[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Proposed Rules]
[Pages 36168-36301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15307]



[[Page 36167]]

Vol. 84

Friday,

No. 144

July 26, 2019

Part II





Department of Labor





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Employment and Training Administration





Wage and Hour Division





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20 CFR Parts 653 and 655

29 CFR Part 501





Temporary Agricultural Employment of H-2A Nonimmigrants in the United 
States; Proposed Rules

  Federal Register / Vol. 84 , No. 144 / Friday, July 26, 2019 / 
Proposed Rules  

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 653 and 655

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2019-0007]
RIN 1205-AB89


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (Department or DOL) proposes to amend 
its regulations regarding the certification of temporary employment of 
nonimmigrant workers employed in temporary or seasonal agricultural 
employment and the enforcement of the contractual obligations 
applicable to employers of such nonimmigrant workers. This notice of 
proposed rulemaking (NPRM or proposed rule) streamlines the process by 
which the Department reviews employers' applications for temporary 
agricultural labor certifications to use in petitioning the Department 
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A 
status. Amendments to the current regulations focus on modernizing the 
H-2A program and eliminating inefficiencies. The Department also 
proposes to amend the regulations for enforcement of contractual 
obligations for temporary foreign agricultural workers and the Wagner-
Peyser Act regulations to provide consistency with revisions to H-2A 
program regulations governing the temporary agricultural labor 
certification process.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before September 24, 2019.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB89, by any one of the following 
methods:
    Electronic Comments: Comments may be sent via http://www.regulations.gov, a Federal E-Government website that allows the 
public to find, review, and submit comments on documents that agencies 
have published in the Federal Register and that are open for comment. 
Simply type in `1205-AB89' (in quotes) in the Comment or Submission 
search box, click Go, and follow the instructions for submitting 
comments.
    Mail: Address written submissions to (including disk and CD-ROM 
submissions) to Adele Gagliardi, Administrator, Office of Policy 
Development and Research, Employment and Training Administration, U.S. 
Department of Labor, 200 Constitution Avenue NW, Room N-5641, 
Washington, DC 20210.
    Instructions: Please submit only one copy of your comments by only 
one method. All submissions must include the agency's name and the RIN 
1205-AB89. Please be advised that comments received will become a 
matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided. 
Comments that are mailed must be received by the date indicated for 
consideration.
    Docket: For access to the docket to read background documents or 
comments, go to the Federal e-Rulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR part 653, contact Thomas M. Dowd, Deputy Assistant Secretary, 
Employment and Training Administration, Department of Labor, Box #12-
200, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 
513-7350 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone numbers above via TTY/TDD 
by calling the toll-free Federal Information Relay Service at 1 (877) 
889-5627.
    For further information regarding 20 CFR part 655, contact Thomas 
M. Dowd, Deputy Assistant Secretary, Employment and Training 
Administration, Department of Labor, Box #12-200, 200 Constitution 
Avenue NW, Washington, DC 20210, telephone: (202) 513-7350 (this is not 
a toll-free number). Individuals with hearing or speech impairments may 
access the telephone numbers above via TTY/TDD by calling the toll-free 
Federal Information Relay Service at 1 (877) 889-5627.
    For further information regarding 29 CFR part 501, contact Amy 
DeBisschop, Acting Director of the Division of Regulations, 
Legislation, and Interpretation, Wage and Hour Division, Department of 
Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210, 
telephone: (202) 693-0578 (this is not a toll-free number). Individuals 
with hearing or speech impairments may access the telephone number 
above via TTY/TDD by calling the toll-free Federal Information Relay 
Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR Part 655, Subpart B

A. Statutory Framework

    The H-2A nonimmigrant worker visa program enables United States 
agricultural employers to employ foreign workers on a temporary basis 
to perform temporary or seasonal agricultural labor or services where 
the Secretary of Labor (Secretary) certifies that (1) 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 (2) the employment of the aliens 
in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
See section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act), as amended by the Immigration Reform and Control Act 
of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) of 
the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated his authority 
to issue temporary agricultural labor certifications to the Assistant 
Secretary, Employment and Training Administration (ETA), who in turn 
has delegated that authority to ETA's Office of Foreign Labor 
Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010). In 
addition, the Secretary has delegated to the Department's Wage and Hour 
Division (WHD) the responsibility under section 218(g)(2) of the INA, 8 
U.S.C. 1188(g)(2), to assure employer compliance with the terms and 
conditions of employment under the H-2A program. Secretary's Order 01-
2014 (Dec. 19, 2014).

B. Current Regulatory Framework

    Since 1987, the Department has operated the H-2A temporary labor 
certification program under regulations promulgated pursuant to the 
INA. The Department's current regulations governing the H-2A program 
were published in 2010.\1\ The standards and procedures applicable to 
the certification and employment of workers under the H-2A program are 
found in 20 CFR part 655 and 29 CFR part 501. In addition, the 
Department has issued special procedures for the

[[Page 36169]]

employment of foreign workers in the herding and production of 
livestock on the range as well as animal shearing, commercial 
beekeeping, and custom combining occupations.\2\ The Department 
incorporated the provisions for employment of workers in the herding 
and production of livestock on the range into the regulation, with 
modifications, in 2015. Those provisions are now codified at Sec. Sec.  
655.200 through 655.235.
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    \1\ Final Rule, Temporary Agricultural Employment of H-2A Aliens 
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 Final Rule).
    \2\ See TEGL, No. 17-06, Change 1, Special Procedures: Labor 
Certification Process for Employers in the Itinerant Animal Shearing 
Industry under the H-2A Program (June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; TEGL, No. 33-10, 
Special Procedures: Labor Certification Process for Itinerant 
Commercial Beekeeping Employers in the H-2A Program (June 14, 2011), 
accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; TEGL, No. 16-06, Change 1, Special 
Procedures: Labor Certification Process for Multi-State Custom 
Combine Owners/Operators under the H-2A Program (June 14, 2011), 
accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040.
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C. Need for New Rulemaking

    It is the policy of the Department to increase protections for 
workers and vigorously enforce all laws within its jurisdiction 
governing the administration and enforcement of nonimmigrant visa 
programs. This includes the coordination of the administration and 
enforcement activities of ETA, WHD, and the Office of the Solicitor in 
the promotion of the hiring of U.S. workers and the safeguarding of 
working conditions in the United States. In addition, these agencies 
make criminal referrals to the Department's Office of Inspector General 
to combat visa-related fraud schemes.\3\
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    \3\ See News Release, U.S. Secretary of Labor Protects 
Americans, Directs Agencies to Aggressively Confront Visa Program 
Fraud and Abuse (June 6, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170606.
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    The proposed rule furthers the goals of Executive Order (E.O.) 
13788, Buy American and Hire American. See 82 FR 18837 (Apr. 21, 2017). 
The E.O. articulates the executive branch policy to ``rigorously 
enforce and administer'' the laws governing entry of nonimmigrant 
workers into the United States ``[i]n order to create higher wages and 
employment rates for workers in the United States, and to protect their 
economic interests.'' Id. sec. 2(b). It directs federal agencies, 
including the Department, to protect U.S. workers by proposing new 
rules and issuing new guidance to prevent fraud and abuse in 
nonimmigrant visa programs. Id. sec. 5.
    The Department proposes to update its H-2A regulations to ensure 
that employers can access legal agricultural labor, without undue cost 
or administrative burden, while maintaining the program's strong 
protections for the U.S. workforce. The changes proposed in this NPRM 
would enhance WHD's enforcement capabilities, thereby removing 
workforce instability that hinders the growth and productivity of our 
nation's farms, while allowing for aggressive enforcement against 
program fraud and abuse that undermine the interests of U.S. workers, 
in accordance with E.O. 13771, Reducing Regulation and Controlling 
Regulatory Costs. Below is an overview of major proposed changes, 
followed by a section-by-section discussion of all proposed changes.
1. Mandatory Electronic Filing and Electronic Signatures
a. Mandatory Electronic Filing
    The Department proposes to require electronic filing (e-filing) of 
Applications for Temporary Employment Certification and job orders for 
most employers and, if applicable, their authorized representatives. E-
filing will be required for the Form ETA-9142A and appropriate 
appendices; the Form ETA-790/790A and appropriate addenda; and all 
applicable documentation required by this subpart to secure a temporary 
agricultural labor certification from the Department, including the 
surety bonds required for H-2A Labor Contractors (H-2ALCs). In 
addition, the Office of Management and Budget's (OMB) approved forms 
will require employers and, if applicable, their authorized 
representatives to designate a valid email address for sending and 
receiving official correspondence concerning the processing of these e-
filings by the State Workforce Agency (SWA) and National Processing 
Center (NPC). The requirement to submit electronic Applications for 
Temporary Employment Certification and job orders would not apply in 
situations where the employer is unable or limited in its ability to 
use or access electronic forms as result of a disability or lacks 
access to e-filing.\4\
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    \4\ The lack of a computer may or may not constitute lack of 
access to e-filing under the proposed regulation. It depends on the 
circumstances presented by the employer at the time of filing.
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    This proposal is intended to maximize end-to-end electronic 
processing of Applications for Temporary Employment Certification and 
job orders, which is an important technological objective of the 
Department. Although e-filing of applications using OFLC's iCERT Visa 
Portal System (iCERT System) is not currently mandated, in the 
Department's experience, employers prefer to use e-filing to request 
temporary agricultural labor certification in the H-2A program. Based 
on temporary agricultural labor certification applications processed 
during fiscal years (FYs) 2016 and 2017, more than 81 percent of 
employer H-2A applications were submitted electronically to the NPC for 
processing using the iCERT System. When compared to paper-filed 
applications, preparing H-2A applications and uploading supporting 
documentation through the iCERT System resulted in more complete 
submissions, better quality entries on form fields, and more 
streamlined processing using email as the primary form of communication 
with employers and, if applicable, their authorized representatives.\5\ 
Further, the Department's experience indicates that only a handful of 
H-2A employers did not provide an email address on their H-2A 
applications.
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    \5\ Based on an analysis of 18,775 temporary labor certification 
records processed during FY 2016 and 2017, approximately 66 percent 
of H-2A applications mailed to the NPC were issued a Notice of 
Deficiency (NOD), while approximately 47 percent of H-2A 
applications filed electronically were issued a NOD.
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    The Department has determined that mandating e-filing will reduce 
costs and burdens for most employers and for the Department, reduce the 
frequency of delays related to filing applications, improve the quality 
of information collected, and promote administrative efficiency and 
accountability. For employers and their authorized representatives, the 
Department's proposal to require e-filing would improve the customer 
experience by permitting more prompt adjudication of applications and 
reducing paperwork burdens and mailing costs. E-filing permits 
automatic notification that an application is incomplete or obviously 
inaccurate and provides employers with an immediate opportunity to 
correct the errors or upload the missing documentation. This approach 
reduces processing delays and costs for employers who would otherwise 
need to pay for expedited mail or private courier services to submit 
corrected applications.
    Paper-based submissions are more costly for the Department to 
process than electronic submissions because they require manual data 
entry of information contained in the required documents and manual 
uploading of scanned copies of the documents into the iCERT System's 
electronic case documents repository. As noted in a 2012 Government 
Accountability Office

[[Page 36170]]

(GAO) report on the H-2A program, paper-based submissions can result in 
misplaced or lost documentation, unnecessary communication delays 
between employers and the Government, and missed opportunities to 
quickly resolve minor deficiencies in the application process.\6\ 
Electronic submissions, on the other hand, do not require manual data 
entry by DOL and can be instantaneously categorized and assigned for 
review by the NPC. If an Application for Temporary Employment 
Certification filed electronically requires amendments or other 
corrections, often those amendments and corrections are automatically 
entered into the iCERT System. Furthermore, electronic submissions are 
more likely to include all necessary documentation and information 
because the Department can require validation of the form entries and 
supporting documentation prior to its submission.
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    \6\ See GAO-12-706, H-2A Visa Program: Modernization and 
Improved Guidance Could Reduce Employer Application Burden (2012), 
U.S. Government Accountability Office.
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    The Department acknowledges that there may be opportunity costs 
associated with transitioning to a new way of filing and costs 
associated with changing familiar processes and learning new systems. 
The Department believes that the efficiencies gained in processing by 
the Department from an increase in electronic filing will outweigh 
these costs. The Department invites comment on this analysis.
    Consistent with its adoption of mandatory e-filing, the Department 
plans to expand the capabilities of the iCERT System to permit the 
electronic execution and delivery of surety bonds. As explained more 
fully in Sec.  655.132, accepting electronic surety bonds would further 
streamline the application process and reduce unnecessary delays, while 
preserving the Department's ability to enforce such bonds.
    The Department anticipates that requiring e-filing will not require 
a change of practice for the vast majority of employers. Based on 
FY2019 data, approximately 94.1 percent of H-2A applications were filed 
electronically. Almost all of the remaining 5.9 percent of H-2A 
applications filed by mail also disclosed valid email addresses on the 
application form, thereby suggesting that employers and, if applicable, 
their authorized attorneys and agents have access to the internet and 
are likely capable of filing electronically. Employers without means to 
file electronically represent a small percentage of all filers, and the 
Department anticipates the very few employers without access to e-
filing will continue to decrease with the growth of information 
technology and access to the internet in rural areas. However, the 
Department acknowledges that a small number of employers may be unable 
to take advantage of the more efficient e-filing process. Therefore, 
the proposal permits these employers to file using a paper-based 
process if they lack adequate access to e-filing. In addition, the 
proposal establishes a process for individuals with disabilities to 
request an accommodation to allow these employers to use or access 
forms and communications from the Department.
    The Department seeks comments on its proposal to require e-filing. 
For example, the Department would like to know if there are members of 
the regulated community, aside from those already identified in the 
proposal, who would be significantly burdened if the Department 
requires e-filing. The Department also seeks comments on e-filing 
methodology, such as the convenience or inconvenience of e-filing and 
other advantages or disadvantages of the e-filing process compared to 
other filing processes.
b. Acceptance of Electronic Signatures
    The Department proposes to promote greater efficiencies in the 
application process and establish parity between paper and electronic 
documents by expanding the ability of employers, agents, and attorneys 
to use electronic methods to comply with signature requirements for the 
H-2A program. As a matter of longstanding policy, the Department 
considers an original signature to be legally-binding evidence of the 
intention of a person with regard to a document, record, or 
transaction. Since the implementation of an e-filing option in December 
2012, the Department also has considered a signature valid where the 
employer's original signature on a document retained in the employer's 
file is photocopied, scanned, or similarly reproduced for electronic 
transmission to the Department, whether at the time of filing or during 
the course of processing an Application for Temporary Employment 
Certification. Although acceptance of electronic (scanned) copies of 
original signatures on documents has generated efficiencies in the 
application process, modern technologies and evolving business 
practices are rendering the distinction between original paper and 
electronic signatures nearly obsolete, and the Department and employers 
can achieve even greater efficiencies using and accepting electronic 
signature methods. For instance, the use of electronic signature 
methods is necessary for the Department to implement its proposal to 
accept electronic surety bonds.
    Under this proposed rule, the Department would permit an employer, 
agent, or attorney to sign or certify a document required under this 
subpart using a valid electronic signature method. This proposal is 
consistent with the principles of two Federal statutes that govern an 
agency's implementation of electronic document and signature 
requirements. First, the Government Paperwork Elimination Act (GPEA), 
Public Law 105.277, Title XVII (Secs. 1701-1710), 112 Stat. 2681-749 
(Oct. 21, 1998), 44 U.S.C. 3504 note, requires Federal agencies to 
allow individuals or entities that deal with the agencies, when 
practicable, the option to submit information or transact with the 
agencies electronically and to maintain records electronically. The 
GPEA also specifically states that electronic records and their related 
electronic signatures are not to be denied legal effect, validity, or 
enforceability merely because they are in electronic form, and 
encourages Federal Government use of a range of electronic signature 
alternatives. See sections 1704, 1707 of the GPEA. Second, the 
Electronic Signatures in Global and National Commerce (E-SIGN) Act, 
Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15 U.S.C. 7001 et 
seq., generally provides that electronic documents have the same legal 
effect as their hard copy counterparts.
    The GPEA and E-SIGN Act adopt a ``functional equivalence approach'' 
to electronic signature requirements where the purposes and functions 
of the traditional paper-based requirements for a signature must be 
considered, and how those purposes and functions can be fulfilled in an 
electronic context. The functional equivalence approach rejects the 
precept that Federal agency requirements impose on users of electronic 
signatures more stringent standards of security than required for 
handwritten or other forms of signatures in a paper-based environment.
    Consistent with the GPEA, the Department proposes to accept an 
electronic signature on H-2A applications as long as it (1) identifies 
and authenticates a particular person as the source of the electronic 
communication; and (2) indicates such person's approval of the 
information contained in the electronic communication.\7\ In addition, 
OMB

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guidelines state that a valid and enforceable electronic signature 
would require satisfying the following signing requirements: (1) The 
signer must use an acceptable electronic form of signature; (2) the 
electronic form of signature must be executed or adopted by the signer 
with the intent to sign the electronic record; (3) the electronic form 
of signature must be attached to or associated with the electronic 
record being signed; (4) there must be a means to identify and 
authenticate a particular person as the signer; and (5) there must be a 
means to preserve the integrity of the signed record.\8\ The Department 
will rely on best practices for electronic signature safety, such as 
these five signing requirements. Consistent with the GPEA and E-SIGN 
Act, the Department proposes to adopt a technology ``neutral'' policy 
with respect to the requirements for electronic signature. That is, the 
employer, agent, or attorney can apply an electronic signature required 
on a document using any available technology that can meet the five 
signing requirements.
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    \7\ Section 1710(1) of the GPEA. The definition of electronic 
signature in the E-SIGN Act essentially is equivalent to the 
definition in the GPEA. The E-SIGN Act defines an electronic 
signature as ``an electronic sound, symbol, or process, attached to 
or logically associated with a contract or other record and executed 
or adopted by a person with the intent to sign the record.'' 15 
U.S.C. 7006(5).
    \8\ Federal Chief Information Council, Use of Electronic 
Signatures in Federal Organization Transactions, Version 1.0 (Jan. 
25, 2013).
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    The Department concludes that these standards for electronic 
signature are reasonable and accepted by Federal agencies. Promoting 
the use of electronic signatures would enable employers, agents, and 
attorneys to reduce printing, paper, and storage costs. For employers 
that need to retain and refer to multiple applications for temporary 
agricultural labor certification, the time and costs savings can be 
considerable. For the Department, implementing electronic signatures 
would help reduce operational costs and improve processing efficiency, 
including through the acceptance of electronic surety bonds.
2. Revisions to the Adverse Effect Wage Rate and Prevailing Wage 
Methodologies
    The Department also proposes to adjust the methodology used to 
establish the required wage rate for the H-2A program. Section 
218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that an H-2A 
worker is only admissible if the Secretary determines 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.'' In 20 CFR 655.120(a), the Department currently 
meets this statutory requirement, in part, by requiring an employer to 
offer, advertise in its recruitment, and pay a wage that is the highest 
of the adverse effect wage rate (AEWR), the prevailing wage, the 
agreed-upon collective bargaining wage, the Federal minimum wage, or 
the State minimum wage. The Department proposes to maintain this wage 
structure with only minor modifications.
    Within this structure, the Department proposes to establish 
separate AEWRs by agricultural occupation to better protect against 
adverse effect on the wages of similarly employed workers in the United 
States. In addition, updates to the prevailing wage methodology would 
set more practical standards that would allow the Department to 
establish reliable and accurate prevailing wage rates for workers and 
employers.
    The Department currently sets the AEWR for all H-2A job 
opportunities at the annual average hourly gross wage for field and 
livestock workers (combined) for the state or region from the Farm 
Labor Survey (FLS) conducted by the U.S. Department of Agriculture's 
(USDA) National Agricultural Statistics Service (NASS). Using this 
methodology, the Department is currently able to establish an AEWR for 
every State except for Alaska, which is not covered by the FLS.
    The Department proposes to set the AEWR for a particular 
agricultural occupation at the annual average hourly gross wage for 
that agricultural occupation in the State or region reported by the FLS 
when the FLS is able to report such a wage. If the FLS does not report 
a wage for an agricultural occupation in a State or region, the 
Department proposes to set the AEWR at the statewide annual average 
hourly wage for the standard occupational classification (SOC) from the 
Occupational Employment Statistics (OES) survey conducted by the 
Department's Bureau of Labor Statistics (BLS). This change to an 
occupation-based wage is intended to produce more accurate AEWRs than 
under the current practice of establishing a single rate for all 
agricultural workers in a state or region. The proposal reflects the 
Department's concern that the current AEWR methodology may have an 
adverse effect on the wages of workers in higher-paid agricultural 
occupations, such as supervisors of farmworkers and construction 
laborers on farms, whose wages may be inappropriately lowered by an 
AEWR established from the wages of field and livestock workers 
(combined). This is because the category of field and livestock workers 
(combined) from the FLS does not include workers who USDA classifies as 
supervisors; ``other workers,'' such as agricultural inspectors, animal 
breeders, and pesticide handlers and sprayers; or contract and custom 
workers. In addition, the use of generalized data for agricultural 
occupations within the field and livestock (combined) classification 
could produce a wage rate that is not sufficiently tailored to the wage 
necessary to protect against adverse effect for those occupations 
because that category aggregates the wages of workers performing 
significantly different job duties, such as agricultural equipment 
operators and crop laborers.
    In addition, the Department proposes to modernize the current 
methodology used to conduct prevailing wage surveys, which applies to 
both H-2A and other job orders that use the Wagner-Peyser Act 
agricultural recruitment system. ETA Handbook 385 (Handbook 385 or the 
Handbook),\9\ which pre-dates the creation of the H-2A program and has 
not been updated since 1981, currently sets the methodology used to 
establish prevailing wage rates for all agricultural job orders. The 
Handbook sets standards, including a requirement for in-person 
interviews, which are inconsistent with available resources at the 
state and federal levels. Due to the difficulty of implementing these 
resource-intensive standards, the SWAs are often required to report 
``no finding'' from prevailing wage surveys; therefore, the surveys are 
both costly and fail to meet the aim of producing reliable prevailing 
wage rates. Accordingly, the Department proposes to update the 
prevailing wage standards to allow the SWAs and other state agencies to 
conduct surveys using more practical standards and establish reliable 
and accurate prevailing wage rates for workers and employers.
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    \9\ See ETA Handbook No. 385 (Aug. 1981), available at https://www.foreignlaborcert.doleta.gov/pdf/et_385_wage_finding_process.pdf.
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3. Incorporation of Certain Training and Employment Guidance Letters 
Into the H-2A Regulatory Structure
    Similar to the Department's approach to incorporate the standards 
and procedures for sheep herders, goat herders, and the range 
production of livestock into regulations promulgated in 2015--and 
following the decision of the United States Court of Appeals for the 
District of Columbia in Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 
2014), explained below--the Department now

[[Page 36172]]

proposes to incorporate into the H-2A regulations, with some 
modifications, the standards and procedures related to animal shearing, 
commercial beekeeping, and custom combining in this NPRM. These 
standards and procedures are currently found in Temporary and 
Employment Guidance Letters (TEGL). The proposed standards and 
procedures, if adopted, would be incorporated at 20 CFR part 655 
subpart B, 655.300 through 655.304.
4. The Definition of Agriculture
    The Department proposes to expand the definition of ``agriculture'' 
under the H-2A program to include reforestation and pine straw 
activities. As further discussed below, although temporary foreign 
workers engaged in reforestation and pine straw activities are 
currently admitted under the H-2B program, these workers share many of 
the same characteristics as traditional agricultural crews.
5. The 30-Day Rule
    The Department proposes to replace the 50 percent rule with a 30-
day rule requiring employers to provide employment to any qualified, 
eligible U.S. worker who applies for the job opportunity until 30 
calendar days from the employer's first date of need on the certified 
Application for Temporary Employment Certification, and a longer 
recruitment period for those employers who choose to stagger the entry 
of H-2A workers into the United States, as explained below. Under the 
current regulation, an employer granted temporary agricultural labor 
certification must continue to provide employment to any qualified, 
eligible U.S. worker who applies until 50 percent of the period of the 
work contract has elapsed. The obligation to hire additional workers 
mid-way through a season is disruptive to agricultural operations and 
makes it difficult for agricultural employers to be certain they will 
have a steady, stable, properly trained, and fully coordinated 
workforce. Since the implementation of the current regulation, the 
Department has collected a significant amount of data that shows that a 
very low number of U.S. workers apply for the job opportunity within 30 
days after the start date of work, and even fewer after that.
    Section 218(c)(3)(B)(iii) of the INA, 8 U.S.C. 1188(c)(3)(B)(iii), 
tasked the Department with determining whether agricultural employers 
should be required by regulation to hire U.S. workers after H-2A 
workers have already departed for the place of employment. These 
provisions suggest that, in making this determination, the Department 
should weigh the ``benefits to United States workers and costs to 
employers.'' Based on available data, it appears that the costs of the 
rule to employers outweigh any benefits the rule may provide to U.S. 
workers. Replacing the 50 percent rule with a rule requiring employers 
to hire qualified, eligible U.S. worker applicants for a period of 30 
days after the employer's first date of need will balance the needs of 
workers and employers. Requiring employers to hire workers 30 days into 
the contract period, while still disruptive to agricultural operations, 
shortens the period during which such disruptions may occur and 
restores some stability to employers that depend on the H-2A program. 
Providing U.S. workers the ability to apply for these job opportunities 
30 days into the contract period ensures that U.S. workers still have 
access to these jobs after the start of the contract period during the 
period of time they are most likely to apply.
6. Staggered Entry
    The Department proposes to permit the staggered entry of H-2A 
workers into the United States. Under this proposal, any employer that 
receives a temporary agricultural labor certification and an approved 
H-2A Petition may bring nonimmigrant workers into the United States at 
any time up to 120 days after the first date of need identified on the 
certified Application for Temporary Employment Certification without 
filing another H-2A Petition. If an employer chooses to stagger the 
entry of its workers, it must continue to accept referrals of U.S. 
workers and hire those who are qualified and eligible through the 
period of staggering or the first 30 days after the first date of need 
identified on the certified Application for Temporary Employment 
Certification, whichever is longer. This proposal will provide 
employers with the flexibility to accommodate changing weather and 
production conditions that are inherent to agricultural work. It will 
also reduce the need for employers to file multiple Applications for 
Temporary Employment Certification for same occupational classification 
in which the only difference is the expected start date of work, thus 
improving efficiencies for both employers and the Department.

II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B; 20 
CFR 653.501(c)(2)(i); and 29 CFR Part 501

A. Introductory Sections

1. Section 655.100, Scope and Purpose of Subpart B
    The proposed revisions to this section clarify the statutory 
authority for the H-2A temporary agricultural labor certification 
process, and the scope of the Department's role in receiving, 
reviewing, and adjudicating applications for temporary agricultural 
labor certification, and upholding the integrity of Applications for 
Temporary Employment Certification. These revisions also clarify the 
Department's authority to establish standards and obligations with 
respect to the terms and conditions of the temporary agricultural labor 
certification with which H-2A employers must comply, as well as the 
rights and obligations of H-2A workers and workers in corresponding 
employment.
2. Section 655.101, Authority of the Agencies, Offices, and Divisions 
of the Department of Labor; and 29 CFR 501.1, Purpose and Scope
    The revisions to this section clarify the delegated authority of, 
and division of responsibilities between, ETA and WHD under the H-2A 
program. This section addresses the delegated authority of OFLC, the 
office within ETA that exercises the Secretary's responsibility for 
determining the availability of qualified U.S. workers to perform the 
temporary agricultural labor or services, and whether the employment of 
the H-2A workers will adversely affect the wages and working conditions 
of workers in the United States similarly employed. This provision also 
discusses the authority delegated to WHD, the agency responsible for 
investigation and enforcement of the terms and conditions of H-2A 
temporary agricultural labor certifications. Finally, this provision 
reminds program users of each agency's concurrent authority to impose a 
debarment remedy when appropriate under ETA regulations at 20 CFR 
655.182 or under WHD regulations at 29 CFR 501.20.
3. Section 655.102, Transition Procedures
a. Proposal To Rescind the Provision That Allows for the Creation of 
Special Procedures
    Special procedures in the H-2A program were based upon a 
determination that variations from the normal labor certification 
processes

[[Page 36173]]

were necessary to permit the temporary employment of foreign workers in 
specific industries or occupations when able, willing, and qualified 
U.S. workers were not available and the employment of foreign workers 
would not adversely affect the wages or working conditions of workers 
in the United States similarly employed. The H-2A regulations have, 
since their creation, provided authority for the Department to 
``establish, continue, revise, or revoke special procedures for 
processing certain H-2A applications.'' 20 CFR 655.102.
    In Mendoza v. Perez, 754 F.3d 1002, 1022 (D.C. Cir. 2014), the D.C. 
Circuit concluded that 20 CFR 655.102 was ``a grant of unconstrained 
and undefined authority [, and the] purpose of the [Administrative 
Procedure Act (APA)] would be disserved if an agency with a broad 
statutory command . . . could avoid notice-and-comment rulemaking 
simply by promulgating a comparably broad regulation . . . and then 
invoking its power to interpret the statute and regulation in binding 
the public to a strict and specific set of obligations.'' Accordingly, 
the court in Mendoza specifically held that the special procedures 
pertaining to sheep, goat, and cattle herding issued under Sec.  
655.102 were subject to the APA's notice and comment requirements 
because they possess all the hallmarks of a legislative rule and could 
not be issued through sub-regulatory guidance. 754 F.3d at 1024 (``The 
[special procedures] are necessarily legislative rules because they 
`effect [ ] a [substantive] change in existing law or policy,' and 
`effectively amend[ ] a prior legislative rule.' '') (citations 
omitted).
    In light of Mendoza, the Department proposes to rescind from the H-
2A regulations the general provision that allows for the creation of 
special procedures that establish variations for processing certain 
Applications for Temporary Employment Certification. The Department 
proposes, in this NPRM, procedures for handling applications for each 
of the occupations that currently have special procedures under this 
authority: Animal shearing, commercial beekeeping, and custom 
combining. The Department also proposes procedures for handling 
applications involving reforestation, which, as discussed in detail 
below, the Department proposes to include within the H-2A definition of 
agriculture activities.
b. Proposal To Add a Provision Providing Procedures for Implementing 
Changes Created by a Final Rule
    The Department proposes to rename Sec.  655.102, ``Transition 
procedures,'' and add a transition period in order to provide an 
orderly and seamless transition for implementing changes created by 
these proposed regulatory revisions, if adopted in a final rule. 
Generally, the Department processes all applications in accordance with 
the rules in effect on the date the Application for Temporary 
Employment Certification is submitted. However, based on the 
Department's program experience, a transition period will help provide 
employers and other stakeholders with time to understand and comply 
with regulatory revisions affecting the assurances and obligations of 
the H-2A program to obtain and employ workers under a temporary 
agricultural labor certification. Similarly, a transition period will 
allow the Department to implement necessary changes to program 
operations, application forms, technology systems, and to provide 
training and technical assistance to OFLC, SWAs, employers, and other 
stakeholders in order to familiarize them with changes required by this 
proposed rule.
    Accordingly, the Department proposes that any application submitted 
by an employer prior to the effective date of a final rule must meet 
regulatory requirements and will be processed by the NPC in accordance 
with the 2010 Final Rule. The Department also proposes to establish a 
transition period that will apply to any application for which the 
first date of need for H-2A workers is no earlier than the effective 
date of a final rule and not later than the date that is 90 calendar 
days after the effective date of a final rule. Specifically, an 
employer submitting an application on or after the effective date of a 
final rule, where the first date of need for H-2A workers is not later 
than 90 calendar days after the effective date of a final rule, will 
continue to meet regulatory requirements and will be processed by the 
NPC in accordance with the current regulation. Thus, the Department 
proposes to establish a 90-day transition period in which employers are 
allowed to continue filing applications and receive temporary 
agricultural labor certifications under the regulatory requirements set 
forth in the current regulation. However, all applications submitted by 
employers on or after the effective date of a final rule, where the 
first date of need for H-2A workers is later than 90 calendar days 
after the effective date of a final rule, will be expected to fully 
comply with all of the requirements of a final rule. The Department 
invites comments on the length of the transition period, including 
impact and costs associated with a transition period longer or shorter 
than 90 days.
4. Section 655.103, Overview of This Subpart and Definition of Terms; 
20 CFR 653.501(c)(2)(i) of the Wagner Peyser Act Regulations; and 29 
CFR 501.3, Definitions
a. Paragraph (b), Definitions; and 20 CFR 653.501(c)(2)(i)
i. Adverse Effect Wage Rate
    The current regulation provides that the AEWR is set at the annual 
weighted average hourly wage for field and livestock workers (combined) 
based on the USDA's FLS. To be consistent with the Department's 
proposal to adjust the current AEWR methodology, the Department 
proposes conforming changes to the definition of AEWR in this section. 
The Department discusses the proposed changes to the AEWR methodology 
in the preamble to Sec.  655.120.
ii. Administrator, OFLC Administrator, WHD Administrator, and Wage and 
Hour Division
    The current regulation defines the OFLC Administrator as the 
primary official of the OFLC or the OFLC Administrator's designee. The 
Department proposes to add an equivalent definition of ``WHD 
Administrator'' to clarify that the OFLC and WHD Administrators have 
unique roles in the H-2A temporary agricultural labor certification 
process. Additionally, the Department proposes to add a definition of 
``Administrator'' that cross references the definitions of OFLC 
Administrator and WHD Administrator so that interested parties may be 
able to locate these definitions more easily. Finally, the Department 
proposes to add a definition of ``Wage and Hour Division'' to provide a 
clear definition of a term used throughout the current and proposed 
regulations.
iii. Area of Intended Employment
    The Department proposes a minor amendment to the definition of 
``area of intended employment'' that replaces the terms ``place of the 
job opportunity'' and ``worksite'' with the term ``place(s) of 
employment,'' consistent with the proposed inclusion and definition of 
``place(s) of employment'' in this section. Based on the factual 
circumstances of each application, the Certifying Officer (CO) will 
continue using the term ``area of intended employment'' to assess 
whether each place of employment is within normal commuting distance 
from the first place of employment or, if designated, the centralized 
``pick-up'' point (e.g.,

[[Page 36174]]

worker housing) to every other place of employment identified in the 
application and job order. The Department maintains that the 
recruitment of U.S. workers is most effective when the work performed 
under the job order is advertised to workers residing in the local or 
regional area and enables them to return to their permanent places of 
residence on a daily basis rather than traveling long distances to 
reach the places of employment. Longer than normal commuting times, 
transportation issues, geographic barriers, or the need to live away 
from home are all factors that can discourage U.S. workers from 
accepting a temporary agricultural job opportunity, making it 
challenging for the Department to accurately assess whether there are 
sufficient U.S. workers who are able, willing, and qualified to perform 
the labor or services involved in the application.
    However, the Department acknowledges that the absence of a clear 
and objective standard for normal commuting distance in the definition 
of area of intended employment makes it difficult for employers to 
understand and predict how the Department will review the geographic 
scope of their job opportunities. Accordingly, the Department invites 
comments on whether it should further revise the definition of area of 
intended employment. Specifically, the Department is interested in 
comments focused on whether there are objective factors, commuting or 
labor market area designation systems, or other comprehensive commuting 
studies and data that can be used to more effectively determine normal 
commuting distances for the purpose of the Department's implementation 
of the H-2A program. The Department is also interested in comments on 
whether it should continue making fact-based determinations on a case-
by-case basis, or whether it should impose a more uniform standard for 
all employers, such as maximum commuting distance or time above which 
will be considered an unreasonable commuting distance or time in all 
cases. Comments submitted under this proposed rule should address the 
advantages and disadvantages of each suggested alternative, and how 
implementation of the alternative will ensure the integrity of the 
labor market test and provide greater clarity to employers with respect 
to what constitutes a normal commuting distance to the places of 
employment identified in their applications and job orders.
iv. Average AEWR
    The Department proposes to define a new term ``average adverse 
effect wage rate'' to complement proposed changes to Sec.  655.132. As 
discussed more fully later in this preamble, the Department proposes to 
change the H-2A Labor Contractor (H-2ALC) surety bond requirement such 
that the required bond amounts adjust annually based on changes to a 
nationwide average AEWR. The Department will calculate and publish the 
average AEWR annually when it calculates and publishes AEWRs in 
accordance with Sec.  655.120(b).\10\ The average AEWR will be 
calculated as a simple average of the published AEWRs applicable to the 
SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse). 
This classification was chosen to benchmark the required bond amounts 
because the majority of workers employed by H-2ALCs perform work in 
this classification.
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    \10\ The Department published the 2018 AEWRs for non-range 
occupations in Notice, Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2018 
Adverse Effect Wage Rates for Non-Range Occupations, 82 FR 60628 
(Dec. 21, 2017).
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v. Employer and Joint Employment
    Section 218 of the INA generally recognizes that growers, 
agricultural associations, and H-2A labor contractors that file 
applications are employers or joint employers.\11\ In conformity with 
the statute as well as the Department's current policy and practice, 
the Department proposes to clarify the definitions of employer and 
joint employment with respect to the H-2A program to include those 
entities the statute recognizes as employers or joint employers. First, 
the Department proposes to add language to the definition of joint 
employment in the H-2A program that clarifies that an agricultural 
association that files an application as a joint employer is, at all 
times, a joint employer of all H-2A workers sponsored under the 
application and, if applicable, of corresponding workers. Second, the 
Department proposes to clarify the definition of joint employment to 
include an employer-member of an agricultural association that is 
filing as a joint employer, but only during the period in which the 
member employs H-2A workers sponsored under the association's joint 
employer application. Third, the Department proposes a slight change to 
the joint employment language in the current regulation to more 
expressly codify that the common law of agency determines joint 
employer status under the statute. Fourth, the Department proposes to 
add language to the definition of joint employment with respect to the 
H-2A program that would clarify that growers who file the joint 
employer application proposed in Sec.  655.131(b) are joint employers, 
at all times, with respect to the H-2A workers sponsored under the 
application and, if applicable, any corresponding workers. Fifth, in 
addition to the proposed changes to the definition of joint employment, 
the Department proposes to add language to the definition of employer 
to clarify that a person who files an application other than as an 
agent is an employer. Sixth, the Department proposes to add language to 
the definition of employer to clarify that a person on whose behalf an 
application is filed is an employer. These proposed revisions reflect 
the Department's longstanding administrative and enforcement practice 
that is already familiar to employers.
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    \11\ See 8 U.S.C. 1188(c)(2) (``The employer shall be notified 
in writing within seven days of the date of filing if the 
application does not meet the [relevant] standards . . . .''); 8 
U.S.C. 1188(c)(3)(A)(i) (``The Secretary of Labor shall make . . . 
the certification described in subsection (a)(1) if . . . the 
employer has complied with the criteria for certification . . . 
.''); 8 U.S.C. 1188(d)(2) (``If an association is a joint or sole 
employer of temporary agricultural workers . . . [H-2A] workers may 
be transferred among [employer]-members'').
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    Controlling judicial and administrative decisions provide that to 
the extent a federal statute does not define the term employer, the 
common law of agency governs whether an entity is an employer.\12\ 
Accordingly, the proposal continues to use the common law of agency to 
define the terms employer and joint employment for associations and 
growers that have not filed applications. Thus, for example, under the 
Department's current and continuing enforcement policy--with which 
employers are already familiar--if an agricultural association files as 
a joint employer, the association's employer-members are only joint 
employers with the association when they are jointly employing the H-2A 
or corresponding worker under the common law of agency.
---------------------------------------------------------------------------

    \12\ See Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 
322-24 (1992); Garcia-Celestino v. Ruiz Harvesting, 843 F.3d 1276, 
1288 (11th Cir. 2016); Admin. v. Seasonal Ag. Services, Inc., 2016 
WL 5887688, at *6 (ARB, Sept. 30, 2016). The focus of the common law 
standard is the ``hiring entity's `right to control the manner and 
means by which the product is accomplished.' '' Ruiz Harvesting, 843 
F.3d at 1292-93 (quoting Darden, 503 U.S. at 323). Application of 
the standard typically entails consideration of a variety of 
factors. See Ruiz Harvesting, 843 F.3d at 1293 (citing Darden, 503 
U.S. at 323-24).
---------------------------------------------------------------------------

    The Department additionally notes that the current H-2A program 
definitions of employer and joint

[[Page 36175]]

employment, as well as those the Department proposes herein, are 
different from the definitions of ``employer,'' ``employee,'' 
``employ'' in the Fair Labor Standards Act, 29 U.S.C. 201 et seq. 
(FLSA) and the definition of ``employ'' in the Migrant and Seasonal 
Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq. (MSPA). 
Thus, the statutory definitions in the FLSA and MSPA that determine the 
existence of an employment relationship or joint employer status 
neither apply nor are relevant to the determination of whether an 
entity is an H-2A employer or joint employer.
Employer-Member Responsibility for Violations Committed Under a Joint 
Employer Application Filed by an Agricultural Association
    Consistent with existing practice, when an agricultural association 
files a joint employer application, an employer-member of that 
association is an employer of the H-2A workers during the time when 
those workers perform work or services for the member. When only one 
employer-member is employing the H-2A workers at the time of a program 
violation, only that employer-member and its agricultural association 
are economically responsible for program violations.
Joint Employer Applications Under Proposed Sec.  655.131(b)
    Proposed Sec.  655.131(b) generally codifies the Department's 
longstanding practice with regard to joint employer applications. Each 
grower party to a Sec.  655.131(b) joint employer application will be 
jointly liable for compliance with all H-2A program requirements. Thus, 
for example, if employer C and employer D file a joint employer 
application under proposed Sec.  655.131(b) and employer C fails to pay 
the H-2A workers the required wage, employer D will be jointly liable 
for employer C's violations. This codification of ongoing 
administrative and enforcement policy towards employers that have filed 
as joint employers under the program is designed to maintain 
consistency with the Department's well-known practices that are already 
familiar to employers.
    The Department's approach to joint employment under Sec.  
655.131(b)--which aims to accommodate small growers that do not have 
full time work for their H-2A employees--is implied by the statute. The 
statute specifically contemplates that filers (other than agents) are 
employers and only expressly permits an entity (i.e., an agricultural 
association) to transfer H-2A workers when the entity agrees to retain 
program responsibility with respect to the workers it transfers.\13\ 
Therefore, the Department must require entities that jointly apply for 
H-2A workers, who they intend to transfer among themselves, to retain 
program responsibility for the transferred workers and, if applicable, 
any corresponding workers.
---------------------------------------------------------------------------

    \13\ See 8 U.S.C. 1188(d)(2).
---------------------------------------------------------------------------

    This proposed approach provides a flexible application system that 
harmonizes with the statutory language. Growers who prefer not to 
assume the shared liability under the proposed joint employer 
application may file through an agricultural association acting as a 
joint or sole employer. In addition to conformity with the statute, the 
Department's proposed approach is also consistent with judicial 
authority.\14\
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    \14\ Martinez-Bautista v. D&S Produce, 447 F. Supp. 2d 954, 960-
62 (E.D. Ark. 2006) (ruling entities that jointly applied to employ 
H-2A workers are joint employers of the workers and rejecting 
application of agricultural association liability principles when 
the joint employers had not filed through an association).
---------------------------------------------------------------------------

Department's Approach to Imposing Liability Among Culpable Joint 
Employers
    The Department will continue to apply its longstanding policy with 
respect to imposing liability among culpable joint employers. This 
policy includes consideration of the factors at 29 CFR 501.19(b) when 
the Department assesses civil money penalties. The Department applies 
these factors to joint employers on a case-by-case basis. For example, 
if the Department determines an agricultural association achieved no 
financial gain from an employer-member's failure to pay the required 
wage to H-2A or corresponding workers, but that the employer-member 
achieved significant financial gain, the civil money penalty, if any, 
applicable to the association would likely be less than that applicable 
to the employer-member for this violation.
Proposal To Move Certain Requirements in the Definition of Employer
    The current definition of employer in the H-2A program requires an 
employer to have a place of business in the United States and a means 
of contact for employment as well as a Federal Employer Identification 
Number (FEIN). The Department proposes to move these requirements to 
Sec. Sec.  655.121(a)(1) and 655.130(a). The proposal will require a 
prospective employer to include its FEIN, its place of business in the 
United States and a means of contact for employment in both its job 
order submission to the NPC, and its Application for Temporary 
Employment Certification.
vi. First Date of Need and Period of Employment
    The Department proposes to define the term ``first date of need'' 
as the first date on which the employer anticipates requiring the 
temporary agricultural labor or services for which it seeks a temporary 
agricultural labor certification. This is the date that appears on the 
employer's job order and Application for Temporary Employment 
Certification as the start date of work for the job opportunity and 
will be used in recruitment and for calculating program requirements 
(e.g., the positive recruitment period under Sec.  655.158). By 
including the term ``anticipated,'' the Department's proposed 
definition would provide a limited degree of flexibility for the actual 
start date of work for some or all of the temporary workers hired, 
which may vary due to such factors as travel delays or crop conditions 
at the time work is expected to begin. Provided that the employer 
complies with all obligations to workers (e.g., providing housing and 
subsistence at no cost to workers as set forth in Sec.  655.145(b)), 
the employer's actual start date of work may occur within 14 calendar 
days after the anticipated first date of need listed on the temporary 
agricultural labor certification. Additionally, the Department proposes 
to define the term ``period of employment'' as the time during which 
the employer requires the temporary agricultural labor or services for 
which it seeks a temporary agricultural labor certification, as 
indicated by the first date of need and the last date of need provided 
on the employer's job order and Application for Temporary Employment 
Certification.
vii. Prevailing Wage
    The current H-2A regulation defines ``prevailing wage'' as ``[w]age 
established pursuant to 20 CFR 653.501(d)(4),'' which is the Wagner-
Peyser Act regulation that covers clearance of both H-2A and non-H-2A 
agricultural job orders. Due to regulatory revisions to part 653 under 
the Workforce Innovation and Opportunity Act, Sec.  653.501(d)(4) no 
longer addresses prevailing wages but rather discusses the referral of 
workers.\15\ While Sec.  653.501(c)(2)(i) contains the requirement that 
the SWA must ensure that job orders provide that the employer has 
offered not less than the

[[Page 36176]]

higher of the prevailing wage rate or applicable Federal or State 
minimum wage, nothing in part 653 addresses how that prevailing wage is 
established.
---------------------------------------------------------------------------

    \15\ See Final Rule, Workforce Innovation and Opportunity Act, 
81 FR 56071, 56346-48 (Aug. 19, 2016) (amending Sec.  653.501).
---------------------------------------------------------------------------

    As discussed in detail below, the Department proposes to modernize 
the longstanding sub-regulatory guidance that it uses to establish 
prevailing wages and replace the existing methodology with a new 
methodology, as set forth in proposed regulatory text in 20 CFR 655.120 
and discussed in the preamble to that section. Accordingly, the 
Department proposes to conform changes to the regulatory definition of 
prevailing wage in Sec.  655.103 to cross reference that new proposed 
methodology at Sec.  655.120(c). The Department proposes to use the 
same methodology to establish the prevailing wage for both H-2A and 
non-H-2A agricultural job orders. As a result, the Department proposes 
to make a corresponding change to the Wagner-Peyser Act regulation at 
20 CFR 653.501(c)(2)(i) to define ``prevailing wage'' for the 
agricultural recruitment system in the same manner as the Department 
proposes to define ``prevailing wage'' for the H-2A program in 20 CFR 
655.103(b).
viii. Temporary Agricultural Labor Certification
    The Department also proposes revisions to the definition of 
``temporary agricultural labor certification.'' Under the proposal, the 
definition clarifies that the certification made by OFLC is made based 
on the information contained in the Application for Temporary 
Employment Certification, the job order, and all supporting 
documentation submitted to the Department in the course of processing 
the application and job order. Under the current regulation, the 
definition does not make it clear that the Department's determination 
is based on all of these documents, though OFLC can and does consider 
that information in processing H-2A applications. The proposed revision 
would codify the Department's long-standing practice to base the 
certification determination on the information contained in those 
documents, demonstrating compliance with regulatory requirements.
ix. Additional definitions
    The Department proposes to add definitions of other terms for 
clarity: Act, applicant, Application for Temporary Employment 
Certification, Board of Alien Labor Certification Appeals (BALCA), 
Chief ALJ, Department of Homeland Security, Employment and Training 
Administration, H-2A Petition, Metropolitan Statistical Area, piece 
rate, place of employment, Secretary of Labor, Secretary of Homeland 
Security, and U.S. Citizenship and Immigration Services.
b. Paragraph (c), Definition of Agricultural Labor or Services
    The Department proposes to expand the regulatory definition of 
agricultural labor or services pursuant to section 101(a)(15)(H)(ii)(a) 
of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), to include reforestation 
and pine straw activities, which have similar fundamental 
characteristics to occupations currently defined as agricultural labor 
or services by statute or by the Secretary. When considering the 
Department's enforcement experience and reconsidering comments on past 
proposed rules, the Department has determined that reforestation and 
pine straw activities are more appropriately included in the H-2A 
program than in the H-2B program. In view of the changes that have 
taken place since the last proposal to include these activities in the 
H-2A program, it is appropriate to again seek comment on this issue. 
Although the Department cannot immediately anticipate the full impact 
of shifting these specific activities to the H-2A program, it notes 
that ``Forest & Conservation Workers'' have been the second leading 
occupation in DOL's certification of H-2B temporary labor 
certifications, with upwards of 11,000 certified positions annually in 
each of the last two fiscal years (FY17 and FY18). However, it is 
unlikely that all of these certified positions would have been filled 
with foreign H-2B workers due to the H-2B visa cap.
    The proposed rule defines reforestation activities as predominantly 
manual forestry operations associated with developing, maintaining, or 
protecting forested areas including, but not limited to, planting tree 
seedlings in specified patterns using manual tools, and felling, 
pruning, pre-commercial thinning, and removing trees and brush from 
forested areas. This definition encompasses tasks that are normally 
associated with reforestation work and the cultivation of trees or 
other forestry products, regardless of whether the result of such 
cultivation is timber or a forested area for conservation purposes. 
Reforestation activities may include some forest fire prevention or 
suppression duties such as constructing fire breaks or performing 
prescribed burning tasks when such duties are in connection with and 
incidental to other reforestation activities. Forest fire protection or 
suppression duties are reforestation activities only when incidental to 
and performed as part of tree or forest product cultivation. For 
example, reforestation crews engaged in thinning to accelerate growth 
of immature trees may also construct a fire break, and reforestation 
crews engaged in planting may perform a prescribed burn prior to 
planting seedlings. This definition does not include regular and 
routine work of a forest firefighting crew and performance of job 
duties such as rescuing fire victims, administering first aid, locating 
fires, or monitoring environmental conditions for fire risk.
    The proposed rule also states that reforestation activities do not 
include vegetation management activities in and around utility, 
highway, railroad, or other rights-of-way. As defined here, 
reforestation activities exclude vegetation management activities that 
are not associated with the cultivation of trees or other forestry 
products for timber or conservation purposes. \16\ This includes, but 
is not limited to, right-of-way vegetation management activities such 
as the removal of vegetation that may interfere with utility lines or 
lines-of-sight, herbicide application, brush clearing, mowing, cutting, 
and tree trimming around roads, railroads, transmission lines, and 
other rights-of-way. Consequently, employers seeking temporary foreign 
workers for occupations involving these activities will have to file 
under the H-2B program and meet all applicable program requirements.
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    \16\ The definition of reforestation activities in the proposed 
rule excludes right-of-way vegetation management because this work 
does not involve the handling or planting of trees or other forestry 
products as an agricultural or horticultural commodity. Although 
right-of-way vegetation management involves similar activities as 
performed in reforestation (i.e., brush clearing and tree trimming), 
the result of these activities is the destruction of vegetation, not 
cultivation. Right-of-way vegetation management therefore is more 
akin to landscaping, which is generally recognized as a non-
agricultural industry and would be inappropriate to include within 
the scope of the H-2A program. The Department has also previously 
opined that right-of-way vegetation management does not constitute 
agricultural employment as defined by the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA), thereby further 
distinguishing this industry from reforestation activities as 
defined here, which do constitute MSPA agricultural employment. See 
WHD Opinion Letter, June 11, 2002.
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    The proposed rule defines pine straw activities as ``[o]perations 
associated with clearing the ground of underlying vegetation, pine 
cones, and debris; and raking, lifting, gathering, harvesting, baling, 
grading, and loading of pine straw for transport from pine forests, 
woodlands, pine stands, or plantations.''
    As required by the INA, the definition of agricultural labor or 
services encompasses certain statutory

[[Page 36177]]

definitions,\17\ as well as occupations defined as such by the 
Secretary in regulations. Prior to the 2008 Final Rule,\18\ the 
Secretary did not use his authority to expand the scope of agricultural 
labor or services beyond those activities that the statute required to 
be included, none of which normally included reforestation or pine 
straw activities. The 2008 Final Rule expanded the definition of 
agricultural labor or services to include logging employment,\19\ which 
the current regulation maintained and further clarified. See 2010 Final 
Rule, 75 FR 6884, 6981. Although reforestation and pine straw 
activities are generally recognized as sub-industries of forestry, they 
do not generally meet the definition of logging employment and 
therefore were excluded from the definition of agricultural labor or 
services.
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    \17\ Specifically, section 101(a)(15)(H)(ii)(a) of the INA, 8 
U.S.C. 1101(a)(15)(H)(ii)(a), identifies that, in addition to 
industries defined as such by the Secretary, the definition of 
agricultural labor or services includes ``agricultural labor defined 
in section 3121(g) of the Internal Revenue Code of 1986, agriculture 
as defined in section 3(f) of the Fair Labor Standards Act of 1938, 
as amended (FLSA), 29 U.S.C. 203(f), and the pressing of apples for 
cider on a farm.''
    \18\ See Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008) (2008 
Final Rule).
    \19\ See Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008) (2008 
Final Rule).
---------------------------------------------------------------------------

    Consequently, nonimmigrant workers engaged in reforestation and 
pine straw activities as defined in the proposed rule historically have 
been and are currently admitted under the H-2B program. However, these 
activities, as defined in the proposed rule, share fundamental 
similarities with traditional agricultural industries. Specifically, 
both reforestation and pine straw activities can involve the handling 
or planting of agricultural and horticultural commodities in their 
unmanufactured state and include tasks that are substantially similar 
to traditional agriculture, such as planting, weed control, herbicide 
application, and other unskilled tasks related to preparing the site 
and cultivating the soil. See 2008 Final Rule, 73 FR 77110, 77118. 
Additionally, the working conditions have similar characteristics to 
those encountered in agricultural industries; reforestation activities 
are commonly performed by migrant crews and overseen by labor 
contractors, occur in remote locations, and are frequently paid on a 
piece rate basis.\20\ Due to these similarities, work in both the 
reforestation and pine straw industries, as defined in this proposed 
rule, often meets the definition of agricultural employment under the 
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) \21\ and 
of agricultural employers under the Occupational Safety and Health 
(OSH) Act's field sanitation standards.
---------------------------------------------------------------------------

    \20\ For further analysis of the similarities between 
reforestation activities and traditional agricultural crews, see 
Proposed Rule, Temporary Agricultural Employment of H-2A Aliens in 
the United States, 74 FR 45906, 45910-11 (Sept. 4, 2009) (2009 
NPRM).
    \21\ See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 
1163, 1170-72 (11th Cir. 2003); Bresgal v. Brock, 843 F.2d 1163, 
1171-72 (9th Cir. 1987); Davis Forestry Corp. v. Smith, 707 F.2d 
1325, 1328 n.3 (11th Cir. 1983).
---------------------------------------------------------------------------

    In past rulemakings, these fundamental similarities prompted the 
Department to consider similar proposals regarding the inclusion of 
reforestation and pine straw activities within the scope of the H-2A 
program. In the 2008 NPRM, the Department sought comments regarding 
other industries for possible inclusion in the definition of 
agricultural labor and services.\22\ In response, some representatives 
from the reforestation industry suggested that reforestation activities 
be included. In the 2008 Final Rule, the Department acknowledged the 
validity of these comments, but wanted input from a more representative 
sample of the affected industry.\23\ In the 2009 NPRM, the Department 
proposed the inclusion of reforestation and pine straw activities 
within the definition of agricultural labor or services. 74 FR 45906, 
45910-11. The Department, however, removed this provision in the 2010 
Final Rule in response to comments that opposed the inclusion of 
reforestation. Only one comment specifically addressed pine straw 
activities. 75 FR 6884, 6889.
---------------------------------------------------------------------------

    \22\ See Proposed Rule, Temporary Agricultural Employment of H-
2A Aliens in the United States; Modernizing the Labor Certification 
Process and Enforcement, 73 FR 8538, 8555 (Feb. 13, 2008) (2008 
NPRM).
    \23\ ``The comments from the reforestation industry, while 
thoughtful, represented the input of only two individual employers 
and a single employer association who do not necessarily provide a 
representative sample of the entire reforestation industry. The 
department is reluctant to overturn the regulatory practices of 
several decades and impose the significant obligations of an H-2A 
employer without significant input from that industry. While the 
Department is willing to further explore whether to include the 
reforestation industry in the definition of agriculture, it does not 
believe a decision to do so is warranted at this time.'' 2008 Final 
Rule, 73 FR 77110, 77118.
---------------------------------------------------------------------------

    The Department, however, believes that many of the comments 
received in response to the 2009 NPRM are no longer applicable in the 
current regulatory environment. Specifically, some commenters expressed 
concern about the additional costs and regulatory burdens that would be 
imposed by participation in the H-2A program instead of the H-2B 
program. 2010 Final Rule, 75 FR 6884, 6889. However, this is no longer 
the case as the protections that currently apply to H-2A workers are 
generally comparable to the protections afforded to H-2B workers in the 
reforestation and pine straw industries.\24\ For example, the 
employer's obligation to pay or reimburse the worker for inbound and 
outbound transportation to and from the place of employment is similar 
under both H-2A and H-2B programs.\25\ Likewise, among other 
similarities, both programs include similar recordkeeping and 
disclosure requirements, and require the employer to provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.\26\
---------------------------------------------------------------------------

    \24\ See Interim Final Rule, Temporary Non-Agricultural 
Employment of H-2B Aliens in the United States, 80 FR 24041 (Apr. 
29, 2015).
    \25\ See 20 CFR 655.122(h)(1) and (2) for H-2A program 
requirements and 20 CFR 655.20(j)(1)(i) and (ii) for H-2B program 
requirements regarding inbound and outbound transportation.
    \26\ Compare 20 CFR 655.122 and 20 CFR 655.20.
---------------------------------------------------------------------------

    There are certain important differences, however, between the 
programs. For example, while an itinerant H-2B employer must provide 
housing at no cost to the workers (as is required of all H-2A 
employers), the H-2A program further requires that all employer-
provided housing be inspected and certified, and that rental and/or 
public accommodations meet certain local, State, or Federal standards. 
See 20 CFR 655.122(d). In addition, the H-2A corresponding employment 
and three-fourths guarantee requirements differ slightly from these 
same requirements under the H-2B program.\27\ Moreover, the time period 
during which an employer must recruit and hire U.S. workers differs 
between the H-2A and the H-2B programs.\28\ Similarly, employers in the 
reforestation and pine straw industries may qualify as H-2ALCs as 
defined in Sec.  655.103 and, therefore, would be subject to the 
requirements found in Sec.  655.132, including the requirement to

[[Page 36178]]

obtain a surety bond.\29\ Reforestation and pine straw employers would 
be required to become familiar, and comply, with these differences in 
program requirements, among others, to ensure compliance with the H-2A 
program under the proposed rule. Despite these differences, the 
Department believes that transitioning these industries from the H-2B 
to the H-2A program should not represent a significant burden for 
employers, given the overall similarities between the programs and that 
(as discussed above) work in both the reforestation and pine straw 
industries, as defined in the proposed rule, often meets the definition 
of agricultural employment under the MSPA.
---------------------------------------------------------------------------

    \27\ See 20 CFR 655.103 and 655.122(i) for H-2A program 
requirements and 20 CFR 655.5 and 655.20(f) for H-2B program 
requirements.
    \28\ See 20 CFR 655.135(d) for H-2A program requirements and 20 
CFR 655.40(c) for H-2B program requirements.
    \29\ Additional filing requirements for H-2ALCs include a 
detailed itinerary of worksites, a copy of the MSPA Farm Labor 
Contractor Certificate of Registration (if required), copies of 
fully executed work contracts with each fixed-site agricultural 
business, and specific details and proof pertaining to worker 
housing and transportation. See 20 CFR 655.132.
---------------------------------------------------------------------------

c. Paragraph (d), Definition of a Temporary or Seasonal Nature
    The Department seeks comment on the possibility of moving the 
adjudication of an employer's temporary or seasonal need either 
exclusively to DHS or exclusively to DOL. It is an administration goal 
to eliminate duplication wherever feasible and this potential change 
may or may not streamline the adjudications of temporary or seasonal 
need for employers. Section 101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C. 
1101(a)(15)(H)(ii)(a), requires that only ``agricultural labor or 
services . . . of a temporary or seasonal nature'' may be performed 
under the H-2A visa category. Currently, the Department evaluates an 
employer's temporary or seasonal need in the first instance, using the 
standards set forth in Sec.  655.103(d), which provides that 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.
    DHS regulations provide that the Department's finding that 
employment is of a temporary or seasonal nature as ``normally 
sufficient'' for the purpose of an H-2A Petition, but also state that 
notwithstanding this finding, DHS adjudicators will not find employment 
to be temporary or seasonal in certain situations, such as ``where an 
application for permanent labor certification has been filed for the 
same alien, or for another alien to be employed in the same position, 
by the same employer or by its parent, subsidiary or affiliate,'' or 
``where there is substantial evidence that the employment is not 
temporary or seasonal.'' 8 CFR 214.2(h)(5)(iv)(B). In making the latter 
determination, DHS uses the same definitions of temporary and seasonal 
as the Department. Compare 20 CFR 655.103(d) with 8 CFR 
214.2(h)(5)(iv)(A).
    Under the current process, the Department and DHS use separate and 
distinct experience to adjudicate temporary or seasonal need in the H-
2A program. The Department has developed expertise and a process to 
which H-2A employers have become accustomed. DHS has historically 
adjudicated this need as part of its review of an H-2A visa petition, 
and it may have access to independent documentation unavailable to the 
Department that allows it to assess whether an employer has a temporary 
or seasonal need.
    The Department contemplates that if either the Department or DHS 
became the sole arbiter of temporary or seasonal need for all H-2A 
employers, the Department and DHS would take actions, including 
delegation of authorities as the final arbiter of temporary or seasonal 
need and amendment of regulations, as needed, to effectuate this 
change. Accordingly, the Department seeks comment on whether there are 
benefits or concerns if either the Department exclusively or DHS 
exclusively became the sole arbiter of temporary or seasonal need.

B. Prefiling Procedures

1. Section 655.120, Offered Wage Rate
    Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an 
H-2A worker is admissible only if the Secretary determines that ``there 
are not sufficient workers who are able, willing, and qualified, and 
who will be available at the time and place needed, to perform the 
labor or services involved in the petition, and the employment of the 
alien in such labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly 
employed.'' In 20 CFR 655.120(a), the Department currently meets this 
statutory requirement, in part, by requiring an employer to offer, 
advertise in its recruitment, and pay a wage that is the highest of the 
AEWR, the prevailing wage, the agreed-upon collective bargaining wage, 
the Federal minimum wage, or the State minimum wage. As discussed 
below, the Department proposes to maintain this wage-setting structure 
with only minor revisions and proposes to modify the methodologies by 
which the Department establishes the AEWRs and prevailing wages.
    Specifically, the Department proposes to establish AEWRs for each 
agricultural occupation, as identified by the FLS and the OES survey, 
so that each AEWR is based on data more specific to the agricultural 
occupation of workers in the United States similarly employed and, as a 
result, better protects against adverse effect on the wages of workers 
in the United States similarly employed. In addition, the Department 
proposes to modernize the methodology used by the SWAs to conduct 
prevailing wage surveys. Finally, the proposed rule sets requirements 
for updates to wage rates during the work contract and for wage 
assignments and appeals of those assignments. Currently DOL funds the 
NASS Farm Labor Survey. USDA is committed to this survey and including 
$5 million in the President's budget for its modification and expansion 
to collect more granular data. This expansion will assist in providing 
the SOC level data DOL is seeking to best capture wage rates from 
farmerworkers across the country.
    The Department currently sets the AEWR at the gross hourly rate for 
field and livestock workers (combined) from the FLS conducted by the 
USDA's NASS for each State or region. This produces a single AEWR for 
all agricultural workers in a given State or region, so that 
supervisors, agricultural inspectors, graders and sorters of animal 
products, agricultural equipment operators, construction laborers, and 
crop laborers are all assigned the same AEWR.
    The Department is concerned that the current AEWR methodology may 
have an adverse effect on the wages of workers in higher-paid 
agricultural occupations, such as construction laborers and supervisors 
of farmworkers on farms or ranches, whose wages may be inappropriately 
lowered by an AEWR established from the wages of field and livestock 
workers (combined) because this is an occupational category from the 
FLS that does not include construction laborers or supervisors of 
farmworkers, among other occupations. In addition, the use of 
generalized data for other agricultural occupations could produce a 
wage rate that is not sufficiently tailored to the wage necessary to 
protect against adverse effect on workers in the United States 
similarly employed.

[[Page 36179]]

    Accordingly, the Department proposes to revise its methodology so 
that the AEWR for a particular agricultural occupation will be based on 
the annual average hourly gross wage for that agricultural occupation 
in the State or region reported by the FLS when the FLS is able to 
report such a wage.\30\ If the FLS does not report a wage for an 
agricultural occupation in a State or region, the Department proposes 
to set the AEWR at the statewide annual average hourly wage for the SOC 
from the OES survey conducted by BLS. If both the FLS cannot produce an 
annual average hourly gross wage for that agricultural occupation in 
the State or region and the OES cannot produce a statewide annual 
average hourly wage for the SOC, then the Department proposes to set 
the AEWR based on the national wage for the occupational classification 
from these sources.\31\ This change to an occupation-based wage is 
intended to produce more tailored AEWRs that better protect against 
adverse effect on workers in the United States similarly employed than 
the Department's current regulation.
---------------------------------------------------------------------------

    \30\ The Department proposes to remove the word ``weighted'' 
from the description of the FLS wage rate from the current 
regulation. This proposed change has no substantive effect. Both the 
OES and FLS apply weights in determining the average wage in 
accordance with accepted statistical principals, and the 
Department's other regulations which refer to OES-based wage rates 
do not use the term weighted. Therefore, for consistency, the 
Department proposes to remove the word ``weighted'' from the H-2A 
regulation governing the AEWR methodology. The Department also 
proposes to add the term ``gross'' after the term ``hourly'' in 
describing the wage rate from the FLS because, as discussed further 
below, USDA is considering making changes to its survey instrument 
to produce a wage that excludes certain types of incentive pay to 
report a ``base'' wage separate from the currently reported gross 
hourly wage. If the Department elects to use this new base wage as a 
source for the AEWR, the Department would first engage in notice-
and-comment rulemaking to adopt that change, consistent with APA 
requirements. Until that time, the Department proposes to continue 
to use the ``gross'' hourly wage reported, consistent with the 
current regulation.
    \31\ Using a national wage when a State wage cannot be produced 
is consistent with the OES reporting methodology.
---------------------------------------------------------------------------

    The Department also proposes to modernize the methodology used by 
the SWAs to conduct prevailing wage surveys, which applies to both H-2A 
and other job orders that use the Wagner-Peyser Act agricultural 
recruitment system. The Department currently relies on Handbook 385, 
which pre-dates the creation of the H-2A program and was last updated 
in 1981, to set the standards that govern the prevailing wage surveys 
that the SWAs conduct to establish prevailing wage rates for all 
agricultural job orders. Many of these survey standards, such as a 
requirement for in-person interviews, are inconsistent with modern 
survey methods and the level of appropriated funding at the State and 
Federal levels. Due to the difficulty of implementing these resource-
intensive standards, the SWAs are often required to report ``no 
finding'' from the prevailing wage surveys that they conduct. As a 
result, the current survey standards are not only resource-intensive 
but also fail to meet the Department's aim of producing reliable 
prevailing wage rates. Accordingly, the Department proposes to 
modernize the prevailing wage standards as set out in proposed Sec.  
655.120(c) to: (1) Establish reliable and accurate prevailing wage 
rates for employers and workers; and (2) allow the SWAs and other State 
agencies to conduct surveys using standards that are more realistic.
a. The Department's Proposal Maintains the Requirement That the Offered 
Wage Rate Must Be the Highest of Applicable Wage Sources
    The Department proposes to continue to protect against adverse 
effect on the wages of workers in the United States similarly employed 
by maintaining the current requirement in Sec.  655.120(a) that an 
employer must offer, advertise in its recruitment, and pay a wage that 
is the highest of the AEWR, the prevailing wage, the agreed-upon 
collective bargaining wage, the Federal minimum wage, or the State 
minimum wage, unless a special procedure wage rate applies, with only 
three minor changes.
    First, the Department proposes to remove the exception in the 
current regulation for separate wage rates set by ``special 
procedures'' (i.e., sub-regulatory variances from the regulation). The 
Department proposes to remove this exception because the only 
occupation that has a different wage rate structure is the herding and 
production of livestock on the range, and the wage methodology for that 
occupation is governed by Sec.  655.211 and is no longer set through a 
sub-regulatory ``special procedure.'' In addition, as discussed above, 
the Department proposes to remove the authority in Sec.  655.102 to 
establish, continue, revise, or revoke special procedures for H-2A 
occupations. Accordingly, the Department proposes to replace the 
reference to ``special procedures'' in the current regulation with a 
reference to the regulatory provisions covering workers primarily 
engaged in herding and production of livestock on the range as the only 
exception from the wage methodology set forth in this proposed rule.
    Second, the Department proposes to remove the current reference to 
``the prevailing hourly wage or piece rate in 20 CFR 655.120(a) and 
(b).'' \32\ Instead, the Department proposes to refer only to the 
``prevailing wage'' or ``prevailing wage rate,'' except where a given 
provision specifically applies only to prevailing piece rates. The 
Department proposes this change because the Department has issued 
prevailing wage rates that are not in the form of an hourly or piece 
rate wage, including monthly prevailing wage rates.
---------------------------------------------------------------------------

    \32\ The Department also proposes to make corresponding changes 
throughout the regulation.
---------------------------------------------------------------------------

    Third, the Department proposes to clarify that the requirement to 
offer and pay the prevailing wage applies only ``if the OFLC 
Administrator has approved a prevailing wage survey for the applicable 
crop activity or agricultural activity meeting the requirements of 
paragraph (c)'' of Sec.  655.120.\33\ This revision is intended to 
clarify that the Department is not obligated to establish a prevailing 
wage separate from the AEWR for every occupation and agricultural 
activity in every State. As discussed further below, the Department 
meets its obligation to protect against adverse effect on workers in 
the United States similarly employed primarily by requiring employers 
to offer, advertise, and pay the AEWR, which under the current wage 
methodology is the required wage rate in approximately 92 percent of H-
2A applications based on a review of OFLC certification data. In 
addition, as the Department has previously acknowledged, the AEWR is 
actually a type of prevailing wage rate because it is the wage rate 
that is determined from a survey of actual wages paid by employers. 
Accordingly, the Department is already establishing a prevailing wage 
in the form of the AEWRs for all agricultural occupations. 2008 Final 
Rule, 73 FR 77110, 77167.
---------------------------------------------------------------------------

    \33\ The Department also proposes a corresponding change to 20 
CFR 655.122(l).
---------------------------------------------------------------------------

    Nevertheless, the Department recognizes that State-conducted 
prevailing wage rates can serve as an important additional protection 
for U.S. workers in crop activities and agricultural activities with 
piece rates or, in rare instances, higher hourly rates of pay. 
Accordingly, the Department proposes to make the changes discussed 
below to modernize the prevailing wage methodology and empower States 
to produce a greater number of reliable prevailing wage surveys 
results. However, the Department proposes this new text to clarify that 
the Department is not required to issue prevailing wage rates for all 
crop activities and

[[Page 36180]]

agricultural activities in every State as such a requirement is both 
inconsistent with available Federal and State resources and unnecessary 
to prevent adverse effect. If finalized as proposed, the Department 
will work with the States through their annual grant plans to focus 
prevailing wage surveys on those crop activities and agricultural 
activities where prevailing wage surveys are most useful to protect the 
wages of U.S. workers, including for activities for which employers 
commonly pay based on a piece rate and when State agencies know based 
on past experience that prevailing wage surveys commonly result in 
hourly wages higher than the AEWR. The Department invites comments on 
other circumstances in which prevailing wage rates can be most useful 
as a tool to protect the wages of U.S. workers.
b. The Department Proposes To Base the AEWR on Occupation-Specific Data 
That Better Reflects the Wages of Workers in the United States 
Similarly Employed
    The Department is retaining the requirement in the current 
regulation that employers in the H-2A program offer, advertise, and pay 
at least the AEWR if it is the highest applicable wage. Section 
218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that DHS 
cannot approve an H-2A Petition unless the Department certifies 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.'' Requiring employers to pay the AEWR 
when it is the highest applicable wage is the primary way the 
Department meets its statutory obligation to certify no adverse effect 
on workers in the United States similarly employed.
    As the Department has explained in previous regulations, the AEWR 
``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.'' 2010 Final Rule, 75 FR 6884, 6891. The 
use of an AEWR, separate from a State-conduced prevailing wage for a 
particular crop activity or agricultural activity, ``is most relevant 
in cases in which the local prevailing wage is lower than the wage 
considered over a larger geographic area (within which the movement of 
domestic labor is feasible) or over a broader occupation/crop/activity 
definition (within which reasonably ready transfer of skills is 
feasible).'' Id. at 6892-6893.
    The H-2A program is unique among the temporary nonimmigrant 
programs administered by the Department because the H-2A program is not 
subject to a statutory cap. Consequently, concerns about wage 
depression from the importation of foreign workers are particularly 
acute because access to an unlimited number of foreign workers in a 
particular labor market and crop activity or agricultural activity 
could cause the prevailing wage of workers in the United States 
similarly employed to stagnate. In this context, the AEWR acts as ``a 
prevailing wage concept defined over a broader geographic or 
occupational field.'' 2010 Final Rule, 75 FR 6884, 6892. In other 
words, because the AEWR is generally based on data collected in a 
multi-State agricultural region and an occupation broader than a 
particular crop activity or agricultural activity, while the prevailing 
wage is commonly determined based on a particular crop activity or 
agricultural activity at the State or sub-State level, the AEWR 
protects against localized wage depression that might occur in 
prevailing wage rates. For these reasons, the Department proposes to 
continue to use an AEWR in the H-2A program and to require employers to 
offer, advertise, and pay at least the AEWR if it is the highest 
applicable wage.
i. The Department Proposes To Continue to the Use the FLS To Establish 
the AEWR in Most Geographic Areas for Most H-2A Workers
    The Department proposes to use the FLS conducted by USDA's NASS to 
set the AEWR for the overwhelming majority of H-2A workers. The FLS is 
the Department's preferred wage source for establishing the AEWR 
because it is the only comprehensive wage survey that collects data 
from farm and ranch employers. The Department proposes to use the OES 
survey conducted by BLS to set the AEWR only for occupations and 
locations where the Department cannot establish an AEWR based on the 
FLS because the FLS does not report a wage. Because the OES survey is a 
reliable and comprehensive wage survey and is widely used in the 
Department's other foreign labor certification programs, the OES survey 
provides useful data for setting the AEWR in the limited circumstances 
where the FLS may not report a wage. The use of the FLS survey, and the 
OES survey as needed, will allow the Department to establish AEWRs 
based on occupational classification rather than based on all field and 
livestock workers (combined) and will better protect against adverse 
effects on similarly employed U.S. workers, as discussed below.
    As the Department has stated in prior rulemakings, the FLS and the 
OES survey are the two ``leading candidates'' that the Department could 
use to establish the AEWR. 2009 NPRM, 74 FR 45906, 45912. The 
Department has always used the FLS to set the H-2A AEWR, with the 
exception of a brief period under the 2008 Final Rule. Currently, the 
Department uses the average gross hourly wage rate for the category 
field and livestock workers (combined) from the FLS as the AEWR for 
each State in the multi-State or single-State crop region to which the 
State belongs.
    By contrast, under the 2008 Final Rule, the Department set the AEWR 
based on the OES survey. Under that rule, the Department set the AEWR 
using the SOC taxonomy and set a different AEWR for each SOC and 
localized area of intended employment. The Department used four wage 
levels intended to reflect education and experience under the 2008 
Final Rule.
    The FLS uses the following methodology: NASS collects wage and 
employment data for four reference weeks, one each quarter, from all 
farms with $1,000 or more in annual sales revenue for all in all States 
except for Alaska. The total sample of the FLS is approximately 10,000 
to 13,000 farms and ranches, and data is reported for the United States 
as a whole and for each of 15 multi-State labor regions and the 3 
single States of Florida, California, and Hawaii.\34\
---------------------------------------------------------------------------

    \34\ Guide to NASS Surveys: Farm Labor, available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/index.php 
(last modified May 4, 2018).

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

[[Page 36181]]

    The USDA regions are as follows:

                          Table 1--USDA Regions
 
 
 
Appalachian I..........................  Virginia and North Carolina.
Appalachian II.........................  Kentucky, Tennessee, and West
                                          Virginia.
Cornbelt I.............................  Illinois, Indiana, and Ohio.
Cornbelt II............................  Iowa and Missouri.
Delta..................................  Arkansas, Louisiana, and
                                          Mississippi.
Lake...................................  Michigan, Minnesota, and
                                          Wisconsin.
Mountain I.............................  Idaho, Montana, and Wyoming.
Mountain II............................  Colorado, Utah, and Nevada.
Mountain III...........................  Arizona and New Mexico.
Northeast I............................  Connecticut, Maine,
                                          Massachusetts, New Hampshire,
                                          New York, Rhode Island, and
                                          Vermont.
Northeast II...........................  Delaware, Maryland, New Jersey,
                                          and Pennsylvania.
Northern Plains........................  Kansas, Nebraska, North Dakota,
                                          and South Dakota.
Pacific................................  Oregon and Washington.
Southeast..............................  Alabama, Georgia, and South
                                          Carolina.
Southern Plains........................  Oklahoma and Texas.
 

    Appendix A, Table 1 shows the AEWRs by region or State established 
by the Department for 2016 to 2018 based on FLS data for field and 
livestock workers (combined) under the current regulation.
    Most data for the FLS is collected by mail and computer-assisted 
phone interviews, with personal interviews used for some large 
operations and those with special handling arrangements. NASS reports 
FLS data semiannually based on four quarterly reference weeks; in 
November, NASS reports annual data. In California, NASS collects data 
in cooperation with the California Employment Development Department 
and reports the data monthly. The FLS generally has a response rate of 
greater than 50 percent. The FLS reports hourly wage rates based on 
employers' reports of gross wages paid and total hours worked for all 
hired workers during the survey reference week for each quarter it 
conducts the survey.
    Since 2014, the FLS has collected data by SOC--the same taxonomy 
that is used for the OES survey. It does not currently report wage data 
by SOC. Instead, the FLS aggregates and reports data in the major FLS 
occupational categories of field workers, livestock workers, field and 
livestock workers (combined), and all hired workers. In collaboration 
with the Department and the OMB, USDA established and implemented a 
crosswalk from the major FLS categories to the SOC categories.\35\ 
Within the major FLS field worker category is the SOC category 
Farmworkers and Laborers, Crop, Nursery and Greenhouse (SOC 45-2092). 
Within the FLS livestock worker category is the SOC category 
Farmworkers, Farm, Ranch, and Aquacultural Animals (SOC 45-2093). 
Agricultural Equipment Operators (SOC 45-2091), Packers and Packagers, 
Hand (SOC 53-7064), Graders and Sorters, Agricultural Products (SOC 45-
2041), and All Other Field Workers and All Other Livestock Workers (SOC 
45-2099) are assigned to either the livestock worker or field worker 
major category of the FLS depending upon the agricultural product. 
Although the FLS collects data on the wages of supervisors, the FLS has 
not been able to report a statistically valid wage result for the major 
FLS category of supervisors. As a result, the wages of supervisors are 
currently only reported in the all hired workers category and are not 
included in the field and livestock workers (combined) category that 
the Department uses to establish the AEWR. Included within the major 
FLS category of supervisors are Farmers, Ranchers, and Other 
Agricultural Managers (SOC 11-9013); and First Line Supervisors of Farm 
Workers (SOC 45-1011). Finally, the FLS collects data on ``other 
workers.'' The FLS has not been able to report a statistically valid 
wage result for this FLS category, and, as a result, wages for ``other 
workers'' are reported only in the all hired workers category and are 
not included in the wages reported in the field and livestock workers 
(combined) category. Included in the ``other workers'' category are 
Agricultural Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest 
Control Workers (37-2021), and any other agricultural worker not 
fitting into the categories above, including mechanics, shop workers, 
truck drivers, accountants, bookkeepers, and office workers who fall 
within a variety of SOCs and have a wide variety of job duties. 
Contract and custom workers are excluded from the FLS sample 
population.
---------------------------------------------------------------------------

    \35\ See Crosswalk from the National Agricultural Statistics 
Service (NASS) Farm Labor Survey (FLS) Occupations to the 2010 
Standard Occupational Classification (SOC) System, available at 
https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/Farm-Labor-Survey-(FLS)-to-SOC-Crosswalk.pdf.
---------------------------------------------------------------------------

    The OES survey is among the largest ongoing statistical survey 
programs of the Federal Government and produces wage estimates for over 
800 occupations. It is used as the primary wage source for all of the 
nonimmigrant and immigrant prevailing wage determinations issued by the 
Department, except for those in the H-2A program. The OES program 
surveys approximately 200,000 establishments every 6 months and over a 
3-year period collects the full sample of 1.2 million establishments, 
accounting for approximately 57 percent of employment in the United 
States.\36\ Every 6 months, the oldest data from the 3-year cycle is 
removed from the sample, and new data is added. The wages reported in 
the older data are adjusted by the ECI, which is a BLS index that 
measures the change in labor costs for businesses. The OES survey is 
primarily conducted by mail, with follow up by phone to non-respondents 
or if needed to clarify data.\37\ The OES average \38\ hourly wage 
reported includes all straight-time, gross pay, exclusive of premium 
pay, but including piece rate pay.
---------------------------------------------------------------------------

    \36\ See OES Frequently Asked Questions, available at https://www.bls.gov/oes/oes_ques.htm.
    \37\ Id.
    \38\ The OES uses the term ``mean.'' However, for purposes of 
this regulation the Department uses the term ``average'' because the 
two terms are synonymous, and the Department has traditionally used 
the term ``average'' in setting the AEWR from the FLS.
---------------------------------------------------------------------------

    The primary advantage of using a wage derived from the FLS is that 
the FLS surveys farm and ranch employers. The OES survey, on the other 
hand, surveys establishments that support farm production. While 
establishments

[[Page 36182]]

that support farm production participate in the H-2A program, they 
constitute a minority of agricultural labor or services, and so data 
reported by these establishments is generally useful for purposes of 
calculating the AEWR applicable to an agricultural occupation only in 
the limited circumstances where FLS data is unavailable for the 
occupation.\39\ Another positive feature of the FLS is that the 
statewide and regional wages issued provide protection against wage 
depression that is most likely to occur in particular local areas where 
there is a significant influx of foreign workers. The OES survey also 
produces statewide wage rates in addition to wage rates based on 
metropolitan statistical areas (MSAs).\40\ Similarly, both the FLS and 
the OES surveys report a wage that covers activities above a crop 
activity level, which, as discussed above, is where wage depression 
from an influx of foreign workers could be most acute.
---------------------------------------------------------------------------

    \39\ Indeed, BLS refers the public to USDA and NASS for 
statistics on U.S. agriculture employment and wages. See OES 
Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm.
    \40\ The Department uses MSA-based wage estimates from the OES 
survey to set prevailing wage rates for the H-2B program and used 
OES MSA-based wage rates to set AEWRs under the 2008 H-2A Rule.
---------------------------------------------------------------------------

    The Department favors the FLS as a source for the AEWR, and the 
Department proposes to use an occupation-based wage from that survey 
due to concerns that the current AEWR based solely on the field and 
livestock worker (combined) wage aggregates data at a level that 
combines wages of agricultural occupations that are dissimilar and that 
this may have the effect of inappropriately raising wages for lower-
paid agricultural jobs while depressing wages in higher-paid 
occupations. For example, a worker performing construction labor on a 
farm under the H-2A program in Ohio must currently be paid at least the 
AEWR of $12.93 per hour because the worker's wage is determined based 
on the field and livestock (combined) wage, which contains many 
dissimilar jobs, including agricultural equipment operators; graders 
and sorters of agricultural products; hand packers and packagers of 
agricultural products; and farmworkers who tend to farm, ranch, and 
aquacultural animals, as well as farmworkers who perform manual labor 
to harvest crop, nursery, and greenhouse products. This is the case 
even though the FLS sample does not include workers who perform 
contract work, and workers performing construction labor on farms are 
likely to be employed as contract workers. In contrast, if the same 
construction worker performed identical job duties at a location other 
than a farm and, therefore, fell under the H-2B program, the required 
prevailing wage rate based on the OES SOC would be approximately $20.27 
per hour.\41\ This aspect of the current methodology appears to cause 
an adverse effect on the wages of workers in the United States 
similarly employed, contrary to the Department's statutory mandate.
---------------------------------------------------------------------------

    \41\ This is the current statewide OES wage for the category of 
Construction Laborer, SOC 47-2061, in Ohio. Under the H-2B program, 
a local wage for that occupation would be used if available. As 
discussed below, the Department proposes to use the statewide OES 
mean hourly wage to establish the AEWR if the FLS cannot report a 
wage for the occupational classification in a given State or region.
---------------------------------------------------------------------------

    An AEWR based on an occupational classification that accounts for 
significantly different job duties but remains broader than a 
particular crop activity or agricultural activity in a local area may 
better protect U.S. workers.\42\ Accordingly, the Department proposes 
to amend its current AEWR methodology to issue an occupation-specific 
AEWR. The Department proposes to establish the AEWR using the FLS where 
the FLS reports a statewide or regional annual average gross hourly 
wage result for a particular agricultural occupation.
---------------------------------------------------------------------------

    \42\ For example, an AEWR under this proposal would be 
established for SOC 45-2092 (Farmworkers and Laborers, Crop, 
Nursery, and Greenhouse), while particular crop activities within 
that category might include the hand harvesting of strawberries or 
onion packing shed duties.
---------------------------------------------------------------------------

    Based on data collected by NASS from 2015 to 2017, the Department 
expects it will be able to establish AEWRs for most States and regions 
in SOCs 45-2092 (Farmworkers and Laborers, Crop, Nursery, and 
Greenhouse) and 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural 
Animals). These occupations would represent approximately 89 percent of 
workers in the H-2A program if Forest and Conservation Workers (SOC 45-
4011) are added to the H-2A program as proposed, and so the FLS will 
continue to be the basis for the AEWRs covering the vast majority of H-
2A workers. In addition, the Department anticipates that it will be 
able to use the FLS to establish AEWRs for some States and regions for 
SOCs 45-2041 (Graders and Sorters, Agricultural Products), 45-2091 
(Agricultural Equipment Operators), 45-2099 (Agricultural Workers, All 
Other),\43\ 53-7064 (Packers and Packagers, Hand), 11-9013 (Farmers, 
Ranchers and Other Agricultural Managers), and 45-1011 (First Line 
Supervisors of Farm Workers) based on NASS data. The FLS will never be 
able to report a statewide or regional wage for Alaska because the 
survey is not conducted there.
---------------------------------------------------------------------------

    \43\ The Department would not use the ``all other'' category 
from the FLS to set a wage if a more specific SOC applies. For 
example, under this proposal, the AEWRs for Forest and Conservation 
Workers (SOC 45-4011), Logging Workers (SOC 45-4020), and 
Construction Laborers (SOC 47-2061) would all be based on those 
specific SOCs, not the ``all other'' category.
---------------------------------------------------------------------------

    In a circumstance where the FLS cannot produce a wage for the 
occupational classification, the Department proposes to establish the 
AEWRs for all SOCs and States or regions at the statewide average 
hourly wage for that occupation using data from the OES survey, as 
discussed below, unless such a wage is not reported by BLS. Under this 
methodology, the OES statewide average hourly wage would also be used 
to establish the AEWR if USDA ceased to conduct the FLS for budgetary 
or other reasons.
    To the extent the FLS may not consistently report data in each SOC 
for a State or region, the wage source used to establish the AEWR may 
vary from year to year, which could result in a much higher degree of 
variation in the AEWR applicable to an occupation from year to year 
than exists under the current methodology. The Department requests 
comments on whether there are alternate methods or sources that it 
should use to set the AEWR in the event that the FLS does not produce a 
wage in an SOC and State or region, including, but not limited to: (1) 
Whether the Department should use the separate field worker and 
livestock worker classifications from the FLS to set AEWRs for workers 
in occupations included in those classifications if a wage based on the 
SOC from the FLS is not available; (2) whether the Department should 
index past wage rates for a given SOC using the Consumer Price Index 
(CPI) or Employment Cost Index (ECI) if a wage cannot be reported for 
an SOC in a State or region in a given year based on the FLS but a wage 
was available in a previous year; (3) whether the Department should use 
the FLS national wage rate to set the AEWR for an SOC if the FLS cannot 
produce a wage at the State or regional level; and (4) whether the 
Department should consider any other methodology that would promote 
consistency and reliability in wage rates from year to year.
    As an alternative, the Department invites comments on whether to 
set AEWRs based on the current FLS occupational classifications of 
field

[[Page 36183]]

workers and livestock workers for each State or region. Under this 
alternative, any occupational classifications not surveyed by NASS 
under either the field worker or livestock worker category would be 
assigned an AEWR based on the OES SOC. The disadvantage of this 
alternative is that it produces an AEWR at a broader occupational level 
than the SOC taxonomy. As a result, this option would provide a single 
AEWR covering a broader group of occupations, such as Graders and 
Sorters, Agricultural Products (SOC 45-2041) and Agricultural Equipment 
Operators (SOC 45-2091), in which workers perform dissimilar job 
duties. In contrast, the advantage of this alternative is that the FLS 
is currently able to produce a statewide or regional wage for both the 
field worker and livestock worker categories in every year, except in 
Alaska. As a result, this alternative would significantly reduce the 
likelihood that wage sources will change from year to year. For the 
same reasons, this methodology would also likely result in the 
Department using the FLS to set wages more often if the Department were 
to adopt a methodology that set AEWRs based on the SOC. As discussed 
above, the Department generally prefers to establish AEWRs based on the 
FLS rather than the OES survey because the FLS surveys farmers and 
ranchers, whereas the OES surveys establishments that support farm 
production, as discussed below.
    In proposing to continue use of the FLS to set the AEWR for most H-
2A workers, the Department notes that it does not have direct control 
over the FLS, and that USDA could elect to terminate the survey at some 
point. Indeed, USDA did briefly terminate the survey in 2007 due to 
budget constraints. The Department has addressed such a possibility in 
this proposal by providing that the OES statewide average hourly wage 
for the SOC will be used if the FLS does not produce an annual gross 
hourly wage for the occupational classification for a State or region.
    The Department understands that USDA may make future adjustments to 
the FLS methodology, including that USDA may exclude certain types of 
incentive pay so that a base wage can be separately reported from the 
hourly wage rate. However, even after these modifications are complete, 
USDA also plans to continue to release data using its current methods. 
Under this proposed rule, the Department would continue to use USDA's 
existing methodology to set AEWRs based on SOC codes as discussed 
above. If the Department decides to later adjust the AEWR calculation 
based on methodological changes by USDA, the Department will provide 
the public with notice and the opportunity to provide comment before 
adopting any changes.
ii. If the OES Produces a Statewide Average Hourly Wage for the SOC, 
the Department Proposes To Use That Wage To Set the AEWR for Any 
Occupation Classification Where the FLS Does Not Report a Wage for the 
Occupational Classification and State or Region
    The OES survey can be very useful in limited circumstances where 
the FLS cannot produce statistically reliable data for an occupation 
and state or region, and the OES survey is able to do so. The 
Department expects that the OES will be particularly useful in those 
occupations that constitute a small percentage of agricultural labor or 
services and a larger subset of non-agricultural labor or services 
(e.g., construction workers), or where work is generally not performed 
on farms, so wages are not generally sampled by the FLS (e.g., logging 
occupations). For these types of occupations, the FLS cannot produce a 
wage for the applicable SOCs. Similarly, the OES will be useful for the 
proposed addition of forest and conservation workers to the H-2A 
program. Like logging, forest and conservation work is not generally 
performed on farms or ranches, so it is generally excluded from the 
FLS, and the FLS cannot produce a wage for the applicable SOC. 
Accordingly, in the Department's view, the OES survey provides the most 
accurate source for determining the AEWR for these occupations. Indeed, 
because the OES survey is the primary wage source in the H-2B program, 
employers bringing in forest and conservation workers for temporary 
work are already required to pay at least an average hourly wage based 
on the OES survey.
    Accordingly, the Department proposes to use the statewide OES 
average hourly wage for the SOC where the FLS cannot produce a wage for 
the agricultural occupation and State or region. In the H-2B program, 
the Department generally establishes prevailing wages based on the OES 
survey for the SOC in a metropolitan or non-metropolitan area. For the 
H-2A program, however, the Department proposes to use a statewide wage 
both to more closely align with the geographic areas from the FLS and 
to protect against wage depression from a large influx of nonimmigrant 
workers that is most likely to occur at the local level. As explained 
in prior rulemakings, the concern about localized wage depression is 
more pronounced in the H-2A program than in the H-2B program due to 
both the vulnerable nature of agricultural workers and the fact that 
the H-2A program is not subject to a statutory cap, which allows an 
unlimited number of nonimmigrant workers to enter a given local 
area.\44\
---------------------------------------------------------------------------

    \44\ See, e.g., 2010 Final Rule, 75 FR 6884, 6895.
---------------------------------------------------------------------------

    When the OES survey is used to establish the AEWR, the Department 
proposes to use the average hourly wage for the SOC, which is the 
methodology used under the H-2B program.\45\ The average is proposed 
rather than the four-tiered wage level structure that the Department 
used to set the AEWR under the 2008 H-2A Final Rule. As explained in 
the preamble to the Department's current H-2A regulation: ``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 [imposed by a four tier 
system] do not accurately reflect meaningful differences in skills or 
job complexity.'' 2010 Final Rule, 75 FR 6884, 6900. As the Department 
further noted, ``[m]ost 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, skills peak quickly, rather than increasing with 
long-term experience.'' Id. To the extent that there are some 
agricultural activities that require a higher amount of expertise than 
others, such as agricultural inspectors or animal breeders, such 
differences are accounted for in the Department's proposal to issue 
AEWRs at the occupational classification level without regard to 
artificial ``tiers.''
---------------------------------------------------------------------------

    \45\ The H-2B regulation uses the term ``mean'' rather than 
``average,'' but the meaning is the same.
---------------------------------------------------------------------------

    In proposing to use the OES survey to establish the AEWR for a 
small percentage of H-2A workers, the Department acknowledges that the 
Department concluded in the 2010 Final Rule that use of the OES survey 
under the 2008 Final Rule depressed the wages of workers in the United 
States similarly employed. That finding does not apply to the current 
proposal for three primary reasons.
    First, the Department proposes to use the OES survey only when the 
FLS cannot produce a wage for an occupation at the State or regional 
level. As discussed above, using the generalized field and livestock 
workers

[[Page 36184]]

(combined) wage from the FLS to establish the AEWR may have a 
depressive effect on wages of workers in the United States similarly 
employed for some agricultural occupations. As a result, if the FLS 
cannot produce a State or regional wage for an agricultural occupation, 
it is the Department's preliminary view, for the reasons discussed 
above, that the statewide OES survey provides a more accurate and 
appropriate source for the AEWR. Second, much of the wage reduction 
under the 2008 Final Rule was due to the fact that the 2008 Final Rule 
used a four-tiered wage level system, in contrast to this NPRM's 
proposal to use the average. As the Department has noted, under the 
2008 Final Rule, ``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.'' 2010 Final Rule, 75 FR 6884, 6898. Third, 
the use of the statewide wage rather than the wage at the metropolitan 
or non-metropolitan area is intended to prevent the OES wage from 
reflecting any wage depression in a particular local geographic area. 
Accordingly, the proposal to use the OES survey in this manner does not 
raise the same concerns as the 2008 Final Rule did.
    The Department recognizes that the proposed methodology results in 
some AEWR increases and some AEWR decreases depending upon geographic 
location and agricultural occupation. Because any wage reductions are 
the result of the use more accurate occupational data, the reductions 
are consistent with the Department's obligation to protect against 
adverse effect on workers in the United States similarly employed. The 
use of more accurate occupational data means that lower AEWRs that 
better reflect the wage needed to protect against adverse effect for 
those agricultural occupations are generally offset by higher AEWRs in 
other occupations.
    Appendix A, Table 2 provides average hourly wages by SOC and State 
under the proposed rule. The estimates in Appendix A, Table 2 are based 
on historic data.
iii. The Department Proposes To Use National Occupational Data If 
Neither the OES Survey Nor the FLS Reports a State or Regional Wage for 
the Occupation
    In the rare event that both the FLS does not report an annual 
average hourly gross wage for the occupational classification in the 
State or region and the OES survey does not report a statewide annual 
average hourly wage for the SOC, the Department proposes to use 
national data for the occupation to set the wage for that geographic 
area. If both wage sources report a national wage rate for the 
occupational classification, the Department proposes to set the AEWR at 
the national annual average hourly gross wage for the occupational 
classification from the FLS because, for the reasons discussed above, 
the Department generally prefers to use the FLS, which is based on 
wages paid by farmers and ranchers. If the FLS does not report a 
national wage for the occupation, the Department proposes to use the 
national average hourly OES wage for that SOC and geographic area.
iv. The Department Requests Comments on All Aspects of Its Proposed 
Methodology for Establishing the AEWR
    The Department invites comments on all aspects of the proposed AEWR 
methodology. In particular, the Department is interested in comments on 
the use of the FLS and OES survey, the conditions under which each 
survey should be used to establish the AEWR, and the proposal to depart 
from relying on the field and livestock workers (combined) wage from 
the FLS to instead establish AEWRs based on occupational 
classifications. The Department also invites comments on any alternate 
wage sources the Department might use to establish the AEWRs in the H-
2A program.
c. The Department Proposes To Modernize the Methodology Used To 
Establish the Prevailing Wage Rate
i. The Current Prevailing Wage Methodology is Outdated and Does Not 
Meet the Policy Goal of Producing Reliable Prevailing Wage Rates
    Current 20 CFR 655.120(a) requires that an employer seeking a 
temporary agricultural labor certification to employ an H-2A worker 
must offer, advertise in its recruitment, and pay a wage that is at 
least the highest of the AEWR, the prevailing wage, the agreed-upon 
collective bargaining wage, the Federal minimum wage, or the State 
minimum wage.\46\ In addition, the Wagner-Peyser regulation at 20 CFR 
653.501(c)(2)(i) requires the SWA to ensure for all agricultural job 
orders, H-2A and non-H-2A, that ``wages . . . offered are not less than 
the prevailing wages . . . among similarly employed farmworkers in the 
area of intended employment or the applicable Federal or State minimum 
wage, whichever is higher.'' Currently, the SWAs are required to 
conduct prevailing wage surveys using standards set forth in Handbook 
385, which pre-dates the creation of the H-2A program and has not been 
updated since 1981. The Handbook is used for both H-2A and non-H-2A 
agricultural job orders. Notable aspects of the guidance are discussed 
below.
---------------------------------------------------------------------------

    \46\ Under the current regulations and survey methodology, the 
AEWR most often sets the minimum hourly requirement.
---------------------------------------------------------------------------

    Handbook 385 requires the SWAs to conduct prevailing wage surveys 
to determine the wage rates paid to domestic workers. Handbook 385 at 
I-116. These surveys are conducted based on ``crop activity,'' with 
``crop activity'' defined as follows:

the job actually being performed in a specific crop at time of 
survey. A single job title, such as `harvest', may apply to the 
entire crop activity. On the other hand, different stages of the 
harvest, such as `cotton, 1st pick, 2nd pick, and strip', may be 
involved; or, a different use of the commodity such as `tomatoes, 
fresh' or `tomatoes, canning.' In such cases, the important 
consideration is whether the work is different. . . . For the 
purposes of this report, each operation or job related to a specific 
crop activity for which a separate wage rate is paid should be 
identified and listed separately.

