 
local, State, or Federal housing standards applicable under this 
section. The employer must promptly notify the SWA in writing of the 
change in accommodations and the reason(s) for such change and provide 
the SWA evidence of compliance with the applicable local, State or 
Federal safety and health standards, in accordance with the 
requirements of this section. If, upon inspection, the SWA determines 
the substituted housing does not meet the applicable housing standards, 
the SWA must promptly provide written notification to the employer to 
cure the deficiencies with a copy to the CO. An employer's failure to 
provide housing that complies with the applicable standards will result 
in either a denial of a pending Application for Temporary Employment 
Certification or revocation of the temporary labor certification 
granted under this subpart.
    (e) Workers' compensation.
    (1) The employer must provide workers' compensation insurance 
coverage in compliance with State law covering injury and disease 
arising out of and in the course of the worker's employment. If the 
type of employment for which the certification is sought is not covered 
by or is exempt from the State's workers' compensation law, the 
employer must provide, at no cost to the worker, insurance covering 
injury and disease arising out of and in the course of the worker's 
employment that will provide benefits at least equal to those provided 
under the State workers' compensation law for other comparable 
employment.
    (2) Prior to issuance of the temporary labor certification, the 
employer must provide the CO with proof of workers' compensation 
insurance coverage meeting the requirements of this paragraph, 
including 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. The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.
    (g) Meals. The employer either must provide each worker with three 
meals a day or must furnish free and convenient cooking and kitchen 
facilities to the workers that will enable the workers to prepare their 
own meals. Where the employer provides the meals, the job offer must 
state the charge, if any, to the worker for such meals. The amount of 
meal charges is governed by Sec.  655.173.
    (h) Transportation; daily subsistence.
    (1) Transportation to place of employment. If the employer has not 
previously advanced such transportation and subsistence costs to the 
worker or otherwise provided such transportation or subsistence 
directly to the worker by other means and if the worker completes 50 
percent of the work contract period, the employer must pay the worker 
for reasonable costs incurred by the worker for transportation and 
daily subsistence from the place from which the worker has come to work 
for the employer, whether in the U.S. or abroad to the place of 
employment. When it is the prevailing practice of non-H-2A agricultural 
employers in the occupation in the area to do so, or when the employer 
extends such benefits to similarly situated H-2A workers, the employer 
must advance the required transportation and subsistence costs (or 
otherwise provide them) to workers in corresponding employment who are 
traveling to the employer's worksite. The amount of the transportation 
payment must be no less (and is not required to be more) than the most 
economical and reasonable common carrier transportation charges for the 
distances involved. The amount of the daily subsistence payment must be 
at least as much as the employer would charge the worker for providing 
the worker with three meals a day during employment (if applicable), 
but in no event less than the amount permitted under Sec.  655.173(a). 
Note that the FLSA applies independently of the H-2A requirements and 
imposes obligations on employers regarding payment of wages.
    (2) Transportation from place of employment. If the worker 
completes the work contract period, or if the employee is terminated 
without cause, and the worker has no immediate subsequent H-2A 
employment, the employer must provide or pay for the worker's 
transportation and daily subsistence from the place of employment to 
the place from which the worker, disregarding intervening employment, 
departed to work for the employer. If the worker has contracted with a 
subsequent employer who has not agreed in such work contract to provide 
or pay for the worker's transportation and daily subsistence expenses 
from the employer's worksite to such subsequent employer's worksite, 
the employer must provide or pay for such expenses. If the worker has 
contracted with a subsequent employer who has agreed in such work 
contract to provide or pay for the worker's transportation and daily 
subsistence expenses from the employer's worksite to such subsequent 
employer's worksite, the subsequent employer must provide or pay for 
such expenses. The employer is not relieved of its obligation to 
provide or pay for return transportation and subsistence if an H-2A 
worker is displaced as a result of the employer's compliance with the 
50 percent rule as described in Sec.  655.135(d) of this subpart with 
respect to the referrals made after the employer's date of need.
    (3) Transportation between living quarters and worksite. The 
employer must provide transportation between

[[Page 6965]]

housing provided or secured by the employer and the employer's worksite 
at no cost to the worker.
    (4) Employer-provided transportation. All employer-provided 
transportation must comply with all applicable Federal, State or local 
laws and regulations, and must provide, at a minimum, the same 
transportation safety standards, driver licensure, and vehicle 
insurance as required under 29 U.S.C. 1841 and 29 CFR 500.105 and 29 
CFR 500.120 to 500.128. If workers' compensation is used to cover 
transportation, in lieu of vehicle insurance, the employer must either 
ensure that the workers' compensation covers all travel or that vehicle 
insurance exists to provide coverage for travel not covered by workers' 
compensation and they must have property damage insurance.
    (i) Three-fourths guarantee.
    (1) Offer to worker. The employer must guarantee to offer the 
worker employment for a total number of work hours equal to at least 
three-fourths of the workdays of the total period beginning with the 
first workday after the arrival of the worker at the place of 
employment or the advertised contractual first date of need, whichever 
is later, and ending on the expiration date specified in the work 
contract or in its extensions, if any.
    (i) For purposes of this paragraph a workday means the number of 
hours in a workday as stated in the job order and excludes the worker's 
Sabbath and Federal holidays. The employer must offer a total number of 
hours to ensure the provision of sufficient work to reach the three-
fourths guarantee. The work hours must be offered during the work 
period specified in the work contract, or during any modified work 
contract period to which the worker and employer have mutually agreed 
and that has been approved by the CO.
    (ii) The work contract period can be shortened by agreement of the 
parties only with the approval of the CO. In the event the worker 
begins working later than the specified beginning date of the contract, 
the guarantee period begins with the first workday after the arrival of 
the worker at the place of employment, and continues until the last day 
during which the work contract and all extensions thereof are in 
effect.
    (iii) Therefore, if, for example, a work contract is for a 10-week 
period, during which a normal workweek is specified as 6 days a week, 8 
hours per day, the worker would have to be guaranteed employment for at 
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent = 
360). If a Federal holiday occurred during the 10-week span, the 8 
hours would be deducted from the total hours for the work contract, 
before the guarantee is calculated. Continuing with the above example, 
the worker would have to be guaranteed employment for 354 hours (10 
weeks x 48 hours/week = 480 hours - 8 hours (Federal holiday) x 75 
percent = 354 hours).
    (iv) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday, or on the worker's 
Sabbath or Federal holidays. However, all hours of work actually 
performed may be counted by the employer in calculating whether the 
period of guaranteed employment has been met. If during the total work 
contract period the employer affords the U.S. or H-2A worker less 
employment than that required under this paragraph, the employer must 
pay such worker the amount the worker would have earned had the worker, 
in fact, worked for the guaranteed number of days. An employer will not 
be considered to have met the work guarantee if the employer has merely 
offered work on three-fourths of the workdays if each workday did not 
consist of a full number of hours of work time as specified in the job 
order.
    (2) Guarantee for piece rate paid worker. If the worker is paid on 
a piece rate basis, the employer must use the worker's average hourly 
piece rate earnings or the required hourly wage rate, whichever is 
higher, to calculate the amount due under the guarantee.
    (3) Failure to work. Any hours the worker fails to work, up to a 
maximum of the number of hours specified in the job order for a 
workday, when the worker has been offered an opportunity to work in 
accordance with paragraph (i)(1) of this section, and all hours of work 
actually performed (including voluntary work over 8 hours in a workday 
or on the worker's Sabbath or Federal holidays), may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met. An employer seeking to calculate whether the number of hours 
has been met must maintain the payroll records in accordance with this 
subpart.
    (4) Displaced H-2A worker. The employer is not liable for payment 
of the three-fourths guarantee to an H-2A worker whom the CO certifies 
is displaced because of the employer's compliance with the 50 percent 
rule described in Sec.  655.135(d) with respect to referrals made 
during that period.
    (5) Obligation to provide housing and meals. Notwithstanding the 
three-fourths guarantee contained in this section, employers are 
obligated to provide housing and meals in accordance with paragraphs 
(d) and (g) of this section for each day of the contract period up 
until the day the workers depart for other H-2A employment, depart to 
the place outside of the 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 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

[[Page 6966]]

number of hours worked by the worker on a day during the work contract 
period is less than the number of hours offered, as specified in the 
job offer, the records must state the reason or reasons therefore.
    (4) The employer must retain the records for not less than 3 years 
after the date of the certification.
    (k) Hours and earnings statements. The employer must furnish to the 
worker on or before each payday in one or more written statements the 
following information:
    (1) The worker's total earnings for the pay period;
    (2) The worker's hourly rate and/or piece rate of pay;
    (3) The hours of employment offered to the worker (showing offers 
in accordance with the three-fourths guarantee as determined in 
paragraph (i) of this section, separate from any hours offered over and 
above the guarantee);
    (4) The hours actually worked by the worker;
    (5) An itemization of all deductions made from the worker's wages;
    (6) If piece rates are used, the units produced daily;
    (7) Beginning and ending dates of the pay period; and
    (8) The employer's name, address and FEIN.
    (l) Rates of pay. If the worker is paid by the hour, the employer 
must pay the worker at least the AEWR, the prevailing hourly wage rate, 
the prevailing piece rate, the agreed-upon collective bargaining rate, 
or the Federal or State minimum wage rate, in effect at the time work 
is performed, whichever is highest, for every hour or portion thereof 
worked during a pay period.
    (1) The offered wage may not be based on commission, bonuses, or 
other incentives, unless the employer guarantees a wage paid on a 
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR, 
prevailing hourly wage or piece rate, the legal Federal or State 
minimum wage, or any agreed-upon collective bargaining rate, whichever 
is highest; or
    (2) If the worker is paid on a piece rate basis and at the end of 
the pay period the piece rate does not result in average hourly piece 
rate earnings during the pay period at least equal to the amount the 
worker would have earned had the worker been paid at the appropriate 
hourly rate:
    (i) The worker's pay must be supplemented at that time so that the 
worker's earnings are at least as much as the worker would have earned 
during the pay period if the worker had instead been paid at the 
appropriate hourly wage rate for each hour worked;
    (ii) The piece rate must be no less than the 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 be no 
more than those required by the employer in 1977, unless the OFLC 
Administrator approves a higher minimum, or, if the employer first 
applied for H-2A temporary labor certification after 1977, such 
standards must be no more than those normally required (at the time of 
the first Application for Temporary Employment Certification) by other 
employers for the activity in the area of intended employment.
    (m) Frequency of pay. The employer must state in the job offer the 
frequency with which the worker will be paid, which must be at least 
twice monthly or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (n) Abandonment of employment or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, or is terminated for cause, and the employer notifies the NPC, 
and DHS in the case of an H-2A worker, in writing or by any other 
method specified by the Department or DHS in a manner specified in a 
notice published in the Federal Register not later than 2 working days 
after such abandonment occurs, the employer will not be responsible for 
providing or paying for the subsequent transportation and subsistence 
expenses of that worker under this section, and that worker is not 
entitled to the three-fourths guarantee described in paragraph (i) of 
this section. Abandonment will 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.
    (o) Contract impossibility. If, before the expiration date 
specified in the work contract, the services of the worker are no 
longer required for reasons beyond the control of the employer due to 
fire, weather, or other Act of God that makes the fulfillment of the 
contract impossible, the employer may terminate the work contract. 
Whether such an event constitutes a contract impossibility will be 
determined by the CO. In the event of such termination of a contract, 
the employer must fulfill a three-fourths guarantee for the time that 
has elapsed from the start of the work contract to the time of its 
termination, as described in paragraph (i)(1) of this section. The 
employer must make efforts to transfer the worker to other comparable 
employment acceptable to the worker, consistent with existing 
immigration law, as applicable. If such transfer is not affected, the 
employer must:
    (1) Return the worker, at the employer's expense, to the place from 
which the worker (disregarding intervening employment) came to work for 
the employer, or transport the worker to the worker's next certified H-
2A employer, whichever the worker prefers;
    (2) Reimburse the worker the full amount of any deductions made 
from the worker's pay by the employer for transportation and 
subsistence expenses to the place of employment; and
    (3) Pay the worker for any costs incurred by the worker for 
transportation and daily subsistence to that employer's place of 
employment. Daily subsistence must be computed as set forth in 
paragraph (h) of this section. The amount of the transportation payment 
must not be less (and is not required to be more) than the most 
economical and reasonable common carrier transportation charges for the 
distances involved.
    (p) Deductions.
    (1) The employer must make all deductions from the worker's 
paycheck required by law. The job offer must specify all deductions not 
required by law which the employer will make from the worker's 
paycheck. All deductions must be reasonable. The employer may deduct 
the cost of the worker's transportation and daily subsistence expenses 
to the place of employment which were borne directly by the employer. 
In such circumstances, the job offer must state that the worker will be 
reimbursed the full amount of such deduction upon the worker's 
completion of 50 percent of the work contract period. However, an 
employer subject to the FLSA may not make deductions that would violate 
the FLSA.
    (2) A deduction is not reasonable if it includes a profit to the 
employer or to any affiliated person. A deduction that is primarily for 
the benefit or convenience of the employer will not be recognized as 
reasonable and therefore the cost of such an item may not be included 
in computing wages. The wage requirements of Sec.  655.120 will not be 
met where undisclosed or unauthorized deductions, rebates, or refunds 
reduce the wage payment made to the employee below the minimum amounts 
required under this subpart, or where the employee fails to receive 
such

[[Page 6967]]

amounts free and clear because the employee kicks back directly or 
indirectly to the employer or to another person for the employer's 
benefit the whole or part of the wage delivered to the employee. The 
principles applied in determining whether deductions are reasonable and 
payments are received free and clear, and the permissibility of 
deductions for payments to third persons are explained in more detail 
in 29 CFR part 531.
    (q) Disclosure of work contract. The employer must provide to an H-
2A worker no later than the time at which the worker applies for the 
visa, or to a worker in corresponding employment no later than on the 
day work commences, a copy of the work contract between the employer 
and the worker in a language understood by the worker as necessary or 
reasonable. For an H-2A worker going from an H-2A employer to a 
subsequent H-2A employer, the copy must be provided no later than the 
time an offer of employment is made by the subsequent H-2A employer. At 
a minimum, the work contract must contain all of the provisions 
required by this section. In the absence of a separate, written work 
contract entered into between the employer and the worker, the required 
terms of the job order and the certified Application for Temporary 
Employment Certification will be the work contract.