Handbook 385 at I-113. In addition, the Handbook establishes separate 
prevailing wage rates for in-State workers, interstate workers, and all 
workers. Handbook 385 at I-118. Generally, job orders placed in the 
interstate clearance system are required to use the highest of these 
three rates. Handbook 385 at I-118.
    Among the guidelines provided, the Handbook lists sample sizes that 
the SWA ``should'' follow, which vary depending upon the number of 
workers. Handbook 385 at I-114. The Handbook provides that for some 
crops with a small number of domestic workers, samples of the wages of 
all workers in the crop activity should be conducted, as follows:

 
                 Table 2--Sample Sizes From Handbook 385
------------------------------------------------------------------------
                                                            Sample size
     Number of workers in the crop activity in area         (percent of
                                                             workers)
------------------------------------------------------------------------
100-349.................................................             100
350-499.................................................              60
500-799.................................................              50
800-999.................................................              40
1000-1249...............................................              35
1250-1599...............................................              30
1600-2099...............................................              25
2100-2999...............................................              20
3000 or more............................................              15
------------------------------------------------------------------------


[[Page 36185]]

Handbook 385 at I-114. The Handbook does not provide any further 
information on whether the sample size guidelines are intended to be 
mandatory in all circumstances and, if the standards are not intended 
to be mandatory in all circumstances, what factors the Department must 
consider in determining whether to issue a prevailing wage if the 
sample size guidelines are not met. The Handbook further suggests that 
the State should conduct at least 1 survey per season in each of the 
following circumstances: (1) At least 100 workers were employed in the 
crop activity in the previous season or are expected to be employed in 
the current season; (2) regardless of the number of workers employed, 
foreign workers were employed in the previous season, or employers have 
requested or may be expected to request foreign workers in the current 
season, regardless of the number of workers involved; (3) the crop 
activity has an unusually complex wage structure; or (4) the crop or 
crop activity has been designated by the ETA national office as a major 
crop or crop activity. Handbook 385 at I-115. In addition, the Handbook 
recommends that surveys should normally be completed within 3 days. 
Handbook 385 at I-115.
    The Handbook provides that prevailing wages are produced based on a 
``40 percent rule'' and a ``51 percent rule.'' Handbook 385 at I-116-
17. Under the 40 percent rule, a single rate or schedule that 
``accounts for the wages paid to 40 percent or more of the domestic 
seasonal workers in a single crop activity is the prevailing rate.'' 
Handbook 385 at I-116. There are additional special rules if there is 
more than one rate or schedule accounting for 40 percent of the 
domestic seasonal workers. Handbook 385 at I-116. If no single rate or 
schedule accounts for 40 percent or more of the domestic workers, the 
prevailing rate is set at the 51 percentile. Handbook 385 at I-117. If 
there is more than one unit of payment, the SWA is instructed to 
determine which unit of payment is prevailing and base the prevailing 
wage finding on that unit of payment. Handbook 385 at I-117.
    Most burdensome, the Handbook methodology requires in-person 
interviews to conduct the prevailing wage survey. Specifically, the 
wage survey must include ``a substantial number of personal employer 
interviews,'' which can only be supplemented by telephone or mail 
contacts ``to a limited extent.'' Handbook 385 at I-116. Further, the 
Handbook requires that 10 percent of the workers included in the sample 
for the wage survey must be interviewed and suggests that the worker 
sample ``should be drawn from workers of as many as possible of the 
employers interviewed.'' Handbook 385 at I-116. Neither the FLS nor the 
OES survey requires in-person interviews of employers as the primary 
collection method. Both the FLS and OES survey rely solely on employer-
reported data and do not canvass workers directly.
    The methodology in the Handbook 385 is outdated and needs to be 
modernized in a manner that produces reliable and accurate prevailing 
wage rates, while still being manageable given the limited available 
resources at the State and Federal levels. The Handbook methodology 
dates from 1981, before the creation of the modern H-2A program. Before 
the IRCA, the Department established AEWRs in only 14 ``traditional 
user'' States, leaving the prevailing wage and Federal and State 
minimum wages as the only wage protections available in other states. 
See 1989 Final Rule, 54 FR 28037, 28038. After the passage of the IRCA, 
the Department dramatically expanded the use of the AEWR as a wage 
protection in the H-2A program in 49 States (excluding Alaska) and 
first began using the FLS to set the AEWR. See id. In contrast, no 
updates were made to the Handbook 385 after the passage of the IRCA or 
at any time since. Requirements in the Handbook, such as the 
requirement for in-person interviews, are now unrealistic given current 
SWA limitations. Due to the continued use of these standards, the SWAs 
are often required to report that the State cannot produce a finding 
for a given crop activity or agricultural activity because the 
completed survey cannot meet methodological standards. Accordingly, the 
current wage methodology both wastes State and Federal resources and 
fails to produce reliable and accurate prevailing wage rates for 
employers and workers.
    For all of these reasons, the Department proposes to make changes 
to modernize the prevailing wage methodology. The proposal is intended 
to meet the Department's goals of establishing requirements that allow 
the SWAs and other State agencies to conduct surveys using standards 
that are realistic in a modern budget environment, while also 
establishing reliable and accurate prevailing wage rates for employers 
and workers. By modernizing the prevailing wage survey standards, the 
Department hopes to focus States on producing surveys in the 
circumstances in which the surveys can be most useful for protecting 
the wages of U.S. workers, and hopes to encourage a greater number of 
reliable prevailing wage survey results. The proposal recognizes that 
under the proposed wage methodology, which requires the offered wage 
rate to be set at the highest of all applicable wage rates, prevailing 
wage determinations will continue to be relevant only to a small 
percentage of job orders.
ii. The Department Proposes To Modernize the Methodology Used To 
Establish the Prevailing Wage Rate
    For the reasons discussed above, the Department proposes to 
modernize the standards in Handbook 385 and replace the existing 
prevailing wage methodology with a new methodology at Sec.  655.120(c) 
under which the Department would establish prevailing wages for crop 
activities or agricultural activities. The Department proposes to use 
the term ``crop activity or agricultural activity'' rather than the 
term ``crop activity'' from Handbook 385 because prevailing wage rates 
may exist for a single agricultural activity conducted across multiple 
agricultural commodities. Establishing wage rates by both crop 
activities and agricultural activities is consistent with the 
Department's current policy. For example, the Department's existing 
sub-regulatory guidance covering custom combine workers explains that 
prevailing wage rates for custom combine operators are established in 
accordance with Handbook 385.\47\ This is because custom combine 
operators may be engaged in an agricultural activity, such as operating 
harvesting equipment, with a single wage structure across multiple 
crops.
---------------------------------------------------------------------------

    \47\ See TEGL 16-06, Change 1, Special Procedures: Labor 
Certification Process for Multi-State Custom Combine Owners/
Operators under the H-2A Program, Attachment A at p. 1, available at 
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf 
(last updated June 14, 2011). As discussed further in the preamble 
related to proposed Sec. Sec.  655.300 through 655.304, the 
Department proposes to codify in regulations the existing sub-
regulatory guidance for certain H-2A itinerant occupations, 
including guidance applicable to custom combine operators.
---------------------------------------------------------------------------

    Under the new proposed methodology, the OFLC Administrator would 
establish a prevailing wage for a given crop activity or agricultural 
activity only if all of the requirements in proposed Sec.  
655.120(c)(1) are met. Requiring that all surveys meet statistical 
standards is necessary to establish reliable and accurate prevailing 
wage rates for employers and workers. The Department proposes the 
following standards: (1) The SWA must submit a standardized form 
providing the methodology of the survey, which must be independently 
conducted by

[[Page 36186]]

the SWA or another state entity; (2) the survey must cover a distinct 
work task or tasks performed in a single crop activity or agricultural 
activity; (3) the survey must be based on either a random sample or a 
survey of all employers in the geographic area surveyed who employ 
workers in the crop activity or agricultural activity; (4) the survey 
must be limited to the wages of U.S. workers; (5) a single unit of pay 
must be used to compensate at least 50 percent of the U.S. workers 
included in the survey; (6) the survey must report an average wage; (7) 
the survey must cover an appropriate geographic area based on several 
factors; and (8) the survey must report the wages of at least 30 U.S. 
workers and 5 employers and the wages paid by a single employer must 
represent no more than 25 percent of the sampled wages included in the 
survey. In addition to these methodological standards, the Department 
proposes to establish a validity period of prevailing wage surveys.
    First, the Department proposes to maintain the current requirement 
that the SWA submit a Form ETA-232 providing the methodology for the 
survey. If finalized as proposed, the Department would update the Form 
ETA-232 to align with the new proposed prevailing wage methodology. 
While the SWA would continue to submit the Form ETA-232 to OFLC, the 
Department proposes to allow the survey to be independently conducted 
by State entities other than the SWA, including any State agency, State 
college, or State university.\48\ The Department proposes to broaden 
the universe of State entities that may conduct a prevailing wage 
survey because the SWAs have limited capacity to conduct surveys given 
other legal requirements, including the statutory requirement to 
conduct housing inspections. However, some other State agencies, State 
colleges, or State universities may have resources and expertise to 
conduct reliable prevailing wage surveys for the H-2A program. The 
Department proposes to broaden the categories of State entities that 
may conduct prevailing wage surveys to encourage more prevailing wage 
surveys to be conducted by reliable sources, independent of employer or 
worker influence. Under this proposal, a State entity other than the 
SWA could choose to conduct a prevailing wage survey using State 
resources without any foreign labor certification program funding, or 
the SWA could elect to wholly or partially fund a survey conducted by 
another State entity using funds provided by the Department for foreign 
labor certification programs. However, the Department proposes to 
continue to require the SWA to submit the Form ETA-232 for any 
prevailing wage survey, even if the survey was conducted by another 
State entity, to provide a single avenue through which States submit 
surveys, and so it is clear that all surveys sent to the Department are 
submitted on behalf of the State as a whole. The SWA is the appropriate 
entity to submit any survey to the Department because the SWA receives 
grant funding from the Department for the H-2A program. Without this 
requirement, the Department is concerned that more than one agency in a 
State might conduct a survey for the same crop activity or agricultural 
activity, which would require the Department to adjudicate conflicting 
prevailing wage surveys. The Department requests comments on alternate 
methods of dealing with the issue of possible conflicting surveys. The 
Department also requests comments on whether there are additional 
neutral sources of prevailing wage information that the Department 
should use in the H-2A program.
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    \48\ The H-2B regulation generally uses the OES average wage for 
the SOC to set the prevailing wage rate and allows employers to 
submit non-OES wage surveys as an alternative to the OES only if the 
survey is independently conducted and issued by a State, including 
any State Agency, State college or State university; where the OES 
does not provide data in the geographic area; or if the OES does not 
accurately represent the relevant job classification. 20 CFR 655.10.
---------------------------------------------------------------------------

    Second, the Department proposes that the survey must cover a 
distinct work task or tasks performed in a single crop activity or 
agricultural activity. The concept of distinct work tasks is continued 
from the Handbook 385, which provides:

    Some crop activities involve a number of separate and distinct 
operations. Thus, in harvesting tomatoes, some workers pick the 
tomatoes and place them in containers while others load the 
containers into trucks or other conveyances. Separate wage rates are 
usually paid for individual operations or combinations of 
operations. For the purposes of this report, each operation or job 
related to a specific crop activity for which a separate wage rate 
is paid should be identified and listed separately.

Handbook 385 at I-113 (emphasis in original). The distinct task 
requirement means that even within a single crop, distinct work tasks 
that are compensated differently (e.g., picking and packing) would be 
required to be surveyed in a manner that produces separate wage 
results.
    Third, the Department proposes that the survey must be based on 
either a random sample or a survey of all employers in the surveyed 
geographic area who employ workers in the crop activity or agricultural 
activity. This requirement is based on general statistical principals 
and is consistent with the recommendation in Handbook 385, which 
provides: ``[w]ithout regard to whether employers do or do not utilize 
the facilities of the Job Service, the wage survey sample should 
include workers of small, medium and large employers of domestic 
workers from all sectors of the area being surveyed, and should be 
selected by probability sampling methods.'' Handbook 385 at I-114. 
Probability and random sampling are synonymous, and random sampling 
includes both simple random sample and stratified random sample 
methods. The Department proposes to maintain this existing requirement 
to conduct a random/probability sample and clarify that random sampling 
(or surveying the entire universe) is a requirement, not a 
recommendation. The requirement that a prevailing wage survey be 
established based on a sampling of the entire universe or a random 
sample is also consistent with the H-2B prevailing wage regulation at 
Sec.  655.10, as well as current H-2B prevailing wage guidance 
interpreting the H-2B appropriations riders.\49\ To make a reasonable, 
good faith effort to contact all employers in the surveyed geographic 
area who employ workers in the crop activity or agricultural activity, 
the surveyor might send the survey through the mail or other 
appropriate means to all employers in the geographic area and then 
follow up by telephone with all non-respondents.
---------------------------------------------------------------------------

    \49\ See Effects of the 2016 Department of Labor Appropriations 
Act (Dec. 29, 2015) at p. 4, available at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
---------------------------------------------------------------------------

    Fourth, to protect against possible adverse effect on the wages of 
workers in the United States similarly employed, the Department 
proposes to limit the survey to the wages of U.S. workers. This 
limitation applies to both determining the universe of workers' wages 
to be sampled and the universe of workers' wages reported. Limiting the 
survey to U.S. workers is consistent with the Department's current 
policy and reflects the Department's longstanding concern that 
including the wages of non-U.S. workers may depress wages.\50\ The 
Department recognizes that in the H-2B program, prevailing wage surveys 
must be conducted

[[Page 36187]]

without regard to the immigration status of the workers whose wages are 
included in the survey. However, the Department proposes to continue to 
require prevailing wage surveys in H-2A to include only the wages of 
U.S. workers due to concerns that the presence of the wages of 
undocumented workers in the sample may depress the wages of workers in 
the United States similarly employed are particularly acute in 
agriculture, because nearly half of farmworkers lack work 
authorization.\51\ The Department invites comments on this policy, 
including whether the Department should instead adopt the H-2B 
standard.
---------------------------------------------------------------------------

    \50\ The Handbook 385 uses the terms ``domestic workers'' and 
``U.S. workers'' in describing the sample to be conducted, and the 
current Form ETA-232 similarly limits the survey to U.S. workers.
    \51\ According to the most recent U.S. Department of Labor's 
National Agricultural Workers Survey, between October 1, 2012, and 
September 30, 2014, 47 percent of farmworkers in the United States 
lacked work authorization. Findings from the National Agricultural 
Workers Survey (NAWS) 2013-2014: A Demographic and Employment 
Profile of United States Farmworkers, Research Report No. 12 (Dec. 
2016), pp. 4-5, available at https://www.doleta.gov/naws/pages/research/docs/NAWS_Research_Report_12.pdf.
---------------------------------------------------------------------------

    Fifth, the Department proposes that a prevailing wage be issued 
only if a single unit of pay is used to compensate at least 50 percent 
of the U.S. workers included in the survey. For example, an hourly 
prevailing wage rate would only be issued if at least 50 percent of the 
U.S. workers included in the survey are paid by the hour (and the 
survey also meets all other requirements provided in the proposed 
rule). For a wage rate based on a piece rate to be issued under this 
proposal, at least 50 percent of the U.S. workers whose wages are 
included in the survey must be both paid by the piece and also must be 
paid based on the same unit of measurement (e.g., bushel, bin, etc.). 
This is similar to the requirement in the Handbook 385 that if a survey 
includes more than one unit of payment, a prevailing wage rate is 
issued based on the unit of pay that represents the largest number of 
workers. Handbook 385 at I-117. The Department proposes this 
requirement both to verify that the rate structure reflected in the 
survey is actually prevailing and to provide that the wages included in 
the survey can be averaged, as discussed in the next paragraph of the 
preamble, because it would not be possible to average wages using 
different units of measurement.
    Sixth, the Department proposes that a prevailing wage survey must 
report an average wage for the unit of pay that represents at least 50 
percent of the wages of U.S. workers included in the survey. This 
proposal departs from the requirement in Handbook 385 to use a ``40 
percent rule'' and a ``51 percent rule,'' discussed above. The 
Department proposes to use an average wage to establish the prevailing 
wage because it is consistent with both how the Department proposes to 
set the AEWR under the FLS and OES methodologies and with the current 
H-2B wage methodology for prevailing wage rates. The Department invites 
comments on this methodology as well as possible alternatives, 
including whether the ``40 percent rule'' and a ``51 percent rule'' 
from the Handbook should be maintained or whether the Department should 
instead establish the prevailing wage at the median wage based on the 
unit of pay.
    Seventh, the Department proposes that a prevailing wage survey must 
cover an appropriate geographic area based on available resources, the 
size of the agricultural population covered by the survey, and any 
different wage structures in the crop activity or agricultural activity 
within the State. With this proposal, the Department intends to codify 
existing practice whereby the Department receives prevailing wage 
surveys based on State, sub-state, and--in the case of logging 
activities in Maine, New Hampshire, and Vermont--regional geographic 
areas based on the factors listed above. The Department requests 
comments on whether any other factors should be considered in 
determining the appropriate geographic area for prevailing wage 
surveys.
    Eighth, and most significantly, the Department proposes to replace 
the statistical guidelines from Handbook 385 with standards that are 
more effective in producing a prevailing wage and more appropriate to a 
modern budget environment. As discussed above, existing standards often 
result in ``no finding'' from a prevailing wage survey; therefore, the 
current standards are both a waste of government resources and fail to 
meet the goal of producing reliable and accurate prevailing wage rates. 
The Department is also concerned that employers may be incentivized not 
to respond to a survey under the existing methodology because the OFLC 
Administrator does not issue a prevailing wage if the sample is too 
small. As a result, requiring smaller sample sizes than those suggested 
in Handbook 385 may actually increase survey response rates because 
employers may be more likely to respond to a survey if it is more 
likely that the OFLC Administrator will issue a prevailing wage than 
under the current methodology.
    The Department proposes that the survey must report the wages of at 
least 30 U.S. workers and 5 employers and that the wages paid by a 
single employer must represent no more than 25 percent of the sampled 
wages included in the survey. The 30-worker standard is consistent with 
the requirements for H-2B prevailing wage rates as well as minimum 
reporting numbers for the OES. See 20 CFR 655.10(f)(4)(ii) (employer-
provided surveys for the H-2B program must include wage data from at 
least 30 workers and three employers); see also 80 FR 24146, 24173 
(Apr. 29, 2015). BLS requires wage information from a minimum of 30 
workers (after raw OES survey data is appropriately scrubbed and 
weighted) before it deems data of sufficient quality to publish on its 
website. In addition, the Department proposes that a survey must 
include wages paid by at least five employers. This is a change from 
Handbook 385, which does not have a minimum number of employers who 
must be included in the survey. The Department recognizes that by 
proposing to require that a survey must include wages paid by at least 
five employers, the proposal exceeds the number of employers (e.g., 
three) required to establish prevailing wage rates under the H-2B 
program; however, while prevailing wages in the H-2B program are 
generally set based on local area of intended employment, H-2A 
prevailing wage rates are generally set based on a larger geographic 
area. In the Department's preliminary view, this makes a higher number 
of employer responses appropriate for the H-2A program. Finally, the 
Department proposes that the wages paid by a single employer must 
represent no more than 25 percent of the sampled wages. The Department 
proposes this 25 percent standard so that the wage is not unduly 
impacted by the wages of a single dominant employer. The Department 
would issue a prevailing wage from a survey only if all of the sample 
size requirements--30 workers, 5 employers, and the 25 percent single 
employer standards--are met.
    Both the five employer and 25 percent dominance standards are 
consistent with the ``safety zone'' standards for exchanges of employer 
wage information established by the Department of Justice (DOJ) and 
Federal Trade Commission (FTC) in the antitrust context.\52\ Under the 
safety zone

[[Page 36188]]

standards, absent extraordinary circumstances, the exchange of 
information about employer wages meeting the requirements for the 
safety zone will not be challenged by the DOJ or the FTC as a violation 
of antitrust law. Although created for a different purpose than these 
proposed H-2A regulatory standards, the safety zone standards establish 
levels at which the DOJ and FTC have established that an exchange of 
wage information is sufficiently anonymized to prevent the wages of a 
single employer from being identified because the wage results reported 
too closely track the wages paid by a single employer. It is the 
Department's preliminary conclusion that the safety zone standards are 
consistent with the Department's aim of requiring that the wages 
reported from a prevailing wage survey are sufficiently representative, 
and the wages of a single employer do not drive the wage result.
---------------------------------------------------------------------------

    \52\ See Statement 6 of the Antitrust Enforcement Policy in 
Health Care (``enforcement policy''), August 1996, available at 
http://www.justice.gov/atr/public/guidelines/0000.htm. While the 
enforcement policy was developed for exchanges of information in the 
health care industry, the policy has been recognized to ``offer 
significant insights that go beyond health care, including a very 
useful framework for analyzing information exchanges,'' David H. 
Evans & Benjamin D. Bleiberg, Trade Associations: Collaboration, 
Conspiracy and Invitations to Collude, Antitrust Rev. of the 
Americas, at 40 (2011); see also Robert H. Lattinville & Robert A. 
Boland, Coaching in the National Football League: A Market Survey 
and Legal Review, 17 Marq. Sports L. Rev. 109, at n. 428 (Fall 2006) 
(``Officials from the FTC have stated that the principles, while 
nominally focused on the health care industry, are broadly 
applicable to other industries and professions.'').
---------------------------------------------------------------------------

    The Department requests comments on these statistical standards and 
any alternate standards that might be used to meet the Department's 
goals of establishing reliable and accurate prevailing wage rates 
consistent with a modern budget environment. For example, the 
Department requests comments on whether to require the Handbook's 
suggested sample size of 15 percent for crop activities or agricultural 
activities with at least 3,000 U.S. workers but require a smaller 
sample than those set in the Handbook for smaller crop activities and 
agricultural activities. Additionally, the Department requests comments 
on whether the proposed sample size requirements, and any recommended 
alternative requirements, should apply to the survey overall or to the 
prevailing unit of pay. For example, the Department invites comments on 
whether, if a survey includes both hourly pay and piece rate pay based 
on a bushel unit, the 30 worker, 5 employer, and 25 percent dominance 
standards should apply to the survey overall, or to the unit of pay 
that represents the wages paid to at least 50 percent of the workers in 
the survey.
    In addition to the standards governing the methodology in the 
survey, in Sec.  655.120(c)(2), the Department proposes that a 
prevailing wage rate would remain valid for 1 year after OFLC posts the 
wage rate or until replaced with an adjusted prevailing wage, whichever 
comes first, except that if a prevailing wage that was guaranteed in 
the employer's Application for Temporary Employment Certification 
expires during the contract period, the employer must continue to 
guarantee a wage that is at least equal to the expired prevailing wage 
rate. This proposal is consistent with OFLC's current policy. The 
Department proposes that if an employer guaranteed a prevailing wage 
rate in the Application for Temporary Employment Certification, it must 
continue to guarantee that rate if it is the highest applicable wage, 
even if the prevailing wage rate ``expires'' during the contract 
period. This is because the employer may not pay a wage lower than the 
wage it offered to U.S. or H-2A workers.
    The 1-year validity period for prevailing wage rates is generally 
consistent with OFLC's current practice. The Department proposes to 
maintain the current validity period with the goals of both basing 
prevailing wage rates on the most recent and accurate data and making 
prevailing wage rate findings available where the prevailing wage rate 
would be higher than the AEWR. The Department invites comments on 
whether an alternate duration for the validity of prevailing wage 
surveys would better meet these goals. For example, the Department 
invites comments on whether to use the 2-year period that is used for 
the H-2B program. For the H-2B program, an employer may submit a 
prevailing wage survey if it is the most recent edition of a survey and 
is based on data collected no more than 24 months before submission. 
The Deparment also invites comments on whether it should index 
prevailing wage rates based on either the CPI or ECI when the OFLC 
Administrator issued a prevailing wage rate in 1 year for a crop 
activity or agricultural activity but a prevailing wage finding is not 
available in a subsequent year. The Department also invites comments on 
whether it should set any limits on the age of the data reported by a 
survey.
    The Department requests comments on each of the methodological 
changes discussed above, as well as any alternate prevailing wage 
survey requirements. This includes comments on whether and why any of 
the elements of Handbook 385 should be maintained and incorporated in 
to the regulation as well as whether and why any aspects of the 
Department's H-2B prevailing wage methodology for employer-provided 
surveys should be adopted for the H-2A program. The Department is 
particularly interested in comments that address how the recommended 
standard will meet the Department's objective to produce reliable and 
accurate prevailing wage rates for employers and workers in a manner 
consistent with available resources at the State and Federal levels.
d. The Department Proposes That the Employer Must Pay Any Higher AEWR 
or Prevailing Wage Rate Not Later Than 14 Days After Notification of 
the New Wage Rate
    Paragraph (c) of current Sec.  655.120 provides that the Department 
would update the AEWR at least annually by publication in the Federal 
Register.\53\ In addition, the current regulation at Sec.  655.122(l) 
requires employers to pay the highest wage ``in effect at the time the 
work is performed,'' which means employers must begin paying the AEWR 
upon its effective date. The current regulation is silent on when a 
published AEWR becomes effective. For many years, the Department 
published AEWRs with an immediate effective date. However, starting 
with the AEWRs for 2018, the Department gave employers up to 14 days to 
start paying a newly issued higher AEWR.\54\ The Department proposes to 
provide text in Sec.  655.120(c) that clarifies that if a higher AEWR 
is published in the Federal Register during the labor certification 
period, the employer must begin paying the new wage rate within 14 
days, consistent with the current regulation and policy. This policy 
prevents adverse effect on the wages of U.S. workers by quickly 
implementing any newly-required higher wage rate, while giving 
employers a brief window to update their payroll systems to implement a 
newly-issued wage. The 14-day effective date is based on the current 
regulation at Sec.  655.122(m), which requires the employer to pay the 
worker at least twice a month or according to the prevailing practice 
in the area of intended employment, whichever is more frequent. No 
changes are proposed to Sec.  655.122(m). Given this existing 
requirement, the 14-day window provides that an employer is not 
required to adjust a worker's pay in the middle of a pay period.
---------------------------------------------------------------------------

    \53\ Under 44 U.S.C. 1507, publication in the Federal Register 
provides legal notice of the new wage rates.
    \54\ See Notice, Labor Certification Process for the Temporary 
Employment of Aliens in Agriculture in the United States: 2018 
Adverse Effect Wage Rates for Non- Range Occupations, 82 FR 60628 
(Dec. 21, 2017).
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    In addition, the Department proposes to make minor edits to the 
existing language because the AEWRs will no longer be announced in a 
single Federal

[[Page 36189]]

Register announcement. Instead, each AEWR will be updated at least 
annually, but the Department plans to make the updates through two 
announcements, one for the AEWRs based on the FLS, and another one for 
the AEWRs based on the OES survey. This is due to the different time 
periods for release of these two surveys.
    Similar to the current regulation on AEWR updates, the current 
regulation at Sec.  655.120(b) requires the employer to pay a higher 
prevailing wage upon notification to the employer by the Department. 
The Department's current practice is to publish prevailing wage rates 
on its website and to directly contact employers who are covered by a 
higher prevailing wage rate. The proposed regulation maintains this 
current practice for notifying employers directly, rather than through 
the Federal Register, because the administrative burden of contacting 
employers directly is less than publishing multiple prevailing wage 
rates in the Federal Register given that prevailing wage rate surveys 
are not provided for all crops, activities, and locations in a single 
cycle. As with the AEWR, the Department proposes to make the new 
prevailing wage rates effective 14 days after notification so that 
employers do not need to update the wage rate in the middle of a pay 
period.
    For both the AEWR and prevailing wage rate, the Department proposes 
that the employer must pay a higher wage rate if the wage is adjusted 
during the contract period, but may not lower the wage rate if OFLC 
issues an AEWR or prevailing wage that is lower than the offered wage 
rate. Because the employer advertised and offered the higher rate 
through its recruitment of U.S. and H-2A workers, the wage cannot be 
reduced below the wage already offered and agreed to in the work 
contract. Under this proposal, an employer would not be permitted to 
put a clause in the job order stating that it may reduce the offered 
wage rate if a lower AEWR or prevailing wage is issued. The Department 
also proposes to remove current regulatory language that requires an 
employer to pay the wage ``in effect at the time work is performed'' 
from Sec. Sec.  655.120(b) and 655.122(l) because that language may 
create confusion about the existing requirement to continue to pay a 
previously offered wage if the new ``effective'' wage is lower.
e. Wage Assignments and Appeals
    Under this proposal, an employer would select the appropriate SOC 
code for the job opportunity and guarantee in its Application for 
Temporary Employment Certification a wage that is at least the highest 
of the AEWR for that SOC, a prevailing wage where the OFLC 
Administration has issued such a wage rate, an agreed-upon collective 
bargaining wage, or the applicable Federal or State minimum wage. The 
CO would then review the employer's wage selection as part of the 
review of the Application for Temporary Employment Certification to 
verify that the employer guarantees at least the required wage.
    Under paragraph (b)(5) of this proposal, if the job duties on the 
Application for Temporary Employment Certification do not fall within a 
single occupational classification, the CO would determine the 
applicable AEWR at the highest AEWR for all applicable occupational 
classifications. Determining the appropriate SOC is an important 
component of the Department's proposal to move to an occupation-
specific wage. The proposal to use the highest applicable wage would 
reduce the potential for employers to misclassify workers and would 
impose a lower recordkeeping burden than if the Department permitted 
employers to pay different AEWRs for job duties falling within 
different occupational classifications on a single Application for 
Temporary Employment Certification. This proposal is also consistent 
with how the Department assigns prevailing wage rates for jobs that 
cover multiple SOCs in the H-2B program.
    Under this proposal, employers who currently file a single 
Application for Temporary Employment Certification covering multiple 
workers and a wide variety of duties might choose to file separate 
Applications for Temporary Employment Certification and limit the 
duties of the workers covered by each Application for Temporary 
Employment Certification to a single occupational classification. The 
employer would then pay a separate wage rate based on the duties of 
each Application for Temporary Employment Certification.
    The Department invites comments on the proposal to determine the 
applicable AEWR at the highest AEWR for all applicable occupational 
classifications, including any alternate methods the Department should 
use to determine the AEWR if the job duties on the Application for 
Temporary Employment Certification do not fall within a single 
occupational classification. For example, the Department invites 
comments on whether it should establish the AEWR to be guaranteed on 
the Application for Temporary Employment Certification based on the 
primary duties of the job as reported on the Application for Temporary 
Employment Certification. Any proposals to use a methodology other than 
the highest AEWR for all applicable occupational classifications should 
explain how the Department would protect against misclassification.
    All Applications for Temporary Employment Certification are 
currently assigned an SOC by the SWA, but these assignments have no 
impact on the required wage rate in the H-2A program, because the 
required wage rate is not currently based on the SOC system. Based on 
past SOC assignments by the SWA, approximately 95 percent of H-2A 
workers will fall within one of the following SOC codes: 45-2092 
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse), 45-2093 
(Farmworkers, Farm, Ranch, and Aquacultural Animals), 45-2091 
(Agricultural Equipment Operators), and 45-4011 (Forest and 
Conservation Workers) if reforestation workers are added to the H-2A 
program as proposed. Given the very small number of SOCs applicable to 
most H-2A jobs, the Department expects that employers will be able to 
select the correct SOC code and accompanying AEWR in most cases.
    In a small number of cases, the employer may select the incorrect 
SOC on its Application for Temporary Employment Certification. If the 
employer offers a wage that does not meet the requirements of Sec.  
655.120(a), proposed paragraph (d)(1) explains that the CO would issue 
a NOD and require the employer to correct the wage rate. This would 
include recruiting for the job opportunity at the correct wage rate. 
Proposed paragraph (d)(2) further provides that if the employer 
disagrees with the wage rate required by the CO, the employer may 
appeal only after the Application for Temporary Employment 
Certification is denied, and the employer must follow the procedures in 
Sec.  655.171. This proposal is consistent with the proposal to 
eliminate appeals of NODs discussed in the preamble related to Sec.  
655.141 of this proposed rule and would promote efficiency by providing 
that all possible grounds for denial are appealed at once, rather than 
allowing for separate appeals of multiple issues.
2. Section 655.121, Job Order Filing Requirements
a. Submission of the Job Order
    The statute requires employers to engage in the recruitment of U.S. 
workers through the employment service job clearance system 
administered by the SWAs. See section

[[Page 36190]]

218(b)(4) of the INA, 8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49 et 
seq., and 20 CFR part 653, subpart F. The Department proposes to 
modernize and streamline the process by which employers submit job 
orders to the SWA for review and for intrastate and interstate 
clearance in order to test the local labor market and determine the 
availability of U.S. workers before filing an Application for Temporary 
Employment Certification.
    Employers have described the current process of preparing and 
submitting job orders to the SWAs as cumbersome, complicated, and 
requiring the expenditure of considerable time and money. An employer 
must prepare the job order, Agricultural and Food Processing Clearance 
Order (Form ETA-790), in paper form, scan it, and submit it, along with 
any other paper attachments, to the SWA using email, U.S. mail, or 
private courier. Mistakes often must be corrected by hand, initialed 
and dated, then emailed or mailed to appropriate parties. Failure to 
complete these manual exchanges of corrections can lead to active job 
orders with outdated and/or inaccurate terms and conditions. 
Furthermore, the SWAs generally do not have adequate capacity to 
provide for the e-filing and management of job orders, which may create 
uncertainty for employers that need to submit job orders within 
regulatory timeframes. Given that an employer must provide a copy of 
the same job order to the NPC at the time of filing the Application for 
Temporary Employment Certification, the current job order filing 
process requires duplication of effort for employers, especially those 
with business operations covering large geographic areas that need to 
coordinate job order submissions with multiple SWAs.
    Therefore, the Department proposes that an employer submit a newly 
designed job order, H-2A Agricultural Clearance Order (Form ETA-790/
790A), directly to the NPC designated by the OFLC Administrator. This 
proposal also requires an employer to submit the job order using the 
electronic method(s) designated by the OFLC Administrator, and adopts 
the use of electronic signatures. Employers permitted to file by mail 
or who request a reasonable accommodation due to a disability under the 
proposed procedures in Sec.  655.130(c) would be permitted to file 
using those other means. Unless the employer has a disability or lacks 
adequate access to e-filing, the NPC will return without review any job 
order submitted using a method other than the electronic method(s) 
designated by the OFLC Administrator.
    Where the job order is submitted in connection with a future master 
application, an agricultural association will continue to submit a 
single job order in the name of the agricultural association as a joint 
employer on behalf of all employer-members that will be identified on 
the Application for Temporary Employment Certification. The Department 
proposes edits to clarify that the employer-members will also be listed 
on the job order. Similarly, the Department proposes that where two or 
more employers are seeking to jointly employ a worker or workers, as 
permitted by proposed Sec.  655.131(b), any one of the employers may 
submit the job order as long as all joint employers are named on the 
job order and the future Application for Temporary Employment 
Certification.
    Upon receipt of the job order, the NPC will transmit, on behalf of 
the employer, an electronic copy of the job order to the SWA serving 
the area of intended employment for review. If the job opportunity is 
located in more than one State within the same area of intended 
employment, the NPC will transmit a copy of the electronic job order, 
on behalf of the employer, to any one of the SWAs having jurisdiction 
over the place(s) of employment for review. The job order must continue 
to satisfy the requirements for agricultural clearance orders set forth 
in 20 CFR part 653, subpart F, and Sec.  655.122.
    As explained above, the Department believes this proposal will 
modernize and streamline the job order filing process and create 
significant savings and efficiencies for employers, SWAs, and the 
Department. Many employers and their authorized representatives are 
highly automated in their business operations and familiar with e-
filing the Form ETA-9142A, required appendices, and supporting 
documentation with the NPC. Based on applications filed during FYs 2016 
and 2017, more than 81 percent of employer applications were submitted 
electronically to the NPC for processing. Expanding OFLC's technology 
system to include the electronic submission of the new Form ETA-790/
790A, prior to the filing of an Application for Temporary Employment 
Certification, will save employers time and money preparing, scanning, 
and mailing the job order to the SWA, and streamline the filing process 
by providing a single point-of-access to H-2A program services.
    To implement this proposal, OFLC's technology system will allow an 
employer to initiate the new Form ETA-790/790A online, pre-populate all 
business contact information from their account, and save a partially 
completed form as a ``draft'' that the employer can access and complete 
later. As the Form ETA-790/790A is prepared online, the system will 
provide the employer with a series of electronic data checks and 
prompts to ensure each required field is completed and values entered 
on the form are valid and consistent with regulatory requirements. An 
online glossary and ``help'' function will allow the employer to refer 
to explanations of key terms along with access to frequently asked 
questions designed to clarify instructions on completing the form. For 
an employer that has recurring seasonal job opportunities, the system 
will allow the preparation of multiple Forms ETA-790/790A and ``reuse'' 
previously filed job orders. This ``reuse'' capability is similar to 
the one currently available for preparing the Form ETA-9142A, and will 
save the employer significant time and expense by pre-populating key 
sections into the draft Form ETA-790/790A, including information 
related to the job opportunity, crops or agricultural activities, wage 
offers, place of employment and housing locations, and other worker 
guarantees (e.g., meals and transportation).
    The newly designed Form ETA-790/790A will also contain a 
standardized set of terms and conditions of employment, as required by 
Sec. Sec.  653.501(c) and 655.122, that the employer will review, sign, 
and date online prior to submission. The Department proposes to 
standardize these required terms and conditions of employment to ensure 
greater consistency in disclosure to prospective U.S. worker applicants 
and reduce the frequency of inadvertent errors or omissions that lead 
to processing delays. After agreeing to these standard, required terms 
and conditions of employment, the employer will affix its electronic 
signature in order to submit the job order for processing. Once 
submitted, the OFLC technology system will automatically transmit the 
electronic Form ETA-790/790A to the SWA serving the area of intended 
employment, thereby eliminating the need for the employer to send the 
job order to the SWA.
    For the Department and SWAs, electronic submission of job orders 
will decrease data entry, improve the speed with which job order 
information can be retrieved and shared with the SWAs, reduce staff 
time and storage costs, and improve storage security. Since the new 
Form ETA-790/790A will be stored electronically, it also eliminates the 
need for manual corrections of errors and other deficiencies and 
improves the efficiency of posting and maintaining

[[Page 36191]]

approved job orders on the Department's electronic job registry. This 
may result in more efficient use of Department and SWA staff time. 
Further, the Department already provides the SWAs with access to OFLC's 
technology system for purposes of communicating any deficiencies with 
job orders associated with employer-filed H-2A and H-2B applications 
and uploading inspection reports of employer housing. Incorporating a 
capability for the SWAs to access and retrieve the Form ETA-790/790A 
assigned by the NPC, virtually in real time after submission by 
employers, is a logical next step in enhancing OFLC's technology system 
and creating a seamless delivery of program services for employers.
b. SWA Review of the Job Order
    The Department proposes minor revisions to the timeframes and 
procedures under which the SWA performs a review of the employer's job 
order. The SWA will continue to provide written notification to the 
employer of any deficiencies within 7 calendar days from the date the 
SWA received the job order from the NPC. The Department proposes 
editorial changes to clarify that the notification issued by the SWA 
must state the reasons the job order fails to meet the applicable 
requirements and state the modifications needed for the SWA to accept 
the job order. The employer will continue to have an opportunity to 
respond to the deficiencies within 5 calendar days from the date the 
notification is issued by the SWA, and the SWA will issue a final 
notification to accept or deny the job order within 3 calendar days 
from the date the employer's response is received.
    To ensure a timely disposition is issued on all job orders, the 
Department proposes the job order be deemed abandoned if the employer's 
response to the notification is not received within 12 calendar days 
after the SWA issues the notification. In this situation, the SWA will 
provide written notification and direct the employer to submit a new 
job order to the NPC that satisfies all the requirements of this 
section. The 12-calendar-day period provides an employer with a 
reasonable maximum period within which to respond, given the 
Department's concern for timely processing of the employer's job order. 
The Department is also clarifying that any notice sent by the SWA to an 
employer that requires a response must be sent using a method that 
assures next day delivery, including email or other electronic methods, 
and must include a copy to the employer's representative, if 
applicable.
    If the employer is not able to resolve the deficiencies with the 
SWA or the SWA does not respond within the stated timelines, the 
Department will continue to permit the employer to file its Application 
for Temporary Employment Certification and job order to the NPC using 
the emergency filing procedures contained in Sec.  655.134. With the 
newly designed Form ETA-790/790A, the Department anticipates fewer 
discrepancies and inconsistencies between SWA determinations in various 
States. The Department continues to encourage employers to work with 
the SWAs early in the process to ensure that their job orders meet 
applicable state-specific laws and regulations and are accepted timely 
for intrastate and interstate clearance.
c. Intrastate and Interstate Clearance of Approved Job Orders
    The Department proposes minor changes to the process by which the 
SWA circulates the approved job order for intrastate clearance and 
posts a copy of the job order for interstate clearance to other 
designated SWAs.
    Under the current regulation, once the SWA accepts the job order, 
it must place the job order in intrastate clearance and commence 
recruitment of U.S. workers. Where the employer's job order covers an 
area of intended employment that falls within the jurisdiction of more 
than one SWA, the originating SWA initiates limited interstate 
clearance by circulating a copy of the job order to the other SWAs 
serving the area of intended employment. The Department proposes 
changes to this process to accommodate the new requirement that 
employers file job orders directly with the NPC. Upon its acceptance of 
the job order, the SWA will continue to place the job order in its 
intrastate job clearance system. However, rather than circulating the 
job order to other SWAs covering the area of intended employment or 
waiting for instructions from the CO in the NOA, the Department 
proposes that the SWA notify the NPC that the job order is approved and 
must be placed into interstate clearance. Upon receipt of the SWA 
notification, the NPC is responsible for promptly transmitting an 
electronic copy of the approved job order for interstate clearance to 
all SWAs with jurisdiction over the area of intended employment and the 
States designated by the OFLC Administrator as potential sources of 
traditional or expected labor supply, in accordance with Sec.  655.150.
    The Department has concluded that these proposed changes will 
provide U.S. worker applicants with greater exposure to the job 
opportunity and facilitate a more efficient process for circulating the 
employer's job order through the interstate clearance system. 
Circulation of the approved job order for interstate clearance prior to 
the filing of the Application for Temporary Employment Certification 
will significantly increase the amount of time that job orders are 
initially available to prospective U.S. worker applicants, including in 
labor supply States designated by the OFLC Administrator. Additionally, 
the SWAs will save time and resources because the proposed changes will 
eliminate the need to prepare, scan, and transmit copies of approved 
job orders to other SWAs. Since the job order is electronically 
available to the NPC, the NPC can transmit a copy of the approved job 
order to other SWAs with minimal effort and expense.
    Where modifications to the job order are required under this 
section, the NPC can serve as a single source of authority for all 
modifications to ensure greater accuracy and consistency in disclosing 
the modified terms and conditions of employment. Once the modifications 
are complete, the NPC will promptly re-circulate an electronic copy of 
the job order to all affected SWAs, as well as the employer. 
Consequently, the SWAs will be able to focus their resources on 
recruiting U.S. workers and conducting timely inspections of employer 
housing.
d. Other Proposed Changes
    To clarify procedures and as a result of other proposed changes, 
the Department is retaining but reorganizing several components of 
Sec.  655.121. For example, the Department proposes to move the 
timeliness requirement for submitting a job order from paragraph (a)(1) 
to a new paragraph (b) that focuses solely on the timeliness 
requirements. The change in the location of this timeliness language, 
combined with new paragraphs (c) and (d) to accommodate the e-filing of 
job orders and Applications for Temporary Employment Certification with 
the designated NPC, required renumbering of subsequent paragraphs. The 
Department also proposes procedures to allow employers that lack 
adequate access to e-filing to file the job order by mail and for 
employers that are unable or limited in their ability to use or access 
the electronic application due to a disability to request an 
accommodation to allow them to access and/or file the job order through 
other means.
    The Department also proposes minor changes to paragraph (a)(2) and 
new

[[Page 36192]]

paragraph (a)(3) to clarify procedures for an agricultural 
association's submission of a job order in connection with a future 
master application, as permitted by proposed Sec.  655.131(a), and for 
two or more employers seeking to submit a job order in connection with 
a future joint employment application, as permitted by proposed Sec.  
655.131(b). While only one joint employer will submit the job order to 
the NPC, the job order must identify names of all employers included in 
that job order. Proposed paragraph (a)(4) retains former paragraph 
(a)(3), with technical changes, and continues to require the employer's 
job order to satisfy the requirements for agricultural clearance orders 
set forth in 20 CFR part 653, subpart F, and Sec.  655.122.
    Finally, the Department has made a technical correction in proposed 
paragraph (g), changing Application for Temporary Employment 
Certification to ``application'' to accurately reflect that the term 
``application'' refers to a U.S. worker's application for the 
employer's job opportunity during recruitment, and has made similar 
conforming edits throughout this subpart.
3. Section 655.122, Contents of Job Offers
a. Paragraph (d), Housing
    The Department proposes several revisions to its regulations at 
Sec.  655.122(d) governing housing inspections and certifications. 
Pursuant to the statute and the Department's regulations, an employer 
must provide housing at no cost to all H-2A workers. The employer must 
also provide housing at no cost to those non-H-2A workers in 
corresponding employment who are not reasonably able to return to their 
residences within the same day. See section 218(c)(4) of the INA, 8 
U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1). Generally, an employer may 
meet its housing obligations in one of two ways: (1) It may provide its 
own housing that meets the applicable federal standards; or (2) it may 
provide rental and/or public accommodations that meet the applicable 
local, state, or federal standards.\55\ The statute further requires 
that the determination whether the housing meets the applicable 
standards must be made not later than 30 days before the first date of 
need. See section 218(c)(3)(A), (4) of the INA, 8 U.S.C. 1188(c)(3)(A), 
(4).
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    \55\ Housing for workers principally engaged in the range 
production of livestock must meet the minimum standards required by 
Sec.  655.122(d)(2).
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i. Employer-Provided Housing
    Preoccupancy inspections of employer-provided housing are critical 
to ensure that sufficient and safe housing is available prior to the 
workers arriving for the work contract period. The Department is aware, 
however, that the current requirement of preoccupancy inspections of 
employer-provided housing for every temporary agricultural labor 
certification (regardless of the condition of the housing or how 
recently it may have been inspected) may result in delays in the labor 
certification process. These delays are often due to insufficient SWA 
capacity to conduct timely inspections of employer-provided housing. 
These delays--which are often beyond an employer's control regardless 
of how early it might request an inspection--may have a significant 
detrimental impact on the employer's operations.
    To address these concerns, the Department proposes the following 
changes to its current regulations. First, the Department proposes to 
reiterate in its regulations the statutory requirement that 
determinations with respect to housing must be made not later than 30 
days prior to the first date of need. Second, the Department proposes 
to clarify that other appropriate local, state, or federal agencies may 
conduct inspections of employer-provided housing on behalf of the SWAs. 
Third, the Department proposes to authorize the SWAs (or other 
appropriate authorities \56\) to inspect and certify employer-provided 
housing for a period of up to 24 months. Twenty-four month 
certification would be subject to appropriate criteria and prior notice 
to the Department by the certifying authority. In light of the SWAs' 
longstanding expertise in conducting housing inspections, the 
Department proposes to authorize each SWA to develop its own criteria 
to determine, at its sole discretion, whether to certify specific 
employer-provided housing for a time period longer than the immediate 
work contract period, but in no case longer than 24 months. The 
Department invites comment on whether it should establish specific 
criteria that the SWAs must consider when determining the validity 
period of a housing certification (e.g., history of housing compliance 
or age of the housing), and if so, what those criteria should be.
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    \56\ See 20 CFR 653.501(b)(3).
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    Under the proposal, an employer must self-certify that the 
employer-provided housing remains in compliance for any subsequent 
Application for Temporary Employment Certification filed during the 
validity period of the official housing certification previously 
received from the SWA (or other appropriate authority). To self-
certify, an employer must re-inspect the employer-provided housing, 
which was previously inspected by the SWA or other authority. The 
employer must then submit to the SWA and the CO a copy of the valid 
certification for the housing previously issued by the SWA or other 
authority, and a written statement, signed and dated, attesting that 
the employer has inspected the housing, and that the housing is 
available and sufficient to accommodate the number of workers being 
requested and continues to meet all applicable standards.
ii. Rental and/or Public Accommodations
    In its experience administering and enforcing the H-2A program, the 
Department increasingly encounters H-2A employers that provide rental 
and/or public accommodations to meet their H-2A housing obligations. 
Under the Department's current regulations at Sec.  655.122(d)(1)(ii), 
such housing must meet the applicable local standards for such housing. 
In the absence of applicable local standards, state standards apply. In 
the absence of applicable local or state standards, DOL OSHA standards 
at 29 CFR 1910.142 apply. In addition, an employer that elects to 
provide such housing must document to the satisfaction of the CO that 
the housing complies with the local, state, or federal housing 
standards. Through guidance, the Department has explained that such 
documentation might include, but is not limited to: A SWA inspection 
report (where required); a certificate from the local or state health 
department or building department (where required); or a signed, 
written statement from the employer.\57\
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    \57\ See OFLC FAQ, What do I need to submit to demonstrate the 
[rental and/or public accommodations] complies with applicable 
housing standards? (June 2017), available at https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!917.
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    Despite these requirements, in WHD's enforcement experience, H-2A 
employers often fail to secure sufficient rooms and/or beds for 
workers. This results in unsafe and unsanitary conditions for workers. 
Overcrowding, which is among one of the most common issues the 
Department encounters in rental and/or public accommodations, may 
result in unsanitary conditions, pest infestations, and outbreaks of 
communicable

[[Page 36193]]

diseases. In some cases, for example, employers required workers to 
share a bed, required workers to sleep on the floor in a sleeping bag, 
or converted laundry or living spaces into sleeping facilities by 
putting mattresses on the ground. In other situations, as many as eight 
workers have been housed in a single room. Moreover, in rooms where 
workers also cook, the failure to provide sufficient space for workers 
to cook and sleep and/or to provide sanitary facilities for preparing 
and cooking can lead to health issues from improperly cooked food and/
or pest and rodent issues. WHD also often encounters employers that do 
not provide sufficient access to laundry facilities when housing 
workers in rental and/or public accommodations. Sufficient access to 
laundry is critical to ensure the health of workers, as workers often 
perform work in fields sprayed with pesticides, which comes in contact 
with workers' clothing. Further, WHD has encountered numerous instances 
of faulty or improperly installed heating, water heating, and cooking 
equipment in rental and/or public accommodations, posing serious safety 
risks to workers. In some instances, for example, electrical currents 
have run through water faucets. In other instances, workers have used 
hot plates that were not plugged into a grounded electrical line, 
causing the hot plates to catch fire.
    Where there are no local or state standards for rental and/or 
public accommodations, the DOL OSHA standards at 29 CFR 1910.142 apply, 
and these standards include specific requirements addressing these 
safety and health concerns. However, even where local and state 
standards for rental and/or public accommodations exist, these 
standards often do not include requirements addressing overcrowding and 
other basic safety and health concerns. The Department, therefore, is 
concerned that its current regulations may be interpreted to mean that 
where any local or state standards for rental and/or public 
accommodations exist, only those standards will apply, even where those 
standards do not address basic safety and health concerns applicable to 
rental and/or public accommodations.
    To address these concerns, the Department proposes the following 
revisions to its regulations. First, the Department proposes that, in 
the absence of applicable local standards addressing those health or 
safety concerns otherwise addressed by the OSHA temporary labor camp 
standards at 29 CFR 1910.142(b)(2) (``each room used for sleeping 
purposes shall contain at least 50 square feet for each occupant''), 
Sec.  1910.142(b)(3) (``beds . . . shall be provided in every room used 
for sleeping purposes''); Sec.  1910.142(b)(9) (``In a room where 
workers cook, live, and sleep a minimum of 100 square feet per person 
shall be provided. Sanitary facilities shall be provided for storing 
and preparing food.''); Sec.  1910.142(c) (water supply); Sec.  
1910.142(b)(11) (heating, cooking, and water heating equipment 
installed properly); Sec.  1910.142(f) (laundry, handwashing, and 
bathing facilities); and Sec.  1910.142(j) (insect and rodent control), 
the relevant state standards will apply; in the absence of applicable 
state standards addressing such concerns, the relevant OSHA temporary 
labor camp standards will apply. For example, under this proposal, 
where local standards for rental and/or public accommodations exist, 
but do not include a standard that requires a certain minimum square 
footage per person, all of the existing local standards will apply in 
addition to any state standard that addresses square footage. If there 
is no state standard addressing minimum square footage, then the DOL 
OSHA standard at 29 CFR 1910.142(b)(2) (or, where cooking facilities 
are present, Sec.  1910.142(b)(9)) will apply, in addition to the 
existing local standards. The Department welcomes comment on this 
proposal, specifically on whether the applicable standards should 
address any additional safety and health concerns relevant to housing 
temporary workers in rental and/or public accommodations that are 
otherwise addressed in the DOL OSHA standards at 29 CFR 1910.142, such 
as screens on exterior openings (see Sec.  1910.142(b)(8)).
    Second, the Department proposes to specify in the regulations that 
an employer must submit to the CO a signed, dated, written statement, 
attesting that the rental and/or public accommodations meet all 
applicable standards and are sufficient to accommodate the number of 
workers requested. This statement must include the number of bed(s) and 
room(s) that the employer will secure for the worker(s). Where the 
applicable local or state standards under Sec.  655.122(d)(1)(ii) 
require an inspection, the employer also must submit a copy of the 
inspection report or other official documentation from the relevant 
authority. Where no inspection is required, the employer's written 
statement must confirm that no inspection is required.
iii. Housing for Workers Covered by 20 CFR 655.200 Through 655.235
    The Department proposes clarifying edits to paragraph (d)(2) to 
reflect that Sec. Sec.  655.230 and 655.235 establish the housing 
requirements for workers primarily engaged in the herding and 
production of livestock on the range. The Department has established 
separate requirements for these workers for the entirety the H-2A 
program due to the unique nature of the work performed.
b. Paragraph (g), Meals
    The Department is retaining the current regulation at Sec.  
655.122(g) that requires an employer to provide each worker three meals 
a day or furnish free and convenient cooking and kitchen facilities so 
that the worker can prepare meals. Where an employer provides the 
meals, the job offer must state the charge, if any, to the worker for 
such meals. Although the Department does not propose any changes to 
Sec.  655.122(g), the Department frequently encounters violations of 
this provision and thus provides the following information to clarify 
the provision's requirements.
    Should an employer elect to provide kitchen and cooking 
facilities--in lieu of providing meals--the facilities must be free, 
convenient, and adequate for workers to prepare three meals a day. 
These facilities must include clean space intended for food preparation 
as well as necessary equipment, including working cooking appliances, 
refrigeration appliances, and dishwashing facilities (e.g., sinks 
designed for this purpose). The types of cooking appliances may vary 
but must allow workers to sufficiently prepare three meals a day. For 
example, an employer has not met its obligation to provide kitchen and 
cooking facilities by merely providing an electric hot plate, a 
microwave, or an outdoor community grill. Similarly, an employer has 
not met its obligation if the workers are required to purchase cooking 
appliances or accessories, such as portable burners, charcoal, propane, 
or lighter fluid.
    In the Department's enforcement experience, it has found that 
public accommodations (e.g., hotels or motels) frequently do not have 
adequate cooking facilities that allow workers to prepare three meals a 
day. Specifically, public accommodations frequently lack stoves, 
dishwashing facilities, and clean space for workers to safely prepare 
and store food apart from their sleeping facilities. Should such public 
accommodations lack adequate cooking and kitchen facilities for workers 
to prepare and store their own meals, the employer must provide three 
meals a day to each worker in order to satisfy the employer's 
obligations under Sec.  655.122(g).
    Where an employer elects to provide meals, the employer may deduct 
any

[[Page 36194]]

previously disclosed allowable meal charges from the worker's pay; 
however, it must either obtain prepared meals or prepare the meals 
itself.\58\ An employer may not pass on to the worker any costs that 
the employer has incurred for the provision of the meal that exceeds 
the allowable meal charge. Where a worker elects to purchase food in 
excess of the meal provided (e.g., additional servings or premium 
items), the worker may bear the additional cost (assuming the provided 
meal was adequate, as discussed below).
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    \58\ The maximum allowable meal charge to workers is governed by 
the daily subsistence rate as defined in Sec.  655.173.
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    Providing access to third-party vendors and requiring workers to 
purchase meals from the third-party vendor does not constitute 
compliance with the requirement to provide meals or facilities, even if 
the employer provides a meal stipend.\59\ An employer may arrange for a 
third party vendor and pay for the workers' meals, or use a voucher or 
ticket system where the employer initially purchases the meals and 
distributes vouchers or tickets to workers to obtain the meals from the 
third-party vendor. With such an arrangement, the employer may deduct 
the corresponding allowable meal charge if previously disclosed and in 
compliance with the procedures described under proposed Sec.  655.173.
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    \59\ See Wickstrum Harvesting, LLC, 2018-TLC-00018 (May 3, 
2018). The ALJ affirmed an ETA determination denying certifications 
based on the employer's practice of providing workers with a stipend 
for meals instead of providing meals or furnishing free and 
convenient cooking facilities.
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    Should an employer elect to house workers in public accommodations, 
the employer may receive the appropriate pro-rated credit for a meal 
provided by the public accommodation (e.g., continental breakfasts, 
buffets, etc.) towards its daily meal obligation as long as the workers 
can readily access the meal. Such credit shall not be allowed if the 
daily start time for the work day prohibits the worker from accessing 
the meal prior to departure to the place of employment. Similarly, when 
prepared meals are delivered, the delivery must occur in a timely and 
sanitary fashion. For example, food requiring refrigeration cannot be 
delivered hours before an anticipated mealtime. If meals are not 
delivered in a timely or sanitary fashion, the employer has not 
satisfied its meal obligation.
c. Paragraph (h), Transportation; Daily Subsistence
i. Paragraph (h)(1), Transportation to Place of Employment
    The Department proposes to revise the beginning and end points from 
and to which an employer must provide or pay for transportation and 
subsistence costs for certain H-2A workers. The Department's current 
regulation at Sec.  655.122(h)(1) requires, in part, that an employer 
pay a worker for the reasonable transportation and subsistence costs 
incurred when traveling to the employer's place of employment, provided 
that the worker completes at least 50 percent of the work contract 
period and the employer has not previously advanced or otherwise 
provided such transportation and subsistence.\60\ Specifically, an 
employer must provide or pay for transportation and subsistence costs 
from ``the place from which the worker has come to work for the 
employer.'' The Department currently interprets the ``place from which 
the worker has come to work for the employer'' to mean the ``place of 
recruitment,'' which sometimes is the worker's home.\61\ Additionally, 
for a worker who completes the work contract period or is terminated 
without cause, and who does not have immediate subsequent H-2A 
employment, Sec.  655.122(h)(2) requires the employer to provide or pay 
for return transportation and subsistence costs to the place from which 
the worker ``departed to work for the employer,'' disregarding 
intervening employment.\62\
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    \60\ Section 655.122(h)(1) further requires that, when it is in 
the prevailing practice among non-H-2A employers in the area to do 
so, or when offered to H-2A workers, the employer must advance 
transportation and subsistence costs to workers in corresponding 
employment. Section 655.122(h)(1) also places employers on notice 
that they may be subject to the FLSA, which operates independently 
of the H-2A program and imposes independent requirements relating to 
deductions from wages. See also 20 CFR 655.122(p). The proposed rule 
does not affect an FLSA-covered employer's obligations under the 
FLSA.
    \61\ See, e.g., Preamble to 2009 NPRM, 74 FR 45906, 45915 
(``this Proposed Rule requires the employer to pay for the costs of 
transportation and subsistence from the worker's home to and from 
the place of employment''); OFLC FAQ Sept. 15, 2010 (subsistence 
costs must be paid for costs incurred ``during the worker's inbound 
trip from the point of recruitment to the employer's worksite . . . 
and during the worker's outbound trip from the employer's worksite 
to the worker's home or subsequent employment'').
    \62\ Section 655.122(h)(2) further provides that, for those 
workers who do have immediate subsequent H-2A employment, the 
initial or subsequent employer must cover the transportation and 
subsistence fees for the travel between the initial and subsequent 
worksites. The obligation to pay for such costs remains with the 
initial H-2A employer if the subsequent H-2A employer has not 
contractually agreed to pay the travel expenses. This section also 
places employers on notice that they are not relieved of their 
obligation to provide or pay for return transportation and 
subsistence if an H-2A worker is displaced as a result of an 
employer's compliance with the recruitment period described in Sec.  
655.135(d).
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    The proposed rule largely retains the current requirements of Sec.  
655.122(h)(1) and (2) without change. However, in the Department's 
experience administering and enforcing the current H-2A regulations, it 
is often challenging to ascertain the place of recruitment and 
calculate travel expenses for H-2A workers departing to work for the 
employer from a location outside of the U.S.\63\ In many cases, foreign 
recruitment is not an official process but an informal network of 
former H-2A workers, their friends, families, and neighbors. Some H-2A 
workers may not actually speak with the employer or the employer's 
representative until arriving at the U.S. Consulate or Embassy for visa 
processing or arriving at the appropriate port of entry to seek 
admission to the United States.\64\
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    \63\ Unless the location outside the United States is the 
consulate or embassy that issued the visa.
    \64\ Citizens or nationals of certain localities may directly 
seek admission to the United States in H-2A classification with 
Customs and Border Protection at a U.S. port of entry. See 8 CFR 
212.1(a).
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    In light of these challenges, the Department proposes to revise 
Sec.  655.122(h)(1) to require an employer to provide or pay for 
inbound and return transportation and subsistence costs (where 
otherwise required by the regulation) from and to the place from which 
the worker departed to the employer's place of employment. For an H-2A 
worker departing from a location outside of the United States, the 
place from which the worker departed will mean the appropriate U.S. 
Consulate or Embassy. For those H-2A workers who must obtain a visa, 
the Department will consider the ``appropriate'' U.S. Consulate or 
Embassy to be the U.S. Consulate or Embassy that issued the visa. The 
Department recognizes, however, that the specific procedures for 
processing visas may differ among U.S. Consulates and Embassies and 
seeks comment on whether a different designation of the ``appropriate'' 
U.S. Consulate or Embassy is warranted.
    Additionally, the Department recognizes that certain H-2A workers 
do not require a visa to obtain H-2A status, and so will not need to 
visa a consulate or embassy prior to entering the United States. See 8 
CFR 212.1(a). Accordingly, the Department seeks comment on what the 
``place from which the worker department'' should mean for those 
workers who do not require a visa to

[[Page 36195]]

obtain H-2A status. For workers in corresponding employment and those 
H-2A workers who depart to the employer's place of employment from a 
location within the United States, the place from which the worker 
departed will continue to mean the place of recruitment. The Department 
also proposes conforming revisions throughout the NPRM to refer to the 
place from which a worker departs rather than the place from which the 
worker has come to work for the employer.
    This proposal will provide the Department with a more consistent 
place from and to which to calculate travel costs and obligations for 
H-2A workers departing from a location outside of the United States. It 
will also provide H-2A workers and employers more precision when 
estimating the costs associated with H-2A employment. This proposal is 
also consistent with the 2008 Final Rule, wherein the Department 
defined the place of departure for H-2A workers coming from outside of 
the United States as the ``place of recruitment,'' which meant the 
appropriate U.S. Consulate or port of entry. 73 FR 77110, 77151-52, 
77217-18. As the Department explained then, the consulate or port of 
entry provides the Department with an ``administratively consistent 
place from which to calculate charges and obligations.'' Id. at 77151-
52. In the current regulation, the Department required reimbursement of 
travel costs from and to the place of recruitment. See 75 FR 6884, 
6912. However, when promulgating the current regulation, the Department 
did not fully anticipate the difficulties of determining transportation 
costs on a basis that is unique to the facts of each individual 
worker's place of recruitment. Based on the Department's enforcement of 
the current regulation, a single gathering point from which 
transportation costs can be anticipated, measured, and paid, is 
necessary to the efficient administration of the H-2A program, 
simplifies the process for employers, and provides a reasonable 
transportation reimbursement to workers.
    Finally, the Department recognizes that before continuing on to the 
employer's place of employment, a prospective H-2A worker requiring a 
visa often must complete several steps (such as medical exam or 
fingerprinting appointments) over the course of several days between 
applying for and receiving a visa at the U.S. Consulate or Embassy. 
Some workers make multiple, distinct trips to the U.S. consulate or 
Embassy to complete these steps, though most workers complete these 
steps over one longer stay immediately prior to departing to the 
employer's place of employment. In either case, under the proposed 
rule, the employer must provide or pay for all reasonable subsistence 
costs (including lodging) that arise from the time at which the worker 
first arrives in the consular/embassy city for visa processing until 
the time the worker arrives at the employer's place of employment, 
regardless of whether the worker completes these activities over the 
course of one or multiple trips. This requirement is consistent with 
Sec.  655.135(j) of these regulations which prohibits an employer or 
its agent from seeking or receiving payment of any kind from any 
employee subject to 8 U.S.C. 1188 for any activity related to obtaining 
H-2A labor certification. As noted above, however, the employer is only 
required to provide or pay for the worker's reasonable transportation 
costs from the appropriate U.S. Consulate or Embassy to the place of 
employment.
ii. Paragraph (h)(4), Employer-Provided Transportation
    The Department proposes to clarify the minimum safety standards 
required for employer-provided transportation in the H-2A program. The 
Department's current regulation at Sec.  655.122(h)(4) provides that 
employer-provided transportation must comply with applicable federal, 
state, or local laws and must provide, at a minimum, the same 
transportation safety standards, driver licensure, and vehicle 
insurance required under MSPA at 29 U.S.C. 1841, 29 CFR 500.105, and 29 
CFR 500.120 to 500.128. 20 CFR 655.122(h)(4). Employers seeking to 
employ H-2A workers must also recruit and hire any available U.S. 
workers. Because many H-2A employers also employ U.S. workers who may 
be covered by MSPA, it would not be a burden for these employers to 
adhere to the MSPA transportation safety standards when transporting H-
2A workers. Section 1841 of MSPA provides that employers must comply 
with transportation safety regulations promulgated by the Secretary, 
including 29 CFR 500.104 and 500.105. In order to clarify the H-2A 
requirement to comply with Sec.  500.104, the Department's proposal 
adds a citation specifically to Sec.  500.104.
    The Department also seeks comments concerning how its H-2A 
regulations can be modified to improve transportation safety. 
Currently, Sec.  500.104 applies to automobiles, station wagons, and 
all vehicles that are used for trips of no more than 75 miles. It 
contains minimum safety standards for mechanisms such as operable 
brakes, lights, tires, steering, windshield wipers, and securely-
fastened seats, but lacks protections against driver fatigue. The 
regulation at Sec.  500.105 provides transportation safety standards, 
including measures to prevent driver fatigue, which are applicable to 
drivers and vehicles, other than passenger automobiles and station 
wagons, that transport agricultural workers pursuant to a day-haul 
operation or for any trip covering a distance greater than 75 miles. 
Despite these transportation safeguards, vehicle accidents involving H-
2A and other agricultural workers continue to be a recurring problem, 
and are often attributable to unsafe vehicles and driver fatigue.\65\ 
In the agricultural industry, it is common for drivers to be 
agricultural workers themselves, who after a long day or season of 
arduous agricultural work, transport other agricultural workers from 
one worksite to another or to the workers' home country after 
completing their work contracts in the United States. In a recent 
accident, a tractor-trailer hit a bus carrying 34 agricultural workers 
when the bus driver, an agricultural worker, failed to stop at a 
traffic signal apparently no more than 75 miles from the point of 
origin. The tractor-trailer driver and three bus passengers died. The 
bus driver, 28 bus passengers, and a passenger on the truck sustained 
injuries. The National Transportation Safety Board found that the 
accident was likely caused by driver fatigue.\66\
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    \65\ The measures that address driver fatigue under Sec.  
500.105 include the requirement that drivers of vehicles covered by 
this section make meal stops once every 6 hours and at least one 
rest stop between meals. 29 CFR 500.105(b)(2)(viii). Additionally, 
Sec.  500.105 requires that drivers and passengers of trucks 
traveling more than 600 miles stop and rest for a period of at least 
8 consecutive hours either before or upon completion of 600 miles. 
29 CFR 500.105(b)(2)(x).
    \66\ National Transportation Safety Board Public Meeting Report, 
pg. 4, available at https://www.ntsb.gov/news/events/Documents/2017-HWY16MH019-BMG-abstract.pdf.
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    In light of this finding, the Department invites comments about 
additional protections that may be considered to help ensure against 
driver fatigue and other unsafe driving conditions in order to improve 
safety in the transportation of H-2A and corresponding U.S. workers.
d. Paragraph (j), Earning Records
    The lack of permanent addresses makes it difficult to contact H-2A 
workers after they return to their home country should the Department 
need to contact a worker to distribute back wages, conduct an employee 
interview as part of an investigation, or to secure

[[Page 36196]]

employee testimony during litigation. The Department, therefore, 
proposes to clarify that an employer must collect and maintain a 
worker's permanent address in the worker's home country. The 
Department's current regulation at Sec.  655.122(j)(1) requires an 
employer to maintain a worker's home address, among other information. 
The regulation, however, does not define ``home address.'' 
Consequently, in administering and enforcing the H-2A program, the 
Department often encounters employers who maintain only the worker's 
temporary address at the worker's place of employment in the United 
States. Employers must maintain the worker's actual permanent home 
address--which is usually in the worker's country of origin. 
Accordingly, the Department proposes to clarify that an employer must 
collect and maintain a worker's permanent address in the worker's home 
country.
    As part of its efforts to modernize and enhance its administration 
and enforcement of the H-2A program, the Department is also considering 
whether to require an employer to maintain a worker's email address and 
phone number(s) in the worker's home country when available. This 
information would greatly assist the Department in contacting an H-2A 
worker in the worker's home country, should the Department need to do 
so for the reasons outlined above. However, the Department understands 
that not all workers possess an email address or a private phone number 
or may not want to disclose such information to the employer for 
personal reasons. This, in turn, could make it difficult for an 
employer to demonstrate that it requested but did not receive such 
information from a worker. The Department, therefore, requests comments 
on potential benefits and implications of these additional 
recordkeeping requirements on H-2A employers. Finally, the Department 
proposes minor, nonsubstantive revisions to this section.
e. Paragraph (l), Rates of Pay
    The Department proposes several changes to paragraph (l). First, 
the Department proposes to remove the statement ``[i]f the worker is 
paid by the hour'' and replace it with ``[e]xcept for occupations 
covered by Sec. Sec.  655.200 through 655.235.'' This change is 
proposed consistent with the explanation provided above for Sec.  
655.120(a) because the only occupations with a different wage 
methodology are those covered by the regulatory provisions for workers 
primarily engaged in the herding or production of livestock on the 
range as discussed in Sec. Sec.  655.200 through 655.235. The 
Department is concerned that the existing language ``[i]f the worker is 
paid by the hour,'' might create confusion about the fact that all 
other employers, including those who pay a monthly salary and those who 
pay based on a piece rate, must pay the highest applicable wage as set 
forth in Sec.  655.120(a). This revision also clarifies that if the 
employer is certified for a monthly salary because, for example, the 
prevailing wage rate is a monthly rate, the employer must still pay the 
highest applicable wage rate. The requirement to pay the highest 
applicable wage means that if paying the AEWR for all hours worked in a 
given month would result in a higher wage than the certified monthly 
salary, the employer must pay the AEWR for all hours worked in that 
month.
    Due to the requirement that the employer pay the highest applicable 
wage, regardless of the unit of pay, all employers except those 
employing workers covered by Sec. Sec.  655.200 through 655.235 are 
required to keep a record of all hours worked. Consistent with FLSA 
principles, which provide a longstanding and generally recognized 
definition of ``hours worked,'' the term includes, but is not limited 
to, travel time between places of employment; driving vehicles to 
transport equipment or workers between housing and the place of 
employment, other than a bona fide carpool arrangement; time spent 
engaged to wait, such as waiting for the fields to dry or necessary 
equipment to arrive; and preparing tools for work. In addition, if the 
Department certifies the employer with a monthly wage rate that 
specifies that food will be provided (e.g., $2,000 per month plus room 
and board), the employer must provide food in addition to wages, and 
the employer cannot take a credit for the cost of food if the credit 
would bring the worker below the wage that is the highest of the AEWR, 
the prevailing wage, the agreed-upon collective bargaining wage, the 
Federal minimum wage, or the State minimum wage. Further, because all 
H-2A employers are required to provide housing without charge to the 
worker, an employer also cannot not take a credit for the cost of 
housing.
    The Department also proposes to make corresponding changes to align 
this paragraph with the proposed changes to Sec.  655.120. Those 
changes are discussed in the preamble to Sec.  655.120.
f. Paragraph (n), Abandonment of Employment or Termination for Cause
    The Department's current regulation at Sec.  655.122(n) provides 
relief from the requirements relating to return transportation and 
subsistence costs \67\ as well as the three-fourths guarantee \68\ when 
an employer notifies the NPC, and DHS in the case of an H-2A worker, if 
a worker voluntarily abandons employment before the end of the contract 
period or is terminated for cause.\69\ It should be noted that the 
employer's timely notification to DHS of H-2A workers who voluntarily 
abandon employment or are terminated for cause is vital to ensuring 
program integrity and identifying workers who had been, but may no 
longer be, in the United States lawfully.
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    \67\ See 20 CFR 655.122(h).
    \68\ See 20 CFR 655.122(i).
    \69\ See 20 CFR 655.122(n).
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    This provision also protects employers from disrupting their 
farming operations and incurring other costs and obligations to workers 
who voluntarily abandon employment, such as the obligations to provide 
housing and meals, and to solicit the return of U.S. workers to the job 
next season.
    The Department's current regulation at Sec.  655.153 requires an 
employer to contact the U.S. workers it employed in the previous year 
to solicit their return to the job unless the workers abandoned 
employment or were dismissed for cause during the previous year. The 
Department's proposal related to Sec.  655.153 would require an 
employer to provide timely notice to the NPC of such abandonment or 
termination in the manner described in Sec.  655.122(n) to receive 
relief from its otherwise applicable contact obligation. The employer 
may email the notification or send it by facsimile or U.S. mail to the 
contact information provided on OFLC's website at 
www.foreignlaborcert.doleta.gov. The Department proposes to revise 
Sec.  655.122(n) to require an employer to maintain records of the 
notification detailed in the same section, including records related to 
U.S. workers' abandonment of employment or termination for cause during 
the previous year, for not less than 3 years from the date of the 
certification. See 20 CFR 655.153.
    In its experience administering and enforcing the H-2A program, the 
Department encounters H-2A employers that claim that they have made 
proper notification in a timely manner in regard to workers who have 
abandoned employment or have been terminated for cause. Employers, 
however, frequently cannot produce records of such notification when 
requested. In order to promote its enforcement policy of appropriately

[[Page 36197]]

investigating claims of abandonment or termination because of the 
potential for abuse in an effort to evade transportation, subsistence, 
three-fourths guarantee, or U.S. worker contact obligations,\70\ the 
Department proposes to require each employer to maintain records of the 
notification to the NPC, and DHS in the case of a worker in H-2A visa 
status, for not less than 3 years from the date of the certification. 
The requirement to maintain records of the notification assists in 
protecting the interests of able, willing, and qualified U.S. workers 
who might be available to perform the agricultural work, consistent 
with the INA and E.O. 13788. In addition, these records could assist 
growers in the event U.S. workers who have abandoned employment or been 
terminated for cause later assert the employer failed to contact them 
as required by proposed Sec.  655.153.
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    \70\ See Department of Labor, Wage and Hour Division, Field 
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination 
for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012), 
https://www.dol.gov/whd/FieldBulletins/fab2012_1.pdf.
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    The Department additionally notes that abandonment of employment, 
which can occur at any time during the contract period, will sometimes 
be apparent. For example, a worker may simply fail to report for work 
without the employer's consent, in which case the regulations deem the 
worker to have abandoned employment upon a failure to report to work 
for 5 consecutive working days. See 20 CFR 655.122(n). In order for an 
employer to avail itself of the abandonment exception to the typical 
requirement to contact a U.S. worker, however, the U.S. worker's 
abandonment of employment must have been voluntary. Thus, if a U.S. 
worker discontinues employment because working conditions have become 
so intolerable that a reasonable person in the worker's position would 
not stay, the worker's departure may constitute an involuntary 
constructive discharge. Specific factual circumstances dictate whether 
a constructive discharge has occurred. Although the constructive 
discharge inquiry is inherently fact-specific, the Department has 
previously identified circumstances which likely support, and 
circumstances which likely do not support, a finding of constructive 
discharge rather than job abandonment.\71\
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    \71\ See Department of Labor, Wage and Hour Division, Field 
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination 
for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012), 
https://www.dol.gov/whd/FieldBulletins/fab2012_1.pdf.
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g. Paragraph (p), Deductions
    The Department's current regulation at Sec.  655.122(p) prohibits 
unauthorized deductions. An employer must disclose any deductions not 
required by law in the job offer. The Department, however, routinely 
encounters employers who fail to disclose deductions; improperly 
withhold FICA taxes; or properly disclose and withhold federal income 
tax at the worker's request, but fail to remit the withholding to the 
proper agencies. These actions, although sometimes inadvertent, 
constitute violations of the H-2A statute and regulations.
    The Department does not propose any change to the regulation at 
Sec.  655.122(p), but seeks to clarify that according to the Internal 
Revenue Service (IRS), an employer may not withhold Federal Insurance 
Contributions Act (FICA) taxes from an H-2A worker's paycheck; and that 
an employer generally is not required to withhold federal income tax 
from an H-2A worker's paycheck. In some situations, employers may be 
prohibited from withholding federal income tax under the H-2A program.
i. FICA Taxes
    The Department follows IRS rulings with respect to taxes and 
withholdings. IRS guidelines provide that H-2A workers are exempt from 
FICA taxes, which include social security and Medicare taxes.\72\ An 
employer, therefore, may not withhold FICA taxes from an H-2A worker's 
paycheck.
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    \72\ See IRS, Publication 51 (Circular A), Agricultural 
Employer's Tax Guide 2018 11 (Jan. 25, 2018), http://www.irs.gov/pub/irs-pdf/p51.pdf.
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ii. Federal Income Tax Withholding
    Compensation paid to an H-2A worker for agricultural labor 
performed in connection with an H-2A visa is not subject to mandatory 
federal income tax withholding if the worker provides the employer a 
Social Security Number (SSN) or Individual Taxpayer Identification 
Number (ITIN).\73\ The employer may voluntarily withhold federal income 
tax when it is disclosed in the job order, provided the withholding is 
requested by the H-2A worker. The employer, however, is required to 
make ``backup withholding'' if an H-2A worker fails to provide an SSN 
or ITIN and receives aggregate annual compensation of $600 or more.\74\
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    \73\ See IRS, Publication 5144, Federal Income Tax and FICA 
Withholding for Foreign Agricultural Workers with an H-2A Visa (June 
2014), https://www.irs.gov/pub/irs-pdf/p5144.pdf.
    \74\ See Internal Revenue Service, Foreign Agricultural Workers 
on H-2A Visas (June 5, 2018), http://www.irs.gov/individuals/international-taxpayers/foreign-agricultural-workers.
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    Employers should continue to consult with the IRS or their tax 
consultants regarding federal withholding requirements and consult with 
applicable local and state tax authorities for compliance with their 
standards. Additionally, employers are encouraged to review WHD Field 
Assistance Bulletin No. 2012-3 \75\ for further information on 
compliance with the requirements for deductions under the H-2A program.
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    \75\ See Department of Labor, Wage and Hour Division, Field 
Assistance Bulletin No. 2012-3, General Guidance on Voluntary 
Assignments of Wages under the H-2A Program (May 17, 2012), https://www.dol.gov/whd/FieldBulletins/fab2012_3.pdf.
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h. Paragraph (q), Disclosure of Work Contract.
    The Department's current regulation at Sec.  655.122(q) requires an 
employer to disclose a copy of the work contract between the employer 
and the worker in a language understood by the worker as necessary or 
reasonable. The time by which the work contract must be provided 
depends on whether the worker is entering the U.S. to commence 
employment or is already present in the U.S.; however, for most H-2A 
workers, this must occur by the time the worker applies for a visa. The 
Department is retaining the current disclosure requirements with one 
minor revision. The Department proposes to specify that the work 
contract must be disclosed to those H-2A workers who do not require a 
visa to enter the United States under 8 CFR 212.1(a)(1) not later than 
the time of an offer of employment. This is the same point at which H-
2A workers who are already in the United States because they are moving 
between H-2A employers receive the work contract.
4. Section 655.123, Positive Recruitment of U.S. Workers
    The Department proposes a new section describing employers' 
positive recruitment obligations. The statute requires the Secretary to 
deny the temporary agricultural labor certification if the employer has 
not made positive recruitment efforts 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. Section 218(b)(4) of the INA, 8 U.S.C. 
1188(b)(4). The requirement for employers to engage in positive 
recruitment is in addition to, and occurs within the same time period 
as, the circulation of the job order through the

[[Page 36198]]

interstate clearance system maintained by the SWAs. Id. Proposed 
paragraph (a) reiterates these statutory requirements.
    Proposed paragraph (b) permits employers to conduct their positive 
recruitment efforts after the SWA serving the area of intended 
employment has reviewed and accepted the employer's job order for 
intrastate clearance and before the employer files an Application for 
Temporary Employment Certification. Specifically, upon acceptance of 
the job order by the SWA under Sec.  655.121, the NPC will transmit the 
accepted job order to other appropriate SWAs, thereby initiating the 
interstate clearance of the job order as set forth in Sec.  655.150. 
The employer then may commence the required positive recruitment, as 
set forth in Sec. Sec.  655.151 through 655.154.
    Under proposed paragraph (c), if the employer chooses to engage in 
prefiling positive recruitment, the employer must begin its positive 
recruitment efforts within 7 calendar days of the date on which the SWA 
accepted the job order and must continue recruiting until the date 
specified in Sec.  655.158. This timeframe will ensure that the 
employer begins its prefiling positive recruitment in a timely manner, 
and that such efforts are conducted within the same time period as the 
interstate clearance of the approved job order, as required by the 
statute.
    Permitting positive recruitment to commence prior to the filing an 
Application for Temporary Employment Certification will clearly benefit 
those employers that consistently file job orders in compliance with 
program requirements because they may be able to obtain certification 
more quickly without the need for the Department to first issue a NOA 
or a NOD. The proposal will also provide the Department with better 
information with which to make its certification determinations.
    To ensure recruitment of U.S. workers continues for an adequate 
period of time, proposed paragraph (f) prohibits the employer from 
preparing a recruitment report for submission with the Application for 
Temporary Employment Certification more than 50 calendar days before 
the first date of need. The initial recruitment report assures the 
Department that the employer is actively making efforts to conduct 
positive recruitment of U.S. workers, as required by the statute and 
this subpart.
    Proposed paragraph (e) requires the employer to accept and hire all 
qualified, available U.S. worker applicants through the end of the 
recruitment period set forth in Sec.  655.135(d), clarifying that this 
requirement applies to employers who engage in pre-filing recruitment. 
In addition, proposed paragraph (d) ensures U.S. workers have a fair 
opportunity to apply for these jobs by prohibiting preferential 
treatment of potential H-2A workers through interview requirements.
5. Section 655.124, Withdrawal of a Job Order
    The Department proposes to reorganize the current withdrawal 
provisions at Sec.  655.172 by moving the job order withdrawal 
provision from Sec.  655.172(a) to proposed Sec.  655.124, ``Withdrawal 
of a job order,'' in the sections of the regulation governing 
``Prefiling Procedures,'' which address job orders filed in 
anticipation of future Applications for Temporary Employment 
Certification. The Department proposes placing the job order withdrawal 
procedures and the job order filing and review procedures together in 
``Prefiling Procedures'' to make the rule better organized and more 
user-friendly.
    In addition to relocating the job order withdrawal provision, the 
Department proposes minor edits to the job order withdrawal provision 
for both clarity and consistency with other proposed changes. For 
example, removing ``from intrastate posting'' is necessary because both 
intrastate and interstate posting may have begun under proposed Sec.  
655.121(f). Consistent with the proposal that employers submit their 
job orders to the NPC, proposed Sec.  655.124(b) would establish the 
NPC as the recipient of job order withdrawal requests. An employer 
would submit its request to the NPC in writing, identifying the job 
order and stating its reason(s) for requesting withdrawal.
    The Department proposes no change to an employer's continuing 
obligations to workers recruited in connection with the job order; 
these obligations attach at recruitment and continue after withdrawal.