Application for Temporary Employment Certification Filing Procedures


Sec.  655.130  Application filing requirements.

    All agricultural employers who desire to hire H-2A foreign 
agricultural workers must apply for a certification from the Secretary 
by filing an Application for Temporary Employment Certification with 
the NPC designated by the OFLC Administrator. The following section 
provides the procedures employers must follow when filing.
    (a) What to file. An employer, whether individual, association, or 
an H-2ALC, that desires to apply for temporary employment certification 
of one or more nonimmigrant foreign workers must file a completed 
Application for Temporary Employment Certification form and, unless a 
specific exemption applies, a copy of Form ETA-790, submitted to the 
SWA serving the area of intended employment, as set forth in Sec.  
655.121(a).
    (b) Timeliness. A completed Application for Temporary Employment 
Certification must be filed no less than 45 calendar days before the 
employer's date of need.
    (c) Location and method of filing. The employer may send the 
Application for Temporary Employment Certification and all required 
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 for Temporary Employment Certification must be mailed, and 
will also post these addresses on the OFLC Internet Web site at http://www.foreignlaborcert.doleta.gov/. The Department may also require 
Applications for Temporary Employment Certification, at a future date, 
to be filed electronically in addition to or instead of by mail, notice 
of which will be published in the Federal Register.
    (d) Original signature. The Application for Temporary Employment 
Certification 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. An association filing as an agent may not sign on behalf of 
its members but must obtain each member's signature on each Application 
for Temporary Employment Certification prior to filing.
    (e) Information received in the course of processing Applications 
for Temporary Employment Certification and program integrity measures 
such as audits may be forwarded from OFLC to Wage and Hour Division 
(WHD) for enforcement purposes.


Sec.  655.131  Association filing requirements.

    If an association files an Application for Temporary Employment 
Certification, in addition to complying with all the assurances, 
guarantees, and other requirements contained in this subpart and in 
part 653, subpart F, of this chapter, the following requirements also 
apply.
    (a) Individual applications. Associations of agricultural employers 
may file an Application for Temporary Employment Certification for H-2A 
workers as a sole employer, a joint employer, or agent. The association 
must identify in the Application for Temporary Employment Certification 
in what capacity it is filing. The association must retain 
documentation substantiating the employer or agency status of the 
association and be prepared to submit such documentation in response to 
a Notice of Deficiency from the CO prior to issuing a Final 
Determination, or in the event of an audit.
    (b) Master applications. An association may file a master 
application on behalf of its employer-members. The master application 
is available only when the association is filing as a joint employer. 
An association may submit a master application covering the same 
occupation or comparable work available with a number of its employer-
members in multiple areas of intended employment, 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 for Temporary Employment Certification and all employer-
members are located in no more than two contiguous States. The 
association must identify on the Application for Temporary Employment 
Certification by name, address, total number of workers needed, and the 
crops and agricultural work to be performed, each employer that will 
employ H-2A workers. The association, as appropriate, will receive a 
certified Application for Temporary Employment Certification that can 
be copied and sent to the United States Citizenship and Immigration 
Services (USCIS) with each employer-member's petition.


Sec.  655.132  H-2A labor contractor (H-2ALC) filing requirements.

    If an H-2ALC intends to file an Application for Temporary 
Employment Certification, the H-2ALC must meet all of the requirements 
of the definition of employer in Sec.  655.103(b), and comply with all 
the assurances, guarantees, and other requirements contained in this 
part, including Assurances and Obligations of H-2A Employers, and in 
part 653, subpart F, of this chapter.
    (a) Scope of H-2ALC Applications. An Application for Temporary 
Employment Certification filed by an H-2ALC must be limited to a single 
area of intended employment in which the fixed-site employer(s) to whom 
an H-2ALC is furnishing employees will be utilizing the employees.
    (b) Required information and submissions. An H-2ALC must include in 
or with its Application for Temporary Employment Certification the 
following:
    (1) 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.

[[Page 6968]]

    (2) A copy of the Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of 
Registration, if required under MSPA at 29 U.S.C. 1801 et seq., 
identifying the specific farm labor contracting activities the H-2ALC 
is authorized to perform as an FLC.
    (3) Proof of its ability to discharge financial obligations under 
the H-2A program by including with the Application for Temporary 
Employment Certification the original surety bond as required by 29 CFR 
501.9. The bond document must clearly identify the issuer, the name, 
address, phone number, and contact person for the surety, and provide 
the amount of the bond (as calculated pursuant to 29 CFR 501.9) and any 
identifying designation used by the surety for the bond.
    (4) Copies of the fully-executed work contracts with each fixed-
site agricultural business identified under paragraph (b)(1) of this 
section.
    (5) Where the fixed-site agricultural business will provide housing 
or transportation to the workers, proof that:
    (i) All housing used by workers and owned, operated or secured by 
the fixed-site agricultural business complies with the applicable 
standards as set forth in Sec.  655.122(d) and certified by the SWA; 
and
    (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 must provide, at a minimum, the same vehicle safety 
standards, driver licensure, and vehicle insurance as required under 29 
U.S.C. 1841 and 29 CFR 500.105 and 500.120 to 500.128, except where 
workers' compensation is used to cover such transportation as described 
in Sec.  655.125(h).


Sec.  655.133  Requirements for agents.

    (a) An agent filing an Application for Temporary Employment 
Certification on behalf of an employer must provide a copy of the agent 
agreement or other document demonstrating the agent's authority to 
represent the employer.
    (b) In addition the agent must provide a copy of the MSPA FLC 
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801 
et seq., identifying the specific farm labor contracting activities the 
agent is authorized to perform.


Sec.  655.134  Emergency situations.

    (a) Waiver of time period. The CO may waive the time period for 
filing for employers who did not make use of temporary 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 
has sufficient time to test the domestic labor market on an expedited 
basis to make the determinations required by Sec.  655.100.
    (b) Employer requirements. The employer requesting a waiver of the 
required time period must concurrently submit to the NPC and to the SWA 
serving the area of intended employment a completed Application for 
Temporary Employment Certification, a completed job order on the Form 
ETA-790, 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 whether the request is for good 
and substantial cause. If the waiver is requested for good and 
substantial cause, the employer's statement must also include detailed 
information describing the good and substantial cause which has 
necessitated the waiver request. Good and substantial cause may 
include, but is not limited to, the substantial loss of U.S. workers 
due to weather-related activities or other reasons, unforeseen events 
affecting the work activities to be performed, pandemic health issues, 
or similar conditions.
    (c) Processing of emergency applications. The CO will process 
emergency Applications for Temporary Employment Certification in a 
manner consistent with the provisions set forth in Sec. Sec.  655.140 
through 655.145 and make a determination on the Application for 
Temporary Employment Certification in accordance with Sec. Sec.  
655.160 through 655.167. The CO may advise the employer in writing that 
the certification cannot be granted because, pursuant to paragraph (a) 
of this section, the request for emergency filing was not justified 
and/or there is not sufficient time to test the availability of U.S. 
workers such that the CO can make a determination on the Application 
for Temporary Employment Certification in accordance with Sec.  
655.161. Such notification will so inform the employer using the 
procedures applicable to a denial of certification set forth in Sec.  
655.164.


Sec.  655.135  Assurances and obligations of H-2A employers.

    An employer seeking to employ H-2A workers must agree as part of 
the Application for Temporary Employment Certification and job offer 
that it will abide by the requirements of this subpart and make each of 
the following additional assurances:
    (a) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (d) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, handicap, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must be 
only for lawful, job-related reasons, and those not rejected on this 
basis have been or will be hired. In addition, the employer has and 
will continue to retain records of all hires and rejections as required 
by Sec.  655.167.
    (b) No strike or lockout. The worksite for which the employer is 
requesting H-2A certification does not currently have workers on strike 
or being locked out in the course of a labor dispute.
    (c) Recruitment requirements. The employer has and will continue to 
cooperate with the SWA by accepting referrals of all eligible U.S. 
workers who apply (or on whose behalf an Application for Temporary 
Employment Certification is made) for the job opportunity until the end 
of the period as specified in paragraph (d) of this section and must 
independently conduct the positive recruitment activities, as specified 
in Sec.  655.154, until the date on which the H-2A workers depart for 
the place of work. Unless the SWA is informed in writing of a different 
date, the date that is the third day preceding the employer's first 
date of need will be determined to be the date the H-2A workers 
departed for the employer's place of business.
    (d) Fifty percent rule. From the time the foreign workers depart 
for the employer's place of employment, the employer must provide 
employment to any qualified, eligible U.S. worker who applies to the 
employer until 50 percent of the period of the work contract has 
elapsed. Start of the work contract timeline is calculated from the 
first date of need stated on the Application for Temporary Employment 
Certification, under which the foreign worker who is in the job was 
hired. This provision will not apply to any employer who certifies to 
the CO in the Application for Temporary Employment Certification that 
the employer:
    (1) Did not, during any calendar quarter during the preceding 
calendar year, use more than 500 man-days of agricultural labor, as 
defined in sec. 203(u) of Title 29;
    (2) Is not a member of an association which has petitioned for 
certification under this subpart for its members; and

[[Page 6969]]

    (3) Has not otherwise associated with other employers who are 
petitioning for temporary foreign workers under this subpart.
    (e) Compliance with applicable laws. During the period of 
employment that is the subject of the Application for Temporary 
Employment Certification, the employer must comply with all applicable 
Federal, State and local laws and regulations, including health and 
safety laws. In compliance with such laws, including the William 
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 
Pub. L. 110-457, 18 U.S.C. 1592(a), the employer may not hold or 
confiscate workers' passports, visas, or other immigration documents. 
H-2A employers may also be subject to the FLSA. The FLSA operates 
independently of the H-2A program and has specific requirements that 
address payment of wages, including deductions from wages, the payment 
of Federal minimum wage and payment of overtime.
    (f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per work 
week.
    (g) No recent or future layoffs. The employer has not laid off and 
will not lay off any similarly employed U.S. worker in the occupation 
that is the subject of the Application for Temporary Employment 
Certification in the area of intended employment except for lawful, 
job-related reasons within 60 days of the date of need, or if the 
employer has laid off such workers, it has offered the job opportunity 
that is the subject of the Application for Temporary Employment 
Certification to those laid-off U.S. worker(s) and the U.S. worker(s) 
refused the job opportunity, was rejected for the job opportunity for 
lawful, job-related reasons, or was hired. A layoff for lawful, job-
related reasons such as lack of work or the end of the growing season 
is permissible if all H-2A workers are laid off before any U.S. worker 
in corresponding employment.
    (h) No unfair treatment. The employer has not and will not 
intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
manner discriminate against, and has not and will not cause any person 
to intimidate, threaten, restrain, coerce, blacklist, or in any manner 
discriminate against, any person who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1188, or this 
subpart or any other Department regulation promulgated thereunder;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated thereunder;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated thereunder;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188 or this subpart or any 
other Department regulation promulgated thereunder; or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by 8 U.S.C. 1188 or this subpart or 
any other Department regulation promulgated thereunder.
    (i) Notify workers of duty to leave United States.
    (1) The employer must 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 paragraph (i)(2) of this section, unless the H-2A worker 
is being sponsored by another subsequent H-2A employer.
    (2) As defined further in DHS regulations, a temporary labor 
certification limits the validity period of an H-2A petition, and 
therefore, the authorized period of stay for an H-2A worker. See 8 CFR 
214.2(h)(5)(vii) A foreign worker may not remain beyond his or her 
authorized period of stay, as determined by DHS, nor beyond separation 
from employment prior to completion of the H-2A contract, absent an 
extension or change of such worker's status under DHS regulations. See 
8 CFR 214.2(h)(5)(viii)(B).
    (j) Comply with the prohibition against employees paying fees. The 
employer and its agents have not sought or received payment of any kind 
from any employee subject to 8 U.S.C. 1188 for any activity related to 
obtaining H-2A labor certification, including payment of the employer's 
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 and 
primarily for the benefit of the worker, such as government-required 
passport fees.
    (k) Contracts with third parties comply with prohibitions. The 
employer has contractually forbidden any foreign labor contractor or 
recruiter (or any agent of such foreign labor contractor or recruiter) 
whom the employer engages, either directly or indirectly, in 
international recruitment of H-2A workers to seek or receive payments 
or other compensation from prospective employees. This documentation is 
to be made available upon request by the CO or another Federal party.
    (l) Notice of worker rights. The employer must post and maintain in 
a conspicuous location at the place of employment, a poster provided by 
the Secretary in English, and, to the extent necessary, any language 
common to a significant portion of the workers if they are not fluent 
in English, which sets out the rights and protections for workers 
employed pursuant to 8 U.S.C. 1188.

Processing of Applications for Temporary Employment Certification


Sec.  655.140  Review of applications.

    (a) NPC review. The CO will promptly review the Application for 
Temporary Employment Certification and job order for compliance with 
all applicable program requirements, including compliance with the 
requirements set forth in this subpart.
    (b) Mailing and postmark requirements. Any notice or request sent 
by the CO(s) to an employer requiring a response will be sent using the 
provided address via traditional methods to assure next day delivery. 
The employer's response to such a notice or request must be filed using 
traditional methods to assure next day delivery and be sent by the date 
due or the next business day if the due date falls on a Sunday or 
Federal Holiday.


Sec.  655.141  Notice of deficiency.

    (a) Notification timeline. If the CO determines the Application for 
Temporary Employment Certification or job order are incomplete, contain 
errors or inaccuracies, or do not meet the requirements set forth in 
this subpart, the CO will notify the employer within 7 calendar days of 
the CO's receipt of the Application for Temporary Employment 
Certification. A copy of this notification will be sent to the SWA 
serving the area of intended employment.
    (b) Notice content. The notice will:
    (1) State the reason(s) why the Application for Temporary 
Employment Certification or job order fails to meet the criteria for 
acceptance;
    (2) Offer the employer an opportunity to submit a modified 
Application for Temporary Employment Certification or job order within 
5 business days from date of receipt stating the modification that is 
needed for the CO to issue the Notice of Acceptance;

[[Page 6970]]

    (3) Except as provided for under the expedited review or de novo 
administrative hearing provisions 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 for Temporary Employment 
Certification within 5 business days and in a manner specified by the 
CO;
    (4) 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 ALJ 
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
    (5) State that if the employer does not comply with the 
requirements of Sec.  655.142 or request an expedited administrative 
review or a de novo hearing before an ALJ within 5 business days the CO 
will deny the Application for Temporary Employment Certification. That 
denial is final cannot be appealed and the Department will not further 
consider that Application for Temporary Employment Certification.
    (c) Appeal from Notice of Deficiency. The employer may timely 
request an expedited administrative review or de novo hearing before an 
ALJ by following the procedures set forth in Sec.  655.171.


Sec.  655.142  Submission of modified applications.

    (a) Submission requirements and certification delays. If the 
employer chooses to submit a modified Application for Temporary 
Employment Certification, the CO's Final Determination will be 
postponed by 1 calendar day for each day that passes beyond the 5 
business-day period allowed under Sec.  655.141(b) to submit a modified 
Application for Temporary Employment Certification, up to maximum of 5 
days. The Application for Temporary Employment Certification will be 
deemed abandoned if the employer does not submit a modified Application 
for Temporary Employment Certification within 12 calendar days after 
the notice of deficiency was issued.
    (b) Provisions for denial of modified Application for Temporary 
Employment Certification. If the modified Application for Temporary 
Employment Certification is not approved, the CO will deny the 
Application for Temporary Employment Certification in accordance with 
the labor certification determination provisions in Sec.  655.164.
    (c) Appeal from denial of modified Application for Temporary 
Employment Certification. The procedures for appealing a denial of a 
modified Application for Temporary Employment Certification are the 
same as for a non-modified Application for Temporary Employment 
Certification as long as the employer timely requests an expedited 
administrative review or de novo hearing before an ALJ by following the 
procedures set forth in Sec.  655.171.


Sec.  655.143  Notice of acceptance.

    (a) Notification timeline. When the CO determines the Application 
for Temporary Employment Certification and job order are complete and 
meet the requirements set forth in this subpart, the CO will notify the 
employer within 7 calendar days of the CO's receipt of the Application 
for Temporary Employment Certification. A copy will be sent to the SWA 
serving the area of intended employment.
    (b) Notice content. The notice must:
    (1) Authorize conditional access to the interstate clearance system 
and direct the SWA to circulate a copy of the job order to other such 
States the CO determines to be potential sources of U.S. workers;
    (2) Direct the employer to engage in positive recruitment of U.S. 
workers in a manner consistent with Sec.  655.154 and to submit a 
report of its positive recruitment efforts as specified in Sec.  
655.156;
    (3) State that positive recruitment is in addition to and will 
occur during the period of time that the job order is being circulated 
by the SWA(s) for interstate clearance under Sec.  655.150 of this 
subpart and will terminate on the actual date on which the H-2A workers 
depart for the place of work, or 3 calendar days prior to the first 
date the employer requires the services of the H-2A workers, whichever 
occurs first; and
    (4) State that the CO will make a determination either to grant or 
deny the Application for Temporary Employment Certification no later 
than 30 calendar days before the date of need, except as provided for 
under Sec.  655.144 for modified Applications for Temporary Employment 
Certification.


Sec.  655.144  Electronic job registry.

    (a) Location of and placement in the electronic job registry. Upon 
acceptance of the Application for Temporary Employment Certification 
under Sec.  655.143, the CO will promptly place for public examination 
a copy of the job order on an electronic job registry maintained by the 
Department, including any required modifications approved by the CO, as 
specified in Sec.  655.142. This procedure will be implemented once the 
Department initiates operation of the registry.
    (b) Length of posting on electronic job registry. Unless otherwise 
provided, the Department will keep the job order posted on the 
Electronic Job Registry until the end of 50 percent of the contract 
period as set forth in Sec.  655.135(d).


Sec.  655.145  Amendments to applications for temporary employment 
certification.

    (a) Increases in number of workers. The Application for Temporary 
Employment Certification may be amended at any time before the CO's 
certification determination to increase the number of workers requested 
in the initial Application for Temporary Employment Certification by 
not more than 20 percent (50 percent for employers requesting less than 
10 workers) without requiring an additional recruitment period for U.S. 
workers. Requests for increases above the percent prescribed, without 
additional recruitment, may be approved by the CO only when the 
employer demonstrates that the need for additional workers could not 
have been foreseen, and the crops or commodities will be in jeopardy 
prior to the expiration of an additional recruitment period. All 
requests for increasing the number of workers must be made in writing.
    (b) Minor changes to the period of employment. The Application for 
Temporary Employment Certification may be amended to make minor changes 
in the total period of employment. Changes will not be effective until 
submitted in writing and approved by the CO. In considering whether to 
approve the request, the CO will review the reason(s) for the request, 
determine whether the reason(s) are on the whole justified, and take 
into account the effect any change(s) would have on the adequacy of the 
underlying test of the domestic labor market for the job opportunity. 
An employer must demonstrate that the change to the period of 
employment could not have been foreseen, and the crops or commodities 
will be in jeopardy prior to the expiration of an additional

[[Page 6971]]

recruitment period. If the request is for a delay in the start date and 
is made after workers have departed for the employer's place of work, 
the CO may only approve the change if the employer includes with the 
request a written assurance signed and dated by the employer that all 
workers who are already traveling to the job site will be provided 
housing and subsistence, without cost to the workers, until work 
commences. Upon acceptance of an amendment, the CO will submit to the 
SWA any necessary modification to the job order.

Post-Acceptance Requirements


Sec.  655.150  Interstate clearance of job order.

    (a) SWA posts in interstate clearance system. The SWA must promptly 
place the job order in interstate clearance to all States designated by 
the CO. At a minimum, the CO will instruct the SWA to transmit a copy 
of its active job order to all States listed in the job order as 
anticipated worksites covering the area of intended employment.
    (b) Duration of posting. Each of the SWAs to which the job order 
was transmitted must keep the job order on its active file until 50 
percent of the contract term has elapsed, and must refer each qualified 
U.S. worker who applies (or on whose behalf an application is made) for 
the job opportunity.


Sec.  655.151  Newspaper advertisements.

    (a) The employer must place an advertisement (in a language other 
than English, where the CO determines appropriate) on 2 separate days, 
which may be consecutive, one of which must be a Sunday (except as 
provided in paragraph (b) of this section), in a newspaper of general 
circulation serving the area of intended employment and is appropriate 
to the occupation and the workers likely to apply for the job 
opportunity. Newspaper advertisements must satisfy the requirements set 
forth in Sec.  655.152.
    (b) If the job opportunity is located in a rural area that does not 
have a newspaper with a Sunday edition, the CO may direct the employer, 
in place of a Sunday edition, to advertise in the regularly published 
daily edition with the widest circulation in the area of intended 
employment.


Sec.  655.152  Advertising requirements.

    All advertising conducted to satisfy the required recruitment 
activities under Sec.  655.151 must meet the requirements set forth in 
this section and must contain terms and conditions of employment which 
are not less favorable than those offered to the H-2A workers. All 
advertising must contain the following information:
    (a) The employer's name, 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 of intended 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 start and end dates 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 of the State in which the advertisement is run;
    (e) The three-fourths guarantee specified in Sec.  655.122(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) A statement that transportation and subsistence expenses to the 
worksite will be provided by the employer or paid by the employer upon 
completion of 50 percent of the work contract, or earlier, if 
appropriate;
    (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 apply for the job 
opportunity at the nearest office of the SWA in the State in which the 
advertisement appeared. Employers who wish to require interviews must 
conduct those interviews by phone or provide a procedure for the 
interviews to be conducted in the location where the worker is being 
recruited at little or no cost to the worker. Employers cannot provide 
potential H-2A workers more favorable treatment with respect to the 
requirement and conduct of interviews; and
    (k) Contact information for the applicable SWA and, if available, 
the job order number.


Sec.  655.153  Contact with former U.S. employees.

    The employer must contact, by mail or other effective means, its 
former U.S. workers (except those who were dismissed for cause or who 
abandoned the worksite) employed by the employer in the occupation at 
the place of employment during the previous year and solicit their 
return to the job. This contact must occur during the period of time 
that the job order is being circulated by the SWA(s) for interstate 
clearance and documentation sufficient to prove contact must be 
maintained in the event of an audit.


Sec.  655.154  Additional positive recruitment.

    (a) Where to conduct additional positive recruitment. The employer 
must conduct positive recruitment within a multistate region of 
traditional or expected labor supply where the CO 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.
    (b) Additional requirements should be comparable to non-H-2A 
employers in the area. The CO will ensure that the effort, including 
the location(s) and method(s) of the positive recruitment required of 
the potential H-2A employer must be no less than the normal recruitment 
efforts of non-H-2A agricultural employers of comparable or smaller 
size in the area of intended employment, and the kind and degree of 
recruitment efforts which the potential H-2A employer made to obtain 
foreign workers.
    (c) Nature of the additional positive recruitment. The CO will 
describe the precise nature of the additional positive recruitment but 
the employer will not be required to conduct positive recruitment in 
more than three States for each area of intended employment listed on 
the employer's application.
    (d) Proof of recruitment. The CO will specify the documentation or 
other supporting evidence that must be maintained by the employer as 
proof that the positive recruitment requirements were met.


Sec.  655.155  Referrals of U.S. workers.

    SWAs may only refer for employment individuals who have been 
apprised of all the material terms and conditions of employment and 
have indicated, by accepting referral to the job opportunity,

[[Page 6972]]

that he or she is qualified, able, willing, and available for 
employment.


Sec.  655.156  Recruitment report.