C. Application for Temporary Employment Certification Filing Procedures

1. Section 655.130, Application Filing Requirements
a. Paragraph (a), What To File
    The Department proposes to modernize and clarify the procedures by 
which an employer files an Application for Temporary Employment 
Certification for H-2A workers under this subpart. Based on the 
Department's experience administering the H-2A program under the 
current regulation, a common reason for issuing a NOD on an employer's 
application includes failure to complete all required fields on a form, 
failure to submit one or more supporting documents required by the 
regulation at the time of filing, or both. Under the current 
regulation, the NPC must issue non-substantive NODs to obtain 
information or documentation from the employer that the regulation 
expressly requires the employer to submit at the time of filing. This 
use of NPC staff resources increases processing times for all 
employers, including employers that consistently file complete and 
accurate applications.
    To address these concerns and create an incentive for employers to 
file complete applications, Sec.  655.130(a) would continue to require 
employers to file a completed Application for Temporary Employment 
Certification. For applications submitted electronically, OFLC's 
technology system will not permit an employer to submit an Application 
for Temporary Employment Certification until the employer completes all 
required fields on the forms and uploads and saves to the pending 
application an electronic copy of all documentation and information 
required at the time of filing, including a copy of the job order 
submitted in accordance with Sec.  655.121. For applications permitted 
to be filed by mail pursuant to the procedures discussed below, if an 
employer submits an application that is incomplete or contains errors, 
completing the application would require the Department to issue a NOD 
identifying any deficiencies, and for the employer to mail back a 
revised application, thus requiring a timely back-and-forth.
b. Paragraphs (c) and (d), Location and Method of Filing
    In paragraph (c), the Department proposes to require an employer to 
submit the Application for Temporary Employment Certification and all 
required supporting documentation using an electronic method(s) 
designated by the OFLC Administrator. The Department also proposes 
procedures to allow employers that lack adequate access to e-filing to 
file by mail and, for employers who are unable or limited in their 
ability to use or access the electronic application due to a 
disability, to request an accommodation to allow them to access and/or 
file the application through other means. Employers who are limited in 
their ability or unable to access electronic forms or communication due 
to a disability may use the procedures in Sec.  655.130(c)(2) to 
request an accommodation. Proposed paragraph (d)

[[Page 36199]]

adopts the use of electronic signatures as a valid form of the 
employer's original signature and, if applicable, the original 
signature of the employer's authorized attorney agent or surety.
    Unless the employer requests an accommodation due to a disability 
or adequate access to e-filing, the NPC will return, without review, 
any Application for Temporary Employment Certification submitted using 
a method other than the electronic method(s) designated by the OFLC 
Administrator. For reasons discussed earlier in this preamble, the 
Department believes this proposal will modernize and streamline the 
application filing process, will not require a change in practice for 
the overwhelming majority of employers and their authorized attorneys 
or agents, and will create significant administrative efficiencies for 
employers and the Department.
c. Paragraph (e), Scope of Applications
    The Department proposes a new paragraph (e) to clarify the scope of 
all Applications for Temporary Employment Certification submitted by 
employers to the NPC. First, proposed paragraph (e) clarifies that each 
Application for Temporary Employment Certification must be limited to 
places of employment within a single area of intended employment, 
except where otherwise permitted by the subpart (e.g., under Sec.  
655.131(a)(2), a master application may include places of employment 
within two contiguous States). This proposal addresses the lack of 
clarity in the 2010 Final Rule regarding whether an application could 
include places of employment that span more than one area of intended 
employment. The 2010 Final Rule also introduced some ambiguity by its 
revisions to Sec.  655.132(a), which specifically limited H-2ALC 
applications to places of employment within a single area of intended 
employment.
    In both the temporary and permanent labor certification programs, 
the Department has historically used the area of intended employment 
for the purpose of determining recruitment requirements employers must 
follow to locate qualified and available U.S. workers, and to aid the 
Department in assessing whether the wages, job requirements, and terms 
and conditions of the job opportunity will adversely affect workers in 
the United States similarly employed in that same local or regional 
area.
    Whether an employer is a fixed-site employer or H-2ALC, the area of 
intended employment is an essential component of the labor market test 
necessary to determine availability of U.S. workers for the job 
opportunity and to ensure that U.S. workers in the local or regional 
area have an opportunity to apply for those job opportunities located 
within normal commuting distance of their permanent residences. 
Qualified U.S. workers may be discouraged from applying for these job 
opportunities if the employer's offer of employment is conditioned on 
workers being available to perform the labor or services at places of 
employment both within and outside the normal commuting area or 
assignment to places of employment outside normal commuting distance 
from their residences, despite the availability of closer work. In 
addition, monitoring program compliance becomes more difficult and the 
potential for violations increases when workers employed under a single 
Application for Temporary Employment Certification are dispersed across 
multiple areas of intended employment. For those reasons, applications 
in the H-2A program, unless a specific exception applies, must 
generally be limited to one area of intended employment, based on which 
other regulatory requirements attach (such as recruitment, housing, and 
wages). The Department therefore proposes to make this requirement 
clearer in Sec.  655.130(e).
    Second, paragraph (e) clarifies that an employer may file only one 
Application for Temporary Employment Certification for place(s) of 
employment covering the same geographic scope, period of employment, 
and occupation or comparable work. This provision will prevent the 
Department from receiving and processing duplicate applications. This 
provision will also reduce duplicative efforts by preventing an 
employer from filing a new application for the same job opportunity 
while an appeal is pending. In addition, it clarifies that filing more 
than one Application for Temporary Employment Certification is 
necessary when an employer needs workers to perform full-time job 
opportunities that do not involve the same occupation or comparable 
work, or workers to perform the same full-time work, but in different 
areas of intended employment or with different starting and ending 
dates (e.g., ramping up or winding down operations).
d. Paragraph (f), Staggered Entry of H-2A Workers
    The Department proposes to add a new paragraph (f) to Sec.  
655.130, which permits the staggered entry of H-2A workers into the 
United States. Under this proposal, any employer that receives a 
temporary agricultural labor certification and an approved H-2A 
Petition may bring nonimmigrant workers into the United States at any 
time during the 120-day period after the first date of need identified 
on the certified Application for Temporary Employment Certification 
without filing another H-2A Petition. If an employer chooses to stagger 
the entry of its workers, it must continue to accept referrals of U.S. 
workers and hire those who are qualified and eligible through the 
period of staggering or the first 30 days after the first date of need 
identified on the certified Application for Temporary Employment 
Certification, whichever is longer, as described in more detail in the 
preamble discussing Sec.  655.135(d). Additionally, the employer must 
comply with the requirement to update its recruitment report as 
described in Sec.  655.156.
    The Department preliminarily concludes that due to the uncertain 
nature of agricultural work, permitting the option to stagger the entry 
of workers under a single Application for Temporary Employment 
Certification is necessary to provide employers with the flexibility to 
accommodate changing weather and production conditions. Agriculture, 
especially in more labor-intensive crops and commodities, is different 
from other economic sectors and has unique implications for the 
availability of labor. The agricultural production process is highly 
dependent on changing climatic and biological conditions that create 
seasonal cycles for planting, cultivating, and harvesting crops. 
Although farmers have some degree of control over when they plant their 
crops each year, there is great uncertainty regarding when and how much 
of the crop will be harvestable and, depending on its commercial value, 
how quickly the crop needs to get to the marketplace. Because 
agricultural production is highly seasonal and generally dispersed over 
a broad geographic area, timely access to the right amount of labor at 
the right places becomes essential to the success of farming 
operations. This situation becomes even more critical for small farms 
that grow a wide array of diversified crops where the planting, 
cultivating, and harvesting periods are not the same, but may occur 
sequentially or in close proximity to one another.
    Currently, employers whose needs for agricultural workers occur at 
different points of a season must file separate Applications for 
Temporary Employment Certification containing a new start date of work 
for each group of job opportunities. This means employers must repeat 
each step of the

[[Page 36200]]

labor certification process with the Department and the visa petition 
process with DHS, even though the agricultural labor or services to be 
performed is in the same occupational classification and the only 
difference is the expected start date of work. For agricultural 
associations filing as joint employers with a number of its employer-
members, the master applications are more complex and burdensome to 
prepare and file, because the agricultural association must coordinate 
the amount and timing of labor needed across numerous employer-members 
growing a wide array of different crops under the same start date of 
work. Consequently, the Department receives and processes numerous 
master applications filed by the same agricultural association, often 
one every calendar month, covering substantially the same employer-
members who need workers to perform work in the same occupational 
classification based on a different start date of work. For these 
reasons, the Department proposes to permit H-2A employers to stagger 
the entry of nonimmigrant workers into the United States.
    Furthermore, requiring those employers that choose to stagger to 
accept referrals of U.S. workers through the period of staggering or 
the first 30 days of the contract period, whichever is longer, 
sufficiently ensures that the job opportunity will remain available to 
qualified U.S. workers and that the employment of H-2A workers will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed. Under this proposal, for as long as 
there is a job opportunity that has not yet been filled by an H-2A 
worker, the job opportunity remains open, and qualified, eligible U.S. 
workers must be hired. The Department has chosen 120 days as the 
maximum period of staggering because enough has changed in the 
available labor market pool after a 4-month period that it needs to be 
retested. Limiting the staggering period to 120 days or fewer ensures 
that DOL satisfies its statutory mandate to certify that ``there are 
not sufficient workers who are able, willing, and qualified, and who 
will be available at the time and place needed, to perform the labor or 
services involved in the petition.'' 8 U.S.C. 1188(a)(1)(A).
    Employers that wish to stagger the entry of their H-2A workers into 
the United States, including a joint employer filing an Application for 
Temporary Employment Certification under Sec.  655.131(b), must notify 
the NPC in writing of their intent to stagger and identify the period 
of time, up to 120 days, during which the staggering will take place. 
This notice must be filed electronically, unless the employer was 
permitted to file by mail as set forth in Sec.  655.130(c). An 
agricultural association filing as a joint employer with its members 
(that may have different staggered entry needs) must make a single 
request on behalf of all its members duly named on the Application for 
Temporary Employment Certification and provide the NPC with the maximum 
staggered entry timeframe (i.e., the longest period of time any one 
member plans to stagger the entry of its H-2A workers). Since 
agricultural associations have a unique statutory ability to transfer 
H-2A workers among any of their certified job opportunities, the 
Department proposes that associations must accept qualified, eligible 
U.S. workers at any time during the provided staggered entry timeframe.
    Under this proposal, employers may submit notice of their intent to 
use the staggering provisions at any time after the Application for 
Temporary Employment Certification is filed through 14 days after the 
first date of need certified by the NPC, including any modifications 
approved by the CO. This timeframe balances employers' need for 
flexibility with prospective workers' need for certainty in the terms 
of employment offered. Thus, the Department proposes that an employer 
who does not submit notice of intent to use the staggering provisions 
during the requirement timeframe (i.e., no later than 14 days after the 
first date of need listed on the temporary agricultural labor 
certification issued) is not permitted to stagger entry of its workers 
and must submit a separate Applications for Temporary Employment 
Certification containing a new first date of need for those job 
opportunities with a later start date. Upon receipt of the employer's 
notice of intent to stagger, the NPC will inform all SWAs that received 
a copy of the employer's job order to extend the period of recruitment 
by the provided staggered entry timeframe, if applicable. In accordance 
with Sec.  655.121(g), the SWA(s) will keep the employer's job order in 
its active file and refer any U.S. worker who applies for the job 
opportunity through the end of the new recruitment period. In addition, 
the NPC will update the electronic job registry to ensure that the job 
order remains active through the new recruitment period, in accordance 
with Sec.  655.144(b).
    The Department modeled this new proposed paragraph on the staggered 
entry provision available to seafood employers in the H-2B program. See 
20 CFR 655.15(f)(2). That provision was added to the Interim Final Rule 
pursuant to section 108 of the Consolidated and Further Continuing 
Appropriations Act, 2015, Public Law 113-235, 128 Stat. 2130, 2464, and 
differs from the provision proposed in this NPRM in several respects. 
See 80 FR 24041, 24060. First, in the H-2B program, staggered entry is 
available only to employers in the seafood industry, while in this 
proposal, it is available to all H-2A employers that receive a 
temporary agricultural labor certification and an approved H-2A 
Petition. Because all H-2A employers may require flexibility to 
accommodate changing weather and production conditions, the staggered 
entry procedures are available to any employer participating in the 
program.
    Second, H-2B employers who stagger the entry of their nonimmigrant 
workers into the United States between 90 and 120 days after the start 
date of need must complete a new assessment of the local labor market 
during the period that begins at least 45 days after the start date of 
need and ends before 90 days after the start date of need, which 
includes listing the job in local newspapers, placing new job orders 
with the SWA, posting the job opportunity at the place of employment 
for at least 10 days, and offering the job to any qualified, available 
U.S. worker who applies. See 20 CFR 655.15(f)(2). Here, the Department 
has proposed that the approved job order being circulated for 
recruitment by the SWA remain open and that employers must hire all 
qualified, eligible U.S. workers who apply through the period of 
staggering, but the Department has not proposed employers to conduct a 
new assessment of the local labor market for staggering periods that 
exceed 90 days. For purposes of this NPRM, the Department determined 
that its proposal sufficiently protects U.S. workers and fulfills its 
statutory obligations. The Department, however, welcomes comments on 
whether additional recruitment for employers that stagger the entry of 
workers beyond 90 days should be required and what form that 
recruitment should take.
    Third, H-2B employers must sign and date an attestation form 
stating the employer's compliance with the regulatory requirements for 
staggered entry and provide a copy of the attestation to the H-2B 
worker seeking entry to the United States with instructions that the 
workers present the documentation upon request to the Department of 
State's (DOS's) consular officers when they apply for a visa and/or 
DHS's U.S. Customs and Border Protection officers when seeking

[[Page 36201]]

admission to the United States. See 20 CFR 655.15(f)(3). Here, in order 
to streamline the process and avoid additional paperwork, the 
Department plans to update Appendix A to the Form ETA-9142A to make 
clear that recruitment obligations and assurances are extended for 
those employers who stagger the entry of their H-2A workers. 
Furthermore, the Department does not propose to require H-2A workers to 
present documentation to DOS or DHS, but invites the public to comment 
on this or other aspects of the proposed procedures.
e. Paragraph (g), Information Dissemination
    Finally, the Department proposes minor editorial changes to newly 
designated paragraph (g) that permits OFLC to provide information 
received in the course of processing Applications for Temporary 
Employment Certification or in the course of conducting program 
integrity measures not only to the WHD, but to any other Federal 
agency, as appropriate, for investigative and/or enforcement purposes. 
The Department proposes this change to promote greater collaboration 
among Federal agencies with authority to enforce compliance with 
program requirements and combat fraud and abuse.
2. Section 655.131, Agricultural Association and Joint Employer Filing 
Requirements
    The Department proposes to revise this section to include 
provisions that govern the filing of Applications for Temporary 
Employment Certification by joint employers other than agricultural 
associations that file master applications. To reflect these new 
provisions, the Department proposes to rename this section, 
``Agricultural association and joint employer filing requirements.'' 
The Department is otherwise retaining the provisions at Sec.  655.131 
that govern the filing of an Application for Temporary Employment 
Certification by an agricultural association on behalf of its employer-
members, with minor revisions to the procedures for applications by 
agricultural associations. The INA requires that agricultural 
associations be permitted to file H-2A applications, including master 
applications, and that they be permitted to do so either as employers 
or agents. Section 218(c)(3)(B)(iv), (d) of the INA; 8 U.S.C. 
1188(c)(3)(B)(iv), (d). Therefore, the Department is continuing its 
longstanding practice of permitting an agricultural association to file 
an application as an employer or agent on behalf of its employer-
members, including the option to file a master application as a joint 
employer.
a. Agricultural Association Filing Requirements
    The Department's proposed rule makes no substantive changes to 
agricultural associations' filing requirements. Accordingly, the 
proposed rule permits an agricultural association to file an 
application as a sole employer, joint employer, or agent, as 
contemplated in the INA. See section 218(c)(3)(B)(iv), (d) of the INA; 
8 U.S.C. 1188(c)(3)(B)(iv), (d). The proposed rule renumbers the 
introductory paragraph as paragraph (a), and the current paragraph (a) 
would become paragraph (a)(1). The Department proposes to add a new 
paragraph (a)(3) codifying the Department's longstanding practice that 
an agricultural association that files a master application as a joint 
employer with its employer-members may sign the application on behalf 
of the employer-members, but an agricultural association that files as 
an agent may not and must obtain each member's signature on the 
application. Finally, the Department proposes to divide the current 
paragraph (b) into a new paragraph (a)(2), which addresses master 
application filing requirements, and a new paragraph (a)(4), which 
addresses the procedure for issuing a final determination to the 
association that approves the application, consistent with the proposed 
revisions to Sec.  655.162.
b. Master Applications
    Master applications are contemplated by section 218(d) of the INA, 
8 U.S.C. 1188(d), and the Department has permitted the filing of master 
applications as a matter of practice. The proposed rule retains the 
master application filing requirements currently described in paragraph 
(b), but will describe these requirements in paragraphs (a)(2) and (4), 
with minor amendments necessary to ensure the provisions are consistent 
with proposed revisions to the definition of master application in 
Sec.  655.103 and the modernization proposals that revise the Sec.  
655.162 procedures for issuance of certifications. Under the current 
regulation, the Department only certifies a master application if all 
employer-members have the same first dates of need. The Department 
proposes to permit a master application if the employer-members have 
different first dates of need, provided no first date of need listed in 
the application differs by more than 14 calendar days from any other 
listed first date of need, consistent with the proposed revision to the 
definition of master application in Sec.  655.103, as explained further 
above. The Department also proposes to delete the phrase ``just as 
though all of the covered employers were in fact a single employer'' 
because this phrase was open to the misinterpretation that the 
provisions of the regulation that govern the geographic scope of a 
master application apply to single employer filers as well. Removal of 
this phrase clarifies that this paragraph applies only to agricultural 
associations and their employer-members.
    The Department also proposes to revise the procedures for issuing 
certified applications to an agricultural association. Paragraph (b) of 
the current regulation requires the CO to send the certified 
Application for Temporary Employment Certification to the association 
and contemplates that the association will send copies of the certified 
application to its employer-members for inclusion in petitions to 
USCIS. Consistent with the proposed revisions to Sec.  655.162 below, 
proposed paragraph (a)(4) states that the CO will send the agricultural 
association a Final Determination using electronic method(s).
c. Joint Employer Filing Requirements
    The Department proposes a new paragraph (b) to codify the 
Department's longstanding practice of permitting two or more individual 
employers to file a single Application for Temporary Employment 
Certification as joint employers. This situation arises when two or 
more individual employers operating in the same area of intended 
employment have a shared need for the workers to perform the same 
agricultural labor or services during the same period of employment, 
but each employer cannot guarantee full-time employment for the workers 
during each workweek. This allows smaller employers that do not have 
full time work for an H-2A worker and lack access to an association, to 
utilize the H-2A program. Typically, there is an arrangement among the 
employers to share or interchange the services of the workers to 
provide full-time employment during each workweek and guarantee all the 
terms and conditions of employment under the job order or work 
contract.
    This proposal establishes the procedures and requirements under 
which two or more individual employers may continue to participate in 
the H-2A program as joint employers. Under proposed paragraph 
(b)(1)(i), any one of the employers may file the Application for 
Temporary Employment

[[Page 36202]]

Certification with the NPC, so long as the names, addresses, and the 
crops and agricultural labor or services to be performed are identified 
for each employer seeking to jointly employ the workers. Consistent 
with longstanding practice, any applications filed by two or more 
employers will continue to be limited to places of employment within a 
single area of intended employment covering the same occupation or 
comparable work during the same period of employment for all joint 
employers, as required by Sec.  655.130(e). Typically, this allows 
neighboring farmers with similar needs to use the program, though they 
do not, by themselves, have a need for a full time worker.
    The proposed application filing procedures for two or more 
employers under proposed Sec.  655.131(b) are different from the 
procedures for a master application filed by an agricultural 
association as a joint employer in several ways. First, unlike the 
master application provision, the employers filing a single Application 
for Temporary Employment Certification under proposed paragraph (b) 
would not be in joint employment with an agricultural association of 
which they may be members. Thus, if an agricultural association assists 
one or more of its employer-members in filing an Application for 
Temporary Employment Certification under proposed paragraph (b), the 
agricultural association would be filing as an agent for its employer-
members. Second, all employers filing an Application for Temporary 
Employment Certification under proposed paragraph (b) would have to 
have the same first date of need and require the agricultural labor or 
services of the workers requested during the same period of employment 
in order to offer and provide full-time employment during each 
workweek. In contrast, in a master application filed by an agricultural 
association, each employer-member would offer and provide full-time 
employment to a distinct number of workers during a period of 
employment that may have first dates of need differing by up to 14 
calendar days. Finally, unlike a master application where the places of 
employment for the employer-members could cover multiple areas of 
intended employment within no more than two contiguous States, the 
employers filing a single application as joint employers under proposed 
paragraph (b) would have to identify places of employment within a 
single area of intended employment.
    Proposed paragraph (b)(1)(ii) provides that each joint employer 
must employ each H-2A worker the equivalent of 1 workday (e.g., a 7-
hour day) each workweek. This requirement is in keeping with the 
purpose of this filing model, which is to allow smaller employers in 
the same area and in need of part-time workers performing the same work 
under the job order, to join together on a single application, making 
the H-2A program accessible to these employers. This requirement 
provides a limiting principle that is intended to assure that 
individual employers with full time needs use the established 
application process for individual employers, that association members 
use the statutory process provided for associations, and that joint 
applications are restricted to employers with a simultaneous need for 
workers that cannot support the full time employment of an H-2A worker. 
In this way, the Department can carry out the statutory requirements 
applicable to individual employers and to associations. The Department 
invites comments on this requirement, and how to best effectuate the 
purposes of joint employer applications.
    Each employer seeking to jointly employ the workers under the 
Application for Temporary Employment Certification would have to comply 
with all the assurances, guarantees, and other requirements contained 
in this subpart and in part 653, subpart F, of the chapter. Therefore, 
proposed Sec.  655.131(b)(1)(iii) would require each joint employer to 
sign and date the Application for Temporary Employment Certification. 
By signing the application, each joint employer attests to the 
conditions of employment required of an employer participating in the 
H-2A program, and assumes full responsibility for the accuracy of the 
representations made in the application and job order, and for all of 
the assurances, guarantees, and requirements of an employer in the H-2A 
program. In the event the Department determines any employer named in 
the Application for Temporary Employment Certification has committed a 
violation, either one or all of the employers named in the Application 
for Temporary Employment Certification can be found responsible for 
remedying the violation(s) and for attendant penalties.
    Where the CO grants temporary agricultural labor certification to 
joint employers, proposed Sec.  655.131(b)(2) provides that the joint 
employer that filed the Application for Temporary Employment 
Certification would receive the Final Determination correspondence on 
behalf of the other joint employers in accordance with the procedures 
proposed in Sec.  655.162.
3. Section 655.132, H-2A Labor Contractor Filing Requirements; and 29 
CFR 501.9, Enforcement of Surety Bond
    The Department proposes to revise the additional filing 
requirements for H-2ALCs at Sec.  655.132. First, the Department 
proposes to move language addressing the scope of H-2ALC applications 
in current paragraph (a) to proposed paragraph (e) in Sec.  655.130 to 
clarify that the geographic scope of an Application for Temporary 
Employment Certification is limited to one area of intended employment, 
except as otherwise permitted by this subpart, without regard to the 
type of employer filing the application (i.e., fixed-site employer, 
joint-employers, agricultural association filing as a sole employer or 
agent, or H-2ALC). An H-2ALC application and job order will continue to 
be limited to places of employment within a single area of intended 
employment. However, pursuant to the Department's proposed Sec.  
655.130(e) that this same limitation applies to all applications and 
job orders, the Department proposes to remove current paragraph (a) to 
eliminate any confusion or redundancy in the regulatory text.
    Therefore, the Department proposes that current paragraph (b) 
becomes paragraph (a) in the proposed rule. This paragraph continues to 
explain the enhanced documentation requirements for H-2ALCs with minor 
amendments. The Department observes that the number of H-2ALCs applying 
for temporary agricultural labor certifications has risen dramatically 
in recent years and is expected to continue to increase.\76\ Given the 
increased use of the H-2A program by H-2ALCs and the relatively complex 
and transient nature of their business operations, the Department has 
determined the enhanced documentation requirements for H-2ALCs, 
provided at the time of filing an Application for Temporary Employment 
Certification, continue to be necessary in order to protect the safety 
and security of workers and ensure basic program requirements are met. 
Under this paragraph, H-2ALCs

[[Page 36203]]

will continue to include in or with their Applications for Temporary 
Employment Certification at the time of filing the information and 
documentation listed in redesignated paragraphs (a) through (e) to 
demonstrate compliance with regulatory requirements, with the following 
proposed revisions.
---------------------------------------------------------------------------

    \76\ Based on an analysis of Applications for Temporary 
Employment Certification processed for FYs 2014 and 2017, the number 
of applications filed by H-2ALCs more than doubled from 660 (FY 
2014) to 1,410 (FY 2017), and the number of worker positions 
certified for H-2ALCs nearly tripled from approximately 24,900 (FY 
2014) to 72,400 (FY 2017). Between FYs 2014 and 2017, the average 
annual increase in H-2ALC applications requesting temporary labor 
certification was 29 percent, compared to only 18 percent for 
agricultural associations and 11 percent for individual farms and 
ranches.
---------------------------------------------------------------------------

    In proposed paragraph (e)(2), the Department proposes a minor 
editorial clarification and a technical correction. Because H-2ALC 
operations typically require transporting workers to multiple worksite 
locations owned or operated by the fixed-site agricultural business, 
the Department proposes to replace the term ``the worksite'' with ``all 
place(s) of employment'' to clarify that transportation provided by the 
fixed-site agricultural business between all the worksites and the 
workers' living quarters must comply with the requirements of this 
section. Additionally, the Department has corrected the reference for 
workers' compensation coverage of transportation from Sec.  655.125(h) 
to Sec.  655.122(h).
    In proposed paragraph (c), the Department is retaining the 
requirement that an H-2ALC is required to submit with its Application 
for Temporary Employment Certification proof of its ability to 
discharge its financial obligations in the form of a surety bond. 20 
CFR 655.132(b)(3); 29 CFR 501.9. This bonding requirement, which became 
effective in 2009, allows the Department to ensure that labor 
contractors, who may be transient and undercapitalized, can meet their 
payroll and other program obligations, thereby preventing program 
abuse. 20 CFR 655.132(b)(3); 29 CFR 501.9. Following a final decision 
that finds violations, the WHD Administrator may make a claim to the 
surety for payment of wages and benefits owed to H-2A workers, workers 
in corresponding employment, and U.S. workers improperly rejected from 
employment, laid off, or displaced, up to the face amount of the bond. 
Currently, bond amounts range from $5,000 to $75,000 depending on the 
number of H-2A workers employed by the H-2ALC under the labor 
certification. 29 CFR 501.9(c).
    Based on the Department's experience implementing the bonding 
requirement and its enforcement experience with H-2ALCs, the Department 
proposes updates to the regulations. These updates are intended to 
clarify and streamline the existing requirement and to strengthen the 
Department's ability to collect on such bonds, including by accepting 
electronic surety bonds and requiring the use of a standard bond form. 
Further, the Department proposes adjustments to the required bond 
amounts to reflect annual increases in the AEWR and to address the 
increasing number of certifications covering a significant number of 
workers (e.g., more than 150 workers).
    Under the current regulations, application requirements for an H-
2ALC, including obtaining a surety bond, are found in 20 CFR 655.132. 
Most of the requirements pertaining to bonds, however, including the 
required bond amounts and scope of bond coverage, are found in 29 CFR 
501.9. The Department has observed that a large proportion of the 
surety bonds submitted by labor contractors do not meet the 
requirements of 29 CFR 501.9. This hinders the Department's ability to 
effectively collect wages and benefits owed to workers when violations 
are found. Therefore, to make these regulations more accessible to the 
regulated community, the Department proposes moving the substantive 
requirements governing the content of labor contractor surety bonds to 
20 CFR 655.132(c) so that these requirements are in the same section as 
other requirements for the Application for Temporary Employment 
Certification.\77\ Requirements that pertain solely to the WHD's 
procedures for enforcing bonds will remain in 29 CFR 501.9.
---------------------------------------------------------------------------

    \77\ Available at https://www.foreignlaborcert.doleta.gov/h-2a.cfm.
---------------------------------------------------------------------------

    To further address the issue of noncompliant bonds and streamline 
its review of bond submissions, the Department proposes to expand the 
capabilities of the iCERT System to permit the electronic execution and 
delivery of surety bonds and to adopt a bond form that will include 
standardized bond language.
    Since the implementation of e-filing in December 2012, OFLC has 
permitted employers to upload a scanned copy of the surety bond at the 
time of filing and, upon acceptance of the application under Sec.  
655.143, provided a written notice reminding employers to submit the 
original surety bond during processing, before issuance of the 
certification.\78\ Implementing a process to accept electronic surety 
bonds will eliminate delays associated with the mailing of an original 
paper bond and promote efficiency in the review of the bonds without 
compromising program integrity. The Department, therefore, proposes to 
develop a process for accepting electronic surety bonds that would 
involve a bond form to be completed through the iCERT System, verify 
the identity and authority of signatories to the bond (the H-2ALC and 
surety's representative), allow both parties to sign the bond form 
electronically, and securely store and transmit the executed bond to 
the Department along with the rest of the application. Under this 
proposal, electronic surety bonds are required for all H-2ALCs subject 
to the Department's proposed mandatory e-filing requirement. H-2ALCs 
exempt from mandatory e-filing under Sec.  655.130(c) due to a 
disability or lack adequate access to e-filing would be permitted to 
submit paper surety bonds, along with the rest of their paper 
application.
---------------------------------------------------------------------------

    \78\ Notice, Electronic Filing of H-2A and H-2B Labor 
Certification Applications Through the iCERT Visa Portal System, 77 
FR 59672 (Sept. 28, 2012).
---------------------------------------------------------------------------

    Until such time as the Department's proposed process for accepting 
electronic surety bonds is operational, the Department will allow H-
2ALCs to submit an electronic (scanned) copy of the surety bond with 
the application, provided that the original bond is received within 30 
days of the date that the certification is issued. To ensure that the 
original bond is received within this time period, the Department 
proposes to revise Sec.  655.182 to specify that failure to submit a 
compliant, original surety bond within this time period will constitute 
a substantial violation that may warrant debarment. This proposed 
addition means that the failure to submit a compliant, original surety 
bond is also grounds for revoking the certification. This will allow 
greater flexibility and efficiency in the processing of applications 
while protecting the Department's ability to enforce the bonds. Under 
this alternative proposal, the Department still requires the use of a 
standardized form bond.
    The use of a standardized form bond will also streamline the 
processing and improve compliance with the bonding requirement. 
Currently, the bonds received by the Department vary considerably in 
wording and form. Not only does this make it more difficult to discern 
whether a bond is sufficient for the purposes of the Application for 
Temporary Employment Certification, it also results in different 
sureties and labor contractors believing they are subject to differing 
legal requirements. For instance, as discussed below, different bonding 
companies have interpreted the current regulatory language in different 
ways. The Department's proposed bond form is ETA-9142A--Appendix B. The 
Department seeks comments from the public, and particularly from 
stakeholders and those in the bond industry, on the feasibility and 
accessibility of its proposals to implement a process for accepting

[[Page 36204]]

electronic surety bonds and to use a standardized bond form.
    The proposed bond form with its standardized language is intended 
to incorporate the existing bond requirements in most respects, while 
clarifying certain requirements for the regulated community. For 
example, the proposed bond language still requires a surety to pay sums 
for wages and benefits owed to H-2A workers, workers in corresponding 
employment, and U.S. workers improperly rejected from employment, laid 
off, or displaced based on a final decision finding a violation or 
violations of 20 CFR part 655, subpart B, or 29 CFR part 501, but 
clarifies that the wages and benefits owed may include the assessment 
of interest.
    Similarly, the proposed language also clarifies the time period 
during which liability on the bond accrues, as distinguished from the 
time period in which the Department may seek payment from the surety 
under the bond. Currently 29 CFR 501.9(b) provides that bonds must be 
written to cover ``liability incurred during the term of the period 
listed in the Application for Temporary Employment Certification.'' 
Language in paragraph (d), pertaining to the time period in which 
claims can be made against a bond, permits cancellation or termination 
of the bond with 45 days' written notice to the WHD Administrator. 29 
CFR 501.9(d). This provision was intended to permit a surety to end the 
period in which a claim can be made against a bond provided that the 
minimum claims period of paragraph (d) had elapsed. Instead, some 
sureties have interpreted this language as permitting the early 
termination of the bond during the period in which liability accrues. 
The proposed bond language described below makes it clear that 
liability accrues for the duration of the period covered by the labor 
certification.
    The Department proposes several changes to the bond requirements. 
Currently, a bond must be written to cover liability incurred during 
the period of the labor certification and the labor contractor is 
required to amend the surety bond to cover any requested and granted 
extensions of the labor certification. 29 CFR 501.9(b). The 
standardized bond language proposed by the Department provides that 
liability accrues during the period of the labor certification, 
including any extension, thereby eliminating the need to amend the 
surety bond, streamlining the extension process, and reducing the risk 
of errors introduced when amending the bonds.
    The Department also proposes extending and simplifying the time 
period in which a claim can be filed against the surety. As currently 
written, the Department must be given no fewer than 2 years from the 
expiration of the labor certification in which to enforce the bond. 
This is tolled when the Administrator commences enforcement 
proceedings. After this time, sureties are permitted to terminate this 
claims period with 45 days' written notice to the WHD Administrator. 
Under the proposed rule, this period of enforcement is extended to 3 
years (and is still tolled by the commencement of enforcement 
proceedings). This does not extend the accrual of liability. Instead, 
it allows the Department more time to complete its investigations while 
retaining the ability to seek recovery from the surety. Because the 
Department's proposed standardized bond language provides more 
specificity as to the length of the claims period (3 years as opposed 
to ``no less than [2] years''), the provision allowing cancellation or 
termination of the claims period with 45 days' written notice has been 
eliminated.
    Further, the Department proposes adjusting the required bond 
amounts annually to reflect increases in the AEWR and increasing the 
bond amounts required for certifications covering a significant number 
of workers (e.g., 150 or more workers). The bonding requirement for H-
2ALCs was created because, in the Department's experience, these 
employers can be transient and undercapitalized, making it difficult to 
recover the wages and benefits owed to their workers when violations 
are found.\79\ Current required bond amounts range from $5,000 to 
$75,000, based on the number of H-2A workers to be employed under the 
labor certification, with the highest amount required for 
certifications covering 100 or more workers. 29 CFR 501.9(c). However, 
the Department has found that the current bond amounts often are 
insufficient to cover the amount of wages and benefits owed by labor 
contractors, limiting the Department's ability to seek back wages for 
workers. The Department seeks comment on the specific adjustments 
proposed, as well as alternative means of adjusting the bond amounts to 
better reflect risk and ensure sufficient coverage.
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    \79\ See 2008 Final Rule, 73 FR 77110, 77163; see also 2010 
Final Rule, 75 FR 6884, 6941 (``The Department's enforcement 
experience has found that agricultural labor contractors are more 
often in violation of applicable labor standards than fixed-site 
employers. They are also less likely to meet their obligations to 
their workers than fixed-site employers.'').
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    First, the Department proposes adjusting the current bond amounts 
to reflect the annual increase in the AEWR. For certifications covering 
fewer than 75 workers, the bond amounts have remained the same since 
2009, when the bonding requirement was implemented; for certifications 
covering 75 or more workers, the bond amounts have been unchanged since 
2010. See 2008 Final Rule, 73 FR 77110, 77231. As a result, as the AEWR 
rises, the bonds are less likely to cover the full amount of wages and 
benefits owed to workers. When the Department examined the required 
bond amounts in its 2009-2010 rulemaking, it proposed and adopted 
additional bond amounts for certifications covering 75 to 99 workers 
and those covering 100 or more workers. 2009 NPRM, 74 FR 45906, 45925; 
2010 Final Rule, 75 FR 6884, 6941. In so doing, it based the new bond 
amount for certifications covering 100 or more workers on the amount of 
wages 100 workers would be paid over a 2-week period (80 hours) 
assuming an AEWR of $9.25. 2009 NPRM, 74 FR 45906, 45925. Therefore, 
the Department proposes to adjust the existing required bond amounts 
proportionally on an annual basis to the degree that a nationwide 
average AEWR exceeds $9.25. The Department will calculate and publish 
an average AEWR annually when it calculates and publishes AEWRs in 
accordance with Sec.  655.120(b). The average AEWR will be calculated 
as a simple average of these AEWRs applicable to SOC 45-2092 
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse). To calculate 
the updated bond amounts, the Department will use the current bond 
amounts as a base, multiply the base by the average AEWR, and divide 
that number by $9.25. Until the Department publishes an average AEWR, 
the updated amount will be based on a simple average of the 2018 AEWRs, 
which the Department calculates to be $12.20. For instance, for a 
certification covering 100 workers, the Department would calculate the 
required bond amount according to the following formula:

$75,000 (base amount) x $12.20 / $9.25 = $98,919 (updated bond amount).

In subsequent years, the 2018 average AEWR of $12.20 would be replaced 
in this calculation by the average AEWR calculated and published in 
that year.
    Second, the Department proposes increasing the required bond 
amounts for certifications covering a significant number of workers 
(e.g., 150 or more workers). In recent years, the

[[Page 36205]]

Department has observed more certifications for which the current bond 
amounts do not provide adequate protection. In the first half of FY 
2018 alone, OFLC issued 75 certifications to labor contractors that 
planned to employ 150 or more workers (9.8 percent of the 
certifications issued to labor contractors). In contrast, during the 
entire FY 2014 (the first year with easily comparable data), only 28 
(4.7 percent) of the certifications issued by OFLC covered 150 or more 
workers. This represents more than a two-fold increase between 2014 and 
2018 in the percentage of certifications for crews of 150 or more 
workers; and more than a five-fold increase in the total number of such 
certifications over the same time period. Further, certifications are 
being issued that cover even larger numbers of workers. In FY 2014, no 
certifications were issued for 500 or more workers. In contrast, in the 
first half of FY 2018, several certifications have been issued which 
each cover nearly 800 workers.
    Given these dramatic increases in crew sizes, the Department 
proposes increasing the required bond amount for certifications 
covering 150 or more workers. For such certifications, the bond amount 
applicable to certifications covering 100 or more workers is used as a 
starting point and is increased for each additional set of 50 workers. 
The interval by which the bond amount increases will be updated 
annually to reflect increases in the AEWR. This value will be based on 
the amount of wages earned by 50 workers over a 2-week period and, in 
its initial implementation, would be calculated using the 2018 average 
AEWR as demonstrated:

$12.20 (2018 Average AEWR) x 80 hours x 50 workers = $48,800 in 
additional bond for each additional 50 workers over 100.

For example, a certification covering a crew of 150 workers would 
require additional surety in the amount of $48,800 (150-100 = 50; 1 
additional set of 50 workers). For a crew of 275 workers, additional 
surety of $146,400 would be required (275-100 = 175; 175/50 = 3.5; this 
is 3 additional sets of 50 workers). As explained above, this 
additional surety is added to the bond amount required for 
certifications of 100 or more workers. Thus, for a crew of 150 workers 
the required bond amount would be $147,719 ($98,919 required for 
certifications of 100 or more workers + $48,800 in additional surety). 
Likewise, for a crew of 275 workers, the required bond amount would be 
$245,319 ($98,919 + $146,400 in additional surety).
    While this may represent a significant increase in the face value 
of the required bond, the Department understands that employer premiums 
for farm labor contractor surety bonds generally range from 1 to 4 
percent on the standard bonding market (i.e., contractors with fair/
average credit or better); therefore, any increase in premiums will be 
reasonably calculated given the large number of workers potentially 
impacted. Further, the Department believes this is necessary to ensure 
fairness among labor contractors and for workers. The current framework 
``disproportionately advantages larger H-2ALCs while providing 
diminishing levels of protection for employees of such contractors''--
the very concerns which led the Department to create higher bond 
amounts for certifications covering 75 to 99 and 100 or more workers. 
2010 Final Rule, 75 FR 6884, 6941.
    Finally, because the proposed rule in Sec.  655.103 expands the 
definition of agriculture to include reforestation and pine straw 
activities, employers in these industries may qualify as H-2ALCs and 
therefore would be required to comply with the surety bond requirements 
described in this section.
    The Department seeks comments on the impact of the Department's 
proposed updates to the required bond amounts and whether these 
appropriately reflect the amount of risk that would otherwise be borne 
by workers.
    Additionally, the Department seeks comments as to whether any 
additional filing requirements for H-2ALCs are needed to ensure that 
labor contractors are able to meet H-2A program obligations.
4. Section 655.134, Emergency Situations
    The Department proposes minor amendments to Sec.  655.134 to 
provide greater clarity with respect to the procedures for handling 
Applications for Temporary Employment Certification filed on an 
emergency basis. Proposed paragraph (a) contains minor technical 
changes, including moving a parenthetical example of ``good and 
substantial cause'' to paragraph (b), where the meaning of ``good and 
substantial cause'' is discussed in more detail.
    Paragraph (b) continues to address what an employer must submit to 
the NPC when requesting a waiver of the time period for filing an 
Application for Temporary Employment Certification, including a 
statement describing the emergency situation that justifies the waiver 
request. The factors that may constitute good and substantial cause 
will continue to be nonexclusive, but the Department has clarified that 
these situations involve the substantial loss of U.S. workers due to 
Acts of God or similar unforeseeable man-made catastrophic events 
(e.g., a hazardous materials emergency or government-controlled 
flooding), unforeseeable changes in market conditions, pandemic health 
issues, or similar conditions that are wholly outside of the employer's 
control. The minor clarifications do not materially change the 
regulatory standards, but establish greater consistency with a similar 
provision contained in the H-2B regulation at Sec.  655.17.\80\
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    \80\ Pursuant to 20 CFR 655.17(b), the employer may request a 
waiver of the required time period(s) for filing an H-2B Application 
for Temporary Employment Certification based on good and substantial 
cause that ``may include, but is not limited to, the substantial 
loss of U.S. workers due to Acts of God, or a similar unforeseeable 
man-made catastrophic event (such as an oil spill or controlled 
flooding) that is wholly outside of the employer's control, 
unforeseeable changes in market conditions, or pandemic health 
issues.'' 80 FR 24041, 24116, 24117.
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    The Department also proposes changes to paragraphs (b) and (c) to 
simplify the emergency application filing process for employers and 
provide greater clarity with respect to the procedures for handling 
such applications. Consistent with the proposal in Sec.  655.121(a) to 
require employers to submit job orders to the NPC, rather than a SWA, 
the Department proposes to eliminate the requirement that an employer 
requesting an emergency situation waiver submit a copy of the job order 
concurrently to both the NPC and the SWA serving the area of intended 
employment. Rather, the employer must submit the required documentation 
to the NPC. Upon receipt of a complete waiver request, the CO promptly 
will transmit a copy of the job order, on behalf of the employer, to 
the SWA serving the area of intended employment and request review for 
compliance with the requirements set forth in Sec. Sec.  653.501(c) and 
655.122. This proposed change simplifies the application filing process 
by providing one point of submission (i.e., the NPC) for all job orders 
and will save employers time and cost by eliminating the need to file a 
duplicate copy of the job order concurrently with the NPC and the SWA. 
In addition, it makes the process for filing job orders in emergency 
situations consistent with the process for filing job orders under 
proposed Sec.  655.121.
    Under this proposal, the CO will continue to process emergency

[[Page 36206]]

Applications for Temporary Employment Certification in a manner 
consistent with the provisions set forth in Sec. Sec.  655.140 through 
655.145 and make final determinations in accordance with Sec. Sec.  
655.160 through 655.167. The CO will concurrently review the 
Application for Temporary Employment Certification, job order, other 
documentation, and statement submitted by the employer that details the 
reason(s) that necessitate the waiver request. The Department's 
proposed paragraph (c)(1) requires that the SWA inform the CO of any 
deficiencies in the job order within 5 calendar days of the date the 
SWA receives the job order. Under proposed paragraph (c)(2), if the 
employer's submission does not justify waiver of the filing timeframe 
and/or the CO determines there is not sufficient time to undertake an 
expedited test of the labor market, the CO will issue a NOD under Sec.  
655.141 that states the reason(s) the waiver request cannot be granted. 
The NOD will also provide the employer with an opportunity to submit a 
modified Application for Temporary Employment Certification or job 
order that brings the requested workers' anticipated start date into 
compliance with the required time periods for filing. In providing 
these clarifying amendments, the Department proposes to eliminate 
current procedures that require the CO to deny certification under in 
Sec.  655.164 if the waiver cannot be granted, without first providing 
the employer with an opportunity to modify the application or job order 
to bring it into compliance with the non-emergency job order filing 
timeliness requirement at Sec.  655.121(b).
    The Department believes that providing employers with an 
opportunity to submit a modified Application for Temporary Employment 
Certification or job order before a denial determination is issued will 
result in better customer service and more efficient processing for 
OFLC and employers. The Department's experience under the current 
regulation demonstrates that employers prefer to adjust their first 
date of need to comply with regulatory requirements, and thereby 
continue the application process, rather than receive a denial 
determination and either follow the procedures under Sec.  655.121 to 
submit the same job order to the NPC, revised only to list the 
anticipated start date as at least 60 days from the filing date, or 
face a time-consuming and costly appellate process. More importantly, 
the COs and SWAs expend considerable time and effort reviewing 
Applications for Temporary Employment Certification and job orders for 
compliance with regulatory requirements, and if those efforts result in 
denials, employers begin the process again and file duplicate 
applications and job orders with modified periods of employment. For 
these reasons, when an employer has failed to justify a waiver request 
and/or there is not sufficient time to undertake an expedited test of 
the labor market, the Department proposes that employers be provided an 
opportunity to modify their applications or job orders.
5. Section 655.135, Assurances and Obligations of H-2A Employers
a. Paragraph (d), 30-Day Rule
    The Department proposes to replace the 50 percent rule in Sec.  
655.135(d) with a 30-day rule requiring employers to provide employment 
to any qualified, eligible U.S. worker who applies for the job 
opportunity until 30 calendar days from the employer's first date of 
need on the certified Application for Temporary Employment 
Certification, including any modifications thereof, and a longer 
recruitment period for those employers who choose to stagger the entry 
of H-2A workers into the United States under proposed Sec.  655.130(f). 
The 50 percent rule, which requires employers of H-2A workers to hire 
any qualified, eligible U.S. worker who applies to the employer during 
the first 50 percent of the work contract period, was originally 
created by regulation as part of the predecessor H-2 agricultural 
worker program in 1978.\81\ In 1986, the 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 as well 
as review of ``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 under this section, to continue to accept qualified, 
eligible United States workers for employment after the date the H-2A 
workers depart for work with the employer.'' Section 218(c)(3)(B)(iii) 
of the INA, 8 U.S.C. 1188(c)(3)(B)(iii). In the absence of the 
enactment of Federal legislation prior to the end of the 3-year period, 
the statute instructed the Secretary to publish the findings 
immediately and promulgate an interim or final regulation based on the 
findings.
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    \81\ See 20 CFR 655.203(e) (1978); Final Rule, Temporary 
Employment of Alien Agricultural and Logging Workers in the United 
States, 43 FR 10306, 10316 (Mar. 10, 1978).
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    To comply with these requirements, the Secretary hired a research 
firm to analyze the cost-benefit impact of the 50 percent rule on U.S. 
workers, growers, and the general public. See 2008 NPRM, 73 FR 8538, 
8553. The research firm studied the impact of the 50 percent rule in 
just Virginia and Idaho, the two States that were determined to have 
the highest number of U.S. worker referrals made pursuant to the 50 
percent rule. The number of growers interviewed was extremely small, as 
the firm interviewed only those growers that actually hired U.S. 
workers because of the 50 percent rule--only 66 growers (0.1 percent) 
in all of Virginia and Idaho's total 64,346 farms (according to USDA). 
The study sought to determine the costs to employers that hire referred 
50 percent rule workers and the concomitant benefits to the U.S. 
workers hired under the rule. Even with this narrow focus, the study 
made it clear that the H-2A program was not regarded as desirable by 
growers. Of those questioned, 6 percent said they were dropping out of 
the H-2A program because of the 50 percent rule. Forty percent wanted 
the rule eliminated entirely and 33 percent wanted to alter the 
requirement by, for example, requiring the 50 percent rule workers to 
finish the season or modifying substantially the 50 percent rule by 
requiring the hiring of U.S. workers only up to a certain point before 
the first date of need.
    In 1990, pursuant to what is now section 218(c)(3)(B)(iii) of the 
INA, 8 U.S.C. 1188(c)(3)(B)(iii), ETA published an interim final rule 
to continue the 50 percent requirement.\82\ That rule was never 
finalized. In 2007, the Department commissioned a survey of stakeholder 
representatives to evaluate the effectiveness of the 50 percent rule as 
a mechanism to minimize adverse impacts of the H-2A rule on U.S. 
farmworkers. See 2008 Final Rule, 73 FR 77110, 77127 n.3. The surveyors 
for this study conducted interviews with a number of stakeholders to 
gather information on the impact of the 50 percent rule, including 
employers, SWAs, and farm worker advocacy organizations. The 
researchers found that the rule played an insignificant role in the 
program overall, hiring-wise, and had not contributed in a meaningful 
way to protecting employment for domestic agricultural workers. The 
researchers estimated that the number of agricultural hires resulting 
from

[[Page 36207]]

referrals to employers during the 50 percent rule period was 
exceedingly small, with H-2A employers hiring less than 1 percent of 
the legal U.S. agricultural workforce through the 50 percent rule. All 
surveyed stakeholder groups reported that U.S. workers hired under the 
50 percent rule typically did not stay on the job for a significant 
length of time once hired.
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    \82\ Continuation of Interim Final Rule, Labor Certification 
Process for the Temporary Employment of Aliens in Agriculture in the 
United States; ``Fifty-Percent Rule'', 55 FR 29356 (July 19, 1990).
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    In 2008, the Department eliminated the 50 percent rule, based on 
its determination that the rule created substantial uncertainty for 
employers in managing their labor supply and labor costs during the 
life of an H-2A contract and served as a substantial disincentive to 
participate in the program. 2008 Final Rule, 73 FR 77110, 77127. The 
Department determined that the obligation to hire additional workers 
mid-way through a season was disruptive to agricultural operations and 
made it difficult for agricultural employers to be certain they would 
have a steady, stable, properly trained, and fully coordinated 
workforce. Id. On the other hand, the Department found that some U.S. 
workers secured jobs through referrals made pursuant to the rule, but 
that the number of hires was small, and that many workers hired 
pursuant to the rule did not complete the entire work period. Id. at 
77127-28. Therefore, the Department concluded that the costs of the 
rule substantially outweighed any potential benefits for U.S. workers. 
Id. at 77128. However, in order to prevent the disruption of access of 
U.S. workers to agricultural employment activities and allow for the 
collection of additional data about the costs and benefits of mandatory 
post-date-of-need hiring, the Department created a 5-year transitional 
period under the Final Rule during which mandatory post-date-of-need 
hiring of qualified and eligible U.S. workers would continue to be 
required of employers for a period of 30 days after the employer's 
first date of need. Id. In effect, the Department replaced the 50 
percent rule with a 30-day rule for the transitional period.
    In 2010, the Department reinstated the 50 percent rule, concluding 
that the potential costs to employers incurred as a result of the 50 
percent rule were outweighed by the benefits to U.S. workers of having 
access to these jobs through 50 percent of the contract period. 2010 
Final Rule, 75 FR 6884, 6922. The Department cited the lack of 
definitive data as the basis for its reinstatement of the rule. Id.
    Since the implementation of the current regulation, the Department 
has gained additional experience and collected a significant amount of 
data that can assess whether the 50 percent rule is an effective means 
of protecting the employment opportunities of U.S. workers from 
potential adverse impact resulting from the employment of foreign 
workers. Specifically, as part of the audit examination process under 
Sec.  655.180, the recruitment reports submitted by employers to the 
Department are a relevant and readily available source of information 
in assessing how many U.S. workers applied for the certified job 
opportunities and at what point in time, as well as the disposition of 
each U.S. worker. Under the current regulation, an employer granted 
temporary agricultural labor certification must continue to provide 
employment to any qualified, eligible U.S. worker who applies until 50 
percent of the period of the work contract has elapsed, and update the 
recruitment report for each U.S. worker who applied through the entire 
recruitment period.\83\
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    \83\ In accordance with Sec.  655.156(b), this updated written 
recruitment report is retained by the employer and must be made 
available to the Department in the event of a post-certification 
audit or upon request by authorized representatives of the 
Secretary.
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    The Department examined the recruitment reports of 1,824 certified 
H-2A applications covering more than 33,510 jobs selected for audit 
examination and fully audited during calendar years 2016 to 2018.\84\ 
Approximately 87 percent (1,582) of the recruitment reports of 1,824 
certified H-2A applications reviewed, covering 23,324 jobs, reported 
that no U.S. workers applied for the job opportunities at any point 
during the 50 percent recruitment period. Of the remaining 13 percent 
(242) of the 1,824 certified H-2A applications, covering 10,186 jobs, 
employer recruitment reports revealed that 3,392 U.S. workers applied 
for the available job opportunities at some point from the beginning of 
the employer's H-2A recruitment efforts through 50 percent of the work 
contract period. Of those who applied, only 2,053 were reportedly 
hired, accounting for approximately 6 percent of the total 33,510 jobs 
available.
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    \84\ In accordance with Sec.  655.180(a), the 1,824 certified H-
2A applications were selected for audit examination between October 
1, 2015 and April 2, 2018, at random and based on the discretion of 
the CO. Nearly 75 percent (24,782) of the 33,500 jobs covered by the 
1,824 audited H-2A applications were located in the states of 
Florida, Georgia, New York, Louisiana, California, Kentucky, 
Washington, North Carolina, South Carolina, and Mississippi--the 
same states that consistently constitute more than 68 percent of all 
certified jobs in the H-2A program during FY 2015, 2016, and 2017.
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    Of that 13 percent, the Department conducted a detailed review of 
52 recruitment reports showing that U.S. workers applied for available 
jobs from the beginning of the employer's H-2A recruitment efforts 
through 50 percent of the work contract period. That review revealed 
that more than 84 percent of the U.S. workers who applied for the 
available job opportunities did so during the active recruitment period 
before the start date of work and through the first 30 days after the 
start date of work.\85\ For the remaining 16 percent of U.S. workers 
who applied and/or were hired more than 30 days after the start date of 
work, employer recruitment reports revealed that the overwhelming 
majority of the referral and hiring activities occurred within the next 
60 days of the recruitment period. Employers also reported that many of 
these U.S. workers who were hired either did not report to work or 
voluntarily resigned or abandoned the job shortly after beginning work.
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    \85\ Of the 2,809 U.S. workers who applied for the certified 
jobs, 50 percent (1,393) applied before the start date of work; 36 
percent (1,002) applied within 30 days after the start date of work; 
and 15 percent (414) applied more than 30 days after the start date 
of work. Of the 1,843 U.S. workers hired for the certified jobs, 47 
percent (862) were hired before the start date of work; 37 percent 
(687) were hired within 30 days after the start date of work; and 16 
percent (294) were hired more than 30 days after the start date of 
work.
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    The language of section 218(c)(3)(B)(iii) of the INA, 8 U.S.C. 
1188(c)(3)(B)(iii), suggests that when issuing regulations dictating 
whether agricultural employers should be required to hire U.S. workers 
after H-2A workers have already departed for the place of employment, 
the Department should weigh the ``benefits to United States workers and 
costs to employers.'' Based on the data described above, it appears 
that a very low number of U.S. workers apply for the job opportunity 
within thirty days after the start date of work, and even fewer after 
that; therefore, the costs of the rule to employers, including the 
actual or potential cost of returning displaced H-2A workers to the 
place from which they departed, outweigh any benefits the rule may 
provide to U.S. workers. The 50 percent rule is not an effective method 
of filling available jobs for employers needing a stable workforce and, 
according to the data, provides little benefit to U.S. workers who, 
based on the data described above, apply for jobs either before the 
start date of work or during the first 30 days after the start date of 
work. In order to balance the needs of workers and employers, proposed 
paragraph (d)(1) replaces the 50 percent rule with a rule requiring 
employers to hire qualified, eligible U.S. worker applicants for a 
period of 30 days after the employer's first date of

[[Page 36208]]

need. Requiring employers to hire workers 30 days into the contract 
period, while still disruptive to agricultural operations, shortens the 
period during which such disruptions may occur and restores some 
stability to employers that depend on the H-2A program. Moreover, it is 
clear from the data provided above that the vast majority of U.S. 
workers hired after the first date of need were hired within the first 
30 days of the period of need. Providing U.S. workers the ability to 
apply for these job opportunities 30 days into the contract period 
ensures that U.S. workers still have access to these jobs after the 
start of the contract period during the period of time they are most 
likely to apply.
    Furthermore, the Department notes that the impact of this proposed 
change on U.S. workers is minimized by the staggered entry proposal, 
discussed further in the preamble to Sec.  655.130(f). Under that 
proposal, if a petition for H-2A nonimmigrant workers filed by an 
employer is granted, the employer may bring the H-2A workers described 
in the petition into the United States at any time up to 120 days from 
the first date of need stated on the Application for Temporary 
Employment Certification. Proposed paragraph (d)(2) of Sec.  655.135 
provides that if an employer chooses to stagger the entry of H-2A 
workers, it must hire any qualified, eligible U.S. worker who applies 
for the job opportunity through the period of staggering or the end of 
the 30-day period, whichever is longer, for a period of up to 120 
calendar days from the first date of need. The Department has 
determined that in order to fulfill its statutory duty to ensure that 
foreign workers are not admitted unless sufficient U.S. workers are 
unavailable, the period during which employers are obligated to hire 
qualified and eligible U.S. workers must extend beyond 30 days to the 
last date on which the H-2A workers enter the country.
    Under proposed Sec.  655.135(d), an employer may choose the 
relative stability and predictability of a shorter recruitment period, 
or may choose the flexibility of staggering the entry of its H-2A 
workers that comes with a longer recruitment period, depending on its 
needs. In the case of staggered entry, the resulting longer recruitment 
period should be less disruptive than the 50 percent rule, since, in 
most cases in which the employer chooses to stagger the entry of its 
workers, a U.S. worker hired after the beginning of the contract period 
would not displace an H-2A worker who has already begun employment. 
Rather than displacing an H-2A worker who has already entered the 
United States and begun work, the U.S. worker would most likely fill 
one of the positions with a later start date (i.e., one of the 
staggered positions). Regardless of the employer's choice, U.S. workers 
will continue to have access to these job opportunities for a 
significant period of time after the work contract has commenced and, 
in the case of staggered entry, for a period of time almost comparable 
to that available under the 50 percent rule.
    The Department proposes conforming changes to those sections of the 
current rule that refer to the 50 percent rule. In Sec. Sec.  
655.122(h)(2) and (i)(4), 655.144(b), 655.150(b), 655.156(b), 
655.157(c), 655.220(c), and 655.225(b), the Department has replaced 
references to the 50 percent rule with language referring to the 
recruitment periods described in Sec.  655.135(b). These changes 
account for the Department's proposals both to replace the 50 percent 
rule with a 30-day rule and to require a longer recruitment period for 
those employers who choose to stagger the entry of their H-2A workers 
into the United States.
    In making the proposal to replace the 50 percent rule, the 
Department has considered available data as well as its experience 
administering the H-2A program, but it would like to consider 
additional information from the public before making a final decision. 
To that end, the Department invites comments from parties who may have 
data illustrating the costs and benefits of the 50 percent rule in the 
current labor market, particularly, comprehensive studies of the 
frequency with which H-2A employers hire U.S. workers pursuant to the 
50 percent rule. The Department also invites comments on whether, if 
the employer chooses to stagger the entry of H-2A workers, the 
resulting recruitment period should run to the last date on which the 
employer expects foreign workers to enter the country, as proposed 
herein, or if the recruitment period should extend 30 days beyond the 
period of staggering.
b. Paragraph (k), Contracts With Third Parties Comply With Prohibitions
    Finally, the Department proposes to clarify that employers engaging 
any foreign labor contractor or recruiter ``must contractually prohibit 
in writing'' the foreign labor contractor or recruiter, or any agent of 
such contractor or recruiter, from seeking or receiving payments from 
prospective employees. For employers' convenience and to facilitate 
more consistent and uniform compliance with this regulatory provision, 
the Department proposes contractual language employers must use to 
satisfy this requirement.
    The Department makes this proposal because when employers use 
recruiters, they must make it abundantly clear that their foreign labor 
contractors or recruiters and their agents are not to receive 
remuneration from prospective employees recruited in exchange for 
access to a job opportunity. The proposed contractual language 
specifies that foreign labor contractors and recruiters, and their 
agents and employees, are not to receive payments of any kind from any 
prospective employee subject to 8 U.S.C. 1188 for any activity related 
to obtaining H-2A labor certification. To help monitor compliance with 
this prohibition, the Department is retaining the requirement that 
employers make these written contracts or agreements available upon 
request by the CO or another Federal party.
6. Section 655.136, Withdrawal of an Application for Temporary 
Employment Certification and Job Order
    As discussed in the preamble discussing Sec.  655.124 above, the 
Department proposes to reorganize the current withdrawal provisions at 
Sec.  655.172 by moving withdrawal procedures for specific stages of H-
2A processing to the portion of the regulation that addresses that 
processing stage. The Department proposes to move the current 
Application for Temporary Employment Certification and related job 
order withdrawal provision from Sec.  655.172(b) to new Sec.  655.136, 
located in the ``Application for Temporary Employment Certification 
Filing Procedures'' portion of the regulation, which begins at Sec.  
655.130. By placing the provisions for Application for Temporary 
Employment Certification filing and withdrawal together, the Department 
anticipates employers will be able to find these withdrawal procedures 
more easily.
    In addition, the Department proposes to revise the current 
provision by removing language limiting withdrawal to the period after 
formal acceptance. Instead, the proposal permits employers to submit a 
withdrawal request at any time before the CO makes a final 
determination. Employers may realize after filing and before formal 
acceptance that they cannot comply with certification requirements 
(e.g., after reviewing a NOD), or for some other reason, they may no 
longer wish to pursue the application. Withdrawal is an efficient 
mechanism to end processing of the application and job order. Finally, 
proposed Sec.  655.136(b) clarifies that employers must submit

[[Page 36209]]

withdrawal requests in writing to the NPC, identifying the Application 
for Temporary Employment Certification and job order to be withdrawn 
and stating the reason(s) for requesting withdrawal.
    The Department proposes no change to an employer's continuing 
obligations to workers recruited in connection with the job order and/
or Application for Temporary Employment Certification; these 
obligations attach at recruitment and continue after withdrawal.

D. Processing of Applications for Temporary Employment Certification

1. Section 655.140, Review of Applications
    The Department proposes minor amendments to Sec.  655.140 to 
clarify existing procedures and explain the first actions available to 
the CO after initial review of the Application for Temporary Employment 
Certification, job order, and any necessary supplementary 
documentation. Under current paragraph (a), the CO conducts an initial 
review of the application and issues a NOA to the employer under Sec.  
655.143 if the application meets acceptance requirements or a NOD under 
Sec.  655.141 if the application contains deficiencies. The Department 
proposes to amend paragraph (a) by adding language that explains that 
in addition to issuance of a NOA or NOD, the CO's first action may be 
issuance of a Final Determination under Sec.  655.160. As explained in 
the preamble discussing Sec.  655.123 above, the Department proposes to 
permit the employer to conduct recruitment prior to filing its 
application. Consistent with that proposal, a Final Determination to 
certify the application may be the appropriate first action if the 
employer conducts pre-filing recruitment, provided the application 
meets all certification criteria and the employer has complied with all 
regulatory requirements necessary for certification. Likewise, a Final 
Determination to deny the application may be the appropriate first 
action if the application is incurably deficient at the time it is 
filed, such as an application filed by a debarred employer.
    The Department proposes to amend paragraph (b) to include language 
that permits the CO to send electronic notices and requests to the 
employer and permits the employer to send electronic responses to these 
notices and requests, which is consistent with current practice and 
other modernization proposals explained in this NPRM. The Department 
encourages electronic communication and OFLC currently permits H-2A 
employers to respond to notices and requests electronically. Proposed 
paragraph (b) retains the option to issue and respond to notices and 
requests using traditional methods that assure next day delivery, which 
is necessary in some cases, such as when the employer does not have 
access to e-filing methods. Proposed paragraph (b) also clarifies that 
the CO will send notices and requests to the address the employer 
provides in the Application for Temporary Employment Certification.
2. Section 655.141, Notice of Deficiency
    In paragraph (b), the Department proposes to remove language that 
allows an employer to request expedited administrative review or a de 
novo hearing of a NOD. The Department proposes this change to conform 
to the language of the INA, which requires expedited administrative 
review, or a de novo hearing at the employer's request, only for a 
denial of certification or a revocation of such a certification. See 
section 218(e)(1) of the INA, 8 U.S.C. 1188(e)(1). Because the NOD is 
neither a denial of certification nor a revocation of such a 
certification, this proposal better conforms with statutory 
requirements under the INA. For the same reason, the Department also 
proposes to remove current paragraph (c), which permits employers to 
appeal a NOD. Additionally, the Department proposes to remove language 
from paragraph (b)(5) that prohibits the employer from appealing the 
denial of a modified Application for Temporary Employment 
Certification. This change aligns this section with the language in 
Sec.  655.142(c), which permits the appeal of a denial of a modified 
application.
    In paragraph (b)(3), the Department proposes to add language to 
clarify that the employer may submit a modified job order in response 
to a NOD. This proposal conforms paragraph (b)(3) with the language in 
paragraphs (a), (b)(1), and (b)(2) of the current rule, which allows 
the CO to issue a NOD for job order deficiencies and provides the 
employer an opportunity to submit a modified job order to cure those 
deficiencies.
3. Section 655.142, Submission of Modified Applications
    The Department proposes amendments to clarify the provisions at 
Sec.  655.142 that govern the employer's submission of a modified 
Application for Temporary Employment Certification or job order. The 
Department proposes to add language to paragraphs (a) and (b) that 
clarifies the employer may submit a modified job order in response to a 
NOD, which conforms these paragraphs to the provisions at Sec.  655.141 
that permit the CO to issue a NOD for job order deficiencies and 
provide the employer opportunity to submit a modified job order to cure 
those deficiencies. Proposed paragraph (a) also clarifies that if the 
employer submits a modified application or job order, the CO will 
postpone the Final Determination for a maximum of 5 calendar days, 
consistent with the current provision that the CO's Final Determination 
will be postponed by 1 calendar day for each day the employer's 
response is untimely (i.e., past the due date for submitting a 
modification under Sec.  655.141(b)(2)).
    In addition, proposed paragraph (a) explicitly authorizes the CO to 
issue multiple NODs, if necessary, which mirrors language included at 
Sec.  655.32(a) of the 2015 Interim Final Rule that governs the H-2B 
temporary labor certification program. See 80 FR 24041, 24122. 
Authority to issue multiple NODs provides the CO with the necessary 
flexibility to work with employers to resolve deficiencies that prevent 
acceptance of their Applications for Temporary Employment Certification 
or job orders. For example, a CO may discover a deficiency while 
reviewing submissions by the employer, such as an employer's response 
to a NOD, which raises other issues that require the CO to request 
additional modifications.
4. Section 655.143, Notice of Acceptance
    The Department proposes revisions to Sec.  655.143 to clarify 
current policy and to reflect proposed changes to the organizing 
structure of this section to ensure the NOA content requirements 
reflect the proposals to amend positive recruitment requirements, such 
as labor supply State determinations in proposed Sec.  655.154(d), 
requiring the CO to transmit the job order to the SWAs for interstate 
circulation, and permitting the employer to conduct prefiling 
recruitment. As explained in the preamble discussing Sec.  655.123 
above, the Department's proposed rule permits the employer to conduct 
the positive recruitment activities required by Sec. Sec.  655.151 
through 655.154 before filing its Application for Temporary Employment 
Certification (i.e., prefiling recruitment). To ensure Sec.  655.143 is 
consistent with this proposal, the proposed content requirements for 
NOAs account for whether the employer has conducted prefiling 
recruitment, and whether that recruitment is complete and compliant 
with the

[[Page 36210]]

employer's positive recruitment obligations.
    Proposed paragraphs (b)(1)(i) through (iii) correspond with 
paragraphs (b)(1) through (3) in the current regulation and describe 
the content requirements for NOAs sent to an employer that has not 
chosen to commence positive recruitment prior to filing the Application 
for Temporary Employment Certification, or an employer that has 
submitted, along with its Application for Temporary Employment 
Certification, evidence of satisfactorily fulfilling some, but not all, 
of its positive recruitment obligations following the procedures set 
forth in proposed Sec.  655.123. The proposed content requirements are 
substantively the same as those described in current paragraphs (b)(1) 
through (3), but the Department has made minor editorial revisions to 
reflect the modification of the job order circulation procedure in 
proposed Sec.  655.150, explained in the preamble for that section. 
Under proposed paragraph (b)(1)(i), the NOA will not direct the SWA 
serving the area of intended employment to send the job order to other 
SWAs for circulation because the CO will be responsible for sending the 
job order to the appropriate SWAs under the proposed rule. Under 
proposed paragraph (b)(1)(ii), the NOA continues to direct the employer 
to engage in positive recruitment and to submit a recruitment report, 
but the Department has replaced the reference to Sec.  655.154 with 
Sec. Sec.  655.151 through 655.154 to better reflect positive 
recruitment requirements. Finally, under proposed paragraph 
(b)(1)(iii), the NOA continues to state that the employer's positive 
recruitment must occur during and in addition to SWA recruitment, and 
continues to specify the date on which the employer's positive 
recruitment obligation terminates. However, the Department has 
simplified the language by stating the employer's recruitment 
obligation ends on the date specified in Sec.  655.158, as amended in 
this proposed rule, instead of quoting that section unnecessarily.
    Proposed paragraph (b)(2) describes the content of the NOA the CO 
will send to an employer who submitted, along with its Application for 
Temporary Employment Certification, evidence of having commenced some 
or all aspects of positive recruitment, as permitted by proposed Sec.  
655.123, but failed to comply with some or all of the requirements for 
the positive recruitment activities conducted. When an employer has 
engaged in prefiling recruitment activities, the CO will evaluate that 
recruitment to ensure positive recruitment requirements at Sec. Sec.  
655.151 through 655.154 have been met and, if not, direct the employer 
to bring its recruitment into compliance. Under proposed paragraph 
(b)(2)(i), the NOA will direct the employer to conduct corrective 
positive recruitment and to submit proof of compliant advertising 
concurrently with the recruitment report. Under proposed paragraph 
(b)(2)(ii), the NOA will state that the employer's positive recruitment 
must occur during and in addition to SWA recruitment, and will 
terminate on the date specified in Sec.  655.158.
    In addition, proposed paragraph (b)(3) will require all NOAs to 
specify any other documentation or assurances the employer must provide 
in order for the Application for Temporary Employment Certification to 
meet the requirements for certification. This might include, for 
example, a required original surety bond, housing documentation, or 
MSPA Farm Labor Contractor Certificate of Registration. Under this 
provision, the CO may issue a NOA in cases where the application is 
complete and compliant for recruitment purposes, but the employer has 
not submitted all documentation required for certification. This 
reflects current practice, which allows the employer to engage in 
positive recruitment while simultaneously gathering additional 
information that will be required for certification. This process is 
more efficient than requiring the employer to submit all information 
required for certification prior to allowing the employer to commence 
recruitment.
    Finally, proposed paragraph (b)(4) retains the requirement that all 
NOAs state that the CO will issue a Final Determination not later than 
30 calendar days prior to the employer's first date of need, except in 
cases where the employer's application requires modification under 
Sec.  655.141. The Department proposes to amend paragraph (b)(4) by 
adding language that permits the CO to issue a Final Determination 
fewer than 30 calendar days prior to the employer's first date of need. 
The proposed revisions would allow the CO to hold an application that 
would otherwise be denied on the thirtieth day before the employer's 
start date to allow the employer more time to meet all certification 
requirements. For example, the SWA may have inspected the employer's 
housing and identified a repair that must be made before the housing 
certification can be issued, which the employer is in the process of 
addressing. Therefore, this proposal gives the employer a short period 
of time beyond the 30-day mark to submit the missing documentation, 
thereby minimizing unnecessary burdens and delays. Furthermore, the 
proposal minimizes inefficiencies for the NPC, which would otherwise be 
required to issue a denial and either reopen and certify the 
application following a successful appeal or fully process a second 
application for the same job opportunity.
5. Section 655.144, Electronic Job Registry
    The Department is retaining the current language of the electronic 
job registry provisions at Sec.  655.144, with the exception of three 
minor amendments to make this section consistent with other proposals 
and current practice. The Department's public disclosure of redacted 
job orders (Forms ETA-790/790A) through the electronic job registry on 
OFLC's website is essential to ensuring transparency and accountability 
in the Department's administration of the foreign labor certification 
program. In addition, the electronic job registry is a valuable 
resource for worker advocacy organizations, State and Federal agencies 
and public officials, and interested members of the public. OFLC's 
publication of job order information on the registry reduces Government 
costs and paperwork burdens by reducing the number of Freedom of 
Information Act requests the Department receives. Finally, placement of 
job orders on the electronic job registry helps to make information 
about employers' job opportunities more widely available to U.S. 
workers.
    The Department also proposes to add the phrase ``in active status'' 
to clarify that job orders must remain in active status on the 
electronic job registry until the end of the recruitment period set 
forth in Sec.  655.135(d); when the recruitment period ends, the job 
order remains on the electronic job registry in inactive status. 
Finally, the Department proposes to amend paragraph (a) by deleting the 
sentence that explains the Department will begin posting job orders on 
the registry once it has initiated operation of the registry. The 
registry is now fully operational; therefore, this sentence is 
unnecessary and should be removed.

E. Post-Acceptance Requirements

1. Section 655.150, Interstate Clearance of Job Order
    The Department is retaining Sec.  655.150, which addresses the 
process for placement of approved job orders into interstate clearance, 
with clarifying revisions necessary to conform this section to proposed 
revisions to the

[[Page 36211]]

recruitment and filing processes. The Department proposes to revise 
Sec.  655.150 consistent with the centralization of job order 
submission to, and dissemination from, the NPC as proposed in Sec.  
655.121. Under proposed Sec.  655.121(c), the employer files its job 
order with the NPC, rather than a SWA serving the area of intended 
employment. After receiving the job order from the employer, the NPC 
sends the job order to a SWA serving the area of intended employment 
for review and, after approval, circulation in that SWA's intrastate 
employment service system, as described in Sec.  655.121. The CO, 
rather than the SWA, would then transmit the approved job order to the 
appropriate SWAs for interstate clearance (e.g., SWAs serving other 
states where work will be performed) on the employer's behalf. Finally, 
proposed paragraph (a) also clarifies that the job order will be placed 
into interstate clearance in labor supply states designated by the OFLC 
Administrator, consistent with proposed changes to the labor supply 
state determination method in Sec.  655.154(d).
2. Section 655.151, Advertising in the Area of Intended Employment
    The Department recently proposed revisions to Sec.  655.151 in a 
separate proposed rule, Modernizing Recruitment Requirements for the 
Temporary Employment of H-2A Foreign Workers in the United States.\86\ 
This Proposed Rule does not propose any revisions to this section, and 
the revisions proposed in the separate rulemaking are not reflected in 
this proposed rule.
---------------------------------------------------------------------------

    \86\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the 
Department submitted a final rule of that rulemaking to OMB for 
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
---------------------------------------------------------------------------

3. Section 655.152, Advertising Content Requirements
    The Department proposes only minor editorial amendments to the 
advertising content provisions in Sec.  655.152 to clarify existing 
obligations and ensure consistency with changes made in other sections 
of this proposed rule. The Department will continue to require 
advertisements to state certain job offer information that complies 
with H-2A program requirements and is essential to apprising 
prospective workers of the job opportunity (e.g., offered wage, or wage 
range floor, no lower than the amount required under Sec. Sec.  
655.120(a) and 655.122(l)).
    The Department proposes to add the word ``content'' to the section 
title to clarify the section addresses advertising content requirements 
specifically. The Department proposes to amend the introductory 
paragraph to include a reference to Sec.  655.154 to clarify that the 
Sec.  655.152 content requirements apply to additional positive 
recruitment conducted under that section as well. The proposed 
revisions to paragraphs (a) and (d) explain that advertisements must 
include the names of each joint employer and the name of the 
agricultural association, if applicable. Finally, the Department 
proposes to delete references to employer interviews of U.S. applicants 
in paragraph (j) because the proposed rule includes this language in 
proposed Sec.  655.123, ``Positive recruitment of U.S. workers.''
4. Section 655.153, Contact With Former U.S. Workers
    The Department retains Sec.  655.153 with some minor proposed 
revisions. Section 655.153 presently requires an employer to contact, 
by mail or other effective means (e.g., phone or email),\87\ U.S. 
workers it employed in the occupation at the place of employment during 
the previous year to solicit their return to the job. This obligation 
aims to ensure that these U.S. workers, who likely have an interest in 
these job opportunities, receive notice of the job opportunities and to 
prevent the employer from effectively displacing qualified and 
available U.S. workers by seeking H-2A workers. An employer, however, 
need not contact those U.S. workers it dismissed for cause or those who 
abandoned the worksite. The Department proposes to add language to 
Sec.  655.153 requiring an employer to provide the notice described in 
Sec.  655.122(n) \88\ to the NPC with respect to a U.S. worker who 
abandoned employment or was terminated for cause in the previous year. 
The proposal also requires an employer to have provided the notice in a 
manner consistent with the NPC Federal Register notice issued under 
Sec.  655.122(n).\89\ This proposal is intended to ensure that there is 
virtually contemporaneous documentation to support an employer 
assertion that a U.S. worker abandoned employment or that it terminated 
the U.S. worker for cause. Under this proposal, the employer must 
contact former U.S. workers who abandoned employment or it terminated 
for cause if, while subject to H-2A program requirements, it fails to 
provide notice in the required manner.
---------------------------------------------------------------------------

    \87\ See 2010 Final Rule, 75 FR 6884, 6929.
    \88\ Under Sec.  655.122(n), a worker's abandonment of 
employment or termination for cause relieves an employer of 
responsibility for subsequent transportation and subsistence costs 
and the obligation to meet the three-fourths guarantee for that 
worker, if the employer provides notice to the ETA NPC, and in the 
case of an H-2A worker DHS, of the abandonment or termination.
    \89\ See Notice, Information about the DOL Notification Process 
for Worker Abandonment, or Termination for Cause for H-2A Temporary 
Agricultural Labor Certifications, 76 FR 21041 (Apr. 14, 2011).
---------------------------------------------------------------------------

    The Department may not certify an application unless the 
prospective employer has engaged in positive recruitment efforts of 
able, willing, and qualified U.S. workers available to perform the 
work. See section 218(b)(4) of the INA, 8 U.S.C. 1188(b)(4). The 
prospective employer's positive recruitment obligation is distinct 
from, and in addition to, its obligation to circulate the job through 
the SWA system. Id. E.O. 13788 requires the Department, consistent with 
applicable law, to protect the economic interests of U.S. workers. See 
82 FR 18837, sec. 2(a), 5. The requirement to notify the Department of 
abandonment and termination for cause would protect the interests of 
able, willing, and qualified U.S. workers who might be available to 
perform the agricultural work, consistent with the INA and E.O. 13788. 
In addition, the notice could assist growers in the event U.S. workers 
who have abandoned employment or been terminated for cause later assert 
the employer failed to contact them as required by Sec.  655.153.
    The proposed notice obligation should not increase the existing 
regulatory burden. Section 655.122(n) permits an employer to avoid the 
responsibility to satisfy the three-fourths guarantee as well as its 
return transportation and subsistence payment obligations when a U.S. 
worker voluntarily abandons employment or the employer terminates the 
worker for cause if the employer notifies the NPC not later than 2 
working days after the abandonment or termination. Employers already 
have a strong financial incentive to submit this notice to avoid 
responsibility for the three-fourths guarantee and return 
transportation and subsistence costs and the requirement to submit the 
notice to avoid Sec.  655.153's contact obligation is unlikely to 
change the current regulatory burden on employers.
    As noted above, Sec.  655.153 currently permits employers to 
contact U.S. workers by mail or other effective means. The regulatory 
text of the 2008 Final Rule specified that other effective means 
included phone and email contact. 73 FR 77110, 77215. The 2010 Final 
Rule removed the specific reference to phone or email contact from the 
text to simplify the regulatory language, but the 2010 preamble 
expressly stated that phone or email contact remained effective means 
to

[[Page 36212]]

contact U.S. workers. 75 FR 6884, 6929. The Department hereby reaffirms 
that phone and email contact continue to be effective means to contact 
U.S. workers.
    The Department understands there are circumstances where employers 
had not employed H-2A workers in the previous year but are now applying 
to employ H-2A workers for the current year. In those circumstances, 
employers often have employed U.S. workers in the occupation at the 
place of employment during the previous year. Similarly, a regular user 
of the H-2A program might employ U.S. workers in the pertinent 
occupation at the place of employment to provide agricultural services 
for the first time and then use the H-2A program in the succeeding 
year.
    In each instance, Sec.  655.153 requires these employers to contact 
the U.S. workers employed in the previous year. This obligation applies 
to entities that employed U.S. workers in the previous year under the 
common law definition of employer incorporated in Sec.  655.103(b). For 
example, if a grower applying to employ H-2A workers used farm labor 
contractors to provide U.S. workers during the previous year and the 
grower employed the U.S. workers under the common law of agency, then 
Sec.  655.153 requires the employer to contact those U.S. workers. In 
the event that the grower has not kept payroll records for such U.S. 
workers, the regulations implementing MSPA will typically have required 
the farm labor contractors to have furnished the grower with a copy of 
all payroll records including the workers' names and permanent 
addresses. The growers must maintain these records for 3 years. 29 CFR 
500.80(a), (c). These records should provide the employer with contact 
information for the pertinent U.S. workers.
    While the Department's proposal would continue to impose the 
contact obligation found in Sec.  655.153 on employers that did not 
participate in the H-2A program in the previous year, the proposal 
would not require such employers to have provided the NPC the notice 
described in Sec.  655.122(n) in order to avoid the obligation to 
contact U.S. workers the employer terminated for cause in the previous 
year or who abandoned the employment in the previous year.
    Finally, the proposed rule clarifies that the employer's contact 
with former U.S. workers must occur during the positive recruitment 
period (i.e., while the employer's job order is circulating with the 
SWAs in interstate clearance system and terminating on the date workers 
depart for the place of employment, as determined under Sec.  655.158) 
by including a reference to Sec.  655.158.
5. Section 655.154, Additional Positive Recruitment
    The INA requires employers to engage in positive recruitment of 
U.S. workers within a multi-State region of traditional or expected 
labor supply. Section 218(b)(4) of the INA, 8 U.S.C. 1188(b)(4). The 
Department proposes to provide greater clarity with respect to the 
procedures OFLC will use to determine the States of traditional or 
expected labor supply.
    Under the current regulation, the CO receives informal information 
from the SWAs at least once every 6 months on the availability of 
workers and interstate referrals to agricultural job openings. Based on 
that information, if traditional or expected labor supply States exist 
for an area of intended employment, the CO will designate such States 
in the NOA to inform the locations where the employer must conduct 
positive recruitment. The designation of traditional or expected labor 
supply States is not publicly accessible and, based on the Department's 
experience implementing the current regulation, has not resulted in any 
significant changes in State designations year to year.
    The Department proposes to clarify the procedure for identifying 
traditional or expected labor supply States. The OFLC Administrator 
would make an annual determination of traditional or expected labor 
supply States based primarily on information provided by the SWAs 
within 120 calendar days preceding the determination. The OFLC 
Administrator may also consider information from other sources in 
making this determination. A listing of the States designated as States 
of labor supply for each State, if any, would be published by OFLC on 
an annual basis on the OFLC website at www.foreignlaborcert.doleta.gov. 
The State designations issued by OFLC would become effective on the 
date of publication for employers who have not commenced positive 
recruitment under this subpart and would remain valid until a new 
determination is published. The Department has determined that the 
increased transparency resulting from this proposal would provide clear 
expectations for employers to meet their positive recruitment 
obligations, especially employers who choose to begin their positive 
recruitment activities as soon as their job orders are approved by the 
SWA under Sec.  655.121 and prior to the filing of an Application for 
Temporary Employment Certification under Sec.  655.123.
6. Section 655.156, Recruitment Report
    The Department proposes minor revisions to Sec.  655.156, which 
requires the employer to prepare and maintain in its records a written 
report describing recruitment steps undertaken and the results of those 
efforts, including the name and contact information of U.S. worker 
applicants, identification of recruitment sources, confirmation of 
contact with former U.S. workers, the number of applicants hired and, 
if applicable, the number of U.S. workers rejected, summarized by the 
lawful job-related reasons for such rejections. The Department will 
maintain the requirement that employers must update their recruitment 
reports throughout the recruitment period to ensure the employers 
account for contact with each prospective U.S. worker during that time. 
The Department proposes minor revisions to paragraph (a) to simplify 
language and reflect procedural changes resulting from the proposed 
positive recruitment provisions at Sec.  655.123. Finally, the 
Department proposes minor amendments to paragraphs (a)(1) and (3) to 
clarify existing obligations related to recruitment reports.
    The Department's proposed positive recruitment provisions at Sec.  
655.123, explained in more detail above, will permit an employer with 
an approved job order to begin positive recruitment prior to submitting 
its Application for Temporary Employment Certification application and 
to submit its initial recruitment report simultaneously with the 
application. Under this proposal, if an employer chooses to conduct 
prefiling positive recruitment, does so properly, and submits a 
compliant initial recruitment report at the time of filing, the CO may 
determine certification is the appropriate first action under Sec.  
655.140. Under these circumstances, the employer would not receive a 
NOA. Consistent with these proposed changes, the Department proposes to 
amend paragraph (a) of Sec.  655.156 by deleting the language that 
requires employers to submit the recruitment report on a date specified 
by the CO in the NOA. Under circumstances which require the CO to issue 
a NOA, Sec.  655.143 specifies that the NOA must direct the employer to 
submit a recruitment report.
    Additionally, the Department proposes to add language to paragraph 
(a)(1) to make explicit the employer's obligation to include in its 
recruitment report the date of advertisement for each recruitment 
source. The proposed rule also clarifies that the employer's 
recruitment report must identify the

[[Page 36213]]

specific, proper name of each recruitment source, rather than 
identifying the general type of recruitment source, like ``web page'' 
or ``online job board.'' Finally, paragraph (a)(3) of the proposed rule 
clarifies that if the employer has no former U.S. workers that it is 
required to contact, the employer must include an affirmative statement 
in the report explaining the reason(s) the recruitment report does not 
include confirmation of such contact. This amendment enables COs to 
confirm that the employer's omission of language describing contact 
with former U.S. workers was intentional, rather than inadvertent.

F. Labor Certification Determinations

1. Section 655.161, Criteria for Certification
    The Department proposes amendments to this section to clarify 
existing rules and procedures. The Department proposes to revise 
paragraph (a) by replacing references to establishment of temporary 
need and compliance with specific sections of the regulation with 
clearer language stating the employer must comply with all requirements 
of 20 CFR part 655, subpart B, necessary for certification, which 
encompasses the requirements to establish temporary need and comply 
with the specific sections referenced in the current regulation. The 
revisions to paragraph (b) clarify that the CO will count as available 
any U.S. worker whom the employer must consider and whom the employer 
has not rejected for a lawful, job-related reason. The proposed 
language does not revise the substance of the paragraph, but sets out 
the current provision in clearer terms.
2. Section 655.162, Approved Certification
    The Department proposes to amend Sec.  655.162 to accommodate two 
procedural changes that will modernize the filing process, and 
streamline both the issuance of temporary agricultural labor 
certifications to employers and the delivery of those certifications to 
USCIS. Currently, the CO issues a certification to the employer by 
completing the last page of the Form ETA-9142A, Application for 
Temporary Employment Certification, printing it on blue security paper, 
and sending the original certification using means that normally 
assures next day delivery. The employer then includes this original 
Form ETA-9142A, printed on blue security paper, in its H-2A Petition to 
USCIS.
    To both simplify and expedite this process, while maintaining 
program integrity, the Department proposes to issue certifications 
using a new Final Determination notice that would contain succinct, 
essential information about the certified application. The CO would 
send the Final Determination notice that confirms certification, as 
well as a copy of the certified Application for Temporary Employment 
Certification and job order, both to the employer and USCIS using an 
electronic method designated by the OFLC Administrator. In cases where 
an employer is permitted to file by mail as set forth in Sec.  
655.130(c), the Department would use the same electronic method to 
transmit the certification documentation directly to USCIS as all other 
electronically filed applications, but would deliver certification 
documentation to the employer using a method that normally assures next 
day delivery. Consistent with current practice, the Department would 
send a copy of the certification documentation to the employer and, if 
applicable, to the employer's agent or attorney.
    In addition to increasing processing efficiency, the Department 
anticipates these proposed procedures would reduce paperwork, time, and 
resource burdens on employers that currently must receive hard-copy 
certifications from OFLC. The proposal would reduce paperwork and 
expedite processing of petitions at USCIS, in part, by providing 
certification information directly from OFLC to USCIS electronically. 
Further, in cases in which an original certification is lost or 
misplaced, the new procedure would also eliminate the need for an 
employer to request USCIS to obtain a duplicate certification directly 
from OFLC.
3. Section 655.164, Denied Certification
    The Department proposes revisions to Sec.  655.164 to modernize the 
procedure for transmission of Final Determination notices to employers 
and make this section consistent with the proposed appeal procedures at 
Sec.  655.171. Consistent with proposed procedural changes to Sec.  
655.162 and other modernization proposals explained above in this NPRM, 
the Department proposes to require COs to send Final Determination 
notices to employers using an electronic method authorized by the OFLC 
Administrator, except where the Department has permitted an employer to 
file by mail as set forth in Sec.  655.130(c), in which case the CO 
would send the notice using a method that normally assures next day 
delivery.
    The Department proposes a revision to paragraph (a) specifying 
that, in addition to stating the reasons the certification is denied, 
the denial will cite to the relevant regulatory standards. 
Additionally, to streamline information on appealing a denied 
certification, the Department proposes to reference--in paragraphs (b) 
and (c)--the proposed appeal procedures outlined in Sec.  655.171. 
Rather than duplicate information on the request for review in each 
section that contains an appealable decision by the CO, the 
Department's proposal consolidates that information in one location at 
Sec.  655.171. In addition to decreasing duplicative information, this 
change would align the appeal information in Sec.  655.164 with the 
corresponding section in the H-2B regulations. See 20 CFR 655.53.
    Under this proposal, both regulations will house information on the 
request for review in a central location for ease of reference and 
consistency. The Department proposes, as part of this effort, to modify 
paragraph (c) to clarify that if a request for review is not submitted 
in accordance with Sec.  655.171, the CO's decision is final and the 
Department will not accept an appeal of that determination. This change 
mirrors the language used in the corresponding H-2B section. See 20 CFR 
655.53(c).
4. Section 655.165, Partial Certification
    The Department proposes revisions to Sec.  655.165 to streamline 
this section and make it consistent with other proposals in this NPRM. 
The proposed introductory paragraph explains that the CO will send 
Final Determination notices using the electronic transmission 
procedures proposed in Sec.  655.162. This paragraph also proposes a 
minor amendment to clarify that partial certification is not limited to 
U.S. workers the SWA refers to the employer. The CO can issue a full 
certification only where the employer has fully considered each U.S. 
worker who applied, whether directly or through SWA referral, and 
identified a lawful, job-related reason for not hiring the worker.
    The Department proposes a revision to paragraph (a) by specifying 
that the partial certification will cite the relevant regulatory 
standards supporting the reduction of the period of employment, the 
number of H-2A workers, or both. Additionally, as discussed in the 
preamble to Sec.  655.164, the Department proposes to replace language 
discussing appeal procedures in paragraphs (b) and (c) with a reference 
to Sec.  655.171. This proposal avoids the duplication of information 
and consolidates that information in one location at Sec.  655.171. 
This change also aligns the appeal information in Sec.  655.165 with 
the corresponding section in the H-2B regulations. See 20 CFR 655.54.

[[Page 36214]]

    Lastly, as part of efforts to ensure ease of reference and 
consistency, proposed paragraph (c) clarifies that if a request for 
review is not submitted in accordance with Sec.  655.171, the CO's 
decision is final and the Department will not accept an appeal of that 
determination. This change mirrors proposed changes to Sec.  655.164 
and the language used in the corresponding H-2B section on partial 
certification. See 20 CFR 655.54(d).
5. Section 655.166, Requests for Determinations Based on 
Nonavailability of U.S. Workers
    The Department proposes clarifying amendments to Sec.  655.166 to 
simplify the provision and to ensure consistency with the e-filing and 
certification procedures proposed in Sec. Sec.  655.130 and 655.162, 
which require all such requests to be made and responded to in writing 
using electronic methods, unless the employer requests to file a 
request for new determination by mail or for a reasonable accommodation 
using the procedures set forth in Sec.  655.130(c).
    The Department proposes to amend paragraph (b) by replacing current 
language that permits employers to request new determinations 
telephonically or using email with language consistent with the 
electronic methods proposed in this NPRM.
    Similarly, the proposal revises paragraph (c) by specifying that 
the CO would issue determination notices following the electronic or 
other methods proposed in Sec. Sec.  655.162 and 655.165.
6. Section 655.167, Document Retention Requirements of H-2A Employers
    The proposal retains, with minor clarifying amendments, the 
document retention requirements in Sec.  655.167. The proposal revises 
paragraph (c)(1)(iii) by replacing the word ``or'' with ``and'' to 
clarify that employers must comply with each recruitment step 
applicable to the Application for Temporary Employment Certification. 
In addition, the proposal clarifies that if a worker voluntarily 
abandons employment before the end of the contract period, or is 
terminated for cause, as set forth in Sec.  655.122(n), employers must 
retain records demonstrating they notified the NPC and DHS. The 
Department recently proposed revisions to Sec.  655.167 in a separate 
proposed rule, Modernizing Recruitment Requirements for the Temporary 
Employment of H-2A Foreign Workers in the United States.\90\ Those 
proposed revisions are not reflected in this proposed rule.
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    \90\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the 
Department submitted a Final Rule of that rulemaking to OMB for 
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
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G. Post Certification

1. Section 655.171, Appeals
a. General Changes
    The Department proposes to conform the text in Sec.  655.171 with 
the corresponding appeals section in the H-2B regulations to the extent 
possible. This change includes adding proposed paragraph (a) to 
describe the content of the request for review and the procedures for 
its submission. Proposed paragraph (a) draws on language from the H-2B 
appeals procedures at Sec.  655.61 as well as existing text in the H-2A 
regulations. General information on the request for review was 
previously located in sections of the H-2A regulations that discussed 
the CO's authority and procedure for issuing a specific decision (e.g., 
a denied certification). See, e.g., 20 CFR 655.164. The Department's 
proposal seeks to consolidate this information in proposed paragraph 
(a) for ease of reference and consistency with the H-2B regulations.
    In particular, the Department proposes to extend the time in which 
an employer may file a request for review from 7 calendar days to 
within 10 business days of the date of the CO's decision. This proposal 
aligns with the timeframe to request review under the H-2B regulations, 
except in one aspect. Unlike the timeframe to request review under the 
H-2B regulations, the proposal requires the request for review in H-2A 
to be received by--rather than sent to--the Chief ALJ and the CO within 
10 business days of the CO's decision. However, the Department believes 
that specifying a time for receipt of the request for review is a 
reasonable modification of the H-2B timeframe because it enables the 
Department to more easily determine if a request was filed in a timely 
manner. The proposal also allows the employer more time to develop a 
robust request, which in the case of a request for administrative 
review will serve as the employer's brief to the Office of 
Administrative Law Judges (OALJ). To this end, the Department seeks to 
clarify that the request must include the specific factual issues the 
employer seeks to have examined as part of its appeal. Having this 
information allows for the prompt and fair processing of appeals by 
providing the ALJ and the CO adequate notice regarding the nature of 
the appeal.
    The Department has additionally found that in the past, some 
requests did not identify the type of review sought by the employer, 
which could result in delays (as the ALJ asked for clarification) or a 
type of review not desired by the employer (as the ALJ presumed the 
employer requested a hearing). To avoid this situation, the Department 
proposes to include language in proposed paragraph (a) that the request 
for review clearly state whether the employer is requesting 
administrative review or a de novo hearing. The Department proposes to 
add that the case will proceed as a request for administrative review 
if the request does not clearly state the employer is seeking a 
hearing. See 8 U.S.C. 1188(e)(1) (noting the regulations must provide 
for expedited administrative review or, at the employer's request, for 
a de novo hearing). Similarly, an employer requesting a de novo hearing 
should state whether it is requesting an expedited hearing in 
accordance with proposed paragraph (e)(1)(ii), or its request for a 
hearing will be construed as requesting a non-expedited hearing. Taken 
together, this proposed change is expected to improve judicial 
efficiency and the orderly and consistent administration of appeal 
proceedings, which allows the parties and the ALJ, in turn, to 
adequately prepare for the case at hand.
    The Department proposes to clarify that where the request is for 
administrative review, the request may only contain such evidence that 
was before the CO at the time of his or her decision. The Department 
seeks the addition of this language in proposed paragraph (a), which 
tracks language in the administrative review section (proposed 
paragraph (d)), so that employers or their representative(s) can 
prepare their requests accordingly. The Department also proposes to add 
language that an employer may submit new evidence with its request for 
a de novo hearing, which will be considered by the ALJ if the new 
evidence is introduced during the hearing. The Department seeks the 
inclusion of this language in proposed paragraph (a), which tracks 
language in the de novo hearing section (proposed paragraph (e)), so 
that employers or their representative(s) can assemble their requests 
and prepare their cases accordingly.
    Similar to the reorganization of information in proposed paragraph 
(a), proposed paragraphs (b) and (c) draw on existing language in the 
H-2A regulations and language from the H-2B appeals procedures to 
reorganize information on the appeal file and the assignment of the 
case into separate sections. The Department proposes

[[Page 36215]]

minor amendments to the language of proposed paragraph (c) to clarify 
that the ALJ assigned to the case may be a single member or a three-
member panel of the BALCA. The proposed amendments to paragraphs (b) 
and (c) mirror the wording and organization of the appeals section in 
the H-2B regulations. See 20 CFR 655.61(b), (d).
    Finally, the Department proposes changes to the issuance of the 
ALJ's decision for both an administrative review and a de novo hearing. 
Proposed paragraphs (d)(4) and (e)(3) modify the individuals and 
entities that receive the ALJ's decision to align with the recipients 
of ALJ decisions under the H-2B regulations, namely, the employer, the 
CO, and counsel for the CO. See 20 CFR 655.61(f). This proposed change 
also removes language from current paragraphs (a) and (b)(2) stating 
the ALJ's decision is the final decision of the Secretary because the 
language is unnecessary in light of the OALJ's Rules of Practice and 
Procedure for Administrative Hearings. Under those rules, the ALJ's 
decision is the final agency action for purposes of judicial review 
when the applicable statute or regulation does not provide for a review 
procedure, as here. See 29 CFR 18.95; 20 CFR 655.171. In addition, the 
removal of the ``final decision'' language is consistent with the H-2B 
regulations, which lacks similar language, and does not affect the 
issue of whether the parties may appeal to the ARB, which is governed 
by other authorities issued by the Department. See 20 CFR 655.61; 
Secretary's Order 02-2012, Delegation of Authority and Assignment of 
Responsibility to the Administrative Review Board, 77 FR 69378 (Nov. 
16, 2012). To clarify an employer's existing administrative exhaustion 
obligations, however, the Department proposes to specify in proposed 
paragraph (a) that when a hearing or administrative review of a CO's 
decision is authorized in this subpart, an employer must request such 
review in accordance with Sec.  655.171 in order to exhaust its 
administrative remedies.
b. Paragraph (d), Administrative Review
    The Department proposes specific changes to address the briefing 
schedule, standard and scope of review, and the timeline for a decision 
in cases of administrative review. In proposed paragraph (d)(1), the 
Department seeks to clarify the briefing schedule so that it is 
consistent across cases of administrative review and better informs the 
ALJ's decision-making process. The current H-2A regulations governing 
administrative review do not provide for a briefing schedule,\91\ and 
the Department has found that the briefing schedule has varied across 
cases as a result. In most cases, the ALJ has permitted the CO and the 
employer to file a brief simultaneously within a certain period, 
usually 2 to 4 business days, after receipt of the OFLC administrative 
file. However, this current practice of simultaneous briefing results 
in situations where issues raised in the employer's brief are not 
addressed in the CO's brief. The CO and the employer, moreover, do not 
know when briefing is due until the issuance of the order setting the 
briefing schedule.
---------------------------------------------------------------------------

    \91\ See 20 CFR 655.171(a).
---------------------------------------------------------------------------

    In contrast, the proposed briefing schedule allows an employer that 
wishes to file a brief as part of its appeal to do so with its request 
for review. To provide the employer time to develop a brief that sets 
forth the specific grounds for its request and corresponding legal 
argument, the Department proposes to extend the time in which the 
employer may request review from 7 calendar days to within 10 business 
days of the CO's decision. The CO may then respond to the employer's 
brief within 7 business days of the receipt of the OFLC administrative 
file. Under this proposed schedule, an employer is afforded a 
predictable amount of time to present its legal arguments in one place 
and the CO may then respond to those arguments within a set timeframe. 
Similar to current practice, the employer and the CO each file one 
brief to allow for an accelerated briefing schedule. But compared with 
the practice of simultaneous briefing, the proposal more effectively 
assists the ALJ's decision-making process by allowing for a complete 
set of arguments by the employer and responses by the CO while 
providing the parties a predictable briefing schedule that remains 
expedited. The Department invites the public to comment on other ways, 
including alternative briefing procedures that address the concern for 
a predictable, effective, yet expedited briefing schedule for cases of 
administrative review.
    In proposed paragraph (d)(2), the Department seeks to incorporate 
the arbitrary and capricious standard of review into requests for 
administrative review. This proposed change codifies the Department and 
OALJ's well-established and longstanding interpretation of the standard 
of review for such requests. See J and V Farms, LLC, 2016-TLC-00022, at 
3 & n.2 (Mar. 7, 2016). As the regulation is currently silent on the 
standard of administrative review, this proposed change provides 
helpful clarity and ensures the OALJ is conducting its administrative 
review in a consistent manner.
    In proposed paragraph (d)(3), the Department seeks to include 
clarifying language that the scope of administrative review is limited 
to evidence in the OFLC administrative file that was before the CO when 
the CO made his or her decision. The Department proposes this 
clarifying language because the administrative file may contain new 
evidence submitted by the employer to the CO after the CO has issued 
his or her decision, such as when the employer submits a request for 
review with new evidence, or a corrected recruitment report with new 
information, after the CO has denied certification. Although such 
evidence is in the administrative file, the ALJ may not consider this 
new evidence because it was not before the CO at the time of the CO's 
decision. This amendment incorporates legal principles already in 
existence for H-2A cases, namely, that administrative review is limited 
to (1) evidence in the written record that was (2) before the CO when 
the CO made his or her decision.\92\
---------------------------------------------------------------------------

    \92\ See 20 CFR 655.171(a) (allowing written submissions ``which 
may not include new evidence''); Keller Farms, Inc., 2009-TLC-00008, 
at 5 (Nov. 21, 2008) (``all evidence . . . not before ETA at the 
time it made its decision will not be considered''); see also J and 
V Farms, 2016-TLC-00022, at 3 n.2 (the ``substance of [the appeals 
regulation] has remained the same since 1987'') (citation and 
internal quotation marks omitted).
---------------------------------------------------------------------------

    In proposed paragraph (d)(4), the Department has modified the 
timeline in which the ALJ should issue a decision from 5 business days 
to 10 business days after receipt of the OFLC administrative file, or 
within 7 business days of the submission of the CO's brief, whichever 
is later. This schedule conforms to the timeline in the H-2B appeals 
procedures while continuing to provide for an expedited review 
procedure. See 20 CFR 655.61(f).
c. Paragraph (e), De Novo Hearing
    The Department proposes specific changes to proposed paragraphs 
(e)(1), the conduct of a de novo hearing, and (e)(2), the standard and 
scope of review for such hearings. In proposed paragraph (e)(1), if the 
employer requests an expedited hearing, the Department proposes to 
change the time in which such a hearing must occur from 5 to 14 
business days after the ALJ's receipt of the OFLC administrative file. 
This proposed change is based on the Department's administrative 
experience and is intended to allow the parties reasonable time to 
adequately

[[Page 36216]]

prepare for a hearing while effectuating the INA's concern for prompt 
processing of H-2A applications.
    Additionally, the Department proposes to clarify that the ALJ has 
broad discretion to limit discovery and the filing of pre-hearing 
motions in a way that contributes to a fair hearing while not unduly 
burdening the parties. As is the case with the 2010 Final Rule, 29 CFR 
part 18 governs rules of procedure during the hearing process, subject 
to certain exceptions discussed in this section and part 18. Although 
29 CFR 18.50 et seq. permits an ALJ to exercise discretion in matters 
of discovery, the Department's proposed language makes explicit the 
ALJ's broad discretion to limit discovery and the filing of pre-hearing 
motions in the circumstances of a hearing under the H-2A program. The 
Department proposes to include this language because in the H-2A 
program, the time to hold a hearing and to issue a decision following 
that hearing are expedited, such that the need for limits on requests 
for discovery and the filing of pre-hearing motions is particularly 
pronounced. The administrative procedures in 29 CFR part 18, and 
particularly the sections on discovery and motions, were not 
specifically designed for the H-2A program, nor for situations that 
require an accelerated adjudication process, as is required by the H-2A 
program. As such, the Department's proposal provides the ALJ with broad 
discretion to restrict discovery and the filing of pre-hearing motions 
to situations where they are needed to ensure the fundamental fairness 
of the proceedings.
    The Department has retained the 10-calendar-day timeframe in which 
an ALJ must issue a decision after a hearing, but invites the public to 
comment on whether this time period should be modified. For cases in 
which the employer waives its right to a hearing, the Department 
proposes to clarify that the proper standard and scope of review is the 
standard and scope used for administrative review. This is because 
under the INA, the regulations must provide for expedited 
administrative review or, at the employer's request, a de novo hearing. 
See section 218(e)(1) of the INA, 8 U.S.C. 1188(e)(1). If the employer 
requests a de novo hearing, but then waives its right to such a 
hearing, the case reverts to the other option--administrative review. 
In that circumstance, the standard and scope of review for 
administrative review applies. Similarly, should an ALJ determine that 
a case does not contain disputed material facts to warrant a hearing, 
review must proceed under the standard and scope used in cases of 
administrative review.
    With regard to the standard and scope of review, the Department 
proposes to clarify that the ALJ will review the evidence presented 
during the hearing and the CO's decision de novo. This standard of 
review recognizes that new evidence may be introduced during the 
hearing and allows the ALJ, as permitted under section 218(e)(1) of the 
INA, to review such evidence and other evidence introduced during the 
hearing de novo. See 8 U.S.C. 1188(e)(1) (noting regulations shall 
provide for a de novo administrative hearing at the applicant's 
request). Similarly, the INA permits the ALJ to review the CO's 
decision de novo when the employer requests a de novo administrative 
hearing. See id. As the INA supports a de novo standard of review, the 
Department proposes to codify it in the regulations so that the 
standard is clearly and consistently applied.
    In addition, the Department has recognized that there may be 
instances when the issues are purely legal, or when only limited 
factual matters are necessary to determine the issues in the case. 
Proposed paragraphs (e)(2) and (e)(1)(ii) have been revised to address 
this possibility and provide that the ALJ may determine the issues 
following a hearing only on the disputed factual issues, if any. The 
OALJ already relies on mechanisms, including, but not limited to, 
status conferences and prehearing exchanges, to determine which issues 
raised in the request for review can be resolved as a matter of law and 
which issues involve disputed material facts requiring the introduction 
of new evidence during a hearing. The Department's proposed language 
acknowledges and codifies this existing practice.
    The Department also proposes to clarify that if new evidence is 
submitted with a request for de novo hearing, and the ALJ determines 
that a hearing is warranted, the new evidence submitted with the 
request for review must be introduced during the hearing to be 
considered by the ALJ. This proposed change continues to allow for the 
introduction of new evidence, and for the de novo review of that 
evidence by the ALJ, while ensuring new evidence submitted with a 
request for review is subject to the same procedures that apply to new 
evidence introduced during a hearing, such as the opportunity for 
cross-examination and rebuttal.
    Finally, as part of its efforts to conform this section with the 
appeals section in the H-2B regulations, the Department intends to move 
language that the ALJ must affirm, reverse, or modify the CO's 
decision, or remand to the CO for further action from proposed 
paragraph (e)(3) to proposed paragraph (e)(2), which addresses the 
standard and scope of review.
2. Section 655.172, Post-Certification Withdrawals
    The Department proposes to revise Sec.  655.172 by relocating the 
job order withdrawal provision from Sec.  655.172(a) to proposed Sec.  
655.124 and the Application for Temporary Employment Certification 
withdrawal provision from Sec.  655.172(b) to proposed Sec.  655.136, 
as discussed in the preamble for those sections. As a result, proposed 
Sec.  655.172 addresses only the withdrawal of certifications, which is 
appropriate because Sec.  655.172 is located in the post-certification 
section of the regulation. This new provision includes proposed 
procedures for requesting withdrawal that are consistent with those an 
employer must follow to request withdrawal of a job order or an 
Application for Temporary Employment Certification and job order: all 
withdrawal requests must be made in writing and submitted to the NPC, 
and must identify the certification to be withdrawn and state the 
reasons for the employer's request. Also, the proposed language 
reiterates that withdrawal does not nullify an employer's obligations 
to comply with the terms and conditions of employment under the 
certification.
3. Section 655.173, Setting Meal Charges; Petition for Higher Meal 
Charges
    The Department is retaining the methodology used to adjust meal 
charge rates annually and the requirement that an employer charge 
workers no more than the allowable meal charge set by the regulation, 
unless the CO approves a higher meal charge amount and, then, only 
after the effective date the CO specifies. For clarity, in paragraph 
(a) the Department proposes to replace the standard meal charge in 
effect in 2010 when the current regulations were published (i.e., 
$10.64) with the current amount of $12.26 per day. The Department 
proposes one additional revision in paragraph (a), which would make the 
annually adjusted meal charge effective on a date specified in the 
Federal Register notice, which would be no more than 14 calendar days 
after publication in the Federal Register. This proposal would provide 
a brief period for adjustment to updated rates.
    In paragraph (b), the Department will continue to allow employers 
to petition for authorization to charge workers more than the standard 
meal charge set

[[Page 36217]]

under paragraph (a), provided the employer justifies the requested 
higher meal charge. The provision retains the basic process for 
requesting higher meal charges, with clarifying edits, including a 
revision to clarify that a request to charge a higher amount will be 
denied if the employer's documentation does not justify the amount 
requested, or if the amount requested exceeds the permitted maximum 
higher meal charge. In addition, the proposal provides that the maximum 
higher meal charge would be adjusted in the same manner as the standard 
meal charge.
    The Department is retaining the requirement that an employer that 
directly provides meals to workers (i.e., through its own kitchen 
facilities and cooks) submits the documentation specified in paragraph 
(b)(1)(i) and ensures that its requested higher meal charge includes 
only permitted costs. Increasingly, however, employers submit higher 
meal charge requests based on the employer's costs to provide meals to 
workers through a third party (e.g., hiring a food truck to prepare and 
deliver meals or engaging restaurants near the housing or place of 
employment to provide meals). Therefore, the Department proposes 
documentation requirements in new paragraph (b)(1)(ii) that address 
situations in which the employer has engaged the services of a third 
party to provide meals to workers. Proposed paragraph (b)(1)(ii) would 
require documentation identifying each third party engaged to prepare 
meals, describing how the employer's agreement with each third party 
will fulfill the employer's obligation to provide three meals a day to 
workers, and documenting each third party's charges to the employer for 
the meals to be provided. Proposed paragraph (b)(1)(ii) would also 
prohibit the employer, or anyone affiliated with the employer, from 
receiving a direct or indirect benefit from a higher meal charge to a 
worker. Finally, this paragraph requires the employer to retain records 
of payments to the third party and deductions from worker's pay.
    The Department proposes minor revisions to paragraph (b)(2) to 
clarify that the employer may not begin charging higher rates for meals 
until it has received the CO's approval and it has disclosed the new 
rate to workers. The proposed changes also clarify that a CO's decision 
approving a request to charge a higher rate is valid only with respect 
to the arrangement described in the documentation submitted with the 
employer's request. If such arrangement changes, the employer may 
charge no more than the maximum amount permitted under paragraph (a), 
until the employer submits, and the CO approves, a new petition for a 
higher meal charge.
    As a further measure to ensure that an employer's choice to engage 
a third party to provide three meals a day to workers does not 
unreasonably reduce workers' wages, in paragraph (b), the Department 
proposes implementing a ceiling on the maximum amount the CO may 
approve as a higher meal charge amount. An objective ceiling on 
allowable higher meal charges would not only ensure workers' wages are 
not subject to improper deductions, but also would provide 
predictability on meal charges, enabling employers and workers to make 
more informed financial decisions involving the meal charge included in 
the job offer. An employer would be able to make informed business 
decisions, knowing the maximum amount it may be permitted to charge 
workers for providing meals, regardless of the specific way in which it 
chooses to provide meals to workers, while the worker would be assured 
that the worker will not be charged more than the maximum higher meal 
charge amount set by the regulation.
    The proposed maximum allowable higher meal charge is consistent 
with the Department's use of a ceiling on higher meal charge amounts 
prior to the implementation of the 2008 Final Rule.\93\ The proposed 
ceiling of $14.94 per day is derived from the last maximum allowable 
higher meal charge amount published in the Federal Register and 
effective in 2008 (i.e., $12.27 per day), updated using the same 
methodology as in paragraph (a) to adjust the standard meal charge 
amount.\94\ This higher meal charge ceiling would be adjusted annually 
using the same methodology as is currently in place for adjusting 
standard meal charge amounts in paragraph (a).
---------------------------------------------------------------------------

    \93\ Notice, Allowable Charges for Agricultural and Logging 
Workers' Meals, 73 FR 10288 (Feb. 26, 2008). See page I-28 of the 
ETA Handbook NO. 398, discussing the methods used to provide meals 
and meal charge limits. At that time, employers used a centralized 
cooking and feeding facility at the place of employment; arranged 
for a catering service to prepare meals elsewhere and deliver them 
to the employer's place of employment; or furnished at no cost to 
the workers convenient cooking and eating facilities of sufficient 
size and capacity (including utensils) which would enable workers to 
prepare their own meals. Where the employer provided meals, its 
daily charge for providing three meals could not exceed the standard 
amount permitted by the regulations, absent a higher meal charge 
request at 20 CFR 655.102 or the maximum higher meal charge amount 
permitted at 20 CFR 655.111.
    \94\ 73 FR 10288.
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    The Department invites comments on methods for processing and 
evaluating higher meal charge requests involving third-party prepared 
meals, including documentation requirements and the process for 
determining and updating a higher meal charge ceiling. In particular, 
the Department invites comments on alternative methods for determining 
and updating a higher meal charge ceiling that will not inhibit the 
provision of sufficient, adequate meals and will not reduce workers' 
wages without justification. For example, the Department invites 
comments on whether an appropriate higher meal charge ceiling could be 
set in relation to worker's wages (e.g., as proportion of the AEWR 
applicable to the job opportunity or the actual wage offered to the 
worker, or average local, regional, or national meal costs).
4. Section 655.175, Post-Certification Amendments
    The Department proposes to add a new Sec.  655.175 that would 
permit an employer to request minor amendments to the places of 
employment listed in an approved certification under certain limited 
conditions. The Department's current regulations offer some options for 
an employer to address changed circumstances after certification, such 
as the option to file a new Application for Temporary Employment 
Certification based on good and substantial cause under the emergency 
processing provisions at Sec.  655.134. However, the current rule does 
not permit amendments to an application after the CO has issued a Final 
Determination. Therefore, the Department proposes this new section to 
provide employers some flexibility to respond to unforeseen 
circumstances arising after certification is granted. The Department 
continues to expect an employer to ensure bona fide work is available 
at all places of employment disclosed in its Application for Temporary 
Employment Certification and to take into consideration all foreseeable 
circumstances and factors within its control when describing the need 
for H-2A workers on its application. This is critically important so 
that the recruitment conducted in connection with that application 
appropriately tests the U.S. labor market and the Department's 
determination as to whether insufficient U.S. workers are available at 
the time and place needed by the employer is accurate.
    In proposed paragraph (a), the Department proposes to permit post-
certification amendments to the certified places of employment as long 
as (1) the employer has good and substantial cause for the requested 
amendment; (2) the circumstances underlying the amendment request

[[Page 36218]]

could not have been reasonably foreseen before certification and are 
outside the employer's control; (3) the material terms and conditions 
of the job order are not affected by the requested amendment; and (4) 
the new places of employment requested are within the certified areas 
of intended employment. The proposal limits post-certification 
amendments to situations in which good and substantial cause exists, 
such as when an employer requires immediate adjustments to places of 
employment within the certified area of intended employment in order to 
respond to unforeseen emergent situations that may jeopardize or 
severely damage crops or other agricultural commodities. For example, a 
post-certification amendment may be available when an Act of God 
severely damages some of the employer's crops and, as a result, the 
work scheduled to be performed at that places of employment is no 
longer needed, while crops at other locations within the same area of 
intended employment need urgent attention. As defined in the emergency 
situations provision at Sec.  655.134, ``[g]ood 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.''
    The proposal also limits post-certification amendments to 
situations in which the reasons for the request could not have been 
reasonably foreseen before certification and are wholly outside the 
employer's control. In situations where the employer could foresee the 
need for amendment after filing, but prior to the CO issuing a Final 
Determination, the employer may request amendment under the provisions 
set forth at Sec.  655.145. For example, if unusually heavy storms and 
rains occur before the employer files its Application for Temporary 
Employment Certification, impacts on crop conditions are known or 
reasonably foreseeable before the CO issues the Final Determination. 
Further, staffing levels are within the employer's control. Therefore, 
related minor modifications to the job order and Application for 
Temporary Employment Certification would be appropriately addressed 
through a pre-certification amendment request under Sec.  655.145. If 
the employer experiences normal, predictable, or foreseeable 
circumstances within its control that would cause a reasonable employer 
to take mitigation measures in advance of receiving certification, the 
employer will be required to submit a new Application for Temporary 
Employment Certification. For example, in an area where the local or 
State government has announced plans to release water from a reservoir 
to provide more water to farmers, which has become an annual event, and 
the employer's fields are known to be more productive when they receive 
more water, the release of reservoir water is a normal, predictable, 
and foreseeable event that is not extraordinary or unforeseeable.
    The circumstances under which the Department proposes to permit 
post-certification amendments are limited to ensure the amendments will 
not compromise the terms and conditions of the job offer contained in 
the certification, apart from the specific places of employment within 
the certified area of intended employment. In addition, post-
certification amendments must not compromise the underlying 
determinations the CO made when issuing the certification, most 
importantly the determinations ``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.'' Section 218(a)(1) of 
the INA, 8 U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii); 20 CFR 655.103(a).
    Finally, under this proposal, all places of employment an employer 
requests to add to the certification must be located within the same 
areas of intended employment as the certification issued. When an 
employer requires agricultural labor or services at a place of 
employment not located within the area of intended employment 
certified, the employer would be required to file a new Application for 
Temporary Employment Certification, and engage in a labor market test 
to support the determinations required by Sec.  655.100.
    Proposed paragraph (b) outlines the procedures for requesting post-
certification amendments. An employer desiring amendment to its 
approved places of employment would submit a written request to the 
NPC. The request would specify the certified places of employment the 
employer wishes to add or remove from the certification, the expected 
start and end dates of work at each place of employment, and if the 
places of employment are not owned or operated by the employer, the 
fixed-site agricultural businesses to which the employer would be 
providing labor or services. In addition, the employer must provide a 
description of the good and substantial cause justifying the need for 
the amendments requested and explain how the circumstances were not 
reasonably foreseeable and are wholly outside the employer's control.
    Proposed paragraph (b) would also require the employer's amendment 
request to include three assurances. First, the employer would assure 
the amendments requested would not change the material terms and 
conditions of the work contract underlying the certification. This 
assurance informs the CO that the employer has taken necessary steps to 
ensure that it continues to meet its program obligations. For example, 
if an employer sought to add a place of employment across a State 
border from its certified places of employment, the employer would be 
required to have or secure workers' compensation coverage adequate for 
the new State and pay the required wage rate for the new State, if 
higher than the certified wage offer, as appropriate. An employer 
seeking to add a place of employment it does not own or control would 
be required to secure additional documents to cover the new location 
where it will be acting as an H-2ALC (e.g., a fully-executed contract 
for that place of employment and any additional employee transportation 
authorizations required by the MSPA Farm Labor Contractor Certificate 
of Registration provisions due to the changed circumstances). Further, 
this assurance informs the CO that the labor or services to be provided 
at the new place of employment are the same as the work performed under 
the temporary agricultural labor certification.
    Second, the employer would be required to assure that it complied 
with its duty to provide a copy of the modified job order to workers. 
See 20 CFR 655.122(q). Third, the employer would assure that it will 
retain and make available all documentation substantiating the 
amendment request, if approved by the CO, following the procedures at 
Sec.  655.167. For example, an H-2ALC would be required to retain, and 
submit upon request, the fully-executed work contract with the grower 
at each place of employment added.
    Proposed paragraph (c) sets forth the procedures for processing 
amendment requests. Given the urgency of the circumstances under which 
an employer would submit a post-certification amendment request, the 
Department proposes the CO to review the employer's request and issue a 
decision within 3 business days of receipt. In deciding whether to 
grant the request, the CO would take into

[[Page 36219]]

consideration whether the employer sufficiently justified its request, 
whether the employer provided the necessary assurances, and how the 
amendment will affect the underlying labor market test for the job 
opportunity. Amendments would not be effective unless and until 
approved by the CO.
    The Department invites comments on all aspects of the proposal to 
allow post-certification amendments. For example, the Department seeks 
comments on whether post-certification amendments should be permitted 
and, if so, the conditions under which an employer should be permitted 
to request amendments to a certification. The Department is 
particularly interested in comments that address the types of 
circumstances that should be considered extraordinary and unforeseeable 
for the purposes of post-certification amendments and the volume and 
frequency of post-certification amendments anticipated. The Department 
also invites comment on methods through which the Department can 
balance employers' needs to adapt quickly to changed circumstances with 
the Department's need to protect the integrity of the labor 
certification program, such as comments that explain the advantages or 
disadvantages of an attestation-based amendment process and alternative 
processes. The Department is especially interested in comments that 
specify the types of limitations it should impose on post-certification 
amendments, such as comments that address the necessity of a time limit 
on post-certification amendment requests, and whether the Department 
should consider alternatives, such as limiting requests to 45 days 
after certification, after which time the employer could submit an 
emergency processing request; 30 days after certification, consistent 
with the proposed end of the recruitment period for the certification; 
or 60 days after certification, consistent with the normal timeframe 
for submitting the job order. Finally, the Department seeks comments 
regarding the reasonableness of the timeframe for CO review and 
determination.

H. Integrity Measures

1. Section 655.180, Audit
    The Department proposes minor revisions to this section to clarify 
the procedures by which OFLC conducts audits of applications for which 
certifications have been granted. Proposed revisions to paragraphs 
(b)(1) and (2) clarify that audit letters will specify the 
documentation that employers must submit to the NPC, and that such 
documentation must be sent to the NPC not later than the due date 
specified in the audit letter, which will be no more than 30 calendar 
days from the date the audit letter is issued. In paragraph (b)(2), the 
Department proposes to revise the timeliness measure from the date the 
NPC receives the employer's audit response to the date the employer 
submits its audit response. This change is more consistent with other 
filing requirements contained in this proposed rule and better ensures 
employers' ability to timely submit their responses. Proposed revisions 
to paragraph (b)(3) clarify that partial audit compliance does not 
prevent revocation or debarment. Rather, employers must fully comply 
with the audit process in order to avoid revocation under Sec.  
655.181(a)(3) or debarment under Sec.  655.182(d)(1)(vi) based on a 
finding that the employer impeded the audit.
    The Department proposes adding language to paragraph (c) to clarify 
that the CO can issue more than one request for supplemental 
information if the circumstances warrant. It is current practice for 
the CO to issue multiple requests for supplemental information to 
ensure employers have every opportunity to comply fully with audit 
requests and to ensure the CO's audit findings are based on the best 
record possible; this proposal would codify that practice.
    Finally, the Department proposes revisions in paragraph (d) to 
clarify the referrals a CO may make as a result of audit, including 
updating the name of the office within the Department of Justice, Civil 
Rights Division, Immigrant and Employee Rights Section, that will 
receive referrals related to discrimination against eligible U.S. 
workers.
2. Section 655.181, Revocation
    The Department proposes minor revisions to paragraph (b)(2) of this 
section to clarify that if an employer does not appeal a final 
determination to revoke a certification according to the procedures in 
proposed Sec.  655.171, that determination will become final agency 
action. The Department has removed language referring to the timeline 
for filing an appeal, as that information is provided in proposed Sec.  
655.171.
3. Section 655.182, Debarment; 29 CFR 501.16, Sanctions and Remedies--
General; 29 CFR 501.19, Civil Money Penalty Assessment; 29 CFR 501.20, 
Debarment and Revocation; 29 CFR 501.21, Failure To Cooperate With 
Investigations; 29 CFR 501.41, Decision and Order of Administrative Law 
Judge; 29 CFR 501.42, Procedures for Initialing and Undertaking Review; 
29 CFR 501.43, Responsibility of the Office of Administrative Law 
Judges; 29 CFR 501.44, Additional Information, if Required; and 29 CFR 
501.45, Final Decision of the Administrative Review Board
    The Department proposes to revise the debarment provision for the 
H-2A labor certification program to improve integrity and promote 
compliance with program requirements. Under the INA, the Department may 
not issue a certification for an H-2A worker if the Secretary has 
determined that the employer substantially violated a material term or 
condition of the labor certification with respect to the employment of 
domestic or nonimmigrant workers. Section 218(b)(2)(A) of the INA, 8 
U.S.C. 1188(b)(2)(A). The Department implemented this INA provision by 
enacting regulations allowing the debarment of employers, and later 
agents and attorneys, and their successors in interest, who appeared 
before it, and the effect of the debarment was that a debarred entity 
will not be issued future labor certifications. See 20 CFR 655.182(a), 
(b); 20 CFR 655.118(a) (2008); 20 CFR 655.110(a) (1987). The Department 
proposes to revise Sec.  655.182 to clarify that if an employer, agent, 
or attorney is debarred from participation in the H-2A program, the 
employer, agent, or attorney, or their successors in interest, may not 
file future Applications for Temporary Employment Certification during 
the period of debarment. See proposed 20 CFR 655.182(b). If any such 
applications are filed, the Department will deny them without review. 
See id. The proposed revision to Sec.  655.182 does not change the 
regulation's current prohibition on debarred entities' participation in 
the H-2A program in ways other than the filing of the Application for 
Temporary Employment Certification, such as placing advertisements, or 
recruiting workers.
    When an application is filed by a debarred entity under the current 
regulations, the Department's practice has been to issue a NOD before 
denying the application pursuant to Sec.  655.182. However, the INA 
does not require the issuance of such a notice in this

[[Page 36220]]

instance. Section 218(c)(2) of the INA, 8 U.S.C. 1188(c)(2), requires 
that an employer be notified within 7 days of the date of filing if the 
application does not meet the standards for approval. The INA's grant 
of debarment authority for the H-2A labor certification program appears 
in the section dealing with the conditions for denial of certification 
and requires the Department to deny certification on any application 
sought by a debarred employer. See section 218(b) of the INA, 8 U.S.C. 
1188(b). Thus, when a debarred employer files an application, the 
Department is statutorily required to deny the application. There would 
be little to be gained from issuing a NOD and offering the employer an 
opportunity to correct the deficiency where the deficiency cannot be 
overcome.\95\ Processing applications filed by, or through, an entity 
that has been debarred imposes a resource burden for the Department 
though the Department has no discretion over the issuance of such 
certifications.
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    \95\ Any challenges to the debarment would be raised separately. 
Under current regulations, the employer, agent, or attorney has an 
opportunity to challenge the debarment before it becomes effective. 
See 20 CFR 655.182(f), 29 CFR 501.20(e).
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    Under the proposal, if an employer represented by a debarred agent 
or attorney files an application, the application would be denied 
without review. Following the denial, in order to obtain certification, 
the employer would need to submit a new application without the 
debarred entity as the employer's representative. Finally, as with all 
certification denials, denials on the basis of debarment will be 
appealable to OALJ pursuant to Sec.  655.164.
    The Department also proposes to revise Sec.  655.182 to allow for 
the debarment of agents or attorneys, and their successors in interest, 
based on their own misconduct. Since the 2008 Final Rule, the H-2A 
regulations have allowed the Department to debar an agent or attorney 
based on its participation in the employer's substantial violation. See 
20 CFR 655.182(b); 2010 Final Rule, 75 FR 6884, 6936-37; 2008 Final 
Rule, 73 FR 77110, 77188. The Department proposes to hold agents and 
attorneys of the employer accountable in debarment for their own 
violations as well as for their participation in the employer's 
violation. Under proposed Sec.  655.182(a), the Department may debar an 
agent or attorney for its own substantial violations, as those are 
defined in Sec.  655.182(d). The Department also proposes conforming 
revisions to the definition of ``successor in interest'' in Sec.  
655.103(b) to reflect that a debarred agent's or attorney's successor 
in interest may be held liable for the debarred agent's or attorney's 
violation.
    The Department has had concerns about the role of agents in the H-
2A program, and has questioned whether agents' participation in the H-
2A labor certification process is undermining compliance with program 
requirements. However, the current H-2A debarment provision does not 
provide a mechanism for holding the agent or attorney accountable for 
its own violation unless the Department finds that it participated in 
the employer's violation. Nevertheless, there may be situations where 
an agent or attorney commits a violation that the Department finds it 
cannot or, in its discretion, should not, attribute to the employer. 
For example, if an agent that is responsible for conducting recruitment 
for an H-2A employer fails to refer U.S. worker applicants to the 
employer, the Department may find, in appropriate circumstances, that 
only the agent should be debarred. In addition, if an agent forges 
employer signatures to file fraudulent applications for H-2A workers, 
or if an agent or attorney commits a heinous act within the meaning of 
Sec.  655.182(d), the employer may not necessarily be responsible for 
such misconduct.
    The Department has determined that in order to improve program 
integrity and compliance, agents and attorneys should be accountable 
for their own misconduct independent of the employer's violation. This 
revision would make agent and attorney misconduct debarrable to the 
same extent as the misconduct of the employer-clients. Further, the 
proposal would institute consistency between the H-2A regulations and 
the other labor certification programs the Department administers. See 
20 CFR 655.73(b) (H-2B); 20 CFR 656.31(f) (PERM).
    The Department has inherent power to regulate the conduct of agents 
and attorneys who practice before it, as well as the authority to debar 
such individuals for unprofessional conduct. As the Department has 
previously explained, administrative agencies have the authority to 
regulate who can practice and participate in administrative proceedings 
before them. See Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117, 
121 (1926); Koden v. U.S. Dep't of Justice, 564 F.2d 228, 232-33 (7th 
Cir. 1977). Such power exists even if they do not have express 
statutory authority to prescribe the qualifications of those entities. 
Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979). In 
addition, agencies with the authority to determine who may practice 
before them have the power to debar or discipline such individuals for 
unprofessional conduct. Koden, 564 F.2d at 233.
    The Department has exercised the authority to debar agents and 
attorneys from the H-2A program for the last decade. In the 2008 Final 
Rule, the Department revised the debarment provision to permit the 
debarment of employers' agents and attorneys. 73 FR 77110, 77188. The 
2010 Final Rule maintained the provision permitting the debarment of 
agents and attorneys for participating in the employer's violation to 
``ensure that we are able to address substantial violations committed 
by the attorneys or agents themselves, or committed in concert with the 
employers.'' 75 FR 6884, 6936-37. The preamble explained that debarment 
of agents and attorneys was necessary to uphold the integrity and 
effectiveness of the H-2A program. Id.
    As the examples provided above illustrate, where an agent or 
attorney commits a substantial violation, though generally the employer 
would be responsible for the misconduct, the Department believes it is 
necessary to have the ability to target debarment actions at the bad 
actor directly. Under this proposal, and as has been the case in the H-
2A program for the last decade, agents and attorneys could still be 
debarred for participating in the employer's substantial violation, 
just as the employer could be debarred based on the agent or attorney's 
misconduct.

I. Labor Certification Process for Temporary Agricultural Employment in 
Range Sheep Herding, Goat Herding, and Production of Livestock 
Operations

    The Department proposes changes to this section mainly to conform 
the labor certification process for herding and the production of 
livestock on the range to other revisions in the proposed rule, as 
appropriate. Minor proposed changes include replacing a dash between 
two sections with the word ``through'' (e.g., replacing ``Sec. Sec.  
655.200-655.235'' with ``Sec. Sec.  655.200 through 655.235'') for 
technical consistency with other sections of the proposed rule. The 
Department seeks public comment on the substantive changes, which are 
discussed below, and affect portions of proposed Sec. Sec.  655.205, 
655.211(a)(2), 655.215(b) introductory text and (b)(1), 655.220(b), 
(c), and 655.225(b), (d). Except for these minor and substantive 
proposed changes, the Department is not reconsidering--and therefore 
not requesting comment on--any other portions of Sec. Sec.  655.200 
through 655.235. In particular, the Department is neither

[[Page 36221]]

reconsidering nor seeking comment on the wage rate methodology for 
herding and range livestock job opportunities. Instead, the entirety of 
Sec. Sec.  655.200 through 655.235 are reprinted in subpart B of this 
proposed rule for ease of reference only.
1. Section 655.205, Herding and Range Livestock Job Orders
    The Department proposes to revise Sec.  655.205 to reflect proposed 
revisions to the normal job order filing procedures in Sec.  655.121 
and to clarify variances from proposed Sec.  655.121 that remain for 
job opportunities involving herding or production of livestock on the 
range. Consistent with current procedures, a job order filed under 
Sec.  655.205 would not be subject to the timeframe requirements 
specified in paragraphs (a) and (b) of Sec.  655.121 or the SWA job 
order review procedure described in paragraphs (e) and (f). Rather, an 
employer qualifying for processing under Sec. Sec.  655.200 through 
655.235 would submit its completed job order to the NPC at the same 
time as the related Application for Temporary Employment Certification, 
which it must submit no less than 45 days before its first date of need 
in compliance with the timeframe requirement of Sec.  655.130(b), 
unless the application qualifies for emergency situations processing 
under Sec.  655.134. The NPC would coordinate review of the job order 
with the SWA and address any job order and Application for Temporary 
Employment Certification deficiencies in a manner consistent with the 
provisions set forth in Sec. Sec.  655.140 through 655.145.
2. Section 655.211, Herding and Range Livestock Wage Rate
    The Department proposes to revise Sec.  655.211 for consistency 
with the annual AEWR update notice procedure proposed in Sec.  
655.120(b). As discussed in relation to Sec.  655.120(b), providing a 
short transition period (i.e., no more than 14 days) for an employer to 
implement a new higher AEWR prevents adverse effect on the wages of 
U.S. workers by quickly implementing any newly required higher wage 
rate, while giving employers a brief window to update their payroll 
systems to implement a newly-issued wage.
3. Section 655.215, Procedures for Filing Herding and Range Livestock 
Applications for Temporary Employment Certification
    The Department proposes revisions to simplify Sec.  655.215 and 
conform to revisions in this proposed rule. In paragraph (b) detailed 
language about required additional information is obsolete, as the job 
order Form ETA-790/790A addenda include data fields for employers to 
provide detailed information about the job opportunity. Revised 
language in paragraph (b)(1) clarifies that an Application for 
Temporary Employment Certification for herding or production of 
livestock on the range may cover multiple areas of intended employment 
in one state or in two or more contiguous states.
4. Section 655.220, Processing Herding and Range Livestock Applications 
for Temporary Employment Certification
    In addition to minor revisions to Sec.  655.220 proposed for 
consistency within the proposed rule, the Department proposes to revise 
paragraph (b) to reflect the centralization of job order dissemination 
from the NPC to the SWAs as proposed in Sec.  655.121. Consistent with 
Sec.  655.121, after the content of a job order for herding or 
production of livestock on the range has been approved, the NPC would 
transmit the job order to all applicable SWA to begin recruitment.
5. Section 655.225, Post-Acceptance Requirements for Herding and Range 
Livestock
    The Department proposes minor revisions in Sec.  655.225 to 
simplify language and reflect procedural changes proposed in this 
proposed rule, such as the proposed revision of the duration of the 
recruitment period at Sec.  655.135(d). The Department recently 
proposed revisions to Sec.  655.225 in a separate proposed rule, 
Modernizing Recruitment Requirements for the Temporary Employment of H-
2A Foreign Workers in the United States.\96\ Those proposed revisions 
are not reflected in this proposed rule.
---------------------------------------------------------------------------

    \96\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the 
Department submitted a final rule of that rulemaking to OMB for 
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
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J. Labor Certification Process for Temporary Agricultural Employment in 
Animal Shearing, Commercial Beekeeping, Custom Combining, and 
Reforestation Occupations

1. Section 655.300, Scope and Purpose
    The introductory provision proposes to establish that, because of 
the unique nature of the occupations, employers who seek to hire 
temporary agricultural foreign workers to perform animal shearing, 
commercial beekeeping, custom combining, and reforestation as defined 
in proposed Sec. Sec.  655.103 and 655.301, are subject to certain 
standards that are different from the regular H-2A procedures in 
subpart B of the part. To date, the Department has processed these 
applications using Departmental guidance letters (TEGLs), one specific 
to each occupation, containing variances that are substantially similar 
to those standards and procedures the Department now proposes.\97\ In 
this proposed rule, the Department proposes to create a set of 
procedures for employers who employ workers engaged in these four 
occupations. Establishing a single set of procedures, with certain 
variations where appropriate, for these occupations will create 
administrative efficiencies for the Department, promote greater 
consistency in the review of H-2A applications, provide foreign workers 
and workers in the United States similarly employed with largely the 
same benefits and guarantees, and provide greater clarity for employers 
with respect to program requirements. The Department seeks comments 
from the public on all aspects of these proposed regulations.
---------------------------------------------------------------------------

    \97\ See Training and Employment Guidance Letter, No. 17-06, 
Change 1, Special Procedures: Labor Certification Process for 
Employers in the Itinerant Animal Shearing Industry under the H-2A 
Program (June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; Training and Employment Guidance 
Letter, No. 33-10, Special Procedures: Labor Certification Process 
for Itinerant Commercial Beekeeping Employers in the H-2A Program 
(June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; Training and Employment Guidance Letter, No. 
16-06, Change 1, Special Procedures: Labor Certification Process for 
Multi-State Custom Combine Owners/Operators under the H-2A Program 
(June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040; and Training and Employment Guidance Letter, 
No. 27-06, Special Guidelines for Processing H-2B Temporary Labor 
Certification in Tree Planting and Related Reforestation Occupations 
(June 12, 2007), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2446.
---------------------------------------------------------------------------

    In order to employ foreign workers under these procedures, an 
employer's job opportunity must possess all of the characteristics 
described in Sec. Sec.  655.300 through 655.304. As a preliminary 
matter, the job opportunity must involve work in one of the covered 
occupations: Animal shearing, commercial beekeeping, custom combining, 
or reforestation. In addition, the procedures apply to job 
opportunities in those occupations where workers are required to 
perform agricultural work on a scheduled itinerary covering multiple 
areas of intended employment in one or more contiguous States. Unless 
otherwise specified in the proposed procedures, employers whose job 
opportunities meet the criteria under Sec. Sec.  655.300 through 
655.304 must comply with the H-2A requirements in

[[Page 36222]]

Sec. Sec.  655.100 through 655.185,\98\ including payment of the 
highest applicable wage rate, determined in accordance with Sec.  
655.122(l) for all hours worked.\99\
---------------------------------------------------------------------------

    \98\ For example, covered employers must comply, as they do 
currently, with the processing procedures in 20 CFR 655.150-655.158 
related to recruitment. Similarly, they must comply with Sec.  
655.122(g) and 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.
    \99\ Compliance with 20 CFR 655.122(l), as revised by this 
proposed rule, requires an employer to ``pay the worker at least the 
AEWR, a prevailing wage if the OFLC Administrator has approved a 
prevailing wage survey for the applicable crop activity or 
agricultural activity meeting the requirements of Sec.  655.120(c), 
the agreed-upon collective bargaining rate, the Federal minimum 
wage, or the State minimum wage rate, whichever is highest, for 
every hour or portion [of an hour] worked during a pay period.''
---------------------------------------------------------------------------

    Where the job opportunity does not fall within the scope of the 
covered occupations in Sec. Sec.  655.300 through 655.304, the employer 
must comply with all of the regular H-2A procedures. If an employer 
submits an application containing information and attestations 
indicating that its job opportunity is eligible for processing under 
these proposed regulations but later, as a result of an investigation 
or other compliance review, it is determined that the employment was 
not eligible for inclusion under these regulations, the employer will 
be responsible for compliance with all of the regular H-2A procedures 
and requirements in Sec. Sec.  655.100 through 655.185. In addition, 
the Department may seek other remedies, such as civil monetary 
penalties and potentially debarment from use of the H-2A program, for 
the violations.
2. Section 655.301, Definition of Terms
    The proposed definitions contained in this section define the 
occupations subject to proposed Sec. Sec.  655.300 through 655.304, and 
are intended to assist employers in understanding the only types of 
work that qualify for these regulatory variances. Though the TEGLs did 
not contain definitions of these terms, the proposed definitions are 
based on the Department's current understanding of what work in these 
occupations generally involves.
    The proposed definition of animal shearing describes typical 
activities associated with the shearing and crutching of sheep, goats, 
or other animals producing wool or fleece. Those activities include 
gathering, moving, and sorting animals into shearing yards, stations, 
or pens; placing animals into position prior to shearing; selecting and 
using suitable equipment and tools for shearing; shearing animals with 
care according to industry standards; marking, sewing, or disinfecting 
any nicks and cuts due to shearing; cleaning and washing animals after 
shearing; gathering, storing, loading, and delivering wool or fleece to 
storage yards, trailers, or other containers; and maintaining, oiling, 
sharpening, and repairing equipment and other tools used for shearing. 
Wool or fleece grading constitutes animal shearing under the proposed 
definition only where such activities are performed by workers who are 
employed by the same employer as the animal shearing crew and who 
travel and work with the animal shearing crew. In addition, for 
purposes of this definition, hauling shearing equipment would be 
considered animal shearing under the proposed definition only where 
such activities are performed by workers who are employed by the same 
employer as the animal shearing crew and who travel and work with the 
shearing crew.
    The proposed definition of commercial beekeeping describes typical 
activities associated with the care or husbandry of bee colonies for 
producing and collecting honey, wax, pollen, and other products for 
commercial sale or providing pollination services to agricultural 
producers. Those services include assembling, maintaining and repairing 
hives, frames, or boxes; inspecting and monitoring colonies to detect 
diseases, illnesses, or other health problems; feeding and medicating 
bees to maintain the health of the colonies; installing, raising, and 
moving queen bees; splitting or dividing colonies, when necessary, and 
replacing combs; preparing, loading, transporting, and unloading 
colonies and equipment; forcing bees from hives, inserting honeycomb of 
bees into hives, or inducing swarming of bees into hives of prepared 
honeycomb frames; uncapping, extracting, refining, harvesting, and 
packaging honey, beeswax, or other products for commercial sale; 
cultivating bees to produce bee colonies and queen bees for sale; and 
maintaining and repairing equipment and other tools used to work with 
bee colonies.
    The proposed definition of custom combining describes typical 
activities associated with combining crops for agricultural producers, 
including operating self-propelled combine equipment (i.e., equipment 
that reaps or harvests, threshes, and swath or winnow the crop); 
performing manual or mechanical adjustments to cutters, blowers, and 
conveyers; performing safety checks on harvesting equipment; and 
maintaining and repairing equipment and other tools used for performing 
swathing or combining work. Transporting harvested crops to elevators, 
silos, or other storage areas constitute activities associated with 
custom combining for the purposes of the proposed definition only where 
such activities are performed by workers who are employed by the same 
employer as the combining crew and who travel and work with the custom 
combining crew. Though transporting equipment from one field to another 
does not constitute agricultural work, the Department finds it is 
appropriate to include those activities in the proposed definition of 
custom combining because such activities are a necessary part of 
performing combine work on an itinerary. Thus, solely for the purposes 
of the proposed variance in Sec. Sec.  655.300 through 655.304, 
transporting combine equipment and other tools used for custom 
combining work from one field to another is included in the definition 
of custom combining only where such activities are performed by workers 
who are employed by the same employer as the custom combining crew and 
who travel and work with the custom combining crew. Component parts of 
custom combining not performed by the harvesting entity, such as grain 
cleaning, do not fall within the proposed definition. The planting and 
cultivation of crops, and other related activities, are not considered 
custom combining for the purposes of this proposed definition.
    The Department proposes a definition of reforestation for inclusion 
in Sec.  655.103, as discussed above. As noted above, the proposed rule 
states that reforestation activities do not include vegetation 
management activities in and around utility, highway, railroad, or 
other rights-of-way. As defined in proposed Sec.  655.103, 
reforestation activities exclude right-of-way vegetation management 
activities such as the removal of vegetation that may interfere with 
utility lines or lines-of-sight, herbicide application, brush clearing, 
mowing, cutting, and tree trimming around roads, railroads, 
transmission lines, and other rights-of-way. Employers seeking workers 
for occupations involving these activities therefore would not be 
eligible to file under the provisions set forth in Sec. Sec.  655.300 
through 655.304.
    The Department seeks comments on all the definitions. In 
particular, the Department seeks comments on whether the definitions 
accurately and comprehensively reflect the activities

[[Page 36223]]

workers in these occupations perform and whether a final rule should 
limit additional job duties that workers may perform under 
certifications approved under Sec. Sec.  655.300 through 655.304 beyond 
those duties outlined in this proposed section.
3. Section 655.302, Contents of Job Orders
a. Paragraph (a), Content of Job Offers
    This provision addresses proposed variances from the job order 
filing requirements in Sec.  655.121. Unless otherwise specified in 
proposed Sec. Sec.  655.300 through 655.304, the employer must satisfy 
the requirements for job orders under Sec.  655.121 and for the content 
of job orders established under part 653, subpart F, and Sec.  655.122.
b. Paragraph (b), Job Qualifications and Requirements
    The Department proposes variances addressing certain aspects of the 
job qualifications and requirements to clarify those the Department 
generally considers normal and accepted for these occupations, which 
may be included in job orders for each of the occupations subject to 
Sec. Sec.  655.300 through 655.304. The provisions in this proposed 
rule, described below, are similar to those provided by the TEGLs for 
the itinerant animal shearing, commercial beekeeping, and custom 
combining employers in the H-2A program. The proposed rule does not 
include variances from the regular H-2A job order requirements for 
employers in the reforestation occupation. As with all other 
applications, the CO may require the employer to submit documentation 
to substantiate the appropriateness of any job qualifications and 
requirements specified in the job order. Each job qualification listed 
in the job offer must be bona fide. In all cases, the employer must 
apply all qualifications and requirements included in the job offer 
equally to U.S. and foreign workers in order to maintain compliance 
with the prohibition against preferential treatment of foreign workers 
contained at Sec.  655.122(a).
i. Animal Shearing
    Consistent with the TEGL, the Department proposes to allow a job 
offer in these occupations to include a statement that applicants must 
possess up to 6 months of experience in similar occupations and require 
references for the employer to verify this experience. The job offer 
may also specify that applicants must possess experience with an 
industry shearing method or pattern, must be willing to join the 
employer at the time the job opportunity is available and at the place 
the employer is located, and must be available to complete the 
scheduled itinerary under the job order. In addition, U.S. worker 
applicants who possess experience based on a similar or related 
industry shearing method or pattern must be afforded a break-in period 
of no less than 5 working days to adapt to the shearing method or 
pattern preferred by the employer.
ii. Commercial Beekeeping
    Consistent with the TEGL, the Department proposes to allow a job 
offer in these occupations to include a statement that applicants must 
possess up to 3 months of experience in similar occupations and require 
references for the employer to verify this experience. The job offer 
for commercial beekeeping occupations may also specify that applicants 
may not have bee, pollen, or honey-related allergies, must possess a 
valid commercial U.S. driver's license or be able to obtain such 
license not later than 30 days after the first workday after the 
arrival of the worker at the place of employment, must be willing to 
join the employer at the time and place the employer is located, and 
must be available to complete the scheduled itinerary under the job 
order.
iii. Custom Combining
    Consistent with the TEGL, the Department proposes to allow a job 
offer in these occupations to include a statement that applicants must 
possess up to 6 months of experience in similar occupations and require 
references for the employer to verify applicant experience. The job 
offer for custom combining occupations may also specify that applicants 
must be willing to join the employer at the time and place the employer 
is located and available to complete the scheduled itinerary under the 
job order.
c. Paragraph (c), Communication Devices
    Employers are obligated under Sec.  655.122(f) to provide each 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned. Due to the 
potentially remote, isolated, and unique nature of the work to be 
performed by workers in animal shearing and custom combining 
occupations, the proposed procedures would require the employer to 
provide each worker, without charge or deposit charge, effective means 
of communicating with persons capable of responding to the worker's 
needs in case of an emergency. The procedures are consistent with those 
in place for workers primarily engaged in the herding and production of 
livestock on the range under the H-2A program. See 20 CFR 
655.210(d)(2). Communication means are necessary to perform the work 
and can include, but are not limited to, satellite phones, cell phones, 
wireless devices, radio transmitters, or other types of electronic 
communication systems. The employer would also have to specify in the 
job order the type(s) of electronic communication device(s) and that 
such devices will be provided without charge or deposit.
    This proposed rule is similar to the Department's current policy in 
the TEGLs for the itinerant animal shearing and multi-state custom 
combining occupations.\100\ Because of the remote, transient, and 
unique nature of these occupations, effective means of communication 
between the employer and the worker are necessary to ensure that the 
employer is able to check the worker's status, and that the worker is 
able to communicate an emergency to persons capable of responding.
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    \100\ Specifically, the Department's current policy in the TEGLs 
requires an employer to provide at no cost to each worker in animal 
shearing and custom combining occupations effective means of 
communicating with persons capable of responding to the worker's 
needs in case of an emergency. See Department of Labor, Employment 
and Training Administration, Training and Employment Guidance Letter 
No. 17-06, Change 1 (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf. See also Department of 
Labor, Employment and Training Administration, Advisory: Training 
and Employment Guidance Letter No. 16-06, Change 1 (June 14, 2011), 
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf.
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    The Department's current regulation at Sec.  655.122(f) requires an 
employer to provide all tools, supplies, and equipment required to 
perform the duties assigned. All employers participating in the H-2A 
program must comply with the requirement in Sec.  655.122(f), including 
those employers in the animal shearing, beekeeping, and custom 
combining industries. Similarly, the Department's current regulation at 
Sec.  655.122(p) prohibits an employer from making an unlawful 
deduction that is primarily for the benefit or convenience of the 
employer. Though the TEGL covering reforestation may allow employers to 
require workers to provide their own tools and equipment in certain 
cases, the proposed rule does not provide a variance from the 
requirements in Sec.  655.122(f) and (p), because all tools, supplies, 
and equipment required to perform the duties assigned are primarily for 
the benefit and convenience of the employer. Consequently, employers in 
the animal shearing, custom combining,

[[Page 36224]]

beekeeping, and reforestation industries must comply with Sec.  
655.122(f) and (p) and provide, without charge or deposit charge, to 
the workers all tools, supplies, and equipment to perform the duties 
assigned.
    These tools, supplies, and equipment include any items required by 
law, the employer, or the nature of the work to perform the job safely 
and effectively. For example, if a reforestation employer requires its 
employees to wear a particular brand or type of boots for safety 
reasons, or for compliance with the OSHA standards or contractual 
obligations with upper-tier contractors, the employer must provide the 
boots without charge or deposit charge. Similarly, if an employer in 
beekeeping occupations requires certain equipment for safety reasons, 
such as a veil, gloves, or beekeeping suit, the employer must provide 
this equipment to the workers without charge or deposit charge. 
Additional examples of tools, supplies, and equipment that may be 
required by law, the employer, or the nature of the work in these 
occupations include combs, cutters, hand pieces, and grinders in the 
animal shearing occupations; bee brushes, hive tools, smokers, veils, 
and gloves in the commercial beekeeping occupations; and chainsaws, 
boots, seedling satchels, planting trowel, rain gear, gloves, ear and 
eye protection, and protective masks in the reforestation occupations. 
The Department invites comments as to whether it should require 
specific tools, supplies, and equipment in these industries, or whether 
it would be helpful to include in the regulation a list of items that 
typically are required by law, the employer, or the nature of the work 
and location, and which must be provided to the workers without charge 
or deposit.
d. Paragraph (d), Housing
    For job opportunities involving animal shearing and custom 
combining, the employer must specify in the job order that housing will 
be provided as set forth in Sec.  655.304. As discussed below, 
employers of workers in these occupations will be permitted to offer 
mobile housing that meets the standards set forth in Sec.  655.304, 
except for situations when the mobile housing is located on the range 
as defined in Sec.  655.201. When the housing unit is on the range, the 
mobile housing must meet the standards for range housing in Sec.  
655.235.
4. Section 655.303, Procedures for Filing Applications for Temporary 
Employment Certification
    Under proposed Sec.  655.303, employers in covered occupations will 
continue to satisfy the requirements for filing an Application for 
Temporary Employment Certification with the NPC designated by the OFLC 
Administrator as required under Sec. Sec.  655.130 through 655.132. In 
addition, the Department proposes to continue to require employers 
seeking workers in the covered occupations to provide the locations, 
estimated start and end dates, and, if applicable, names for each 
farmer or rancher for whom work will be performed under the job order 
when filing an Application for Temporary Employment Certification. The 
locations should be identified with as much specificity as possible in 
order to apprise potential U.S. workers of where the work will be 
performed and to ensure recruitment in all areas of intended 
employment.
    The Department proposes to continue to allow employers or 
agricultural associations engaged in the covered occupations to file 
applications and job orders covering work locations in multiple areas 
of intended employment and within one or more contiguous States.\101\ 
This approach is warranted by the unique nature of work in these 
occupations, particularly the itinerant nature of work crews. In 
addition, the Department proposes to continue to allow an agricultural 
association to file a master application as a joint employer covering 
work locations in multiple areas of intended employment within two or 
more contiguous States.
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    \101\ This would continue the current practice that permits a 
variance from the geographic scope limitations of 20 CFR 655.132(a) 
for H-2ALCs engaged in these occupations, and from 20 CFR 655.131(b) 
for master applications that include worksites in more than two 
contiguous States.
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    The Department proposes to apply the geographic limitation in Sec.  
655.303(b)(1) and (2) to applications for job opportunities involving 
commercial beekeeping, with the exception that those applications may 
include one noncontiguous State at the beginning and end of the period 
of employment for retrieving bee colonies from and returning them to 
the overwintering location. For beekeepers, winter months provide an 
opportunity to engage in colony health and maintenance activities, such 
as splitting and building colonies, while the bees are not engaged in 
the pollination, pollen collection, and honey production activities of 
the rest of the year. Typically, migratory beekeeping operations 
overwinter their hives in warm-winter states, such as Texas. As warmer 
weather returns to the rest of the country and plants begin to flower, 
beekeepers may move their hives from these overwintering locations to 
the places where their pollination and honey-production activities will 
take place for the rest of the year, such as cultivated fields and 
orchards in California and uncultivated fields in North Dakota and 
South Dakota where clover and wildflowers grow. Apart from 
accommodating the initial care and gathering of the hives at 
overwintering locations for transport and the hives' return to the 
overwintering locations, the Department proposes to maintain the same 
geographic scope criteria for all applications covered under the 
provisions at Sec. Sec.  655.300 through 655.304. Once the hives are 
moved from the overwintering location to their non-winter destinations, 
a beekeeping Application for Temporary Employment Certification and job 
order would be limited to multiple areas of intended employment in one 
or more contiguous States. Where a beekeeping operation involves 
pollination or honey production activities in non-contiguous States, 
the employer would be required to submit separate applications. For 
example, a beekeeping employer could not file an application including 
an itinerary that begins and ends at a place of employment in Texas 
and, in between, list places of employment in California, North Dakota, 
and South Dakota. Instead, the employer could submit two separate 
applications, one with an itinerary including Texas and California and 
the other with an itinerary including Texas, North Dakota, and South 
Dakota.
    Under the proposed rule, an employer would need to file one H-2A 
application for each crew of itinerant workers. This requirement is 
consistent with current practice for all covered occupations except 
reforestation, where employers have been permitted to submit one H-2A 
application covering multiple itineraries. The Department believes 
permitting multiple crews and itineraries on a single application 
undermines the integrity and efficacy of U.S. worker recruitment. 
Therefore, to promote the integrity of the application process in these 
occupations, and provide consistency across applications in the H-2A 
program, the proposed rule would require the employer to file one 
application for each itinerant crew, within the parameters of 
Sec. Sec.  655.300 through 655.304.
    Aside from these filing variances, the usual H-2A filing 
requirements would apply to job opportunities involving animal 
shearing, custom combining,

[[Page 36225]]

commercial beekeeping, and reforestation. For example, all H-2ALCs 
filing under the provisions of Sec. Sec.  655.300 through 655.304 would 
be required to comply with Sec.  655.132(d). Thus, employers in those 
occupations would have to provide fully-executed contracts for each 
anticipated work location on the itinerary. See 20 CFR 655.132(d). Such 
contracts would demonstrate to the Department the work to be performed 
along the itinerary with sufficient specificity to allow the Department 
to ensure compliance with program requirements.
5. Section 655.304, Standards for Mobile Housing
    Under the Department's current and proposed regulation at Sec.  
655.122(d), an employer must provide housing at no cost to H-2A workers 
and those workers in corresponding employment who are not reasonably 
able to return to their residence within the same day. Additionally, 
employer-provided housing must meet applicable safety and health 
standards.\102\ Due to the unique nature of animal shearing and custom 
combining occupations, however, the Department has historically 
permitted the use of mobile housing for workers engaged in these 
occupations,\103\ the standards for which are found in the TEGLs. The 
proposed rule continues this longstanding practice, and includes 
proposed standards for mobile housing for workers engaged in these 
occupations.
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    \102\ Specifically, employer-provided housing must meet the OSHA 
standards at 29 CFR 1910.142, or the ETA standards at Sec. Sec.  
654.404 through 654.417 of this chapter, whichever standards are 
applicable under Sec.  654.401 of this chapter.
    \103\ See Department of Labor, Employment and Training 
Administration, Training and Employment Guidance Letter No. 17-06, 
Change 1, Attachment B (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf; Department of Labor, 
Employment and Training Administration, Training and Employment 
Guidance Letter No. 16-06, Change 1, Attachment A (June 14, 2011), 
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf.
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    The proposed standards largely incorporate the housing standards in 
the TEGLs, with two key exceptions. First, the TEGL for workers engaged 
in animal shearing occupations expressly provides that an animal 
shearing contractor may lease a mobile unit owned by a crew member or 
other person or make some other type of ``allowance'' to the owner. 
Under the proposed rule, such an arrangement is not permitted. Upon 
further consideration of this practice, the Department concludes that 
this type of arrangement is inconsistent with the employer's obligation 
to provide housing at no cost to all H-2A workers and those non-H-2A 
workers in corresponding employment who are not reasonably able to 
return to their residences within the same day. See section 218(c)(4) 
of the INA, 8 U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1). Allowing an 
employer to compensate a worker for housing the worker owns or secures 
inappropriately shifts at least part of this obligation from the 
employer to the worker. By requiring animal shearing employers to 
independently secure sufficient housing in advance of the start date, 
as required of all other H-2A employers, this change ensures that all 
housing (including mobile units) has been inspected and certified as 
meeting housing standards before a temporary labor certification is 
issued. This change further ensures that all prospective applicants 
have access to the job opportunity without preference for applicants 
who possess their own units. Second, the proposed standards align less 
closely than the TEGLs with the standards for range housing found at 
Sec.  655.235. Although, historically, the animal shearing and custom 
combining TEGLs set out the same or similar mobile housing standards as 
the standards applicable to range housing, there are important 
differences in these occupations that necessitate different standards 
for range housing (for workers engaged in herding or the range 
production of livestock) and mobile housing (for itinerant workers 
engaged in animal shearing and custom combining occupations). 
Specifically, the standards for range housing anticipate that workers 
generally will be on call 24 hours per day, 7 days a week in uniquely 
remote, isolated areas. Animal shearing and custom combining workers, 
on the other hand, though itinerant, typically work in less isolated 
areas with greater access to facilities, and generally there is no 
expectation that these workers continuously be on call.
    The Department recognizes that itinerant workers engaged in the 
animal shearing and custom combining occupations may work in locations 
that meet the definition of range in Sec.  655.201 and, therefore, 
requires use of housing that meets only the standards for range housing 
in Sec.  655.235 for some portion of the period of employment. In these 
situations, the Department proposes that mobile housing must be 
inspected to ensure that it meets the standards for range housing, and 
that it needs to meet the standards for range housing in Sec.  655.235 
only during the period in which the housing is located on the range to 
enable work to be performed on the range. The applicability of the 
standards for range housing or mobile housing depends on the sites 
where mobile housing units are parked. This provision intends to 
address the fact that itinerant workers in the animal shearing and 
custom combining occupations may, on occasion, be working in areas so 
remote that it is not feasible for the employer to provide certain 
amenities, such as hot and cold water under pressure. However, once the 
mobile housing unit is moved to a location off of the range, the mobile 
housing standards in Sec.  655.304 are once again applicable. 
Therefore, a mobile housing unit that the employer anticipates using 
both on and off the range is subject to both the procedure for securing 
and submitting a range housing inspection approval in Sec.  655.230(b) 
and (c) and the procedure for securing and submitting an inspection 
approval of the mobile housing unit as proposed in Sec.  655.122(d)(6).
    The Department recognizes that the mobile housing units Canadian 
employers use to perform custom combining operations in the United 
States are typically located in Canada when not in use, making it 
unfeasible for these employers to secure pre-occupancy housing 
inspection and approval from a SWA. Therefore, the Department proposes 
to continue the longstanding practice reflected in the TEGL of 
permitting these employers to secure approval of each mobile unit from 
an authorized representative of the Federal or provincial government of 
Canada, in accordance with inspection procedures and applicable 
standards for such housing under Canadian law or regulation.
    The proposed standards for mobile housing are for use only for 
itinerant workers engaged in the animal shearing and custom combining 
occupations. Although the commercial beekeeping \104\ and reforestation 
\105\ occupations are also frequently itinerant, the TEGLs for these 
occupations historically have not allowed for mobile housing, and 
employers in these occupations tend to house their workers in fixed-
site housing, hotels, and motels. The Department invites comment from 
employers engaged in commercial beekeeping and reforestation regarding

[[Page 36226]]

the current practices and their specific housing needs.
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    \104\ See Department of Labor, Employment and Training 
Administration, Training and Employment Guidance Letter No. 33-10 
(June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL33-10.pdf.
    \105\ See Department of Labor, Employment and Training 
Administration, Training and Employment Guidance Letter No. 27-06 
(June 12, 2007), https://wdr.doleta.gov/directives/attach/TEGL/TEGL27-06.pdf.
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a. Paragraph (b)
    As proposed, the standards for mobile housing combine certain 
provisions from the standards for range housing at Sec.  655.235 and 
the ETA housing standards at Sec. Sec.  654.404 through 654.417, as did 
the TEGLs. The proposed standards are intended to protect the health 
and safety of workers engaged in animal shearing and custom combining 
occupations, while also being sufficiently flexible to apply to a 
variety of mobile housing units. In its enforcement experience, the 
Department has seen a variety of mobile housing units used by workers 
engaged in these occupations, including RVs, trailers, and custom bunk-
houses built in the back of tractor-trailers. Some mobile housing units 
are complete with functioning bathrooms, showers, generators, and 
washer/dryers, while others are smaller and simpler. Consequently, the 
Department proposes to allow mobile housing units without certain 
facilities (e.g., showers and laundry facilities) as long as the 
employer otherwise supplements these facilities. For example, if the 
mobile housing unit does not contain bathing facilities, facilities 
with hot and cold water under pressure must be provided at least once 
per day. This standard contemplates that some mobile housing units may 
not include showers, but the mobile housing sites, such as farms, 
ranches, campgrounds, RV parks, or cities and towns, should have 
bathing facilities, and workers must be afforded access to these 
facilities. The Department requests comments on the feasibility of 
these standards in the animal shearing and custom combining 
occupations, as well as if any additional standards for mobile housing 
should be incorporated.
b. Paragraph (c), Housing Site
    The proposed rule incorporates the standards for the housing site 
from the range housing standards and the TEGLs. Specifically, the 
Department proposes that mobile housing sites must be well drained and 
free from depressions where water may stagnate.\106\ In addition, the 
Department proposes that mobile housing sites shall be located where 
the disposal of sewage is provided in a manner that neither creates, 
nor is likely to create a nuisance or a hazard to health; and shall not 
be in proximity to conditions that create or are likely to create 
offensive odors, flies, noise, traffic, or any similar hazards. Mobile 
housing sites shall also be free from debris, noxious plants (e.g., 
poison ivy, etc.), and uncontrolled weeds or brush.\107\ The Department 
has determined that employers will not find it overly burdensome to 
place mobile housing units at sites that comply with these provisions.
---------------------------------------------------------------------------

    \106\ This provision is similar to standards for range housing 
found at Sec.  655.235(a)(1) and for mobile housing found in TEGL 
16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
    \107\ These provisions are similar to the ETA housing standards 
found at Sec.  654.404, but exclude the provision that requires that 
the housing site must provide a space for recreation reasonably 
related to the size of the facility and the type of occupancy. See 
20 CFR 654.404(d).
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c. Paragraph (d), Drinking Water Supply
    Similar to the TEGLs for these occupations, the Department proposes 
that an adequate and convenient supply of potable water that meets the 
standards of the local or state health authority must be provided, as 
well as individual drinking cups.\108\ The Department also proposes to 
require employers to provide a cold water tap within a reasonable 
distance from each individual living unit when water is not provided in 
the unit. Itinerant workers engaged in animal shearing and custom 
combining occupations may stay in mobile housing units with water tanks 
or water hookups that provide water in the unit. If no water is 
available in the unit, workers may park the mobile housing unit within 
a reasonable distance of a cold water tap.\109\ Additionally, adequate 
drainage facilities for overflow and spillage must be provided.
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    \108\ These proposed standards are similar to the standards for 
range housing found at Sec.  655.235(b); however, these standards 
exclude the provision for delivery of water. These provisions are 
also similar to the standards found in TEGL 16-06-CH-1 Attachment B 
and TEGL 17-06-CH-1 Attachment B.
    \109\ Unlike the ETA housing standards, which requires that a 
cold water tap be provided within 100 feet of each living unit, the 
Department's proposal does not require the water tap to be located 
within a certain number of feet of the mobile housing unit because 
some campgrounds may not comply with these specific standards. See 
20 CFR 654.405(b).
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d. Paragraph (e), Excreta and Liquid Waste Disposal
    The Department proposes to require that toilet facilities, such as 
portable toilets, RV or trailer toilets, privies, or flush toilets, 
must be provided and maintained for effective disposal of excreta and 
liquid waste in accordance with the requirements of the applicable 
local, state, or federal health authority, whichever is most stringent. 
Many mobile housing units are equipped with toilet facilities that 
would comply with these standards. Where mobile housing units are not 
equipped with toilet facilities, the employer must provide access to 
toilet facilities.
    Where mobile housing units contain toilet facilities, the employer 
must provide access to sewage hookups whenever feasible. Some 
campgrounds or RV parks have sewage hookups; the employer must place 
workers at these locations if feasible. If wastewater tanks are used 
because such access to sewage hookups is unavailable or the mobile 
housing units have toilet facilities but are not designed to connect to 
sewage hookups, the employer must make provision to regularly empty the 
wastewater tanks. Consistent with the TEGLs, if pits are used for 
disposal by burying of excreta and liquid waste, they shall be kept 
fly-tight when not filled in completely after each use.\110\ The 
maintenance of disposal pits must be in accordance with local and state 
health and sanitation requirements.
---------------------------------------------------------------------------

    \110\ TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 
Attachment B.
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    The proposed mobile housing standards for excreta and liquid waste 
disposal deviate from the standards for range housing in Sec.  655.235 
and the TEGLs for these occupations, which do not require toilet 
facilities. Itinerant workers in the animal shearing and custom 
combining occupations frequently work in relatively more populated 
areas that provide easy access to running water, indoor plumbing, 
sewage hookups, vault toilets, and/or portable toilets. The Department, 
therefore, concludes that it is reasonable and necessary to require 
employers to provide toilet facilities. The Department invites comment 
on whether any additional standards (i.e., specific toilet facilities, 
a specific number of toilet facilities, etc.) should be included.
e. Paragraph (f), Housing Structure
    Consistent with the TEGLs, the Department proposes to require that 
housing be structurally sound, in good repair, in a sanitary condition 
and must provide shelter against the elements to occupants. Similarly, 
the housing must have flooring constructed of rigid materials easy to 
clean and so located as to prevent ground and surface water from 
entering, and each housing unit must have at least one window or a 
skylight that can be opened directly to the outdoors.\111\ 
Acknowledging the variety of possible mobile housing units, the 
Department has not proposed specific measurements for windows, but 
invites comment on whether specific measurements should be required.

[[Page 36227]]

Housing standards for fire, safety, and first aid discuss a second 
means of escape, which may be a window if the window is sufficiently 
large to allow for escape.
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    \111\ These standards are also identical to those included in 
the standards for range housing in Sec.  655.235(d).
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f. Paragraph (g), Heating
    The Department proposes to fully incorporate the heating standards 
from Sec.  655.235(e). These standards are also substantially the same 
as those contained in the TEGLs for these occupations.\112\
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    \112\ TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 
Attachment B.
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g. Paragraph (h), Electricity and Lighting
    The Department proposes that, barring unusual circumstances that 
prevent access, electrical service or generators must be provided. This 
may include an electrical hookup, solar panel, battery generator, or 
other type of device that provides electrical service. This provision 
differs from the standards for range housing promulgated in Sec.  
655.235(f) and existing standards for mobile housing contained in the 
TEGLs, which require only that lanterns be provided if it is not 
feasible to provide electrical service to mobile housing. The 
Department has determined that, in the majority of circumstances, 
workers in animal shearing and custom combining occupations will be in 
areas with access to electrical service; therefore, it is necessary and 
reasonable to require that it be accessible to workers in mobile 
housing units. Many mobile housing units, such as some RVs, will comply 
with this requirement. In the rare circumstances in which it is not 
feasible to provide electrical service, lanterns must be provided to 
each unit, one per occupant of each unit.\113\
---------------------------------------------------------------------------

    \113\ This proposed standard is similar to the standards for 
range housing found at Sec.  655.235(f)(2) and for mobile housing 
found in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment 
B.
---------------------------------------------------------------------------

h. Paragraph (i), Bathing, Laundry, and Hand Washing
    The Department proposes that bathing facilities, supplied with hot 
and cold water under pressure, shall be provided to all occupants no 
less frequently than once per day. Some mobile housing units may 
contain functioning showers with hot and cold water under pressure; in 
which case, the employer has complied with this provision as long as 
all workers have access to the bathing facilities. If the mobile 
housing units do not have bathing facilities, workers should have 
access to facilities no less frequently than once per day. There are no 
restrictions on how the employer may provide access to these facilities 
(e.g., at a campground, RV park, ranch bunkhouse, temporary labor camp, 
motel, etc.).
    Similarly, the Department proposes that the employer must provide 
access to laundry facilities, supplied with hot and cold water under 
pressure, at no cost to all occupants no less frequently than once per 
week. The Department anticipates that most mobile housing units will 
not include laundry facilities; therefore, the employer must supplement 
its mobile housing units with laundry facilities.
    The Department also proposes that alternative bathing and laundry 
facilities, such as washtubs, must be available to all occupants at all 
times when water under pressure is unavailable. For example, if a 
worker needs to bathe or launder clothes, but is hours away from being 
provided access to a shower or days away from being provided access to 
a laundry facility, a washtub must be available so that the worker is 
able to bathe or launder clothes without water under pressure.
    Finally, the Department proposes that hand washing facilities must 
be available to all occupants at all times, even when water under 
pressure is not available.
    These proposed standards differ from the standards for range 
housing promulgated in Sec.  655.235(g) and the existing standards for 
mobile housing in the TEGLs, which require that mobile bathing, 
laundry, and handwashing facilities must be provided when it is not 
feasible to provide hot and cold water under pressure. However, 
itinerant workers in the animal shearing and custom combining 
occupations frequently work in relatively more populated areas that 
provide easy access to running water with hot and cold water under 
pressure, and the Department therefore concludes that it is necessary 
and reasonable to provide periodic, if not constant, access to these 
amenities.
i. Paragraph (j), Food Storage
    The Department proposes that provisions for mechanical 
refrigeration of food at a temperature of not more than 45 degrees 
Fahrenheit must be provided.\114\ When mechanical refrigeration of food 
is not feasible, the employer must provide another means of keeping 
food fresh and preventing spoilage, such as a butane or propane gas 
refrigerator.\115\
---------------------------------------------------------------------------

    \114\ This proposed standard is similar to the ETA housing 
standards found at Sec.  654.413(a)(3).
    \115\ This proposed standard is similar to the standards for 
range housing found at Sec.  655.235(h) and for mobile housing found 
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B, 
but excludes references to dehydrating or salting foods.
---------------------------------------------------------------------------

j. Paragraph (k), Cooking and Eating Facilities
    The proposed standards for cooking and eating facilities are nearly 
identical to those in the TEGLs. The Department proposes that, when 
workers or their families are permitted or required to cook in their 
individual unit, a space must be provided with adequate lighting and 
ventilation, and stoves or hotplates. The Department also proposes that 
wall surfaces next to all food preparation and cooking areas must be of 
nonabsorbent, easy to clean material. Wall surfaces next to cooking 
areas must be made of fire-resistant material.\116\
---------------------------------------------------------------------------

    \116\ These proposed provisions are similar to the standards for 
range housing found at Sec.  655.235(i) and for mobile housing found 
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
---------------------------------------------------------------------------

k. Paragraph (l), Garbage and Other Refuse
    The proposed standards for garbage and refuse are substantially the 
same as those in the TEGLs. The Department proposes that durable, fly-
tight, clean containers must be provided to each housing unit for 
storing garbage and other refuse. Provision must be made for collecting 
refuse, which includes garbage, at least twice a week or more often if 
necessary for proper disposal.\117\ The Department also proposes that 
the disposal of refuse, which includes garbage, shall be in accordance 
with applicable local, state, and federal law, whichever is most 
stringent.\118\
---------------------------------------------------------------------------

    \117\ These proposed provisions are similar to the standards for 
range housing found at Sec.  655.235(j) and for mobile housing found 
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
    \118\ This proposed provision is similar to ETA housing 
standards found at Sec.  654.414.
---------------------------------------------------------------------------

l. Paragraph (m), Insect and Rodent Control
    With minor revisions, the proposed standards for insect and rodent 
control are the same as those in the TEGLs. The Department proposes 
that appropriate materials, including sprays, and sealed containers for 
storing food, must be provided to aid housing occupants in combating 
insects, rodents, and other vermin.\119\
---------------------------------------------------------------------------

    \119\ This proposed provision is similar to the standards for 
range housing found at Sec.  655.235(k) and for mobile housing found 
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
---------------------------------------------------------------------------

m. Paragraph (n), Sleeping Facilities
    The Department proposes that a separate comfortable and clean bed, 
cot,

[[Page 36228]]

or bunk, with a clean mattress, must be provided for each person, 
except in a family arrangement.\120\ This proposed provision is similar 
to the standards for range housing found in Sec.  655.235(l) and in the 
current TEGLs for animal shearing and custom combining occupations, 
excluding the variance that allows for workers to share beds in certain 
circumstances. The range housing standards allow workers to share a bed 
for a short period of time, so long as separate bedding is provided, 
while transitioning from one herder tending the livestock on the range 
to another herder. However, the Department concludes that such a 
variance is not necessary, and therefore not appropriate, for mobile 
housing units for workers engaged in custom combining and animal 
shearing not located on the range. Clean and sanitary bedding must be 
provided to for each person. The Department also proposes that no more 
than double deck bunks are permissible.\121\
---------------------------------------------------------------------------

    \120\ This proposed provision is similar to the standards for 
range housing found in Sec.  655.235(l), excluding the variance that 
allows for workers sharing beds in certain circumstances. The 
proposed provision is also similar to the standards for mobile 
housing found in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 
Attachment B.
    \121\ This proposal is similar to the ETA standards at Sec.  
654.416(c).
---------------------------------------------------------------------------

n. Paragraph (o), Fire, Safety, and First Aid
    This standard is also substantially the same as the ones in the 
TEGLs. The Department proposes that all units in which people sleep or 
eat must be constructed and maintained according to applicable local or 
state fire and safety law; no flammable or volatile liquid or materials 
may be stored in or next to rooms used for living purposes, except for 
those needed for current household use; mobile housing units must have 
a second means of escape through which the worker can exit the unit 
without difficulty; and adequate, accessible fire extinguishers in good 
working condition and first aid kits must be provided in the mobile 
housing.\122\
---------------------------------------------------------------------------

    \122\ These proposed provisions are also similar to those found 
in the standards for range housing at Sec.  655.235(m).
---------------------------------------------------------------------------

o. Paragraph (p), Maximum Occupancy
    The Department proposes that the number of occupants housed in each 
mobile housing unit must not surpass the occupancy limitations set 
forth in the manufacturer specifications for the unit. The Department 
recognizes that implementing space standards in mobile housing is 
difficult because mobile housing is, by its nature, compact. Many RVs 
and trailers incorporate beds in unexpected places. However, workers 
should be able to live comfortably in the space provided, and the 
employer must not house more workers than that for which such space is 
designed. For example, an RV intended for 5 people must not be used to 
house more than 5 workers. Similarly, if the mobile housing unit in 
which the employer houses 20 workers has 1 shower facility, not all 
workers may have access to the shower facility. The Department welcomes 
comment on whether specific space standards should be incorporated.

K. Terminology and Technical Changes

    The Department proposes to revise various terms and phrases used 
throughout the regulation. These modifications would improve the 
regulation's internal consistency, or correct or update the relevant 
terms or titles. These modifications are explained below.
     The Department proposes to use the term ``Application for 
Temporary Employment Certification'' throughout the regulation when 
referring to Form ETA-9142A for clarity and to improve the regulation's 
internal consistency.
     The Department proposes to use the term ``agricultural 
association'' in place of ``association'' to ensure consistency with 
the terms defined in Sec.  655.103(b).
     The Department proposes to change the term ``worksite'' to 
``place of employment'' throughout the regulation to ensure consistency 
with the terms defined in Sec.  655.103(b).
     The Department proposes to add the word ``calendar'' 
before the word ``days'' in a number of provisions, to clarify that the 
timeframe or deadline in question is based on calendar days, not 
business days.
     The Department proposes to change the term ``temporary 
labor certification'' to ``temporary agricultural labor certification'' 
to ensure consistency throughout the regulation and with the definition 
of ``temporary agricultural labor certification'' in Sec.  655.103(b).
     The name of the U.S. Department of Justice, Civil Rights 
Division, Office of Special Counsel for Unfair Immigration Related 
Employment Practices, has been changed to the U.S. Department of 
Justice, Civil Rights Division, Immigrant and Employee Rights Section, 
to reflect its current name.
     The Department proposes additional changes throughout the 
text to correct typographical errors and improve clarity and 
readability. Such changes are nonsubstantive and do not change the 
meaning of the current text. Substantive changes to the current 
regulatory text are discussed in the corresponding section of the 
preamble.

III. Discussion of Proposed Revisions to 29 CFR Part 501

    The Department proposes revisions to the regulations at 29 CFR part 
501, which set forth the responsibilities of WHD to enforce the legal, 
contractual, and regulatory obligations of employers under the H-2A 
program. WHD has a statutory mandate to protect U.S. workers and H-2A 
workers. The Department proposes these amendments concurrent with and 
in order to complement the changes ETA proposes to its certification 
procedures.

A. Conforming Changes

    Where discussed and noted above in the Section-by-Section Analysis 
of 20 CFR part 655, the Department proposes various revisions to 29 CFR 
part 501, which will conform to revisions the Department is proposing 
to 20 CFR part 655. These proposed conforming revisions include, among 
others, to add or revise (including technical revisions) the following 
definitions of terms in Sec.  501.3, to conform to proposed changes to 
20 CFR 655.103(b): Act, Administrator, adverse effect wage rate, agent, 
agricultural association, agricultural labor, applicant, Application 
for Temporary Employment Certification, area of intended employment, 
attorney, Certifying Officer, Chief Administrative Law Judge, 
corresponding employment, Department of Homeland Security, employer, 
Employment and Training Administration, first date of need, H-2A 
petition, job order, joint employment, logging employment, maximum 
period of employment, metropolitan statistical area, National 
Processing Center, Office of Foreign Labor Certification, OFLC 
Administrator, period of employment, piece rate, pine straw activities, 
place of employment, reforestation activities, Secretary of Labor, 
successor in interest, temporary agricultural labor certification, 
United States, U.S. Citizenship and Immigration Services, U.S. worker, 
wages, Wage and Hour Division, WHD Administrator, and work contract.

B. Section 501.9, Surety Bond

    The Department proposes revisions to WHD's surety bond provision at 
29 CFR 501.9 as described fully in the discussion of proposed 20 CFR 
655.132 above.

C. Section 501.20, Debarment and Revocation

    The Department proposes revisions to WHD's debarment provisions at 
29 CFR

[[Page 36229]]

501.20 to maintain consistency with the proposed changes to 20 CFR 
655.182(a). The Department has long had concerns about the role of 
agents in the program, and has questioned whether the participation of 
agents in the H-2A labor certification process is undermining 
compliance with program requirements. Under the current debarment 
provision, however, the Department can debar agents and attorneys only 
for their participation in the employer's substantial violations. Thus, 
to increase program integrity and promote compliance with program 
requirements, the Department proposes to permit the debarment of agents 
and attorneys for their own misconduct, rather than solely for 
participating in the employer's violations. Proposed 29 CFR 501.20 
would permit WHD to debar an agent or employer for substantially 
violating a term or condition of the temporary agricultural labor 
certification. The Department is otherwise retaining 29 CFR 501.20 as 
in the current regulation.

D. Terminology and Technical Changes

    In addition to proposed revisions to conform to the terminology and 
technical changes proposed to 20 CFR part 655, subpart B, the 
Department proposes minor changes throughout part 501 to correct 
typographical errors and improve clarity and readability. Such changes 
are nonsubstantive and do not change the meaning of the current text. 
For example, the Department proposes throughout part 501 to replace the 
phrase ``the regulations in this part'' with the phrase ``this part.''

IV. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review; and Executive 
Order 13771: Reducing Regulation and Controlling Regulatory Costs

    Under E.O. 12866, the OMB's Office of Information and Regulatory 
Affairs (OIRA) determines whether a regulatory action is significant 
and, therefore, subject to the requirements of the E.O. and review by 
OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a ``significant 
regulatory action'' as an action that is likely to result in a rule 
that: (1) Has an annual effect on the economy of $100 million or more, 
or adversely affects in a material way a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local, or tribal governments or communities (also 
referred to as economically significant); (2) creates serious 
inconsistency or otherwise interferes with an action taken or planned 
by another agency; (3) materially alters the budgetary impacts of 
entitlement grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raises novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O. Id. This proposed rule is an 
economically significant regulatory action under this section and was 
reviewed by OIRA.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    E.O. 13771 directs agencies to reduce regulation and control 
regulatory costs by eliminating at least two existing regulations for 
each new regulation, and by controlling the cost of planned regulations 
through the budgeting process. See 82 FR 9339. In relevant part, OMB 
defines an ``E.O. 13771 regulatory action'' as ``a significant 
regulatory action as defined in section 3(f) of E.O. 12866 that has 
been finalized and that imposes total costs greater than zero.'' \123\ 
By contrast, an ``E.O. 13771 deregulatory action'' is defined as ``an 
action that has been finalized and has total costs less than zero.'' 
\124\ For the purpose of E.O. 13771, this proposed rule, if finalized 
as proposed, is expected to be an E.O. 13771 deregulatory action 
because while the quantifiable rule familiarization, surety bond, and 
recordkeeping costs associated with the rule are larger than the 
quantifiable cost savings, the Department expects the total annualized 
cost savings of this proposed rule would outweigh the total annualized 
costs. However, the final designation of this rule's E.O. 13711 status 
will be determined in any final rule. In the interim, the Department 
requests public comments regarding this determination. The cost savings 
associated with the rule will result from the proposed electronic 
processing of applications, digitized application signatures, the 
ability to stagger entry of workers under a single Application for 
Temporary Employment Certification, and the electronic sharing of job 
orders submitted to the NPC with the SWAs (655.150).
---------------------------------------------------------------------------

    \123\ Office of Information and Regulatory Affairs, Guidance 
Implementing Executive Order 13771, Titled ``Reducing Regulation and 
Controlling Regulatory Costs'' (Apr. 5, 2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
    \124\ Id.
---------------------------------------------------------------------------

Outline of the Analysis
    Section V.A.1 describes the need for the proposed rule, and section 
V.A.2 describes the process used to estimate the costs of the rule and 
the general inputs used, such as wages and number of affected entities. 
Section V.A.3 explains how the provisions of the proposed rule will 
result in quantifiable costs, cost savings, and transfer payments, and 
presents the calculations the Department used to estimate them. In 
addition, section V.A.3 describes the qualitative costs, cost-savings, 
transfer payments, and benefits of the proposed rule. Section V.A.4 
summarizes the estimated first-year and 10-year total and annualized 
costs, cost savings, net costs, perpetuated net costs, and transfer 
payments of the proposed rule. Finally, section V.A.5 describes the 
regulatory alternatives that were considered during the development of 
the proposed rule.
Summary of the Analysis
    The Department estimates that the proposed rule will result in 
costs, cost savings, and transfer payments. As shown in Exhibit 1, the 
proposed rule is expected to have an average annual quantifiable cost 
of $4.01 million and a total 10-year quantifiable cost of $28.18 
million at a discount rate of 7 percent. The proposed rule is estimated 
to have annual quantifiable cost savings of $1.32 million and total 10-
year quantifiable cost savings of $10.39 million at a discount rate of 
7 percent. Also, the proposed rule is estimated to result in annual 
transfer payments of $95.28 million and total 10-year transfer payments 
of $673.07 million at a discount rate of 7 percent. The Department 
estimates that the proposed rule would result in total annualized net 
quantifiable costs of $2.62 million at a discount rate of 3 percent and 
$2.53 million at a discount rate of 7 percent, both expressed in 2017 
dollars. The Department was unable to quantify cost savings resulting 
from fewer incomplete or incorrect applications due to lack of data. 
The Department invites comments

[[Page 36230]]

regarding how this impact may be estimated.

    Exhibit 1--Estimated Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed Rule
                                                [2017 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Transfer
                                                       Costs       Cost savings     Net costs *      payments
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total......................          $40.11          $13.21          $26.89         $952.83
10-Year Total with a Discount Rate of 3%........           34.21           11.85           22.36          803.57
10-Year Total with a Discount Rate of 7%........           28.18           10.39           17.79          673.07
10-Year Average.................................            4.01            1.32            2.69           95.28
Annualized at a Discount Rate of 3%.............            4.01            1.39            2.62           94.20
Annualized with at a Discount Rate of 7%........            4.01            1.48            2.53          114.41
----------------------------------------------------------------------------------------------------------------
Perpetuated Net Costs * with a Discount Rate of 7%..............       3.24
----------------------------------------------------------------------------------------------------------------
* Net Costs = [Total Costs]-[Total Cost Savings].