    (a) Requirements of a recruitment report. The employer must 
prepare, sign, and date a written recruitment report. The recruitment 
report must be submitted on a date specified by the CO in the Notice of 
Acceptance set forth in Sec.  655.141 and contain the following 
information:
    (1) Identify the name of each recruitment source;
    (2) State the name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker;
    (3) Confirm that former U.S. employees were contacted and by what 
means; and
    (4) If applicable, for each U.S. worker who applied for the 
position but was not hired, explain the lawful job-related reason(s) 
for not hiring the U.S. worker.
    (b) Duty to update recruitment report. The employer must continue 
to maintain the recruitment report throughout the recruitment period 
including the 50 percent period. The updated report is not to be 
automatically submitted to the Department, but must be made available 
in the event of a post-certification audit or upon request by 
authorized representatives of the Secretary.


Sec.  655.157  Withholding of U.S. workers prohibited.

    (a) Filing a complaint. Any employer who has reason to believe that 
a person or entity has willfully and knowingly withheld U.S. workers 
prior to the arrival at the worksite of H-2A workers in order to force 
the hiring of U.S. workers during the recruitment period, as set forth 
in Sec.  655.135(d), may submit a written complaint to the CO. The 
complaint must clearly identify the person or entity who the employer 
believes has withheld the U.S. workers, and must specify sufficient 
facts to support the allegation (e.g., dates, places, numbers and names 
of U.S. workers) which will permit an investigation to be conducted by 
the CO.
    (b) Duty to investigate. Upon receipt, the CO must immediately 
investigate the complaint. The investigation must include interviews 
with the employer who has submitted the complaint, the person or entity 
named as responsible for withholding the U.S. workers, and the 
individual U.S. workers whose availability has purportedly been 
withheld.
    (c) Duty to suspend the recruitment period. Where the CO 
determines, after conducting the interviews required by paragraph (b) 
of this section, that the employer's complaint is valid and justified, 
the CO will immediately suspend the application of the 50 percent rule 
of the recruitment period, as set forth in Sec.  655.135(d), to the 
employer. The CO's determination is the final decision of the 
Secretary.


Sec.  655.158  Duration of positive recruitment.

    Except as otherwise noted, the obligation to engage in positive 
recruitment described in Sec. Sec.  655.150 through 655.154 shall 
terminate on the date H-2A workers depart for the employer's place of 
work. Unless the SWA is informed in writing of a different date, the 
date that is the third day preceding the employer's first date of need 
will be determined to be the date the H-2A workers departed for the 
employer's place of business.

Labor Certification Determinations


Sec.  655.160  Determinations.

    Except as otherwise noted in this section, the CO will make a 
determination either to grant or deny the Application for Temporary 
Employment Certification no later than 30 calendar days before the date 
of need identified in the Application for Temporary Employment 
Certification. An Application for Temporary Employment Certification 
that is modified under Sec.  655.142 or that otherwise does not meet 
the requirements for certification in this subpart is not subject to 
the 30-day timeframe for certification.


Sec.  655.161  Criteria for certification.

    (a) The criteria for certification include whether the employer has 
established the need for the agricultural services or labor to be 
performed on a temporary or seasonal basis; complied with the 
requirements of parts 653 and 654 of this chapter; complied with all of 
this subpart, including but not limited to the timeliness requirements 
in Sec.  655.130(b); complied with the offered wage rate criteria in 
Sec.  655.120; made all the assurances in Sec.  655.135; and met all 
the recruitment obligations required by Sec.  655.121 and Sec.  
655.152.
    (b) In making a determination as to whether there are insufficient 
U.S. workers to fill the employer's job opportunity, the CO will count 
as available any U.S. worker referred by the SWA or any U.S. worker who 
applied (or on whose behalf an application is made) directly to the 
employer, but who was rejected by the employer for other than a lawful 
job-related reason or who has not been provided with a lawful job-
related reason for rejection by the employer.


Sec.  655.162  Approved certification.

    If temporary labor certification is granted, the CO will send the 
certified Application for Temporary Employment Certification and a 
Final Determination letter to the employer by means normally assuring 
next-day delivery and a copy, if appropriate, to the employer's agent 
or attorney.


Sec.  655.163  Certification fee.

    A determination by the CO to grant an Application for Temporary 
Employment Certification in whole or in part will include a bill for 
the required certification fees. Each employer of H-2A workers under 
the Application for Temporary Employment Certification (except joint 
employer associations, which may 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 for Temporary Employment Certification (in 
whole or in part), as follows:
    (a) Amount. The Application for Temporary Employment Certification 
fee for each employer receiving a temporary agricultural labor 
certification is $100 plus $10 for each H-2A worker certified under the 
Application for Temporary Employment Certification, provided that the 
fee to an employer for each temporary agricultural labor certification 
received will be no greater than $1,000. There is no additional fee to 
the association filing the Application for Temporary Employment 
Certification. The fees must be paid by check or money order made 
payable to United States Department of Labor. In the case of an 
agricultural association acting as a joint employer applying on behalf 
of its H-2A employer members, the aggregate fees for all employers of 
H-2A workers under the Application for Temporary Employment 
Certification must be paid by one check or money order.
    (b) Timeliness. Fees must be received by the CO no more than 30 
days after the date of the certification. Non-payment or untimely 
payment may be considered a substantial violation subject to the 
procedures in Sec.  655.182.


Sec.  655.164  Denied certification.

    If temporary labor certification is denied, the Final Determination 
letter will be sent to the employer by means normally assuring next-day 
delivery and a copy, if appropriate, to the employer's agent or 
attorney. The Final Determination Letter will:

[[Page 6973]]

    (a) State the reason(s) certification is denied;
    (b) 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), or other means normally 
assuring next day delivery, a written request to the Chief ALJ 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
    (c) 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 Employment 
Certification.


Sec.  655.165  Partial certification.

    The CO may 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 during the 
course of processing the Application for Temporary Employment 
Certification, an audit, or otherwise. The number of workers certified 
will be reduced by one for each referred U.S. worker who is able, 
willing, and qualified, and who will be available at the time and place 
needed and has not been rejected for lawful job-related reasons, to 
perform the services or labor. If a partial labor certification is 
issued, the Final Determination letter will:
    (a) State the reason(s) why either the period of need and/or the 
number of H-2A workers requested has been reduced;
    (b) 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 ALJ 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
    (c) 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 partial certification is final and the 
Department will not further consider that Application for Temporary 
Employment Certification.


Sec.  655.166  Requests for determinations based on nonavailability of 
U.S. workers.

    (a) Standards for requests. If a temporary 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 (b) 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.  655.171.
    (b) 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.
    (c) Notification of determination. If the CO determines that U.S. 
workers have become unavailable and cannot identify sufficient 
available U.S. workers who are able, willing, eligible, and qualified 
or who are likely to become available, the CO will grant the employer's 
request for a new determination. However, this does not preclude an 
employer from submitting subsequent requests for new determinations, if 
warranted, based on subsequent facts concerning purported 
nonavailability of U.S. workers or referred workers not being eligible 
workers or not able, willing, or qualified because of lawful job-
related reasons.


Sec.  655.167  Document retention requirements.

    (a) Entities required to retain documents. All employers filing an 
Application for Temporary Employment Certification requesting H-2A 
agricultural workers under this subpart are required to retain the 
documents and records proving compliance with this subpart.
    (b) Period of required retention. Records and documents must be 
retained for a period of 3 years from the date of certification of the 
Application for Temporary Employment Certification or from the date of 
determination if the Application for Temporary Employment Certification 
is denied or withdrawn.
    (c) Documents and records to be retained by all applicants.
    (1) Proof of recruitment efforts, including:
    (i) Job order placement as specified in Sec.  655.121;
    (ii) Advertising as specified in Sec.  655.152, or, if used, 
professional, trade, or ethnic publications;
    (iii) Contact with former U.S. workers as specified in Sec.  
655.153; or
    (iv) Additional positive recruitment efforts (as specified in Sec.  
655.154).
    (2) Substantiation of information submitted in the recruitment 
report prepared in accordance with Sec.  655.156, such as evidence of 
nonapplicability of contact of former employees as specified in Sec.  
655.153.
    (3) The final recruitment report and any supporting resumes and 
contact information as specified in Sec.  655.156(b).
    (4) Proof of workers' compensation insurance or State law coverage 
as specified in Sec.  655.122(e).
    (5) Records of each worker's earnings as specified in Sec.  
655.122(j).
    (6) The work contract or a copy of the Application for Temporary 
Employment Certification as defined in 29 CFR 501.10 and specified in 
Sec.  655.122(q).
    (d) Additional retention requirement for associations filing 
Application for Temporary Employment Certification. In addition to the 
documents specified in paragraph (c) above, Associations must retain 
documentation substantiating their status as an employer or agent, as 
specified in Sec.  655.131.

[[Page 6974]]

Post Certification


Sec.  655.170  Extensions.

    An employer may apply for extensions of the period of employment in 
the following circumstances.
    (a) Short-term extension. Employers seeking extensions of 2 weeks 
or less of the certified Application for Temporary Employment 
Certification must apply directly to DHS for approval. If granted, the 
Application for Temporary Employment Certification will be deemed 
extended for such period as is approved by DHS.
    (b) Long-term extension. Employers seeking extensions of more than 
2 weeks may apply to the CO. Such requests must be related to weather 
conditions or other factors beyond the control of the employer (which 
may include unforeseen changes in market conditions). Such requests 
must be supported in writing, with documentation showing that the 
extension is needed and that the need could not have been reasonably 
foreseen by the employer. The CO will notify the employer of the 
decision in writing if time allows, or will otherwise notify the 
employer of the decision. The CO will not grant an extension where the 
total work contract period under that Application for Temporary 
Employment Certification and extensions would be 12 months or more, 
except in extraordinary circumstances. The employer may appeal a denial 
of a request for an extension by following the procedures in Sec.  
655.171.
    (c) Disclosure. The employer must provide to the workers a copy of 
any approved extension in accordance with Sec.  655.122(q), as soon as 
practicable.


Sec.  655.171  Appeals.

    Where authorized in this subpart, employers may request an 
administrative review or de novo hearing before an ALJ of a decision by 
the CO. In such cases, the CO will send a copy of the OFLC 
administrative file to the Chief ALJ by means normally assuring next-
day delivery. The Chief ALJ will immediately assign an ALJ (which may 
be a panel of such persons designated by the Chief ALJ from the Board 
of Alien Labor Certification Appeals (BALCA)).
    (a) Administrative review. Where the employer has requested 
administrative review, within 5 business days after receipt of the ETA 
administrative 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, or remand to the CO for 
further action. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, the 
CO, the OFLC Administrator 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) Conduct of hearing. Where the employer has requested a de novo 
hearing the procedures in 29 CFR part 18 apply to such hearings, except 
that:
    (i) The appeal will not be considered to be a complaint to which an 
answer is required;
    (ii) The ALJ will ensure that the hearing is scheduled to take 
place within 5 business days after the ALJ's receipt of the OFLC 
administrative file, if the employer so requests, and will allow for 
the introduction of new evidence; 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, or remand to the CO for 
further action. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, CO, 
OFLC Administrator and DHS by means normally assuring next-day 
delivery. The ALJ's decision is the final decision of the Secretary.


Sec.  655.172  Withdrawal of job order and application for temporary 
employment certification.

    (a) Employers may withdraw a job order from intrastate posting if 
the employer no longer plans to file an Application for Temporary 
Employment Certification. However, a withdrawal of a job order does not 
nullify existing obligations to those workers recruited in connection 
with the placement of a job order pursuant to this subpart or the 
filing of an Application for Temporary Employment Certification.
    (b) Employers may withdraw an Application for Temporary Employment 
Certification once it has been formally accepted by the NPC. However, 
the employer is still obligated to comply with the terms and conditions 
of employment contained in the Application for Temporary Employment 
Certification with respect to workers recruited in connection with that 
application.


Sec.  655.173  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 $10.64 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 OFLC Administrator 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 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) 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) 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 rights. In the event the employer's petition for a 
higher meal charge is denied in whole or in part, the employer may 
appeal the denial. Appeals will be filed with the Chief ALJ, pursuant 
to Sec.  655.171.


Sec.  655.174  Public disclosure.

    The Department will maintain an electronic file accessible to the 
public with information on all employers

[[Page 6975]]

applying for temporary agricultural labor certifications. The database 
will include such information as the number of workers requested, the 
date filed, the date decided, and the final disposition.

Integrity Measures


Sec.  655.180  Audit.

    The CO may conduct audits of applications for which certifications 
have been granted.
    (a) Discretion. The applications selected for audit will be chosen 
within the sole discretion of the CO.
    (b) Audit letter. Where an application is selected for audit, the 
CO will issue an audit letter to the employer and a copy, if 
appropriate, to the employer's agent or attorney. The audit letter 
will:
    (1) State the documentation that must be submitted by the employer;
    (2) Specify a date 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 the revocation of the certification or program debarment.
    (c) Supplemental information request. During the course of the 
audit examination, the CO may request supplemental information and/or 
documentation from the employer in order to complete the audit.
    (d) Potential referrals. In addition to steps in this subpart, the 
CO may determine to provide the audit findings and underlying 
documentation to DHS or another appropriate enforcement agency. The CO 
will 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.  655.181  Revocation.