    The total cost of the proposed rule is associated with rule 
familiarization and recordkeeping requirements for all H-2A 
employers,\125\ as well as increases in the amount of surety bonds 
required for H-2ALCs. The two largest contributors to the cost savings 
of the proposed rule are the electronic submission of applications and 
application signatures, including the use of electronic surety bonds, 
and the electronic sharing of job orders submitted to the NPC with the 
SWAs. Transfer payments are the results of changes to the AEWR and 
changes to the requirement that employers provide or pay for 
transportation and subsistence for certain workers for the trips 
between the worker's place of recruitment and the place of employment. 
See the costs, cost savings, and transfer payments subsections of 
section V.A.3 (Subject-by-Subject Analysis) below for a detailed 
explanation.
---------------------------------------------------------------------------

    \125\ The Department does not consider the cost of H-2A 
employers learning how to e-file. Based on H-2A Certification data 
from FY 2019, 94.1 percent of applications are submitted 
electronically. Almost of all the remaining 5.9% of H-2A applicants 
have access to email, so very few applicants will need to learn how 
to e-file.
---------------------------------------------------------------------------

    The Department was unable to quantify some cost, cost-savings, 
transfer payments, and the benefits of the proposed rule. The 
Department describes them qualitatively in section V.A.3 (Subject-by-
Subject Analysis). The Department invites comments regarding the 
assumptions, data sources, and methodologies used to estimate the 
costs, cost savings, and transfer payments from this proposed rule.
1. Need for Regulation
    The Department has determined that new rulemaking is necessary for 
the H-2A program and furthers the goals of E.O. 13788, Buy American and 
Hire American. See 82 FR 18837. The ``Hire American'' directive of the 
E.O. articulates the executive branch policy to rigorously enforce and 
administer the laws governing entry of nonimmigrant workers into the 
United States in order to create higher wages and employment rates for 
U.S. workers and to protect their economic interests. Id. sec. 2(b). It 
directs federal agencies, including the Department, to propose new 
rules and issue new guidance to prevent fraud and abuse in nonimmigrant 
visa programs, thereby protecting U.S. workers. Id. sec. 5.
    It is the policy of the Department to increase protections of U.S. 
workers and vigorously enforce all laws within its jurisdiction 
governing the administration and enforcement of nonimmigrant visa 
programs. This includes the coordination of the administration and 
enforcement activities of ETA, WHD, and the Office of the Solicitor in 
the promotion of the hiring of U.S. workers and the safeguarding of 
working conditions in the United States.\126\
---------------------------------------------------------------------------

    \126\ See News Release, U.S. Secretary of Labor Protects 
Americans, Directs Agencies to Aggressively Confront Visa Program 
Fraud and Abuse (June 6, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170606.
---------------------------------------------------------------------------

    Consistent with the E.O.'s mandate, the Department's policy, and 
the goal of modernizing the H-2A program, the Department proposes to 
update its regulations to ensure that employers can access legal 
agricultural labor, without undue cost or administrative burden, while 
maintaining the program's strong protections for the U.S. workforce. 
The changes proposed in this NPRM would streamline the Department's 
review of H-2A applications and enhance WHD's enforcement capabilities, 
thereby removing workforce instability that hinders the growth and 
productivity of our nation's farms, while allowing aggressive 
enforcement against program fraud and abuse that undermine the 
interests of U.S. workers. Among other proposals to achieve these 
goals, the Department proposes to: (1) Require mandatory e-filing and 
accept electronic signatures; (2) revise the current wage methodology 
so that the AEWR better protects against adverse effect on an 
occupation-specific basis and to modernize the prevailing wage 
methodology to provide accurate and reliable prevailing wage rates 
consistent with modern budget realities; (3) update surety bond and 
clarify recordkeeping requirements; (4) expand the definition of 
``agricultural labor or services'' such that ``reforestation 
activities'' and ``pine straw activities'' are included in the H-2A 
program; (5) authorize SWAs (or other appropriate authorities) to 
inspect and certify employer-provided housing for up to 24 months; (6) 
permit the staggering of H-2A workers; (7) replace the current 50 
percent rule, which requires employers of H-2A workers to hire any 
qualified, eligible U.S. worker who applies to the employer during the 
first 50 percent of the work contract period, with a requirement to 
hire such workers through 30 days of the contract period, unless the 
employer chooses to stagger the entry of H-2A workers, in which case a 
longer hiring obligation applies; and (8) revise the debarment 
provisions to allow the Department to debar agents and attorneys, and 
their successors in interest, based on their own substantial 
violations.
2. Analysis Considerations
    The Department estimated the costs, cost savings, and transfer 
payments of the proposed rule relative to the existing baseline (i.e., 
the current practices for complying, at a minimum, with the H-2A 
program as currently codified at 20 CFR part 655, subpart B).

[[Page 36231]]

    In accordance with the regulatory analysis guidance articulated in 
OMB's Circular A-4 and consistent with the Department's practices in 
previous rulemakings, this regulatory analysis focuses on the likely 
consequences of the proposed rule (i.e., costs, cost savings, and 
transfer payments that accrue to entities affected). The analysis 
covers 10 years (from 2020 through 2029) to ensure it captures major 
costs, cost savings, and transfer payments that accrue over time. The 
Department expresses all quantifiable impacts in 2017 dollars and uses 
discount rates of 3 and 7 percent, pursuant to Circular A-4.
    Exhibit 2 presents the number of affected entities that are 
expected to be affected by the proposed rule. The number of affected 
entities is calculated using data from the OFLC certification data from 
2016 and 2017. The Department provides these estimates and uses them 
throughout this analysis to estimate the costs, cost savings, and 
transfer payments of the proposed rule.

             Exhibit 2--Number of Affected Entities by Type
                         [FY 2016-2017 average]
------------------------------------------------------------------------
                        Entity type                             Number
------------------------------------------------------------------------
H-2A Applications Processed................................        9,391
Unique H-2A Applicants.....................................  \127\ 7,282
Certified H-2A Employers...................................  \128\ 7,023
Certified H-2A Workers.....................................        \129\
                                                                 187,740
------------------------------------------------------------------------

Growth Rate
    The Department estimates a 14 percent annual growth rate in the 
number of certified applications and in applications processed based on 
historical H-2A program data on labor certifications for FY 2012-2018. 
The Department also estimates a 19 percent geometric growth rate in 
certified H-2A workers, a 4 percent growth rate in H-2A certified 
employers, and a 16 percent growth rate in H-2A certified labor 
contractors. The average annual growth rates were applied to the 
estimated costs, cost savings, and transfer payments of the proposed 
rule to forcast participation in the H-2A program. Employment 
projections from BLS forecast that cumulative employment in the 
agriculture sector will not change through FY 2026.\130\ As such, the 
growth rates presented in this rule are the upmost upper bounds of 
certified H-2A workers in the 10-year analysis time-frame.
---------------------------------------------------------------------------

    \127\ This average includes 103 unique H-2B applicants that will 
now be considered H-2A.
    \128\ This average includes 55 certified H-2B employers that 
will now be considered H-2A. 3,990 workers were estimated from FY 
2016-2017 program data.
    \129\ This average includes 3,990 certified H-2B workers that 
will now be considered H-2A.
    \130\ The projected growth rate for the agricultural sector was 
obtained from BLS's Industrial Employment Projections and Output, 
which may be accessed at https://www.bls.gov/emp/data/industry-out-and-emp.htm.
---------------------------------------------------------------------------

Estimated Number of Workers and Change in Hours
    The Department presents the estimated average number of workers and 
the change in hours required to comply with the proposed rule per 
worker for each activity in section V.A.3 (Subject-by-Subject 
Analysis). For some activities, such as rule familiarization and 
application submission, all applicants will experience a change. For 
other activities, the proposed will only affect certified H-2A 
employers. These numbers are derived from OFLC certification data for 
the years 2016 and 2017 and represent an average of the two FYs.\131\ 
To calculate these estimates, the Department estimated the average 
amount of time (in hours) needed for each activity to meet the new 
requirements relative to the baseline.
---------------------------------------------------------------------------

    \131\ The total unique H-2A applicants in 2016 and 2017 were 
7,560 and 7,004, respectively. The total certified H-2A employers in 
2016 and 2017 were 6,780 and 7,265, respectively. This includes H-2B 
applicants and employers that will now be considered H-2A.
---------------------------------------------------------------------------

Compensation Rates
    In section V.A.3 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the implementation 
of the provisions of the proposed rule. Exhibit 3 presents the hourly 
compensation rates for the occupational categories expected to 
experience a change in the number of hours necessary to comply with the 
proposed rule. The Department used the mean hourly wage rate for 
private sector human resources specialists \132\ and the wage rate for 
federal employees at the NPC (Grade 12, Step 5).\133\ To account for 
fringe benefits and overhead costs, the mean hourly wage rate has been 
doubled.\134\ The Department adjusted these base wage rates using a 
loaded wage factor to reflect total compensation, which includes non-
wage factors such as health and retirement benefits. First, the 
Department calculated a loaded wage rate of 1.44 for private industry 
workers by calculating the ratio of average total compensation \135\ to 
average wages and salaries in 2017 for the private sector.\136\ In 
addition, the Department added 56 percent to account for overhead 
costs. For the Federal Government, the Department multiplied the loaded 
wage rate for private workers (1.44) by the ratio of the loaded wage 
factors for Federal workers to private workers (1.13) using data from a 
Congressional Budget Office report \137\ to estimate the 2017 loaded 
wage rate for Federal workers of 1.63. The Department then multiplied 
the loaded wage factor by the corresponding occupational category's 
wage rate to calculate an hourly compensation rate. In addition, the 
Department added 37 percent to account for overhead costs.
---------------------------------------------------------------------------

    \132\ Bureau of Labor Statistics. (2018). May 2017 National 
Occupational Employment and Wage Estimates: 13-1071--Human Resources 
Specialist. Retrieved from: https://www.bls.gov/oes/current/oes131071.htm.
    \133\ Office of Personnel Management, Salary Table 2018--CHI 
Incorporating the 1.4% General Schedule Increase and a Locality 
Payment of 27.47% for the Locality Pay Area of Chicago-Naperville, 
IL-IN-WI (Jan. 2018), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/CHI_h.pdf.
    \134\ Source: U.S. Department of Health and Human Services, 
Guidelines for Regulatory Impact Analysis (2016), https://aspe.hhs.gov/system/files/pdf/242926/HHS_RIAGuidance.pdf. In its 
guidelines, HHS states, ``as an interim default, while HHS conducts 
more research, analysts should assume overhead costs (including 
benefits) are equal to 100 percent of pre-tax wages.'' HHS explains 
that 100 percent is roughly the midpoint between 46 and 150 percent, 
with 46 percent based on ECEC data that suggest benefits average 46 
percent of wages and salaries, and 150 percent based on the private 
sector ``rule of thumb'' that fringe benefits plus overhead equal 
150 percent of wages. To isolate the overhead costs from HHS's 100 
percent assumption.
    \135\ Bureau of Labor Statistics, 2017 Employer Costs for 
Employee Compensation, https://www.bls.gov/ncs/ect/data.htm. Total 
compensation for all workers. Average Series ID CMU2010000000000D, 
CMU2010000000000P. To calculate the average total compensation in 
2017, the Department averaged the total compensation for all workers 
for quarters 1-4.
    \136\ Bureau of Labor Statistics, 2017 Employer Costs for 
Employee Compensation, https://www.bls.gov/ncs/ect/data.htm. Wages 
and salaries for all workers. Average Series ID CMU2020000000000D, 
CMU2020000000000P. To calculate the average wage and salary in 2017, 
the Department averaged the wages and salaries for all workers for 
quarters 1-4.
    \137\ Congressional Budget Office. (2012). Comparing the 
compensation of federal and private-sector employees. Tables 2 and 
4. Retrieved from https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/01-30-FedPay_0.pdf. The Department 
calculated the loaded wage rate for Federal workers of all education 
levels of 1.64 by dividing total compensation by wages (1.63 = 
$52.50/$32.30). The Department then calculated the loaded wage rate 
for private sector workers of all educations levels of 1.44 by 
dividing total compensation by wages (1.44 = $45.40/$31.60). 
Finally, the Department calculated the ratio of the loaded wage 
factors for Federal to private sector works of 1.13 (1.13 = 1.63/
1.44).
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    The Department used the hourly compensation rates presented in 
Exhibit 3 throughout this analysis to estimate the labor costs for each 
provision.

[[Page 36232]]



                                                              Exhibit 3--Compensation Rates
                                                                     [2017 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Hourly
                     Position                         Grade level      Base hourly      Loaded wage factor          Overhead costs         compensation
                                                                        wage rate                                                              rate
                                                                               (a)                       (b)                       (c)    d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Private Sector Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist.....................................             N/A          $31.84    $14.01 ($31.84 x 0.44)    $17.83 ($31.84 x 0.56)           $63.68
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Federal Government Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
National Processing Center Staff..................              12          $44.02    $27.73 ($44.02 x 0.63)    $16.29 ($44.02 x 0.37)           $88.04
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Subject-by-Subject Analysis
    The Department's analysis below covers the estimated costs, cost 
savings, and transfer payments of the proposed rule. In accordance with 
Circular A-4, the Department considers transfer payments as payments 
from one group to another that do not affect total resources available 
to society.
    The Department emphasizes that many of the provisions in the 
proposed rule are existing requirements in the statute, regulations, or 
regulatory guidance. The proposed rule codifies these practices under 
one set of rules; therefore, they are not considered ``new'' burdens 
resulting from the proposed rule. Accordingly, the regulatory analysis 
focuses on the costs, cost savings, and transfer payments that can be 
attributed exclusively to the new requirements in the proposed rule.
Costs
    The following sections describe the costs of the proposed rule.
Quantifiable Costs
a. Rule Familiarization
    When the proposed rule takes effect, H-2A employers will need to 
familiarize themselves with the new regulations. Consequently, this 
will impose a one-time cost in the first year.
    To estimate the first-year cost of rule familiarization, the 
Department applied the geometric average growth rate of H-2A 
applications (14 percent) to the number of unique H-2A applications 
(7,282) to determine the annual number H-2A applications impacted in 
the first year. The number of H-2A applications (8,268) was multiplied 
by the estimated amount of time required to review the rule (2 
hours).\138\ This number was then multiplied by the hourly compensation 
rate of Human Resources Specialists ($63.68 per hour). This calculation 
results in a one-time undiscounted cost of $1,053,057 in the first year 
after the proposed rule takes effect. This one-time cost yields a total 
average annual undiscounted cost of $105,306. The annualized cost over 
the 10-year period is $123,450 and $149,932 at discount rates of 3 and 
7 percent, respectively. The Department invites comments regarding the 
assumptions and data sources used to estimate the costs resulting from 
this provision.
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    \138\ This estimate reflects the nature of the proposal. As a 
proposal to amend to parts of an existing regulation, rather than to 
create a new rule, the 2-hour estimate assumes a high number of 
readers familiar with the existing regulation. Further, portions of 
this proposal (e.g., portions of Sec. Sec.  655.200 through 655.235) 
reprint existing regulatory provisions for ease of reference only. 
In addition, a major component of the Department's H-2A 
regulations--employer-conducted recruitment--is excluded from this 
proposal; they are the subject of a separate rulemaking. See 
Modernizing Recruitment Requirements for the Temporary Employment of 
H-2A Foreign Workers in the United States. 83 FR 55985 (Nov. 9, 
2018).
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b. Surety Bond Amounts
    An H-2ALC is required to submit with its Application for Temporary 
Employment Certification proof of its ability to discharge its 
financial obligations under the H-2A program in the form of a surety 
bond.\139\ Based on the Department's experience implementing the 
bonding requirement and its enforcement experience with H-2ALCs, the 
Department proposes updates to the regulations. These updates are 
intended to clarify and streamline the existing requirement and to 
strengthen the Department's ability to collect on such bonds. Further, 
the Department proposes adjustments to the required bond amounts to 
reflect annual increases in the AEWR and to address the increasing 
number of certifications that cover a significant number of workers 
under a single application and surety bond.
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    \139\ See 20 CFR 655.132(b)(3); 29 CFR 501.9.
---------------------------------------------------------------------------

    Currently, the required bond amounts range from $5,000 to $75,000, 
depending on the number of H-2A workers employed by the H-2ALC under 
the labor certification. For less than 25 workers, the required bond 
amount is currently $5,000. These amounts increase to $10,000, $20,000, 
$50,000, and $75,000 for 25 to 49 workers, 50 and 74 workers, 75 to 100 
workers, and more than 100 workers, respectively. The Department 
proposes to adjust the existing required bond amounts proportionally, 
on an annual basis, to the degree that a national average AEWR exceeds 
$9.25. The Department will calculate and publish an average AEWR 
annually when it calculates and publishes AEWRs in accordance with 
Sec.  655.120(b). The average AEWR will be calculated as a simple 
average of these AEWRs. To calculate the updated bond amounts, the 
Department will use the current bond amounts as a base, multiply the 
base by the average AEWR, and divide that number by $9.25. Until the 
Department publishes an average AEWR, the updated amount will be based 
on a simple average of the 2018 AEWRs, which the Department calculates 
to be $12.20. For instance, for a certification covering 100 workers, 
the required bond amount would be calculated by the Department using 
the following formula:

$75,000 (base amount) x $12.20 / $9.25 = $98,918.92 (updated bond 
amount).

    In subsequent years, the 2018 average AEWR of $12.20 would be 
replaced in this calculation by the average AEWR calculated and 
published in that year.
    The Department also proposes to increase the required bond amounts 
for certifications covering 150 or more workers. For such 
certifications, the bond amount applicable to certifications covering 
100 or more workers is used as a starting point and is increased for 
each additional 50 workers. The interval by which the bond amount 
increases will be updated annually to reflect increases in the AEWR. 
This value will be based on the amount of wages earned by 50 workers 
over a 2-week period and, in its

[[Page 36233]]

initial implementation, would be calculated using the 2018 average AEWR 
as demonstrated:

$12.20 (2018 Average AEWR) x 80 hours x 50 workers = $48,800 in 
additional bond for each additional 50 workers over 100.

    For example, a certification covering a crew of 150 workers would 
require additional surety in the amount of $48,800 (150-100 = 50; 1 
additional set of 50 workers). For a crew of 275 workers, additional 
surety of $146,400 would be required (275-100 = 175; 175 / 50 = 3.5; 
this is 3 additional sets of 50 workers). As explained above, this 
additional surety is added to the bond amount required for 
certifications of 100 or more workers.
    While this may represent a significant increase in the face value 
of the required bond, the Department understands that employer premiums 
for farm labor contractor surety bonds generally range from 1 to 4 
percent on the standard bonding market (i.e., contractors with fair/
average credit or better).\140\
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    \140\ The Department reviewed premium rates provided on the 
websites of companies that offer farm labor contractor bonds and, as 
noted in the discussion of sections 655.132 and 29 CFR 501.9, above, 
found that employer premiums generally range from 1 to 4 percent on 
the standard bonding market (i.e., contractors with fair/average 
credit or better). The Department assumed contractors would have 
fair/average credit and so used a premium of 4 percent to 
approximate the rate on the high side for premiums on the standard 
bond market. The Department seeks comments on the impact of the 
proposed updates to the required bond amounts.
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    For this analysis, the Department assumes that the bond premium 
faced by H-2ALCs will be 4 percent. To calculate the costs of the 
proposed increase in the required bond amounts, the Department first 
calculated the average number of H-2ALCs (including those labor 
contractors in the H-2B program that are becoming H-2A) in FYs 2016 and 
2017 and the current required bond amounts. Also, the Department 
calculated the average number of additional sets of 50 workers in FYs 
2016 and 2017. Next, the Department calculated the proposed required 
bond amounts for each category of number of workers using the 2018 
national average AEWR of $12.20, as well as the proposed bond amount 
for each set of additional 50 workers per H-2ALC. Exhibit 4 presents 
these calculations.

                        Exhibit 4--Cost Increases Due to Changes in Required Bond Amounts
----------------------------------------------------------------------------------------------------------------
                                                      Average
                                     Existing      number of H-      Proposed        Change in
        Number of workers          required bond   2ALCs in  FYs   required bond   required bond   Cost increase
                                      amount         16 and 17        amount          amount
----------------------------------------------------------------------------------------------------------------
Fewer than 25...................          $5,000             295       $6,594.59       $1,594.59          $63.78
25-49...........................          10,000              88       13,189.19        3,189.19          127.57
50-74...........................          20,000            54.5       26,378.38        6,378.38          255.14
75-100..........................          50,000              38       65,945.95       15,945.95          637.84
More than 100...................          75,000             147       98,918.92       23,918.92          956.76
Each Additional Set of 50                    N/A         a 667.5       48,800.00       48,800.00        1,952.00
 Workers Greater than 100.......
----------------------------------------------------------------------------------------------------------------
a This value represents the total number of additional sets of 50 for H-2ALCs with more than 100 workers.

    The Department calculated the first-year cost for H-2ALCs with 
fewer than 25 workers by multiplying the average number of H-2ALCs in 
FYs 2016 and 2017 with fewer than 25 workers (295 H-2ALCs) by the 
change in the required bond amount ($1,594.59) and the assumed bond 
premium (4 percent). The Department calculated this for each category 
of number of workers. Additionally, the Department calculated the total 
cost due to the proposed required bond amounts for additional sets of 
50 workers by multiplying the average additional sets of 50 workers 
(667.5 H-2ALCs) in the FYs 2016 and 2017 by the required bond amount 
($48,800.00) and the assumed bond premium (4 percent). The geometric 
growth rate of H-2A labor contractors (16 percent) was applied to 
account for anticipated increased H-2A applicants. These costs were 
then summed to obtain the total annual costs resulting from the 
increase in bond premiums. This calculation yields an average annual 
undiscounted cost of $3.74 million.
    The total cost from the proposed required bond amounts over the 10-
year period is estimated at $37.36 million undiscounted, or $31.69 
million and $25.89 million at discount rates of 3 and 7 percent, 
respectively. The annualized cost of the 10-year period is $3.72 
million and $3.69 million at discount rates of 3 and 7 percent, 
respectively. The Department invites comments regarding the assumptions 
and data sources used to estimate the costs resulting from this 
provision.
c. Recordkeeping
i. Earnings Records
    The Department is considering whether to require an employer to 
maintain a worker's email address and phone number(s) in the worker's 
home country when available. This information would greatly assist the 
Department in contacting an H-2A worker in the worker's home country, 
should the Department need to do so to conduct employee interviews as 
part of an investigation, to secure employee testimony during 
litigation, or to distribute back wages.
    To calculate the estimated recordkeeping costs associated with 
collecting and maintaining this information, the Department first 
multiplied the number of certified H-2A employers (7,023 employers) by 
the 4-percent annual growth rate of ceritifed H-2A employers to 
determine the annual impacted population of H-2A employers. The 
impacted number was then multiplied by the estimated time required to 
collect and maintain this information (2 minutes) to obtain the total 
amount of recordkeeping time required. The Department then multiplied 
this estimate by the hourly compensation rate for Human Resources 
Specialists ($63.68 per hour). This yields an annual cost ranging from 
$15,557 in 2020 to $22,839 in 2029. The Department invites comments 
regarding the assumptions and data sources used to estimate the costs 
resulting from this provision.
ii. Housing
    The Department proposes to authorize the SWAs (or other appropriate 
authorities) to inspect and issue an employer-provided housing 
certification valid for up to 24 months. Under the proposal, an 
employer must self-certify that the employer-provided housing remains 
in compliance for a subsequent Application for Temporary Employment 
Certification filed during the validity

[[Page 36234]]

period of the official housing certification.
    To calculate the estimated recordkeeping costs associated with 
maintaining records of these certifications, the Department first 
multiplied the number of certified H-2A employers (7,023 employers) by 
the 4 percent annual growth rate of ceritifed H-2A employers to 
determine the annual impacted population of H-2A employers. The 
impacted number was then multiplied by the assumed percentage of 
employers per year that will self-certify each year (100 percent). This 
amount was then multiplied by the estimated time required to maintain 
this information (2 minutes) to calculate the total amount of 
recordkeeping time required. This total time was then multiplied by the 
hourly compensation rate for Human Resources Specialists ($63.68 per 
hour). This yields an annual cost ranging from $15,557 in 2020 to 
$22,839 in 2029. This assumes that the SWAs will exercise their right 
to certify housing for more than 1 year. Some SWAs do not issue housing 
certifications valid for more than 1 year as a rule; others do not on a 
case-by-case basis. It would be accurate to say that employers would be 
assumed to self-certify 100 percent whenever the SWA's certification 
permitted it. The Department invites comments regarding the assumptions 
and data sources used to estimate the costs resulting from this 
provision.
iii. Abandonment of Employment or Termination for Cause
    The Department proposes to revise Sec.  655.122(n) to require an 
employer to maintain records of notification detailed in the same 
section for not less than 3 years from the date of the certification. 
An employer is relieved from the requirements relating to return 
transportation and subsistence costs and three-fourth guarantee when 
the employer notifies the NPC (and the DHS in case of an H-2A worker), 
in a timely manner, if a worker voluntarily abandons employment before 
the end of the contract period or is terminated for cause. 
Additionally, the employer is not required to contact its former U.S. 
workers, who abandoned employment or were terminated for cause, to 
solicit their return to the job.
    To estimate the recordkeeping costs associated with maintaining 
records of these notifications, the Department first multiplied the 
number of certified H-2A employers (7,023) by the 4 percent annual 
growth rate of ceritifed H-2A employers to determine the annual 
impacted population of H-2A employers. The impacted number was then 
multiplied by the assumed percentage of employers per year that will 
have 1 or more workers abandon employment or be terminated for cause 
(70 percent). This amount was then multiplied by the estimated time 
required to maintain these records (2 minutes) to estimate the total 
amount of recordkeeping time required. This total time was then 
multiplied by the hourly compensation rate for Human Resources 
Specialists ($63.68 per hour). This yields an annual cost ranging from 
$10,890 in 2020 to 15,988 in 2029. The Department invites comments 
regarding the assumptions and data sources used to estimate the costs 
resulting from this provision.
iv. Total Recordkeeping Costs
    The total cost from the proposed recordkeeping requirements over 
the 10-year period is estimated at $0.51 million undiscounted, or $0.45 
million and $0.38 million at discount rates of 3 and 7 percent, 
respectively. The annualized cost of the 10-year period is $0.052 
million and $0.054 million at discount rates of 3 and 7 percent, 
respectively.
d. Reforestation Applications
    The proposed rule mandates all forestry employers reclassified as 
H-2A employers must now submit an application per each crew, rather 
than one application for multiple crews. The Department estimates that 
this will increase the number of applications required from each 
forestry employer by two. The change impacts the average of 75.5 
forestry employers.\141\ The Department applied the growth rate of H-2A 
certified employers (4 percent) to determine the annual number of 
forestry employers impacted. The annual number of forestry employers 
was then multiplied by the increase in applications (2) to determine 
the annual number of increased applications. To estimate the costs to 
forestry employers, the Department multiplied the annual number of 
applications by the cost per application ($460).\142\ The Department 
also multiplied the annual number of applications by the number of 
hours it takes for a Human Resources Specialist to file the application 
(1), the Human Resources Specialist's compensation rate ($31.84 per 
hour), and the sum of the loaded wage factor and overhead cost for the 
private sector (2.00). To determine the cost to DOL staff to review 
increased applications, the annual number of applications was mutlipled 
by the amount of time spent reviewing an application (1 hour), the 
hourly wage for DOL staff ($44.02), and the sum of the loaded wage 
factor and overhead cost for the federal government (2.00). Costs to 
employers and DOL were then summed. This calculation yields an average 
annual undiscounted cost of $117,676.
---------------------------------------------------------------------------

    \141\ Average annual number of unique certified forestry 
employers for FY16-17 from H-2B dataset.
    \142\ Cost per USDA, see https://www.farmers.gov/manage/h2a.
---------------------------------------------------------------------------

    The total cost from the proposed increase in forestry applications 
over the 10-year period is estimated at $1.18 million undiscounted, or 
$1,023,229 and $863,624 at discount rates of 3 and 7 percent, 
respectively. The annualized cost of the 10-year period is $119,954 and 
$122,961 at discount rates of 3 and 7 percent, respectively.
Non-Quantifiable Costs and Transfers
a. Definition of Agriculture
    If finalized as proposed, the proposed rule would expand the 
regulatory definition of agriculture labor or services pursuant to 8 
U.S.C. 1011(a)(15)(H)(ii)(1) to include reforestation and pine straw 
activities. Consequently, nonimmigrant workers engaged in reforestation 
and pine straw activities, who historically have been and are currently 
admitted under the H-2B visa program, will be included in the H-2A 
program.
    As described earlier, the Department believes that such transfer 
would not impose significant burdens for the employers. Protections 
that currently apply to H-2A workers are generally comparable to the 
protections afforded to H-2B workers engaged in reforestation and pine 
straw activities.\143\ Additionally, work in both the reforestation and 
pine straw industries, as defined in the proposed rule, often meets the 
definition of agricultural employment under the MSPA.\144\ In the 
Department's experience in the administration and enforcement of the H-
2B visa program, the pine straw industry is not an active user of the 
H-2B program, as workers engaged in pine straw activities are 
frequently local seasonal agricultural workers. Consequently, the 
proposed rule would not have significant effects in that industry. 
Based on OFLC performance data from FY 2016 and FY 2017, 3,990 
represents the average amount of reforestation and pinestraw workers 
that receive H-2B visas per year. The growth rates were applied to

[[Page 36235]]

project their numbers over the course of the 10-year analysis 
timeframe.
---------------------------------------------------------------------------

    \143\ See 80 FR 24041.
    \144\ See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 
1163, 1170-72 (11th Cir. 2003); Bresgal v. Brock, 843 F.2d 1163, 
1171-72 (9th Cir. 1987); Davis Forestry Corp. v. Smith, 707 F.2d 
1325, 1328 n.3 (11th Cir. 1983).
---------------------------------------------------------------------------

    The Department believes that there are three potential transfer 
payments from employers to workers--transfers that result from 
potential expenses workers would no longer need to bear--under the 
proposed expanded definition of agricultural labor or services. First, 
under the H-2A program, an employer must provide housing at no cost to 
all H-2A workers. The employer must also provide housing at no cost to 
those non-H-2A workers in corresponding employment who are not 
reasonably able to return to their residence within the same day.\145\ 
Additionally, H-2A employer-provided housing must be inspected and 
certified, and rental and/or public accommodations must meet certain 
local, state, or federal standards.\146\ Under the H-2B program, 
however, an employer is not generally required to pay for housing 
unless the housing is primarily for the benefit or convenience of the 
employer. For example, an H-2B employer is required to provide housing 
to itinerant workers engaged in reforestation activities at no cost to 
the workers due to the transient nature of the occupation.\147\ In the 
Department's experience in the administration and enforcement of the H-
2B program, itinerant workers engaged in reforestation activities are 
more likely to be provided with public accommodations.
---------------------------------------------------------------------------

    \145\ See 8 U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1).
    \146\ Id.
    \147\ See 80 FR at 24063.
---------------------------------------------------------------------------

    The Department believes workers engaged in pine straw activities 
for H-2B employers tend to be local workers, and typically need not be 
provided with housing because they stay in their own homes. But, under 
the MSPA, if an employer provides housing to workers, the employer may 
charge the cost for housing to the workers, if properly disclosed.\148\ 
Consequently, the Department believes that the H-2A requirement at 
Sec.  655.122(d)(1) would result in transfer payments from employers to 
nonimmigrant workers engaged in the pine straw activities, due to a 
shift in the cost of such housing.
---------------------------------------------------------------------------

    \148\ 29 CFR 500.75-500.76 require an employer to disclose to 
each worker in writing any benefits, including transportation and 
housing, and any costs to be charged for each of them. Additionally, 
29 CFR 500.130 requires that a facility or real property used as 
housing for any migrant agricultural worker must comply with state 
and federal safety and health standards applicable to such housing.
---------------------------------------------------------------------------

    Second, the Department's H-2A regulation at Sec.  655.122(h)(3) 
requires an employer to provide transportation for workers between 
employer-provided housing and the employer's worksite at no cost to the 
workers. Additionally, the employer is required to provide 
transportation between the employer's worksites, if there is more than 
one worksite, at no cost to the workers. Providing such transportation 
is generally not a requirement under the H-2B program. However, H-2B 
employers of itinerant workers, many of whom work in the reforestation 
industry, must provide such transportation because of the transient 
nature of these itinerant workers.\149\ Consequently, the Department 
believes that the H-2A requirement at Sec.  655.122(h)(3) would impact 
only employers in the pine straw industry that are currently charging 
their workers for the cost of transportation, since employers would pay 
for such transportation under this rule.\150\
---------------------------------------------------------------------------

    \149\ See 80 FR 24041 at 24063.
    \150\ 29 CFR 500.75-500.76 require an employer to disclose to 
each worker in writing any benefits, including transportation and 
housing, and any costs to be charged for each of them.
---------------------------------------------------------------------------

    Finally, the Department's H-2A regulation at Sec.  655.122(g) 
requires an employer to provide each worker with three meals a day or 
furnish free and convenient cooking and kitchen facilities so that the 
workers can prepare their own meals. Where an employer provides the 
meals, the job offer must state the charge, if any, to the worker for 
such meals; the employer may deduct any disclosed allowable meal 
charges from the worker's pay.\151\ In contrast, the employer may not 
pass on to the worker any additional costs that the employer incurs for 
the provision of meals that exceed the allowable meal charge, unless a 
petition for higher meal charge was submitted and granted.\152\ There 
is no similar meal requirement under the H-2B program. Consequently, 
the Department believes that the H-2A requirement at Sec.  655.122(g) 
would lead to transfer payments from employers to nonimmigrant workers 
engaged in the reforestation and pine straw activities under 
circumstances in which the employer spends more than the maximum 
allowable meal charge to provide three meals a day.
---------------------------------------------------------------------------

    \151\ See 20 CFR 655.173(a).
    \152\ See 20 CFR 655.173(b).
---------------------------------------------------------------------------

    The Department is unable to quantify the estimated transfers 
described in this section due to a lack of data regarding the amount, 
if any, charged to nonimmigrant workers by employers for housing, 
transportation, and meals, and wide variations nationally in the costs 
associated with providing housing, transportation, and meals. The 
Department also proposes to codify existing mobile housing standards 
for workers engaged in animal shearing and custom combining 
occupations, with some modifications. The proposed modifications 
include removing the authority for an animal sheering contractor to 
lease a mobile unit owned by a crew member or other person or make some 
other type of ``allowance'' to the owner. The proposed standards would 
also limit the circumstances under which an employer's mobile housing 
unit can comply with range housing standards, rather than the mobile 
housing or standard housing regulations, to those periods when the work 
is performed on the range. The proposed standards would provide 
flexibility for employers to use existing mobile housing units that may 
not fully comply with the modified standards at all times by allowing 
the employer to supplement mobile units with required facilities (e.g., 
access to showers at a fixed-site such as an RV park) in order to 
comply fully with all proposed requirements. The Department is unable 
to quantify the costs of these modifications because it lacks data on 
the number of animal shearing employers that currently lease a mobile 
unit or make some other ``allowance'' under the current TEGLs, the 
number of employers who will supplement existing mobile units with 
additional facilities and to what extent, as well as on the amount of 
time that workers engaged in these occupations spend on the range. 
Consequently, the Department invites comment on this analysis, 
including any relevant data or information that might allow for a 
quantitative analysis of possible transfer effects described in this 
section.
b. Housing
    If adopted without change, the proposed rule includes potential 
costs to H-2A employers that elect to secure rental and/or public 
accommodations for workers to meet their H-2A housing obligations. 
Specifically, the proposal requires that, in the absence of applicable 
local standards addressing those health or safety concerns otherwise 
addressed by the OSHA temporary labor camp standards at 29 CFR 
1910.142(b)(2) (``each room used for sleeping purposes shall contain at 
least 50 square feet for each occupant''), Sec.  1910.142(b)(3) (``beds 
. . . shall be provided in every room used for sleeping purposes''); 
Sec.  1910.142(b)(9) (``In a room where workers cook, live, and sleep a 
minimum of 100 square feet per person shall be provided. Sanitary 
facilities shall be provided for storing and preparing food.''); Sec.  
1910.142(b)(11) (heating, cooking, and water heating equipment 
installed properly); Sec.  1910.142(c) (water supply);

[[Page 36236]]

Sec.  1910.142(f) (laundry, handwashing, and bathing facilities); and 
Sec.  1910.142(j) (insect and rodent control), the relevant state 
standards will apply; in the absence of applicable state standards 
addressing such concerns, the relevant OSHA temporary labor camp 
standards will apply. Employers that currently provide rental and/or 
public accommodations that do not meet such standards will be required 
to provide different or additional accommodations. For example, 
employers that currently require workers to share beds will be required 
to provide each worker with a separate bed. To comply with the 
proposal, such employers may be required to book additional rooms or 
provide different housing.
    The Department is unable to quantify an estimated cost due to a 
lack of data as to the number of employers that would be required to 
change current practices under this proposal. Consequently, the 
Department invites comment on this analysis, including any relevant 
data or information that might allow for a quantitative analysis of 
possible costs in the final rule.
c. Requirement To File Electronically
    Currently, about six percent of employers choose not to file 
electronically. Under the proposed rule, these employers would have two 
options--to file electronically or to file a request for accommodation 
because they are unable or limited in their ability to use or access 
electronic forms as result of a disability or lack of access to e-
filing. The Department has not estimated costs for employers' time and 
travel to file electronically when they otherwise would not have. The 
Department believes these costs will be small.
    The Department also has not estimated any costs for accommodation 
requests. The Department expects to receive very few mailed-in 
accommodation requests. In its H-1B program, which has mandatory e-
filing--albeit from a very different set of industry--the Department 
has not received any requests for accommodation due to a disability. Of 
the handful of internet access requests received annually, none were 
approved, as the requestors had public access nearby. For those 
requesting an accommodation in H-2A, the Department estimates that the 
cost to apply would be de minimis, consisting of the time and cost of a 
letter and printing out forms.
Cost Savings
    The following sections describe the cost savings of the proposed 
rule.
Quantifiable Cost Savings
a. Electronic Processing and Process Streamlining
    The Department proposes to modernize and clarify the procedures by 
which an employer files a job order and an Application for Temporary 
Employment Certification for H-2A workers under Sec. Sec.  655.121 and 
655.130 through 655.132. The NPC will electronically share job orders 
with SWAs, which will result in both a material cost and a time cost 
savings for employers.
    To ensure the most efficient processing of all applications, the 
Department must receive a complete application for review. Based on the 
Department's experience administering the H-2A program under the 
current rule, a common reason for issuing a NOD on an employer's 
application includes failure to complete all required fields on a form, 
failure to submit one or more supporting documents required by the 
regulation at the time of filing, or both. These incomplete 
applications create unnecessary processing delays for both the NPC and 
employers. In order to address this concern, the Department proposes to 
require an employer to submit the Application for Temporary Employment 
Certification and all required supporting documentation using an 
electronic method(s) designated by the OFLC Administrator, unless the 
employer cannot file electronically due to disability or lack of 
internet access. The technology system used by the OFLC will not permit 
an employer to submit an application until the employer completes all 
required fields on the forms and uploads and saves to the pending 
application an electronic copy of all required documentation, including 
a copy of the job order submitted in accordance with Sec.  655.121. The 
Department estimates that 80 percent of applications are currently 
filed electronically and that this proposed rule would significantly 
increase the number of employers who submit electronic applications. 
This would result in material and time cost savings for employers. 
Electronic processing would also result in a time cost savings for the 
NPC. The Department also proposes that employers may file only one 
Application for Temporary Employment Certification for place(s) of 
employment contained within a single area of intended employment 
covering the same occupation or comparable work by an employer for each 
period of employment, which will reduce the number of overall 
applications submitted. Finally, the Department proposes to the use of 
electronic signatures as a valid form of the employer's original 
signature and, if applicable, the original signature of the employer's 
authorized attorney or agent.
    To estimate the material cost savings to employers due to 
electronic processing, the Department assumed that the proposed rule 
would result in 6 percent of H-2A employers switching to electronic 
processing of applications. Initially the Department reduced the number 
of H-2A applications processed (9,391) by the number of applications 
made unnecessary by the staggering rule (8,444) to determine an 
impacted population of H-2A applications (947). The growth rate of H-2A 
applications (14 percent) was then applied to determine the annual 
impacted number of applications. The Department then multiplied the 
percentage estimated to switch to electronic processing of applications 
(6 percent) by the annual number of impacted H-2A applications to 
obtain the number of employers who would no longer be submitting by 
mail. For each application, a material cost was calculated by summing 
the price of a stamp ($0.50), the price of an envelope ($0.04), and the 
total cost of paper. The total cost of paper was calculated by 
multiplying the cost of a sheet of paper ($0.02) by the number of pages 
in the application (100 pages). The per-application costs were then 
multiplied by the number of applications who would no longer be 
submitting by mail. This yields average annual undiscounted cost 
savings of $304.62.
    The total material cost savings from electronic processing over the 
10-year period is estimated at $43,046 undiscounted, or $24,596 and 
$20,135 at discount rates of 3 and 7 percent, respectively. The 
annualized cost savings over the 10-year period is $304.36 and $303.91 
at discount rates of 3 and 7 percent, respectively.
    To estimate the time cost savings to employers due to electronic 
processing, the Department again estimated the number of affected 
applications by multiplying the assumed percentage of employers that 
would switch to electronic applications (6 percent) by the total number 
of annually impacted H-2A applications. The Department assumed that the 
time savings due to electronic submission (rather than sealing and 
mailing an envelope) would be 5 minutes. The time cost savings were 
calculated by multiplying 5 minutes (0.083 hours) by the hourly 
compensation rate for Human Resources Specialists ($63.68 per hour). 
This time cost savings was then multiplied by the estimated number of 
applications expected to switch to electronic

[[Page 36237]]

submission. This yields average annual undiscounted cost savings of 
$633.87.
    The total time cost savings from electronic processing over the 10-
year period is estimated at $6,339 undiscounted, or $5,403 and $4,442 
at discount rates of 3 and 7 percent, respectively. The annualized cost 
savings over the 10-year period is $633.34 and $632.39 at discount 
rates of 3 and 7 percent, respectively.
    To estimate the material cost savings to employers due to the NPC 
sharing job orders with the SWAs electronically, the Department assumed 
that 100 percent of unique H-2A applicants would be affected. For each 
annually impacted H-2A application, a material cost was calculated by 
summing the price of a stamp ($0.50), the price of an envelope ($0.04), 
and the total cost of paper. The total cost of paper was calculated by 
multiplying the cost of a sheet of paper ($0.02) by the number of pages 
in the application (100 pages). The per-application costs were then 
multiplied by the number of applications who would no longer be 
submitting by mail. This yields average annual undiscounted cost 
savings of $5,163.
    The total material cost savings over the 10-year period is 
estimated at $51,630 undiscounted, or $44,004 and $36,178 at discount 
rates of 3 and 7 percent, respectively. The annualized cost savings 
over the 10-year period is $5,159 and $5,151 at discount rates of 3 and 
7 percent, respectively.
    To estimate the time cost savings to employers resulting from the 
NPC electronically sharing job orders with the SWAs, the Department 
again assumed that 100 percent of unique H-2A applicants would be 
affected. For each annually impacted H-2A application, the Department 
assumed that the time savings due to electronic submission (rather than 
sealing and mailing an envelope) would be 5 minutes. The time cost 
savings were calculated by multiplying 5 minutes in hours (0.083 hours) 
by the hourly compensation rate for Human Resources Specialists ($63.68 
per hour). This cost savings was then multiplied by the estimated 
number of applications switching to electronic submission. This yields 
average annual undiscounted cost savings of $10,744.
    The total time cost savings over the 10-year period is estimated at 
$107,436 undiscounted, or $91,568 and $75,283 at discount rates of 3 
and 7 percent, respectively. The annualized cost savings over the 10-
year period is $10,735 and $10,719 at discount rates of 3 and 7 
percent, respectively.
    The Department assumes that the DOL staff will save approximately 1 
hour for each application that is now submitted electronically. To 
calculate the time cost savings to the Federal Government due to 
electronic processing, the Department first calculated the number of 
employers that would now submit electronically by multiplying the 
assumed percentage (6percent) by the total number of annually impacted 
H-2A applications. This cost savings was then multiplied by the per-
application time cost savings, calculated by multiplying the time 
savings (1 hour) by the hourly compensation rate for DOL staff ($88.04 
per hour). This yields average annual undiscounted cost savings of 
$10,558.
    The total time cost savings over the 10-year period is estimated at 
$105,585 undiscounted, or $89,990 and $73,985 at discount rates of 3 
and 7 percent, respectively. The annualized cost savings over the 10-
year period is $10,550 and $10,554 at discount rates of 3 and 7 
percent, respectively. The Department invites comments regarding the 
assumptions and data sources used to estimate the cost savings 
resulting from this provision.
b. Staggering Worker Entry
    The Department proposes to permit the staggered entry of H-2A 
workers into the United States. This proposal permits an employer that 
receives a temporary agricultural labor certification and an approved 
H-2A Petition to bring nonimmigrant workers into the United States at 
any time during the 120-day period after the first date of need 
identified on the certified Application for Temporary Employment 
Certification without filing another H-2A Petition. An employer that 
chooses to stagger the entry of its workers must notify the NPC 
electronically, or by mail if permitted to do so, of its intent to 
stagger and identify the period of time, up to 120 days, during which 
the staggering will take place. An agricultural association filing as a 
joint employer with its members need only make a single request on 
behalf of its members duly named on the application and provide the NPC 
with the maximum staggered entry timeframe.
    Employers that wish to stagger the entry of their workers must 
continue to accept referrals of U.S. workers and hire those who are 
qualified and eligible through the period of staggering or the first 30 
days after the first date of need identified on the certified 
Application for Temporary Employment Certification, whichever is 
longer. Employers must also comply with the requirement to update their 
recruitment reports.
    The Department expects the above proposal will result in cost 
savings to the employer. This is because currently, an employer that 
needs agricultural workers at different points of a season must file 
separate Applications for Temporary Employment Certification containing 
a new start date for each group of job opportunities. In addition, an 
agricultural association filing as a joint employer with a number of 
its employer-members must currently coordinate the amount and timing of 
labor needed across numerous employer-members growing a wide array of 
different crops under the same start date of work. The same 
agricultural association must then file numerous master applications, 
often one every calendar month, covering substantially the same 
employer-members that need workers to perform work in the same 
occupational classification based on a different start date of work. 
Because the proposal will reduce the number of Applications for 
Temporary Employment Certification an employer that wishes to stagger 
must file and decrease the time and expense of coordinating master 
applications for agricultural associations, the Department expects this 
proposed change to produce cost savings for the employer. Some of these 
cost savings may be offset by the time and expense it will take for the 
employer to notify the NPC of its intent to stagger, but the Department 
expects this cost to be minimal and the overall impact of its proposal 
to be one of cost savings.
    To estimate employer time cost savings associated with the 
staggered entry of workers into the United States, the Department first 
calculated the total number of employers eligible for staggering 
(4,926) and applied the annual growth rate of H-2A applications 
certified (14 percent) and the total number of certifications for the 
same SOC, state, and employer (13,370) and applied the H-2A certified 
employer growth rate (4 percent). The Department subtracts the number 
of eligible employers from the total number of duplicate certifications 
to estimate the total number of repeat applications annually that would 
no longer be necessary under the proposed rule (8,444). This number was 
then multiplied by the assumed net time savings (1.77 hours) and the 
total loaded wage rate for employers ($63.68). This yields average 
annual undiscounted cost savings of $726,493.
    The total time cost savings to employers due over the 10-year 
period is estimated at $7.26 million undiscounted, or $6.52 million and 
$5.73 million at discount rates of 3 and

[[Page 36238]]

7 percent, respectively. The annualized cost savings over the 10-year 
period is $764,689 and $815,570 at discount rates of 3 and 7 percent, 
respectively. The Department invites comments regarding the assumptions 
and data sources used to estimate the cost savings resulting from this 
provision.
    To estimate time cost savings to the Federal government associated 
with the staggered entry of workers into the United States, the 
Department multiplied the total number of annual repeat applications 
that would no longer by necessary (8,444) by the assumed time to review 
each repeat application (1 hour) and the loaded wage rate for Federal 
employees ($88.04). This yields average annual undiscounted cost 
savings of $567,460.
    The total time cost savings to the Federal government over the 10-
year period is estimated at $5.67 million undiscounted, or $5.10 
million and $4.47 million at discount rates of 3 and 7 percent, 
respectively. The annualized cost savings over the 10-year period is 
$597,295 and $637,038 at discount rates of 3 and 7 percent, 
respectively. The Department invites comments regarding the assumptions 
and data sources used to estimate the cost savings resulting from this 
provision.
Non-Quantifiable Cost Savings
a. Cost Savings From Modernizing the H-2A Program To Provide Employers 
With Timely Access to Legal Agricultural Labors
    The Department proposes to institute changes to modernize the H-2A 
program and eliminate inefficiencies, which will help ensure that 
employers can access legal agricultural labor, without undue cost or 
administrative burden, while maintaining the program's strong 
protections for the U.S. workforce. Among other proposals to achieve 
these goals, the Department proposes to (1) allow employers to start 
work within a 14 calendar day period after the anticipated start date 
of work and stagger the entry of H-2A workers to account for factors 
such as travel delays and changing climatic conditions that impact farm 
operations and costs; (2) facilitate employers--especially small 
growers who are unable to individually offer full-time work--jointly 
employing workers to perform the same services or labor during the same 
period of employment; (3) streamline application processing by 
providing employers who file compliant job orders with the option to 
begin positive recruitment of U.S. workers prior to filing the H-2A 
application; (4) increase the stability of any given employer's 
workforce by replacing the current 50 percent rule with a requirement 
to hire workers through 30 days of the contract period; and (5) expand 
the H-2A program to employers performing ``reforestation activities'' 
and ``pine straw activities'' to reflect how their workers share many 
of the same characteristics as traditional agricultural crews.
    Through such changes, the rule would reduce costly workforce 
instability that hinders the growth and productivity of our nation's 
farms. The Department believes such changes will result in cost savings 
from a more viable and productive workforce alternative. At the same 
time, an H-2A program that is more functional and reliable as a whole 
would also reduce costs associated with available but displaced U.S. 
workers, or adverse effects to their wages and working conditions.
b. Cost Savings From Efficiencies Associated With Receiving More 
Complete and Accurate Applications
    The Department proposes to modernize the process by which H-2A 
employers submit job orders to the SWAs and applications to the 
Department through e-filing and requiring the designation of a valid 
email address for sending and receiving official correspondence during 
application processing, except where the employer is unable or limited 
in its ability to use or access electronic forms as result of a 
disability, or lacks access to e-filing.
    The Department believes that transitioning to electronic 
submissions would result in cost savings to employers and to the NPC. 
Currently, submissions that are incomplete or obviously inaccurate upon 
their receipt result in a NOD on the employer's application. As a 
result, employers who submit incomplete applications must start the 
submission process from the beginning. This can lead to costly delays 
for employers, as well as costly processing time for the NPC.
    The requirement for electronic submissions would reduce the number 
of instances where incomplete applications are submitted because 
employers have not fully completed the form prior to submitting it. E-
filing permits automatic notification that an application is incomplete 
or obviously inaccurate and provides employers with an immediate 
opportunity to correct the errors or upload missing documentation. 
Additionally, the adoption of electronic submissions should reduce the 
amount of time it takes to correct errors because entries can simply be 
deleted, rather than requiring the production of new copies of the form 
after an error is detected.
    For the NPC, electronic filing and communications will improve the 
quality of information collected from employers, reduce unnecessary 
costs of communicating with employers to resolve obvious errors or 
receive complete information, and reduce the frequency of delays 
related to application processing.
c. Cost Savings From Efficiencies Created by Acceptance of Electronic 
Signatures
    The Department also proposes to enable employers, agents, and 
attorneys to use electronic methods to sign or certify any document 
required under this subpart using a valid electronic signature method. 
The current practice of accepting electronic (scanned) copies of 
original signatures on documents has generated efficiencies in the 
application process, and the Department believes leveraging modern 
technologies to accept electronic signature methods can achieve even 
greater efficiencies and result in cost savings to employers and the 
NPC.
    Accepting electronic signature methods as a means of complying with 
original signature requirements for the H-2A program will reduce the 
costs for employers associated with printing, mailing, or delivering 
original signed paper documents or scanned copies of original 
signatures on documents to the NPC. Additionally, electronic signature 
methods provide employers and their authorized attorneys or agents with 
greater flexibility to conduct business with the Department--at any 
time and at any location with an internet connection--rather than 
needing to be located in a physical office. This frees valuable time 
for conducting other business tasks.
    The NPC anticipates additional cost savings from use of electronic 
signature methods. The acceptance of documents containing electronic 
signatures will facilitate the NPC's use of a more centralized document 
storage capability to more efficiently access documents during 
application processing, saving time and expense.
d. Cost Savings From Efficiencies Created by the Use of Electronic 
Surety Bonds
    The Department also proposes to develop a process for accepting 
electronic surety bonds through the iCERT system and to require the use 
of a standardized bond form. The Department believes that these 
proposed changes will result in a cost savings to H-2ALCs and the NPC. 
Currently all H-

[[Page 36239]]

2ALCs, even the majority that submit other components of their 
applications electronically, have to submit original paper surety bonds 
before the labor certifications can be issued. Accepting original 
electronic surety bonds will reduce the costs associated with mailing 
or delivering the original surety bonds to the NPC and the costs for 
NPC to transfer these bonds to WHD for enforcement purposes. 
Additionally, using a standardized bond form will reduce the likelihood 
of errors and the amount of time required for the NPC to review the 
bonds for compliance.
    The Department seeks comments from the public regarding any 
additional non-quantifiable cost savings that are not included in this 
analysis.
Transfer Payments
Quantifiable Transfer Payments
    This section discusses the quantifiable transfer payments related 
to transportation and subsistence costs and the revisions to the wage 
structure.
a. Transportation and Subsistence Costs
    The Department proposes to revise the beginning and end points from 
and to which an employer must provide or pay for transportation and 
subsistence costs for certain H-2A workers. An employer must pay a 
worker for the reasonable transportation and subsistence costs incurred 
when traveling to the employer's place of employment, provided that the 
worker completes at least 50 percent of the work contract period and 
the employer has not previously advanced or otherwise provided such 
transportation and subsistence. Specifically, an employer must provide 
or pay for transportation and daily subsistence from ``the place from 
which the worker has come to work for the employer.'' Under the 
proposed rule, for an H-2A worker that requires a visa departing to 
work for the employer from a location outside of the United States, 
``the place from which the worker departed'' will mean the appropriate 
U.S. Consulate or Embassy. This change will result in transfer payments 
from workers to employers. The Department first calculated the transfer 
payment for transportation and then calculated such transfer payment 
for subsistence cost.
    Transportation-related transfer payments were calculated by 
multiplying the total number of certified H-2A workers (187,740 
workers) by the growth rate of H-2A certified workers (19 percent) to 
determine the annual number of certified workers. The annual number of 
certified H-2A workers was then multiplied by the number of one-way 
trips per worker (2 trips). This was then multiplied by the cost of a 
one-way bus ticket ($59.00) between Oaxaca, Mexico and Monterrey, 
Mexico. In the Department's enforcement experience, H-2A workers are 
predominantly from Mexico. Additionally, in the Department's 
experience, the majority of H-2A workers from Mexico arrive in 
Monterrey, Mexico for visa processing prior to arriving at the 
appropriate port of entry to seek admission to the United States. This 
yields average annual undiscounted transfers of $65.38 million. The 
total transfer over the 10-year period is estimated at $653.76 million 
undiscounted, or $551.35 million and $446.92 million at discount rates 
of 3 and 7 percent, respectively. The annualized transfer over the 10-
year period is $64.63 million and $78.50 million at discount rates of 3 
and 7 percent, respectively.
    Subsistence-related transfer payments were also calculated by 
multiplying the total annual number of certified H-2A workers (187,740 
workers) by the number of one-way trips per worker (2 trips). This 
amount was then multiplied by the minimum daily subsistence amount for 
workers traveling ($12.26),\153\ resulting in average annual 
undiscounted transfers of $13.58 million. The total transfer over the 
10-year period is estimated at $135.85 million undiscounted, or $114.57 
million and $92.87 million at discount rates of 3 and 7 percent, 
respectively. The annualized transfer over the 10-year period is $13.43 
million and $16.31 million at discount rates of 3 and 7 percent, 
respectively. The Department invites comments regarding the assumptions 
and data sources used to estimate the transfers resulting from this 
provision.
---------------------------------------------------------------------------

    \153\ Department of Labor, Employment and Training 
Administration, Allowable Meal Charges and Reimbursements for Daily 
Subsistence (Mar. 21, 2018), https://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.
---------------------------------------------------------------------------

b. Revisions to Wage Structure
    Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an 
H-2A worker is admissible only if the Secretary of Labor determines 
that ``there are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the labor or services involved in the petition, and the 
employment of the alien in such labor or services will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.'' In 20 CFR 655.120(a), the Department currently 
meets this statutory requirement by requiring the employer to offer, 
advertise in its recruitment, and pay a wage that is the highest of the 
AEWR, the prevailing wage, the agreed-upon collective bargaining wage, 
the Federal minimum wage, or the State minimum wage. The Department 
proposes to maintain this general wage-setting structure with only 
minor revisions, but, as discussed below, proposes to modify the 
methodology by which it establishes the AEWRs and prevailing wages.
    Specifically, the Department proposes to modify the AEWR 
methodology so that it is based on data more specific to the 
agricultural occupation of workers in the United States similarly 
employed. The Department currently sets the AEWR at the annual average 
hourly gross wage for field and livestock workers (combined) for the 
State or region from the FLS conducted by the USDA's NASS, which 
results in a single AEWR for all agricultural workers in a State or 
region. As discussed in depth in the preamble, the Department is 
concerned that the current AEWR methodology may have an adverse effect 
on the wages of workers in higher paid agricultural occupations, such 
as supervisors of farmworkers and construction laborers on farms, whose 
wages may be inappropriately lowered by an AEWR established from the 
wages of field and livestock workers (combined), an occupational 
category from the FLS that does not include those workers. In addition, 
the use of generalized data for other agricultural occupations could 
produce a wage rate that is not sufficiently tailored to the 
occupation, as necessary to protect against adverse effect for those 
occupations.
    The Department proposes to set the AEWR at the annual average 
hourly gross wage for the State or region and particular SOC applicable 
to the work performed from the USDA's FLS. The Department proposes to 
use the FLS to establish the AEWR for the SOC, where such a wage is 
available, rather than an alternative wage source, because the FLS is 
the only comprehensive wage survey of wages paid by farmers and 
ranchers. When FLS State or regional data is not available for the SOC, 
however, the Department proposes to set the AEWR based on BLS's OES 
average wage for the SOC and the State because the OES is a 
comprehensive and valid source of wage data that can be useful when 
USDA cannot produce valid FLS wage data for the agricultural occupation 
and geographic area. Next, if OES State data is not available, the 
Department would be set the AEWR based on FLS national data for the 
SOC. Lastly, if all prior data sources do not

[[Page 36240]]

have an hourly wage available, then the AEWR would be determined by OES 
National data.
    The Department calculated the impact on wages that would occur from 
the implementation of the proposed AEWR methodology. For each H-2A 
Certification in 2016 and 2017, the Department used the difference 
between the projected AEWR under the proposed rule and estimated wages 
under the current AEWR baseline to establish the wage impact of the 
proposed AEWR methodology.
    For an illustrative example in Exhibit 5, to calculate projected 
AEWRs under the proposed rule, the Department multiplied the number of 
certified workers by the number of hours worked each week, the number 
of weeks in a given year that the employees worked, and the annual 
average hourly gross wage for the State or region and particular SOC 
applicable to the work performed from the USDA FLS (FLS regional SOC 
wage).\154\ This example sets forth how the Department calculated the 
proposed wage impact for an individual case.
---------------------------------------------------------------------------

    \154\ When the USDA survey did not produce an FLS regional SOC 
wage, the Department utilized a wage determination hierarchy of OES 
State data followed by FLS national SOC data, then OES national SOC 
data in the event that the previously mentioned wage sources were 
not available.

                                                      Exhibit 5--AEWR Wage Under the Proposed Rule
                                                                     [Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Number  of       Basic number  of     Number of days     Number of days   FLS regional  SOC  FLS regional  SOC  Total AEWR  wages  Total AEWR  wages
certified  workers         hours          worked in 2016     worked in 2017       wage  2016         wage  2017            2016               2017
(a)                              (b)                (c)                (d)                (e)                (f)    (a * b * (c/7) *   (a * b * (d/7) *
                                                                                                                                 e)                 f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
              14                  35                306                  1             $10.43             $10.44        $223,410.60            $730.80
--------------------------------------------------------------------------------------------------------------------------------------------------------

    After the total AEWR for the proposed rule was determined, the wage 
calculation under the current AEWR was calculated. The methodology is 
similar to that used to estimate the projected AEWR under the proposed 
rule: The number of workers certified is multiplied by the number of 
hours worked each week, the number of weeks in a given year that the 
employees worked, and the AEWR baseline for the year(s) in which the 
work occurred (Exhibit 6 provides an example of the calculation of the 
AEWR baseline for the same case as in Exhibit 5).

                                                                 Exhibit 6--Current AEWR
                                                                     (Example Case)
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Number of       Basic number  of     Number of days     Number of days    AEWR  (baseline)   AEWR  (baseline)
certified  workers         hours          worked in 2016     worked in 2017          2016               2017        AEWR  wages  2016  AEWR  wages  2017
(a)                              (b)                (c)                (d)                (e)                (f)    (a * b * (c/7) *   (a * b * (d/7) *
                                                                                                                                 e)                 f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
              14                  35                306                  1             $10.69             $10.38        $228,979.80            $726.60
                    ..................  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Once the wage for the AEWR baseline was obtained, the Department 
estimated the wage impact of the new proposed AEWR by subtracting the 
baseline AEWR wage for 2016 from the proposed wage for 2016 to 
determine the AEWR wage impact ($223,410.60-$228,979,80 = -$5,569.20). 
This was repeated for 2017 ($730.80-$726.60 = $4.20). The Department 
also applied the growth rate of certified H-2A workers (19 percent) to 
determine the annual transfer.
    Forestry and conservation workers (45-4011) previously classified 
as H-2B workers were segregated in the analysis from all other H-2A 
workers. For these workers, a proposed AEWR was determined using the 
BLS' OES average wage by SOC and State, where available, or OES 
national Data if a State wage was not available for the SOC because 
there is no FLS State or regional data available for SOC 45-4011. 
Unfortunately, no baseline data was available to compare the proposed 
wages to for these forestry workers. Because of this, the Department 
was unable to determine wage impacts of the proposed rule for forestry 
workers, and they are not included in the total impact for FY 2016 or 
2017.\155\
---------------------------------------------------------------------------

    \155\ In FY 2016 and FY 2017 there were 12,638 forestry workers, 
compared to 375,480 H-2A workers overall. While the Department 
expects their wages to go up, the Department does not expect a 
significant impact relative to the total overall impacts of the 
proposed rule.
---------------------------------------------------------------------------

    The Department determined the total impact of the proposed AEWR for 
each year, excluding forest and conservation workers, by summing the 
AEWR impacts for all certifications in each year and these totals were 
then averaged to produce an annual estimate of the proposed AEWR 
impacts.
    The changes in AEWR rates constitute a transfer payment from 
employers to employees. The Department estimates average annual 
undiscounted transfers of $16.32 million. The total transfer over the 
10-year period is estimated at $163.22 million undiscounted, or $137.65 
million and $111.58 million at discount rates of 3 and 7 percent, 
respectively. The annualized transfer over the 10-year period is $16.14 
million and $19.60 million at discount rates of 3 and 7 percent, 
respectively. The Department invites comments regarding the assumptions 
and data sources used to estimate the transfers resulting from this 
provision.
    In addition to the proposed changes to the AEWR methodology 
discussed above, the Department also proposes to modernize the 
methodology currently set in sub-regulatory guidance for state-
conducted prevailing wage surveys. This proposal would likely result in 
a transfer from employers to workers. The Department expects the 
proposal to allow SWAs and other state agencies to conduct prevailing 
wage surveys using standards that are realistic in a modern budget 
environment would allow the

[[Page 36241]]

Department to establish a greater number of reliable and accurate 
prevailing wage rates for workers and employers. However, under the 
proposal, the Department would require an employer to pay a prevailing 
wage rate only if a prevailing wage rate published by the OFLC 
Administrator is the highest applicable wage. Because the Department 
cannot estimate the extent of the increase in the number of prevailing 
wage determinations that would be issued as the highest applicable wage 
under the proposed methodology, the Department is not able to quantify 
these transfer payments. The Department invites comments on the 
economic impacts of these proposals.
Unquantifiable Transfer Payments
a. Revisions to Wage Structure
    The increase (or decrease) in the wage rates for H-2A workers 
represents an important transfer from agricultural employers to 
corresponding U.S. workers, not just H-2A workers. The higher (or 
lower) wages for H-2A workers associated with the proposed rule's 
methodology for determining the monthly AEWR will also result in wage 
changes to corresponding U.S. workers. However, the Department does not 
have sufficient information about the number of corresponding U.S. 
workers affected and their wage structure to reasonably measure the 
wage transfer to corresponding U.S workers. The Department invites 
comments regarding how this impact can be calculated.
Qualitative Benefits Discussion
a. Housing
    In association with the [benefits/savings] outlined above, the 
proposed rule has unquantifiable benefits as well. First, if finalized 
as proposed, the proposed rule would authorize the SWAs (or other 
appropriate authorities) to inspect and certify employer-provided 
housing for a period of up to 24 months.\156\ The SWAs and other 
appropriate authorities would thus be required to conduct fewer 
inspections of H-2A employer-provided housing annually, permitting 
these authorities to more efficiently allocate and prioritize 
resources. Moreover, the proposal would result in more timely 
certifications of employer-provided housing, reducing delays in the H-
2A labor certification process. The Federal Government, employers, and 
workers alike would benefit from such reduction in delays.
---------------------------------------------------------------------------

    \156\ As described above, 24-month certification would be 
subject to appropriate criteria and prior notice to the Department 
by the certifying authority.
---------------------------------------------------------------------------

    The Department is unable to quantify these estimated benefits, 
given the discretion afforded the SWAs (or other appropriate 
authorities) under the proposed rule to determine the exact length of a 
housing inspection certification. Consequently, the Department invites 
comments on this analysis, including any relevant data or information 
that might allow for a quantitative analysis of possible benefits in 
the final rule resulting from the housing inspection proposals.
b. Thirty-Day Rule
    The Department's analysis of recruitment report data indicate that 
many U.S. workers hired pursuant to the 50 percent rule voluntarily 
resigned or abandoned the job shortly after beginning work; therefore, 
employers who choose to displace an H-2A worker when hiring a U.S. 
worker may find themselves without enough workers to fulfill their 
staffing needs. However, employers who choose to retain both the H-2A 
worker and the U.S. worker to prevent potential disruption to work flow 
must incur the expense of doing so.
    The changes proposed in this NPRM would improve the process of 
submitting and reviewing H-2A applications, which would directly 
enhance WHD's enforcement capabilities. This would result in the 
reduction of workforce instability that hinders the growth and 
productivity of our nation's farms while allowing aggressive 
enforcement against program fraud and abuse that undermine the 
interests of U.S. workers.
c. Surety Bonds
    The proposed changes to the surety bond requirement, including the 
use of electronic surety bonds and a standardized bond form, will also 
result in unquantifiable benefits to the H-2ALCs in the form of a more 
streamlined application process with fewer delays. Accepting electronic 
surety bonds will mean that the NPC receives the required original bond 
with the rest of the application and it will no longer be necessary to 
wait for the bond to arrival via mail or other delivery before issuing 
the certification.
    Further, these changes and the changes to the required bond amounts 
will enhance WHD's enforcement capabilities by making it more certain 
that there will be a sufficient, compliant bond available to redress 
potential violations. This will advance the Department's goal of 
aggressively enforcing against program fraud and abuse that undermine 
the interests of U.S. workers.
4. Summary of the Analysis
    Exhibit 4 summarizes the estimated total costs, cost savings, and 
transfer payments of the proposed rule over the 10-year analysis 
period. The transportation and daily subsistence has the largest effect 
as a transfer cost.

  Exhibit 4--Estimated 10-Year Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed
                                                Rule by Provision
                                                [2017 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                    Total cost
                            Provision                               Total cost        savings     Total transfer
----------------------------------------------------------------------------------------------------------------
Transportation and Daily Subsistence............................  ..............  ..............         $789.61
Proposed Wage Option............................................  ..............  ..............          163.22
Surety Bond.....................................................          $37.36  ..............  ..............
Record Keeping..................................................            0.51  ..............  ..............
Rule Familiarization............................................            1.05  ..............  ..............
Reforestation Applications......................................            1.18  ..............  ..............
Electronic Processing and Process Streamlining Cost Savings.....  ..............           $0.27  ..............
Staggered Entry.................................................  ..............           12.94  ..............
Undiscounted 10-Year Total......................................           40.11           13.21          952.83
10-Year Total with a Discount Rate of 3%........................           34.21           11.85          803.57

[[Page 36242]]

 
10-Year Total with a Discount Rate of 7%........................           28.18           10.39          673.07
----------------------------------------------------------------------------------------------------------------

    Exhibit 5 summarizes the estimated total costs, cost savings, and 
transfer payments of the proposed rule over the 10-year analysis 
period.
    The Department estimates the annualized costs of the proposed rule 
at $4.01 million, the annualized cost savings at $1.48 million, and the 
annualized transfer payments (from H-2A employers to workers) at 
$114.41 million, at a discount rate of 7 percent. For the purpose of 
E.O. 13771, even though the annualized net quantifiable cost, when 
perpetuated, is $3.24 million at a discount rate of 7 percent, the 
Department expects that the total annualized cost-savings of this 
proposed rule would outweigh the total annualized costs, resulting in a 
net cost savings due to large non-quantifiable cost savings. The 
Department seeks comment on this expectation.
    The Department estimates the total net cost of the proposed rule at 
$17.79 million at a discount rate of 7 percent.

    Exhibit 5--Estimated Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed Rule
                                                [2017 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Transfer
                                                       Costs       Cost  savings    Net  costs*      payments
----------------------------------------------------------------------------------------------------------------
2020............................................           $2.94           $1.69           $1.25          $38.44
2021............................................            2.18            1.66            0.51           45.77
2022............................................            2.51            1.62            0.89           54.50
2023............................................            2.89            1.56            1.33           64.88
2024............................................            3.34            1.48            1.86           77.25
2025............................................            3.85            1.37            2.48           91.98
2026............................................            4.45            1.24            3.21          109.51
2027............................................            5.14            1.08            4.06          130.39
2028............................................            5.94            0.87            5.06          155.25
2029............................................            6.87            0.63            6.24          184.84
Undiscounted 10-Year Total......................           40.11           13.21           26.89          952.83
10-Year Total with a Discount Rate of 3%........           34.21           11.85           22.36          803.57
10-Year Total with a Discount Rate of 7%........           28.18           10.39           17.79          673.07
10-Year Average.................................            4.01            1.32            2.69           95.28
Annualized with a Discount Rate of 3%...........            4.01            1.39            2.62           94.20
Annualized with a Discount Rate of 7%...........            4.01            1.48            2.53          114.41
----------------------------------------------------------------------------------------------------------------
Perpetuated Net Costs with a Discount Rate of 7%................       $3.24
----------------------------------------------------------------------------------------------------------------

5. Regulatory Alternatives
    The Department considered two alternatives to the proposal to 
establish the AEWR at the annual average hourly gross wage for the 
State or region and SOC from the FLS where USDA reports such a wage. 
First, the Department considered using the current FLS occupational 
classifications of field and livestock workers for each State or region 
to set a separate AEWR for field workers and another AEWR for livestock 
workers at the annual average hourly gross wage from the FLS for 
workers covered by those classifications. Under this alternative, the 
Department would use the OES average hourly wage for the SOC and State 
if either: (1) The occupation covered by the job order is not included 
in the current FLS occupational classifications of field or livestock 
workers; \157\ or (2) workers within the occupations classifications of 
field or livestock workers but in a region or State where USDA cannot 
produce a wage for that classification, which is expected to occur only 
in Alaska. Finally, under this alternative where both OES State data is 
not available, and the work performed is not covered by the field or 
livestock worker categories of the FLS, the Department would use the 
OES national average hourly wage for the SOC.
---------------------------------------------------------------------------

    \157\ Among the workers excluded from the field and livestock 
worker categories of the FLS are workers in the following SOCs: 
Farmers, Ranchers and Other Agricultural Managers (SOC 11-9013) and 
First Line Supervisors of Farm Workers (SOC 45-1011), Forest and 
Conservation Workers (SOC 45-4011), Logging Workers (SOC 45-4020), 
and Construction Laborers (SOC 47-2061).
---------------------------------------------------------------------------

    The total impact of the first regulatory alternative was calculated 
in the same manner as the proposed wage. The Department estimated 
average annual undiscounted transfers of $23.88 million. The total 
transfer over the 10-year period was estimated at $238.76 million 
undiscounted, or $201.36 million and $163.23 million at discount rates 
of 3 and 7 percent, respectively. The annualized transfer over the 10-
year period was $23.61 million and $28.67 million at discount rates of 
3 and 7 percent, respectively.
    Under the second regulatory alternative considered by the 
Department, the Department would set the AEWR using the OES average 
hourly wage for the SOC and State. When OES State data is not 
available, the Department would set the AEWR at the OES national 
average hourly wage for the SOC under this alternative. The Department 
again used the same method to calculate the total impact of the 
proposed regulatory alternative. The

[[Page 36243]]

Department estimated average annual undiscounted transfers of $106.20 
million. The total transfer over the 10-year period was estimated at 
$1.06 billion undiscounted, or $895.61 million and $725.98 million at 
discount rates of 3 and 7 percent, respectively. The annualized 
transfer over the 10-year period was $104.99 million and $127.51 
million at discount rates of 3 and 7 percent, respectively.
    Exhibit 6 summarizes the estimated transfer payments associated 
with the three considered revised wage structrues over the 10-year 
analysis period. The Department prefers the proposed methodology, under 
which the Department would establish the AEWR at the annual average 
hourly gross wage for the State or region and SOC from the FLS where 
the FLS produces such a wage, to the two regulatory alternatives for 
the reasons discussed more fully in the preamble. Among those reasons, 
the Department prefers the proposal to the first regulatory alternative 
because the proposal provides data that is more specific to the 
agricultural occupation and does not combine workers performing 
dissimilar duties, as might be the case if the Department used the more 
general categories of field and livestock workers from the FLS to 
establish the AEWR. The Department prefers the proposal to the second 
regulatory alternative because the Department generally finds the FLS 
to be a superior wage source to the OES for establishing the AEWR where 
both surveys produce an occupation-specific wage because only the FLS 
directly surveys farmers and ranchers and the FLS is recognized by the 
BLS as the authoritative source for data on agricultural wages.

  Exhibit 6--Estimated Monetized Wage Structure Transfer Payments and Costs of the Proposed Rule, Undiscounted
                                                [2017 $millions]
----------------------------------------------------------------------------------------------------------------
                                                                                    Regulatory      Regulatory
                                                                  Proposed  rule   alternative 1   alternative 2
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer..........................................         $163.22         $238,76       $1,061.96
Total with 3% Discount..........................................          137.65          201.36          895.61
Total with 7% Discount..........................................          111.58          163.23          725.98
Annualized Undiscounted Transfer................................           16.32           23.88          106.20
Annualized Transfer with 3% Discount............................           16.14           26.61          105.00
Annualized Transfer with 7% Discount............................           19.60           28.67          127.51
----------------------------------------------------------------------------------------------------------------
                                       Costs for Regulatory Alternative 3
----------------------------------------------------------------------------------------------------------------
Total 10-Year Cost..............................................                      $587.72
Total with 3% Discount..........................................                       498.51
Total with 7% Discount..........................................                       407.22
Annualized Undiscounted Cost....................................                       58.77
Annualized Cost with 3% Discount................................                       58.44
Annualized Cost with 7% Discount................................                       57.98
----------------------------------------------------------------------------------------------------------------

    The Department also considered a third regulatory alternative 
regarding required surety bond amounts that relied on the proposed 
revisions to the wage structure. Under this regulatory alternative, the 
revisions to the wage structure would be the same as the proposed rule 
and would be used in the formula to calculate bond amounts. This 
formula is the most specific to factors that affect the likely amount 
of back wages owed, including crew size and duration of certification 
and therefore produces the most variability in bond amounts. It was 
calculated based on information already required on the job offer: The 
number of H-2A workers (``Workers''), the applicable AEWR from the 
proposed wage structure, the number of hours to be worked per week 
(``Hours''), and the duration of the certification (``Weeks''). Each of 
these variables were multiplied to get the bond amount required for 
certification. The total cost to the employer was calculated by 
multiplying the required bond amount by the assumed bond premium 
(0.04). This formula is the simplest for the employer because the 
values are readily accessible. Because the current bond amounts 
increase based on crew size in a non-linear fashion, switching to this 
formula will mean the certifications for certain crew sizes will be 
affected differently, with certifications for 25 to 74 workers having 
the biggest increases.
    The Department used the OFLC certification data to calculate 
required bond amounts under this alternative for all certified H-2A 
employers for FYs 2016 and 2017. These amounts were then multiplied by 
the assumed bond premium (0.04) and the growth rate of H-2A certified 
labor contractors (16 percent), summed by year, and averaged to 
generate an estimated undiscounted annual cost due to bond amount 
increases of $58.77 million. The total cost from the alternative 
required bond amounts over the 10-year period is estimated at $587.72 
million undiscounted, or $498.51 million and $407.22 million at 
discount rates of 3 and 7 percent, respectively. The annualized cost of 
the 10-year period is $58.44 million and $57.98 million at discount 
rates of 3 and 7 percent, respectively.
    The Department prefers the proposed methodology for surety bonds 
because the proposal is easier to understand and administer and is 
likely to result in less variability in the bond amounts than the 
regulatory alternatives.

A. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small

[[Page 36244]]

governmental jurisdictions. Agencies must perform a review to determine 
whether a proposed or final rule would have a significant economic 
impact on a substantial number of small entities. 5 U.S.C. 603, 604. If 
the determination is that it would, the agency must prepare a 
regulatory flexibility analysis as described in the RFA. Id.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, the RFA provides that the head of the agency 
may so certify and a regulatory flexibility analysis is not required. 
See 5 U.S.C. 605. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    The Department believes that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Despite this, it is the Department's view that due to stakeholder 
interest in this proposed rule an initial regulatory flexibility 
analysis should be published to aid stakeholders in understanding the 
small entity impacts of the proposed rule and to obtain additional 
information on the small entity impacts. The Department invites 
interested persons to submit comments on the following estimates, 
including the number of small entities affected by the proposed rule, 
the compliance cost estimates, and whether alternatives exist that will 
reduce the burden on small entities while still remaining consistent 
with the objectives of the proposed rule.
1. Why the Department Is Considering Action
    The Department has concluded that efforts to protect workers and 
enforce laws governing the administration of nonimmigrant visa programs 
requires additional notice and comment rulemaking regarding the 
certification of temporary employment of nonimmigrant workers through 
the H-2A program, and the enforcement of the contractual obligations 
applicable to employers of such nonimmigrant workers. The Department 
also seeks to further the goals of E.O. 13788, Buy American and Hire 
American, by rigorously enforcing applicable laws in order to create 
higher wages and employment rates for workers in the U.S. and protect 
their economic interests. As a result, the Department publishes this 
NPRM developing standards related to mandatory electronic filing and 
electronic signatures, revising the adverse effect wage rate and 
prevailing wage methodologies, incorporating certain training and 
employment guidance letters into the H-2A regulatory structure, and 
expanding the definition of agriculture under the H-2A program, and 
seeks public input on all aspects of the proposals presented here.
2. Objectives of and Legal Basis for the Proposed Rule
    The Department is proposing to amend current regulations related to 
the H-2A program in a manner that modernizes and eliminates 
inefficiencies in the process by which employers obtain a temporary 
agricultural labor certification for use in petitioning DHS to employ a 
nonimmigrant worker in H-2A status. Sections 101(a)(15)(H)(ii)(a) and 
218(a)(1) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188(a)(1), 
establish the H-2A nonimmigrant worker visa program which enables U.S. 
agricultural employers to employ foreign workers to perform temporary 
or seasonal agricultural labor or services where the Secretary of DOL 
certifies (1) 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 
(2) the employment of the aliens in such labor or services will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed. The standard and procedures for the 
certification and employment of workers under the H-2A program are 
found in 20 CFR part 655 and 29 CFR part 501.
    The Secretary has delegated his authority to issue temporary 
agricultural labor certifications to the Assistant Secretary, ETA, who 
in turn has delegated that authority to ETA's OFLC. Secretary's Order 
06-2010 (Oct. 20, 2010). In addition, the Secretary has delegated to 
WHD the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 
1188(g)(2), to assure employer compliance with the terms and conditions 
of employment under the H-2A program. Secretary's Order 01-2014 (Dec. 
19, 2014).
3. Estimating the Number of Small Businesses Affected by the Rulemaking
    The Department collected employment and annual revenue data from 
the business information provider InfoUSA and merged those data into 
the H-2A disclosure data for FYs 2015, 2016, and 2017. Disclosure data 
for 2015 was included for cases that have certified workers in both 
2015 and 2016. This process allowed the Department to identify the 
number and type of small entities in the H-2A disclosure data as well 
as their annual revenues. The Department was able to obtain data 
matches for 5,329 H-2A cases with work in 2016 and 2017, including 
employers of reforestation workers that would be classified as H-2A 
employers under the proposed rule.\158\ Next, the Department used the 
SBA size standards to classify 4,320 of these employers (or 81.1 
percent) as small.\159\ Labor contractors determined to be small 
entities were removed from the RFA analysis because their revenue is 
not related to the number of temporary H-2A workers certified. This 
resulted in 3,600 small, certified cases. Because a single employer can 
apply for temporary H-2A workers multiple times, unique employers had 
to be identified. Additionally, duplicate cases that appeared multiple 
times within the dataset were removed (i.e., the same employer applying 
for the same number of workers in the same occupation, in the same 
state, during the same work period). Based on employer name, city, and 
state, the Department determined that there were 2,514 unique employers 
with work in 2016 and 2017. These unique small employers had an average 
of 12 employees and average annual revenue of approximately $3.54 
million. Of these unique employers, 2,465 of them had revenue data 
available from InfoUSA. The Department's analysis of the impact of this 
proposed rule on small businesses is based on the number of small 
unique employers (2,465 with revenue data).
---------------------------------------------------------------------------

    \158\ Of the 2,514 small H-2A unique employers in 2016 and 2017, 
20 entities are employers of reforestation and pinestraw workers 
that are currently under the H-2B program and would be reclassified 
under the H-2A program in this proposal.
    \159\ Small Business Administration, Table of Small Business 
Size Standards Matched to North American Industry Classification 
System Codes. (Oct. 2017), https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
---------------------------------------------------------------------------

    To provide clarity on the agricultural industries impacted by this 
regulation, exhibit 7 shows the number of unique H-2A small entity 
employers \160\ with certifications in 2016 and 2017 within each NAICS 
code at the 6-digit and 4-digit level.
---------------------------------------------------------------------------

    \160\ This table is not inclusive of H-2B employers 
reclassificed as H-2A employers. There are 18 unique small entity H-
2B employers in 2017.

[[Page 36245]]



                             Exhibit 7--Number of H-2A Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
                          2016                                                     2017
----------------------------------------------------------------------------------------------------------------
                                  Number of                                                Number of
6-Digit NAICS     Description     employers    Percent    6-Digit NAICS    Description     employers    Percent
----------------------------------------------------------------------------------------------------------------
111421.......  Nursery and Tree         134          12   111421.......  Nursery and             136          11
                Production.                                               Tree
                                                                          Production.
111998.......  All Other                103           9   111998.......  All Other               102           8
                Miscellaneous                                             Miscellaneous
                Crop Farming.                                             Crop Farming.
111219.......  Other Vegetable           68           6   115113.......  Crop                     72           6
                (except Potato)                                           Harvesting,
                and Melon                                                 Primarily by
                Farming.                                                  Machine.
111331.......  Crop Harvesting,          59           5   111331.......  Apple Orchards.          65           5
                Primarily by
                Machine.
115113.......  Apple Orchards..          58           5   111219.......  Other Vegetable          65           5
                                                                          (except
                                                                          Potato) and
                                                                          Melon Farming.
112111.......  Beef Cattle               42           4   112111.......  Beef Cattle              41           3
                Ranching and                                              Ranching and
                Farming.                                                  Farming.
111191.......  Oilseed and               27           2   111191.......  Oilseed and              32           3
                Grain                                                     Grain
                Combination                                               Combination
                Farming.                                                  Farming.
813910.......  Business                  25           2   111339.......  Other Noncitrus          26           2
                Associations.                                             Fruit Farming.
111339.......  Other Noncitrus           23           2   115112.......  Soil                     23           2
                Fruit Farming.                                            Preparation,
                                                                          Planting, and
                                                                          Cultivating.
115112.......  Soil                      18           2   111211.......  Potato Farming.          19           2
                Preparation,
                Planting, and
                Cultivating.
----------------------------------------------------------------------------------------------------------------
       Other NAICS codes                573          51          Other NAICS codes               603          49
    No NAICS code available               4         0.4       No NAICS code available             51           4


----------------------------------------------------------------------------------------------------------------
                                  Number of                                                Number of
4-Digit NAICS     Description     employers    Percent    4-Digit NAICS    Description     employers    Percent
----------------------------------------------------------------------------------------------------------------
1119.........  Other Crop               385          34   1119.........  Other Crop              408          33
                Farming.                                                  Farming.
1114.........  Greenhouse,              152          13   1114.........  Greenhouse,             156          13
                Nursery, and                                              Nursery, and
                Floriculture                                              Floriculture
                Production.                                               Production.
1113.........  Vegetable and            121          11   1113.........  Fruit and Tree          149          12
                Melon Farming.                                            Nut Farming.
1112.........  Fruit and Tree           121          11   1112.........  Vegetable and           127          10
                Nut Farming.                                              Melon Farming.
1151.........  Support                   99           9   1151.........  Support                 110           9
                Activities for                                            Activities for
                Crop Production.                                          Crop
                                                                          Production.
1111.........  Oilseed and               68           6   1111.........  Oilseed and              67           5
                Grain Farming.                                            Grain Farming.
1121.........  Cattle Ranching           61           5   1121.........  Cattle Ranching          55           4
                and Farming.                                              and Farming.
1129.........  Other Animal              33           3   1129.........  Other Animal             34           3
                Production.                                               Production.
1125.........  Aquaculture.....          29           3   1125.........  Aquaculture....          24           2
8139.........  Business,                 25           2   3331.........  Agriculture,             14           1
                Professional,                                             Construction,
                Labor,                                                    and Mining
                Political, and                                            Machinery
                Similar                                                   Manufacturing.
                Organizations.
----------------------------------------------------------------------------------------------------------------
       Other NAICS codes                 36           3          Other NAICS codes                40           3
    No NAICS code available               4           0       No NAICS code available             51           4
----------------------------------------------------------------------------------------------------------------

    Exhibit 8 shows the number of H-2B small entity employers that 
would be classified as H-2A employers under the proposed rule. These 
employers are classified as support activities for forestry under the 
4-digit NAICS code 1153.

                             Exhibit 8--Number of H-2B Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
                                                                   2016  number    2017  number
            NAICS code                   NAICS description         of  employers   of  employers      Percent
----------------------------------------------------------------------------------------------------------------
115310...........................  Support Activities for                      2              18             100
                                    Forestry.
1153.............................  Support Activities for                      2              18             100
                                    Forestry.
----------------------------------------------------------------------------------------------------------------

4. Compliance Requirements of the Proposed Rule, Including Reporting 
and Recordkeeping
    The Department has estimated the incremental costs for small 
businesses from the baseline (i.e., the 2010 Final Rule: Temporary 
Agricultural Employment of H-2A Aliens in the United States; TEGL 17-
06, Change 1; TEGL 33-10, and TEGL 16-06, Change 1) to this proposed 
rule. We estimated the costs of (a) new surety bond amounts required 
for H-2A labor contractors based on the number of H-2A employees as 
well as the proportional adjustment of surety bond rates on an annual 
basis; (b) recordkeeping costs associated with maintaining records of 
employee's home address in their respective home countries; (c) 
recordkeeping costs incurred by the abandonment or dismissal with cause 
of employees; (d) time to read and review the proposed rule; (e) 
reforestation applications; and (f) wage costs (or cost-savings). The 
cost estimates included in this analysis for the provisions of the 
proposed rule are consistent with those presented in the E.O. 12866 
section.
    The Department identified the following provisions of the proposed 
rule to have an impact on industry but was not able to quantify the 
impacts due to data limitations: An expansion of the regulatory 
definition of agriculture as to include reforestation and pine straw 
workers; and housing requirements (securing rentals or public 
accommodations for H-2A employees).
5. Calculating the Impact of the Proposed Rule on Small Business Firms
    The Department estimates that small businesses not classified as H-
2ALCs, 2,514 unique employers,\161\ would incur a one-time cost of 
$127.36 to familiarize themselves with the rule and an annual cost of 
$5.67 associated with

[[Page 36246]]

recordkeeping requirements.\162\ While the Department estimates that 
small businesses would also incur annual cost savings associated with 
the electronic processing of applications, the Department ignores those 
cost savings for purposes of the RFA analysis. In total, the Department 
estimates that small businesses not classified as labor contractors 
will incur a total first-year cost of $133.03 (= $127.36 + $5.67). The 
Department uses the first-year cost estimate because it is the highest 
cost incurred by businesses over the analysis timeframe. Additionally, 
employers of reforestation and pine straw workers (currently under the 
H-2B program) that would be classified as H-2A employers under the 
proposed rule will incur H-2A labor certification filing fee costs, not 
applicable under the H-2B program. The Department estimates this cost 
to be $551.70 per employer, and is incurred annually. Therefore, for 
reforestation and pine straw employers, the total first-year cost is 
$684.73, and total second-year cost is $551.70.
---------------------------------------------------------------------------

    \161\ The 2,514 unique small employers includes employers of 
reforestation and pine straw workers that would be classified as H-
2A employers under the proposed rule, and excludes all labor 
contractors.
    \162\ $127.36 = 2 hrs x $63.68, where $63.68 = $31.84 + ($31.84 
x 44%) + ($31.84 x 56%). These recordkeeping requirements include 
the following: $2.12 to collect and maintain records of workers' 
email address and phone number(s) home, $2.12 to maintain records 
for the self-certification of housing, and $2.12 to maintain records 
of notification to the NPC (and DHS) of employment abandonment or 
termination for cause.
---------------------------------------------------------------------------

    The proposed rule includes the provision pertaining to surety bonds 
that applies to only H-2ALCs, so the Department estimates the impact on 
those entities separately. See 20 CFR 655.132(c). To estimate the 
impact of the proposed rule on these entities, the Department used the 
SBA size standards to classify an average of 81 H-2ALCs as small 
employers. These small entities had an average of 54 employees and 
average annual revenues of approximately $12.09 million in FYs 2016 and 
2017.
    The Department estimates that the average small H-2A labor 
contractor would incur a one-time cost of $127.36 to familiarize 
themselves with the rule, annual costs of $5.67 associated with 
recordkeeping requirements, and $255.14 associated with an increase in 
the required surety bond amounts.\163\ While the Department estimates 
that small businesses would also incur annual cost savings associated 
with the electronic processing of applications, the Department ignores 
those cost savings for purposes of the RFA analysis. In total, the 
Department estimates that small businesses classified as H-2ALCs will 
incur a total first-year cost of $388.17 (= $127.36 + $5.67 + $255.14).
---------------------------------------------------------------------------

    \163\ $255.14 is the annual incremental cost per H-2ALC with 
additional 50 to 75 workers.
---------------------------------------------------------------------------

    In addition to the total first- and second-year costs above, each 
small entity will have an increase (or decrease) in the wage costs (or 
cost-savings) due to the revisions to the wage structure. For each 
small business, the estimated wage cost (or cost-savings) was 
calculated as the sum of the proposed total wage minus the total 
baseline wage for each small business identified from the H-2A 
disclosure data in FYs 2016 and 2017. This change in the wage costs was 
added to the total first-year costs to measure the total impact of the 
proposed rule on the small business.
    The Department determined the proportion of each small entities' 
total revenue that would be impacted by the costs of the proposed rule 
to determine if the proposed rule would have a significant and 
substantial impact on small business. The cost impacts included 
estimated first year costs and the wage burden cost introduced by the 
proposed rule. The Department used a total cost estimate of 3 percent 
of revenue as the threshold for a significant individual impact and set 
a total of 15 percent of small businesses incurring a significant 
impact as the threshold for a substantial impact on small business.
    A threshold of 3 percent of revenues has been used in prior 
rulemakings for the definition of significant economic impact. See, 
e.g., 79 FR 60634 (October 7, 2014, Establishing a Minimum Wage for 
Contractors) and 81 FR 39108 (June 15, 2016, Discrimination on the 
Basis of Sex). This threshold is also consistent with that sometimes 
used by other agencies. See, e.g., 79 FR 27106 (May 12, 2014, 
Department of Health and Human Services rule stating that under its 
agency guidelines for conducting regulatory flexibility analyses, 
actions that do not negatively affect costs or revenues by more than 
three percent annually are not economically significant). The 
Department also believes that its use of a 20 percent of affected small 
business entities substantiality criterion is appropriate. The 
Department has used a threshold of 15 percent of small entities in 
prior rulemakings for the definition of substantial number of small 
entities. See, e.g., 79 FR 60633 (October 7, 2014, Establishing a 
Minimum Wage for Contractors).
    Of the 2,514 unique small employers with work occurring in 2016 and 
2017 and revenue data,\164\ 94.4 percent of employers had less than 3 
percent of their total revenue impacted. Exhibit 9 provides a breakdown 
of small employers by the proportion of revenue affected by the costs 
of the proposed rule.
---------------------------------------------------------------------------

    \164\ The 2,514 unique small employers includes employers of 
reforestation workers that would be classified as H-2A employers 
under the proposed rule, and excludes all labor contractors.