    (a) Basis for DOL revocation. The OFLC Administrator may revoke a 
temporary agricultural labor certification approved under this subpart, 
if the OFLC Administrator finds:
    (1) The issuance of the temporary agricultural labor certification 
was not justified due to fraud or misrepresentation in the application 
process;
    (2) The employer substantially violated a material term or 
condition of the approved temporary agricultural labor certification, 
as defined in Sec.  655.182;
    (3) The employer failed to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, audit (as 
discussed in Sec.  655.180), or law enforcement function under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart; or
    (4) The employer failed to comply with one or more sanctions or 
remedies imposed by the WHD, or with one or more decisions or orders of 
the Secretary or a court order secured by the Secretary under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart.
    (b) DOL procedures for revocation.
    (1) Notice of Revocation. If the OFLC Administrator makes a 
determination to revoke an employer's temporary labor certification, 
the OFLC Administrator will send to the employer (and its attorney or 
agent) a Notice of Revocation. The Notice will contain a detailed 
statement of the grounds for the revocation, and it will inform the 
employer of its right to submit rebuttal evidence or to appeal. If the 
employer does not file rebuttal evidence or an appeal within 14 days of 
the date of the Notice of Revocation, the Notice is the final agency 
action and will take effect immediately at the end of the 14-day 
period.
    (2) Rebuttal. The employer may submit evidence to rebut the grounds 
stated in the Notice of Revocation within 14 calendar days of the date 
the Notice is issued. If rebuttal evidence is timely filed by the 
employer, the OFLC Administrator will inform the employer of the OFLC 
Administrator's final determination on the revocation within 14 
calendar days of receiving the rebuttal evidence. If the OFLC 
Administrator determines that the certification should be revoked, the 
OFLC Administrator will inform the employer of its right to appeal 
according to the procedures of Sec.  655.171. The employer must file 
the appeal within 10 calendar days after the OFLC Administrator's final 
determination, or the OFLC Administrator's determination is the final 
agency action and will take effect immediately at the end of the 10-day 
period.
    (3) Appeal. An employer may appeal a Notice of Revocation, or a 
final determination of the OFLC Administrator after the review of 
rebuttal evidence, according to the appeal procedures of Sec.  655.171. 
The ALJ's decision is the final agency action.
    (4) Stay. The timely filing of rebuttal evidence or an 
administrative appeal will stay the revocation pending the outcome of 
those proceedings.
    (5) Decision. If the temporary agricultural labor certification is 
revoked, the OFLC Administrator will send a copy of the final agency 
action of the Secretary to DHS and the Department of State (DOS).
    (c) Employer's obligations in the event of revocation. If an 
employer's temporary agricultural labor certification is revoked 
pursuant to this section, the employer is responsible for:
    (1) Reimbursement of actual inbound transportation and subsistence 
expenses, as if the worker meets the requirements for payment under 
Sec.  655.122(h)(1);
    (2) The worker's outbound transportation expenses, as if the worker 
meets the requirements for payment under Sec.  655.122(h)(2);
    (3) Payment to the worker of the amount due under the three-fourths 
guarantee as required by Sec.  655.122(i); and
    (4) Any other wages, benefits, and working conditions due or owing 
to the worker under this subpart.


Sec.  655.182  Debarment.

    (a) Debarment of an employer. The OFLC Administrator may debar an 
employer or any successor in interest to that employer from receiving 
future labor certifications under this subpart, subject to the time 
limits set forth in paragraph (c) of this section, if the OFLC 
Administrator finds that the employer substantially violated a material 
term or condition of its temporary labor certification, with respect to 
H-2A workers, workers in corresponding employment, or U.S. workers 
improperly rejected for employment, or improperly laid off or 
displaced.
    (b) Debarment of an agent or attorney. The OFLC Administrator may 
debar an agent or attorney from participating in any action under 8 
U.S.C. 1188, this subpart, or 29 CFR part 501, if the OFLC 
Administrator finds that the agent or attorney participated in an 
employer's substantial violation. The OFLC Administrator may not issue 
future labor certifications under this subpart to any employer 
represented by a debarred agent or attorney, subject to the time limits 
set forth in paragraph (c) of this section.
    (c) Statute of Limitations and Period of Debarment.
    (1) The OFLC Administrator must issue any Notice of Debarment no 
later than 2 years after the occurrence of the violation.
    (2) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years from the date of the final agency 
decision.
    (d) Definition of violation. For the purposes of this section, a 
violation includes:

[[Page 6976]]

    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188 
or 29 CFR part 501, or an audit under Sec.  655.180 of this subpart;
    (vii) Employing an H-2A worker outside the area of intended 
employment, in an activity/activities not listed in the job order or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (viii) A violation of the requirements of Sec.  655.135(j) or (k);
    (ix) A violation of any of the provisions listed in 29 CFR 
501.4(a); or
    (x) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected;
    (2) The employer's failure to pay a necessary certification fee in 
a timely manner;
    (3) Fraud involving the Application for Temporary Employment 
Certification; or
    (4) A material misrepresentation of fact during the application 
process.
    (e) Determining whether a violation is substantial. In determining 
whether a violation is so substantial so as to merit debarment, the 
factors the OFLC Administrator may consider include, but are not 
limited to, the following:
    (1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part 
501, or this subpart;
    (2) The number of H-2A workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR 
part 501, and this subpart;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest, or safety, and whether the person has previously 
violated 8 U.S.C. 1188;
    (7) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s).
    (f) Debarment procedure.
    (1) Notice of Debarment. If the OFLC Administrator makes a 
determination to debar an employer, attorney, or agent, the OFLC 
Administrator will send the party a Notice of Debarment. The Notice 
will state the reason for the debarment finding, including a detailed 
explanation of the grounds for and the duration of the debarment, and 
it will inform the party subject to the Notice of its right to submit 
rebuttal evidence or to request a debarment hearing. If the party does 
not file rebuttal evidence or request a hearing within 30 calendar days 
of the date of the Notice of Debarment, the Notice will be the final 
agency action and the debarment will take effect at the end of the 30-
day period.
    (2) Rebuttal. The party who received the Notice of Debarment may 
choose to submit evidence to rebut the grounds stated in the Notice 
within 30 calendar days of the date the Notice is issued. If rebuttal 
evidence is timely filed, the OFLC Administrator will issue a final 
determination on the debarment within 30 days of receiving the rebuttal 
evidence. If the OFLC Administrator determines that the party should be 
debarred, the OFLC Administrator will inform the party of its right to 
request a debarment hearing according to the procedures of Sec.  
655.182(f)(3). The party must request a hearing within 30 calendar days 
after the date of the OFLC Administrator's final determination, or the 
OFLC Administrator's determination will be the final agency order and 
the debarment will take effect at the end of the 30-day period.
    (3) Hearing. The recipient of a Notice of Debarment may request a 
debarment hearing within 30 calendar days of the date of a Notice of 
Debarment or the date of a final determination of the OFLC 
Administrator after review of rebuttal evidence submitted pursuant to 
Sec.  655.182(f)(2). To obtain a debarment hearing, the debarred party 
must, within 30 days of the date of the Notice or the final 
determination, file a written request to the Chief Administrative Law 
Judge, United States Department of Labor, 800 K Street, NW., Suite 400-
N, Washington, DC 20001-8002, and simultaneously serve a copy to the 
OFLC Administrator. The debarment will take effect 30 days from the 
date the Notice of Debarment or final determination is issued, unless a 
request for review is properly filed within 30 days from the issuance 
of the Notice of Debarment or final determination. The timely filing of 
a request for a hearing stays the debarment pending the outcome of the 
hearing. Within 10 days of receipt of the request for a hearing, the 
OFLC Administrator will send a certified copy of the ETA case file to 
the Chief ALJ by means normally assuring next-day delivery. The Chief 
ALJ will immediately assign an ALJ to conduct the hearing. The 
procedures in 29 CFR part 18 apply to such hearings, except that the 
request for a hearing will not be considered to be a complaint to which 
an answer is required.
    (4) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the OFLC Administrator's determination. The ALJ will prepare the 
decision within 60 days after completion of the hearing and closing of 
the record. The ALJ's decision will be provided immediately to the 
parties to the debarment hearing by means normally assuring next-day 
delivery. The ALJ's decision is the final agency action, unless either 
party, within 30 calendar days of the ALJ's decision, seeks review of 
the decision with the Administrative Review Board (ARB).
    (5) Review by the ARB.
    (i) Any party wishing review of the decision of an ALJ must, within 
30 days of the decision of the ALJ, petition the ARB to review the 
decision. Copies of the petition must be served on all parties and on 
the ALJ. The ARB will decide whether to accept the petition within 30 
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 
will be deemed the final agency action. If a petition for review is 
accepted, the decision of the ALJ will be stayed unless and until the 
ARB issues an order affirming the decision. The ARB must serve notice 
of its decision to accept or not to accept the petition upon the ALJ 
and upon all parties to the proceeding.
    (ii) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges will promptly forward a copy of the 
complete hearing record to the ARB.
    (iii) Where the ARB has determined to review such decision and 
order, the ARB will notify each party of the

[[Page 6977]]

issue(s) raised, the form in which submissions must be made (e.g., 
briefs or oral argument), and the time within which such presentation 
must be submitted.
    (6) ARB Decision. The ARB's final decision must be issued within 90 
days from the notice granting the petition and served upon all parties 
and the ALJ. 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 
agency decision.
    (g) Concurrent debarment jurisdiction. OFLC and the WHD have 
concurrent jurisdiction to impose a debarment remedy under this section 
or under 29 CFR 501.20. When considering debarment, OFLC and the WHD 
may inform one another and may coordinate their activities. A specific 
violation for which debarment is imposed will be cited in a single 
debarment proceeding. Copies of final debarment decisions will be 
forwarded to DHS promptly.
    (h) Debarment involving members of associations. If the OFLC 
Administrator determines that an individual employer-member of a joint 
employer association has committed a substantial violation, the 
debarment determination will apply only to that member unless the OFLC 
Administrator determines that the association or another association 
member participated in the violation, in which case the debarment will 
be invoked against the association or other complicit association 
member(s) as well.
    (i) Debarment involving associations acting as joint employers. If 
the OFLC Administrator determines that an association acting as a joint 
employer with its members has committed a substantial violation, the 
debarment determination will apply only to the association, and will 
not be applied to any individual employer-member of the association. 
However, if the OFLC Administrator determines that the member 
participated in, had knowledge of, or had reason to know of the 
violation, the debarment may be invoked against the complicit 
association member 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.
    (j) Debarment involving associations acting as sole employers. If 
the OFLC Administrator determines that an association acting as a sole 
employer has committed a substantial violation, the debarment 
determination will apply only to the association and any successor in 
interest to the debarred association.


Sec.  655.183  Less than substantial violations.

    (a) Requirement of special procedures. If the OFLC Administrator 
determines that a less than substantial violation has occurred, but the 
OFLC Administrator has reason to believe that past actions on the part 
of the employer (or agent or attorney) may have had and may continue to 
have a chilling or otherwise negative effect on the recruitment, 
employment, and retention of U.S. workers, the OFLC Administrator may 
require the employer to conform to special procedures before and after 
the temporary labor certification determination. These special 
procedures may include special on-site positive recruitment and 
streamlined interviewing and referral techniques. The special 
procedures are designed to enhance U.S. worker recruitment and 
retention in the next year as a condition for receiving a temporary 
agricultural labor certification. Such requirements will be reasonable; 
will not require the employer to offer better wages, working 
conditions, and benefits than those specified in Sec.  655.122; and 
will be no more than deemed necessary to assure employer compliance 
with the test of U.S. worker availability and adverse effect criteria 
of this subpart.
    (b) Notification of required special procedures. The OFLC 
Administrator will notify the employer (or agent or attorney) in 
writing of the special procedures that will be required in the coming 
year. The notification will state the reasons for the imposition of the 
requirements, state that the employer's agreement to accept the 
conditions will constitute inclusion of them as bona fide conditions 
and terms of a temporary agricultural labor certification, and will 
offer the employer an opportunity to request an administrative review 
or a de novo hearing before an ALJ. If an administrative review or de 
novo hearing is requested, the procedures prescribed in Sec.  655.171 
will apply.
    (c) Failure to comply with special procedures. If the OFLC 
Administrator determines that the employer has failed to comply with 
special procedures required pursuant to paragraph (a) of this section, 
the OFLC Administrator will send a written notice to the employer, 
stating that the employer's otherwise affirmative H-2A certification 
determination will be reduced by 25 percent of the total number of H-2A 
workers requested (which cannot be more than those requested in the 
previous year) for a period of 1 year. Notice of such a reduction in 
the number of workers requested will be conveyed to the employer by the 
OFLC Administrator in the OFLC Administrator's written certification 
determination. The notice will offer the employer an opportunity to 
request administrative review or a de novo hearing before an ALJ. If 
administrative review or a de novo hearing is requested, the procedures 
prescribed in Sec.  655.171 will apply, provided that if the ALJ 
affirms the OFLC Administrator's determination that the employer has 
failed to comply with special procedures required by paragraph (a) of 
this section, the reduction in the number of workers requested will be 
25 percent of the total number of H-2A workers requested (which cannot 
be more than those requested in the previous year) for a period of 1 
year.


Sec.  655.184  Applications involving fraud or willful 
misrepresentation.

    (a) Referral for investigation. If the CO discovers possible fraud 
or willful misrepresentation involving an Application for Temporary 
Employment Certification, the CO may refer the matter to the DHS and 
the Department's Office of the Inspector General for investigation.
    (b) Sanctions. If the WHD, a court or the DHS determines that there 
was fraud or willful misrepresentation involving an Application for 
Temporary Employment Certification and certification has been granted, 
a finding under this paragraph will be cause to revoke the 
certification. The finding of fraud or willful misrepresentation may 
also constitute a debarrable violation under Sec.  655.182.


Sec.  655.185  Job service complaint system; enforcement of work 
contracts.

    (a) Filing with DOL. Complaints arising under this subpart must be 
filed through the Job Service Complaint System, as described in 20 CFR 
part 658, subpart E. Complaints involving allegations of fraud or 
misrepresentation must be referred by the SWA to the CO for appropriate 
handling and resolution. Complaints that involve worker contracts must 
be referred by the SWA to the WHD for appropriate handling and 
resolution, as described in 29 CFR part 501. As part of this process, 
the WHD may report the results of its investigation to the OFLC 
Administrator for consideration of employer penalties or such other 
action as may be appropriate.
    (b) Filing with the Department of Justice. Complaints alleging that 
an employer discouraged an eligible U.S. worker from applying, failed 
to hire, discharged, or otherwise discriminated against an eligible 
U.S. worker, or

[[Page 6978]]

discovered violations involving the same, will be referred to the U.S. 
Department of Justice, Civil Rights 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 a SWA. Likewise, if OSC becomes aware of a violation of the 
regulations in this subpart, it may provide such information to the 
appropriate SWA and the CO.

Title 29--Labor

0
5. 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 between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, data.
501.9 Surety bond.
Subpart B--Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies--general.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.

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 
(OALJ).
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.

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

Subpart A--General Provisions


Sec.  501.0  Introduction.

    The regulations in this part cover the enforcement of all 
contractual obligations, including requirements under 8 U.S.C. 1188 and 
20 CFR part 655, subpart B applicable to the employment of H-2A workers 
and workers in corresponding employment, including obligations to offer 
employment to eligible United States (U.S.) workers and to not lay off 
or displace U.S. workers in a manner prohibited by the regulations in 
this part or 20 CFR part 655, subpart B.


Sec.  501.1  Purpose and scope.

    (a) Statutory standards. 8 U.S.C. 1188 provides that:
    (1) A petition to import an alien as an H-2A worker (as defined at 
8 U.S.C. 1188) may not be approved by the Secretary of the Department 
of Homeland Security (DHS) unless the petitioner has applied for and 
received a temporary labor certification from the U.S. Secretary of 
Labor (Secretary). The temporary labor certification establishes that:
    (i) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the labor or services involved in the 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) The Secretary is authorized to take actions that assure 
compliance with the terms and conditions of employment under 8 U.S.C. 
1188, the regulations at 20 CFR part 655, subpart B, or the regulations 
in this part, including imposing appropriate penalties, and seeking 
injunctive relief and specific performance of contractual obligations. 
See 8 U.S.C. 1188(g)(2).
    (b) Role of the Employment and Training Administration (ETA). The 
issuance and denial of labor certification under 8 U.S.C. 1188 has been 
delegated by the Secretary to ETA, an agency within the U.S. Department 
of Labor (the Department or DOL), who in turn has delegated that 
authority to the Office of Foreign Labor Certification (OFLC). In 
general, matters concerning the obligations of an employer of H-2A 
workers related to the labor certification process are administered by 
OFLC, including obligations and assurances made by employers, 
overseeing employer recruitment and assuring program integrity. The 
regulations pertaining to the issuance, denial, and revocation of labor 
certification for temporary foreign workers by the OFLC are found in 20 
CFR part 655, subpart B.
    (c) Role of the Wage and Hour Division (WHD). Certain 
investigatory, inspection, and law enforcement functions to carry out 
the provisions under 8 U.S.C. 1188 have been delegated by the Secretary 
to the WHD. In general, matters concerning the obligations under a work 
contract between an employer of H-2A workers and the H-2A workers and 
workers in corresponding employment are enforced by WHD, including 
whether employment was offered to U.S. workers as required under 8 
U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were 
laid off or displaced in violation of program requirements. 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 to impose penalties, to debar from future 
certifications, to recommend revocation of existing certification(s), 
and to seek injunctive relief and specific performance of contractual 
obligations, including recovery of unpaid wages and reinstatement of 
laid off or displaced U.S. workers.
    (d) Effect of regulations. The enforcement functions carried out by 
the WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and the 
regulations in this part apply to the employment of any H-2A worker and 
any other worker in corresponding employment as the result of any 
Application for Temporary Employment Certification filed with the 
Department on and after March 15, 2010.

[[Page 6979]]

Sec.  501.2  Coordination between Federal agencies.

    (a) Complaints received by ETA or any State Workforce Agency (SWA) 
regarding contractual H-2A labor standards between the employer and the 
employee will be immediately forwarded to the appropriate WHD office 
for appropriate action under the regulations in this part.
    (b) Information received in the course of processing applications, 
program integrity measures, or enforcement actions may be shared 
between OFLC and WHD or, where applicable to employer enforcement under 
the H-2A program, other agencies as appropriate, including the 
Department of State (DOS) and DHS.
    (c) A specific violation for which debarment is imposed will be 
cited in a single debarment proceeding. OFLC and the WHD may coordinate 
their activities to achieve this result. Copies of final debarment 
decisions will be forwarded to the DHS promptly.


Sec.  501.3  Definitions.

    (a) Definitions of terms used in this part.
    Administrative Law Judge (ALJ). A person within the Department's 
Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 
3105.
    Adverse effect wage rate (AEWR). The annual weighted average hourly 
wage for field and livestock workers (combined) in the States or 
regions as published annually by the U.S. Department of Agriculture 
(USDA) based on its quarterly wage survey.
    Agent. A legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that:
    (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 for Temporary 
Employment Certification; and
    (3) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, the Executive Office 
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including but not limited to 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar fixed-site agricultural employers), incorporated or 
qualified under applicable State law, that recruits, solicits, hires, 
employs, furnishes, houses, or transports any worker that is subject to 
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. An 
agricultural association may act as the agent of an employer, or may 
act as the sole or joint employer of any worker subject to 8 U.S.C. 
1188.
    Area of intended employment. The geographic area within normal 
commuting distance of the place of the job opportunity for which the 
certification is sought. There is no rigid measure of distance that 
constitutes a normal commuting distance or normal commuting area, 
because there may be widely varying factual circumstances among 
different areas (e.g., average commuting times, barriers to reaching 
the worksite, or quality of the regional transportation network). 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.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved H-2A Application for 
Temporary Employment Certification in any work included in the job 
order, or in any agricultural work performed by the H-2A workers. To 
qualify as corresponding employment the work must be performed during 
the validity period of the job order, including any approved extension 
thereof.
    Date of need. The first date the employer requires the services of 
H-2A workers as indicated in the Application for Temporary Employment 
Certification.
    Employee. A person who is engaged to perform work for an employer, 
as defined under the general common law of agency. Some of the factors 
relevant to the determination of employee status include: The hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive.
    Employer. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (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 (such as the ability to hire, pay, 
fire, supervise or otherwise control the work of employee) with respect 
to an H-2A worker or a worker in corresponding employment; and
    (3) Possesses, for purposes of filing an Application for Temporary 
Employment Certification, a valid Federal Employer Identification 
Number (FEIN).
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
    Fixed-site employer. Any person engaged in agriculture who meets 
the definition of an employer, as those terms are defined in this part, 
who owns or operates a farm, ranch, processing establishment, cannery, 
gin, packing shed, nursery, or other similar fixed-site location where 
agricultural activities are performed and who recruits, solicits, 
hires, employs, houses, or transports any worker subject to 8 U.S.C. 
1188, 20 CFR part 655, subpart B or this part, as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A Labor Contractor (H-2ALC). Any person who meets the definition 
of employer under this part and is not a fixed-site employer, an 
agricultural association, or an employee of a fixed-site employer or 
agricultural association, as those terms are used in this part, who 
recruits, solicits, hires, employs, furnishes, houses, or transports 
any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B or this 
part.
    H-2A worker. Any temporary foreign worker who is lawfully present 
in the U.S. and authorized by DHS to perform agricultural labor or 
services of a temporary or seasonal nature pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a).
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the U.S. to 
which U.S. workers can be referred.
    Job order. The document containing the material terms and 
conditions of employment that is posted by the SWA on its inter- and 
intra-state job clearance systems based on the employer's Form ETA-790, 
as submitted to the SWA.

[[Page 6980]]

    Joint employment. Where two or more employers each have sufficient 
definitional indicia of an employer to be considered the employer of a 
worker, those employers will be considered to jointly employ that 
worker. Each employer in a joint employment relationship to a worker is 
considered a joint employer of that worker.
    Prevailing wage. Wage established pursuant to 20 CFR 653.501(d)(4).
    State Workforce Agency (SWA). State government agency that receives 
funds pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to 
administer the State's public labor exchange activities.
    Successor in interest. Where an employer has violated 8 U.S.C. 
1188, 20 CFR part 655, subpart B, or the regulations in this part, and 
has ceased doing business or cannot be located for purposes of 
enforcement, a successor in interest to that employer may be held 
liable for the duties and obligations of the violating employer in 
certain circumstances. The following factors, as used under Title VII 
of the Civil Rights Act and the Vietnam Era Veterans' Readjustment 
Assistance Act, may be considered in determining whether an employer is 
a successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (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) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (7) Similarity in machinery, equipment, and production methods;
    (8) Similarity of products and services; and
    (9) The ability of the predecessor to provide relief.
    For purposes of debarment only, the primary consideration will be 
the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violations at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator 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 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), 
and 1188.
    United States (U.S.). The continental U.S., Alaska, Hawaii, the 
Commonwealth of Puerto Rico, and the territories of Guam, the Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands (CNMI).
    United States worker (U.S. worker). 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 8 U.S.C. 1157, is granted 
asylum under 8 U.S.C. 1158, or is an immigrant otherwise authorized (by 
the Immigration and Nationality Act (INA) or by DHS) to be employed in 
the U.S.; or
    (3) An individual who is not an unauthorized alien (as defined in 8 
U.S.C. 1324a(h)(3)) with respect to the employment in which the worker 
is engaging.
    WHD Administrator. The Administrator of the Wage and Hour Division 
(WHD), and such authorized representatives as may be designated to 
perform any of the functions of the WHD Administrator under this part.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for personal services.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or this part. The contract between the employer and the worker may be 
in the form of a separate written document. In the absence of a 
separate written work contract incorporating the required terms and 
conditions of employment, agreed to by both the employer and the 
worker, the work contract at a minimum will be the terms of the job 
order and any obligations required under 8 U.S.C. 1188, 20 CFR part 
655, subpart B or this part.
    (b) Definition of agricultural labor or services. For the purposes 
of this part, agricultural labor or services, pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and 
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the 
Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f); the 
pressing of apples for cider on a farm; or logging employment. An 
occupation included in either statutory definition shall be 
agricultural labor or services, notwithstanding the exclusion of that 
occupation from the other statutory definition. For informational 
purposes, the statutory provisions are listed below.
    (1) (i) Agricultural labor for the purpose of paragraph (b) of this 
section means all service performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock, 
bees, poultry, and fur-bearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, management, conservation, 
improvement, or maintenance of such farm and its tools and equipment, 
or in salvaging timber or clearing land of brush and other debris left 
by a hurricane, if the major part of such service is performed on a 
farm;
    (C) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of the 
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or waterways, 
not owned or operated for profit, used exclusively for supplying and 
storing water for farming purposes;
    (D) In the employ of the operator of a farm in handling, planting, 
drying, packing, packaging, processing, freezing, grading, storing, or 
delivering to storage or to market or to a carrier for transportation 
to market, in its unmanufactured state, any agricultural or 
horticultural commodity; but only if such operator produced more than 
one-half of the commodity with respect to which such service is 
performed;
    (E) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
paragraph (b)(1)(iv) 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 shall be 
deemed a cooperative organization if the number of operators comprising 
such group is more than 20 at any time during the calendar year in 
which such service is performed;
    (F) The provisions of paragraphs (b)(1)(iv) and (b)(1)(v) of this 
section shall not be deemed to be applicable with respect to service 
performed in connection with commercial canning or commercial freezing 
or in connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; or
    (G) On a farm operated for profit if such service is not in the 
course of the