                   Exhibit 9--Cost Impacts as a Proportion of Total Revenue for Small Entities
----------------------------------------------------------------------------------------------------------------
                                                       2016            2016            2017            2017
         Proportion of revenue impacted              Employers      Percentage       Employers      Percentage
----------------------------------------------------------------------------------------------------------------
<1%.............................................           2,182              89           2,182              89
1%-2%...........................................             101               4             101               4
2%-3%...........................................              43               2              42               2
3%-4%...........................................              27               1              31               1
4%-5%...........................................              14               1              27               1
>5%.............................................              98               4              82               3
----------------------------------------------------------------------------------------------------------------


[[Page 36247]]

6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With 
the Proposed Rule
    The Department is not aware of any relevant Federal rules that 
conflict with this NPRM.
7. Alternative to the Proposed Rule
    The RFA directs agencies to assess the impacts that various 
regulatory alternatives would have on small entities and to consider 
ways to minimize those impacts. Accordingly, the Department considered 
two regulatory alternatives related to the third cost component: 
Employers' recordkeeping for abandonment of employment or termination 
for cause. See proposed 20 CFR 655.122(n) and 655.167(c)(7). Under the 
first alternative, small businesses would not need to provide notice to 
the NPC within two working days of each occurrence of abandonment of 
employment or termination for cause during the certification period in 
order to be relieved of certain H-2A obligations (i.e., return 
transportation and subsistence costs for the worker; three-fourths 
guarantee to the worker; and, for U.S. workers, contact in subsequent 
seasons to solicit the worker's return to the job). Rather, these small 
businesses could wait until the end of the certification period to 
provide this notice; the employer could amass all such notifications 
into one package to submit to the NPC at the end of the certification 
period. This alternative differs from the Department's proposal related 
to Sec.  655.122(n) by providing flexibility in the timing of the 
notice to the NPC. This first alternative would slightly decrease the 
burden of small businesses having to potentially prepare and submit 
multiple notifications to NPC throughout the certification period.
    The Department decided not to pursue this alternative for two 
reasons. First, DHS regulations require employers to notify DHS within 
two work days if an H-2A worker: Fails to report to work within 5 
workdays of the employment start date; absconds from the worksite 
(i.e., fails to report for work for a period of 5 consecutive workdays 
without the consent of the employer; \165\) or is terminated prior to 
the completion of agricultural labor or services for which he or she 
was hired. Under this first regulatory alternative, small businesses 
would need to submit the same notification to two different agencies at 
two different reporting cycles, rather than on the same reporting 
cycle. The employer would have to submit potentially multiple 
notifications to DHS regarding H-2A workers, each within two work days 
of a triggering event, while separately amassing all notifications 
regarding both H-2A workers and U.S. workers in corresponding 
employment for a single submission to ETA's NPC at a later date.
---------------------------------------------------------------------------

    \165\ 8 CFR 214.2(h)(5)(vi)(E).
---------------------------------------------------------------------------

    This bifurcation of the reporting cycle would not relieve employers 
of a contemporaneous notification requirement for H-2A workers to one 
agency (i.e., DHS) and could create confusion, which could negatively 
impact employers' compliance with DHS notification requirements, 
thereby undermining DHS' ability to identify of H-2A workers who had 
been, but may no longer be in the United States legally, as discussed 
above in the section-by-section analysis of this notification 
requirement. Second, in its experience of administering and enforcing 
the H-2A program, the Department has found that employers are better 
able to prepare such notification contemporaneous to the triggering 
event. Notification that does not occur contemporaneously is more 
likely to be less detailed, possibly inaccurate and incomplete, as 
employers' recollections and memories of specific circumstances for 
abandonment of employment or termination for cause may diminish over a 
period of time, even as short as a few weeks or months. The quality of 
such notifications is important to the employer, not only the 
Department. The notifications both support program integrity and serve 
to relieve the employer of financial burdens, if they provide adequate 
information. While potentially reducing burden for compliance with DOL 
regulations, this first regulatory alternative would not be less 
burdensome for small businesses because they still have to meet DHS 
requirements for timely notification regarding abandonment of 
employment or termination for cause for H-2A workers and could increase 
confusion and overall burden by imposing disparate reporting cycles.
    Under the second regulatory alternative related to the third cost 
component, employers' recordkeeping for abandonment of employment or 
termination for cause, the Department would not require employers to 
submit to the NPC the notice described in Sec.  655.122(n) with regard 
to U.S. workers who abandoned employment or were terminated for cause 
within two working days of the triggering event. Rather, the employers 
would only need to prepare and maintain records of these notices for 
not less than 3 years from the date of the certification, as proposed 
in Sec.  655.167(c)(7).
    This alternative would reduce small businesses' cost and burden of 
preparing and submitting this documentation to the NPC. The Department 
decided not to pursue this alternative because the reduction of cost 
and burden to small businesses is negligible, as it would not affect 
such notifications for H-2A workers and would relieve the employer only 
of notice submission to the Department, not preparation, for U.S. 
workers in corresponding employment. As with the alternative discussed 
above, bifurcating notice requirements into separate categories (i.e., 
notification prepared and submitted within two working days for H-2A 
workers, but prepared and retained for U.S. workers in corresponding 
employment) is ripe for confusion and allowing delayed notification 
preparation may result in less detailed, accurate, and complete 
notification documentation, to the employer's detriment. Further, the 
negligible reduction of cost and burden is outweighed by the value of 
affirmative, contemporaneous notification to maintaining program 
integrity. Absent timely notification, the Department would only be 
made aware of U.S. worker abandonment under limited circumstances 
(e.g., an audit), not in all cases. This would limit the Department's 
ability to identify patterns of U.S. worker abandonment, which could 
suggest involuntary abandonment, as discussed in the section-by-section 
analysis of proposed changes. The Department's ability to assure 
program integrity would be greatly diminished in exchange for a 
relatively minor reduction reporting requirements.
    The Department invites public comment on these alternatives and 
whether other alternatives exist that would reduce the burden on small 
entities while still remaining consistent with the objectives of the 
proposed rule.

B. Paperwork Reduction Act

    In order to meet its statutory responsibilities under the INA, the 
Department collects information necessary to render determinations on 
requests for temporary agricultural labor certification, which allow 
employers to bring foreign labor to the United States on a seasonal or 
other temporary basis under the H-2A program. The Department uses the 
collected information to determine if employers are meeting their 
statutory and regulatory obligations. This information collection is 
subject to the PRA, 44 U.S.C. 3501 et seq. A Federal agency

[[Page 36248]]

generally cannot conduct or sponsor a collection of information, and 
the public is generally not required to respond to an information 
collection, unless it is approved by OMB under the PRA and displays a 
currently valid OMB Control Number. In addition, notwithstanding any 
other provisions of law, no person shall generally be subject to 
penalty for failing to comply with a collection of information that 
does not display a valid Control Number. See 5 CFR 1320.5(a), 1320.6. 
The Department obtained OMB approval for this information collection 
under Control Number 1205-0466.
    This information collection request (ICR), concerning OMB Control 
No. 1205-0466, includes the collection of information related to the 
Department's temporary agricultural labor certification determination 
process in the H-2A program. The PRA helps ensure that requested data 
is provided in the desired format, reporting burden (time and financial 
resources) is minimized, collection instruments are clearly understood, 
and the impact of collection requirements on respondents can be 
properly assessed.
    On October 25, 2018, the Department published a 60-day notice 
announcing its proposed revisions to the collection of information 
under OMB Control Number 1205-0466 in the Federal Register as part of 
its ongoing effort to streamline information collection, clarify 
statutory and regulatory requirements, and provide greater oversight in 
the H-2A program. See 83 FR 53911. In accordance with the PRA, the 
Department provided the public with a notice and the opportunity to 
comment on proposed revisions to the application (Form ETA-9142A, H-2A 
Application for Temporary Employment Certification; Form ETA-9142A, 
Appendix A; and the general instructions to those forms); to the method 
of issuing temporary agricultural labor certifications, from paper-
based issuance to a new one-page electronically-issued Form ETA-9142A, 
H-2A Approval Final Determination: Temporary Labor Certification 
Approval; and to the agricultural clearance order.\166\ The Department 
instructed the public to submit written comments on those proposed 
revisions following the instructions provided in that Federal Register 
notice on or before December 24, 2018.
---------------------------------------------------------------------------

    \166\ The proposed Form ETA-790/790A, H-2A Agricultural 
Clearance Order, and addenda, provide language to employers to 
disclose necessary information regarding the material terms and 
conditions of the job opportunity. A copy of Form ETA-790/790A will 
be integrated with the Form ETA-9142A for purposes of the 
Department's temporary agricultural labor certification 
determination; the CO will review the Form ETA-790/790A in 
combination with Form ETA-9142A, when the employer submits Form ETA-
9142A to the NPC. This proposal will consolidate information 
collected through the agricultural clearance order Form ETA-790, 
which is currently authorized under OMB Control Number 1205-0134, 
into the agency's primary H-2A information collection requirements 
under OMB Control Number 1205-0466. This consolidation and revision 
will align all data collection for the H-2A program under a single 
OMB-approved ICR.
---------------------------------------------------------------------------

    The Department now proposes additional revisions to this 
information collection, covered under OMB Control No. 1205-0466, to 
further revise the information collection tools, based on regulatory 
changes proposed in this NPRM. The additional proposed revisions to 
Forms ETA-9142A and appendices and Form ETA-790/790A and addenda will 
align information collection requirements with the Department's 
proposed regulatory framework and continue the ongoing efforts to 
provide greater clarity to employers on regulatory requirements, 
standardize and streamline information collection to reduce employer 
time and burden preparing applications, and promote greater efficiency 
and transparency in the review and issuance of labor certification 
decisions under the H-2A visa program. For example, the Department 
proposes a new Form ETA-9142A, Appendix B, H-2A Labor Contractor Surety 
Bond, to facilitate satisfaction of this filing requirement for H-2A 
Labor Contractor employers and a field for an employer to indicate it 
conducted pre-filing recruitment under proposed Sec.  655.123. The 
Department also proposes to implement a revised ETA-232, Domestic 
Agricultural In-Season Wage Report, and eliminate the current ETA-232A, 
Wage Survey Interview Record, for SWA use to modernize the survey 
process and to reflect the prevailing wage survey methodology proposed 
in this proposed rule at Sec.  655.120(c).\167\
---------------------------------------------------------------------------

    \167\ This is a collection of information from SWAs, not 
employers, that is separately authorized under OMB Control Number 
1205-0017. The Department proposes to revise and consolidate the 
collection under OMB Control Number 1205-0466. The SWAs will use the 
new Form ETA-232, Domestic Agricultural In-Season Wage Report, to 
report to OFLC the results of wage surveys in compliance with the 
revised prevailing wage determination methodology in the proposed 
rule, which OFLC will use to establish prevailing wage rates for the 
H-2A program.
---------------------------------------------------------------------------

Overview of Information Collection Proposed by This NPRM
    Title: H-2A Temporary Agricultural Employment Certification 
Program.
    Type of Review: Revision of a Currently Approved Information 
Collection.
    OMB Number: 1205-0466.
    Affected Public: Individuals or Households, Private Sector--
businesses or other for-profits, Government, State, Local and Tribal 
Governments.
    Form(s): ETA-9142A, H-2A Application for Temporary Employment 
Certification; ETA-9142A--Appendix A; ETA-9142A--Appendix B, H-2A Labor 
Contractor Surety Bond; ETA-9142A--H-2A Approval Final Determination: 
Temporary Agricultural Labor Certification; ETA-790/790A, H-2A 
Agricultural Clearance Order; ETA-790/790A--Addendum A; ETA-790/790A--
Addendum B; ETA-790/790A--Addendum C; ETA-232, Domestic Agricultural 
In-Season Wage Report.
    Total Annual Respondents: 8,982.
    Annual Frequency: On Occasion.
    Total Annual Responses: 290,824.45.
    Estimated Time per Response (averages):

--Forms ETA 9142A, Appendix A, Appendix B--3.68 hours per response.
--Forms ETA 790/790A/790B--.75 hours per response.
--Form ETA-232--3.30 hours per response.
--Administrative Appeals--18.48 hours per response.

    Estimated Total Annual Burden Hours: 56,862.86.
    Total Annual Burden Cost for Respondents: $0.
    The Department invites comments on all aspects of the PRA analysis. 
Comments that are related to a specific form or a specific form's 
instructions should identify the form or form's instructions using the 
form number, e.g., ETA-9142A or Form ETA-790/790A, and should identify 
the particular area of the form for comment. A copy of the proposed 
revised information collection tools can be obtained by contacting the 
office listed below in the addresses section of this notice. Written 
comments must be submitted on or before September 24, 2019.
    The Department is particularly interested in comments that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used, and the agency's 
estimates associated with the annual burden cost incurred by 
respondents and the government cost associated with this collection of 
information;

[[Page 36249]]

     enhance the quality, utility, and clarity of the 
information to be collected; and
     minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.
    Comments submitted in response to this notice will be considered, 
summarized and/or included in the ICR the Department will submit to OMB 
for approval; they will also become a matter of public record. 
Commenters are encouraged not to submit sensitive information (e.g., 
confidential business information or personally identifiable 
information such as a social security number).

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in $100 million or more expenditure (adjusted annually 
for inflation) in any 1 year by State, local, and tribal governments, 
in the aggregate, or by the private sector. The value equivalent of 
$100 million in 1995 adjusted for inflation to 2017 levels by the 
Consumer Price Index for All Urban Consumer (CPI-U) is $161 million.
    This NPRM, if finalized as proposed, does not exceed the $100 
million expenditure in any 1 year when adjusted for inflation ($161 
million in 2017 dollars), and this rulemaking does not contain such a 
mandate. The requirements of Title II of the UMRA, therefore, do not 
apply, and the Department has not prepared a statement under the UMRA.

D. Executive Order 13132: Federalism

    This NPRM, if finalized as proposed, does not have federalism 
implications because it does not have substantial direct effects on the 
states, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Accordingly, E.O. 13132 requires no 
further agency action or analysis.

E. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    This NPRM, if finalized as proposed, does not have ``tribal 
implications'' because it 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. 
Accordingly, E.O. 13175 requires no further agency action or analysis.

Appendix A

    Table 1--Hourly AEWRs by Region or State Under Current Regulation
------------------------------------------------------------------------
               Region or state                   2016     2017     2018
------------------------------------------------------------------------
Appalachian I................................   $10.72   $11.27   $11.46
Appalachian II...............................    10.85    10.92    11.19
California...................................    11.89    12.57    13.18
Cornbelt I...................................    12.07    13.01    12.93
Cornbelt II..................................    12.17    13.12    13.42
Delta........................................    10.69    10.38    10.73
Florida......................................    10.70    11.12    11.29
Hawaii.......................................    12.64    13.14    14.37
Lake.........................................    12.02    12.75    13.06
Mountain I...................................    11.75    11.66    11.63
Mountain II..................................    11.27    11.00    10.69
Mountain III.................................    11.20    10.95    10.46
Northeast I..................................    11.74    12.38    12.83
Northeast II.................................    11.66    12.19    12.05
Northern Plains..............................    13.80    13.79    13.64
Pacific......................................    12.69    13.38    14.12
Southeast....................................    10.59    10.62    10.95
Southern Plains..............................    11.15    11.59    11.87
------------------------------------------------------------------------


                                    Table 2--Average Hourly Statewide Wages and Their Sources Under the Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          2016                           2017                           2018
       Region           State      SOC          Title       --------------------------------------------------------------------------------------------
                                                               Wage           Source          Wage           Source          Wage          Source .
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appalachian I.......  NC         11-9013  Farmers,             $27.93  OES State..........    $31.43  OES State..........    $45.08  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Appalachian I.......  NC         45-1011  First-Line            25.73  OES State..........     28.10  OES State..........     30.90  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Appalachian I.......  NC         45-2041  Graders and           10.55  FLS Regional.......     13.29  FLS Regional.......     11.07  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Appalachian I.......  NC         45-2091  Agricultural          11.30  OES State..........     12.42  OES State..........     12.34  FLS Regional.
                                           Equipment
                                           Operators.
Appalachian I.......  NC         45-2092  Farmworkers and       10.46  FLS Regional.......     10.96  FLS Regional.......     11.48  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Appalachian I.......  NC         45-2093  Farmworkers,          12.46  OES State..........     12.94  OES State..........     13.22  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Appalachian I.......  NC         45-2099  Agricultural          13.13  OES State..........     12.42  OES State..........     12.53  OES State.
                                           Workers, All
                                           Other.
Appalachian I.......  NC         53-7064  Packers and            9.67  FLS Regional.......     11.00  FLS Regional.......     10.29  FLS Regional.
                                           Packagers, Hand.
Appalachian I.......  VA         11-9013  Farmers,              20.96  FLS National.......     35.16  OES State..........     40.07  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Appalachian I.......  VA         35-2012  Cooks,                12.80  OES State..........     13.49  OES State..........     13.67  OES State.
                                           Institution and
                                           Cafeteria.
Appalachian I.......  VA         35-2015  Cooks, Short          10.66  OES State..........     10.88  OES State..........     10.72  OES State.
                                           Order.
Appalachian I.......  VA         45-1011  First-Line            27.13  OES State..........     26.03  OES State..........     25.93  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Appalachian I.......  VA         45-2041  Graders and           10.55  FLS Regional.......     13.29  FLS Regional.......     11.07  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Appalachian I.......  VA         45-2091  Agricultural          12.20  OES State..........     12.89  OES State..........     12.34  FLS Regional.
                                           Equipment
                                           Operators.
Appalachian I.......  VA         45-2092  Farmworkers and       10.46  FLS Regional.......     10.96  FLS Regional.......     11.48  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Appalachian I.......  VA         45-2093  Farmworkers,          12.41  OES State..........     12.25  OES State..........     12.90  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Appalachian I.......  VA         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Appalachian I.......  VA         53-7064  Packers and            9.67  FLS Regional.......     11.00  FLS Regional.......     10.29  FLS Regional.
                                           Packagers, Hand.

[[Page 36250]]

 
Appalachian II......  KY         11-9013  Farmers,              31.32  OES State..........     37.75  OES State..........     41.50  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Appalachian II......  KY         45-1011  First-Line            22.87  OES State..........     23.97  OES State..........     22.83  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Appalachian II......  KY         45-2021  Animal Breeders..     17.97  OES State..........     24.45  OES State..........     20.89  OES National.
Appalachian II......  KY         45-2041  Graders and           11.42  OES State..........     11.64  OES State..........     10.02  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Appalachian II......  KY         45-2091  Agricultural          10.78  OES State..........     10.85  OES State..........     12.10  FLS Regional.
                                           Equipment
                                           Operators.
Appalachian II......  KY         45-2092  Farmworkers and       13.43  OES State..........     10.44  FLS Regional.......     10.77  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Appalachian II......  KY         45-2093  Farmworkers,          12.03  OES State..........     12.75  OES State..........     11.10  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Appalachian II......  KY         45-2099  Agricultural          14.73  OES State..........     15.06  OES State..........     15.36  OES State.
                                           Workers, All
                                           Other.
Appalachian II......  KY         53-7064  Packers and           10.53  FLS Regional.......     10.50  FLS Regional.......     12.13  OES State.
                                           Packagers, Hand.
Appalachian II......  TN         11-9013  Farmers,              22.14  OES State..........     25.57  OES State..........     29.28  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Appalachian II......  TN         45-1011  First-Line            23.93  OES State..........     20.61  OES State..........     20.14  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Appalachian II......  TN         45-2041  Graders and           12.27  OES State..........     11.65  FLS National.......     10.02  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Appalachian II......  TN         45-2091  Agricultural          12.12  OES State..........     13.26  OES State..........     12.10  FLS Regional.
                                           Equipment
                                           Operators.
Appalachian II......  TN         45-2092  Farmworkers and       10.14  OES State..........     10.44  FLS Regional.......     10.77  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Appalachian II......  TN         45-2093  Farmworkers,          10.56  OES State..........     10.90  OES State..........     11.10  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Appalachian II......  TN         45-2099  Agricultural          15.31  OES National.......     18.57  OES State..........     14.54  OES State.
                                           Workers, All
                                           Other.
Appalachian II......  TN         53-7064  Packers and           10.53  FLS Regional.......     10.50  FLS Regional.......     11.46  OES State.
                                           Packagers, Hand.
Appalachian II......  WV         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Appalachian II......  WV         45-1011  First-Line            25.09  OES State..........     23.39  OES State..........     24.66  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Appalachian II......  WV         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     10.02  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Appalachian II......  WV         45-2091  Agricultural          12.38  FLS National.......     12.85  FLS National.......     12.10  FLS Regional.
                                           Equipment
                                           Operators.
Appalachian II......  WV         45-2092  Farmworkers and       10.10  OES State..........     10.44  FLS Regional.......     10.77  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Appalachian II......  WV         45-2093  Farmworkers,          12.06  OES State..........     14.17  OES State..........     11.10  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Appalachian II......  WV         45-2099  Agricultural          11.73  OES State..........     13.22  OES State..........     13.36  FLS National.
                                           Workers, All
                                           Other.
Appalachian II......  WV         53-7064  Packers and           10.53  FLS Regional.......     10.50  FLS Regional.......     11.51  OES State.
                                           Packagers, Hand.
California..........  CA         11-9013  Farmers,              26.01  FLS Regional.......     27.05  FLS Regional.......     30.18  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
California..........  CA         19-4011  Agricultural and      20.07  OES State..........     20.40  OES State..........     20.80  OES State.
                                           Food Science
                                           Technicians.
California..........  CA         35-2012  Cooks,                14.99  OES State..........     15.75  OES State..........     16.61  OES State.
                                           Institution and
                                           Cafeteria.
California..........  CA         35-2021  Food Preparation      11.17  OES State..........     12.19  OES State..........     12.82  OES State.
                                           Workers.
California..........  CA         45-1011  First-Line            19.48  FLS Regional.......     20.38  FLS Regional.......     22.11  FLS Regional.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
California..........  CA         45-2041  Graders and           12.34  FLS Regional.......     12.37  FLS Regional.......     13.53  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
California..........  CA         45-2091  Agricultural          12.27  FLS Regional.......     12.95  FLS Regional.......     13.53  FLS Regional.
                                           Equipment
                                           Operators.
California..........  CA         45-2092  Farmworkers and       11.49  FLS Regional.......     12.33  FLS Regional.......     12.92  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
California..........  CA         45-2093  Farmworkers,          12.74  FLS Regional.......     13.15  FLS Regional.......     13.96  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
California..........  CA         45-2099  Agricultural          12.08  FLS Regional.......     12.93  FLS Regional.......     14.40  FLS Regional.
                                           Workers, All
                                           Other.
California..........  CA         53-7064  Packers and           11.72  FLS Regional.......     11.79  FLS Regional.......     12.85  FLS Regional.
                                           Packagers, Hand.
Cornbelt I..........  IL         11-9013  Farmers,              31.92  OES State..........     33.27  OES State..........     32.66  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Cornbelt I..........  IL         45-1011  First-Line            22.01  OES State..........     20.29  OES State..........     20.45  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Cornbelt I..........  IL         45-2021  Animal Breeders..     21.47  OES National.......     20.35  OES National.......     20.89  OES National.
Cornbelt I..........  IL         45-2041  Graders and           13.08  FLS Regional.......     13.55  FLS Regional.......     10.43  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Cornbelt I..........  IL         45-2091  Agricultural          15.83  OES State..........     16.60  OES State..........     14.76  FLS Regional.
                                           Equipment
                                           Operators.
Cornbelt I..........  IL         45-2092  Farmworkers and       11.93  FLS Regional.......     12.80  FLS Regional.......     11.53  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Cornbelt I..........  IL         45-2093  Farmworkers,          11.85  OES State..........     12.27  OES State..........     13.80  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Cornbelt I..........  IL         45-2099  Agricultural          14.51  OES State..........     14.14  OES State..........     14.19  OES State.
                                           Workers, All
                                           Other.

[[Page 36251]]

 
Cornbelt I..........  IL         47-2061  Construction          25.07  OES State..........     27.01  OES State..........     27.55  OES State.
                                           Laborers.
Cornbelt I..........  IL         53-7064  Packers and           12.31  OES State..........     11.91  OES State..........     12.31  OES State.
                                           Packagers, Hand.
Cornbelt I..........  IN         11-9013  Farmers,              31.54  OES State..........     21.98  FLS National.......     30.10  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Cornbelt I..........  IN         45-1011  First-Line            20.98  OES State..........     22.70  OES State..........     22.46  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Cornbelt I..........  IN         45-2041  Graders and           13.08  FLS Regional.......     13.55  FLS Regional.......     10.43  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Cornbelt I..........  IN         45-2091  Agricultural          17.41  OES State..........     17.42  OES State..........     14.76  FLS Regional.
                                           Equipment
                                           Operators.
Cornbelt I..........  IN         45-2092  Farmworkers and       11.93  FLS Regional.......     12.80  FLS Regional.......     11.53  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Cornbelt I..........  IN         45-2093  Farmworkers,          12.90  OES State..........     12.31  OES State..........     12.29  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Cornbelt I..........  IN         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     10.12  OES State.
                                           Workers, All
                                           Other.
Cornbelt I..........  IN         53-7064  Packers and           11.36  OES State..........     11.31  OES State..........     11.96  OES State.
                                           Packagers, Hand.
Cornbelt I..........  OH         11-9013  Farmers,              32.14  OES State..........     40.03  OES State..........     39.74  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Cornbelt I..........  OH         45-1011  First-Line            25.27  OES State..........     25.33  OES State..........     23.15  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Cornbelt I..........  OH         45-2041  Graders and           13.08  FLS Regional.......     13.55  FLS Regional.......     10.43  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Cornbelt I..........  OH         45-2091  Agricultural          16.22  OES State..........     16.76  OES State..........     14.76  FLS Regional.
                                           Equipment
                                           Operators.
Cornbelt I..........  OH         45-2092  Farmworkers and       11.93  FLS Regional.......     12.80  FLS Regional.......     11.53  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Cornbelt I..........  OH         45-2093  Farmworkers,          12.84  OES State..........     13.68  OES State..........     13.92  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Cornbelt I..........  OH         45-2099  Agricultural          13.65  OES State..........     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Cornbelt I..........  OH         47-2061  Construction          18.93  OES State..........     19.20  OES State..........     20.27  OES State.
                                           Laborers.
Cornbelt I..........  OH         53-7064  Packers and           11.46  OES State..........     11.66  OES State..........     11.99  OES State.
                                           Packagers, Hand.
Cornbelt II.........  IA         11-9013  Farmers,              37.05  OES State..........     37.28  OES State..........     34.50  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Cornbelt II.........  IA         45-1011  First-Line            26.09  OES State..........     27.52  OES State..........     27.02  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Cornbelt II.........  IA         45-2021  Animal Breeders..     15.74  OES State..........     15.52  OES State..........     14.86  OES State.
Cornbelt II.........  IA         45-2041  Graders and           13.73  OES State..........     13.56  OES State..........     14.24  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Cornbelt II.........  IA         45-2091  Agricultural          17.08  OES State..........     17.07  OES State..........     16.93  OES State.
                                           Equipment
                                           Operators.
Cornbelt II.........  IA         45-2092  Farmworkers and       13.73  OES State..........     13.12  OES State..........     11.82  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Cornbelt II.........  IA         45-2093  Farmworkers,          12.55  FLS Regional.......     13.24  FLS Regional.......     13.57  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Cornbelt II.........  IA         45-2099  Agricultural          13.37  OES State..........     14.70  OES State..........     15.56  OES State.
                                           Workers, All
                                           Other.
Cornbelt II.........  IA         53-7064  Packers and           11.14  OES State..........     11.72  OES State..........     12.38  FLS Regional.
                                           Packagers, Hand.
Cornbelt II.........  MO         11-9013  Farmers,              27.68  OES State..........     30.33  OES State..........     28.72  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Cornbelt II.........  MO         45-1011  First-Line            21.63  OES State..........     22.34  OES State..........     23.37  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Cornbelt II.........  MO         45-2041  Graders and           11.25  OES State..........     12.63  OES State..........     13.35  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Cornbelt II.........  MO         45-2091  Agricultural          13.51  OES State..........     14.10  OES State..........     15.46  OES State.
                                           Equipment
                                           Operators.
Cornbelt II.........  MO         45-2092  Farmworkers and       10.59  OES State..........     11.80  OES State..........     11.82  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Cornbelt II.........  MO         45-2093  Farmworkers,          12.55  FLS Regional.......     13.24  FLS Regional.......     13.57  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Cornbelt II.........  MO         45-2099  Agricultural          13.09  OES State..........     14.64  OES State..........     14.44  OES State.
                                           Workers, All
                                           Other.
Cornbelt II.........  MO         47-2061  Construction          19.86  OES State..........     20.51  OES State..........     21.90  OES State.
                                           Laborers.
Cornbelt II.........  MO         53-7064  Packers and           11.42  OES State..........     11.36  OES State..........     12.38  FLS Regional.
                                           Packagers, Hand.
Delta...............  AR         11-9013  Farmers,              42.35  OES State..........     41.44  OES State..........     17.95  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Delta...............  AR         45-1011  First-Line            22.05  OES State..........     21.37  OES State..........     16.25  FLS Regional.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Delta...............  AR         45-2041  Graders and           10.61  FLS Regional.......      9.19  FLS Regional.......     11.57  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Delta...............  AR         45-2091  Agricultural          10.61  FLS Regional.......     10.27  FLS Regional.......     10.77  FLS Regional.
                                           Equipment
                                           Operators.
Delta...............  AR         45-2092  Farmworkers and       10.43  FLS Regional.......     10.44  FLS Regional.......     10.40  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Delta...............  AR         45-2093  Farmworkers,          10.27  FLS Regional.......     10.33  FLS Regional.......     11.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Delta...............  AR         45-2099  Agricultural          12.37  OES State..........     15.29  OES State..........     15.38  OES State.
                                           Workers, All
                                           Other.

[[Page 36252]]

 
Delta...............  AR         49-3041  Farm Equipment        16.42  OES State..........     16.33  OES State..........     17.20  OES State.
                                           Mechanics and
                                           Service
                                           Technicians.
Delta...............  AR         53-7064  Packers and           10.19  FLS Regional.......     10.21  FLS Regional.......     10.61  FLS Regional.
                                           Packagers, Hand.
Delta...............  LA         11-9013  Farmers,              30.80  OES State..........     30.70  OES State..........     17.95  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Delta...............  LA         45-1011  First-Line            26.52  OES State..........     27.24  OES State..........     16.25  FLS Regional.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Delta...............  LA         45-2041  Graders and           10.61  FLS Regional.......      9.19  FLS Regional.......     16.15  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Delta...............  LA         45-2091  Agricultural          10.61  FLS Regional.......     10.27  FLS Regional.......     10.77  FLS Regional.
                                           Equipment
                                           Operators.
Delta...............  LA         45-2092  Farmworkers and       10.43  FLS Regional.......     10.44  FLS Regional.......     10.40  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Delta...............  LA         45-2093  Farmworkers,          10.27  FLS Regional.......     10.33  FLS Regional.......     11.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Delta...............  LA         45-2099  Agricultural          20.04  OES State..........     26.79  OES State..........     24.13  OES State.
                                           Workers, All
                                           Other.
Delta...............  LA         53-7064  Packers and           10.19  FLS Regional.......     10.21  FLS Regional.......     10.61  FLS Regional.
                                           Packagers, Hand.
Delta...............  MS         11-9013  Farmers,              23.51  OES State..........     21.98  FLS National.......     17.95  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Delta...............  MS         45-1011  First-Line            22.15  OES State..........     20.71  OES State..........     16.25  FLS Regional.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Delta...............  MS         45-2041  Graders and           10.61  FLS Regional.......      9.19  FLS Regional.......     11.41  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Delta...............  MS         45-2091  Agricultural          10.61  FLS Regional.......     10.27  FLS Regional.......     10.77  FLS Regional.
                                           Equipment
                                           Operators.
Delta...............  MS         45-2092  Farmworkers and       10.43  FLS Regional.......     10.44  FLS Regional.......     10.40  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Delta...............  MS         45-2093  Farmworkers,          10.27  FLS Regional.......     10.33  FLS Regional.......     11.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Delta...............  MS         45-2099  Agricultural          11.38  OES State..........     14.54  OES State..........     13.36  FLS National.
                                           Workers, All
                                           Other.
Delta...............  MS         53-7064  Packers and           10.19  FLS Regional.......     10.21  FLS Regional.......     10.61  FLS Regional.
                                           Packagers, Hand.
Florida.............  FL         11-9013  Farmers,              46.15  OES State..........     50.97  OES State..........     41.57  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Florida.............  FL         13-1074  Farm Labor            20.26  OES State..........     22.74  OES National.......     11.51  OES State.
                                           Contractors.
Florida.............  FL         45-1011  First-Line            22.67  OES State..........     22.56  OES State..........     22.95  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Florida.............  FL         45-2041  Graders and           10.75  FLS Regional.......     10.91  FLS Regional.......      9.29  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Florida.............  FL         45-2091  Agricultural          13.09  OES State..........     14.50  OES State..........     11.75  FLS Regional.
                                           Equipment
                                           Operators.
Florida.............  FL         45-2092  Farmworkers and       10.66  FLS Regional.......     10.95  FLS Regional.......     11.21  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Florida.............  FL         45-2093  Farmworkers,          11.71  FLS Regional.......     12.80  FLS Regional.......     11.98  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Florida.............  FL         45-2099  Agricultural          15.31  OES National.......     16.48  OES State..........     10.40  FLS Regional.
                                           Workers, All
                                           Other.
Florida.............  FL         49-3041  Farm Equipment        17.42  OES State..........     18.27  OES State..........     19.28  OES State.
                                           Mechanics and
                                           Service
                                           Technicians.
Florida.............  FL         53-3032  Heavy and Tractor-    18.19  OES State..........     18.91  OES State..........     19.78  OES State.
                                           Trailer Truck
                                           Drivers.
Florida.............  FL         53-7064  Packers and            9.59  FLS Regional.......      9.92  FLS Regional.......     10.87  OES State.
                                           Packagers, Hand.
Hawaii..............  HI         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Hawaii..............  HI         45-1011  First-Line            21.71  OES State..........     24.83  OES State..........     24.60  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Hawaii..............  HI         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     12.43  FLS National.
                                           Sorters,
                                           Agricultural
                                           Products.
Hawaii..............  HI         45-2091  Agricultural          14.94  FLS Regional.......     15.92  FLS Regional.......     12.86  FLS National.
                                           Equipment
                                           Operators.
Hawaii..............  HI         45-2092  Farmworkers and       11.37  FLS Regional.......     12.44  FLS Regional.......     15.13  OES State.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Hawaii..............  HI         45-2093  Farmworkers,          13.99  FLS Regional.......     16.54  FLS Regional.......     16.16  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Hawaii..............  HI         45-2099  Agricultural          18.56  OES State..........     18.17  OES State..........     19.17  OES State.
                                           Workers, All
                                           Other.
Hawaii..............  HI         53-7064  Packers and           11.90  OES State..........     12.00  OES State..........     12.31  OES State.
                                           Packagers, Hand.
Lake................  MI         11-9013  Farmers,              28.73  OES State..........     31.75  OES State..........     31.02  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Lake................  MI         45-1011  First-Line            24.34  OES State..........     20.83  OES State..........     21.27  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Lake................  MI         45-2041  Graders and           11.34  OES State..........     10.85  OES State..........     11.34  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Lake................  MI         45-2091  Agricultural          12.94  FLS Regional.......     16.33  FLS Regional.......     15.37  FLS Regional.
                                           Equipment
                                           Operators.
Lake................  MI         45-2092  Farmworkers and       11.55  FLS Regional.......     11.43  FLS Regional.......     12.47  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.

[[Page 36253]]

 
Lake................  MI         45-2093  Farmworkers,          11.80  FLS Regional.......     12.23  FLS Regional.......     12.56  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Lake................  MI         45-2099  Agricultural          11.53  FLS Regional.......     13.18  FLS Regional.......     14.87  OES State.
                                           Workers, All
                                           Other.
Lake................  MI         47-2061  Construction          18.15  OES State..........     18.31  OES State..........     18.56  OES State.
                                           Laborers.
Lake................  MI         53-7064  Packers and           11.86  OES State..........     12.27  OES State..........     11.30  FLS Regional.
                                           Packagers, Hand.
Lake................  MN         11-9013  Farmers,              35.92  OES State..........     38.70  OES State..........     38.56  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Lake................  MN         45-1011  First-Line            24.51  OES State..........     25.19  OES State..........     29.18  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Lake................  MN         45-2041  Graders and           14.84  OES State..........     15.44  OES State..........     16.26  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Lake................  MN         45-2091  Agricultural          12.94  FLS Regional.......     16.33  FLS Regional.......     15.37  FLS Regional.
                                           Equipment
                                           Operators.
Lake................  MN         45-2092  Farmworkers and       11.55  FLS Regional.......     11.43  FLS Regional.......     12.47  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Lake................  MN         45-2093  Farmworkers,          11.80  FLS Regional.......     12.23  FLS Regional.......     12.56  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Lake................  MN         45-2099  Agricultural          11.53  FLS Regional.......     13.18  FLS Regional.......     23.52  OES State.
                                           Workers, All
                                           Other.
Lake................  MN         53-7064  Packers and           11.91  OES State..........     12.58  OES State..........     11.30  FLS Regional.
                                           Packagers, Hand.
Lake................  WI         11-9013  Farmers,              31.18  OES State..........     31.01  OES State..........     35.25  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Lake................  WI         35-1011  Chefs and Head        18.95  OES State..........     22.71  OES State..........     22.85  OES State.
                                           Cooks.
Lake................  WI         45-1011  First-Line            23.99  OES State..........     24.88  OES State..........     25.20  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Lake................  WI         45-2041  Graders and           13.41  OES State..........     13.77  OES State..........     14.54  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Lake................  WI         45-2091  Agricultural          12.94  FLS Regional.......     16.33  FLS Regional.......     15.37  FLS Regional.
                                           Equipment
                                           Operators.
Lake................  WI         45-2092  Farmworkers and       11.55  FLS Regional.......     11.43  FLS Regional.......     12.47  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Lake................  WI         45-2093  Farmworkers,          11.80  FLS Regional.......     12.23  FLS Regional.......     12.56  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Lake................  WI         45-2099  Agricultural          11.53  FLS Regional.......     13.18  FLS Regional.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Lake................  WI         53-7064  Packers and           12.43  OES State..........     12.99  OES State..........     11.30  FLS Regional.
                                           Packagers, Hand.
Mountain I..........  ID         11-9013  Farmers,              37.97  OES State..........     35.39  OES State..........     35.37  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain I..........  ID         45-1011  First-Line            19.60  OES State..........     20.49  OES State..........     21.61  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain I..........  ID         45-2021  Animal Breeders..     21.47  OES National.......     20.35  OES National.......     20.89  OES National.
Mountain I..........  ID         45-2041  Graders and            9.77  OES State..........     10.45  OES State..........     11.21  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain I..........  ID         45-2091  Agricultural          12.41  FLS Regional.......     12.60  FLS Regional.......     15.38  OES State.
                                           Equipment
                                           Operators.
Mountain I..........  ID         45-2092  Farmworkers and       11.51  FLS Regional.......     12.05  FLS Regional.......     10.82  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain I..........  ID         45-2093  Farmworkers,          12.99  OES State..........     13.39  OES State..........     11.92  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain I..........  ID         45-2099  Agricultural          11.27  FLS Regional.......     11.84  FLS Regional.......     14.77  OES State.
                                           Workers, All
                                           Other.
Mountain I..........  ID         49-9071  Maintenance and       16.81  OES State..........     17.15  OES State..........     17.17  OES State.
                                           Repair Workers,
                                           General.
Mountain I..........  ID         53-7064  Packers and           11.39  OES State..........     11.80  OES State..........     12.40  OES State.
                                           Packagers, Hand.
Mountain I..........  MT         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain I..........  MT         45-1011  First-Line            17.78  OES State..........     17.33  OES State..........     18.69  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain I..........  MT         45-2041  Graders and           12.22  OES State..........     13.10  OES State..........     11.21  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain I..........  MT         45-2091  Agricultural          12.41  FLS Regional.......     12.60  FLS Regional.......     12.86  FLS National.
                                           Equipment
                                           Operators.
Mountain I..........  MT         45-2092  Farmworkers and       11.51  FLS Regional.......     12.05  FLS Regional.......     10.82  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain I..........  MT         45-2093  Farmworkers,          12.54  OES State..........     13.08  OES State..........     11.92  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain I..........  MT         45-2099  Agricultural          11.27  FLS Regional.......     11.84  FLS Regional.......     17.77  OES State.
                                           Workers, All
                                           Other.
Mountain I..........  MT         53-7064  Packers and           10.47  OES State..........     11.48  OES State..........     11.68  OES State.
                                           Packagers, Hand.
Mountain I..........  WY         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain I..........  WY         45-1011  First-Line            20.49  FLS National.......     19.55  FLS National.......     20.10  FLS National.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain I..........  WY         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     11.21  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain I..........  WY         45-2091  Agricultural          12.41  FLS Regional.......     12.60  FLS Regional.......     12.86  FLS National.
                                           Equipment
                                           Operators.
Mountain I..........  WY         45-2092  Farmworkers and       11.51  FLS Regional.......     12.05  FLS Regional.......     10.82  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.

[[Page 36254]]

 
Mountain I..........  WY         45-2093  Farmworkers,          13.10  OES State..........     14.13  OES State..........     11.92  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain I..........  WY         45-2099  Agricultural          11.27  FLS Regional.......     11.84  FLS Regional.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Mountain I..........  WY         53-7064  Packers and           13.68  OES State..........     13.48  OES State..........     10.94  OES State.
                                           Packagers, Hand.
Mountain II.........  CO         11-9013  Farmers,              21.24  OES State..........     27.99  OES State..........     16.62  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain II.........  CO         45-1011  First-Line            25.95  OES State..........     24.63  OES State..........     25.47  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain II.........  CO         45-2041  Graders and            9.48  OES State..........      9.56  OES State..........     10.60  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain II.........  CO         45-2091  Agricultural          12.06  FLS Regional.......     11.40  FLS Regional.......     10.85  FLS Regional.
                                           Equipment
                                           Operators.
Mountain II.........  CO         45-2092  Farmworkers and       10.96  FLS Regional.......     11.14  FLS Regional.......     10.02  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain II.........  CO         45-2093  Farmworkers,           9.84  FLS Regional.......     10.71  FLS Regional.......     15.14  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain II.........  CO         45-2099  Agricultural          11.94  FLS Regional.......     12.64  FLS Regional.......     18.77  OES State.
                                           Workers, All
                                           Other.
Mountain II.........  CO         53-7064  Packers and           11.26  OES State..........     11.56  OES State..........     12.29  OES State.
                                           Packagers, Hand.
Mountain II.........  NV         11-9013  Farmers,              20.96  FLS National.......     44.22  OES State..........     16.62  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain II.........  NV         45-1011  First-Line            22.28  OES State..........     23.46  OES State..........     23.93  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain II.........  NV         45-2041  Graders and           12.66  OES State..........     11.65  FLS National.......     12.43  FLS National.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain II.........  NV         45-2091  Agricultural          12.06  FLS Regional.......     11.40  FLS Regional.......     10.85  FLS Regional.
                                           Equipment
                                           Operators.
Mountain II.........  NV         45-2092  Farmworkers and       10.96  FLS Regional.......     11.14  FLS Regional.......     10.02  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain II.........  NV         45-2093  Farmworkers,           9.84  FLS Regional.......     10.71  FLS Regional.......     15.09  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain II.........  NV         45-2099  Agricultural          11.94  FLS Regional.......     12.64  FLS Regional.......     19.27  OES State.
                                           Workers, All
                                           Other.
Mountain II.........  NV         53-7064  Packers and           11.08  OES State..........     10.68  OES State..........     10.81  OES State.
                                           Packagers, Hand.
Mountain II.........  UT         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     16.62  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain II.........  UT         45-1011  First-Line            21.76  OES State..........     22.51  OES State..........     22.98  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain II.........  UT         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     12.43  FLS National.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain II.........  UT         45-2091  Agricultural          12.06  FLS Regional.......     11.40  FLS Regional.......     10.85  FLS Regional.
                                           Equipment
                                           Operators.
Mountain II.........  UT         45-2092  Farmworkers and       10.96  FLS Regional.......     11.14  FLS Regional.......     10.02  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain II.........  UT         45-2093  Farmworkers,           9.84  FLS Regional.......     10.71  FLS Regional.......     13.22  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain II.........  UT         45-2099  Agricultural          11.94  FLS Regional.......     12.64  FLS Regional.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Mountain II.........  UT         53-7064  Packers and           10.77  OES State..........     11.17  OES State..........     11.74  OES State.
                                           Packagers, Hand.
Mountain III........  AZ         11-9013  Farmers,              31.37  OES State..........     39.04  OES State..........     17.17  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain III........  AZ         35-2021  Food Preparation      10.33  OES State..........     10.63  OES State..........     11.42  OES State.
                                           Workers.
Mountain III........  AZ         45-1011  First-Line            21.32  OES State..........     23.48  OES State..........     24.14  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain III........  AZ         45-2041  Graders and           11.33  OES State..........     11.99  OES State..........     11.29  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain III........  AZ         45-2091  Agricultural          11.10  FLS Regional.......     11.06  FLS Regional.......     10.65  FLS Regional.
                                           Equipment
                                           Operators.
Mountain III........  AZ         45-2092  Farmworkers and        9.17  OES State..........      9.97  OES State..........     10.23  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain III........  AZ         45-2093  Farmworkers,          11.57  FLS Regional.......     11.10  FLS Regional.......     15.83  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain III........  AZ         45-2099  Agricultural          12.90  FLS Regional.......     12.02  FLS Regional.......     17.79  OES State.
                                           Workers, All
                                           Other.
Mountain III........  AZ         53-7064  Packers and           10.99  OES State..........     11.35  OES State..........     10.02  FLS Regional.
                                           Packagers, Hand.
Mountain III........  NM         11-9013  Farmers,              21.63  OES State..........     22.44  OES State..........     17.17  FLS Regional.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Mountain III........  NM         45-1011  First-Line            19.54  OES State..........     17.69  OES State..........     20.71  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Mountain III........  NM         45-2041  Graders and           14.19  OES State..........     14.54  OES State..........     12.32  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Mountain III........  NM         45-2091  Agricultural          11.10  FLS Regional.......     11.06  FLS Regional.......     10.65  FLS Regional.
                                           Equipment
                                           Operators.
Mountain III........  NM         45-2092  Farmworkers and        9.64  OES State..........     10.41  OES State..........     10.23  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Mountain III........  NM         45-2093  Farmworkers,          11.57  FLS Regional.......     11.10  FLS Regional.......     12.03  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Mountain III........  NM         45-2099  Agricultural          12.90  FLS Regional.......     12.02  FLS Regional.......     15.54  OES State.
                                           Workers, All
                                           Other.

[[Page 36255]]

 
Mountain III........  NM         47-2073  Operating             20.93  OES State..........     21.05  OES State..........     20.77  OES State.
                                           Engineers and
                                           Other
                                           Construction
                                           Equipment
                                           Operators.
Mountain III........  NM         53-7062  Laborers and          12.76  OES State..........     13.08  OES State..........     13.39  OES State.
                                           Freight, Stock,
                                           and Material
                                           Movers, Hand.
Mountain III........  NM         53-7064  Packers and            9.86  OES State..........     10.21  OES State..........     10.02  FLS Regional.
                                           Packagers, Hand.
North Plains........  KS         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
North Plains........  KS         45-1011  First-Line            23.30  OES State..........     24.91  OES State..........     25.13  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
North Plains........  KS         45-2041  Graders and           15.04  OES State..........     15.70  OES State..........     16.25  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
North Plains........  KS         45-2091  Agricultural          14.43  FLS Regional.......     14.91  FLS Regional.......     17.45  OES State.
                                           Equipment
                                           Operators.
North Plains........  KS         45-2092  Farmworkers and       11.89  OES State..........     12.58  OES State..........     12.83  OES State.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
North Plains........  KS         45-2093  Farmworkers,          13.83  FLS Regional.......     12.43  FLS Regional.......     12.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
North Plains........  KS         45-2099  Agricultural          15.31  OES National.......     15.15  OES State..........     16.31  OES State.
                                           Workers, All
                                           Other.
North Plains........  KS         53-7064  Packers and           10.80  OES State..........     11.58  OES State..........     12.61  OES State.
                                           Packagers, Hand.
North Plains........  ND         11-9013  Farmers,              36.04  OES State..........     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
North Plains........  ND         45-1011  First-Line            25.04  OES State..........     25.40  OES State..........     20.10  FLS National.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
North Plains........  ND         45-2041  Graders and           14.50  OES State..........     17.07  OES State..........     19.15  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
North Plains........  ND         45-2091  Agricultural          14.43  FLS Regional.......     14.91  FLS Regional.......     18.16  OES State.
                                           Equipment
                                           Operators.
North Plains........  ND         45-2092  Farmworkers and       12.82  OES State..........     12.89  OES State..........     14.11  OES State.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
North Plains........  ND         45-2093  Farmworkers,          13.83  FLS Regional.......     12.43  FLS Regional.......     12.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
North Plains........  ND         45-2099  Agricultural          15.36  OES State..........     18.91  OES State..........     13.36  FLS National.
                                           Workers, All
                                           Other.
North Plains........  ND         53-7064  Packers and           11.46  OES State..........     12.18  OES State..........     12.80  OES State.
                                           Packagers, Hand.
North Plains........  NE         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     24.38  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
North Plains........  NE         45-1011  First-Line            24.23  OES State..........     24.85  OES State..........     26.68  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
North Plains........  NE         45-2041  Graders and           14.47  OES State..........     14.52  OES State..........     15.15  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
North Plains........  NE         45-2091  Agricultural          14.43  FLS Regional.......     14.91  FLS Regional.......     18.01  OES State.
                                           Equipment
                                           Operators.
North Plains........  NE         45-2092  Farmworkers and       15.67  OES State..........     16.01  OES State..........     17.59  OES State.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
North Plains........  NE         45-2093  Farmworkers,          13.83  FLS Regional.......     12.43  FLS Regional.......     12.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
North Plains........  NE         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
North Plains........  NE         53-7064  Packers and           11.30  OES State..........     11.65  OES State..........     12.41  OES State.
                                           Packagers, Hand.
North Plains........  SD         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
North Plains........  SD         45-1011  First-Line            20.49  FLS National.......     19.55  FLS National.......     20.14  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
North Plains........  SD         45-2021  Animal Breeders..     21.19  OES State..........     20.35  OES National.......     17.35  OES State.
North Plains........  SD         45-2041  Graders and           12.62  OES State..........     13.18  OES State..........     13.23  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
North Plains........  SD         45-2091  Agricultural          14.43  FLS Regional.......     14.91  FLS Regional.......     15.62  OES State.
                                           Equipment
                                           Operators.
North Plains........  SD         45-2092  Farmworkers and       10.96  OES State..........     10.79  OES State..........     12.59  OES State.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
North Plains........  SD         45-2093  Farmworkers,          13.83  FLS Regional.......     12.43  FLS Regional.......     12.41  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
North Plains........  SD         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
North Plains........  SD         53-3032  Heavy and Tractor-    18.83  OES State..........     19.27  OES State..........     19.64  OES State.
                                           Trailer Truck
                                           Drivers.
North Plains........  SD         53-7064  Packers and           11.11  OES State..........     11.41  OES State..........     11.76  OES State.
                                           Packagers, Hand.
Northeast I.........  CT         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     36.43  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  CT         35-2012  Cooks,                16.41  OES State..........     16.73  OES State..........     17.57  OES State.
                                           Institution and
                                           Cafeteria.
Northeast I.........  CT         45-1011  First-Line            23.97  OES State..........     22.81  OES State..........     23.79  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  CT         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  CT         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.

[[Page 36256]]

 
Northeast I.........  CT         45-2092  Farmworkers and       12.01  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  CT         45-2093  Farmworkers,          14.35  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  CT         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  CT         49-3041  Farm Equipment        19.87  OES State..........     20.19  OES State..........     20.33  OES State.
                                           Mechanics and
                                           Service
                                           Technicians.
Northeast I.........  CT         51-9012  Separating,           12.92  OES State..........     15.12  OES State..........     15.88  OES State.
                                           Filtering,
                                           Clarifying,
                                           Precipitating,
                                           and Still
                                           Machine Setters,
                                           Operators, and
                                           Tenders.
Northeast I.........  CT         53-3032  Heavy and Tractor-    22.37  OES State..........     22.80  OES State..........     23.33  OES State.
                                           Trailer Truck
                                           Drivers.
Northeast I.........  CT         53-7064  Packers and           13.72  OES State..........     14.53  OES State..........     15.43  OES State.
                                           Packagers, Hand.
Northeast I.........  MA         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     31.23  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  MA         45-1011  First-Line            25.91  OES State..........     26.35  OES State..........     25.45  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  MA         45-2041  Graders and           10.70  OES State..........     11.96  OES State..........     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  MA         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  MA         45-2092  Farmworkers and       12.82  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  MA         45-2093  Farmworkers,          12.56  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  MA         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  MA         53-7064  Packers and           11.89  OES State..........     12.52  OES State..........     13.15  OES State.
                                           Packagers, Hand.
Northeast I.........  ME         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  ME         45-1011  First-Line            21.27  OES State..........     25.77  OES State..........     25.85  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  ME         45-2041  Graders and           11.69  OES State..........     13.56  OES State..........     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  ME         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  ME         45-2092  Farmworkers and       12.72  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  ME         45-2093  Farmworkers,          13.04  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  ME         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  ME         45-4022  Logging Equipment     17.70  OES State..........     17.91  OES State..........     18.00  OES State.
                                           Operators.
Northeast I.........  ME         47-2073  Operating             17.70  OES State..........     18.53  OES State..........     19.13  OES State.
                                           Engineers and
                                           Other
                                           Construction
                                           Equipment
                                           Operators.
Northeast I.........  ME         49-3041  Farm Equipment        15.34  OES State..........     18.26  OES State..........     19.60  OES State.
                                           Mechanics and
                                           Service
                                           Technicians.
Northeast I.........  ME         49-3042  Mobile Heavy          21.26  OES State..........     21.31  OES State..........     20.98  OES State.
                                           Equipment
                                           Mechanics,
                                           Except Engines.
Northeast I.........  ME         51-7041  Sawing Machine        14.20  OES State..........     15.32  OES State..........     16.06  OES State.
                                           Setters,
                                           Operators, and
                                           Tenders, Wood.
Northeast I.........  ME         51-9021  Crushing,             19.17  OES State..........     20.67  OES State..........     18.49  OES State.
                                           Grinding, and
                                           Polishing
                                           Machine Setters,
                                           Operators, and
                                           Tenders.
Northeast I.........  ME         53-3032  Heavy and Tractor-    18.53  OES State..........     19.29  OES State..........     19.55  OES State.
                                           Trailer Truck
                                           Drivers.
Northeast I.........  ME         53-7041  Hoist and Winch       24.37  OES National.......     24.05  OES National.......     26.40  OES National.
                                           Operators.
Northeast I.........  ME         53-7064  Packers and           10.99  OES State..........     11.43  OES State..........     12.36  OES State.
                                           Packagers, Hand.
Northeast I.........  NH         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  NH         45-1011  First-Line            24.78  OES State..........     25.44  OES State..........     25.68  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  NH         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  NH         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  NH         45-2092  Farmworkers and       13.15  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  NH         45-2093  Farmworkers,          12.80  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  NH         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  NH         53-7064  Packers and           11.58  OES State..........     11.26  OES State..........     11.82  OES State.
                                           Packagers, Hand.
Northeast I.........  NY         11-9013  Farmers,              32.90  OES State..........     36.23  OES State..........     41.46  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  NY         35-2012  Cooks,                15.14  OES State..........     15.70  OES State..........     16.09  OES State.
                                           Institution and
                                           Cafeteria.
Northeast I.........  NY         35-2019  Cooks, All Other.     13.66  OES State..........     13.44  OES State..........     15.08  OES State.

[[Page 36257]]

 
Northeast I.........  NY         45-1011  First-Line            27.53  OES State..........     27.70  OES State..........     28.82  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  NY         45-2041  Graders and           10.74  OES State..........     11.35  OES State..........     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  NY         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  NY         45-2092  Farmworkers and       12.56  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  NY         45-2093  Farmworkers,          15.11  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  NY         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  NY         53-7064  Packers and           12.20  OES State..........     12.19  OES State..........     12.80  OES State.
                                           Packagers, Hand.
Northeast I.........  RI         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  RI         45-1011  First-Line            20.49  FLS National.......     19.55  FLS National.......     20.10  FLS National.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  RI         45-2041  Graders and           11.18  OES National.......     11.65  FLS National.......     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  RI         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  RI         45-2092  Farmworkers and       12.91  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  RI         45-2093  Farmworkers,          11.81  FLS National.......     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  RI         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  RI         53-7064  Packers and           10.83  OES State..........     12.06  OES State..........     12.35  OES State.
                                           Packagers, Hand.
Northeast I.........  VT         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast I.........  VT         35-2012  Cooks,                14.00  OES State..........     14.57  OES State..........     14.65  OES State.
                                           Institution and
                                           Cafeteria.
Northeast I.........  VT         45-1011  First-Line            22.00  OES State..........     21.17  OES State..........     23.81  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast I.........  VT         45-2041  Graders and           11.70  OES State..........     12.66  OES State..........     13.38  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast I.........  VT         45-2091  Agricultural          13.07  FLS Regional.......     12.97  FLS Regional.......     13.85  FLS Regional.
                                           Equipment
                                           Operators.
Northeast I.........  VT         45-2092  Farmworkers and       13.35  OES State..........     13.19  FLS Regional.......     13.11  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast I.........  VT         45-2093  Farmworkers,          15.64  OES State..........     11.17  FLS Regional.......     11.81  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast I.........  VT         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast I.........  VT         51-3022  Meat, Poultry,        14.56  OES State..........     15.23  OES State..........     16.28  OES State.
                                           and Fish Cutters
                                           and Trimmers.
Northeast I.........  VT         53-7064  Packers and           12.07  OES State..........     12.39  OES State..........     13.22  OES State.
                                           Packagers, Hand.
Northeast II........  DE         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast II........  DE         45-1011  First-Line            25.75  OES State..........     25.70  OES State..........     27.07  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast II........  DE         45-2041  Graders and           11.09  FLS Regional.......     12.18  FLS Regional.......     13.89  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast II........  DE         45-2091  Agricultural          13.27  OES State..........     12.85  FLS National.......     12.86  FLS National.
                                           Equipment
                                           Operators.
Northeast II........  DE         45-2092  Farmworkers and       11.90  FLS Regional.......     11.91  FLS Regional.......     12.05  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast II........  DE         45-2093  Farmworkers,          11.82  OES State..........     13.28  OES State..........     11.36  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast II........  DE         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast II........  DE         53-7064  Packers and           12.55  OES State..........     11.47  OES State..........     11.68  OES State.
                                           Packagers, Hand.
Northeast II........  MD         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast II........  MD         45-1011  First-Line            24.95  OES State..........     27.22  OES State..........     25.64  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast II........  MD         45-2041  Graders and           11.09  FLS Regional.......     12.18  FLS Regional.......     13.89  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast II........  MD         45-2091  Agricultural          18.40  OES State..........     20.31  OES State..........     20.30  OES State.
                                           Equipment
                                           Operators.
Northeast II........  MD         45-2092  Farmworkers and       11.90  FLS Regional.......     11.91  FLS Regional.......     12.05  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast II........  MD         45-2093  Farmworkers,          14.10  OES State..........     13.34  OES State..........     11.36  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast II........  MD         45-2099  Agricultural          17.44  OES State..........     17.92  OES State..........     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast II........  MD         53-7064  Packers and           11.19  OES State..........     11.85  OES State..........     12.20  OES State.
                                           Packagers, Hand.
Northeast II........  NJ         11-9013  Farmers,              40.26  OES State..........     39.45  OES State..........     39.49  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.

[[Page 36258]]

 
Northeast II........  NJ         45-1011  First-Line            21.24  OES State..........     21.37  OES State..........     21.23  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast II........  NJ         45-2041  Graders and           11.09  FLS Regional.......     12.18  FLS Regional.......     13.89  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast II........  NJ         45-2091  Agricultural          16.33  OES State..........     12.85  FLS National.......     11.27  OES State.
                                           Equipment
                                           Operators.
Northeast II........  NJ         45-2092  Farmworkers and       11.90  FLS Regional.......     11.91  FLS Regional.......     12.05  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast II........  NJ         45-2093  Farmworkers,          13.43  OES State..........     13.53  OES State..........     11.36  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast II........  NJ         45-2099  Agricultural          13.09  OES State..........     13.11  OES State..........     11.88  OES State.
                                           Workers, All
                                           Other.
Northeast II........  NJ         53-7064  Packers and           10.72  OES State..........     11.15  OES State..........     11.64  OES State.
                                           Packagers, Hand.
Northeast II........  PA         11-9013  Farmers,              42.44  OES State..........     41.83  OES State..........     43.16  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Northeast II........  PA         45-1011  First-Line            25.48  OES State..........     24.83  OES State..........     26.49  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Northeast II........  PA         45-2041  Graders and           11.09  FLS Regional.......     12.18  FLS Regional.......     13.89  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Northeast II........  PA         45-2091  Agricultural          13.60  OES State..........     15.43  OES State..........     18.81  OES State.
                                           Equipment
                                           Operators.
Northeast II........  PA         45-2092  Farmworkers and       11.90  FLS Regional.......     11.91  FLS Regional.......     12.05  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Northeast II........  PA         45-2093  Farmworkers,          13.56  OES State..........     13.19  OES State..........     11.36  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Northeast II........  PA         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Northeast II........  PA         53-7064  Packers and           12.13  OES State..........     12.53  OES State..........     13.32  OES State.
                                           Packagers, Hand.
Pacific.............  OR         11-9013  Farmers,              28.68  OES State..........     26.10  OES State..........     29.89  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Pacific.............  OR         45-1011  First-Line            26.95  OES State..........     25.50  OES State..........     24.49  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Pacific.............  OR         45-2041  Graders and           10.84  OES State..........     11.43  OES State..........     11.90  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Pacific.............  OR         45-2091  Agricultural          15.12  FLS Regional.......     14.55  FLS Regional.......     14.38  FLS Regional.
                                           Equipment
                                           Operators.
Pacific.............  OR         45-2092  Farmworkers and       13.08  FLS Regional.......     13.30  FLS Regional.......     14.32  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Pacific.............  OR         45-2093  Farmworkers,          12.08  FLS Regional.......     13.71  FLS Regional.......     14.47  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Pacific.............  OR         45-2099  Agricultural          15.38  OES State..........     16.40  OES State..........     18.08  OES State.
                                           Workers, All
                                           Other.
Pacific.............  OR         53-7064  Packers and           12.84  FLS Regional.......     11.26  FLS Regional.......     13.48  OES State.
                                           Packagers, Hand.
Pacific.............  WA         11-9013  Farmers,              34.58  OES State..........     38.36  OES State..........     41.15  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Pacific.............  WA         45-1011  First-Line            26.75  OES State..........     27.55  OES State..........     25.34  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Pacific.............  WA         45-2041  Graders and           13.60  OES State..........     14.40  OES State..........     14.22  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Pacific.............  WA         45-2091  Agricultural          15.12  FLS Regional.......     14.55  FLS Regional.......     14.38  FLS Regional.
                                           Equipment
                                           Operators.
Pacific.............  WA         45-2092  Farmworkers and       13.08  FLS Regional.......     13.30  FLS Regional.......     14.32  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Pacific.............  WA         45-2093  Farmworkers,          12.08  FLS Regional.......     13.71  FLS Regional.......     14.47  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Pacific.............  WA         45-2099  Agricultural          16.06  OES State..........     17.36  OES State..........     15.78  OES State.
                                           Workers, All
                                           Other.
Pacific.............  WA         53-7064  Packers and           12.84  FLS Regional.......     11.26  FLS Regional.......     13.94  OES State.
                                           Packagers, Hand.
Southeast...........  AL         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     22.67  FLS National.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Southeast...........  AL         45-1011  First-Line            23.23  OES State..........     26.41  OES State..........     28.46  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Southeast...........  AL         45-2041  Graders and           11.11  OES State..........     11.16  OES State..........     11.04  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Southeast...........  AL         45-2091  Agricultural          12.80  OES State..........     15.80  OES State..........     11.05  OES State.
                                           Equipment
                                           Operators.
Southeast...........  AL         45-2092  Farmworkers and       10.83  FLS Regional.......     10.93  FLS Regional.......     11.01  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Southeast...........  AL         45-2093  Farmworkers,          11.22  OES State..........     11.99  OES State..........     13.41  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Southeast...........  AL         45-2099  Agricultural          12.01  FLS Regional.......     13.14  OES State..........     13.90  OES State.
                                           Workers, All
                                           Other.
Southeast...........  AL         53-3032  Heavy and Tractor-    19.28  OES State..........     18.77  OES State..........     19.27  OES State.
                                           Trailer Truck
                                           Drivers.
Southeast...........  AL         53-7064  Packers and           10.10  FLS Regional.......     10.31  FLS Regional.......     10.92  FLS Regional.
                                           Packagers, Hand.
Southeast...........  GA         11-9013  Farmers,              20.96  FLS National.......     21.98  FLS National.......     31.51  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Southeast...........  GA         45-1011  First-Line            23.79  OES State..........     23.42  OES State..........     23.14  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.

[[Page 36259]]

 
Southeast...........  GA         45-2041  Graders and           10.40  OES State..........     10.53  OES State..........     10.44  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Southeast...........  GA         45-2091  Agricultural          10.86  OES State..........     11.54  OES State..........     12.48  OES State.
                                           Equipment
                                           Operators.
Southeast...........  GA         45-2092  Farmworkers and       10.83  FLS Regional.......     10.93  FLS Regional.......     11.01  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Southeast...........  GA         45-2093  Farmworkers,          11.52  OES State..........     12.77  OES State..........     13.27  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Southeast...........  GA         45-2099  Agricultural          12.01  FLS Regional.......     19.49  OES State..........     18.29  OES State.
                                           Workers, All
                                           Other.
Southeast...........  GA         53-7064  Packers and           10.10  FLS Regional.......     10.31  FLS Regional.......     10.92  FLS Regional.
                                           Packagers, Hand.
Southeast...........  SC         11-9013  Farmers,              36.96  OES State..........     40.39  OES State..........     35.55  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Southeast...........  SC         45-1011  First-Line            25.84  OES State..........     27.24  OES State..........     27.08  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Southeast...........  SC         45-2041  Graders and           11.23  OES State..........     10.50  OES State..........     10.92  OES State.
                                           Sorters,
                                           Agricultural
                                           Products.
Southeast...........  SC         45-2091  Agricultural          12.30  OES State..........     15.13  OES State..........     16.52  OES State.
                                           Equipment
                                           Operators.
Southeast...........  SC         45-2092  Farmworkers and       10.83  FLS Regional.......     10.93  FLS Regional.......     11.01  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Southeast...........  SC         45-2093  Farmworkers,          11.97  OES State..........     12.94  OES State..........     13.71  OES State.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Southeast...........  SC         45-2099  Agricultural          12.01  FLS Regional.......     17.92  OES State..........     13.36  FLS National.
                                           Workers, All
                                           Other.
Southeast...........  SC         53-7064  Packers and           10.10  FLS Regional.......     10.31  FLS Regional.......     10.92  FLS Regional.
                                           Packagers, Hand.
Southeastern Plains.  OK         11-9013  Farmers,              23.66  FLS Regional.......     24.74  OES State..........     27.39  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Southeastern Plains.  OK         45-1011  First-Line            17.28  FLS Regional.......     18.06  FLS Regional.......     25.85  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Southeastern Plains.  OK         45-2041  Graders and           11.17  OES State..........     12.09  OES State..........     11.70  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Southeastern Plains.  OK         45-2091  Agricultural          11.59  FLS Regional.......     11.76  FLS Regional.......     11.28  FLS Regional.
                                           Equipment
                                           Operators.
Southeastern Plains.  OK         45-2092  Farmworkers and       11.60  OES State..........     11.53  FLS Regional.......     11.53  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Southeastern Plains.  OK         45-2093  Farmworkers,          11.31  FLS Regional.......     11.66  FLS Regional.......     12.12  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Southeastern Plains.  OK         45-2099  Agricultural          15.31  OES National.......     16.88  OES National.......     13.36  FLS National.
                                           Workers, All
                                           Other.
Southeastern Plains.  OK         53-3032  Heavy and Tractor-    20.27  OES State..........     20.21  OES State..........     20.74  OES State.
                                           Trailer Truck
                                           Drivers.
Southeastern Plains.  OK         53-7064  Packers and           11.17  OES State..........     11.39  OES State..........     12.09  FLS Regional.
                                           Packagers, Hand.
Southeastern Plains.  TX         11-9013  Farmers,              23.66  FLS Regional.......     41.28  OES State..........     37.67  OES State.
                                           Ranchers, and
                                           Other
                                           Agricultural
                                           Managers.
Southeastern Plains.  TX         45-1011  First-Line            17.28  FLS Regional.......     18.06  FLS Regional.......     27.00  OES State.
                                           Supervisors of
                                           Farming,
                                           Fishing, and
                                           Forestry Workers.
Southeastern Plains.  TX         45-2041  Graders and           11.10  OES State..........     11.07  OES State..........     11.70  FLS Regional.
                                           Sorters,
                                           Agricultural
                                           Products.
Southeastern Plains.  TX         45-2091  Agricultural          11.59  FLS Regional.......     11.76  FLS Regional.......     11.28  FLS Regional.
                                           Equipment
                                           Operators.
Southeastern Plains.  TX         45-2092  Farmworkers and        9.54  OES State..........     11.53  FLS Regional.......     11.53  FLS Regional.
                                           Laborers, Crop,
                                           Nursery, and
                                           Greenhouse.
Southeastern Plains.  TX         45-2093  Farmworkers,          11.31  FLS Regional.......     11.66  FLS Regional.......     12.12  FLS Regional.
                                           Farm, Ranch, and
                                           Aquacultural
                                           Animals.
Southeastern Plains.  TX         45-2099  Agricultural          13.04  OES State..........     13.77  OES State..........     16.65  OES State.
                                           Workers, All
                                           Other.
Southeastern Plains.  TX         47-2061  Construction          14.07  OES State..........     14.62  OES State..........     15.02  OES State.
                                           Laborers.
Southeastern Plains.  TX         49-2093  Electrical and        27.34  OES State..........     29.88  OES State..........     28.40  OES State.
                                           Electronics
                                           Installers and
                                           Repairers,
                                           Transportation
                                           Equipment.
Southeastern Plains.  TX         53-7064  Packers and           10.80  OES State..........     11.05  OES State..........     12.09  FLS Regional.
                                           Packagers, Hand.
--------------------------------------------------------------------------------------------------------------------------------------------------------

List of Subjects

20 CFR Part 653

    Agriculture, Employment, Equal employment opportunity, Grant 
programs--labor, Migrant labor, Reporting and recordkeeping 
requirements.

20 CFR Part 655

    Administrative practice and procedure, Foreign workers, Employment, 
Employment and training, Enforcement, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Passports and visas, 
Penalties, Reporting and recordkeeping

[[Page 36260]]

requirements, Unemployment, Wages, Working conditions.

29 CFR Part 501

    Administrative practice and procedure, Agricultural, Aliens, 
Employment, Housing, Housing standards, Immigration, Labor, Migrant 
labor, Penalties, Transportation, Wages.

    For the reasons stated in the preamble, the Department of Labor 
proposes that 20 CFR parts 653 and 655 and 29 CFR part 501 be amended 
as follows:

Title 20--Employees' Benefits

PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE 
SYSTEM

0
1. The authority citation for part 653 continues to read as follows:

    Authority:  Secs. 167, 189, 503, Pub. L. 113-128, 128 Stat. 1425 
(Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III, chapters 
41 and 42.

0
2. Amend Sec.  653.501 by revising the first sentence of paragraph 
(c)(2)(i) to read as follows:


Sec.  653.501   Requirements for processing clearance orders.

* * * * *
    (c) * * *
    (2) * * *
    (i) The wages and working conditions offered are not less than the 
prevailing wages, as defined in Sec.  655.103(b), and prevailing 
working conditions among similarly employed farmworkers in the area of 
intended employment or the applicable Federal or State minimum wage, 
whichever is higher. * * *
* * * * *

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

0
3. The authority citation for part 655 continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0
 4. Revise subpart B to read as follows:

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

Sec.
655.100 Scope and purpose of this subpart.
655.101 Authority of the agencies, offices, and divisions in the 
Department of Labor.
655.102 Transition procedures.
655.103 Overview of this subpart and definition of terms.

Prefiling Procedures

655.120 Offered wage rate.
655.121 Job order filing requirements.
655.122 Contents of job offers.
655.123 Positive recruitment of U.S. workers.
655.124 Withdrawal of a job order.

Application for Temporary Employment Certification Filing Procedures

655.130 Application filing requirements.
655.131 Agricultural association and joint employer filing 
requirements.
655.132 H-2A labor contractor filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.
655.136 Withdrawal of an Application for Temporary Employment 
Certification and job order.

Processing of Applications for Temporary Employment Certification

655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to Applications for Temporary Employment 
Certification.

Post-Acceptance Requirements

655.150 Interstate clearance of job order.
655.151 Advertising in the area of intended employment.
655.152 Advertising content requirements.
655.153 Contact with former U.S. workers.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.

Labor Certification Determinations

655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based on nonavailability of U.S. 
workers.
655.167 Document retention requirements of H-2A employers.

Post-Certification

655.170 Extensions.
655.171 Appeals.
655.172 Post-certification withdrawals.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.
655.175 Post-certification amendments.

Integrity Measures

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

Labor Certification Process for Temporary Agricultural Employment in 
Range Sheep Herding, Goat Herding, and Production of Livestock 
Occupations

655.200 Scope and purpose of herding and range livestock regulations 
in Sec. Sec.  655.200 through 655.235.
655.201 Definition of herding and range livestock terms.
655.205 Herding and range livestock job orders.
655.210 Contents of herding and range livestock job orders.
655.211 Herding and range livestock wage rate.
655.215 Procedures for filing herding and range livestock 
Applications for Temporary Employment Certification.
655.220 Processing herding and range livestock Applications for 
Temporary Employment Certification.
655.225 Post-acceptance requirements for herding and range 
livestock.
655.230 Range housing.
655.235 Standards for range housing.

Labor Certification Process for Temporary Agricultural Employment in 
Animal Shearing, Commercial Beekeeping, Custom Combining, and 
Reforestation Occupations

655.300 Scope and purpose.
655.301 Definition of terms.
655.302 Contents of job orders.
655.303 Procedures for filing Applications for Temporary Employment 
Certification.
655.304 Standards for mobile housing.

[[Page 36261]]

Sec.  655.100  Scope and purpose of this subpart.

    (a) Purpose. (1) A temporary agricultural labor certification 
issued under this subpart reflects a determination by the Secretary of 
Labor (Secretary), pursuant to 8 U.S.C. 1188(a), that:
    (i) There are not sufficient able, willing, and qualified United 
States (U.S.) workers available to perform the temporary agricultural 
labor or services for which an employer desires to hire foreign 
workers; and
    (ii) The employment of the H-2A worker(s) will not adversely affect 
the wages and working conditions of workers in the United States 
similarly employed.
    (2) This subpart describes the process by which the Department of 
Labor (Department or DOL) makes such a determination and certifies its 
determination to the Department of Homeland Security (DHS).
    (b) Scope. This subpart sets forth the procedures governing the 
labor certification process for the temporary employment of foreign 
workers in the H-2A nonimmigrant classification, as defined in 8 U.S.C. 
1101(a)(15)(H)(ii)(a). It also establishes standards and obligations 
with respect to the terms and conditions of the temporary agricultural 
labor certification with which H-2A employers must comply, as well as 
the rights and obligations of H-2A workers and workers in corresponding 
employment. Additionally, this subpart sets forth integrity measures 
for ensuring employers' continued compliance with the terms and 
conditions of the temporary agricultural labor certification.


Sec.  655.101   Authority of the agencies, offices, and divisions in 
the Department of Labor.

    (a) Authority and role of the Office of Foreign Labor 
Certification. The Secretary has delegated authority to the Assistant 
Secretary for the Employment and Training Administration (ETA), who in 
turn has delegated that authority to the Office of Foreign Labor 
Certification (OFLC), to issue certifications and carry out other 
statutory responsibilities as required by 8 U.S.C. 1188. Determinations 
on an Application for Temporary Employment Certification are made by 
the OFLC Administrator who, in turn, may delegate this responsibility 
to designated staff, e.g., a Certifying Officer (CO).
    (b) Authority of the Wage and Hour Division. The Secretary has 
delegated authority to the Wage and Hour Division (WHD) to conduct 
certain investigatory and enforcement functions with respect to terms 
and conditions of employment under 8 U.S.C. 1188, 29 CFR part 501, and 
this subpart (``the H-2A program''), and to carry out other statutory 
responsibilities required by 8 U.S.C. 1188. The regulations governing 
WHD's investigatory and enforcement functions, including those related 
to the enforcement of temporary agricultural labor certifications 
issued under this subpart, are in 29 CFR part 501.
    (c) Concurrent authority. OFLC and WHD have concurrent authority to 
impose a debarment remedy pursuant to Sec.  655.182 and 29 CFR 501.20.


Sec.  655.102   Transition procedures.

    (a) The NPC shall continue to process an Application for Temporary 
Employment Certification submitted prior to [effective date of the 
final rule] in accordance with 20 CFR part 655, subpart B, in effect as 
of [date 1 day before the effective date of the final rule].
    (b) The NPC shall process an Application for Temporary Employment 
Certification submitted on or after [effective date of the final rule], 
and that has a first date of need no later than [date 90 calendar days 
after the effective date of the final rule], in accordance with 20 CFR 
part 655, subpart B, in effect as of [date 1 day before the effective 
date of the final rule].
    (c) The NPC shall process an Application for Temporary Employment 
Certification submitted on or after [effective date of the final rule], 
and that has a first date of need later than [date 90 calendar days 
after the effective date of the final rule], in accordance with all job 
order and application filing requirements under this supbart.


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

    (a) Overview. In order to bring nonimmigrant workers to the United 
States to perform agricultural work, an employer must first demonstrate 
to the Secretary that there are not sufficient U.S. workers able, 
willing, and qualified to perform the work in the area of intended 
employment at the time needed and that the employment of foreign 
workers will not adversely affect the wages and working conditions of 
workers in the United States similarly employed. This subpart describes 
a process by which the 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:
    Act. The Immigration and Nationality Act, as amended (INA), 8 
U.S.C. 1101 et seq.
    Administrative Law Judge. A person within the Department's Office 
of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105.
    Administrator. See definitions of OFLC Administrator and WHD 
Administrator below.
    Adverse effect wage rate. The wage rate published by the OFLC 
Administrator in the Federal Register for the occupational 
classification and state based on either the U.S. Department of 
Agriculture's (USDA's) Farm Labor Survey (FLS) or the Bureau of Labor 
Statistics' (BLS') Occupational Employment Statistics (OES) survey, as 
set forth in Sec.  655.120(b).
    Agent. A legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that:
    (i) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes;
    (ii) Is not itself an employer, or a joint employer, as defined in 
this subpart with respect to a specific application; and
    (iii) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, or the Executive Office 
for Immigration Review or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including, but not limited to, 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar fixed-site agricultural employers), incorporated or 
qualified under applicable state law, that recruits, solicits, hires, 
employs, furnishes, houses, or transports any worker that is subject to 
8 U.S.C. 1188. An agricultural association may act as the agent of an 
employer, or may act as the sole or joint employer of any worker 
subject to 8 U.S.C. 1188.
    Applicant. A U.S. worker who is applying for a job opportunity for 
which an employer has filed an Application for Temporary Employment 
Certification and job order.
    Application for Temporary Employment Certification. The Office of 
Management and Budget (OMB)-approved Form ETA-9142A and appropriate 
appendices submitted by an employer to secure a temporary agricultural 
labor certification determination from DOL.
    Area of intended employment. The geographic area within normal 
commuting distance of the place(s) of

[[Page 36262]]

employment for which temporary agricultural labor certification is 
sought. There is no rigid measure of distance that constitutes a normal 
commuting distance or normal commuting area, because there may be 
widely varying factual circumstances among different areas (e.g., 
average commuting times, barriers to reaching the place(s) of 
employment, or quality of the regional transportation network). If a 
place of employment is within a Metropolitan Statistical Area (MSA), 
including a multi-state MSA, any place within the MSA is deemed to be 
within normal commuting distance of the place of employment. The 
borders of MSAs are not controlling in the identification of the normal 
commuting area; a place of employment outside of an MSA may be within 
normal commuting distance of a place of employment that is inside 
(e.g., near the border of) the MSA.
    Attorney. Any person who is a member in good standing of the bar of 
the highest court of any state, possession, territory, or commonwealth 
of the United States, or the District of Columbia (DC). Such a person 
is also permitted to act as an agent under this subpart. No attorney 
who is under suspension, debarment, expulsion, or disbarment from 
practice before any court, the Department, or the Executive Office for 
Immigration Review or DHS under 8 CFR 292.3 or 8 CFR 1003.101, may 
represent an employer under this subpart.
    Average adverse effect wage rate. The simple average of the first 
adverse effect wage rates (AEWRs) applicable to the SOC 45-2092 
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) that the OFLC 
Administrator publishes in a calendar year in accordance with Sec.  
655.120(b).
    Board of Alien Labor Certification Appeals. The permanent Board 
established by part 656 of this chapter, chaired by the Chief 
Administrative Law Judge (Chief ALJ), and consisting of Administrative 
Law Judges (ALJs) appointed pursuant to 5 U.S.C. 3105 and designated by 
the Chief ALJ to be members of Board of Alien Labor Certification 
Appeals (BALCA or Board).
    Certifying Officer. The person who makes a determination on an 
Application for Temporary Employment Certification filed under the H-2A 
program. The OFLC Administrator is the national CO. Other COs may be 
designated by the OFLC Administrator to also make the determinations 
required under this subpart.
    Chief Administrative Law Judge. The chief official of the 
Department's Office of Administrative Law Judges or the Chief ALJ's 
designee.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary 
Employment Certification in any work included in the job order, or in 
any agricultural work performed by the H-2A workers. To qualify as 
corresponding employment, the work must be performed during the 
validity period of the job order, including any approved extension 
thereof.
    Department of Homeland Security. The Federal department having 
jurisdiction over certain immigration-related functions, acting through 
its component agencies, including U.S. Citizenship and Immigration 
Services (USCIS).
    Employee. A person who is engaged to perform work for an employer, 
as defined under the general common law of agency. Some of the factors 
relevant to the determination of employee status include: The hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive.
    Employer. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (i) Has an employment relationship (such as the ability to hire, 
pay, fire, supervise, or otherwise control the work of employee) with 
respect to an H-2A worker or a worker in corresponding employment; or
    (ii) Files an Application for Temporary Employment Certification 
other than as an agent; or
    (iii) A person on whose behalf an Application for Temporary 
Employment Certification is filed.
    Employment and Training Administration. The agency within the 
Department that includes OFLC and has been delegated authority by the 
Secretary to fulfill the Secretary's mandate under the INA and DHS' 
implementing regulations for the administration and adjudication of an 
Application for Temporary Employment Certification and related 
functions.
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
    First date of need. The first date the employer anticipates 
requiring the labor or services of H-2A workers as indicated in the 
Application for Temporary Employment Certification.
    Fixed-site employer. Any person engaged in agriculture who meets 
the definition of an employer, as those terms are defined in this 
subpart; who owns or operates a farm, ranch, processing establishment, 
cannery, gin, packing shed, nursery, or other similar fixed-site 
location where agricultural activities are performed; and who recruits, 
solicits, hires, employs, houses, or transports any worker subject to 8 
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A labor contractor. Any person who meets the definition of 
employer under this subpart and is not a fixed-site employer, an 
agricultural association, or an employee of a fixed-site employer or 
agricultural association, as those terms are used in this subpart, who 
recruits, solicits, hires, employs, furnishes, houses, or transports 
any worker subject to 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
    H-2A worker. Any temporary foreign worker who is lawfully present 
in the United States and authorized by DHS to perform agricultural 
labor or services of a temporary or seasonal nature pursuant to 8 
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
    H-2A Petition. The USCIS Form I-129, Petition for a Nonimmigrant 
Worker, with H Supplement or successor form or supplement, and 
accompanying documentation required by DHS for employers seeking to 
employ foreign persons as H-2A nonimmigrant workers.
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the United 
States to which U.S. workers can be referred.
    Job order. The document containing the material terms and 
conditions of employment that is posted by the State Workforce Agency 
(SWA) on its interstate and intrastate job clearance systems based on 
the employer's Agricultural Clearance Order (Form ETA-790/ETA-790A and 
all appropriate addenda), as submitted to the NPC.
    Joint employment. (i) Where two or more employers each have 
sufficient

[[Page 36263]]

definitional indicia of being a joint employer of a worker under the 
common law of agency, they are, at all times, joint employers of that 
worker.
    (ii) An agricultural association that files an Application for 
Temporary Employment Certification as a joint employer is, at all 
times, a joint employer of all the H-2A workers sponsored under the 
Application for Temporary Employment Certification and all workers in 
corresponding employment. An employer-member of an agricultural 
association that files an Application for Temporary Employment 
Certification as a joint employer is a joint employer of the H-2A 
workers sponsored under the joint employer Application for Temporary 
Employment Certification along with the agricultural association during 
the period that the employer-member employs the H-2A workers sponsored 
under the Application for Temporary Employment Certification.
    (iii) Employers that jointly file a joint employer Application for 
Temporary Employment Certification under Sec.  655.131(b) are, at all 
times, joint employers of all the H-2A workers sponsored under the 
Application for Temporary Employment Certification and all workers in 
corresponding employment.
    Master application. An Application for Temporary Employment 
Certification filed by an association of agricultural producers as a 
joint employer with its employer-members. A master application must 
cover the same occupations or comparable agricultural employment; the 
first date of need for all employer-members listed on the Application 
for Temporary Employment Certification may be separated by no more than 
14 calendar days; and may cover multiple areas of intended employment 
within a single state but no more than two contiguous states.
    Metropolitan Statistical Area. A geographic entity defined by OMB 
for use by Federal statistical agencies in collecting, tabulating, and 
publishing Federal statistics. A Metropolitan Statistical Area contains 
a core urban area of 50,000 or more population, and a Micropolitan 
Statistical Area contains an urban core of at least 10,000 (but fewer 
than 50,000) population. Each metropolitan or micropolitan area 
consists of one or more counties and includes the counties containing 
the core urban area, as well as any adjacent counties that have a high 
degree of social and economic integration (as measured by commuting to 
work) with the urban core.
    National Processing Center. The offices within OFLC in which the 
COs operate and which are charged with the adjudication of Applications 
for Temporary Employment Certification.
    Office of Foreign Labor Certification. OFLC means the 
organizational component of ETA that provides national leadership and 
policy guidance, and develops regulations and procedures to carry out 
the responsibilities of the Secretary under the INA concerning the 
admission of foreign workers to the United States to perform work 
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
    OFLC Administrator. The primary official of OFLC, or the OFLC 
Administrator's designee.
    Period of employment. The time during which the employer requires 
the labor or services of H-2A workers as indicated by the first and 
last dates of need provided in the Application for Temporary Employment 
Certification.
    Piece rate. A form of wage compensation based upon a worker's 
quantitative output or one unit of work or production for the crop or 
agricultural activity.
    Place of employment. A worksite or physical location where work 
under the job order actually is performed by the H-2A workers and 
workers in corresponding employment.
    Positive recruitment. The active participation of an employer or 
its authorized hiring agent, performed under the auspices and direction 
of OFLC, in recruiting and interviewing individuals in the area where 
the employer's job opportunity is located, and any other state 
designated by the Secretary as an area of traditional or expected labor 
supply with respect to the area where the employer's job opportunity is 
located, in an effort to fill specific job openings with U.S. workers.
    Prevailing practice. A practice engaged in by employers, that:
    (i) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; and
    (ii) This 50 percent or more of employers also employs 50 percent 
or more of U.S. workers in the occupation and area (including H-2A and 
non-H-2A employers) for purposes of determinations concerning the 
provision of family housing, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of 
advance transportation and the utilization of labor contractors.
    Prevailing wage. A wage rate established by the OFLC Administrator 
for a crop activity or agricultural activity and geographic area based 
on a survey conducted by a state that meets the requirements in Sec.  
655.120(c).
    Secretary of Labor. The chief official of the Department, or the 
Secretary's designee.
    Secretary of Homeland Security. The chief official of DHS or the 
Secretary of Homeland Security's designee.
    State Workforce Agency. State government agency that receives funds 
pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to administer 
the state's public labor exchange activities.
    Strike. A concerted stoppage of work by employees as a result of a 
labor dispute, or any concerted slowdown or other concerted 
interruption of operation (including stoppage by reason of the 
expiration of a collective bargaining agreement).
    Successor in interest. (i) Where an employer, agent, or attorney 
has violated 8 U.S.C. 1188, 29 CFR part 501, or this subpart, and has 
ceased doing business or cannot be located for purposes of enforcement, 
a successor in interest to that employer, agent, or attorney may be 
held liable for the duties and obligations of the violating employer, 
agent, or attorney in certain circumstances. The following factors, as 
used under Title VII of the Civil Rights Act and the Vietnam Era 
Veterans' Readjustment Assistance Act, may be considered in determining 
whether an employer, agent, or attorney is a successor in interest; no 
one factor is dispositive, but all of the circumstances will be 
considered as a whole:
    (A) Substantial continuity of the same business operations;
    (B) Use of the same facilities;
    (C) Continuity of the work force;
    (D) Similarity of jobs and working conditions;
    (E) Similarity of supervisory personnel;
    (F) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (G) Similarity in machinery, equipment, and production methods;
    (H) Similarity of products and services; and
    (I) The ability of the predecessor to provide relief.
    (ii) For purposes of debarment only, the primary consideration will 
be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator, based on the Application for Temporary 
Employment Certification, job order, and all supporting documentation, 
with respect to an employer seeking to file with DHS a visa petition to 
employ one or more foreign nationals as an H-2A worker,

[[Page 36264]]

pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188, 
and this subpart.
    United States. The continental United States, Alaska, Hawaii, the 
Commonwealth of Puerto Rico, and the territories of Guam, the U.S. 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
    U.S. Citizenship and Immigration Services. The Federal agency 
within DHS that makes the determination under the INA whether to grant 
petitions filed by employers seeking H-2A workers to perform temporary 
or seasonal agricultural labor or services in the United States.
    U.S. worker. A worker who is:
    (i) A citizen or national of the United States;
    (ii) An individual who is lawfully admitted for permanent residence 
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is 
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise 
authorized by the INA or DHS to be employed in the United States; or
    (iii) An individual who is not an unauthorized alien, as defined in 
8 U.S.C. 1324a(h)(3), with respect to the employment in which the 
worker is engaging.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for labor or services.
    Wage and Hour Division. The agency within the Department with 
authority to conduct certain investigatory and enforcement functions, 
as delegated by the Secretary, under 8 U.S.C. 1188, 29 CFR part 501, 
and this subpart.
    WHD Administrator. The primary official of WHD, or the WHD 
Administrator's designee.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart. The contract between the employer and the worker may be in the 
form of a separate written document. In the absence of a separate 
written work contract incorporating the required terms and conditions 
of employment, agreed to by both the employer and the worker, the work 
contract at a minimum will be the terms and conditions of the job order 
and any obligations required under 8 U.S.C. 1188, 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. 
1011(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and 
applied in section 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); agriculture as defined and applied in section 3(f) of 
the Fair Labor Standards Act of 1938, as amended (FLSA) at 29 U.S.C. 
203(f); the pressing of apples for cider on a farm; logging employment; 
reforestation activities; or pine straw activities. An occupation 
included in either statutory definition is agricultural labor or 
services, notwithstanding the exclusion of that occupation from the 
other statutory definition. For informational purposes, the statutory 
provisions are listed in paragraphs (c)(1) thorough (6) of this 
section.
    (1) Agricultural labor. (i) For the purpose of paragraph (c) of 
this section, agricultural labor means all service performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock, 
bees, poultry, and fur-bearing animals and wildlife;
    (B) In the employ of the owner or tenant or other operator of a 
farm, in connection with the operation, management, conservation, 
improvement, or maintenance of such farm and its tools and equipment, 
or in salvaging timber or clearing land of brush and other debris left 
by a hurricane, if the major part of such service is performed on a 
farm;
    (C) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in 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)(i)(D) of this section but only if such operators 
produced all of the commodity with respect to which such service is 
performed. For purposes of this paragraph (c)(1)(i)(E), any 
unincorporated group of operators shall be deemed a cooperative 
organization if the number of operators comprising such group is more 
than 20 at any time during the calendar year in which such service is 
performed;
    (F) The provisions of paragraphs (c)(1)(i)(D) and (E) of this 
section shall not be deemed to be applicable with respect to service 
performed in connection with commercial canning or commercial freezing 
or in connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; or
    (G) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    (ii) As used in this section, the term ``farm'' includes stock, 
dairy, poultry, fruit, fur-bearing animal, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses, or other similar 
structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards.
    (2) Agriculture. For purposes of paragraph (c) of this section, 
agriculture means farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities defined as 
agricultural commodities in 12 U.S.C. 1141j(g), the raising of 
livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. See 29 U.S.C. 
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities 
include, in addition to other agricultural commodities, crude gum 
(oleoresin) from a living tree, and the following products as processed 
by the original producer of the crude gum (oleoresin) from which 
derived: Gum spirits of turpentine and gum rosin. In addition, as 
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of 
turpentine made from gum (oleoresin) from a living tree and gum rosin 
means rosin remaining after the distillation of gum spirits of 
turpentine.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied

[[Page 36265]]

in section 3121(g) of the Internal Revenue Code at 26 U.S.C. 3121(g), 
or as applied in section 3(f) of the FLSA at 29 U.S.C. 203(f), pursuant 
to 29 CFR part 780, is agricultural labor or services for purposes of 
paragraph (c) of this section.
    (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, marking trees or logs to be 
cut to length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from, and between logging sites, is agricultural labor or 
services for purposes of paragraph (c) of this section.
    (5) Reforestation activities. Reforestation activities are 
predominantly manual forestry operations associated with developing, 
maintaining, or protecting forested areas, including, but not limited 
to, planting tree seedlings in specified patterns using manual tools; 
and felling, pruning, pre-commercial thinning, and removing trees and 
brush from forested areas. Reforestation activities may include some 
forest fire prevention or suppression duties, such as constructing fire 
breaks or performing prescribed burning tasks, when such duties are in 
connection with and incidental to other reforestation activities. 
Reforestation activities do not include vegetation management 
activities in and around utility, highway, railroad, or other rights-
of-way.
    (6) Pine straw activities. Operations associated with clearing the 
ground of underlying vegetation, pine cones, and debris; and raking, 
lifting, gathering, harvesting, baling, grading, and loading of pine 
straw for transport from pine forests, woodlands, pine stands, or 
plantations, is agricultural labor or services for purposes of 
paragraph (c) of this section.
    (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) Employer obligation. Except for occupations covered by 
Sec. Sec.  655.200 through 655.235, to comply with its obligation under 
Sec.  655.122(l), an employer must offer, advertise in its recruitment, 
and pay a wage that is the highest of:
    (1) The AEWR;
    (2) A prevailing wage rate, if the OFLC Administrator has approved 
a prevailing wage survey for the applicable crop activity or 
agricultural activity meeting the requirements of paragraph (c) of this 
section;
    (3) The agreed-upon collective bargaining wage;
    (4) The Federal minimum wage; or
    (5) The state minimum wage.
    (b) AEWR determinations. (1) The OFLC Administrator will determine 
the AEWR for each state and occupational classification as follows:
    (i) If an annual average hourly gross wage for the occupational 
classification in the State or region is reported by the USDA's FLS, 
that wage shall be the AEWR for the occupational classification and 
geographic area;
    (ii) If an annual average hourly gross wage for the occupational 
classification in the state or region is not reported by the FLS, the 
AEWR for the occupational classification and state shall be the 
statewide annual average hourly wage for the standard occupational 
classification (SOC) if one is reported by the OES survey;
    (iii) If only a national wage for the occupational classification 
is reported by both the FLS and OES survey for the geographic area, the 
AEWR for the geographic area shall be the national annual average 
hourly gross wage for the occupational classification from the FLS; and
    (iv) If only a national wage for the SOC is reported by the OES 
survey for the geographic area and no wage is reported for the 
occupational classification by the FLS, the AEWR for the geographic 
area shall be the national average hourly wage for the SOC from the OES 
survey.
    (2) The OFLC Administrator will publish, at least once in each 
calendar year, on a date to be determined by the OFLC Administrator, an 
update to each AEWR as a notice in the Federal Register.
    (3) If an updated AEWR for the occupational classification and 
geographic area is published in the Federal Register during the work 
contract, and the updated AEWR is higher than the highest of the 
previous AEWR, a prevailing wage for the crop activity or agricultural 
activity and geographic area, the agreed-upon collective bargaining 
wage, the Federal minimum wage, or the state minimum wage, the employer 
must pay the updated AEWR not later than 14 calendar days after the 
updated AEWR is published in the Federal Register.
    (4) If an updated AEWR for the occupational classification and 
geographic area is published in the Federal Register during the work 
contract, and the updated AEWR is lower than the rate guaranteed on the 
job order, the employer must continue to pay the rate guaranteed on the 
job order.
    (5) If the job duties on the Application for Temporary Employment 
Certification do not fall within a single occupational classification, 
the CO will determine the applicable AEWR based on the highest AEWR for 
all applicable occupational classifications.
    (c) Prevailing wage determinations. (1) The OFLC Administrator will 
issue a prevailing wage for a crop activity or agricultural activity if 
all of the following requirements are met:
    (i) The SWA submits to the Department a wage survey for the crop 
activity or agricultural activity and a Form ETA-232 providing the 
methodology of the survey;
    (ii) The survey was independently conducted by the state, including 
any state agency, state college, or state university;
    (iii) The survey covers a distinct work task or tasks performed in 
a single crop activity or agricultural activity;
    (iv) The surveyor either made a reasonable, good faith attempt to 
contact all employers employing workers performing the work task(s) in 
the crop activity or agricultural activity and geographic area surveyed 
or conducted a randomized sampling of such employers;
    (v) The survey reports the average wage of U.S. workers in the crop 
activity or agricultural activity and geographic area using the unit of 
pay used to compensate at least 50 percent of the workers whose wages 
are surveyed;
    (vi) The survey covers an appropriate geographic area based on 
available resources to conduct the survey, the size of the agricultural 
population covered by the survey, and any different wage structures in 
the crop activity or agricultural activity within the state;
    (vii) The survey includes the wages of at least 30 U.S. workers;
    (viii) The survey includes wages of U.S. workers employed by at 
least 5 employers; and

[[Page 36266]]

    (ix) The wages paid by a single employer represent no more than 25 
percent of the sampled wages.
    (2) A prevailing wage issued by the OFLC Administrator will remain 
valid for 1 year after the wage is posted on the OFLC website or until 
replaced with an adjusted prevailing wage, whichever comes first, 
except that if a prevailing wage that was guaranteed on the job order 
expires during the work contract, the employer must continue to 
guarantee at least the expired prevailing wage rate.
    (3) If a prevailing wage for the geographic area and crop activity 
or agricultural activity is adjusted during a work contract, and is 
higher than the highest of the AEWR, a previous prevailing wage for the 
geographic area and crop activity or agricultural activity, the agreed-
upon collective bargaining wage, the Federal minimum wage, or the state 
minimum wage, the employer must pay that higher prevailing wage not 
later than 14 calendar days after the Department notifies the employer 
of the new prevailing wage.
    (4) If a prevailing wage for the geographic area and crop activity 
or agricultural activity is adjusted during a work contract, and is 
lower than the rate guaranteed on the job order, the employer must 
continue to pay at least the rate guaranteed on the job order.
    (d) Appeals. (1) If the employer does not include the appropriate 
offered wage rate on the Application for Temporary Employment 
Certification, the CO will issue a Notice of Deficiency (NOD) requiring 
the employer to correct the wage rate.
    (2) If the employer disagrees with the wage rate required by the 
CO, the employer may appeal only after the Application for Temporary 
Employment Certification is denied, and the employer must follow the 
procedures in Sec.  655.171.