[[Page 6981]]

employer's trade or business or is domestic service in a private home 
of the employer.
    (ii) As used in this section, the term farm includes stock, dairy, 
poultry, fruit, fur-bearing animal, and truck farms, plantations, 
ranches, nurseries, ranges, greenhouses or other similar structures 
used primarily for the raising of agricultural or horticultural 
commodities, and orchards.
    (2) Agriculture. For purposes of paragraph (b) of this section, 
agriculture means farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities defined as 
agricultural commodities in 1141j(g) of title 12, 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 (sec. 3(f) of the FLSA, as codified). Under 12 
U.S.C. 1141j(g) agricultural commodities include, in addition to other 
agricultural commodities, crude gum (oleoresin) from a living tree, and 
the following products as processed by the original producer of the 
crude gum (oleoresin) from which derived: Gum spirits of turpentine and 
gum rosin. In addition as defined in 7 U.S.C. 92, gum spirits of 
turpentine means spirits of turpentine made from gum (oleoresin) from a 
living tree and gum rosin means rosin remaining after the distillation 
of gum spirits of turpentine.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied in sec. 3121(g) of the 
Internal Revenue Code at 26 U.S.C. 3121(g) or as applied in sec. 3(f) 
of FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
    (4) Logging employment. Operations associated with felling and 
moving trees and logs from the stump to the point of delivery, such as, 
but not limited to, marking danger trees and trees/logs to be cut to 
length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from and between logging sites.
    (c) Definition of a temporary or seasonal nature. For the purposes 
of this part, employment is of a seasonal nature where it is tied to a 
certain time of year by an event or pattern, such as a short annual 
growing cycle or a specific aspect of a longer cycle, and requires 
labor levels far above those necessary for ongoing operations. 
Employment is of a temporary nature where the employer's need to fill 
the position with a temporary worker will, except in extraordinary 
circumstances, last no longer than 1 year.


Sec.  501.4  Discrimination prohibited.

    (a) A person may not intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1188 or the 
regulations in this part;
    (2) Instituted or caused to be instituted any proceedings related 
to 8 U.S.C. 1188 or the regulations in this part;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or the regulations in this part;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188, or to this subpart or any 
other Department regulation promulgated pursuant to 8 U.S.C. 1188; or
    (5) Exercised or asserted on behalf of himself or others any right 
or protection afforded by 8 U.S.C. 1188 or the regulations in this 
part.
    (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, initiate debarment proceedings, and 
recommend to OFLC revocation of any such violator's current labor 
certification. Complaints alleging discrimination against workers or 
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.  501.5  Waiver of rights prohibited.

    A person may not seek to have an H-2A worker, a worker in 
corresponding employment, or a U.S. worker improperly rejected for 
employment or improperly laid off or displaced waive any rights 
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the 
regulations in these parts. Any agreement by an employee purporting to 
waive or modify any rights given to said person under these provisions 
shall be void as contrary to public policy except as follows:
    (a) Waivers or modifications of rights or obligations hereunder in 
favor of the Secretary shall be valid for purposes of enforcement; and
    (b) Agreements in settlement of private litigation are permitted.


Sec.  501.6  Investigation authority of Secretary.

    (a) General. The Secretary, through the WHD, may investigate to 
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or the regulations in this part, either pursuant to a 
complaint or otherwise, as may be appropriate. In connection with such 
an investigation, WHD may enter and inspect any premises, land, 
property, housing, vehicles, and records (and make transcriptions 
thereof), question any person and gather any information as may be 
appropriate.
    (b) Confidential investigation. The WHD shall conduct 
investigations in a manner that protects the confidentiality of any 
complainant or other person who provides information to the Secretary 
in good faith.
    (c) Report of violations. Any person may report a violation of the 
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or 
the regulations in this part to the Secretary by advising any local 
office of the SWA, ETA, WHD or any other authorized representative of 
the Secretary. The office or person receiving such a report shall refer 
it to the appropriate office of WHD for the geographic area in which 
the reported violation is alleged to have occurred.


Sec.  501.7  Cooperation with Federal officials.

    All persons must cooperate with any Federal officials assigned to 
perform an investigation, inspection, or law enforcement function 
pursuant to 8 U.S.C. 1188 and the regulations in this part during the 
performance of such duties. The WHD will take such action as it deems 
appropriate, including initiating debarment proceedings, seeking an 
injunction to bar any failure to cooperate with an investigation and/or 
assessing a civil money penalty therefor. In addition, the WHD will 
report the matter to OFLC, and may recommend to OFLC 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

[[Page 6982]]

found at 18 U.S.C. 111 and 18 U.S.C. 114.


Sec.  501.8  Accuracy of information, statements, data.

    Information, statements and data submitted in compliance with 8 
U.S.C. 1188 or the regulations in this part are subject to 18 U.S.C. 
1001, which provides, with regard to statements or entries generally, 
that whoever, in any matter within the jurisdiction of any department 
or agency of the U.S., knowingly and willfully falsifies, conceals, or 
covers up a material fact by any trick, scheme, or device, or makes any 
false, fictitious, or fraudulent statements or representations, or 
makes or uses any false writing or document knowing the same to contain 
any false, fictitious, or fraudulent statement or entry, shall be fined 
not more than $10,000 or imprisoned not more than 5 years, or both.


Sec.  501.9  Surety bond.

    (a) Every H-2ALC must obtain a surety bond demonstrating its 
ability to discharge financial obligations under the H-2A program. The 
original bond instrument issued by the surety must be submitted with 
the Application for Temporary Employment Certification. At a minimum, 
the bond instrument must identify the name, address, phone number, and 
contact person for the surety, and specify the amount of the bond (as 
required in paragraph (c) of this section), the date of issuance and 
expiration and any identifying designation used by the surety for the 
bond.
    (b) The bond must be payable to the Administrator, Wage and Hour 
Division, United States Department of Labor, 200 Constitution Avenue, 
NW., Room S-3502, Washington, DC 20210. The bond must obligate the 
surety to pay any sums to the WHD Administrator for wages and benefits 
owed to an H-2A worker or to a worker engaged in corresponding 
employment, or to a U.S. worker improperly rejected or improperly laid 
off or displaced, based on a final decision finding a violation or 
violations of this part or 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 must be written to cover liability incurred during the term of 
the period listed in the Application for Temporary Employment 
Certification for labor certification made by an H-2ALC, and shall be 
amended to cover any extensions of the labor certification requested by 
an H-2ALC.
    (c) The bond must be in the amount of $5,000 for a labor 
certification for which an H-2ALC will employ fewer than 25 workers; 
$10,000 for a labor certification for which an H-2ALC will employ 25 to 
49 workers; $20,000 for a labor certification for which an H-2ALC will 
employ 50 to 74 workers; $50,000 for a labor certification for which an 
H-2ALC will employ 75 to 99 workers; and $75,000 for a labor 
certification for which an H-2ALC will employ 100 or more workers. The 
WHD Administrator may require that an H-2ALC obtain a bond with a 
higher face value amount after notice and opportunity for hearing when 
it is shown based on objective criteria that the amount of the bond is 
insufficient to meet potential liabilities.
    (d) The bond must remain in force for a period of no less than 2 
years from the date on which the labor certification expires. If the 
WHD has commenced any enforcement action under the regulations in this 
part against an H-2ALC employer or any successor in interest by that 
date, the bond shall remain in force until the conclusion of such 
action and any related appeal or related litigation. Surety bonds may 
not be canceled or terminated unless 45 days' notice is provided by the 
surety in writing to the WHD Administrator at the address set forth in 
paragraph (b) of this section.

Subpart B--Enforcement


Sec.  501.15  Enforcement.

    The investigation, inspection, and law enforcement functions to 
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or the regulations in this part, as provided in the regulations in this 
part for enforcement by the WHD, pertain to the employment of any H-2A 
worker, any worker in corresponding employment, or any U.S. worker 
improperly rejected for employment or improperly laid off or displaced. 
Such enforcement includes the work contract provisions as defined in 
Sec.  501.3(a).


Sec.  501.16  Sanctions and remedies--general.

    Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, or the regulations in this part have been 
violated, such action shall be taken and such proceedings instituted as 
deemed appropriate, including (but not limited to) the following:
    (a)(1) Institute appropriate administrative proceedings, including: 
the recovery of unpaid wages (including recovery of recruitment fees 
paid in the absence of required contract clauses (see 20 CFR 
655.135(k)); the enforcement of provisions of the work contract, 8 
U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this 
part; the assessment of a civil money penalty; make whole relief for 
any person who has been discriminated against; reinstatement and make 
whole relief for any U.S. worker who has been improperly rejected for 
employment, laid off or displaced; or debarment for up to 3 years.
    (2) The remedies referenced in paragraph (a)(1) of this section 
will be sought either directly from the employer, or from its successor 
in interest, as appropriate. In the case of an H-2ALC, the remedies 
will be sought from the H-2ALC directly and/or monetary relief (other 
than civil money penalties) from the insurer who issued the surety bond 
to the H-2ALC, as required by 20 CFR part 655, subpart B and Sec.  
501.9 of this part.
    (b) Petition any appropriate District Court of the U.S. for 
temporary or permanent injunctive relief, including to prohibit the 
withholding of unpaid wages and/or for reinstatement, or to restrain 
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the 
regulations in this part, by any person.
    (c) Petition any appropriate District Court of the U.S. for an 
order directing specific performance of covered contractual 
obligations.


Sec.  501.17  Concurrent actions.

    OFLC has primary responsibility to make all determinations 
regarding the issuance, denial, or revocation of a labor certification 
as described in Sec.  501.1(b) of this part and in 20 CFR part 655, 
subpart B. The WHD has primary responsibility to make all 
determinations regarding the enforcement functions as described in 
Sec.  501.1(c) of this part. The taking of any one of the actions 
referred to above shall not be a bar to the concurrent taking of any 
other action authorized by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or the regulations in this part. OFLC and the WHD have concurrent 
jurisdiction to impose a debarment remedy under 20 CFR 655.182 or under 
Sec.  501.20 of the regulations in this part.


Sec.  501.18  Representation of the Secretary.

    The Solicitor of Labor, through authorized representatives, shall 
represent the WHD Administrator and the Secretary in all administrative 
hearings under 8 U.S.C. 1188 and the regulations in this part.


Sec.  501.19  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the WHD Administrator 
for each violation of the work contract, or

[[Page 6983]]

the obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or the regulations in this part. Each failure to pay an individual 
worker properly or to honor the terms or conditions of a worker's 
employment required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or 
the regulations in this part constitutes a separate violation.
    (b) In determining the amount of penalty to be assessed for each 
violation, the WHD Administrator shall consider the type of violation 
committed and other relevant factors. The factors that may be 
considered include, but are not limited to, the following:
    (1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or the regulations in this part;
    (2) The number of H-2A workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, and the regulations in this part;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest or safety, and whether the person has previously 
violated 8 U.S.C. 1188;
    (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 each violation of the work contract 
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the 
regulations in this part will not exceed $1,500 per violation, with the 
following exceptions:
    (1) A civil money penalty for each willful violation of the work 
contract, or of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the 
regulations in this part, or for each act of discrimination prohibited 
by Sec.  501.4 shall not exceed $5,000;
    (2) A civil money penalty for a violation of a housing or 
transportation safety and health provision of the work contract, or any 
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the 
regulations in this part, that proximately causes the death or serious 
injury of any worker shall not exceed $50,000 per worker;
    (3) For purposes of this section, the term serious injury includes, 
but is not limited to:
    (i) Permanent loss or substantial impairment of one of the senses 
(sight, hearing, taste, smell, tactile sensation);
    (ii) Permanent loss or substantial impairment of the function of a 
bodily member, organ or mental faculty, including the loss of all or 
part of an arm, leg, foot, hand or other body part; or
    (iii) Permanent paralysis or substantial impairment that causes 
loss of movement or mobility of an arm, leg, foot, hand or other body 
part.
    (4) A civil money penalty for a repeat or willful violation of a 
housing or transportation safety and health provision of the work 
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, or the regulations in this part, that proximately causes the 
death or serious injury of any worker, shall not exceed $100,000 per 
worker.
    (d) A civil money penalty for failure to cooperate with a WHD 
investigation shall not exceed $5,000 per investigation.
    (e) A civil money penalty for laying off or displacing any U.S. 
worker employed in work or activities that are encompassed by the 
approved Application for Temporary Employment Certification for H-2A 
workers in the area of intended employment either within 60 days 
preceding the date of need or during the validity period of the job 
order, including any approved extension thereof, other than for a 
lawful, job-related reason, shall not exceed $15,000 per violation per 
worker.
    (f) A civil money penalty for improperly rejecting a U.S. worker 
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20 
CFR part 655, subpart B, or the regulations in this part, shall not 
exceed $15,000 per violation per worker.