Sec.  655.121   Job order filing requirements.

    (a) What to file. (1) Prior to filing an Application for Temporary 
Employment Certification, the employer must submit a completed job 
order, Form ETA-790/790A, including all required addenda, to the NPC 
designated by the OFLC Administrator, and must identify it as a job 
order to be placed in connection with a future Application for 
Temporary Employment Certification for H-2A workers. The employer must 
include in its submission to the NPC a valid Federal Employer 
Identification Number (FEIN) as well as a valid place of business 
(physical location) in the United States and a means by which it may be 
contacted for employment.
    (2) Where the job order is being placed in connection with a future 
master application to be filed by an agricultural association as a 
joint employer with its employer-members, the agricultural association 
may submit a single job order to be placed in the name of the 
agricultural association on behalf of all employers named on the job 
order and the future Application for Temporary Employment 
Certification.
    (3) Where the job order is being placed in connection with a future 
application to be jointly filed by two or more employers seeking to 
jointly employ a worker(s) (but is not a master application), any one 
of the employers may submit a single job order to be placed on behalf 
of all joint employers named on the job order and the future 
Application for Temporary Employment Certification.
    (4) The job order must satisfy the requirements for agricultural 
clearance orders set forth in 20 CFR part 653, subpart F, and the 
requirements set forth in Sec.  655.122.
    (b) Timeliness. The employer must submit a completed job order to 
the NPC no more than 75 calendar days and no fewer than 60 calendar 
days before the employer's first date of need.
    (c) Location and method of filing. The employer must submit a 
completed job order to the NPC using the electronic method(s) 
designated by the OFLC Administrator. The NPC will return without 
review any job order submitted using a method other than the designated 
electronic method(s), unless the employer submits the job order by mail 
as set forth in Sec.  655.130(c)(2) or requests a reasonable 
accommodation as set forth in Sec.  655.130(c)(3).
    (d) Original signature. The job order must contain an electronic 
(scanned) copy of the original signature of the employer or a 
verifiable electronic signature method, as directed by the OFLC 
Administrator. If submitted by mail, the Application for Temporary 
Employment Certification must bear the original signature of the 
employer and, if applicable, the employer's authorized agent or 
attorney.
    (e) SWA review. (1) Upon receipt of the job order, the NPC will 
transmit an electronic copy of the job order to the SWA serving the 
area of intended employment for intrastate clearance. If the job 
opportunity is located in more than one state within the same area of 
intended employment, the NPC will transmit the job order to any one of 
the SWAs having jurisdiction over the place(s) of employment.
    (2) The SWA will review the contents of the job order for 
compliance with the requirements set forth in 20 CFR part 653, subpart 
F, and this subpart, and will work with the employer to address any 
noted deficiencies. The SWA must notify the employer in writing of any 
deficiencies in its job order not later than 7 calendar days from the 
date the SWA received the job order. The SWA notification will state 
the reason(s) the job order fails to meet the applicable requirements, 
state the modification(s) needed for the SWA to accept the job order, 
and offer the employer an opportunity to respond to the deficiencies 
within 5 calendar days from the date the notification was issued by the 
SWA. Upon receipt of a response, the SWA will review the response and 
notify the employer in writing of its acceptance or denial of the job 
order within 3 calendar days from the date the response was received by 
the SWA. If the employer's response is not received within 12 calendar 
days after the notification was issued, the SWA will notify the 
employer in writing that the job order is deemed abandoned, and the 
employer will be required to submit a new job order to the NPC meeting 
the requirements of this section. Any notice sent by the SWA to an 
employer that requires a response must be sent using methods to assure 
next day delivery, including email or other electronic methods, with a 
copy to the employer's representative, as applicable.
    (3) If, after providing responses to the deficiencies noted by the 
SWA, the employer is not able to resolve the deficiencies with the SWA, 
the employer may file an Application for Temporary Employment 
Certification pursuant to the emergency filing procedures contained in 
Sec.  655.134, with a statement describing the nature of the dispute 
and demonstrating compliance with its requirements under this section. 
In the event the SWA does not respond within the stated timelines, the 
employer may use the emergency filing procedures noted above. The CO 
will process the emergency Application for Temporary Employment 
Certification in a manner consistent with the provisions set forth in 
Sec. Sec.  655.140 through 655.145 and make a determination on the 
Application for Temporary Employment Certification in accordance with 
Sec. Sec.  655.160 through 655.167.
    (f) Intrastate and interstate clearance. Upon its acceptance of the 
job order, the SWA must promptly place the job order in intrastate 
clearance, commence recruitment of U.S. workers, and notify the NPC 
that the approved job order must be placed into interstate clearance. 
Upon receipt of the SWA notification, the NPC will promptly transmit an 
electronic copy of the approved job

[[Page 36267]]

order for interstate clearance to any other SWAs in a manner consistent 
with the procedures set forth in Sec.  655.150.
    (g) Duration of job order posting. The SWA must keep the job order 
on its active file until the end of the recruitment period, as set 
forth in Sec.  655.135(d), and must refer each U.S. worker who applies 
(or on whose behalf an application is made) for the job opportunity.
    (h) Modifications to the job order. (1) Prior to the issuance of a 
final determination on an Application for Temporary Employment 
Certification, the CO may require modifications to the job order when 
the CO determines that the offer of employment does not contain all the 
minimum benefits, wages, and working condition provisions. Such 
modifications must be made, or certification will be denied pursuant to 
Sec.  655.164.
    (2) The employer may request a modification of the job order, Form 
ETA-790/790A, prior to the submission of an Application for Temporary 
Employment Certification. However, the employer may not reject 
referrals against the job order based upon a failure on the part of the 
applicant to meet the amended criteria, if such referral was made prior 
to the amendment of the job order. The employer may not request a 
modification of the job order on or after the date of filing an 
Application for Temporary Employment Certification.
    (3) The employer must provide all workers recruited in connection 
with the Application for Temporary Employment Certification with a copy 
of the modified job order or work contract which reflects the amended 
terms and conditions, on the first day of employment, in accordance 
with Sec.  655.122(q), or as soon as practicable, whichever comes 
first.


Sec.  655.122   Contents of job offers.

    (a) Prohibition against preferential treatment of H-2A workers. The 
employer's job offer must offer to U.S. workers no less than the same 
benefits, wages, and working conditions that the employer is offering, 
intends to offer, or will provide to H-2A workers. Job offers may not 
impose on U.S. workers any restrictions or obligations that will not be 
imposed on the employer's H-2A workers. This does not relieve the 
employer from providing to H-2A workers at least the same level of 
minimum benefits, wages, and working conditions that must be offered to 
U.S. workers consistent with this section.
    (b) Job qualifications and requirements. Each job qualification and 
requirement listed in the job offer must be bona fide and consistent 
with the normal and accepted qualifications required by employers that 
do not use H-2A workers in the same or comparable occupations and 
crops. Either the CO or the SWA may require the employer to submit 
documentation to substantiate the appropriateness of any job 
qualification specified in the job offer.
    (c) Minimum benefits, wages, and working conditions. Every job 
order accompanying an Application for Temporary Employment 
Certification must include each of the minimum benefit, wage, and 
working condition provisions listed in paragraphs (d) through (q) of 
this section.
    (d) Housing--(1) Obligation to provide housing. The employer must 
provide housing at no cost to the H-2A workers and those workers in 
corresponding employment who are not reasonably able to return to their 
residence within the same day. Housing must be provided through one of 
the following means:
    (i) Employer-provided housing. Employer-provided housing must meet 
the full set of the DOL Occupational Safety and Health Administration 
(OSHA) standards set forth at 29 CFR 1910.142, or the full set of 
standards at Sec. Sec.  654.404 through 654.417 of this chapter, 
whichever are applicable under Sec.  654.401 of this chapter. Requests 
by employers whose housing does not meet the applicable standards for 
conditional access to the interstate clearance system will be processed 
under the procedures set forth at Sec.  654.403 of this chapter; or
    (ii) Rental and/or public accommodations. Rental or public 
accommodations or other substantially similar class of habitation must 
meet local standards for such housing. In the absence of applicable 
local standards addressing those health or safety concerns otherwise 
addressed by the DOL OSHA standards at 29 CFR 1910.142(b)(2) (square 
footage per occupant); Sec.  1910.142(b)(3) (provision of beds); Sec.  
1910.142(b)(9) (requirement for rooms where wookers cook, live, and 
sleep); Sec.  1910.142(b)(11) (heating, cooking, and water heating 
equipment installed properly); Sec.  1910.142(c) (water supply); Sec.  
1910.142(f) (laundry, handwashing, and bathing facilities); and Sec.  
1910.142(j) (insect and rodent control), state standards addressing 
such concerns will apply. In the absence of applicable local or state 
standards addressing such concerns, the relevant DOL OSHA standards at 
29 CFR 1910.142(b)(2), (3), (9), and (11), (f), and (j) will apply. Any 
charges for rental housing must be paid directly by the employer to the 
owner or operator of the housing.
    (2) Standards for range housing. An employer employing workers 
under Sec. Sec.  655.200 through 655.235 must comply with the housing 
requirements in Sec. Sec.  655.230 and 655.235.
    (3) Deposit charges. Charges in the form of deposits for bedding or 
other similar incidentals related to housing must not be levied upon 
workers. However, employers may require workers to reimburse them for 
damage caused to housing by the individual worker(s) found to have been 
responsible for damage that is not the result of normal wear and tear 
related to habitation.
    (4) Charges for public housing. If public housing provided for 
migrant agricultural workers under the auspices of a local, county, or 
state government is secured by the employer, the employer must pay any 
charges normally required for use of the public housing units directly 
to the housing's management.
    (5) Family housing. When it is the prevailing practice in the area 
of intended employment and the occupation to provide family housing, it 
must be provided to workers with families who request it.
    (6) Compliance with applicable standards--(i) Timeframe. The 
determination as to whether housing provided to workers under this 
section meets the applicable standards must be made not later than 30 
calendar days before the first date of need identified in the 
Application for Temporary Employment Certification.
    (ii) Certification of employer-provided housing. (A) Except as 
provided under paragraph (d)(6)(ii)(B) of this section, the SWA (or 
another local, state, or Federal authority acting on behalf of the SWA) 
with jurisdiction over the location of the employer-provided housing 
must inspect and provide to the employer and CO documentation 
certifying that the employer-provided housing is sufficient to 
accommodate the number of workers requested and meets all applicable 
standards under paragraph (d)(1)(i) of this section. The inspector must 
indicate the validity period of the housing certification. Where 
appropriate, and only if the SWA has notified the Department that the 
SWA lacks resources to conduct timely, preoccupancy inspections of all 
employer-provided housing, the inspector may certify the employer-
provided housing for a period of up to 24 months.
    (B) Where the employer-provided housing has been previously 
inspected and certified under paragraph (d)(6)(ii)(A) of this section, 
the employer may self-inspect and -certify the

[[Page 36268]]

employer-provided housing. To self-inspect and -certify the employer-
provided housing under this paragraph (d)(6)(ii)(B), the employer must 
inspect the housing and submit to the SWA and the CO a copy of the 
currently valid certification for the employer-provided housing and a 
written statement, signed and dated by the employer, attesting that the 
employer has inspected the housing, the housing is available and 
sufficient to accommodate the number of workers being requested, and 
continues to meet all of the applicable standards under paragraph 
(d)(1)(i) of this section.
    (iii) Certification of rental and/or public accommodations. The 
employer must provide to the CO a written statement, signed and dated, 
that attests that the accommodations are compliant with the applicable 
standards under paragraph (d)(1)(ii) of this section and are sufficient 
to accommodate the number of workers requested. This statement must 
include the number of bed(s) and room(s) that the employer will secure 
for the worker(s). If applicable local or state rental or public 
accommodation standards under paragraph (d)(1)(ii) of this section 
require an inspection, the employer also must submit a copy of the 
inspection report or other official documentation from the relevant 
authority. If the applicable standards do not require an inspection, 
the employer's written statement must confirm that no inspection is 
required.
    (iv) Certified housing that becomes unavailable. If after a request 
to certify housing, such housing becomes unavailable for reasons 
outside the employer's control, the employer may substitute other 
rental or public accommodation housing that is in compliance with the 
local, state, or Federal housing standards applicable under this 
section. The employer must promptly notify the SWA in writing of the 
change in accommodations and the reason(s) for such change and provide 
the SWA evidence of compliance with the applicable local, state, or 
Federal safety and health standards, in accordance with the 
requirements of this section. If, upon inspection, the SWA determines 
the substituted housing does not meet the applicable housing standards, 
the SWA must promptly provide written notification to the employer to 
cure the deficiencies with a copy to the CO. An employer's failure to 
provide housing that complies with the applicable standards will result 
in either a denial of a pending Application for Temporary Employment 
Certification or revocation of the temporary agricultural labor 
certification granted under this subpart.
    (e) Workers' compensation. (1) The employer must provide workers' 
compensation insurance coverage in compliance with state law covering 
injury and disease arising out of and in the course of the worker's 
employment. If the type of employment for which the certification is 
sought is not covered by or is exempt from the state's workers' 
compensation law, the employer must provide, at no cost to the worker, 
insurance covering injury and disease arising out of and in the course 
of the worker's employment that will provide benefits at least equal to 
those provided under the state workers' compensation law for other 
comparable employment.
    (2) Prior to issuance of the temporary agricultural labor 
certification, the employer must provide the CO with proof of workers' 
compensation insurance coverage meeting the requirements of this 
paragraph (e), including the name of the insurance carrier, the 
insurance policy number, and proof of insurance for the entire period 
of employment, or, if appropriate, proof of state law coverage.
    (f) Employer-provided items. The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required to perform the duties assigned.
    (g) Meals. The employer either must provide each worker with three 
meals a day or must furnish free and convenient cooking and kitchen 
facilities to the workers that will enable the workers to prepare their 
own meals. Where the employer provides the meals, the job offer must 
state the charge, if any, to the worker for such meals. The amount of 
meal charges is governed by Sec.  655.173.
    (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 departed to the employer's place of 
employment. For an H-2A worker who must obtain a visa departing to work 
for the employer from a location outside of the United States, ``the 
place from which the worker departed'' will mean the appropriate U.S. 
Consulate or Embassy. 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 place of employment. 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 place of employment to such subsequent employer's 
place of employment, 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 place 
of employment to such subsequent employer's place of employment, 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 its obligation to hire U.S. 
workers who apply or are referred after the employer's date of need as 
described in Sec.  655.135(d).
    (3) Transportation between living quarters and place of employment. 
The employer must provide transportation between housing provided or 
secured by the employer and the employer's place of employment at no 
cost to the worker.

[[Page 36269]]

    (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, 29 CFR 500.104 through 
500.105, and 29 CFR 500.120 through 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 it must have property damage 
insurance.
    (i) Three-fourths guarantee--(1) Offer to worker. The employer must 
guarantee to offer the worker employment for a total number of work 
hours equal to at least three-fourths of the workdays of the total 
period beginning with the first workday after the arrival of the worker 
at the place of employment or the advertised contractual first date of 
need, whichever is later, and ending on the expiration date specified 
in the work contract or in its extensions, if any.
    (i) For purposes of this paragraph (i)(1) a workday means the 
number of hours in a workday as stated in the job order and excludes 
the worker's Sabbath and Federal holidays. The employer must offer a 
total number of hours to ensure the provision of sufficient work to 
reach the three-fourths guarantee. The work hours must be offered 
during the work period specified in the work contract, or during any 
modified work contract period to which the worker and employer have 
mutually agreed and that has been approved by the CO.
    (ii) The work contract period can be shortened by agreement of the 
parties only with the approval of the CO. In the event the worker 
begins working later than the specified beginning date of the contract, 
the guarantee period begins with the first workday after the arrival of 
the worker at the place of employment, and continues until the last day 
during which the work contract and all extensions thereof are in 
effect.
    (iii) Therefore, if, for example, a work contract is for a 10-week 
period, during which a normal workweek is specified as 6 days a week, 8 
hours per day, the worker would have to be guaranteed employment for at 
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent = 
360). If a Federal holiday occurred during the 10-week span, the 8 
hours would be deducted from the total hours for the work contract, 
before the guarantee is calculated. Continuing with the above example, 
the worker would have to be guaranteed employment for 354 hours (10 
weeks x 48 hours/week = (480 hours - 8 hours (Federal holiday)) x 75 
percent = 354 hours).
    (iv) A worker may be offered more than the specified hours of work 
on a single workday. For purposes of meeting the guarantee, however, 
the worker will not be required to work for more than the number of 
hours specified in the job order for a workday, or on the worker's 
Sabbath or Federal holidays. However, all hours of work actually 
performed may be counted by the employer in calculating whether the 
period of guaranteed employment has been met. If during the total work 
contract period the employer affords the U.S. or H-2A worker less 
employment than that required under this paragraph (i)(1), the employer 
must pay such worker the amount the worker would have earned had the 
worker, in fact, worked for the guaranteed number of days. An employer 
will not be considered to have met the work guarantee if the employer 
has merely offered work on three-fourths of the workdays if each 
workday did not consist of a full number of hours of work time as 
specified in the job order.
    (2) Guarantee for piece rate paid worker. If the worker is paid on 
a piece rate basis, the employer must use the worker's average hourly 
piece rate earnings or the required hourly wage rate, whichever is 
higher, to calculate the amount due under the guarantee.
    (3) Failure to work. Any hours the worker fails to work, up to a 
maximum of the number of hours specified in the job order for a 
workday, when the worker has been offered an opportunity to work in 
accordance with paragraph (i)(1) of this section, and all hours of work 
actually performed (including voluntary work over 8 hours in a workday 
or on the worker's Sabbath or Federal holidays), may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met. An employer seeking to calculate whether the number of hours 
has been met must maintain the payroll records in accordance with this 
subpart.
    (4) Displaced H-2A worker. The employer is not liable for payment 
of the three-fourths guarantee to an H-2A worker whom the CO certifies 
is displaced because of the employer's compliance with its obligation 
to hire U.S. workers who apply or are referred after the employer's 
date of need described in Sec.  655.135(d) with respect to referrals 
made during that period.
    (5) Obligation to provide housing and meals. Notwithstanding the 
three-fourths guarantee contained in this section, employers are 
obligated to provide housing and meals in accordance with paragraphs 
(d) and (g) of this section for each day of the contract period up 
until the day the workers depart for other H-2A employment, depart to 
the place outside of the United States from which the worker departed, 
or, if the worker voluntarily abandons employment or is terminated for 
cause, the day of such abandonment or termination.
    (j) Earnings records. (1) An employer must keep accurate and 
adequate records with respect to each worker's earnings, including, but 
not limited to, field tally records, supporting summary payroll 
records, and records showing the nature and amount of the work 
performed; the number of hours of work offered each day by the employer 
(broken out by hours offered both in accordance with and over and above 
the three-fourths guarantee at paragraph (i)(3) of this section); the 
hours actually worked each day by the worker; the time the worker began 
and ended each workday; the rate of pay (both piece rate and hourly, if 
applicable); the worker's earnings per pay period; the worker's 
permanent address; and the amount of and reasons for any and all 
deductions taken from the worker's wages. In the case of H-2A workers, 
the permanent address must be the worker's permanent address in the 
worker's home country.
    (2) Each employer must keep the records required by paragraph (j) 
of this section, including field tally records and supporting summary 
payroll records, safe and accessible at the place or places of 
employment, or at one or more established central recordkeeping offices 
where such records are customarily maintained. All records must be 
available for inspection and transcription by the Secretary or a duly 
authorized and designated representative, and by the worker and 
representatives designated by the worker as evidenced by appropriate 
documentation (an Entry of Appearance as Attorney or Representative, 
Form G-28, signed by the worker, or an affidavit signed by the worker 
confirming such representation). Where the records are maintained at a 
central recordkeeping office, other than in the place or places of 
employment, such records must be made available for inspection and 
copying within 72 hours following notice from the Secretary, or a duly 
authorized and designated representative, and by the worker and 
designated representatives as described in this paragraph (j)(2).
    (3) To assist in determining whether the three-fourths guarantee in 
paragraph (i) of this section has been met, if the

[[Page 36270]]

number of hours worked by the worker on a day during the work contract 
period is less than the number of hours offered, as specified in the 
job offer, the records must state the reason or reasons therefore.
    (4) The employer must retain the records for not less than 3 years 
after the date of the certification.
    (k) Hours and earnings statements. The employer must furnish to the 
worker on or before each payday in one or more written statements the 
following information:
    (1) The worker's total earnings for the pay period;
    (2) The worker's hourly rate and/or piece rate of pay;
    (3) The hours of employment offered to the worker (showing offers 
in accordance with the three-fourths guarantee as determined in 
paragraph (i) of this section, separate from any hours offered over and 
above the guarantee);
    (4) The hours actually worked by the worker;
    (5) An itemization of all deductions made from the worker's wages;
    (6) If piece rates are used, the units produced daily;
    (7) Beginning and ending dates of the pay period; and
    (8) The employer's name, address, and FEIN.
    (l) Rates of pay. Except for occupations covered by Sec. Sec.  
655.200 through 655.235, the employer must pay the worker at least the 
AEWR, a prevailing wage, if the OFLC Administrator has approved a 
prevailing wage survey for the applicable crop activity or agricultural 
activity meeting the requirements of Sec.  655.120(c), the agreed-upon 
collective bargaining rate, the Federal minimum wage, or the state 
minimum wage rate, whichever is highest, for every hour or portion 
thereof worked during a pay period.
    (1) The offered wage may not be based on commission, bonuses, or 
other incentives, unless the employer guarantees a wage paid on a 
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR, 
prevailing wage rate, the Federal minimum wage, the state minimum wage, 
or any agreed-upon collective bargaining rate, whichever is highest; or
    (2) If the worker is paid on a piece rate basis and at the end of 
the pay period the piece rate does not result in average hourly piece 
rate earnings during the pay period at least equal to the amount the 
worker would have earned had the worker been paid at the appropriate 
hourly rate:
    (i) The worker's pay must be supplemented at that time so that the 
worker's earnings are at least as much as the worker would have earned 
during the pay period if the worker had instead been paid at the 
appropriate hourly wage rate for each hour worked;
    (ii) The piece rate must be no less than the prevailing piece rate 
for the crop activity or agricultural activity in the geographic area 
if one has been issued by the OFLC Administrator; and
    (iii) If the employer who pays by the piece rate requires one or 
more minimum productivity standards of workers as a condition of job 
retention, such standards must be specified in the job offer and be no 
more than those required by the employer in 1977, unless the OFLC 
Administrator approves a higher minimum, or, if the employer first 
applied for temporary agricultural labor certification after 1977, such 
standards must be no more than those normally required (at the time of 
the first Application for Temporary Employment Certification) by other 
employers for the activity in the area of intended employment.
    (m) Frequency of pay. The employer must state in the job offer the 
frequency with which the worker will be paid, which must be at least 
twice monthly or according to the prevailing practice in the area of 
intended employment, whichever is more frequent. Employers must pay 
wages when due.
    (n) Abandonment of employment or termination for cause. If a worker 
voluntarily abandons employment before the end of the contract period, 
or is terminated for cause, and the employer notifies the NPC, and DHS 
in the case of an H-2A worker, in writing or by any other method 
specified by the Department 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 to work at the regularly scheduled time for 5 consecutive 
working days without the consent of the employer. The employer is 
required to maintain records of such notification to the NPC, and DHS 
in the case of an H-2A worker, for not less than 3 years from the date 
of the certification.
    (o) Contract impossibility. If, before the expiration date 
specified in the work contract, the services of the worker are no 
longer required for reasons beyond the control of the employer due to 
fire, weather, or other Act of God that makes the fulfillment of the 
contract impossible, the employer may terminate the work contract. 
Whether such an event constitutes a contract impossibility will be 
determined by the CO. In the event of such termination of a contract, 
the employer must fulfill a three-fourths guarantee for the time that 
has elapsed from the start of the work contract to the time of its 
termination, as described in paragraph (i)(1) of this section. The 
employer must make efforts to transfer the worker to other comparable 
employment acceptable to the worker, consistent with existing 
immigration law, as applicable. If such transfer is not affected, the 
employer must:
    (1) Return the worker, at the employer's expense, to the place from 
which the worker (disregarding intervening employment) departed 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

[[Page 36271]]

included in computing wages. The wage requirements of Sec.  655.120 
will not be met where undisclosed or unauthorized deductions, rebates, 
or refunds reduce the wage payment made to the employee below the 
minimum amounts required under this subpart, or where the employee 
fails to receive such amounts free and clear because the employee kicks 
back directly or indirectly to the employer or to another person for 
the employer's benefit the whole or part of the wage delivered to the 
employee. The principles applied in determining whether deductions are 
reasonable and payments are received free and clear, and the 
permissibility of deductions for payments to third persons are 
explained in more detail in 29 CFR part 531.
    (q) Disclosure of work contract. The employer must provide to an H-
2A worker not later than the time at which the worker applies for the 
visa, or to a worker in corresponding employment not later than on the 
day work commences, a copy of the work contract between the employer 
and the worker in a language understood by the worker as necessary or 
reasonable. For an H-2A worker going from an H-2A employer to a 
subsequent H-2A employer, the copy must be provided not later than the 
time an offer of employment is made by the subsequent H-2A employer. 
For an H-2A worker that does not require a visa for entry, the copy 
must be provided not later than the time of an offer of employment. At 
a minimum, the work contract must contain all of the provisions 
required by this section. In the absence of a separate, written work 
contract entered into between the employer and the worker, the work 
contract at a minimum will be the terms of the job order and any 
obligations required under 8 U.S.C. 1188, 28 CFR part 501, or this 
subpart.


Sec.  655.123  Positive recruitment of U.S. workers.

    (a) Employer obligations. Employers must conduct recruitment of 
U.S. workers within a multi-state region of traditional or expected 
labor supply for the place(s) of employment as designated by the OFLC 
Administrator under Sec.  655.154(d) to ensure that there are not able, 
willing, and qualified U.S. workers who will be available for the labor 
or services listed in the Application for Temporary Employment 
Certification. Positive recruitment under this section is in addition 
to, and must be conducted within the same time period as, circulation 
of the job order through the SWA interstate clearance system.
    (b) Positive recruitment steps. Upon acceptance of the job order 
and prior to filing an Application for Temporary Employment 
Certification, the employer may commence the required positive 
recruitment, as set forth in Sec. Sec.  655.151 through 655.154.
    (c) Positive recruitment period. Unless otherwise instructed by the 
CO, if the employer chooses to engage in pre-filing positive 
recruitment, the employer must begin the recruitment required by this 
section within 7 calendar days of the date on which the job order was 
accepted. The positive recruitment period will terminate on the date 
specified in Sec.  655.158.
    (d) Interviewing U.S. workers. Employers that wish to require 
interviews must conduct those interviews by phone or provide a 
procedure for the interviews to be conducted in the location where the 
U.S. worker is being recruited so that the worker incurs little or no 
cost due to the interview. Employers cannot provide potential H-2A 
workers with more favorable treatment than U.S. workers with respect to 
the requirement for, and conduct of, interviews.
    (e) Qualified and available U.S. workers. The employer must 
consider all U.S. applicants for the job opportunity until the end of 
the recruitment period, as set forth in Sec.  655.135(d). The employer 
must accept and hire all applicants who are qualified and who will be 
available for the job opportunity. U.S. applicants can be rejected only 
for lawful, job-related reasons, and those not rejected on this basis 
will be hired.
    (f) Pre-filing recruitment report. No more than 50 calendar days 
before the date of need and where positive recruitment efforts have 
commenced, the employer may prepare a recruitment report, consistent 
with the requirements set forth in Sec.  655.156, for submission with 
the Application for Temporary Employment Certification.


Sec.  655.124  Withdrawal of a job order.

    (a) The employer may withdraw a job order if the employer no longer 
plans to file an Application for Temporary Employment Certification. 
However, the employer is still obligated to comply with the terms and 
conditions of employment contained in the job order with respect to all 
workers recruited in connection with that job order.
    (b) To request withdrawal, the employer must submit a request in 
writing to the NPC identifying the job order and stating the reason(s) 
for the withdrawal.

Application for Temporary Employment Certification Filing Procedures


Sec.  655.130  Application filing requirements.

    All employers who desire to hire H-2A foreign agricultural workers 
must apply for a certification from the Secretary by filing an 
Application for Temporary Employment Certification with the NPC 
designated by the OFLC Administrator. The following section provides 
the procedures employers must follow when filing.
    (a) What to file. An employer that desires to apply for temporary 
agricultural labor certification of one or more nonimmigrant workers 
must file a completed Application for Temporary Employment 
Certification, all supporting documentation and information required at 
the time of filing under Sec. Sec.  655.131 through 655.135, and, 
unless a specific exemption applies, a copy of Form ETA-790/790A, 
submitted as set forth in Sec.  655.121(a). The Application for 
Temporary Employment Certification must include a valid FEIN as well as 
a valid place of business (physical location) in the United States and 
a means by which it may be contacted for employment.
    (b) Timeliness. A completed Application for Temporary Employment 
Certification must be filed no less than 45 calendar days before the 
employer's first date of need.
    (c) Location and method of filing--(1) E-filing. The employer must 
file the Application for Temporary Employment Certification and all 
required supporting documentation with the NPC using the electronic 
method(s) designated by the OFLC Administrator. The NPC will return 
without review any application submitted using a method other than the 
designated electronic method(s), unless the employer submits the 
application in accordance with paragraph (c)(2) or (3) of this section.
    (2) Filing by mail. Employers that lack adequate access to 
electronic filing may file the application by mail. The employer must 
indicate that it is filing by mail due to lack of adequate access to 
electronic filing. The OFLC Administrator will identify the address to 
which such filing must be mailed by public notice(s) and by 
instructions on DOL's website.
    (3) Reasonable accommodation. Employers who are unable or limited 
in their ability to use and/or access the electronic Application for 
Temporary Employment Certification, or any other form or documentation 
required under this subpart, as a result of a disability may request a 
reasonable accommodation to enable them to

[[Page 36272]]

participate in the H-2A program. An employer in need of such an 
accommodation may contact the NPC in writing to the address designated 
in a notice published in the Federal Register or 202-513-7350 (this is 
not a toll-free number), or for individuals with hearing or speech 
impairments, 1-877-889-5627 (this is the TTY toll-free Federal 
Information Relay Service number) for assistance in using, accessing, 
or filing any form or documentation required under this subpart, 
including the Application for Temporary Employment Certification. All 
requests for an accommodation should include the employer's name, a 
detailed description of the accommodation needed, and the preferred 
method of contact. The NPC will respond to the request for a reasonable 
accommodation within 10 business days of the date of receipt.
    (d) Original signature. The Application for Temporary Employment 
Certification must contain an electronic (scanned) copy of the original 
signature of the employer (and that of the employer's authorized 
attorney or agent if the employer is represented by an attorney or 
agent) or a verifiable electronic signature method, as directed by the 
OFLC Administrator. If submitted by mail, the Application for Temporary 
Employment Certification must bear the original signature of the 
employer and, if applicable, the employer's authorized attorney or 
agent.
    (e) Scope of applications. Except as otherwise permitted by this 
subpart, an Application for Temporary Employment Certification must be 
limited to places of employment within a single area of intended 
employment. An employer may file only one Application for Temporary 
Employment Certification covering the same area of intended employment, 
period of employment, and occupation or comparable work to be 
performed.
    (f) Staggered entry of H-2A workers. (1) If a petition for H-2A 
workers filed by an employer, including a joint employer filing an 
Application for Temporary Employment Certification under Sec.  
655.131(b), is granted, the employer may bring those workers described 
in the petition, who are otherwise admissible, into the United States 
at any time up to 120 days from the first date of need stated on the 
certified Application for Temporary Employment Certification, including 
any approved modifications, without filing another H-2A petition with 
DHS.
    (2) In order to comply with the provision in paragraph (f)(1) of 
this section, the employer must satisfy the following obligations:
    (i) Notice. (A) At any time after the Application for Temporary 
Employment Certification is filed through 14 calendar days after the 
first date of need, as indicated in the certified Application for 
Temporary Employment Certification, notify the NPC electronically, 
unless the employer was permitted to file by mail as set forth in Sec.  
655.130(c), of its intent to stagger the entry of its H-2A workers into 
the United States, and the latest date on which such workers will 
enter.
    (B) An agricultural association filing as a joint employer with its 
members must provide a single notice on behalf of all its members duly 
named on the application and must provide the latest date on which any 
of its members expects H-2A workers to enter the United States.
    (ii) Recruitment. Comply with the duty to accept and hire U.S. 
worker applicants set forth in Sec.  655.135(d)(2).
    (iii) Records. Continue to maintain the recruitment report until 
the end of the additional recruitment period, as set forth in Sec.  
655.135(d)(2), and retain all recruitment documentation for a period of 
3 years from the date of certification, consistent with the document 
retention requirements under Sec.  655.167. The updated recruitment 
report and recruitment documentation is not to be submitted to the 
Department, unless requested by the Department or as set forth in Sec.  
655.156.
    (3) Once the NPC receives the notice described in paragraph 
(f)(2)(i) of this section, it will inform all SWAs that received a copy 
of the employer's job order to extend the period of recruitment by the 
time period provided in the employer's written notice, if that period 
exceeds 30 days. In accordance with Sec.  655.121(g), the SWA(s) will 
keep the employer's job order on its active file and refer any U.S. 
worker who applies for the job opportunity through the end of the new 
recruitment period.
    (g) Information dissemination. Information received in the course 
of processing Applications for Temporary Employment Certification or in 
the course of conducting program integrity measures such as audits may 
be forwarded from OFLC to WHD or any other Federal agency, as 
appropriate, for investigative or enforcement purposes.


Sec.  655.131  Agricultural association and joint employer filing 
requirements.

    (a) Agricultural association filing requirements. If an 
agricultural association files an Application for Temporary Employment 
Certification, in addition to complying with all the assurances, 
guarantees, and other requirements contained in this subpart and in 
part 653, subpart F, of this chapter, the following requirements also 
apply.
    (1) The agricultural association must identify in the Application 
for Temporary Employment Certification for H-2A workers whether it is 
filing as a sole employer, a joint employer, or an agent. The 
agricultural association must retain documentation substantiating the 
employer or agency status of the agricultural association and be 
prepared to submit such documentation in response to a NOD from the CO 
prior to issuing a Final Determination, or in the event of an audit or 
investigation.
    (2) The agricultural association may file a master application on 
behalf of its employer-members. The master application is available 
only when the agricultural association is filing as a joint employer. 
An agricultural association may submit a master application covering 
the same occupation or comparable work available with a number of its 
employer-members in multiple areas of intended employment, as long as 
the first dates of need for each employer-member named in the 
Application for Temporary Employment Certification are separated by no 
more than 14 calendar days and all places of employment are located in 
no more than two contiguous states. The agricultural association must 
identify in the Application for Temporary Employment Certification by 
name, address, total number of workers needed, period of employment, 
first date of need, and the crops and agricultural work to be 
performed, each employer-member that will employ H-2A workers.
    (3) An agricultural association filing a master application as a 
joint employer may sign the Application for Temporary Employment 
Certification on behalf of its employer-members. An agricultural 
association filing as an agent may not sign on behalf of its employer-
members but must obtain each employer-member's signature on the 
Application for Temporary Employment Certification prior to filing.
    (4) If the application is approved, the agricultural association, 
as appropriate, will receive a Final Determination certifying the 
Application for Temporary Employment Certification in accordance with 
the procedures contained in Sec.  655.162.
    (b) Joint employer filing requirements. (1) If an employer files an 
Application for Temporary Employment Certification on behalf of one or 
more other employers seeking to jointly employ H-2A workers in the same 
area of intended employment, in addition to complying with all the 
assurances,

[[Page 36273]]

guarantees, and other requirements contained in this subpart and in 
part 653, subpart F, of this chapter, the following requirements also 
apply:
    (i) The Application for Temporary Employment Certification must 
identify the name, address, and the crop(s) and agricultural work to be 
performed for each employer seeking to jointly employ the H-2A workers;
    (ii) All H-2A workers must work for each employer for at least 1 
workday, or its equivalent, each workweek; and
    (iii) The Application for Temporary Employment Certification must 
be signed and dated by each joint employer named in the application, in 
accordance with the procedures contained in Sec.  655.130(e). By 
signing the Application for Temporary Employment Certification, each 
joint employer attests to the conditions of employment required of an 
employer participating in the H-2A program, and assumes full 
responsibility for the accuracy of the representations made in the 
Application for Temporary Employment Certification and for compliance 
with all of the assurances and obligations of an employer in the H-2A 
program at all times during the period of employment on the Application 
for Temporary Employment Certification; and
    (2) If the application is approved, the joint employer who submits 
the Application for Temporary Employment Certification will receive, on 
behalf of the other joint employers, a Final Determination certifying 
the Application for Temporary Employment Certification in accordance 
with the procedures contained in Sec.  655.162.


Sec.  655.132  H-2A labor contractor filing requirements.

    An H-2ALC must meet all of the requirements of the definition of 
employer in Sec.  655.103(b) and comply with all the assurances, 
guarantees, and other requirements contained in this part, including 
Sec.  655.135, and in part 653, subpart F, of this chapter. The H-2ALC 
must include in or with its Application for Temporary Employment 
Certification at the time of filing the following:
    (a) The name and location of each fixed-site agricultural business 
to which the H-2ALC expects to provide H-2A workers, the expected 
beginning and ending dates when the H-2ALC will be providing the 
workers to each fixed-site, and a description of the crops and 
activities the workers are expected to perform at such fixed-site.
    (b) A copy of the Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of 
Registration, if required under MSPA at 29 U.S.C. 1801 et seq., 
identifying the specific farm labor contracting activities the H-2ALC 
is authorized to perform as an FLC.
    (c) Proof of its ability to discharge financial obligations under 
the H-2A program by including with the Application for Temporary 
Employment Certification an original surety bond meeting the following 
requirements.
    (1) Requirements for the bond. The bond must be payable to the 
Administrator, Wage and Hour Division, United States Department of 
Labor, 200 Constitution Avenue NW, Room S-3502, Washington, DC 20210. 
Consistent with the enforcement procedure set forth at 29 CFR 501.9(b), 
the bond must obligate the surety to pay any sums to the WHD 
Administrator for wages and benefits, including any assessment of 
interest, owed to an H-2A worker or to a worker engaged in 
corresponding employment, or to a U.S. worker improperly rejected or 
improperly laid off or displaced, based on a final decision finding a 
violation or violations of this part or 29 CFR part 501 relating to the 
labor certification the bond is intended to cover. The aggregate 
liability of the surety shall not exceed the face amount of the bond. 
The bond must remain in full force and effect for all liabilities 
incurred during the period of the labor certification, including any 
extension thereof. The bond may not be cancelled absent a finding by 
the WHD Administrator that the labor certification has been revoked.
    (2) Amount of the bond. Unless a higher amount is sought by the WHD 
Administrator pursuant to 29 CFR 501.9(a), the required bond amount is 
the base amount adjusted to reflect the average AEWR, as defined in 
Sec.  655.103, and any employment of 150 or more workers.
    (i) The base amounts are $5,000 for a labor certification for which 
an H-2ALC employs fewer than 25 workers; $10,000 for a labor 
certification for which an H-2ALC employs 25 to 49 workers; $20,000 for 
a labor certification for which an H-2ALC employs 50 to 74 workers; 
$50,000 for a labor certification for which an H-2ALC employs 75 to 99 
workers; and $75,000 for a labor certification for which an H-2ALC 
employs 100 or more workers.
    (ii) The bond amount is calculated by multiplying the base amount 
by the average AEWR and dividing by $9.25. Thus, the required bond 
amounts will vary annually based on changes in the average AEWR.
    (iii) For a labor certification for which an H-2ALC employs 150 or 
more workers, the bond amount applicable to the certification of 100 or 
more workers is further adjusted for each additional 50 workers as 
follows: The bond amount is increased by a value which represents 2 
weeks of wages for 50 workers, calculated using the average AEWR (i.e., 
80 hours x 50 workers x Average AEWR); this increase is applied to the 
bond amount for each additional group of 50 workers.
    (iv) The required bond amounts shall be calculated and published in 
the Federal Register on an annual basis.
    (3) Form of the bond and method of filing. The bond shall consist 
of an executed Form ETA-9142A--Appendix B, and must contain the name, 
address, phone number, and contact person for the surety, and valid 
documentation of power of attorney. The bond must be filed using the 
method directed by the OFLC Administrator at the time of filing:
    (i) Electronic surety bonds. When the OFLC Administrator directs 
the use of electronic surety bonds, this will be the required method of 
filing bonds for all applications subject to mandatory electronic 
filing. Consistent with the application filing requirements of Sec.  
655.130(c) and (d), the bond must be completed, signed by the employer 
and the surety using a verifiable electronic signature method, and 
submitted electronically with the Application for Temporary Employment 
Certification and supporting materials unless the employer is permitted 
to file by mail or a different accommodation under Sec.  655.130(c)(2) 
or (3).
    (ii) Electronic submission of copy. Until such time as the OFLC 
Administrator directs the use of electronic surety bonds, employers may 
submit an electronic (scanned) copy of the surety bond with the 
application, provided that the original bond is received within 30 days 
of the date that the certification is issued.
    (iii) Mailing original bond with application. For applications not 
subject to mandatory electronic filing due under Sec.  655.130(c)(2) or 
(3), employers may submit the original bond as part of its mailed, 
paper application package, or consistent with the accommodation 
provided.
    (d) Copies of the fully-executed work contracts with each fixed-
site agricultural business identified under paragraph (a) of this 
section.
    (e) Where the fixed-site agricultural business will provide housing 
or transportation to the workers, proof that:
    (1) All housing used by workers and owned, operated or secured by 
the fixed-site agricultural business complies with the applicable 
standards as set forth in Sec.  655.122(d) and certified by the SWA; 
and

[[Page 36274]]

    (2) All transportation between all places of employment and the 
workers' living quarters that is provided by the fixed-site 
agricultural business complies with all applicable 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 500.104 through 500.105 and 
500.120 through 500.128, except where workers' compensation is used to 
cover such transportation as described in Sec.  655.122(h).


Sec.  655.133   Requirements for agents.

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


Sec.  655.134   Emergency situations.

    (a) Waiver of time period. The CO may waive the time period for 
filing for employers who did not make use of temporary foreign 
agricultural workers during the prior year's agricultural season or for 
any employer that has other good and substantial cause, provided the CO 
has sufficient time to test the domestic labor market on an expedited 
basis to make the determinations required by Sec.  655.100.
    (b) Employer requirements. The employer requesting a waiver of the 
required time period must submit to the NPC all documentation required 
at the time of filing by Sec.  655.130(a) except evidence of a job 
order submitted pursuant to Sec.  656.121 of this chapter, a completed 
job order on the Form ETA-790/790A and all required addenda, and a 
statement justifying the request for a waiver of the time period 
requirement. The statement must indicate whether the waiver request is 
due to the fact that the employer did not use H-2A workers during the 
prior year's agricultural season or whether the request is for good and 
substantial cause. If the waiver is requested for good and substantial 
cause, the employer's statement must also include detailed information 
describing the good and substantial cause that has necessitated the 
waiver request. Good and substantial cause may include, but is not 
limited to, the substantial loss of U.S. workers due to Acts of God or 
similar unforeseeable man-made catastrophic events (e.g., a hazardous 
materials emergency or government-controlled flooding), unforeseeable 
changes in market conditions, pandemic health issues, or similar 
conditions that are wholly outside of the employer's control.
    (c) Processing of emergency applications. (1) Upon receipt of a 
complete emergency situation(s) waiver request, the CO promptly will 
transmit a copy of the job order to the SWA serving the area of 
intended employment. The SWA will review the contents of the job order 
for compliance with the requirements set forth in Sec.  653.501(c) of 
this chapter and Sec.  655.122. If the SWA determines that the job 
order does not comply with the applicable criteria, the SWA must inform 
the CO of the noted deficiencies within 5 calendar days of the date the 
job order is received by the SWA.
    (2) The CO will process emergency Applications for Temporary 
Employment Certification in a manner consistent with the provisions set 
forth in Sec. Sec.  655.140 through 655.145 and make a determination on 
the Application for Temporary Employment Certification in accordance 
with Sec. Sec.  655.160 through 655.167. The CO may notify the 
employer, in accordance with the procedures contained in Sec.  655.141, 
that the application cannot be accepted because, pursuant to paragraph 
(a) of this section, the request for emergency filing was not justified 
and/or there is not sufficient time to test the availability of U.S. 
workers such that the CO can make a determination on the Application 
for Temporary Employment Certification in accordance with Sec.  
655.161. Such notification will so inform the employer of the 
opportunity to submit a modified Application for Temporary Employment 
Certification and/or job order in accordance with the procedures 
contained in Sec.  655.142.


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

    An employer seeking to employ H-2A workers must agree as part of 
the Application for Temporary Employment Certification and job offer 
that it will abide by the requirements of this subpart and make each of 
the following additional assurances:
    (a) Non-discriminatory hiring practices. The job opportunity is, 
and through the period set forth in paragraph (d) of this section must 
continue to be, open to any qualified U.S. worker regardless of race, 
color, national origin, age, sex, religion, handicap, or citizenship. 
Rejections of any U.S. workers who applied or apply for the job must be 
only for lawful, job-related reasons, and those not rejected on this 
basis have been or will be hired. In addition, the employer has and 
will continue to retain records of all hires and rejections as required 
by Sec.  655.167.
    (b) No strike or lockout. The place(s) of employment for which the 
employer is requesting a temporary agricultural labor certification 
does not currently have employees on strike or being locked out in the 
course of a labor dispute.
    (c) Recruitment requirements. The employer has and will continue to 
cooperate with the SWA by accepting referrals of all eligible U.S. 
workers who apply (or on whose behalf an application is made) for the 
job opportunity until the end of the period as specified in paragraph 
(d) of this section and must independently conduct the positive 
recruitment activities, as specified in Sec. Sec.  655.123 and 655.154, 
until the date on which the H-2A workers depart for the place of 
employment. Unless the SWA is informed in writing of a different date, 
the date that is the third day preceding the employer's first date of 
need will be determined to be the date the H-2A workers departed for 
the employer's place of employment.
    (d) Thirty-day rule. (1) Subject to paragraph (d)(2) of this 
section, the employer must provide employment to any qualified, 
eligible U.S. worker who applies for the job opportunity until 30 
calendar days after the first date of need stated on the Application 
for Temporary Employment Certification under which the H-2A worker who 
is in the job was hired, including any approved modifications.
    (2) If an employer chooses to use the procedures for the staggered 
entry of H-2A workers at Sec.  655.130(f), the employer must provide 
employment to any qualified, eligible U.S. worker who applies for the 
job opportunity through the date provided on the employer's notice 
described at Sec.  655.130(f)(2) or the end of the 30-day period 
described in paragraph (d)(1) of this section, whichever is longer.
    (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, 
Public Law 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

[[Page 36275]]

FLSA. The FLSA operates independently of the H-2A program and has 
specific requirements that address payment of wages, including 
deductions from wages, the payment of Federal minimum wage and payment 
of overtime.
    (f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per 
workweek.
    (g) No recent or future layoffs. The employer has not laid off and 
will not lay off any worker in the United States similarly employed in 
the occupation that is the subject of the Application for Temporary 
Employment Certification in the area of intended employment except for 
lawful, job-related reasons within 60 days of the first date of need, 
or if the employer has laid off such workers, it has offered the job 
opportunity that is the subject of the Application for Temporary 
Employment Certification to those laid-off U.S. worker(s) and the U.S. 
worker(s) refused the job opportunity, was rejected for the job 
opportunity for lawful, job-related reasons, or was hired. A layoff for 
lawful, job-related reasons such as lack of work or the end of the 
growing season is permissible if all H-2A workers are laid off before 
any U.S. worker in corresponding employment.
    (h) No unfair treatment. The employer has not and will not 
intimidate, threaten, restrain, coerce, blacklist, discharge or in any 
manner discriminate against, and has not and will not cause any person 
to intimidate, threaten, restrain, coerce, blacklist, or in any manner 
discriminate against, any person who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1188, or this 
subpart or any other Department regulation promulgated under or related 
to 8 U.S.C. 1188;
    (2) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated under or related to 8 U.S.C. 1188;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any other Department 
regulation promulgated under or related to 8 U.S.C. 1188;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188 or this subpart or any 
other Department regulation promulgated under or related to 8 U.S.C. 
1188; 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 under or related to 8 
U.S.C. 1188.
    (i) Notify workers of duty to leave United States. (1) The employer 
must inform H-2A workers of the requirement that they leave the United 
States at the end of the period certified by the Department or 
separation from the employer, whichever is earlier, as required under 
paragraph (i)(2) of this section, unless the H-2A worker is being 
sponsored by another subsequent H-2A employer.
    (2) As defined further in the DHS regulations, a temporary 
agricultural 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 
the DHS regulations. See 8 CFR 214.2(h)(5)(viii)(B).
    (j) Comply with the prohibition against employees paying fees. The 
employer and its agents have not sought or received payment of any kind 
from any employee subject to 8 U.S.C. 1188 for any activity related to 
obtaining H-2A labor certification, including payment of the employer's 
attorney fees, application fees, or recruitment costs. For purposes of 
this paragraph (j), payment includes, but is not limited to, monetary 
payments, wage concessions (including deductions from wages, salary, or 
benefits), kickbacks, bribes, tributes, in kind payments, and free 
labor. The provision in this paragraph (j) does not prohibit employers 
or their agents from receiving reimbursement for costs that are the 
responsibility and primarily for the benefit of the worker, such as 
government-required passport fees.
    (k) Contracts with third parties comply with prohibitions. The 
employer must contractually prohibit in writing any foreign labor 
contractor or recruiter (or any agent of such foreign labor contractor 
or recruiter) whom the employer engages, either directly or indirectly, 
in international recruitment of H-2A workers to seek or receive 
payments or other compensation from prospective employees. The contract 
must include the following statement: ``Under this agreement, [name of 
foreign labor contractor or recruiter] and any agent or employee of 
[name of foreign labor contractor or recruiter] are prohibited from 
seeking or receiving payments from any prospective employee of 
[employer name] at any time, including before or after the worker 
obtains employment. Payments include but are not limited to any direct 
or indirect fees paid by such employees for recruitment, job placement, 
processing, maintenance, attorney fees, agent fees, application fees, 
or any other fees related to obtaining H-2A labor certification.'' This 
documentation is to be made available upon request by the CO or another 
Federal party.
    (l) Notice of worker rights. The employer must post and maintain in 
a conspicuous location at the place of employment, a poster provided by 
the Secretary in English, and, to the extent necessary, any language 
common to a significant portion of the workers if they are not fluent 
in English, which sets out the rights and protections for workers 
employed pursuant to 8 U.S.C. 1188.


Sec.  655.136   Withdrawal of an Application for Temporary Employment 
Certification and job order.

    (a) The employer may withdraw an Application for Temporary 
Employment Certification and the related job order at any time before 
the CO makes a determination under Sec.  655.160. However, the employer 
is still obligated to comply with the terms and conditions of 
employment contained in the Application for Temporary Employment 
Certification and job order with respect to all workers recruited in 
connection with that application and job order.
    (b) To request withdrawal, the employer must submit a request in 
writing to the NPC identifying the Application for Temporary Employment 
Certification and job order and stating the reason(s) for the 
withdrawal.

Processing of Applications for Temporary Employment Certification


Sec.  655.140  Review of applications.

    (a) NPC review. The CO will promptly review the Application for 
Temporary Employment Certification and job order for compliance with 
all applicable program requirements, including compliance with the 
requirements set forth in this subpart, and make a decision to issue a 
NOD under Sec.  655.141, a Notice of Acceptance (NOA) under Sec.  
655.143, or a Final Determination under Sec.  655.160.
    (b) Mailing and postmark requirements. Any notice or request sent 
by the CO(s) to an employer requiring a response will be sent 
electronically or via traditional methods to assure next day delivery 
using the address, including electronic mail address, provided on the 
Application for Temporary Employment Certification. The employer's 
response to such a

[[Page 36276]]

notice or request must be filed electronically or via traditional 
methods to assure next day delivery. The employer's response must be 
sent by the date due or the next business day if the due date falls on 
a Sunday or Federal holiday.


Sec.  655.141  Notice of deficiency.

    (a) Notification timeline. If the CO determines the Application for 
Temporary Employment Certification or job order is incomplete, contains 
errors or inaccuracies, or does not meet the requirements set forth in 
this subpart, the CO will notify the employer within 7 calendar days of 
the CO's receipt of the Application for Temporary Employment 
Certification. A copy of this notification will be sent to the SWA 
serving the area of intended employment.
    (b) Notice content. The notice will:
    (1) State the reason(s) the Application for Temporary Employment 
Certification or job order fails to meet the criteria for acceptance;
    (2) Offer the employer an opportunity to submit a modified 
Application for Temporary Employment Certification or job order within 
5 business days from date of receipt stating the modification that is 
needed for the CO to issue the NOA;
    (3) State that the CO's determination on whether to grant or deny 
the Application for Temporary Employment Certification will be made not 
later than 30 calendar days before the first date of need, provided 
that the employer submits the requested modification to the Application 
for Temporary Employment Certification or job order within 5 business 
days and in a manner specified by the CO; and
    (4) State that if the employer does not comply with the 
requirements of Sec.  655.142, the CO will deny the Application for 
Temporary Employment Certification.


Sec.  655.142  Submission of modified applications.

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


Sec.  655.143   Notice of acceptance.

    (a) Notification timeline. When the CO determines the Application 
for Temporary Employment Certification and job order meet the 
requirements set forth in this subpart, the CO will notify the employer 
within 7 calendar days of the CO's receipt of the Application for 
Temporary Employment Certification. A copy of the notice will be sent 
to the SWA serving the area of intended employment.
    (b) Notice content. The notice must:
    (1) When recruitment of U.S. workers, as specified in Sec. Sec.  
655.151 through 655.154, has not commenced prior to the filing of the 
Application for Temporary Employment Certification, or when recruitment 
has commenced but not concluded prior to the filing of the Application 
for Temporary Employment Certification, and the CO has determined that 
the recruitment activities undertaken are compliant with positive 
recruitment requirements:
    (i) Authorize conditional access to the interstate clearance system 
and direct each SWA receiving a copy of the job order to commence 
recruitment of U.S. workers as specified in Sec.  655.150;
    (ii) Direct the employer to engage in positive recruitment of U.S. 
workers under Sec. Sec.  655.151 through 655.154 and to submit a report 
of its positive recruitment efforts meeting the requirements of Sec.  
655.156; and
    (iii) 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 date specified in Sec.  655.158.
    (2) When recruitment of U.S. workers, as specified in Sec. Sec.  
655.151 through 655.154, has commenced prior to the filing of the 
Application for Temporary Employment Certification, but the CO has 
determined the employer failed to comply with one or more of its 
positive recruitment obligations:
    (i) Direct the employer to engage in corrective positive 
recruitment of U.S. workers and submit proof of compliant advertising 
concurrently with a report of its positive recruitment efforts meeting 
the requirements of Sec.  655.156;
    (ii) State that positive recruitment is in addition to and will 
occur during the period of time that the job order is being circulated 
for interstate clearance under Sec.  655.150 and will terminate on the 
date specified in Sec.  655.158;
    (3) State any other documentation or assurances needed for the 
Application for Temporary Employment Certification to meet the 
requirements for certification under this subpart; and
    (4) State that the CO will make a determination either to grant or 
deny the Application for Temporary Employment Certification not later 
than 30 calendar days before the first date of need, except as provided 
for under Sec.  655.142 for modified Applications for Temporary 
Employment Certification or when the Application for Temporary 
Employment Certification does not meet the requirements for 
certification but is expected to before the first date of need.


Sec.  655.144  Electronic job registry.

    (a) Location of and placement in the electronic job registry. Upon 
acceptance of the Application for Temporary Employment Certification 
under Sec.  655.143, the CO will promptly place for public examination 
a copy of the job order on an electronic job registry maintained by the 
Department, including any required modifications approved by the CO, as 
specified in Sec.  655.142.
    (b) Length of posting on electronic job registry. Unless otherwise 
provided, the Department will keep the job order posted on the 
electronic job registry in active status until the end of the 
recruitment period, as set forth in Sec.  655.135(d).


Sec.  655.145   Amendments to Applications for Temporary Employment 
Certification.

    (a) Increases in number of workers. The Application for Temporary 
Employment Certification may be amended at any time before the CO's

[[Page 36277]]

certification determination to increase the number of workers requested 
in the initial Application for Temporary Employment Certification by 
not more than 20 percent (50 percent for employers requesting less than 
10 workers) without requiring an additional recruitment period for U.S. 
workers. Requests for increases above the percent prescribed, without 
additional recruitment, may be approved by the CO only when the 
employer demonstrates that the need for additional workers could not 
have been foreseen, and the crops or commodities will be in jeopardy 
prior to the expiration of an additional recruitment period. All 
requests for increasing the number of workers must be made in writing.
    (b) Minor changes to the period of employment. The Application for 
Temporary Employment Certification may be amended to make minor changes 
in the total period of employment. Changes will not be effective until 
submitted in writing and approved by the CO. In considering whether to 
approve the request, the CO will review the reason(s) for the request, 
determine whether the reason(s) are on the whole justified, and take 
into account the effect any change(s) would have on the adequacy of the 
underlying test of the domestic labor market for the job opportunity. 
An employer must demonstrate that the change to the period of 
employment could not have been foreseen, and the crops or commodities 
will be in jeopardy prior to the expiration of an additional 
recruitment period. If the request is for a delay in the first date of 
need and is made after workers have departed for the employer's place 
of employment, the CO may only approve the change if the employer 
includes with the request a written assurance signed and dated by the 
employer that all workers who are already traveling to the place of 
employment will be provided housing and subsistence, without cost to 
the workers, until work commences. Upon acceptance of an amendment, the 
CO will submit to the SWA any necessary modification to the job order.

Post-Acceptance Requirements


Sec.  655.150  Interstate clearance of job order.

    (a) CO approves for interstate clearance. The CO will promptly 
transmit a copy of the approved job order for interstate clearance to 
all states listed in the job order as anticipated place(s) of 
employment and all other states designated by the OFLC Administrator as 
states of traditional or expected labor supply for the anticipated 
place(s) of employment under Sec.  655.154(d).
    (b) Duration of posting. Each of the SWAs to which the CO transmits 
the job order must keep the job order on its active file until the end 
of the recruitment period, as set forth in Sec.  655.135(d), and must 
refer each qualified U.S. worker who applies (or on whose behalf an 
application is made) for the job opportunity.


Sec.  655.151   Advertising in the area of intended employment.

    (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 content requirements.

    All advertising conducted to satisfy the required recruitment 
activities under Sec. Sec.  655.151 and 655.154 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, each joint employer's name, or in the 
event that a master application will be filed by an agricultural 
association, the agricultural association's name and a statement 
indicating that the name and location of each member of the 
agricultural 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 labor or services;
    (c) A description of the job opportunity for which certification is 
sought with sufficient information to apprise U.S. workers of labor or 
services 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 (e.g., where a master application will be filed by an 
agricultural 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 agricultural 
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 
place of employment 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; and
    (k) Contact information for the applicable SWA and, if available, 
the job order number.


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

    The employer must contact, by mail or other effective means, U.S. 
workers employed by the employer in the occupation at the place of 
employment during the previous year and solicit their return to the 
job. This contact must occur during the period of time that the job 
order is being circulated by the SWA(s) for interstate clearance under 
Sec.  655.150 and before the date specified in Sec.  655.158. 
Documentation sufficient to prove contact must be maintained in the 
event of an audit or investigation. An employer has no obligation to 
contact U.S. workers it terminated for cause or who abandoned 
employment at any time during the previous year if the employer 
provided timely notice to the NPC of the termination or abandonment in 
the manner described in Sec.  655.122(n).


Sec.  655.154   Additional positive recruitment.

    (a) Where to conduct additional positive recruitment. The employer

[[Page 36278]]

must conduct positive recruitment within a multistate region of 
traditional or expected labor supply where the OFLC Administrator 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 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 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 for Temporary Employment Certification and 
job order.
    (d) Determination of labor supply states. (1) The OFLC 
Administrator will make an annual determination with respect to each 
state whether there are other traditional or expected labor supply 
states in which there are a significant number of qualified U.S. 
workers who, if recruited, would be willing to make themselves 
available for work in that state. The OFLC Administrator will publish 
the determination annually on the OFLC's website. The traditional or 
expected labor supply states designated by the OFLC Administrator will 
become effective on the date of publication on the OFLC's website for 
employers who have not commenced positive recruitment under this 
subpart and will remain valid until the OFLC Administrator publishes a 
new determination.
    (2) The determination as to whether any state is a source of 
traditional or expected labor supply to another state will be based 
primarily upon information provided by the SWAs to the OFLC 
Administrator within 120 calendar days preceding the determination.


Sec.  655.155   Referrals of U.S. workers.

    SWAs may only refer for employment individuals who have been 
apprised of all the material terms and conditions of employment and 
have indicated, by accepting referral to the job opportunity, that they 
are qualified, able, willing, and available for employment.


Sec.  655.156   Recruitment report.

    (a) Requirements of a recruitment report. The employer must 
prepare, sign, and date a written recruitment report. The recruitment 
report must contain the following information:
    (1) Identify the name of each recruitment source and date of 
advertisement;
    (2) State the name and contact information of each U.S. worker who 
applied or was referred to the job opportunity up to the date of the 
preparation of the recruitment report, and the disposition of each 
worker;
    (3) Confirm that former U.S. employees were contacted and by what 
means or state there are no former U.S. employees to contact; and
    (4) If applicable, for each U.S. worker who applied for the 
position but was not hired, explain the lawful job-related reason(s) 
for not hiring the U.S. worker.
    (b) Duty to update recruitment report. The employer must continue 
to update the recruitment report until the end of the recruitment 
period, as set forth in Sec.  655.135(d). The updated report is not to 
be submitted to the Department, unless requested by the Department. The 
updated report mustbe made available in the event of a post-
certification audit or upon request by the Department or any other 
Federal agency.


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

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


Sec.  655.158   Duration of positive recruitment.

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

Labor Certification Determinations


Sec.  655.160   Determinations.

    Except as otherwise noted in this section, the CO will make a 
determination either to grant or deny the Application for Temporary 
Employment Certification not later than 30 calendar days before the 
first date of need identified in the Application for Temporary 
Employment Certification. An Application for Temporary Employment 
Certification that is modified under Sec.  655.142 or that otherwise 
does not meet the requirements for certification in this subpart is not 
subject to the 30-day timeframe for certification.


Sec.  655.161   Criteria for certification.

    (a) The criteria for certification include whether the employer has 
complied with the applicable requirements of parts 653 and 654 of this 
chapter, and all requirements of this subpart, which are necessary to 
grant the labor certification.
    (b) In making a determination as to whether there are insufficient 
U.S. workers to fill the employer's job opportunity, the CO will count 
as available any U.S. worker referred by the SWA or any U.S. worker who 
applied (or on whose behalf an application is made) directly to the 
employer, whom the employer has not rejected for a lawful, job-related 
reason.


Sec.  655.162   Approved certification.

    If temporary agricultural labor certification is granted, the CO 
will send a Final Determination notice and a copy of the certified 
Application for Temporary Employment Certification and job order to the 
employer and a copy, if applicable, to the employer's agent or attorney 
using an electronic

[[Page 36279]]

method(s) designated by the OFLC Administrator. For employers permitted 
to file by mail as set forth in Sec.  655.130(c), the CO will send the 
Final Determination notice and a copy of the certified Application for 
Temporary Employment Certification and job order by means normally 
assuring next day delivery. The CO will send the certified Application 
for Temporary Employment Certification and job order, including any 
approved modifications, on behalf of the employer, directly to USCIS 
using an electronic method(s) designated by the OFLC Administrator.


Sec.  655.163   Certification fee.

    A determination by the CO to grant an Application for Temporary 
Employment Certification in whole or in part will include a bill for 
the required certification fees. Each employer of H-2A workers under 
the Application for Temporary Employment Certification (except joint 
employer agricultural associations, which may not be assessed a fee in 
addition to the fees assessed to the members of the agricultural 
association) must pay in a timely manner a non-refundable fee upon 
issuance of the certification granting the Application for Temporary 
Employment Certification (in whole or in part), as follows:
    (a) Amount. The Application for Temporary Employment Certification 
fee for each employer receiving a temporary agricultural labor 
certification is $100 plus $10 for each H-2A worker certified under the 
Application for Temporary Employment Certification, provided that the 
fee to an employer for each temporary agricultural labor certification 
received will be no greater than $1,000. There is no additional fee to 
the association filing the Application for Temporary Employment 
Certification. The fees must be paid by check or money order made 
payable to United States Department of Labor. In the case of an 
agricultural association acting as a joint employer applying on behalf 
of its H-2A employer-members, the aggregate fees for all employers of 
H-2A workers under the Application for Temporary Employment 
Certification must be paid by one check or money order.
    (b) Timeliness. Fees must be received by the CO no more than 30 
calendar days after the date of the certification. Non-payment or 
untimely payment may be considered a substantial violation subject to 
the procedures in Sec.  655.182.


Sec.  655.164   Denied certification.

    If temporary agricultural labor certification is denied, the CO 
will send a Final Determination notice to the employer and a copy, if 
appropriate, to the employer's agent or attorney using an electronic 
method(s) designated by the OFLC Administrator. For employers permitted 
to file by mail as set forth in Sec.  655.130(c), the CO will send the 
Final Determination notice by means normally assuring next day 
delivery. The Final Determination notice will:
    (a) State the reason(s) certification is denied, citing the 
relevant regulatory standards;
    (b) Offer the employer an opportunity to request an expedited 
administrative review or a de novo administrative hearing before an ALJ 
of the denial under Sec.  655.171; and
    (c) State that if the employer does not request an expedited 
administrative judicial review or a de novo hearing before an ALJ in 
accordance with Sec.  655.171, the denial is final, and the Department 
will not accept any appeal on that Application for Temporary Employment 
Certification.


Sec.  655.165   Partial certification.

    The CO may issue a partial certification, reducing either the 
period of employment or the number of H-2A workers being requested or 
both for certification, based upon information the CO receives during 
the course of processing the Application for Temporary Employment 
Certification, an audit, or otherwise. The number of workers certified 
will be reduced by one for each U.S. worker who is able, willing, and 
qualified, and who will be available at the time and place needed and 
has not been rejected for lawful, job-related reasons, to perform the 
labor or services. If a partial labor certification is issued, the CO 
will send the Final Determination notice approving partial 
certification using the procedures at Sec.  655.162. The Final 
Determination notice will:
    (a) State the reason(s) the period of employment and/or the number 
of H-2A workers requested has been reduced, citing the relevant 
regulatory standards;
    (b) Offer the employer an opportunity to request an expedited 
administrative review or a de novo administrative hearing before an ALJ 
of the partial certification under Sec.  655.171; and
    (c) State that if the employer does not request an expedited 
administrative judicial review or a de novo hearing before an ALJ in 
accordance with Sec.  655.171, the partial certification is final, and 
the Department will not accept any appeal on that Application for 
Temporary Employment Certification.


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

    (a) Standards for requests. If a temporary agricultural labor 
certification has been partially granted or denied based on the CO's 
determination that able, willing, available, eligible, and qualified 
U.S. workers are available, and, on or after 30 calendar days before 
the first date of need, some or all of those U.S. workers are, in fact, 
no longer able, willing, eligible, qualified, or available, the 
employer may request a new temporary agricultural labor certification 
determination from the CO. Prior to making a new determination, the CO 
will promptly ascertain (which may be through the SWA or other sources 
of information on U.S. worker availability) whether specific able, 
willing, eligible and qualified replacement U.S. workers are available 
or can be reasonably expected to be present at the employer's 
establishment within 72 hours from the date the employer's request was 
received. The CO will expeditiously, but in no case later than 72 hours 
after the time a complete request (including the signed statement 
included in paragraph (b) of this section) is received, make a 
determination on the request under paragraph (c) of this section. An 
employer may appeal a denial of such a determination in accordance with 
the procedures contained in Sec.  655.171.
    (b) Unavailability of U.S. workers. The employer's request for a 
new determination must be made directly to the CO in writing using an 
electronic method(s) designated by the OFLC Administrator, unless the 
employer requests to file the request by mail as set forth in Sec.  
655.130(c). If the employer requests the new determination by asserting 
solely that U.S. workers have become unavailable, the employer must 
submit to the CO a signed statement confirming such assertion. If such 
signed statement is not received by the CO within 72 hours of the CO's 
receipt of the request for a new determination, the CO will deny the 
request.
    (c) Notification of determination. If the CO determines that U.S. 
workers have become unavailable and cannot identify sufficient 
available U.S. workers who are able, willing, eligible, and qualified 
or who are likely to become available, the CO will grant the employer's 
request for a new determination on the Application for Temporary 
Employment Certification in accordance with the procedures contained in 
Sec.  655.162 or Sec.  655.165. However, this does not preclude an 
employer from submitting subsequent requests for new determinations, if 
warranted, based on subsequent facts

[[Page 36280]]

concerning purported nonavailability of U.S. workers or referred 
workers not being eligible workers or not able, willing, or qualified 
because of lawful, job-related reasons.


Sec.  655.167   Document retention requirements of H-2A employers.

    (a) Entities required to retain documents. All employers must 
retain documents and records demonstrating compliance with this 
subpart.
    (b) Period of required retention. Records and documents must be 
retained for a period of 3 years from the date of certification of the 
Application for Temporary Employment Certification or from the date of 
determination if the Application for Temporary Employment Certification 
is denied or withdrawn.
    (c) Documents and records to be retained by all employers. All 
employers must retain:
    (1) Proof of recruitment efforts, including:
    (i) Job order placement as specified in Sec.  655.121;
    (ii) 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; and
    (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).
    (7) If applicable, records of notice to the NPC and DHS of the 
abandonment of employment or termination for cause of a worker as set 
forth in Sec.  655.122(n).
    (d) Additional retention requirement for agricultural associations 
filing an Application for Temporary Employment Certification. In 
addition to the documents specified in paragraph (c) of this section, 
associations must retain documentation substantiating their status as 
an employer or agent, as specified in Sec.  655.131.

Post-Certification


Sec.  655.170   Extensions.

    An employer may apply for extensions of the period of employment in 
the following circumstances.
    (a) Short-term extension. Employers seeking extensions of 2 weeks 
or less of the certified Application for Temporary Employment 
Certification must apply directly to DHS for approval. If granted, the 
Application for Temporary Employment Certification will be deemed 
extended for such period as is approved by DHS.
    (b) Long-term extension. Employers seeking extensions of more than 
2 weeks may apply to the CO. Such requests must be related to weather 
conditions or other factors beyond the control of the employer (which 
may include unforeseen changes in market conditions). Such requests 
must be supported in writing, with documentation showing that the 
extension is needed and that the need could not have been reasonably 
foreseen by the employer. The CO will notify the employer of the 
decision in writing if time allows, or will otherwise notify the 
employer of the decision. The CO will not grant an extension where the 
total work contract period under that Application for Temporary 
Employment Certification and extensions would last longer than 1 year, 
except in extraordinary circumstances. The employer may appeal a denial 
of a request for an extension by following the procedures in Sec.  
655.171.
    (c) Disclosure. The employer must provide to the workers a copy of 
any approved extension in accordance with Sec.  655.122(q), as soon as 
practicable.


Sec.  655.171   Appeals.

    (a) Request for review. Where authorized in this subpart, an 
employer wishing review of a decision of the CO must request an 
administrative review or de novo hearing before an ALJ of that decision 
to exhaust its administrative remedies. In such cases, the request for 
review:
    (1) Must be received by the Chief ALJ, and the CO who issued the 
decision, within 10 business days from the date of the CO's decision;
    (2) Must clearly identify the particular decision for which review 
is sought;
    (3) Must include a copy of the CO's decision;
    (4) Must clearly state whether the employer is seeking 
administrative review or a de novo hearing. If the request does not 
clearly state the employer is seeking a de novo hearing, then the 
employer waives its right to a hearing, and the case will proceed as a 
request for administrative review;
    (5) Must set forth the particular grounds for the request, 
including the specific factual issues the requesting party alleges 
needs to be examined in connection with the CO's decision in question;
    (6) May contain any legal argument that the employer believes will 
rebut the basis of the CO's action, including any briefing the employer 
wishes to submit where the request is for administrative review;
    (7) May contain only such evidence as was actually before the CO at 
the time of the CO's decision, where the request is for administrative 
review; and
    (8) May contain new evidence for the ALJ's consideration, where the 
request is for a de novo hearing, provided that the new evidence is 
introduced at the hearing.
    (b) Appeal file. After the receipt of the request for review, the 
CO will send a copy of the OFLC administrative file to the Chief ALJ as 
soon as practicable by means normally assuring next-day delivery.
    (c) Assignment. The Chief ALJ will immediately assign an ALJ to 
consider the particular case, which may be a single member or a three-
member panel of the BALCA.
    (d) Administrative review--(1) Briefing schedule. If the employer 
wishes to submit a brief on appeal, it must do so as part of its 
request for review. Within 7 business days of receipt of the OFLC 
administrative file, the counsel for the CO may submit a brief in 
support of the CO's decision and, if applicable, in response to the 
employer's brief.
    (2) Standard of review. The ALJ must uphold the CO's decision 
unless shown by the employer to be arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with the law.
    (3) Scope of review. The ALJ will affirm, reverse, or modify the 
CO's decision, or remand to the CO for further action. The ALJ will 
reach this decision after due consideration of the documents in the 
OFLC administrative file that were before the CO at the time of the 
CO's decision and any written submissions from the parties or amici 
curiae that do not contain new evidence. The ALJ may not consider 
evidence not before the CO at the time of the CO's decision, even if 
such evidence is in the administrative file.
    (4) Decision. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, the 
CO, and counsel for the CO within 7 business

[[Page 36281]]

days of the submission of the CO's brief or 10 business days after 
receipt of the OFLC administrative file, whichever is later, using 
means normally assuring next-day delivery.
    (e) De novo hearing--(1) Conduct of hearing. Where the employer has 
requested a de novo hearing the procedures in 29 CFR part 18 apply to 
such hearings, except that:
    (i) The appeal will not be considered to be a complaint to which an 
answer is required;
    (ii) The ALJ will ensure that the hearing is scheduled to take 
place within 14 business days after the ALJ's receipt of the OFLC 
administrative file, if the employer so requests, and will allow for 
the introduction of new evidence during the hearing as appropriate;
    (iii) The ALJ may authorize discovery and the filing of pre-hearing 
motions, and so limit them to the types and quantities which in the 
ALJ's discretion will contribute to a fair hearing without unduly 
burdening the parties;
    (iv) The ALJ's decision must be rendered within 10 calendar days 
after the hearing; and
    (v) If the employer waives the right to a hearing, such as by 
asking for a decision on the record, or if the ALJ determines there are 
no disputed material facts to warrant a hearing, then the standard and 
scope of review for administrative review applies.
    (2) Standard and scope of review. The ALJ will review the evidence 
presented during the hearing and the CO's decision de novo. The ALJ may 
determine that there is no genuine issue covering some or all material 
facts and limit the hearing to any issues of material fact as to which 
there is a genuine dispute. If new evidence is submitted with a request 
for a de novo hearing, and the ALJ subsequently determines that a 
hearing is warranted, the new evidence provided with the request must 
be introduced at the hearing to be considered by the ALJ. After a de 
novo hearing, the ALJ must affirm, reverse, or modify the CO's 
decision, or remand to the CO for further action.
    (3) Decision. The decision of the ALJ must specify the reasons for 
the action taken and must be immediately provided to the employer, the 
CO, and counsel for the CO by means normally assuring next-day 
delivery.


Sec.  655.172   Post-certification withdrawals.

    (a) The employer may withdraw an Application for Temporary 
Employment Certification and the related job order after the CO grants 
certification under Sec.  655.160. However, the employer is still 
obligated to comply with the terms and conditions of employment 
contained in the Application for Temporary Employment Certification and 
job order with respect to all workers recruited in connection with that 
application and job order.
    (b) To request withdrawal, the employer must submit a request in 
writing to the NPC identifying the certification and stating the 
reason(s) for the withdrawal.


Sec.  655.173   Setting meal charges; petition for higher meal charges.

    (a) Meal charges. An employer may only charge workers up to a 
maximum amount per day for providing them with three meals. The maximum 
charge allowed by this paragraph (a) will begin at $12.26 per day and 
will be updated 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 not 
later than 14 calendar days following the date of their publication by 
the OFLC Administrator of a document 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) Petitions for higher meal charges. The employer may file a 
petition with the CO to request approval to charge more than the 
applicable amount set under paragraph (a) of this section, up to 
$14.94, until a new maximum higher meal charge is set. The maximum 
higher meal charge allowed by this paragraph (b) will be changed 
annually following the same methodology and procedure as paragraph (a).
    (1) Filing higher meal charge request. To request approval to 
charge up to the maximum higher meal charge, the employer must submit 
the documentation required by either paragraph (b)(1)(i) or (ii) of 
this section. A higher meal charge request will be denied, in whole or 
in part, if the employer's documentation does not justify the higher 
meal charge requested, if the amount requested exceeds the current 
maximum higher meal charge permitted, or both.
    (i) Meals prepared directly by the employer. Documentation 
submitted must include only the cost of goods and services directly 
related to the preparation and serving of meals, the number of workers 
fed, the number of meals served, and the number of days meals were 
provided. The cost of the following items may be included in the 
employer's charge to workers for providing prepared meals: Food; 
kitchen supplies other than food, such as lunch bags and soap; labor 
costs that have a direct relation to food service operations, such as 
wages of cooks and dining hall supervisors; fuel, water, electricity, 
and other utilities used for the food service operation; and other 
costs directly related to the food service operation. Charges for 
transportation, depreciation, overhead, and similar charges may not be 
included. Receipts and other cost records for a representative pay 
period must be retained and must be available for inspection for a 
period of 3 years.
    (ii) Meals provided through a third party. Documentation submitted 
must identify each third party that the employer will engage to prepare 
meals, describe how the employer will fulfill its obligation to provide 
three meals per day to workers through its agreement with the third 
party, and document the third party's charge(s) to the employer for the 
meals to be provided. Neither the third party's charge(s) to the 
employer nor the employer's meal charge to workers may include a 
profit, kick back, or other direct or indirect benefit to the employer, 
a person affiliated with the employer, or to another person for the 
employer's benefit. Receipts and other cost records documenting 
payments made to the third party that prepared the meals and meal 
charge deductions from employee pay must be retained for the period 
provided in Sec.  655.167(b) and must be available for inspection by 
the CO and WHD during an investigation.
    (2) Effective date and scope of validity of a higher meal charge 
approval. The employer may begin charging the higher rate upon receipt 
of approval from the CO, unless the CO sets a later effective date in 
the decision, and after disclosing to workers any change in the meal 
charge or deduction. A favorable decision from the CO is valid only for 
the meal provision arrangement documented under paragraph (b)(1) of 
this section and the approved higher meal charge amount. If the 
approved meal provision arrangement changes, the employer may charge no 
more than the maximum permitted under paragraph (a) of this section 
until a new petition for a higher meal charge based on the new 
arrangement is approved.
    (3) Appeal rights. In the event the employer's petition for a 
higher meal charge is denied in whole or in part, the employer may 
appeal the denial.

[[Page 36282]]

Appeals will be filed with the Chief ALJ, pursuant to Sec.  655.171.


Sec.  655.174  Public disclosure.

    The Department will maintain an electronic file accessible to the 
public with information on all employers applying for temporary 
agricultural labor certifications. The database will include such 
information as the number of workers requested, the date filed, the 
date decided, and the final disposition.


Sec.  655.175  Post-certification amendments.

    (a) Scope of post-certification amendments. A certified Application 
for Temporary Employment Certification and job order may be amended to 
make minor changes to the certified place(s) of employment, provided 
the employer has good and substantial cause for the amendment 
requested, the circumstance(s) underlying the request for amendment 
could not have been reasonably foreseen before certification and is 
wholly outside the employer's control, the material terms and 
conditions of the job order are not affected, and the amendment 
requested is within the certified area(s) of intended employment.
    (b) Employer requirements. The employer must submit to the NPC a 
written request to amend the certified place(s) of employment. The 
written request must:
    (1) Specify each place of employment the employer requests to add 
to or remove from the certified Application for Temporary Employment 
Certification and job order, the expected beginning and ending dates of 
work at each place of employment, and, if applicable, the name of each 
fixed-site agricultural business;
    (2) Describe the good and substantial cause justifying the need for 
the requested amendment, as that term is defined in Sec.  655.134, and 
explain how the circumstance could not have been reasonably foreseen 
before certification and is wholly outside the employer's control;
    (3) Assure the amendment requested will not change the material 
terms and conditions of the job order;
    (4) Assure the employer will provide to the workers a copy of the 
amendment as soon as practicable after receiving notice that the 
requested amendment is approved by the CO, consistent with Sec.  
655.122(q); and
    (5) Assure the employer will retain and make available all 
documentation substantiating the requested amendment, where approved by 
the CO and required by Sec.  655.167, in the event of a post-
certification audit or upon request by the Department.
    (c) Processing and effective date of amendments. The CO will 
expeditiously, but in no case later than 3 business days after the date 
the request is received, decide whether to grant the requested 
amendment and provide notification of the decision to the employer. In 
considering whether to approve the request, the CO will determine 
whether the requested amendment is sufficiently justified, whether the 
employer has provided assurances that it will satisfy all program 
requirements and obligations to workers, and how the amendment will 
affect the underlying labor market test for the job opportunity. 
Requests that do not satisfy all requirements will not be approved. 
Changes will not be effective until approved by the CO. Upon approval 
of an amendment, the CO will submit to the SWA any necessary changes to 
the job order.

Integrity Measures


Sec.  655.180  Audit.

    The CO may conduct audits of applications for which certifications 
have been granted.
    (a) Discretion. The CO has the sole discretion to choose the 
certified applications selected for audit.
    (b) Audit letter. Where an application is selected for audit, the 
CO will issue an audit letter to the employer and a copy, if 
appropriate, to the employer's agent or attorney. The audit letter 
will:
    (1) Specify the documentation that must be submitted by the 
employer;
    (2) Specify a date, no more than 30 calendar days from the date the 
audit letter is issued, by which the required documentation must be 
sent to the CO; and
    (3) Advise that failure to fully comply with the audit process may 
result in the revocation of the certification or program debarment.
    (c) Supplemental information request. During the course of the 
audit examination, the CO may request supplemental information and/or 
documentation from the employer in order to complete the audit. If 
circumstances warrant, the CO can issue one or more requests for 
supplemental information.
    (d) Potential referrals. In addition to measures in this subpart, 
the CO may decide to provide the audit findings and underlying 
documentation to DHS, WHD, or other appropriate enforcement agencies. 
The CO may refer any findings that an employer discouraged an eligible 
U.S. worker from applying, or failed to hire, discharged, or otherwise 
discriminated against an eligible U.S. worker, to the Department of 
Justice, Civil Rights Division, Immigrant and Employee Rights Section.


Sec.  655.181  Revocation.

    (a) Basis for DOL revocation. The OFLC Administrator may revoke a 
temporary agricultural labor certification approved under this subpart, 
if the OFLC Administrator finds:
    (1) The issuance of the temporary agricultural labor certification 
was not justified due to fraud or misrepresentation in the application 
process;
    (2) The employer substantially violated a material term or 
condition of the approved temporary agricultural labor certification, 
as defined in Sec.  655.182;
    (3) The employer failed to cooperate with a DOL investigation or 
with a DOL official performing an investigation, inspection, audit (as 
discussed in Sec.  655.180), or law enforcement function under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart; or
    (4) The employer failed to comply with one or more sanctions or 
remedies imposed by WHD, or with one or more decisions or orders of the 
Secretary or a court order secured by the Secretary under 8 U.S.C. 
1188, 29 CFR part 501, or this subpart.
    (b) DOL procedures for revocation--(1) Notice of Revocation. If the 
OFLC Administrator makes a determination to revoke an employer's 
temporary agricultural labor certification, the OFLC Administrator will 
send to the employer (and its attorney or agent) a Notice of 
Revocation. The Notice will contain a detailed statement of the grounds 
for the revocation, and it will inform the employer of its right to 
submit rebuttal evidence or to appeal. If the employer does not file 
rebuttal evidence or an appeal within 14 calendar days of the date of 
the Notice of Revocation, the Notice is the final agency action and 
will take effect immediately at the end of the 14-day period.
    (2) Rebuttal. The employer may submit evidence to rebut the grounds 
stated in the Notice of Revocation within 14 calendar days of the date 
the Notice is issued. If rebuttal evidence is timely filed by the 
employer, the OFLC Administrator will inform the employer of the OFLC 
Administrator's final determination on the revocation within 14 
calendar days of receiving the rebuttal evidence. If the OFLC 
Administrator determines that the certification should be revoked, the 
OFLC Administrator will inform the

[[Page 36283]]

employer of its right to appeal according to the procedures of Sec.  
655.171. If the employer does not appeal the final determination, it 
will become the final agency action.
    (3) Appeal. An employer may appeal a Notice of Revocation, or a 
final determination of the OFLC Administrator after the review of 
rebuttal evidence, according to the appeal procedures of Sec.  655.171. 
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 to DHS and the Department of State (DOS).
    (c) Employer's obligations in the event of revocation. If an 
employer's temporary agricultural labor certification is revoked, the 
employer is responsible for:
    (1) Reimbursement of actual inbound transportation and subsistence 
expenses, as if the worker meets the requirements for payment under 
Sec.  655.122(h)(1);
    (2) The worker's outbound transportation and subsistence expenses, 
as if the worker meets the requirements for payment under Sec.  
655.122(h)(2);
    (3) Payment to the worker of the amount due under the three-fourths 
guarantee as required by Sec.  655.122(i); and
    (4) Any other wages, benefits, and working conditions due or owing 
to the worker under this subpart.


Sec.  655.182   Debarment.

    (a) Debarment of an employer, agent, or attorney. The OFLC 
Administrator may debar an employer, agent, or attorney, or any 
successor in interest to that employer, agent, or attorney, from 
participating in any action under 8 U.S.C. 1188, this subpart, or 29 
CFR part 501 subject to the time limits set forth in paragraph (c) of 
this section, if the OFLC Administrator finds that the employer, agent, 
or attorney substantially violated a material term or condition of the 
temporary agricultural labor certification, with respect to H-2A 
workers; workers in corresponding employment; or U.S. workers 
improperly rejected for employment, or improperly laid off or 
displaced.
    (b) Effect on future applications. No application for H-2A workers 
may be filed by a debarred employer, or by an employer represented by a 
debarred agent or attorney, or by any successor in interest to any 
debarred agent or attorney, subject to the term limits set forth in 
paragraph (c) of this section. If such an application is filed, it will 
be denied without review.
    (c) Statute of limitations and period of debarment. (1) The OFLC 
Administrator must issue any Notice of Debarment not later than 2 years 
after the occurrence of the violation.
    (2) No employer, agent, or attorney may be debarred under this 
subpart for more than 3 years from the date of the final agency 
decision.
    (d) Definition of violation. For the purposes of this section, a 
violation includes:
    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits, or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188 
or 29 CFR part 501, or an audit under Sec.  655.180;
    (vii) Employing an H-2A worker outside the area of intended 
employment, in an activity/activities not listed in the job order or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (viii) A violation of the requirements of Sec.  655.135(j) or (k);
    (ix) A violation of any of the provisions listed in 29 CFR 
501.4(a); or
    (x) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected;
    (2) The employer's failure to pay a necessary certification fee in 
a timely manner;
    (3) The H-2ALC's failure to submit an original surety bond meeting 
the requirements of Sec.  655.132(c) within 30 days of the date the 
temporary agricultural labor certification was issued or failure to 
submit additional surety within 30 days of a finding under 20 CFR 
501.9(a) that the face value of the bond is insufficient;
    (4) Fraud involving the Application for Temporary Employment 
Certification; or
    (5) A material misrepresentation of fact during the application 
process.
    (e) Determining whether a violation is substantial. In determining 
whether a violation is so substantial 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; or
    (7) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s).
    (f) Debarment procedure--(1) Notice of Debarment. If the OFLC 
Administrator makes a determination to debar an employer, agent, or 
attorney, the OFLC Administrator will send the party a Notice of 
Debarment. The Notice will state the reason for the debarment finding, 
including a detailed explanation of the grounds for and the duration of 
the debarment, and it will inform the party subject to the Notice of 
its right to submit rebuttal evidence or to request a debarment 
hearing. If the party does not file rebuttal evidence or request a 
hearing within 30 calendar days of the date of the Notice of Debarment, 
the Notice will be the final agency action and the debarment will take 
effect at the end of the 30-day period.
    (2) Rebuttal. The party who received the Notice of Debarment may 
choose to submit evidence to rebut the grounds stated in the Notice 
within 30 calendar days of the date the Notice is issued. If rebuttal 
evidence is timely filed, the OFLC Administrator will issue a final 
determination on the debarment within 30 calendar days of receiving the 
rebuttal evidence. If the OFLC Administrator determines that the party

[[Page 36284]]

should be debarred, the OFLC Administrator will inform the party of its 
right to request a debarment hearing according to the procedures of 
paragraph (f)(3) of this section. The party must request a hearing 
within 30 calendar days after the date of the OFLC Administrator's 
final determination, or the OFLC Administrator's determination will be 
the final agency action and the debarment will take effect at the end 
of the 30-calendar-day period.
    (3) Hearing. The recipient of a Notice of Debarment may request a 
debarment hearing within 30 calendar days of the date of a Notice of 
Debarment or the date of a final determination of the OFLC 
Administrator after review of rebuttal evidence submitted pursuant to 
paragraph (f)(2) of this section. To obtain a debarment hearing, the 
debarred party must, within 30 calendar days of the date of the Notice 
or the final determination, file a written request to the Chief 
Administrative Law Judge, United States Department of Labor, 800 K 
Street NW, Suite 400-N, Washington, DC 20001-8002, and simultaneously 
serve a copy to the OFLC Administrator. The debarment will take effect 
30 calendar days from the date the Notice of Debarment or final 
determination is issued, unless a request for review is properly filed 
within 30 calendar days from the issuance of the Notice of Debarment or 
final determination. The timely filing of a request for a hearing stays 
the debarment pending the outcome of the hearing. Within 10 calendar 
days of receipt of the request for a hearing, the OFLC Administrator 
will send a certified copy of the ETA case file to the Chief ALJ by 
means normally assuring next day delivery. The Chief ALJ will 
immediately assign an ALJ to conduct the hearing. The procedures in 29 
CFR part 18 apply to such hearings, except that the request for a 
hearing will not be considered to be a complaint to which an answer is 
required.
    (4) Decision. After the hearing, the ALJ must affirm, reverse, or 
modify the OFLC Administrator's determination. The ALJ will prepare the 
decision within 60 calendar days after completion of the hearing and 
closing of the record. The ALJ's decision will be provided immediately 
to the parties to the debarment hearing by means normally assuring next 
day delivery. The ALJ's decision is the final agency action, unless 
either party, within 30 calendar days of the ALJ's decision, seeks 
review of the decision with the Administrative Review Board (ARB).
    (5) Review by the ARB. (i) Any party wishing review of the decision 
of an ALJ must, within 30 calendar days of the decision of the ALJ, 
petition the ARB to review the decision. Copies of the petition must be 
served on all parties and on the ALJ. The ARB will decide whether to 
accept the petition within 30 calendar days of receipt. If the ARB 
declines to accept the petition, or if the ARB does not issue a notice 
accepting a petition within 30 calendar days after the receipt of a 
timely filing of the petition, the decision of the ALJ will be deemed 
the final agency action. If a petition for review is accepted, the 
decision of the ALJ will be stayed unless and until the ARB issues an 
order affirming the decision. The ARB must serve notice of its decision 
to accept or not to accept the petition upon the ALJ and upon all 
parties to the proceeding.
    (ii) Upon receipt of the ARB's notice to accept the petition, the 
Office of Administrative Law Judges will promptly forward a copy of the 
complete hearing record to the ARB.
    (iii) Where the ARB has determined to review such decision and 
order, the ARB will notify each party of the issue(s) raised, the form 
in which submissions must be made (e.g., briefs or oral argument), and 
the time within which such presentation must be submitted.
    (6) ARB decision. The ARB's final decision must be issued within 90 
calendar days from the notice granting the petition and served upon all 
parties and the ALJ. If the ARB fails to provide a decision within 90 
calendar days from the notice granting the petition, the ALJ's decision 
will be the final agency decision.
    (g) Concurrent debarment jurisdiction. OFLC and WHD have concurrent 
jurisdiction to impose a debarment remedy under this section or under 
29 CFR 501.20. When considering debarment, OFLC and WHD may inform one 
another and may coordinate their activities. A specific violation for 
which debarment is imposed will be cited in a single debarment 
proceeding. Copies of final debarment decisions will be forwarded to 
DHS promptly.
    (h) Debarment involving members of agricultural associations. If 
the OFLC Administrator determines that an individual employer-member of 
an agricultural association has committed a substantial violation, the 
debarment determination will apply only to that member unless the OFLC 
Administrator determines that the agricultural association or another 
agricultural association member participated in the violation, in which 
case the debarment will be invoked against the agricultural association 
or other complicit agricultural association member(s) as well.
    (i) Debarment involving agricultural associations acting as joint 
employers. If the OFLC Administrator determines that an agricultural 
association acting as a joint employer with its members has committed a 
substantial violation, the debarment determination will apply only to 
the agricultural association, and will not be applied to any individual 
employer-member of the agricultural association. However, if the OFLC 
Administrator determines that the member participated in, had knowledge 
of, or had reason to know of the violation, the debarment may be 
invoked against the complicit agricultural association member as well. 
An agricultural association debarred from the H-2A temporary labor 
certification program will not be permitted to continue to file as a 
joint employer with its members during the period of the debarment.
    (j) Debarment involving agricultural associations acting as sole 
employers. If the OFLC Administrator determines that an agricultural 
association acting as a sole employer has committed a substantial 
violation, the debarment determination will apply only to the 
agricultural association and any successor in interest to the debarred 
agricultural association.


Sec.  655.183  Less than substantial violations.

    (a) Requirement of special procedures. If the OFLC Administrator 
determines that a less than substantial violation has occurred but has 
reason to believe that past actions on the part of the employer (or 
agent or attorney) may have had and may continue to have a chilling or 
otherwise negative effect on the recruitment, employment, and retention 
of U.S. workers, the OFLC Administrator may require the employer to 
conform to special procedures before and after the temporary 
agricultural labor certification determination. These special 
procedures may include special on-site positive recruitment and 
streamlined interviewing and referral techniques. The special 
procedures are designed to enhance U.S. worker recruitment and 
retention in the next year as a condition for receiving a temporary 
agricultural labor certification. Such requirements will be reasonable; 
will not require the employer to offer better wages, working 
conditions, and benefits than those specified in Sec.  655.122; and 
will be no more than deemed necessary to assure employer compliance 
with the test of U.S. worker availability and adverse effect criteria 
of this subpart.
    (b) Notification of required special procedures. The OFLC 
Administrator will notify the employer (or agent or

[[Page 36285]]

attorney) in writing of the special procedures that will be required in 
the coming year. The notification will state the reasons for the 
imposition of the requirements, state that the employer's agreement to 
accept the conditions will constitute inclusion of them as bona fide 
conditions and terms of a temporary agricultural labor certification, 
and will offer the employer an opportunity to request an administrative 
review or a de novo hearing before an ALJ. If an administrative review 
or de novo hearing is requested, the procedures prescribed in Sec.  
655.171 will apply.
    (c) Failure to comply with special procedures. If the OFLC 
Administrator determines that the employer has failed to comply with 
special procedures required pursuant to paragraph (a) of this section, 
the OFLC Administrator will send a written notice to the employer, 
stating that the employer's otherwise affirmative H-2A certification 
determination will be reduced by 25 percent of the total number of H-2A 
workers requested (which cannot be more than those requested in the 
previous year) for a period of 1 year. Notice of such a reduction in 
the number of workers requested will be conveyed to the employer by the 
OFLC Administrator in a written temporary agricultural labor 
certification determination. The notice will offer the employer an 
opportunity to request administrative review or a de novo hearing 
before an ALJ. If administrative review or a de novo hearing is 
requested, the procedures prescribed in Sec.  655.171 will apply, 
provided that if the ALJ affirms the OFLC Administrator's determination 
that the employer has failed to comply with special procedures required 
by paragraph (a) of this section, the reduction in the number of 
workers requested will be 25 percent of the total number of H-2A 
workers requested (which cannot be more than those requested in the 
previous year) for a period of 1 year.


Sec.  655.184  Applications involving fraud or willful 
misrepresentation.

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


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

    (a) Filing with DOL. Complaints arising under this subpart must be 
filed through the Job Service Complaint System, as described in 20 CFR 
part 658, subpart E. Complaints involving allegations of fraud or 
misrepresentation must be referred by the SWA to the CO for appropriate 
handling and resolution. Complaints that involve work contracts must be 
referred by the SWA to WHD for appropriate handling and resolution, as 
described in 29 CFR part 501. As part of this process, WHD may report 
the results of its investigation to the OFLC Administrator for 
consideration of employer penalties or such other action as may be 
appropriate.
    (b) Filing with the Department of Justice. Complaints alleging that 
an employer discouraged an eligible U.S. worker from applying, failed 
to hire, discharged, or otherwise discriminated against an eligible 
U.S. worker, or discovered violations involving the same, will be 
referred to the U.S. Department of Justice, Civil Rights Division, 
Immigrant and Employee Rights Section, in addition to any activity, 
investigation, and/or enforcement action taken by ETA or a SWA. 
Likewise, if the Immigrant and Employee Rights Section becomes aware of 
a violation of the regulations in this subpart, it may provide such 
information to the appropriate SWA and the CO.

Labor Certification Process for Temporary Agricultural Employment in 
Range Sheep Herding, Goat Herding, and Production of Livestock 
Occupations


Sec.  655.200  Scope and purpose of herding and range livestock 
regulations in Sec. Sec.  655.200 through 655.235.

    (a) Purpose. The purpose of Sec. Sec.  655.200 through 655.235 is 
to establish certain procedures for employers who apply to the 
Department to obtain labor certifications to hire temporary 
agricultural foreign workers to perform herding or production of 
livestock on the range, as defined in Sec.  655.201. Unless otherwise 
specified in Sec. Sec.  655.200 through 655.235, employers whose job 
opportunities meet the qualifying criteria under Sec. Sec.  655.200 
through 655.235 must fully comply with all of the requirements of 
Sec. Sec.  655.100 through 655.185; part 653, subparts B and F, of this 
chapter; and part 654 of this chapter.
    (b) Jobs subject to Sec. Sec.  655.200 through 655.235. The 
procedures in Sec. Sec.  655.200 through 655.235 apply to job 
opportunities with the following unique characteristics:
    (1) The work activities involve the herding or production of 
livestock (which includes work that is closely and directly related to 
herding and/or the production of livestock), as defined under Sec.  
655.201;
    (2) The work is performed on the range for the majority (meaning 
more than 50 percent) of the workdays in the work contract period. Any 
additional work performed at a place other than the range must 
constitute the production of livestock (which includes work that is 
closely and directly related to herding and/or the production of 
livestock); and
    (3) The work activities generally require the workers to be on call 
24 hours per day, 7 days a week.


Sec.  655.201  Definition of herding and range livestock terms.

    The following are terms that are not defined in Sec. Sec.  655.100 
through 655.185 and are specific to applications for labor 
certifications involving the herding or production of livestock on the 
range.
    Herding. Activities associated with the caring, controlling, 
feeding, gathering, moving, tending, and sorting of livestock on the 
range.
    Livestock. An animal species or species group such as sheep, 
cattle, goats, horses, or other domestic hooved animals. In the context 
of Sec. Sec.  655.200 through 655.235, livestock refers to those 
species raised on the range.
    Production of livestock. The care or husbandry of livestock 
throughout one or more seasons during the year, including guarding and 
protecting livestock from predatory animals and poisonous plants; 
feeding, fattening, and watering livestock; examining livestock to 
detect diseases, illnesses, or other injuries; administering medical 
care to sick or injured livestock; applying vaccinations and spraying 
insecticides on the range; and assisting with the breeding, birthing, 
raising, weaning, castration, branding, and general care of livestock. 
This term also includes duties performed off the range that are closely 
and directly related to herding and/or the production of livestock. The 
following are non-exclusive examples of ranch work that is closely and 
directly related: Repairing fences used to contain the herd; assembling 
lambing jugs; cleaning out lambing jugs; feeding and caring for the 
dogs that the workers use on the range to assist with herding or

[[Page 36286]]

guarding the flock; feeding and caring for the horses that the workers 
use on the range to help with herding or to move the sheep camps and 
supplies; and loading animals into livestock trucks for movement to the 
range or to market. The following are examples of ranch work that is 
not closely and directly related: Working at feedlots; planting, 
irrigating and harvesting crops; operating or repairing heavy 
equipment; constructing wells or dams; digging irrigation ditches; 
applying weed control; cutting trees or chopping wood; constructing or 
repairing the bunkhouse or other ranch buildings; and delivering 
supplies from the ranch to the herders on the range.
    Range. The range is any area located away from the ranch 
headquarters used by the employer. The following factors are indicative 
of the range: It involves land that is uncultivated; it involves wide 
expanses of land, such as thousands of acres; it is located in a 
remote, isolated area; and typically range housing is required so that 
the herder can be in constant attendance to the herd. No one factor is 
controlling, and the totality of the circumstances is considered in 
determining what should be considered range. The range does not include 
feedlots, corrals, or any area where the stock involved would be near 
ranch headquarters. Ranch headquarters, which is a place where the 
business of the ranch occurs and is often where the owner resides, is 
limited and does not embrace large acreage; it only includes the 
ranchhouse, barns, sheds, pen, bunkhouse, cookhouse, and other 
buildings in the vicinity. The range also does not include any area 
where a herder is not required to be available constantly to attend to 
the livestock and to perform tasks, including but not limited to, 
ensuring the livestock do not stray, protecting them from predators, 
and monitoring their health.
    Range housing. Range housing is housing located on the range that 
meets the standards articulated under Sec.  655.235.


Sec.  655.205   Herding and range livestock job orders.

    An employer whose job opportunity has been determined to qualify 
for the procedures in Sec. Sec.  655.200 through 655.235 is not 
required to comply with the job order filing timeframe requirements in 
Sec.  655.121(a) and (b) or the job order review process in Sec.  
655.121(e) and (f). Rather, the employer must submit the job order 
along with a completed Application for Temporary Employment 
Certification, as required in Sec.  655.215, to the designated NPC for 
the NPC's review.


Sec.  655.210   Contents of herding and range livestock job orders.

    (a) Content of job offers. Unless otherwise specified in Sec. Sec.  
655.200 through 655.235, the employer must satisfy the requirements for 
job orders established under Sec.  655.121 and for the content of job 
offers established under part 653, subpart F, of this chapter and Sec.  
655.122.
    (b) Job qualifications and requirements. The job offer must include 
a statement that the workers are on call for up to 24 hours per day, 7 
days per week and that the workers spend the majority (meaning more 
than 50 percent) of the workdays during the contract period in the 
herding or production of livestock on the range. Duties may include 
activities performed off the range only if such duties constitute the 
production of livestock (which includes work that is closely and 
directly related to herding and/or the production of livestock). All 
such duties must be specifically disclosed on the job order. The job 
offer may also specify that applicants must possess up to 6 months of 
experience in similar occupations involving the herding or production 
of livestock on the range and require reference(s) for the employer to 
verify applicant experience. An employer may specify other appropriate 
job qualifications and requirements for its job opportunity. Job offers 
may not impose on U.S. workers any restrictions or obligations that 
will not be imposed on the employer's H-2A workers engaged in herding 
or the production of livestock on the range. Any such requirements must 
be applied equally to both U.S. and foreign workers. Each job 
qualification and requirement listed in the job offer must be bona 
fide, and the CO may require the employer to submit documentation to 
substantiate the appropriateness of any other job qualifications and 
requirements specified in the job offer.
    (c) Range housing. The employer must specify in the job order that 
range housing will be provided. The range housing must meet the 
requirements set forth in Sec.  655.235.
    (d) Employer-provided items. (1) The employer must provide to the 
worker, without charge or deposit charge, all tools, supplies, and 
equipment required by law, by the employer, or by the nature of the 
work to perform the duties assigned in the job offer safely and 
effectively. The employer must specify in the job order which items it 
will provide to the worker.
    (2) Because of the unique nature of the herding or production of 
livestock on the range, this equipment must include effective means of 
communicating with persons capable of responding to the worker's needs 
in case of an emergency including, but not limited to, satellite 
phones, cell phones, wireless devices, radio transmitters, or other 
types of electronic communication systems. The employer must specify in 
the job order:
    (i) The type(s) of electronic communication device(s) and that such 
device(s) will be provided without charge or deposit charge to the 
worker during the entire period of employment; and
    (ii) If there are periods of time when the workers are stationed in 
locations where electronic communication devices may not operate 
effectively, the employer must specify in the job order, the means and 
frequency with which the employer plans to make contact with the 
workers to monitor the worker's well-being. This contact must include 
either arrangements for the workers to be located, on a regular basis, 
in geographic areas where the electronic communication devices operate 
effectively, or arrangements for regular, pre-scheduled, in-person 
visits between the workers and the employer, which may include visits 
between the workers and other persons designated by the employer to 
resupply the workers' camp.
    (e) Meals. The employer must specify in the job offer and provide 
to the worker, without charge or deposit charge:
    (1) Either three sufficient meals a day, or free and convenient 
cooking facilities and adequate provision of food to enable the worker 
to prepare his or her own meals. To be sufficient or adequate, the 
meals or food provided must include a daily source of protein, 
vitamins, and minerals; and
    (2) Adequate potable water, or water that can be easily rendered 
potable and the means to do so. Standards governing the provision of 
water to range workers are also addressed in Sec.  655.235(e).
    (f) Hours and earnings statements. (1) The employer must keep 
accurate and adequate records with respect to the worker's earnings and 
furnish to the worker on or before each payday a statement of earnings. 
The employer is exempt from recording the hours actually worked each 
day, the time the worker begins and ends each workday, as well as the 
nature and amount of work performed, but all other regulatory 
requirements in Sec.  655.122(j) and (k) apply.

[[Page 36287]]

    (2) The employer must keep daily records indicating whether the 
site of the employee's work was on the range or off the range. If the 
employer prorates a worker's wage pursuant to paragraph (g)(2) of this 
section because of the worker's voluntary absence for personal reasons, 
it must also keep a record of the reason for the worker's absence.
    (g) Rates of pay. The employer must pay the worker at least the 
monthly AEWR, as specified in Sec.  655.211, the agreed-upon collective 
bargaining wage, or the applicable minimum wage imposed by Federal or 
state law or judicial action, in effect at the time work is performed, 
whichever is highest, for every month of the job order period or 
portion thereof.
    (1) The offered wage shall not be based on commissions, bonuses, or 
other incentives, unless the employer guarantees a wage that equals or 
exceeds the monthly AEWR, the agreed-upon collective bargaining wage, 
or the applicable minimum wage imposed by Federal or state law or 
judicial action, or any agreed-upon collective bargaining rate, 
whichever is highest, and must be paid to each worker free and clear 
without any unauthorized deductions.
    (2) The employer may prorate the wage for the initial and final pay 
periods of the job order period if its pay period does not match the 
beginning or ending dates of the job order. The employer also may 
prorate the wage if a worker is voluntarily unavailable to work for 
personal reasons.
    (h) Frequency of pay. The employer must state in the job offer the 
frequency with which the worker will be paid, which must be at least 
twice monthly. Employers must pay wages when due.


Sec.  655.211   Herding and range livestock wage rate.

    (a) Compliance with rates of pay. (1) To comply with its obligation 
under Sec.  655.210(g), an employer must offer, advertise in its 
recruitment, and pay each worker employed under Sec. Sec.  655.200 
through 655.235 a wage that is the highest of the monthly AEWR 
established under this section, the agreed-upon collective bargaining 
wage, or the applicable minimum wage imposed by Federal or state law or 
judicial action.
    (2) If the monthly AEWR established under this section is adjusted 
during a work contract, and is higher than both the agreed-upon 
collective bargaining wage and the applicable minimum wage imposed by 
Federal or state law or judicial action in effect at the time the work 
is performed, the employer must pay that adjusted monthly AEWR not 
later than 14 calendar days following the date of publication by the 
Department in the Federal Register.
    (b) Publication of the monthly AEWR. The OFLC Administrator will 
publish, at least once in each calendar year, on a date to be 
determined by the OFLC Administrator, an update to the monthly AEWR as 
a notice in the Federal Register.
    (c) Monthly AEWR rate. (1) The monthly AEWR shall be $7.25 
multiplied by 48 hours, and then multiplied by 4.333 weeks per month; 
and
    (2) Beginning for calendar year 2017, the monthly AEWR shall be 
adjusted annually based on the ECI for wages and salaries published by 
BLS for the preceding October--October period.
    (d) Transition rates. (1) For the period from November 16, 2015 
through calendar year 2016, the Department shall set the monthly AEWR 
at 80 percent of the result of the formula in paragraph (c) of this 
section.
    (2) For calendar year 2017, the Department shall set the monthly 
AEWR at 90 percent of the result of the formula in paragraph (c) of 
this section.
    (3) For calendar year 2018 and beyond, the Department shall set the 
monthly AEWR at 100 percent of the result of the formula in paragraph 
(c) of this section.


Sec.  655.215   Procedures for filing herding and range livestock 
Applications for Temporary Employment Certification.

    (a) Compliance with Sec. Sec.  655.130 through 655.132. Unless 
otherwise specified in Sec. Sec.  655.200 through 655.235, the employer 
must satisfy the requirements for filing an Application for Temporary 
Employment Certification with the NPC designated by the OFLC 
Administrator as required under Sec. Sec.  655.130 through 655.132.
    (b) What to file. An employer must file a completed Application for 
Temporary Employment Certification and job order.
    (1) The Application for Temporary Employment Certification and job 
order may cover multiple areas of intended employment and one or more 
contiguous states.
    (2) The period of need identified on the Application for Temporary 
Employment Certification and job order for range sheep or goat herding 
or production occupations must be no more than 364 calendar days. The 
period of need identified on the Application for Temporary Employment 
Certification and job order for range herding or production of cattle, 
horses, or other domestic hooved livestock, except sheep and goats, 
must be for no more than 10 months.
    (3) An agricultural association filing as a joint employer may 
submit a single job order and master Application for Temporary 
Employment Certification on behalf of its employer-members located in 
more than two contiguous states with different first dates of need. 
Unless modifications to a sheep or goat herding or production of 
livestock job order are required by the CO or requested by the 
employer, pursuant to Sec.  655.121(h), the agricultural association is 
not required to re-submit the job order during the calendar year with 
its Application for Temporary Employment Certification.


Sec.  655.220   Processing herding and range livestock Applications for 
Temporary Employment Certification.

    (a) NPC review. Unless otherwise specified in Sec. Sec.  655.200 
through 655.235, the CO will review and process the Application for 
Temporary Employment Certification and job order in accordance with the 
requirements outlined in Sec. Sec.  655.140 through 655.145, and will 
work with the employer to address any deficiencies in the job order in 
a manner consistent with Sec. Sec.  655.140 through 655.141.
    (b) Notice of acceptance. Once the job order is determined to meet 
all regulatory requirements, the NPC will issue a NOA consistent with 
Sec.  655.143(b), provide notice to the employer authorizing 
conditional access to the interstate clearance system, and transmit an 
electronic copy of the approved job order to each SWA with jurisdiction 
over the anticipated place(s) of employment. The CO will direct the SWA 
to place the job order promptly in clearance and commence recruitment 
of U.S. workers. Where an agricultural association files as a joint 
employer and submits a single job order on behalf of its employer-
members, the CO will transmit a copy of the job order to the SWA having 
jurisdiction over the location of the agricultural association, those 
SWAs having jurisdiction over other States where the work will take 
place, and to the SWAs in all States designated under Sec.  655.154(d), 
directing each SWA to place the job order in intrastate clearance and 
commence recruitment of U.S. workers.
    (c) Electronic job registry. Under Sec.  655.144(b), where a single 
job order is approved for an agricultural association filing as a joint 
employer on behalf of its employer-members with different first dates 
of need, the Department will keep the job order posted on the OFLC 
electronic job registry until the end of the recruitment period, as set 
forth in Sec.  655.135(d), has elapsed for all

[[Page 36288]]

employer-members identified on the job order.


Sec.  655.225   Post-acceptance requirements for herding and range 
livestock.

    (a) Unless otherwise specified in this section, the requirements 
for recruiting U.S. workers by the employer and SWA must be satisfied, 
as specified in Sec. Sec.  655.150 through 655.158.
    (b) Pursuant to Sec.  655.150(b), where a single job order is 
approved for an agricultural association filing as a joint employer on 
behalf of its employer-members with different first dates of need, each 
of the SWAs to which the job order was transmitted by the CO or the SWA 
having jurisdiction over the location of the agricultural association 
must keep the job order on its active file the end of the recruitment 
period, as set forth in Sec.  655.135(d), has elapsed for all employer-
members identified on the job order, and must refer to the agricultural 
association each qualified U.S. worker who applies (or on whose behalf 
an application is made) for the job opportunity.
    (c) Any eligible U.S. worker who applies (or on whose behalf an 
application is made) for the job opportunity and is hired will be 
placed at the location nearest to him or her absent a request for a 
different location by the U.S. worker. Employers must make reasonable 
efforts to accommodate such placement requests by the U.S. worker.
    (d) The employer will not be required to place an advertisement in 
a newspaper of general circulation serving the area of intended 
employment, as required in Sec.  655.151.
    (e) An agricultural association that fulfills the recruitment 
requirements for its members is required to maintain a written 
recruitment report containing the information required by Sec.  655.156 
for each individual employer-member identified in the application or 
job order, including any approved modifications.


Sec.  655.230   Range housing.

    (a) Housing for work performed on the range must meet the minimum 
standards contained in Sec. Sec.  655.235 and 655.122(d)(2).
    (b) The SWA with jurisdiction over the location of the range 
housing must inspect and certify that such housing used on the range is 
sufficient to accommodate the number of certified workers and meets all 
applicable standards contained in Sec.  655.235. The SWA must conduct a 
housing inspection no less frequently than once every three calendar 
years after the initial inspection and provide documentation to the 
employer certifying the housing for a period lasting no more than 36 
months. If the SWA determines that an employer's housing cannot be 
inspected within a 3-year timeframe or, when it is inspected, the 
housing does not meet all the applicable standards, the CO may deny the 
H-2A application in full or in part or require additional inspections, 
to be carried out by the SWA, in order to satisfy the regulatory 
requirement.
    (c)(1) The employer may self-certify its compliance with the 
standards contained in Sec.  655.235 only when the employer has 
received a certification from the SWA for the range housing it seeks to 
use within the past 36 months.
    (2) To self-certify the range housing, the employer must submit a 
copy of the valid SWA housing certification and a written statement, 
signed and dated by the employer, to the SWA and the CO assuring that 
the housing is available, sufficient to accommodate the number of 
workers being requested for temporary agricultural labor certification, 
and meets all the applicable standards for range housing contained in 
Sec.  655.235.
    (d) The use of range housing at a location other than the range, 
where fixed-site employer-provided housing would otherwise be required, 
is permissible only when the worker occupying the housing is performing 
work that constitutes the production of livestock (which includes work 
that is closely and directly related to herding and/or the production 
of livestock). In such a situation, workers must be granted access to 
facilities, including but not limited to toilets and showers with hot 
and cold water under pressure, as well as cooking and cleaning 
facilities, that would satisfy the requirements contained in Sec.  
655.122(d)(1)(i). When such work does not constitute the production of 
livestock, workers must be housed in housing that meets all the 
requirements of Sec.  655.122(d).


Sec.  655.235   Standards for range housing.

    An employer employing workers under Sec. Sec.  655.200 through 
655.235 may use a mobile unit, camper, or other similar mobile housing 
vehicle, tents, and remotely located stationary structures along 
herding trails, which meet the following standards:
    (a) Housing site. Range housing sites must be well drained and free 
from depressions where water may stagnate.
    (b) Water supply. (1) An adequate and convenient supply of water 
that meets the standards of the state or local health authority must be 
provided.
    (2) The employer must provide each worker at least 4.5 gallons of 
potable water, per day, for drinking and cooking, delivered on a 
regular basis, so that the workers will have at least this amount 
available for their use until this supply is next replenished. 
Employers must also provide an additional amount of water sufficient to 
meet the laundry and bathing needs of each worker. This additional 
water may be non-potable, and an employer may require a worker to rely 
on natural sources of water for laundry and bathing needs if these 
sources are available and contain water that is clean and safe for 
these purposes. If an employer relies on alternate water sources to 
meet any of the workers' needs, it must take precautionary measures to 
protect the worker's health where these sources are also used to water 
the herd, dogs, or horses, to prevent contamination of the sources if 
they collect runoff from areas where these animals excrete.
    (3) The water provided for use by the workers may not be used to 
water dogs, horses, or the herd.
    (4) In situations where workers are located in areas that are not 
accessible by motorized vehicle, an employer may request a variance 
from the requirement that it deliver potable water to workers, provided 
the following conditions are satisfied:
    (i) It seeks the variance at the time it submits its Application 
for Temporary Employment Certification;
    (ii) It attests that it has identified natural sources of water 
that are potable or may be easily rendered potable in the area in which 
the housing will be located, and that these sources will remain 
available during the period the worker is at that location;
    (iii) It attests that it shall provide each worker an effective 
means to test whether the water is potable and, if not potable, the 
means to easily render it potable; and
    (iv) The CO approves the variance.
    (5) Individual drinking cups must be provided.
    (6) Containers appropriate for storing and using potable water must 
be provided and, in locations subject to freezing temperatures, 
containers must be small enough to allow storage in the housing unit to 
prevent freezing.
    (c) Excreta and liquid waste disposal. (1) Facilities, including 
shovels, must be provided and maintained for effective disposal of 
excreta and liquid waste in accordance with the requirements of the 
state health authority or involved Federal agency; and
    (2) If pits are used for disposal by burying of excreta and liquid 
waste, they must be kept fly-tight when not

[[Page 36289]]

filled in completely after each use. The maintenance of disposal pits 
must be in accordance with state and local health and sanitation 
requirements.
    (d) Housing structure. (1) Housing must be structurally sound, in 
good repair, in a sanitary condition and must provide shelter against 
the elements to occupants;
    (2) Housing, other than tents, must have flooring constructed of 
rigid materials easy to clean and so located as to prevent ground and 
surface water from entering;
    (3) Each housing unit must have at least one window that can be 
opened or skylight opening directly to the outdoors; and
    (4) Tents appropriate to weather conditions may be used only where 
the terrain and/or land use regulations do not permit the use of other 
more substantial housing.
    (e) Heating. (1) Where the climate in which the housing will be 
used is such that the safety and health of a worker requires heated 
living quarters, all such quarters must have properly installed 
operable heating equipment that supplies adequate heat. Where the 
climate in which the housing will be used is mild and the low 
temperature for any day in which the housing will be used is not 
reasonably expected to drop below 50 degrees Fahrenheit, no separate 
heating equipment is required as long as proper protective clothing and 
bedding are made available, free of charge or deposit charge, to the 
workers.
    (2) Any stoves or other sources of heat using combustible fuel must 
be installed and vented in such a manner as to prevent fire hazards and 
a dangerous concentration of gases. If a solid or liquid fuel stove is 
used in a room with wooden or other combustible flooring, there must be 
a concrete slab, insulated metal sheet, or other fireproof material on 
the floor under each stove, extending at least 18 inches beyond the 
perimeter of the base of the stove.
    (3) Any wall or ceiling within 18 inches of a solid or liquid fuel 
stove or stove pipe must be made of fireproof material. A vented metal 
collar must be installed around a stovepipe or vent passing through a 
wall, ceiling, floor, or roof.
    (4) When a heating system has automatic controls, the controls must 
be of the type that cuts off the fuel supply when the flame fails or is 
interrupted or whenever a predetermined safe temperature or pressure is 
exceeded.
    (5) A heater may be used in a tent if the heater is approved by a 
testing service and if the tent is fireproof.
    (f) Lighting. (1) In areas where it is not feasible to provide 
electrical service to range housing units, including tents, lanterns 
must be provided (kerosene wick lights meet the definition of lantern); 
and
    (2) Lanterns, where used, must be provided in a minimum ratio of 
one per occupant of each unit, including tents.
    (g) Bathing, laundry, and hand washing. Bathing, laundry, and hand 
washing facilities must be provided when it is not feasible to provide 
hot and cold water under pressure.
    (h) Food storage. When mechanical refrigeration of food is not 
feasible, the worker must be provided with another means of keeping 
food fresh and preventing spoilage, such as a butane or propane gas 
refrigerator. Other proven methods of safeguarding fresh foods, such as 
dehydrating or salting, are acceptable.
    (i) Cooking and eating facilities. (1) When workers or their 
families are permitted or required to cook in their individual unit, a 
space must be provided with adequate lighting and ventilation; and
    (2) Wall surfaces next to all food preparation and cooking areas 
must be of nonabsorbent, easy to clean material. Wall surfaces next to 
cooking areas must be made of fire-resistant material.
    (j) Garbage and other refuse. (1) Durable, fly-tight, clean 
containers must be provided to each housing unit, including tents, for 
storing garbage and other refuse; and
    (2) Provision must be made for collecting or burying refuse, which 
includes garbage, at least twice a week or more often if necessary, 
except where the terrain in which the housing is located cannot be 
accessed by motor vehicle and the refuse cannot be buried, in which 
case the employer must provide appropriate receptacles for storing the 
refuse and for removing the trash when the employer next transports 
supplies to the location.
    (k) Insect and rodent control. Appropriate materials, including 
sprays, and sealed containers for storing food, must be provided to aid 
housing occupants in combating insects, rodents and other vermin.
    (l) Sleeping facilities. A separate comfortable and clean bed, cot, 
or bunk, with a clean mattress, must be provided for each person, 
except in a family arrangement, unless a variance is requested from and 
granted by the CO. When filing an application for certification and 
only where it is demonstrated to the CO that it is impractical to 
provide a comfortable and clean bed, cot, or bunk, with a clean 
mattress, for each range worker, the employer may request a variance 
from this requirement to allow for a second worker to join the range 
operation. Such a variance must be used infrequently, and the period of 
the variance will be temporary (i.e., the variance shall be for no more 
than 3 consecutive days). Should the CO grant the variance, the 
employer must supply a sleeping bag or bed roll for the second occupant 
free of charge or deposit charge.
    (m) Fire, safety, and first aid. (1) All units in which people 
sleep or eat must be constructed and maintained according to applicable 
state or local fire and safety law.
    (2) No flammable or volatile liquid or materials may be stored in 
or next to rooms used for living purposes, except for those needed for 
current household use.
    (3) Housing units for range use must have a second means of escape 
through which the worker can exit the unit without difficulty.
    (4) Tents are not required to have a second means of escape, except 
when large tents with walls of rigid material are used.
    (5) Adequate, accessible fire extinguishers in good working 
condition and first aid kits must be provided in the range housing.

Labor Certification Process for Temporary Agricultural Employment in 
Animal Shearing, Commercial Beekeeping, Custom Combining, and 
Reforestation Occupations


Sec.  655.300   Scope and purpose.

    (a) Purpose. The purpose of Sec. Sec.  655.300 through 655.304 is 
to establish certain procedures for employers who apply to the 
Department of Labor to obtain labor certifications to hire temporary 
agricultural foreign workers to perform animal shearing, commercial 
beekeeping, custom combining, and reforestation, as defined in this 
subpart. Unless otherwise specified in Sec. Sec.  655.300 through 
655.304, employers whose job opportunities meet the qualifying criteria 
under Sec. Sec.  655.300 through 655.304 must fully comply with all of 
the requirements of Sec. Sec.  655.100 through 655.185; part 653, 
subparts B and F, of this chapter; and part 654 of this chapter.
    (b) Jobs subject to Sec. Sec.  655.300 through 655.304. The 
procedures in Sec. Sec.  655.300 through 655.304 apply to job 
opportunities for animal shearing, commercial beekeeping, custom 
combining, and reforestation as defined under Sec. Sec.  655.103 and 
655.301, where workers are required to perform agricultural work on a 
scheduled itinerary covering multiple areas of intended employment in 
one or more contiguous states.

[[Page 36290]]

Sec.  655.301   Definition of terms.

    The following are terms that are not defined in Sec. Sec.  655.100 
through 655.185 and are specific to applications for labor 
certifications involving animal shearing, commercial beekeeping, and 
custom combining.
    Animal shearing. Activities associated with the shearing and 
crutching of sheep, goats, or other animals producing wool or fleece, 
including gathering, moving, and sorting animals into shearing yards, 
stations, or pens; placing animals into position, whether loose, tied, 
or otherwise immobilized, prior to shearing; selecting and using 
suitable handheld or power-driven equipment and tools for shearing; 
shearing animals with care according to industry standards; marking, 
sewing, or disinfecting any nicks and cuts on animals due to shearing; 
cleaning and washing animals after shearing is complete; gathering, 
storing, loading, and delivering wool or fleece to storage yards, 
trailers or other containers; and maintaining, oiling, sharpening, and 
repairing equipment and other tools used for shearing. Transporting 
equipment and other tools used for shearing qualifies as an activity 
associated with animal shearing for the purposes of this definition 
only where such activities are performed by workers who are employed by 
the same employer as the animal shearing crew and who travel and work 
with the animal shearing crew. Wool or fleece grading, which involve 
examining, sorting, and placing unprocessed wool or fleece into 
containers according to government or industry standards, qualify as 
activities associated with animal shearing for the purposes of this 
definition only where such activities are performed by workers who are 
employed by the same employer as the animal shearing crew and who 
travel and work with the animal shearing crew.
    Commercial beekeeping. Activities associated with the care or 
husbandry of bee colonies for producing and collecting honey, wax, 
pollen, and other products for commercial sale or providing pollination 
services to agricultural producers, including assembling, maintaining, 
and repairing hives, frames, or boxes; inspecting and monitoring 
colonies to detect diseases, illnesses, or other health problems; 
feeding and medicating bees to maintain the health of the colonies; 
installing, raising, and moving queen bees; splitting or dividing 
colonies, when necessary, and replacing combs; preparing, loading, 
transporting, and unloading colonies and equipment; forcing bees from 
hives, inserting honeycomb of bees into hives, or inducing swarming of 
bees into hives of prepared honeycomb frames; uncapping, extracting, 
refining, harvesting, and packaging honey, beeswax, or other products 
for commercial sale; cultivating bees to produce bee colonies and queen 
bees for sale; and maintaining and repairing equipment and other tools 
used to work with bee colonies.
    Custom combining. Activities associated with combining crops for 
agricultural producers, including operating self-propelled combine 
equipment (i.e., equipment that reaps or harvests, threshes, and swath 
or winnow the crop); performing manual or mechanical adjustments to 
cutters, blowers and conveyers; performing safety checks on harvesting 
equipment; and maintaining and repairing equipment and other tools used 
for performing swathing or combining work. Transporting harvested crops 
to elevators, silos, or other storage areas, and transporting combine 
equipment and other tools used for custom combining work from one field 
to another, qualify as activities associated with custom combining for 
the purposes of this definition only where such activities are 
performed by workers who are employed by the same employer as the 
custom combining crew and who travel and work with the custom combining 
crew. Component parts of custom combining not performed by the 
harvesting entity (e.g., grain cleaning), are not eligible for the 
variance granted by this provision. The planting and cultivation of 
crops, and other related activities, are not considered custom 
combining or activities associated with custom combining for the 
purposes of this definition.


Sec.  655.302   Contents of job orders.

    (a) Content of job offers. Unless otherwise specified in Sec. Sec.  
655.300 through 655.304, the employer must satisfy the requirements for 
job orders established under Sec.  655.121 and for the content of job 
offers established under part 653, subpart F, of this chapter and Sec.  
655.122.
    (b) Job qualifications and requirements. (1) For job opportunities 
involving animal shearing, the job offer may specify that applicants 
must possess up to 6 months of experience in similar occupations and 
require reference(s) for the employer to verify applicant experience. 
The job offer may also specify that applicants must possess experience 
with an industry shearing method or pattern, must be willing to join 
the employer at the time the job opportunity is available and at the 
place the employer is located, and must be available to complete the 
scheduled itinerary under the job order. U.S. applicants whose 
experience is based on a similar or related industry shearing method or 
pattern must be afforded a break-in period of no less than 5 working 
days to adapt to the employer's preferred shearing method or pattern.
    (2) For job opportunities involving commercial beekeeping, the job 
offer may specify that applicants must possess up to 3 months of 
experience in similar occupations and require reference(s) for the 
employer to verify applicant experience. The job offer may also specify 
that applicants may not have bee, pollen, or honey-related allergies, 
must possess a valid commercial U.S. driver's license or be able to 
obtain such license not later than 30 days after the first workday 
after the arrival of the worker at the place of employment, must be 
willing to join the employer at the time and place the employer is 
located, and must be available to complete the scheduled itinerary 
under the job order.
    (3) For job opportunities involving custom combining, the job offer 
may specify that applicants must possess up to 6 months of experience 
in similar occupations and require reference(s) for the employer to 
verify applicant experience. The job offer may also specify that 
applicants must be willing to join the employer at the time and place 
the employer is located and must be available to complete the scheduled 
itinerary under the job order.
    (4) An employer may specify other appropriate job qualifications 
and requirements for its job opportunity, subject to Sec.  655.122(a) 
and (b).
    (c) Employer-provided communication devices. For job opportunities 
involving animal shearing and custom combining, the employer must 
provide to the worker, without charge or deposit charge, effective 
means of communicating with persons capable of responding to the 
worker's needs in case of an emergency, including, but not limited to, 
satellite phones, cell phones, wireless devices, radio transmitters, or 
other types of electronic communication systems. The employer must 
specify in the job order the type(s) of electronic communication 
device(s) and that such devices will be provided without charge or 
deposit charge to the worker during the entire period of employment.
    (d) Housing. For job opportunities involving animal shearing and 
custom combining, the employer must specify

[[Page 36291]]

in the job order that housing will be provided as set forth in Sec.  
655.304.


Sec.  655.303   Procedures for filing Applications for Temporary 
Employment Certification.

    (a) Compliance with Sec. Sec.  655.130 through 655.132. Unless 
otherwise specified in Sec. Sec.  655.300 through 655.304 the employer 
must satisfy the requirements for filing an Application for Temporary 
Employment Certification with the NPC designated by the OFLC 
Administrator as required under Sec. Sec.  655.130 through 655.132.
    (b) What to file. An employer must file a completed Application for 
Temporary Employment Certification. The employer must identify each 
place of employment with as much geographic specificity as possible, 
including the names of each farmer/rancher, the names, physical 
locations and estimated period of employment where work will be 
performed under the job order.
    (1) The Application for Temporary Employment Certification and job 
order may cover multiple areas of intended employment in one or more 
contiguous states. An Application for Temporary Employment 
Certification and job order for opportunities involving commercial 
beekeeping may include one noncontiguous state at the beginning and end 
of the period of employment for the overwintering of bee colonies.
    (2) An agricultural association filing as a joint employer may 
submit a single job order and master Application for Temporary 
Employment Certification on behalf of its employer-members located in 
more than two contiguous states. An agricultural association filing as 
a joint employer may file an Application for Temporary Employment 
Certification and job order for opportunities involving commercial 
beekeeping may include one noncontiguous state at the beginning and end 
of the period of employment for the overwintering of bee colonies.


Sec.  655.304   Standards for mobile housing.

    (a) Use of mobile housing. An employer employing workers engaged in 
animal shearing or custom combining, as defined by Sec.  655.301, may 
use a mobile unit, camper, or other similar mobile housing unit that 
complies with all of the following standards, except as provided in 
paragraph (a)(1) or (2) of this section:
    (1) When the mobile housing unit is located on the range as defined 
in Sec.  655.201 to enable work to be performed on the range, the 
mobile housing is subject only to the standards for range housing in 
Sec.  655.235. As soon as the mobile housing unit is moved to a 
location off of the range, the mobile housing standards in this section 
apply. An employer whose mobile housing unit is or will be located on 
the range must have the housing unit inspected and approved by an a SWA 
with jurisdiction over the location of the mobile unit when not in use, 
at least once every 36 months, subject to the procedures for range 
housing inspection and self-certification in Sec.  655.230(b) and (c).
    (2) A Canadian employer performing custom combining operations in 
the United States whose mobile housing unit is located in Canada when 
not in use must have the housing unit inspected and approved by an 
authorized representative of the federal or provincial government of 
Canada, in accordance with inspection procedures and applicable 
standards for such housing under Canadian law or regulation.
    (b) Compliance with mobile housing standards. The employer may 
comply with the standards for mobile housing in this section in one of 
two ways:
    (1) The employer may provide a mobile housing unit that complies 
with all applicable standards; or
    (2) The employer may provide a mobile housing unit and supplemental 
facilities (e.g., located at a fixed housing site) if workers are 
afforded access to all facilities contained in these standards.
    (c) Housing site. (1) Mobile housing sites must be well drained and 
free from depressions where water may stagnate. They shall be located 
where the disposal of sewage is provided in a manner that neither 
creates, nor is likely to create, a nuisance or a hazard to health.
    (2) Mobile housing sites shall not be in proximity to conditions 
that create or are likely to create offensive odors, flies, noise, 
traffic, or any similar hazards.
    (3) Mobile housing sites shall be free from debris, noxious plants 
(e.g., poison ivy, etc.), and uncontrolled weeds or brush.
    (d) Drinking water supply. (1) An adequate and convenient supply of 
potable water that meets the standards of the local or state health 
authority must be provided.
    (2) Individual drinking cups must be provided.
    (3) A cold water tap shall be available within a reasonable 
distance of each individual living unit when water is not provided in 
the unit.
    (4) Adequate drainage facilities shall be provided for overflow and 
spillage.
    (e) Excreta and liquid waste disposal. (1) Toilet facilities, such 
as portable toilets, RV or trailer toilets, privies, or flush toilets, 
must be provided and maintained for effective disposal of excreta and 
liquid waste in accordance with the requirements of the applicable 
local, state, or Federal health authority, whichever is most stringent.
    (2) Where mobile housing units contain RV or trailer toilets, such 
facilities must be connected to sewage hookups whenever feasible (i.e., 
in campgrounds or RV parks).
    (3) If wastewater tanks are used, the employer must make provisions 
to regularly empty the wastewater tanks.
    (4) If pits are used for disposal by burying of excreta and liquid 
waste, they shall be kept fly-tight when not filled in completely after 
each use. The maintenance of disposal pits must be in accordance with 
local and state health and sanitation requirements.
    (f) Housing structure. (1) Housing must be structurally sound, in 
good repair, in a sanitary condition, and must provide shelter against 
the elements to occupants.
    (2) Housing must have flooring constructed of rigid materials easy 
to clean and so located as to prevent ground and surface water from 
entering.
    (3) Each housing unit must have at least one window or a skylight 
that can be opened directly to the outdoors.
    (g) Heating. (1) Where the climate in which the housing will be 
used is such that the safety and health of a worker requires heated 
living quarters, all such quarters must have properly installed 
operable heating equipment that supplies adequate heat. Where the 
climate in which the housing will be used is mild and the low 
temperature for any day in which the housing will be used is not 
reasonably expected to drop below 50 degrees Fahrenheit, no separate 
heating equipment is required as long as proper protective clothing and 
bedding are made available, free of charge or deposit charge, to the 
workers.
    (2) Any stoves or other sources of heat using combustible fuel must 
be installed and vented in such a manner as to prevent fire hazards and 
a dangerous concentration of gases. If a solid or liquid fuel stove is 
used in a room with wooden or other combustible flooring, there must be 
a concrete slab, insulated metal sheet, or other fireproof material on 
the floor under each stove, extending at least 18 inches beyond the 
perimeter of the base of the stove.
    (3) Any wall or ceiling within 18 inches of a solid or liquid fuel 
stove or stove pipe must be made of fireproof material. A vented metal 
collar must be installed around a stovepipe or vent passing through a 
wall, ceiling, floor, or roof.

[[Page 36292]]

    (4) When a heating system has automatic controls, the controls must 
be of the type that cuts off the fuel supply when the flame fails or is 
interrupted or whenever a predetermined safe temperature or pressure is 
exceeded.
    (h) Electricity and lighting. (1) Barring unusual circumstances 
that prevent access, electrical service or generators must be provided.
    (2) In areas where it is not feasible to provide electrical service 
to mobile housing units, lanterns must be provided (e.g., battery 
operated lights).
    (3) Lanterns, where used, must be provided in a minimum ratio of 
one per occupant of each unit.
    (i) Bathing, laundry, and hand washing. (1) Bathing facilities, 
supplied with hot and cold water under pressure, shall be provided to 
all occupants no less frequently than once per day.
    (2) Laundry facilities, supplied with hot and cold water under 
pressure, shall be provided to all occupants no less frequently than 
once per week.
    (3) Alternative bathing and laundry facilities must be available to 
occupants at all times when water under pressure is unavailable.
    (4) Hand washing facilities must be available to all occupants at 
all times.
    (j) Food storage. (1) Provisions for mechanical refrigeration of 
food at a temperature of not more than 45 degrees Fahrenheit must be 
provided.
    (2) When mechanical refrigeration of food is not feasible, the 
employer must provide another means of keeping food fresh and 
preventing spoilage (e.g., a butane or propane gas refrigerator).
    (k) Cooking and eating facilities. (1) When workers or their 
families are permitted or required to cook in their individual unit, a 
space must be provided with adequate lighting and ventilation, and 
stoves or hotplates.
    (2) Wall surfaces next to all food preparation and cooking areas 
must be of nonabsorbent, easy to clean material. Wall surfaces next to 
cooking areas must be made of fire-resistant material.
    (l) Garbage and other refuse. (1) Durable, fly-tight, clean 
containers must be provided to each housing unit, for storing garbage 
and other refuse.
    (2) Provision must be made for collecting refuse, which includes 
garbage, at least twice a week or more often if necessary for proper 
disposal in accordance with applicable local, state, or Federal law, 
whichever is most stringent.
    (m) Insect and rodent control. Appropriate materials, including 
sprays, and sealed containers for storing food, must be provided to aid 
housing occupants in combating insects, rodents, and other vermin.
    (n) Sleeping facilities. (1) A separate comfortable and clean bed, 
cot, or bunk, with a clean mattress, must be provided for each person, 
except in a family arrangement.
    (2) Clean and sanitary bedding must be provided for each person.
    (3) No more than two deck bunks are permissible.
    (o) Fire, safety, and first aid. (1) All units in which people 
sleep or eat must be constructed and maintained according to applicable 
local or state fire and safety law.
    (2) No flammable or volatile liquid or materials may be stored in 
or next to rooms used for living purposes, except for those needed for 
current household use.
    (3) Mobile housing units must have a second means of escape through 
which the worker can exit the unit without difficulty.
    (4) Adequate, accessible fire extinguishers in good working 
condition and first aid kits must be provided in the mobile housing.
    (p) Maximum occupancy. The number of occupants housed in each 
mobile housing unit must not surpass the occupancy limitations set 
forth in the manufacturer specifications for the unit.

Title 29--Labor

0
5. Revise part 501 to read as follows:

PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY 
AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION 
AND NATIONALITY ACT

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

Procedures Relating to Hearing

501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.

Rules of Practice

501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.

Referral for Hearing

501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of 
copies.

Procedures Before Administrative Law Judge

501.40 Consent findings and order.

Post-Hearing Procedures

501.41 Decision and order of Administrative Law Judge.

Review of Administrative Law Judge's Decision

501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Administrative Review Board.

Record

501.46 Retention of official record.
501.47 Certification.

    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 H-2A worker, as defined at 8 U.S.C. 
1188, may not be approved by the Secretary of the Department of 
Homeland Security (DHS) unless the petitioner has applied for and 
received a temporary agricultural labor certification from the 
Secretary of Labor (Secretary). The

[[Page 36293]]

temporary agricultural labor certification establishes that:
    (i) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, to 
perform the labor or services involved in the petition; and
    (ii) The employment of the H-2A worker in such labor or services 
will not adversely affect the wages and working conditions of workers 
in the United States similarly employed.
    (2) The Secretary is authorized to take actions that assure 
compliance with the terms and conditions of employment under 8 U.S.C. 
1188, the regulations at 20 CFR part 655, subpart B, or the regulations 
in this part, including imposing appropriate penalties, and seeking 
injunctive relief and specific performance of contractual obligations. 
See 8 U.S.C. 1188(g)(2).
    (b) Authority and role of the Office of Foreign Labor 
Certification. The Secretary has delegated authority to the Assistant 
Secretary for the Employment and Training Administration (ETA), who in 
turn has delegated that authority to the Office of Foreign Labor 
Certification (OFLC), to issue certifications and carry out other 
statutory responsibilities as required by 8 U.S.C. 1188. Determinations 
on an Application for Temporary Employment Certification are made by 
the OFLC Administrator who, in turn, may delegate this responsibility 
to designated staff, e.g., a Certifying Officer (CO).
    (c) Authority of the Wage and Hour Division. The Secretary has 
delegated authority to the Wage and Hour Division (WHD) to conduct 
certain investigatory and enforcement functions with respect to terms 
and conditions of employment under 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, and this part (``the H-2A program''), and to carry out other 
statutory responsibilities required by 8 U.S.C. 1188. Certain 
investigatory, inspection, and law enforcement functions to carry out 
the provisions under 8 U.S.C. 1188 have been delegated by the Secretary 
to the WHD. In general, matters concerning the obligations under a work 
contract between an employer of H-2A workers and the H-2A workers and 
workers in corresponding employment are enforced by WHD, including 
whether employment was offered to U.S. workers as required under 8 
U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were 
laid off or displaced in violation of program requirements. Included 
within the enforcement responsibility of WHD are such matters as the 
payment of required wages, transportation, meals, and housing provided 
during the employment. WHD has the responsibility to carry out 
investigations, inspections, and law enforcement functions and in 
appropriate instances to impose penalties, to debar from future 
certifications, to recommend revocation of existing certification(s), 
and to seek injunctive relief and specific performance of contractual 
obligations, including recovery of unpaid wages and reinstatement of 
laid off or displaced U.S. workers.
    (d) Concurrent authority. OFLC and WHD have concurrent authority to 
impose a debarment remedy pursuant to 20 CFR 655.182 and Sec.  501.20.
    (e) Effect of regulations. The enforcement functions carried out by 
WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and this part 
apply to the employment of any H-2A worker and any other worker in 
corresponding employment as the result of any Application for Temporary 
Employment Certification processed under 20 CFR 655.102(c).


Sec.  501.2   Coordination between Federal agencies.

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


Sec.  501.3   Definitions.

    (a) Definitions of terms used in this part. The following defined 
terms apply to this part: Act. The Immigration and Nationality Act, as 
amended (INA), 8 U.S.C. 1101 et seq.
    Administrative Law Judge. A person within the Department's Office 
of Administrative Law Judges (OALJ) appointed pursuant to 5 U.S.C. 
3105.
    Administrator. See definitions of OFLC Administrator and WHD 
Administrator in this section.
    Adverse effect wage rate. The wage rate published by the OFLC 
Administrator in the Federal Register for the occupational 
classification and State based on either the U.S. Department of 
Agriculture's Farm Labor Survey or the Bureau of Labor Statistics' 
Occupational Employment Statistics survey, as set forth in 20 CFR 
655.120(b).
    Agent. A legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, that:
    (i) Is authorized to act on behalf of the employer for temporary 
agricultural labor certification purposes;
    (ii) Is not itself an employer, or a joint employer, as defined in 
this part with respect to a specific application; and
    (iii) Is not under suspension, debarment, expulsion, or disbarment 
from practice before any court, the Department, the Executive Office 
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
    Agricultural association. Any nonprofit or cooperative association 
of farmers, growers, or ranchers (including, but not limited to, 
processing establishments, canneries, gins, packing sheds, nurseries, 
or other similar fixed-site agricultural employers), incorporated or 
qualified under applicable State law, that recruits, solicits, hires, 
employs, furnishes, houses, or transports any worker that is subject to 
8 U.S.C. 1188. An agricultural association may act as the agent of an 
employer, or may act as the sole or joint employer of any worker 
subject to 8 U.S.C. 1188.
    Applicant. A U.S. worker who is applying for a job opportunity for 
which an employer has filed an Application for Temporary Employment 
Certification and job order.
    Application for Temporary Employment Certification. The Office of 
Management and Budget (OMB)-approved Form ETA-9124A and appropriate 
appendices submitted by an employer to secure a temporary agricultural 
labor certification determination from DOL.
    Area of intended employment. The geographic area within normal 
commuting distance of the place(s) of employment for which the 
temporary agricultural labor certification is sought. There is no rigid 
measure of distance that constitutes a normal commuting distance or 
normal commuting area, because there may be widely varying factual 
circumstances among different areas (e.g., average commuting times, 
barriers to reaching the place(s) of employment, or quality of the 
regional transportation network). If a place of employment is within a 
Metropolitan Statistical Area (MSA), including a

[[Page 36294]]

multi-State MSA, any place within the MSA is deemed to be within normal 
commuting distance of the place of employment. The borders of MSAs are 
not controlling in the identification of the normal commuting area; a 
place of employment outside of an MSA may be within normal commuting 
distance of a place of employment that is inside (e.g., near the border 
of) the MSA.
    Attorney. Any person who is a member in good standing of the bar of 
the highest court of any State, possession, territory, or commonwealth 
of the United States, or the District of Columbia (DC). Such a person 
is also permitted to act as an agent under this part. No attorney who 
is under suspension, debarment, expulsion, or disbarment from practice 
before any court, the Department, the Executive Office for Immigration 
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an 
employer under this part.
    Certifying Officer. The person who makes a determination on an 
Application for Temporary Employment Certification filed under the H-2A 
program. The OFLC Administrator is the National CO. Other COs may be 
designated by the OFLC Administrator to also make the determination 
required under 20 CFR part 655, subpart B.
    Chief Administrative Law Judge. The chief official of the 
Department's OALJ or the Chief ALJ's designee.
    Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary 
Employment Certification in any work included in the job order, or in 
any agricultural work performed by the H-2A workers. To qualify as 
corresponding employment, the work must be performed during the 
validity period of the job order, including any approved extension 
thereof.
    Department of Homeland Security. The Federal department having 
jurisdiction over certain immigration-related functions, acting through 
its component agencies, including U.S. Citizenship and Immigration 
Services (USCIS).
    Employee. A person who is engaged to perform work for an employer, 
as defined under the general common law of agency. Some of the factors 
relevant to the determination of employee status include: The hiring 
party's right to control the manner and means by which the work is 
accomplished; the skill required to perform the work; the source of the 
instrumentalities and tools for accomplishing the work; the location of 
the work; the hiring party's discretion over when and how long to work; 
and whether the work is part of the regular business of the hiring 
party. Other applicable factors may be considered and no one factor is 
dispositive.
    Employer. A person (including any individual, partnership, 
association, corporation, cooperative, firm, joint stock company, 
trust, or other organization with legal rights and duties) that:
    (i) Has an employment relationship (such as the ability to hire, 
pay, fire, supervise, or otherwise control the work of employee) with 
respect to an H-2A worker or a worker in corresponding employment; or
    (ii) Files an Application for Temporary Employment Certification 
other than as an agent; or
    (iii) A person on whose behalf an Application of Temporary 
Employment Certification is filed.
    Employment and Training Administration. The agency within the 
Department that includes OFLC and has been delegated authority by the 
Secretary to fulfill the Secretary's mandate under the INA and DHS' 
implementing regulations from the administration and adjudication of an 
Application for Temporary Employment Certification and related 
functions.
    Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
    First date of need. The first date the employer anticipates 
requiring the labor or services of H-2A workers as indicated in the 
Application for Temporary Employment Certification.
    Fixed-site employer. Any person engaged in agriculture who meets 
the definition of an employer, as those terms are defined in this part; 
who owns or operates a farm, ranch, processing establishment, cannery, 
gin, packing shed, nursery, or other similar fixed-site location where 
agricultural activities are performed; and who recruits, solicits, 
hires, employs, houses, or transports any worker subject to 8 U.S.C. 
1188, 20 CFR part 655, subpart B, or this part as incident to or in 
conjunction with the owner's or operator's own agricultural operation.
    H-2A labor contractor. 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 United States and authorized by DHS to perform agricultural 
labor or services of a temporary or seasonal nature pursuant to 8 
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
    H-2 A Petition. The USCIS Form I-129, Petition for a Nonimmigrant 
Worker, with H Supplement or successor form or supplement, and 
accompanying documentation required by DHS for employers seeking to 
employ foreign persons as H-2A nonimmigrant workers.
    Job offer. The offer made by an employer or potential employer of 
H-2A workers to both U.S. and H-2A workers describing all the material 
terms and conditions of employment, including those relating to wages, 
working conditions, and other benefits.
    Job opportunity. Full-time employment at a place in the United 
States to which U.S. workers can be referred.
    Job order. The document containing the material terms and 
conditions of employment that is posted by the SWA on its interstate 
and intrastate job clearance systems based on the employer's 
Agricultural Clearance Order (Form ETA-790/ETA-790A and all appropriate 
addenda), as submitted to the National Processing Center.
    Joint employment. (i) Where two or more employers each have 
sufficient definitional indicia of being a joint employer of a worker 
under the common law of agency, they are, at all times, joint employers 
of that worker.
    (ii) An agricultural association that files an Application for 
Temporary Employment Certification as a joint employer is, at all 
times, a joint employer of all the H-2A workers sponsored under the 
Application for Temporary Employment Certification and all workers in 
corresponding employment. An employer-member of an agricultural 
association that files an Application for Temporary Employment 
Certification as a joint employer is a joint employer of the H-2A 
workers sponsored under the joint employer Application for Temporary 
Employment Certification along with the agricultural association during 
the period that the employer-member employs the H-2A workers sponsored 
under the Application for Temporary Employment Certification.
    (iii) Employers that jointly file a joint employer Application for 
Temporary Employment Certification under 20 CFR 655.131(b) are, at all 
times, joint employers of all H-2A workers sponsored under the 
Application for Temporary Employment Certification and all workers in 
corresponding employment.
    Metropolitan Statistical Area. A geographic entity defined by OMB 
for

[[Page 36295]]

use by Federal statistical agencies in collecting, tabulating, and 
publishing Federal statistics. A Metropolitan Statistical Area contains 
a core urban area of 50,000 or more population, and a Micropolitan 
Statistical Area contains an urban core of at least 10,000 (but fewer 
than 50,000) population. Each metropolitan or micropolitan area 
consists of one or more counties and includes the counties containing 
the core urban area, as well as any adjacent counties that have a high 
degree of social and economic integration (as measured by commuting to 
work) with the urban core.
    National Processing Center. The offices within OFLC in which the 
COs operate and which are charged with the adjudication of Applications 
for Temporary Employment Certification.
    Office of Foreign Labor Certification. OFLC means the 
organizational component of ETA that provides national leadership and 
policy guidance, and develops regulations and procedures to carry out 
the responsibilities of the Secretary under the INA concerning the 
admission of foreign workers to the United States to perform work 
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
    OFLC Administrator. The primary official of OFLC, or the OLFC 
Administrator's designee.
    Period of employment. The time during which the employer requires 
the labor or services of H-2A workers as indicated by the first and 
last dates of need provided in the Application for Temporary Employment 
Certification.
    Piece rate. A form of wage compensation based upon a worker's 
quantitative output or one unit of work or production for the crop or 
agricultural activity.
    Place of employment. A worksite or physical location where work 
under the job order actually is performed by the H-2A workers and 
workers in corresponding employment.
    Secretary of Labor. The chief official of the Department, or the 
Secretary's designee.
    State Workforce Agency. State government agency that receives funds 
pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to administer 
the state's public labor exchange activities.
    Successor in interest. (i) Where an employer, agent, or attorney 
has violated 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part, 
and has ceased doing business or cannot be located for purposes of 
enforcement, a successor in interest to that employer, agent, or 
attorney may be held liable for the duties and obligations of the 
violating employer, agent, or attorney in certain circumstances. The 
following factors, as used under Title VII of the Civil Rights Act and 
the Vietnam Era Veterans' Readjustment Assistance Act, may be 
considered in determining whether an employer, agent, or attorney is a 
successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (A) Substantial continuity of the same business operations;
    (B) Use of the same facilities;
    (C) Continuity of the work force;
    (D) Similarity of jobs and working conditions;
    (E) Similarity of supervisory personnel;
    (F) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (G) Similarity in machinery, equipment, and production methods;
    (H) Similarity of products and services; and
    (I) The ability of the predecessor to provide relief.
    (ii) For purposes of debarment only, the primary consideration will 
be the personal involvement of the firm's ownership, management, 
supervisors, and others associated with the firm in the violation(s) at 
issue.
    Temporary agricultural labor certification. Certification made by 
the OFLC Administrator, based on the Application for Temporary 
Employment Certification, job order, and all supporting documentation, 
with respect to an employer seeking to file 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, and 20 CFR 
part 655, subpart B.
    United States. The continental United States, Alaska, Hawaii, the 
Commonwealth of Puerto Rico, and the territories of Guam, the U.S. 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
    U.S. Citizenship and Immigration Services. The Federal agency 
within DHS that makes the determination under the INA whether to grant 
petitions filed by employers seeking H-2A workers to perform temporary 
or seasonal agricultural labor or services in the United States.
    U.S. worker. A worker who is:
    (i) A citizen or national of the United States;
    (ii) An individual who is lawfully admitted for permanent residence 
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is 
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise 
authorized by the INA or DHS to be employed in the United States; or
    (iii) An individual who is not an unauthorized alien, as defined in 
8 U.S.C. 1324a(h)(3), with respect to the employment in which the 
worker is engaging.
    Wages. All forms of cash remuneration to a worker by an employer in 
payment for labor or services.
    Wage and Hour Division. The agency within the Department with 
authority to conduct certain investigatory and enforcement functions, 
as delegated by the Secretary, under 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, and this part.
    WHD Administrator. The primary official of the WHD, or the WHD 
Administrator's designee.
    Work contract. All the material terms and conditions of employment 
relating to wages, hours, working conditions, and other benefits, 
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or this part. The contract between the employer and the worker may be 
in the form of a separate written document. In the absence of a 
separate written work contract incorporating the required terms and 
conditions of employment, agreed to by both the employer and the 
worker, the work contract at a minimum will be the terms and conditions 
of the job order and any obligations required under 8 U.S.C. 1188, 20 
CFR part 655, subpart B, or this part.
    (b) Definition of agricultural labor or services. For the purposes 
of this part, agricultural labor or services, pursuant to 8 U.S.C. 
1101(a)(15)(H)(ii)(a), is defined as: Agricultural labor as defined and 
applied in section 3121(g) of the Internal Revenue Code of 1986 at 26 
U.S.C. 3121(g); agriculture as defined and applied in section 3(f) of 
the Fair Labor Standards Act of 1938, as amended (FLSA) at 29 U.S.C. 
203(f); the pressing of apples for cider on a farm; logging employment; 
reforestation activities; or pine straw activities. An occupation 
included in either statutory definition is agricultural labor or 
services, notwithstanding the exclusion of that occupation from the 
other statutory definition. For informational purposes, the statutory 
provisions are listed in paragraphs (b)(1) through (6) of this section.
    (1) Agricultural labor. (i) For the purpose of paragraph (b) of 
this section, agricultural labor means all service performed:
    (A) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting any 
agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of livestock,

[[Page 36296]]

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)(i)(D) of this section but only if such operators 
produced all of the commodity with respect to which such service is 
performed. For purposes of this paragraph, any unincorporated group of 
operators shall be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during the 
calendar year in which such service is performed;
    (F) The provisions of paragraphs (b)(1)(i)(D) and (E) of this 
section shall not be deemed to be applicable with respect to service 
performed in connection with commercial canning or commercial freezing 
or in connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; or
    (G) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in a 
private home of the employer.
    (ii) As used in this section, the term ``farm'' includes stock, 
dairy, poultry, fruit, fur-bearing animal, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses, or other similar 
structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards.
    (2) Agriculture. For purposes of paragraph (b) of this section, 
agriculture means farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural or 
horticultural commodities (including commodities defined as 
agricultural commodities in 12 U.S.C. 1141j(g), the raising of 
livestock, bees, fur-bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a farmer 
or on a farm as an incident to or in conjunction with such farming 
operations, including preparation for market, delivery to storage or to 
market or to carriers for transportation to market. See 29 U.S.C. 
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities 
include, in addition to other agricultural commodities, crude gum 
(oleoresin) from a living tree, and the following products as processed 
by the original producer of the crude gum (oleoresin) from which 
derived: Gum spirits of turpentine and gum rosin. In addition, as 
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of 
turpentine made from gum (oleoresin) from a living tree and gum rosin 
means rosin remaining after the distillation of gum spirits of 
turpentine.
    (3) Apple pressing for cider. The pressing of apples for cider on a 
farm, as the term farm is defined and applied in section 3121(g) of the 
Internal Revenue Code at 26 U.S.C. 3121(g), or as applied in section 
3(f) of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780, is 
agricultural labor or services for purposes of paragraph (b) of this 
section.
    (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, marking trees or logs to be 
cut to length, felling, limbing, bucking, debarking, chipping, yarding, 
loading, unloading, storing, and transporting machines, equipment and 
personnel to, from, and between logging sites, is agricultural labor or 
services for purposes of paragraph (b) of this section.
    (5) Reforestation activities. Reforestation activities are 
predominantly manual forestry operations associated with developing, 
maintaining, or protecting forested areas, including, but not limited 
to, planting tree seedlings in specified patterns using manual tools; 
and felling, pruning, pre-commercial thinning, and removing trees and 
brush from forested areas. Reforestation activities may include some 
forest fire prevention or suppression duties, such as constructing fire 
breaks or performing prescribed burning tasks, when such duties are in 
connection with and incidental to other reforestation activities. 
Reforestation activities do not include vegetation management 
activities in and around utility, highway, railroad, or other rights-
of-way.
    (6) Pine straw activities. Operations associated with clearing the 
ground of underlying vegetation, pine cones, and debris; and raking, 
lifting, gathering, harvesting, baling, grading, and loading of pine 
straw for transport from pine forests, woodlands, pine stands, or 
plantations, is agricultural labor or services for purposes of 
paragraph (b) of this section.
    (c) Definition of a temporary or seasonal nature. For the purposes 
of this subpart, employment is of a seasonal nature where it is tied to 
a certain time of year by an event or pattern, such as a short annual 
growing cycle or a specific aspect of a longer cycle, and requires 
labor levels far above those necessary for ongoing operations. 
Employment is of a temporary nature where the employer's need to fill 
the position with a temporary worker will, except in extraordinary 
circumstances, last no longer than 1 year.


Sec.  501.4  Discrimination prohibited.

    (a) A person may not intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
who has:
    (1) Filed a complaint under or related to 8 U.S.C. 1188 or this 
part;
    (2) Instituted or caused to be instituted any proceedings related 
to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
    (3) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188, 20 CFR part 655, subpart 
B, or this part; or
    (5) Exercised or asserted on behalf of himself or herself or others 
any right or protection afforded by 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, or this part.
    (b) Allegations of discrimination against any person under 
paragraph (a) of this section will be investigated by WHD. Where WHD 
has determined through investigation that such allegations have been 
substantiated,

[[Page 36297]]

appropriate remedies may be sought. WHD may assess civil money 
penalties, seek injunctive relief, and/or seek additional remedies 
necessary to make the worker whole as a result of the discrimination, 
as appropriate, initiate debarment proceedings, and recommend to OFLC 
revocation of any such violator's current temporary agricultural labor 
certification. Complaints alleging discrimination against workers or 
immigrants based on citizenship or immigration status may also be 
forwarded by WHD to the Department of Justice, Civil Rights Division, 
Immigrant and Employee Rights Section.


Sec.  501.5  Waiver of rights prohibited.

    A person may not seek to have an H-2A worker, a worker in 
corresponding employment, or a U.S. worker improperly rejected for 
employment or improperly laid off or displaced waive any rights 
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this 
part. Any agreement by a worker purporting to waive or modify any 
rights given to said person under 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 the Secretary.

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


Sec.  501.7  Cooperation with Federal officials.

    All persons must cooperate with any Federal officials assigned to 
perform an investigation, inspection, or law enforcement function 
pursuant to 8 U.S.C. 1188 and this part during the performance of such 
duties. WHD will take such action as it deems appropriate, including 
initiating debarment proceedings, seeking an injunction to bar any 
failure to cooperate with an investigation, and/or assessing a civil 
money penalty therefor. In addition, WHD will report the matter to 
OFLC, and may recommend to OFLC that the person's existing temporary 
agricultural labor certification be revoked. In addition, Federal 
statutes prohibiting persons from interfering with a Federal officer in 
the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 
114.


Sec.  501.8  Accuracy of information, statements, and data.

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


Sec.  501.9  Enforcement of surety bond.

    Every H-2A labor contractor (H-2ALC) must obtain a surety bond 
demonstrating its ability to discharge financial obligations as set 
forth in 20 CFR 655.132(c).
    (a) Notwithstanding the required bond amounts set forth in 20 CFR 
655.132(c), the WHD Administrator may require that an H-2ALC obtain a 
bond with a higher face value amount after notice and opportunity for 
hearing when it is shown based on objective criteria that the amount of 
the bond is insufficient to meet potential liabilities.
    (b) Upon a final decision reached pursuant to the administrative 
proceedings of subpart C of this part, including any timely appeal, or 
resulting from an enforcement action brought directly in a District 
Court of the United States finding a violation or violations of 20 CFR 
part 655, subpart B, or this part, the WHD Administrator may make a 
written demand on the surety for payment of any wages and benefits, 
including the assessment of interest, owed to an H-2A worker, a worker 
engaged in corresponding employment, or a U.S. worker improperly 
rejected or improperly laid off or displaced. The WHD Administrator 
shall have 3 years from the expiration of the certification, including 
any extension thereof, to make such written demand for payment on the 
surety. This 3-year period for making a demand on the surety is tolled 
by commencement of any enforcement action of the WHD Administrator 
pursuant to Sec.  501.6, Sec.  501.15, or Sec.  501.16 or the 
commencement of any enforcement action in a District Court of the 
United States.

Subpart B--Enforcement


Sec.  501.15  Enforcement.

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


Sec.  501.16  Sanctions and remedies--general.

    Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, or this part have been violated, such action shall 
be taken and such proceedings instituted as deemed appropriate, 
including, but not limited to, the following:
    (a)(1) Institute appropriate administrative proceedings, including: 
The recovery of unpaid wages (including recovery of recruitment fees 
paid in the absence of required contract clauses (see 20 CFR 
655.135(k)); the enforcement of provisions of the work contract, 8 
U.S.C. 1188, 20 CFR part 655, subpart B, or this part; the assessment 
of a civil money penalty; make whole relief for any person who has been 
discriminated against; reinstatement and make whole relief for any U.S. 
worker who has been improperly rejected for employment, or improperly 
laid off or displaced; or debarment for up to 3 years.
    (2) The remedies referenced in paragraph (a)(1) of this section 
will be sought either directly from the

[[Page 36298]]

employer, agent, or attorney, or from its successor in interest, as 
appropriate. In the case of an H-2ALC, the remedies will be sought from 
the H-2ALC directly and/or monetary relief (other than civil money 
penalties) from the insurer who issued the surety bond to the H-2ALC, 
as required by 20 CFR part 655, subpart B, and Sec.  501.9.
    (b) Petition any appropriate District Court of the United States 
for temporary or permanent injunctive relief, including to prohibit the 
withholding of unpaid wages and/or for reinstatement, or to restrain 
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part, 
by any person.
    (c) Petition any appropriate District Court of the United States 
for an order directing specific performance of covered contractual 
obligations.


Sec.  501.17  Concurrent actions.

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


Sec.  501.18  Representation of the Secretary.

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


Sec.  501.19  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the WHD Administrator 
for each violation of the work contract, or the obligations imposed by 
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. Each failure 
to pay an individual worker properly or to honor the terms or 
conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, or this part constitutes a separate violation.
    (b) In determining the amount of penalty to be assessed for each 
violation, the WHD Administrator shall consider the type of violation 
committed and other relevant factors. The factors that the WHD 
Administrator may consider include, but are not limited to, the 
following:
    (1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or this part;
    (2) The number of H-2A workers, workers in corresponding 
employment, or U.S. workers who were and/or are affected by the 
violation(s);
    (3) The gravity of the violation(s);
    (4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR 
part 655, subpart B, and this part;
    (5) Explanation from the person charged with the violation(s);
    (6) Commitment to future compliance, taking into account the public 
health, interest, or safety, and whether the person has previously 
violated 8 U.S.C. 1188; and
    (7) The extent to which the violator achieved a financial gain due 
to the violation(s), or the potential financial loss or potential 
injury to the worker(s).
    (c) A civil money penalty for each violation of the work contract 
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this 
part will not exceed $1,692 per violation, with the following 
exceptions:
    (1) A civil money penalty for each willful violation of the work 
contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or this part, or for each act of discrimination prohibited by Sec.  
501.4 shall not exceed $5,695.
    (2) A civil money penalty for a violation of a housing or 
transportation safety and health provision of the work contract, or any 
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this 
part, that proximately causes the death or serious injury of any worker 
shall not exceed $56,391 per worker.
    (3) For purposes of paragraphs (c)(2) and (4) 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 this part, that proximately causes the death or serious 
injury of any worker, shall not exceed $112,780 per worker.
    (d) A civil money penalty for failure to cooperate with a WHD 
investigation shall not exceed $5,695 per investigation.
    (e) A civil money penalty for laying off or displacing any U.S. 
worker employed in work or activities that are encompassed by the 
approved Application for Temporary Employment Certification for H-2A 
workers in the area of intended employment either within 60 calendar 
days preceding the first date of need or during the validity period of 
the job order, including any approved extension thereof, other than for 
a lawful, job-related reason, shall not exceed $16,917 per violation 
per worker.
    (f) A civil money penalty for improperly rejecting a U.S. worker 
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20 
CFR part 655, subpart B, or this part, shall not exceed $16,917 per 
violation per worker.


Sec.  501.20  Debarment and revocation.

    (a) Debarment of an employer, agent, or attorney. The WHD 
Administrator may debar an employer, agent, or attorney, or any 
successor in interest to that employer, agent, or attorney from 
participating in any action under 8 U.S.C. 1188, 20 CFR part 655, 
subpart B, or this part, subject to the time limits set forth in 
paragraph (c) of this section, if the WHD Administrator finds that the 
employer, agent, or attorney substantially violated a material term or 
condition of the temporary agricultural labor certification, with 
respect to H-2A workers, workers in corresponding employment, or U.S. 
workers improperly rejected for employment, or improperly laid off or 
displaced, by issuing a Notice of Debarment.
    (b) Effect on future applications. No application for H-2A workers 
may be filed by a debarred employer, or any successor in interest to a 
debarred employer, or by an employer represented by a debarred agent or 
attorney, or by any successor in interest to any debarred agent or 
attorney, subject to the time limits set forth in paragraph (c) of this 
section. If such an application is filed, it will be denied without 
review.
    (c) Statute of limitations and period of debarment. (1) The WHD 
Administrator must issue any Notice of Debarment not later than 2 years 
after the occurrence of the violation.
    (2) No employer, agent, or attorney, or their successors in 
interest, may be debarred under this part for more than 3 years from 
the date of the final agency decision.
    (d) Definition of violation. For the purposes of this section, a 
violation includes:

[[Page 36299]]

    (1) One or more acts of commission or omission on the part of the 
employer or the employer's agent which involve:
    (i) Failure to pay or provide the required wages, benefits, or 
working conditions to the employer's H-2A workers and/or workers in 
corresponding employment;
    (ii) Failure, except for lawful, job-related reasons, to offer 
employment to qualified U.S. workers who applied for the job 
opportunity for which certification was sought;
    (iii) Failure to comply with the employer's obligations to recruit 
U.S. workers;
    (iv) Improper layoff or displacement of U.S. workers or workers in 
corresponding employment;
    (v) Failure to comply with one or more sanctions or remedies 
imposed by the WHD Administrator for violation(s) of contractual or 
other H-2A obligations, or with one or more decisions or orders of the 
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B, 
or this part;
    (vi) Impeding an investigation of an employer under 8 U.S.C. 1188 
or this part, or an audit under 20 CFR part 655, subpart B;
    (vii) Employing an H-2A worker outside the area of intended 
employment, or in an activity/activities not listed in the job order or 
outside the validity period of employment of the job order, including 
any approved extension thereof;
    (viii) A violation of the requirements of 20 CFR 655.135(j) or (k);
    (ix) A violation of any of the provisions listed in Sec.  501.4(a); 
or
    (x) A single heinous act showing such flagrant disregard for the 
law that future compliance with program requirements cannot reasonably 
be expected.
    (2) In determining whether a violation is so substantial as to 
merit debarment, the factors set forth in Sec.  501.19(b) shall be 
considered.
    (e) Procedural requirements. The Notice of Debarment must be in 
writing, must state the reason for the debarment finding, including a 
detailed explanation of the grounds for and the duration of the 
debarment, must identify appeal opportunities under Sec.  501.33 and a 
timeframe under which such rights must be exercised and must comply 
with Sec.  501.32. The debarment will take effect 30 calendar days from 
the date the Notice of Debarment is issued, unless a request for review 
is properly filed within 30 calendar days from the issuance of the 
Notice of Debarment. The timely filing of an administrative appeal 
stays the debarment pending the outcome of the appeal as provided in 
Sec.  501.33(d).
    (f) Debarment involving members of agricultural associations. If, 
after investigation, the WHD Administrator determines that an 
individual employer-member of an agricultural association has committed 
a substantial violation, the debarment determination will apply only to 
that member unless the WHD Administrator determines that the 
agricultural association or another agricultural association member 
participated in the violation, in which case the debarment will be 
invoked against the agricultural association or other complicit 
agricultural association member(s) as well.
    (g) Debarment involving agricultural associations acting as sole 
employers. If, after investigation, the WHD Administrator determines 
that an agricultural association acting as a sole employer has 
committed a substantial violation, the debarment determination will 
apply only to the agricultural association and any successor in 
interest to the debarred agricultural association.
    (h) Debarment involving agricultural associations acting as joint 
employers. If, after investigation, the WHD Administrator determines 
that an agricultural association acting as a joint employer with its 
members has committed a substantial violation, the debarment 
determination will apply only to the agricultural association, and will 
not be applied to any individual employer-member of the agricultural 
association. However, if the WHD Administrator determines that the 
member participated in, had knowledge of, or had reason to know of the 
violation, the debarment may be invoked against the complicit 
agricultural association member as well. An agricultural association 
debarred from the H-2A temporary labor certification program will not 
be permitted to continue to file as a joint employer with its members 
during the period of the debarment.
    (i) Revocation. WHD may recommend to the OFLC Administrator the 
revocation of a temporary agricultural labor certification if WHD finds 
that the employer:
    (1) Substantially violated a material term or condition of the 
approved temporary agricultural labor certification;
    (2) Failed to cooperate with a DOL investigation or with a DOL 
official performing an investigation, inspection, or law enforcement 
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part; 
or
    (3) Failed to comply with one or more sanctions or remedies imposed 
by WHD, or with one or more decisions or orders of the Secretary or a 
court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or this part.


Sec.  501.21  Failure to cooperate with investigations.

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


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

    Where a civil money penalty is assessed in a final order by the WHD 
Administrator, an ALJ, or the Administrative Review Board (ARB), the 
amount of the penalty must be received by the WHD Administrator within 
30 calendar 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 money order, made payable to ``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 in this subpart.

    The procedures and rules contained in this subpart prescribe the 
administrative process that will be applied with respect to a 
determination to assess civil money penalties, debar, or increase the 
amount of a surety bond and which may be applied to the enforcement of 
provisions of the work contract, or obligations under 8 U.S.C. 1188, 20 
CFR part 655, subpart B, or this part, or to the collection of monetary

[[Page 36300]]

relief due as a result of any violation. Except with respect to the 
imposition of civil money penalties, debarment, or an increase in the 
amount of a surety bond, the Secretary may, in the Secretary's 
discretion, seek enforcement action in a District Court of the United 
States without resort to any administrative proceedings.

Procedures Relating to Hearing


Sec.  501.31  Written notice of determination required.

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


Sec.  501.32  Contents of notice.

    The notice required by Sec.  501.31 shall:
    (a) Set forth the determination of the WHD Administrator including 
the amount of any monetary relief due or actions necessary to fulfill a 
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part 
655, subpart B, or this part; the amount of any civil money penalty 
assessment; whether debarment is sought and if so its term; and any 
change in the amount of the surety bond, and the reason or reasons 
therefor.
    (b) Set forth the right to request a hearing on such determination.
    (c) Inform any affected person or persons that in the absence of a 
timely request for a hearing, the determination of the WHD 
Administrator shall become final and unappealable.
    (d) Set forth the time and method for requesting a hearing, and the 
procedures relating thereto, as set forth in Sec.  501.33.


Sec.  501.33  Request for hearing.

    (a) Any person desiring review of a determination referred to in 
Sec.  501.32, including judicial review, shall make a written request 
for an administrative hearing to the official who issued the 
determination at the WHD address appearing on the determination notice, 
no later than 30 calendar days after the date of issuance of the notice 
referred to in Sec.  501.32.
    (b) No particular form is prescribed for any request for hearing 
permitted by this part. However, any such request shall:
    (1) Be typewritten or legibly written;
    (2) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (3) State the specific reason or reasons the person requesting the 
hearing believes such determination is in error;
    (4) Be signed by the person making the request or by an authorized 
representative of such person; and
    (5) Include the address at which such person or authorized 
representative desires to receive further communications relating 
thereto.
    (c) The request for such hearing must be received by the official 
who issued the determination, at the WHD address appearing on the 
determination notice, within the time set forth in paragraph (a) of 
this section. Requests may be made by certified mail or by means 
normally assuring overnight delivery.
    (d) The determination shall take effect on the start date 
identified in the written notice of determination, unless an 
administrative appeal is properly filed. The timely filing of an 
administrative appeal stays the determination pending the outcome of 
the appeal proceedings, provided that any surety bond remains in effect 
until the conclusion of any such proceedings.

Rules of Practice


Sec.  501.34  General.

    (a) Except as specifically provided in this part, the Rules of 
Practice and Procedure for Administrative Hearings before the Office of 
Administrative Law Judges established by the Secretary at 29 CFR part 
18 shall apply to administrative proceedings described in this part.
    (b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, 
any oral or documentary evidence may be received in proceedings under 
this part. The Federal Rules of Evidence and 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 that is immaterial, irrelevant, or unduly repetitive.


Sec.  501.35  Commencement of proceeding.

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


Sec.  501.36  Caption of proceeding.

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

Referral for Hearing


Sec.  501.37  Referral to Administrative Law Judge.

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


Sec.  501.38  Notice of docketing.

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


Sec.  501.39  Service upon attorneys for the Department of Labor--
number of copies.

    Two copies of all pleadings and other documents required for any 
administrative proceeding provided herein shall be served on the 
attorneys for DOL. One copy shall be served on the Associate Solicitor, 
Division of Fair Labor Standards, Office of the Solicitor, U.S. 
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, 
and one copy on the attorney

[[Page 36301]]

representing the Department in the proceeding.

Procedures Before Administrative Law Judge


Sec.  501.40  Consent findings and order.

    (a) General. At any time after the commencement of a proceeding 
under this part, but prior to the reception of evidence in any such 
proceeding, a party may move to defer the receipt of any evidence for a 
reasonable time to permit negotiation of an agreement containing 
consent findings and an order disposing of the whole or any part of the 
proceeding. The allowance of such deferment and the duration thereof 
shall be at the discretion of the ALJ, after consideration of the 
nature of the proceeding, the requirements of the public interest, the 
representations of the parties, and the probability of an agreement 
being reached which will result in a just disposition of the issues 
involved.
    (b) Content. Any agreement containing consent findings and an order 
disposing of a proceeding or any part thereof shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the notice of administrative determination (or 
amended notice, if one is filed), and the agreement;
    (3) A waiver of any further procedural steps before the ALJ; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Submission. On or before the expiration of the time granted for 
negotiations, the parties or their authorized representatives or their 
counsel may:
    (1) Submit the proposed agreement for consideration by the ALJ; or
    (2) Inform the ALJ that agreement cannot be reached.
    (d) Disposition. In the event an agreement containing consent 
findings and an order is submitted within the time allowed therefor, 
the ALJ, within 30 calendar days thereafter, shall, if satisfied with 
its form and substance, accept such agreement by issuing a decision 
based upon the agreed findings.

Post-Hearing Procedures


Sec.  501.41  Decision and order of Administrative Law Judge.

    (a) The ALJ will prepare, within 60 calendar days after completion 
of the hearing and closing of the record, a decision on the issues 
referred by the WHD Administrator.
    (b) The decision of the ALJ shall include a statement of the 
findings and conclusions, with reasons and basis therefor, upon each 
material issue presented on the record. The decision shall also include 
an appropriate order which may affirm, deny, reverse, or modify, in 
whole or in part, the determination of the WHD Administrator. The 
reason or reasons for such order shall be stated in the decision.
    (c) The decision shall be served on all parties and the ARB.
    (d) The decision concerning civil money penalties, debarment, 
monetary relief, and/or enforcement of other contractual obligations 
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when 
served by the ALJ shall constitute the final agency order unless the 
ARB, as provided for in Sec.  501.42, determines to review the 
decision.

Review of Administrative Law Judge's Decision


Sec.  501.42  Procedures for initiating and undertaking review.

    (a) A respondent, WHD, or any other party wishing review, including 
judicial review, of the decision of an ALJ must, within 30 calendar 
days of the decision of the ALJ, petition the ARB to review the 
decision. Copies of the petition must be served on all parties and on 
the ALJ. If the ARB does not issue a notice accepting a petition for 
review of the decision within 30 calendar days after receipt of a 
timely filing of the petition, or within 30 calendar days of the date 
of the decision if no petition has been received, the decision of the 
ALJ will be deemed the final agency action.
    (b) Whenever the ARB, either on the ARB's own motion or by 
acceptance of a party's petition, determines to review the decision of 
an ALJ, a notice of the same shall be served upon the ALJ and upon all 
parties to the proceeding.


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

    Upon receipt of the ARB's notice to accept the petition, the OALJ 
will promptly forward a copy of the complete hearing record to the ARB.


Sec.  501.44  Additional information, if required.

    Where the ARB has determined to review such decision and order, the 
ARB will notify each party of:
    (a) The issue or issues raised;
    (b) The form in which submissions must be made (e.g., briefs or 
oral argument); and
    (c) The time within which such presentation must be submitted.


Sec.  501.45  Final decision of the Administrative Review Board.

    The ARB's final decision must be issued within 90 calendar days 
from the notice granting the petition and served upon all parties and 
the ALJ.

Record


Sec.  501.46  Retention of official record.

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


Sec.  501.47  Certification.

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

Molly E. Conway,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2019-15307 Filed 7-19-19; 8:45 am]
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