Sec.  501.20  Debarment and revocation.

    (a) Debarment of an employer. The WHD Administrator may debar an 
employer or any successor in interest to that employer from receiving 
future labor certifications under 20 CFR part 655, subpart B, subject 
to the time limits set forth in paragraph (c) of this section, if: the 
WHD Administrator finds that the employer substantially violated a 
material term or condition of its temporary labor certification, with 
respect to H-2A workers, workers in corresponding employment, or U.S. 
workers improperly rejected for employment, or improperly laid off or 
displaced, by issuing a Notice of Debarment.
    (b) Debarment of an agent or an attorney. The WHD Administrator may 
debar an agent or attorney from participating in any action under 8 
U.S.C. 1188, 20 CFR part 655, subpart B or 29 CFR part 501, if the WHD 
Administrator finds that the agent or attorney participated in an 
employer's substantial violation, by issuing a Notice of Debarment. The 
OFLC Administrator may not issue future labor certifications to any 
employer represented by a debarred agent or attorney, subject to the 
time limits set forth in paragraph (c) of this section.
    (c) Statute of Limitations and Period of Debarment.
    (1) The WHD Administrator must issue any Notice of Debarment no 
later than 2 years after the occurrence of the violation.
    (2) No employer, attorney, or agent may be debarred under this 
subpart for more than 3 years from the date of the final agency 
decision.
    (d) Definition of violation. For the purposes of this section, a 
violation includes:
    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or the regulations in this part;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188, 
20 CFR part 655, Subpart B, or the regulations in this part;
    (vii) Employing an H-2A worker outside the area of intended 
employment, or in an activity/activities not listed in the job order or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (viii) A violation of the requirements of 20 CFR 655.135(j) or (k);
    (ix) A violation of any of the provisions listed in Sec.  501.4(a) 
of this subpart; or
    (x) A single heinous act showing such flagrant disregard for the 
law that future

[[Page 6984]]

compliance with program requirements cannot reasonably be expected.
    (2) In determining whether a violation is so substantial as to 
merit debarment, the factors set forth in Sec.  501.19(b) shall be 
considered.
    (e) Procedural Requirements. The Notice of Debarment must be in 
writing, must state the reason for the debarment finding, including a 
detailed explanation of the grounds for and the duration of the 
debarment, must identify appeal opportunities under Sec.  501.33 and a 
timeframe under which such rights must be exercised and must comply 
with Sec.  501.32. The debarment will take effect 30 days from the date 
the Notice of Debarment is issued, unless a request for review is 
properly filed within 30 days from the issuance of the Notice of 
Debarment. The timely filing of an administrative appeal stays the 
debarment pending the outcome of the appeal as provided in Sec.  
501.33(d).
    (f) Debarment involving members of associations. If, after 
investigation, the WHD Administrator determines that an individual 
employer-member of a joint employer association has committed a 
substantial violation, the debarment determination will apply only to 
that member unless the WHD Administrator determines that the 
association or another association member participated in the 
violation, in which case the debarment will be invoked against the 
association or other complicit association member(s) as well.
    (g) Debarment involving associations acting as sole employers. If, 
after investigation, the WHD Administrator determines that an 
association acting as a sole employer has committed a substantial 
violation, the debarment determination will apply only to the 
association and any successor in interest to the debarred association.
    (h) Debarment involving associations acting as joint employers. If, 
after investigation, the WHD Administrator determines that an 
association acting as a joint employer with its members has committed a 
substantial violation, the debarment determination will apply only to 
the association, and will not be applied to any individual employer-
member of the association. However, if the WHD Administrator determines 
that the member participated in, had knowledge of, or had reason to 
know of the violation, the debarment may be invoked against the 
complicit association member 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.
    (i) Revocation. The WHD may recommend to the OFLC Administrator the 
revocation of a temporary agricultural labor certification if the WHD 
finds that the employer:
    (1) Substantially violated a material term or condition of the 
approved temporary labor certification.
    (2) Failed to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, or law enforcement 
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part; 
or
    (3) Failed to comply with one or more sanctions or remedies imposed 
by the WHD, or with one or more decisions or orders of the Secretary or 
a court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or this part.


Sec.  501.21  Failure to cooperate with investigations.

    (a) No person shall refuse to cooperate with any employee of the 
Secretary who is exercising or attempting to exercise this 
investigative or enforcement authority.
    (b) Where an employer (or employer's agent or attorney) does not 
cooperate with an investigation concerning the employment of an H-2A 
worker, a worker in corresponding employment, or a U.S. worker who has 
been improperly rejected for employment or improperly laid off or 
displaced, WHD may make such information available to OFLC and may 
recommend that OFLC revoke the existing certification that is the basis 
for the employment of the H-2A workers giving rise to the 
investigation. In addition, WHD may take such action as appropriate, 
including initiating proceedings for the debarment of the employer from 
future certification for up to 3 years, seeking an injunction, and/or 
assessing civil money penalties against any person who has failed to 
cooperate with a WHD investigation. The taking of any one action shall 
not bar the taking of any additional action.


Sec.  501.22  Civil money penalties--payment and collection.

    Where a civil money penalty is assessed in a final order by the WHD 
Administrator, by an ALJ, or by the Administrative Review Board (ARB), 
the amount of the penalty must be received by the WHD Administrator 
within 30 days of the date of the final order. The person assessed such 
penalty shall remit the amount ordered to the WHD Administrator by 
certified check or by money order, made payable to the 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 assess civil money penalties, to debar, or to increase 
the amount of a surety bond and which may be applied to the enforcement 
of provisions of the work contract, or obligations under 8 U.S.C. 1188, 
20 CFR part 655, subpart B, or the regulations in this part, or to the 
collection of monetary relief due as a result of any violation. Except 
with respect to the imposition of civil money penalties, debarment, or 
an increase in the amount of a surety bond, the Secretary may, in the 
Secretary's discretion, seek enforcement action in Federal court 
without resort to any administrative proceedings.

Procedures Relating To Hearing


Sec.  501.31  Written notice of determination required.

    Whenever the WHD Administrator decides to assess a civil money 
penalty, to debar, to increase a surety bond, or to proceed 
administratively to enforce contractual obligations, or obligations 
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in 
this part, including for the recovery of the monetary relief, the 
person against whom such action is taken shall be notified in writing 
of such determination.


Sec.  501.32  Contents of notice.

    The notice required by Sec.  501.31 shall:
    (a) Set forth the determination of the WHD Administrator including 
the amount of any monetary relief due or actions necessary to fulfill a 
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or the regulations in this part, the amount of any 
civil money penalty assessment, whether debarment is sought and the 
term, and any change in the amount of the surety bond, and the reason 
or reasons therefor.
    (b) Set forth the right to request a hearing on such determination.
    (c) Inform any affected person or persons that in the absence of a 
timely request for a hearing, the determination of the WHD 
Administrator shall become final and unappealable.

[[Page 6985]]

    (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 the date of issuance of the notice referred 
to in Sec.  501.32.
    (b) No particular form is prescribed for any request for hearing 
permitted by this part. However, any such request shall:
    (1) Be typewritten or legibly written;
    (2) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (3) State the specific reason or reasons 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. Requests may be made by certified mail or by means 
normally assuring overnight delivery.
    (d) The determination shall take effect on the start date 
identified in the written notice of determination, unless an 
administrative appeal is properly filed. The timely filing of an 
administrative appeal stays the determination pending the outcome of 
the appeal proceedings, provided that any surety bond remains in effect 
until the conclusion of any such proceedings.

Rules of Practice


Sec.  501.34  General.

    (a) Except as specifically provided in the regulations in this 
part, the Rules of Practice and Procedure for Administrative Hearings 
Before the Office of Administrative Law Judges established by the 
Secretary at 29 CFR part 18 shall apply to administrative proceedings 
described in this part.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges (29 CFR part 18, subpart B) will not apply, 
but principles designed to ensure production of relevant and probative 
evidence shall guide the admission of evidence. The ALJ may exclude 
evidence which is immaterial, irrelevant, or unduly repetitive.


Sec.  501.35  Commencement of proceeding.

    Each administrative proceeding permitted under 8 U.S.C. 1188 and 
the regulations in this part shall be commenced upon receipt of a 
timely request for hearing filed in accordance with Sec.  501.33.


Sec.  501.36  Caption of proceeding.

    (a) Each administrative proceeding instituted under 8 U.S.C. 1188 
and the regulations in this part shall be captioned in the name of the 
person requesting such hearing, and shall be styled as follows:
    In the Matter of ------------, Respondent.
    (b) For the purposes of such administrative proceedings the WHD 
Administrator shall be identified as plaintiff and the person 
requesting such hearing shall be named as respondent.

Referral for Hearing


Sec.  501.37  Referral to Administrative Law Judge.

    (a) Upon receipt of a timely request for a hearing filed pursuant 
to and in accordance with Sec.  501.33, the WHD Administrator, by the 
Associate Solicitor for the Division of Fair Labor Standards or by the 
Regional Solicitor for the Region in which the action arose, will, by 
Order of Reference, promptly refer a copy of the notice of 
administrative determination complained of, and the original or a 
duplicate copy of the request for hearing signed by the person 
requesting such hearing or by the authorized representative of such 
person, to the Chief ALJ, 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 the regulations in this part or 29 CFR part 18.
    (b) A copy of the Order of Reference, together with a copy of the 
regulations in this part, shall be served by counsel for the WHD 
Administrator upon the person requesting the hearing, in the manner 
provided in 29 CFR 18.3.


Sec.  501.38  Notice of docketing.

    Upon receipt of an Order of Reference, the Chief ALJ shall appoint 
an ALJ to hear the case. The ALJ shall promptly notify all interested 
parties of the docketing of the matter and shall set the time and place 
of the hearing. The date of the hearing shall be not more than 60 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

[[Page 6986]]

authorized representatives or their counsel may:
    (1) Submit the proposed agreement for consideration by the ALJ; or
    (2) Inform the ALJ that agreement cannot be reached.
    (d) Disposition. In the event an agreement containing consent 
findings and an order is submitted within the time allowed therefor, 
the ALJ, within 30 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 WHD Administrator.
    (b) The decision of the ALJ shall include a statement of the 
findings and conclusions, with reasons and basis therefor, upon each 
material issue presented on the record. The decision shall also include 
an appropriate order which may affirm, deny, reverse, or modify, in 
whole or in part, the determination of the WHD Administrator. The 
reason or reasons for such order shall be stated in the decision.
    (c) The decision shall be served on all parties and the ARB.
    (d) The decision concerning civil money penalties, debarment, 
monetary relief, and/or enforcement of other contractual obligations 
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when 
served by the ALJ shall constitute the final agency order unless the 
ARB, as provided for in Sec.  501.42, determines to review the 
decision.

Review of Administrative Law Judge's Decision


Sec.  501.42  Procedures for initiating and undertaking review.

    (a) A respondent, 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 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.
    (b) Whenever the ARB, either on the ARB's own motion or by 
acceptance of a party's petition, determines to review the decision of 
an ALJ, a notice of the same shall be served upon the ALJ and upon all 
parties to the proceeding.


Sec.  501.43  Responsibility of the Office of Administrative Law Judges 
(OALJ).

    Upon receipt of the ARB's Notice pursuant to Sec.  501.42, the OALJ 
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 the parties 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.

Record


Sec.  501.46  Retention of official record.

    The official record of every completed administrative hearing 
provided by the regulations in this part shall be maintained and filed 
under the custody and control of the Chief ALJ, or, where the case has 
been the subject of administrative review, the ARB.


Sec.  501.47  Certification.

    Upon receipt of a complaint seeking review of a decision issued 
pursuant to this part filed in a U.S. District Court, after the 
administrative remedies have been exhausted, the Chief ALJ or, where 
the case has been the subject of administrative review, the ARB shall 
promptly index, certify and file with the appropriate U.S. District 
Court, a full, true, and correct copy of the entire record, including 
the transcript of proceedings.

    Signed in Washington this 3rd day of February, 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
Nancy Leppink,
Deputy Administrator, Wage and Hour Division.

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

BILLING CODE 4510-FN-P

[[Page 6987]]

[GRAPHIC] [TIFF OMITTED] TR12FE10.000


[[Page 6988]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.001


[[Page 6989]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.002


[[Page 6990]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.003


[[Page 6991]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.004


[[Page 6992]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.005


[[Page 6993]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.006


[[Page 6994]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.007


[[Page 6995]]


[GRAPHIC] [TIFF OMITTED] TR12FE10.008

[FR Doc. 2010-2731 Filed 2-11-10; 8:45 am]
BILLING CODE 4510-FN-C